LES TERMES DE LA LEY; OR, Certain difficult and obscure Words and Terms of the Common Laws and Statutes of this Realm now in use, expounded and explained.
Now Corrected and Enlarged.
With very great Additions throughout the whole Book, never Printed in any other Impression.
LONDON, Printed by W. Rawlins, S. Roycroft and M. Flesher, Assigns of Richard and Edward Atkins Esquires.
For G. Walbanke, S. Heyrick, J. Place, J. Poole, and R. Sare. 1685.
To the READER.
I Need not strive much to prove the necessity of this Book, if you consider, that the most accomplished Pleader that ever charm'd his Author with Eloquence and Reason, began with it; much less shall I have difficulty to shew its profitableness to any who looks about and sees how many fair Estates are every day gained by the Professors of this Noble Science, to which this little Book must open the door and let them in: But least of all need I suspect, that whoever is convinced of these two Points, its Necessity and Profitableness, will fail to peruse and esteem it.
Though no name of any Authour appears to it, yet my Lord Cook in his preface to his Tenth Report ascribes it to William Rastal, that reverend Judge; who was eminently knowing both in the Common and Statute Law of this Land, as appears by the many Leraned Expositions and Excellent Cases, which every where occur in it. And we may probably guess it to be written by him originally in French only, having some cause to suspect the Translation to be done by a less skilful Hand: For though by the many Impressions of it, and carelesness of Printers,V. J. Cow. Interpreter. it has suffered much (as other Books of like nature daily do) yet some Objection lay against the Translator himself as (to omit others) Chapter is defined to be Locum in quo fiunt communes tractatus Collegiatorum, which was Englished thus odly, A Place wherein common Tracts of men Collegiate are made. And for Errors of the Press, they were very numerous and strangely unhappy: as disseised for die seized, Common Law for Canon Law, deep for deer, necessary for accessary, tiel for viel, rather, for either, owner for power, &c. In devastaverunt, sans compulsion, was Englished by compulsion, In the word Gild two whole Lines were omitted in [Page] the English, and the French imperfect; so likewise in Garranty, and other words. There was also a mistake in Geography in the word Pape, where Rome was said to be 1500 miles from hence, full 500 too much. And still as Impressions were iterated, Errat's increased.
Besides the very many Faults which were thus crept into this Book, it was so extreamly misalphabeted, that some words could not be found without much difficulty, I had almost said not at all: for if the Reader finds not the word he seeks in its true place, he commonly lays by the Book with despair.
To remedy these encreasing Evils, I was willing to bestow my endeavour: First, by adding above an hundred Words with Explications in their proper places, and making references to others, where needful. Secondly, by Correcting the whole Work in what I found amiss, and retrenching some antiquated and tautological Expressions as they occurred. Thirdly, by adding to some old words such late Statutes as alter or concern the Law established by them. And lastly, by digesting the whole into an exact Alphabet, and taking care to prevent Errors of the Press.
That I intended well, I can give you but my word: how I have performed, I make my Reader Judge.
TERMS OF THE LAW EXPOUNDED.
Abate.
ABate seems to come from the French Abbatre, is to destroy or defeat utterly, and has several significations. As, to Abate a Castle or Fortlet (Old Natura brev. fo. 45.) which (in Westem. 1. cap. 17.) is interpreted to beat down. And to abate a Writ, is to defeat or overthrow it, by some Error or Exception. Britton cap. 48. And, he that steps in between the former possessor and his Heir, is said to abate in the Lands. See Abatement.
Abatement of a Writ or Plaint.
ABatement of a Writ or Plaint is, when an Action is brought by Writ or Plaint, wherein is want of sufficient and good matter, or else the matter alledged is not certainly [Page 2] set down, or if the Plaintiff or Defendant, or Place are misnamed, or if there appear variance between the Writ and the Specialty or Record, or that the Writ or the Declaration be uncertain, or for Death of the Plaintiff or Defendant, and for divers other like causes; then upon those defaults the Defendant may pray that the Writ or Plaint may abate, that is to say, that the Plaintiffs Suit against him may cease for that time, and that he shall begin again his Suit, and bring a new Writ or Plaint, if he be so disposed. But if the Defendant in any Action plead a matter in Bar to annul the Action for ever, he shall not come afterwards to plead in Abatement of the writ; but if after it appear in the Record, that there is some matter apparent for which the Writ ought to be abated; then the Defendant or any person, as a friend to the Court, may well plead and shew it in Arrest of Iudgement.
See the titles of Writ, Misnosmer and Variance, in the Abridgements, and the Book called The Digests of Writs, in which this matter especially is very well handled.
There are also other matters Which abate and stay Actions and Writs, that is to say, Variance between the Writ and the Count.
[Page 3] If the Plaintiff be an alien Enemy.
For want of naming the Defendant of what Town, Trade, or degree he is where the Suit is by Writ.
That a Woman Plaintiff is married before, or hanging the Suit.
That the Plaintiff hath another Action depending for the same cause.
That the Writ is dated before the Action accrued.
For that the Defendant ought to be sued in another Court of which he is an Attorney or Officer.
For that the Land is ancient demesne.
For that the matter in Suit was done upon the high Sea, in which case the Admiral hath Iurisdiction.
These csuses underneath do not abate the Writ or Action but suspend the prosecution for a time.
If the Plaintiff in Action personal be out-law'd, or convicted of Recusancy, or Excommunicated.
Vpon a Scire facias against ter' tenants for Debt, plea that there are other Lands liable to the same Debt, which are not returned, doth stay the Proceedings until they be also returned;
Abatement in Lands.
ABatement in Lands or Tenements is, when a man dies seised of Lands or Tenements, and one that hath no right enters into the same before the Heir; this Entry is called an Abatement, and he an Abator. But if the Heir enter first after the death of his Ancestor, and the other enter upon the possession of the Heir, this last entry is a Disseisin to the Heir. Look in the Book of Entries fo. 63 c. & 205. d. & 519. c. where this word Abatement is called in Latin Intrusio. And I think it better to call it in Latin Interpositio, ot Intratio per interpos [...] ionem, make a difference between this word [Page 5] and Intrusio after the death of the Tenant for life.
Abbot.
ABbot was the sovereign head or Chief of those Houses which when they stood were called Abbies; and this Abbot with the Monks of the same House, who were called the Covent, made a Corporation. Such a Sovereign of any such House shall not be charged by the Act of his Predecessor, if it be not by common Seal, nor for such things which come to the use of his House. Also an Abbot shall not be charged for the debt of his Monk before his entry in Religion, though the Creditor have an especialty thereof, except it have come to the use of his House: but the Executors of the Monk shall be charged therewith.
Look for this in the Abridgements, the same Title, under which you shall see that some of them were elective, some presentative; and how they were made Governours, and their Authority. And in this Title are also comprehended all other Corporations Spiritual, as Prior and his Covent, Friers and Canons, Dean and Chapter.
Abettors.
ABettors are in divers Cases diversly taken. One Kind of Abettors are they that maliciously, without just cause or desert, do procure others to sue false Appeals of Murther, or Felony against men, to the intent to trouble and grieve them, and to bring them to infamy and slander. Abettors in Murthers are those that command or procure counsel, or comfort others to Murther. And in some case Abettors shall be taken as Principals, and in some case but as Accessories: So in other Felonies. And their presence at the deed doing, and their absence makes a difference in the case: There are Abettors also in Treason, but they are as Principals, for in Treason there are no Accessories.
See more in the Book called Pleas of the Crown, made by the Reverend Judge Sir W. Stamford, in the Titles of Accessories, and Dammages in Appeal.
Abeyance.
ABeyance is, when a Lease is made for term of life, the Remainder to the right Heirs of J. S. who is living at the time of the Grant: now by this Grant the Remainder [Page 7] passes from the Grantor presently, yet it vests not presently, nor takes hold in the Grantee, that is, the right Heir of J. S. but is said to be in Abeyance, or, as the Logicians term it, in posle, or in understanding, and, as we say, in the Clouds, that is, in the Consideration of the Law, That if J. S. die, having a right Heir, and living the Lessee for life, then this is a good Remainder, and now vests and comes to the right Heir, in such sort as, that he may grant, forfeit, or otherwise dispose the same, and ceases to be any more in Abeyance, for that there is one now of ability to take it, because J. S. is dead, and hath left a right Heir in life; which could not be living J. S. for that during his life none could properly be said to be his Heir. Also if a man be Patron of a Church, and presents one to the same, now the Fee of the Lands and Tenements pertaining to the Rectory is in the Parson: But if the Parson die, and the Church become void, then is the Fee in Abeyance, until there be a new Parson presented, admitted and inducted; for the Patron hath not the Fee, but only the right to present, and the Fee is in the Incumbent that is presented, and after his death it is in no body, but in Abeyance, till there be a [Page 8] new Incumbent, as is aforesaid.
See Litt. Lib. 3 cap. 11. fo. 145. and Perkins fol. 12.
Abishersing.
ABishersing (and in some Copies Mishersing) is, to be quit of Amerciaments before whomsoever of Transgression proved.
Abjuration.
ABjuration is an Oath that a Man or Woman shall take when they have committed Felony, and fly to the Church, or Church-yard, or to any other place priviledged for safeguard or their lives, chusing rather perpetual Banishment out of the Realm, than to stand to the Law, and be tryed for the Felony: In which Case, before the Coroner he shall make such Confession which may make a sufficient Indictment of Felony: Then the Coroner at the Common Law shall make him forswear the Realm, and assign to him what Port he shall go, and shall swear him that he go not out of the High way, and that he abide not at the Port (if he may have good passage) above one flood and one ebb; and if he cannot have Passage, then he shall go every day during xl. days, in the Sea to the [Page 9] knees. But if such a Felon as abjures goes out of the High way, and flies to another place, if he be taken, he shall be brought before the Iudge, and there shall have Iudgment to be hanged.
And if he who so prays the privilege will not abjure, then he shall have the priviledge for xl. days, and every man may give him meat and drink. And if any give him sustenance after xl. days, although it be his Wife, such giving is Felony. Also he that doth abjure shall be delivered from one Constable to another, and from one Franchise to another, till he come to his Port: and if the Constable will not receive him, he shall be grievously amerced. See the Oath in the Treatise De abjuratione Latronum.
This Law was instituted by S. Edward the Confessor, a King of this Realm before the Conquest, and was grounded upon the Law of mercy, and for the Love and Reverence he and others his Successors did bear unto the House of God, or place of Prayer and Administration of his Word and Sacraments, which we call the Church. Note, this Law is now changed by the Statutes 21 H 8. cap. 2. 22 H. 8. cap. 14. and 32 H. 8. cap. 12. by which it appears, that he at this day shall not abjure the Realm, but all his Liberty of this Realm, and all his liberal and [Page 10] free habitations, resorts, and passages from all places of this Realm, to one certain place in this Realm thereto limited by 32 H. 8. cap. 13. and 33 H. 8. c. 15. See more in Stamf. li. 2. c. 10. and see the Statutes 1 Jac. c. 25. and 21 Jac. c. 28. for the repeal of all Statutes concerning Abjured persons, and the taking away of all Sanctuaries.
See the Statutes of 35 El. chap. 12. for the Abjuration of Recusants, and Stat. 1 Jac. c. 25.
Abridgement of a Plaint or Demand.
ABridgement of a Plaint or Demand is, where one brings an Assise, Writ of Dower, Writ of ward, or such like: in which cases, for that the Writ of Assise is, de libero tenemento, as in a Writ of Dower, the Writ is, Rationabilem dotem quae contingit de libero tenemento W. her husband, and in a Writ of ward the Writ is, Custo [...] terrarum & haeredis, &c. without shewing any certainty in these Writs; bnt in the Plaint of the Assise, or Demand in the Writ of Dower, and in the count in the Writ of Ward, the Plaintiff or Demandant is to shew the certainty of the acres or parcels of Land: then if the Tenant pleads Nontenure, or Ioyntenancy, or some other such like Plea, to parcel of the Land demanded, in abatement [Page 11] of the Writ, the Plaintiff or Demandant may abridge his Plaint or Demand to that Parcel, that is, he may leave out that part, and pray that the Tenant may answer the rest, to which he hath not yet pleaded any thing. The cause is, for that in such Writs the certainty is not set down, but is generally: and notwithstanding the Demandant hath abridged his Plaint or Demand in part, yet the Writ remains good still for the rest.
Accedas ad Curiam.
ACcedas ad Curiam is a Writ directed to the Sheriff, commanding him to go to such a Court of some Lord, or Franchise, where a Plaint is sued for taking of beasts as a Distress, or any false Iudgment is supposed to be made in any Suit in such a Court, which is not of Record; and that the Sheriff shall there make Record of the said Suit, in presence of the Suitors of the same Court, and of four other Knights of the County, and certiffe it into the Kings Court, and at the day that is limited in the Writ.
This Writ is made out of Chancery, and returnable into the Kings Bench or Common Pleas.
Accedas ad Vicecomitem.
ACcedas ad Vicecomitem is a Writ directed to the Coroner, commanding him to deliver a writ to the Sheriff, who having a Pone delivered him, suppresses it. Regist. orig. 8. 3.
Acceptance.
ACceptance is a taking in good part, and as it were an Agreeing unto some act done before, which might have been undone and avoided (if such Acceptance had not been) by him or them that so accepted: for example, if a Bishop, before the Statute made 1 Eliz. lease part of the possessions of his Bishoprick for term of years, reserving rent, and dies, and after another is made Bishop, who accepts, that is, takes or receives the Rent when it is due and ought to be paid; now by this Acceptance the Lease is made perfect and good, which else the new Bishop might very well have avoided.
The like law is, if a man and his wife seised of Land in right of the wife, joyn and make a Lease or Feoffment by Deed, reserving rent, and the husband dies, she accepts or receives the rent; by this the Feoffment or Lease is made perfect and good, and shall bar her of bringing a Cui in vita.
Accessories.
ACcessories are of two sorts by the Common Law, and by the Statute Law. Accessory by the Common Law is also of two sorts, the one before the offence is done, the other after. Accessory before the Fact is he that commends or procures another to do Felony, and is not there present himself when the other does it; but if he be present, then he is called Principal. Accessory after the offence is he that receives, favours, aids, assists, or comforts any man that hath done any Murther or Felony, whereof he hath knowledge. Such an Accessory shall be punished, and shall have judgment of life and member, as well as the Principal which did the Felony: but such an Accessory shall never be put to answer that till the Principal be attaint or convict, or be outlawed thereupon. In Manslaughter a man cannot be Accessory before the fact, for Manslaughter ought to ensue upon a sudden debate or affray; for if it be premeditated, it is Murther, Co. l. 4. fo. 44. [...] .
But a Woman in such case shall not be Accessory for helping her husband. In great or high Treason, as well the commanders as the Assisters and receivers are always Principals.
If a man councels a Woman to murther the child in her body, [Page 14] and after the child is born, and then is Murthered by the woman in the absence of him that so gave the counsel; yet he is Accessory by his counselling before the birth of the Infant, and not countermanding it. Dyer fo. 186. pl. 2.
Also one may be Accessory to an Accessory; as if one feloniously receive another that is accessory to Felony, there the Receiver is an Accessory.
Accessory by the Statute is such an one as abets, counsels or receives any may who commits, or hath committed any offence made Felony by Statute: For although the Statute doth not make mention of Accessories, Abettors, &c. yet they are included by the interpretation of the said Statutes. Stamf. Pl. cor. li. 1. c. 45, 46, 47, 48.
See more of Accessory in the said Book of Plees, lib. 1. cap. 44, 59, & 50.
Accompt.
ACcompt is a Writ, and it lies where a Bailiff or Receiver to any Lord, or other man, who ought to render Accompt, will not give his Accompt; then he to whom the Accompt ought to be given shall have this Writ. And by the Statute of Westm. 2. c. 10. if the Accomptant be found in arrerages, the Auditors that are assigned to him have power to award him to prison, there to [Page 15] abide till he have made satisfaction to the party. But if the Auditors will not allow reasonable expence and costs, or if they charge him with more receipts than they ought, then his next friend that will sue for him shall sue a Writ of Ex parte talis out of the Chancery directed to the Sheriff, to take four Mainpernors to bring his body before the Barons of the Exchequer at a certain day, and to warn the Lord to appear there the same day.
Accord.
ACcord is an agreement between two at the least, to satisfie an offence or Trespass that the one hath made to the other, for which he hath agreed to satisfie and content him with some Recompence; which if it be executed and performed, then, because this Recompence is a full satisfaction for the offence, it shall be a good bar in Law, if the other after the Accord performed, should sue again any Action for the same Trespass.
Note, that the first is properly called an Accord, the other a Contract.
Acquital.
ACquital is where there is a Lord, Mesne, and Tenant, and the Tenant holds of the Mesne certain Lands or Tenements in Frank-almoign, Frank-marriage, or such like [Page 16] and the Mesne holds over also of the Lord paramount, or above him. Now ought the Mesne to acquit or discharge the Tenant of all and every manner of Service that any other would have and demand of him concerning the same Lands or Tenements, because the Tenant must do his Service to the Mesne only, and not to divers Lords, for one Tenement or parcel of Land. The same Law is where there is Lord, Mesne, and Tenant, as aforesaid, and the Mesne grants to the Tenant (upon the tenure made between them) to acquit and discharge him of all Rents, Services and such like. This Discharge is called Acquital.
Like Law is, if the Tenant holds of his Mesne by like Service. as the Mesne holds over of the Lord, and the Tenant doth, or pays his Services to the Mesne, but the Mesne doth not his Services to the chief Lord, wherefore he distrains the Beasts of the Tenant. In this case the Mesne, for the equalness of the Services, ought to acquit the Tenant of the Service due unto the Lord. Also there is Acquital in Law, & acquital in fact. Acquital in Law is, when two are appealed or indicted of Felony, the one as Principal, the other as Accessory; the Principal being discharged, the Accessory by consequence is also acquitted: And in this case, as the Accessory is acquitted by the [Page 17] Law, so is the Principal in Fact. Stamf. pl. cor. fol. 168.
Acquittance.
ACquittance is a Discharge in Writting of a Sum of money, other Duty which ought to be paid or done. As if one be bound to pay money upon Obligation, or Rent reserved upon a Lease, or such like, and the party to whom the money or duty should be paid or done, upon the Receipt thereof, or upon other agreement between them had, makes a writing or Bill of his hand in discharge thereof, witnessing that he is paid, or otherwise contented, and therefore doth acquit and discharge him of the same. Which Acquittance is such a Discharge and Bar in the Law, that he cannot demand and recover the sum or duty again, if he produce the Acquittance.
This word differs from that which in the Civil Law is called Acceptation, because that may be by word without writting, and is nothing but a feigned Payment and discharge. though no payment be had: Nor can it be said to be Apocha, which is a witnessing the payment or delivery of money, whch disscharges not unless the money be paid.
Acre.
ACre is a certain parcel of Land that contains in length forty Perches, and in breadth four Perches, or of this quantity, be the length more or less. And if a man will erect a new Cottage, he ought to lay four Acres of Land unto it, according to this measure, 31 Eliz. cap. 7. And with this measure agrees Master Crompton in his Jurisdiction of Courts, fol. 222. Yet he saith, that according to divers customs of several Countries, the Perch differs, being in some places (and most usually) but sixteen foot and an half: But in the County of Stafford the Perch is twenty four foot, as was heretofore adjudged in the Exchequer. In the Stat. made an. 24 H. 8. c. 14 for the sowing of Flax 166 Perches make au Acre. The Ordinance of Measuring of land made an. 34 E. 1. St. 1. agrees with this account.
Action.
ACtion is the form of a Suit given by the Law to recover a thing; as an Action of Debt and such like; or as it is Co. 8. f. 151 a. An Action is a right of prosecuting to judgment that which is due to any one.
See the Lexicon of the Law, for Action.
Action of a Writ.
ACtion of a Writ is a phrase of speech used when one pleads some matter, by which he shews that the Plaintiff had no cause to have the writ which he brought, and yet it may be that he may have another writ or Action for the same matter. Such a Plea is called a Plea to the Action of the Writ: whereas if by the Plea it should appear that the Plaintiff hath no cause to have an Action for the thing demanded, then it shall be called a Plea to the Action.
Action upon the Case.
ACtion upon the Case is a writ brought against one for an offence done without force, as for not performing promise made by the Defendant to the Plaintiff, or for speaking of words by which the Plaintiff is defamed, or for other misdemaenour or deceit; where the whole case shall be contained in the Writ.
Trover, Nusance, Slander of the person, Trade, Title, Escape on mesne Process; For negligent keeping Fire, for inartificial performing work, for turning an ancient Watercourse, for a Commoner against one who digs the soil of his Common, or puts his Cattel into it without right, or incloses part of the Cemmon.
Action mixt.
ACtion mixt is a Suit given by the Law to recover the thing demanded, and damages for the wrong done; as in Ass of Novel dis. which Writ (if the Disseisor make a Feoffm. to another) the Diseissce shall have against the Disseissor and the Feoffee or other Tertenant, and thereby shall recover his Seissn of the land, and his damages for the mean profits, and for the wrong done him. And so is an Action of Waste & Quare impedit. But an Action of Detinue is not called an Action mixt, although by it the thing withheld is demanded, and shall be recovered if it may be found, and damages for the withholding; and if it cannot be found, then damages for the thing and the detaining.
But that is called only an Action personal, because it should be brought only for Goods and Chattels, or Charters.
Action upon the Statute.
ACtion upon the Statute is a Writ founded upon any Statute whereby an Action is given to one in any case where no action was before: As where one commits perjury to the prejudice of another, who is indamaged shall have a Writ upon the Statute, and his case. And the difference between an Action [Page 21] upon the Statute and Action popular is, That where the Statute gives the Suit or Action to the party grieved, or otherwise to one person certain, that is called Action upon the Statute: But where by the Statute Authority is given to every one that will to sue, that is termed Action popular.
Actions personal.
ACtions personal are such Actions whereby a man claims debt, or other Goods and Chattels, or damage for them, or damages for wrong done to his person, and it is properly that which in the Civil Law is called Actio in personam, which is brought against him who is bound by Covenant or Default to give or grant any thing.
Action Popular.
ACtion popular is an Action given upon the breach of some penal Statute, which Action every man that will may sue for himself and the King, by information or otherwise, as the Statute allows, and the case requires. Aud of these Actions there are an infinite number; but one for example: as when any of the Iury, that are impannelled and sworn to pass between party and party indifferently, do take any thing of the one side or other or of both parties, to say their Verdicts on that [Page 22] side, then any man that will, within the year following the offence, may sue a writ called Decies tantum against him or them that so did take to give his Verdict. And because this Action is not given to one especially, but generally to any of the Kings people that will sue, it is called an Action popular. But in this case when one hath begun to pursue an Action, no other may sue it; and in this, as it seems, it varies from an Action popular by the Civil Law.
Actions real.
ACtions real are such Actions whereby the Demandant claims title to any Lands or Tenements, Rents or Commons, in Fee simple, Fee-tail, or for Term of life. Every Action real is either possessory, that is, of his own possession or seisin; or ancestrel, scil of the seisin or possession of his ancestor. Co. lib. 6. fol. 3.
Acts.
ACts of Parliament are positive Laws, which consist of two parts, that is to say, of the words of the Act, and of the sense; and they both joyned together make the Law.
Additions.
ADdition is that which is given to a man besides his proper name and Surname, that is to shew of what Estate, Degree, or Mystery he is, and of what Town, Hamlet, or County.
Additions of Estate are these, Yeoman, Gentleman, Esquire, and such like.
Additions of Degree are these which we call names of Dignity; as Knight, Earl, Marquess, Duke.
Additions of Mystery, are Scrivener, Painter, Mason, Carpenter, and all other of like nature: for Mystery is the craft or occupation whereby a man gets his living.
Additions of Town, as Sale, Dale; and so of the rest.
And where a man hath a houshold in two places, he shall be said to dwell in both of them; so that his Addition in one of them doth sufice.
By the Statute An. 1 H. 5. c. 5. it was or dained that in Suits or Actions where process of Vtlagary lies, such Additions should be to the name of the Defendant, to shew his estate, mystery, and place where he dwells; and that such writs shall abate, if they have not such Additions, if the Defendant take exception thereto; but they shall not abate by the Office of the Court.
[Page 24] Also Duke, Marquess, Earl, or Knight, are none of those Additions, but names of Dignity, which should have been given before the Statute.
And this was ordained by the said Statute, to the iutent that one man might not be grieved nor troubled by the Vtlary of another: But that by reason of the certain Addition every man might be certainly known, and bear his own burthen.
Adjournment.
ADjournment is, when any Court is dissolved and determined for the present, and afsigned to be kept again at another place or time, and (methinks) is compounded of two words (ad, or al, and jour.)
Admeasurement of Dower.
ADmeasurement of Dower is a writ that lies where a woman is endowed by an Infant or by a Gardian of more than she ought to have; the Heir in such case shall have this writ, whereby the woman shall be admeasured, and the Heir restored to the overplus. But if one abate, that is, one who hath no right enter after the death of the husband, and indow the wife of him that is dead, of more than she ought to have, the Heir shall [Page 25] not have this Writ, but Assise [...] Mort dancestor, against the Woman: and if she plead that she was indowed of the Land as of the Free-hold of her husband, the Heir shall shew how she was indowed by the Abator, and that she had more than she ought to have, and shall pray that he may be restored to the surplusage; and if it be found, he shall be restored.
Admeasurement of Pasture.
ADmeasurement of Pasture is a Writ that lies where many Tenants have Common appendant in another ground, and one overcharges the Common with many Beasts: then the other Commoners may have this Writ against him. And also it may be brought by one Commoner only: but then it ought to be brought against all the other Commoners, & against him that surcharged, for that all the Commoners shall be admeasured.
And this Writ lies not against him nor for him that hath Common appurtenant. or Common in gross; but those who have Common appendant, or Common because of vicinage.
See the diversity of all these Commons afterwards in the title of Common.
Also this Writ lies not for the Lord, nor against the Lord, but the Lord may distrain the beasts of the Tenant that [Page 26] are surplusage. But if the Lord overcharge the Common, the Commoner hath no remedy by the Common Law, but an Assise of his Common.
Administrator.
ADministrator is he to whom the Ordinary commits the Administration of the goods of a dead man for default of an Executor, and an Action shall lie against him, and for him, as for an Executor, and he shall be charged to the value of the Goods of the dead man, and no further, unless it be by his own false Plea, or by wasting the goods of the dead. If the Administrator die, his Executors are not Administrators, but it behoves the Ordinary to commit a new Administration. And if a stranger that is not Administrator nor Executor take the Goods of the dead, and administer of his own wrong, he shall be charged and sued as an Executor, and not as Administrator, in any Action brought against him by any Creditor. But if the Ordinary make a Letter ad colligendum bona defuncti, he that hath such a Letter is not Administrator, but the Action lieth against the Ordinary, as well as if he take the goods in his own hand, or by the hand of any of his Servants by any other Commandment.
[Page 27] There is also another sort of Administrator, where one makes his will and makes an infant under the age of 17 his Executor. The Bishop commits Administration to some friend during the nonage of the Executor, which Administrator if he sue, does not declare that the deceased died intestate. Which Administration ceases when the Infant is 17 years old.
Admiral.
ADmiral is a high Officer that has the Government of the Kings Navy, and the hearing and determining of all Causes, as well civil as criminal belonging to the Sea; and to that purpose hath his Court called the Admiralty. He may cause his Citation to be served upon the Land, and take the paries body or goods in execution upon the Land.
Also he hath cognizance of the death or maihem of a man, committed in any great Ship fleeting in great Rivers in the Realm, beneath the Bridges of the same next the Sea.
Also to arrest Ships in the great Streams for the Voiages of the King and Realm; and hath Iurisdiction in the said Streams during the same Voiages.
Ad quod damnum.
AD quod Damnum is a Writ which ought to be sued before the King grant certain Liberties, as a Fair, Market, or such like, which may be prejudicial to others. And thereby it shall be required if it should be a prejudice to grant them, and to whom it shall be prejudicial, and what prejudice shall come thereby
There is also another Writ of Ad quod damnum, if any one will turn a Common high-way and lay out another way as veneficial. Both which (though found to be prejudicial) may be traversed in another Action, although the King hath made his grant pursuant to the Verdicts of the Iury.
Advent.
ADvent is a time which contains about a month next before the Feast of the Nativity of our Saviour Christ. In which our Ancestors repossed great reverence for the nearness of that solemn Feast; so that all Suits in Law were then remitted for a season: wherefore there was a Statute ordained, Westm. 1. cap. 48. that, not withstanding the said Solemnity, it might be lawful, in respect of Iustice and Charity, to take Assies of Novel disseisin and Darreigne [Page 29] Presentment, in the times of Advent, Septuagesima, and Lent. This is one of the times from the beginning of which until the Octaves of Epiphany the solemnizing of Marriages is prohibited to be Solemnized without special Licence, according to the Verses:
But the Bishop may dispense with a Marriage within these times, and it is good.
Advowson.
ADvowson is, where a man and his heirs have a right to present their Clerk to a Personage, or other spiritual Benefice, when it becomes void. And he which hath such right to present is called Patron.
In gross is when one is seised of it only by it self. And there is an Advowson appendant to a Mannor, or to a Rectory; and this may be sold by it self and then it is in gross, and is severed from the Mannor and Rectory.
Affeerors.
AFfeerors are such as be appointed in Court-leets, &c. to mulct those who have committed any fault which is arbitrably punishable, and for which no express penalty is prescribed by Statute, You may see the form of their Oath in Kitchin fol. 46. If the Iurors in the Leet receive the Articles, and being commanded to answer to them and present, they refuse so to do, then they shall be amerced; yet the Amerciament of every Iuror shall be affeered according to his offence. So in Assise of Novel disseisin all the Disseisors shall be amerced, and every one shall be affeered by himself. But if a Town be amerced, there the Afferance shall be general, for there is not any certain person named, as in the cases aforesaid. And if a Iury in a Leet tax an Amerciament, this suffices without any Affeerment; for the Amerciament is the act of the Court, and the Affeerment is the act of the Iury. Coke lib. 8. fol. 39, 40. b.
Affiance.
AFfiance is, the plighting of troth betwixt a man and a woman upon an agreement of a Marriage to be had between them; and affidare, from whence [Page 31] this word is derived, is as much as fidem ad alium dare. And this word Affiance is used by Littleton, Chap. Dower Sect. 39.
Afforest.
AFforest is, to turn ground into Forest. Charta de Foreseta, cap. 1. & 30. Anno 9 Hen. 3.
Affray.
AFfray comes of the French word (effrayer) which signifies to affright or scare; therefore an Affray may be without word or blow given, and so this word is used in the Statute of North. 2. E. 3. cap. 3. But it is in our Books many times confounded with the word Assault, as it appears by Lambert in his Eirenarch lib. 1. cap. 17. Yet, as it is there said, they differ in this, that an Assault is but a wrong to the party, but an Affray is a wrong to the Common-wealth: and therefore an Affray is inquirable and punishable in a Leet. Also an Assault is made most commonly but on one side; but an Affray is the fighting of many together.
Age prier.
AGE prier is, when an Action is brought against an Infant for Land which he hath by descent, there he shall shew the matter to the Court, and shall pray that the action may stay till his full age of 21 years, and so by award of the Court the Suit shall surcease.
But in a Writ of Dower and in Assise, and also in such actions where the Infant is supposed to come to the Land demanded by his own wrong, he shall not have his age.
And note well, that there are many diversities of ages. For the Lord shall have aide of his Tenant in Socage to marry his daughter, when the daughter is of the age of 7 years, and aid to make his son and Heir a Knight, when he is of the age of 7 years.
A woman who is married at the age of 9 years, if her husband die seised, shall have dower, and not before.
And 14 years is the age of a Woman, who shall not be in ward, if she were of such age at the time of the death of her Ancestor; but if she were within the age of 14 years, and in ward of the Lord, then she shall be in ward till the age of 16 years. And 21 years is the age of the Heir male to be in ward, and after that out of ward.
Also that is the age of male [Page 33] and female to sue and to be sued for Lands, which they have or claim by descent, and to make all manner of Contracts and Bargains, and not before: but if such an infant within the age of 21 years give his goods, and the Donee take them, the infant may have an Action of Trespass: but otherwise it is if he deliver them himself. See Coke lib. 3. fol 13. a. l. 6. f. 3.
Agent & Patient.
AGent & Patient is, when a man is the doer of a thing and the party to whom it is done; as where a Woman endows her self of the fairest possession of her husband. So if a man hath ten pounds issuing out of certain land, and he disseises the Tenant of the Land in an Assise brought by the Disseisee, the Disseisor shall recoup the Rent in the damages; so that where the mean profits of the land in such case were to the value of 13 l. the Disseisee shall recover but three pounds. Also if a man be indebted to another, and after makes the party to whom he is so indebted his Executor, and dies, the Executor may retain so much of the goods of the dead in his hands as his own Debt amounts to; and by this Retainer he is the Agent and the Patient, that is, the party to whom the Debt is due, and the party that pays the same.
[Page 34] But a man shall not be judge in his own case, as is resolved, Coke lib. 8. fol. 118. in Bonham's Case, That the Censors cannot be Iudges. Ministers, and Parties. Iudges to give sentence or judgment, Ministers to make summons, and Parties to have the half of the forfeiture. And although an Act of Parliament yields to any one, to hold or to have conusance of all manner of Pleas arising before him within his Mannor of D. yet he shall hold no Plea to which he himself is party; Quia iniquum est aliquem suae rei esse judicem.
Agist.
AGist seems to come of the French Giser (i jacere) or of Gister, (i. stabulari) a word proper to Deer; and therefore Budaeus lib. poster. Philologiae, says that Gist idem est quod Lustrum vel Cubile And Agist in our Common Law signifies to take in and feed the Cattel of a stranger in the Kings Forests; and therefore those Officers in the Forest that thus take in Cattel, and gather the money for the Feed of them, are called Agistors, and the feed or herbage of the Cattel is called Agistment; which in a large signification extends to all manner of Common of Herbage of any kind of ground, or land, or woods, or the money that is due or received for the same, [Page 35] as well out of Forests as within them. See Manwood's Forest Laws. c. 11. fol. 80.
Agreement.
AGreement is thus defined or expounded in Plowdens's Commentaries: Aggreamentum is compounded of two words, namely, Aggregatio and Mentium, that is, Agreement of minds. So that Agreement is a consent of minds in some things done or to be done; and by drawing together the two words, Aggregatio and Mentium, and by the hasty and short pronouncing of them, they are made one word, to wit, Aggreamentum, which is no other than a joyning, coupling, and knitting together of two or more minds in any thing done or to be done. (See after in Testament.) And this Agreement is in three manners.
The first is an Agreement executed already at the beginning.
The second is an Agreement after an act done by another, and is an Agreement executed also.
The third is an Agreement executory, or to be done in time yet to come.
The first, which is an Agreement executed already at the beginning, is such whereof mention is made in the Stat. of 25 E. 3. c 3. of Clothes, in the 4th Sat. which saith, That the goods and things bought by forestallers, being thereof attainted, [Page 36] shall be forfeit to the King, if the buyer have made gree with the seller. In which case the word (gree) which is otherwise called Agreement, shall be extended to Agreement executed, that is, payment for the things.
The second manner of Agreement is, where one doth a thing or act, and another agrees or assents thereunto afterwards: as if one make a Disseisin to my use, & afterwards I agree to it, now I shall be a Disseisor from the beginning. And such Agreement is an Agreement after an act done.
The third agreement is, when both parties at one time are agreed that such a thing shall be done in time to come: and this agreement is executory, in as much as the thing shall be done after, and yet there their minds agreed at one time. But because the performance shall be afterward, and the thing upon which the Agreement was made remains to be done, that Agreement shall be called Executory. And that the Stat. of 26 H. 8. c. 3. doth prove, which saith, That every Vicar, Parson, and such liks, &c. before their actual possession or medling with the profits of their Benefices, shall satisfie, content, &c. or agree to pay the King the First-fruits, &c. & if any such Parson or Vicar, &c. enter in actual possession, &c. this Agreement is to be understood executory, as common usage proves: for it is used, that he, with one or two with him, [Page 37] do make two or three Obligations, for it is to be paid at certain days after. And this Agreement executory is divideded into two points: One is an Agreement executory which is certain at the beginning, as is said last before of the First-fruits.
The other is, when the certainty doth not appear at the first, and the parties are agreed that the thing shall be performed or payed upon the certainty known: as if one sell to another all his Wheat in such a bay of his Barn unthres ed, and it is agreed between them, that he shall pay for every bushel 3s. when it is threshed clean and measured.
Aid.
AID is when a Tenant for term of Life, Tenant in dower, Tenant by courtesie, or Tenant in Tail after possibility of issue extinct, is impleaded; then, for that they have no estate but for term of life, they shall pray in aid of them in the Reversion, and process shall be made by Writ against him, to come and plead with the tenant in the defence of the land, if he will: But it behoves that they agree in the Plea; for if they vary, the plea of the Tenant shall be taken, and then the aid-prayer is void: but if he come not at the second Writ, then the tenant shall answer sole.
Also Tenant for years, Tenant at will, Tenant by Elegit, [Page 38] and Tenant by Statute-Merchant, shall have aid of him in the Reversion; and the Servant and Bailiff of their Master, when they have done any thing lawfully in the right of their Master, shall have aid.
This word is sometimes applied to Subsidies, as in 14 E. 3. Stat. 2. cap. 1. Other times to a Prestation due from the Tenants to their Lords; as for relief due to the Lord paramount or for the making of his Son a Knight, or for marrying of his Daughter. Glan. lib. 9. c. 8.
This aid the K. or other Lord by the ancient Law of England, may lay upon their Tenants, to make his son Knight at the age of 15 years, and to marry his daughter at the age of 7 years, Regist. orig. fol. 87. a. and that at what rate they please. But the Stat. of West. 1. made An. 3. Ed. 1. ordained a restraint for any great or large demand made by common persons, being Lords, in this case, and hath tied them to a certain rate; and the Stat. of 25 Ed. 3. Stat. 5. c. 11. provides that the rate which is appointed by the former Stat. shall be held in the King as well as in other Lords.
Aid of the King.
AID of the King is in like case as it is said before of a common person, & also in many other cases where the King may have loss, although the Tenant be [Page 39] Tenant in fee-simple, he shall have aid; as if a Rent be demanded against the Kings Tenant who holds in chief, he shall have aid, so he shall nor of a common person.
And where a City or Borough hath a Fee-farm of the King, and any thing is demanded against them which belongs to the Fee-farm they shall have aid for it of the King.
Also a man shall have aid of the King in the stead of Voucher. And the Kings Baliff, the Collector and the Purveyor shall have aid of the King, as well as the Officers of other persons.
Aile.
AILE is a Writ which lies where Land descends from the grandfather to his nephews, sc. the son or daughter of the son of the grandfather; the father being dead before the entry by him, and one abates, the heir shall have against the Abator this Writ.
Aler sans jour.
ALer sans jour is, (word for word) to go without day, that is, to be dismist the Court, because there is no day of farther Appearance assigned.
Ale-Taster.
ALe-taster is an Officer appointed and sworn in [Page 40] every Leet, to look that the due Assise be kept of all the Bread, Ale and Beer sold within the Iurisdiction of the Leet.
Alien.
ALien is a Subject born out of the liegeance of our King, and he cannot have any real or personal Action concerning land, but in every such Action the Tenant or Defendant may plead that he was born in such a place, which is not within the Kings liegeance, and demand judgment if he shall be answered.
Every alien friend may by the Common Law have and get within this realm, by gift, trade, or other lawful ways, any treasure or personal goods whatsoever, as well as any Englishman, and may maintain any Action for the same. But Land within this realm or houses (if not for their dwelling only) Alien friends connot have nor get, nor maintain any Action real or personal for any Land or House, unless the House be for their necessary dwelling. An Alien enemy cannot maintain any Action, nor get any thing within this Realm. And the reasons why aliens born are not capable of inheritance within England, are;
1. The Secrets of the Realm may by this be discovered.
2. The Revenues of the Realm shall be taken and injoyed by Strangers born.
[Page 41] 3. This will tend to the destruction of the Realm. First, in the time of war, for then Strangers may fortifie themselves in the heart of the Realm, and set in combustion the Common-wealth. Secondly, in the time of peace, for by such means many Aliens born may get a great part of the Inheritance and free-hold of the Realm, by which there would ensue a want of Iustice, the supporter of the Common-wealth, for this that Aliens cannot be returned of Iuries, nor sworn for the tryal of Issues between the King and Subject, or between Subject and Subject. Vide Coke lib. 7. Calvins Case.
Alienation.
ALienation is as much to say as to make a thing another mans, or to alter or put the possession of Lands or other things from one man to another. And in some cases a man hath power in himself so to do, without the assent or licence of any other, and in some not. As if Tenant in chief alien his estate without the Kings licence, then by the St. of 1 Ed. 3. c. 12. a reasonadle Fine shall be taken, where at the Common Law before the said St. the Lands and tenements held in chief of the K. and aliened without licence, have been held forfeited. And if the K's Tenant that holds in chief intended to alien unto C. to the use of D. and [Page 42] hereupon if he purchase Licence to alien to C. and accordingly aliens to C. to the use of D. which use is not mentioned in the Licence; in this case he shall pay but one Fiue, for it is but one Alienation. Coke lib. 6 fol. 28. But if a man will alien Lands in Fee-simple to an House of Religion, or to a body incorporate, it behoves him to have the Kings Licence to make this Grant or Alienation, and the chief Lords of whom such lands are held, &c. otherwise the land so alienated in Mortmain shall be forfeited by the Statute of 15 R. 2. cap. 5.
Allay.
ALlay is the Temper or mixture of Gold and Silver with baser metal, for the increasing the weight of it so much as might countervail the Kings charge in the coyning. This word is used in the Statute of 9 H. 5. cap. 11. for the payment of English Gold by the Kings weight.
Almner.
ALmner is an Officer of the Kings house, whose Office is to distribute the Kings Alms every day; and to that purpose he hath the collecting of all Forfeitures of Deodands, and of the goods of Felons de se, which the King allows him to dispose in Alms to the poor. [Page 43] And of his Office, see Flets, lib. 2. cap. 22.
Almoin.
ALmoin, See Aumone.
Alnager.
ALnager is an Officer of the Kings, who by himself, or by his Deputy looks to the Assise of all Cloth made of Wool throughout the Land, and to put a Seal, for that purpose ordained, unto them. 35 E. 3. Stat. 4. c. 1. Anno 3. R. 2. c. 2. And he is to be accomptable to tae King for every Cloth that is so sealed in a Fee or Custom hppertaining to it.
Altarage.
ALtarage in Latin, Altaragium, signifie Duties and Offerings to holy Altars mention'd 2 Cro. Rep. 516. that a Vicarage was endowed with it and small Tythes.
Ambidexter.
AMbidexter is he that, when a matter is in suit between men, takes money of the one side and of the other, either to labour the Suit, or such like; or if he be of the Iury, to give his Verdict.
Amendment.
AMendment is, When Error is in the Process, the Iustices may amend it after Iudgment. But if there be Error in giving Iudgment, they may not amend it, but the party is put to his Writ of Error. And in many cases, where the default appears in the Clerks that writ the Record, it shall be amended: but such things as come by information of the party, as the Town, Mystery, and such like, shall not be amended, for he must inform true upon his peril.
Amercement.
AMercement most properly is a Penalty assessed by the Peers or equals of the party amerced, for an offence done; as for want of Suit of Court, or for not amending someting that he was appointed to redress by a certain time before, or for such like cause; in which case the party who offends puts himself in the mercy of the King or Lord, and thereupon this Penalty is called Amerciament.
And there is a difference between Amerciaments and Fines, Kitch. 214. For Fines are Punishments certain, which grow expressy from some Statute; [Page 45] and Amerciaments are such which are arbitrarity imposed by the Affeerors, which Kitchin seems to confirm fol [...] 8. in these words, The Amerciament is affeered by Equals.
Also it appears, Coke lib. 8. fol. 39. That a Fine is always imposed and assessed by the Court, but Amerciament, which is called in Latin Misericordia, is assessed by the Country.
Another diversity there is: as if a man be convict before the Sheriff of the County of a Recaption, he shall be only amerced, but if he be convict of this in the Common Bench, he shall be fined. And the reason of this diversity is, That the County Court is not a Court of Record, and therefore cannot impose a Fine, for no Court can impose a Fine but such a Court as is of Record, Cok. lib. 8. fol. 41. a. If the Defendant or Tenant plead a false Deed to him, or deny his own Deed, and this is found against him, or he, leaving his own Verification, acknowledges the Action; he shall be fined for his falsity, because we ought to be sure of our own Acts. But if one deny the Deed of his Ancestor, and this is found against him, yet he shall not be fined, but amerced only, because it was the act of a Stranger. Co. lib. 8. fol. 60. a. see more there.
Amercement royal.
AMercement royal is, when a Sheriff, Coroner, or other such Officer of the King, is amerced by the Iustices for his abuse in the Office. Learn if it should not be called a Fine.
Amoveas manus.
AMoveas manus. See Ouster le mayne.
An, jour, & wast.
AN, jour, & wast, is a Forfeiture when a man hath committed petit Treason or Felony, and hath Lands holders of some common person, which shall be seised for the King, and remain in his hands by the space of one year and a day next after the Attainder; and then the Trees shall be pulled up, the Houses razed and pulled down, and the Pastures and Meadows eyred and plowed up; unless he to whom the Lands should come by escheat or forfeiture redeem it of the King. A thing the more to grieve the offendors, and terrifie others to fall into the like, in shewing how the Law doth detest the offence so farr forth, as that it doth execute judgment and punishment even upon their dumb and dead things.
Aniente.
ANiente comes from the French Aneantir, that is, annihiliare; for Aniente in our Law-language signifies as much as frustrated or made void, and is used by Littleton in his 741. Section.
Annates.
ANates is a word used in the Statute of 25 Hen. 8. cap. 20. and seems to all one with First-fruits: for so Pol. Virgil. de Inventione rerum, lib. 8. cap. 2. says, That Annatarum usus multo antiquior est quam recentiores quidam scriptores suspicantur, & Annatas (more suo) appellant primos fructus unius anni Sacerdotii vacantis, aut dimidiam eorum partem.
Annua pensione.
ANnua pensione is a Writ by which the King, having due unto him an annual Pension from any Abbot or Prior for any of his Chaplains which he will name, who is not provided of a competent Living, demands it of the said Abbot or Prior for one that is named in the same Writ, until, &c. and also commands him, for the better certainty of his Chaplain, to give his Letters [Page 48] Patents to him for the same. See Fitzherb. Nat. Brē fol, 231. where you may also see the names of all the Abbies and Priories which were bound to this in respect of their foundation or creation, and also for the form of the Letters Patents usually granted upon such a Writ.
Annuity.
ANnuity is a certain Sum of money granted to another in Fee-simple, Feetail, for term of Life, or for term of years, to receive of the Grantor, or of his Heirs, so that no Free-hold is charged therewith, whereof a man shall never have Assise nor other Action, but a Writ of Annuity; and it is no Assets to the Heir of the Grantee, to whom it shall descend.
There are many differences between Annuities and Rents: For every Rent is issuing out of Land, but an Annuity is not, but charges the person, that is, the Grantor or his Heirs, which have Assets by descent, if some special proviso be not to the contrary: as Littl. Sect. 220.
Also for an Annuity no Action lies, but only a Writ of Annuity against the Grantor, his Heirs or Successors: and this Writ of Annuity never [Page 49] lies against the taker of the profits, but only against the Grantor, or his Heirs. Whereas for a Rent the same Actions he against the Tenant of the Land, and sometimes against him that is taker of the Rent, that is, against him that takes the Rent wrongfully. Also au Annuity is not to be taken for Assets, because it is not any Free-hold in Law. And it shall not be put in Execution upon a Statute-Merchant, or Statute-Staple, or Elegit, as a Rent may. Doct. & Stud. cap. 30. See Dyer fol 345. pla. 2. Also an Annuity cannot be fevered, Co. l. 8. fol. 52. b. according to the Verse there:
Let no Judge himself endeavour Annuities or Debts to sever.
Anoysance.
ANoysance is a word used in the Statute of 22 Hen. 8. cap. 5 and signifies no more than Nusance, and therefore see Title Nusance.
Apostata capiendo.
APostata capiendo is a Writ directed to the Sheriff, for the taking of the body of one who, having entred into, and professed some order of Religion, leaves his said order, and departs from his house, and wanders in the country: vpon a Certificate [Page 50] of this matter made by the Soveraign of the House in the Chancery, and the praying of the said Writ, he shall have it directed to the Sheriff for the apprehending of him, and redelivery of him to the said Sovereign of the House, or his lawful Attorney. See the form of it in Fitz. Nat. Br. 233. c.
Appeal.
APpeal is where one hath done a Murther, Robbery, or Maihem, then the wife of him that is slain shall have an Action of Appeal against the Murtherer; but if he have no wife, then his next Heir-male shall have the Appeal at any time within a year and a day after the deed.
Also he that is so robbed or maimed shall have his Appeal: and if the Defendant be acquitted, he shall recover damages against the Appealer and the Abettors, and they shall have the imprisonment of a year, and shall make fine to the King. An Appeal of Mathem is in manner but a Trespass, for he shail only recover damages.
Appeals are commenced two ways, either by Writ or by Bill. By Writ, when a Writ is purchased out of the Chancery by one man against another, commanding him that he shall appeal a third man of some Felony or other offence by him committed, and to find pledges that he [Page 51] shall do this with effect; and this Writ is to be delivered to the Sheriff to be recorded.
Appeal by Bill is, when a man of himself gives his accusation of another man in writing to the Sheriff or Coroner, and takes upon himself the burthen of appealing him that is named in the said writing. Appellant is the Plaintiff in the Appeal.
Appendant & Appurtenant.
APpendant & Appurtenant are things that by time of prescription have belonged, appertained, and are joyned to another principal thing, by which they pass and go as accessary to the same special thing, by virtue of these words, Pertinentiis, as Lands, Advowsons, Commons, Piscaries, Ways, Courts, and divers such like to a Mannor, House, Office, or such others.
Apportionment.
APportionment is a dividing into parts a Rent which is dividable, and not entire or whole; and forasmuch as the thing out of which it was to be paid is separated and divided, the Rent also shall be divided, having respect to the parts, As if a man have a Rent-Service issuing out of Land, and he purchases parcel of the [Page 52] Land, the Rent shall be apportioned according to the value of the Land.
So if a man hold his Land of another by Homage, Fealty, Escuage, and certain Rent, if the Lord of whom the Land is holden purchase parcel of the Land, the Rent shall be apportioned.
And if a man let Lands for years, reserving Rent, and after a stranger recover part of the Land; then the Rent shall be apportioned, that is, divided, and the Lessee shall pay, having respect to that which is recovered, & to that which yet remains in his hands, according to the value.
But a Rent-charge cannot be apportioned, nor things that are entire: As if one hold Land by Service to pay to his Lord yearly at such a Feast an Horse, an Hawk, a Rose, a Cherry, or such like; there if the Lord purchase parcel of the land, this Service is gone absolutely, because an Horse, an Hawk, a Rose, a Cherry, and such other, cannot be divided or apportioned, without damage to the whole.
In some cases Rent-charge shall be apportioned: as if a man hath a Rent-charge issuing out of Land, and his Father purchases parcel of the Lands charged in fee, and dies, and this parcel descends to his son who hath the Rent-charge; there this charge shall be apportioned according to the value of the land, because such portion of the [Page 53] Land purchased by the Father, comes not to the son by his own act, but by descent and course of Law.
Common appendant is of a common right and severable; and although the Commoner in such case purchase parcel of the Land wherein the Common is appendant, yet the Common shall be apportioned: but in this case Common appurtenant and not appendant by such purchase is extinct. Coke lib. 8. fol. 79.
Appropriations.
APpropriations were, when those Houses of Religion, and those religious persons, as Abbots, Priors, and such like had the Advowson of any Parsonage to them and their Successors, and obtained licence of the Pope, Ordinary, and King, that they themselves and their Successors from thenceforth should be Parsons there, and that it should be from thanceforth a Vicarage, and the Vicar should serve the Cure. And so at the beginning Appropriations were made only to those persons Spiritual that could administer the Sacraments and say divine Service, as Abbots, Priors, Deans, and such like. After by little and little they were enlarged and made to others, as namely to a Dean and Chapter, which is a Body corporate, consssting of [Page 54] many, which Body together could not say divine Service; and (which was more) to Nuns that were Prioresses of some Nunnery, which was a wicked thing, in regard that they could neither administer Sacraments, nor preach, nor say divine Service to the Parishioners.
And all this was upon pretence of Hospitality and maintenance thereof. And to supply these defects a Vicar was devised, who should be Deputy to the Priors or to the Dean and Chapter, and also at the last to the said Abbots, and others to say divine Service, and should have for his labour but a little portion, and they to whom the Appropriations were made should retain the greater revenues; and they did nothing for it, by means whereof Hospitality decayed in the place where it ought to have been chiefly maintained, namely, in the Parish where the Benefice was, and where the profits grew: and so it continues to this day, if not worse, since not only Friers and Nuns, but Lay-men and seculer women are possessed of them, to the great hinderance of Learning, impoverishment of the Ministry, and infamy of the Gospel and professors thereof.
The Vicar shall have a certain portion of the Benefice, and the Abbot and the Covent shall be Parsons, and shall have the other profits. This is called Appropriation, [Page 55] and then the Abbot and Covent shall be Parsons emparsonees: but such Appropriation may not be made to begin in the life of the Parson, without his assent.
And after the Church was appropriated, then was it an incident inseparable to the House of Religion to which it was so appropriated. And therefore where the Lands of the Templars in England were given by the general words of an Act of Parliament of 17 E. 2. to the Hospitallers, it was adjudged, That the Hospitaliers by the said Act should not have the Appropriation, for it was inseparably annexed to the Corporation of the Templars: which thing consisting in an inseparable privity, by the general words of an Act of Parliament shall not be transferred to others. Coke lib. 7. fol. 13. a.
But if such Advowsons of the Parsonage be recovered by ancient Title, then the Appropriation is adnulled. And it is called Appropriation, for that they hold the profits to their own proper use.
Approvement.
APprovement is, where a man hath Common in the Lords waste ground, and the Lord incloses part of the Waste for himself leaving nevertheless sufficient Common, with egress [Page 56] and regress, for the Comm [...] ners. This inclosing is called Approvement. See Reg. Jud. fol. 8, & 9.
Approver.
APprover or Appellor is he who hath committed some Felony, which he confesses, and now appeals or approves, that is, accuses others who were Coadjuters or Helpers with him in doing the same or other Felonies, which thing he will approve. And this proof is to be either by Battel, or by the Countrey, at his election that appealed. This accusation is often done defore the Coroner, who either is assigned to the Felon by the Court to take and record that which he saith; or is called by the Felon himself, and required, for the good of the Prince and Common wealth, to record that which he shall say. The Oath of the Approver when he begins the combate, as also the Proclamation by the Heraulds, appear in Crompt. pag. ult.
If a man of good fame be appealed by an Approver, by which he is taken and kept in prison, yet he may have a Writ to be directed to the Sheriff, commanding him to suffer the party appealed to be bailed by good Sureties. But if a man appealed by an Approver be kept in prison, and afterwards [Page 57] the Approver dies, there he may sue a Writ directed to the Sheriff, to suffer him to be bailed upon good Surety, if he be not a notorious Felon, although he be not of good fame. Fitz. N. B. 250. d.
The Kings Approvers.
THE Kings Approvers are those that have the letting of the Kings Demeans in small Mannors for the Kings greater advantage. And for such Approvers you may read in the Stat. 2 E. 3. c. 12. that they were men s [...] nt into divers Countries to increase the Farms of Hundreds and Wapentakes. And you may see in the Statute made in 1 E. 3. c. 8. that the Sheriffs call themselves the Kings Approvers.
Arbitrement.
ARbitrement is an award, Determination, or Iudgement, which one or more makes at the request of two parties at the least, for and upon some Debt, Trespass, or other Controversie had between them. And this is called in Latin Arbitratus, and Arbitrium; and they tha [...] make the Award or Arbitrement are called Arbitri, in English Arbitrators
To every Arbitrement five things are incident; sc. Matter of Controversie, Submission, [Page 58] Parties to the Submission, Arbitrors, and giving up of the Arbitrement. Dyer 217. pl. 62. If the Arbitrement be made, that the one party shall go quit of all Actions which the other hath against him, and nothing is said of the Actions which he hath against the other; this Arbitrement is void because it was made of the one part, and not of the other. 7 H. 6. ca. 40.
When a Submission to an Arbitrement is general of all Actions, &c. and the Arbitrator makes an Award only of one; yet this may well stand with the generality of the words, that there was but one Cause depending between them; for, A generality implies no certainty. And if the Arbitrement should be for this avoided, then many Arbitrements might be avoided; for the one might conceal a Trespass done, or other cause of Action given him, and so avoid the Arbitrement. Also no party to any Arbitrement shall be by it bound, unless the Award be delivered unto him, as it is in Co. lib. 5. f. 103. See Co. l. 8. fol. 98.
Arches.
ARches (or the Court of the Arches) is the chief and most ancient Consistory belonging unto the Archbishop of Canterb. and, it is called from the Arches of the Church where the Court is kept, namely, Bow-Church in London. And of this Cour [...] [Page 59] mention is made in Stat. 24 H. 8. cap. 12. touching Appeals.
Arms.
ARms, in the understanding of the Law, is extended to any thing that a man, in his anger or fury takes into his hand to cast at, or strike another. Cromp. Justice of Peace. fol. 65. a.
Array.
ARray is the taking or ordering a Iury or Enquest of men that are impannelled upon any cause, 18 H. 6. cap. 14. from whence comes the Verb, to array a pannel, Old N. B. f. 157. that is, to set forth one by another the men that are impannelled. The Array shall be quashed, ibid. By Statute every Array in Assise ought to be made four dayes before. Brook tit. Pannel. num. 10. To challenge the Array. Kitch. 92.
Arrain.
ARrain is to put a thing in order or in his place: As one is said to arrain an Assise of Novel Disseisin in the County in which it ought to be brought for trial before the Iustices of that Circuit, Old N. B. fol. 109. And in such sense Litt. hath used the same word, The Lessee attains [Page 60] an Assese of Novel Disseisin. Also a prisoner is said to be arraigned, when he is indicted and put to his trial.
Arrerages.
ARrerages are Duties behind unpaid after the days and times in which they were due, and ought to have been paid, whether they be Rents of a Manor; or any other thing reserved.
Arrest.
ARrest is when one is taken and restrained for his liberty. None shall be arrested for Debt, Trespass, Detinue, or other cause of Action, but by virtue of a precept or commandment out of some Court. But for Treason Felony, or breaking of the Peace, every man hath authority to arrest without warrant or Precept. And where one shall be arrested for Felony, it behoves that some Felony be done, and that he be suspected of the same Felony; or otherwise he may have against him that did so arrest him a Writ of False imprisonment. And when any man shall be arrested for Felony, he shall be brought to the Goal, there to abide till the next Sessions, to be indicted or delivered by Proclamation.
Arretted.
ARretted is he that is convented before any Iudge, and charged with a crime. Sometimes it is used for imputed or laid unto: As no folly can be arretted to him that is within age, Lit. cap. Remit. This word may come of the Latiu word Rectus, for Bacton hath this Phrase, Ad rectum habere malefactorem, so that he may be charged and put to his trial. And in another place he saith, Rectarus de morte hominis.
Assach.
ASsach seems to be a Brittish word, and to signifie a strange kind of Excuse or Purgation by the Oaths of 300. men. Anno 1 H. 5. cap. 5.
Assart.
ASsart is an offence committed in the Forest, by pulling up by the Roots the Woods which are thickets or coverts of the Forest, and by making them as plain as the arable Land. This Assart of the Forest is the greatest offence or trespass that can be done in the Forest to Vert or Venison, containing in it Waste, or more: For where Waste of the Forest is nothing [Page 62] but the felling and cutting down of the Covert wood, which may in time grow again; an Assart is a pulling up by the root, by which they can never grow again. Man. part. 2. c. 9. num. 1. A writ of Ad quod damnum may be awarded, where a man will sue licence to assart his Land within the Forest, and make it several for Tillage; so that it is no offence if it be done by licence. Regist. orig. fol. 257.
Assault.
ASsault (from the French Assaillir) signifies a violent kind of injury offered to a mans person, of a more large extent than Battery; for it may be committed by offering a blow, or by a terrifying speech. Lamb. Eiren. lib. 1. cap. 3.
Assayer.
ASsayer is an Officer of the Mint appointed by the Stat. of 2 H. 6. c. 12. to be present at the taking in of the Bullion as a party indifferent between the Master of the Mint and the Merchant, to set the true value of the Bullion according to the Law.
Assets.
ASsets is in two sorts; the one called Assets per discent, the other, Assets enter maines. Assets [...] discent is, where a man is bound in an Obligation, and dies secised of Lands in Feesimple, which descend to his Heir, then his land shall be called Assets, that is, enough or sufficient to pay the same debt; and by that means the Heir shall be charged as far as the Land so to him descended will stretch. But if he have aliened before the Obligation be put in Suit, he is discharged.
Also when a man seised of lands in tail, or in the right of his wife, aliens the same with warranty, and hath in value as much Lands in Fee-simple, which descends to his Heir, who is also Heir in Tail, or Heir to the woman: now if the Heir, after the decease of his Ancestor, bring a Writ of Formedon, or Sur cui in vita, for the land so aliened; then he shall be barred, by reason of the Warranty, and the land so descended, which is as much in value as that which was sold, and so thereby he hath received no prejudice. Therefore this Land is called Assets per discent.
Assets enter maines is, when a man indebted (as before is said) makes Executors, and leaves them sufficient to pay, or [Page 64] some commodity or profit is come unto them in right of their Testator; this is called Assets in their hands.
Assignee.
ASsignee is he to whom a thing is appointed or assigned to be used, paid, or done; and is always such a person who occupres or hath the thing so assigned in his own right, and for himself. And of Assignees there are two sorts, namely, Assignee in Deed, and Assignee in Law.
Assignee in Deed is, when a Lease is granted to a man and his Assignees, or without that word, Assignees, and the Grantee gives, grants, or sells the same Lease to another, he is his Assignee in Deed. Assignee in Law is every Executor named by the Testator in his Testament. As if a Lease be made to a man and his Assignees (as is aforesaid) and he makes his Executors, and dies without assignment of the Lease to any other; the Executors shall have the Lease, because they are his Assignees in Law. And so it is in other cases.
Assise.
ASsise is a Writ that lies where any man is pur out of his lands tenements, or of any [Page 65] profit to be taken in a certain place, and so disseised of his Free-hold. Free-hold to any man is, where he is seised of lands and tenements, or profit to be taken in Fee-simple, Feetail. for term of his own or another mans life. But Tenant by Elegit, Tenant by Stat Merchant and Stat. Staple may have Assise, though they have no Free-hold; and this is ordained by divers Statutes.
In an Assise it is needful always that there be one Disseisor and one Tenant, or otherwise the writ shall abate.
Also where a man is disseised and recovers by Assise of Novel Disseisin, and afterward is again disseised by the same Disseisor, he shall have against him a Writ of Redisteisin directed to the Sheriff to make inquisition; and if the Redisseisin be found, he shall be sent to prison. Also if one recover by assise of Mortduncaster, or by other Iury, or default, or by reddition, and if he be another time disseised, then he shall have a Writ of Post Disseisin; and he who is taken and imprisoned for Redisseisin, shall not be delivered without special commandment of the King. See the Statutes Merton c. 3. Marlebridge cap. 8. and Westminster 2. c. 26.
There is also another assise, called Assise of Fresh force, and lies where a man is disseised of tenements which are devisable, as in the City of London, or [Page 66] other Boroughs or Towns that are Franchises; then the Defendant shall come unto the Court of the said Town, and enter his Plaint, and shall have a Writ directed to the Mayor or Batleffs, &c. and thereupon shall pass a Iury in manner of Assise of Novel Disseisin. But he must enter his Plaint within forty days, as it is said, or otherwise he shall be sent to the Common Law. And if the Officers delay the Execution, then the Plaintiff shall have another Writ to have Execution, and a Sicut alias, and a Pluries, &c. See Littleton cap. Rents.
Assise de darrain Presentment.
ASsise de darrain Presentment. See Quare impedit.
Also there is an Assise of Nusance called Assisa Nocumenti.
Assise of the last Presentation.
Assise de Mortdancestor.
ASsise de Mortdancastor, Look in the title of Cosinage.
Association.
ASsociation is a Patent sent by the King, either of his own motion, or at the suit of the [Page 67] party Plaintiff to the Iustices of Assise, to have other persons associated to them to take the Assise: And upon this Patent of Association, the King will send his Writ to the Iustices of Assise, by it commanding them to admit them that are so sent.
If the King makes three Iustices of Assise, and afterwards one of them dies, there the King may make a Patent of Association to another, to associate him to the two, in place of him that is dead; and a Writ which shall be close, directed to the two Iustices that are alive, to admit him. F. N. B. 185.
Assoil.
ASsoil comes from the Latin absolvere, and signifies to deliver or discharge a man of an Excommunication; and so it is used by Stamford, in his Plcas of the Crown, lib. 2. cap 18. fol. 71. b.
Assumpsit. See Nude Contract.
ASsumpsit is a voluntary promise made by word, by which a man assumes and takes upon him to perform or pay any thing to another. This word contains in it any verbal Promise made upon consideration, which the Civilians express by several words, according to the nature of the Promise; calling [Page 68] it sometimes Pactum, Promissionem, other times Sponsionem, Pollicitationem, or Constitutum.
Attach.
ATtach is a Taking or Apprehending by Command or Writ. There are some differences between an Arrest and an Attachment; for an Arrest proceeds out of the inferiour Courts by Precept, and Attachment out of the Superior Courts by Precept or Writ. Lamb. Eiren. lib. 1. cap. 16. Also an Arrest lies only upon the Body of a man, whereas an Attachment is sometimes upon the Goods only; as Kitch. fol. 279. b. saith, a man may attach a Cow, and in another case, that a man may be attached by an hundred Sheep; and it is sometimes awarded upon the Body and Goods together at one and the same.
Attachment differs from a Capias, for Kit. fol. 79. b. hath these words, Note that in a Court of Baron a man shall be attached by goods, and a Capias shall not go out thence: By which it seems Attachment is more general, extending to the taking of Goods, where a Capias extends to the taking of the Body only.
An Attachment differs from a Distress, as appears by Kit. fol. 78. a. where he saith, Process in Court Baron is Summons [Page 69] Attachment, and Distress, which are Process at the Common Law.
There is also an Attachment of Priviledge: and this is twofold; either giving power to apprehend a man in a place priviledged, or by vertue of an Office or Priviledge; as to call another to that Court to which he himself belongs, and in respect of which he is priviledged. New Book of Entries, fol. 431. a.
And there is a Process called a Foreign Attachment, which is used to attach the goods of Foreigners found within any Liberty or City, for a Debt due to the party himself. And, by the custome of some places, a man may attach goods in the hands of a stranger: As if A. ows to B. ten pounds, and C owes A. another Summe of money, B. may attach the goods of A. in the hands of C. to satisfie himself in part or all, as the Debt is.
Also there is Attachment of the Forest, which is a Court there held every forty days throughout the year: In which the Verderors have not any authority. but to receive and inrol the Attachment of offenders against Vert and Venison taken by the other Officers, that they may be presented at the next Iustice seat in Eyre. Manwood, part 1. pag. 93. cap. 22.
Attainder.
ATtainder is a Conviction of of any person of a Crime or fault whereof he was not convict before: As if a man have committed Felony, Treason, or such like, and thereof is convicted, arraigned, and found guilty, and hath Iudgment, then he is said to be Attainted. And this may be two ways; the one upon Appearance, the other upon default. The Attainder upon Appearance is by Confession, Batrail, or Verdict: the Attainder upon Default is by Process until he be outlawed.
Attaint.
ATtaint is a Writ that lies where false Verdict is given by twelve men, and Iudgment given thereon, then the party against whom they have passed, shall have a Writ against the twelve men, and when they are at issue, it shall be tried by twenty four Iurors, and if the false Verdict be found, the twelve men are attaint; and then the Iudgment shall be, That their Meadows shall be eyred, their Houses broken down, their Woods turned up, and all their Lands and Tenements forfeited to the King: But if it pass against him that brought that Attaint, he shall be Imprisoned, and grievously [Page 71] ransomed at the Kings will. See the Statute 23 Hen. [...]. cap. 3. Attaint also is when Iudgment is given in Treason or Felony.
Attendant.
ATtendant is where one ows a duty or service to another, or as it were depends upon another: As if there be Lord, Mesne, and Tenant, the Tenant holds of the Mesne by a peny, the Mesne holds over by two pence, the Mesne releases to the Tenant all the right which he hath in the Land, & the Tenant dies; his wife shall be endowed of the land and she shall be Attendant to the Heir of the third part of one peny, and not of the third part of two pence; for she shall be endowed of the best possession of her husband. Also where the wife is endowed by the Gardian, she shall be attendant to the Gardian and to the Heir at his full age.
Attournment.
ATtournment is, when one is Tenant for term of Life, and he in Reversion or Remainder grants his right or estate to another, then it behoves the Tenant for life to agree thereto; and this agreement is called an Attournment. For if he in the Reversion grant his estate and right to another, if the Tenant for life attourn not, nothing passes by the grant.
[Page 72] But if it be granted by Fine in Court of Record, he shall be compelled to attourn. And see thereof after, Title Quid juris c [...] mat, and in Littl. lib. 3. cap. 10.
Atturney.
ATturney is one appointed by another man to do something in his stead, whom West hath defined thus, Attorneys are such persons as by consent, commandment or request, take care of, see to, and undertake the Charge of other mens Business in their absence.
And where in ancient time those of authority in Courts have had it in their dispose, when they would permit men to appear or sue by any other than themselves as appears by F. N. B. 25. in the Writ of Dedimus potestatem đ Attornato faciendo, where it is shewed, that men were driven to procure the Writs, or Letters Patents of the King to appoint Atturneys for them; it is now provided by divers Stat. that it shall be lawful so to do without any such circuity. And there is great diversity of Writs in the table of the Register, by which the King commands his Iudges to admit of Atturneys.
By which means at last there were so many unskilful Atturneys, and so many mischiefs by them, that an Act was 4 H. [Page 73] 4 c. 18. ordained for their restraint, that the Iustices should examine them, and put out the unskilful: and An. 33 H. 6. c. 7. that there should be but a certain number of them in Norfolk and Suffolk.
In what cases a man at this day may have an Atturney, and in what not, see F. N. B. in the place before cited.
Atturney is either general, or special, Atturney general, is he that is appointed to all our Affairs or Suits; as the Atturney general of the King. Atturney general of the Duke, Cromp. 105. Atturney special or particular is he that is imploi [...] d in one or more things particularly specifyed. Atturneys general are made two ways, either by the Kings Letters Patents, or by our own appointment, before Iustices in Eyre in open Court. See Glan. lib. 11. cap. 1. Brit. 126.
Audience Court.
AUdience Court (Curia audientiae Canturiensis) is a Court belonging to the Archbishop of Canterbury, of equal Authority with the Arches Court, though inferior both in dignity and antiquity. Of which you may read more in a Book entituled, De antiquitate Ecclesiae Britannicae historia.
Audita Querela.
AUdita Querela is a Writ that lies where one is bound in a Statute-Merchant, Statute-Staple, or Recognisance, or where Iudgment is given against him for Debt, and his body in Execution thereupon; then if he have a Release, or other matter sufficient to be discharged of Execution, but hath no day in Court there to plead it, then he shall have this writ against him which hath recovered, or against his Executors.
Auditor.
AUditor is an Officer of the King, or some other great person, who, by yearly examining the Accounts of all under-Officers accountable, makes up a general Book, that shews the difference between their Receipts or Charge, and their Payments or Allowances. See the Statute 33 H. 8. c. 33.
There is also another sort of Auditor assigned by any Court wherein a Defendant is adjudged to Account, who take the Account and put it in form into Writing, and then it is inrolled, and the Plaintiff pleads to it, and the Defendant replies, if occasion be, and so go to issue upon divers [Page 75] points and particulars of the Account.
Average.
AVerage is that Service which the Tenant owes his Lord, to be done by the Beasts of the Tenant: and it seems to be deriv'd from the word Averia, because it is the Service which the Tenants Beasts perform for the Lord by carriage or otherwise. This word also hath another signification, and is much used in the Statute 32 H. 8. c. 14. for a certain Contribution, which Merchants and others pay proportionably towards their losses that have their goods cast out in a tempest for the saving of the Ship, or of the goods or lives of them that are therein.
Averment.
AVerment is, where a man pleads a Plea in Abatement of the Writ, or Bar of the Action, which he saith he is ready to prove as the Court will award. This offer to prove the Plea is called an Averment.
Also there is a Writ called a Writ of Averment, which is made out of any of the Law Courts of Westminster-Hall when the Action is depending, when the Sheriff upon a Distringas [Page 76] returns small issues; then the Iudges of Assise may cause it to be enquired by a Iury if the Sheriff could return more issues of the Lands of the Defendant, and if it be found he may, then he must return more issues to force the Defendant to appear to the Plaintiffs suite, or to do what the Distringas required him to do.
Averpeny.
AVerpeny is, to be quit of divers sums of money for the Kings arrerages.
Augmentation.
