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 ...

A Philologicall COMMENTARY.

ABATE.

ABATE is both an English and French word, and signifieth in his proper sense, to diminish, or take away; as one that abateth in Lands or Tenements, by his entry diminisheth and taketh away the Freehold in Law de∣scended* 1.1 to the Heir; and so it is said to abate an account, signifying Substraction or withdrawing; and to abate the courage of a man. In another sense it signifies to prostrate, beat down, or over∣throw; as to abate Castle••, Houses, and the like; and to abate a Writ, is to destroy it, by pleading for them that makes it actious or not proper, and hereof cometh a word of Art, Abatamentum, which is an entry by interposition, after the death of the Ancestor and before the entry of the Heir.

ABBOT.

Abbot, in Latin Abbas, in French Abbè, is by skilfull Linguists said to come from the Syriack* 1.2 word Abba Pater, and in our common Law is used for him that in the Covent or fellowship of Canons, hath the rule and prehemmence, he is called the head of the House, he is chosen from amongst the Monks and is one, as to all purposes as but in rela∣tion to the Corporation.

ABEIANCE.

Abeiance, it seems to be derived from the French* 1.3 (Abayer) i. e. al••a••ra••e, to bark at, as Dogs do a∣gainst a strang••r, or Spaniels at a Feasant, put to the perks. So Children are said, Bayer à la ma••••r••, when seeing the dug, they struggle and make means towards it. Our Antient Law••••rs would sig••i••••e hereby a kind of hope or lo••ging expectance, be cause that there things that be in ab••iance, though for the present they b•• in no man, yet they are in hope and exp••c••ation belonging to him that i•• next to enjoy them.

When a Parson of a Church dyeth, we say tha•• the Freehold is in Abeiance, because a Successour is in expectation to take it. It a Tenam ••or term o•• anothers life dy••th, the Freehold is said to be in Abeiance, un••ill the occupant ent••reth. If a •••••• make a Lease for life, the rem••inder to the right Heirs of I. S. the Fee-simple is in Abeiance, untill I. S. dyeth; because as long I. S. liveth, his Hei•••• are in himself, and he hath no Heirs to take by that name and purchase, and therefore during the li•••• o•• I. S. this remainder is in the preservation of the Law, in nubibus, the Cloudes or Lap of the Law.

ACCESSARIE.

• 1. Before the offence or fact, is he that commandeth or procureth another to do Felony, and is not there present when the other doth it; but i•• ••e be present, then he is also a principal.
• 2. ••••••r the ••••••••nce▪ is he that receiveth, favoureth, ••id••rh, a ••••••••eth, or comforteth any ma•• that hath done any murder, or felony▪ where o•• he hath knowledg.

He which counselleth or commandeth any evil thing, shall be judged accessary to all that follow∣eth o•• this evil act, but not o•• another distinct thing▪ as I command one to beat another, and

he beat him so, that the other di•• of it; I shall be ••••••••ssary to this murder, for it is a sequel of my c••••••andement. But if I command one to steal a white Horse, and he s••eals a black one; or to bu•••• such a house, which he w••ll knoweth▪ and he b••••n the house o•• an••ther: I shall ••ot be accessary 〈◊〉〈◊〉. So if I command one to rob such a G〈…〉〈…〉o•• his pla••e in such a place, as he is go∣i〈…〉〈…〉g F••i••, and he br••ak his house in 〈…〉〈…〉sid••, ••nd th〈…〉〈…〉 away hi•• Pla••e; I shall* 1.4 〈…〉〈…〉essar•• to this ba〈…〉〈…〉, for this i•• 〈…〉〈…〉ny: ••ut i•• I command one to kill 〈…〉〈…〉in the ••••ld, an•• he kill him in the City or Chur••h; or I command him to kill him at such a day and he kill him a•• another day; I shall be accessary▪ for the killing is the substance, an•• the day, place, or weapon, is but circumstance. ••ut if I command one to kill I••hn a S. and be••ore he hath kill'd him, I come and say, that I am peni••ent for my mali••e, and charge him no•• to kill him▪ and y••t he kill him; I shall not be acc••ssary. Where the p••incipall is pardoned, or ha••h his Clergy, th〈…〉〈…〉ary can∣not be arraigned; ••or the Maximm•• o〈…〉〈…〉aw is, Vbi▪ non〈…〉〈…〉or* 1.5 it doth nor appear by the judgm••nt of the Law, that he was principall; but if the principall after attainder be pardoned, or hath his Clergy allowed him, there the acce••••ary shall be ar••a••gned, be∣cause it appeareth ••udicially that he was principall. Some have holden, that neither f••r ••elony nor m••im, the Accessary shall be ar••aigned, till the at∣tainder of the principals.

In the lowest and highest offences, there are no accessaries, but all are principals, as in Ryot••, Routs, forcible Entries, and other Transgressions, ••i* 1.6 & armis, which are the lowest offences; and so in the highest offence, which is Crimen ••oesae ma∣jestatis,

there be no accessaries, but in Felony there* 1.7 are both before and after.

In the third of Queen Mary a maidservant conspi∣red with a bad fellow to rob her Mistris, and in the night she opened the door, and brought the fellow to the bed of her Mistris, who did kill the Mistris, the maid holding the candle, but saying no∣thing; she was not a Principal, (thoug•• she was pre∣sent at the act, and did concur with the murderer from the beginning to the end) but accessary, be∣cause opening of the door, and holding of the candle was not parcell of the consummation o•• the act. Q••aere i•• this be petty treason in the Maid∣servant, since it is but murder in the other, although she was present when her Mistris was murdered. Yet she cannot, as I take it, be a ••••aytor else, the principal being but a murderer.

ACQUITTANCE.

Acquittance is a discharge in writing of a Summe of Money, or other duty which ought to be paid or done. This word di••fereth from those which in the civil Law be called acceptilatio, or Apocha,* 1.8 for the first of these may be by word, with∣out writing, and is nothing but a feigned payment and discharge though payment be not had. Apocha is a writing witnessing the payment or delivery of Money, which dischargeth not unless the Money be paid.

ACQUITER.

Acquiter is compounded of ad and the old Verb quietare, ••nd signifieth in Law to dis∣charge or keep in quiet, and to see that the Te∣nant* 1.9 be safely kept from any Entries or molestati∣on, for any manner of service issuing out of the Land to any Lord that is above the Mesne, here∣of cometh acquital & quietus est, i. e. he is dis∣charged; and he that is discharged of a selony by

judgment, is said to be acquitted of the selony a〈…〉〈…〉atus de ••el-nia, and if it be drawn in que∣stion again, he may plead auter sois acquite.

And acquitall is either in deed or in Law; ac∣quitall* 1.10 in deed is either by verdict, or by battell, by verdict when by a Jury he is found not guilty o•• the offence whereof he is charged: by battell, as when in an appeal the plaintiff yeeldeth him∣self crea••t or vanquished in the field, the ••udgment shall be that the appelee shall go quit, and that he shall recover •••••• damages.

Acquital in Law is where two are indicted, the one as principall, the other as accessary, if the principall be acquitted indeed, th•• ••ther shall not be tryed, but shall be call'd to be acquitted in Law of course, but i•• the principall be discharged for the insufficiency of the indictment against him or have his Clergy the accessary i•• not acquitted.

ACRE.

Acre, is a certain parcell o•• Land that containeth* 1.11 in length 4•• perches, and in bredth four perches, it comes from the Germane word (Acker) id est, ager.

ACTION.

Action, an action is a right of prosecuting in judgment of a thing which is due unto any one.* 1.12

It may well be called an Action, quia agi∣tur de injuria, for it is a complaint of an injury re∣ceived.

ACTIONS are

• 1. Personall, whereby a man claimeth Debt or other Goods and Chattels, or Damage for them, or Damages for wrong done to his* 1.13 person, it is properly that which in Civil Law is called actio in personam.
• 2. Beall, whereby the Demandant claimeth

• title to have a Freehold in any Lands, or Tene∣ments, Rents or Commons in Free-simple, 〈…〉〈…〉∣tail, or for term of life.
• 3. Mixt, whereby something in the reallity i•• re∣covered▪ and damages also, as in 〈…〉〈…〉.

Actio personalis m••••••itur cum p••rs••na. This rule is not generally to be admitted, but only in* 1.14 such Cases where the wrong did p••inc••pall•• and 〈…〉〈…〉 rest upon a man person, as if one scandalize or bea•• another, if either pa••ty ••y the ••••tion is gone, b••t an E••••••••ut•• may ha••e a W••i•• of Covenant, which is a thing meerly personall, or any Action upon the Case, as the Case is.

