A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

VV.

VVAGE.

WAge, is the giving security for the per∣forming* 1.1 of any thing, as to wage Law, and to wage deliverance.

Contra instrumentum, sive specialitatem (ut nostri loquuntur) legis vadiatio locum non habet. Dyer fol. 23.

WAIF.

Waif, The Civilians call it derelictum, this belonged in times past to the finder, by the Law of nature, and now to the Prince by the Law of Nations, or to the Lord of the Fee which hath his* 1.2 liberty granted him by the King, if the owner shall challenge it within a year and a day, it shall be restored him.

A thing pro derelicto habita, waived and for∣saken,* 1.3 is nullius in bonis, as when a man for fear of a tempest casteth his things into the Sea, or some danger being emminent, leaveth them upon the land, or else of his own free-will, leaveth that which is his own sine spe reh. thendi.

I•• a thing be fallen out of a chariot or Wagon, it may be said to be lost or waived.

Felony is not committed in the taking of trea∣sury ••ound wreck of the Sea, waif and stray, and such like, unless they have been before seised

and the reason is, quia Dominus rerum non ap∣paret, ideo cujus sunt incertum est, and therefore* 1.4 punishment in such cases, is by ••••ne, and not by the taking away of life and member.

Waif, is properly when a thief being pursued and having stolen goods about him, doth leave or* 1.5 forsake them, that he may fly away.

WAIVE.

Waive, is a woman that is outlawed, and she is called waive, as left out or forsaken of the Law, and not an outlaw, as a man is, for women are* 1.6 not sworn in Leets to the King as men are, which be of the age of twelve years or more.

WAPENTAKE.

Wapentake. When any on a certain day and place took upon him the Government of the Hundred, the free Suiters met him with Launces, and he descending from his Horse, all rose up to him, and he holding his Launce upright, all the rest, in sign of obedience, with their Launces touched his Launce or Weapon; for the Saxon word •• apen is weapon, and tact, tactus, touching, whence wapentake or touching a weapon. Cook's 2d part of Instit. c. 10.

It came of the Danes, or Saxons, for that so* 1.7 many Towns came by their order then to one place, where was taken a muster of their armour and weapons, in which place from them that could not find sufficient pledges for their good abearing, their weapons were taken away. Weapon, or wapon in old English do signifie all arms offensive, as Sword, Dagger, Spear, Launce, Bill, Bows, Ar∣rows.

The Northern English beyond Trent, called a Hundred so.

WARDSHIP.

Wardship, The finall cause why it was ordained was this, ut qui per aetatem scipsos defendere nequeant, ab aliis defendatur.

Of Guardianships there be two kinds in respect of the manner of their constitution, viz.

• 1. By the Common Law.
• 2. By Statute.

At the Common Law there are four manner of Guardians.

• 1. Guardian in Chivaliy.
• 2. Guardian in Soccage.
• 3. Guardian by nature.
• 4. Guardian pur cause de nurture.

For Guardianship by the Statute, 1. and 2 Phil. and Mar.

All which severall sorts of Guardianships the Law hath defended by divers Statutes providing for the Guardians respective remedies, in case their rights are violated, vid. Hub. Rep. Dr. Husseys case, West. 2. c. 35. explained for that purpose in a Writ of Ravishment. 32 Ed. Fitzh. guard. 32. & Fitzh. N. B. 91. & 143. & Register 98. & 99. 12 H. 4. 16.

WARRANTY.

Warranty, is a Covenant whereby the Bargainer* 1.8 is bound to warrant the thing sold to the Bargai∣nee, and is either,

• 1. Reall, or
• 2. Personall.
  • 1. Real, when it is annexed to Lands or Te∣nements granted for life, &c. and it is either,
    • 1. In deed, as by the word warrantizo expressly.
    • 2. Or in Law as by the word dedi or some o∣ther amplification.
  • 2. Or personall which either respects the
    • 1. Property, of the thing sold or
    • 2. The quality of it.

Reall warranty in respect of the estate is ei∣ther

• 1. Lineall.
• 2. Collaterall, or
• 3. Commencing by deseisen.

WARREN.