AUgmentation was the name of a Court erected in the 27 year of King Henry the eighth. And the cause thereof was, that the King might be iustly used touching the profits of such Religious Houses and their Lands as were given him by Act of Parliament the same year, not printed. For dissolving which Court there was an Act made in the Parliament held in the first year of the Reign of Queen Mary, Sess. 2. cap. 10. which she afterward put in execution by her Letters Patents. The name of the Court arises from this, That the Revenues of the Crown were so much augmented by the Suppression of the said Houses as the [Page 77] King reserved to the Crown, and neither gave nor sold to others. But the Office of Augmentation remains to this day, wherein there are many Records of great use and importance.
Aumone.
AUmone, or Tenure in Almoin, is Tenure by Divine Service; for so says Britton fol. 164. Tenure in Aumone is Land or Tenements given for Aims, whereof some Service is reserved to the Feoffer or Donor.
Auncel weight.
AUncel weight was an ancient manner of Weighing in England, by the hanging of balances or hooks at each end of a staff, which the party lifted up upon his finger, or with his hand, and so discerned the equality or difference of the things weighed. But this weight being subject to much deceit, many Statutes were made to out it; as the Stat. of 25 E. 3. c. 9. & 34 E. 3. c. 5. & 8 H. 6. c. 5. and others. And it was called Auncel weight, as much as to say Handsale Weight.
Ancient or Ancient Demesne.
ANcient demesne is a certain Tenure whereby all those Manors that were in the hands of S. Edward the Confessor, and which he caused to be written in a Book called Dooms-day, sub titulo Regis. and all the Lands holden of the said Manors, are held; and the Tenants shall not be impleaded out of the said Manors; and if they be, they may shew the matter, and abate the Writ: but if they answer to the Writ, and Iudgment be given, then the Lands become frank-free for ever, until that Iudgment be reversed by writ of Disceit. Ra. Ent. 100, 221. 2 R. 1. 11 H. 4. 36. 21 E. 3. 20. Also the Tenants in Ancient demesne are free of T [...] ll for all things concerning their sustenance and Husbandry in ancient Demesne, and for such Lands they shall not be put or impannelled upon any Enquest. But all the Lands in Ancient Demes [...] e that are in the Kings hands are frank-free, and pleadable at the Common Law. See more after in the Title Sokmans.
Avoir de pois.
AVoir de pois is as much as to say, true or just weight: And it signifies in our Law [Page 79] Two things; first a kind of weight diverse from that which is called Troy Weight, which hath but 12 ounces to the pound, whereas Avoir de pois hath 16. Secondly, it signifies such Merchandises as are weighed by this weight, and not by Troy weight. As you may see in the Statute of York, 9. E. 3. & 27 E. 3. c. 19, Stat. 2. c. 10. and the Statute of Glocester, 2 R. 2. c. 1.
Avowry.
AVowry is, where one takes a Distress for Rent or other thing, and the other sues Replevin; then he that hath taken it shall Iustifie in his Plea for what cause he took it: and if he took it in his own right he ought to shew that, and so avow the taking, and that is called his Avowry. But if he took it in or for the right of another, then when he hath shewed the cause, he shall make conusance of the taking, as Bailiff or servant to whom in whose right took it.
Avowterer.
AVowterer is an Adulterer with whom a married woman continues in Adultery, the Crime is called Avowtry, 43 E. 3. 19.
Awme.
AWme is a Vessel that contains 40 galons of Rhen [...] sh wine, and is mentioned in the Statute made 1 Jac. c. 23.
B Backberind Thief.
BAckberind Thief is a Thief taken with the manner, that is, having that found upon him (being followed with a Hue and Cry) which he hath stollen, whether it be Money, Linnen, Wollen, or other stuff: but it is most properly said, when he is taken carrying those things that he hath stolen in a bundle or fardel upon his Back.
Manwood in part 2. notes this for one of the circumstances or cases in which a Forester may arrest the body of any offender against Vert or Venison in the Forest; which are, Dog-draw, Stable-stand, Back-berind, and Bloody-hand.
Badger.
BAdger is as much as to say Bagger, of the French [Page 81] word Baggage, id est, Sarcina: And it is used with us for one that is licenced to buy Corn or other Victuals in one place, and carry them to another; and such a one is exempted in the Statute made in the 5 and 6 of E. 6. cap. 14 from the punishment of an Ingrosser within that Statute.
Bail.
BAIL is, when a man is taken or arrested for Felony, suspicion of Felony, indicted of Felony, or any such case, so that he is restrained of his liberty, and being by Law bailable, offers Surcties to those who have authority to bail him; which Sureties are bound for him to the Kings use in a certain Sum of money, or body for body, that he shall appear before the Iustices of Goal-delivery at the next Sessions, &c. Then upon the Bonds of these Sureties, as is aforesaid, he is bailed, that is set at liberty, until the day appointed for his appearance.
Manwood in the first part of his Forest Law, pag. 167. says, There is a great diversity between Bail and Mainprise; for he that is mainprised is always said to be at large, and to go at his own liberty out of ward, after he is put to Mainprise, until the day of his Appearance, by reason of Common [Page 82] Summons or otherwise. But it is not so where a man is put to bail by four or two men, by my Lord chief Iustice in Eyre of the Forest, until a certain day: for there he is always accounted by the Law to be in their ward and custody for the time; and they may, if they will, hold him in ward or in Prison till that time, or otherwise at their will: so that he that is bail'd [...] hall not be said by the Law to be at large, or at his own liberty.
Bailement.
Bailement is a Delivery of things, whether Writings, Goods, or Stuff, to another, sometimes to be delivered back to the Bailor, that is, to him that so delivered it; sometimes to the use of the Bailee, that is, of him to whom it is delivered; and sometimes also it is delivered to a third person. This delivery is called a Bailment.
Bailiff.
BAiliff is an Officer that belongs to a Mannor, to order the husbandry, and hath authority to pay Quit-rents issuing out of the Mannor, fei [...] Trees, repair Houses, make Pales, Hedges, distrain Beasts doing hurt upon the ground, and divers such like. This Officer is he whom the ancient [Page 83] Saxons called a Reeve, for the name Bailiff was not then known amongst them, but came in with the Normans, and is called in Latin Villicus.
There are two other sorts of Bailiffs, that is Bailiffs errant, and Bailiffs of Franchises. Bailiffs errant are those that the Sheriff makes and appoints to go about the Country to execute Writs, to summon the County Sessions, Assises, and such like: Bailiffs of Franchises are those that are appointed by every Lord within his Liberty, to do such Offices within his Precincts, as the Bailiff errant doth abroad in the County. This Bailiff distrains for Amerciaments in Courts held within the Mannor of which he is Bailiff. But if such Court is by prescription to be held within one month after a Feast, and the Steward holds it after the month, and in this Court Assess a Fine or Amerciament, and the Bailiff distrains for it; the party that is so distrained may have an Action of Trespass against the Bailiff.
Bank.
BAnk (in French Banque, i. Mensa) is most usually taken for a Seat or Bench of Iudgment; as Bank le Roy, the Kings Bench, Bank de Common Pleas, the Bench of Common Pleas, or Common Bench. Kitchin fol. [Page 84] 102. called also in Latin Bancus Regius, and Bancus Communium Placitorum. Cromp. Jur. f. 67, & 91.
Kings Bench.
KIngs Bench is a Court at Westminster where Pleas of the Crown, Debts, Trespasses, and personal Actions, Errors, Audita Querela's, &c. are determined.
Bankrupt.
BAnkrupt, by the Statute 1 Jac. c. 15. is thus described; All and every such person and persons, using, or that shall use the trade of Merchandise by way of Bargaining, Exchange, Bartery, Chevisance, or otherwise in gross, or by seeking his, her, or their trade of Living by buying and selling, and being a Subject born of this Realm, or any of the Kings Dominions, or denizon, which at any time since the first day of this present Parliament, or at any time hereafter shall depart the Realm, or begin to keep his or her house or houses, or otherwise to absent him or her self, or take sanctuary, or suffer him or her self willingly to be arrested for any Debt, or other thing not grown or due for money delivered, ware sold, or any other just or lawful cause, or good considerations or purposes, or hath or will suffer [Page 85] him or her self to be outlawed, or yield him or her self to prison, or willingly or fraudulently hath or shall procure him or her self to be arrested, or him or her goods, money or chattels, to be attached or sequestred, or depart from his or her dwelling-house, or make or cause to be made any fraudulent grant or conveyance of his, her, or their Lands, Tenements, Goods, or Chattels, to the intent or wherehy his, her, or their Creditors, being Subjects born, as aforesaid, shall or may be defeated or delayed for the recovery of their just and true Debt, or being arrested for Debt, shall after his or her Arrest lie in prison six months or more upon that Arrest or Detention in Prison for Debt, and shall lie in Prison six months upon such Arrest or Detention, shall be accounted and adjudged a Bankrupt to all intents and purposes. See the Stat. 14 Car. 2. ca. 23.
Banneret.
BAnneret is a Knight made in the Field, with the ceremony of cutting off the point of his Standard', and making it as it were a Banner. And such are allowed to display their names in a Banner in the Kings Army, as Barons [...] o. And that such were next unto Barons in Dignity, appears [Page 86] by the Statute made in the 5 year of R. 2. Stat. 2. cap. 4. by which Statute it seems, such Bannerets were anciently called by Summons to the Parliament.
Banns.
BAnns is a word common a [...] d ordinary among the Feudists, and signifies a Proclamation, or any publick notice given of any thing. Eract. lib. 3. tra. 2. cap. 21. makes mention of Bannus Regis for a Proclamation or silence made by the Crier before the meeting of the Champions in a combat. But we use this word Banns especially for the Publication of matrimonial Contracts in the Church before Marriage.
Bargain & Sale.
BArgain and Sale is, when a Recompence is given by both the parties to the Bargain: as if one bargain and sell his Land to another for money, here the Land is a Recompence to him for the money, and the money is a Recompence to the other for the Land; and this is a good Contract and Bargain. And by such a Bargain & Sale lands may pass without Livery or seisin, if the Bargain and Sale be by Deed indented, sealed [Page 87] and inrolled either in the County where the Land lies, or in one of the Kings Courts of Record at Westminster, within six months next after the date of the same writing indented, according to the Statute in that behalf made in the 27 year of H. 8. cap. 16.
Barcary.
BArcary signifies a Farm house as it seems, Rast. Ent. Tit. Assise en Corps politique 2.
Barmote.
BArmote are divers Courts not of Record within the Hundred of the Peak in Derby-shire for the regulation of Groves, Possessions, and Trade of the Myners and Lead.
Barony.
BArony is a certain Royal Lordship where the Kings writ tunneth not, and held of the King. Rast. Ent. Tit. Assise en Office. 1.
Barr.
BArr is when the Defendant in any Action pleads a Plea which is a sufficient answer, and destroys the Action of the Plaintiff for ever.
[Page 88] And it may be divided into Barr to common intendment, and Barr special. Barr to common intendment is an ordinary or general Barr, which commonly disables the Declaration or Plea of the Plaintiff. Barr special is that which more than ordinary, and falls out in the case in question, upon some special circumstance of the Fact: As an Executor, being sued for the Debt of his Testator, pleads, That he hath nothing in his hands at the day of the Writ purchased; this is a good Barr to common intendment, or at first sight: but yet the case may be such, that more goods may come to his hands after that time, which if the Plaintiff can shew by way of Replication, then, except the Defendant hath a more special Plea or Barr to alledge, he is to be condemned in the Action. See Plow. fol. 26, 28. And in the same sense Barr is also divided into Barr material or special, and Barr at large. Kit. fol. 68.
Barr is also in regard of the effect divided into Barr perpetual, and Bar temporary. Perpetual is that which overthows the Action for ever: Temporary is that which is good for the present, and may afterwards fail; as, Fully administred is a good Barr, until it appear that more goods came afterward to the hands of the Executors: which also holds for [Page 89] the Heir, who in an Action for his Ancestors Debt pleads Nothing by discent. See Brook Tit. Bar. nu. 23.
Barre fee.
BArr fee is a Fee of twenty pence, which every prisoner, acquitted of Felony, pays to the Sheriff or Goaler: of which see 21 H. 7. 16. b.
Barretry.
IS a word used in Pollices of Insurance, and signifies dissentions and quarrels among the Officers and Seamen.
Barretor.
BArretor is a Common Mover, Stirrer up, or Maintainer of Suits, Quarrels, or parts, either in Courts, or in Country: In Courts of Record, and in the County, Hundred, and other inferior Courts: In Country in three manners; first, in disturbing the peace; secondly, in taking or detaining the Possessions of Houses, Lands, or Goods, &c. that are in question or controversie, not only by force, but by subtilty and deceit, and more usually in suppression of truth and right; thirdly, by false inventing and sowing of Calumnies, Rumors and Reports, making discord and disquiet to rise between his Neighbours. See more of this, Co. lib. 8. fol. 36, 37.
Barter.
BArter seems to come of the French word Barater, which signifies to circumvent, and this word is used with us for the Exchange of Wares for Wares▪ and it is mentioned in the Statutes of 1 R. 3. cap. 9. & 13 Eliz. cap. 7.
Base fee.
TO hold in Fee Base is, to hold at the will of the Lord. And a Base Fee is also where any hath an Estate in Land so long as another shall have Heirs of his body; of which Estate see Plow. in Walsingham's Case fol. 557. a.
Bastard.
BAstard is he that is born of any woman not married, so that his Father is not known by order of Law, and therefore is reputed the Child of the People.
When special Bastardy is alledged, it shall be tried by the Country, and not by the Bishop. But generally Bastardy alledged shall be tried by Certificate of the Bishop.
And if a Woman be great with child by her husband, who dies, and she takes another husband, [Page 91] and after the Child is born; this child shall be esteemed the child of the first husband. But if she were privily with child at the time of the death of her first husband, then it shall be reputed the Child of the second Husband. But enquire farther, and see the opinion of Thorp. 21 E. 3. 39.
Also if a man take a Wife who is great with child by another who was not her husband, and after the child is born within the Espousals; then it shall be deemed the child of the Husband, though it were born but one day after the Espousals solemnized.
Baston.
BAston is a French word, and signifies a Staff; but in our Satutes it is taken for one of the Warden of the Fleet's men, that attends the King's Courts with a painted Staff, for the taking of such to ward as are committed by the Court, and for the attending upon such prisoners as go at large by Licence. And so it is used in the Statutes 1 R. 2. ca. 12. & 5 Eliz. cap. 23.
Battail.
BAttail is an ancient Trial in our Law, which the Defendant in Appeal of Murther, Robbery, or Felony, may chuse, that is, to sight with [Page 92] the Appellant, for proof whether he be culpable of the Felony or not: which Combat, if it fall out so well on the part of the Defendant, that he doth vanquish the Appellant, he shall go quit, and barr him of his Appeal for ever. But if one be indicted of Felony, and an Appeal is brought upon the same Indictment, there the Defendant shall not wage Battail. Battail also may be in a Writ of Right, as in Paramour's Case, Dyer 301. pla. 41, 42. where the Champions chosen, and the Battail awarded, and the Champions were by Sureties and Oath to perform the Battel at Totchil in Westminster; but by default of appearance in the Demandant nothing was done therein.
Batterie.
BAtterie is an Act that tends to the breach of the peace of the Realm; as when a man assaults and beats another, this is against the Law and peace of the Realm, which ordeins, That no man shall be his own Iudge, or Revenger of his own private wrong, but shall leave this to the censure of the Law, which is always ready to hear and redress the rightfull and just complaints of every man; wherefore he that is so beaten may either indict the other party who upon it shall be fined to the King, or have his Action of [Page 93] Trespass of assault and Battery against him (for every Battery implies an assault) and recover so much in costs and damages as the Iury will give him by their Verdict; and the Defendant shall upon the Indictment be fined to the King, and the Action of Trespass will lie as well before as after the Indiment. But if the Plaintiff in such action makes the first assault, then the Defendant shall go quit, and the Plaintiff shall be amerced to the King for his false Suit. And it is to be observed, that the Record of the Conviction of the party by Indictment may serve for Evidence in the action of Trespass brought upon the same assault & battery.
But notwithstanding that the party shall have a twofold punishment for such offence, that is, shall be punished to the King and to the party; yet some there are who in respect of their natural, and others who in respect of their civil power and authrority over others, in a reasonable and moderate manner may chastise, correct and beat them, as the Parents their child, the Master his Servant or Apprentice, the Goaler or his Servant, the unruly Prisoners, the Officer him that is arrested, and will not otherwise obey. Also a man may justifie the beating another in defence of his own person, or of the person of his Wife, Father, Mother, or Master. And a man may justifie the beating of [Page 94] another in defence of his goods, and in maintenance of Iustice. But it is to be noted, That in these cases, if a man be not urged and constrained by a necessary cause, he cannot justifie the deed.
Beacons and Sea-marks.
ARE Fires maintained on the coasts of the Seas to prevent Shipwracks and Invasions, Co. 4. Inst. 148. ordered by the Kings Commissioners.
Bedell.
BEdell is derived from the French word Bedeau, which significes a messenger or an Apparitor of a Court, that cites men to the Court to appear and answer. And Manw. c. 23. f. 221. a. says, That a Bedell of a Forest is an Officer that goes through all the Forest, like a Sheriffs special Bailiff.
Is also a Collector of Rents for the King. Plo. Com. 199, 200.
Benefice.
BEnefice (Beneficium) is generally taken for any Ecclesiastical Living, be it Dignity or other: as An. 13 R. 2. Stat. 2. c. 2. where Benefices are divided into elective, and of gift.
Besaile.
BEsaile is a Writ that lies for the Heir; where his Great-grand-father was seised the day that he died, or died seised of land in Fee-simple, and a Stranger enters the day of the death of the Great-grand-father, or abates after his death, the Heir shall have his Writ against such a Disseisor or Abator: of which see Fitzh. N. B. 221. d.
Bewpleader.
BEwpleader is a Writ upon the Statute of Marlebridge, and lies where the Sheriff or other Bailiff in his Court will take a Fine of the party Plaintiff or Defendant, to the end that he shall not plead fairly, &c. And the Writ shall be directed to the Sheriff himself, or to the Bailiff or him that will demand this Fine, & it is as a Prohibition to him, commanding him that he shall not demand such, a Fine, and may be sued by all the Hundred, or by all the County, (as it seems) where he will demand such manner of Fine of them. Fitzh. N. B. 270. a.
Bigamie.
BIgamie was a Counterplea objected when the Prisoner [Page 96] demanded the Benefit of the Clergie, to wit, his Book, as namely, that he who demands the priviledge of the Clergie was married to such a woman at such a place, within such a Diocess, and that she is dead, and that he hath married another woman within the same Diocess, or within some other Diocess, and so is Bigamus. Or if he have been but once married, then to say, that she whom he hath married is, or was a Widow, that is, the Relict of such a one, &c. which shall be tried by the Bishop of the Diocess where the Marriages are alledged. And being so certified by the Bishop, the prisoner shall lose the Benefit of the Clergy. But at this day, by force of the Act made 1 E. 6. ca. 12. this is no Plea, but he may have his Clergy notwithstanding. So is Brook, titulo Clergie, Placito 20. to the same purpose.
By-laws.
BY-laws are Orders made in Court-Leets or Court-Barons by a common consent for the good of them that are the makers of them. And they are called By-laws, quasi Birlaws, or Bawrlaws, of the Dutch word Bawr, that is, a Countrey-man; and so Bawrlaws or By-laws is as much as the Laws of Country-men.
Bilinguis.
BIlinguis in general is a man with a double tongue; but is commonly used for that Iury which passes between an English man and an Alien, whereof part ought to be Englishmen, and part Strangers. And for this cause it is enacted by the Statute of 28 E. 3. cap. 13. That if any variance chance to be about the packing of Wooll before the Mayor of the Staple, between the Merchants or Ministers of the same, thereupon, to try the truth thereof, Enquest shall be taken: and if the one party and the other be Denizons, it shall be tried by Denizons; or if the one party be Denison, and the other Alien, the half of the Enquest or of the proof shall be Denizons, and the other half Aliens.
Bill.
BILL is all one with an Obligation, saving that when it is in English, it is commonly called a Bill, in Latin an Obligation. Also a Declaration in writing that expresses either the grievance and wrong which the Complainant has suffered by the party complained of, or else some fault by him committed against some Law or Statute of the Realm. By a Bill [Page 98] we now ordinarily understand a single Bond without a Condition; by an Obligation, a Bond with a Penalty and Condition. West. part. 2. Symbol. tit. Supplications, sect. 52.
Billa vera.
BIlla vera is the Indorsement of the grand Inquest upon any Presentment or Indictment which they find to be probably true.
Blackmail.
BLackmail is a word used in the Statute of 43 Eliz. c. 13. and signifies a certainty of Money, Corn, Cattel, or other consideration, given by the poor people in the North of England, to men of great name and alliance in those parts, to be by them protected from such as usually rob and steal there.
Black rod.
BLack Rod is the Huissier belonging to the most Noble Order of the Garter; so called of the Black rod he carries in his hand. He is also Huissier of the Lords house in Parliament.
Bloodwit.
BLoodwit is to be quit of Amerciaments for Blood-shedding; and what Pleas are holden in your Court, you shall have the Amerciaments thereof coming; because (Wit) in English, is Misericordia in Latin.
Bloody hand.
BLoody hand is the apprehension of a Trespasser in the Forest against Venison, with his hands or other part bloody, though he be not found chasing or hunting. Of which see Manwood, part 2. c. 18.
Bockland.
BOckland in the Saxons time was that we at this day cail Free-hold Land, or Land held by Charter; and it was by that name distinguished from Folkland, which was Copy-hold Land.
Bona notabilia.
BOna notabilia is where a man dies having goods to the value of five pound in divers Diocesses, then the Archbishop ought to grant Administration; and if any inferior Bishop do grant it, it is void, 37 H. 6. 27. 28▪ 10 H. 7. 18. Dyer 305.
Bordlands.
BOrdlands signifie the Demesns which Lords keep in their own hand [...] for he maintenance of their Bord or Table. Bracton l. 4. Tract. 3. c. 9. num. 5.
Borow.
BOrow (which with us signifies an ancient Town, as appears by Littleton. sect. 164.) is a word derived either of the French Burg, id est Pagus, or of the Saxon Borhoe, id est, [...] ignus, for that anciently the Neighbours of a Town became Pledges one for another: and from thence comes Headborow, for the chief Pledge or Borhoe-Aldere, with us now called the Borow-holder or Bursholder.
Borow English.
BOrow English is a customary Descent of Lands or Tenements in some places, whereby they come to the youngest son, or if the owner have no issue, to his youngest brother, as in Edmunton, Kitchin fol. 102.
Borowhead.
BOrohead. See Head-borow.
Bote.
BOte is an old word signifying Help, Succor, Aid, or Advantage, and is commonly joyned with another word, whose signification is doth augment; as these, Bridgebote, Burgbote, Firebote, Hedgebote, Plowbote, & divers other, for whose significations look in their proper Titles.
Bottomry vulgo Bomry.
IS when a Master of a Ship in case of necessity doth engage his Ship for money for use of the Ship.
Bribor.
BRibor (Fr. Bribeur, i. Mendicus) seems to signifie one that pilfers other mans goods. Anno 28 E. 2. Stat. 1.
Brief.
BRief (Breve) signifies most properly in our Law, the Process that issues out of the Chancery or other Court, commanding the Sheriff to summon or attach A. to answer to the Suit of B. &c. But more largely it is taken for any Precept of the King in writing under Seal, issuing out of any Court, whereby he commands any thing to be done for the furtherance of Iustice and good order. And they are therefore called Briefs, because they briessy comprehend the cause of the action. And some of them are Original, [Page 102] and some judicial, as you may see at large in the Register of Writs.
Broadhalpeny.
BRoadhalpeny in some Copies Broadhalfpeny, that is, to be quit of a certain custome exacted for setting up of Tables or Boards in Fairs or Markets; and those that were freed by the Kings Charter of this Custome had this word put in their Letters Patents: by reason whereof, at this day the Freedom it self (for brevity of speech) is called Broadhalfpeny.
Broker.
BRoker seems to come of the French word Broieur, id est, Tritor, he that grinds or breaks a thing into small pieces. And the true trade of a Broker, as it appears in the Statute made 1 Jac. c. 21. is to beat, contrive, make and conclude Bargains between Merchants and Tradesmen. But the word is now also appropriated to those that buy and sell old and broken apparel and Houshold-stuff.
Brugbote.
BRugbote (and in some copies Bridgebote) is, to be quit [Page 103] of giving aid to the repair of Bridges.
Bull.
BULL is an Instrument so called, granted by the Bishop of Rome, and sealed with a Seal of Lead, containing in it his Decrees, Commandments, or other Acts, according to the nature of the thing for which it is granted. And these Instruments have been heretofore used and of force in this Land: but by the Statute of 28 H. 8. c. 16. it was e [...] acted, That all Bulls, Breves, Faculties, and Dispensations of whatsoever name or nature that it was, had or obtained from the B. of Rome, should be altogether void and of no effect. See Rastal. 328. C. D.
Bullion.
BUllion comes from the French word Billon, which is the place where Gold is tryed. And so Bullion is taken in the Statutes made in 27. E. 3. Stat 2. c. 14. and in 4 H 4. Stat. 1. c. 10. for the place whither Gold or Silver is brought to be tryed or exchanged. But Bullion is also taken in the Stat. 9 E. 3. Stat. 2. c. 2. for Gold or Silver in the Mass or Billet.
Burbreach.
BUrbreach is, to be quit of Trespasses done in [Page 104] City or Borough against the Peace.
Burgage.
TO hold in Burgage is, to hold as the Burgagers hold of the King, or of another Lord, lands or tenements yielding him a certain Rent yearly, or else where another man then Burgers holds of any Lord, Lands or Tenements in Burgage, yielding him a certain Rent.
Burghbote.
BUrghbote is, to be quit of giving aid to make a Burrough, Castle, City, or Walls thrown down.
Burgh English.
BUrgh English or Borough English, is a Custome in some ancient Borough, that if a man hath issue divers sons, and dies, yet the youngest son only shall inherit, and have all the Lands and Tenements that were his fathers, whereof he died seised within the same Borough, by descent, as Heir to his Father by force of the Custome of the same Borough.
This Tenure is also of Copyhold Estates by Custome of divers Mannors.
Burglary.
BUrglary is, when one breaks and enters into the House of another in the night, with felonious intent to rob or kill, or to do some other Felony; in which cases, although he carry away nothing, yet it is Felony, for which he shall suffer death. Otherwise it is if it be in the day-time, or that he break the House in the night, and enter no therein at that time.
But if a Servant conspire with other men to rob his Master, and to that intent opens his Masters doors and windows in the night for them, and they come into the house by that way; this is Burglary in the Strangers; and the Servant is a Thief, but no Burglar. And this was the opinion of Sir Roger Manwood, Knight, Lord chief Baron of the Cxchequer, at the quarter Sessions holden at Canterbury in Jannary 1579. 21 Eliz.
Buttlerage.
IS an old Duty to the Kings of this Realm for Wine imported by Aliens. Moor Rep. 833.
C Cablish.
CAblish among the Writers of the Forest Laws, signifies Brushwood. Manwood pag. 84. Cromp. Jur. fol. 165.
Cantred.
CAntred is as much in Wales as an Hundred in England; for Cantre in the British tongue signifies Centum. The word is used An. 28. H. 8. c. 3.
Capacity.
CApacity is, when a man, or Body politick or corporate is able to give or take Lands or other things, or sue Actions: As an Alien born hath sufficient Capacity to sue in any personal Action; but in a real Action it is a good Plea to say, he is an Alien born, and pray if he shall be answered. Dyer. f. 3. pla. 8.
If a man enfeoff an Alien and another man to the use of themselves, or, &c. it seems that the King shall have the moiety of the Land for ever, by reason of the Incapacity of the Alien. Dyer f. 283. pla 31.
[Page 107] By the Common Law no man hath Capacity to take Tythes but Spiritual persons, and the King, who is a person mixt: but a Lay-man, who is not capable of taking Tithes, was yet capable of discharge of Tithes in the Common Law in his own land as well as a Spiritual man. See Coke l. 2. f. 44.
Cape.
CApe is a Writ judicial touching Plea of Lands or Tenements, so called (as the most part of Writs are) of that word which in it self carries the especiallest intention or end thereof. And this Writ is divided into Grand Cape and Petit Cape; both which take hold of things immovable, and seem to differ in these Points. First, because Grand Cape lies before Apparance, and Petit Cape after. Secondly, by the Grand Cape the Tenant is summoned to answer to the default, and over to the Demandant; Petit Cape summons the Tenant to answer to the default only, and therefore it is called Petit Cape in the Old N. B. 161, 162. Yet Ingham saith, that it is not called Petit Cape because it is of small force, but because it is a little Writ in words.
This Writ seems to contain in it a Process, with the Civilians called Missio in possessionem ex primo & secundo Decreto: For [Page 108] as the first Decree seises the thing, and the second gives it from him that made the second default in his Appearance; so this Capias seises the Land, and also assigns over to the party a day of Appearance, at which if he comes not in, the Land is forfeited. Yet there is difference between these two courses of the Common and Civil Law; for this Missio in possessionem extends to touch as well Goods movable as immovable, where a Cape extends only to the immovable.
Secondly, in this, That the party being satisfied of his demand, the residue is restored to him that defaulted: but by the Cape all is seised without restitution.
Thirdly, That is to the use of the party agent, the Cape is to the use of the King. See Bract. l. 5. tract. 3. c. 1. num. 4, 5, & 6, Regist. Judic. fol. 2. a.
Cape ad Valentiam.
CApe ad Valentiam is a Writ or Execution, and is thus defined in the Old Nat. Brev. fo. 161. 162. This writ lies where the Tenant is impleaded of certain Lands, and he vouches to Warranty another, against whom the Summons ad warrantizan [...] hath been awarded, and the Vouchee comes not in at the day given: then if the Demandant recover against the Tenant, he shall have [Page 109] this Writ against the Vouchee, and shall recover so much in value of the Vouchees land, if he have so much; and if he hath not so much, then the Tenant shall have Execution by this Writ of such Lands and Tenements as descend to him in Feesimple; or if he purchase afterwards, the Tenant shall have against him a Resummons, and if he can say nothing, he shall recover the value.
And know, that this Writ lies before Apparance. Of these and their divers uses, see the Table of the Reg. jud. the word Cape.
Capias.
CApias is of two sorts. The one before Iudgment, called Capias ad respondendum, in an action personal, if the Sheriff return upon the first Writ, Nihil habet in Balliva nostra. And the other is a Writ of Execution after Iudgment, which also is of divers natures, which see in the Title Process.
Capite.
CApite is a Tenure that holds immediately of the King, as of his Crown, be it by Knights Service or Soccage, and not of any Honor, Castle, or Mannor; and for this it is also [Page 110] called a Tenure which holds meerly of the King. For as the Crown is a Corporation, a Seignory in gross; so the King who possesses the Crown is in the eye of the Law perpetually King, never in his Minority, and dies no more than Populus doth, whose authority he bears. See Fitz, N. Brē fol. 5. Yet note, That a man may hold of the King. and yet not in Capite, that is, not immediately of the Crown in gross, but by means of some Honor, Castle, or Manor belonging to the Crown, whereof he holds his Land. Of this Kitchin saith well, That a man may hold of the King by Knight's service, and yet not in Capite, because it may be he holds of some honour by Knights service, that is in the Kings hands, by descent from his Ancestors, and not immediately of the King, as of his Crown, fol. 129. With which agrees Fitzh. Nat. Brē fol. 5. k. whose words are to this effect; It plainly appears, that Lands which are held of the King as of an Honor, Castle, or Manor, are not held in Capite of the King, because a Writ of right iu this case shall be directed to the Bailiff of the Honor, Castle, or Manor, &c. But when the lands are held of the King as of his Crown, then they are not held of an Honor, Castle, or Manor, but meerly of the King as King, as of his Crown, as of a Seignory of it self in gross, [Page 111] and the chief of all other Seigniories.
And this Tenure in Capite is otherwise called Tenure holding of the person of the King. Dyer fol. 44. Brook titulo Tenures, num. 65, 99. And yet Ki [...] chen, fol. 208. saith, That a man may hold of the person of the King, and yet not in Capite. His Case is this; If the King purchase a Manor that J. S. holds, the Tenant shall hold as he did before, and he shall not render Livery, nor primer Seisin, nor hold in Capite. And if the King grants his Manor to W. N. in fee, excepting the services of J. S. then J. S. holds as of the person of the King, and yet holds not in Capite, but as he held before. By which it seems, that Tenure holding of the person of the King, and Tenure in Capite, are two divers Tenures. To take away which difference, it may be said, That this place of Kitchen is to be taken as if he had said; Not in Capite by Knights service, but by Socage, following the usual speech, because most commonly, where we speak of Tenure in Capite, we intend Tenure by Knight's service. See the Stat. 12 Car. 2. c. 24. by which all Tenures are now turned into free and common Socage.
Cark.
CArk seems to be a quantity of Wooll, whereof 30 make a Sarplar. 27 H. 6. cap. 2. See Sarplar.
Carno.
CArno is an Immunity, as appears in Cromp. Jurisd. f. 191. where it is said, That the Prior of Malton made claim for him and his men, to be quit of all Amerciaments within the Forest, and also to be quit of Escapes, and of all manner of Gelds, and of Foot-gelds, Buckstall, Trites, Carno, and Summage, &c.
Carrack or Carrick.
CArrack, alias Carrick, is a Ship of burthen, and is so called of the Italian word Carico or Carco, which signifies a Burthen. This word is mentioned in the Statute, 1 Jac. c. 33.
Carue of Land.
CArue, or Carucate of land is a certain quantity of land by which the Subjects have been heretofore taxed: whereupon the Tribute so levied is called Caruage. Bract. l. 2. c. 16. num. 8. [Page 113] Lit. Sect. 119. saith, that Soca is the same with Caruca, sc. a Soke or Plow. Stow in his Annals. p. 251. hath these words; The same time H. the King took Caruage, that is to say, two Marks of Silver for every Knight's Fee, to the marriage of his sister Isabel to the Empereur. By which it seems there was raised of every Plow-land so much, and so consequently of every Knight's free two Marks of Silver. Rastal, in his Exposition of words, saith, that Caruage is to be quit, if the King shall tax all the Land by Plows, that is, a Priviledge by which a man is freed from Caruage.
Skene saith, that it contains as great a portion of land as may be eyred or tilled in a year and a day with one Plow; which also is called a Hild, or Hide of land.
Castellain.
CAstellain is a Keeper or Captain, sometimes called a Constable of a Castle. Bracton, l. 5. c. 2. cap. 16. In the same manner it is used an̄ 3 E. 1. c. 7. In the book of Feudis you shall find Guastaldus to be of like signification, but more large, because it is also extended to those that have the custody of the King's Mansion-houses, called Courts, notwithstanding they are not places of defence or force. [Page 114] Manwood part 1. of the Laws of the Forest, p. 113. saith, That there is an Officer of the Forest called Castellanus.
Castle-guard.
CAstle-guard is an Imposition laid upon such of the Kings subjects as dwell within a certain compass of any Castle, to the maintenance of such as watch and ward it. Mag. Chart. cap. 2. & an. 32 H. 8. ca. 48. It is sometimes used for the Circuit it self which is inhabited by such as arc subject to this Service. See Chivalry.
Casu consimili.
CAsu consimili is Writ of Entry, granted where the Tenant by courtesie, or Tenant for term of life or for the life of another, aliens in Fee, or in tail, or for the life of another. And it hath this name, because the Clerks of the Chaucery have framed it by their common consent like the Writ called in casu ꝓviso according to the authority given them by the Stat. of West. 2. cap. 24. which wills, That as often as it shall happen in Chancery, that in one case a Writ is found, and in the like case a remedy is wanting, the Clerks of the Chancery should agree to make a Writ, &c. And this Writ is granted to him in reversion against [Page 115] the party to whom the said Tenant so aliened to his prejudice, and in the life of the Tenant. See more of this, F. N. B. fol. 206.
Casu proviso.
CAsu proviso is given by the Stat, of Gloucester cap. 7. This Writ lies where Tenant in Dower aliens in Fee, or for life, or in tail, the Land which she holds in Dower; there he that hath the Reversion Fee, or in Tail, or for term of life, shall presently have this Writ against the Alienee, or him that is Tenant of the Free-hold of the Land, and that during the life of the Tenant in Dower. F. N. B. 205. n.
Catals.
CAtals or Chatels comprehend all Goods movable and immovable, except such as are in nature of Free-hold, or parcel of it, as may be collected out of Stamf. Praer. cap. 16. and anno 1 Eliz. cap. 2. Yet Kitch: fol. 32. saith, that Money is not to be accounted Goods or Catals, nor Hawks, nor Hounds, for they are ferae naturae. But it seems that Money is not a Chattel, because it is not in it self valuable, but rather in imagination than in Deed.
Catals are either real or personal. [Page 116] Catals real are either such as do not immediately appertain to the person, but to some other thing by way of dependance; as a Box with writings of Laud, the body of a Ward, the Apples upon the tree, or the Tree it self growing upon the ground. Crom. fol. 33. b. Or else such as are issuing out of some thing immovable to the person, as a Lease for Rent or term of years.
Personal may be so called in two respects. The one, because they belong immediately to the person of a man; as a Horse, &c. The other, because when they are wrongfully detained, we have no other means for their recovery but personal Actions.
The Civilians comprehend these things, and also Lands of all natures and tenures, under the word Goods, which are by them divided into Moveable and Immovable. See Bract. lib. 3. c. 3. num. 3, & 4.
Cepi corpus.
CEpi corpus is a Return made by the Sheriff, that, upon an Exigend or other Writ, he has taken the body of the party, F N. B. fol. 26.
Certificate.
CErtificate is a Writing made in some Court, to give notice to another Court of something [Page 117] done there; as a Certificate of the cause of Attaint is a transcript briefly made by the Clerks of the Crown, Clerks of the Peace, or Clerks of Assise, to the Court of Kings Bench, containing the tenor and effect of every Indictment, Outlawry, or Conviction, and Clerk attainted, made or declared in any other Court.
But note, that this Certificate ought to be made by him that is the immediate Officer to the Court; and therefore if the Commissary or Official of the Bishop certifie an Excommunication in bar of an action at the Common Law, this is not good, (as was resolved in Coke, lib. 8. fol. 68.) but such Excommunication ought to be certified by the Bishop himself. Yet the Certificate of an Excommunication by special Commissioners Delegates under their Common Seal was allowed, and held good enough in the Common-place. Dyer fol. 371. pla. 4.
Certification of Assise.
CErtification of Assise of Novel disseisin, &c. is a Writ awarded to re-examine or review a matter passed hy Assise before any Iustices; and is used when a man appears by his Bailiff to an assise brought by another, and loses the day, and having some other matter to [Page 118] plead farther for himself, as a Deed of Release, or &c. which the Bailiff did not plead, or might not plead for him, desires a better Examination of the Cause, either before the same or other Iustices, and obtains Letters Pa [...] ents, (see their form F. N. B. 181.) and then brings a Writ to the Sheriff to call the party for whom the Assise had passed, and also the Iury which was impannelled upon the same Assise, before the said Iustices, at a day and place certain.
And it is called a Certificate, because therein mention is made to the Sheriff, that upon the parties complaint of the defective Examination or doubts remaining yet upon the Assise passed, the King hath directed his Letters Patents to the Iustices for the better certifying of themselves, whether all the points of the said Assise were duly examined or not.
Certiorari.
CErtiorari is a Writ that lies where a man is impleaded in a base Court, that is of Record, and he purposes that he may not have equal Iustice there; then upon a Bill in the Chancery, comprising some matter of Conscience, he shall have this Writ to remove all the Record into the Chancery, there to be determined by Conscience, [Page 119] but if he prove not his Bill, then the other party shall have a Writ of Procedendo, to send again the Record into the base Court, and there to be determined. And it lies in many other cases, to remove Records for the King, as Indictments and others.
This Writ is also granted out of the Court of Kings Bench or Common Pleas to remove any Action thither out of Inferior Courts of Record; and so the Plaintiff must declare and proceed in the Superior Court.
Also to certifie original writs or proceedings out of any Courts of Record into the Kings Bench, where nullum tale Recordum is pleaded.
Also upon Writs of Error of a Iudgment in the Common Pleas, each party may have this Writ to bring any of the Proceedings into the Kings Bench upon alledging Diminution, as appears, Coke Entr. 232, 233, 242. 2 Cro. 131, & 479.
Cessavit.
CEssavit is a Writ that lies where my very Tenant holds of me certain Lands or Tenements, yielding certain Rent by the year, and the Rent is behind for two years, and no sufficient Distress may be found upon the Land; then I shall have this Writ, by which I shall [Page 120] recover the Land: But if the Tenant come into the Court before Iudgment given, and tender the Arrearges and Damages, and find Surety that he shall cease no more in payment of the said Rent, I shall be compelled to take the Arrerages and the Damages, and then the Tenant shall not lose the Land. The heir may not maintain this Writ for Cessure made in the time of his Ancestor: And it lies not but for Annual service, as Rent, and such other, and not for Homage and Fealty.
Also there is another Writ called Cessavit de cantaria, which lies where a man gives Land to a House of Religion, to find for the soul of him, his ancestors, and his heirs, yearly a Candle or Lamp in the Church, or to say Divine Service, feed the poor, or other Alms, or to do some other thing; then if the said Services be not done in two years, the Donor or his Heirs shall have this Writ against whosoever holds the things given after such Cessure. See the Statute W. 2. cap. 41.
Cession.
CEssion is, when an Ecclesiastical Person is created Bishop, or when a Parson of a Parsonage takes another Benefice without dispensation [Page 121] or otherwise not qualified, &c. In both cases their first Benefices are become void, and are said to become void by Cession. And to those that he had who was created Bishop the King shall present for that time, whosoever is Patron of them: And in the other case the Patron may present. See 41 E. 3. 5. & 11 H. 4. 37.
Cestuy a que vie, & cestuy a que use.
CEstuy a que vie, is he for whose life another holds an estate; and cestuy a que use is he who is a Feoffee for the use of another.
Challenge.
CHallenge is an Exception taken either against Persons or Things. Persons, as in an Assise the Iurors, or any one, or more of them; or in case of Felony, by the Prisoner at the Bar against Things, as a Declaration. Old. N. B. 76.
Challenge made to the Jurors is either made to the Array, or to the Polls. Challenge to the Array is, where Exception is taken to the whole number, as impannelled partially: Challenge to or by the Poll is, where Exception is taken to any one or more, as not indifferent. Challenge to the Iurors is also divided into challenge principal, [Page 122] and challenge for cause, that is, upon cause or reason. Challenge principal, or peremptory, is that which the Law allows without cause alledged, or Examination: as a Prisoner at the Bar, arraigned upon Felony, may peremptorily challenge to the number of twenty, one after another, of the Iury impanuelled upon him, not alledging any cause at all, but his own dislike, and they shall be discharged, and new put into their places: and this is in favor of life. But in the case of High Treason no peremptory challenge is allowed. See 25 H. 8. cap. 3. And a difference may be observed between challenge principal and challenge peremptory, because challenge peremptory seems only to be used in matters Criminal, and meerly without any cause alledged, more than only the Prisoner's fansie, Stamf. Pl. Cor. fol. 124. and principal for the most part in Civil Actions, and with the namning of some Exception, which being found true the Law presently allows. As for example, if any party saith that one of the Iurors is the Son, Brother, Cousin, or Tenant to the other party, or married to his daughter, this is a good and strong Exception, if it be true, without farther examination of the credit of the party challenged. And of how large extent this Challenge of Kindred is, does well appear [Page 123] in Plow. fol. 425. Also in the Plea of the death of any man, and in every Action real, and also in every Action personal, where the debt or damages amounts to 40 marks, it is a good challenge to any of the Iury impanelled, That he cannot dispend forty shillings by the year of his own Free-hold, An. 11 H. 7. cap. 21.
Challenge upon reason or cause is, when the party alledges any such Exception against one or more of the Iurors, which is not forthwith sufficient upon acknowledgment of the truth, thereof, but rather arbitrable, and consiverable by the rest of the Iurors; as if the son of the Iuror had married the daughter of the adverse party. This Challenge by cause seems to be termed by Kitch. fo. 92. Challenge for favor; or rather Challenge for favor is there said to be a Species of Challenge by cause: Where you may also read what Challenges are commonly accounted for principal, and what not.
Chamberdekins.
CHamberdekins are Irish Beggars, which by the Statute of 1 H. 5. c. 8. were by a certain time, within the said Statute limited, to avoid this Land.
Champertie.
CHampertie is a Writ that lies where two men are impleading, and one gives the half or part of a thing in plea to a stranger, to maintain him against the other; then the party grieved shall have this Writ against the stranger. And it seems that this hath been an ancient grievance in our Realm: For notwithstanding divers Statutes, and a form of a Writ framed unto them, yet Anno 4 E. 3. c. 11. it was enacted That where the former Statutes provided redresse for this only in the King's Bench, which then followed the Court; it should be lawful for the Iustices of the Common Pleas likewise and Iustices of Assise in their Circuits, to enquire, hear and determine these and such cases, as well at the Kings Suit, as at the Suit of the party. Also it was ordained by the Statute of 33 H. 8. (which was confirmed by the Statute of 37 H. 8. c. 7.) That Iustices of Peace at their Quarter Sessions should have authority to enquire, as well by the Oaths of 12 men, as by the information given to them by any person or persons, of the defaults, contempts and offences committed against the Laws and Statutes made and provided touching Champerty, Maintenance, [Page 125] &c. and to hear and determine the said faults and offences.
Champertors are they that move Pleas and Suits, or cause to be moved by their own or oothers procurement, and sue them at their own costs, to have part of the Lands or gains in variance. See the Stat. Articuli suꝑ chartas, c. 11.
Chance-medley.
CHance medley is, when a man without any evil intent doth a lawful thing, or that is not prohibited by Law, and yet another is slain or comes to his death thereby: as if a man casts a stone, which hits a man or woman, who after dies thereof; or if a man shoots an arrow, and another that passes by is killed, and such like; this manner of killing is Man-slaughter by misadventure, or Chance-medley, for which the offendor shall have his pardon of course, as appears by the Statute of 6 E. 1. c. 9. and he shall forfeit his goods in such manner as he that kills a man in his own defence. But in this case it is to be considered, whether he that commits this Man-slaughter by Chance-medley was in doing a lawfull thing: for if the act was unlawfull, as to fight at Barriers, or run at Tilt without the Kings commandment, or cast stones in a High-way where men usually pass, or shoot arrows in a Market-place, [Page 126] or such like, whereby a man is killed; in all these cases it is Felony at least, that is, Manssaughter, if not Murther; for the Offendor being doing an unlawful act of his own will, the Law shall construe his meaning and will herein by the success of the act.
As if two are fighting together, and a third man comes to part them, and is killed by one of the two, without any malice forethought, or evil intent in him that killed the man, yet this is Murther in him, and not Man-slaughter by Chance-medley or Misadventure, because they two that fought together were in doing an unlawful act. And if they were met with prepensed malice, the one intending to kill the other, then it is Murther in them both.
Chancery.
CHancery is a Court of Law at Westminster for Suits for and against Attorneys, Clerks, and Officers of this Court, this part of it and also the intelments of Deeds, & Patents, is of Record. And there is also a Court for Equity, and their proceedings therein are entred in English, and the Lord Chancellor, or Keeper of the great Seal, and Master of the Rolls are Iudges, and the Writs are returnable there Coram Rege in Cancellaria. Co. 4. Instit. 78.
Chapiter.
CHapiter is a Summary or content of all such matters as are enquirable before Iustices in Eyre, Iustices of Assise, or of the Peace in their Sessions: so it is used 3 E. 1. c. 27. in these words, And that no Clerk of any Iustice, Escheator, or Commissioner in Eyre, shall take any thing for delivery of Chapiters, but only Clerks of Iustices in their Circuits; and likewise 13 E. 1. c. 10. in these words, And when the time comes, the Sheriff shall certifie the Chapiters before the Iustices in Eyre how many Writs he hath. Also Britton uses it in the same signification, cap. 3. And at this day Chapiters are called Articles, for the most part, and are delivered as well by the mouth of the Iustice in his Charge, as by the Clerks in writing, to the Enquest, where in ancient time they were (after an Exhortation given by the Iustices, for the observation of the Laws of the Kings peace) first read distinctly and openly in the full Court, and then delivered in writing to the grand Enquest. An example of these Chapiters there is in the Book of Assises fol. 138. pla. 44.
Chaplain.
CHaplain is he that performs Divine Service in a Chappel, and therefore is commonly used for him that depends upon the King or other man of worth, for the instruction of him and his Family, the reading of Prayers, and Preaching in his private house, where usually they have a Chappel for that purpose.
And for that they are retained by Letters under the Seal of their Patron, and thereby by intendment are to be resident with them, the Law hath given liberty for their Non-residency upon their Benefices.
If an Earl or Baron retains a Chaplain, and before his advancement is attainted of Treason, there the Retainer is determined, and after the Attainder such Chaplain cannot take a second Benefice, because he that is attainted is by his Attainder a dead person in Law. What and how many Chaplains Noblemen and others may respectively retain, the Statute of 21 H. 8. c. 3. doth well declare.
The wife of a Baron during the Coverture cannot retain a Chaplain; yet when a Baronnesse Dowager retains one or two, according to the Proviso of the said Statute, the Retainer is the principal matter, [Page 129] and as long as the Retainer is in force, and the Baronness continues a Baronness, the Chaplains may well take two Benefices by the express letter of the Statute; for it suffices, if at the time of the Retainer the Baronness were a widow. And herein this rule is to be observed of a woman that attains Nobility by Marriage, as by marriage of a Duke, Earl, or Baron, &c. for in such case, if she afterward marry under the degree of Nobility, by such Marriage she loses the Dignity she had attained, and after such latter Marriage the power to retain a Chaplain is determined. But otherwise it is where a woman is Noble by Discent, for there her Retainer before or after the Marriage with one that is not Noble shall be in force, and is not countermanded by the Marriage, nor determined by her taking a Husband under her degree. Coke lib 4. fol. 118, 119.
Chapter.
CHapter in Latine is defined to be An Assembly of Clerks in a Church-Cathedral, conventual, regular, or Collegiate; and in another signification, A place wherein the members of that Community treat of their common affairs: and it hath other significations which appertain not to our purpose. It may be said [Page 130] that this Collegiate company is termed Chapter metaphorically, the word originally implying a little head; for this Company or Corporation is as a Head, not only to rule and govern the Diocesse in the vacation of the Bishoprick, but also in many things to advise the Bishop when the See is full.
Charge.
CHarge is where a man grants a Rent issuing out of his land, and that, if the Rent be behind, it shall be lawfull for him, his heirs and assigns, to distrain till the Rent be paid: this is called a Rent-charge. But if one grant a Rent-charge out of the land of another, though after he purchase the land, yet the Grant is void.
Charter land.
CHarter-land is such as a man holds by Charter, that is, by Evidence in writing, which otherwise is called Free-hold, Copyhold-lands before the Conquest were by the Saxons called Folkland, and the Charter-lands Bockland. And Lambert in the Explication of Saxon words, saith, That this land was held with more easie and commodious conditions then Folkland and Copyhold-land held without writing: And [Page 131] his reason is, because it is a free and absolute Inheritance; whereas land without writing is charged with payment and bondage; so that for the most part Noblemen and persons of Quality possess the former, and Rusticks the other. The first we call Free-hold and by Charter; the other, Land at the will of the Lord.
If a Riot, Rout, or Vnlawful assembly be committed, then by the Statute of 19 H. 7. c. 13. twenty men inhabiting within the County where the Riot, &c. is made (whereof every of them shall have lands and tenements within the same County to the yearly value of twenty shillings of Charter-hold or Free-hold, or twenty six shillings of Copyhold) shall make enquiry thereof.
Charter-party.
CHarter-party is an Indenture of Covenants and Agreements made between Merchants or Mariners concerning their Sea-affairs: and of this you may read in the Statute, now out of use, made 32 H. 8. cap. 14.
Charters.
CHarters of Lands are Writings, Deeds, Evidences, and Instruments, made from one [Page 132] man to another, upon some Estate conveyed or passed between them of Lands or Tenements, shewing the names, place, and quantity of the Land, the Estate, time, and manner of the doing thereof, the Parties to the Estate, delivered and taken, the Witnesses present at the same, with other circumstances.
Chartis reddendis.
CHartis reddendis is a Writ which lies against him that has Charters of Feoffment delivered him to be kept, and refuses to deliver them. Old Nat. Brev. fol. 66. Reg. orig. fol. 159.
Chase.
CHase is taken two wayes: first, to drive cattel, as to chase a Distress to a Castle; secondly, for a Receit for Deer and Beasts of the Forest: and it is of a middle nature between a Forest and a Park, being commonly less then a Forest, and not endued with so many Liberties, as with Courts of Attachment, Swainmore, and Justice seat; and yet of a larger compass, and having greater diversity of Keepers and Game then a Park. Crompt. in his Book of Iurisdictions, fol. 148. saith, That a Forest may not be in the hands of a [Page 133] Subject, but it presently looses the name, and becomes a Chase; and yet fol. 197. he saith, That a subject may be Lord and owner of a Forest; which though they seem contradictory, yet are both his sayings in some sense true: For the King may give or alienate a Forest to a Subject, yet so, that when it is once in the Subject, it loses the true property of a Forest, because the Courts of Swainmote, Justice seat and Attachment, presently vanish, none being able to make a Lord chief Iustice in Eyre of the Forest but the King, as Manwood hath well shewed, as his Book of Forest Laws, cap. 3. & 4. Yet it may be granted in such large manner, that there may be Attachment and Swainmote, and a Court equivalent to a Justice Seat, as appears by him in the same Chapter, numb. 3. So that a Chase differs from a Forest in this, because it may be in the hands of a Subject, which a Forest in its proper nature cannot be; and from a Park in this, that it is not inclosed, and hath not only a larger compasse, and more store of Game, but of Keepers also and Overseers. See Forest.
Chatels.
CHatels. See Catals.
Chauntry.
CHauntry is a Church or Chappel indued with lands or other yearly revenues for the maintenance of one or more Priests, to sing Mass daily for the Souls of the Donors, and such others as they appoint. And of these you may read in the Statutes made 37 H. 8. c. 4. & 1 E. 6. cap. 14.
Chevage.
CHevage is a summe of money paid by Villains to their Lords in acknowledgement of their Slavery, which Bracton lib. 1. cap. 10. thus defines; Chevagium dicitur recognitio in signum subjectionis & dominil de capre suo. It seems also to be used for a sum of money given by one man to another of power and might for his avowment, maintenance and protection, as to their head and Leader. Lambert writes it Chivage, or rather Chiefage.
Chievisance.
CHevisance comes from the French word Chevir, that is, to come to the end or Head of a business. And because the perfecting of a Bargaine is the drawing of the matter to the [Page 135] head, this word Chevisance is used for Bargaining in the Statutes of 37 H. 8. cap. 9. & 13 Eliz cap. 7, & 8.
Childwit.
CHildwit, that is, that you may take a Fine of your Bondwoman, defiled and gotten with Child without your licence.
Chimin.
CHimin is the High-way where every man goes, which is called Via Regia; and yet the King hath no other thing there but the passage for him and his people; for the Free-hold is in the Lord of the Soile, and the Profits growing there, as Trees and other things. And it is divided into two sorts, the King's way, of which is spoken before, and a private Way, or private Passage; and this is the Way by which one man or more have liberty to pass, either by prescription, or by writing, through the land of another: And this is divided into a way in gross, and a Way appendant, Kitch. fol. 177. Chimin in gross is that Way which a man holds principally and solely in it self: Chimin appendant is that which a man hath adjoyned to some other thing, as appertaining [Page 136] thereunto; for example, if a man hires a Close or Pasture, and hath a Covenant for ingress and egress, to and from the said Close, through the ground of some other, through which otherwise he might not pass. Or a Way in gross may he that which the Civilians call Personal; as when one covenants for a Way through the ground of another man for himself and his heirs: A way appendant on the other side, may be that which they call Real, as when a man purchases a Way through the ground of another man, for such as do or shall dwe [...] in this or that house, or that are the owners of such a Manor, for ever.
Chiminage.
CHiminage is a Toll paid for a mans passage through a Forest, to the disquiet of the wild beasts of the Forest.
Chirographer.
CHirographer is he that in the Common-Bench-Office, ingrosses Fines acknowledged in that Court into a perpetual Record, (after they are acknowledged and fully passed by those Officers by whom they are first examined) and that writes and delivers the Indentures, one for the Buyer, and another for [Page 137] him that sells, and makes another indented piece, containing also the effect of the Fine, which he delivers over to the Custos Brevium, which is called the Foot of the Fine. The Chirographer also, or his Deputy, proclaims all the Fines in the Court every Term, according to the Statutes, and then repairing to the Office of the Custos Brevium, there endorses the Proclamations upon the backside of the Foot thereof, and always keeps the Writ of Covenant, as also the Note of the Fine.
Chivage.
CHivage. See Chevage.
Chivalrie.
CHivalrie is a Tenure of land by Knights service: for the better understanding whereof it is to be known, that there is no land but is held mediately or immediately of the Crown by some Service or other; and therefore all our Free-holds that are to us and our heirs are called Fees, as proceeding from the bounty of the King for some small yearly Rent, and the performance of such services as originally were imposed upon the Land at the githing [Page 138] thereof: For as the King gave to his Nobles, his immediate Tenants, great possessions for ever, to hold of him for such or such Rent and Service; so they again in time parcelled out, to such as pleased them, their Lands so received of the Kings bounty, for such Rents and Services as to them seemed good. And the Services are all by Littleton divided into two sorts, Chivalry and Socage: the one material and military; the other clownish and rustical.
Chivalry therefore is a Tenure whereby the Tenant is bound to perform some Noble or Military Office to his Lord; and is of two kinds, either Regal, that is, such as may be held onely of the King, or such as may also be held of a common person as well as of the King, That which may be held onely of the King, is properly called S [...] rvitium or Sergeantia, and is also again divided into Grand and Petit Serjeanty Grand Serjeanty is that, where a man holds lands of the King by service which he ought to do in his own person, as to carry the Kings Banner or his Spear, to lead his Army, to be his Marshal, to blow a Horn when he sees his enemies invade the Land, or to find an armed man to fight within the four Seas, or to do it himself, [Page 139] or to carry the Kings Sword before him at his Coronation, or at that day to be his Sewer. Carver, Butler, or Chamverlain.
Petit Serjeanty is, where a man holds land of the King to pay him yearly a Bow, a Sword, a Dagger, a Knife, a Spear, a pair of Gloves of maile, a pair of Spurs of Gold, or to give such other small things concerning the War.
Chivalrie that may hold of a common person as well as of the King is called Escuage, Service of the shield; and this is either uncertain, or certain. Escurage uncertain is also of two kinds; first, where the Tenant 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 costs so many dayes as were agreed upon between the Lord and his Tenant at the granting of the Fee. And the dayes of such service seem to have been rated by the quantity of the land so held: as if it extends to a whole Knight's Fee, then the Tenant was bound so to attend his Lord 40 days; and a Knight's fee was so much land as in those days was accounted a sufficient living for a Knight, and this was 680 acres, by the opinion of some, or eight hundred, as others think; or fifteen pounds by the year. Cambden's [Page 140] Brit. fol. 110. If the land extends but to the moiety of a Knight's fee, then the Tenant is bound to follow his Lord but 20 days; if a fourth part, then 10 days. Fitzh. Nat. Brev fol. 83. c. & 84. c e. The other kind of Escuage uncertain is called Castleward, where the Tenant by his land is bound, either by himself or some other, to defend a Castle as often as it shall come to his turn.
Escuage certain is, where the Tenant is assessed to a certain summe of money to be paid instead of such uncertain service; as that a man shall pay yearly for a Knights Fee 20 shillings, for the half 10 shillings, or any such rate. And this Service, because it is drawn to a certain Rent, comes to be of a mixt nature, not meerly Socage, for it smells not of the Plow; and yet Socage in effect, being now neither personal service, nor incertain. Chivalry hath other conditions annexed thereunto: as Homage, Fealty, Wardship, Relief, and Marriage, Bract. l. 2. c. 35. and what they signifie see in their several places. Chivalry is either general, or special, Dyer fol. 161. plac. 47. General seems to be, where it is only said in the Feoffment, that the Tenant holds by Knights Service, without any specification of Sergeanty, Escuage, &c. Special is that which is declared particularly what kind of [Page 141] Knights service he holds by. See the Statute 12 Car. 2. c. 24
Thing in Action.
THing in Action is, when a man hath cause, or may bring an Action for some duty due to him; as an Action of Debt upon an Obligation, Annuity, or Rent, Action of Covenant, or Ward, Trespasse of goods taken away, Beating, or such like: and because they are things whereof a man is not possessed, but for recovery of them is driven to his Action, they are called Things in Action. And those Things in Action that are certain, the King may grant, and the Grantee may have an Action for them in his own name only: But a common person cannot grant his Thing in Action, nor the King himself his Thing in Action, which is uncertain, as Trespass, and such like.
But of late times it is used in London, that Merchants and others there, who have Bills without Seals for payment of Money assign them to others, who bring actions in their own names.
Churchesset.
CHurchesset is a word whereof Flet. l. 1. c. 47. in the end thus writes: It signifies a certain Measure of Wheat, which in times past every man on St. Martins day gave to Holy Church, as well in the time of the Britains as of the English. Yet many great persons, after the coming of the Romans, gave that Contribution, according to the ancient Law of Moses, in the name of the First-fruits, as in the Work of King Kanutus sent unto the Pope is contained; in which they call the Contribution Chirchsed, as one would say, Church-seed.
Church-wardens.
CHurch-wardens are Officers yearly chosen by the consent of the Minister and the Parishioners, according to the custom of every several place, to see to the Church, Church-yard, and such things as belong to both, and to observe the behaviour of the Parishioners, for such crimes as appertain to the jurisdiction or censure of the Ecclesiastical Court. These are a kind of Corporation, and are enabled by Law to sue for any thing belonging to their Church, or the Poor of the Parish. See Lambert's Duty of Church-wardens.
Cinque Port.
CInque Port are five Haven-towns, that is, Hastings, Romney, Hythe, Dover, and Sandwich, to which have been granted long time since many Liverties (which other Port-towns haue not,) and that first in the time of King Edward the Confessor; which have been increased since, and that chiefly in the days of the three Edwards, the first, the second, and third, as appears in Dooms-day book, and other old Monuments, too long to recite.
Circuity of Action.
CIrcuity of Action is, when an Action is rightfully brought for a Duty, but yet about the bush, as it were, for that it might as well have been otherwise answered and determined, and the Suit saved: and because the same Action was more then needful, it is called Circuity of Action. As if a man grant a Rent-charge of x.li. out of his Mannor of Dale, and after the Grantee disseises the Grantor of the same Manor, and he brings an Assise, and recovers the land, and xxli. damages, which xx.li. being paid, the Grantee of the Rent sues his Action for x.li. of his Rent due during the time of the Disseisin, [Page 144] which if no Disseisin had been he must have had: This is called Circuity of Action, because it might have been more shortly answered; for whereas the Grantor shall receive xx.li. damages, and pay x.li. Rent, he may haue received but the x.li. only for the damages, and the Grantee might have cut off and kept back the other x.li. in his hands, by way of deteiner for his Rent, and so thereby might have saved his Action.
Circumstantibus.
CIrcumstantibus is a word of Art, signifying the Supply and making up the number of Iurors, if any impannelled do not appear, or are challenged by either party, by adding to them as many others of those that are present and standers by. See 35 H. 8. c. 6. & 5 El. c. 25.
City.
CIty is such a Town corporate as hath a Bishop and a Cathedral Church, whereof such words are found: The same place is called Urbs, Civitas, and Oppidum. It is called Civitas in regard it is governed in justice and order of Magistracy; Oppidum for that there are therein great plenty of Inhabitants; and Urbs, because it is in due form begirt about with Walls. But that place [Page 145] is commonly called Civitas which hath a Bishop. Yet Crompton in his Jurisdictions reckons up all the Cities, and leaves out Ely, although it hath a Bishop and a Cathedral Church, and puts in Westminster, notwithstanding it now hath no Bishop. And 35 El. 6. Westminster is called a City: and Anno 27 ejusd. c. 5 (of Statutes not printed) Westminster is alternative called a City or Borough. It appears by the Stat. 35 H. 8. c. 10. that then there was a Bishop of Westm. Cassanaeus writes, that France hath within its Territories 104 Cities, and gives this reason, because there are so many Sees of Archbishops and Bishops.
Clack.
CLack, as to clack, force, and bard wool, 8 H 6. cap. 22. whereof the first, viz. to Clack wool is, to cut off the mark of the Sheep, which makes it to weigh lesse, and so to pay the less Custome to the King: To Force wool is, to clip the upper and most hairy part of it: To Bard or beard wool is, to cut the head and neck from the other part of the Fleece.
Claim.
CLaim is a Challenge by any man of the property or ownership of a thing which he [Page 146] hath not in possession, but is withholden from him wrongfully: and the party that so makes this Claim shall have thereby a great advantage; for by it, in some cases, he may avoid a Discent of lands; and by it, in other cases, he may save his Title, which otherwise should be lost. As if a man be disseised, and the Disseisee makes a Continual claim, that is, if he claim the lands whereof he is disseised within the year and day before the death of the Disseisor, then may he enter, notwithstanding the Discent.
Also, if a Fine be levied of another mans Land, then he that hath right thereunto ought to make his Claim within five years after the Proclamation had, made, or certified, by the Statute of 4 Hen. 7. cap 24. But a Stranger that hath no right cannot of his own head enter, or make Claim in the name of him that hath right to avoid the Fine within the five years, without commandment precedent or assent subsequent: yet Gardian for education, or in Socage, may enter or make Claim in the name of the Infant that hath right to enter or make Claim; and this shall help the estate of the Infant, without commandment or assent, for there is privity between them.
Claim of Libertie.
Is a Suit or Petition to the King, in the Court of Exchequer to have Liberties and Franchises confirmed there by the Kings Attorney General, Co. Ent. 93.
Clergie.
CLergie is taken divers wayes; sometimes for the whole number of Religious men, sometimes for a Plea to an Indictment or Appeal: and is defined to be an ancient Liberty of the Church, confirmed in divers Parliaments. And it is, when a man is arraigned of Felony, or such like, before a temporal Iudge, &c. and the prisoner prayes his Clergy, that is, to have his Book, which in ancient time was as much as if he desired to be dismissed from the temporal Iudge, and to be d [...]livered to the Ordinary to purge himself of the same offence. And then the Iudge shall command the Ordinary to trie if he can read as a Clerke, in such a Book and place as the Iudge shall appoint. And if the Ordinary certifie the Iudge that he can, then the prisoner shall not have judgment to lose his life. But this Libertie of the Clergie is restrained by the Statute of 8 El. c. 4. an. 14 ejusd. c. 5. an. 18 ejusd. c. 4, 6, 7. & 23 ejusd. cap. 2. & 29. ejusd. cap. 2 & [Page 148] 31 ejusd. cap. 12. & 39 ejusd. cap. 9, & 15. See Crompt. Just. of Peace, fo. 102, &c. and Stamf. lib. 2. cap. 41. and the Stat. of 18 Eliz. cap. 7. by which Clerks are not to be delivered to their Ordinaries to be purged, but now every man, though not within Orders, is put to read at the Bar, being found guilty, and convicted of such Felony, for which this benefit is still granted, and so burned in the hand, and set free the first time, if the Ordinary's Comissary or Deputy saith, He readeth as a Clerk; or otherwise he suffers death for his transgression.
Clerk.
CLerk hath two significations, one as it is the title of him that belongs to the holy Ministery of the Church, that is, in these dayes, either Minister or Deacon of what other degree or dignity soever; although that in ancient time not only Sacerdotes and Diaconi, but also Subdiaconi, Can [...] ores, Acoluthi, Exorcistae and Ostiarii were within this account, as they are at this day where the Canon Law hath full power. And in this signification a Clerk is either Religious, (otherwise called Regular) or Secular. 4 H. 4. cap. 12.
The other signification of this word denotes such as by their function or course of life use their pen in any Court, or otherwise; as namely the Clerk of the [Page 149] Rolls of Parliament, Clerks of the Chancery, and such like.
Clerico admittendo.
CLerico admittendo is a Writ directed to the Bishop for the admitting a Clerk to a Benefice upon a Ne admittas tried and found for the party that procures the Writ. Beg. orig. f. 31.
Clerk Attaint.
CLerk attaint is he who prayes his Clergy after judgment given upon him of the Felony, and hath his Clergy allowed; such a Clerk might not make his Purgation.
Clerk convict.
CLerk convict is he who prayes his Clergy before judgment given upon him of the Felony, and hath his Clergy granted, such a Clerk might make his Purgation. Note, that this Purgation was made when he was dismissed to the Ordinary, there to be tried by the enquest of Clerks: and therefore now by the Stat. of 18 Eliz. cap. 7. no such is put to the Ordinary.
Closh.
CLosh is an unlawfull Game forbidden by the Statute made in the 17 year of E. cap. 4. [Page 150] and it is inhibited also by the Statute of 33 H. 8. cap. 9. But there it is more properly called Clash; for it is the throwing of a Bowl at nine Pins of wood or nine shank-bones of an Oxe or Horse: and it is now ordinarily called Kailes, or Nine-pins.
Coadjutor.
COadjutor to the Disseisin is he who with another disseises one of his Free-hold to the use of the other, and he shall be punished as a Disseisor; but he is not such a Disseisor who gaines the Freehold, but the Free-hold vests and is wholly in him to whose use the Disseisin was committed, as appears in Littleton. l. 3. cap. 3 of Jointenants.
Cocket.
COcket is a Seal pertaining to the King's Custome-house, and it signifies also a Scrowl of Parchment, sealed and delivered by the Officers of the Custome-house to Merchants, as a Warrant that their merchandize are customed. This word is used in the old Statutes now expired, of 14 E. 3. Stat. 1. c. 21. & 11 H. 6. cap. 16.
Codicil.
COdicil is the Will or Testament of a man concerning that which he would have done after his death without the appointing of an Executor. Or it is an addition or supplement added unto a Will or Testament after the finishing of it, for the supply of something which the Testator had forgotten, or to help some defect in the Will. Of this you may read more in Swinbourn's Wills and Testaments, part. 1. Sect. 5. num. 2, 3, &c.
Coin.
COin is a word collective, which contains in it all manner of the several stamps & pourtraitures of Money. And this is one of the Royal Prerogatives belonging to every Prince, that he alone in his own Dominions may order & dispose the quantity, and fashions of his Coin. And though this is the sinew of all traffick and commerce, yet the Coin of one King is not currant in the Realms of another King, commonly, unless at great loss.
If a man binds himself to pay an hundred pounds of lawfull Money of England to another, and at the day of payment some of the money chances to be [Page 152] Spanish or French Coin, there the Obligation is well performed, if those Coins are by Proclamation made currant money of England: For the King by his absolute Prerogative may make any forein Coin lawful money of England at his pleasure by his Proclamation. In case where a man is to pay Rent to his Lessor upon condition of Re-entry, and the Lessee pays the Rent to the Lessor, and he receives it, and puts it in his purse, and afterwards upon review of it at the same time he finds that he hath received some counterfeit pieces, aud thereupon refuses to take away the Money, but re-enters for the Condition broken; there his Entry is not lawful, for when he hath accepted the Money, this was at his peril, and after this allowance he shall not take exception to any of it.
Collateral.
COllateral is that which comes in, or adheres to the side of any thing; as Collateral Assurance is that which is made over and beside the Deed it self: For example, if a man covenants with another, and enters Bond for the performance, the Bond is called Collateral Assurance, because it is external, and without the nature and essence of the Covenant. And [Page 153] Crompton, fol. 185. saith, that to be subject to feeding the Kings Deer is collateral to the soil within the Forest. In like manner we may say, that the liberty to pitch Sheds or Standing for a Fair in the soil of another man is collateral to the land. The private Woods of a common person within the Forest cannot be cut down without the Kings license, for it is a Prerogative collateral to the soil. Man. part. 1. pag. 66. Collateral Warranty; See tit. Warrantie.
Collation.
COllation is properly the bestowing of a Benefice by the Bishop, that hath it in his own Gift or Patronage; and differs from Institution in this, for that Institution into a Benefice is performed by the Bishop at the motion and Presentation of another, who is Patron of the same Church, or hath the Patrons right for that time: Yet Collation is used for Presentation in 25 E. 3. Stat. 6. and there is a Writ in the Regist. 31. b. called De Collatione facta uni post mortem alterius &c. directed by the Iustices of the Common Pleas, commanding them to direct their Writ to the Bishop, for the admitting a Clerk in the place of another presented by the King, who during the Suit between the King [Page 154] and the Bishops Clerk deceased; for judgment once passed for the Kings Clerk, and he dying before he be admitted, the King may give his Presentation to another.
Collusion.
COllusion is, where an action is brought against another by his own agreement, if the Plaintiff recover, then such Recovery is called by Collusion. And in some cases the Collusion shall be enquired of, as in Quare impedit, and Assise, and such like, which any Corporation or Body politick brings against another, to the intent to have the Land or Advowson whereof the Writ is brought in Mortmain. But in Avowry, nor in any Action personal, the Collusion shall not be inquired. See the Stat. of Westm. 2. c. 32. which gives the Quale jus and enquiry in such cases.