An Action upon the Case (called by the Civi∣lion••, A••ti•• in••••••iarum) is so termed in the Com∣mon Law, because every mans Case must be in the Action, specially, and at large set down; for* 1.15 in that Action, the writ ought to comprehend the special matter, as well as the Declaration.

If a man deliver a horse to one to keep him safely, the Defendant equum illum tam negligen∣ligenter custodivit, ut ob defect••m b••nae cust••diae in∣••eriit. So I trust my Shepherd with my sheep, and they perish through his negligence, an Action of the Case lieth here.

An Action upon the Case doth not ly at the* 1.16 Common Law for calling a man here••ick, or a∣dulterer, but in the Spiritual Law, for those of the Common Law cannot discusse what is H••resie or Adultery, but for calling one Traitor or ••elor an Action lieth at the common Law.

If a Smith prick my Horse with a nail, I shall

have an Action of the Case, and so likewise if he warrant to cure my Horse and doth not; but if he do what he can, and not warrant the curing of him, it will not lie.

If one cha••ge another that he hath forsworn* 1.17 himself, this is not actionable, because he may be ••or••worn in usuall communication, quia benigni••r 〈…〉〈…〉 in verbis genera••••bus seu du••••iis est prae∣ser••nda 2. It is a•••• usuall word of passion and cho••er to say that another hath forsworn himself, as if one say to another, that he is a villain, rogue, or va••let, vel s••••i ia, these will not bear an action, for ••••ni judicit est ••••••es d••••imere, but if one say to another that he is preju••ced, or that he hath for∣sw••rn himself in such an action, in such a Court, for such words an Action may be maintainable, for here it appeareth that he hath forsworn himself in a j••dicial proceeding. So if a man say, that another is main sworn, a word in the North for perjured, or in Welsh call a man an Idoner, which is to the same purpose, an Action will lie.

In every Action upon the Case for ••landerous words, two things are required. 1. That the per∣son which is scandalized be certain. If one say one of the servants of I••hn a S. is a notorious thief, he having divers, these words will not bear an Action* 1.18 for their uncertainty. 2. That the scandall be ap∣parent by the words themselves; and therefore if the Defendant say to the Plaintiff, that he is full of the Pox, it shall be taken to be the Small Pox, though the Plaintiff declares with an innuendo, the French Pox, for words shall be taken in miltore sensu, where they may be applied two waies.

If one say to I. S. Thou art a Traytor, here con∣stat* 1.19 de persona, and the Action lieth; or if one scandalize a man in his Profession or Trade, by which he gets his living: as Skinner a Merchant,

said of Manwood chief Baron, That he was a cor∣rupt Judg, and it was adjudged that these words were actionable. Popham saith, If one say of a woman that keeps an Inn, that she hath a great infectious disease, by which she loseth her guests, she shall have an action upon the Case.

If one say of a Merchant, that he is a Bankrupt knave, an action lies, or that he will be a Bank∣rupt in two days, which imports onely an incli∣nation; yet an action lies. If one call another thief or traytor generally the action will lie, but if one say, Thou art a thief, for thou hast robbed my Orchard; or, for thou hast robbed my Hop-ground; these words are not actionable, for the last words prove it to be no Felony, and so qualifie the proper sense of this word Thief.

If the Goaler of malice fore thought, lay so many irons on the prisoner, as to lame him, he shall have his Action on the Ca••e. If a man play with others at Dice, and he hath ••alse Dice, with which* 1.20 he playeth and winneth the others money; he which hath lost his money, may have his action on the Case for this deceit. An action or trespass upon the case lieth against the keeper of a common Inn, if goods be imbe••eled in••r••h ••••spitu••••. If a man sell a Horse to another, and war••ant him to be good, and the Horse hath some secret disease in his body which he knoweth of; the other shall have a writ of trespass on the Case against him. So if one sel Wine, and warrant it to be good, and it is naught, an action of the Case will lie.

If a mans servant be beaten, the Master shall not* 1.21 not have an action for this Battery, unless it be so great, that by reason thereof, he loseth the service of his servant; but the servant himself shall have an action for every petty battery, Cook ••. Rep. Mo∣rys Case.

ADIOUENMENT.

Ad••ournment, is when any Court is put off, and a••ligned to be kept again at another place or time.

ADMISSION.

Admission, is when one that hath right to pre∣sent to a Church being void, doth pre••••nt him to the Bishop of the Diocess in which the Church i••, who upon examination finding him idoneus pers••na that is capable and able, doth consent that he shall be Parson, and saith admitt•• •••• habi••••m.

ADMINISTRATOR.

Administrator, is he to whom the ordinary (id est) the Bishop doth commit or give power to dispose and administer the goods, and Chat∣tels within his Diocess belonging to any person that is dead, without Executor for the benefit of* 1.22 such persons, or if the Party make a Will and Executor and they all refuse, or the Executor be within the age of 17 years.

Administrator durante min••re aetate, cannot sell* 1.23 any of the goods of the dead, unless it be of neces∣sity for the payment of debts, or b••na 〈…〉〈…〉, for he hath his office of administration 〈…〉〈…〉∣d•• of the Infant, and not for his prejudice. The words of such Letters are, Administ••ati••n••m ••mni∣um & singalorum bonorum ad ••p••••••, ••••min dum, & utilitatem exe••utri••. durante sua mia••••e aetate & non aliter, nec alio modo commit••imus; such administration ceaseth at the age of seventeen of the Infant. Where one hath goods onely in an in∣feriour Diocess, yet the Metropolitan of the same Province, pretending that he had bona notabilia in divers Diocesses, commits administration▪ this administration is not vo••••, but voidable by sen∣tence, because the Metropolitane hath jurisdicti∣on over all the Diocesses within his Province, but if

an Ordinary of a Diocesse commit administration of goods, when the Party hath 〈…〉〈…〉 in divers Diocesses, such administration is meerly void, both for the goods in his Diocesse, and else∣where, because that by •••• means he can have ju∣risdiction of the Cause.

ADVOWSON.

Advowson of a Church is the right of Presen∣tation* 1.24 or Collation to the Church, Adv••catio, so called, because the righ•• of presenting to the Church was first gained 〈…〉〈…〉uch i•• were Foun∣ders, Benefactors or Maintainers of the Church, viz. 1. ration•• fundationis, a•• where the Ancestor was Founder of the Church, or 2 ratione 〈…〉〈…〉∣nis, where he endowed the Church, or 3. 〈…〉〈…〉 sundi, as where he gave the soil whereupon the Church was built, and therefore they were called advocati, and thereupon the advowson is called jus patronatus.

In an Advowson or Rectorship, there are three distinct Rights, viz.

• 1. Ius presentationis, which doth belong to the Patron.
• 2. Ius Ordinationis to the ordinary.
• 3. Ius possessionis, to the Parson imparsonee.

If a man seized of an Advowson in Fee, by his* 1.25 Deed granteth the next Presentation to A. and before the Church becometh void, by another Deed grant the next Presentation of the same Church to B. the second grant is void; for A. had the same granted to him before, and the Grantee shall not have the second avoidance by constructi∣o••▪ This hath been resolved by the Justices.

AFFEERORS.

* 1.26 Affeerors are such as are appointed in Court∣leets, to mulct such as have committed any fault,

which is arbitrably punishable, and for which no express penalty is prescribed by Statute.

The 〈…〉〈…〉ament is the act of the Court, and t••e 〈…〉〈…〉ment the act of the Jury, Cook lib. 8. ••••••il•••• case sol. 40. B.

AFFRAY.

〈…〉〈…〉 is derived of the French Affray••••, which 〈…〉〈…〉ine. It may be without word or ••••w ••iv••n, as if a man i•• •••••• ••hew himself ••••••∣〈…〉〈…〉 with Armour •••• Weapon which is no usu∣all w〈…〉〈…〉 it will strike a fear into 〈…〉〈…〉er that be* 1.27 not 〈…〉〈…〉, a•• he is: for which reason i•• i•• a com∣mon wrong and inquirable in a Lect. which makes it di••••••r ••rom assault, which is alwa••s a particular injury.

AGE.

There are diversity of Ages, which the Law takes notice of.