Warren, The King grants a Warren to me in* 1.9 mine own Lands for Pheasants and Partridges one∣ly, so by this grant no man may there chase them without my Licence, and so of Hares, but not of Conies, for their property is to destroy the fruits of the earth, and to eat Corn, Crompton Iurisd. fol. 148.

By the grant of it, or a Forest or Park, not only the priviledge, but the Land it self passeth, for they are compound.

WASTE.

Waste. Brook holds that the Executors shall have* 1.10 glass, for the house (saith he) is perfect with∣out it. Yet it was adjudged in the Common Pleas, that a waste may be committed in glass, annexed to the Windows, for it is parcell of the house, and shall descend as parcell of the Inheritance to the Heir, and Executors shall not have it, and although

that the Lessee himself at his own costs put the glass in the Windows, yet this being own parcell of the house, he cannot take away this or waste it, but shall be punished in waste. Glass annexed to the Windows by nails, or after other manner by* 1.11 the Lessor or Lessee, cannot be removed by the Lessee, for without glass it is no perfect house, and by a Lease or grant of a house this shall pass as parcell of it, and the Heir shall have i••, and not the Executors, and peradventure a great part of the costs of a house consists of glass, and if they be open in a tempest and rain, waste of the timber of the house will follow. Also it was re∣solved, that if wainscot be annexed to a house by the Lessor or Lessee, it is part of the house, and there is no difference in the Law whether it be fastned with great or little nailes, or by screws or irons put through posts or walls. But if it be any of these waies, or any other fixed to the posts or walls of the house, the Lessee cannot remove this, but he is punishable in an action of waste; for this is part of the House, and by Lease, or grant of the house shall pass as parcell.* 1.12

By an Action of waste at our Law, the Plaintiff, if it be ••ound for him, shall recover treble dam∣mages.* 1.13

For permissive waste no Action lies against Te∣nant at will, but for voluntary waste a generall Action of Trespass lies.

There are two kinds of waste, viz. voluntary,* 1.14 or actual and permissive, waste may be done in Houses, by pulling or prostrating them down, or

by suffering the same to be uncovered, whereby the spa••rs or ra••ters, or other timber of the house are rotten. But if the house be uncovered, when the Tenant cometh in, it is no waste in the Te∣nant to suffer the same to fall down. But though the house be ruinous at the Tenants coming in; yet i•• he pull it down, it is waste, unless he re-edi∣fie it again.

Though there be no timber growing upon the ground, yet the Tenant at his perill* 1.15 must keep the houses from wasting. If the Tenant do, or suffer waste to be done in houses, yet if he repair them before any action brought, there lyeth no action of waste against him; but he can∣not plead quòd non fecit vastum, but the speciall matter.

A wall uncovered when the Tenant cometh in, is no waste, if it be suffered to decay. If the Te∣nant* 1.16 cut down, or destroy any fruit tree, growing in the Garden or Orchard, it is no waste. If the Tenant build a new house it is waste, and if he suf∣fer it to be wasted, it is a new waste. Waste pro∣perly is in Houses, Gardens, in Timber trees, viz. Oak, Ash, and Elme; either by cutting of them down, or topping of them, or doing any Act where∣by the timber may decay.

If a house be ruinons at the time of the Lease made, if the Lessee suffer the house to fall down, he is not punishable, for he is not bound by Law* 1.17 to repair a house in that case: And if he cut down Timber upon the ground so letten, and re∣pair it, he may well justifie it; and the reason is, because the Law doth favour the supportation and maintenance of Houses of habitation for man∣kind.

WIFE.

Wife. After Marriage, all the will of the Wife,* 1.18 in judgment of the Law is subject to the will of the Husband; and it is commonly said, a seme covert hath no will.

If she have any Tenure at all, she holds in Capite, and she hath no title but by her Husband, the maxim of the Lawyers is ••••••r fulget radiis marit••, the Wife shines with her Husbands beams.