Colour.
COlour is feigned matter, which the Defendant or Tenant uses in his barre when an Action of Trespass or an Assise is brought against him, in which he gives the Demandant or Plaintiff a Shew at first sight that he hath good cause of Action, where in truth it is no just cause, but only a Colour [Page 155] and Face of a cause: and it is used to the intent that the determination of the Action should be by the Iudges, and not by an ignorant Iury of twelve men. And therefore a Colour ought to be a matter in Law doubtfull to the common people. As for example, A. brings and Assise of land against B. and B. saith he himself did let the same land to one C. for term of life, and afterward did grant the Reversion to A. the Demandant, and after C. the Tenant for term of life died, after whose decease, A. the Demandant, claiming the Reversion by force of the Grant, (whereto C. the Tenant for life did never atturn) entred, upon whom B. entred, against whom A. for that Entry brings this Assise, &c. This is a good Colour, because the common people think the land will pass by the Grant without Atturnment, where indeed it will not pass, &c.
Also in an Action of Trespass Colour must be given, of which there are an infinite number, one forexample: In an Action of Trespass for taking away the Plaintiffs Beasts, the Defendant saith, that before the Plaintiff had any thing in them, he himself was possessed of them as of his proper goods, and delivered them to A. B. to deliver them to him again when, &c. and A. B. gave them unto the Plaintiff, and the Plaintiff supposing the property to be in A. B. at the time of the gift, took [Page 156] them and and the Defendant took them from the Plaintiff, whereupon the Plaintiff brings an Action: that is a good Colour, and a good Plea. See more hereof in Doctor and Student l. 2. c. 13.
Colour is for this cause viz. where the Defendant justifies by title in trespass or Assize, if he do not give the Plaintiff Colour, his plea amounteth only to not guilty, for if the Defendant hath title he is not guilty 1 Co. 79. 108.
Colour of Office.
COlour of Office is always taken in the worst part, and signifies an act evilly done by the countenance of an Office, and it bears a dissembling face of the right of the Office, whereas the Office is but a vail to the falshood, and the thing is grounded upon vice, and the Office is as a shadow to it. But by reason of the Office, and by virtute of the Office, are taken always in the best part, and where the Office is the just cause of the thing, and the thing is pursuing the Office, Plo. in Dive & Man. case, sol. 64. a.
Combat.
COmbat, in our ancient Law, was a formal Trial of a doubtful Cause or quarrel by the Sword or Bastons of two Champions. See Glanvile l. 14. c. 1. Britton c. 22. and Dyer fol. 301. num. 41.
Commandment.
COmmandment is taken in divers significations: sometimes for the Commandment of the King, when by his mere motion and from his own mouth he casts any man into prison, Stamf. Plac. Coron. fol. 72. or of the Iustices: And this Commandment of the Iustices is either absolute or ordinary. Absolute, as when upon their own authority, or wisdom and discretion, they commit any man to prison for a punishment. Ordinary is, when they commit one rather to be safely kept, then for punishmenr; and a man committed by such ordinary Commandment is bailable, Placit. Cor. fol. 73. Commandment is again used for the offence of him that wills another man to transgresse the Law, or to do any such thing as is contrary to the Law, as Murther, Theft, or such like, Bract. l. 3. tract. 2. c. 19. The Civilians call this Commandment, Angelus de maleficiis.
Commendrie.
COmmandrie was the name of a Manor or chief Messuage, with which Lands or Tenements were used belonging to the late Priory of S. John of Jerusalem, untill they were given to King Henry the eighth by Statute made in the 32 year of his reign. And he who had the Government of any such Manor or House was called the Commander, who had nothing to do to dispose of it, but to the use of the Priory, and to have only his sustenance from it according to his degree, which was usually a Brother of the same Priory, who had been made Knight in the Wars against Infidels; and they were lately called Knights of the Rhodes, or Knights of Malta, of the places where their grand Master did dwell. See the said Statute, and the old Statute intituled De Templariis, whose decay was, a great increase of this Order. And many of these Commandries are called in the Country by the name of Temple.
Commandam.
COmmendam is a Benefice that, being void, is commended to the care of some sufficient Clerk, to be supplied untill it may be conveniently provided of a Pastor. And the true [Page 159] original of these Commendams was either evident profit, or necessity. He to whom the Church is commended hath the fruits and profits thereof only for a certain time, and the nature of the Church is not changed thereby, but is as a thing deposited in the hands of him to whom it is commended, who hath nothing but the Custody thereof, which may be revoked.
Commissary.
COmmissary is a title of Ecclesiastical Iurisdiction, appertaining to him that exercises Spiritual Iurisdiction in places of the Diocess so far distant from the chief City, that the Chancellor cannot call the Subjects to the Bishop's principal Consistory without their great trouble. This Commissary is called by the Canonists Commissary, or Officialis foraneus; and is ordained to this special end, that he should supply the Office and Iurisdiction of the Bishop in the out-places of the Diocess, or in such Parishes as are peculiars to the Bishop and exempted from the Archdeacon's Iurisdiction: for where by prescription, or by composition, there are Archdeacons; who have Iurisdiction in their Archdeaconries, as in most places they have, there this Commissary is superfluous, and rather to the prejudice then good of the people.
Commission.
COmmission is as much in the Common Law as the word Delegate in the Civil, and is taken for the Warrant or Letters Patents which all men, using Iurisdiction, either ordinary or extraordinary, have for their power to hear or determine any matter or action. Yet this word sometimes extends more largely then to matters of Iudgement; as the Commission of Purveyors or Cakers, 11 H. 4. c. 28. But with this Epithete High, it is most commonly used for the High-Commission Court, instituted and founded upon the Stat. of 1 Eliz. c. 1. for the ordering and reforming of all offences in any thing appertaining to the Iurisdiction Ecclesiastical, but especially such as are of highest nature, or at least require greater puishment then the ordinary Iurisdiction call afford. See the Statutes 17 Car. 1. c. 11. and 13 Car. 2. c. 12. by which the said Court is wholly abolished.
Commission of Rebellion.
Com̄ission of Rebellion, otherwise called a Writ of Rebellion, is used when a man after Proclamation made by the Sheriff, upon an Order or Process of the Chancery, under penalty [Page 161] of Allegeance to present himself to the Court by a day certain, appears not. And this Commission is directed by way of command to certain persons, to the end they, three, two, or one of them, shall apprehend or cause to be apprehended the party, as a Rebell and contemner of the Kings Laws, in what place s [...] ever they shall find him within the Kingdom, and bring or cause him to be brought to the Court upon a day therein assigned.
Committee.
COmmittee is he or they to whom the consideration or ordering of any matter is referred, either by some Court, or consent of the parties to whom it appertains: as in Parliament a Bill being read, is either consented unto and passed, or denied, and referred to the consideration of some certain man appointed by the House, who hereupon are called a Committee. But this word is otherwise used by Kitchen. f. 160. where the widdow of the Kings Tenant 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.
COmmon is the right that a man hath to put his Beasts to Pasture, or to use the ground that is not his own.
And note that there are divers Commons, that is, Common in grosse, Common appendant, Cō mon appurtenant, and Common because of neighbourhood.
Common in Gross is, where I, by my Deed, grant to another that he shall have Common in my Land.
Common appendant is, where a man is seised of certain land, to which he hath Common in anothers ground, only for those beasts which compost the land to which it is appendant, excepting Geese, Goats, and H [...] gs; which Common is by prescription, and of common right, and appendant to arable land only.
Common appurtenant is of the same nature with Common appendant; but with all manner of beasts, as well Hogs and Goats, as Horses, Kine, and such as compost the ground. And this Common may be made at this day, and severed from the land to which it is appurtenant, but so cannot Common appendant.
Common because of neighbourhood is, where the Tenants of two Lords are seised of two [Page 163] Mannors adjoyning to each other; and the Tenants have time out of mind intercommoned each with other with all manner of beasts commonable.
Yet the one may not put his Cattel in the others ground, for so they of the other Town may distrain them Dammage fesant, or have an Action of Trespass: but they may put them into their own fields, and if they stray into the fields of the other Town, there they ough to suffer them. And the inhabitants of the one Town ought not to put in as many beasts as they will, but with regard to the inhabitants of the other, for otherwise it were no good Neighbourhood, upon which all this depends.
Common Fine.
COmmon Fine is a certain summe of Money which the Resiants in a Leet pay unto the Lord of the Leet; and it is called in some places Head-silver, in some places Certum Letae, and was (as it seems) first granted to the Lord towards the charge of his purchase of the Leet, whereby the Resiants had now an ease to do their Suit royal within the Mannor, and not be compelled to go to the Sherifs Tourn to do it. And for this Common Fine the Lord must prescribe, and cannot distrain for it without [Page 164] a prescription, as it appears in Godfrey's Case, in 11. Rep. fo. 44. b.
Common Law.
COmmon Law is for the most part taken three ways. First, for the Laws of this Realm simply, without any other Law, as Customary, Civil, Spiritual, or whatever other Law joyned to it; as when it is disputed in our Laws of England, what ought of right to be determined by the Common Law, and what by the Spiritual Law, or Admirals Court, or such like.
Secondly, it is taken for the Kings Courts, as the Kings Bench, or Common Place, only to shew a difference between them and base Courts; as Customary Courts, Court-Barons, County Courts, Pipowders, and such like: as when a Plea of land is removed out of ancient Demesne, because the land is Frank-fee, and pleadable at the Common Law, that is to say, in the Kings Court, and not in ancient Demesne, or in any other base Court.
Thirdly, and most usually, by Common Law is understood such Laws as were generally taken and holden for Law before any Statute was made to alter the same: as for example, Tenant for life, nor for years, were not [Page 165] to be punished for doing Waste at the common Law, till the Statute of Gloucester cap. 5. which gives an Action of Waste against them. But Tenant by the courtesie and Tenant in dower were punishable for Waste at the Common Law, that is, by the usual and common received Laws of the Realm, before the said Statute was made.
Common Pleas.
COmmon Pleas is the Kings Court now held in Westminster-Hall, but in ancient time moveable, as appears by Magna Charta, cap. 11.
But Gwyn, in the Preface to his Reading, saith, That untill the time that Henry the third granted the Great Charter, there were but two Courts, only called the Kings Courts, the Exchequer, and Kings Bench which was called Aula Regia, because it followed the Court; and that upon the grant of that Charter the Court of Common Pleas was erected and setled in a place certain, viz. at Westminster; and therefore all the Writs were made with this Return, Quid sit coram Justiciariis meis apud Westmonasteriū, where before the partie was commanded by them to appear coram Me vel Justiciariis meis, without any addition of any place certain.
[Page 166] All Civil causes, as well Real as Personal, are, or were in ancient time, tried in this Court, according to the strict Law of the Kingdom: And by Fortescue, cap. 50. it seems to have been the only Court for Real Causes. The thief Iudge thereof is called The Lord chief Justice of the Common pleas, accompanied with three or four Assistants or Associates, who are created by the Kings Letters Patents, and as it were installed or placed upon the Bench by the Lord Chancellor and Lord Chief Iustice of the Court, as appears by Fortescue, cap. 51. who expresses all the circumstances of this Admission.
The rest of the Officers appertaining to this Court are these: The Custos Brevium, three Prothenataries, Chirographer, fourteen Philasers, four Exigenters, Clerk of the Warrants, Clerk of the Iuries, Clerk of the Treasurie, Clerk of the Kings Silver, Clerk of the Essoines, Clerk of the Outlawries.
Common day in plea of land.
COmmon day in plea of land, Anno 13 R. 2. Stat. 1. cap. 17. signifies an ordinary day in the Court, as Octabis [Page 167] Michaelis, Quindena Paschae, &c. as you may see in the Statute [...] 1 Hen. 3. concerning general days in the Bench.
Commotes.
COmmotes seems to be a compound word, of the Preposition Con, and Motio, that is, Dictio, Verbum, and signifies in Wales part of a County or Hundred, An. 28 H. 8. cap. 3. It is written Commoithes, Anno 4 H. 4. cap. 17. and is used for a Gathering made upon the people of this or that Hundred by Welsh Minstrels.
Communi Custodia.
COmmuni Custodia is a Writ which didlie for that Lord, whose Tenant holding by Knights service dies, his eldest son within age, against a stranger who entred the land, and obtained the Ward of the body. It seems to take name from the common Custome or right in this case, which is, That the Lord shall have the wardship of his Tenant untill his full age; or because that it is common for the recovery both of the Land and Tenant, as appears by the form thereof, Old N. B. 89. Regist. Orig. 161.
Compromise.
COmpromise is a mutual Promise of two or more parties that are at controversie, to submit themselves and all differences between them unto the Award, Arbitrement, or Iudgment of one or more Arbitrators, indifferently chosen between them, to determine and adjudge upon all matters referred, and upon which the parties differ.
Computation.
COmputation is used in the Common Law for the true and indifferent Construction of time, so that neither the one party shall do wrong to the other, nor the determination of times, referred at large, be taken one way or other, but computed according to the just censure of the Law.
As if Indentures of Demise are ingrossed, bearing date the eleventh day of May, 1665. to have and to hold the land in S. for three years from henceforth, and the Indentures are delivered the fourth day of June in the year aforesaid: In this case, from henceforth, shall be accounted from the day of the Delivery of the Indentures, and not by any computation from the Date. And if the said [Page 169] Indenture be delivered at four of the clock in the afternoon of the said fourth day, this Lease shall end the third day of June in the third year; for the Law in this Computation rejects all fractions or divisions of the day for the incertainty, which alwayes is the Mother of contention. So where the Statute of Inrollments made Anno 27 Henr. 8. cap. 16. is, That the Writings shall be inrolled within six moneths after the Date of the same Writings indented; if such Writings have Date, the six months shall be accounted from the Date, and not from the Delivery; but if they want Date, then it shall be accounted from the Delivery. Co. li. 5. fol. 1.
If any Deed be shewed to a Court at Westminster, the Deed by Iudgment of the Law shall remain in Court all the Term in which it is shewed; for all the Term in Law is but one day. Co. lib. 5. fol. 74.
If a Church be void, and the true Patron doth not present within six months, then the Bishop of the Diocess may collate his Chaplain: but these six months shall not be computed according to 28 days to the month, but according to the Kalendar. And there is great diversity in our common speech in the singular number, as a Twelve-moneth, which includes [Page 170] all the Year, according to the Kalendar, and twelve-months, which shall be computed according to 28 days to every month. See Coke lib. 6. f. 61. b.
Computo.
COmputo is a Writ so called of the effect, because it compells a Bayliff, Chamberlain, or Receiver, to yield his Account, Old Nat. Brev. fol. 53. It is founded upon the Statute of Westm. 2. cap 2. which you may for your better understanding read. And it also lies for Executors, of Executors, 15 Ed. 3. Star. de Provis. Victual cap. 5. Thirdly, against the Gardian in Secage, for Waste made in the Minority of the Heir, Malbr. cap. 17. And see farther in what other cases it lies, Reg. Orig. fol. 135. Old N. B. fol. 58. & F. N. B. fol. 116.
Concealers.
COncealers are such as find out lands concealed, that is, such lands as are secretly detained from the King by common persons, having nothing to shew for them, Anno 39 Eliz. cap. 22. They are so called a concelando, as Mons a Movendo, by Antiphrasis.
Conclusion.
COnclusion is, when a man by his own act upon record hath charged himself with a Duty or other thing: As if a Free-man confesse himself to be the Villain of A [...] upon record, and afterward A. takes his goods, he shall be concluded to say in any Action or Plea afterwards that he is free, by reason of his own confession. So if the Sheriff, upon a Capias to him directed, returns that he hath taken the body, and yet hath not the body in Court at the day of the Return, he shall be amerced: and if it were upon a Capias ad satisfac', the Plaintiff may have his Action against the Sherif for the Escape; for by such Return the Sherif hath concluded himself.
And this word Conclusion is taken in another sense, as for the End or later part of any De [...] aration, Barre, Replication, &c. As where to the Barre there ought to be a Replication, the Conclusion of his Plea shall be, And this he is ready to affirm. If in Dower the Tenant pleads, that he was never seised so as to tender Dower, the Conclusion shall be, and upon this he puts himself upon the Country. And in what manner the Conclusion shall be according to the nature of several Actions, See Kitch. f. 219, 220, &c.
Concord.
COncord is defined to be the very Agreement between parties that intend the levying a Fine of Lands one to another, how and in what manner the Lands shall be passed; for in the form thereof many things are to be considered. See West. part 2. tit. Fines & Concords, sect. 30.
Concord is also an Agreement made upon any Trespasse committed between two or more, and is divided into a Concord Executory, and Executed. See Plowd. in Reniger and Fogasie's Case, fol. 5, & 6. where it appears by the opinion of some, That the one doth not bind, as being imperfect; the other, being absolute, binds the parties. And yet by the opinion of others, in the same case, it is affirmed, That Concords Executory are perfect, and do no less bind then Concords Executed, fol. 8. b.
It is lately held, that in as much as Actions on assumpsits are now in use, which were rarely before the reign of King H. 8. that now an accord with an Assumpsit upon which an Action lyes is a good plea in all those Actions to which it was formerly a good plea if executed.
Concubinage.
COncubinage is an Exception against her that brings an Action for her Dower, whereby it is alledged, That she was not lawfully married to the party in whose lands she seeks to be endowed, but his Concubine. Brit. cap. 107. Bract. lib. 4. tract. 6. cap. 8.
Conders.
COnders are those that stand upon high places near the Sea-coast, at the time of Herring-fishing, to make signs with boughs, &c. in their hands to the Fishers, which way the shole of Herrings passes: for they who stand upon some high Cliffe may see it better then those that are in their Ships. These are otherwise called Huers and Balkers, as appears by the Statute of 1 Jac. cap. 23.
Condition.
COndition is a Restraint or Bridle annexed to a thing, so that by the not performance, or not doing of it, the party to the Condition shall receive prejudice and loss, and by the performance and doing of it, commodity and advantage.
[Page 174] All Conditions are either Conditions actual and expressed, which are called Concitions in Deed; or else implied or covert, and not expressed, which are Conditions in Law.
Also all Conditions are either Conditions precedent and going before the Estate, and are executed; or else subsequent and following after the Estate, and executory.
Condition precedent doth get and gain the thing or Estate made upon Condition, by the performance of it.
Condition subsequent keeps and continues the thing or Estate made upon Condition, by the performance of it.
Actual and expresse Condition, which is called a Condition in Deed, is a Condition annexed by express words to the Feoffment, Lease, or Grant, either in writing, or without writing: As if I infeoff a man in lands, reserving a Rent to be paid at such a Feast, upon Condition, that if the Feoffee fail of payment at the day, then it shall be lawfull for me to re-enter.
Condition implied or covert is, when a man grants to another the Office to be Keeper of a Park, Steward, Bedle, Bayliff, or such like, for term of life; and though there be no Condition at all expressed in the Grant, yet the Law speaks covertly of a Condition, which is, That if the [Page 175] Grantee doth not execute all points appertaining to his Office, by himself or his sufficient Deputy, then it shall be lawfull for the Grantor to enter, and discharge him of his Office.
Condition precedent is, when a Lease is made to one for life, upon Condition, That if the Lessee will pay to the Lessor xx. li. at such a day then he shall have Fee-simple: here the Condition preceeds the Estate in Fee-simple, and upon the performance of the Condition doth gain the Fee-simple.
Condition subsequent, and coming after, is, when one grants to J. S. his Manor of Dale in Fee-simple, upon Condition, That the Grantee shall pay to him at such a day xx. li. or else that his Estate shall cease: here the Condition is subsequent and following the Estate in Fee, and upon the performance thereof doth continue the Estate.
See more of this in Cok. lib. 3. fol. 64. and in Lit. li. 3. cap. 5. and Perkins in the last Title of Conditions.
Confederacy.
COnfederacy is, when two or more confederate themselves to do any hurt or damages to another, or to do any unlawfull thing. And though a Writ of Conspiracy doth not lie, if the party [Page 176] be not indicted, and in lawfull manner acquitted, for so are the words of the Writ; yet false Confederacy between divers persons shall he punished, though nothing be put in ure: and this appears by the Book of 27 Assis. placit. 44. where there is a note, That two were indicted of Confederacy, each of them to maintain other, whether their matter were true or false, and though nothing was supposed to be put in use, the parties were put to answer, because this thing is forbidden in the Law. So in the next Article in the same Book, Enquiry shall be made of Conspirators and Confederators, which bind themselves together, &c. falsly to endite or acquit, &c. the manner of their binding, and between whom: which proves also, that Confederacy to indite or acquit, although nothing be done, is punishable by the Law. And it is to be observed, that this Confederacy punishable by Law before it be executed, ought to have four incidents: First, to be declared by some matter of prosecution, as by making of Bonds or Promises the one to the other; secondly, to be malicious, or for unjust Revenge; thirdly, to be false against on innocent; and lastly, to be out of Court, voluntarily.
Confession of Offence.
COnfession of Offence is, when a prisoner is appealed or indicted of Treason or Felony, and broughe to the Bar to be arraigned; and his Indictment is read unto him, and he is demanded by the Court what he can say thereto; then either he confesses the Offence and the Indictment to be true, or he estranges himself from the Offence, and pleads not guilty, or else gives an indirect answer, and so in effect stands mute.
Confession may be made in two sorts, and to two several ends. The one is, he may confesse the offence whereof he is indicted openly in the Court before the Iudge, and submit himself to the censure and judgement of the Law: which Confession is the most certain answer and best satisfaction that may be given to the Iudge to condemn the Offendor, so that it proceeds freely and of his own accord, without any threats, force, or extremity used; for if the Confession arise from any of these causes, it ought not to be recorded. As a woman was indicted for the felonious taking of Bread to the value of two shillings, and being thereof arraigned, she confessed the Felony, [Page 178] and said, that she did it by the commandment of her husband; and the Iudges in pity would not record her Confession, but caused her to plead Not guilty to the Felony: whereupon the Iury found, that she stole the Bread by the compulsion of her husband against her will, for which cause she was discharged. 27 Assis. pla. 50.
The other kind of Confession is, when the prisoner confesses the Indictment to be true, and that he hath committed the Offence whereof he is indicted, and then becomes an Approver, that is, an Accuser of others who have committed the same Offence whereof he is indicted, or other Offences with him; and then prayes the Iudge to have a Coroner assigned him, to whom he may make relation of those Offences, and the full circumstances thereof.
There is also a third kind of Confession made by an Offendor in Felony, which is not in Court before the Iudge, as the other two are, but before a Coroner in a Church or other priviledged place, upon which the Offendor by the ancient Law of the Realm is to abjure the Realm.
Confirmation.
COnfirmation is, when one who hath right to any Lands or Tenements makes a Deed to another who hath the possession or some Estate, with these words, Ratificasse, Approbasse, Confirmasse, with intent to enlarge his Estate, or make his possession perfect, and not defesible by him that makes the Confirmation, nor by any other that may have his right.
Whereof see more in Littl. l. 3. cap. 9. of Confirmation.
Confiscate.
COnfiscate is derived from the Latine Fiscus, which originally signifies a Hamper or Basket, but metonymically the Princes Treasure, because in ancient time it was put in the Hampers or Frails. And though our King doth not put his Treasure in such things, yet as the Romans have said, that such goods as were forfeited to the Emperors Treasury were Bona Confiscata, in like manner do we say of such goods as are forfeited to the Kings Exchequer. And the title to have these goods is given to the King by the Law, when they are not claimed by some other: As if [Page 180] a man be indicted, that he feloniously stole the goods of another man, where in truth they are the proper goods of him indicted, and they are brought in Court against him as the manner, and he there asked what he says to the said goods; to which he disclaimes: by this Disclaimer he shall lose the goods, although that afterwards he be acquitted of the Felony, and the King shall have them as confiscated. But otherwise it is, if he doth not disclaim them.
The same Law is where goods are found in the Felons possession, which he disavows, and afterwards is attainted of other goods, and not of them; there the goods which he disavows are confiscate to the King: But had he been attainted of the same goods, they should have been said to be forfeited, and not confiscate, notwithstanding his Disavowment. So if an Appeal of Robbery be brought, and the Plaintiff leaves out some of his goods, he shall not be received to enlarge his Appeal; and forasmuch as there is none to have the goods so left out, the King shall have them as confiscate, according to the old rule, Quod non capit Christus, capit Fiscus. And as in the case aforesaid the Law punishes the owner for his negligence and connivency, so the Law abhors malice, in seeking the bloud of any without [Page 181] just cause. And therefore if A. hath the goods of B. by delivery, or finding, and B. brings an Appeal against A. for taking them feloniously, and it is found that they were the Plaintiffs goods, and that the Defendant came lawfully by them; in this case these goods are confiscate to the King, because of the false and malicious Appeal.
Congeable.
COngeable comes of the French word Conge, id est, venia, and signifies in our Common Law as much as Lawfull, or lawfully done; and so Littleton uses it in his 410. sect. where he says, that the Entry of the Dis [...] elsee is Congeable.
Conged' eslire.
COnge đ eslire (i Leave to chuse, or Power of chusing) is the Kings Royal Permission to any Dean and Chapter in time of Vacancy to chuse a Bishop; or to an Abbey or Priory of his own foundation, to chuse their Abbot or Prior. Fitzh. Nat. Brev. fol. 169. b. 170. b. c. &c. Master Gwin in the Preface to his Readings saith, That the King of England, as Soveraign Patron of all Archbishopricks, Bishopricks, and other Ecclesiastical Benefices, had of ancient time free disposition of all Ecclesiastical [Page 182] Dignities whensoever they happen'd to be void, investing them first per baculum & annulum, and afterwards by his Letters Patents; and that in progress of time they gave power to others to make Election under certain forms and conditions; as namely, that they upon e [...] ery Vacation should beg of the K. Conge de eslire, that is, licence to proceed to Election, and after to crave his Royal Assent, &c. And farther he affirms by good proof out of the Common-Law Books, that King John was the first that granted it, and that it was afterward confirmed by Westm. 1. c. 1. which Statute was made Anno 3 E. 1. and again by the Statute de Art. Cleri, c. 2. which was ordained Anno 25 E. 3 Stat. 3.
Conjuration.
COnjuration is a Compact or Plot made by men combining themselves together by oath or promise to do any publick harm. But it is more commonly used for such as have personal Conference with the Devil or evil Spirit, to know any secret, or to effect any purpose. Anno 5 Eliz. c 16. And the difference between Conjuration and Witchcraft may be this: Because the one seems by Prayers and Invocation upon the powerful Name of God, to compell [Page 183] the Devil to say or do what he commands; and the other doth it rather by a friendly and voluntary Conference or agreement between him or her, and the Devil or Familiar, to have his or her desires and purposes effected, instead of blood or other gift offered him, especially of his or her Soul. And both these differ from Enchantments or Sorceries, because they are personal Conferences with the Devil, as is said; but these are but Medicines and ceremonial forms of words, commonly called Charms, without apparition.
Conservator of the Peace.
COnservator of the Peace is he that hath an especial charge by virtue of his Office to see the Kings Peace kept. Which Peace in effect is defined to be, A with-holding or abstinence from that injurious force and violence that unruly and boisterous men are in their natures prone to use towards others, were they not restrained by Laws and fear of Punishment. Of these Conservators Lambert farther saith, That before the time of King E. 3 who first appointed Iustices of Peace, there were sundry persons who by the Common Law had interest in keeping of the Peace. Of those some had that charge as incident to their Offices, and so included [Page 184] within the same, and yet notwithstanding were called by the name of their Office only: others had it simply, as of it self, and were thereof named Custodes Pacis, Wardens or Conservators of the Peace. And both these sorts are again subdivided by Lambert in his Eirenarcha, l. 1. c. 3.
Conservator of the Truce.
COnservator of the Truce was an Officer appointed in every Port of the Sea under the Kings Letters Patents, and had 40 li. for his yearly stipend at the least. His charge was to enquire of all Offences done against the Kings Truce and Sa [...] e conducts upon the main Sea, out of the Countries and Liberties of the Cinque-Ports of the King, as the Admirals have accustomedly done; and such other things as are declared Anno 2 H. 5. cap. 6. Touching this matter you may read the other Statute of Anno 4 H. 5. c. 7.
Consideration.
COnsideration is the material cause of a Contract, without which no Contract can bind the party. This Consideration is either expressed, as when a man bargains to give twenty shillings for an Horse: or is implied, [Page 185] as when the Law it self inforces a Consideration; as if a man comes into a common Inne, and there staying some time, takes meat or lodging, or either, for himself or his horse, the Law presumes he intends to pay for both, notwithstanding that nothing be covenanted between him and his Host, and therefore if he discharges not the house, the Host may stay his horse.
Also there is Consideration of nature and blood, and Valuable Consideration: and therefore if a man be indebted to divers others, and yet, in consideration of natural affection, gives all his goods to his son or cousin, this shall be construed a fraudulent Gift within the Act of 13 Eliz. c. 5. because this Act intends a Valuable consideration.
Consistory.
COnsistory is a word borrowed of the Italians, or rather Lombards, and signifies as much as Tribunal. It is vocabulum utriusque Juris, and is used for the place of Iustice in the Courts Christian or Spiritual.
Consolidation.
COnsolidation is used for the Combining and uniting of two Benefices in one: And [Page 186] this word is taken from the Civil Law, where it properly signifies an Vniting of the possession, occupation, or profit, with the property. As if a man hath by Legacy usum fructum fundi, and after purchases the Property or Fee-simple of the Heir; in this case a Consolidation is made of the Profits and Property. Vide Brook, tit. Union.
Conspiracie.
COnspiracie, notwithstanding that in Latine and French it is used for an Agreement of men to do a good or evil thing, yet it is commonly taken in our Law in the evil part; and is defined in 34 E. 1. Stat. 2. to be an Agreement of such as confeder or bind themselves by Oath, Covenant, or other alliance, that every of them shall bear and aid the other falsly and maliciously, to indict, or falsly to move or maintain Pleas; and also such as cause Children within age to appeal men of Felony, whereby they are imprisoned and sore grieved; and such as maintain men in the Country with Liveries and Fees to maintain their malicious enterprises: and this extends as well to the takers, as to the givers. Also Stewards and Bayliffs of great Lords, who by their Selgniory, Office or power, undertake to bear or maintain Quarrels, Pleas or [Page 187] Debates, that concern other parties then such as touch the Estate of their Lords, or of themselves. Anno 4 E. 3. c. 11. 3 H. 7. c. 13 And hereof see more, 1 H. 5. c. 3. 18 H. 6. c. 12. also in the old Book of Entries, word Conspiracie.
This word in the place before rehearsed is taken more generally, and is confounded with Maintenance and Champerty; but in a more special signification it is taken for a Confederacy between two or more, falsly to indict one, or to procure one to be indicted of Felony. And the punishment of Conspiracy upon an Indictment of Felony at the Suit of the King is, That the party attainted shall lose his frank law, so that he shall not be impanelled upon Iuries or Assises, or such like imployments, for testifying of the truth: and if he hath to do in the Kings Court, he shall make his Attorney; and his lands, goods and chattels shall be seised into the Kings hands, his lands estreaped, his trees digged up, and his body committed to prison. 27 lib. Assise 59 Crompton 156. b. this is called villanous Judgement. But if the party grieved will sue a Writ of Conspiracy, then see Fitzh. Nat. Brev. 114. d. 115. i. &c.
Constable.
COnstable is diversely used in the Common Law. And first, the Constable of England, who is also called Marshal, Stanf. Pl. Cor. fol. 65. of whose authority and dignity a man may find many arguments and signs, as well in the Statutes, as in the Chronicles of this Realm. His power consists in the care of the common Peace of the Land, in deeds of Arms, and matters of War, Lamb. Duties of Constables, num 4. wherewith agrees the Statute of 13 R. 2. c. 2. Stat. 1. Of this Officer or Magistrate, Gwyn, in the Preface to his Readings, saith to this purpose; The Court of the Coustable and Marshal determines Contracts touching Deeds of arms out of the Realm, and handles things concerning Wars within the Realm, as Combats, Blazons of armory, and suth like; but he hath nothing to do with Battel in appeal, nor generally with any other thing that may be tried by the Law of the Land. See Fortesc' cap. 32. This Office heretofore was appertaining to the Lords of certain Manors Jure feudi; and why it is discontinued, see Dyer 285. pl. 39.
Out of this Magistracie (saith Lambert) were drawn these inferior Constables, which [Page 189] we call Constables of Hundreds and Liberties, and first ordained by the Statute of Winchester 13 Edw. 1. which appoints for the conservation of the Peace, and view of Armour, two Constables in every Hundred and Liberty; and these are at this day called High Constables, because the increase of people and offences hath again under these made others in every Town, called Pe [...] ie Constables, who are of the like nature, but of inferiour authority to the other.
Besides these, there are Officers of particular places called by this name; as Constable of the Tower, Stan. 152. 1 H. 4. 13. Constable of the Exchequer, 15 H. 3. Stat. 5. Constable of Dover Castle, Camb. Brit. pag. 239. F. N. B. otherwise called Castellain. Manw. part. 1. cap. 13. of his Forest Law, makes mention of a Constable of the Forest.
Customes and Services. See Prescription.
CUstomes and Services is a Writ, and lies where I or my ancestors, after the limitation of Assise, (for which see the Title of Limitation in the Collection of Statutes) were not seised of the Customes or Services of the Tenant before; then I shall have this Writ to recover those Services.
[Page 190] Also the Tenant may have this Writ against his Lord, but after the Tenant hath declared, the Lord shall defend the words of the Declaration, and replying shall say, that he distrained not for the Customes whereof the Declaration is; and then he shall declare all the Declaration of the Customes and Services; and then the Tenant, who was Plaintiff, shall become Defendant, and shall defend by Battel or great Assise.
Consultation.
COnsultation is a Writ, whereby a Cause being formerly removed by Prohibition out of the Ecclesiastical Court, or Court Christian, to the Kings Court, is returned thither again; For if the Iudges of the Kings Court, comparing the Libell with the Suggestion of the party, find the Suggestion false, or not proved, and therefore the Cause to be wrongfully called from the Court Christian; then, upon this Consultation or Deliberation, they decree it to be returned again; whereupon the Writ in this case obtained is called a Consultation. Of this you may read the Regist. Orig. fol. 44. untill fol. 58. Old. Nat. Brev. fol. 32. & Fitzh. Nat. Brev. fol. 50.
Contenement.
COntenement seems to be the Freehold-land that lies to the Tenement or Dwellinghouse that is in his own occupation: for in Magna Charta, cap. 14. there are these words; A Free-man shall not be amerced for a small fault, but according to the quantity of the fault, and for a great fault, according to the manner thereof, saving unto him his Conteuement or Free-hold: And a Merchant shall also be amerced, saving to him his Merchandizes; and a Villain, saving to him his Wainage.
Continual Claime.
COntinual claim is, where a man hath right to e [...] ter into certain lands whereof another is seised in Fee, or Feetail, and dares not enter for fear of death or beating, but approaches as nigh as he dares, and makes Claim thereto within the year and day before the death of him that hath the Lands; if that he who hath the Land die seised, and his Heir is in by discent, yet he that makes such Claim may enter upon the Heir, notwithstanding such discent, because he hath made such Continual claim. But such Claim must always be made within the year [Page 192] and the day before the death of the Tenant; for if such Tenant do not die seised within a year and a day after such Claim made, and yet he that hath right dares not enter, then it behoves him that hath such right, to make another Claim within the year and day after the first Claim, and after such second Claim, to make the third Claim within the year and day, if he will be sure to save his Entry.
But if the Disseisor die seised within the year and day after the Disseisin, and no Claim made, then the entrie of the Disseisee is taken away, for the year and day shall not be taken from the time of the title of the Entry to him grown, but only from the time of the last Claim by him made, as is aforesaid. See more hereof in Littl. li. 3. c. 7. and see the Stat. 32 H. 8. cap. 33.
Continuance.
COntinuance in the Common Law is of the same signification with Prorogatio in the Civil: as Continuance until the next Assise, Fitzh. Nat. Brev. 154. f and 244. d. in both which places it is said, That if a Record in the Treasury be alledged by the one party, and denyed by the other, a Certiorari shall be sued to the Treasurer and the Chamherlain of the Exchequer; [Page 193] and if they do not certifie in the Chancery that such Record is there, or that it is like to be in the Tower, the King shall send to the Iustices, repeating the said Certificate, and commanding them to continue the Assise. In this signification it is also used by Kitchen, 202. and 119. also Anno 11 H. 6. cap. 4.
Contract.
COntract is a Bargain or Covenant between two parties, where one thing is given for another, which is called Quid pro quo; as if I sell my Horse for money, or if I covenant to make you a Lease of my Mannor of Dale, in consideration of twenty pound that you shall give me, these are good Contracts, because there is one thing for another. But if a man make promise to me, that I shall have xx. s. and that he will be debtor to me thereof, and after I ask the xx s. and he will not deliver it; yet I shall never have any Action to recover this xx s. because this Promise was no Contract, but a bare Promise, and Ex nudo Pacto non oritur Actio. But if any thing were given for the twenty shillings, though it were but to the value of a peny, then it had been a good Contract.
Contra forma Collationis.
COntra formam Collationis is a Writ that lies where a man hath given Lands in perpetual Almes to any of the late Houses of Religion, as to an Abbot and Convent, or other Soveraign, or to the Warden or Master of any Hospital and his Covent, to find certain poor men, and to do other Divine Service, if they alien the Lands, then the Donor or his heirs shall have the said Writ to recover the Land. But this Writ shall be alway brought against the Abbot or his successor, and not against the Alienee, although he be Tenant: but in all other Actions where a man demands Free-hold, the Writ shall be brought against the Tenant of the Land. See the Stat. West. 2. cap. 41.
Contra formam Feoffamenti.
COntra formā Feoffamenti is a Writ that lies where a man before the Statute of Quia emptores terrarum, made 18 Edw. 1. infeoffed another by Deed to do certain Service; if the Feoffor or his heirs distrain him to do other Service then is comprised in the Deed, then the Tenant shall [Page 195] have this Writ, commanding him not to distrain him to do other Service then is comprised in the Deed. But this Writ lies not for the Plaintiff who claims by purchase from the first Feoffee, but for the Heir to the first Feoffee.
Contributione facienda.
COntributione facienda is a Writ that lies where there are divers Parceners, and he who hath the part of the eldest makes all the suit to the Lord, the others ought to make Contribution to him, and if they will not, he shall have against them this Writ. In some cases the Heir shall have Contribution, and in others not, but shall be alone charged: For if a man be seised of three Acres of Land, and acknowledges a Recognizance or Statute, &c. and infeoffs A. of one Acre, and B. of another Acre, and the third discends to his Heir; if Execution be sued against the Heir only, he shall not have Contribution against any Purchasor, yet he is charged as Terre-tenant, and not as Heir; for the Land, and not himself, is charged.
Yet if a man be seised of two Acres, the one of the nature of Borough-English, and binds himself as before, and dies, having issue two daughters, who make partition; in this case, if [Page 196] the one be charged, he shall have Contribution: for as one Purchasor shall have Contribution against others, and against the Heir of the Conusee also; so one Heir shall have Contribution against another Heir, for they are in equal degree. Also if a man be so bound, and after his death some of his Land descends to the Heir of the part of the father, and some to the Heir of the part of the mother; the one alone shall not be charged, but if he be, he shall have Contribution. In Dower, if the Tenant vouches the Heir in ward to three several Lords, each of them shall be equally charged.
If two, four, or more men be severally seized of Land, and they all joyn in a Recognisance; in this case the Conusee cannot extend the Land of any of the Conusors alone, but all ought equally to be charged: for though the Land of the Conusor himself may be only extended when divers men have purchased any of the Land subject to the Recognisance, because the Purchasor is in another degree then the Conusor himself; yet one of the Conusors shall not be solely charged, for he stands in equal degree with the other Conusors: Also the tertenant of a Debtor upon an extent shall have contribution of the Heir of the Debtor, which see 1 Cro. Eyer against Taunton. If Iudgement [Page 197] be given against two Disseisors in Assise for the Land and damages, and one Disseisor dies, the Execution shall not be awarded against the surviving Disseisor that was party to the wrong, but as well the Heir as the Disseisor shall be equally charged. But otherwise it is in personal binding; as if two are bound in an Obligation, there the charge shall survive.
And where it is said, that the one Purchasor shall have Contribution, it is not thereby intended, that the others shall give or allow unto him any thing by way of Contribution; but it ought to be intended, that the party that is solely extended for all may by an Audita querela, or Scire Facias, as the case requires, defeat the Execution, and thereby shall be restored to all the mean profits, and force the Conusee to sue Execution of all the Land: so in this manner every one shall be contributory, viz. the Land of every Terre-Tenant shall be equally extended.
Convocation.
COnvocation is commonly taken for the Assembly of all the Clergy to consult of Exclesiastical matters in time of Parliament: And as there are two Houses of Parliament, so there are two places called Convocation-houses; the one [Page 198] called the Higher Convocation-house, where the Archbishops and Bishops sit severally by themselves; the other, the Lower Convocation-house; where all the rest of the Clergy sit. Vide Prolocutor.
Conusance.
COnusance of Plea is a Priviledge that a City or Tenant hath by the Kings grant, to hold Plea of all Contracts, and of Lands within the precinct of the Franchise, and that when any man is impleaded for any such thing in the Court of the King at Westm. the Mayors or Bayliffs of such Franchises, or their Atturneys, may ask Conusance of the Plea, that is to say, that the Plea and the matter shall be pleaded a [...] d determined before them.
But if the Court at Westminster be lawfully seised of the Plea before Conusance be demanded, then they shall not have Conusance for that Suit, because they have neglected their time of demand thereof: but this shall be no bar to them to have Conusance in another Action; for they may demand Conusance in one Action, and omit it in another, at their pleasure.
And note: that Conusance lies not in Prescription, but it behoves to shew the Kings Letters Patents for it.
Copyhold.
COpyhold is a Tenure for which the Tenant hath nothing to shew but the Copies of the Rolls made by the Steward of his Lord's Court: For the Steward, as he inrolls all other things done in his Lords Court, so he doth also such Tenants as are admitted in the Court to any parcel of Land or Tenements belonging to the Manor; and the Transcript of this is called the Court-Roll, the Copy whereof the Tenant takes from him, and keeps as his only Evidence. Coke l. 4. fol. 25. This Tenure is called a Base Tenure, because it holds at the will of the Lord, Kitchen, fol. 80. Fitzh. Nat. Brev. f. 12. b. c. who saith, it was wont to be called Tenure in Villenage, and that this Copyhold is but a new name. Yet it is not simply at the will of the Lord, but according to the Custome of the Manor; so that if a Copiholder break not the Custome of the Manor, and thereby forfeit his Tenure, he seems not so much to stand at his Lords courtesie for his right, as to be displaced when he pleases. The Customes [Page 200] of Manors are infinite, varying in one point or other almost in every several Manor.
First, some Copyhold is fineable, and some certain. That which is fineable the Lord rates at what Fine he pleases, when the Tenant is admitted unto it: that which is certain is a kind of inheritauce, and called in many places Customary, because the Tenant dying, and the Hold being void, the next of bloud, paying the customary Fine, cannot be denied admittance.
Secondly, some Copyholders have by Custome the Woods growing upon their own Land, which by the Law they cannot have.
Thirdly, there are Copyholders that hold by the Vierge in Ancient demesne, and although they hold by Copy, yet they are in nature of Free-holders; for if such a one commit Felony, the King hath the year, day, and waste, as in case of Free-hold. Some others hold by Common Tenure called mere Copyhold, and if they commit Felony, their Land presently escheats to the Lord of the Manor.
West. part. 1 l. 2. sect. 646. defines a Copyholder thus; Tenant by Copy of Court-roll is he who is admitted Tenant of any Lands or Tenements within a Manor, which time without the memory of man, by use and custome of the said Manor, [Page 201] have been dimisable to such as will take the same in fee, feetail, for life, years, or at will, according to the Custom of the said Manor, by Copy of Courtroll.
Coraage.
COraage is an Imposition extraordinary, growing upon some unusual occasion, and seems to be of certain Measures of Corn. Bract. l. 2. c. 16. num. 6. uses Corus tritici for a measure of Corn; and in the same Chapter, numb. 8. hath these words: There are certain common Protestations, which are not called Services, neither do they arise from Custom, unless some necessary occasion happen, or that the King comes: such are Hidage, Coraage, and Caruage, and many others which are performed in cases of necessity, by the common consent of the whole Kingdom, and which appertain not to the Lord of the Fee; nor is he bound to acquit his Tenant thereof, unless he hath especially tied himself thereto by his own Deed.
Cordwayner.
COrdiner or Cordwayner comes from the French Cordvannier, that is, a Shoomaker, from a kind of Leather which the French-men call Cordovan. And it is a word much used in our [Page 202] Statutes, as in those of 3 H. 8 c. 10. 5 H. 8. c. 7. & 1. Jac. c. 22.
Cornage.
COrnage is a kind of Grand Serjeanty; the Service of which Tenure is, to blow an Horn when any Invasion of the Northern enemy is perceived. And by this many Northward held their Land, about the Wall commonly called the Picts Wall. Cambdens Brit. ꝑag. 609.
See Littleton fol. 35. where he saith, That in the Marches of Scotland some hold of the King by Cornage, that is to say, by blowing a Horn; to warn the Country when they hear that the enemies will come; which Service is Grand Serjeanty.
Corodie.
COrodie is an Allowance of Meat, Bread, Drink, Money, Cloathing, Lodging, and such like necessaries for sustenance. It is sometimes certain where the certainty of things is set down; sometimes uncettain, where the certainty is not set down which he shall have.
And some of them began by Grant made by one man to another, and it may be for life, years, in tail, or in fee: and some Corodies are of common [Page 203] right, as every Founder of Abbeys and other Houses of Religion had authority to assign such in the same Houses, for Father, Brother, Cousin, or other that he would appoint, if it were a House of Monks; and if he were Founder of a House of Nuns, then for his Mother, Sister, or other woman: and always this was provided for, that he that had a Corodie in a House of Monks might not send a woman to take it; nor where Corodie was due in a Nunnery, there it was not lawful to appoint a man to receive it; for in both cases such Presentation was to be rejected. And this Corodie was due as well to a common person Founder, as where the King himself was Founder. But where the House was holden in Frankalmoigne, there the Tenure it self was a discharge of Corodie against all men, except it were afterward charged voluntarily; as when the King would send his Writ to the Abbot for a Corodie for such a one, whom they admit, there the House should be thereby charged for ever, whether the King were Founder or not. See the Writ of Corodio habendo in Fitzh. Nat. Brev. fol. 230.
Coroner.
COroner is an ancient Officer of trust, and of great authority, ordained to be a principal Conservator or keeper of the Peace, to bear record of the Pleas of the Crown, and of his own view, and of divers other things, &c. And therefore in the time of Ed. 1. it was enacted that, Forasmuch as mean men and indiscreet now of late are commonly chosen to the Office of Coroner, where it is requisite that wise men, lawful, and able, should execute such Offices; it is provided, That through all Shires sufficient men shall be chosen to be Coroners, out of the most wise and discreet Knights which best know, can and will attend this Office, and which faithfully will make and represent the Pleas of the Crown.
And although the letter of this Statute be not precisely observed, yet at least the intent should be followed as nigh as might be; so that for the default of Knights and Gentlemen, furnished with such qualities as the Statute sets down, (of which sort there are many) others might be chosen, with this addition, that they be vertuous and good Christians. See hereof in the Writ de Coronatore eligendo, in Fitzh. Nat. Brev. fol. 163.
[Page 205] When the Coroner is to enquire of the death of any person, or to do other thing concerning his Office, he ought to do it in person: and upon the sudden death of any one, he himself ought to see the dead body when he makes enquiry, or otherwise the enquiry is not good; for if he will enquire of any dead person without view, this is without authority, and so void. And if the body be buried before his coming, he ought to record it in his Rolls, to the intent that the Town where the burying was should be amerced for it before the Iustices in Eyre, upon the sight of the Coroners Rolls. And nevertheless the Coroner ought to take up the body out of the ground, and make the enquiry upon view of the body, as he should do if it had not been buryed: and the Town shall also be amerced, if they suffer it tol [...] e on the ground to putrifie or stink, without sending to the Coroner. And if the Coroner be negligent in coming to do his office, after the Bayliffs or Countrey-men have sent for him, he shall be punished.
Although by the Law the Coroner cannot enquire of any Felony, but the death of a man; yet it hath been said, that in Northumberland they enquire of all Felonies; but this authority they maintain by Prescription. If a man be killed or drowned in the arms or creeks of [Page 206] the Sea, where a man may see land from the one part to the other, the Coroner shall enquire thereof, and not the Admiral, for that the Countrey may well have knowledge thereof.
But the Coroner of the Kings house hath an exempt jurisdiction within the Verge, and the Coroner of the County cannot intermeddle within it; as the Coroner of the house cannot intermeddle within the County out of the Verege.
If the Demandant or Plaintiff be non-suited, or if Iudgement be given against the Tenant or Defendant, or such like, the Iustices never assess any Amerciament, but the Clerk of the Warrants makes Estreats thereof, and delivers them to the Clerks of Assise within every Circuit, to deliver them to the Coroners in every County, to affeere or assess the Amerciaments, because they are thought most indifferent, forasmuch as they are chosen by the whole County.
If an Approver saith, that he began his Appeal before the Coroner by Duresse, this shall be tried by the Coroner; and if the Coroner denies it, the Approver shall be hanged. By which cases it appears, that the Law gives much credit and authority to Coroners.
Corporation.
Corporation is a permanent thing, that may have succession: And it is an Assembly and joyning together of many into one Fellowship, Brotherhood, and mind, whereof one is Head and chief, the rest are the Body; and this Head and Body knit together make the Corporation. And of Corporations, some are Spiritual, some Temporal: and of Spiritual some are Corporations of dead persons in Law, and some otherwise; and some are by authority of the King only, and some have been of a mixt authority.
And of those that are Temporal, some are by the authority of the King also, and some by the Common Law of the Realm.
Corporation Spiritual, and of dead persons in the Law, is where the Corporation consists of an Abbot and Covent, which had beginning of the King, and the Pope when he had to do here.
Corporation Spiritual, and of able persons in Law, is, where the Corporation consists of a Dean and Chapter, Master of a Colledge or Hospital; and this Corporation had beginning of the King only.
Corporation Temporal by the King is, where there is a Mayor and Commonalty.
[Page 208] Corporation Temporal by authority of the Common Law is the Assembly in Parliament, which consists of the King, the Head of the Corporation; the Lords Spiritual and Temporal, and the Commons of the Realm, the Body of the Corporation.
Bodies politick.
BOdies politick are Bishops Abbots, Priors, Deans, Parsons of Churches, and such like; which have succession in one person only.
If land be given to a Maior and Commonalty for their lives, they have an Estate by intendment not determinable. So it is if a Feoffment be made of land to a Dean and Chapter, without speaking of Successors. Release of a Mayor for any summ of money due to the Corporation in his own name is not good in Law. In case of a sole Corporation, or Body politick, as Bishop, Parson, Vicar, Master of Hospital, &c. no Chattel either in action or possession shall go in succession, but the Executors or Administrators of the Bishop, Parson, &c. shall have them; for Succession in a Body politick is as Inheritance in case of a body private. But otherwise is in case of a Corporation composed of many, as a Dean and Chapter, Mayor and Commonalty, [Page 209] and such like; for there they in judgement of the Law never die.
Yet the case of the Chamberlain of London differs from all these, and his Successors may in his own name have Execution of a Recognisance acknowledged to his Predecessor for Orphanagemoney: and the reason is, because in this case the Corporation of the Chamberlain is by Custome, and the same Custome that hath created him, and made a Corporation in Succession, as to the said special purpose concerning Orphanage, hath enabled the Successor to take such Recognisances, Obligations, &c. that are made to his Predecessor. And this Custom is founded upon great reason; for the Executors or Administrators of the Chamberlain ought not to intermeddle with such Recognisances, Obligations, &c. which by the said Custom are taken in the corporate capacity of the Chamberlain, and not in his private. But a Bishop, Parson, &c. or any sole Corporation, that are Bodies politick by prescription; cannot take a Recognisance or Obligation, but only to their private, and not in their politick capacity: for they want Custome to take a Chattel in their politick or corporate capacity.
Corpus cum Causa, or Habeas Corpus.
COrpus cum Causa is a Writ issuing out of the Chancery, to remove both the body and the Record of the Cause of any man lying in Execution upon▪ a Iudgement for Debt, into the Kings Bench, &c. there to lie till he have satisfied the Iudgement. Fitzh. Nat. Brev. fol. 251. e.
It lies also to remove any Action from inferiour Courts of Record into any of the 3 Courts in Westm.
Corruption of Blood.
COrruption of Blood is, when any one is attainted of Felony or Treason, then his Bloud is said to be corrupt; by means whereof neither his children, nor any of his bloud, can be heirs to him, or to any other Ancestor, for which they ought to claim by him. And if he were a Noble or Gentleman before, he and all his children are made thereby ignoble and ungentle, having regard to the Nobility or Gentry they claim by their father, which cannot be restored by the Kings Grant, without authority of Parliament.
[Page 211] But if the King will pardon the offendor, it will cleanse the corruption of the Blood of those children which are born after the Pardon, and they may inherit the land of their Ancestor purchased at the time of the Pardon, or afterwards; but so cannot they who were born before the Pardon. Also he that is attainted of Treason or Felony shall not be heir to his father: but this disability shall hinder others to be heir, so that during his life the land shall rather escheat to the Lord of the Fee, then discend to another.
But if he who is attainted, dies without issue of his body, during the life of his Ancestor, then his younger Brother, Sister, or Cousin shall inherit: for if the eldest Son be hanged, or abjure the Realm for Felony, during the life of the Father, it is no impediment but that the youngest Son may inherit. 27 Edw. 3. c. 77. And if he who is attaint of Treason or Felony in the life of his Ancestor, purchase the Kings Pardon before the death of his Ancestor, yet he shall not be Heir to the said Ancestor, but the Land shall rather escheat to the Lord of the Fee by the Corruption of bloud 26 Ass. pla. 2. But if the eldest son be a Clerk convict in the life of his Father, and after his Father dies; in this case he shall inherit his Fathers Land, because he was not attainted of [Page 212] Felony; for by the Common Law he should inherit after he had made his Purgation. And now by the Statute of 18 El. cap. 6. he shall be forthwith enlarged after burning in the hand, and delivered out of prison, and not committed to the Ordinary to make his Purgation; but he is in the same case as if he had made his Purgation.
If a man that hath Land in right of his wife hath issue, and his Bloud is corrupt by Attainder of Felony, and the King pardons him; in this case, if the wife dies before him, he shall not be Tenant by the courtesse, for the corruption of the blood of that issue. But it is otherwise if he hath issue after the Pardon; for then he shall be Tenant, although the issue which he had before the Pardon be not inheritable. 13 H. 7. c. 17.
If a man seised of Land hath issue two sons, and the eldest is attainted in the life of his Father of Felony, and therefore executed, or otherwise dies during the life of his Father, and after the Father dies seised; the Land shall descend to the youngest son, as Heir unto his Father, if the eldest son hath no issue then alive. But if the eldest son, who was attaint, hath any Issue [...] , which should have inherited but for the Attainder, the [...] shall escheat to the Lord, and shall not [Page 213] discend to the youngest brother, because the Bloud of the eldest brother is corrupt. 32 H. 8. Dy. 48.
But it is to be noted, That there are divers things made Treason by Act of Parliament, whereof although a man be attainted, yet his Bloud is not corrupt, neither shall he forfeit any thing, but that which he hath for his own life; As if a man be attainted upon the Statute of 5 Eliz. cap. 1. ordained against the maintaining of the authority of the Bishop and See of Rome, this shall not extend to make any Corruption of bloud, the disheritance of any Heir, forfeiture of any Dower; nor to the prejudice of the right or title of any person, other then the Offendor during his natural life only.
So if a man be attainted by force of the Statute of 5 Eliz. cap. 11. provided against the clipping, washing, filing, and rounding of Money, yet there is no Corruption of bloud. In the same manner is it of the Statute of 18 Eliz. cap. 1. 1 Jac. cap. 12. 1 Mar. cap. 12. against Vnlawfull assemblies, and 5 Eliz. cap. 14. against the Forging of evidence; and the Statute of 31 Eliz. c. 4. against the Embezilling of the Queens Ordnance, Armour, or Artillery.
Corse present.
COrse present are words signifying a Mortuary; and the reason why the Mortuary is so termed, is, because where a Mortuary was wont to be due, the Body of the best Beast was, according to the Law or custome, offered or presented to the Priest. See Anno 21 Hen. 8. ca. 6. where among other things it is enacted, That no Corse present, nor any summe of money, or other thing, for any Mortuary or Corse present, shall be demanded, received, or had but only in such places and Towns where Mortuaries have been accustomed to be taken and paid.
Cosinage.
COsinage is a Writ that lies where my great Grandfather, my Grandfathers Grandfather, or other Cousin, dies seised in Fee-simple, and a Stranger abates, viz. enters into the Lands; then I shall have against him this Writ or against his Heir, or his Alienee, or against whosoever comes after to the said Lands: But if my Grandfather die seised, and a Stranger abates; then I shall have a Writ of Ayel. But if my Father, Mother, Brother, Sister, Vncle, or Aunt die [Page 215] seised, and a Stranger abates; then I shall have an Assise of Mortdauncester.
Cottage.
COttage is a little House for habitation of poor men, without any Land belonging to it, whereof mention is made in the first Statute made in 4 E. 1. And the inhabitant of such a house is called a Cottager. But by a Statute made in the 31 year of Queen Eliz. cap. 7. no man may build such a Cottage for habitation, unless he lay unto it four acres of Freehold-land; except in Market-Towns or Cities, or within a mile of the Sea, or for habitation of Labourers in Mines, Sailors, Foresters, Shepherds, &c.
Coucher.
COucher is a Factor who continues in some place or Country for traffick. an. 37 E. 3. c. 16. It is also used for the general Book into which any Corporation enters their particular Acts for a perpetual remembrance of them.
Covenable.
COvenable is a French word signifying Convenient or suteable; as Covenably endowed, Anno 4 H. 8. ca. 12. It is anciently written convenable, as in the Stat. 27 Ed. 3. Stat. 2. ca. 17.
Covenant.
COvenant is an Agreement made by Deed in writing, and sealed between two persons, where each of them is bound to the other to perform certain Covenants for his part; and if the one performs not his Covenant, the other shall have thereupon a Writ of Covenant.
And Covenants are either in Law, or in Fact, Cok. lib. 4. fol. 80. or Covenant expressed, and Covenant in Law, Cok. lib. 6. fol. 17. A Covenant in Law is that which the Law intends to be done, though it be not expressed in words: As if a man demise any thing to another for a certain term, the Law intends a Covenant of the part of the Lessor, that the Lessee shall hold all his term against all lawfull incumbrances. Covenant in Fact is that which is expresly agreed between the parties.
[Page 217] Also there is a Covenant meerly personal: and Covenant real. Fitzh. Nat. Brev. f. 145. seems to say, that Covenant real is, whereby a man ties himself to pass a thing real, as Lands or Tenements; as a Covenant to levy a Fine of Land: Covenant meerly personal is, where a man covenants with another by Deed, to build a house, or to serve him. See the old Book of Entries, the word Covenant.
But note well, That no Writ of Covenant shall be maintainable without especialty, except in the City of London, or in some other place priviledged by custome and use.
Coverture.
COverture is, when a man and a woman are married together; now whatsoever is done concerning the wife in the time of the continuance of this Marriage, is said to be done during the Coverture, and the wife is called a Woman covert, and thereby is disabled to contract with any one, to the prejudice of her self or her husband, without his consent and privity, at the least without his allowance and confirmation. See Brook this Title. And Bract. saith That all things that are the wife's, are the husbands, neither hath the wife power of her self, but the husband, lib. 2. cap. 15. and [Page 218] the husband is the head of his wife, lib. 4. cap. 24. and again, that in any Law-matter she cannot answer without her husband, lib. 5. tract. 1. cap. 3. And if the husband alien his wife's Land during the Coverture, she cannot gain-say it during his life.
Covin.
COvin is a secret Assent determined in the hearts of two or more, to the prejudice of another: As if a Tenant for term of life, or Tenant in tail, will secretly conspire with another, that the other shall recover against the Tenant for life the Land which he holds, &c. in prejudice of him in the Reversion.
Or if an Executor or Administrator permit Iudgments to be entred against him by fraud, and plead them to a bond, or any fraudulent assignment or conveyance be made, the party grieved may plead covin and relieve himself. Vid. Stat. 2 R. 2. cap. 3. 3 H. 7. ca. 4. 13 El. c. 5. and 27 El. 4.
Count.
COunt is as much as the original Declaration in a Processe, though more used in real than personal Actions; as Declaration is more applied to [Page 219] personal than real. F. N. B. 16. a. 60. d. n. 71. a. 191. e. 217. A Libel with the Civilians comprehends both. Yet Count and Declaration are confounded sometimes; as Count in Debt, Kitch. 281. Count or Declaration in Appeal, Pl. Cor. 78. Count in Trespasse, Brit. cap. 26. Count in Action of Trespasse upon the Case for a Slander, Kitch. 252. Contours have been taken for such as a man retains to speak for him in any Court, as Advocates; and Pledeurs to be another sort, as Attorneys for one that is present himself, but suffers another to speak for him. Countours, according to M. Horne, are such Sergeants skilful in the Law, which serve the common people to defend their Actions in Iudicature for their fee.
Countee.
COuntee (so called a comitando, because they accompany the King) was the most eminent and high dignity from the conquest, untill the 11 year of King Ed. 3. when the Black Prince was created Duke of Cornwall: and those who of ancient time were created Countees, were of the Blood-Royal; aud at this day the King in all his appellations stiles them by the name of Our most dear Cousin. And for these causes the Law gives them high and great Priviledges; [Page 220] and therefore their body shall not be arrested for Debt, Trespasse, &c. because the Law intends that they assist the King with their counsel for the publick good, and keep the Realm by their prowesse and valour. Also for the same cause they shall not be put in Iuries, although it be for the service of the Country. And if issue be taken, whether the Plaintiff or Defendant be a Countee or not, this shall not be tried by the Countrey, but by the Kings Writ.
Also the Defendant shall not have a day of favour against a Lord of the Parliament, because he is intended to attend the publick. And of ancient time the Countee was Praefectus, or Praepositus Comitatus, and had the charge and custody of the County: and now the Sheriff hath all the authority for administration and execution of Iustice which the Countee had, Cok. lib. 9. fol. 49. and therefore he is called Viscount.
Countenance.
COuntenance seems to be used for Credit or Estimation. Old. Nat. Brev. 111. in these words; The Attaint shall be granted to poor men that will take their oaths they have not any thing whereof to make their Fine, saving their Countenance. In the same manner [Page 221] it is used 1 Edw. 3. Stat. 2. cap. 4. in these words; Sheriffs shall charge the Kings Debtors with as much as they may levy with their oaths, without abating the Debtors Countenance.
Countermand.
COuntermand is, where a thing formerly executed is afterward by some act or ceremony made void by the party that hath first done it. As if a man hath made his last Will, whereby he devises his Land to J. S. and afterwards he infeoffs another of the same Land, there this Feoffment is a Countermand to the Will, and the Will as to the disposition of the Land is void. If a woman seised of Land in fee makes a Will in writing, and devises that if A. of B. survives her, then she devises and bequeaths to him and his heirs her Land, and afterward she entermarries with the said A. of B. there, by taking him to husband and coverture at the time of her death, the Will is Countermanded.
But if a Baroness widow retains two Chaplains according to the Statute, and takes one of the Nobility to husband, and afterwards the husband dies, the Reteiner of those two Chaplains remains, and they without new Reteiner may take two Benefices, for their Reteiner was not determined [Page 222] nor countermanded by such Marriage.
If a woman makes a Lease at will, and afterwards takes an husband, this Marriage is no Countermand to the Lease, without express matter done by the Husband after the Marriage to determine the Will. Also if a Lease be made at will to a woman, and she takes an Husband, the Lease continues notwithstanding the Marriage, and is no Countermand thereunto.
Counterplea.
COunterplea is, when one brings an Action, and the Tenant in his Answer and Plea vouches or calls any man to warrant his Title, or prayes in aid of another who hath better Estate than he, as of him that is in the Reversion; or if one that is a stranger to the Action come and pray to be received to save his Estate; if the Demandant reply thereto, and shew cause that he ought not to vouch such a one, or of such a one to have aid, or that such a one ought not to be received; this Plea is called a Counterplea to the Voucher, Aid, or Resceit, as the case is. But when the Voucher is allowed, and the Vouchee comes in and demands what cause the Tenant hath, and the Tenant shews his cause, and the [Page 223] Vouchee pleads any thing to avoid the Warranty; that is called a Counterplea in the Warranty.
Countie.
COuntie signifies as much as Shire, both containing a compasse or portion of the Realm, into which all its land is divided, for the better government thereof, and more easie administring of Iustice; so that there is not any part of the Kingdom that lies not within some County: and every County is governed by a yearly Officer, whom we call Sheriff, who, among other duties belonging to his Office, puts in execution all the Commandments and Iudgments of the Kings Courts, that are to be executed within the compasse. Fortesc' cap. 24 Of these Counties there are four more remarkable than others, called County Palatines, as Lancaster, Chester, Durham, and Ely, an. 5. El. c. 23. There was also the County Palatine of Hexam, an. 33 H. 8. cap. 10. but thereof quaere.
A County Palatine is of so high a nature, that whereas all Pleas touching the life or maihem of a man, called Pleas of the Crown, are usually held and sped in the Kings name, and cannot be passed in the name of any other; the chief Governours of these, by special [Page 224] Charter from the King, heretofore did send out all Writs in their own name, and did all things touching Iustice as absolutely as the Prince himself in other Counties, onely acknowledging him to be their Superiour and Soveraigne. But by the Statute of 27 H. 8. cap. 25. this power was much abridged, which fee, and Cromp. Jurisdict. 137.
Besides these two sorts of Counties, there are also Counties corporate, as appears by the Statute of 3 Ed. 4. 5. and these are certain Cities or ancient Boroughs of the Land, upon whom the Princes of this Nation have bestowed such extraordinary Liberties, as London, York, Chester, Gloucester, and many others.
County in another signification is used for the County Court which the Sheriff keeps every moneth within his charge, either by himself or his Deputy. See for this Dal [...] ons Office of Sheriffs. Of these Counties or Shires there are reckoned to be 37 in England, besides the twelve in Wales.
Court.
COurt is diversly taken: sometimes for the House where the King remains with his ordinary retinue; and also the place where Iustice is judicially ministred, of which you may find 32 several sorts in Cromp. Jurisd. well described. And of those the greater part are Courts of Record; some are not, and therefore accounted Base Courts in comparison of the others.
Besides these, there are also Courts Christian, so called, because they handle matters chiefly appertaining to Christianity, and such as without good knowledge in Divinty cannot be well judged of; being heretofore held by Archbishops and Bishops, as from the Pope of Rome; but after his ejection they held them by the Kings Authority, by virtue of his Magistracy, as the Admiral of England holds his Court: whence it proceeds, that they send out their Precepts in their own names, and not in the Kings, as the Iustices of the Kings Courts do; and therefore as the Appeal from those Courts did lie to Rome, now by the Stat. of 25 H. 8. cap. 19. it lies to the King in his Chancery.
Court-Baron.
COurt-Baron is a Court that every Lord of a Mannor hath within his own Precincts. Of this Court and Court-Leet Kitch. hath writ a learned Book. This Court, as it seems in Cok. lib. 4. fol. 26. fs twofold: And therefore if a man having a Mannor in a Town grants the inheritance of all the Copyholds therein to another, this Grantee may hold a Court for the customary Tenants, and accept of Surrenders to the use of others, and make Admittances and Grants. The other Court is of Free-holders, which is properly called the Court-Baron, wherein the Suitors, that is, the Free-holders, are Iudges; whereas of the other Court the Lord or his Steward is Iudge.
Coutheutlaugh.
COutheutlaugh is he that wittingly receives a man utlawed, and cherishes or hides him; in which case he was in ancient time subject to the same punishment as the man utlawed was. Br. l. 3. tr. 2. c. 13. nu. 2. It is compounded of couth, i. known, and utlaw, outlawed, as we now call them.
Cranage.
CRanage is a liberty to use a Crane for drawing up wares or Goods out of any Ship, Boat, or Barge, at any Creek or Wharf, and to make profit of it. It is used also for the Money that is taken for that work.
Creditor.
CReansor or Creditor comes of the French Coryance, that is, Confidence or perswasion; and it signifies him that trusts another with any Debt, be it money, wares, or other things. This word is used in the Old N. B. in the Writ of Audita querela. f. 66. a.
Creek.
CReek is that part of a Haven from whence any thing is landed or disburthened out of the Sea. And this word is used in the Stat. 5 El. cap. 5. and 4 H. 4. cap. 20. &c.
Croft.
CRoft is a little Close or Pightle adjoyning to an House, used either for pasture or arable, as the owner pleases. [Page 228] And it seems to be derived from the old word Creaft, that is Handicraft, because these lands are for the most part manured with the best skill of the owner.
Cucking-stool.
CUcking-stool is an Engin invented for the punishment of Scolds and unquiet women; and it was called in old time a Tumbrell, as appears by Lamb. in his Eirenarc. l. 1. c. 12. And by the Cases and Iudgements in Eire, in the time of Ed. 3. a Pillory and a Tumbrell are appendant to a Leet, without which right cannot be administred to the parties within the view. Keloway, fol. 140. b.
And in the Stat. 51 H. 3. ca. 6. it is called Trebuchett.
Cui ante divortium.
CUi ante divortium is a Writ that lies when Alienation is made by the husband of the wifes Land, and after Divorce is had between them; then the woman shall have this Writ, and the Writ shall say, Whom she before the Divorce might not gain-say.
Cui in vita.
CUi in vita is a Writ that lies where a man is seised of Lands in Fee-simple, Fee-tail, or for life, in right of his wife, and aliens the same, and dies; then she shall have this Writ to recover the Land.
And note, That in this Writ her Title must be shewed, whether it be of the purchase, or inheritance of the woman. But if the husband alien the right of his wife, and the husband and the wife die, the wifes Heir may have a writ of Sur cui in vita.
Cuinage.
CUinage. See Cuynage.
Cuntey.
CUntey cuntey is a kind of Trial, as appears by Bract. in these words; The matter in this case shall be ended by Cuntey cuntey, as between coheirs, l. 4. tr. 3. cap. 18. And again in the same place; In a Writ of right the business shall be determined by cuntey cuntey. And thirdly, l. 4. tr. 4. c. 2. The cause shall be tried by Writ of right, neither by Battel, nor by the great Assise, but by [Page 230] Cuntey cuntey only; which seems to be as much as by ordinary Iury.
Curfew.
CUrfew comes of two French words, Couvrir, to cover, and Feu, Fire. It is used with us for an evening Peal, by which the Conqueror willed every man to take warning for the taking up his Fire, and putting out his Light: So that in many places at this day, when a Bell is customably rung toward Bedtime, it is said to ring Curfew.
Curia avisare vult.
CUria avisare vult is a Deliberation which the Court purposes to take upon any difficult point of a Cause, before Iudgement be resolved on. For which see the New Book of Entries, verbo Curia, &c.
Curia claudenda.
IS a Writ or Action to compell another to make a Fence or Wall, which the Defendant ought to make between his land and the Plaintiffs.
Currier.
CUrrier is one that dresses or liquors Leather, and is so called of the French word Cuir, id est, Corium, Leather. The word is used in all the Statutes made for the good making of Leather, as in 1 Jac cap. 22. &c.
Cursiter.
CUrsiter is an Officer or Clerk belonging to the Chancery, who makes out Original Writs. 14 & 15 H. 8. cap. 8. They are called Clerks of Course in the Oath of Clerks of the Chancery, appointed anno 18 Ed. 3. Stat. 5. There are of them twenty four, to each of whom is allotted certain Shires, into which they make out such Original Writs as are by the subject required, and are a Corporation among themselves.
Curtesie of England.
CUrtesie of England is, where a man takes a wife seised in Fee-simple, or Fee-tail general, or seised as Heir of the tail special, and hath issue by her, male or female; be the issue dead or alive, if the wife die, the husband shall hold the Land during [Page 232] his life, by the Law of England. And it is called Tenant by the Curtesie of England, because this is not used in any other Realm but only in England. If the Infant was never alive, then the husband shall not be Tenant by the Curtesie; but if the issue be born alive, it suffices.
If the woman be delivered of a Monster, which hath not the shape of mankind, this is not Issue in Law: But though the issue hath some deformity or defect in the hand or foot, and yet hath humane shape, if suffices to make the husband Tenant by the Curtesie. And in some cases the time of the birth is material, and in some not. Therefore, if a man marries a woman Inheritrix, who is great with child by him, and the issue is [...] pt forth of her belly alive; there he shall not be Tenant by the Curtesie, for this ought to begin by the issue, and consummate by the death of the woman, and the Estate of the Tenant by the Curtesie ought to avoid the immediate discent. But if the husband hath issue by his wife, and after Land discends to the woman, be the issue then dead or alive, he shall be Tenant by the Curtesie; for the time of the birth of the issue is not material, if it be in the life of the woman.
If Lands be given to a woman and the heirs males of her body, and she takes an hu [...] band, [Page 233] and hath issue a daughter, and dies; the husband shall not be Tenant by the Curtesie, for the issue cannot by any possibility inherit the same Tenements. Also as a woman alien, marrying one of the Kings subjects, shall not be endowed, in the same manner a man alien shall not be Tenant by the Curtesie.