A Woman hath seven Ages for several purposes* 1.28 appointed to her by Law, as seven years for the Lord to have aid pour file marier, nine years to deserve dower, twelve years to coment to ma••••i∣age, untill fourteen years to be in ward, 14 years to be out of ward, if she attained thereunto in the life of her Ancestor, sixteen years to tender her mar∣riage, if she were under the age of fourteen at* 1.29 the death of her Ancestor, and twenty one years to a ••enate her Lands, Goods, and Chattels.

A man also b•• the Law for several purposes hath divers Ages a••••igne•• unto him; viz. twelve years to take the Oath of Allegiance in the Leet, 14 years to consent to marriage, and for the Heir in ••o•••• age to choose his Guardian, and fourteen years is also accounted his Age of discretion, fif∣teen years for the Lord to have aide pour sai••e

fit•• Chivaler, under 21 to be in ward to the Lord by Knights service, under 14 to be in ward to a Guardian in soccage, and 21 to be out of ward of a Guardian in Chivalry, and to alien his Lands,* 1.30 Goods and Chattels. Before the age of twenty one years, a Man or a Woman is called an Infant. Full age regularly is twenty one years for man or wo∣man to enable them to seal any Bond or any Deed whatsoever; a man cannot lawfully be impannel∣led in a Jury before that age, and at 17 years he may administer as Executor.

AGREEMENT.

Agreement (saith Pl••••d••••) is a word com∣pounded* 1.31 of two words, aggregatio & mentium, i. e. agreement of mindes, it is a consent of minde, in something done or to be done, ab aggredi••••d•• dicitur, saith Spelman.

If I sell all my Corn for Twelve pence every Bushell, notwithstanding the uncertainty of the quantity of the Co••••, and of the summe for it, yet this is a good agreement.

So where one le•••• a Close, rendring Twelve* 1.32 pence of Rent for every Acre, notwithstanding the uncertainty of the Rent, yet it is a good agreement, for it may be reduced to a certainty, by measuring of the Corn or ground.

ALIEN.

Alien, is derived from the Latine word alienus▪,* 1.33 and according to the Etymològy of the word, it signifies one born in a strange countrey, under the obedience of a strange Prince.

Such an one is not capable of inheritance with∣in England.

• 1. Because the Secrets of the Realm may thus be discovered.
• 2. The Revenues of the Realm (which are the

• sinews of Warre, and ornament of Peace) shall be taken, and enjoyed by strangers born.
• 3. This will tend to the destruction of the* 1.34 Realm.

He cannot have any reall or personall ••ction concerning Land, unless he be an alien Merchant friend, and then he may have a Lease for years, of Houses, Warehouses, and Conveniences for habitation and Merchandizing, and if he be di∣sturbed in the possession of them, he may maintain actions of trespass. And if he be naturalized by Act of Parliament▪ then he is not accounted in Law alienig••••a, but ••••••g na, as a natural born Subject, and may purchase and maintain actions as English∣men.

ALMS.

Alms, and relief of poor people, being a work* 1.35 of charity, is accounted in Law Divine Service, for what herein is done to the poor for Gods sake, is done to God himself.* 1.36

If it were ordained that no Alms should be gi∣ven for no necessity, this Custom and Statute were void, because no generall Custom of Statute must be directly against the Law of God. Never∣theless, the Statute in the 24 year of King Ed. 3. whereby it is ordained. That no man under pain of imprisonment, shall give any alms to any vagrant beggers that may well labour, that they may so be compelled to labour for their living, is a good Statute, for it observeth the intent of the Law of God.

AMERCIAMENT.

Amerciament in Latine is called misericordia,* 1.37 because it ought to be assessed mercifully, and this ought to be moderated by affeerement of his e∣quals,

or else a Writ de moderata misericordia doth lie, or because the party which offendeth* 1.38 putteth himself on the mercy of the KING.

A fine is alwaies imposed and assessed by the Court, but Amerciament by the Countrey.

ANCESTOR.

Ancestor is derived of the Latine word 〈…〉〈…〉∣sor, and in law there is a difference between ante∣cessor* 1.39 and predecessor, for antecessor is applied to a naturall person, as I. S. & antecess••••••s ••ui; but predecessor is applied to a body Politique, or Cor∣porate, as Epis. Lond. & predecessores. S•••• Re••••••r de D. & predecessores sui.

AN, IOUR.

An, iour, The law in many cases hath limited a year and a day to be a legall ••and convenient time for many purposes▪ The Wife or Heir hath a year and a day, to bring an appeal of death. If a man* 1.40 be wounded or poysoned, and dieth thereof within the year and the day, it is Felony. A protection shall be allowed but for a year and a day, and no longer: a year and a day to remain in ••••ti••••t ••e∣mes••e to enfranchise a Villain.

An〈…〉〈…〉, and waste, is a forfeiture when a man hath committed petty treason or felony, and hath ••••nds which he holdeth of some common person▪ the King in detestation of the crime, might by the Prerogative cause the trees to be digged up, the houses to be ••ased and pull'd down, and the pa∣stures and meadows to be plowed up: but the land▪ so desaced were to escheate to the Lord, and the King had no other benefit then before, ••i•• ••o•• the good of the Common-wealth it was provided by Magna Charta, Chap. 22. that instead of such* 1.41 spoil, the King should have the lands of such ••••∣lon for a year and a day, and afterwards the Lord

to have it without such spoil. This Statute of Prerogativa Regis, made in the 47 year of E. 2. is thought by Stamford and others to be in force as to this point, and hath made them conceive erro∣neously, but that Statute being repealed by an Act in •••• E. 3 cap. 1. the Act of Magna Charta, as to this is still in force. The King shall not have a•••••••••• diem, & vas••am of lands holden in Gavel▪ kind, where the Father is hanged: but if he be outlawed and ab••ured for felony, he shall. Some hold that the custom of Kent, The Father to the Bow, the Son to the P••••••••, must be taken strictly; for if he be attainted and die in prison, his lands shall es••hea••. If one be* 1.42 arrested for selony, and breaks the arrest; so that in pursuit of him he is killed, because he would not otherwise be taken; the King in this case shall have the year, day, and waste.

ANNATES.

Annates, seemeth to be all one with first-fruits, because the rate of the first-fruits paid of spirituall things is after one years profit.

ANNUITY.

Annuity, is a yearly payment of a certain sum of* 1.43 money granted to another in see for life or years, charging the person of the grantor onely.

For it, no action lieth, but onely a Writ of Annu∣ity* 1.44 against the grantor or his heirs, if the grantor grant for him and his heirs.

If one grant to another an annuity pro consilio impendendo; if he will not give counsell, the other may stay the annuity, because he cannot have the* 1.45 thing, for which he grants the annuity; It is a con∣ditionall grant, though there be not any word of a condition.

If one grant to one learned in the Law, or in Physick, an annuity for terme of the life of the

Grantee pro consilio impendendo to the Grantor; and the Grantor dieth, the annuity shall not cease by this, but the Grantee shall hold for ••erm of his* 1.46 life, and yet it was granted, and was executorie for the Counsell, but no Counsell may be given to the Grantor when he is dead, so that by the act of God, the Grantee is discharged of giving Counsell.

If an Annuity be granted pro consili•• impenso & impendendo, and the Grantee commit Treason whereby he is imprisoned, so that the Grantor cannot have access unto him for his Counsell, yet* 1.47 nevertheless the annuity is not determined by this non feasance, yet it was the Grantees act and de∣fault to commit the Treason, whereby the impri∣sonment grew, but the Law excuseth him; because the not giving counsell was compulsory, and not voluntary in regard of the imprisonment.

If I grant to I. S. an annuity of ten pounds a a year pro consilio impenso & impendendo; If I. S. be* 1.48 a Physician, it shall be understood of his counsell in Physick, if a Lawyer of his counsell in Law. An annuity is granted pro consilio impenso, & impen∣dendo to one Pl••mer Attorney, there is contenti∣on between the Grantor and a stranger, and the Attorney dat consilium adversario concess••ris, sed non est requisitus ad dandum consilium per conces∣sorem sibi in illa materia, whether this were a∣gainst the effect and intention of the former grant, and it was held no, but the Annuity shall con∣tinue.

APPEAL.

Appeal cometh of the French word Appeller,* 1.49 that signifieth to accuse or appeach, it is an accu∣sation, or of appeller to call, because appellans vocat reum in judicium, He calleth the Defendant into judgement.

There are three sorts of Appeals.

• 1. Of wrong to his Ancestor, whose Heir male he is, and that is only of death.
• 2. Of wrong to the Husband, and is by the wife* 1.50 only of the death of her Husband to be pro∣secuted whilest she is a widow.
• 3. Of Wrongs done to the appellants themselves, as robbery, rape, and may∣hem.