Where Baron and Feme commit selony, the Feme can neither be principall, nor accessary, be∣cause the Law intends her to have no will, in re∣gard of her subjection and obedience she owes to her Husband.* 1.19

Our Law saith, that every gift, grant, or disposi∣tion of goods, lands, or other thing whatsoever, made by a woman covert, and all, and every ob∣ligation and seoffment made by her, and recove∣ry suffered, if they be done without her Husbands consent, are void.

Yea, if she do wrong to another, she hath not any thing to make satisfaction during coverture, either her Husband must do it, or by imprisonment of her person must it be done.

And though she have inheritance of her own, yet can she not grant any annuity of it during her coverture without her Husband; if any Deed be* 1.20 made to that purpose without his consent, or in her name alone, it is void in Law. Yea, if there be debate between the Husband and his Wife, whereby certain Lands of the Husbands be assigned* 1.21 to the Wife with his consent, if out of such Lands she grant an annuity to a stranger, the grant is void.

And if he covenant to give her yearly such and

such apparell, she cannot dispose it as she list* 1.22 without his consent, but only me and wear it her self.

Neither can she lease her own Land for years, for life; if the do, it is void, and the Lessee en∣tring* 1.23 by so••ce thereof, is a dissesor to the Husband and trespassor.

If she sell any thing, the sale is void, except she* 1.24 be a Merchant, where by the custom she is inabled to Merchandize.

Finally, she cannot make executors without the consent of her Husband, nor a devise or will▪ Cook 4 Rep. Ognels case* 1.25

If she make a Will, and thereby devise her own Inheritance; and her Husband die, and she after die without any new publication of it, it is of no force, but it was void at first.

Suppose a woman at the time of her marriage have a lease for years, or the wardship of the* 1.26 body and Lands of an Infant, or have it by gift or purchase, after marriage she cannot give it away whatsoever the extremity be, but her Husband may at any time during coverture dispose of it, and such his disposition shall cut off the wives in∣terest.

By the Common Law Marriage is a gift of all* 1.27 the Goods and Chattels personall of the Wife to her Husband; so that no kind of property in the same remaineth in her.

And all personall Goods and Chattels during Marriage given to the Wife, are presently ipso facto transferred (as to the property of them) to the Husband.

By our Law her necessary apparell is not hers in property. While she remaineth a Wife, she is (to use the Law phrase) under covert Baron: she* 1.28 can neither let, set, al••en, give, nor other∣wise

of right make any thing away.

WITHERNAM.

Withernam comes from two old and out-worn Saxon words, Wither al terum & nam pignus qua∣si* 1.29 altera pignoris oblatio: Some derive it of the German Wider, i. e. Rursus again, and nam that is, captio, a taking, vetitum nanium, in Latin, a forbidden taking, though it be a taking again, but because the first taking in distress was unlawfull, and so in Law forbidden.

WRECK.

Wreck, the Civilians call it Naufragium, no∣thing* 1.30 shall be wreccum maris but such goods only which are cast, or lest upon the Land by the Sea, for wreccum maris significat illa bona quae naufragio ad terram appellantur. It is an estray upon the Sea coming to Land; as an estray of Beasts is upon the Land coming within any priviledg'd place.

The King, by the old custom of the Realm, as* 1.31 Lord of the narrow Sea, is bound to scour the Sea of Pyrats. And because that cannot be done without great charges, it is not unreasonable if he have such goods as be wrecked upon the Sea toward the charge.

WRIT.

Writ, A Writ is a formall Letter, or Epistle of the King of the Liberties, &c. in a Parchment sealed with a Seal, directed to some Judge, Officer, Minister, or other subject, at their suit, or the suit or plaint of a subject, commanding or authorising some thing contained in the same Letter to be done for the cause briefly (and therefore called un brief) in that Letter expressed, which is to be discussed in some Court according to Law.

Writs are of three sorts,* 1.32

• 1. Originall, which are most commonly of course, and therefore are of a set form.
• 2. Judiciall, which are for the Execution of the Judgment.
• 3. Magisteriall, which vary in form according to the matter emergent.

WRONG.

Wrong, or Injury is in French aptly called Tort,* 1.33 because injury and wrong is wrested or crooked, being contrary to that which is right and straight. Injury is derived of in and Ius, because it is con∣trary to right.