Also if a man seised of Land in right of his wife be attainted of Felony, having issue, and then purchases the Kings Pardon, and after his wife dies; there he shall not be Tenant by the Curtesie: But if he hath issue by his wife born after the Pardon, in such case he shall.
Curtilage.
CUrtilage is a Garden, Yard, Field, or piece of void ground lying near and belonging to the Messuage, West. part. 2. sect. 26. And so it is used 35 H. 8. c. 4. 39 Eliz. 2 Coke l. 6. fol. 64.
Customary Tenants.
CUstomary Tenants are such Tenants as hold by the Custome of the Mannor, as their special Evidence.
Custome.
CUstome may be defined to be a Law or Right not written, which being established by long use, and consent of our Ancestors, hath been and dayly is put in practice. Custome is either general or particular. General is that which is current through England, whereof you may read in Doctor and Student, l. 1. c. 7. many very worthy to be known. Particular is that which belongs to this or that County, as Gavelkind to Kent; or to this or that Lordship, City, or Town.
Custome differs from Prescription, because Custome is common to many, and Prescription, by the opinion of some, is particular to this or that man. Again, Prescription may be for a shorter time than Custome, sc. for five years, or less: As if a Fine be duly levied of Lands or Tenements, and be not gainsaid within five years, this is a Bar to all Claim for ever.
If a man omits his Continual Claim for a year and a day then the Tenant in possession prescribes an Immunity against the Entry of the Demandant and his Heir, Fitzh. Nat. Brev. 79. Out of our Statutes you may have greater diversity; so that this seems to be a true saying, That Prescription [Page 235] is an Exception founded upon so long time gone and past as the Law limits for the pursuit of any Action. An example may be taken out of the Statute of 1 H. 8. c. 4. which enacts That in all Actions popular information shall be made within three years after the offence committed, otherwise to be of no force.
Custome is also used for the Tribute or Toll that Merchants pay to the King, to carry in and out Merchandizes, 14 E. 3. Stat. 1. c. 21. In which signification it is called Custuma in Latine, Reg. Orig. 129. a. 138. a.
And lastly, for such Services as Tenants of a Manor owe unto their Lord. Old Book of Entries, word Custome. See Consuetud. & Servitiis.
Custos Brevium.
CUstos Brevium is the chief Clerk belonging to the Court of Common Pleas or Kings Bench, whose office is to receive and keep all the Writs, and to put them upon Files, every Return by it self, and at the end of every Term to receive of the Prothonotaries all the Records of Nisi prius, called the Postea. The Custos Brevium also makes entry of Writs of Covenant, and the Concord upon every Fine, and makes out Exemplifications [Page 236] and Copies of all the Writs and Records in his Office, and of all the Fines levied. The parts of the Fines, after they are ingrossed, are divided between the Custos Brevium and the Chirographer: whereof the Chirographer keeps always the Writ of Covenant, and the Note; the Custos Brevium keeps the Concord, and the Foot of the Fine, upon which Foot the Chirographer causes the Proclamations to be indorsed when they are all proclaimed.
Custos Rotulorum.
CUstos Rotulorum is he that hath the keeping of the Rolls or Records of the Sessions of the Peace, and, as some think, of the Commission of the Peace it self, Lam. l. 4. c. 3. p. 373. He is always Iustice of the Peace and Quorum in the County where he hath his Office; and by his Office he is rather termed an Officer or Minister, then a Iudge, because the Commission of the Peace lays this special Charge by express words upon him, That he should cause the Writs, Precepts Process and Indictments aforesaid to come and be before him and his fellow-Justices at the days and places aforesaid.
Gardian of the Spiritualties.
GArdian of the Spiritualties is he that exercises the spiritual and Ecclesiastical Iurisdiction of any Diocess during the Vacancy of the See; the appointment of whom by the Canon Law pertains to the Dean and Chapter, lest in the Vacancie of the See some Innovation should be introduced. But in Engl. the Archbishop of the Province hath it by Prescription. Howbeit many Deans and Chapters (a [...] M. Gwyn saith in his Preface to his Readings) challenge this by ancient Charters from the Kings of this Land.
Cuynage.
CUynage is a word used in the Statute of 11 H. 7. c. 4. for the making up of Tinne into that fashion as it is used to be framed, for the better carriage of it into other parts.
D. Dammage.
DAmmage is part of that which the Iurors are to enquire of, in giving their Verdict for the Complainant or Demandant in an Action real or personal. For after the Verdict given upon the principal matter, they are also asked their Consciences touching Costs, which are the Expences of the Suit, and Dammages, which contain the prejudice which the Plaintiff or Demandant hath suffered by means of the wrong doue him by the Defendant or Tenant.
And forasmuch as Iustice and Reason require, that when the life, credit, lands, goods, corruption of bloud, and all that a man hath to forfeit in this world, are put in peril without just cause, but only upon the malicious Accusation of another by Appeal, that the Appellee should have satisfaction therefore against his false Accuser, and if he hath not sufficient, then against him or them that abbetted or procured him to pursue the Appeal: Therefore the Common Law gave Dammages to the Defendant in an Appeal, and assigned him a [Page 239] means for the recovery thereof, when he was acquitted of the Felony, as it is 48 E. 3. 22. But forasmuch as the Dammages against the Procurors and Abbettors were to be recovered by Original Writ, that is, by Writ of Conspiracy, and not otherwise, which was not so speedy remedy as the Heinous quality of the wrong required; the Statute of Westm. the 2. An. 13 Ed. 1. cap. 12. for the more expeditious redress thereof was ordained.
But if the Defendant barrs the Plaintiff of his Appeal then he cannot recover Dammages by the said Statute against the Plaintiff, except the Barr be such as acquits the Defendant of the Felony. And if the Defendant pleads that the Appellant is a Bastard, or hath an elder Brother, or like Pleas in barre, and thereby barrs the Plaintiff; yet he shall not recover Dammages against him, because the Defendant may be indicted again of the same Felony, and attainted, notwithstanding any of those Pleas; for by them the innocency of the Defendant is not tried, and therefore he shall not have Dammages. 27 Ass. pl. 25. The same Law is, if the Defendant barrs the Appellant by Demurrer in Law: And so it is, if in Appeal of the death of a man the Defendant pleads to the issue, and it is found by Verdict that he killed the man [Page 240] in his own defence, or by Chance-m [...] dley; in these cases he shall not recover Dammages. But if the Defendant in Appeal hath the Release of the Appellant, or the Kings Pardon, and will wave them, and plead Not guilty, and is acquitted; in this case he shall recover Dammages.
This word Dammage is taken in the Law in two several significations; the one properly and generally, the other strictly and relatively. Properly, as it is in cases where Dammages are founded upon the Statute of 2 Hen. 4. cap. 1. and 8 Hen. 6. cap. 9. where Costs are included within this word Dammages; for Damnum in its proper and general signification is said a demendo, when a thing by Diminution is made worse; and in this sense Costs of Suit are Dammages to the Plaintiff, for by them his Substance is diminished. But when the Plaintiff declares the wrong done to him to the Dammage of such a summe, this is to be taken relatively for the wrong which is passed before the Writ brought, and are assessed by reason of the Trespass aforesaid, and cannot extend to Costs of Suit which are future, and of another nature. See Co. l. 10. f. 116, 117.
Dammage fesant.
DAmmage fesant is, when a stranger's Beasts are in another mans ground, without licence of the Tenant of the ground, and there do feed, tread and otherwise spoil the corn, grass, woods, and such like: In which case the Tenant whom they dammage may therefore take, distrain and impound them, as well in the night as in the day. But in other cases, as for Rent and Services, and such like, none may distrain in the night.
Danegeld.
DAnegeld is, to be quit of a certain Tribute which the Danes did levie in England: Also the Tribute it self.
This began first in the time of King Etheldred, who being sore distressed by the continual Inivasson of the Danes, to purchase Peace, was compelled to charge his County and people with great Payments; for he first gave them at five several payments 113000 lib and afterwards granted them 48000 lib. yearly.
Darreine Presentment.
DArreine Presentment; an Assise thereof lies where I or mine ancestors have presented a Clerk to a Church, and after, the Church being void by the death of the said Clerk, or otherwise, a stranger presents his Clerk to the same Church in disturbance of me. And how it is otherwise used, see Bract. lib. 5. tract. 2. Regist. orig. fol. 30. If a husband and wife present to an Advowson in right of the wife, which is appendant to the Mannor of the wife, and after the husband aliens an Acre, parcel of the Manor, with the Advowson in fee, to a stranger, and dies, and after the stranger presents, and then aliens the Acre to another in fee, saving the Advowson to himself, and after the Church is void; there the wife shall present, and if she be disturbed, she shall have an assise of Darreine Presentment; because the Advowson was severed from the Acre. But if the Advowson was appendant to the Acre, then the wife ought to recover the Acre before she presents to the Advowson. Fitz. Nat. Brev. 32.
Darrein Continuance.
IS when the Defendant or Tenant (pendente placito) pleads new matter done after the last continuance of the plea. See Thelwel. 361. & 2. Cro. 261.
Dean and Chapter.
DEan and Chapter is a Body corporate Spiritual, consisting of many able persons, as namely the Dean (who is chief) and his Prebends, and they together make the Corporation. And as this Corporation may jointly purchase Lands and Tenements to the use of their Church and Successors; so likewise every of them severally may purchase to the use of himself and his heirs.
And as there are two Foundations of Cathedral Churches in England, the Old and the New; (the New are those that King Henry the eighth, upon suppression of Abbeys, transformed from an Abbot, or Prior and Covent, to Dean and Chapter:) so there are two means of Creation of these Deans: for those of the Old Foundation are brought to their Dignity like Bishops; the King first sending his Congee deslire to the Chapter; the Chapter then chusing, the King [Page 244] yeilding his Royal assent; and the Bishop confirming, and giving his Mandate to instal him. Those of the New Foundation are by a shorter course enstalled by the King's Letters Patents, without other Election or Confirmation.
This word is also applyed to divers that are the chief of certain peculiar Churches or Chappels, as the Dean of the Kings Chappel, the Dean of the Arches, the Dean of Saint George's Chappel in Windsor, &c.
Debet & solet, See Custom & Prescription.
DEbet & solet are words used in the Old Natura Brevium, fol. 98. The Writ of Secta molendini, being in the Debet & solet, is a Writ of Right, &c. And again, fol. 69. A Writ of Quod permittat may be pleaded in the County before the Sheriff, and may be in the Debet & solet, or the Debet only, as the Demandant claims. Wherefore note, That these Writs that are brought in such sort have these words in them, as formal words not to be omitted.
And according to the diversity of the Case, the Debet & solet are used, or the Debet only, As if a man by Writ sues to recover any right, whereof his ancestor was disseised by the [Page 245] Tenant or his ancestor; then he uses only the word Debet in his Writ, and it is not apt to use Solet, because his ancestor was disscised, and the Custom discontinued: but if he sues for any thing that is first denied him, then he hath both these words, Debet & solet; because his ancestor before him and himself have usually enjoyed the thing for which he sues, as Suit to the Mill, or Common of Pasture, until this present refusal of the Tenant. Reg. orig. fol. 144. a.
Debet & Detinet.
DEbet & Detinet: Much may be said of these words that hath been spoken of the words next afore. As, if a man be bound to another, and makes his Executor and dies, and the mony grows due in the time of the Testator, and afterward the Executor pays it not; the Action brought against him therefore shall be in the Detinet only: and so in all Actions brought by Executors as Executors, the Writ shall be in the Detinet only, although the duty accrued in their own time, because the thing or damages recovered shall be assets.
But if Lessee for years rendring Rent makes his Executors, and dies, and the Rent incurs after the death of the Testator; there an Action of Debt [Page 246] shall be brought in the Debet & Detinet: for when an Executor or Administrator takes the Profits, nothing shall be Assets but the Profits above the Rent. As if the Land is worth ten pound by the year, and five pound is reserved; in this cas [...] nothing shall be Assets but the five pound above the Rent, and therefore the Writ shall be for the Rent in the Debet & Detinet. Cokel. 5. fol. 31.
Decem Tales.
DEcem Tales. See Tales.
Decies tantum.
DEcies tantum is a Writ that lies where a Iuror in any Enquest takes money of the one part or other, to give his Verdict; then he shall pay ten times as much as he hath received: a [...] d every one that will sue may have Action, and shall have the one half, and the King the other.
But if the King in such case release by his Pardon to such a Iuror, yet that shall be no Bar against him that brings the Action, who shall recover the other half, if this Action be commenced before the Pardon of the King; but if the Pardon be before any Action, it is a Bar against all men.
[Page 247] And the same Law is of all other Actions popular, where one part is to the King, the other to the party that sues. And the Embracers, who procure such Enquests, shall be punished in the same manner, and they shall have imprisonment a year. But no Iustice shall enquire thereof ex officio, but only at the Suit of the party.
Deciners.
DEciners are such as were wont to have the oversight and command of Ten free Burgs, for preserving the Kings Peace; and the Limits or Circuit of their Iurisdiction was called Decenna. Bracton l. 3. tract. 2. c. 15. Also you may read Flet. l. 1. c. 27. and Reg. orig. fol. 68. b.
These seemed to have large authority in the Saxons time, taking knowledge of Causes within their Circuit, and redressing wrongs by way of Iudgment; as you may read in the Laws of King Edward, set out by Lambert, num. 32. Also there is mention of these in Britton cap. 12. who saith in the Kings person (as he writes his whole Book) in this manner: We will that all such as are fourteen years of age shall make oath that they shall be sufficient and loyal unto Vs, and that they will not be Felons, nor assenting to Felons, and that [Page 248] all be professed to be of this or that Dozein, and make or offer Surety of their behaviour by these or those Deciners: except Religious persons, Clerks, Knights, and their eldest sons, and Women. Yet the same Author in his 29. chap. near the end saith, That all at the age of 12 years or above are punishable for not coming to the Sheriffs Tourn, excepting Earls, Prelates, Barons, Religious persons, and Women.
The same Law is where the Deciners make presentment, that a Felon is taken for Theft, and delivered to the Sheriff. And Kitchen out of the Register, and Britton saith thus, Religious persons, Clerks, Knights or Women, shall not be Deciners, fol. 33. Whence it may be gathered, that this word implies nothiny else but such a one as by his Oath of Loyalty to his Prince is settled in the combination or society of a Dozein, for it is not usual at this day to find Surety so to do. And now a Dozeine seems to extend so far as the Lcet extends, because in Leets only this Oath is administred by the Steward, and taken by such as are of the age of twelve years and upward, dwelling within the Precinct of the Leet where they are sworn. Fitzh. Nat. Brev. 161. a. The particulars of this Oath you may read in Bracton, l. 3. tract. 2. c. 1. num. 1. where he puts dwon fifteen years for the [Page 259] age of those that are sworn to the Kings Peace; but l. 3. tract. 2. c. 11. num 5. he names twelve years. See Inlaugh.
From which Premisses may be observed the difference detween 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 Deciner is not now used for the chief man of a Dozein, but for him that is sworn to the Kings Peace; and lastly, that now there are not any Dozeins, but Leets; and that ordinarily no man gives other Security for keeping the Kings Peace but his own Oath, and therefore no one shall answer for the transgression of another, but every one for himself.
Declaration.
DEclaration is a Shewing in writing the grief and complaint of the Demandant or Plaintiff against the Tenant or Defendant, wherein he supposes to have received wrong. And this Declaration ought to be plain and certain, both because it impeaches the Defendant, and also compels him to make answer thereto. But note, that such Declaration made by the Demandant against the Tenant in an Action real is properly called a Count.
[Page 250] Note, That the Count or Declaration ought to contain Demonstration, Declaration, and Conclusion. And in Demonstration are contained three things, (that is) him who complains, against whom, and for what matter. And in the Declaration there ought to be comprised, how and in what manner the Action rose between the parties, and when, and what day, year, and place, and to whom the Action shall be given. And in the Conclusion he ought to averre and profer to prove his Suit, and shew the Dammages which he hath sustained by the wrong done him.
De deoneranda pro rata. portionis.
DE deoneranda, &c. is a Writ that lies where one one is distreined for Rent, that ought to be paid by others proportionably with him. Fitz. Nat. Brev. Fol. 234.
Dedimus potestatem.
DEdimus potestatem is a Writ that lies where a man sues in the Kings Court, or is sued, and cannot well travel, then he shall have this Writ directed to some Iustice, or other discreet person in the Countrey, to give him power to admit some man for his Atturney, or [Page 251] to levy a Fine, or to take his Confession, or his Answer, or other Examination, as the matter requires.
Defalt.
DEfalt is an Offence in omitting that which we ought to do; and most commonly taken for Non-appearance in Court at a day assigned. Bract. lib. 5. tract. 3. and Fleta lib. 6. cap. 14.
Defamation.
DEfamation is when a man speaks Slanderous words of any other man, Court of Iustice, Magistracy, or Title of land: for which the party shall be punished according to the nature and quality of his offence; sometimes by Action upon the Case for Slander, at the Common Law, and other times in the Ecclesiastical Court. As if a man contrive any False news, or horrible and false Lies of Prelates, Dukes, Earls, &c. then an Action De Scandalis Magnatum will lie against him by the Statute of 2 R. 2. cap. 5. and this being proved, the party offending shall be grievously punished. But for words of Defamation against a private man, there the party grieved▪ shall have his Action upon the Case [Page 252] for the Slander, and shall recover in dammages according to the quality of the fault: wherein the quality of the person who is so defamed is much to be considered.
But for Defamations determinable in the Spiritual Court, they ought to have three incidents: First it ought to concern matter meerly Spiritual, and determinable in the Ecclesiastical Court; as for calling him Heretick, Schismatick, Adulterer, Fornicator, &c. Secondly, that it concern matter meerly Spiritual only: for if such Defamation concern any thing determinable at the Common Law, the Ecclesiastical Iudge shall not have conusance thereof: As if a Divine is to be presented to a Benefice, and one (to defeat him thereof) saith to the Patron, that he is an Heretick, or a Bastard, or that he is Excommunicated, whereby the Patron refuses to present him, and he loses his Preferment; he shall have an Action upon the Case for these Defamations, tending to such an end. Also if a woman be bound that she shall live continent, for if a Lease be made to her so long as she shall live chaste; in these cases Incontinency shall be tryed by the Common Law. Thirdly, although such Defamation be meerly and only Spiritual, yet he that is defamed cannot sue there for amends or Dammages, but [Page 253] the Suit ought to be only for punishment of the fault, for the Soul's health of him that so offends.
And as for the Slander of a Title to Land, if A. saith that B. hath right in the Lands of C. whereby C. is damnified, then he may have an Action upon the Case for the Defamation of his Title, against A. And although B. hath a colourable Title, yet A. shall be punished, forasmuch as he hath taken upon him knowledge of the Law, and medled in a matter which concerned him not. But if a man saith, that he himself hath right to the Land of another; in this case no Action for Defamation lies, although he knows his Title to be false, Cok lib. 4. fol. 18.
Defeisance.
DEfeisance is a Condition relating to a Deed, as an Obligation, Recognisance, or Statute, which being performed by the Obligor, or Recognisor, the Act is disabled and made void, as if it had never been done. And there is no Warrantie, Recognisance, Rent-charge. Annuity, Covenant, Lease for years, or such like, but that they may by a Defeasance, made with the mutual consent of all those who were parties to the creation thereof, by Deed be adnulled, [Page 254] discharged, and defeated. And the difference between a Proviso or Condition in Deed and a Defeasance is in this, That the Proviso or Condition is annexed or inserted in the Deed or Grant; whereas a Defeasance is usually a Deed by it self concluded and agreed on between the parties, and having relation to another Deed.
And therefore if the Condition of an Obligation be repugnant to the Deed, the Condition is void, and the Obligation good: As if the Condition be, that he shall not sue the Obligation, this is void, as well as it is of a Feoffment, upon Condition that the Feoffee shall not take the Profits. But a Defeasance is a Grant that is made after the Obligation, to defeat the same Obligation; and this is good though it be repugnant, and so not like a Condition. 21 H. 7. fol. 24. b. For the form and manner of Defeasances according to the diversity of the Case, see West. part. 1. Symb. lib. 2. sect. 230, 231, &c.
Defence.
DEfence is that which the Defendant ought to make immediately after the Count or Declaration made, that is, that he defends all the Wrong, Force and Dammage, where and when he ought; and then to [Page 255] proceed farther to his Plea, or to imparl.
And note, that by defending the Force and Wrong he doth excuse himself of the Wrong against him surmised, and makes himself party to the Plea; and by defending the Dammage, he affirms the Plaintiff able to be answered unto.
And for the residue of the Defence, he accepts the power of the Court to hear and determine their Pleas of this matter. For if he will plead to the Iurisdiction, he ought to omit in his Defence these words, (ou & quant il devera:) and if he will shew any disability in the Plaintiff, and demand Iudgment if the party shall be answered unto; then he ought to omit the Defence of the Dammage.
Defendant.
DEfendant is he that is sued in Action personal, who is called Tenant in an Action real.
Defendemus.
DEfendemus is an ordinary word in a Feoffment or Donation, and hath this force, that it binds the Donor▪ and his Heirs to defend the Donee, if any man go about to lay any Servitude upon the thing given, [Page 256] other then is contained in the Donation. Braction lib. 2. cap. 16. num. 10. See also Warrantizantibus.
Defender of the Faith.
DEfender of the Faith is a peculiar Title given to the King of England by the Pope, as Catholicus to the King of Spain, and Christianissimus to the French King. It was first given by Leo. x. to K. Hen. 8. for writing against Martin Luther, in behalf of the Church of Rome Stow's Annals p. 863.
Deforceor.
DEforceor is he that overcomes and casts out with Force; who differs from a Disseisor, first in this, that a man may disseise another without Force, which act is called Simple Dissesin, Britton cap. 33. Then because a man may deforce another that never was in possession; as if many have right to Lands as common Heirs, and one keeps them out, the Law saith, that he deforces them, though he never disseised them. Old Nat. Brev. fol. 118. If Tenant in tail makes a Feoffment in fee by which the Feoffee is in, and afterward the Tenant in tail dies, and his issue sues a Writ of Formedon against the Feoffee; the Writ shall say, [Page 257] and also the Count, &c. that the Feoffee wrongfully deforced him &c. though he did not disseise him, because he entred in the life of the Tenant in tail, and the Heir had no present right. Lit fol. 138. And a Deforceor differs from an Intrudor, because a Deforceor keeps out the right Heir, as aforesaid; and a man is made an Intrudor by a wrongful Entry only in Lands or Tentments void of a Possessor. Bract. lib. 4. cap. 1.
And because Force and Forcible entry into Lands is so opposite to the Peace and Iustice of the Realm, and a dishonour of the King and his Crown, and discredit of the Law, that any person by birth and oath obliged to the obedience of the King and his Laws, should presume of his own authority by Force and strong hand to resist them both, by violent Intrusion into the Possession of another before the Law hath decided his Tttle therein; therefore divers Statutes have been made for the restraint and reformation of these Abuses; as, among others, the Stat. of 5 R. 2. ca. 7. where the King defends any Entry into Lands or Tenements; but in case where Entry is given by the Law, and then not with strong hand, or with a multitude of people, but onely in a peaceable manner. See more of this in Po [...] lt. de pace Reg. f. 34. 35, &c.
Delegates.
ARE Commissioners appointed by Letters Patents to determine Appeals upon things testamentary or matrimonial, in which sentence was given.
Demaines.
DEmaines or Demesnes, generally speaking, are all the parts of any Mannor which are not in the hands of Freeholders, though they be held by Copy-holders, Lessees for years or for life, as well as Tenants at will. And the reason why Copyhold is accounted Demesnes is, because they who are Tenants to it are adjudged in Law to have no other Estate but at the will of the Lord, so that it is still reputed to be in a manner in the Lords hands: yet in common speech that is ordinarily called Demesnes which is neither free nor copy. And this word Demesne is sometimes used in a more special signification, and is opposite to Frank-fee; as those Lands which were in the possession of [Page 259] Edward the Confessor, are called Ancient demesne, and all others are called Franck-fee, Kitch. fol. 98. and the Tenants which hold any of those Lands are called Tenants in Ancient demesn, the other Tenants in Frankfee. And no common person hath any Demesnes in the simple acceptation of the word, because there is no Land but depends mediately or immediately of the Crown, that is, of some Honor or other belonging to the Crown, and not granted in fee to any inferiour person; and therefore when a man in pleading will signifie his Land to be his own, he saith, That he is or was seised thereof in his Demesne as of Fee, Littleton, f. 3. whereby it appears, that though his Land be to him and his Heirs for ever, yet it is not true Demesne, but depending upon a superiour Lord, and holding by Service, or Rent in lieu of Service, or by Service and Rent together.
Demaines; according to the common speech, are only understood the Lords chief Mannor-place, which he and his Ancestors have time out of mind kept in their own hands, with all buildings and houses, meadows, pastures, woods, arable lands, and such like therewith occupied.
Demand.
DEmand is a word of art, and if one release to another all Demands, this is, (as Littleton, fol. 117. a. saith) the best Release to him to whom the Release is made that he can have, and shall most enure to his advantage; for by it not onely all Demands, but also all causes of Demands are released. And there are two manner of Demands, that is, in Deed, and in Law. In Deed, as in every Praecipe there is expresse Demand; and therefore in real Actions he is called Demandant, in personal Plaintiff. In Law, as every Entry in Land, Distresse for Rent, Taking or seisure of Goods, and such like acts in the Countrey, which may be done without any words or demands in Law. As a Release of Suits is more large then a Release of Quarrels or of Actions; so a Release of Demands is more large and beneficial than either of them, for by it is released all that which by the others is released, and more. By Release of all Demands, all Freeholds and Inheritances executory are released: By Release of all Demands to the Dissetsor, the right of the Entry in the land, and all that is contained therein, is released: By Release of all Demands, all [Page 261] Executions are released; and he that releases all Demands, excludes himself from all Actions, Entries, and Seisures.
Littleton, fol. 170. holds, That if Tenant in tail enfeoffs his Vncle, who enfeoffs another in fee with Warranty; if after the Feoffee by his Deed releases to the Vncle all manner of Demands, by such Release the Warranty, which is a Covenant real and executory, is extinct: and the reason is, because that by Release of Demands all the means and remedies, and their causes, which any hath to Lands, Tenements, Goods, Chattels, &c. are extinct, and, by consequence, the right and interest it self unto the thing. Yet a Release of all Demands doth not extend to such Writs by which nothing is demanded, neither in Deed nor in Law, but lie only to relieve the Plaintiff by way of Discharge, and not by way of Demand; as a Release of all Demands is no Bar in a Writ of Error to reverse an Outlawry, and so of such like. See 18 Edw. 3. 59. Coke. lib. 8. fol. 153, 154.
Demandant.
DEmandant is he that sues or complains in an Action real for Title of land; and he is called Plaintiff in an Assise, and in an Action personal, for Debt, Trespass, Deceit, Detinue and such like.
Demurrage.
IS called the time when a Shi [...] lies idle in a Port or Harbour or on the Sea in a Calm.
Demurrer.
DEmurrer is when any Action is brought, and the Defendant pleads a Plea, to which the Plaintiff says that he will not answer, for that it is not a sufficient Plea in the Law; and the Defendant avers the contrary, that it is a sufficient Plea; and thereupon both parties submit the Cause to the Iudgement of the Court: which is called a Demurrer, for that they go not forward in pleading, but rest upon Iudgement in that point; and is called in Latine Records, Moratur in Lege.
For in every Action the difference consists either in Deed or in Law. If in Fact, it is [Page 263] tried by the Iury; if in Law, then the matter is either plain, or difficult and rare: if it be plain, then Iudgment is presently given; but when it is hard and doubtfull, then is stay made, and time taken either to consider farther thereupon by the Iudges, to agree if they can, or otherwise for all the Iustices to meet together in the Exchequer-Chamber, and, upon hearing of that which the Serjeants shall say unto both parts, to advise and determine what is Law; and that which is there concluded on by them shall stand firm, without further remedy.
There is also a Demurrer to Evidence given to a Iury upon Tryal of an Issue, Plo. Com. 2. 3 Rast. Entr. 607.
Half bloud.
HAlf bloud is, when a man marries a wife, and hath issue by her a son or daughter, and the wife dies, and then he takes another woman, and hath by her also a son or daughter: Now these two sons are after a sort Brothers, or as they are termed, Half-brothers, or Brothers of the half bloud, that is, Brothers by the Fathers side, because they had both one Father, and are both of his bloud, and not Brothers at all by the Mothers side, nor of bloud nor kin that way; and [Page 264] therefore the one of them cannot be Heir to the other: for he that will claim as Heir to one by discent, must be of whole [...] bloud to him from whom he claims. In the same manner it is, if a woman have divers issues by divers husbands, who are called Brothers by one Mother.
Denariata terrae.
DEnariata Terrae. See Fardingdeal.
Denelage.
DEnelage is the Law that the Danes made here in England, cut of which and Merchenlage and Westsaxonlage William the Conquerour composed certain Ordinances to be observed by his subjects.
Denizen.
DEnizen, or Donaison, is, where au Alien born becomes the Kings Subject, and obtains the Kings Letters Patents to enjoy all Priviledges as an English-man: but if one be made Denizen, he shall pay Customes and divers other things as Alien, as it appears by divers Statutes thereof made.
[Page 265] It seems that Donaison is the true name, so called, because that his Legitimation is given to him, and not Denizen, as derived from Deins nee. And the Law is so precise in the making of Denizens, that the King cannot grant power to any other to make Aliens born Denizens, it is by the Law so inseparably and individually annexed to his Royal person; for the Law esteems it an high Prerogative, to make Aliens Subjects of the Realm, and capable of Lands and Inheritances, as natural born Subjects are.
And therefore the Statute of 27 H. 8. c. 24. which reunites many of the most ancient Prerogatives and Regal Flowers of the Crown, makes no mention of any authority to make Letters of Denization to be resumed, for that never any claimed it be any pretext whatsoever, it being so high a point of Prerogative. See Cok. l. 7. Calvins Case.
Deodand.
DEodand is, when any man by misfortune is slain by a Horse, Cart, or any other thing that moves to further his death; such thing which at the time of his misfortune did move▪ or cause his death shall be sorfeit to the King, and that is called Deodand; and that pertains to [Page 266] the Kings Almoner, for to dispose in Alms and Deeds of Charity.
But it is not forfeited untill the matter be found of Record, and therefore they cannot be claimed by Prescription: and the Iury that finds or presents the death by such misadventure, ought also to find and appraise the Deodand. Co. l. 5. f. 110.
If a Horse strikes one, and afterwards the Owner sells the Horse, and then the party that was stricken dies of the stroke; in this case the Horse shall be forfeited as a Deodand, notwithstanding the sale; for relation shall be had to the stroke which was before the sale. Plow. Com. 260. b.
What move to death, or kill the dead, Are Deodand and forfeited.
Departure from a Plea or matter.
DEparture from a Plea or matter is, where a man pleads a Plea in bar, and the Plaintiff replies thereto, and he after in his Rejoynder pleads or shews another matter, contrary, or not pursuing to his first Plea; that is called a Departure from his Bar. As if a man pleads a general Agreement in bar, and in the Rejoynder he alledges an especial Agreement; this shall be adjudged a Departure in Pleading. So in Trespass, [Page 267] if the Defendant will plead a discent to him, and the Plaintiff saith, that after this the Defendant enfeoffed him, and the Defendant saith, that this Feoffment was upon Condition, for the breach whereof he entred, this is a Departure from the Bar, for it is a new matter. See Plow. Com. f. 7. & 8.
Departure in despight of the Court.
DEparture in despight of the Court is, when the Tenant or Defendant appears to an Action, and hath a day over in the same Term, or is called after, though he had no day given him, so that it be in the same Term, if he do not appear, but make Default, it is a Departure in despight of the Court, and therefore he shall be condemned.
And it is to be observed, that Departure in despight of the Court is always of the part of the Tenant or Defendant, and the Entry thereof is, Quod praedictus A, licet solenniter exactus, non revenit, sed in contemptum Curiae recessit, & Defaltam fecit: and this is when in judgement of the Law he is present in Court, and being demanded, departs in despight of the Court; this amounts to a Bar in respect of the Despight and Contempt of the Court. See Cok. lib. 8. f. 62.
Deprivation.
DEprivation is, when an Abbot, Bishop, Parson, Vicar, Prebend, &c. is deprived or deposed from his Preferment for any matter in Fact or in Law. As if a Miscreant or Schismatick be presented, admitted, and inducted, there is good cause of Deprivation: So if a meer Lay-man be presented, admitted, instituted, and inducted, yet he shall be deprived: or if the Incumbent hath Plurality of Benefices; or subscribe not to the Articles of Religion, according to the Stat. of 13 Eliz. cap. 12.
By the Statute of 21 H. 8. cap. 13. it is enacted, That if any person, having a Benefice with Cure of souls of the yearly value of eight pounds, or more accepts or takes any other with Cure of souls, and be instituted and inducted into the possession thereof; the first Benefice shall be void, and the Incumbent in this case is outed or deprived by Cession. In which case the Bishop needs not give notice to the Patron, because the Deprivation is by Act of Parliament, to which every one is party, and ought to take notice at his peril. But otherwise it is if the first Church be not of the yearly value of eight pounds, for then it is void meerly by the Ecclesiastical Law. See Co. l. 4. f. 76. and l. 7. 43 b
Deputie.
DEputie is he that exercises in another mans right either Office or any other thing; and his forfeiture or misdemeanor shall cause the Officer, or him whose Deputy he is, to lose his Office. But a man cannot make his Deputy in all cases, except the Grant so be: as if it be with these or such like words, To exercise or use by himself or his sufficient Deputy; or if the words go farther, To himself or his Deputy, or the Deputy of his Deputy, then he may make a Deputy, and his Deputy also may make a Deputy, or else not. As if the Office of a Parkership be granted to one, he cannot grant this over to another, because it is an Office of trust and confidence, and shall not be forfeited. And there is great diversity between Deputy and Assignee of an Office: for an Assignee is a person that hath an Estate or interest in the Office it self; and doth all things in his own name, for whom his Grantor shall not answer, unless it be in especial cases; and a Deputy hath not any Estate or interest in the Office; but is only the shadow of the Officer, and doth all things in the name of the Officer himself, and nothing in his own name, and for which his Grantor shall answer: [Page 270] and where an Officer hath power to make Assigns, he may implicitely make Deputies, for, He that may do more it ought not to be held unlawful for him to do less; and therefore when an Office is granted to one and to his heirs, by this he may make Assigns, and by consequence he may make Deputies.
The King by his Letters Pattents commits to the Sheriff the Custody of the County, without express words of making Deputy; and yet he may make an Vnder Sheriff, viz. his Deputy. So where before the Statute of Quia emptores terrarum, the King or other Lord had given Lands to a Knight, to hold of him by Knights Service, that is, to go with his Lord (when the King makes a Voyage Royal to subdue his enemies) for 40 days, well and conveniently arrayed for the War; yet he may find another able person: howbeit in the one case it concerns the publick Administration and execution of Iustice in time of Peace; and in the other, the publick defence of the Realm in time of War. See Cok. l. 9. Le Countee de Salops Case.
Dereine.
DEreine is taken in divers senses, and seems to come from the French Disarrayer, that is, to confound or put out of order; or else the Norman word Desrene, which is the denial of a mans own act; and Lex Deraisnia was the Proof of a thing which one denies to be done by himself, and his adversary affirms it, defeating and confounding the assertion of his adversary, and shewing it to be without and against reason or probability. And in our Law it is diversly used. First generally, to prove; as, Dirationabit jus suum haeres propinquior, Glanvile l. 2. c. 6. and he, l. 4▪ c. 6. saith, Habeo probos homines qui viderunt & audiverunt, & parati sunt hoc dirationare. In the same manner Bracton uses it, Habeo sufficientem Disratiocinationem & probationem▪
By the Statute of 31 H. 8. cap. 1. Ioyntenants and Tenants in common shall have Aid, to the intent to deraigne the Garranty paramount. So Plo. in Manxels Case, fol. 7. b. hath this Case, If a man hath an Estate in fee with Warranty, and enfeoffs a stranger with Warranty, and dies, and the Feoffee vouches his Heir; the Heir shall deraigne the first Warranty. Also this word is used when Religious men forsake [Page 272] their Orders and Professions; as in Kitch. fol. 152. b. if a man makes a Lease for life upon condition, that if the Lessor dies without issue, then the Lessee shall have Fee, the Lessee enters in Religion, and then the Lessor dies without issue, and after the Lessee is deraigned; he shall not have Fee, insomuch as at the time of the Condition the Fee cannot vast in him.
De son tort demesne.
DE son tort demesne seem to be certain words of form in an Action of Trespasse, used by way of Reply to the Plea of the Defendant: As if A sues B in an Action of Trespasse, and B answers for himself, that he did this which A calls Trespass by the commandment of C his Master; A saith again, that B did this of his own wrong, without that that C commanded him in such manner and form, &c.
Debt.
DEbt is a Writ that lies where any summ of money is due to a man by reason of Account, Bargain, Contract, Obligation, or other Especialty, to be paid at a certain day, which is not paid; then he shall have this Writ. But if any money be due to any Lord by his Tenant for any Rent-service, [Page 273] the Lord shall never have Action of Debt for that, but he must distrain for it. Also for Rent-charge or Rent-seek, which any man hath for life, in tail, or in see: he shall not have any Action of Debt as long as the Rent continues; but his Executors may have an Action of Debt for the Arrearages due in the life of their Testator, by the Statute 32 H. 8. c. 37.
For Arrearages of Rent reserved upon a Lease for term of years, the Lessor is at his election to have an Action of Debt, or to distrain: but if the Lease be determined, then he shall not distrain after for that Rent, but he must have an Action of Debt for the Arrerages.
And note, That by the Law of the Realm Debt is only taken to arise upon some Contract or Penalty imposed upon some Statute or pain, and not by other Offences, as in the Civil Law, Debitum ex delicto.
If a man enter into a Tavern to drink, and when he hath drank, goes away, and will not pay the Vintner; the Vintner shall not have an Action of Trespass against him for his Entry, but shall have an Action of Debt for the Wine.
If I deliver Cloth to a Tailor to make a Gown, if the price be not agreed on in certain before, how much I shall pay for the making; he shall not have against me a general Action of Debt, but a special one, and shall [Page 274] declare specially, and it shall be put to the Iury how much he deserves.
But if a Tailor make a Bill, and himself rates the making and the necessaries thereunto; he shall not have an Action of Debt for his own values, unless it was so specially agreed; but in such case he may detain the Garment until he be paid, as an Hostler may his Guests Horse for his meat. Cok. l 8. 147.
Also Debt lyeth for Fines of Copyholds, and for amerciaments in Court Leet, and Court Baron, and upon Awards, and upon recoveries in base Courts, or Courts of Record.
Detinue.
DEtinue is a Writ that lies against him, who having goods and chattels delivered to him to keep, refuses to re-deliver them. See hereof. F. N. B. 138.
Devastaverunt bona Testatoris.
DEvastaverunt bona Testatoris is, when the Executors will deliver Legacies, or make restitution for wrongs done by their Testator, or pay his Debts due upon Contracts or Specialties, whose days of payment are not yet come, &c. and keep not sufficient in their hands to discharge those Debts upon Records [Page 275] or Specialties which they are compellable by the Law to satisfie in the first place; then they shall be constrained to pay these out of their own goods, according to the value of what they voluntarily delivered or paid: for such irregular and illegal Payments are accounted in the Law a Wasting of the goods of the Testator, as much as if they had given them away without cause, or sold them, and converted them to their own use.
And therefore if A be bound in a Recognisance, or in a Statute Merchant, or Staple, and after Recovery is had against him in an Action of Debt; and he makes his Executors, and dies; his Executors are bound by the Law to pay the Debt due upon the Recovery, although it be later in time, before the Debt due by Recognisance or Statute, because though both are Records, yet the Iudgment in the Kings Court upon judicial and ordinary proceeding is more notorious and conspicuous, and of a more high and eminent degree, then a Statute or Recognisance taken in private, and by consent of parties, and is therefore preferred in judgment of the Law before Recognisance or Statute: and if the Executors do not satisfie this first, then if they have no goods of the dead in their hands, they shall pay it of their own. So the Ordinary having goods of one that dies intestate in his hands by Sequestration, [Page 276] and an Action of Debt upon an Obligation to the value of the said goods is brought against him as Ordinary; he shall not dispose or administer any parcell of the said Goods to the other Creditors at his pleasure, but is bound to satisfie the Debt first for which an Action is brought against him. Dyer, fol. 232. placit. 5.
If a Sheriff retorne ex officio without inquest, that the Executor hath wasted goods, the Execution goes de bonis propriis of the Executor, and if the retorn be false, then the Executor may have an Action upon the Case against the Sheriff for his false retorn, because the Executor hath no day to plead. But if the Sheriff retorn a devastavit upon an Inquiry by a Iury, the Executor may appear and traverse, quod non devastavit, and try it, 1 Cro. Mounson and Bourn, & Proctor versus Chamberlain.
Devenerunt.
DEvenerunt is a Writ directed to the Escheator, when any of the Kings Tenants holding in Capite dies, and when his son and heir, within age, and in the Kings custody, dies, then shall this Writ go forth, commanding the Escheator, that he by the oath of good and lawful men enquire what [Page 277] Lands or Tenements by the death of the Tenant come to the King, &c. See Dyer, f. 360. pla. 4. But see the Stat. 12. Car. 2. cap. 24.
Devest.
DEvest is a word contrary to Invest; for as Invest signifies to deliver the possession of a thing, so Devest signifies the taking it away.
Devise.
DEvise is, where a man in his Testament gives or bequeaths his Goods or Lands to another after his decease. And where such Devise is made of Goods, if the Executors will nor deliver them to the Devisee he hath no remedy by the Common Law, but it behoves him to have a Citation against the Executors of the Testator, to appear before the Ordinary, to shew why he performs not the Will of the Testator: for the Devisee may not take the Legacy and serve himself, but it must be delivered to him by the Executors. See the Stat. 32 H. 8. ca. 1. & 34 H. 8. ca. 5. & 29 Car. 2. ca. 3. By which last Statute the Law of Testameuts is altered.
[Page 278] But by the Common Law if a man be sole seised of Lands in fee, and devises them by Testament; this Devise was void, unless the Lands were in City or Borough where Lands are devisable by Custome. But if any man were infeoffed to the use of another and his heirs, and he to whose use he was so seised did make Devise of his Lands; this Devise was good, though it were not in a Town where Lands are devisable.
Also if any man devise Lands in City, Town, or Borough, devisable, and the Devisor dies; if his Heir or any other abate in the Lands, then the Devisee shall have a Writ of Ex gravi querela. But this Writ shall never be pleaded before the Kings Iustice, but always before the Maior or Bailiffs in the same Town.
And here, to the end to shew how much the Laws of this Realm, and the discreet Iudges of the same, who are the Interpreters of it, do favour Wills and Testaments, and Devises, in yielding to them such a reasonable construction as they think might best agree with the minds of the dead, considering that Wills and Testaments are for the most part, and by common intendment, made when the Testatour is very sick, weak, and past all hope of recovery: for it is a received opinion in the [Page 279] Countrey amongst most, that if a man should chance to be so wise as to make his Will in his good health, when he is strong, of good memory, and hath time and leisure to ask counsell (if any doubt were) of the Learned, that then he should not live long after; and therefore they deferre it to such time when it were more convenient to apply themselves to the dispositions of their Souls, than of their Lands or Goods, except it were that by the fresh memory and recital of them at that time, it might be a cause to put them in mind of some of their goods or lands falsly gotten, and so move them to restitution, &c. And at that time the penning of such Wills is commonly committed to the Minister of the Parish, or to some other more ignorant, who knows not what words are necessary to make an Estate in Fee-simple, Fee-tail, for term of life, or such like, besides many other mischiefs: I will therefore here set down some of those Cases that are most common in ignorant mens mouths, and carry, by the wise interpretations of the Judges, a larger and more favourable sense in Wills, than in Deeds.
First therefore, if one devise to J. S. by his Will all his Lands and Tenements; here not only all those Lands that [Page 280] he hath in possession do pass, but all those that he hath in Reversion, by virtue of those words, Tenements.
And if Lands be devised to a man to have to him for ever, or to have to him and his Assigns; in these two cases the Devisee shall have a Fee-simple. But if it be given by Feoffment in such manner, he hath but an Estate for term of life.
And if a man devise his Land to another, to give, sell, or do therewith at his pleasure or will; this is Fee-simple
A Devise made to one and to his Heirs males doth make an Estate-tail: But if such words be put in a Deed of Feoffment, it shall be taken for Fee-simple, because it doth not appear of what body the Heirs males shall be begotten.
If Lands be given by Deed to J. S. and to the Heirs males of his body, &c. who hath issue a daughter, who hath issue a son, and dies; there the Land shall return to the Donor, and the son of the Daughter shall nor have it, because he cannot convey himself by Heirs males, for his mother is a let thereto: But otherwise it is of such a Devise, for there the son of the daughter shall have it, rather then the Will shall be void.
If one devise to an Infant in his mothers belly, it is a good Devise; but otherwise by Feoffment, Grant, or Gift; for in those cases there ought to [Page 281] be one of ability to take presently, or otherwise it is void. See 14. El. Dy. 304.
A Devise made in Fee-simple without expresse words of Heirs, is good in Fee-simple.
But if a Devise be made to J. N. he shall have the Land but for term of life; for those words will carry no greater Estate.
If one will that his son J. shall have his Land after the death of his wife; here the wife of the Devisor shall have the Land first for term of life. So likewise if a man devise his goods to his wife, and that after the decease of his wife, his son and heir shall have the House where the goods are; there the son shall not have the House during the life of the wife: For it doth appear that his intent was, that his wife should have the House also for her life, notwithstanding it were not devised to her by express words.
If a Devise be to J. N. and to the Heirs females of his body begotten, after the Devisee hath issue a son and daughter, and dies; here the daughter shall have the Land, and not the son, and yet he is the most worthy person, and Heir to his father: but because the Will of the dead is, that the daughter should have it, Law and Conscience will so also.
[Page 282] And herein the very Heathens were precise, as appears by those Verses of Octavius Augustus, which Donatus reports he made after Virgil at his death gave commandment that his Books should be burnt, because they were imperfect, and yet some perswaded that they should be saved; as indeed they happily were; to whom he answered thus:
Devoire.
DEvoire is as much as to say a Duty. It is used in the Statute of 2 R. 2. ca. 3. where it is provided▪ That all the Western Merchants, being of the Kings amity, shall pay all manner Customs and Subsidies, and other Devoires of Caleis. See the Stat. 5 Ejusdē Regis cap. 2.
Devorce.
DEvorce or Divorce, Divortium, dictum est Diversitate mentium, quia in diversas partes eunt qui distrahunt Matrimonium or else from the verb Diverto, which signifies to return back, because after the Devorce between the husband and wife, he returns her again to her father, [Page 283] or other friends, or to the place from whence he had her.
And though Devorce was never approved of by the Divine Law, but contrariwise prohibited, as appears by this precept, Let no man separate that which God hath joyned together; yet in all ages and well-governed Common-wealths it hath been used and permitted: As at this day with us there are divers causes for which the husband and wife may be devorced, as first causa Praecontractus.
Therefore if a man marry with a woman precontracted, and hath issue by her, this issue in Law and in truth bears the surname of his father: but if after the husband and wife be devorced for the Precontract, there the issue hath lost his surname, and is become a Bastard, and nullius filius. Cok. lib. 6. fol. 66.
Devorce may be causa Frigiditatis: and therefore if a man be married to a woman, and after they are devorced causa Frigiditatis, and then the man takes another wife, and hath issue by her; yet this issue is lawfull, because that a man may be habilis & inhabilis diversis temporibus, and by the Devorce causa Frigiditatis the Marriage was dissolved a vinculo Matrimonii, and by consequence either of them might marry again. Cok. lib. 5. fol. 98. b.
[Page 284] Also a man may be devorced causa Impubertatis, or Minoris aetatis: and in this case if two are married infra annos nubiles, and after full age Devorce is had between them; this dissolves the Marriage, and the woman may arraign an Assise against the Husband for the Lands or Tenements given with her in Frank-marriage, 19 lib. Assise, Pla. 2. So Devorce may be had causa Professionis, causa consanguinitatis, causa Fornicationis, and for many other causes, too long to be now recited.
It is requisite that in the sentence of Devorce the Cause thereof be shewed, because some Devorce dissolves the Matrimony, that is to say, a vinculo Matrimonii, bastards the issue, and barrs the wife of Dower; and some a mensa & thoro, the which dissolves not the Matrimony, nor barrs the Woman of Dower, nor bastards the issue.
Devorce is a Iudgement spiritual, and therefore, if there be cause, ought to be reversed in the Spiritual Court. See Cok. lib. 7. Kenns Case.
If a Woman Copiholder of certain Land, durante viduitate sua, according to the Custome of the Mannor, sows the Land, and before the severance of the Corn takes a husband; the Lord shall have the Emblements, and not the husband: But if a Lease be made to the husband and wife during the [Page 285] Coverture, and the husband sows the Land, and afterward they are devorced causa Praecontractus; the husband shall have the Emblements, and not the Lessor.
Dicker.
DIcker is a word used in the Statute of 1 Jacobi, cap. 22. and it signifies the quantity of Ten Hides of Leather. And it seems to come from the Greek word Decas, which signifies Ten.
Diem clausit extremum.
DIem clausit extremum is a Writ that lies where the Kings Tenant that hold in Chief dies; then this Writ shall be directed to the Escheator, to enquire of what Estate he was seised, who is next Heir, and his age, and of the certainty and value of the Land, and of whom it is holden; and the Inquisition shall be returned into the Chancery, which is commonly called The Office after the death of that persō.
And there is another Writ of Diem clausit extremum awarded out of the Exchequer, after the death of an Accountant or Debtor of his Majestie, to levy the Debt of his Heir, Executor, Administrators lands or goods.
Dietus datus.
DIes datus is a Respite given to the Tenant or Defendant before the Court. Brook Tit. Continuance.
Dieta rationabilis.
DIeta rationabilis is sometimes used for a Reasonable Days journey, as Bract. l. 3. patt. 2. cap. 16. It hath in the Civil Law other significations, which need not be here mentioned. See Vocabul. utriusque Juris.
Dieu son act.
DIeu son act, these are words oftentimes used in our Law, and it is a Maxime, That the Act of God shall prejudice no man: And therefore if a House fall down by Tempest, or other Act of God the lessee for life or years shall not only be quit in an Action of Waste brought against him, but hath by the Law a special interest to take timber to build the House again, if he will, for his habitation. Cok. lib. 4. 63. & lib. 11. 82. a.
In like manner, when the Condition of an Obligation consists of two parts in the disjunctive, and both are possible at the time of the Obligation [Page 287] made, and afterwards one of them becomes impossible by the Act of God; the Obligor is not bound to perform the other part, for the Condition shall be taken beneficially for him. Coke lib. 5. 22.
Dignitie Ecclesiastical.
DIgnitie Ecclesiastical is a phrase of speech used in the Statute of 26 Hen. 8. cap. 3. and by the Canonists is defined to be Administration conjoyned with power and Jurisdiction.
Diminution.
IS when the Plaintiff or Defendant in a Writ of Error alledges to the Court, that part of the Record remains in the Inferiour Court not certifyed, and prays that it be certifyed by Certiorari, Co. Ent. 232. 242. 1 Cr. John versus Thomas, 2 Cro. 479. 131. Rolls Abridg. 765. 20.
Diocesse.
Diocesse is the Circuit of the Iurisdiction of every Bishop: for this Realm hath two kinds of Divisions; the one in Shires or Counties, in respect of the Temporal politie; the other [Page 288] in Diocesses, in respect of the Ecclesiastical Iurisdiction.
Disability.
DIsabilitie is, when a man by any act or thing, by himself or his ancestor done or committed, or for or by any other cause, is disabled or made incapable to do, inherit, or take benefit or advantage of a thing, which otherwise he might have had or done.
There are many things by which a man may be disabled; and those are ordinarily either by the act of the party, or his Ancestor, or by the act of the Law, or of God.
Disability by the Act of the Ancestor; as if a man be attainted of Treason or Felony, by this Attainder his blood is corrupt, and thereby himself and his children disabled to inherit.
Disability by the Act of the party himself; as if a man makes a Feoffment to another man that then is sole, upon condition, that he shall infeoff a third man before M. and before M. or the Feoffment made, the Feoffee takes a wife; he hath by that disabled himself to perform the Condition according to the trust in him reposed, and therefore the Feoffor may enter and out him, as it is Littl. sect. 357. So if the Feoffee charges the Land, or enters into a Statute-Staple or Statute-Merchant; by these [Page 289] acts he hath disabled himself, and therefore the Feoffor may enter as in the former case. So if I bind my self, that upon Surrender of a Lease I will grant a new Estate to the Lessee, and afterwards I grant over my Reversion: in this case, though I afterwards repurchase, and get the whole Reversion to me again, yet I have forfeited my Obligation, because I was once disabled to perform it. Co. l. 5 f. 21. Also if a man be excommunicated, he cannot during that time sue any Action, but shall be thereby disabled, Coke, l. 8. f. 69. and so in many other cases.
Disability by act of Law is, most properly, when a man by the sole act of the Law, without any former thing by him done, is disabled; and so is Alien born. And therefore, if a man born out of the ligeance of our Lord the King will sue any Action, the Tenant or Defendant may say, that he was born in such a Country forth of the Kings liegeance, and demand judgment if he shall be answered; for the Law is our Birthright, to which an Alien is collateral and a stranger, and therefore disabled to take any benefit thereby.
By the act of God; as not to be of whole memory is a Disability in some cases, and in others not; for which it seems this difference may be taken: that in all cases where a man of no [Page 290] whole memory gives or passes any thing or Estate out of him, this after his death may be disanulled and avoided; but where a man Non sanae memoriae doth a thing whereby nothing passes out of him, there he may in some special cases be bound: as if he be Lessee for years, rendring Rent, and the Lessor grants the Reversion; there the Lessee non sanae memoriae cannot make Attornment, for he that is amens, or without mind, cannot make Attornment, which is Agreement; and yet in such case if the Lessor ejects him, and makes a Feoffment, and afterwards the Lessee non sanae memoriae re-enters, this act of Re-entry doth subject him to the Distress and Action of Waste.
And it is a Maxim in Law, That a man of full age shall never be received to disable his own person. And this incapacity to disable himself, as to some persons is personal, and extends only to the party himself; and as to others it is not personal, but shall bind them also.
There are four manner of Privities: scil. Privies in Bloud, as Heir; Privies in Representation, as Executors or Administrators, Privies in Estate, as Donee in tail, the Reversion or Remainder in fee, &c. and Privies in Tenure, as the Lord and Tenant: and two of these may disable the person of the dead, which was non sanae memoriae, or, &c. and [Page 291] shall avoid his Grants or Feoffments, and two of them not. For Privies in Bloud may shew the Disability of the Ancestor, and Privies in Representation the Infirmity of their Testator or Intestate; but neither Privy in Estate, nor Privy in Tenure can so do, Co. l. 4. f. 123, 124. See Lit. sect. 405. & Co. l. 8. fol. 43.
Disalt.
DIsalt signifies as much as to Disable. Litleton cap. Discontinuance.
Disceit.
DIsceit is a Writ, sometime Original, and sometime Iudicial. When it is Original, it lies where any Disceit is done to a man by another, by not performance of a Bargain or Promise, then he that is in such manner deceived shall have this Writ.
When it is Judicial, it lies where a Scire facias is sued out of any Record against a man, and the Sheriff returns that he is warned, where he was not; or where a Praecipe quod reddat, of a Plea or Lands. or a Quare Impedit, of the Presenting to a Church, is sued against one, and the Sheriff returns that the Defendant is summoned, where he was not; by which [Page 292] Disceit and false Return the Demandant or Plaintiff recovers: then the party grieved shall have this Writ against him that recovered, and against the Summoners, and against the Sheriff; and the Writ shall be directed to the Coroners of the same County, if he continue Sheriff that made the Return.
So if a man makes an Attorney in an Action real brought against him, and afterwards it is agreed by Disceit between the Demandant and the said Attorney, that the said Attorney shall make Default, who doth so accordingly, whereby the Tenant loses his Land; then the same Tenant that loses the Land may have a Writ of Disceit against the Attorney.
Also if a man brings an action of Trespasse against two others, and the Plaintiff and an Attorney by Disceit, cause two Strangers, not parties to the Writ, to come into Court, and say that they are the same two Defendants named in the Writ, and that they appoint the same man to be their Attorney in that Suit, whereupon the same Attorney, as Attorney to the Defendants named in the Writ, pleads to the Issue, and after suffers the Enquest to pass by his Default, by which means the Plaintiff recovers: In this case those that are indeed Defendants may have a Writ of Desceit against the same Attorney, [Page 293] and shall recover their dammages. Fitzh. Nat. Brev. 96.
And as the Law punishes her Officers, as Serjeants, Pleaders, Philizers, Exigenters, Attornies, and others, so she renounces and condemns all acts of greatest importance, if they be intermixt with Disceit and falshood. As if a Fine be levied by Disceit, and five years past; by the Statute of 4 H. 7. c. 24. all persons and their rights shall be barred thereby: yet for that it was by Disceit, th [...] Fine shall be avoided, as is a [...] dged in Cok. lib. 3. fol. 77. [...] the same manner, if one [...] cover Land by Disceit, the [...] overy for this shall be fru [...] ated and made void, 3 Ed. 3. 2 [...] . So if a woman, that hath good cause to be endowed, will by Disceit have the Tenant to be disseised, and after recovers her Dower by a Writ of Dower against the Disseisor; yet she shall be adjudged in possession against the Disseis [...] e but as a Disseisoresse, in respect of the Disceit. Cok. lib. 5. fol. 35.
There is another manner of Writ of Disceit, where Land which is auncient demesn is impleaded by the Kings Writ at Westm▪ Then the Lord of the Mannor may have this Writ, and reverse all the former proceedings, and Iudgment, as it appears Rast. Ent. 100, 221. 2 R. 3. 1, & 11 H. 4. 36.
Discent.
DIscent or Descent is in two sorts, either lineal or collateral. Lineal Discent is, when a Discent is conveyed in the same Liue of the whole bloud; as grandfather, father, son, sons son, and so downward.
Collateral Discent is out in another branch drawn from above of the whole bloud, as grandfathers brother, fathers brother, and so downward.
Note, that if one die seised in fee or in tail of Land in which another hath right to enter, and that discends to his Heir, such Discent shall take away the Entry of him who hath right to enter, for that the Heir hath it by Discent from his father, and so by act of the Law; and he that hath right cannot put him out by entring upon him, but is put to sue his Writ, to demand the Land according to the nature of his Title. See hereof in Littl. lib. 3. cap. 6. and Stat. 32. H. 8. cap. 33.
Disclaimer.
DIsclaimer is, where the Lord distrains his Tenant, and he sues a Replevin, and the Lord avows the taking, by reason he holds of him; if the Tenant say, that he disclaims to hold of him, this is called [Page 295] a Disclaimer; and if the Lord thereupon bring in a Writ of Right sur Disclaimer, and it be found against the Tenant, he shall lose his Land. Also if one brings a Praecipe against two others for the Land, and the Tenant disclaims, and saith that he is not thereof Tenant, nor claims any thing therein; then the other shall have the whole Land: but if the Praecipe be brought against one alone, and he disclaims, as aforesaid, the Writ shall abate; yet the Demandant may enter in the Land, and hold it in his rightfull estate, though his Entry was not lawful.
And after the Tenant in an Action brought against him disclaims, he shall not have a Writ of Error against his own Disclaimer, because by it he hath barred himself of his right to the Land; for the words of the Disclaimer are, He hath nothing neither claims he to have in the Land, neither at the day of the bringing of the Original Writ aforesaid, &c. had or claimed, but any thing in the same Land to have he disavows and disclaims: and against this he shall not have Restitution by a Writ of Error. See Cok. lib. 8. fol. 62.
So if a Lord, in case where he may, disclaims his Seigniory in Court of Record, his Seigniory by this is extinct, and the Tenant shall hold of the Lord next above him that so disclaimed. Lit. sect. 146.
[Page 296] If Lands be given to the husband and wife in tail or in fee, and the husband dies, the wife cannot devest the Freehold cut of her by any verbal Waver or Disclaimer in the Countrey: as if before any Entry made by her she saith, that she altogether waves and disclaims the said Estate, and will never take nor accept thereof; yet the Free-hold remains in her, and she may enter when she pleases. So a Charter of Feoffment was made to four, and Seisin was delivered to three in the name of all, and after the Seisin was delivered, the fourth coming sees the Deed, and saith by word that he will have nothing of the Land, nor agree to the Deed, but disclaims: and it was adjudged, that this Disclaimer by word in the Countrey shall not devest the Freehold out of him. Cok. lib. 3. fol. 26.
Discontinuance.
DIscontinuance is, when a man alienates to another Lands or Tenements, and dies, and another hath right to the same Lands, and may not enter into them because of this Alienation: as if an Abbot alien the Lands of his House to another in fee, fee-tail, or sor life, or if a man alien the Lands that he hath in right of his wife, or if Tenant in tail [Page 297] makes, of the Lands given to him and the Heirs of his body, any Feoffment, Gift in tail, or Lease for life, not warranted by the Statute 32 Hen. 8. by Fine or Livery of seisin; then such Alienations are called Discontinuances, for such Estates passe away by Livery and seisin: In these cases the Successors of the Abbot, or the woman after the death of her husband, or the issue in tail after the death of the Tenant in tail, and they that have any Remainder or Reversion after the end of the Estate-tail, may not enter, but every of them is put to his Action.
And as there is Discontinuance of Possession, as is said before; so also is there Discontinuance of Process or Plea: and this is when the instant is lost, and may not be regained, but by a new Writ to begin the Suit afresh; for to be discontinued and to be put without day is all one, and nothing else but finally to be dismissed the Court for that time. West part. 2. tit. Fines, sect. 115. So Crompton, in his Jurisdictions, fol. 131. uses it in these words; If a Justice-seat be discontinued by the not coming of the Justices, the King may renew it by his Writ.
And if the Iustices of any Court do not meet at the day and place appointed, then the Cause shall be discontinued unto another day; as in Cok. lib. [Page 298] 1 fol. 38. So if a man hath an Action in the Court of the Marshalsea, and the King removes forth of the Vierge, the Pleas shall be discontinued, Cok. lib. 10. fol. 73.
See more hereof in Litt. lib. 3. cap. 11. and 32 H. 8. cap. 28. which takes away Discontinuances by the husband seised in right of his wife.
Disgrading.
DIsgrading, or Degrading, is when a man having taken upon him a Dignity temporal or spiritual, is afterwards thereof deprived, be he Knight, Clerk, or other. Whereof if a Clerk be delivered to his Ordinary, and cannot clear himself of the Offence whereof he is convicted by the Iury, he shall be disgraded for it; which is nothing else but the Deprivation of him from those Orders he hath taken upon him, as Priesthood, Deaconship, or otherwise. Stamf. Pl. Cor. fol. 130, 138.
In like manner there is Disgrading of a Knight, as is aforesaid. See Stow Annal. pag. 685. And it is worthy the observation, that by the Canon Law there are two kinds of Disgradings; the one summary, by word only, and the other solemn, by Devesting the party disgraded from those Ornaments and Rites which are the [Page 299] Ensigns of his Order or Degree. See 4 E. 4. 19, 20.
Tithes.
TIthes are the Tenth parts of any thing, but properly of those things that increase, which for the most part belong to Ministers of the Church for their maintenance; and they are of three sorts, to wit, Predial, Personal, and mixt. Predial Tithes are Tithes that are paid of things that come of the Ground onely; as Corn, Hay, Fruits of trees, and such like.
Personal Tithes are Tithes paid of such profits as come by the labour and industry of a mans person; as by Buying and Seiling, gains of Merchandize, and of Handycrafts men, Labourers, and such as work for hire, as Carpenters, Masons, and such like.
Mixt Tithes are Tithes of Calves, Lambs, Pigs, and such like, that increase partly of the Ground they are fed upon, and partly of the keeping, industry and diligence of the Owner.
Disparagement.
DIsparagement is a Shame, Disgrace, or Villany done by the Gardian in Chivalrie to his Ward within age, in point of his Marriage.
As when the Gardian marries his Ward within age of fourteen years, and within such time as he cannot consent to Marriage, to a Bond-woman; or to the Daughter of one that dwels in a Borough, (which is to be understood such whose fathers profess Handicrafts, and those baser Arts of buying and selling to get their living) or to one that is lame, or deformed, or hath some horrible Disease, as the Leprosie, French-Pox, Falling-sickness, or such like; or marries him to a woman that is past Child-bearing, and divers such other; then, upon complaint made by the friends of such Heir, the Lord or Gardian shall lose the Wardship, and the profits during the Nonage of the Heir, for the Disparagement done him. See Littl. lib. 2. cap. 4.
Disseisin.
DIsseisin is, when a men enters into any Lands or Tenements where his Entry is not lawful, and puts [Page 301] him out that hath the Freehold.
Disseisin upon Disseisin.
DIsseisin upon Disseisin is, when the Disseisor is disseised by another.
Disseisor and Disseisee.
DIsseisor is he who puts a man out of his Land without order of Law.
But the King cannot be said to be a Disseisor; and with this is a note in 1 E. 5 f. 8. that it was held, the King could not be termed one that did wrong for if one will disseise another to the use of the King, where the King hath no right, the King cannot be said a Disseisor.
Disseisee is he that is put out of his Land; and if such Disseisee levy a Fine of the Land whereof he is disseised to a stranger, the Disseisor shall keep the Land for ever, for the Disseisee against his own Fine cannot claim, and the Conusee cannot enter, for the right which the Disseisee had was extinct by the Fine, whereof the Disseisor shall take advantage: and so was the opinion, Cok. lib 2. fol. 56.
Distress.
DIstress is the thing taken and distrained upon any Land for Rent behind, or other duty, or for hurt done, although the property of the thing belongs to a stranger: but if they are Beasts that belong to a stranger, it behoves that they were levant and couchant upon the same Ground, that is to say, that the Beasts have been upon the ground a certain space, that they have themselves well rested there, or else they are not distrainable for Rent or Service.
If one distrain for Rent or other thing without lawfull cause, then the party grieved shal have a Replevin, and upon Surety found to pursue his Action, shall have the Distress re-delivered. But there are divers things that are not distrainable; viz. another mans Gown in the house of a Tailor, or Cloth in the house of a Fuller, Sheerman, or Weaver, they being common Artificers, and the common presumption is, that such things belong not to the Artificers, but to other persons who put them there to be wrought.
Victual is not distrainable, nor Corn in sheaves, unless they are in a Cart; because a Distress ought to be always of such things whereof the Sheriff [Page 303] may make Replevin, and deliver again in as good case as they were at the taking.
A man may distrain for Homage of his Tenant, for Fealty and Escuage, and other Services and for Fines and Amerciaments which are assessed in a Leet, but not in a Court-Baron; and for Dammage-feasant, that is, when he finds the Beasts or goods of any other doing hurt, or incumbring his Ground. But a man may not distrain for any Rent, or thing due for any Land, but upon the same Land that is charged therewith. And in case where I come to distrain, and the other, seeing my purpose, cases the beasts, or bears the th [...] ng out, to the intent that I shall not take it for a Distresse upon the Ground; then I may well pursue; and if I take it presently in the Highway, or in anothers ground, the taking is lawful as well there as upon the Land charged, to whomsoever the property of the goods belongs.
Also for Fines and Amerciaments assessed in a Leet, one may always take the goods of him that is so amerced, in whose ground soever they be within the Iurisdiction of the Court, as it is said.
Also when one ha [...] h taken a Distresse, it behoves him to bring it to the common Pound, or else he may keep it in an open place, so that he give [Page 304] notice to the party, that he (if the Distress be a quick beast) may give it food; and then if the beast die for want of food, he that was distrained shall be at the loss, and the other may distrain again for the same Rent or duty: But if he carry the Distresse to an Hold, or out of the County, that the Sheriff may not make deliverance upon the Replevin; then the party (upon Return of the Sheriff) shall have a Writ of Withernam directed to the Sheriff, what he take as many beasts or as much goods of the other into his keeping, till deliverance be made of the first Distresse. And also if they be in a Fortlet or Castle, the Sheriff may take with him the Power of the County, and beat down the Castle, as appears by the Statute of West. 1. c. 17. Therefore see the Statute.
District.
DIstrict is sometimes used for the Circuit or Territory within which a man may be compelled to appear, Brit. c. 120. and so also is Districtio in the Reg orig. fol. 6. v. Distresse in the former signification is divided first into finite and infinite. Finite is that which is limited by Law, how often it shall be made, to bring the party to trial of the Action, as once or twice, Old. Nat. Brev. f. 43. Distresse infinite is without limitation untill [Page 305] the party comes; as against a Iury that refuses to appear upon Certificate of Assise, the Process is a Venire facias, Habeas corpora, and distresse infinite. Old. nar. Brev. f. 113.
Then it is divided into the grand Distresse, as Anno 52 H. 3. c. 7. which Fitzh. calls in Latine Magnam Districtionem, Nat. Brev. 126. a. and an ordinary distresse. A grand Distresse is that which is made of all the goods and chattels which the party had within the County, Brit. c. 6. f. 52. But see whether it be not sometimes all one with Distresse infinite, idem fol. 80. with whom also the Statute of Marlbridge seems to agree, Anno 52 H. 3. c. 7. 9, & 12. See the Old. Nat. Brev. 71. b.
Distringas.
DIstringas is a Writ directed to the Sheriff, or any other Officer, commanding him to distrain for a Debt to the King, &c. or for his appearing at a day. See the great diversity of this Writ in the Table of the Reg. judic verbo Distringas.
Also there is a Writ to distrein Iurors to try an issue in a Suit at Common Law. And also another Writ to distrein the adjacent Villages to make good Hedges and fences thrown down in the night by unknown men. Of which see 1 Cro. Rep. 204. & int' Reg. & Inhabit' de Epworth.
Dividend.
DIvidend is a word used in the Statute of Rutland, Anno 10 E. 1. where it seems to signifie one part of an Indenture. See Anno 28 ejusdem, Stat. 3. c. 2.
Divorce.
DIvorce. See Devorce.
Docket.
DOcket is a Little piece of Payer or Parchment written, that contains in it the effect of a Greater Writing. See the Statute 2 & 3 P. & M. c. 6. M. West. part 2. tit. Fines, sect. 106. calls it Dogget.
Dog-draw.
DOg-draw is an apparent Deprehension of an offendor against Venison in the Forrest. There are four kinds of them observed by Manwood, part 2. c. 18. num. 9. of his Forest Laws, that is, Dog-draw, Stable stand, Back-bear, and Bloudy-hand, Dogdraw is, when one is found drawing after a Deer by the sent of a Hound led in his hand.
Dogger.
DOgger is a kind of Ship, Anno 31 E. 3. Stat. 3. c. 1. Dogger-fish, ib. c. 2 seems to be Fish brought in those Ships to Blackney Haven, &c. Doggermen, Anno 2 H. 8. c. 4.
Dole-fish.
DOlefish seems to be those Fishes which the Fishermen yearly imployed in the North seas do of custome receive for their allowance. See the Statute Anno 35 H. 8. c. 7.
Dominus litis.
IS the Advocate in the Civil Law, who after the death of his Client, prosecutes a Suit to sentence for the Executors use.
Domo reparan [...]
DOmo reparanda is a Vr. that lies for one against his neighbour, by the fall of whose House he fears some hurt will come to his own. Reg. orig. fol. 123.
Doom.
DOom (from the Saxon Dom) signifies Iudgment; a word much used in References to Arbitrators.
Dooms-day.
DOoms-day is a Book that was written in the time of S. Edward the Confessor, as the Author of Old Nat. Brev. saith, fol. 15. and before in the title of Ancient demesne, containing in it not only 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. Lambert proves that this Book was made in the time of William the Conquerour, with whom Cambden in his Britan. pag. 94. agrees, proving it out of Ingulphus that flourished the same time, who touching the contents thereof hath these words: It describes the whole Land; neither was there one Hide in all England whose Value and Possessour was unknown, nor any Pool or place not describ'd in the Kings Roll, and the Rent, profits, Possession it self and Possessor not made known to the King, according to the fidelity of the Taxers, who described the same Country wherein they were elected That Roll is called Rotulus Wint. and by the English, for its generality, [Page 309] in that it contains all the Tenements contained throughout the Land, it is surnamed Dooms-day, And this Book is sometimes called Liber Judicatorius, because in it is contained a diligent Description of the Kingdom, and it expresses the value of all the ground thereof, as well in the time of King Edward, as in the time of King William, under whom it was compiled.
Doomsman.
SEem to be Suitors in a Court of a Mannor in Auntient demesne, who are Iudges there.
Donative
DOnative is a Benefice meerly given and collated by the Patron to a man, without either Presentation to, or Institution by the Ordinary, or Induction by his commandment, F. N. B. 35. e. See the Statute of 8. R. 2. c. 4. Peter Gregory de Beneficiis, c. 11. num. 1. hath these words: But if Chappels founded by Lay-men were not approved of the Diocesan, and, as they term it, spiritualized, they are not accounted Benefices, neither can they be conferred by the Bishop, but remain to the pious disposition of the Founders. Wherefore the founders and their Heirs [Page 310] may give such Chappels, if they will, without the Bishop.