The Law prohibireth not counsell in an ap∣peal,* 1.51 as it doth in an Indictment, became there is no appeal brought, but that of common pre∣sumption, the appellant hath great malice against the Appell••e. As when the Appeal is brought by the wife of the death of her Husband, or by the Sonne of the death of his father, or that an appeal of robbery is brought for stealing of goods: but when that man is indicted at the Kings suit, the King intendeth nothing but justice with fa∣vour.

If he that is attainted of Treason or Felony be slain by one that hath no authority, in this Case his eldest son can have no appeal, for he must bring his appeal as Heir; which being ex provisie∣ne hominis, he loseth ••▪ by the attainder of his fa∣ther, but his wife shall have an appeal, because she is to have her appeal as wife, which she re∣maineth, notwithstanding the attainder, because maris & faeminae conjunctio est de jure naturae, and therefore ••s indissoluble. The reason why a wo∣man hath appeal de morte viri, is because by his death she is thought less able to live and main∣tain her self; if she marry again, her appeal is* 1.52 determined, though the new married Husband be dead within a year and day after his death that was slain. The appeal must be within the year and a day after the Deed, Cook 4 Rep. Cases of Ap. &

Indict. It shall be brought within a year after the stroke, and not the death, Stamford.* 1.53

An appeal of Mayhem is in manner but a tres∣pass, for he shall recover but damages, yet the in∣dictment shall say quod felonete mahemavit.

APPENDANT.

Appendant is any inheritance belonging to ano∣ther* 1.54 that is superiour or more worthy.

The thing Appendant ought to agree with the nature and quality of the thing unto which it is appendant, a Leet cannot be appendant to a Church or Chappel, for they are of several natures▪

A thing corporate cannot be appendant to a thing corporate, nor a thing incorporate, to a* 1.55 thing incorporate, but a thing incorporate as an advowson, to a thing corporate as a Mannour, or a thing corporate, as Land, to a thing incorporate, as an Office.

APPRENTICE.

Apprentices, quasi apprehensores, apprendre to learn, are such persons who do serve a certain time, (for the most part seven years) by pact for the learning of any Art, it is from the French word Apprendre, which signifies to learn in any Art, thence they have apprentisage, and we ap∣prentiship,* 1.56 as also apprentisage, davocas plaidans▪ for the apprentiship of the Lawyers, and thence with us some are called apprentices to the Law, and sometime apprentices to the Bar, who are those who are permitted salutare cancellos fori vel barr•••• there publickly to plead, in the time of H. 6. Fortes∣cue saith, there were in the Ins of Court and Chan∣cery, at the least 2000 of them, which prodigi∣ous number may be admired, since in the Parlia∣ment Rolls, 20 Ed. 1. Rot. 5. in dorso: it is there ordained in his verbis, De Attornatis & apprenti∣cii••,

D. Rex injunxit I. de Metingham, & sociis suis, quód ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet Comitatu de melioribus & legalioribus, & libentiùs addis∣centibus, secundum quod intellexerunt quòd Curiae suae & populo de regno melius valere poterit, & majus commodum fuerit. Et quod ipsi quos ad hoc elige∣rent Curiam sequantur, & se de negotiis in eadem Curia intromittant, & alii non. Et videtur Regi & ejus Concilio, quod septies viginti sufficere pote∣rint, apponant tamen praesati Iusticiarii plures si vide∣rint esse faciendum, vel numerum anticipent, & de aliis remanentibus fiat per discretionem eorundem Iusticia∣riorum, &c.

These Apprentices of Law were prohibited to come to the Parliament at Coventry by Henry the fourth, in the sixth year of his Reign, as ap∣pears by a Writ directed to a Sheriff thus, Nolumus autem, quòd tu seu aliquis alius vicecomes Regni nostri praedicti, aut apprenticius, five aliquis alius homo ad Legem aliqualiter sit elect, &c. therefore this Parli∣ment was called Parliamentum indoctum and had in its design nothing more then the ruine of the Church and Laws.

APPORTION.

Apportion, This word cometh of the word por∣tio, which signifieth a part of the whole, and ap∣portion* 1.57 signifieth a division or partition of a Rent or Common, and is either,

• 1. Voluntary,
• 2. Or by constraint of Law.

APPURTENANT.

Appurtenant and Appendant 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 vertue of these words pertinentiis, as Lands, Advowsons, Commons, Waies, Courts to a Mannour house, or Office. Appendants are ever* 1.58 by prescription, appurtenants may be created in some Cases, at this day.

ARBITREMENT.

Arbitrement, it is so called, because the Judges e∣lected therein may determine the controversie not according to the Law, but ex boni•• viri arbi∣trio, or else because the parties to the controver∣sie have submitted themselves to the judgment of the arbitrators, not by compulsory meanes, but ex libero arbitrio, out of their own accord. It is a power given by the parties litigant to some to hear and determine some matter in Suit between them, to whose iudgment they bind themselves to stand.

There is a diversity between it and concord,* 1.59 that an arbitrement may be pleaded, although the time of performance of it be not yet come, but a concord ought to be executed, and satisfied before the action brought, or it is no good plea.

Five things are incident to an Arbitrement.

• 1. Matter of controversie.* 1.60
• 2. Submission.
• 3. Parties to the Submission.
• 4. Arbitrators.
• 5. Rendring the award, which may be either
  • 1. By word or,
  • 2. By writing.

ARRAIGN.

Arraign, A prisoner is said to be arraigned, when* 1.61 he is indicted, and put to his tryal.

One arraigned upon an an indictment of selony* 1.62 or murder shall have no counsell, but the Judges shall so instruct him in all things that pertain to the order of pleading, that he shall run in no danger

by his mispleading, to arraign an Assise to prose∣cute by such a Writ.

ARREST.

Arrest, is derived as some think of the French* 1.63 word arrester to stay, or from the Greek word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a Decree or Sentence of the Court.

Arrest is when one is taken and restrained from his Liberty by power or colour of a lawfull war∣rant. Arrest signifieth properly, a decree of a Court, be vertue of which a man is arrested, &c.

If a man be struck, and it is doubtfull whether he will die, a man may arrest him which struck him, untill it be known whether he will die or no.* 1.64

The person of a B••ron which is a Peer of the Parliament, shall not be arrested in Debt or Trespass for his body, for none o•• the Nobility* 1.65 which is Lord of the Parliament, and by the Law ought to betryed by his Peers, shall be arrested by is body.

The Law intends that they a••hst the King with their counsell for the Common-wealth, and keep the Realm in safety by their prowesse and valour. And they are intended to have sufficient in Lands whereby they may be distrained, this Priviledge ex∣tends also to women that are Countesses by birth or marriage, if those by marriage loose not that dignity by intermarriage with one under the de∣gree of Nobility. They shall not therefore be put* 1.66 in Juries, although it be the service of the Countrey.

An arrest in the night is lawfull, for the Offi∣cer ought to arrest a man when he can be found, for otherwise peradventure he shall never arrest him, quia qui male agit odit lucem, and if the Offi∣cer do not arrest him when he findeth him and may* 1.67 arrest him, the Plaintiff shall have an action upon the Case, and recover all his loss in dammages.

No man shall be arrested upon the Sabbath day by a new act, &c.

ASSAULT.

Assault, is from the Latine word Assultus, which denoteth a leaping or flying upon a man, so that it cannot be performed without the offer of some hurtfull blow, or atleast some fearfull speech, and therefore to rebuke a Collector with foul words, so that he departed for fear without doing his Of∣fice, was taken for an assault. To strike at a man* 1.68 though he were neither hurt nor hit with the blow, was adjudged ••n assault 22 lib. Ass. Plea. 60. Assault doth not alwaies imply necessarily a hitting and therefore in trespass, for assault and battery, a man may be found guilty of the assault, and yet excused of the battery. 40 Ed. 3, 4. and 25 Ed. 3. 24.

ASSEMBLY.

Assembly, unlawfull, is where above the number of two do assemble to do some unlawfull act.* 1.69

ASSISE.