Queen Elizabeths continuall charge to her Justices agreeable with her antient Laws was, that for no Commandement under the Great, or Privy Seal, Writs, or Letters, common right might* 1.34 be disturbed or delayed, according to the antient Law declared by the great Charter, Nulli v••nde∣mus aut negabimus aut differemus justitiam vel rectum.

Notes

• * 1.1

  Vadiare cometh of the French gager, id est dare pignus, pignore certare, to put in a surety. Minshew.
• * 1.2

  Books tit Estray and waif.
• * 1.3

  A thing pro dere∣licto, habi∣ta, waived and for∣saken, is nullius in bonis. 29 E. 3. 29 E 4, 5, 12.
• * 1.4

  12 E. 3. Brief. 678.
• * 1.5

  Cook 5 Rep. Foxleys case.
• * 1.6

  Cook on Lit. l. 2. c. 11. sect. 186.
• * 1.7

  Wapenta∣kia a Wa∣pen. hoc est, armis: quae quo∣ties novus esset hun∣dredi do∣minus, ei in subjecti∣onis signum reddebant. Vossius De vitiis Sermonis l. 2. c. 9. Smiths Common wealth of England. c. 19.
• * 1.8

  Warran∣tum est se, curitas à venditore praestita emptori, quo tranquille aliquid possideat. Eaque a significatione warrantizare dicitur warrantus sive venditor, quando se empto obligat per acta curiae aut chartam, aut con∣tractus instrumentum▪ Vossius De vitiis Sermonis. l. 2. c. 20.
• * 1.9

  It comes from the French word ga∣rein, id est, vivarium, Dr. Cow∣ell Instit. Cook on Lit. p. 5.
• * 1.10

  Brooks abr. tit. Chat∣tels p. 135. B. Cook on Lit. l. 1. c. 7. sect. 67.
• * 1.11

  And Rep. Harle••an∣ders case. fol. 63, 64
• * 1.12

  Fitzh. Nat. Brev. 58 H.
• * 1.13

  Cook l. 5. Rep. Coun∣tes de Sa∣lop. fol. 13.
• * 1.14

  At the Com∣mon Law no remedy did lie for waste, either voluntary or permissive, against Lessee for life, or for years, because the Lessee had no interest in the Land, by the Act of the Lessor, and it was the Lessor his folly not to restrain the Lessee by covenant or condition, Cook's 5 Rep.
• * 1.15

  Cook on Lit. l. 1. c. 7. sect. 67.
• * 1.16

  Id. Ib.
• * 1.17

  Id. ib.
• * 1.18

  Cook 4 Rep. Forse and Hemblings case.
• * 1.19

  45 Edw 3. Fitz. Coven 18. 1 H. 5. 12. 6. Perk. cap. de Grant. Nat. Brev. fol. 120. Nat. Brev. fol. 188. 11.
• * 1.20

  Perk. fol. 2. A
• * 1.21

  Perk. fol. 2. B
• * 1.22

  27 H. 8. 27. p. 12.
• * 1.23

  Perk. f. 3, 4
• * 1.24

  21 H. 7. 18 p. 29. Nat. Brev. f. 12.
• * 1.25

  Plowd. Comment. 344 a Bret. and Rig∣dons case.
• * 1.26

  Dr. and Stud. f. 13. Plowd. Comment. fol. 418. 8.
• * 1.27

  12 H. 7. 22. Cook 5 Rep. fol. 36. H. 8. Dyer fol. 6. Dr. and Stu. fol. 13. Plowd. Comment. fol. 36.
• * 1.28

  4 H. 6. 31.
• * 1.29

  Doderidge. See Smiths Common∣wealth of England. l. 3. c. 10.
• * 1.30

  Cook 5 Rep. Sir Henry Constables case. Id. ib.
• * 1.31

  Dr. and Stud.
• * 1.32

  See Cook's 2d part of Instit. c. 24. Of the severall sorts of Writs, and of the difference between a Writ and an Action.
• * 1.33

  Cook on Lit. l. 2. c. 1.
• * 1.34

  Cook pre∣face to se∣cond Rep.