M. Gwyn, in the Preface to his Readings, saith, That the King might of antient time found a free Chappel, and exempt it from the Iurisdiction of the Diocesan: So also he may by his Letters Patents give licence to a common person to found such a Chappel, and to ordain that it shall be Donative, and not presentable, and that the Chaplain shall be deprivable by the Founder or his heir, and not by the Bishop: and this seems to be the original of Donatives in England. Fitzherbert saith, fol. 33. c. that there are some Chauntries which a man may give by his Letters Patents.
And all Bishopricks were of the Foundation of the Kings of England, and therefore in the antient time they were Donative, and given by the Kings; yet now the Bishopricks are become, by the Grants of the Kings, eligible by their Chapter, Coke, l. 3. f. 76.
Donor and Donee.
DOnor is he who gives Lands or Tenements to another in tail; and he to whom the same is given is called Donee.
Dorture.
DOrture is a common Room, place, or Chamber, where all the Religious of one Covent slept, and lay all night. Anno 25 H. 8. cap. 11.
Double Plea.
DOuble Plea is, where the Defendant or Tenant in any Action pleads a Plea in which two matters are comprehended, and each one by it self is a sufficient Bar or Answer to the Action, then such double Plea shall not be admitted for a Plea, except one depend upon another; and in such case if he may not have the last Plea without the first, then such a double Plea shall be well received.
Double Quarel.
DOuble Quarel is a Complaint made by any Clerk or other to the Archbishop of the Province against any inferiour Ordinary, for Delaying Iustice in any Cause Ecclesiastical, as to give sentence, or to institute a Clerk presented, or such like: the effect of which is, That the Archbishop, taking knowledge of such Delay, directs his Letters under his [Page 312] authentical Seal to all and singular Clerks of his Province, thereby commanding and giving authority to them and every of them, to admonish the said Ordinary within nine days to do the Iustice required, or otherwise to cite him to appear before him or his Official at a day in the said Letters prefixed, and there to alledge the cause of his Delay; and lastly, to intimate to the said Ordinary, that if he performs not the thing injoyned nor appears at the day assigned, he himself without other Delay will proceed to perform the Iustice required. And it seems to be called a Double Quarel, because it is most commonly made against the Iudge, and him at whose request Iustice is delayed.
Dower.
DOwer, by the Law of the Realm, is a Portion which a Widow hath of the Lands of her husband, which by the Common Law is the third part; but by her husbands assignment by his fathers assent at the Church-door, she may have so much of his fathers Land as is so assigned, and so of the husbands assignment of part of his own Land. And Dower, by the Custome of some places, is to have half [Page 313] the husbands Land. Dower is also a Writ that lies where a man is sole seised, during the Coverture between him and his wife, of Lands or Tenements in Fee-simple or Feetail, where by possibility the issue between them may inherit; if such a man die, his wife shall recover the third part of all the Lands whereof the husband was sole seised any time during the Coverture, by a Writ of Dower unde nihil habet, though he died not seised, and though he made Alienation thereof in his life.
But if a man, before the Statute of Vses, 27 H. 8. had Lands in which another man or other men were seised to his use always during the Coverture, and he to whose use they were seised died before the said Statute, his wife should not be endowed.
And if before the said Statute two men were seised of Lands to the use of one of them, and he to whose use, &c. died before the said Statute, his wife should not be endowed. Also if a woman bring a Writ of Dower, she should recover Dammages for the profit run after the death of her husband, if he died seised thereof: but if any Alienation or Estate were made during the Coverture, so that the husband died not seised; then though she should recover the Land, yet no Dammages.
[Page 314] Also there is another Writ of Dower called a Writ of Right of Dower, which lies where a woman hath recovered part of her Dower in one Town, and the other part she is to recover. But in divers cases a woman shall not have Dower, as if the husband commit Treason, for which he is attainted, then his wife shall have no Dower.
And if she elope from her husband with another man in Adultery, and be not reconciled to him of her own will without coercion of the Church, she shall not be endowed. See Lit. l. 1. cap. 4.
And note, where in the Civil Law Dower is that which the husband hath with his wife in Marriage, to maintain the married estate; by the Laws of this Realm the word (Dower) signifies such Portion as the wife after her husbands death shall have to live on.
Dozeine.
DOzeine. See Deciners.
Drie Exchange.
DRie Exchange (Anno 3 H. 7. cap. 5.) Seems to be a subtile term, invented to disguise Vsury, in which something is pretended to pass on [Page 315] both sides, whereas in truth nothing passes on the one side.
Drift of the Forest.
DRift of the Forrest is nothing else but an exact view or Examination taken once, twice, or oftner in a year, as occasion shall require, what Beasts there are in the Forrest, to the end that the Common in the Forrest be not over-charged, that the Beasts of Foreiners that have no Common there be not permitted, and that Beasts not commonable may be put out. See for this the Statute of 32 H. 8. cap. 35. and Manwoods Forrest Laws, cap. 15.
Right.
RIght is, where one hath a thing that was taken from another wrongfully, as by Disseisin, Discontinuance, or such like; the Challenge or Claim of him that ought to have it is called Right.
If a woman release all her Right to him in Reversion, her Dower is extinct; for when the Right, which is the foundation and principal, is released, by Consequence the Action, which is but the means to recover, is also released. By Release of all Title to the Land all his Right is extinct.
[Page 316] So when a man hath Title either by Condition, or by Alienation in Mortmain, the Release of all his Right shall extinguish this Title, Cok. lib. 8. fol. 151, 153.
Right of Entry.
RIght of Entrie is, when one seised of Land in fee is thereof disseised; now the Disseisee hath Right to enter into the Land, and may so do when he will, or else may have a Writ of Right against the Disseisor.
Duces tecum.
DUces tecum is a Writ out of the Chancery, commanding a man to appear there, and to bring with him some piece of Evidence, or other thing that the Court would have a sight of.
Dum fuit infra Aetatem.
DUM fuit infra aetatem is a Writ that lies where an Infant aliens his Land in Fee-simple, or for term of life; when he comes to his full age he shall have this Writ, or he may enter if he will, but he must be of full age the day of his Writ brought. Also if an Infant alien his Land, and [Page 317] die, his issue at his full age shall have this Writ, or he may enter; but the issue shall not have this Writ within his age.
Dum non fuit compos mentis.
DUM non fuit compos mentis is a Writ that lies when a man that is out of his wit, viz. Mad or Lunatick, aliens his Land in Fee-simple, and dies; then his Heir after his decease shall have this Writ, but he himself shall not have it, for that a man shall not be received to disable himself. Also this Writ may be made in the Per, Cui, and Post
Duplicat.
DUplicat is a Second Letters Patents granted by the Lord Chancellour, in case where he hath granted the same before; and therefore they are held void by Crompton in his Jur. of Courts, fol. 215.
Duresse.
DUresse is, where one is kept in Prison, or restrained from his Liberty, contrary to the order of Law, or threatned to be killed, maimed, or greatly [Page 318] beaten: and if such person so in Prison, or in fear of such Threatnings, make any Specialty or Obligation by reason of such Imprisonment, such a Deed is void in Law; and in an Action brought upon such a Specialty, he may say, it was made by Duresse of Imprisonment. But if a man be arrested upon an Action at the Suit of another, though the cause of Action be not good nor true, if he make an Obligation to a Stranger being in prison by such Arrest, yet it shall not be said by Duresse. But if he make an Obligation to him at whose Suit he was arrested, to be discharged of such Imprisenment, then it shall be said Duresse.
Duchy.
IS a Court in the Duchy Chamber of Lancaster at West. before the Chancellor del Duchy de Lanc̄ for matters concerning the lands and Franchises of the Duchy and their proceedings are by English bill, as in Chancery, Co. 4. Inst. 204.
E.
Earlderman.
EAlderman among the Saxons was as much as Earl among the Danes Camb. Brit. 107. And at this day we call them Aldermen, who are Associates to the chief Officer in the Common Council of the Town, 34 H. 8. c. 13. And in some places the chief Officer himself is called Alderman.
Earle.
EArle. See Countee.
Easement.
EAsement is a Priviledge that one Neighbour hath of another, by Writing or Prescription, without profit; as a Way or a Sink through his Land, or such like, Kitch. f. 105.
Egiptians.
EGiptians, commonly called Gipsies, are counterfeit Rogues, Welsh or English, that disguise themselves in speech and apparel, and wander up and [Page 320] down the Country, pretending to have skill in telling Fortunes, and to deceive the common people, but live chiefly by filching and stealing; and therefore the Statutes of 1 & 2 Mar. c. 4. & 5 Eliz. c. 20. were made to punish such as Felons, if they departed not the Realm, or continued so a mouth.
Ejectione firmae.
EJectione Firmae. Look for that in the Title Quare ejecit infra terminum.
Ejectment de Gard.
Ejectment de Gard. See that in the Title Gards.
Eigne.
EIgne is a French word, and signifies the Eldest or Firstborn. See Enitia pars.
Einecia
EInecia signifies Eldership, Stat. of Ireland, Anno 14 H. 3. See Enitia pars.
Eire Justices.
EIre Justices, or Itinerant, as we call them, were Iustices that used to ride from place to place throughout the Realm, to administer Iustice.
And these Iustices had authority in ancient times to grant Land that was seised for the King for Alienation without licence; for then Iustices in Eire might have granted such Land in fee, rendring Rent, as Iustices of the Forrest (who in effect, as to this purpose, are Iustices in Eire) at this day may of Lands iuclosed within a Forrest, without the Kings licence, Coke, l. 2. fol. 80.
Election.
ELection is, when a man is left to his own Free will, to take or do one thing or another, which he pleases: As if A covenants to pay B a pound of Pepper or Saffron before Whitsontide, it is at the Election of A at all times before Whitsontide, which of them he will pay; but if he pays it not before the said Feast, then afterward it is at the Election of B of have his Action for which he pleases. Dyer, f. 18. pl. 104.
So if a man gives to another his Horse or Cow, the Donee may take the one or the other at [Page 322] his Election: But if it be that he will give, in the future tense, then the Donee cannot take the one nor other, for then the Election is in the Donor. 21 H. 7. 19.
Also if a Iustice of Peace direct his Warrant to a Constable, to bring the party apprehended before him or another Iustice, it is in the Election of the Constable to go to what Iustice he pleases, Coke lib. 5. fol. 59. And so in many other cases.
Elegit.
TO hold by Elegit is, where a man hath recovered Debt or Dammage by a Writ against another by confession, or in other manner, he shall have within the year against him a Writ judicial, called Elegit, to have execution of the half of all his Lands and Chattels, (except Oxen and Beasts of the plow) till the Debt and Dammages be wholly levied and paid him; and during this term he is Tenant by Elegit.
If he be put out within the term, he shall have Assise of Novel Disseisin, and after a Redisselsin, if need be; and this is given by the Statute of Wes [...] m. 2. c. 18.
And by the equity of the said Statute, he that hath this Estate, if he be put out, shall have Assise and Redisseisin, if need be. [Page 323] And also if he make his Executors, and die, and his Executors enter, and after are put out, they shall have such Action as he himself. And if he be put out, and after make his Executors, and die, his Executors may enter; and, if they be stopped of their Entry, they shall have a Writ of Trespasse upon their Case.
If he do Waste in all the Land, or parcel, the other shall have against him immediately a Writ judicial out of the first Record, called Venire facias ad computandum, by which it shall be enquired if he have levied all the money, or parcel; and if he have not levied the money, then it shall be enquired to how much the Waste amounts; and if the Waste amount but to parcel, then as much of the money as the Waste amounts unto shall be abridged of the aforesaid money which was to be levied. But if he have done more Waste then the aforesaid summ of money which was to be levied amounts to, the other shall be discharged forthwith of all the said money, and shall recover the Land. And for the superfluity of the Waste made above the said summ, he shall recover his dammages single. The same Law is of his Executors, and of him that hath his Estate.
Or if the Debtor be satisfied by digging Coals, Load, Tyn, or oeher casual profits.
[Page 324] See the Stat. 32 H. 8. c. 5. If all the Lands extended be evicted from the Debtor by a better title he may take a new Execution, Co. 4. Rep. 66.
If he alien in fee, for term of life, or in tail, all or parcel of the Land which he holds by Elegit, if the Alienation be made within the term or after, he who hath right shall have against him an Assise of Novel Disseisin. And they both must be put in the Assise, the Alienor and the Alience: and though the Alienor d [...] e presently, yet he who hath right shall have Assise against the Alienee alone, as if the Alienee had been a plain Tenant for term of years. And that is by the equity of the Statute of Westm 2. cap. 25. for that he hath but a Chattel in effect. And the same Law is of his Executors, and of him who hath his Estate, as is aforesaid.
In Elegit, if the Sherif return that the party hath nothing the day of the Recognizance made, but that he purchased Lands after the time, then the Plaintiff shall have a new Writ to have Execution thereof. The same Law is of a Statute-Merchant.
After a Fieri facias a man may have the Elegit, but not contrariwise; for that the Elegit is of a higher nature then the Fieri facias.
If a man recover by a Writ of Debt, and sue a Fieri facias, and [Page 325] the Sheriff return that the Defendant hath nothing whereof he may satisfie the Debt to the party; then the Plaintiff shall have Elegit, or Capias sicut alias, and a Pluries. And if the Sheriff return at the Caplas, Mitto vobis corpus, and he have nothing whereof he may make satisfaction to the party, he shall be sent to the prison of the Fleet, and there abide untill he have made Agreement with the party: and if the Sheriff return Non est inventus, then there shall go forth an Exigent against him.
Note well, That in a Writ of Debt brought against a Parson, who hath nothing of Lay-Fee, and the Sheriff returns that he may not be summoned; then shall the Plaintiff sue a Writ to the Bishop, to cause his Clerk to come, and the Bishop shall make him come by Sequestration of the Church.
And if a man bring a Writ of Debt, and recover, and make his Executors, and die; they shall not have Execution, notwithstanding it be within the year, be a Fieri facias.
There is another sort of Elegit upon adjudging execution against Terr-tenants, which Elegits recite the lands against which Execution is adjudged, and commands the Sheriff to deliver to the Creditor a moyty of those Lands, and nothing is therein mentioned of any Goods or Chattels as in the other Elegits,
Elopement.
ELopement is, when a married woman departs from her husband, and dwells with an Adulterer, for which, without voluntary reconcilement to her husband, she shall lose her Dower, by the Statute of West. 2. cap. 34. Whereupon is this old Verse,
Embleaments.
EMbleaments are the Profits of the Land which have been sowed; and in some cases he who sowed them shall have them, and in some not: as if Tenant for life sow the Land, and afterwards die, the Executors of the Tenant for life shall have the Embleaments, and not he in Reversion.
But if Tenant for years sow the Land, and before that he hath reap'd his term expires; there the Lessor or he in Reversion shall have the Embleaments. If one desseises me, and cuts the Embleaments growing upon the Land, and afterwards I re-enter; I shall have an Action of Trespasse against him for the Embleaments: but [Page 327] if my Disseisor makes a Feoffment in fee, or leases the Land whereof he disseised me, and the Feoffee or Lessee takes the Embleaments, and after I re-enter; I shall not have Trespass Vi & armis against them who come in by Title, but against my Disseisor. Cok. lib. 11. f. 51.
If a woman Copiholder, during her Widowhood, according to the Custome of the Mannor, sows the Land, and before severance of the Embleaments she takes a husband; the Lord shall have the Embleaments. So if a woman seised of Land during her Widowhood makes a Lease for years, and the Lessee sows the Land, and the woman takes a husband; there the Lessee shall not have the Embleaments, although his Estate be determined by the act of a stranger.
And although it is commonly held in our Books, That if a man leases Lands at will, and after the Lessee sows the Land, and then the Will is determined, that the Lessee shall have the Embleaments; yet if the Lessee himself determines the Will before the severance of the Corn. he shall not have the Embleaments. See Cok. lib. 5. fol. 116.
Embrasour, or Embraceour.
EMbrasour, or Embraceour, is he that, when a matter is [Page 328] in trial between party and party, comes to the Barrs with one of the parties (having received some reward so to do) and speaks in the case, or privily labours the Iury, or stands there to survey or overlook them, thereby to put them in fear and doubt of the matter. But persons learned in the Law may speak in the case for their clients.
Emparlance.
EMparlance is, when a man being to answer to a Suit or Action, desires some time of Respite, to advise himself the better what he shall answer: and it is nothing else but a Continuance of the Cause untill a fatther day.
And though the Plaintiff (in the Kings Bench) after the Barre pleaded, hath time to reply two or three Terms after; yet no mention shall be made in the Roll of any Emparlance or Continuance, but the Entry shall be general, and so intended to be the same Term. But it is otherwise with a Barre, for it contains the Emparlance or Continuance, and is in this manner: And now at this day, that is, Friday, &c in the same Term▪ untill which day the aforesaid A had licence to imparle, &c.
[Page 329] But there is no such Entry upon any Replication or Rejoynder. See Coke lib. 5. fol. 75.
Brit. cap. 53. uses this word for the Conference of a Iury upon the business to them committed. There is a special Imparlance also for a Defendant salvis sibi omnibus & omnimodis exceptionibus ad breve & narrationem, or ad billam which is of use where the Defendant is to plead some matters which cannot be pleaded after a general imparlance.
Encheson.
ENcheson is a French word much used in our Law Books, as in the Statute of 50 E. 3. cap. 3 and it signifies as much as the Occasion, cause, or reason for which any thing is done. So it is used by Stamford, lib. 1. cap. 12. in his description of a Deodand.
Encrochment.
ENcrochment comes from the French word Acrocher, that is, to Pull or draw to: And it signifies an Vnlawfull gaining upon the right or possession of another. And so a Rent is said to be encroched, when the Lord by Distresse or otherwise compells the Tenant to pay more Rent then he ought, or then he [Page 330] need. See Bucknal's Case, 9 Rep' fol. 33. So when a man sees his Hedge or his Wall too far into the land or ground of his neighbour that lies next him, he is said to incroach upon him.
Enditement, or Indictment.
INdictment comes of the French Enditer, that is, to set a man out as he is. And it is a Bill or Declaration in form of Law, exhibited by way of Accusation against one for some offence either criminal or penal, and preferred to Iurors, and by their Verdict found and presented to be true before a Iudge or Officer that hath power to punish or certifie the Offence.
Endowment.
ENdowment (Dotatio) signifies properly the Giving or assuring of Dower to a woman. But it is sometimes by a Metaphor used for the Setting out or severing of a sufficient part or portion to a Vicar for his perpetual maintenance, when the Benefice is appropriated. And so it is used in the Statutes of 15 R. 2. cap. 6. and 4 H. 4. cap. 12.
Endowment de la pluis. belle part.
ENdowment de la, &c. is, when a man dies seeised of some Lands held in Knights-service and others in Soccage, the Widow is sped of her Dower rather in the Soccage-Lands, as the fairest part. Of this see Littl. lib. 1. cap. 5.
Enfranchisement.
ENfranchisement is, when a man is incorporated into any Society or Body politick. So if an Alien born be made Denizon of England, he is said to be enfranchised; and he that is made a Citizen of London, or other Town Corporate; because he is made partaker of those Liberties which belong to the Corporation whereinto he is enfranchised.
And when a man is enfranchised into a City or Borough, he hath a Free-hold in his Freedome for his life, and with others in their politick capacity, hath Inheritance in the Land of the said Corporation: wherefore the thing which shall be the cause of his Dis-infranchisement ought to be an Act or Deed, and not only an Endeavouring or enterprising, whereof he may repent before it be put in execution. And what shall [Page 332] be sufficient cause to dis-infranchise a Free-man, and what not, see Cok. lib. 11. in Bagg's Case, fol. 98.
Englesherie.
ENglesherie, or Englecerie, is an old word, which signifies the being an Englishman: For in ancient time, as appears by Bracton lib. 3. Tract. 2. cap. 15. fol. 134. if a man had been slain or murthered, he was accounted to be Francigena; which word implies every Alien, until Englesherie were proved, that is, until it was made manifest that he was an Enlishman: The original whereof was this:
Kanotus, the Danish King, having established his Estate here in peace, at the request of our Barons, discharged the Land of his Armies, wherein he reposed his greatest safety, upon this condition, That the Barons would give consent to a Law, That whosoever should [...] ill an Alien, and was apprehanded, and could not acquit himself should be liable to Iustice [...] But if the Man-slaier escayed, the Town where the man was slain should forfeit sixty six Marks to the King; and if [...] he Town was not able to pay it, then the Hundred should forfeit and pay this to the King's own Tteasury: and farther, That every man murthered [Page 333] should be accounted Francigena, unless Englesherie were proved; and how it should be proved, see Bracton in the same chap. num. 7. Also see Horn's Mirrour of Justices, l. 1. cap. of the Office of Coroners, and Fleta, l. 1. c. 30. This Englesherie, for the abuses and grievances which were afterwards perceived to arise therefrom, was utterly abolished by Stat. An. 14. E. 3. c. 4. See Coke, l. 7. f. 16. Calvin's Cafe.
Enheritance.
ENheritance is such Estate in Lands or Tenements, or other things, as may be inherited by the Heir; whether it be estate in Fee-simple, or Tail by Discent from any of his Ancestors, or by his own Purchase.
And it is divided into Enheritance Corporate, and Enheritance Incorporate.
Enheritance Corporate are Mesuages, Lands, Meadows, Pastures, Rents, and such like, that have substance in themselves, and may continue always: And these are called Corporal things.
Enheritance Incorporate are Advowsons, Villains, Ways, Commons, Courts, Fishings, and such like, that are or may be appendant or appurtenant to Enheritance Incorporate.
The Eldest part.
ENitia or Einecia pars is that Part which, upon Partition among Coparceners, falls to the Eldest Sister or ancientest Coparcener, as it appears by Littleton, sect. 245. And it is called Enitia pars from the French word Eigne or Aisne, that is, the First-born.
Enquest.
ENquest is that Inquiry which is made by Iurors in all Causes civil or criminal touching the matter in Fact. And such Inquiry is either ex officio, which are called Inquests of Office and are traversable, or at the mise of the parties. This word is used in the Statutes of 25 E 3. c. 3. 28 E. 3. c 13. and almost in all Statutes that speak of Trials by Iurors.
Entendment.
ENtendment is an usual word in our Law, when a thing is in doubt, then by Entendment it shall sometimes be made good. As if an Inquisition be found before a Coroner, that a man was murthered at A. which is a Liberty, and is not said in the Inquisition at A within [Page 335] the Liberty of A, yet it shall be good by Entendment; for peradventure the Liberty may extend beyond the Town, but that the Town if self shall be presumed to be out of the Liberty of the Town, is a captious construction: wherefore the Inquisition shall be good by Entendment. Coke, l. 5. f. 121. See Kitch. f. 224.
Enterpleader.
ENterpleader is, when in any Cause a matter happens which of necessity ought to be discussed before the principal Cause can be determined: For example, Two persons be found Heir to Land by two several Offices in one County, by this the King is in doubt to whom he shall make Livery, for which cause, before Livery made, he will have them interplead, and thereby determine who is the right Heir. See Coke, l. 7. f. 45. Stam. Prer. c. 19. Brooke, tit. Enterpleader.
Also there is another sort of Interpleader in Detinue in divers cases, which see Rast. Entries 213.
Entire Tenancie.
ENtire Tenancie is that which is contrary to Several Tenancy, and signifies a Sole possession in one man, where the [Page 336] other signifies Ioynt or common in more. See Brooke, Several Tenancies, and the Old Book of Entries, under this Title.
Entrie.
ENtrie is, where a man enters into any Lands or Tenements, or takes possession of them.
Also there are divers Writs of Entry which are in divers manners. One is a Writ of Entrie sur Disseisin, which lies where a man is disseised, he or his Heir shall have this Writ against the Disseisor, or any other after Tenant of the Land. And if the Disseisor alien, and die seised, then the Writ of Entrie shall be against the Heir and the Alienee in the Per; viz. in which the Tenant hath no Entry but by such a one, naming the Disseisor, who him hath disseised, &c.
If the Heir or Alienee die seised, or alien to another, then the Writ shall be in the Per and Cui; viz. to which the Tenant hath no Entry but by such a one, naming the Heir or Alienee of the Disseisor. to whom such a one (naming the Disseisor) did let it, who by force disseised him, &c.
And if Land be conveyed over to many, or if the first Disseisor be disseised, then the Writ of Entry shall be in the Post; viz. that the Tenant hath no Entry [Page 337] but after the Disseisin, which the first Disseisor made to the Demandant or his Ancestor. See Entre en le Per.
Entrie in the Per, Cui, and Post.
A Writ of Entrie in the Per lies where a man is disseised of his Free-hold, and the Disseisor aliens, or dies seised, and his Heir enters, then the Disseisee or his Heir shall have the said Writ against the Heir of the Disseisor, or against the Alienee of the Disseisor; but living the Disseisor, he may have an Assise, if he will, and the Writ of Entry shall say, In quod A non habet Ingressum nisi per B, qui illud ei dimisit, qui inde eum injuste disseisivit, &c. But if the Disseisor alien, and the Alienee dies seised, or aliens over to another, or if the Disseisor dies, and his Heir enters, and that Heir aliens or dies, and his Heir enters; then the Disseisee or his Heir shall have a Writ of Entre sur Disseisin in the Per and Cui, and the Writ shall say, In quod idem A non habet Ingressum nisi per B cui C illud ei dimisit, qui inde injuste, &c.
A Writ of Entry in the Per and Cui shall be maintainable against none, but where the Tenant is in by Purchase or Discent: For if the Alienation or Discent be put out of the Degrees, upon which no Writ may [Page 338] be made in the Per, or in the Per and Cui, then it shall be made in the Post, and the Writ shall say, In quod A non habet Ingressum nisi Post Disseis [...] nam quam B inde injuste & sine judicio fecit praef. t. N. vel M. proavo N. cujus haeres ipse est.
Also there are five things which put the Wri [...] of Entrie out of the Degrees; viz. Intrus [...] on, Succession, Disseisin upon Disseisin, Iudgment, and Escheat.
1. Intrusion is, when the Disseisor dies seised, and a stranger abates.
2. Diss [...] isin upon Disseisin is, when the Disseisor is disseised by another.
3. Succession is, when the Disseisor is a man of Religion, and dies, or is deposed, and his Successor enters.
4. Judgment is, when one recovers against the Disseisor.
5. Escheat is, when the Disseisor dies without Heir, or doth Felony, whereby he is attaint, by which the Lord enters as in his Escheat.
In all these cases the Disseisee or his Heir shall not have a Writ of Entrie within the degrees of the Per, but in the Post, because in those cases they are not in by Discent, nor by Purchase.
Entrie ad Communem Legem.
ALso there is a Writ of Entrie ad Communem Legem, which lies where Tenant for term of Life, Tenant for term of anothers Life, Tenant by the curtesie, or Tenant in Dower, aliens and dies, he in the Revetsion shall have this Writ against whomsoever is in after in the Tenement.
Entrie in the Case provided.
A Writ of Entrie in Casu proviso lies, if Tenant in Dower alien in fee, or for term of life, or for anothers life, living the Tenant in Dower; he in the Reversion shall have this Writ, which is provided by the Stat. of Gloc. c. 7.
Entrie in Casu consimili.
A Writ of Entrie in Casu consimili, lies where Tenant for life or Tenant by the courtesie, aliens in Fee; he in Reversion shall have this Writ, by the Statute of Westmin. 2. cap. 24.
Entrie ad Terminum qui praeteriit.
THe Writ of Entrie ad terminum qui praeteriit, lies where a man leases Land to another for term of years, and the Tenant holds over his term; the Lessor shall have this Writ.
And if Lands be leased to a Man for term of anothers life, and he for whose life the Lands are leased dies, and the Lessee holds over; then the Lessor shall have this Writ.
Entrie without Assent of the Chapter.
A Writ of Entrie sine Assensu Capituli lies where an Abbot, Prior, or such as hath Covent or common Seal, aliens Lands or Tenements of the right of his Church, without the Assent of the Covent or Chapter, and dies; then the Successor shall have this Writ.
Entrie for Marriage in Speech.
A Writ of Entrie causa Matrimonii praeloquuti lies where Lands or Tenements are given to a man upon Condition, that he shall take the Donor to his [Page 341] wife within a certain time, and he does not espouse her within the said term, or espouses another woman, or makes himself Priest, or enters in Religion, or disables himself so that he cannot take her, according to the said Condition; then the Donor and her Heirs shall have the said Writ against him, or against whosoever is in the said Land. But this Condition must be made by Indenture, otherwise this Writ doth not lie. And all these, and other Writs of Entry, may be made in the Per, Cui, and Post.
Entrusion.
ENtrusion, is a Writ that lies where a Tenant for Life dies seised of certain Lands or tenements, and a Stranger enters; he in the Reversion shall have this writ against the Abator, or whosoever is in after their Entrusion.
Also a writ of Entrusion shall be maintainable by the Successour of an Abbot against the Abator, who shall enter in Lands or tenements in the time of Vacation that belong to the Church, by the Statute of Marlebridge, the last Chapter.
And it seems the difference between an Intrudor and an Abator is this; that an Abator is he that enters into Lands [Page 342] void by the death of a Tenant in Fee, and an Intrudor is he that enters into Lands void by the death of a Tenant for Life or Years. See F. N. B. fol. 203.
Entrusion de Gard.
ENtrusion de Gard, is a Writ which lies where the Heir within age enters in his Lands, and holds out his Lord; for in such case the Lord shall not have the Writ de Communi Custodia, but this Writ of Entrusion of the Ward. Old N. B.
Enure.
ENure signifies to take place or effect, to be available. As a Release shall enure by way of Extinguishment. Lit. Cha. Release.
Equity.
EQuity is in two sorts, and those of contrary effects; for the one doth abridge and take from the letter of the Law, the other doth enlarge and add thereunto.
The first is thus defined; Equity is the Correction of a Law, generally made in that part wherein it fails; which correction of the general words is much used in [Page 343] our Law. As for example, When an Act of Parliament is made, that whosoever doth such a thing shall be a Feion, and shall suffer death; yet if a Madman or an Infant that hath no discretion do the same they shall be no Felons, nor suffer death ther fore.
Also if a Statute were made, That all persons that shall receive, or giv [...] me [...] t and drink, or other succor to any that shall do any such thing, shall be accessary to his Offence, and shall suffer death, if they knew of the Fact; yet one doth such an act, and comes to his wife, who knowing thereof doth receive him, and gives him meat and drink, she shall not be Accessary nor Felon; for by the generality of the said words, neither the M [...] d-man, Infant nor Wife, were included in the intent of the Law.
And thus Equity doth correct the generality of the Law in those cases, and the general words are by Equity abridged.
The other Equity is defined to be an Extension of the words of the Law to Cases unexpressed, yet having the same reason. So that when the words enact one thing, they enact all other things that are of like degree. As the Statute which ordains, That in an Action of Debt against Executors, he that doth appear by Distress shall answer, doth extend by Equity to Administrators; for such of [Page 344] them as appear first by Distress, shall answer by Equity of the said Act; because they are of the like kind.
So likewise the Statutes of Gloucester gives the Action of Waste, and the Penalty of it against him that holds for Life or Years; and by the Equity thereof a man shall have an Action of Waste against him that holds but for one year or half a year, yet this is without the words of the Statute; for he that holds but for half a year or one year, doth not hold for years; but that is the meaning, and the words that Enact the one, by Equity Enact the other.
Errant.
ERrant, id est, Itenerans, comes from the French word Errer, id est, Errare, or if the old word Erre, id est, Iter; and is appropriated unto Iustices that go Circuit, and to the Bailiffs at large, who are therefore called Justices Errants, and Bailiffs Errants, because they go and travel from place to place, the one to do Iustice, and the other to execute Process. See Eire.
Error.
ERror is a Fault in Iudgement, or in the Process, or [Page 345] Proceeding to Iudgment, or in the Execution upon the same in a Court of Record; which in the Civil Law is called, a Nullitie. Error is also the name of a Writ that lies where Iudgment is given in the Common place, or before the Iustice in Assise, or Oyer and Terminer, or before the Major and Sheriffs of London, or in other Court of Record, against the Law, or upon undue and ill Process; then the party grieved shall have this Wrft, and thereupon cause the Record and Process to be removed before the Iustices of the Kings Bench, and if the Error be found, it shall be reversed. But if an erroneous Iudgment be given in the Kings Bench, then it could not be reversed but by Parliament, until the Statute of 27 Eliz. cap. 8.
Also if such a Default in Iudgment be given in a Court not of Record, as in a County, Hundred, or Court-Baron, the party shall have a Writ of False Iudgment, to cause the Record to be brought before a Iustice of the Common-place. Also if Error be found in the Exchequer, it shall be redressed by the Chancellor and Treasurer, as it appeas by the Statute E. 3. an. 31. c. 12. & 31 El. c. 1.
Also there is another Writ of Error upon a Iudgment in the Kings Bench; and that is, where the Plaintiff assign matter of Fact for Error: And this lies [Page 346] in the same Court for this Court, can redress their Errors in Fact, (but not their errors in Law) But the Court of common B. cannot do so.
Escape.
EScape is, where one that is arrested comes to his liberty before he be delivered by Award of any Iustice, or by order of Law.
Escape is in two sorts; voluntary, and negligent.
Voluntary Escape is, when one doth arrest another for Felony or other Crime, and after he in whose custody he is lets him go where he will.
And if the Arrest were for Felony, then shall it be Felony in him that suffered the Escape; if for Treason, then Treason in him; and if for Trespass, then Trespass; and so in all other.
When one is arrested, after escapes against the will of him that did arrest him, and is not freshly pursued, and taken before the pursuer loses the sight of him; this shall be said a negligent Escape, notwithstanding that he out of whose possession he escaped do take him after he lost sight of him. A so if one be arrested, and after escape, and is at his liberty, and he in whose ward he was take him afterward, and bring him to the [Page 347] prison; yet it is an Escape in him.
If a Felon be arrested by the Constable, and brought to the Goal in the County, and the Goaler will not receive him, and the Constable lets him go, and the Goaler also, and so he escapes; this is an Escape in the Goaler, for that in such case the Goaler is bound to receive him by the hand of the Constable, without any Precept of the Iustice of Peace. But otherwise it is, if a common person arrest another upon suspicion of Felony, there the Goaler is not bound to receive him without a Precept of some Iustice of Peace.
There is an Escape also without an Arrest: as if Murder be made in the day, and the Murderer be not taken, then it is an escape, for which the Town where the Murder was done shall be amerced.
And it is to be observed, That a man may be said to escape, notwithstanding he always continues in Prison. As, if a man be in Prison upon two Executions at the Suit of two several men, and the old Sheriff delivers over this Prisoner to the new Sheriff by Indenture according to the usual course, and in the said Indenture makes no mention of one of the said Executions; this Omission shall be said an Escape in Law instantly, for which the Old Sheriff shall answer, [Page 348] although the Execution was matter of Record, whereof the new Sheriff might have taken notice. But otherwise it is where the old Sheriff dies, for in such case it behoves the new Sheriff at his peril to take notice of all the Executions that are against any person that he finds in the Gaol: But in the said Case, where the Sheriff dies, and before another is made, one that is in Execution breaks the Gaol, and goes at large, this is no Escape; for when a Sheriff dies, all the Prisoners are in the custody of the Law, until a new Sheriff be made. See Coke, lib. 3. fol. 72.
If the Sheriff upon a Capias ad satisfaciendum to him directed, makes Return, That he hath taken the Body, and yet hath not the Body in Court at the day of the Return; the Plaintiff may have his Action against the Sheriff for the Escape, although the party so taken be in the Gaol. See 7 H. 4. 11. Br. 107.
Escheat.
EScheat is, where a Tenant in Fee-simple commits Felony, for which he is hanged, or abjured the Realm, or Outlawed of Felony, Murder, or Pety Treason, or if the Tenant die without Heir general or special; then the Lord of [Page 349] whom the Tenant held the Land, may enter by way of Escheat; or if any other enter, the Lord shall have against him a Writ called a Writ of Escheat.
Escheator.
EScheator is the name of an Officer that observes the Escheats of the King in the County whereof he is Escheator, and certifies them into the Exchequer. This Officer is appointed by the L. Treasurer, and by Letters Patents from him, and continues in his Office but one year; neither can any be Escheator but once in three years. An. 1. H. 8. cap. 8. and an. 3 ejusdem cap. 2. See more of this Officer and his Authority, in Crompton's Justice of Peace. See An. 21 Ed. 1. The form of the Oath of the Escheator see in the Regist. orig. fol. 301. b. And the Escheator is an Officer of Record, and may ordain an under-Escheator, as the Sheriff may an under-Sheriff; yet the Escheator cannot return any Office by vertue of his Office, but he shall be punished. See F. N. B. 100. Office Escaetriae is the Escheatorship. Reg. orig. fol. 259.
Exchequer.
EXchequer (Scaccarium) comes of the French word Eschequier, id est, Abacus, which in one signification is taken for a Counting-Table, or for the art or skill of Counting. And from thence (as some think) the place or Court of the Receits and Accounts of the Revenues of the Crown is called the Exchequer. Others have otherwise derived the name. But the Exchequer is defined by Crompton in his Jurisd. of Courts, fol. 105. to be a Court of Record, wherein all Causes touching the Revenues of the Crown are handled.
Escrow.
AN Escrow is a Deed delivered to a third person to be the Deed of the party upon a future condition, And is called in Latine Schedula. Rast. Ent. 181.
Escuage.
EScuage, in Latine Scutagium, that is, Service of the Shield, and he that held by Escuage, held by Knight-service; and to that did belong Ward, Marriage, and Relief, &c.
But see the Stat. 12 Car. 2. [Page 351] c. 24. for taking away the Court of Wards and Liveries, and turning all Tenures into free and common Soccage.
Escuage was a certain Sum of mony levied by the Lord of his Tenant, after the quantity of his Tenure, when Escuage ran through all England, and was Ordained by all the Council of England, how much every Tenant should give his Lord; and that was properly to maintain the wars against Scotland or Wales, and not against other Lands, for that those Lands did of right belong to the Realm of England. See Lit. lib. 2. cap. 3.
Eslisors.
ARe persons nominated by a Court of Law, to whom a Venire facias is directed (by challenge to the Sheriff and Coroners) who return the Writ in their own names, with a panel of the Iurors names. 15 E. 4. 24. pl. 4.
Esnecy.
ESnecy is a Priviledge given the eldest Coparcener, to choose first after the Inheritance is divided. Flet. lib. 5. cap. 10.
Esplees.
ESplees is the Profit or Commodity that is to be taken of a thing: As of a Common, the taking of the Grass by the mouths of the Beasts that common there; of an Advowson, the taking of gross Tithes by the Parson; of Wood, the [...] elling of Wood; of an Orchard, the selling of Apples and other Fruit growing there; of a Mill, the taking of Toll, are the Esplees, and of such like. And note, that in a Writ of Right of Land, Advowson, or such like, the Demandant ought to alledge in his Count, that he or his Ancestors took the Esplees of the thing in demand, otherwise the Pleading is not good.
Essendi quietum de Tolonio.
ESendi quietum de Tolonio, is a Writ to be quit of Toll, and lies in case where the Citizens or Burgesses of any City or Borough have been acquitted of Toll by the Grant of the Kings Progenitors throughout the whole Realm, or by Prescription; then if any man of the said Cities or Boroughs come with his Merchandises to any Town, Fair, or Market, and there put them to sale, [Page 353] or buy any Merchandises, if the Officers of the said Town will demand any Toll of him against the Kings Charter, or against the Vsage and Custom, he may sue and have such a writ. Fitz. N. B. fol. 226. Regist. original, fol. 258.
Essoine.
Essoine: Where an Action is brought, and the Plaintiff or Defendant may not well appear at the day in Court, for one of the five causes under specified, he shall be Essomed to save his default.
There are five manner of Essoins: viz. Essoine De ouster le mere, by which the Defendant shall have a day by forty days.
The second is, De terra sancta, and upon this the Defendant shall have a day by a year and a day; and these two shall be laid in the beginning of the Plea.
The third Essoin is, De male vener, and that shall be adjourned to a common day, as the Action requires; and this is called the Common Essoine: and when and how this Essoine shall be, see the Statutes, and the Abridgment of Statutes, where it is well declared.
The fourth is, De malo lecti, and that is only in a Writ of Right, and thereupon [Page 354] there shall a Writ go out of the Chancery directed to the Sheriff, that he shall send four Knights to see the tenant, and if he be sick, to give a day after a year and a day.
The fifth Essoine is, De service del Roy, and it lies in all Actions, except i [...] Assise De Novel Disseisin, Writ of Dower, Darreine presentment, and in Appeal of Murther: but in this Essoine it behoves at the day to shew his warrant, or else it shall turn to a Default, if it be in a Plea real; or else he shall lose xx s. for the journey, or more, by the discretion of the Iustice, if it be in a Plea personal, as it appears by the Statute of Gloucest. cap. 8.
Essoino de malo lecti.
ESsoino de malo lecti, is a writ directed to the Sheriff, to send four lawful Knights to view one that hath essoined himself De malo lecti. Reg. Orig. fol. 8. b.
Establishment de Dower.
EStablishment de Dower seems to be the Assurance of Dower made by the husband or his friends before or at the time of the Marriage: And Assignment of Dower is the Setting it out by the Heir afterward, [Page 355] according to the Establishment. Brit. cap. 102, 103.
Estandard.
EStandard or Standard signifies an Ensign in war; but is also used for the principal or Standing Measure of the King, to the proportion whereof all the Measures through the Land are and ought to be framed by the Clerk of the Market, Aulneger or other Officer, according to their Function.
For it was established by Magna Charta, ann. 9 H. 3. c. 25. that there should be but one scantling of Weights and Measures through all the Realm: which is since confirmed by An. 14 Ed. 3. cap. 12. and many other Statutes; as also that all should be [...] itted to the Standard sealed with the Kings Seal.
And there is good reason that it should be called a Standard, because it stands constant and immoveable, and hath all other Measures coming towards it for their conformity; as Souldiers in the Field have their Standard or Colours for their direction in their March or Skirmish. Of these Standards and Measures read Britton. cap. 30. See the Statute 17 Car. 1. cap. 19.
Estate.
EState, is that Title or Interest that a man hath in Lands and Tenements; as Estate simple, otherwise called Fee-simple, and Estate conditional or upon Condition; which is either upon Condition in Deed, or upon Condition in Law. See Littleton, lib. 3. cap. 5.
Estoppel.
EStoppel is, when one is concluded and forbidden in Law to speak against his own act or deed, yea, though it be to say the truth.
And of Estoppels there are divers. One for example is, when J. S. is bound in Obligation by the name of T. S. or any other name, and is sued afterward according to the name in the Obligation; now he shall not be received to say that he is misnamed, but shall be driven to answer according to the name put in the Obligation, that is, T. S; for peradventure the Obligee did not know his name but by the report of the Obligor himself: and inasmuch as he is the same man that was bound, he shall be estopped, and forbidden in Law to say contrary to his own deed; for otherwise he [Page 357] might take advantage of his own wrong, which the Law will not suffer a man to do.
If the daughter who is Heir to her father will sue Livery with her Sister who is a Bastard, she shall not afterward be received to say that her Sister is a Bastard, insomuch as if her Bastard-sister take half the Land, there is no remedy by the Law.
Also if a man seised of Lands in Fee-simple will take a Lease for years of the same Land of a stranger by Deed indented; this is an Estoppel during the term of years, and the Lessee is thereby barred to say the truth, which is, That he that Leased the Land had nothing in it at the time of the Lease made, and that the Fee-simple was in the Lessee: But this he shall not be received to say till after the years are determined, because it appears that he hath an Estate of years, and it was his folly to take a Lease of his own Lands, and therefore shal thus be punished for his folly.
Estovers.
Estovers are Nourishment or Maintenance: And Bract. l. 3. tract. 2. c. 18. num. 1. uses it for such Sustenance as a man, taken for Felony, is to have out of his Lands or Goods for himself and his Family during his Imprisonment. And the Statute [Page 358] of 6 E 1. c. 3. uses it for an allowance in Meat or Cloth. It is also used for certain Allowances of wood to be taken out of another Mans wood; Westm. 2. c. 15. Anno 13. 1. West. part. 2. tit. Fines, sect. 26. saith, That the name Estovers comprehends House-boot; Hedge-boot, and Plow-boot; as if one hath in his Grant these general words, Reasonable Estovers in the Woods, &c. he may thereby claim those three.
Estrangers.
EStrangers are sometimes taken for those that are not Parties or Privies to the levying of a Fine, or making of a Deed; sometimes those that are born beyond Sea.
Estray.
EStray is, where any Beast or Cattel is in any Lordship, and none knows its Owner; then it shall be seised to the use of the King, or of the Lord that hath such Estray by the Kings Grant, or by Prescription: and if the Owner make claim thereto within a year and a day, he shall have it again; otherwise after the year, the property thereof shall be to the Lord, provided he make Proclamation of it according to Law.
Estreat.
EStreat is a Figure or Resemblance, and is commonly used for the Copy or true Note of an Original writing; as Estreats of Amerciaments imposed in the Rolls of a Court, to be levied by the Balliff, or some other Officer, of every man that hath offended. See F. N. B. 75 & 76. And so it is used in Westm. 2. c. 2.
Estrepment.
EStrepment is a Writ that lies where one is impleaded by a Praecipe quod reddat for certain Land; if the Demandant suppose that the Tenant will do Waste depending the Plea, he shall have against him this Writ, which is a Prohibition, commanding him to do no waste, depending the Plea.
And this Writ lies properly where a man demands Lands by Formedon, or writ of Right, or such writs where he shall not recover Dammages; for in such writs where he shall recover Dammages, he shall have his Dammages, with regard to the waste done.
Etate probanda.
ETate probanda is a Writ of Office, and it lies for the [Page 360] Heir of the Tenant that held of the King in chief, to prove he is of full age, directed to the Sheriff to enquire of his age; and then he shall become Tenant to the King by the same Services that his Ancestors made to the King. But it is said, that every one that shall pass in this Enquest, shall be of the age of xlii. years at least. But see the Stat. 12 Car. c. 2. for abolishing the Court of Wards and Liveries, &c.
Evesdroppers.
EVesdroppers are such as stand under Walls or Windows by night or day to hear news, and to carry them to others, to make strife and debate amongst their Neighbors: those are evil Members in the Common-wealth, and therefore by the Stat. of Westm. 1. c. 33. are to be punished.
And this Misdemeanor is presentable and punishable in the Court-Leet, Kitch. f. 11.
Evidence.
EVidence is generally used for any Proof, be it by the Testimony of men, or by Writing. Sir Tho. Smith, l. 2. c. 17. uses it in both senses, in these words; Evidence is authentical Writings of Contracts, according to the manner of England, that is, written, sealed, and delivered.
[Page 361] And l. 2. c. 23. speaking of the Prisoner that stands at the Bar to plead for his life, and of those that charge him with Felony, thus; Then he tells what he can say; after him also all those who were at the Apprehension of the Prisoner, or who can give any Signs or Tokens, which we call in our Language, Evidence against the Malefactor.
Exaction.
EXaction is a wrong done by an Officer, or by one pretending to have authority, in demanding or taking any reward or Fee for that matter, cause or thing, which the Law allows not.
The difference between Exaction and Extortion, is this: Extortion is, where an Officer demands and extorts a greater Sum or Reward then his just Fee: And Exaction is, where an Officer or other man demands and wrests a Fee or Reward, where no Fee or Reward is due at all. See Extortion.
Exception.
EXception is a Bar or Stay to an Action; and is divided into Exception dilatory, and peremptory. Of these two see Bracton, l. 5. tract. 5. and Britton, c. 91, 92.
Exchange.
EXchange is, where a man is seised of certain Land, and another is seised of other Land, if they by a Deed indented, or without Deed, if the Lands be in one County, exchange their Lands, so that each of them shall have other Lands to him so exchanged in fee, fee-tail, or for term of Life, that is called an Exchange, and is good without Livery and Seisin.
In Exchange the Estates to them limited must be egal; for if one should have an Estate in fee in his Land, and the other an Estate in the other Land but for term of Life, or in tail, such Exchange is void; but if the Estates be egal, though the Lands be not of egal value, yet the exchange is good. Also an exchange of Rent for Land is good. And an exchange between Rent and Common is good, and that ought to be by Deed. Also it behoves alway that this word Exchange be in the Deed, or else nothing passes by it, except he have Livery and Seisin.
Exchequer.
EXchequer, See Exchequer.
Excommengement.
EXcommengement is to say in Latine, Excommunicatio, and it is where a man by judgment in Court Christian is Excommenged, by which he is disabled to sue any Action in the Kings Court; and if he remain Excommunicate xl. days, and will not be justified by his Ordinary, then the Bishop shall send his Letter Patent to the Chancellour to certifie this excommunication or contempt; and thereupon the Sheriff shall be commanded to take the Body of him that is Accursed, by a Writ called, De Excommunicato capiendo, till he hath made satisfaction to holy Church for the Contempt and Wrong: and when he is justified, the Bishop shall send his Letters to the King, certifying the same; and then the Sheriff shall be commanded to deliver him by a Writ called Excommunicato deliberando. See the Statute 5 Eliz. cap. 23.
Excommunication.
EXcommunication. See Excommengement.
Execution.
EXecution is, where Iudgment is given to any Action, [Page 364] that the Plaintiff shall recover the Land, Debt, or Dammages, as the case is; and when any Writ is awarded to put him in possession, or to do any other thing whereby the Plaintiff should the better be satisfied his Debt or Dammages, that is called a Writ of Extention; and when he hath the possession of the Land, or is paid the Debt or Damages, or hath the Body of the Defendant awarded to prison, then he hath Execution. And if the Plea be in the County, or Court-Baron, or Hundred, and they defer the execution of the Iudgment in favor of the party, or for other cause; the Demandant shall have a Writ De Executione Judicii.
Note, that in a Writ of Debt a man shall not have Recovery of any Lands, but of those which the Defendant hath the day of the Iudgment yielded. And of Chattels, a man shall have execution only of the Chattels which he hath the day of the execution sued.
Executione facienda.
EXecutione facienda, is a Writ commanding Execution of a Iudgment; the divers uses whereof see in the Table of the Reg. Judic.
Executor.
EXecutor is, when a Man makes his Testament and last Will, and therein names the person that shall execute his Testament, that is his Executor, and is as much in the Civil Law as Haeres designatus, or Testamentarius, as to Debts, Goods and Chattels of his Testator: and such an Executor shall have an Action against every Debtor of his Testator; and if the Executor hath Assets, every one to whom the Testator was in Debt, shall have an Action against him, if he have an Obligation or Specialty; but in every case where the Testator might wage his Law, no Action lies against the Executor. See hereof before in the Title Administrators.
And if any other person not made Executor, take or sell the Goods of the deceased, he may be sued as Executor of his own wrong, in the same form as other Executor. See the Statute of 30 Car. 2. cap. 7.
Exemplification.
EXemplification is, when a man will have any Original Record written out and exemplified forth of the Court where it remains, to which purpose he may have a Writ, as appiert [Page 366] by the Reg. orig. f. 290.
And if a man will plead a Record in other Court then where it remains, it behoves him to have it exemplified under the Great Seal of England; for if it be exemplified under the Seal of the Common Pleas, Exchequer, or such like, it will not serve, unless in Evidence to a Iury. See Coke l. 5. f. 53.
See the Statute of 13 Eliz. cap. 6. and 23 El. 3. The force and use of Exemplifications of Patents, &c.
Exemption.
EXemption is a priviledge to be Free from Service or Apparance: and therefore a Baron & Baronness, by reason of their Dignity, are exempted to be sworn upon any Inquest. Coke l. 6. f. 53.
Also Knights, Clerks, and Women are exempted to appear at Leets, or the Sheriffs Tourn: And that is by the Statute of Marlebridge, c. 10.
And a man may be exempted from being put upon Enquests and Iuries by the Kings Letters Patents; as the President and Colledge or Commonalty of Physicians in London, were by the Letters Patents of King H. 8. Coke l. 8. f. 108.
Ex gravi querela.
EX gravi querela. See before in the Title Devise.
Exigent.
EXigent is a Writ that lies where a man sues an Action personal, and the Defendant cannot be found, nor hath any thing within the County whereby he may be attached or distrained: then this Writ shall go forth to the Sheriff, to make Proclamation at five Counties, every one after another, that he appear, or else that he shall be out-lawed: and if he be outlawed, then all his Goods and Chattels are forfeit to the King. In an Indictment of Felony the Exigent shall go forth after the first Capias. And in a Capias ad computandum, or ad satisfaciendum, and in every Capias that goes forth after Iudgment, the Exigent shall go forth after the first Capias. And also in Appeal of Death; but not in an Appeal of Robbery or Mayhem.
With this Exigent issueth also a writ by the Statute of 13 El. cap. 3. to make three Proclamations against the Defendant, which is not in Exigents after Iudgment.
Exigenter.
EXigenter, is an Officer of the Common Pleas, of which there are four. They make out all Exigents and Proclamations in all Actions, in which process [Page 368] of Outlawry lies. And they make writs of Supersedeas, as well as the Preignotaries upon such Exigents as were made in their Office. Of this Officer there is mention made in the Statutes of 10 H. 6. c. 4. & 18 H. 6. c. 9.
Ex mero motu.
EX mero motu are words frequently used in the Kings Charters, whereby he signifies, 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 is, to bar all exceptions that might be taken to the Instrument wherein they are contained, by alledging, that the King in passing that Charter was abused by any false Suggestion. Kitch. f. 151.
And when the Kings Charter hath therein these words, it shall be taken most strongly against the King; therefore if the King, ex mero motu, pardon to B. all his debts, all the debts that B. ows as Sheriff are by this pardoned; and in like manner it is in many other cases, where these words shall be taken as strongly against the Kings, as if a common person had made the Grant. See Coke, l. 1. f. 45.
Expeditate.
EXpeditate is a word often used in the Forrest, signifying to cut out the Balls of great Dogs feet, for preservation of the Kings Game. And one of the Articles to be enquired touching the Forrest, is, If all great Dogs or Mastives in the Forest are Expeditated, according to the Laws of the Forrest; and if any be not, the Owner of every such Dog shall forfeit to the King three shillings and four pence, Cromp. Jurisd. fol. 152. Manwood uses the same word, and (part. 1. of his Forrest Law, fol. 212.) sets down the manner of expeditating Dogs heretofore, which was, that the three Claws of the Fore-foot on the right side shall be cut off by the skin; whereunto he also adds out of the Ordinance called the Assise of the Forrest, that the same manner of expeditating Dogs shall be still used and kept, and none other. Quaere whence it arises that Crompton and he differ; the one saying the Ball of the foot is cut out; the other, that the three Fore-claws are cut off by the skin.
Expensis Militum levandis.
EXpensis Militum levandis, is a Writ directed to the Sheriff for levying the Allowance for the Knights of the Parliament, Regist. orig. fol. 191. b. And Expensis Militum non levandis de hominibus de Antiquo Dominico, nec a Nativis, is a Writ to prohibit the Sheriff to levy any Allowance for the Knights of the County upon such as hold in Ancient Demesne, &c. Ibidem fol. 261. b.
Extend.
EXtend is, to value the Lands or Tenements of one bound by Statute, &c. that hath forfeited it, and to deliver them to the Conusee at such indifferent rates, as that by the yearly Profits the Conusee in time may be satisfied his Debt. See Fitz. Nat. B. fol. 131. and Coke, lib. 4. fol. 67. Fulwoods Case.
Extent.
EXtent has two significations: The one is a Writ or Commission to the Sheriff for the valuing of Lands or Tenements; the other, the act of the Sheriff or other Commissioner [Page 371] upon that Writ. Broke, tit. Extent. fol. 313.
Extinguishment.
EXtinguishment is, where a Lord, or any other, hath any Rent or Service going out of any Land, and he purchases the same Land, so that he hath such Estate in the Land as he hath in the Rent; then the Rent is extinct, for that one may not have Rent going out of his own Land. Also when any Rent shall be extinct, the Land and the Rent must be in one hand, the Estate indefesible, and he have as good Estate in the Land as in the Rent; for if he have Estate in the Land but for Life or Years, and hath Fee-simple in the Rent, then the Rent is not extinct, but in suspence for that time, and after the term the Rent is revided.
If there be Lord, Mesne, and Tenant, and the Lord purchase the Tenancy, the Mesnalty is extinct; but the Mesne shall have the surplusage of the Rent, if there be any, as Rentseck. Also if a man have a High-way appendant, and after purchase the Land wherein the High-way is, then the Way is extinct: and so it is of a Common appendant.
Extortion.
EXtortion is wrong done by any Officer, Ordinary, Archdeacon, Official, Major, Bailiff, Sheriff, Escheator, Coroner, Under-Sheriff, Goaler, or other Officer, by colour of his Office, by taking excessive Reward or Fee for execution of his Office, or otherwise; and is no other thing indeed then plain Robbery, or rather more odious then Robbery: for Robbery is apparent, and always hath with it the countenance of Vice: but Extortion, being as great a Vice as Robbery is, carries with it a countenance of Vertue, by means whereof it is the more hard to be tried or discerned, and therefore the more odious. And yet some there are that will not stick to stretch their Office, Credit, and Conscience, to purchase Mony, as well by Extortion as otherwise, according to the saying of the Poet Virgil, What is it that the greedy thirst of Gol [...] doth not constrain mortals to attempt?
F. Faculty.
FAculty is a word often used in the Statute of 25 Hen. 8. cap. 21. and it signifies a Priviledge or special Dispensation granted unto a man by favour and indulgence, to do that which by the Law he cannot do; as to eat Flesh upon days forbidden, or to hold two or more Ecclesiastical Livings, and the like. And for the granting of these Faculties, there is a special Officer under the Arch-bishop of Canterbury, called, The Master of the Faculties.
Failing of Record.
FAiling of Record is, when an Action is brought against one, who pleads any matter of Record, and avers to prove it by Record; and the Plaintiff saith there is no such Record; whereupon the Defendant hath day given him to bring in the Record; at which day he fails, or brings in such a one as is no Bar to this Action: then he is said to fail of his Record; and thereupon the Plaintiff shall have Iudgment to recover, &c.
Faint Action. Faint Pleading.
FAint Action (as Littleton, fol. 154. saith) is as much as to say in English, a Fained Action, that is, such Action, as though the words of the Writ be true, yet for certain causes he hath no title by the Law to recover by the same Action: And a false Action is, where the words of the Writ are false. So Faint Pleading is a covinous, false, and collusory manner of Pleading, to the deceit of a third party. And against such Faint Pleading, amongst other things, the old Statute in 3 E. 1. cap. 29. seems to be made.
Deed.
DEed is a Writing sealed and delivered, to prove and testifie the agreement of the party whose Deed it is to the thing contained in the Deed: as a Deed of Feoffment is a Proof of the Livery of Seisin, for the Land passes by the Livery of Seisin; but when the Deed and the Delivery are joyned together, that is a proof of the Livery, and that the Feoffor is contented that the Feoffee shall have the Land.
All Deeds are either Indented, whereof there are two, three, [Page 375] or more parts, as the ease requires; of which the Feoffor, Grantor, or Lessor hath one; the Feoffee, Grantee, or Lessee another; and peradventure some other body a third, &c. Or else they are Poll Deeđs, single, and but one, which the Feoffee, Grantee or Lessee hath. &c. And every Deed consists of three principal Points, (without which it is no perfect Deed to bind the parties) namely, Writing, Sealing, and Delivery.
1. By Writing is shewed the parties Names to the Deed, their Dwelling-places, their Degrees, the Thing granted, upon what Considerations, the Estate limited, the Time when it was granted, and whether simply, or upon Condition, with other such like Circumstances. But whether the parties to the Deed write in the end their Names, or set to their Marks, (as it is commonly used) it matters not at all, (as I think) for that is not meant, where it is said, that every Deed ought to have Writing.
2. Sealing is a farther Testimony of their Consents to what is contained in the Deed; as it appears in these words, In Witness whereof, &c. or to such effect, always put in the latter end of Deeds, without which words the Deed is insufficient.
And because we are about Sealing and Signing of [Page 376] Deeds, it shall not be much amiss here to shew you, for Antiquities sake, the manner of Signing and Subscribing Deeds in our Ancestors the Saxons time, a fashion Differing from that we use now, in this, That they to their Deeds subscribed their Names, (commonly adding the Sign of the Cross) and in the end did set down a great number of Witnesses, not using at that time any kind of Seal: And we at this day, for more surety, both subscribe our Names, (though that be not very necessary) and put to our Seals, and use the help of Witnesses besides.
That former fashion continued absolute until the time of the Conquest by the Normans, whose manners by little and little at the length prevailed amongst us; for the first Sealed Charter in England, is thought to be that of King Edward the Confessour, to the Abbey of Westminster, who being educated in Normandy, brought into this Realm that and some other of their Fashions with him. And after the coming of William the Conquerour, the Normans liking their own Country Custom, (as naturally all Nations do) rejected the manner that they found here, and retained their own, as Ingulphus the Abbot of Croiland, who came in with the Conquest, Witnesses, saying; [Page 377] The Normans do change the making of Writings (which were wont to be firmed in England with Crosses of Gold, and other holy Signs) into an impression of Wax, and reject also the manner of the English Writing. Howbeit, this was not done all at once, but it increased and came forward by certain degrees: so that first and for a season the King only, or a few other of the Nobility, used to Seal; then the Noble-men, for the most part, and none other. Which thing a man may see in the History of Battel Abbey, where Richard Lucie Chief Iustice of England, in the time of King Henry the Second, is reported to have blamed a mean Subject, for that he used a private Seal, whereas that pertained, (as he said) to the King and Nobility only.
At which time also (as J. Rosse notes it) they used to ingrave in their Seals their own Pictures and Counterfeits, covered with a long Coat over their Armors. But after this, the Gentlemen of the better sort took up the Fashion, and because they were not all Warriors, they made Seals ingraven with their several Coats or Shields of Arms, for difference sake, as the same Author reports. At length, about the time of King Edward the third, Seals became very common; so that not only such as bare Arms used to Seal, [Page 378] but other men also fashioned to themselves Signers of their own devices, some taking the Letters of their own Names, some Flowers, some Knots and Flourishes, some Birds and Beasts, and some other things, as we now yet daily see used.
Some other manners of Sealing besides these have been heard of among us; as namely, that of King Edward the third, by which he gave to Norman the Hunter,
The like to this was shewed me by one of my Friends in a loose Paper, but not very anciently written, and therefore he willed me to esteem of it as I thought good: It was as follows.
I William King, give to thee Powlen Royden my Hop and my Hop-Lands, with all the bounds up and down, from Heaven to Earth, from Earth to Hell, for thee and thine to dwell, from me and mine, to thee and thine, for a Bow and a broad Arrow, when I come to hunt upon Yartow. In witness that this is sooth, I bit this Wax with my tooth, in the presence [Page 379] of Magge, Maud, and Margery, and my third son Henry,
Also that of Alberick de Vere, containing the Donation of Hatfield, to which he affixed a short black-hafted knife, like an old half-peny whittle, instead of a Seal: with Divers such like.
But some peradventure will think, that these were received in common use and custom and that they were not the devices and pleasures of a few singular persons: such are no less deceived then they that deem every Charter and Writing, that hath no Seal annexed, to be as ancient as the Conquest; whereas indeed Sealing was not commonly used till the time of King Edw. 3. as hath been already said.
3. Delivery, though it be set last, is not the least; for after a Deed is written and sealed, if it be not delivered, all the rest is to no purpose.
And this Delivery ought to be done by the party himself, or his sufficient Warrant; and so it will binde him whosoever wrote or sealed the same: and by this last act the Deed is made perfect, according to the intent and effect of it; and therefore in Deeds the Delivery is to be proved, &c.
Thus you see, Writing and Sealing, without Delivery, is nothing to purpose: Sealing and Delivery, where there [Page 380] is no Writing: work nothing: And Writing and Delivery, without Sealing, make no Deed, Therefore they all ought joyntly to concur to make a perfect Deed.
Faitour.
FAitour is a word used in the old repealed Statute of 7 R. 2. cap. 5. and it is there taken in the worser sense, for an Evil doer, or an Idle companion, and it seems there to be a Synomymon to Vagabond.
Fardingdeale.
FArdingdeal, otherwise Farundel, of Land, signifies the Fourth part of an Acre, Cromptons Jurisd. fol. 220. b. Quadrantata terrae is read in the Reg. orig fol. 1 b where you may have Denariata and Obolata, Solidata and Librata terrae, which by probability must rise in proportion of quantity from Fardingdeal, as a Half-peny, Peny, Shilling, or Pound, rise in value or estimation; then must Obolata be Half an Acre, Denariata the Acre, Solidata Twelve Acres, and Librata Twelve score Acres. Yet in the Reg. orig. fol. 94, and 248. you may find viginti Libratas terrae vel reditus; whereby it seems that Librata terrae is as much as yields twenty shillings by the [Page 381] year; and centum Solidatas terrarum, tenementorum, & redituum, fol. 249. And in F. N. B. f. 87. there are these words, Viginti Libratas terrae vel reditus, which proves this to be so much Land as is rated at twenty shillings by the year. See Furlong.
Farm, or Ferm.
FArm, or Ferm, is usually the chief Messuage in a Village or Town, whereto belongs great Demeans of all sorts, and hath been used to be let for term of Life, Years, or at Will.
The Rent that is reserved upon such a Lease, or the like, is called Farm, or Ferm.
And Farmor or Fermor, is he that Tenants the Farm or Ferm, or is Lessee thereof.
Also generally every Lessee for life, years, or at will, is called Farmor, or Fermor.
And note, That they are calltd Farms, or Ferms, of the Saxon word Feormian, which signifies to Feed; or yield Victual: For in ancient time their Reservations were as well in Victuals as Money; until at the last, and that chiefly in the time of King Henry the First, by agreement, the reservation of Victuals was turned into ready Money, and so hitherto hath continued amongst most men.
Fate, or Fatt.
FAte, or Fatt, is a Measure mentioned in the Statutes of 1 H. 5. cap. 10. and 11 H. 6. cap. 8. to contain eight Bushels: but the Citzens and Merchants of London (as it appears by those Statutes) and the Kings Purveyors would have that measure and a Bushel over for one Quarter; and so they had nine Bushels for one Quarter of Corn.
Faux Imprisonment.
FAux Imprisonment is a Writ that lies where a man is arrested and restrained from his Liberty by another against the order of the Law; then he shall have against him this Writ, whereby he shall recover Dammages. See more thereof before, tit, Arrest.
Faux Judgment.
FAux Judgment. See thereof before, tit. Error.
Fealty.
FEalty is a Service, called in Latine Fidelitas, and shall be done in this manner; viz. The [Page 383] Tenant shall hold his right hand upon a Book, and shall say to his Lord; I shall be to you faithful and true, and shall bear to you Faith for the Lands and Tenements which I claim to hold of you, and truly shall do you the Customs and Services that I ought to do to you at the terms assigned; So help me God: and shall kiss the Book: but he shall not kneel, as in doing Homage. And thereof see after in the Title Homage. Also Fealty is incident to all manner of Tenures.
Fee.
FEE (Feodum) is in our Law an equivocal word of divers significations: for it is most usually taken for an Estate of Inheritance in Lands and Tenements to one and his Heirs, or to one and the Heirs of his Body. But it is used also for the Compass, Circuit or Extent of a Lordship or Mannor. And from thence comes the ordinary Plea in Bar to an Avowry, That the Land upon which he avows is out of his Fee. And thirdly, it is taken for a Reward or Wages given to one for the execu [...] [...] of his Office; as the Fee of a Forrester, or the Keeper of a Park, or a Sheriffs Fee sor [...] erving an Execution, lim [...] s by the Statute of 29 Eliz. cap 4. And it is also taken [Page 384] for that Consideration which is given a Sergeant at Law, or a Councellor, or a Physitian, for their Counsel or Advice in their profession, which (as it is well observed by Sir Jo. Davies, in his Preface to his Reports) is not properly Merces, but Honorarium, Yet in our Law-language it is called his Fee.
Fee expectant.
FEE expectant: Where Lands are given to a man and his wife in Frank-marriage, to have and to hold to them and their heirs, in this case they have Fee-simple; but if they are given to them and the heirs of their body, &c. They have Tail and Fee-expectant, Kitch. fol. 153.
Fee Farm.
FEE Farm is, when a Tenant holds of his Lord in Fee-simple, paying to him the value of half, or of the third, fourth, or other part of the Land by the year. And he that holds by Fee-Farm, ought not to pay Relief, or do any other thing that is not contained in the Feoffment, but Fealty, for that belongs to all kind of Tanures.
Fee-simple.
FEe-simple is, when any person holds Lands or Rent, or other thing, inheritable to him and his Heirs for evermore; and these words, His Heirs, make the Estate of Inheritance; for if the Land be given to a man for ever, yet he hath but an Estate for life.
Also if Tenant in Fee-simple die, his first son shall be his Heir; but if he have no Son, then all his Daughters shall be his Heirs, and every one shall have her part by partition: but if he have no Son nor Daughter, then his next Coufin collateral of the whole Blood shall be his Heir.
Fel de se.
FElo de se, is he that commits Felony by murthering himself. See Crompt. Justice of Peace, fol. 28.
Felony.
FElony is a general term, which comprehends divers hainous Offences, for which the Offenders ought to suffer death, and lose their Lands. And it seems that they are called Felonies, of the Latine word Fel, which is in English, Gall, [Page 386] in French, Fiel; or of the ancient English word, Fell, or Fierce, because they are intended to be done with a fell, fierce, or mischievous mind. When a man without any colour of Law steals the Goods of another, amounting to the value of Twelve pence or more, that is Larceny: but if he approaches the Person of another in the High-way, and robs him of his Goods, although it be but to the value of one peny, it is Felony; and that is called Robbery, and therefore he shall be hanged.
Fence-moneth.
FEnce-moneth is a Forrest word, and signifies the time of 31 days in the year, that is to say, 15 days before Midsummer, and 15 days after, in which time it is forbidden for any man to hunt in the Forrest, or to go into it to disturb the wild Beasts. The reason of which is, because the Female Deer do then Fawn. And therefore this Moneth is called the Fence-moneth, or Defence-moneth, for that the Deer are then to be defended from scare or fear. See Manwood. Forrest Laws, cap. 13. fol. 90. b.
Feodarie.
FEodarie was an Officer in the Court of Wards, appointed [Page 387] by the Master of that Court, by virtue of the Statute 32 H. 8. c. 46. to be present with the Escheator in every County at the finding of Offices, and to give in evidence for the King as well for the Value as the Tenure. And his Office was also to survey the Lands of the Ward after the Office found, & to return the true value thereof into the Court; to assign Dower unto the Kings Widows; to receive all the Rents of the Wards Lands within his Circuit, and to answer them to the Receiver of the Court. But see the Stat. 12 C [...] r. 2. c. 24. for Abolishing the said Court.
Feoffment.
FEoffment is, where a man gives Lands, Houses, or other Corporal things which are Heritable to another in Feesimple, and thereof delivers Seisin and Possession. Also if one make a gift in tail, or a lease for life, Livery and Seisin must be given, or else nothing shall pass by the Grant.
Feoffor and Feoffee.
FEoffor is he that infeoffs or makes a Feoffment to another of Lands or Tenements in Fee-simple: And Feoffee is he who is infeoffed, or to whom the Feoffment is so made.
Ferdwit.
FErdwit is, to be quit of Murther committed in the Army, Flet. l. 1. c. 47.
Ferry.
IS a liberty by prescription, or the Kings Grant, to have a Boat for passage upon a great Stream for Cariage of horses and men for reasonable toll.
Feude.
FEude, or Deadly Feude, is a German word, and signifies implacable Hatred, not to be satisfied but with the death of the enemy: such is that amongst the people in Scotland and in the Northern parts of England, which is a Combination of all the Kindred to revenge the death of any of the Blood upon the Slayer and all his race. And this word is mentioned in the Stat. of 43 Eliz. c. 13.
Fieri facias.
FIeri facias is a Writ judicial, and lies where a [...] an recovers Debt or Da [...] nages in the Kings Court; [...] a he shall have this Writ to the Sheriff, commanding him that he levy the Debt and Dammages of the goods of him against whom the Recovery is had: and it lies only within a year and a day, and after the year he must sue a Scire facias; and if the party be warned, and doth not come at the day, &c. or if he come, and can say nothing, then he who recovers shall have a Writ of Fieri facias directed to the Sheriff, that he make Execution of Iudgment.
But if a man recover against a woman, and she takes a husband within the year and the day; then he that recovers must have a Scire facias against the husband.
So it is if an Abbot or Prior recover and die, his Successor, within the year shall have a Scire facias. See thereof more in the Title Scire facias, and Title Execution.
There is also another manner of Fieri facias against a Rector, where upon a general Fieri facias the Sheriff returns, quod nulla habet bona seu catalla, and thereupon a Writ is directed to the Bishop of the Diocess where he is Rector, [Page 390] and thereupon the Bishop levies the Debt of the Profits of the Gleab & Tithes of the Rectory.
Fifteenth.
FIfteent [...] See Quinzisme.
F [...] lazer.