Assise sayeth Littleton, est nomen aequivocum, some∣times it is taken for a Jury, for in the record of an Assise, the word is Assisa venit recognitura, &c▪ is the same as Iurata venit recognitura, and in a Writ of right the Tenant putting himself on God, and the great Assise is the same as upon God and his Countrey, viz. the Jury, but most proper∣ly it is taken for a Writ or Action, and it lieth where any man is put out of his Lands, Tene∣ments or any profit to be taken in a certain place, and so disseised of his Freehold. At the common Law assise was remedi••m maxime festinum, for in this the Defendant shall not pray the aid of any but the King, also maxime beneficiale, for in no action at the Common Law a man shall recover

Land it self, and damages, but only in an Assise against the disseisor.

There be four Assises in an Assise of Novell dis∣seism, of Mort dancester, of darreine presentment, and of Utrum.

Assise cometh of the Latin word Assideo, which is ••o associate or sit together.

ASSUMPSIT.

Assumpsit, (of the Lat. assumptio) is a volun∣tary* 1.70 promise made by word, by which a man assumeth and taketh upon him to perform or pay any thing to another.

It holds good in Law, when there is something laid down in consideration: For a promise with∣out consideration will not bind in Law to perfor∣mance, but is called nudum pactum ex quo non oritur actio.

ATTACHMENT.

Attachment, signifieth a taking hold, or appre∣hending by commandement of Writ, from the French word attacher.

It differs from an arrest or Capias, for that proceedeth out of the inferiour Courts by precept and Attachment out of the Superiour Courts. By Precept or Writ, an arrest is only upon the body* 1.71 of a man, an Attachment is more general, and ex∣tends to the taking of goods. Kitchin saith a man may attach a Cow.

ATTAINDER.

Attainder, is when a man hath committed Trea∣son or Felony, and after conviction judgment hath passed upon him, he is then said to be attaint∣ed, and such attainder hath these effects, that his blood is so stained and corrupted thereby, that he is said to be convicted when the Jury hath found him guilty, but not attainted till judgment.

If a man doth adhere to the Kings enemies, and die, or be slain before a tainder, he shall forfeit nothing, nor shall his blood be corrupt. This was the case of Iack Cade, who being slain in open Rebellion could no way be punished, or forfeit any thing, and therefore in the 29^th year of H. 6. cap. 1. was attainted by Parliament; be∣fore that time it was rare to attaint a man after his death, but since frequent.

• 1. His Children cannot be Heirs to him, nor any* 1.72 other Ancestor.
• 2. If he were noble and gentle before, he and all his Children and Posterity are by his at∣tainder made base and ignoble in respect of any Nobility or Gen••ry which they had by their birth.
• 3. This corruption of blood is so high, that regularly it cannot be possibly salved but by Authority of Parliament. The Kings Letters Patents will not do it.

ATTAINT.

Attaint, is a Writ that lieth where a false verdict is given in Court of Record upon an issue joyned by the parties and of antient Wri∣ters it is called breve de convictione, and is de∣rived of the participle tinctus, or attinctus, be∣cause if the p••rty Jury be attainted of a false Oath, they are stained with perjury, and become infa∣mous* 1.73 for ever, for the judgment of the Com∣mon Law in the attaint importeh eight great and grievous punishments.

• 1. Quòd amittat liberam Legem in perpetuum, he shall never be received to be a witness, or of any Jury, nor can he be Champion in a Writ of Right.
• 2. Quòd fo••is faciat omnia▪ bona & catalla sua.
• ...

• 3. Quòd terrae & tenementa in manus Domint Regis capiantur.
• 4. Quòd u••••res & liberi extra domus suas ejice∣rentur.* 1.74
• 5. Quòd domus suae prost••entur.
• 6. Quòd arbores suae extirpentur.
• 7. Quòd p••ata sua arentur.
• 8. Quòd ••o••••••ra sua carceri mancipentur.

It is a Substantive made (say some) of the French verb atteindre, id est, asse qui or attinge∣re, because he is catched and overtaken, rather of the French teindre, in Latin ••in••ere to stain, dye, colour, unde Gal. Teint Latin tinctus, as we say, he is attainted, or tainted of Treason, i. e. stain∣ed.

ATTORNEY.

Attorney, is an antient English word, and signifi∣eth one that is set in the turn, stead, or place of ano∣ther. Of these some be private and some be pub∣lick,* 1.75 as Attorneys at Law, whose Warrant from his ••laster is, ponet ••••••o su•• talem Attornatum suum, which setteth in his turn or place, such a man to be his Attorney. Those that be private are some∣times by writing, sometimes by word, to make or take Livery or Possession, to make claim to Lands, to enter to sue, &c. And it is a Rule, that where the Attorney doth less then the Au∣thority* 1.76 and commandment, all that he doth is void, but where he doth that which he is autho∣rized to do, and more, it is good, for so much as is warranted, and void for the rest. If a man be disseised of black Acre, and white Acre, and a Warrant of Attorney is made to enter into both, and make Livery, and the Attorney enter∣eth only into one and maketh Livery, it is void for all. So if a Letter of Attorney be made to

deliver seisin upon a condition, and he doth it without a condition, it is void, because he did less then his Authority. But if one have Autho∣rity to deliver seisin to I. S▪ and he do it to I. S. and I. N. that is good as to I. S. because more then his Authority.

ATTOURNEMENT.

Attournement, is an agreement of the Tenant* 1.77 to the grant of the Seignory or of a Rent, or of the Donee in tail, or Tenant for life or years, to a grant of a reversion, or remainder made to ano∣ther. It is an antient word of Art, and in the Common Law signifieth a torning or attorning from one to another, we use also attornamentum as a Latin word, & attornare to attorn. A grant to the King, or by the King to another, is good without attornment by his Prerogative. Also where one doth grant a Rent, Reversion, Re∣mainder, Service, or Seignory to another by way of devise, by a last Will and Testament. So when the thing granted doth pass by way of use, as where one l••vieth a Fine, bargaineth and selleth, hath Inrolement or Covenants to stand seised of a reversion, &c. to the use of another there needeth no attornment▪ Conusee of a fine, of a seigni∣ory, rent, reversion, &c. before attornment, can∣not maintain an Action of Wast, nor a Writ of Entry ad Communem Legem, or in Casu promis••ae, or in consimili Casu, upon the alienation of the Tenant escheate upon the dying of the Tenant without heir, or ward upon his dying his Heir within age therefore by force the ingrosment of the fine, if it be of a Seigniory, he may compell the Tenant to at∣torn by a Writ called a Per que servitia, if of a rent, by a Writ called a Quem redditum reddit, and if of a reversion, or remainder of a Tenement

for life, then by a Writ called a Quid Iuris clamat.

AWARD.

Award of the French word agarder, which is to decide or judg.

Which is either

• 1. Interloqu••tory.
• 2. Or Definitive.

AVOWRY.

Avowry, is a manifestation or maintenance of a thing formerly done, and cometh of a French word Advouer, and it is used in our Law when one hath taken a distress for Rent or other things, and he who is distrained sueth a Replevin, and he that took the distress doth justifie.

Auxilium ad filium militem faciendum, & ad* 1.78 filium maritandum, is a Writ directed to the She∣riff of every County where the King or other Lord hath any Tenants to levy of them reasonable aid towards the Knighting of his Sonne at 15 years or the marriage of his daughter at 7, at the Com∣mon Law it was not limited, yet ought to have been* 1.79 rationabile auxilium, but now it is limited to 20 s. for a Knights Fee, and so for 20 l. per annum in soccagio.

AYDE.

Ayde, is where a particular ••••••••rietor is implead∣ed and not being able to defend the thing for which he is impleaded, he prayeth ay••e of some better able, and it is two waies.

• 1. In a Plea reall teners ••••tit auxilium de A S. sine quo respond ••e n•••• ••otest* 1.80
• 2. In a Plea 〈…〉〈…〉all, and then the Defendant pet•• auxilium ad manulerendum exititium.

B.

BAIL.

BAil or ballium is safe keeping or protection, and* 1.81 thereupon we say, when a man upon surety is delievered out of prison, trad••tu•• in ballium, he is delivered into bail, i. e. into their •••••••• keeping, or protection from prison, it is derived from the French word baille••, and that also cometh of the Greek 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, they both signifie to deliver into hand, for he that is bailed, is taken out of prison, and delivered into the hands of his friends.

BAILEMENT.

Bailement, is a delivery of things, writings, goods, or stuff to another.

The Intendment of Law in Cases of Bailement is that it resteth indifferent, whether he be guilty or not untill tryal.

BAILIFF

Bailiff, This word Baille (as some say) cometh of the French word Bailiff in Latin Bailivus, but* 1.82 in truth, Bailie is an old Saxon word, and sig∣fieth a safe Keeper or Protector, the Sheriff that hath custodiam comitatus, is called balivus, and the County baliva sua, when he cannot find the Desendant, he returned, non est inventus in bali•••• mea.