FIlazer (of the French word Filace, id est, a Thread) is the name of an Officer in the Common Pleas, of which there are 14. They make dut all the Original Process there, and the Distress infinite upon Summons returned in personal Actions, and the Capias upon the return of Nihil, and all Writs of View, in cases where the View is prayed. And where the Appearance is with them, they enter the Impariance, and the general Issue in common Actions, and Iudgments by Confession before Issue joyned, and make out Writs of Execution upon them. And they make Writs of Supersedeas after a Capias awarded, when the Defendant appears in their Office. And this Officer is mentioned in the Statutes of 10 H 6. c. 4. & 18 H. 6. c. 9.
File.
FIle (Filacium) is a Thread or Wire upon which Writs and other Exhibits in Courts are put, [Page 391] for the safer keeping of them together.
Finders.
FInders is a word used in many Statutes, as in 14 R. 2. c. 10. 17 R. 2. c. 5. 1 H. 4 c. 13. and 31 H. 6. c. 5. and seems to be all one with those Officers which we now call Searchers, imployed for the discovery of Goods which are imported or exported without paying Custom.
Fine.
FIne sometimes is taken for a Sum of money which one is to pay to the King for any Contempt or Offence; which Fine every one that commits any Trespass, or is convict that he falsly denies his own Deed, or did any thing in contempt of Law, shall pay to the King: which is called Fine to the King.
Sometime a Fine is taken for a Final Agreement which is had between any persons concerning any Land or Rent, or other thing, whereof any Suit or Writ is between them hanging in any Court; which may be divers ways: One is, when any party acknowledges that to be the right of the other, as that he hath of the Gift of him that made the Recognizance, which always supposes a Feoffment going before, and is called a Fine [Page 392] executed: Or if he acknowledged that to be the right of another, omitting these words (cōe ceo que il eit de son Done) this being a Fine upon acknowledging of [...] ight only, if it be levied to him which hath the Freehold of the Land, is a Fine upon a Release.
If he that acknowledged it is seised, and he to whom it is levied hath not the Free-hold of the Land, then it is called a Fine executory, which he to whom the Land is acknowledged may execute by Entry, or Scire facias.
Sometime such a Fine Sur conusance de droit only is to make a Surrender: wherein is rehearsed, that the Reconusor hath an Estate for life, and the other a Reversion.
Sometime it is taken to pass a Reversion, where a particular Estate is recited to be in another, and that the Reconusor will that the other shall have the Reversion, or that the Land shall remain to another after the particular Estate spent.
And sometime he to whom the right is acknowledged, as that which he hath of the Gift of the Reconusor, shall yield the Land, or a Rent out thereof to the Conusor. And that sometime for the whole Fee; sometime for one particular Estate with Remainder or Remainders over; and sometime with Reversion of Rents with Distress and Grant thereof over by the said Fine.
It is called a Fine, because [Page 393] thereby the Suit is ended; and if it be recorded with Proclamation, according to the Statute 4 H. 7. it bars Strangers.
Fine force.
FIne force, signifies an absolute Necessity; as when a man is compelled to do that which he can no way avoid, we say he doth it de Fine force. So this word is used in Perk. sect. 321. in Mantel and Woodlands Case, in Plowden, f. 94. b. and in Eatons Case cited in Foxly's Case in the 6 Rep. f. 111. a.
Finors.
FInors are those that purifie Gold and Silver, and part them by fire and water from courser Metals; and therefore in the Statute of 4 H. 7. c. 2. they are also called Parters.
Fire-bote.
FIre-bote is necessary Wood to burn, which, by the Common Law, Lessee for years or for life may take in his Ground, although it be not expressed in his Lease; and although it be a Lease by Word only, without Writing: But if he take more then is needful, he shall be punished in Waste.
First-fruits.
FIrst-fruits (Primitiae) are the Profits of every Spiritual Living for a year, which were anciently given to the Pope; but by the Statute of 26 H. 8. [...]. 3. are now transferred to the King.
Fledwite.
FLedwite is, to be quit from Amerciaments, when an outlawed Fugitive comes to the Kings Peace of his own will, or being licensed.
Flemeswite.
FLemeswite is, that you may have the Cattel or Amerciaments of your Fugitive man.
Fletwit.
FLetwit, or Flitwit, is, to be quit from Contention and Convicts, and that you may have a Plea thereof in your Court, and the Amerciaments; for Flit in English is Treason in French.
Floatsam.
FLoatsam, or Flotson, is, when a Ship is sunk, or otherwise perished, and the Goods float upon the Sea, and they are given to the Lord Admiral by his [Page 395] Letters Patents. See Cok. lib. 5. fol. 106.
Fold, Fould-course.
FOld, Fould-course, In Latine Falda, & Faldae, Is Common for Sheep. See Shack. Co. Ent. 14, 15. Coke 8. Rep. 125. 1 Cro. Rep. Spooner and Day.
Folkmoot.
FOlkmoot signifies (according to Lambert in his Exposition of Saxon words) two kinds of Courts; one now called the County Court, the other the Sheriffs Tourne. And in London it signifies at this day celebrem ex omni Civitate Conventū. Stows Survey.
Footgeld.
FOotgeld is an Amerciament for not cutting out the Balls of great Dogs feet in the Forrest, for which see Expeditate: And to be quit of Footgeld is a priviledge to keep Dogs within the Forrest unlawed without punishment or controll. Cromp. Jurisd. fol. 197. Manwood, part. 1. pag. 86.
Forcible Entry.
FOrcible Entry is a Violent actual Entry into House or Land; or taking a Distress [Page 396] weaponed, whether he offer Violence or no. West, part 2. Symb. tit. Inditements, Sect. 65.
Forest, or Forrest.
FOrest is a place priviledged by Royal Authority, or by Prescription, for the peaceable abiding and nourishment of the Beasts or Birds of the Forrest, for disport of the King: For which there have been in ancient time certain peculiar Officers, Laws and Orders, part of which appear in the great Charter of the Forrest.
Forester.
FOrester is an Officer of the Forest, sworn to preserve the Vert and Venison of the Forest, to attend upon the wild Beasts within his Bailywick, to watch and keep them safe by day and by night, to apprehend all Offenders there in Vert or Venison, and to present them at the Courts of the Forest, to the end they may be punished according to their Offences.
Forfeiture of Marriage.
FOrfeiture of Marriage was a Writ that lay for the Lord by Knights Service against [Page 397] his Ward, who refused a convenient Marriage offered him by his Lord, and married another within age without the assent of his Lord. And see for this Fitz. N. B. fol. 141. g. &c.
Forger of false Deeds.
FOrger of false Deeds comes of the French word Forger, which signifies to Frame or fashion a thing, as the Smith doth his work upon his Anvil. And it is used in our Law for the Fraudulent making and publishing of false Writings to the prejudice of another mans right. Fitz. in his F. N. B. f. 96. B. C. says that a Writ of Deceit lies against him that thus forges any Deed.
Forjudger.
FOrjudger is a Iudgment given in a Writ of Mesne, brought by a Tenant against a Mesne Lord, who should acquit the Tenant of Services demanded by the Lord above, of whom the Tenement is holden, and the Mesne will not appear; then Iudgment shall be given, that the Mesne Lord shall lose his Seignory, and that the Tenant from thenceforth shall hold of the Lord above by such Su [...] as the Mesne held before, and shall be [Page 398] discharged of the Services which he yielded to the Mesne, by the Statute of Westm. 2. ca. 9. which is called a Forjudger.
Also if an Attorney or other Officer in any Court be put out and forbidden to use the same, he is said to be forjudged the Court.
Formedon.
FOrmedon is a Writ that lies where Tenant in tail infeoffs a Stranger, or is disseised, and dies; his Heir shall have a Writ of Formedon to recover the Land. But there are three manner of Formedons. One is in the Discender, and that is in the case before said. And if one give Land in the taile, and for default of Issue the Remainder to another in the taile, and that for default of such Issue the Land shall revert to the Donor; if the first Tenant in tail die without Issue, he in the Remainder shall have a Formedon in the Remainder: But if the Tenant in the tail die without Issue, and he in the Remainder also die without Issue, then the Donor or his heirs shall have a Formedon in the Reverter.
Forrein.
FOrrein is a word adjectively used, and joyned with divers [Page 399] Substantives: as Forrein matter triable in another County, Pl. Cor. 154 or matter done in another County, Kitch. fol. 126.
Forrein Plea is a refusal of the Iudge as incompetent, because the matter in hand was not within his Precincts, Kitch. fol. 75. & Anno 4 H. 8. cap. 2. & Anno 22 ejusdem cap. 2. & 14.
Forrein Answer is such an Answer as is not triable in the County where it is made, Anno 15 H. 6 cap. 5.
Forrein Service is such Service whereby a Mean Lord holds over of another without the compass of his own Fee, Bro. tit. Tenures, fol. 251. num. 12. & 28. and Kitch. fol. 209. Or else that which a Tenant performs either to his own Lord, or to the Lord above him out of the Fee. For of such Services Bracton. lib. 2. cap. 16. num. 7. speaks thus:
Also there are certain Services which are called Forrein, though they be named and express'd in the Charter of Feoffment, and may therefore be called Forrein, because they appertain to our Lord the King, and not to the chief Lord, unless when he goes in Service in Person, or that he satisfies our Lord the King for the Service by some kind of means; and they are performed at certain times, when occasion and necessity require, and they have divers & sundry [Page 400] names: For sometime they are called Forrein, the word taken largely as to the Kings Service, somtime Escuage, somtime Service of the King; and it may therefore be called Forrein, because it is done and taken without, or beside Service done to the Lord Paramount. See Broke, Tenures 28, 95.
Forrein Service seems to be Knights Service, or Escuage uncertain, Perkins, sect. 650.
Forrein Attachment is an Attachment of the Goods of Forreiners within any Liberty or City, for the satisfaction of any Citizen to whom the said Forreigner owes money.
Forrein Apposer is an Officer in the Exchequer, to whom all Sheriffs and Bailiffs do repair, by him to be apposed of their Green wax: And from thence he draws down a charge upon the Sheriff or Bailiff to the Clerk of the Pipe.
Forsechoke.
FOrsechoke seems to signifie as much as Forsaken, in our modern Language: It is especially used Anno 10 Edw. 1. cap. unico, for Lands or Tenements seised by the Lord, for want of Services due from his Tenant, and so quietly held and possessed beyond the year and day.
Forestaller.
FOrestaller, is he that buys Corn, Cattel, or other Merchandize whatsoever, by the way as it comes to Markets, Fairs, or such like places to be sold, to the intent to sell the same again at a more high and dear price, in prejudice of the Common-wealth and people, &c.
The pain for such as are convict thereof is, for the first time, two months Imprisonment, and loss of the value of the thing sold.
The second time, Imprisonment by the space of half a year, and loss of double value of the Goods, &c.
The third time, Imprisonment during the Kings pleasure, and Iudgment of the Pillory, and to forfeit all his Goods and Chattels. See the Statute 5 Ed. 6. cap. 14.
Forestall.
FOrestall is, to be quit of Amerciaments and Cattels arrested within your Land, and the Amerciaments thereof coming.
Founder.
FOunder is he that uses the Art of Melting or Dissolving [Page 402] Metals, and making any thing thereof by casting in Molds. He seems to have his name from the Latine word Fundere, and is mentioned in the Statute of 17 R. 2. cap. 1.
Fourcher.
FOurcher is a device used to delay the Plaintiff or Demandant in a Suit against two, who thereto are not to answer till they both appear, and the Appearance or Essoin of one will excuse the others Default at that day; and they agree, that the one shall be essoined or appear one day, and for lack of the Appearance of the other, have day over to appear, and the other party shall have the same day; and at that day the other will appear or be essoined, and he that appeared or was essoined before will not then appear, because he hoped to have another day by the Adjournment of the party who then appeared or was essoined. This is called Fourcher, and in some cases the mischief thereby is remedied by the Statute of Gloucest. cap. 10. and Westm̄. 1. cap. 42.
Franchise.
FRanchise is a French word, and signifies in our Law an Immunity or Exemption from [Page 403] ordinary Iurisdiction; as for a Corporation to hold Pleas within themselves to such a value, and the like. See of this in the Old Nat. Brev. fol. 4. a, b.
Franchise Royal.
FRanchise Royal is, where the King grants to one and his Heirs that they shall be quit of Toll, or such like.
Free Almes.
FRee Almes is, where in ancient times Lands were given to an Abbot and his Covent, or to a Dean and his Chapter, and to their Successors, in pure and perpetual Almes, without expressing any Service certain; this is Frank-almoigne; and such are bound before God to make Oraisons and Prayers for the Donor and his Heirs, and therefore they do no Fealty; and if such as have Lands in Frank-almoigne perform no Prayers nor Divine Service for the Souls of the Donors, they shall not be compelled by the Donors to do it, but the Donors may complain to the Ordinary, praying him that such negligence be no more, and the Ordinary of right ought to redress it.
But if an Abbot, &c. holds Lands of his Lord for certain Divine Service to be done, [Page 404] as to sing every Friday a Mass, or do some other thing; if such Divine Service be not done, the Lord may distrain, and in such case the Abbot ought to do Fealty to the Lord: and therefore it is not said Tenure in Frank-almoign, but Tenure by Divine-Service; for none can hold by Frank-almoign, if any certain Service be expressed.
Frank Bank.
FRank Bank, or Free Bench, are Copihold-Lands, which the Wife being married a Virgin, hath after the decease of her husband for her Dower, Kitch. f. 102. Bract lib. 4. tract. 6. cap. 13. num. 2. hath these words; There is a custom in those parts, that the Wives, their Husbands being dead, should have Frank Bank of Lands of Sockmans, and hold it in name of Dower. Fitzh. calls this a Custome by which in some Cities the Wife shall have all the Lands of her Husband for Dower, N. B. fol. 150. See Plow. fol. 411.
Frank Chase.
FRank Chase is a Liberty, by which all men having Land within this compass are prohibited to cut down the Wood, or discover, &c. without the view of the Forrester, although it be his own. Crom. Jur. f. 187.
Frank Fee.
TO hold in Frank Fee, is, to hold in Fee-simple Lands pleadable at the Common Law, and not in ancient Demesne.
Frank Law.
FRank Law: See Crom. Just. of Peace, f. 151. where you may find what this is by the contrary: for he that for an Offence, as Conspiracy, loses his Frank Law, is said to fall into these Mischiefs. First, that he shall never be Impanelled upon any Iury or Assize, or otherwise used in saying any Truth: Also, if he have any thing to do in the Kings Court, he shall not approach thither in person, but must appoint his Attourney: 3 His Lands, Goods and Chattels are to be seised into the Kings hands, and his Lands must be estrepped, his Trees rooted up, and his Body committed to prison.
Free Marriage.
FRee Marriage is, when a man seised of Land in Fee-simple gives it to another man and his wife, who is the daughter [Page 406] sister, or otherwise of kin to the Donor in Free Marriage by virtue of which wards they have an Estate in special tail, and shall hold the Land of the Donor quit of all manner of Services, until the fourth degree be past, accounting themselves in the first degree; except Fealty, which they shall do, because it is incident to all Tenures, saving Free alms. And such Gift may be made as well after Marriage solemnized, as before. And a man may give Lands to his Soir in Free Marriage, as well as to his Daughter, by the opinion of Fitzh. in his Writ of Champertie, H.
But it appears otherwise in Littleton, and in Broke, tit. Frank-marriage, pla. 10. And so it was holden clear in Grays-Inne in Lent, an. 1576. 18 Eliz. by M. Rhodes, then Reader there.
Frank-plege.
FRank-plege. signifies a Pledge or Surety for Free-men, according to the ancient Custom of England, for preservation of the publick Peace. See the Statute for View of Frank-pledge, Anno 18 Ed. 2. and see View of Frank-pledge.
Free-hold.
FRee-hold is an Estate that a man hath in Lands or Tenements, or Profit to be taken in Fee-simple, Tail, for term of his own or anothers life, in Dower, or by the Courtesse of England: and under that there is no Free-hold; for he that hath Estate for years, or holds at will, hath no Free-hōld, but they are called Chatels.
And of Free-holds there are two sorts; viz. Free-hold in Deed, and Free-hold in Law.
Free-hold in Deed is, when a man hath entred into Lands or Tenements, and is seised thereof really and actually: As if the Father seised of Lands or Teuements in Fee-simple dies, and his son enters into the same as heir to his Father, then he hath a Free-hold in Deed by his Entry.
Free-hold in Law is, when Lands or Tenements are discended to a man, and he may enter into them when he will, but hath not yet made his Entry in Deed: As in the case aforesaid, if the Father, being seised of Lands in Fee, die seised, and they discend to his Son, but the Son hath not entred into them in Deed, now befort his Entry he hath a Free-hold in Law.
French-man.
FRench-man was wont to be used for every Outlandishman, Bracton, Lib. 3. Tract. 2. cap. 15. See Engleshery.
Frendless man.
FRendless man was the old Saxon word for him we call an Outlaw; nam forisfecit Amcos suos. Bracton, Lib. 3. Tract. 2. cap. 12.
Fresh Force.
FResh Force (Frisca Forcia) is a force committed in any City or Borough, as by Disseisin, Abatement, Intrusion, or Deforcement of any Lands or Tenements within the said City or Borough. For the redressing of which wrong, he that hath right may by the Vsage of the said City or Borough have his remedy without Writ, by an Assise or Bill of Fresh Force brought within 40 days after the Force committed, or Title to him accrued. In which Action he may make his protestation to sue in the nature of what Writ he will. And see for this matter Fitzh. Nat. Bre. f. 7. C. and Old N. B. f. 4. a.
Fresh Suit.
FResh Suit is, when a man is robbed, and the party so robbed follows the Felon immediately, and takes him with the manner, or therwise, and then brings an Appeal against him, and doth convict him of the Felony by Verdict; which thing being enquired of for the King, and found, the party robbed shall have restitution of his goods again.
Also it may be said, that the party made Fresh Suit, although he take not the Thief presently, but that it be half a year or a year after the Robbery done before he be taken; if so be the party robbed do what lies in him, by diligent enquiry and search, to take him; yea, although he be taken by some other body, yet this shall be said Fresh Suit.
Fresh Suit is also, when the Lord comes to distrain for Rent or Service, and the Owner of the Beasts makes rescous, and drives them into anothers Ground not holden of the Lord, and the Lord follows presently and takes them. And so in other like cases.
Friperer.
FRiperer is a word used in the Statute of 1 Jac. c. 21. for a [Page 410] kind of Broker. And it seems to be a word taken from the French word Fripier, to trick up old things; and therefore a Friperer is one that uses to dress old Clothes to sell again.
Frumgyld.
FRumgyld is an old Saxon word, which signifies the first payment made to the Kindred of a slain person, in recompence of his Murder, L. L. Edmundi, c. ult.
Fugitives goods.
FUgitives Goods are the proper goods of him that flies upon felony, which, after the flight lawfully found, do belong to the King. Coke, vol. 6. f. 109. b.
G.
Gable.
GAble, Gablum, in ancient Records is an old word that signifies a Rent, Duty, Custom, or Service yielded or done to the King, or any other Lord See the Comment upon Littl. fol. 142. a.
Gager de deliverance.
GAger de deliverance is, where one sues a Repleven of goods taken, but he hath not the goods delivered, and the other avows, and the Plaintiff shews that the Defendant is yet possessed of the goods, &c. and prays, that the Defendant may gage the Deliverance; then he shall put in Surety or Pledges for the Redeliverance, and a Writ shall go forth to the Sheriff to redeliver the goods, &c, But if a man claim property, he shall not gage Deliverance.
And if he say that the Beasts are dead in the Pound, he shall not gage, &c.
Also a man shall never gage the Deliverance before they are at Issue, or Demurter in the Law, as it is said.
Gainage.
GAinage (Wainagium) seems to come from the French word Gaignage, id est, Gain or Profit; but in our Law it signifies the Profit most properly that comes by the Tillage of Land. And therefore in the Statute of Mag. Chart. c. 14. it is Enacted, that a Villain shall be amerced, saving his Gainage; and in West. 1. c. 6. saving his Gainure; and in c. 17. it is Enacted, That he that deforces any of the deliverances of [Page 412] his Beasts by Replevin, shall render unto the Plaintiff his double Dammages which he hath sustained in his Beasts, or in his Gainage disturbed, &c. And by the Statute of Distress of the Exchequer made in 51 H. 3. it is Enacted, That no man of Religion, or other, shall be distrained by the Beasts that gain his Land.
Galli-halpens.
GAlli-halpens were a certain Coin prohibited by the Stat. An. 3. H. 5. c. 1.
Gaole.
GAole, or Gayle, comes of the French word Geole, which signifies a Cage for Birds, but metaphorically is used for a Prison. And from thence the Keeper of the Prison is called a Gaoler or Gayler.
Garbe.
GArbe comes of the French Garbe vel Gerbe, which signifies a Bundle or Sheaf. This word is used in the old Stat. called Charta de Foresta, cap. 7. where Herbas in the Latine is translated Garbe in English.
Garble.
GArble, is is to sort and chuse the good from the bad, as the Garbling of Bow-staves, Anno 1 R. 3. c. 11. and the Garbling of Spice is nothing else but to purifie it from the Dross with which it is mixed. See of this at large in the Statute of 1 Jac. c. 19.
Gard.
GArd, or Ward, is, when an Infant, whose Ancestor held by Knights Service, is in the Ward or Keeping of the Lord of whom those Lands were holden. And if the Tenant hold of divers Lords, divers Lands, the Lord of whom the Land is holden by Priority, that is, by the more elder Tenure, shall hade the Wardship: But if one Tenure be as old as the other, then he that first gets the Ward of the Body shall keep it: But every Lord shall have the Ward of the Land that is holden of him. And if the Tenant hold any Land of the King in chief, he by his Prerogative shall have the Ward of the Body, and of all the Land that is holden of him, and of every other Lord.
Also there are divers Writs of Ward. One is a Writ of Right of Ward, and that lies where the [Page 414] Tenant dies, his Heir within age, and a Stranger enters into the Land, and happens to have the Ward of the Body of the Infant.
A Writ of Ejectment of Ward lies, where a man is put out of the Ward of the Land, without the Body of the Infant.
A Writ of Ravishment of Ward lies, where the Body is taken from him only, and not the Land.
But see the Stat. 12 Car. 2. c. 24. for Abolishing the Court of Wards, &c.
Gardian.
GArdian or Wardein most properly is he that hath the Wardship or Keeping of an Heir, and of his Land holden by Knights Service, or of one of them, to his own use, during the Nonage of the Heir; and within that time hath the bestowing of the Body of the Heir in Marriage at his pleasure, without disparagement.
And of Wa [...] ens there are two sorts; namely Gardian in Right, and Gardian in Deed.
Gardian in Right is he that by reason of his Seigniory is seised of the Wardship or keeping of the Land and Heir, during his Nonage.
Gardian in Deed is, where the Lord after his Seifin, as aforesaid, grants by Deed, or [Page 415] without Deed, the Wardship of the Land, or Heir, or both, to another, by force of which Grant the Grantee is in possession: The Grantee is called Gardian in Deed.
And this Gardian in Deed may grant the Heir to another also: but that other is not properly called Gardian in Deed, but Grantee of the Gardian in Right only.
But the Gardian in Socage hath the profit only to the use of the Heir, until he accomplish the age of 14 years, and must yield therefore an account to the Heir. See more hereof, Littleton, lib. 2. cap. 4, & 5. and Stamford upon the Statute of Prerogat. cap. 1, 2, & 6.
Church-wardens.
CHurch-wardens are Officers chosen in every Parish, to have the care and custody of the Church Goods; and they may have an Action for the Goods of the Church, and divers other things they may do for the benefit of the Church: and by the Statute of 43 Eliz. cap. 2. they are to joyn with the Overseers for the making of Rates and other Provisions for the Poor of the Parish.
Gardian of the Spiritualties.
GArdian of the Spiritualties, by the general Law is the Dean and Chapter of the Diocess, unless there be a Custom that the Arch-bishop of the Province should be the Gardein, sede vacante, His office is to hold Courts, prove Wills, grant Administrations, and supply the Bishops room.
Garnishment.
GArnishment: If an Action of Detinue of Charters be brought against one, and the Defendant saith, that the Charters were delivered to him by the Plaintiff and by another upon certain Conditions, and prays. That the other may be warned to plead with the Plaintiff, if the Conditions be performed or no, and thereupon a Writ of Scire facias shall go forth against him; this is called Garnishment: and the other, when he comes, shall plead with the Plaintiff; and that is called Enterpleader.
Garranty.
GArranty is, when one is bound to another who hath Land, to warrant the same to [Page 417] him; which may be two ways: that is, by Deed of Law; As if one and his Ancestors hath held Land of another and his Ancestors, time out of mind, by Homage, which is called Homage Auncestrel: Or by Deed of the party, who grants by Deed or Fine to the Tenant of the Land to Warrant it to him; upon which, if the Tenant be impleaded by him who ought to warrant or his Heirs, the Tenant shall bar the Demandant by pleading the Warranty against him, which is called Rebutter; or if he be impleaded by another in an Action wherein he may vouch, he shall vouch him who warranted; or his Heirs, and if the Plaintiff recover, the Tenant shall recover in value against the Voucher.
Garranty is of three sorts; that is, Garranty Lineal, Garranty Collateral, and Garranty that begins by Disseisin.
Warranty Lineal, is, where a man seised in fee or in tail, makes a Feoffment to another, and binds him and his heirs to Warranty, and hath issue a son, and dies, and the warranty disceuds to his son. For if no Deed with Warranty had been made, then the right of the Lands should have discended to the son, as heir to his father, and he shall convey the Discent from the father to the son.
But if Tenant in tail discontinues the tail, and hath issue, [Page 418] and dies, and the Vncle of the Issue releases to the Discontinuee with Warranty, &c. and dies without issue; this is a Collateral Warranty to issue in tail, for that the Warranty discends upon the Issue, who may not convey himself to the tail by mean of his Vncle.
And in every Case where a man demands Lands in Feetail by Writ of Formedon, if any Ancestor of the Issue in tail makes a Warranty, and he that sues a Writ of Formedon, by possibility of matter that may be done, conveys to him Title by force of his Gift that made the Warranty, &c. that is then a Lineal Warranty, whereby the Issue in tail shall not be barred, except he have Assets to him discended in Fee-simple. But if he may not by any possibility convey to him Title by force of his Gift that made the warranty, then that is a Collateral Warranty, and thereby the Issue in tail shall be barred without any Assets. And the cause that such a Collateral Warranty is a Bar to the Issue in the tail is, for that all Warranties, before the Statute of Gloucester, which discended to those who are Heirs to the warrantors, were Bars to the same Heirs to demand any Lands, except the warranties that began by Disseisin; and for that the said Statute hath ordained, That the warranty of the Father shall be no Bar to his [Page 419] Son for the Lands which come by the Heritage of the Mother, nor the Warranty of the Mother shall be no Bar to the Son for the Lands which come by the Heritage of the Father; and neither the Stat. 11 H. 7. cap. 20. nor any other Statute, hath ordained any remedy against any other Collateral Warranty; therefore such Warranty is yet in force, and shall be a bar to the Issue in tail, as it was before the Statute.
And it behoves that every Warranty, whereby the Heir shall be barred, discend by course of the Common Law to him who is Heir to the Warrantor; else it shall be no Bar: for if the Tenant in Tail of Lands in Borough English, where the youngest son shall Inherit by the Custome, discontinues the tail, and hath Issue two sons, and the Vncle releases to the Discontinuee with Warranty, and dies, and the younger Son brings a Formedon; yet he shall not be barred by such Warranty, causa qua supra. And if any man make a Deed with Warranty, whereby his Heir should be barred, and after the Warrantor be attaint of Felony; his Heir shall not be barred by such Warranty, for that such Warranty cannot discend upon him, the blood being corrupt.
Warranty beginning by Disfeisin is, if the son purchase Lands, and let them to his [Page 420] Father for years, and the Father by the Deed infeoffs a stranger, and binds him and his Heirs to Warranty, and the Father dies, whereby the warranty discends to the son; yet this warranty shall not bar the son, but the son may well enter notwithstanding, because this Warranty began by Disseisin, when the Father made the Feoffment, which was a Disseisin to the son. And as it is said of the Father, so it may be said of every other Ancestor. And the same Law is, if the Ancestor be Tenant by Elegit, or by Statute-Merchant, and make a Feoffment with warranty, such Warranties shall be no Bars, because they begin by Disseisin.
Garranty of Charters.
GArranty of Charters, is a Writ that lies where any Deed is made that comprehends a clause of Warranty, that is to say, Dedi or Concessi, or this word Warrantizabo; and if the Tenant be impleaded by a Stranger in Assise or such Action where he may not vouch to warranty, then he shall hate this Writ against his Feoffor or his Heir; and if the Land be recovered against him, he shall recover as much Land in value against him that made the Warranty. But this Writ ought to be sued depending the [Page 421] first Writ against him, else he hath lost his advantage.
Also upon a Warranty in the Law, as upon Homage auncestrel, or upon Rent reserved upon a Lease for Life, or a Gift in the tail, a man shall have a Writ of Warrantia Chartae, but not upon Escuage.
Garrantie del jour.
GArranty del jour. See for that Warrantia diei.
Gavelet.
GAvelet is a special and ancient kind of Cessavit, used in Kent, where the Custom of Gavelkinde continues, whereby the Tenant shall forfeit his Lands or Tenements to the Lord of whom they are holden, if he withdraw from his Lord his due Rents and Services, after this manner:
If any Tenant in Gavelkind withhold his Rent and Services of the Tenement he holds of his Lord, let the Lord seek by the award of his Court, from three weeks to three weeks, to find some Distress upon the Tenement until the fourth Court, always with witnesses. And if within that time he can find no Distress on that Tenement, whereby he may have Iustice of his Tenant, then [Page 422] at the fourth Court let it be awarded, that he take that Tenement into his hand in name of a Distress, as if it were an Ox or Cow, and let him keep it a year and a day in his hand without manuring it: within which Term, if the Tenant come and pay his arrerages, and make reasonable amends for the withholding, then let him have and enjoy his Tenement, as his Ancestors and he before held it: and if he do not come before the year and day past, then let the Lord go to the next County-Court with his Witnesses of his own Court, and pronounce there this Process to have farther Witnesses; and by the award of his Court (after the County-Court holden) he shall enter and manure in those Lands and Tenements as in his own.
And if the Tenant come afterward, and will re-have his Tenements, and hold them as he did before, let him make Agreement with the Lord, according as it is anciently said,
Hath he not since any thing given, nor hath he not since any thing payed? then let him pay v. li. for his Were, before he become Tenant, or Holder again. See hereof 10 H. 3. Fitzh. Cessavit 60. and Stat. 10 Ed. 2: of Gavelet in London, in the Collection of Statutes, London 2. matter much tending to this purpose, that by this word [Page 423] Gavelet, the Lord shall have the Land for the cessing of the Tenant. And see Westm. 2. ca. 21. which gives Cessavit.
There be some Copies which have the first Verse thus Written;
Nisith yelde, and Nisith gelde: And others thus;
Nighesith yeld, and nighesith geld.
But these differ not in signification. Other Copies have it thus;
Nigondsith seld, and nigondsith geld:
That is, Let him nine times pay, and nine times repay.
Gavel-kinde.
GAvel-kinde is a Custom annexed and going with Lands in Kent, called Gavel-kind-lands, holden by ancient Socage Tenure. And it is thought by the skilful in Antiquities, to be called Gavel-kinde, of Give all Kinne, that is, to all the Kindred in one Line, according as it is used among the Germans, from whom we English-men, and chiefly of Kent, come. Or else it is called Gavel-kine, of Give all kinde, that is, to all the Male-children, for Kinde in Dutch signifies a Male-childe. And divers other like conjectures are made touching Gavel-kinde, which I omit.
[Page 424] The most usual Customes are, That the Land is dividable between the Heirs-male; and that the Heir of the age of fifteen years may give and sell his Land; and shall inherit, although his Father be attainted and hanged for Felony; and his wife shall be endowed of half the Land whereof her husband died seised; and the husband shall be Tenant by the Curtesse of the half, although he have no issue by his wife; but the Estate of the husband and wife ceases by their second Marriage. And divers other Customes are used in Kent of the Lands in Gavel-kinde, for which see Lambert's Perambulation of Kent.
Gawgeour.
GAwgeour is an Officer of the King appointed to search all Tuns, Hogsheads, Pipes, Barrels and Tertians of Wine, Oyl, Honey, Butter, and to give them a Mark of allowance before they are sold in any place. And because this mark is a Circle made with an Iron Instrument for that purpose, it seems he takes his name from thence. Touching this Office there have been made many Statutes: the first is An. 27 E. 3. cap. 8. and the others are, 4 R. 2. cap. 1. 18 H. 6. c. 17. 23 H. 6. c. 16. 1 R. 3. cap. 13. and 28 H. 8. c. 14.
Gersuma.
GErsuma is an obsolete word, for a Fine or Summe of mony; it is often found in ancient Records. See Sir Hen. Spelmans Glossarium.
Gild.
GIld, alias Geld, has divers significations: as sometimes a Tribute; othertimes an Amerciament; thirdly, a Fraternity or Company combined together by Orders and Laws made amongst themselves with the Kings Licence. Cambden cites many Antiquities, whereby it appears to signifie a tribute or tax; as pag. 135, 139, 159, 168, 178. Crompton, in his Jurisdictions, fol. 191. shews it to be an Amerciament, as Footgeld; yet fol. 197. he says, to be quit of all manner of Gelds, is to be discharged of all manner of Prestations to be made for gathering of Sheaves of Corn, young Lambs, and Wool, to the use of the Foresters.
Also Cambden, pag. 149. dividing Suffolk into three parts, calls the first Gildable, because tribute is thence gathered. And the Statutes Anno 27 Edw. 3. Stat. 2. cap. 13. [Page 426] and Anno 11 H. 7. cap. 9. use Gildable in the same sense; and so the Statute Anno 27 H. 8. cap. 26. Hence Lambert in the word Contubernalis is perswaded that the common word Gild or Gild-hall proceeds, being a Fraternity or Communalty of men gathered in one Combination, supporting their common charge by a mutual Contribution. And in the Reg. Orig. fol. 219. b. there is Gildam Mercatoriam, which seems to be a certain Liberty or Priviledge appertaining to Merchants, whereby they are enabled to hold certain Pleas of Land within their own Precincts. This word Gilds or Guilds is so used Anno 27 E. 3. cap. 51. and Anno 15 R. 2. c. 5. And Guildhalda Teutonicorum is used for the Fraternity of Easterling Merchants in London called the Stillyard, Anno 22 H. 8. c. 8. See Coke, l. 8. f. 125.
Gisarms.
GIsarms was a certain Weapon, mentioned 13 E. 1. Stat. 3. c. 6. Fleta writes it Sisarmes, l. 1. cap. 24.
Glebe.
GLebe, are Lands of which the Rector or Vicar are seised in Jurae Ecclesiae.
Gors.
GOrs (Gurges) is a Pool or or Pit of water to keep fish in, by the Grant whereof the Soil it self passes; and a Praecipe quod reddat lies of it, as you may see in 4 Ed. 3. 29. b. and 8 E. 3. 13. a. and F. N. B. 191. H.
Granage.
GRanage, is a Duty in London, viz. the twentieth part of Salt Imported by an Alien, and due to the Mayor, Dyer 352.
Grand Cape.
GRand Cape. Look for it after in the Title Petit Cape.
Grand distress.
GRand Distress. See of that before in the Title Distress.
Grand Serjeanty.
GRand Serjeanty is, where a man holds of the King certain Land by the Service of carrying his Banner or Launce, or to lead his Host, or to be his Carver or Butler at his Coronation, or the like; and that is the most Honorable Service that a Tenant may do, and for [Page 428] that it is called Grand Serjeanty. But Petit Serjeanty is, when one holds of the King, paying him yearly a Bow, a Sword, a Spear, or such like; and that is but Socage in effect: but a man cannot hold in Grand Serjeanty or Petit Serjeanty but of the King. Also if a Tenant by Grand Serjeanty dies, his Heir, being of full age, shall pay to the King for Relief the value of the Lands, besides the charges that he pays to the King by Grand Serjeanty: but he that holds by Escuage shall pay for his Relief but C. 5.
Those that are in the Marches of Scotland, who hold of the King by Cornage, that is, to blow an Horn when the Scots enter England, are Tenants in Grand Serjeanty.
Also where a man holds of the King to find a man in his Wars within the Realm, that is called Grand Serjeanty, because it is done by a mans Body: And if the Tenant cannot find a man to do it, he is bound to do it himself.
But see the Stat. 12 Car. 2. c. 24. whereby all Tenures are now turned into Free and Common Socage.
Gree.
GRee comes of the French word (Gre) good liking; and it signifies in our Law, Contentment or Satisfaction: [Page 429] as in the Statute of 1 R. 2. c. 15. to make Gree to the parties is to give them Contentment or Satisfaction for an Offence done unto them.
Green hew.
GReen hew is all one with Vert, as appears by Manwood in his Forest Laws, cap. 6. sect. 5. And for it see Vert.
Green Wax.
GReen Wax is a word used in the Statutes of 42 E. 3. c. 9. and 7 H. 4. c. 3. and signifies the Estreats of Issues, Fines and Amerciaments in the Exchequer, and delivered out to the Sheriffs under the Seal of the Court, to be levied by them in their several Counties.
Grithbreach.
GRithbreach, that is, the Kings Peace broken; because Grith in English is Pax in Latine.
Gule of August.
GUle of August is the first day or the Calends of August, which in the time of E. 1. and E. 3. was called ordinarily the Gule of August, as appears by [Page 430] F. N. B. f. 62. l. and Plowdens Com. f. 316. b. It is the very day of S. Peter ad vincula; and the reason why it was called the Gule of August, is conceived upon a Story recorded by Durandus in his Rationale Divinorum, l. 7. c. 19. of a Miracle wrought by S. Peter's Chain upon the daughter of one Quirinus a Tribune of Rome, who by the kissing of that Chain was healed of the Kings Evil in her Throat (gula.) And see Hospinian. de origine festornm, f. 85. b.
Gultwit.
GUltwit is an Amends for Trespass, according to Saxton in his Description of England, c. 11.
H.
Habeas Corpus.
HAbeas Corpus is a writ which a man indited of any Trespass before Iustices of the Peace, or in a Court of any Franchise, and upon his Apprehenston being laid in Prisost for the same, may have out of the Kings Bench, thereby to remove himself hither at his own Costs, and to answer the Cause there. F. N. B. f. 250. h. And [Page 431] the order in this case is, first to procure a Certiorari out of the Chancery, directed to the said Iustices, for the removing of the Indictment into the Kings Bench; and upon that to procure this writ to the Sheriff, to cause his Body to be brought at a day, Reg. Judic. f. 81. where you may find many cases wherein this writ shall be used.
Habeas Corpora.
HAbeas Corpora, is a writ which lies against a Iury, or any of them that refuse to come upon the Venire facias, for the Trial of a Cause brought to issue.
Habendum.
HAbendum is a word of form in a Conveyance, to the true understanding whereof it is to be observed, That in every Deed or Conveyance there are two principal parts, the Premisse, and the Habendum.
The Office of the Premisses is, to express the Name of the Grantor, the Grantee, and the thing to be granted. The Office of the Habendum is, to limit the Estate, so that the general Implication of the Estate, which by construction of Law passes in the Premisses, is by the Habendum controlled and qualified: as in a Lease to two [Page 432] men, Habendum to the one for life, the Remainder to the other for life, alters the general Implication of the Joynt-tenancy in the Free-hold, which passes by the Premisses, if the Habendum were not. See Coke, l. 2. c. 55.
HAbere facias Seisinam.
Habere facias Seisinam is a Writ Iudicial, that lies where one hath recovered certain Lands in the Kings Court; then he shall have this writ directed to the Sheriff, commanding him to give him Seisin of that Land, and it shall not be retornable.
Habere facias Visum.
HAbere facias Visum is a writ that lies in divers Cases, where view is to be taken of the Lands or Tenements in question. See F. N. B. In Indice, verbo View; & Bract. l. 5. tract. 3. c. 8.
Half-blood.
HAlf blood. See Demysank.
Half Seal.
HAlf Seal is a Seal used in Chancery for the Sealing of Commissions to Delegates upon [Page 433] an Appeal in a Cause civil or marine, as it appears by the Statute made in 8 Eliz. c. 3.
Halymote.
HAlymote is a Court-Baron, as appears by Manwood in his Forest Laws, c. 23. f. 217. a. And it is called Halymote, that is, the Meeting of the Tenants of one Hall or Mannor.
Hambling, or Hoxing of Dogs.
HAmbling, or Hoxing, or Hock-sinewing of Dogs, are old Forrest terms for the Lawing of Dogs, when the Custom was (as appears in Manwood's Forrest Laws, c. 16. sect. 12.) to cut or gash Dogs in the Hamms; but now they use to do it in their Feet. Of which see Expeditate.
Hand-gun.
HAnd-gun is an Engine which is prohibited to be used and carryed about by the Statute of 33 H. 8. c. 6. And though a Dag was invented of late time, and after the making of the said Act, and is not known by the name of Hand-gun, but a special name; yet the carrying of a Dag is within the said Act, and comprehended within the word Hand-gun. So whereas [Page 434] Cross-bows are forbidden by the said Act, thereby Stone-bows are also forbidden. See Coke, l. 5. f. 71, 72.
Hangwit.
HAngwit is, to be quit of a Thief or Felon hanged without Iudgment, or escaped out of your custody.
Hanper.
HAnper of the Chancery, Anno 10, R. 2. c. 1. seems to signifie as Fiscus originally does in Latine.
Haque.
HAque is a little Hand-gun of three quarters of a yard long, and it is mentioned in the Statutes of 33 H. 8. c. 6. and 2 & 3 E. 6. c. 14. There is also mention made of an half Haque.
Haquebut.
HAquebut is a Gun mentioned in the Statute of 2 & 3 E. 6. c. 14. and it is all one with an Harquebuze.
Hariot, or Heriot.
HAriot is of two sorts; Hariot Custome, and Hariot Service.
[Page 435] Hariot Service is often expressed in a mans Grant or Deed, that he holds by such Service to pay Hariot at the time of his death. And this Hariot is payable after the death of the Tenant in Fee-simple.
Hariot Custom is, where Hariots have been paid time out of mind by Custom. And this may be after the death of the Tenant for life, &c. But to speak thereof generally:
Hariot is the best Beast (whether it be Horse, Ox, or Cow) that the Tenant had at the time of his death. And a Distress may be either seised or taken for it, whether it be Hariot Service, or Hariot Custom, to the Lords use of whom the Tenant held, by his Bayliff or other Officers. But of right neither the Lord nor his Officer should take Hariot, before it be presented at the next Court holden after the Tenant is dead, that such a Beast is due for his Hariot.
Haward.
HAward, or Hayward, is an Officer appointed in every Town to be the Common Herd of the Town: and he is so called, either for that it is one part of his Office to keep the Hedges of inclosed Grounds, so that they be not cropped or broken down; or because he keeps the Grass from [Page 436] hurt and destruction of Cattel, so that Hay may be made thereof. He is an Officer sworn in the Lords Court: For which Oath, see Kitch. fol. 46.
Hawkers.
HAwkers is a word used in the Statutes 25 H. 8. cap. 9. and 33 Hen. 8. cap. 4. for Tinkers that go from place to place through the Country, and by colour of the Kings Letters Patents or Placards buy and sell Brass and Pewter, and cozens the Kings people both in the weight and in the stuff.
Hey-bote, or Hedge-bote.
HEy-bote, ou Hedge-bote, is necessary Stuff to make and mend Hedges, which the Lessee for years or for life of common right may take upon the Ground to him leased, although it be not expressed in his Lease, and although it be a Lease by Word, without Writing.
Heybote also may be taken for necessary Stuff to make Rakes, Forks, and such like Instruments, wherewith men use in Summer to redde and make Hay. And so Lessee for years took it, and it was allowed him by his Lessor, the rather, as I suppose, for that such [Page 437] Instruments are commonly made of slendtr Vnder-wood, which by the Common Law the Lessee for years may cut and take as aforesaid.
Head-borow.
HEad-borow is compounded of two words, Heofed, id est, Head, and Borhe, id est, Pledge. So that Head-borow signifies the chief of the three Pledges in a Decennary within a Lect, or he that had the Government of those that are within his own Pledge. And he was called Head-borough, or Borow-head, or Boroughs-holder, or Third-borough, or Tithing-man, or Chief-Pledge, or Borow-Elder, according to the diversity of speech in divers places. And to this day he is now called a Constable.
Head-silver.
HEadsilver. See Common Fine.
Heireloome.
HEireloome, is any piece of Houshold-stuff, which, by the Custom of some Countries, having belonged to a House for certain discents, goes with the House (after the death of the Owner) unto the Heir, and not to the Executors.
Herbage.
HErbage is the Fruit of the Earth provided by Nature for the bit or mouth of the Cattel: But it is commonly used for a Liberty to feed ones Cattel in anothers mans ground, as in the Forest, &c. Cromp. Juris. fol. 197.
Heretico, or Haeretico comburendo.
HAEretico comburendo is a Writ that lies against him who is an Heretick, that is, who having been once convicted of Heresie by the Bishop, and having abjured it, afterwards falls into it again, or into some other, and is thereupon committed to the Secular Power.
And Brit. lib. 1. cap. 17. saith. That by the Common Law those persons who Feloniously burn the Corn or Houses of others, Sorcerers and Sorcecesses, Sodomitical persons and Hereticks, should be burnt and consumed.
This Writ is taken away by the Statute of K. C. 2.
Hermitage & Hermite.
HErmite is a Religious Man, who devotes himself to live [Page 439] solitary in any private Place, Church, Monastery, &c. And his place is called an Hermitage. And of it a Prohibition lies, Nat. Br. 34. G.
Hidage.
HIdage is to be quit, if the King shall tax all the Land by Hides.
Note, that a Hide of Land is a whole Plough-land. And this kind of Taxing by Hides was much used in old time, as well for provision of Armour, as payments of Money; and that chiefly in King Etheldred's days, who in the year of Christ, 1006. when the Danes landed at Sandwich in Kent, taxed all his Land by Hides thus; That every 310 Hides of Land should find one Ship furnished, and every eight Hides should find one Iack and one Saddle, for the defence of the Realm.
Hoblers.
HOblers are mentioned in the Statute of 25 E. 3. Stat. 5. cap. 8. to be such men as by their Tenure are bound to keep a little Nag, to give notice of any Invasion, or other danger that happens near the Sea-side where they dwell.
Hoghenhine.
HOghenhine, is he who comes Guest-wise to a house, and there lies the third night, after which time he is accounted one of his Family in whose house he lies; and if he offend the Kings Peace, his Host must be answerable for him. Bract. lib. 3. tract. 2. cap. 10. In the Laws of King E [...] ward, set forth by Lambert, he is called Agenhine, where you may read more of this matter.
Homage.
HOmage in our Books is twofold. viz. Homagium ligeum, and that is as much as Ligeance, of which Bracton speaks, lib. 3. cap. 35. fol. 79. Soli Regi debetur sine Dominio seu Servitio. And the other is Homagium feudale, which hath his original by Tenure. In Fitzh. N. B. fol. 269. there is a Writ for respiting this later Homage, which is due by reason of the Fee or Tenure. But Homagium ligeum is inherent and inseparable, and cannot be respited.
Homage, by reason of Fee or Tenure is defined to be a Service which shall be made in this manner: The Tenant in Fee or Fee-tail that holds by [Page 441] Homage, shall kneel upon both his knees ungirded, and the Lord shall sit, and hold the hands of his Tenant between his hands, and the Tenant shall say, I become your man from this day forward of life and member, and of earthly honor, and to you shall be faithful and true, and shall bear to you faith for the Lands that I claim to hold of you, saving that Faith I owe to our Lord the King: and then the Lord so sitting shall kiss him.
How Fealty shall be done, look before in Fealty.
The Steward of the Lord may take Fealty, but not Homage. See the Statute 12 Car. 2. cap. 24.
Homage auncestrel.
HOmage auncestrel is, where a man and his Ancestors, time out of mind, held their Land of their Lord by Homage. And if such Lord hath received Homage, he is bound to acquit the Tenant against all other Lords above him of every manner Service. And if the Tenant hath done Homage to his Lord, and is impleaded, and vouches the Lord to Warranty; the Lord is bound to warrant him: and if the Tenant lose, he shall recover in value against the Lord so much of the Lands as he had at the time of the [Page 442] Voucher, or at any time after. Also if a man that holds his Land by Homage auncestrel alien the Land in fee, then the Alienee shall do Homage to his Lord; but he shall not hold by Homage auncestrel, for that the continuance of the Tenancy in the Blood of the first Tenant is discontinued.
Homagio respectuando.
HOmagio respectuando is a Writ directed to the Escheatour, commanding him to deliver Seisin to the Heir of his Lands at his full age, although he hath not made his Homage. Of which see Fitz. N. B. f. 269. A.
Homesoken.
HOmesoken, or Hamesoken, is, to be quit of Amerciaments for Entring into Houses violently and without licence, and contrary to the Peace of the King: And that you hold Plea of such Trespass done in your Court, and in your Land.
Homicide, or Man-slaughter.
HOmicide, or Man-slaughter, is the Killing of a Man felonioussy, without malice forethought [Page 443] It is also defined thus, Homicide is the killing of a man by a man. But if it be done by a Dog, Ox, or other thing, it is not properly called Homicide. It is called Homicidium, ab homine & cado, quasi Hominis caedium.
Homine capto in Withernamium.
HOmine capto in Withernamium, is a Writ to take him that hath taken any Bond-man or Woman, and led him or her out of the County, so that he or she cannot be replevied according to Law. Reg. Orig. fol. 79. a.
Homine replegiando.
HOmine replegiando is a Writ to deliver men out of Prison upon Bail. In what cases it lies, and in what not, see in Fitz. N. B. f. 66. E. and see here in the Title of Replevin in the end.
See Replevin.
Honour.
HOnour, besides the general signification, is used specially for the most noble sort of Lordships, whereof other inferiour Lordships or Mannors depend by performance [Page 444] of Customes and Services, some or other, to those that are Lords of them. And it seems there are no Honours but those which originally appertained to the King; yet they may afterward be given in Fee to Noblemen. The manner of Creating these Honors, may in part be collected out of the Statutes of Anno 31 Hen. 8. chapter 5. where Hampton Court is made an Honour; and Anno 33 ejusd. cap. 37, & 38. whereby Amptil and Grafton are likewise made Honours; and Anno 37 ejusd. cap. 18. whereby the King hath power given him by his Letters Patents to erect four several Honours, Westminster, Kingston upon Hull, S. Osithes in Essex, and Dodington in Barkshire.
Hornegeld.
HOrnegeld is, to the quit of certain Custome exacted by Tillage through all the Land, of whatsoever horn'd Beast.
Hors de son Fee.
HOrs de son Fee, is an Exception to avoid an Action for Rent issuing out of certain Land, by him who pretends to be the Lord, or for some Customes or Services; for if he can justifie that the [Page 445] Land is without the compass of his Fee, the Action falls. Broke hoc Tit. 7, 8. and 1 Institut. 1. b.
Hospitallers.
HOspitallers (Hospitularii) an Order of Knights first founded at Jerusalem, and called the Joannites or Knights of St. John of Jerusalem; and they were called Hospitallers, for that they built an Hospital at Jerusalem for the entertainment of all such as from any part of the world came to visit the Holy places, and did guard and protect such Pilgrims in their Iourneys. the Institution of their Order was first allowed by Pope Gelasius the second, about the year 1118. And they had many Priviledges granted them, as Immunities from payment of Tithes, &c. And for these they are often mentioned in our Books. You shall find their Priviledges reserved to them in Magna Charta, cap 37. And you shall see the Right of the Kings Subjects vindicated from the Vsurpation of their Iurisdiction by the Statute of Westm. 2. cap. 34. Their chief abode is now in the Island of Melita, commonly called Malta, given them by the Emperor Charles the Fifth: And for that they are now called Knights of Malta. All the Lands and Goods of these [Page 448] Knights here in England were put in the disposition of the King by the Stat. of 32 H. 8. cap. 24.
Hosteler.
HOsteler is an Inholder. Coke Entr. 347.
Hotchpot.
HOtchpot, is a blending or mixing together, and a partition of Lands given in Frank-marriage, with other Lands in Fee-simple discended. For example, A man seised of thirty Acres of Land in Fee hath issue two Daughters, and gives with one of his Daughters, to a man that marries her, ten Acres of the same Land in Frank-marriage, and dies seised of the other twenty Acres. Now if she that is thus married will have any part of the twenty Acres whereof her Father died seised, she must put her lands given in Frank-marriage in Hotchpot, that is, she must refuse to take the sole Profits of the Land given in Frank-marriage, and suffer the Land to be commixt and mingled together with the other Land whereof her father died seised, so that an equal Division may be made of the whole between her and her Sister. And thus for her x Acres she shall have xv; else her Sister will have the [Page 449] xx Acres of which their Father died seised.
Housebote.
HOusebote is necessary Timber that the Lessee for years or for life, of common right, may take upon the Ground, to repair the Houses upon the same Ground to him leased, although it be not exprest in the Lease, and though it be a Lease by Word, without Deed. But if he take more then is needful, he may be punisht by an Action of Waste.
Hue and Cry.
HUe and Cry, is a pursuit of one having committed Felony by the High-way: for if the party robbed, or any in the company of one that was murthered or robbed, comes to the Constable of the next Town, and wills him to raise Hue and Cry, or to make Pursuit after the Offendor, describing the party, and shewing, as near as he can, which way he is gone; the Constable ought forthwith to call upon the Parish for aid in seeking the Felon; and if he be not found there, then to give warning to the next Constable, and he to the next to him, until the Offendor be apprehended, or at least until he be so pursued to the Sea-side. Of this see Bract. [Page 448] lib. 3. tract. 2. cap. 5. Smith de Repub. Angl. lib. 2. cap. 20. and the Statute of Winchester, made Anno 13 E. 1. and the Statute of 28 E. 3. cap. 11. and An. 27 El. cap. 13.
Huers.
HUers. See Conders.
Hundred.
HUndreds were divided by King Alfred, after he had divided the whole Realm into certain parts or sections, which of the Saxon word Scyran, signifying to cut, he termed Shires, or (as we yet spake) Shares and Portious. These Shires be also dividid into smaller Parts; whereof some were called Lathes, of the word Gelathian, which is to assemble together: others Tithings, because there were in each of them to the number of Ten persons, whereof each one was Surety and Pledge for others good abearing: others Hundreds, because they contained Iurisdiction over one Hundred Men or Pledges, dwelling peradventure in two, or three, or more Parishes, Boroughs, or Towns, lying and adjoyning nevertheless somewhat near together, in which he appointed Administration of Iustice to be exercised severally among [Page 449] them of the same Hundred, and not that one should run out disorderly into anothers Hundred, Lathe, or Tithing, wherein he dwells not.
These Hundreds continue to this day in force, although not altogether to the same purpose whereunto at first they were appointed, yet still to very needful, both in time of Peace for good order of Government divers ways, and in War for certainty of levying men; as also for the more ready Collection of Payments granted in Parliament to the Kings of this Realm.
Hundred-Lagh.
HUndred-Lagh signifies the Hundred-Court, from which all the Officers of the Kings Forrest were freed by the Charter of Canutus, cap. 9.
Hundredum.
HUndredum is, to be quit of Money or Customs to be paid to Governors and Hundredors.
Husfastene.
HUsfastene (quasi Domi fixus) is he that holds House and Land. Bract. lib. 3. tract. 2. c. 10.
Hustings.
HUstings (Hustingum) is a Court of Common-Pleas held before the Major and Aldermen of London, and it is the highest Court they have, for Error or Attaint lies there of a Iudgment or saise Verdict in the Sheriffs Court, as it appears by Fitzh. N. B. 22 H. &c. and the Statute of 11 H. 7. cap. 21. And other Cities and Towns have had a Court of the same name, as Winchester, Lincoln, York, and Sheppy. So called from the Saxon Hus, Domus, and Thing, Causa; quasi, Domus Causarum.
I.
Idemptitate, or Identitate nominis.
IDemptiatis nominis, is a Writ that lies where a Writ of Debt, Covenant, or Account, or such other Writ is brought against a Man, and another that hath the same name with the Defendant, is taken for him; then he shall have this Writ, by which the Sheriff shall make Inquiry before the Iustice assigned in the same County, if he be the same person or not; and if he be not [Page 451] sound to be the party, then he shall go without day in peace.
Ideot.
IDeot is he that is a Natural Fool from his Birth, and knows not how to count Twenty pence, or name his Father or Mother, nor tell his own age, or such like easie and common matters, so that it appears he hath no manner of Vnderstanding, Reason, or Government of himself. But if he can read, or learn to read by instruction and information of others, or can measure an Ell of Cloth, or name the Days of the Week, or beget a Child, or such like, whereby it may appear he hath some light of Reason; such a one is no Ideot naturally.
Jeofaile.
JEofaile is, when the parties to any Suit in Pleading have proceeded so far that they have joyned Issue, which shall be tried, or is tried by a Iury or Enquest; and this Pleading or Issue is so badly pleaded or joyned that it will be Error if they proceed: then some of the said parties may by their Councel shew it to the Court, as well after Verdict given and before Iudgment, as before the Iury is charged. And the [Page 452] Councel shall say, This Enquest ye ought not to take. And if it be after Verdict, then he may say, To judgment you ought not to go. And because such niceties occassioned many delays in Suits, divers Statutes are made to redress them, as well in the time of King H. 8. an. 32. c. 30. as of Queen Eliz. whereof we may say as the Civilians, That although Constantine the Emperor commāded the forms of the Law to be cut off, yet the daily use of Pleading doth seem again to recal them, or rather, some of them increase as the heads of Hydra. See also now a new Statute of Jeofailes, made in 21 Jac. c. 13.
Jetsam.
JEtsam is, when a Ship is in danger to be cast away, and to disburthen the Ship, the Mariners cast the Goods into the Sea: and although afterward the Ship perish, none of those goods called Jetsam, Floatsam, or Lagan, are called Wreck, as long as they remain in or upon the Sea; but if any of them are driven to Land by the Sea, there they shall be reputed Wreck, and pass by the grant of Wreck. Coke, l. 5. f. 106.
Jettezoons.
JEttezoons, This is mentioned in Policies of Insurance, and signifies Goods thrown into the Sea in a great Storm.
Unlawful Assembly.
UNlawful Assembly is, where people assemble themselves together to do some unlawful thing against the Peace, although they execute not their purpose in deed.
Imparlance.
IMparlance. See Emparlance.
Impeachment of Waste.
IMpeachment of Waste (Impetitio Vasti) is as much as to say as a Demand made or to be made of Recompence for Waste done by a Tenant that hath but a particular Estate for Life or Years. And therefore he that hath such a Lease without Impeachment of Waste, hath by that a property or interest given him in the Houses and Trees, and may make waste in them, without being impeached for it, that is, without being questioned or demanded any recompence for the Waste done. See Coke, l. 11. Bowles Case, f. 82. b.
Implements.
IMplements comes either from the French word (Employer, to imploy) or from the Latine (Implere, to fill up) and is used for things of necessary use in any Trade or Mystery, which are imployed in the practice of the said Trade, or without which the work cannot be accomplished. Also for Furniture with which the House is filled. And in that sense you shall find the word often in Wills and Conveyances of Moveables.
Impost.
IMpost is a French word that signifies Tribute, but with us it is taken for the Tax that is paid the King for any Merchandise brought into any Haven from Places beyond the Seas. And it is used in the Statute of 31 Eliz. c. 5. as a word of the same signification with Custom which Merchants pay.
Imprisonment.
IMprisonment is the Restraint of a mans Liberty, whether it be in the open Field, or in the Steeks or Cage in the Streets, or in a Mans own House, as well as in the common Geal. And in all these places the party [Page 455] so restrained is said to be a Prisoner, so long as he hath not his Liberty freely to go at all times to all places whether he will, without Bail or Mainprise.
Incumbent.
INcumbent comes of the Latine (Incumbere) and signifies him that is presented, admitted and instituted to any Church or Benefice with Cure; who is therefore called the Incumbent of that Church, because he doth bend all his study to the discharge of the Cure there.
Indicavit.
INdicavit is a Writ or Prohibition that lies for the Patron of a Church, whose Clerk is Defendant in Court-Christian in an Action for Tithes, commenced by another Clerk, and extending to the fourth part of the Church, or of its Tithes; in which case the Suit belongs to the Kings Court, by Westm. 1. c. 5. Wherefore the Defendants Patron (being like to be prejudiced in his Church and Advowson, if the Plaintiff obtain in the Court-Christian) has this means to remove it to the Kings Court. Reg. orig. fol. 35. and Britton, c. 109. This Writ is not returnable; but if they cease not their Suit, he shall have an Attachment.
Indorsement.
INdorsement is that which is written upon the Back of a Deed, as the Condition of an Obligation is said to be indorsed, because it is commonly written on the Back of the Obligation.
Induction.
INduction is a lay act made by prescept of the Ordinary, by which, actual possession of the Church is given to the Rector or Vicar after his Presentation and Institution to it.
Infangtheef.
INfangtheef is a Priviledge or Liberty granted to Lords of certain Mannors, to judge any Thief taken within their Fee.
Information.
INformation for the King is that which for a common person is called a Declaration; and is not always done directly [Page 457] by the King or his Attorney, but rather by some other man, who sues as well for the King as for himself, upon the breach of some penal Law or Statute, wherein a Penalty is given to the party that will sue for the same; but no Action of Debt to recover it, therefore it must be had by Information.
Ingrosser.
INgrosser comes of the French word Grosier, that is, one that sells by Whole-sale. But in our Law an Ingrosser is one that buys Corn, Grain, Butter, Cheese, Fish, or other dead Victuals, with an intent to sell the same again. And so he is defined in the Stat. of 5 E. 6. c. 14. made against such Ingrossing.
Inheritance.
INheritance. See Enheritance.
Inhibition.
INhibition is a Writ to inhibit a Iudge to proceed farther in the Cause depending before him.
And there is another Writ, where after the Kings Presentment to a Benefice, he presents another, and inhibiteth the Bishop to give Induction to the first Presentee. Plo. Com. 528. [Page 458] See F. N. B. f. 39. where he puts Prohibition and Inhibition together. Inhibition is most commonly a Writ issuing forth of an higher Court-Cheistian to a lower and inferiour, upon an Appeal, Anno 24 H. 8. c. 12. and Prohibition out of the Kings Court of Record at Westminster to a Court-Christian, or to an inferiour Temporal Court.
Injunction.
INjunction is an interlocutory Decree out of the Chancery, sometimes to give Possession to the Plaintiff for defect of Apparance in the Defendant; sometimes to the ordinary Courts of the King, and sometimes to the Court-Christian, to stay Proceeding in a Cause upon suggestiou made, that if the rigor of the Law take place, it is against Equity and Conscience in that Case, See West, part. 2. tit. Proceedings in Chancery, sect. 25.
Inlagary.
INlagary or Inlagation, is a Restitution of one outlawed to the Kings Protection, or to the benefit & condition of a Subject.
Inlaugh.
INlaugh signifies him that is sub Lege, in some Frankpledge, [Page 459] not out-lawed; of whom see Bract. l. 3. tract. 2. c. 11.
Inmates.
INmates are those persons of one Family that are suffered to come and dwell in one Cottage together with another Family, by which the poor of the Parish will be increased. And therefore by the Statute of 31 Eliz. c. 7. there is a Penalty of ten shillings a Month set upon every one that shall receive or continue such an Iumate.
Inquisition.
INquisition. See Enquest.
Inrolment.
INrolment is the Registring, Recording, or Entring of any Act or Deed in the Chancery, or elsewhere, as of a Recognizance, Fine, Statute, or Deed indented by the Statute of 27 H. 8. c. 16. by which a Freehold shall pass.
Instant.
INstant (in Latine, Instans) is defined by the Logicians, A thing not dividable in Time, which is not any Time, nor part of Time, to which yet the parts [Page 460] of time are conjoyned, and much considered in the Law: and though it cannot be actually divided, yet in consideration and conceit it may be divided and applied to several purposes, as if they were several times; whereof see in Plowdens Commentaries in the Case between Fulmerston and Stuard, where the Statute of 31 H. 8. (which Enacted, That if an Abbot within a year before the Statute had letten Lands to one, who at the time of making that Lease had the same Land to farm for a term of years, then not expired that the Lessee should have that Land only for twenty one years) is expounded.
And there it is debated, That when the Termor takes the second Lease, he surrenders his former term; and so at the same instant of taking the second Lease, the former term is expired. And in the Case between Petit and Hales, he who kills himself, commits not Felony till he be dead, and when dead, he is not in being, so as to be termed a Felon, but at the instant is in the Law so adjudged.
And there are many other Cases in Law, where the instant time, that is not dividable in nature; in the consideration of the mind and understanding of the Sages of the Law is divided; upon which arise many arguments of great use and profound learning.
Institution.
INstitution, is a Faculty made by the Ordinary, by which a Vicar or Rector is approved to be Inducted to a Rectory or Vicarage.
Interdiction.
INterdiction has the same signification in the Common as in the Canon Law, where it is thus defined, Interdictio est Censura Ecclesiastica prohibens administrationem Divinorum. And so it is used, 22 H. 8. cap. 12.
Intrusion.
INtrusion is a Writ that lies against him that enters after the death of Tenant in Dower, or other Tenant for Life, and holds out him in the Reversion or Remainder; for which see Fitz. N. B. fol. 203. E. And every entry upon the possession of the King is called an Intrusion; as where the Heir of the Kings Tenant enters after Office, and before Livery, this is called an Intrusion upon the King, as appears in Stanf. Prerog. fol. 40. and many other Books.
Inventary.
AN Inventary is a Catalogue or Recital in Writing of all the Goods and Chattels of one that is dead, with the Valuation of them by four several persons, which every Executor and Administrator ought to exhibit to the Ordinary at the time appointed.
Jointenans.
JOintenants are, where two men come to any Lands and Tenements by one joynt Title; as if a man give Lands to two men, and to their Heirs.
Tenants in common are, where two have Lands by several Titles, or by Feoffment to two, to have and tohold the one half to one and his Heirs, aud the other half to another and his Heirs: in all these cases none of them knows his several.
If there be two or three Ioyntenants, and one hath Issue and dies, then he or those Ioyntenants that overlive shall have the whole by Survivorship.
If two Iointenants by agreement [Page 463] make Partition between them by Deed, then they are several Tenants:
But if one Ioyntenant grant that which belongs to him to a Strang [...] , then the other Ioyntenantand the Stranger are Tenants in common.
And though two Tenants in common be seised throughly and of the whole, and none knows his several; yet if one die, the other shall not make the whole by Survivorship, but the Heir of him that dies shall have the half.
And so if there be three Ioyntenants, and one of them makes a Feoffment of his part to another, and the Feoffee dies; then his Heir shall have the third part, and the other two are Ioyntenants as they were, because they two are seised by one joynt Title.
Also if Lands be given to the baron and his wife, and the husband aliens and dies, the wife shall recover the whole: But if they were Ioyntenants before the Coverture, then he shall recover but the half.
If Land be given to the husband and his wife, and a third person, if the third person grant that which belongs to him, the one half passes by this Grant; for that the baron and his wife are but one person in Law, and in this case they have right but to half.
Also if two Ioyntenants are of Lands in a Town that is [Page 468] Borough-English, where Land is devisable, and one by his Testament devises that which belongs to him to a Stranger, and dies; this Devise is void, and the other shall have the whole by Sutviver, for that the Devise may not take effect till after the death of the Devisor; and immediately after the death of the Devisor, the right comes to the other Ioyntenant by Surviver, who claims nothing by the Devisor, but in his own right by Surviver. But otherwise it is of Parceners seised of Lands devisable, causa qua supra.
Journies accounts.
JOurnies accounts (Dietae computatae) is a term in the Law which is understood thus: If a Writ be abated without the default of the Plaintiff or Demandant, he may purchase a new Writ, which if it be purchased by Journies accounts, (that is, within as little time as he possibly can after the Abatement of the first Writ) then this second Writ shall be as a Continuance of the first, and so shall ouste the Tenant or Defendant of his Voucher, Plea of Nontenure, Ioyntenancy fully administred, &c. or any other Plea which arises upon matter hapning after the date of the first Writ. And fifteen days have been held a convenient [Page 469] time for the purchase of the new Writ. See for this Writ by Journies accounts, Spencers Case, Coke, lib. 6. fol. 9. b.
Joynture.
JOynture is an Estate and Assurance made to a Woman in consideration of Marriage, for term of her life, or otherwise; as is mentioned in the Statute of 27 H. 8. cap. 10. whether it be before or after Marriage. And if it be after, then she may at her liberty after the death of her husband refuse to take or have the Lands so assured for her Ioynture, and demand her Dower at the Common Law: But if it be made before Marriage, then she may not refuse such Ioynture, nor have Dower according to the Common Law, unless that when she brings her Writ of Dower, the Defendant pleads such a Plea as will not bar her of her Dower; as if he say in Bar, that her husband was not seised of such Estate whereof she might be endowed, or any such Plea, and doth not shew that she hath a Ioynture made, &c. and therefore demands Iudgment of that Action, or any such like Plea, &c. And this was the opinion of Master Brograve at his Reading in Grays-Inn in Summer, An. 1567. 18 Eliz. upon a Branch of the [Page 470] Statute made 27 H. 8. cap. 10. concerning Joyntures and Dowers.
And of those things whereof a Woman may be endowed, she may have Ioynture; as of Mines, Vesturam terrae, Woods, Towns, Is [...] es, Meadows, and such like. Also of an Advowson, Reversion depending upon an Estate for Life, Wind-mill, high Chamber, Rectory, and such other; and they are called Tenements. Also of a Villain, for he is an Hereditament. And of all these profit may come to the woman. But of those things whereof no profit will come, but rather a charge, a Ioynture cannot be made. See Coke, lib. 4. fol. 1. Vernons Case.
Jurisdiction.
JUrisdiction is a Dignity which a Man hath by a power to do Iustice in Causes of complaint made before him.
Juris utrum.
JUris utrum is a Writ that lies for the succeeding Incumbent of a Benefice, to recover the Lands or Tenements belonging to the Church, which were aliened by his Predecessor. And see of this Fitz. N. B. fol. 48. R. and see after in the Title Utrum.
Juror.
JUror is one of those 24 or 12 men which are sworn to deliver a truth upon such Evidence as shall be given them touching the matter in question: of which see Fitz. Nat. B. fol. 165. D. and the Statute 16 and 17 Car. 2. cap. for returning able and sufficient Jurors.
Justice seat.
JUstice seat is the highest Court that is held in a Forrest, and it is always held before the Lord Chief Iustice [...] Eyre of the Forrest, upon m [...] ning 40 [...] ays before. And [...] the Iudgments are always given, and the Fines see for Offences that were presented at the Courts of Attachments, and the Offenders indicted at the Swainmotes. See concerning this Court Manwoods Forrest Laws, cap 2 [...] . fol. 238. b.
Justices in Eire.
JUstices in Eire. See Eire.
Justicies.
JUsticies is a Writ directed to the Sheriff for the dispatch of Justice in some special Cases in his County-Court of which he cannot by his ordinary [Page 472] power hold Plea there. And of this you may see Precedents in Fitzh. N. B. fol. 117. C. in Account, and fol. 152. B. in Annuity, and fol. 119. G. in Debt, and many others. And it is called a Justicies, because it is a Commission to the Sheriff to do a man right; and it requires no Return or Certificate of what he hath done.
K.
Keelage.
KEelage, in Latine Killagium, is a Custom paid at Hartlepool in Durham for every Ship coming into that Port. R of Parl. 21 E. 1.
Kiddle.
KIddle or Kidel, is a Dam or Wear in a River. All Kidels shall from henceforth be utterly put down in the Thames and Medway, and throughout all England, except upon the Sea-coast. Mag. Char. cap. 24.
KIngs silver.
Kings silver is the Money which is due to the King in the Court of Common Pleas, for a License there [Page 473] granted to any man to pass a Fine. Coke, lib. 6. fol. 39, & 43.
Kintal.
KIntal is a Weight, commonly of One hundred pounds, more or less, according to the Vsage of sundry Nations. Mr. Plowden in the Case of Reniger and Fogassa makes mention of this word.
Knights Service.
KNights Service was a Tenure by which several Lands in this Nation were held of the King. But it is abolished by Statute 12 Car. 2. cap. 24.
L.
Laches.
LAches or Lasches is an old French word signifying Slacknesse or Negligence, as it appears in Lit. sect. 403. & 726. where Laches of Entry is nothing else but a Neglect in the Infant to enter. So that I think it may be an old English word. And when we say, There is Laches of Entry, it is as much as to say, There L [...] ok is of Entry, or there is [Page 474] Lack of Entry. Yet I find that (Lascher) in French is to Loyter, and (Lasche) signifies one that is idle or lazy: and therefore it may also come from the French. For Etymoligies are divers, and many times ad placitum.
Lagan.
LAgan is such a parcel of Goods as the Mariners in a danger of Shipwreck cast out of the Ship; and because they know they are heavy, and will sink, they fasten to them a Boigh or Cork, that so they may find them, and have them again. If the ship be drowned, or otherwise perish, these Goods are called Lagan or Ligan, a ligando: and so long as they continue upon the Sea, they belong to the Admiral; but if they are cast upon the Land, they are then called a Wreck, and belong to him that hath the Wreck, as it appears in Coke, l. 5. f. 106.
Lageman.
LAgeman est Homo Legalis seu legitimus, such as we call Good men of the Jury. The word is found in Dooms-day-Book.
Land-cheap.
LAnd-cheap is a payment of 10 d. in the Purchase-mony for every Mark thereof, for all the Lands within the Borough of Maldon in Essex, by prescription, which see H. 25, 26. Car. 2. Roll 706. in B. R.
Lapse.
LApse (Lapsus) is the Omission of a Patron to present to a Church of his Patronage within six months after an Avoidance by death, or taking of another Benefice without qualification, or notice to him given of the Resignation or Deprivation of the present Incumbent; by which neglect Title is given to the Ordinary to collate to the said Church.
Larcenie.
LArceny is a wrongful taking away another mans Goods, but not from his person, with a mind to steal them.
And Theft is in two sorts; the one so called simply, and the other Petit or Little Theft.
The first is where the thing stolen exceeds the value of 12 d. and this is Felony.
The other (called Little or Petit Theft) is where the thing stolen doth not exceed the value of 12 d. and that is not Felony.
Last.
LAst signifies a certain Wright or Burthen; as a Last of Herring is ten thousand, Anno 31 E. 3. Stat. 2. cap. 2. a Last of Hides is twelve dozen, Anno 1 Jae. c. 33.
Lastage.
LAstage is, to be quit of a certain Custom exacted in Fairs and Markets, for carrying of things where a Man will.
Latitat.
LAtitat is a Writ by which all Men in Personal Actions are originally called in the Kings Bench to answer. And it is called Latitat, because it is supposed by the Writ that the Defendant cannot be found in the County of Middlesex, as it appears by the Return of the Sheriff of that County, but that he lurks in another County: and therefore to the Sheriff of that County is this Writ directed to apprehend him.
Law.
LAw. See Ley.
Law-day.
LAw-day signifies a Leet or Sheriffs Tourn, as it appears by the Statute of 1 E. 4. c. 2. where the Sheriffs Tourn is so called, and 9 H. 7. f. 21. b. and many other Books, where a Leet is so called. See Smiths Commonwealth, l. 2. c. 21.
Lawing of Dogs.
LAwing of Dogs. See Expeditate.
Lawless man.
LAwless man is the who is extra Legem, an Outlaw. Bract. l. 3. tract. 2. c. 11. num. 1.
Leases.
LEases are Grants or Demises, by one that hath any Estate in any Hereditaments, of those Hereditaments to another for the lesser time. And they are in divers manners; viz. for term of Life, for Years, for anothers Life, and at Will.
Also a Lease of Land is as good without Deed, as with Deed.
But in a Lease for term of Life it behoves to give Livery and Seisin upon the Land, or else nothing shall pass by the Grant, because they are called Free-holds.
Also a Lease of a Common [Page 478] or Rent may not be good without Deed.
But of a Parsonage that hath Glebe it is good without Deed, for that the Glebe of the Church, which is the principal, may well enough pass without Deed; and so the Dismes and Offerings, which are as accessary to the Church.
But Dismes and Offerings by themselves may not be let without Deed, as it is said.
Leet.
LEet is a Court derived out of the Sheriffs Tourne, and inquires of all Offences under the degree of High Treason that are committed against the Crown and Dignity of the King. But those Offences which are to be punished with loss of life or member, are only inquirable there, and to be certified over to the Iustices of Assise. See Stat. 1. E. 3. c. 16.
Legacy.
LEgacy (Legatum) is a term of the Civil Law, and it is that which we in our Law call a Devise, viz. Lands or Goods given unto any man by the Will or Testament of another. See more, Tit. Devise before.
Lessor and Lessee.
LEssor is he that leases Lands or Tenements to another [Page 479] for term of life, years, or at will: And he to whom the Lease is made is called Lessee.
Levant and Couchant.
LEvant and Couchant is said, when the Beasts or Cattel of a Stranger are come into another mans Ground, and there have remained a certain good space of time.
Levari facias.
LEvari facias is a Writ directed to the Sheriff for the Levying of a sum of mony upon the Lands, Tenements and Chattels of him that hath forfeited a Recognizance. See F. N. B. fol. 265. D.
Law.
LAw is, when an Action of Debt is brought against one upon some secret agreement or Contract had between the parties without especialty shewed, or other matter of Records; as in an Action of Detinue for some Goods or Chattels lent or left with the Defendant; then the Defendant may wage his Law, if he will, that is, swear upon a Book, and certain persons with him, that he detains not the Goods, or ows nothing to the Plaintiff, in manner and form as he hath declared
And it is allowed only in cases of Secrecy, where the [Page 480] Plaintiff cannot prove the surmise of his Suit by any Deed or Open act: for the Defendant might discharge it privily between them without any Acquittance or Publick act. And therefore in an Action of Debt upon a Lease for years, or upon Arrearages of accompt before Auditors assigned, a man shall not wage his Law.
But when one shall wage his Law, he shall bring with him vj, viij, or xij of his Neighbors, as the Court shall assign him, to swear with him, much like the Oath which they make who are used in the Civil Law, to purge others of any crime laid against them, who are called Compurgators.
Note, that the Offer to make the Oath is called Wager of Law; and when it is accomplished, then it is called the Doing of your Law.
And if the Sheriff in any Action return, that he hath summoned the Defendant to appear in Court at any day to answer the Plaintiff, at which day he makes Default; Process shall be awarded against him, to come and save, or excuse his Default; which is as much to say, as to excuse the Delay, or otherwise to lose the thing demanded: And the Defendant comes, and swears he was not summoned, which is called waging of Law; then he ought to do it at the day assigned, with xij others. And in doing of his [Page 481] Law he ought upon his Oath to affirm directly the contrary of that which is imputed to him: But the others shall onely say, They think he saith the truth.
Libel.
LIbel (Libellus) is a term of the Civil Law, signifying the Original Declaration in any Action; and so it is used in the Statutes of 2 H. 3. cap. 3. and 2 E. 6. cap. 13. And an infamous Libel signifies properly in our Law a Scandalous report of any man unlawfully published in writing: of which see Cok. lib. 5. fol. 125. a.
Liberate.
LIberate is a Warrant issuing out of the Chancery to the Treasurer, Chamberlains, and Barons of the Exchequer, or Clerk of the Hamper, &c. for the payment of any yearly Pension or other Sum granted under the Great Seal, Regist. orig. 193. Sometimes to the Sheriffs, &c. Fitzh. N. B. fol. 132. for the delivery of Lands or Goods taken upon Forfeiture of a Recognizance, F. N. B. 131, 132. Cok. lib. 4. Fulwoods Case, fol. 64, 66, 67. Also to a Gaoler from the Justices, for the delivery of a Prisoner that hath put in Bail for his Appearance.
[Page 482] There is also another Writ made out of the Petry-bag Office in Chancery, upon a Statute Staple, after an Extent thereupon retorned; by which the Sheriff retorns he has delivered the Land extended to the Cognizee; which being filed, he may then (& not before) bring his Action of Ejectment to recover possession of the Lands extended.
Libertate probanda.
LIbertate probanda. Look for that in the Title Nativo habendo.
Librata Terrae.
LIbrata Terrae contains four Ox-gangs, and every Oxgang 13 Acres of Land. Skene de verb. signif. verbo bovata Terrae.
Lien.
LIen is a word of two significations, Personal lien, and come being, Covenant or Contract: And real lien, as Judgment, Statute, Recognizance, or an Original against an Heir which oblige and affect the Land.
Ligeance.
LIgeance is a true and faithful Obedience of the Subject due to his Soveraign; and [Page 483] this Ligeance, which is an incident inseparable to every Subject, is in four manners: the first is natural, the second acquired, the third local, and the fourth legal. Of all which you may read much excellent Learning in Cok. lib. 7. Calvins Case.
Limitation.
LImitation is an Assignment of a space or time, within which he that will sue for any Lands or Hereditaments ought to prove, that he or his Ancestor was seised of the thing demanded, or otherwise he shall not maintain his Suit or Action; which Assignments are made by divers Statutes: As the Statute of Merton. cap. 8. Westm. 1. cap. 38. 32 Hen. 8. cap. 2. &c.
Livery of Seisin.
LIvery of Seisin is a Ceremony used in Conveyance of Lands and Tenements, where an Estate in Fee-simple, Feetail, or a Free-hold shall pass. And it is a Testimonial of the willing departing of him who makes the Livery from the thing whereof Livery is made. And the receiving of the Livery is a willing Acceptance by the other party of all that whereof the other hath devested himself. And it was invented as an open and notorious thing, by means [Page 484] whereof the common People might have knowledge of the Passing or Alteration of Estates from man to man, that thereby they might be the better able to try in whom the right and possession of Lands and Tenements were, if they should be impanelled in Juries, or otherwise have to do concerning the same.
The common manner of Delivery of Seisin is thus: If it be in the open Field, where is no Building or House, then one that can read takes the Writing in his hand, if the Estate pass by Deed, and declares to the standers by the cause of their meeting there together, &c. and then openly reads the Deed, or declares the effect thereof; and after that is sealed, the party who is to depart from the Ground takes the Deed in his hands, with a Clod of the earth, and a Twig or Bough, if any be there, which he delivers to the other party in the name of Possession or Seisin, according to the form and effect of the Deed there read or declared. But if there be a Dwellinghouse or Building upon the Land, then this is done at the Door of the same, none being left at that time within the House; and the party delivers all aforesaid, with the Ring of the Door, in the name of Seisin or Possession; and he that receives the Livery enters in first alone, and shuts the door, [Page 485] and presently opens it again, and lets them in, &c. If it be a House whereto is no Land or Ground, the Livery is made and Possession taken by the delivery of the Ring of the Door and Deed only. And where it is without Deed, either of Lands or Tenements, there the party declares by word of mouth, before witness, the Estate that he means to depart with, and then delivers Seisin or Possession in manner aforesaid; And so the Land or Tenement doth pass as well as by Deed, and that by force of the Livery of Seisin. It was agreed in Gray's Inne by Master Snagge, at his Reading there in Summer, Anno 1574. That if a Feoffor deliver the Deed in view of the Land, in name of Seisin, that is good, because he hath a Possession in himself. But otherwise it is of an Attorney, for he must go to the Land, and take Possession himself, before he can give Possession to another, according to the words of his Warrant, &c. And where Livery of Seisin is by View, if the Feoffee do not enter after, &c. nothi [...] g passes, for he ought to enter in Deed.
Lollards.
LOllards were Dogmatists in Religion in the times of E. 3. and H. 5. and in those times were reputed Hereticks; as appears [Page 486] by the Statutes in 5. R. 2. cap. 5. and 2 H. 5. cap. 7. Which Statutes you shall find repealed in 1 E. 6. cap. 12. and 1 El. cap. 1. They had their name (as some think) from one Gualter Lolhard a German, who lived about the year 1315. and was the first Author of this Sect.
Lord in Grosse.
LOrd in Grosse is he who is Lord without a Mannor, as the King in respect of his Crown, Fitz. Nat. Brev. fol. 5. A man makes a Gift in tail of all his Land, to hold of him, and dies; his Heir hath nothing but a Seignory in Gross.
Lotherwit.
LOtherwit is, that you may take amends of him who doth deffle your Bondwoman without your licence.
Lushburgh.
LUshburgh was a counterfeit Coin in the time of E. 3. made beyond Seas, in likeness of English Moneys, and brought in to deceive the King and his Subjects. And therefore it is declared to be Treason by the Stat. of 25 E. 3. Stat. 5. cap. 2. for any man to bring it into the Realm, knowing it to be false.
Maihem or Maime.
MAihem or Maime is, where by the wrongful act of another any Member is hurt or taken away, whereby the party is made unperfect to fight: As if a Bone be taken out of the Head, or broken in any other part of the Body, or Foot, or Hand, or Finger, or Joynt of a Foot; or any Member be cut; or by some Wound the Sinews be made to shrink, or the Fingers made crooked; or if an Eye be put out, Foreteeth broken, or any other thing hurt in a mans Body; by means whereof he is made the less able to defend himself, or offend his enemy.
But the cutting off of an Ear or Nose, or breaking of the Hinder-teeth, or such like, is no Maihem, because it is rather a deformity of Body then diminishing of Strength; and that is commonly tryed by the Justices beholding the party. And if the Justices stand [Page 488] in doubt whether the hurt be a Maihem or not, they use and will of their own discretion take the help and opinion of some skilful Chirurgeon, to consider thereof, before they determine upon the Cause.
Mainpernable.
MAinpernable: that may be mainprised or delivered to Mainpernors. See the Statute of Westm. 1. Cap. 15. what persons may be mainpernable, what not.
Mainprise.
MAinprise is, when a man is arrested by Capias, the Iudge may deliver his body to certain men to keep, and to bring before him at a certain day; and these are called Mainpernors: and if the party appear not at the day assigned, the Mainpernors shall be amerced.
Maintenance.
MAintenance is, where any man gives or delivers to another, that is Plaintif or Defendant in any Action, any sum of money or other thing to maintain his Plea, or takes great pains for him when he hath nothing therewith to do; then the party grieved shall have [Page 489] against him a Writ called a Writ of Maintenance.
Manbote.
MAnbote signifies a Pecuniary Compensation for the killing a man. Lambert.
Mandamus.
MAndamus is a Writ that goes to the Escheator for the finding of an Dffice after the death of one that died the Kings Tenant; and it is all one with the Writ of Diem clausit extremum, but that the Diem clausit extremum goes out within the year after the death, and the Mandamus goes not out till after the year, and in case where there was never any Diem clausit extremum sued out, or was not sued out with effect. Fitz. N. B. 253. B. C. See the Stat. 12 Car. 1. cap. 24.
Also there is another sort of Mandamus granted upon Motion in the Kings Bench, one to the Bishop to admit an Executor to prove a Will, or to grant Administration. Stiles Reports, 78. Another to command Corporations to restore Aldermen, and others, to Offices out of which they are unjustly put out. Look 11 Report, James Bag's Case.
Mannor.
MAnnor is compounded of divers things; as of a House, Arable Land, Pasture, Meadow, Wood, Rent, Advowson, Court-Baron, and such like, which make a Mannor. And this ought to be by long continuance of time, the contrary whereof mans memory cannot discern: for at this day a Mannor cannot be made, because a Court-Baron cannot now be made, and a Mannor cannot be without a Court-Baron, and Suiters and Freeholders, two at the least; for if all the Free-holds except one escheat to the Lord, or if he purchase all except one, there his Mannor is gon, for that it cannot be a Mannor without a Court-Baron, (as is aforesaid;) and a Court-Baron cannot be holden but before Suiters, and not before one Suiter: and therefore where but one Free-hold or Freeholder is, there cannot be a Mannor properly, although in common speech it may be so called.
Mansion.
MAnsion (Mansio) is most commonly taken for the chief Messuage or Habitation of the Lord of a Mannor, the Mannor-house where he doth most reside, his Capital Messuage, [Page 491] as it is called; of which the Wife by the Statute of Mag. Chart cap. 7. shall have her Quarentine.
Munucaptio.
MAnucaptio is a Writ that lies for him who is arrested or indicted of Felony, and offers sufficient Sureties for his Appearance; but the Sheriff, or he whom it concerns, will not suffer him to be bailed: then he shall have his Writ, to command them to suffer him to be bailed. See of this Fitz. N. B. fol. 249. G.
Manumission.
MAnumission is the making a Bond-man free, and may be in two sorts; the one is a Manumission expressed, the other a Manumission implied.
Manumission expressed is, where the Lord makes a Deed to his Villain to Infranchise him by this word (Manumittere) which is as much to say, as to let one go out of another mans hands or power.
The manner of Manumitting or Infranchising in old time, most usually was thus: The Lord (in presence of his Neighbors) took the Bondman by the Head, saying, I will that this Man be free; and therewith shoved him forward out of his hand, and by this he was free.
[Page 492] Manumission implied without this word (Manumitere) is, when the Lord makes an Obligation to his Villain to pay him money at a certain day, or sues him where he might enter without Suit, or grants him an Annuity, or Leases Lands to him by Deed for years, or life, and in divers like cases the Villain thereby is made free.
Marchers.
MArchers are the Noble-men dwelling on the Marches of Wales or Scotland, who in [...] imes past had their private laws, as if they had been Kings; and therefore in the Statutes of 2 H. 4. c. 28. 26 H. 8. cap. 6. 27 H. 8. cap. 26. and 1 E. 6. cap. 10. they are called Lord Marchers.
Marches.
MArches are the bounds and Limits betwixt us and Wales or Scotland, so called either from the German word (March) which signifies a Frontire or Border; or else from the French word (Mar (que)) that is, a Sign or Token of Distinction, these being the notorious Distinctions of two divers Countries. Of these you shall read in the Statutes of 4 H. 5. cap. 7. 22 E. 4. cap. 8. 24 H. 8. cap. 9. and others.
Marshal.
MArshal is a general word for many Officers in England: as the Lord or Earl Marshal, of whom mention is made in the Statutes of 13 R. 2. cap. 2. and 1 H. 4. c. 7. & 14. the Marshal of the Kings House, of whom you may read F. N. B. f. 241. B. and in the Statute of Artic. sup. Chart. c. 3. 18 E. 3. c. 7. 2 H. 4. c. 23. 15 H 6. c. 1. and others. There are also other inferior Marshals mentioned in our Books: as the Marshal of the Kings Bench in the Statute of 5 E. 3. c. 8. and F. N. B. f. 251. l. who hath the custody of all the Prisoners of that Court; and the Marshal of the Exchequer, mentioned in the Statute of 51 H. 3. Stat. 5. called the Statute of the Exchequer. Marshal is a French word, and is as much to say as Master of the Horse: for it seems to come of the German (Marschalk) which hath that signification.
Marshalsea.
MArshalsea is the Court or Seat of the Marshal of the Kings House, of which you may read at large in Coke l. 6. f. 20. B. & l. 10. f. 68. B. It is also taken for the Prison belonging to the Court of the Kings Bench, of which the Marshal of that Court is the Keeper: for so are the forms of the [Page 494] Bills there, that A complains of B in the custody of the Marshal of the Marshalsea of our Lord the King, &c.
Maugre.
MAugre is a word compound of two French words (Mal) and (Gree;) so that it is as much as to say, with an unwilling mind, or in despight of another. And so it is used in Littleton, sect. 672. where it is said, that the Husband and Wife shall be remitted maugre the Husband, that is, in despight or against the will of the Husband.
Maximes.
MAximes are the Foundations of the Law, and the Conclusions of Reason, and are Causes efficient, and certain universal Propositions so sure and perfect, that they may not be at any time Impeached or Impugned, but ought always to be observed, and holden as strong Principles and Authorities of themselves, although they cannot be proved by force of Argument or Demonstrations Logical, but are known by Induction by the way of Sense and Memory. For example, it is a Maxime, that If a man have Issue two Sons by divers women, and the one purchases Lands in Fee, and dies without issue, the other shall never be his Heir, &c.
And it is another Maxime, [Page 495] that Lands shall discend from the Father to the Son, but not from the Son to the Father, for that is an Ascension, &c. And divers such there are, whereof see Doctor and Student.
Maynour.
MAynour is, when a Thief hath stollen, and is followed with Hue and Cry, and taken, having that found about him which he stole, that is called Maynour. And so we commonly use to say, when we find one doing of an unlawful act, that we took him with the maynour or manner.
Meane.
MEane. See Mesne.
Mease.
MEase or Messuage seems to come from the French word Maison or Mansion, which is no other but a Place of abiding or habitation. And yet Messuage in our Law contains more then the very place of habitation: for a House and a Messuage differ, in that a House cannot be intended other then the matter of Building; but a Messuage shall be said all the Mansion-place, and the Curtelage shall be taken as parcel of the Messuage, 20 H. 7. Keloway, fol. 57. a. And by the name of a Messuage the Garden and [Page 496] Curtelage shall pass, Plowden, fol. 171. a.
Measondue.
MEasondue is an Appellation of divers Hospitals in this Kingdom, which are so named, Anno 2 & 3 P. & M. cap. 23. & 15 Car. 2. c. 7. And it comes of the French (Maison de Dieu) and is no more but Gods House in English.
Medietas Linguae.
MEdietas Linguae is an Inquest Impannelled upon any cause, whereof the one half is of Denizens, the other Strangers; and it is used in Pleas between parties, whereof one is a Denizen and the other a Stranger. And this manner of Trial was first given by the Statute of 27 E. 3. Stat. 2. cap. 8. And by the Statute of 28 E. 3. c. 13. it was granted in cases where the King himself was party with an Alien.
Melius inquirendo.
MElius inquirendo is a Writ directed to the Escheator for a second Inquiry to be made, when there is any doubt made of partiality in an Inquiry made upon a Diem clausit extremum after the death of the Kings Tenant. See F. N. B. f. 255. C.
Merchenlage.
MErchenlage is one of those three Laws out of which William the Conqueror framed our Common Laws with a mixture of the Laws of Normandy. And it was the Law of the Mercians, when they had the Government of the third part of this Realm.
Mesnalty.
MEsnalty is the right of the Mesne, as the Mesnalty is extinct. Old Nat. Br. f. 44.
Mesne.
MEsne is, where the Owner of Lands or Tenements holds of one by certain Services, and he holds them of another by like or other Services; then he who holds the Lands is called Tenant paravail, and he of whom it is held is called Mesne, and he of whom the Mesue holds is called chief Lord, or Lord Paramount. And in this case, if the Lord above distrains the Tenant for the Service of the Mesne, who ought to aequit him to the chief Lord, then the Tenant shall have a Writ of Mesne, so called, against the Mesne; and if he acquit not the Tenant, then the Mesne shall lose the Service of the Tenant, and shall be forejudged of his Seigniory, and the Tenant shall be [Page 498] immediate Tenant to the chief Lord, and shall do him the same Service and Suits as the Mesne did.
Messuage.
MEssuage. See Mease.
Metropolitane.
MEtropolitane, signifies the Arch-bishops, of whom Centerbury is stiled, Totius Angliae Primas & Metropol And York the like Title, without the word Totius.
Miscreant.
MIscreant is one who is perverted to Heresie, or a faise Religion. Bro. Presentation, 54.
Mise.
MIse is a French word, and signifies as much as Expensum in Latine; and it is so ordinarily used in the Entries of Iudgments in Personal Actions: when the Plaintiff recovers, the Entry is, that Recuperet damna sua to such a value, and pro misis & custagis, for Costs and Charges, so much. There is also another acception or signification of this word in the Law, where it is taken for the Issue to be tried by Battail of Grand Assise. And so it is [Page 499] used in Littleton, sect. 478. 482. and divers others, where joyning of the Mise upon the meer right is putting it in Issue, who hath the best or clearest right.
Misericordia.
MIsericordia is used in the Common Law for an Amerciament or Mulct set upon any for an offence; as where the Plaintiff or Defendant in any Action are amerced, the Entry is always, Ideo in misericordia, &c. And it is therefore called Misericordia, as Fitzh. says, N. B. fol. 75. H. for that it should be but small and less then the fault, and saving his Contenement, as the Statute of Mag. Charta, cap. 14. speaks. And therefore if a man be outragiously amerced in a Court not of Record, as in a Court-Baron, &c. there is a Writ called Moderata Misericordia to be directed to the Lord or his Baily, commanding them that they take moderate Amerciaments according to the quantity of the fault. And of that see Fitzh. N. B. fol. 75. A. and Moderata Misericordia after.
Misnomer.
MIsnomer is the Mistake of a Name, or the using of one Name for another. See Broke, tit. Misnomer.
Misprision.
MIsprision is, when one knows that another hath committed Treason or Felony, and will not discover him to the King, or his Council, or to any Magistrate, but conceals the same. Divers other offences are called Misprision: as when a Chaplain had fixed an old Seal of a Patent to a new Patent of Non-residence, this was held to be Misprision of Treason only, and no counterfeiting of the Kings Seal. So it is holden in 37 H. 8. Bro. tit. Treason 3. in Fine: but 2 H. 4. f. 25. A. it is adjudged contrary; and Stamf. Pl. cor. fol. 3. B. cites it Treason; and so it is holden at this day.
And if a man know Money to be counterfeit, and bring the same from out of Ireland hither, and utter it in payment, yet this is but Misprision of Treason, and no Treason: and so it is in divers like cases.
In all cases of Misprision of Treason, the Party offendor shall forfeit his Goods for ever, and the profits of his Lands for his life, and his Body to Prison at the Kings pleasure.
And for Misprision of Felony or Trespass, the Offendor shall be committed to Prison, until he have found Sureties or Pledges for his Fine, which [Page 501] shall be assessed by the discretion of the Iustices before whom he was convict.
And note, That in every Treason or Felony is included Misprision; and where any man hath committed Treason or Felony, the King may cause him to be Indicted and Arraigned of Misprision only, if he will. See more hereof, Stamf. lib. 1. cap. 39.
Mittimus.
MIttimus is a Writ by which Records are transferred from one Court to another: sometimes immediately, as it appears in the Statute of 5. R. 2. cap. 15. as out of the Kings Bench into the Exchequer; and sometimes by a Certiorari into the Chancery, and from thence by a Mittimus into another Court, as you may see in 28 H. 8. Dyer, fol. 29. a, b. & 29 H. 8. Dyer, fol. 32. a, b.
This word is used also for the Precept that is directed by a Iustice of Peace to a Goaler for the receiving and safe keeping of a Felon, or other Offendor, committed by the said Iustice to the Goal.
Moderata Misericordia.
MOderata Misericordia is a Writ that lies where a [Page 502] man is amerced in Court-Baton or County more then he ought to be; then he shall have this Writ directed to the Sheriff, if it be in the County, or to the Bayliff, if it be in Court-Baron, commanding them that they amerce him not but with regard to the quantity of the Trespass: and if they obey not this Writ, then shall go forth against them a Sicut alias, and Causam nobis significes, and after that an Attachment.
Modus decimandi.
MOdus decimandi is, Mony or other thing of value given annually in lie [...] of Tithes: The tryal of which appertains to the Common Law, and not to any Court-Christian. Ridley's view del Civil Law, 141. In which he says, There was one modus decimandi pro omnibus rebus per totum regnum.
Monstrans de Droit.
MOnstrans de Droit is a Suit in Chancery for the Subject to be restored to Lands and Tenements which he shews to be his Right, but are by Office found to be in the possession of another that is lately dead, by which Office the King is intitled to a Chattel, Free-hold, or Inheritance in the said Lands. And this [Page 503] Monstrans de Droit is give by the Statutes of 34 E. 3. cap. 14. and 37 E. 3. cap. 13. See Coke, lib. 4. fol. 54. B. in the Case of the Wardens and Commonalty of Sadlers.
Shewing of Deeds or Records.
SHewing of Deeds or Records is thus: An Action of Debt is brought against A upon an Obligation by B, or by Executors, &c. After the Plaintiff hath declared, he ought to shew his Obligation, and the Executor the Testament, to the Court. And so it is of Records.
And the diversity between Shewing of Deeds or Records, and Hearing of Deeds or Records, is this: He that pleads the Deed or Record, or Declares upon it, ought to shew the same; and the other against whom such Deed or Record is pleaded or declared, and is thereby to be charged, may demand hearing of the same Deed or Record, which his Adversary brings or pleads against him.
Monstraverunt.
MOnstraverunt is a Writ that lies for the Tenants in Ancient Demesne, and is directed to the Lord, him commanding not to Distain his Tenant to do other Service then he ought: and they [Page 504] may have this Writ directed to the Sheriff, that he suffer not the Lord to distrain the said Tenant to do other Service.
If the Tenants cannot be in quiet, they may have an Attachment against the Lord, to appear before the Iustices; and all the names of the Tenants shall be put in the Writ though but one of them be grieved.
Also if any Land in ancient Demesne be in variance between the Tenants, then the Tenant so grieved shall have against the other a Writ which is called of Right close, after the Custome of the Mannor; and that shall be alway brought in the Lords Court, and thereupon he shall declare in the nature of what Writ he will, as his case lies: and this Writ shall not be removed, but for a great cause, or non-power of the Court.
Also if the Lord in another place out of ancient Demesne distrain his Tenant, to do other Service then he ought, he shall have a Writ of Right, called Ne Injuste vexes; and it is a Writ of Right Patent, which shall be tried by Battel or Grand Assise.
Mortdancester.
MOrtdancester. See before in the Title Cosinage.
MOrtgage, or Morgage.
MOrtgage, or Morgage is, when a Man makes a Feoffment to another on such condition, that if the Feoffor pay the Feoffee at a certain day 40 li. of money, then the Feoffor may re-enter, &c. In this case the Feoffee is called Tenant in Morgage. And as a Man may make a Feoffment in Fee in Morgage, so he may make a Gift in Tail, or a Lease for Life or Years in Morgage. And it seems the cause why it is called Morgage is, for that it stands it doubt whether the Feoffoe will pay the mony at the day appointed or not; and if he fail, then the Land which he laid in gage upon condition of payment of the money is gone from him for ever, and so dead to him upon condition: but if he pay the mony, then is the gage dead as to the Tenant, that is, the Feoffee. And for this cause it is called in Latine, Mortuum vadium, as Littleton saith; or rather Mortuum vas, as I think.
Also if a Feoffment be made in Morgage upon condition, that if the Feoffor pay such a sum at such a day, &c. and the Feoffor dies before the day, yet if the Heir of the Feoffor pay the sum at the same day to the Feoffee, and the Feoffee refuses it, the Heir of the Feoffor may enter. But in such case [Page 506] if there be no day of payment expressed, then such Tender of the Heir is void, because when the Feoffor dies, the time of Tender is past; otherwise the Heirs of the Feoffor shall have time of Tender for ever, which would be inconvenient, that one shall have a Feesimple to him and his Heirs defeasible always at the pleasure and will of others. But in the first case the time of Tender was not expired by the death of the Feoffor.
Mortmain.
MOrtmain: where Lands are given to a House of Religion, or to other Company Incorporate by the Kings Grant, the Land is come into Mortmain, that is in English; a dead hand; and then the King or the Lord of whom the Land is holden may enter, as appears by the Statute de Religiosis. And if one make a Feoffment upon trust to certain persons to the use of a House of Religion, or to the use of any Guild or Fraternity Corporate, it shall be said Mortmain, and he shall incur the same penalty, as appears by the Statute, Anno 15 R. 2.
Mortuary.
MOrtuary is that Beast or other Chattel moveable, which, after the death of the [Page 507] owner, by the Custom of some places, became due to the Parson, Vicar, or Priest of the Parish, in lieu or satisfaction of Tithes or Offerings forgot, or not well and truly paid by him that is dead. See now the Statute of 21 H. 8. cap. 6. which [...] imits the course and order of the payment of these Mortuaries, or of money for them.
Mulier.
MUlier is a word used in our Law, but how aptly I cannot say: for, according to the proper signification, Mulier is a defiled Woman, as it is used in Ulpianus thus; Si ego me Virginem emere putarem, cum esset Mulier, emptio non valebat. Whereby you may see, Mulier is a Woman that hath had the company of a Man. But to leave the right signification, Mulier is taken in our Law for one that is lawfully begotten and born; and is always contra-distinguished with Bastard, only to shew a difference between them; as thus: A Man hath a Son of a Woman before Marriage; that is, a Bastard, and Vnlawful: and after he marries the Mother of the Bastard, and they have another Son; this second Son is called Mulier, that is to say, Lawful, and shall be Heir to his Father; but the other cannot be Heir to any [Page 508] man, because it is not known nor certain in the Iudgment of the Law who was his Father, and for that cause is said to be, No mans son, or the son of the people, and so without Father. according to these old verses;
To whom the People Father is, to him is Father none and all:
To whom the People Father is, well fatherless we may him call.
And always you shall find this addition to them, [Bastard eldest, and Mulier youngest] when they are compared together.
Muniments.
MUniments are Evidences or Writings concerning a Mans Possession or Inheritance, whereby he is able to defend the Estate which he hath. And they are fo called from the Latin word Munio, which signisies to defend or fortifie. And 35 H. 6. fol. 37. b. Wangford says, That this word Muniment includes all manner of Evidences, viz. Charters, Releases, and others.
Murage.
MUrage is a Toll or Tribute, levied for the repairing or Building of Publick Walls. See Fitz. Nat. Brev. fol. 227. D. and the Statute of 3 E. 1. cap. 30.
Murder.
MUrder is a wilful Killing a Man upon Malice forethought, and seems to come of the Saxon word Mordren, which so signifies. And Mordridus is the Murderer even until this day among them in Saxony, from whence we have most of our words, as hath been often said. Or it may be derived of Mort and dire, as Mors dira. See Stanf. Pleas of the Crown, lib. 1.
Muster.
MUster comes of the French word Monstrer, that is, to shew; for to Muster, is nothing but to shew men and their Arms and to In [...] ol them in a Book, as appears by the Statute of 18 H. 6. cap. 39.
N.
Naam.
NAam is the Attaching or Taking of the moveable Goods of another man: and is either lawful, or unlawful. Lawful Naam is a reasonable Distress according to the value of the thing for which [Page 510] the Distress is made. See mo [...] e of this in Horn's Mirror of Justices, lib. 2.
Nativo habendo.
NAtivo habendo is a Writ that lies where the Villain or Nief of the Lord is gone from him; then the Lord shall have this Writ directed to the Sheriff, to cause the Lord to have his Villain or Nief, with all his goods.
In this Writ more Villians or Niefs may not be demanded then two; but as many Villains or Niefs as will may jointly bring a Writ de Libertate probanda.
And if a Villain or Nief bring his Writ de Libertate probanda before the Lord bring this Writ, then the Villain Plaintiff shall be in peace till the coming of the Iustices, or else his Writ shall not help him.
Also if a Villain have tarried in ancient Demesne one year and a day without claim of the Lord, then he cannot seise him in the said Franchise.
Naturalization.
NAturalization. See Denizen.
Ne admittas.
NE admittas is a Writ directed to the Bishop at the Suit of one who is Patron of any Church, and he doubts that the Bishop will collate one his Clerk, or admit another Clerk presented by another man to the same Benefice: then he that doubts it shall have this Writ, to forbid the Sheriff to collate or admit any to that Church.
Negative Pregnant.
NEgative Pregnant is, when an Action, Information, or such like, is brought against one, and the Defendant pleads in Bar of the Action or otherwise a Negative Plea, which is not so special an answer to the Action, but that it includes also an Affirmative. As for example; If a Writ of Entrie en casu proviso be brought by him in the Reversion of an Alienation by the Tenant for Life, supposing that he hath aliened in Fee, (which is a Forfeiture of his Estate) and the Tenant to the Writ saith, He hath not alienated in Fee; this is a Negative, wherein is included an Affirmative; for though it be true that he hath not aliened in Fee, yet it may be he hath made an Estate in Tail, (which is also a Forfeiture) and then the Entry of him in [Page 510] [...] [Page 511] [...] [Page 512] the Reversion is lawful, &c.
Also in a Quare impedit, the King makes Title to present to a Prebend, for that the Temporalties of the Bishoprick were in his hands by the death of W. late Bishop, &c. The Defendant saith that it was not void, the Temporalties being in the Kings hand by the death of W. This is a Negative pregnant; for it may be in the Kings hands otherwise then by the death of W. and it suffices the King if it be in his hands by any means, &c.
So is it where an Information was brought in the Exchequer against J. S. for that he bought Wool of J. N. between Shearing-time and the Assūmption such a Year. The Defendant saith he did not buy any of J. N. as it is alledged, &c. This is called a Negative pregnant; for if he bought it of any other, yet he is culpable for the buying.
Neif, or Nief.
NIef is a Woman that is bound, or a Villain Woman: but if she marry a Freeman, she is thereby made free, because she and her Husband are but one person in Law, and she ought to be of the same nature and condition in Law to all intents as her Husband is; but her Husband is free to all intents without any condition in Law, or otherwise; and so by [Page 513] consequence the Wife ought to be, and is free according to the nature of her free Husband. And then if she were once free, and clearly discharged of Bondage to all intents, she cannot be Nief after without special act done by her, as Divorce, or Confession in Court of Record, and that is in savor of Liberty. And therefore a Free woman shall not be Bound by taking of a Villain to her Husband; but their Issue shall be Villains as their Father was: which is contrary to the Civil Law, for there it is said, The Birth follows the Belly.
Bondage or Villainage had beginning amongst the Hebrews, and its original of Chanaan the son of Cham, who, because he had mocked his father Noe to scorn, lying dissolutely when he was drunk, was punished in his son Chanaan with penalty of Bondage.
Ne. Injuste vexes.
NE injuste vexes. Look in the Title Monstraverunt.
Next Friend.
NExt Friend. See Prochein Amy.
Nihil dicit.
NIhil dicit is, when an Action is brought against a Man, and the Defendant appears, the Plaintiff declares, and the Defendant will not answer, or pleads to the Action, and doth not maintain his Plea, but makes Default; now upon this Default he shall be condemned, because he Saith nothing.
Nisi prius.
NIsi prius is a Writ judicial, and lies where an Enquest is empanelled and returned before the Iustices of the Bench; then the Plaintiff or Defendant may have this Writ directed to the Sheriff, commanding him to cause the Enquest to come before the Iustices in the same County at their coming, and that for the ease of the Enquest.
Nomination.
NOmination is, where one may in right of his Mannor or otherwise, nominate and appoint a worthy Clerk or man to a Parsonage, Vicarage, or such like Spiritual promotion. [...] note, that this Nomination ought to be another then the Ordinary, which other shall present him to the Ordinary.
Non-ability.
NOn-ability is, where an Action is brought against one, and the Defendant says, that the Plaintiff is disable to sue an Action, and demands Iudgment if he shall be answered. There are six causes of Non-ability in the Plaintiff: as if he be an Outlaw, or an Alien born, (but that Disability is in Actions real and mixt only, and not in Actions personal, except he be an alien enemy) or condemned in Praemunire, or professed into an Abby, Priory, or Friety, or Excommunicate, or a Villain, aud sues his Lord. But this last is no Plea for another that is not Lord to the Villain. See more hereof, Littl. l. 2. c. 11.
Non-age.
NOn-age is all that time of a mans age under 21 years in some cases, and 14 in others, as Marriage. See Broke Tit. Age.
Non-claim.
NOn-claim is the Omission or neglect of him that ought to challenge his Right within a time limitted, by which neglect he is either barred of his Right, as at this day upon Non claim within five years after a Fine and right to him accrued [Page 516] by the Statute of 4 H. 7. c. 24. or of his Entry by a discent for want of Claim within five years after the Disseisin made, by the Statute of 32 H 8. cap. 33.
Non omittas propter libertatem.
NOn omittas propter libertatem is a Writ that lies where the Sheriff returns upon a Writ to him directed, that he hath sent to the Bailiff of such a Franchise which hath Return of Writs, and he hath not served the Writ; then the Plaintiff shall have this Writ directed to the Sheriff, that he himself enter into the Franchise, and execute the Kings Writ.
Also the Sheriff shall warn the Bayliff that he be before the Iustices at the day contained in the Writ; and if he come not and excuse himself, then all the Writs judicial which shall pass out of the Kings Court during the same Plea shall be Writs De non omittas, &c. and the Sheriff shall make execution of them depending that Plea.
Non-suit.
NOn-suit is the Renouncing of a Suit by the Plaintiff or Defendant, when the matter is in probability to [Page 517] proceed, after the Tenant or Defendant hath appeared, &c. And see the Statute of 2 H. 4. c. 7. in what cases a man cannot be Non-suit; and 23 H 8. cap. 15. and 8 Eliz. c. 2. and 4 Jac. c. 3. where he that is Non-suit shall pay Costs to the Defendant.
Non sum informatus.
NOn sum informatus is a formal Answer made by an Attorny, who is commanded by the Court to say something in Defence of his Client, by which he is deemed to leave his Client undefended, and so Iudgement passes for the other party.
Novel Assignment.
NOvel assignment is, where a man brings Trespass for breaking his Close: And the Defendant justifies in a place where no Trespass was done, then the Plaintiff assigns the Close where it was; to which the Defendant may plead, Not guilty, or justifie by Title. And there are other Replications in Battery, and other Trespasses; as if the Defendant in Battery justifies by a Writ: The Plaintiff replies, that after the Retorn of it, the Plaintiff in that Suit discharged the Plaintiff out of Prison, and that the Defendant after that Imprisoned him, now the Defendant must answer to that Replication.
Bare or Naked Contract.
BAre Contract, or Naked Promise, is where a Man bargains or sells Lands or Goods, or promises to give one Money, or a Horse, or to build a House, or do such a thing at such a day, and there is no recompence appointed to him for the doing thereof; as if one say to another, I sell or give to you all my Lands or Goods, and there is nothing appointed, assigned, or agreed upon what the other shall give or pay for it, so that there is not one thing for another: this is a Naked Contract, and void in Law, and for not performance thereof no Action lies, for, Ex nudo Pacto non oritur Actio.
Nuper obiit.
NUper obiit is a Writ, and it lies where one hath many Heirs, that is, many Daughters, or many Sons, if it be in Gavelkind in Kent, and dies seised, and one Heir enters into all the Land; then the others whom he holds out shall have this Writ against the Coheir that is in. But a Writ of [...] ationabili parte lies in such ca [...] e where the Ancestor was once seised, and died not seised of the Possession, but in Revertion.
Nusance.
NUsance is, where any Man raises any Wall, or stops any Water, or doth any thing upon his own Ground to the unlawful hurt or annoyance of his neighbor; he that is grieved may have thereof an Assise of Nusance: And if he that makes the Nusance aliens the Land to another, then this Writ shall be brought against them both, as it appears by the Stat. of Westm. 2. c. 24.
It may be also by stopping Lights in an House, or causing water to run over House or Lands, for remedy whereof, an Action upon the Case or Assise lyeth.
O.
Oblations.
OBlations are what things soever are offered to God and his Church by pious and faithful Christians.
Occupant.
OCcupant, Is when a man makes a Lease to another, for the Term of the Life of a third person: The Lessee dies, [Page 520] He who first enters shall hold the land as occupant during the life of the third person; To prevent which such Leases are now made to the Lessee his heirs nnd assigns, 2 Cro. 554. Co. 6. r. 37.
Odio & Atia.
ODio & Atia is an old Writ mentioned in the Statute of Westm. 1. made in 3 E. 1. cap. 11. and it was directed to the Sheriff, to inquire whether a man committed to prison upon Suspicion of Murther were committed upon just cause of Suspicion, or for Malice only. And if upon an inquisition it were found that he were not guilty, then there came another Writ to the Sheriff to bail him. But now that course is taken away by the Statute of 28 E. 3. cap. 9. as it appears in Stamford's Pl. of the Crown, fol. 77. G. Aud see Coke, lib. 9. fol. 56. a. b.
Ordael.
ORdael is as much as to say as Not guilty, and was an ancient manner of Trial in Criminal causes: for when the Defendant, being arraigned, pleaded Not guilty, he might chuse whether he would put himself upon God and the Country, which is upon the Verdict of twelve men, as they are at this day, or upon God onely, and therefore it was called The Judgment of God, [Page 521] presuming that God would deliver the innocent; and that was, if he were of Free estate, by Fire, that is to say, to go bare-footed over nine Plow-shares fire-hot: and if he escaped unhurt, he should be acquitted, and if not, then he should be condemned. And if the party were of Servile condition, then he should be tried by Water, which was in divers manners: For which see Lambert, in the word Ordalium. But now this Trial is prohibited by Parliament. See Coke, lib. 9. fol. 32. b.
Ordelfe.
ORdelfe is, where one claims to have the Ore that is sound in his Soil or Ground.
Ordinary.
ORdinary is a term of the Civil Law, and there signifies any Iudge that hath authority to take Conusance of Causes in his own Right, and not by Deputation. But in the Common Law it is properly taken for the Bishop of the Diocess, who is the true Ordinary to certifie Excommunications, lawful Marriages, and such Ecclesiastical and Spiritual acts within his Diocess, to the Iudges of the Common Law; for he is the party to whom the Court ought to write upon such occasions. And yet the word Ordinary is usually [Page 522] taken in the Common Law and Statutes for every Commissary or Official of the Bishop or other Iudge Ecclesiastical that hath Iudicial Authority within his Iurisdictio [...] , as appears in Coke l. 9. Hensloe's C. fol. 36. b. and the Statute of Westm. 2. cap. 19. & 31 E. 3. cap. 11. and many others.
Orfgild.
ORfgild signifies a payment or restoring of Cattel, from the Sax. Orf. Pecus, and Guild Solut [...] o, Redditio.
Ouster le maine.
OUster le maine is a Writ directed to the Escheator, to deliver Seisin or Possession out of the Kings hands unto the party that sues the Writ, for that the Lands seised are not holden of the King, or for that he ought not to have the wardship of them, or for that the Kings Title is determined, &c. It is also the Iudgement given in a Monstrans de Droit, or upon a Traverse or Petition: for when it appears upon the matter discussed that the King hath no Right or Title to the thing that he seised, then Iudgment shall be given that the Kings hand be amoved; and thereupon an Amoveas manum shall be awarded to the Escheator; which is as much as if Iudgment were given [Page 523] that the party should have his Lands again. And see for this Stamf. Prerog. cap. 24.
Outfangtheef.
OUtfangtheef is, that Thieves or Felons belonging to your Land or Fee, but taken out of it, shall be brought back to your Court, and there judged.
Outlary.
OUtlary. See Utlary.
Owelty.
OWelty is, when there is Lord, Mesne, and Tenant, and the Tenant holds of the Mesne by the same Service that the Mesne holds over of the Lord above him: as if the Tenant holds of the Mesne by Homage, Fealty, and xx s. Rent, and the Mesne holds over of the Lord above by Homage, Fealty, and xx s. Rent also; this is called Owelty of Services.
Hearing of Records and Deeds, &c.
HEaring of Records and Deeds is, where an Action of Debt is brought against a man upon an Obligation, and the Defendant appears, and then prays that he may hear the Obligation [Page 524] wherewith the Plaintiff charges him.
So it is when Executors bring an Action of Debt, and the Defendant demands to hear the Testament; upon this demand it shall be read unto him. But if it be in another Term, or after the Defendant hath imparled, then he shall not hear it. And so as is said of Deeds, is to be understood of Records that are alledged against him. But in the Kings Bench the Defendant may at any time before Plea, and the Plaintiff have Oyer of Deed and Record. See the Title Monstrans de Fait.
Oyer and Terminer.
OYer and Terminer is a Writ called in Latine, de Audiendo & Terminando, and it lies where any great or sudden Insurrection is made, or any other sudden Trespass, which requires hasty Reformation; then the King shall direct a Commission to certain Iustices to hear and to determine the same.
Note, that the Iustices of Assise have also one Commission of Oyer and Terminer directed to them, and divers other Inhabitants within the Shires whereunto their Circuit extends, whereof each of the Iustices of Assise are of the Quorum, for the hearing and determining of divers Offences which may happen in their Circuit, which without this Commission they [Page 525] could not do. See Fitzh. N. B. fol. 110. b.
P.
Paine fort & dure.
PAine fort & dure is an especial Punishment for such as, being arraigned for Felony, refuse to put themselves upon the common Trial of God and the Country, and thereby are Mute, or as Mute in Law. See this at large in Stamford Pl. Cor. fol. 150.
Palace Court.
PAlace-Court, is a Court of Record, erect by King James by his Letters Patents, and held at Southwark, and is a Court of Common Law. See Marshalsea.
Pannage.
PAnnage. See Paunage.
Pannel.
PAnnel comes of the French word Panne, that is, a Skin, & signifies in our Common Law a Schedule or Roll containing the names of the Iurors which the Sheriff hath returned [Page 526] to pass upon any Trial. And therefore the Empannelling of the Iury is nothing but the entring of their Names into the Sheriffs Roll.
Pape, or Pope.
PApe (Papa) is a name that signifies Father, and anciently was applyed to other Clergy-men in the Greek Church; but by usage is particularly appropriated in the Latine Church to the Bishop of Rome: a name very frequent in our ancient Year-Books, especially in the times of those Kings, who, too much abandoning their Imperial Authority, and abasing themselves beneath their estate, suffered an Alien, an Outhlandish Bishop that dwelt 1000 miles off, to take from them the disposition of many Spiritual preferments, sometimes by Lapse, sometimes by Provision, or otherwise. For redress whereof divers Statutes were made while the Kingdom was of the Roman Communion, but his whole Poer was not taken away till towards the latter end of Henry the Eighths Reign,
Paramount.
PAramount is compounded of two French words, (par and monter;) and it signifies in our Law the Highest Lord of the Fee. For the better [Page 527] understanding of this, see F. N. B. f. 135. M. in his Writ of Mesne.
Paraphernalia.
PAraphernalia, in Greek [...] praeter, & [...] dos. They are Goods which a Wife challengeth above her Dower. 1 Cro. Lord Hastings against Douglas.
Paravaile.
PAravaile is also compounded of two French words, (par, and availer;) and signifies in our Law the lowest Tenant of the Fee, who is Tenant to one that helds over of another. See for the use of this word, F. N. B. in his Writ of Mesne, f. 135. M.
Parceners.
PArceners are according to the course of the Common Law, and according to Custom. Parceners according to the Common Law are, where one seised of an Estate of Inheritance of Tenements hath no Issue but Daughters, and dies, and the Tenements descend to the Daughters; then they are called Parceners, and are but as one Heir. The same Law is, if he have not any Issue, and that his Sisters should be his Heirs. But if a Man hath but one Daughter, she is not called Parcener, [Page 528] but the Daughter and Heir. And if there are no Daughters nor Sisters, the Land shall discend to the Aunts, and they are called Parceners.
When Lands discend to divers Parceners, they may make Partition between themselves by Agreement; but if any of them will not make Partition, then the others shall have a Writ de Partitione facienda directed to the Sheriff, who shall make Partition between them by the Oath of xij. lawful men of the Bailywick.
Also Partition by Agreement may be made by the Law, as well by Word without Deed, as by Deed. And if they are of full age, the Partition shall remain for ever, and shall never be defeated.
But if the Lands be to them in tail, though they are concluded during their lives, yet the Issue of him who hath the lesser part in value may disagree from the Partition; and enter and occupy in common with the other part. And if the Husbands of the Parceners make Partition, when the Husband dies the Wife may disagree from the Partition. Also if the Parcener who is within Age makes Partition, when she comes to full age she may disagree. But she must take good heed when she comes to her full Age, that she take not all the Profits to her own use of the Lands which were to her allotted; [Page 529] for then she agrees to the Partition: and the age shall alway be intended the age of one and twenty years.
If there be divers Parceners that have made Partition between them, and one of their parts is recovered by lawful Title; then she shall compel the other to make a new Partition.
Parceners according to Custom are, where a man is seised of Lands in Gavelkind, as in Kent, and other places franchised, and hath issue divers Sons, and dies; then the Sons are Parceners by Custom.
Parco fracto.
PArco fracto is a Writ that lies against him that breaks any Pound, and takes out the Beasts which are there lawfully impounded. See of this F. N. B. 100. E.
Park.
PArk is a place in which by Prescription or by the Kings Grant, a Subject preservs his Game of Beasts ferae naturae. See Stat. W. 1. 3 E. 1. cap. 20.
Parliament.
PArliament, See the Lord Cook's 4th Institutes, and Mr. Cowels Interpreter, Title Parliament.
Parson imparsonee.
PArson imparsonee is he that is in possession of a Church appropriate or presentative; for so it is used in both cases in Dyer, f. 40. b. and f. 221. b.
Parties.
PArties to a Fine or Deed are those which are named in a Deed or Fine as Parties to it; as those that levy the Fine, and they to whom the Fine is levied. And they that make a Deed of Feoffment, and they to whom it is made, are called Parties to the Deed: and so in many other like cases.
Note, that if an Iudenture be made between two as Parties thereto in the beginning, and in the Deed one of them grants or lets a thing to another who is not named in the beginning, he is not Party to the Deed, nor shall take any thing thereby.
Partition.
PArtition is a Dividing of Lands descended by the Common Law, or by Custome among Co-heirs or Parceners, where there are two at least, whether they be Sons, Daughters, Sisters, Aunts, or otherwise of kin to the Ancestor from whom the Land descended to them.
And this Partition is made [Page 531] four ways for the most part; whereof three are at pleasure and by Agreement among them, the fourth is by Compulsion.
One Partition by Agreement is, when they themselves divide the Land equally into so many parts as there are of them Coparceners, and each to chuse one share or part, the Eldest first, and so the one after the other, as they be of age; except that the eldest by consent made the Partition, then the choice belongs to the next, and so the eldest last, according as it is said, Who makes the Partition, the other must have the Choice.
Another Partition by Agreement is, when they chuse certain of their Friends to make Division for them.
The third Partition by Agreement is, by drawing Lots, thus: First, to divide the Land into so many parts as there are Parceners; then to write every part severally in a Little Scroll, or piece of Paper, or Parchment, and put the same Scroll up close into a Hat, or Cap, or other such like thing; and then each Parcener, one after another as they are in age, to draw one piece or Scroll wherein is written a part of the Land which by this Drawing is now severally alloted to them in Feesimple.
The fourth Partition, which is by Compulsion, is, when one or some of the Coparceners would have Partition, and other [Page 532] some will not agree thereto; then they that so would have Partition may bring a Writ De Partitione facienda against the others that would not make Partition, by virtue whereof they shall be compelled to part, &c.
In Kent, where the Lands are of Gavelkind-nature, they call at this day their Partition Shifting, even the same word that the Saxons used, namely Shiftan, which signifies to make Partition between Coheirs, and to assign to each of them their portion. In Latin it is called Herciscere.
Partition also may be made by Ioyntenants or Tenants in common by their assent, by Deed between them, or by Writ, by the Statutes of 31 H. 8. cap. 1. and 32 H. 8. cap. 32.
Pasport.
PAsport is a word mentioned in the Statute of 2 E. 6. cap. 2. and signifies a Licence made by any that hath authority, for the safe passage of any man from one place to another.
Patron.
PAtron is he that hath the Advowson of a Parsonage, Vicarage, Free-chappel, or such like Spiritual Promotion, belonging to his Manor, or otherwise in gross, and thereby may or ought to give the same [Page 533] Benefice, or present thereto, when and as often as it becomes void. And this being Patron, or Patronage, had beginning for the most part by one of these three ways: namely, either by reason of the Foundation, for that the Patron or his Ancestors, or those from whom he claims, were Founders or Builders of the Church; or by reason of Donation, for that they did endow or give Lands to the same for maintenance thereof; or else by reason of the Ground, because the Church was set or built upon their soil or ground: and many times by reason of all three.
Paunage or Pannage.
PAunage, or Pannage, is that mony which the Agistors of Forests do gather for the feeding of Hoggs within the Forrest: and it is also taken for all manner of Mast of trees within the Forest on which the Hogs do feed. See Manw. For. Laws, chap. 12. fol. 90. a.
Peers.
PEers are those that are impannelled in an Enquest upon any man, for the convicting or clearing him of any offence for which he is called in question. The reason of which appellation of the Iury is, for that Peers comes from the Latin Pares, that is, Equals; and the [Page 534] custome of our Nation is, to try every man by his Equals, that is to say, by his Peers. And so it appears by the Statutes of Magna Charta, cap. 29. & West. 1. cap. 6. This word is also used for the Nobility of the Realm and Lords of the Parliament, who are called the Peers of the Realm. And of that see Stamf. Pl. of the Crown, lib. 3. cap. 1. fol. 152.
Perambulatione facienda.
PErambulatione facienda is a Writ that lies where two Lordships lie one nigh another, & some Encroachment is made by long time; then, by assent of both Lords, the Sheriff shall take with him the parties and the neighbours, and shall make Perambulation, and shall make the Bounds as they were before. But if a Lord encroach upon another, and he will not make Perambulation, then the Lord so grieved shall have a Writ against the other, which is called de Rationalibus divisis.
Perjury.
PErjury is a corrupt or voluntary false Oath given in Chancery or in Evidence to a Iury upon tryal of an issue at Common Law. See Stat. 5 El. cap. 9.
Perinde valere.
PErinde valere is a term that belongs to the Ecclesiastical Law, and signifies a Dispensation granted to a Clerk who not being capable of a Benefice or other Ecclesiastical Function is de facto admitted to it. And it hath the name from the words which make the faculty as effectual to the party, as if he were actually capable of the thing for which he hath his Dispensation at the time of his admittance.
Pernor of Profits.
PErnor of Profits is he that takes the Profits. Pernor of Profits and Cestuy que use is all one, Coke, lib. 1. Casu Chudley, fol. 123.
But one may be Pernor of, &c. and not Cestuy que use by Title, but by Coven, which see Co. 5. 77, 78. Co. Entr. 698. 2 Leo. rep. 16. 2 Anderson. 25. Stat. 11. H. 6. 3.
Perpetuity.
PErpetuity is used in Law where an Estate is so designed to be settled in Tail, &c. that it cannot be undone or made void. Which the State cannot bear, as is said in the end of the case. Moo. rep. 809, 810. Co. 1. 84. 130. Co. 6. 40. & l. 8. 90.
Per quae servitia.
PEr quae servitia is a Writ Iudicial, and goes out upon the Note of a Fine; and it lies for the Conusee of a Mannor or Seigniory, to compel him that is Tenant of the Land at the time of the Fine levied to attourn to him. And of this Writ see the Old N. B. f. 170. a.
Perquisites.
PErquisites are Advantages and Profits that come to a Mannor by casualty, and not yearly; as Escheats, Harriots, Reliefs, Waifes, Estrays, Forfeitures, Amerciaments in Courts, Goods and Lands purchased by Villains of the same Mannor, Fines of Copiholds, and divers other like things that are not certain, but come by chance, sometimes more often than at other times. See Perkins, fol. 20, & 21.
Personalty
PErsonalty: as the Action is in the Personalty, that is, to say, brought against the right person, or the person against whom in Law it lies.
Petit Cape.
PEtit Cape is a Writ that lies when any Actios Real, that is to say, of Plea of Land, is brought, and the Tenant appears, and afterward makes Default; then this Petit Cape shall go forth to seise the Lands into the Kings hands. But if he appears not at the first Summons, then a Grand Cape shall go forth; and for such Defalt the Tenant shall lose the Land. But if he wage his Law of Non-summons, he shall save his Default, and then he may plead with the Demandant. And in Grand Cape the Tenant shall be summoned to answer to the Default, and farther to the Demandant: But in Petit Cape he shall be summoned to answer to the Default only, and not to the Demandant. And it is called Petit Cape, for that there is less in this Writ than in the other.
Pettybag.
PEttybag is an Office in the Court of Chancery, for Suits for and against Attorneys and Officers of that Court; And for process and proceedings by extents on Statutes, Recognizances, Ad quod dampnum, &c. Parva Baga dicitur.
Petit Serjeantie.
TO hold by Petit Serjeantie is as if a man held Lands or Tenements of the King, yielding him a Knife, a Buckler, an Arrow, a Bow without string, or other like Service, at the will of the first Feoffor; and there belongs not Ward, Marriage or Relief. And mark well, that a man may not hold by Grand or Petit Serjeanty, but of the King. See the Stat. 12. Car. 2. cap. 24.
Piccage.
PIccage is the payment of money, or the money paid for the breaking of the ground to set up Booths and Standings in Fairs.
Picle or Pitle.
PIcle, or Pitle, seems to come from the Italian Picco [...] o, Parvus, and signifies with us a little small Close or Inclosure.
Pillory.
PIllory is an Engine of punishment ordained by the Statute of 51 H. 3. for the punishment of Bakers; but now used for many other Offendors, and is called in Latine Collistrigium.
Pipowders.
PIpowders is a Court which is incident to every Fair, for the determination of differences upon Bargains and disorders therein. See more hereof Crom. Jurisd. fol. 229. Coke, lib. 10. fol. 73.
Piscary.
PIscary is a Liberty of Fishing in another mans waters, or his own.
Placard.
PLacard is word used in the Statutes of 33 H. 8. cap. 6. & 2 & 3 Ma. cap. 9. and it signifies a Licence to use unlawful Games, or to shoot in a Gun.
Plaintiff.
PLaintiff is he that sues or complains in an Assise, or in an Action personal; as in an Action of Debt, Trespass, Disceit, Detinue, and such other.
Pledges.
PLedges are Sureties either real or formal which the Plaintiff finds to prosecute his suit.
Pleading.
PLeadings are all the Sayings of the parties to Suits after the Count or Declaration; namely, that which is contained in the Bar, Replication, and Rejoynder; and not that contained in the Count it self: and therefore defaults in the matter of Count are not comprised within Mispleading, or insufficient Pleading, nor are remedied by the Statute of Jeofails, 32 H. 8. but only the Mispleading or insufficient Pleading committed in the Bar, Replication and Rejoynder, are there provided for. But see those now remedied also by the Statute of 18 Eliz. cap. 13.
Plenartie.
PLenartie is, when a Benefice is full, directly contrary to Vacation, which signifies the being void of a Benefice, Stamf. Prerog. cap. 8. fol. 32.
Plevyn. See Replevyn.
Pluralities.
PLuralities are where a Uicar or Rector has two or more Ecclesiastical Benefices, For which see Stat. 21. H. 8. cap. 13.
Policy of Assurance.
POlicy of Assurance is a course taken by Merchants for the assuring of their Adventures upon the Sea, by giving a certain proportion in the Hundred for securing the safe return of the Ship, and so much Merchandize as is agreed upon. And of this you may read in the Statute of 43 Eliz. cap. 12.
Vpon which an Action lies at the common Law, or in the Court (by the Kings Patent) sitting at the Royal Exchange in London, the Iudges of which are Civilians, common Lawyers and Merchants.
Pone.
POne is a Writ whereby a Cause depending in the County-Court is removed into the Common-Pleas. See for this Old N. B. fol. 2. a.
Pontage.
POntage is a word mentioned in many Statutes: as in Westm. 1. cap. 25. 1 H. 8. cap 9. & 39 Eliz. cap. 24. and it signifies sometimes the Contribution that is gathered for the Repairing of a Bridge; sometimes the Toll paid by the Passengers to that purpose.
Portgreve, See Viscount
Portmoot.
POrtmoot is a word used in the Statute of 43 Eliz. cap. 15. and signifies a Court kept in a Haven-Town.
Possessio Fratris.
POssessio Fratris, is where a man hath a son and a daughter by one Woman, and a son by another Venter, and dies; the first son enters and dies without Issue, the daughter shall have the Land as Heir to her brother, although the second son is Heir to the father. Litt. Sect. 8.
Possession.
POssession is twofold; either actual, or in Law.
Actual Possession is, when a man actually enters into lands or tenements to him discended, or otherwise.
Possession in Law is, when Lands or Tenements are descended to a man, and he hath not as yet really, actually, and in Deed entred into them. And it is called Possession in Law, because in the eye and consideration of the Law he is deemed to be in Possession, since he is Tenant to every mans Action that will sue concerning the same Lands or Tenements.
Postd [...] sseisin.
POstdisseisin. Look for that before in the Title Assise.
Postea.
POstea is the Record of the proceedings upon a Trial by a Writ of Nisi prius, which is returned after the Trial by the Iudge before whom it was tried into the Court where the first Suit began, to have Iudgment there given upon the Verdict: and it is called the Postea, because it begins with Postea die & loco, &c.
Poundage.
POundage is a Subsidie to the value of 12 d. in the pound, which is granted to the King by every Merchant, as well Denizen as Alien, for all manner of Merchandize carried out and brought in. And of such Subsidies see the Statute 1 & 2 Ed. 6. cap. 13. & 1 Jac. cap. 33. & 14 Car. 2. cap. 24.
Also by Stat. 29 El. cap. 4. every Sheriff is allowed poundage for levying Debt or Damages by Execution.
Pounds.
POunds are in two sorts; the one Pound open, the other close.
Pound open, is every place wherein a Distress is put, whether it be common Pound, or Back-side, Court, Yard, Pasture, or else whatsoever whereto the Owner of the Distress may come to give them meat, without offence for their being there, or his coming thither.
Pound close is such a place where the owner of the Distress may not come to give them meat without offence; as in a Close house, or whatsoever else place.
Preamble.
PReamble takes his name of the preposition (prae) before, and the verb (ambulo) to go; so joyned together, they make the compound verb (praembulo) to go before; and hereof the first part or beginning of an Act is called the Preamble of the Act, which is a Key to open the minds of the makers of the Act, and the mischiefs which they intend to remedy by the same. As for example, the Statute made at Westm. the first, the 37 chap. which gives an Attaint, the Preamble of which is thus: Forasmuch as certain people of the Realm doubt very little to give false Verdicts or Oaths, [Page 545] which they ought not to do, whereby many people are disherited, and lose their right; It is provided, &c.
Prebend and Prebendary.
PRebend and Prebendary are terms often used in our Books, and they come of the Latine (praebeo) Prebend is that portion which every member or Canon of the Cathedral Church receives in right of his place for his maintenance: and Prebendary is he that hath such a Prebend.
Precipe or Praecipe in capite.
PRecipe in capite is a Writ that lies where the Tenant holds of the King in chief as of his Crown, and he is deforced, that is, put out of his Land; then he shall have this Writ, and it shall be Close, and shall be pleaded in the Common Pleas.
Also if any Tenant that holds of any Lord be deforced, it behoves him to sue a Writ of Right Patent, which shall be determined in the Lords Court. But if the Land be holden of the King, the Writ of Right Patent shall be brought to the Kings Court: and the Writ may be removed from the Lords Court unto the County by a To [...] t, and from the County [Page 546] into the Common Place by a Pone. Look therefore before in the Title Drolt.
Praecipe.
PRaecipe are of divers sorts: Quod reddat terras, as dower, formedon, &c. debitum, bona & catalla. Quod teneat conventionem, Quod faciat sectam ad molendinum, Quod permittat, &c.
Preignotary.
PReignotary is compounded of two Latine words (prae and Notarius;) and is used in our Law for the chief Clerks of the Kings Courts, whereof there is one in the Kings Bench, and three in the Common Pleas. He in the Kings Bench records all Actions Civil sued in that Court: and they of the Common Pleas inrol all Declarations, Pleadings, and Iudgments, and make out all Iudicial Writs, they Inroll all Fines and Recognisances, and exemplifie all Records the same Term before the Rolls are delivered out of their hands. In 15 E. 4. 26 b. This Officer is called Praesignator: And one of the three in the Common Bench, Praesignator pauperum.
Praemunire.
PRaemunire is a Writ that lies where any man sues another in the Spiritual Court for any thing that is determinable in the Kings Court; for which great punishment is ordained by divers Statutes; viz. that he shall be out of the Kings protection, and put in Prison without Bail or Mainprise, till he have made Fine at the Kings Will, and that his Lands and Goods shall be forfeited if he come not within two months. And his Provisors, Procurators, Atturneys, Executors, Notaries and Maintainers, shall be punished in the same manner. Therefore look the Statute.
Also some say, if a Clerk sue another man in the Court of Rome for a thing Spiritual, where he may have remedy within the Realm in the Court of his Ordinary, that he shall be within the case of the Statute.
And upon divers other offences is imposed, by Statutes lately made, the Penalty that they incur who are attainted in Praemunire: As by 13 Eliz. cap 8. they who are aiding to make a corrupt Bargain whereupon [Page 548] Vsury is reserved above x. l. in the hundred for a year, &c.
Prender.
PRender is the power or right of Taking a thing before it be offered; from the French prendre, i. accipere.
Prescription.
PRescription is, when a Man claims any thing, because he, his Ancestors or Predecessors, or they whose Estate he hath, have had or used it all the time whereof no memory is to the contrary.
But one may not prescribe against a Statute, except he have another Statute that serves for him.
Presentment.
PResentment is of two significations. One is to a Church; as when a man hath right to give any Benefice Spiritual, and names the person to the Bishop to whom he will give it, and makes a Writing to the Bishop for him, that is a Presentation or Presentment. If divers Coheirs cannot agree in Presentment, the Presentee of the eldest shall be admitted. But if Ioyntenants and Tenants in common agree not within six moneths, the Bishop shall present by lapse.
The other is a Presentment or [Page 549] Information by a Iury in a Court, before any Officer who hath Authority to punish any offence done contrary to the Law.
Pretensed Right or Title.
PRetensed Right or Title is, where one is in possession of Lands or Tenements, and another who is out, claims it, and sues for it: now the pretensed Right or Title is said in him who so doth sue & claim. And if he afterward come to the possession, his Right or Title is annexed to the Land and possession, and not then called Right.
Primer Seisin.
PRimer Seisin is used in the Common Law for a branch of the Kings Prerogative, by which he hath the first possession, that is, the intire Profits for a year of all the Lands and Tenements whereof his Tenant (that held of him in capite) died seised in his Demesne as of Fee, his Heir then being at full age: and thus the King takes in lieu of the intire Profits which he may take, if he will, until Livery be sued, or at the least tendered. Prerog. Reg. c. 3. & Stamf. f. 11. B. See the Stat. 12 Car. 2. c. 24.
Prisage.
PRisage is that part or portion that belongs to the King of such Merchandizes as are taken at Sea by way of lawful Prise. And this word you shall find in the Statute of 31 Ell [...] . cap. 5.
Prisage of Wines.
PRisage of Wines, mentioned in the Stat. 1 H. 8. c. 5. is a custom by which the King out of every Bark laden with Wine under 40 Tun, claims to have two Tun at his own price.
Privie or Privities.
PRivie or Privities is, where a Lease is made to hold at will, for years, for life, or a Feoffment in fee, and in divers other cases; now because of this that hath passed between these parties, they are called Privies, in respect of strangers, between whom no such Conveyantes have been.
Also if there be Lord and Tenant, and the Tenant holds of the Lord by certain Service, there is a Privity between them, because of the Tenure: and if the Tenant be disseised by a stranger, there is no Privity between the Disseisor and the Lord, but the Privity still remains between the Lord and the Tenant that is disseised, and [Page 551] the Lord shall avow upon him, for that he is his Tenant in right, and in Iudgment of the Law.
Privies are in divers sorts; as namely, Privies in Estate, Privies in Deed, Privies in Law, Privies in Right, and Privies in Blood.
Privies in Estate is, where a Lease is made of the Mannor of Dale to A for life, the Remainder to B in fee; there both A and B are Privies in Estate, for their Estates were both made at one time.
And so it is in the first case here, where a Lease is made at will, for life, or years, or a Feoffment in fee, the Lessees or Feoffees are called Privies in Estate, and so are their Hairs, &c.
Privies in Deed is, where a Lease is made for life, and afterward by another Deed the Reversion is granted to a stranger in fee, this Grantee of the Reversion is called Privy in Deed, because he hath the Reversion by Deed.
Privy in Law is, where there is Lord and Tenant, the Tenant leases the Tenancy for life, and dies without Heir, and the Reversion escheats to the Lord; he is said Privy in Law, because he hath his Estate only by the Law, that is to say, by Escheat.
Privy in Right is, where one possessed of a Term for years grants his Estate to another upon Condition, and makes his [Page 552] Executors, and dies; now these Executors are Privies in Right; for if the Condition be broken, and they enter into the Land, they have it in right of their Testator, and to his use.
Privy of Blood is the Heir of the Feoffor or Donor, &c.
Also if a Fine be levied, the Heirs of them that levied the Fine are called Privies.
Privileges.
PRivileges are Liberties and Franchises granted to an Office, Place, Town, or Mannor by the Kings great Charter, Letter Patents, or Act of Parliament: as Toll, Sake, Socke, Infangtheef, Outfangtheef, Tourne, Ordelfe, and divers such like; for which look in their proper titles and places.
Also there are other privileges which the Law takes notice of, that is to say, the privileges of the Commons & Peers of the Parliament, & the privileges of Attornies & Officers of the Courts at Westm. that they shall not be sued or impleaded in another Court, but in that where they are Attornies or Officers.
Procedendo.
PRocedendo is a Writ that lies where any Action is sued in one Court, which is removed to another more high, as to the Chancery, Kings Bench, [Page 553] or Common Place, by a Writ of Priviledge or Certiorari: and if the Defendant, upon the matter shewed, have no cause of Priviledge, or if the matter in the Bill whereupon the Certiorari issued be not well proved, then the Plaintiff shall have this Procedendo, to send again the matter unto the first base Court, there to be determined.
Proces.
PRoces are the Writs and Precepts that go forth upon the Original. And in Actions real and personal there are sundry sorts of Proces: For in Actions real the Proces i [...] Grand Cape before Appearance: Therefore see of that in the [...] Petit Cape.
But in Actions personal, as in Debt, Trespass, or Detinue, the Proces is a Distress: and if the Sheriff return Nihil habet in Balliva, &c. then the Proces is Alias Capias, and Pluries and an Exigent; and they are called Capias ad respondendum. Also the Exigent shall be proclaimed five times; and if the party do not appear, he shall be outlawed. But in divers Actions there are divers manners of Proces, which at large is declared in N. B.
And there are divers other Proces after Appearance, when the parties are at Issue, to make the Enquest appear: as a Writ of Venire facias; and if they do not appear at the day, then a [Page 554] Writ of Habeas corpora Jurat', and after a Writ of Dist [...] ingas Jurat'.
And there are divers other Proces after Iudgment; as Capias ad satisfaciendum, and Capias utlagatum, &c.
Capias ad satisfaciendum lies where a man is condemned in any Debt or Dammage, then he shall be arrested by this Writ, and put in Prison without Bail or Mainprise, till he hath paid the Debt and the Dammages.
Capias utlagatum lies where one is outlawed, then he shall be taken by this Writ, and put in Prison without Bail or Mainprise, for that he had the Law in contempt.
And there are other Proces and Writs Iudicial, as Capias ad valentiam, Fieri facias, Scire facias, and many other: and therefore look for them in their Titles.
Next friend.