BANK.

Bank, is a Saxon word, and signifieth a bench, or high seat or a Tribunal, and is properly ap∣plyed to the Justices of the Court of Common Pleas, because the Justices of that Court sit there* 1.83 in a certain place, and legall Records term them Iusticiarii de ban••••. Another Court there is called the Kings Bench, both because the Records of

that Court are stiled coram Rege, and because Kings in former times have often personally sate there.

BARGAIN.

Bargain, and sale is when a recompence is gi∣ven by both the parties to the bargain. By it* 1.84 Lands may pass without livery of S••isin, if the bar∣gain and sale be by deed indented, sealed and in∣••olled.

A warranty made upon the concluding of a bar∣gan and sale doth bind, but not if the warranty be made after the bargain concluded. If a man sell unto one certain cloth, and warrant it to be of such a length, and it is not of that length, he which buyes the cloth, may have an action of deceit against him, but if the warranty be made at some other time after the bargain, he may not have such* 1.85 a Writ, unless the warranty be in writing.

The Grant or bargain and sale of the profits of Land is the Grant of the Land it self, for the pro∣fits of the Land, and the Land it self are one and the self same thing in substance, but one may lease his Park, excepting the wood and under∣wood,* 1.86 and his Mannor, reserving the Warren, but the soil of the wood and Warren shall go to the L••ssee. If I lease a farm, excepting the wood, or for so much of this farm as is woodland, and may by the name of a wood be demanded in a precipe the soil it self is excepted, but otherwise it is of pasture or arrable ground, which hath wood grow∣ing upon it. Cook l. 5. Iors Case, & l. 11. Laifords Case.

BARRE.

Barre, is a word common as well to the English as to the French, of which cometh the Noun* 1.87 a Barre Barra. It signifieth legally destruction for ever, or taking away for a time of the action

of him that hath right, it is called a Plea in Barre when such a Barre is pleaded.

BARRETOR.

Barretor, is a common mover and exciter or* 1.88 maintainer of suits, quarrells or parts either in Courts or else where in the Countrey. In Courts of Record or others, as in the County, Hundred, or other inferiour Courts. In the County in three manners. 1. In disturbance of the Peace, in ta∣king or keeping of Possessions, or Lands in con∣troversie, not only by force, but also by subtilty. 2. And most commonly in suppression of truth and right. 3. By false inventions and sowing of ca∣l••mniations, rumours▪ and reports, whereby dis∣cord and disq••iet may grow between neigh∣bours.

A common Barretor, or Barre offender, is a common quareller, mover, or maintainer of quar∣rels, either in the Court or Countrey. Some de∣rive it of the French word Barrateur which signi∣fieth* 1.89 a deceiver, others of the Latin word Baratro, which signifieth a vile knave or unthrift, some of two legall words Barra, which signifieth the Barre in Courts, where causes are debated, and rettum, which signifieth a crime or offence. He is semina∣tor litium, & pacis Domini Regis perturbatur.

BASTARD.

Bastard, is he that is born of any woman not ma••••ied, so that his father is not known by the* 1.90 order of the Law, and therefore by the Law he is sometimes called filius nullius, the son of no man, sometimes filius populi the sonne of every man. Cui Pater est populus, Pater est sibi nullus & omnis.* 1.91

Cui Pater est populus, non habet ille patrem.

The civil Law doth legitimate the Child born be∣fore matrimony, as well as that which is born

after: and giveth unto it succession in the Parents inheritance. But to the Child born out of matri∣mony, the Law of England alloweth no succession The Civilians say, Matrimonium subsequens tol∣lit peccatum prius; matrimonium subsequens le∣gitimos sacit quoad sacerdotium; (because they are legitimate by the Canon Law) non quoad suc∣cessionem, propter consuetudinem regni, quae se habet in contrarium.

The Bishops were instant with the Lords, that they would consent, That all such as were born asore matrimony should be legitimate, as well as they that be born within matrimony, as to the suc∣cession of imheritance; because the Church acce∣pteth such for legitimate. Et omnes Comites & Barones una voce responderunt, Nolumus leges An∣gliae mutare, quae huc usque usitatae sunt & appro∣batae: And all the Earls and Barons with one voice answered, That they would not change the Laws of the Realm, which hitherto had been used and approved.

If a man take a wise, which is great with child* 1.92 by another, which was not her husband; and af∣ter the child is born within the Espousals, then it shall be said the child of her husband, though it were but one day after the Espousals solemnized, according to that, Pater est quem nuptiae demon∣strant, for whose the Cow is (as it is commonly said) his is the Calf also.

There was an Act made ann. 21. Iacobi Regis, to prevent the destroying and murthering of Ba∣stard children, and it was continued. 3. Caroli c. 4. If any women be delivered of any issue, which* 1.93 by the Laws of this Realm should have been a Bastard, and shall endeavour by drowning, or se∣cret burying, or any other way by her self or o∣thers to conceal the death thereof, whether it

were born alive or not, the Mother so offending shall suffer death as in case of murder, except ••he can prove by one witness at least, that the same child was born dead.

A Bastard killeth his Mother, this seemeth p••••••y* 1.94 treason, for the Mother is certainly known, but a Bastard shall not be bound, though the Father were a bondslave, for the Law doth not acknow∣ledg any Father in this case.

A Bastard having gotten a name by reputation,* 1.95 may purchase by his reputed or known name to him and his heirs, although he can have no heir, unless it be the issue of his body.

A man makes a Lease to B. for life, remainder to the eldest issue male of B. and the h••i•••• males of his body, B. hath issue a Bastard son, he shall* 1.96 not take the remainder, because in the Law he is not his issue, for qui ex damnato ••••i•••• nascuntur int••r liberos non comput••ntur. The ••ust••ces of* 1.97 Peace shall commit ••ewd women which have Bastards to the house of Correction, there to be punished and set on work, during the term of one whole year, there to remain till she can put in good Sureties for her good behaviour not to offend so again.

BATTERY.

Battery, is the wrongfull beating of one; But if a man will take away my goods, I may lay my hands upon him and disturb him, and if he will not leave, I may beat him, rather then he shall carry them away, for that is no wrongfull beat∣ing Menacing beginneth the breach of peace,* 1.98 assaulting increaseth it, and battery accomplish∣eth it.

BUGGERY.

Buggery, committed with manking or beast is* 1.99 selon•• without benefit of Clergy, it being a sin against God, Nature, and the Law, and in antient times such offenders were to be burned by the Common Law.

One describeth this offence to be carnalis c••upula cont••a 〈…〉〈…〉, & haec vel per confusionem sp••ci∣••••um, sc. a man or a woman with a bru••t beast, vel 〈…〉〈…〉, sc. a man with a man, a woman with a woman, See Levit. 18. 22, 23.

BURGAGE.

Burgage, in Latin Burgagium, is derived of Bur∣gus* 1.100 a Town, and it is called a Burgh or Borough because it sendeth Burgesses to Parliament. The termination of this word burgagium signifieth the service, whereby the Burgh is holden.

BURGLARY.

Burglary, is usually desined the night-breaking* 1.101 of a house, with an intent to steal or kill, though none be killed, nor any thing stolen, and so it is of a Stable, pa••cell of a house, but not of breaking ones Close to kill him, nor ones House, if it be but to beat him, nor though it may be to kill him, if it be in the day time. It may be Burglary if one enter into a house and break it not, as if he come in at the chimney, or by a false key, and if he break the house, though he enter not.

Richard Vaux brings an appeal of Burglary, against Thomas Bro••k, and declares that the De∣fendant domum mansionalem praedictam Richardi Vaux felonice & burgaliter fregi••, the Declaration was found insufficient because of this word bur∣galiter, but it ought to be burgulariter, or burgurali∣ter, and the offence is called Burglary or burgulary,

and not Burgale, burglariter est vox artis, as se∣l••nice, m••r••ravit, rapuit ex ambium, wa••ran∣tizare, and divers others, which cannot be ex∣pressed by any Periphra••i▪ or circumlocution.

If a man have a mansion house, and he and all his family upon some accident are forth of the house part of the night, and at the same time, one come and breaks the house to commit 〈…〉〈…〉, this is Burglary, although no man be there, for this is domus mansionalis.

So if a man have two house••, and inhabit some∣times* 1.102 in one, and sometimes in another, and ha••h sevants in both, and in the night when his servants are forth, the house is broke by Thieves, this is burglary.