NExt friend is commonly taken for Gardian in Soccage, and is where a man seised of Land holden in Socage dies, his issue within age of 14 years, then the next friend, or next of kin, to whom the Lands cannot discend, shall have the keeping of the Heir, and of the Land, to the only use of the Heir until he come to the age of 14 years; and then he may enter, and put the Gardian out, and bring him to accompt: [Page 555] But in that Accompt he shall be allowed for all reasonable costs and expences bestowed either upon the Heir or his Land.
The next friend, or next of kin, to whom the Inheritance cannot discend, is thus to be understood: If the Lands discend to the Heir from his Father, or any of the kin of his Fathers side, then the Mother, or other of the Mothers side, are called the next of kin, to whom the Inheritance cannot discend; for before it shall so diseend, it shall rather escheat to the Lord of whom it is holden.
And where the Lands come to the Heir from his Mother, or any of her side, then the Father, or other of the Fathers side, are called the next of kin, to whom the Inheritance cannot discend, but shall rather escheat to the Lord of whom it is holden.
Otherwise Prochein amy is he who appears in any Court for an Infant who sues any Action, and aids the Infant to pursue his Suit: whereof see the Statutes of Westm. 1. cap. 47. and Westm. 2. cap. 15. that an Infant may not make an Atturney, but the Court may admit the next Friend for the Plaintiff, and a Gardian for the Infant Defendant as his Atturney.
Proclamation.
PRoclamation, is Notice publickly given of any thing whereof the King thinks good to advertise his Subjects: so it is used Anno 7. R. 2. c. 6.
Proclamation of Rebellion, is an open notice given by an Officer, that a man not appearing upon a Subpoena or Attachment in the Chancery, shall be reputed a Rebell, except he render himself at the day assigned. Crompt. Jurisdict. fol. 92.
And it is to be noted, that no man may make Proclamation but by authority of the King, or Majors, and such like as have proviledges in Cities and Boroughs so to do, or have it by Custom. And therefore where an Executor made Proclamations in certain Market-towns, that the Creditors should come by a certain day, and claim and prove their Debts due by the Testator, and because he did this without Authority, he was committed to the Fleet, and Fined. Brook Proclamation 10.
Procurator.
PRocurator is used for him who gathers the Fruits of a Benefice for another man, Anno 3 Ric. 2. Stat. 1. cap. 2.
Prohibition.
PRohibition is a Writ that lies where a man is impleaded in the Spiritual Court of a thing that touches not Matrimony, nor Testament, nor meerly Tithes, but the Kings Crown. This Writ shall be directed as well to the party, as to the Iudge, or his Official, to prohibit them that they pursue no farther. But if it appear afterward to the Iudges temporal, that the matter is fit to be determined in the Spiritual Court, and not in the Court Temporal, then the party shall have a Writ of Consultation, commanding the Iudges of the Court Spiritual to proceed in the first Plea.
Also there are many other Prohibitions to the Admiralty, and to other Courts of Common-Law if they exceed their power.
Properite.
PRopertie is the highest Right that a man hath or can have to any thing, which no way depends upon another mans courtesie: And this none in this Kingdom can be said to have in any Lands or Tenements, but only the King in right of his Crown, because all the Lands through the Realm are in nature of Fee, and hold mediately or immediately of [Page 558] the Town. This word nevertheless is used for such right in Lands and Tenements as common persons have in the same. And there are three manner of rights of Property: that is, Property absolute, Property qualified, and Property possessory: Of which see at large Cok. lib. 7. Case de Swans, fol. 17.
Proprietary.
PRoprietary is he that hath a Property in any thing; but is most commonly used for him who hath the Profits of a Benefice to him and his Heirs, or to himself and his Successors. as in times past Abbots and Priors had.
Protection.
PRotection is a Writ that lies where a man will pass over the Sea in the Kings service, then he shall have this Writ, whereby he shall be quit of all manner of Pleas between him and any other person. except Pleas of Dower, Quare impedit, Assise of Novel disseisin, Darrein presentment and Attaints, and Pleas before Iustices in Eyre. But there are two Writs of Protection, one cum clausula Volumus, and another cum clau [...] ula Nolumus, as appears in the Register.
But a Protectiou shall not be allowed in any Plea begun before the date of it, if it be [...] [Page 559] in Veyages where the King himself shall pass, or other Voyages Royal, or in Messages of the King of affairs of the Realm. Nor shall a Protection be allowed for Victual brought for the voyage whereof the Protection makes mention, nor in Pleas of Trespass, or of Contracts made after the date of the Protection.
Note, that any may attach or begin any Action real against him that hath such Protection, and therein proceed, until the Defendant comes and shews his Protection in the Court, and hath it allowed; and then his Plea or Suit shall go without day. But if after it appears that the party who hath the Protection goes not about the affairs for which he hath it, then the Demandant shall have a Repeal thereof. And if he go, and return after the business ended, the Demandant shall have a Resummons to recontinue the former Suit.
Protestation.
PRotestation is a form of Pleading, when any will not directly affirm, nor directly deny anything that is alledged by another, or which he himself alledges. And it is in two sorts. One is, when one pleads any thing which he dare not directly affirm, or cannot plead for doubt to make his plea double: As if in conveying to himself a [Page 560] Title to any Land, he ought to plead divers Discents by divers persons, and he dare not affirm that all they were seised at the time of their death, or although he could do it, it shall be double to plead two Discents; of both which each by it self may be a good Bar. Then the Defendant ought to plead and alledged the matter, interlacing this word protestando, as to say, that such a one died (by Protestation) seised, &c. And that is to be alledged by Protestation, and not to be traversed by the other. Another Protestation is, when one is to answer to two matters, and yet by the Law he ought to plead but to one; then in the first part of the Plea he shall say to the one matter, protestando, and non cognoscendo this matter to be true, and makes his Plea farther by these words, Sed pro placito dicit, &c. And this is for saving to the party (that so pleads by Protestation) the being concluded by any matter alledged or objected against him, upon which he cannot joyn issue; and is no other but an exclusion of the Conclusion; for he that takes the Protestation excludes the other party to conclude him. And the Protestation ought to stand with the sequel of the Plea, and not to be repugnant, or otherwise contrary.
Provendry.
PRovendry in the Church of Sarum, is called the lesser part of the Altar in the Church of St. Mary, 41 E. 3. 5. b.
Provision.
PRovision is used with us as it is in the Common Law, for providing of a Bishop or other Ecclesiastical person of an Ecclesiastical Living by the Pope before the Incumbent of it be dead; the great abuse whereof appears by several Statutes that have been made from the time of E. 3. to the reign of H. 8. for the avoiding of such Provisions. Rast. Entries. Quare impedit. Roy 17. 20.
Proviso.
PRoviso is a Condition inserted in any Deed, upon the performance whereof the validity of the Deed consists. Sometimes it is only a Covenant, whereof see Coke, lib 2. in the Lord Cromwels Case. It hath also another signification in matters judicial: as if the Plaintiff or Demandant desists from prosecuting an Action, and brings it not to Trial, then the Defendant or Tenant may take forth the Venire facias to the Sheriff, which hath in it these words, Proviso quod, &c. to this [Page 562] end, that if the Plaintiff takes out any Writ to this purpose, the Sheriff shall summon but one Iury upon them both. See Old Natura Brevium in the Writ Nisi prius, fol. 159.
Prov [...] sor. See Praemunire.
Proxy. Procuratio.
PRoxy. Procuratio is a payment to a Bishop by a Religious house, for the charges of his visitation of such Houses, Davies rep. 2.
Purchase.
PUrchase is the Possession that a man hath in Lands or Tenements by his own act, means or agreement, and not by title of Discent from any of his Ancestors. See Littl. l. 1. c. 1.
Purlue.
PUrlue is all the Ground near any Forrest, which being made Forest by Henry the second, Richard the first, or King John, was by Perambulations granted by Henry the third severed again from the same. Manwood part 2. of his Forrest Laws, c. 20. And it seems that this word is composed either of pouralle, that is, to go or walk about; or purelieu, that is, a pure place, because such Lands as were by those Kings subjected [Page 563] to the Laws and Ordinances of the Forrest, are now cleared and freed from the same: As the Civilians call that a pure place, which is not subject unto Burials; fo [...] kewise this may be called a pure place, because it is exempted from the servitude and thraldom which was formerly laid upon it.
Purlue man is he that hath Lands within the Purlieu, and being able to dispenh forty shillings by the year of Free-hold, is upon these two points licensed to hunt in his own Purlieu. Manwood, part 1. p. 151. & 177. See now the Stat. made 1 Jac. c. 27.
Purpresture.
PUrpresture is a wo [...] derived from the French [...] ourpr [...] , which signifies to take from another, and to app [...] priate to himself: and therefore a Purpresture in a general sense is taken for any such wrong done by one man to another.
Purpresture in a Forrest is every Incroachment upon the Kings Forrest, be it by Building, Inclosing, or using of any liberty without a lawful warrant so to do. And of this see Manwood in his Forrest Laws, c. 10. f. 74. a.
Purveyors.
PUrveyors were ancient Officers to provide Victuals for the King, which Office is mentioned in the Statute, 28 E. 1. cap. 2. & 36 E. 4. cap. 6. & 14 E. 3. cap. 19. But it is abolished by the Stat. 12 Car. 2. cap. 24.
Q.
Quadrantata terrae.
QUadrantata terrae is the fourth part of an Acre.
Quae plura.
QUae plura is a Writ that lies in case where the Escheator hath found an Office after the death of the Kings Tenant virtute officii, and hath not found all the Lands of which he died seised; then this Writ shall issue in nature of a Melius inquirendo; to find what Lands he had more. See F. N. B. f. 255. a.
Quale jus.
QUale jus is a Writ that lies where an Abbot, Prior, or such other, should have Iudgment to recover Land by Default of the Tenant against whom the Land is demanded; then before Iudgment given, or Execution awarded, this Writ shall go forth to the Escheator, to enquire what right he hath to recover: And if it be found that he hath not right, then the Lord who should have the Land if the Tenant had aliened in Mortmain may enter as into Land aliended in Mortmain, for this losing by Default is like an Alienation. See the Stat. Westm. 2. c. 32.
But where one will give Lands to a House of Religion, an Ad quod damnū shall go forth to the Escheator, to enquire of what value the Land is, and what prejudice is shall be to the King.
Quare ejecit infra terminum.
QUare ejecit infra terminum is a Writ that lies where one makes a Lease to another for term of years, and the Lessor infeoffs another, and the Feoffee puts out the Termour; then the Termour shall have this Writ against the Feoffee. But if another stranger put out the [Page 566] Termour, then he shall have a Writ De ejectione firmae against him. And in these two Writs he shall recover the term and his dammages.
Quare impedit.
QUare impedit is a Writ that lies where I have an Addowson, and the Parson dies, and another presents a Clerk, or disturbs me to present; then I shall have the said Writ. But Assise de darrein presentment lies where I or my ancestors have preseuted before. And where a man may have art Assise de darrene presentment, he may have a Quare impedit, but not contratiwise.
Also if the Plea be depending between two parties, and be not discussed within fix moneths, the Bishop may present by Lapse, and he that hath right to present shall recover his dammages, as appears by the Statute of Westm. 2. c 5. And if he that hath right to present after the death of the Parson brings no Quare impedit, nor Darreine presentment, but suffers a stranger to usurp upon him, yet he shall have a Writ of right of Advowson: But this Writ lies not, unless he claim to have the Advowson to him and his heirs in Fee.
Quare incumbravit.
QUare incumbravit is a Writ that lies where two are in Plea for the Advowson, and the Bishop admits the Clerk of one of them within the six moneths; then he shall have this Writ against the Bishop. But this Writ lies always depending the Plea.
Quare intrusit Matrimonio non satisfacto.
QUare intrusit Matrimonio non satisfacto is a Writ that lies where the Lord profers convenable Marriage to his Ward, and he refuses, and enters into the Land, and marries himself to another; then the Lord shall have this Writ against him.
Quare non admifit.
QUare non admifit is a Writ that lies where a man hath recovered an Advowson, and sends his convenable Clerk to the Bishop to be admitted, and the Bishop will not receive him; then he shall have the said Writ against the Bishop. But a Writ of Ne admittas lies where two are in Plea; if the Plaintiff suppose the Bishop will admit the Clerk of the Defendant, then he may have this Writ to the Bishop, commanding him [Page 568] not to admit him hanging the Plea.
Quarels.
QUarels is derived from Querendo, and extends not only to Actions as well real as personal, but also to the Causes of Actions and Suits; so that by the Release of all Quarels, not only Actions depending in Suit; but Causes of Action and Suit also are released; and Quarels, Controversies and Debates, are words of one sense, and of one and the same signification, Coke, lib. 8. fol. 153.
Quarentine.
QUarentine is, where a man dies seised of a Mannour-place and other Lands, whereof the Wife ought to be endowed; then the woman may abide in the Mannour-place, and there live of the store and profits thereof the space of sorty days, within-which time her Dower shall be assigned: as it appears in Magna Charta, cap. 6.
Que estate.
QUe estate is a term in pleading to avoid prolixity; as if a man pleads a feoffment in fee to A. cujus statum idem B. modo habet, and no one can plead it [Page 569] but Tenant of the Fee; nor can it be pleaded of things which pass meerly by grant as Advowsons Franchises, &c.
Quid juris clamat.
QUid juris clamat is a Writ that lies where I grant the Reversion of my Tenant for life by Fine in the Kings Court, and the Tenant will not attorn; then the Grantee shall have this Writ to compel him. But a Writ of Quem redditum reddit lies where I grant by Fine a Rent charge, or another Rent which is not Rent service, which my Tenant holds of me, and the Tenant will not attorn; then the Grantee shall have this Writ. And a Writ of Per quae servitia lies in like case for Rent service.
Also if I grant four divers Rents to one man, and the Tenant of the Land attourns to the Grantee by payment of a peny, or of a half peny, in the name of Attournment of all the Rents; this Attournment shall put him in seisin of all the Rent. But these three Writs ought to be brought against those who are Tenants at the day of the Fine levied, and against no other.
Fifteenth.
FIfteenth is a Payment granted in Parliament to the King by the Temporalty, namely, the fifteenth part of their goods: And it was used in ancient time to be levied upon their Cattel going in their grounds, which thing was very troublesome; and therefore now for the most part that way is altered, and they use to levie the same by the Yard or Acre, or other measure of Land; by means whereof it is now less troublesome and more certain than before, and every Town and Country know what sum is to be paid among them, and how the same shall be raised. We read that Moses was the first that numbred the people, for he numbred the Israelites; and the first Tax, Subsidy, Tribute or Fifteenth, was invented by him among the Hebrews, as Polydore Virgil thinks.
Quit claim.
QUit claim is a Release or Acquitting of a man for any Action that he hath or might have against him, Bracton l. 5. tract. 5. ca. 9. nu. 9.
Quo jure.
QUo jure is a Writ that lies where a man hath had Common of Pasture in anothers Several within the time of memory; then he to whom the Several belongs shall have this Writ to charge him to shew by what Title he claims the Common.
Quo minus.
QUo minus is a Writ that lies where a man hath granted to another Housebote and Heybote in his wood, and the Grantor makes such waste and destruction that the Grantee cannot have his reasonable Estovers; then the Grantee shall have the aforesaid Writ, which is in nature of a Writ of Waste.
And note that Housebote is certain Estovers to mend the House; and Heybote certain Estovers to mend Heyes and Hedges.
There is another Writ called a Quo [...] inus in the Exchequer, which any Termor or Debtor to the king shall have against any other for Debt or Trespass in the Excheques Office called the Common Pleas, by which the Plaintiff shall surmise, that for the wrong which the Defendant doth him, he is less able to pay the King his Debt or Term; which is surmised to give Iurisdiction to the [Page 572] Court of Exchequer to hear and determine the cause of the Suit between them, which otherwise should be determined in another Court.
Quo warranto.
QUo warranto is a Writ that lies where a man usurps to have any Franchise upon the King; then the King shall have this Writ, to make him come before his Iustices, to shew by what Title he claims such Franchise.
Quod ei deforceat.
QUod ei deforceat is a Writ that lies where Tenant in Tail, Tenant in Dower, or Tenant for Life loses by Default in any Action; then he shall have this Writ against him that recovers, or against his Heir, if he think he hath better right than he who recovered. See the Statute West. 2. cap. 4.
Quod permittat.
QUod permittat is a Writ that lies where a man is disseised of his Common of Pasture, and the Disseisor aliens or dies seised, and his Heir enters; then if the Disseisee die, his Heir shall have this Writ
Quod permittat.
| Habere | Chiminum. | Rast. Entr. 538. Co. Entr. 526. |
| Estoverium turbarum. | F. N. B. 124. | |
| Passagium ꝑ aquam. | Rast. Entr. 538. | |
| Liberam chaceam. | 2 Institut. 654. | |
| Liberum raurum. | F. N. B. 124. | |
| Liberam faldam. | Ibid. & 6. E. 4. 1. | |
| Liberam piscar. &c. | Ibidem. | |
| Prosternere | Domum, murum, sepem, | 5 Coke 100. |
| Ripam, &c. | 9 Coke 53. |
R.
Ran.
RAn signifies so open a Spoiling of a man, that it cannot be denied Lambert Arch. fol. 125.
Ranger.
RAnger comes from the French word Rang, (that is, Ordo vel Series) and signifies an Officer of the Forrest that is appointed to walk every day through the Purlieu whereof he is Ranger, to drive back the wilde Beasts into the Forrest again; to see, hear, and inquire of Offenders there, and to present their Offences. See Manwood, cap. 20. fol. 185. &c.
Ransome.
RAnsome signifies properly the Sum that is paid for the redeeming of one that is taken Captive in War. But it is also for a Sum of money paid for the pardoning of some great Offence; as in the Statute of 1 H. 4. cap. 7. and in other Statutes: Fine and Ransome going together; 23 H. 8. cap. 3. and elsewhere.
Rape.
RApe hath two significations: The first is when it is taken for part of a County; as Sussex is divided into six parts, which by a peculiar name are called Rapes, Cambd. Britan. pag. 225. and these parts in other Countries are called Hundreds, Tithings, Lathes, or Wapentakes.
In the other sense it is the violent Deflouring a Woman against her will: and this offence is Felony, as well in the Principal as in his Aidors. See 11 H. 4. c. 13. 1 Ed. 4. c. 1. West. 2. c. 13. Crōpt. Just of Peace, f. 43, 44.
Rationabili parte bonorum.
RAtionabili parte bonorum is a Writ that lies for the Wife against the Executors of her [Page 575] Husband, to have the third part of his Goods after Debts paid and Funeral expences discharged. But whether this Writ lies by the Common Law, or only by the Custom of some Countries, is a question in our Books, See F. N. B. fol. 122. L.
Rationabilibus divisis.
RAtionabilibus divisis is a Writ that lies where there are two Lordships in divers towns, and one nigh the other, and any parcel of one Lordship, or Waste, hath been incroched by little parcels; then the said Lord from whom the parcel of Ground or Waste hath been incroched shall have this Writ against the Lord that hath so incroched.
Ravishment de Gard.
RAvishment de Gard, is a Writ that lies for the Gardian by Knights Service, or in Soccage, against him that takes from him the Body of his Ward. And of this see F. N. B. fol. 140. E. &c.
Rebutter.
REbut [...] er is, when one by Deed or Fine grants to warrant any Land or Hereditament to another, and he who made the Warranty, or his Heir, s [...] es him to whom the Warranty is made, or his Heir, or Assignee, [Page 576] for the same thing: now if he who is so sued pleads the said Deed or Fine with Warranty, and demands Iudgment, if the Plaintiff shall be received to demand the thing which he ought to warrant, against that Warranty, by Fine or Deed aforesaid, comprehending such Warranty, such Pleading of the Warranty is called a Rebutter.
This word is also a denomination of a Plea which followeth a Rejoynder: And after the Rebutter followeth the Surrebutter. See Cokes Entries fol. 284.
Recaption.
REcaption is a second Distress of one former distrained for the self-same cause, and that during the Plea grounded upon the former Distress. It is also the name of the Writ or Remedy that the Law gives him who is thus twice distrained for one thing: the form and use of which Writ you may see in Fitz. N. B. fol. 71. E. &c.
Recluse.
REcluse is one that by reason of his Order in Religion may not stir or depart out of his House or Cloister. And of such Littleton speaks, sect. 434.
Recognizance.
REcognizance is an Obligation made before a Master of the Court of Chancery for a Debt, or to perform Covenants, or an Order or Decree of the Court, upon which an Extent issues if the Condition be not performed; But no Capias lies upon it against the Cognizors or his Executors, Quaere & vide 2 Len. 84.
Recordare.
REcordare is a Writ directed to the Sheriff, to remove a Cause out of an inferior Court, as a Court of Ancient Demesne, Hundred Court, or County Court, into the Kings Bench, or Common Pleas. And of this, see Fitz. N. B. fol. 70. B.
Record.
REcord is a Writing or Parchment, wherein are Enrolled Pleas of Land, or Common Pleas, Deeds or Criminal Proceedings in any Court of Record: But in Courts not of Record, as Admiralty, Courts Christian, Courts Baron, &c. Their Registry of Proceedings are not properly called Records: But Courts of Law held by the Kings Grant, are Courts of Record.
Recovery.
REcovery is commonly intended a common recovery by assent of parties to dock an Intail, and is founded upon a Writ of Entry. Also every Iudgment is a Recovery by the words Ideo consideratum est quod recuperet.
Recusants.
REcusants are all those who separate from the Church and Congregation, by the Laws and Statutes established in this Realm, of what opinion or Sect they are of. As all the Iudges have expounded the Statute 35 Eliz. cap. 1. and divers other Stat.
Redisseisin.
REdisseisin. Look of that before in the Title Assise.
Reextent.
REextent is a second Extent made upon Lands or Tenements, open complaint made that the Former Extent was partially performed. Broke tit. Extent, fol. 313.
Regarder.
REgarder comes of the French Regardeur, (id est, Spectator) and signifies an Officer of the Kings Forest, sworn to take care of the Verr and Venison, and to view and inquire of all the Offences committed within the Forrest, and of all the concealments of them; and if all the Officers of the Forrest do well execute their Offices or no. See Manwood's Forrest Laws, cap. 21. fol. 191. b.
Regrator.
REgrator is he that hath Corn, Victuals, or other things sufficient for his own necessary use or spending, and doth nevertheless ingross and buy up into his hands more Corn, Victuals, or other such things, to the intent to sell the same again at a higher and dearer price, in Fairs, Markets, or other such like places: whereof see the Statute 5 E. 6. cap. 14. He shall be punished as a Forestaller.
Rejoynder.
REjoynder is, when the Desendant makes answer to the Replication of the Plaintiff. And every Rejoynder ought to have these two properties specially; that is, it ought to be a sufficient Answer to the Replication, [Page 580] and to follow and enforce the matter of the Barre.
Relation.
RElation is, where, in consideration of Law, two times or other things are considered so as if they were all one, and by this the thing subsequent is said to take his effect by relation at the time preceding: As if one deliver a writing to another to be delivered to a third person, as the Deed of him who delivered it, when the other, to whom it should be delivered, hath paid a summ of mony; now when the money is paid and the Writing delivered, this shall be taken as the Deed of him who delivered it at the time when it was first delivered. So Petitions of Parliament, to which the King assents on the last day of Parliament, shall relate and be of force from the first day of the beginning of the Parliament. And so it is of divers other like things.
Release.
RElease is the Giving or Discharging of the Right or Action which any hath or claims against another, or his Land.
And a Release of Right is commonly made when one makes a Deed to another by these or the like words, Remised, [Page 581] released, and utterly for me and my Heirs quite claimed to A. B. all my right that I had, have, or by any means may have hereafter, in one Messuage, &c. But these words (whatsoever I may have hereafter) are void: For if the Father be disseised, and the Son release by his Deed without Warranty all his right, by those words (whatsoever I may have hereafter, &c.) and the Father dies; the Son may lawfully enter in the possession of the Disseisor.
Also in a Release of Right it is needful, that he to whom the Release is made have a Freehold or a Possession in the Lands in Deed or in a Law, or a reverston at the time of the release made; for if he have nothing in the Land at the time of the release made, the Release shall not be to him available. See more hereof in Littl. lib. 3. cap. 8.
Relicta verificatione.
RElicta Verificatione is when a Defendant hath pleaded, and the issue is entred of Record. And after that, the Defendant relicta verificatione (que est son Plea) acknowledges the Action, and thereupon Iudgment is entred for the Plaintiff.
Relief.
RElief is sometimes a certain summ of mony that the Heir shall pay to the Lord of whom his Lands are holden, which after the decease of his Ancestor are to him descended as next Heir. Sometimes it is the Payment of another thing, and not mony. And therefore Relief is not certain and alike for all Tenures, but every several Tenure hath (for the most part) his special Relief certain in it self. Neither is it to be paid always at a certain age, but varies according to the Tenure.
As if the Tenant have Lands holden by Knights Service, (except grand Serjeanty) and dies, his Heir being at full age, and holding his Lands by the Service of a whole Knights Fee; the Lord of whom these Lands are so holden shall have of the Heir an hundred shillings in the name of the Relief: and if he held by less than a Knights Fee, he shall pay less, and if more, then more; having respect always to the rate for every Knights Fee Cs. And if he held by grand Serjeanty, (which is always of the King, and is also Knights Service) then the Relief shall be the value of the Land by the year, besides all charges issuing out of the same. And if the Land be holden in [Page 583] Petit Serjeantie or in Socage, then for the Relief the Heir shall pay at one time as much as he ought to pay yearly for his Service; which is commonly called the Doubling of the Rent.
And if a man hold of the King in chief, and of other Lords, the King shall have the Ward of all the Lands, and the Heir shall pay Relief to all the Lords at his full age: but the Lords shall sue to the King by petition, and shall have the Rent for the time that the Infant was in Ward.
But see now that by the Statute of 2 E. 6. cap. 8. the mesne Lords are not put unto their Petition, but shall have all the Rents paid them by the Kings Officers upon request yearly during the Kings possession.
And note, that always when the Relief is due, it must be paid at one whole payment, and not by parts, although the Rent be to be paid at several Feasts. See the Statute 12 Car. 2. cap. 24.
Remainder.
REmainder of Land is the Land that shall remain after the particular Estate determined: As if one grant Land for term of years, or for life, the Reinainder to J. S. that is to say, when the Lease for years is determined; or the Lessee for life is dead; then the [Page 584] Land shall remain or abide with, to, or in J. S. See Reversion.
Remembrancer del Eschequer.
REmembrancer del Eschequer: there are three Officers or Clerks there called by that name; one is called the Remembrancer of the King, the other of the Lord Treasurer, and the third of the First fruits.
The Kings Remembrancer enters in his Office all Recognisances for the Kings Debts, Apparances, and for observing of Orders: also he takes all Obligations for any of the Kings Debts, for Apparances, and observing of Orders, and makes out Process upon them for the breaking of them.
The Lord Treasurers Remembrancer makes out Process against all Sheriffs, Escheators, receivers and Bailiffs, for their Accounts: he makes the Process of Fieri sacias, and Exteut for any Debts due to the King, either in the Pipe, or with the Auditors; and he makes Process for all such revenue as is due to the King by reason of his Tenures.
The Remembrancer of the First Fruits takes all Compositions for First fruits and Tenths, and makes Process against such as pay not the same. Of these Officers see more in Dalton's [Page 585] Book of the Office and Authority of Sheriffs, f. 186.
Remitter.
REmitter is, when a man hath two Titles to any Land, and he comes to the Land by the tast Title; yet he shall be judged in by force of his elder Title, and that shall be said to him a Remitter. As if Tenant in tail discontinue the Tail, and after disseises his discontinuee, and dies thereof seised, and the Lands discend to his issue or Cousin inheritable by force of the Tail; in that case he is in his Remitter, that is to say, seised by force of the Tail and the Title of the Discontinuee is utterly adnulled and defeated. And the reason and cause of such Remitter is, for that such an Heir is Tenant of the Land, and there is no person Tenant against whom he may sue his Writ of Formedon to recover the Estate tail: for he may not have an Action against himself.
Also if Tenant in tail infeoff his Son or Heir apparent who is within age, and after dies; that is a Remitter to the Heir: but if he were full of age at the time of such Feoffment, it is no Remitter, because it was his folly, that he being of full age would take such a Feoffment.
If the Husband alien Lands that he hath in right of his wife, and after take an Estate again [Page 586] to him and to his Wife for term of their lives; that is a Remitter to the Woman, because this Alienation is the act of the Husband, and not of the Woman; for no folly may be adjudged in the Woman during the life of her Husband.
But if such Alienation be by Fine in Court of Record, such a taking again afterward to the Husband and Wife for term of their lives shall not make the Woman to be in her Remitter; for that in such a Fine the Woman shall be examined by the Iudge, and such Examination in Fines shall exclude such women for ever.
Also when the Entry of any man is lawful, and he takes an Estate to him when he is of full age, if it be not by Deed indented, or matter of Record, which shall estop him, that shall be to him a good Remitter.
Rents.
REnts are of divers kinds; that is, Rent-service, Rent-charge, and Rent-secke.
Rent-service is, where the Tenant in Fee-simple holds his Land of his Lord by Fealty and certain Rent, or by other service and rent; and theu if the rent be behind, the Lord may distrain, but shall not have an Action of Debt for it.
Also if I give Land in tail to a man, paying to me certain Rent, that is Rent-service. [Page 587] But in such case it behoves that the reversion be in the Donor: For if a man make a Feoffment in fee, or a Gift in tail, the remainder over in Fee, without Deed, reserving to him a certain rent, such reservation is void, and that is by the Statute Quia emprores terrarum; and then he shall hold of the Lord of whom his Donour held.
But if a man by Deed indented at this day make such Gift in tail, the remainder over in fee, or lease for term of life, the remainder over, or a Feoffment, and by the same Indenture reserve to him rent, and that if the rent be behind, it shall be lawful for him to distrain; that is Rent-chage.
But in such case, if there be no clause of Distress in the Deed, then such a rent is called Rent-seck, for which he shall never distrain; but if he were once seised, he shall have Assise; and if he were not seised, he is without remedy.
And if one grant a rent going out of his Land, with clause of Distress, that is, a Rēt-charge; and if the rent be behind, the Grantee may chuse to distrain, or sue a Writ of Annuity, but he cannot have both; for if he bring a Writ of Annuity, then the Land is discharged. And if he destrain, and avow the taking in Court of Record, then the Land is charged, and the person of the Grantor discharged.
[Page 588] Also if one grant a Rent charge, and the Grantee-purchases half, or any other part or parcel of the Land, all the Rent is extinct. But in Rent service, if the Lord purchase parcel of the Land, the Rent shall be apportioned.
If one hath a Rent charge, and his Father purchase parcel of the Land, and that parcel discends to the Son, who hath the Rent charge; then the Rent shall be apportioned according to the value of the Land, as it is said of Rent-service; because the Son comes to that not by his own act, but by discent.
Also if I make a Lease for term of years, reserving to me a certain Rent, that is called a Rent service, for which it is at my liberty to distrain, or to have an Action of Debt: but if the Lease be determined, and the Rent behind, I cannot distrain, but shall be put to my Action of Debt.
And note well, that if the Lord be seised of the Service and Rent aforesaid, and they be behind, and he distrain, and the Tenant rescues the Distress, he may have Assise, or a Writ of Rescous; but it is not more necessary for him to have Assise, then a Writ of Rescous; for that by Assise he shall recover his Rent and his Dammages; but by a Writ of Rescous he shall recover only Dammages, and the thing distrained shall be reprised.
[Page 589] If the Lord be not seised of the Rent and Service, and they be behind, and he distrain for them, and the Tenant take again the Distress; he shall not have Assise, but a Writ of Rescous, and the Lord shall not need to shew his right.
If the Lord cannot find a Distress in two years, he shall have against the Tenant a Writ of Cessavit per biennium, as it appears by the Statute of Westm. 2. cap. 21.
And if the Tenant die in the mean time, and his Issue enter, the Lord shall have against the Issue a Writ of Entry upon Cessavit; or if the Tenant alien, the Lord shall have against the Alienee the foresaid Writ. But if the Lord have Issue, and die, and the Tenant be in arrearages of the said Rent and Service in the time of the Father, and not in the time of the Issue; he may not distrain for the Arrearages in the time of his Father, and he shall have be no other Recovery against the Tenant or any other, because such advantage is given by the Law to the Tenant. And note, that Fealty of common right belongs to Rent service, but not to Rent charge nor Rent seck.
If a man distrain for Rent charge, and the Distress be rescued from him, and he was never seised before, he hath no recovery but by Writ of Rescous; for the Distress first taken gives not Seis [...] to him, [Page 590] unless he had the Rent before: for if he were seised of the Rent before, and after the Rent be behind, and he distrain, and Rescous be made, he shall have Assise, or a Writ of Rescous.
In every Assise of Rent charge, and annual Rent, or in a Writ of Annuity, it behoves him that brings the Writ to shew an Especialty, or else he shall not maintain the Assise. But in an Assise of Mortdancestor or Formedon in the discender or other Writs (in which Title is given or comprised) brought of Rent charge or annual Rent the Especialty need not be shewn.
And note well, that if a man grant a Rent charge to another, and the Grantee release to the Grantor parcel of the Rent, yet all that Rent is not extinct.
If Rent charge be granted to two joyntly, and the one release, yet the other shall have the half of the Rent. And if the one purchase the half of the Land whereout the Rent is going, the other shall have the half of the Rent of his companion. And if the Disseisor charge the Land to a Stranger, and the Disseisee bring an Assise and recover; the Charge is defeated. But if he that hath right charges the Land, and a Stranger feign a false Action against him who hath no right, and recovers by Default, the charge abides.
In case Partition be between [Page 591] two Parceners, and more Land be allowed to one then to the other, and she that hath most of the Land charges her Land to the other, and she happeth the Rent; she shall maintain Assise without Especialty.
And it is a Rent seck, where a man holds of me by Homage, Fealty, and other Services, yielding to me a certain yearly Rent, which I grant to another, reserving to me the other Services.
If Rent seck be granted to a man and to his Heirs, and the Rent be behind, and the Grantor die, the Heir may not distrain, nor shall recover the arrearages of the time of his Father, as it is said before of Rent services.
And in the same manner it is of Rent charge, or annual Rent. But in all these Rents the Heir may have for the arrerages in his own time such advantage as his Father had in his life. See the Statute 32 H. 8. cap. 37.
And note well, that in Rent seck, if a man be not seised of the Rent, and it be behind, he is without recovery, for that it was his own folly at the beginning, when the Rent was granted him or reserved, that he took not Seisin of it, as a peny or two pence.
A man may not have a Cessavit per biennium, or any other Writ of Entry sur Cessavit, for any Rent seck behind by two [Page 592] years, but only for Rent service, as it appears in the Stat. West. 2. cap. 21.
It behoves him that sues for Rent seck to shew a Deed to the Tenant, cise the Tenant shall not be charged with the Rent, except where the Rent seck was Rent service before; as in this case: Lord, Mesne, and Tenant, and every of them holds of other by Homage and Fealty, and the Tenant of the Mesne by 10 s. rent; the Lord paramount purchases the Lands or Tenements of the Tenant, all the Seigniory of the Mesne, but the rent is extinct: and for this cause this rent is become Rent seck, and the Rent service changed, for he may not distrain for this rent; and in this case he that demands the rent shall never be charged to shew a Deed.
Also in a Writ of Mordint-cestor, Ayle or Besayle, of rent seck, it needs not to shew a Specialty, for that these Writs of Possession comprehend a Title within themselves, that is to say, that the Ancestor was seised of the same rent, and centinued his possession, in respect of which Seisin the Law supposes that it is also averrable by the Countrey.
Yet learn, for some suppose a necessity to shew forth a Deed, because rent seck is a thing against common right, as well as rent charge.
[Page 593] But in Assise of Novel disseisin, and in a Writ of Entry sur disseisin brought of Rent seck, it is needful to shew forth a Deed; for that Rent seck is a thing against Common Right, except in the case aforesaid, where it was Rent service before, and by the act of Law it is become Rent seck.
And Assise of Novel disseisin and a Writ of Entry sur disseisin contain within them no Title, but suppose a Disseisin to be done to the Plaintiff; and by the intendment of the Law the Disseisin gives no cause of Averment against common Right, but there is a necessity to shew forth a Deed.
Repleader.
REpleader is, where the plea of the Plaintiff or Defendant, or both are ill, or an impertinent Issue joyned, then the Court makes void all the Pleas which are ill, and awards the Parties to replead. Coke Entr. 152. and 221, 224.
Replevin.
REplevin is a Writ that lies where a man is distrained for Rent or other thing, then he shall have this Writ to the Sheriff, to deliver to him the Distress, and shall find Surety to pursue his Action; and if he pursue it not, or if it be found or judged against him, [Page 594] then he that tooks the Distress shall have again the Distress, which is called the Return of the Beasts; and he shall have in such case a Writ called Returno habendo.
But if the Defendant avow for Rent, he may have Iudgment for the value of the Cattel, by the Statute of 17 Car. 2. cap. 7.
If it be in any Franchise or Bailiwick, the party shall have a Replevin of the Sheriff directed to the Bailiff of the same Franchise, to deliver them again, and he shall find Surety to pursue his Action at the next County. And this Replevin may be removed out of the County unto the Common place by Writ of Recordare.
See more of Replevin in the Title Distress.
Also see Mich. 2 E. 3. pl. 31. & 7 E. 3. 27. pl. 13. the word Plevin, where Land was taken out of the Kings hands, and are afterwards delivered or replevied out of the Kings hands. For which see Stat. 9. 3. cap. 2.
The Writ of Homine replegiando lies where a man is in Prison, and not by special commandment of the King, nor of his Iustices, nor for the death of a man, nor for the Kings Forest, nor for such cause which is not replevisable; then he shall have this Writ directed to the Sheriff, that he cause him to [Page 595] be replevied. This Writ is a Justcies, and not retornable. And if the Sheriff do it not, then there shall go forth another Writ, Sicut alias; and afterward another Writ, Sicut pluries, vel causam nobis significes, which shall be retornable. And if the Sheriff yet make no Replevin, then there shall issue an Attachment directed to the Coroners to attach the Sheriff, and to bring him before the Iustices at a certain day; and farther, that they make execution of the first Writ.
Replication.
REplication is, when the Defendant in any Action makes an Answer, and the Plaintiff replies to that; that is called the Replication of the Plaintiff.
Reprises.
REprises are Deductions, Payments and Duties that go yearly and are paid out of a Mannor; as Rent chare, Rent seck, Pensions, Corrodies, Annuities, Fees of Stewards or Bailiffts, and such like.
Reprieve.
REprieve comes from the French Repris, that is, taken back; so that to reprieve is properly to take back or [Page 596] suspe [...] d a Prisoner from the Execution and proceedings of the Law for that time.
Requests.
REquests is a Court held in the Kings Palace before the Master of the Requests by Petition, and it seems is a Court of Equity.
Rere County.
REre County is a word used in the Statutes of Westm. 2. cap. 39. and 2 E. 3. c. 5. and seems by those Statutes to be some publick place which the Sheriff appointed for the receiving of the Kings mony after his County Court was done.
Resceit.
REsceit is, when any Action is brought against the Tenant for term of life or years, and he in the Reversion comes in, and prays to be received to defend the Land, and plead with the Demandant: And when he comes, it behoves that he be alway ready to plead with the Demandant. In the same manner a Wife shall be received for the default of her Husband in an Action brought against them both. And Tenant for years shall be received to defend his Right, where, in an Action brought against the [Page 597] Tenant of the Free-hold, he pleads faintly.
Rescous.
REscous is a Writ that lies when any man takes a Distress, and another takes it again from him, and will not suffer him to carry the Disress away; this is a Rescous, upon which he may have this Writ, and shall recover dammages.
Also if one distrain Beasts for dammage Feasant in his Ground, and drives them in the High way to Impound them, and in going they enter into the House of the owner, and he withholds them there, and will not suffer the other to impound them; that withholding is a Rescous.
Also if a Sheriff takes my Debtor by an Execution, or by mesne Process, and J. S. rescue him out of the Custody of the Sheriff, I may have an Action of Rescous against J. S. for this wrong, and recover Dammages and Debt.
Reservation.
REservation is taken divers ways, and hath divers natures. As sometimes by way of exception, to keep that which a man had before in him: As if a Lease be made for years of Ground, reserving the great Trees growing upon the same, [Page 598] now the Lessee may not meddle with them, nor with any thing that comes of them, so long as it abides in or upon the Trees, as Mast of Oak, Chesnut, Apples, or such like; but if they fall from the Trees to the ground, then they are by right the Lessees; for the Ground is let to him, and all thereupon not reserved, &c.
Sometimes a Reservation doth produce and bring forth another thing which was not before: As if a man Lease his Lands, reserving yearly for the same xxli. &c. And divers other such Reservations there be.
And note, that in ancient time their Reservations were as well in Victuals, whether Flesh, Fish, Corn, Bread, Drink, or what else, as in Money, until at last, and that chiefly in the Reign of King Henry 1. by agreement the Reservation of Victuals was changed into ready Money, as it hath hitherto continued.
Residence.
REsidence comes from the Latine Residere, and is all one with Resiance, but that this word Residence is oftner appropriated to the Continuance of a Parson or Vicar upon his Church or Benefice; and so it is used in the Statute of 28 H. 8. cap. 13.
Resignation.
REsignation is, where an Incumbent of a Church resigns or leaves it to the Ordinary, who did admit him to it, or to his Successors; which differs from Surrender, since by that he to whom the Resignation is made hath no interest in the thing so resigned, but he to whom the Surrender is made hath by that the thing it self.
Restitution.
REstitution is, when a Iudgment is reversed by Error, then a Writ of Restitution shall issue, to restore to the Defendant in the Action what he hath lost. And there is a Writ of restitution of stolen goods, upon conviction of the Thief which is made at the Sessions or Assises, on the Statute of 21 H. 8. 11. Noy rep. 128.
Resummons.
REsummons is a Second Summons of a man to answer an Action, where the first Summons is defeated by the Demise of the King, or such other cause. And of this see Coke, lib. 7. fol. 29. b.
Also if a Terr-tenant returned upon a Scire facias, or Defendant in another Action plead non-age, and the Plea stays until, [Page 600] &c. When he comes of full age, the Plaintiff, upon a suggestion, may have a Scire facias or resummons: And so when a Plea is staid by pleadiny Protection, Excommunication, or such other disability.
Resumption.
REsumption is a word used in the Statute of 31 H 6. c. 7. and is there taken for the Taking again into the Kings hands such Lands or Tenements as upon false suggestion or other error he had made Livery of to an Heir, or granted by Patent to any man.
Retraxit.
REtraxit is the Preterperfect tense of Retraho, to pull back; and is, when the party Plaintiff or Demandant comes in proper person into the Court where his Plea is, and saith he will not proceed any farther in the same, &c. this will be a Bar to the Action for ever.
Reve, or Reeve.
REeve is an Officer more known in ancient time then at this day: for almost every Mannor had then a Reeve, and yet still in many Copyhold-Mannors (where the old custom [Page 601] prevails) the name and office is not altogether forgotten. And it is in effect that which now every Bayliff of a Mannor practises, although the name of Bayliff was not then in use amongst us, being siuce brought in by the Normans. But the name of Reeve, anciently called Greeve, (which Particle (Ge) in continuance of time was altogether left out and lost) came from the Saxon word Geresa, which signifies a Ruler: And so indeed his Rule and Authority was large within the compass of his Lords Mannor, and among his men and Tenants, as well in matters of Government in peace and war, as in the skilful use and trade of Husbandry. For as he did gather his Lords Rents, pay Reprises or Duties issuing out of the Manor, set the Servants to work, fell and cut down Trees to repair the Buildings and Inclosures, with divers such like, for his Lords commodity; so also he had Authority to govern and keep the Tenants in peace, and, if need required, to lead them forth to war.
Reversion.
REversion of a Land is a certain Estate remaining in the Lessor or Donor, after the particular Estate and Possession conveyed to another by [Page 602] Lease for Life or years, or Gift in tail.
And it is called a Reversion in respect of the possession separated from it: so that he that hath the one, hath not the other at the same time; for in one body at the same time there cannot be said a Reversion, because by the uniting the one of them is drowned in the other.
And so the Reversion of Land is the Land it self when it falls.
Ribaud.
RIbaud seem to be sturdy Vagabonds. Rot. Par. 50 E. 3. 61.
Right, & Right of Entrie.
RIght, and Right of Entry. See in Droit.
Riot.
RIot is, when three (at the least) or more do some unlawful act; as to beat a man, enter upon the possession of another, or such like.
Robbery.
RObbery is, when a Man takes any thing from the person of another Feloniously; although the thing so taken be [Page 603] to the value but of a penny, yet it is Felony, for which the Offendor shall suffer death.
Rood of Land.
ROod of Land is a certain quantity of Land containing the fourth part of an Aere. Anno 5 Eliz. c. 5.
Rout.
ROut is, when people assemble themselves together, and after proceed, or ride, or go forth, or move by the instigation of one or more, who is their Leader. This is called a Rout, because they move and proceed in routs and numbers.
Also where many assemble themselves together upon their own quarrels and brawls; as if the Inhabitants of a Town will gather themselves together to break Hedges, Walls, Ditches, Pales, or such like, to have Common there, or to beat another that hath done them a common displeasure, or such like; that is a Rout, and against the Law, although they have not done or put in execution their mischievous intent. See the Stat. 1 Mar. c. 12.
S.
Sac, or Sake.
SAke is a Plea and Correction of Trespass in your Court; because Sake in English is Encheson in French, and sake is put for sick.
See Keloway in his Cases incerti temporis, f. 145. a. that the privilege called Sake is, for a man to have the Amerciaments of his Tenants in his own Court.
Sacrilege.
SAcrilege is, when one steals any Vessels, Ornaments, or Goods of Holy Church, which is Felony, 2 Cro. 153, 154.
Salary.
SAlary is a word often used in our Books, and it signifies a Recompence or Consideration given a man for his pains bestowed upon another mans business. And it is so called, as Pliny says in the 31 Book of his Nat. Hist. cap. 7. because it is as necessary for a man as Salt, and makes his labor relish as Salt doth his meat.
Sanctuary.
SAnctuary is a Priviledged place by the Prince for the safeguard of mens lives who are Offendors, being founded upon the Law of Mercy, and upon the great Reverence, Honor and Devotion which the Prince bears to the place whereunto he grants such a Privilege; which was heretofore so great, that the Princes have granted the same in cases of Treason committed against themselves, Murder, Rape, or other Crime whatsoever. Hereof see Stamf. Pl. of the Crown, l. 2. c. 38.
Satisfaction.
SAtisfaction is, when a Defendant hath paid a Debt or Dammages recovered against him, it behoveth him to have satisfaction, to be entred upon the Record of the Iudgment.
Sarpler.
SArpler is, a quantity of Wool, which in Scotland is called Serplath, and contains 80 stone; and with us in England a Load of Wool contains (by the opinion of some) fourscore Tod, and every Tod two Stone, and every Stone fourteen Pounds; and that a Sack of Wool is in common account equal with a Load, and a Sarpler the one half of a Sack.
Scandalum magnatum.
SCandalum magnatum is an Evil report invented or dispersed to the prejudice or slander of any great personage or Officer of the realm. The punishment of which is enacted by divers Statutes, viz Westm. 1. c. 33. 2 R. 2. c. 5. & 12 R. 2. c. 11.
Scavage.
SCavage or Shewage is a Toll exacted by the Mayors, Sheriffs and Bayliffs of Cities and Towns Corporate, for wares or merchandise shewed to be sold within their precincts or jurisdiction: which Exaction, being against the priviledge of the Kings subjects, was prohibited by a Statute made in 19 H. 7. c. 8. See 21 H. 7. f. 14. a. and see the Statute of 22 H. 8. c. 8 in the end thereof.
The Mayor, &c. of London brought debt for this duty, by these words, Pro supervisu a ꝑcionis H. 18, 19 C. 2. B. R. roll 625.
Scire facias.
SCire facias is a Writ judicial going out of the record, and lies where one hath recovered Debt or Dammages in the Kings Court, and sues not to have Execution within the year and the day; then after the year and the day he shall have the said Writ to warn the party: and if [Page 607] the party come not, or if he come and say nothing to discharge or stay the Execution, then he shall have a Writ of Fieri facias directed to the Sheriff, commanding him to levy the Debt or Dammages of the goods of him that hath lost.
The Writ of Fieri facias lies within the year, without any Scire facias sued.
Also if the summ of the same Debt or Dammages may not be levied of the Goods of him that hath lost them, he may have a Writ of Elegit, commanding the Sheriff to deliver him the one half of his Lands and Goods, except his Oxen and implements of Plow.
When one hath recovered Debt or Dammages in an Action personal, (where the Preces is a Capias) he may have another Writ of Execution, called a Capias ad satisfaciendum, to take the Body of him that is so condemned, which shall be committed to prison, there to abide without Bail or mainprise, till he hath satisfied the party.
And when one hath Iudgment to recover any Lands or Tenements, he shall have a Writ called Habere facias seisinam, directed to the Sheriff, commanding him to deliver to him Seisin of the same Land so recovered. See more of that in the Titles Fieri facias, and Execution.
[Page 608] The Writ abovesaid is given by the Statute of Westm. 2. cap. 45. But there are also other manner of Scire facias; Scil. upon Audita Querela, Writs of Error as well to hear errors, as wherefore the Plaintiff ought to have Execution, against terrtenants upon Iudgments, and the like.
Scot.
SCot is, to be quit of a certain Custom, as of common Tallage made to the use of the Sheriff or Bayliff.
Scotale.
SCotale is an Extortion prohibited by the Statute of Charta de Forresta, cap. 7. and it is where any Officer of the Forrest keeps an Ale-house, to the intent that he may have the Custom of the Inhabitants within the Forrest, to come and spend their mony with him, and for that he shall wink at their Offences committed within the Forrest.
Second deliverance.
SEcond deliverance, is a Writ made by the Filacer, to deliver Cattle Distreined, after the Plaintiff is Non-suit in Replevin, Plow. Com. 274. Dyer 41.
Se defendendo.
SE defendendo is a Plea for him that is charged with the death of another, saying, that he was driven unto that which he did, in his own defence. Stamf. Pl. Cor. lib. 1. cap. 7.
Seigniory in Gross.
SEigniory in Gross. See Lord in Gross.
Selion.
SElion comes of the French Sellon; that is, the Ground rising between two Furrows, in Latine Parca a Ridge; and it is not of any certain quantity, but sometimes more, and sometimes less. And therefore Crompton in his Jurisdiction of Courts, fol. 221. saith, that a Selion cannot be demanded, because it is uncertain.
Seneshal.
SEneshal (Steward) is a French word borrowed of the Germans, and signifies one that hath the dispensing of Iustice in some particular Cases: as Stamf. Pl. of the Cor. fol. 152. B. the High Steward of England, or of the affairs of a Family, as Cromptons Jurisdiction, fol. 102. Steward of the Kings Houshold, and 25 E. 3. Stat. 5. cap. 21. and others.
[Page 610] He is also a learned man appointed by the Lord of a Mannor to hold Courts Leet or Baron. Co. 1 Inst. 58. 61.
Sequestration.
SEquestration is the Setting aside of a thing in controversie from the possessson of both those that courend for it. It is used also for the act of an Ordinary, when no man will meddle with the goods and chattels of one deceased, as 4 & 5 M. Dyer fol. 160. b. & 7 Eliz. Dyer 232. a. And so it is used also for the Gathering of fruits and profits of a Benefice void, for the use of the next Incumbent, by the Statute of 28 H. 8. cap. 11.
Knights Service.
TO hold by Knights Service is, to hold by Homage, Fealty, and Escuage; and it draws to it Ward, Marriage, and Relief.
And note, that Knights Service is Service of Lands or Tenements, to bear arms in War in defence of this Realm; and it owes Ward and Marriage, by reason that none is able, nor of power, nor may have knowledge to bear arms, before he be of the age of xxi. years. And to the end that the Lord shall not lose that which of right he ought to have, and that the power of the Realm be [Page 611] nothing weakned, the Law wills, because of his tender age, that the Lord have him and his Lands in his Ward till full age, that is to say, xxi years.
But see the Stat. 12 Car. 2. cap. 24. whereby all Tenures are turned into free and common Soccage.
Sessions.
SEssions is a Sitting of Iustices in Court upon their Commission: as the Sessions of Oyer and Terminer, Stamf. Pl. Cor. fol. 67. Quarter Sessions, otherwise called General Sessions or open Sessions, 5 El. c. 4. opposite whereunto are Privy or especial Sessions, which are procured upon some especial occasion, for the speedy expedition of Iustice, Cromp. Justice of P. fol. 110. What things are enquirable in General Sessions, see Cromp. as above, and fol. 109. Petit Sessions, or Statute Sessions, are held by the high Constables of every Hundred, for the placing of Servants. An. 5. El. cap. 4. in the end,
Severance.
SEverance is the Singling of two or more that are joyned in a Writ: As if two are joyned in a Writ De liberate probanda, and the one afterward is non-suited, in this case Seveance is permitted, so that notwithstanding the Nonsuit of [Page 612] the one, the other may alone proceed. F. N. B. fol. 78. See of this Brook, tit. Severance & Summons, fol. 238. For it is harder to know in what cases Severance is permitted, then what it is. There is also Severance in Assise, Old Book of Entries, fol. 81. col 4. And Severance in Attaint, fol. 95. col. 2. And Severance in Debt, fol. 200. col. 1. And Severance in Quare impedit, Coke, l [...] b. 5. fol. 97.
Sewers.
SEwers seems to be a word compounded of two French words, Seoir, to sit, and Eau, Water, for that the Sewers are Commissioners that sit, by virtue of their Commission and Authority grounded upon divers Statutes, to enquire of all Nusances and Offences committed by the stopping of Rivers, erecting of Mills, not repairing of Banks and Bridges, &c. and to tax and rate all whom it may concern, for the amending of all defaults which tend to the hindrance of the free passage of the Water through her old and ancient Courses. See the Statute of 6 H. 6. cap. 5. & 23 H. 8. cap. 5. for the form of their Commission.
Shack.
SHack is a peculiar name of Common used in the County of Norfolk, and Cattel go to Shack, is as much to say as to go at liberty, or to go at large. And this Common called Shack, which in the beginning was but in nature of a Feeding, because of vicinage, for avoiding of Suits, in some places within this County is by Custom altered into the nature of Common appendant or appurtenant, and in some places it retains its Original Nature. Coke, lib. 7. fol. 5.
Shewing.
SHewing is, to be quit with Attachment in any Court, and before whomsoever, in Plaints shewed, and not allowed.
Soc.
SOC is: Suit of Men in your Court, according to the custom of the Realm.
Soccage.
TO holo in Soccage is, to hold of any Lord Lands or Tenements, yeelding him a certain Rent by the year for all manner of Services.
To hold by Soccage is not to hold by Knights Service, [Page 614] nor doth Ward, Marriage, or Relief belong to it: but they shall double once their Rent after the death of their Ancestor, according to that that they be wont to pay to their Lord.
And they shall not be above measure grieved, as it appears in the Treatise of Wards and Relief.
And note well, that Soccage is in 3 manners; that is to say, Soccage in free Tenure, Soccage in ancient Tenure, and Soccage in base Tenure.
Soccage in free Tenure is, when one holds of another by Fealty and certain Rent for all manner of Services, as is before said.
And of all Lands holden in Soccage the next of kin shall have the Ward, to whom the Heritage may not discend till the age of xiv years: that is to say, if the Heritage come by the part of the Father, they of the part of the Mother shall have the Ward; and contrariwise.
If the Gardian in Soccage make waste, he shall not be impeached of waste, but he shall yield accompt to the Heir when he shall come to his full age of 21 years; for which see the Statutes of Marlebr. ca. 17.
Soccage of ancient Tenure is that where the people held in Ancient Demesne, who were wont to have no other Writ than the Writ of Right close, which was determined According to the [...] ustome [Page 615] of the Mannor, and the Monstraverunt, to discharge them when their Lord distrains them to do other Services than they ought.
This Writ of Monstraverunt ought to be brought against their Lord: and these Tenants hold all by one certain Service, and are free Tenants of Ancient Demesne.
Soccage in base Tenure is, where a man holds in Ancient Demesne, that may not have the Monstraverunt, and for that it is called the base Tenure.
Sockmans.
SOckmans are the Tenants in Ancient Demesne, that held their Lands by Soccage, that is, by Service with the Plow, and therefore they are called Sockmans, which is as much to say, as Tenants or men that hold by Service of the Plow, or Plow-men: For Sok signifies a Plow.
And these Sockmans, or Tenants in Ancient Demesne, have many and divers Liberties given and granted them by the Law, as well those Tenants that hold of a common person, as those that hold of the King in Ancient Demesne; as namely to be free from paying Toll in every Market, Fair, Town and City, throughout the whole Realm, as well for their Goods and Chartels that they sell to others, [Page 616] as for those things that they buy for their Provision. And thereupon every of them may sue to have Letters Patents under the Kings Seal, directed to his Officers, and to the Mayors, Bayitffs, and other Officers in the Realm, to suffer them to be Toll-free: to be exempt from Leets and Sheriffs Turns: also to be quit of Pontage, Murage, and Passage; as also of Taxes and Tallages granted by Parliament, except that the King tax ancient Demesne, as he may at his pleasure, for some great cause: to be free from payments toward the expences of the Knights of the Shire that come to the Parliament.
And if the Sheriff will distrain them or any of them, to be contributary for their Lands in Ancient Demesne, then one of them, or all, as the case requires, may sue a Writ directed to the Sheriff, commanding him that he do not compel them to be contributary to the expences of the Knights. And the same Writ doth command him also, that if he have already distrained them therefore, that he redeliver the same Distress.
Also that they ought not to be impannelled, nor put in Iuries and Enquests in the Country out of their Mannor or Lordship of Ancient Demesne, for the Lands that they held there, (except that [Page 617] they have other Lands at the Common Law, for which they ought to be charged.) And if the Sheriff do return in Pannels, then they may have a Writ directed to him, De non ponendis in Assisis & Juratis: And if he do the contrary, there lies an Attachment against him.
And so it is also if the Bailiffs of Franchises, that have return of Writs, will return any of the Tenants which hold in Ancient Demesue in Assises or Iuries.
Sodomy.
SOdomy, in the Indictment for this offence it is said, Rem veneream habuit & peccatum illud Sodomiticum (inter Christianos non nominandum) felonice commisit.
Spoliation.
SPoliation is a Suit for the Fruits of a Church, or for the Church it self; & it is to be sued in the Spiritual Court, and not in the Temporal. And this Suit lies for one Incumbent against another, where they both claim by one Patron, and where the right of the Patronage doth not come in question or debate. As if a Parson be created a Bishop, and hath dispensation to keep his Benefice, and afterward the Patron presents another Incumbent, which is instituted [Page 618] and inducted: now the Bishop may have against that Incumbent a Spoliation in the Spiritual Court, because they claim both by one Patron, and the right of the Patronage doth not come in debate, and because the other Incumbent came to the possession of the Benefice by the course of the Spiritual Law, that is to say, by Institution and Induction, so that he hath c [...] lour to have it, and to be Parson by the Spiritual Law: for otherwise, if he be not instituted and inducted &c. Spoliation lies not against him, but rather a Writ of Trespass, or an Assise of Novel disseisin, &c.
So it is also where a Parson who hath a Plurality doth accept another Benefice, by reason whereof the Patron presents another Clerk, who is instituted and inducted: now the one of them may have Spoliation against the other, and then shall come in debate whether he has a sufficiene Plurality or not. And so it is of Deprivation, &c.
The same law is, where one saith to the Patron, that his Clerk is dead, whereupon he presents another: there the first Incumbent, who was supposed to be dead, may have a Spoliation against the other. And so it is in divers other like cases, whereof see Fitz. Natura Br. f. 36. G. &c.
Stablestand.
STablestand is a term of the Forrest Laws, when one is sound standing in the Forrest with his Bow bent ready to shoot at any Deer, or with his Grey-hounds in a Lease ready to slip. See Manw. Forest Laws. cap. 18. fol. 133. b.
Stallage.
STallage signifies money paid for pitching Stalls in Fairs or Markets, or the right of doing it.
Standard.
STandard See Estandard.
Stannary.
STannary are Courts by ancient custom held in Cornwal for suits concerning the Trade of Tin.
Statute-Merchant.
TO hold by Statute-Merchant is, where a man acknowledges to pay mony to another at a certain day before the Mayor, Bailif, or other Warden of any Town that hath power to make execution of the same Statute, and if the Obligor pay not the Debt at the day, and nothing of his Goods, Lands or Tenements may [Page 620] be found within the Ward of the Mayor or Warden aforesaid, but in other places without, then the Recognisee shall sue the Recognisance and Obligation with a Certification to the Chancery under the Kings Seal, and he shall have out of the Chancery a Capias to the Sheriff of the County where he is, to take him, and to put him in prison, if he be not a Clerk, till he have made satisfaction for the Debt. And one quarter of a year after he is taken, he shall have his Land delivered to himself, to make gree to the party for the Debt: and he may sell his Land while he is in prison, and his sale shall be good. And if he do not make satisfaction within a quarter of a year, or if it be returned that he is not found, and if he be not a Clerk, then the Recognisee may have a Writ out of the Chancery, called Extendi facias, directed to any Sheriff, to extend his Lands and Goods, and to deliver the Goods to him, and to scise him in his Lands, to hold them to him, his Heirs and Assigns, till the Debt be levied or payed; and for that tune he is Tenant by Statute-Merchant.
Note, that in a Statute-Merchant the Recognisee shall have Execution of all the Lands which the Recognisor had the day of the Recognisance made, and any time after, [Page 621] by force of the same Statute.
And when any Waste or destruction is made by the Recognisee, his Executors, or him that hath his Estate, the Recognisor or his Heirs shall have the same Law, as is before said of the Tenant by Elegit.
If Tenant by Statute-Merchant hold over his term, he that hath right may sue against him a Venire fac' ad computandum, or else enter immediately, as upon Tenant by Elegit. See the Statute 11 E. 1. and of Acton Burnel, and 13 E. 1. De Mercatoribus
Starr-chamber.
STarr-chamber was an High Court held in the Star-Chamber at Westm. before the King, Peers and Iudges, abolished per Stat. 17 Car. cap. 10.
Sterbrech.
STerbrech, alias Strebrech, is the Breaking, Obstructing, or or making less of a Way.
Stilyard.
STilyard is a word used in the Statute of 22 H. 8. chap. 8. where the Ha [...] se-Merchants are called the Merchants of the Sti yard, which is a place in London where these Merchants or their Brotherhood had their thode. And the House is said [Page 622] to be so called, because bullt upon a Court-yard near the Thames, where Steel was wont to be much sold.
Sub poena.
SUb poena is the name of a Writ made in divers Courts of Law and Equity; viz. in Chancery, and all other Courts, to summon Witnesses, and in that Court and in the Exchequer in Law and Equity, and in the Common Pleas upon Informations, qui tam, &c. to summon Defendants and in the Crown Office upon Informations.
Suffragan.
SUffragan is a word used in the Statut of 26 H. 8. cap. 14. and signifies a Titular Bishop appointed to aid and assist the Bishop of the Diocess in his Spiritual Function. And he is called Suffraganeus in Latin, because by his Suffrage Ecclesiastical Causes are to be adjudged.
Suggestion.
SUggestion, is an Information drawn in Writing, shewing cause to have a Prohibition, which is left in Court, and is mentioned in the Statute 2 E. 6. cap. 13.
Summons ad Warrantizandum, &c.
SUmmons ad Warrantizandum, and Sequatur sub suo periculo:
See of them after in the Title Voucher.
Supercargo, ou Supracargo.
SUpercargo, ou Supracargo, is a Factor or Agent which goes with a Ship beyond the Seas, by order of the Owner of the Wares therein, and disposes thereof: And the Master of the Ship is obliged to perform the Orders of such Factor or Supereargo.
Supersedeas.
SUpersedeas is a Writ that lies in divers cases, as appears by F. N. B. f. 236. A. but it is always a command to stay some ordinary Proceedings in Law, which ought otherwise to proceed.
Supplicavit.
SUpplicavit is a Writ issuing out of the Chaucery, directed to the Sheriff and some Iustices of the Peace in the County, or to one or more Iustices without the Sheriff, for taking Surety of such a one as it is prayed against, that he should keep the Peace: and this is by the Statute of 1 E. 3. c. 16. See F. N. B. f. 80. C and see the Stat. 21 Jac. c. 8.
Sur cui in vita.
SUr cui in vita is a Writ that lies for the Heir of an Inheritrix, whose Husband aliened the Inheritance of his Wife, and the Wife died before she recovered in a Cui in vita. See for this F. N. B. 194. C.
Surplusage.
SUrplusage comes of the French Surplus, that is an Overplus, and signifies in the Law an Addition of more then needs, which sometimes is the cause that a Writ shall abate, but in pleading many times it is absolutely void, and the residue of the Plea shall stand good.
Surrejoynder.
SUrrejoynder is an Answer to the Defendants Rejoynder, [Page 625] or a second inforcing of the Plaintiffs Declaration.
Surrender.
SUrrender is the Consent of a particular Tenant, that he in the Reversion or the Remainder shall presently have the possession. And this is either Surrender in Deed by an actual yielding up of the Estate; or in Law, by the taking of the new Lease, or such other act. See of this, Perkins c. 9.
Also it is an act done to the Lord of a Mannor, or his Steward, of a Copy-hold Estate, or done by special Custom of some Mannors to two Copy-hold Tenants of Mannors, which surrender, ought to be presented at the next Court Baron.
Swainmote.
SWainmote, or Swannimote, is a Court held thrice in a year within a Forrest, by the Statute of Charta de Foresta, c. 8. for all the Free-holders of the Forrest, for so much the Etymology of the word imports; Mote in the Norman speech signifying a Court, and Swain in the Saxon a Charterer, or Free-holder: so that Swannimore is the Court of the Free-holder. See of this Manwoods Forrest Laws, cap. 23. f. 217, &c. at large.
Swainmote, in this Court, Presentments of Offences done to [Page 626] the Forrest or Game are made▪ given into the Iustices in Eyre.
Syb & Som.
SYb & Som, i. Peace and Security. L. L. Eccles. Canuti Regis, c. 17.
Symony.
SYmony is an unlawful Contract made to have a man presented to a Rectory or Vicarage, which is prohibited by Stat. 31 Eliz. cap. 6.
T.
Fee-tail.
TO hold in the Tail is, where a man holds certain Lands or Tenements to him and to his Heirs of his Body begotten.
If the Land be given to a man and to his Heires males, and he hath Issue male, he hath Fee-simple; which was adjudged in Parliament. But where Lands are given to a man and to his Heirs males of his body begotten, then he hath Fee-tale, and the issue Female shall not inherit, as appears in the 14 year of E. 3. in an Assise 18 E. 3. 45.
[Page 627] Fee-tail is, where the Land is given to a Man and the Heirs of his Body begotten; and he is called, Tenant in Taile general.
If Lands are given to the Husband and Wife, and the Heirs of their two Bodies begotten, then the Husband and the Wife are Tenants in Tail especial. And if one of them die, he that survives is Tenant in Tail after possibility of issue extinct; and if he make Waste, he shall not be impeached for it. See Littleton.
But if the King give Lands to a man & to his Heires males, and the Donee dies without issue male, then the Cousin collateral of the Donee shall not inherit, but the King shall reenter: and so it was adjudged in the Exchequer-chamber, 18 H. 8. in an Information made against the Heir of Sir T. Lovel Knight.
Tail after possibility.
TO hold in the Tail after possibility of Issue extinct is, where Land is given to a Man and his Wife, and the Heirs of their two Bodies engendred, and one of them overlives the other without issue between them begotten; he shall hold the Land for term of his own life, as Tenant in the Tail after possibility of Issue extinct: and notwithstanding that he do Waste, he shall never be Impeached [Page 628] of it. And if he alien, he in the Reversion shall not have a Writ of Entry in consimili casu, but he may enter, and his Entry is lawful, by R. Thorpe, chief Justice, 28 E. 3. 96. & 45 E. 3. 25.
Tales.
TAles is a Supply of men impannelled upon a Iury or Inquest, and not appearing, or at their appearance challenged for the Plaintiff or Defendant as not indifferent, and in this case the Iudge upon Petition grants a Supply to be made by the Sheriff, of some nien there present, equal in Reputation to those that are impanneled: and hereupon the very act of supplying is called a Tales de circumstantibus. This Supply may be one or more, and of as many as shall either make Default, or else be challenged by each party. Stamf. Plac. Cor. l. 3. c. 5. Howbeit he that hath had one Tales, either upon default or challenge, though he may have another, yet he may not have the latter to contain so many as the former: for the first Tales ought to be under the number of the principal Pannel, except in a cause of Appeal, and so every Tales less then other, until the number be made up of men present in Court, and such as are without exception to the party or parties. See Stamford [Page 629] in the place before, where you may find some exceptions to this general Rule. See Brook, f. 105. and Coke, l. 10. f. 99. Bewfages Case.
Talwood.
TAlwood is a term used in the Statutes of 34 & 35 H. 8 c. 3. and 7 E. 6. c. 7. and 43 Eliz. cap. 14. and signifies such Wood as is cut into shore Billets, for the sizing whereof those Statutes were made.
Tax and Tallage.
TAx and Tallage are Payments, as Tenths, Fifteens, Subsidies, or such like, granted to the King by Parliament.
The Tenants in Ancient demesne are quit of these Taxes and Tallages granted by Parliament; except the King to tax Ancient demesne, as he may when he thinks good for some great cause. See Ancient demesne.
Tenant Paravail.
TEnant Paravail. See Paravail.
Tender.
TEnder, is an act done to save a penalty of a Bond, and of Mony for Rent or Contract before Distress or Action brought, and where it may be pleaded, and where refusal is, peremptory. Vide Coke, 1 Institut. 207, 208, 211. & uncore prist.
Tenure in Capite.
TEnure in Capite is, where any hold of the King as of his Person being King, and of his Crown, as of a Lordship by it self in gross, and in chief above all other Lordships: And not where they hold of him as of any Mannor, Honor, or Castle, except certain ancient Honors; which appears in the Exchequer. See the Stat. 12 Car. 2. cap. 24.
Term of years.
TO hold for term of years is but a Chattel in effect: [...] no Action is maintainable against the Termour for recovery of the Free-hold, no Free-hold being in him. A Lease for Term of years is a Chattel real, and all Goods which are removeable are Chattels personal.
Testament.
TEstament is thus defined in Plowdens Commentaries; A Testament is a Witness of the mind, and is compounded of these two words, Testatio and Mentis, which so signifie. Truth it is, that a Testament is witness of the mind, but that it is a compound word, Aulus Gelius, lib. 6. cap. 12. doth deny to an excellent Lawyer, Servius Sulpitius, and saith, it is a simple word, as are these, Calceamentum, Paludamentum, Paviamentum, and divers such like. And much less is Agreeamentum, a compound Word of Aggregatio and Mentium, as is said before in the Title of Agreement; for there is no such Latine word, simple or compound: but it may nevertheless serve well for a Law-Latine word.
And therefore thus it may better be defined; A Testament is the true Declaration of our last Will, in that we would to be done after our death, &c.
Of Testaments there are two sorts, namely, a Testament in Writing, and a Testament in Words, which is called a Nuncupative Testament; which is, when a Man being sick, and for fear lest death, want of memory, or speech, should come so suddenly upon him, that he should be prevented, if he staid [Page 632] the writing of his Testament, desires his Neighbors and Friends to bear witness of his last Will, and then declares the same presently by words before them, which after his decease is proved by Witnesses, and put in writing by the Ordinary, and then stands in as good force as if it had at the first in the life of the Testator been put in Writing: except onely for Lands, which are not devisable, but by a Testament put in Writing in the Life of the Testator.
Thanus.
THanus is a word which sometimes signifies a Noble-man, sometimes a Free-man, a Magistrate, an Officer or Minister, Lambert in the word Thanus Skene saith, it is a name of dignity, and appears to be equal with the son of an Earl. And Thanus was a Free-holder, holding his Lands of the King: and a man taken with the manner accused of Larceny, no sufficient proof being brought against him, must purge himself by the Oath of 27 men, or 3 Thanes. The Kings Thanage signifies a certain part of the Kings Lands or property, whereof the rule and government appertains unto him, who therefore is called Thanus: for the Kings Demains, and the Kings Thanage signifies one and the same thing.
Theftbote.
THeftbote is, when a man takes any Goods of a Thief, to favor and maintain him: and not when a man takes his own Goods, that were stoln from him, &c.
The punishment in ancient time of Theftbote was of Life and member: But now at this day Stamford saith it is punished by Ransom and Imprisonment. But enquire farther, for I think it is Felony.
Them.
THem, that is, That you shall have all the generations of your Villains, with their Suits and Cattel, wheresoever they shall be found in England, except that if any Bond-man shall remain quiet one year and a day in any Priviledged Town, so that he shall be received into their Communalty or Guild, as one of them, by that means he is delivered from Villenage.
Tithes.
TIthes. See Dismes.
Title.
TItle is, where a lawful cause is come upon a Man to have a thing which another hath, and he hath no Action for the same; as Title of Mortmain, [Page 634] or to enter for breach of Condition.
Title of Entry.
TItle of Entry is, when one seised of Land in Fee makes a Feoffment thereof upon Condition, and the Condition is broken: after which, the Feoffor hath Title to enter into