All Indictments of burglary are quòd 〈◊〉〈◊〉* 1.103 fregit, and the night to this purpose begins at Sun setting, and continueth to the Sun rising.* 1.104

Burglar shall not have his Clergy.

BURGH ENGLISH.

Burgh English, or Borough English, is a custom* 1.105 in some antient Borough, that if a man have issue divers Sonnes, the youngest Sonne shall inherit, and have all the Lands and Tenements that were his Fathers within the Borough: The reason of this (as Littleton saith) is because the youngest is presumed in Law to be least able to shift for himself.

If the Lands of the nature of Borough English be let to a man and his Heirs during the life of I. S. and the Lessee dieth, the youngest Sonne shall en∣joy it.

A man seized in see of Lands in Burgh En∣glish, after the Stature of 27. •• 8. makes a feof∣ment to divers persons in fee, to the use of himself and the He••rs males of his body begotten, Secun∣dum

cursum communis legis, and after dieth seized* 1.106 according, ha••ing issue two Sons, the eldest enters and holds out the younger; yet the youngest shall have it by descent, notwithstanding the words be∣fore.

Of Land in Borough English, or Gavel▪kind,* 1.107 the Son cannot endow his wife ex assensu Patris, because by possibility, he shall not continue Heir: the Father shall not have the Ward of his Son and H••ir apparant of such Lands holden by Knights service, because by possibility he shall not continue Heir.

C.

CAPITE.

CApite, is a Tenure that holdeth immediately of the King, as of his Crown or Person, that is, as he is King. A man may hold of the King, and yet not in Capite, by means of some ho∣nour,* 1.108 Castle or Mannor belonging to the Crown, whereof he holdeth his Land.

Tenure in chief is so called, per excellentiam, be∣cause as the head is the principall part of the body, so this is the highest and most honourable service in the Law, because it is done to the chief Head of the Realm, and takes its original creation by the King himself.

The Tenures in chief began in antient time, upon the grants of Kings to defend their persons, and their Crown and Regality, against Enemies and* 1.109 Rebels.

The King at this day may make a Tenure of him in chief; if he reserve this to his person, and as a Tenure in gross; but if he reserve the Tenure as of* 1.110 his Mannour, or Honour, or Castle, and not about the person of the King, then it is not ••e••••re •••• Capite.

CASTLE.

Castle, no subiect can build a Castle or House o•• strength imbattelled, or other fo••tress d••••e••••ible▪ without the l••cense of the King, for the dange•• which might ensue, if every man at his plea••u••e* 1.111 might do it.

CHALLENGE.

Challenge, is a word common as well to the En∣glish as to the French, and sometimes signifieth to claim, sometimes in respect of revenge, to chal∣lenge into the field: sometimes in respect of par∣tiality or insufficiency to challenge in a Court per∣sons* 1.112 returned on a Jury. Challenge made to the Jurors, is either made to the Array or to the Poll▪ Challenge to the Array, is where exception is ta∣ken to the whole number, as impa••nelled partial∣ly; challenge to or by the Poll, is where excep∣tion is taken to one or more, as not indifferent.

By the Common Law, the prisoner upon an In∣dictment or appeal might challenge peremptorily* 1.113 thirty 〈…〉〈…〉▪ which was under the number of three Juries: 〈…〉〈…〉 now by the Statute of 22 H. 8. the number is reduced to twenty in petty Treason, Murder and Felony. But by the Statute of 1 and 2 Ph〈…〉〈…〉 and M〈…〉〈…〉ry, the Common Law is revived; for a〈…〉〈…〉reason, the prisoner shall have his chal∣lenge to the number of 35. But if he be a Lord of Parliament, and a Peer of the Realm, and is to be ••••ied by his Peers; he shall not challenge any of his

Peers at all, for they are not sworn as other Ju∣rors be, but find the party guilty, or not guilty; upon their Faith and Allegiance to the King, and th〈…〉〈…〉e Judges of the fact, and every of them 〈…〉〈…〉atly give his judgment beginning at the low••••t. But a sub••ect under the degree of Nobi∣li••y,* 1.114 may in case of Treason or Felony challenge 〈…〉〈…〉 as many he can, if he can allege ca〈…〉〈…〉 or malice.

Principall challenges to the Poll may be reduced to four Heads.

• 1. Propter honoris respectum, as any Peer of the ••••alm o•• Lord of Parliament, for these in respect of honour and nobility, are not to be sworn on Juries; and if neither party will challenge* 1.115 him, he may challenge himself, for by Mag∣na Charta it is provided, quod nec super cum ibi••••••s, nec super cum mittemus, nisi per legale judi••••um pa••ium suorum, aut per legem terrae. A Peer of the Realm shall not be impan∣nelled, where any of the Commons is to have a tryal.
• 2. Propter defectum, for want or default,
  • 1. Patriae, as alieus born.
  • 2. Libertatis, as Villains or Bondmen.
  • 3. A••nui census, i. e. liberi tenementi; as if any of the Jury impannelled cannot di∣spend 40 s. by the year of his own Free∣hold.
  • 4▪ Hundredorum, vicini vicinorum facta prae∣sumuntur s••ire.
• 3. Propter affectum, for affection or partiality, as if the Juror be consanguineus of blood or kind∣red to either party, this is a principall challenge; for the Law presumeth, that one kinsman doth fa∣vour another before a stranger. If either party la∣bour the Iuror, and give him any thing to give his

• verdict, this is a principall challenge; but if either party labour the Jury to appear, and to do his conscience; this is no challenge at all, but lawfull for him to do it.
• 4. Propter delictum, for crime, it being a ma∣xime in the Law Repellitur a sacramento in∣famis.

CHAMPERTY.

Champerty, Campi par. It is a bargain with the* 1.116 Demandant or Tenant, Plaintiff or defendant, to have part of the thing in suit, i•• he prevaile there∣in for maintenance of ••im in that suit. Every Champerty is maintenance, but every maintenance not Champerty, for Champerty is but a species of maintenance, which is the genus.

CHAMPERTERS.

Champerters vel cambi participes, sunt qui per* 1.117 se, vel per alios placita movem, vel movere faci∣unt, & ea suis sumptibus prose ••uuntur, ad cam••i partem, vel pro parte lucri habenda, stat. anno 33. Ed. 1.

CHANCE-MEDLEY.

Chance-medly, or homicide per in••o••tunium, is when one is slain casually, and by misadventure. without the will of him that doth the act, of this no Appeal doth lie.

It is fitly so called, for in it men are medled (or committed) together by meer chance, and upon some unlooked for occasion, without any for∣mer* 1.118 malice.

It is corrupted from Chaudmelle, which signi∣eth hot or ••suddain debate, rixa in the Civil Law, whence in Scotland Chaudmelle is opposed a∣gainst ••orethought felony, as manslaughter with us against murder, Seldens notes upon Heng∣ham.

If a man casteth a stone, or shooteth an arrow and another that passeth that way is killed▪ this manner of killing is manslaughter, by misadven∣ture or chance-medly, for which he which kil∣leth shall have his pardon of course, as appeareth by the Statute of 6. Ed. 1. c. 9. and he shall forfeit his goods in such manner, as he that shall kill a man in his own defence: for the life of a man is a thing precious, and favoured in the Law, so that a man which kills another in his own defence, or per infortuntum, without any intent, this is not felony, and yet in such cases he shall forfeit his good▪ and c••a••tels, for the great regard that the Law hath to the li••e of a man. Cook 5 Rep. Cases of execution.

But if he that committeth this manslaughter, was doing an unlawfull act, as casting stones in an high∣way where men usually pass, or shoo••ing Arrows in a Market-p••ace, or such like, whereby a man is killed, it is fel••ny at least.

CHANGE.

Change, If two Parsons of several Churches change their Benefices, and resign them into the* 1.119 hands of the Ordinary to that intent, and the Pa∣trons make Presentations accordingly, and one of them is admitted, instituted and inducted accordingly, and the other is admitted and insti∣tuted, but dieth before Induction, the other Parson shall not retain the Benefice in which he was inducted, for the change is not perfected, being not executed.

CHARGE.

Charge, is where a man granteth a Rent issuing* 1.120 out of his ground, and if the Rent be behinde, it shall be lawfull for him, his Heirs and Assigns to distrain, till the Rent be paid, this is called a

Rent-charge. It is called a Rent-charge, because the land for payment thereof is charged with a distress. Cook on Lit.

CHARTER.

Charter, or Deed, is so called from the Latin Charta, quâ scribi solebant. It is called Magna Charta, not for the length or larger e••s of it, (••or it is but short in respect of the Charters granted* 1.121 of private things to private persons) but it is called the great Charter, in respect of the great weightiness, and weighty greatness of the mat∣ter contained in it, in ••ew words, being the ••oun∣tain of all the fundamental Laws of this Realm, and therefore it may be said of it, that it is Magnum in parvo.

The Nobles and great Officers were to be sworn to the Observation of it.

Magna fuit qu••ndam Magnae reverentia Chartae.

It is the quintessence of the whole bulk of the politicks of our Nation, the Charter of the peo∣ples right, the hedg of their property, the strength of their security.

It hath been confirmed above thirty times, and* 1.122 commanded to be put in execution, and was bought with the blood of our Nobility, and English An∣cestors in those troublesome times of King Iohn and Henry his son. It is in our Books called Charta libertatum, & communis libertas Angliae or liber∣tates Anglis, Charta de libertatibus, magna Charta.

Charters of Lands are Writings, Deeds, Evi∣dences and Instruments, made from one man to another, upon some estate conveyed or passed be∣tween them of Lands, or Tenements, shewing the

Names, Place, and quantity of the Land, the e∣state,* 1.123 time and manner of the doing thereof, the parties to the estate delivered and taken, the wi••∣••••••••es p••••••ent at the same, with other circum∣stances.

Charters are called muniments à muniendo, quia* 1.124 muniunt, •• defendunt haereditatem.

The Purchaser of Land shall have all the Charters, Deeds and Evidences, as incident to the Lands, & ratione terrae, that he may the better defend the Land himself, having no warranty to recover in value, for the Evidence of i•• are as it were the smews of the Land, and the Feoffor being not bound to warranty, hath no use of them. Also he shall have all Deeds and Evidences, which are materials for the maintenance of the Title of the Land.

CHATTELS.

Chattels, is a French word, and signifieth goods,* 1.125 which by a word of art we call catalla, it signifieth all goods moveable, and unmoveable, except such as be of the nature of freehold, or parcell thereof.

Some hold that ready money is neither goods nor Chattels, nor Hawks and Hounds, because they be ••erae naturae, Dr. Cowell (in his interpreter) gives this witty reason, why Money is not to be ac∣counted goods or chartels, because, saith he, money of it self is not a thing of worth, but by the con∣sen••* 1.126 of men, and so for their easier traffick or per∣mutation ••t things necessary for their life.

Goods or Chattels are either,

• 1. Personal, as Horse, and other Beasts, houshold∣stuffs, b••••ws, weapons, &c. called personall, because for the most part they belong to the person of a man, or because they are to be re∣covered by personal actions.
• ...

• 2. Reall, because they concern the reality, a•• terms for years o•• Lands or Tenements, ward∣ships.

The word goods in the Common Law compre∣hends such things as be either with, or with out life, as a Horse or B••••. 〈…〉〈…〉.

Bona dividu••tur •••• 〈◊〉〈◊〉 & immobilia, mo∣bilia* 1.127 rursum divid••••tur •••• •••• qu•• s•• movent, •••• quae ab aliis moventia, but by the Common Law no estate of Inheritance or Freehold is com∣prehended under these words, b••••a & ca∣talla.

The Civil Law sometimes puts a difference be∣tween moventia & mobilia, understanding by mo∣ventia* 1.128 such goods a•• actively and by their own ac∣cord do move themselves, is horses, oxen, sheep, and cattell, and by mobilia such goods as pas••ively are moveable, or removeable from one place to ano∣ther, as apparrel, pots and pans, yet regularly and for the most part, by moveables are indifferently understood goods both actively, and pas••ively move∣able. Immoveables are those goods which other∣wise be termed chattels reall; for that they do not immediately belong to the person, but to some o∣ther thing by way of dependancy, as Trees grow∣ing on the ground, or fruit growing on the Trees, or a Lease or Rent for term of years, but not Lands, Tenements, or frank-tenement.

CHEVAGE.

Chevage, is a sum of money paid by villains to their Lords in acknowledgment of their bondage for their several heads, whence it is called Cheva∣gium. Chevage of the French word Chief, as if it were the service of the head, of which Bracton ••aith, Chivagium dicitur recognitio in signum sub∣jectionis & Domini de Capite suo, Lambert writeth

it chivage, but it is more properly written chief-age.

CLERGY.

Clergy, is defined to be an antient liberty of the* 1.129 Church confirmed in divers Parliaments. It is when a man is arraigned of selony, and such like before a temporal Judg, and the Prisoner pray∣eth his Clergy, that is, to have his book, then the Judg shall command the Ordinary to try if he can read as a Clerk in such a book and place, as the Judg shall appoint, and if the Ordinary cer∣tine the Judg that he can, then the prisoner shall not have judgment to lose his life. The Book was* 1.130 allowed to the Clergy, for the scarcity of them to be disposed of in religious houses; it was allow∣able in antient times for all offences whatsoever they were, except treason and robbing of Churches of their goods and ornaments. But by many Statutes made since, the Clergy is taken away, for mur∣ther, burglary, robbery, purse-cutting * 1.131 horse∣stealing

If the indictment be only murdravit, without adding ex malitia praecogitata, the offender shall have his Clergy. If he will read as a Clerk, he ought to read all the verse, but although he do not read at the beginning, but first spell, and after read, yet he shall have allowance as a Clerk. in savo∣rem vitae.

Fortescue saith, that if a selon ••ail to read, for which he is judged to be hanged, yet in savorem ••i••ae, if he demand a Book afterward under the Gallows, and read, he shall have the be∣nefit of his Clergy. And yet it is to be supposed, he had no Ordinary at that time to demand whe∣ther he could read, but this Case ought to be specially taken, viz. where the selon is judged

before the Justices of the Kings Bench, for if he be judged before the Justices o•• the Goal delivery it is otherwise, because the••r Com〈…〉〈…〉on •••••••• with the••r Session.

Clergy was allowed to an accessory to the* 1.132 stealing of Horses and 〈…〉〈…〉, because the Sta••ute shall be taken most 〈…〉〈…〉, which speak•• ex∣pressly but of the princi••••ll.

Although he hath been i••stru••••ed and taught in the Goal to know his Letters, and to read, this shall serve him for hi〈…〉〈…〉, but the Goaler shall be punished for this.

Clergy is grantable but once, to one person, ex∣cept* 1.133 he be within holy orders, for such a man may have it often. 4. H. 7. c. 13. and 1 Ed. ••. 12 Lord Stamford.

COLLEGIUM.

Collegium est societas plurium corporum inter se di∣stantium, & dicitur Collegium propriè cum simul ha∣bitant, quoniam.

• 1. Simul colleguntur, & Collegium constituitur in Ec∣clesia, vel per privilegium concessum à superiori ••••st ••undatam Ecclesiam.
• 2. Vel sc. à principio ••uit ordinatum quod Ecclesia esse•• collegiata.
• 3. Vel sc. longo tempore vi••cerint collegialiter, & simul quasi possessione ••••ll••gii.

Item Ecclesia potest ••ieri Collegiata cum consen∣su Episccpi 〈…〉〈…〉 Patroni 10 Eliz. 13. Dyer.

Colour of Office, is alwaies taken in the worst part, and signifieth an evil done by pretence and coun∣tenance* 1.134 of an Office. But virtute officii or ratione officii, by reason of the office, and by vertue of the office, are taken alwaies in the best part, and imply that the office is the just cause of the thing; and the thing is pursuing the office.

If an Officer will take more for his fees then he ought, this is done ••••lo••e ••••••••••i sui; but yet it is not part of his Office: and i•• i•• called extortion, which is worse then robbery; because that is apparant, and hath the vi•• o•• o•• vice: but this appeareth un∣der the v••••age of vertue▪ and so is more hard to be avoided, and therefore the more detellable.

CONDITION.

Condition, is a rest ••int o•• bridle, annexed to a thing, so that by the not▪ performance thereof the* 1.135 party to the condition shall receive pre••udice and loss, and by doing of the same, commodity and ad∣vantage.

If a man give Lands to another, and to the Heirs* 1.136 males of his body, on condition that if he die with∣out He••r female of his body; that then the Donor shall re-enter; this condition is utterly void, for he cannot have an Heir female, so long as he hath an Heir male.

If a man morgage his land to W. upon condition, that if the morgagor and f. S. pay 2••. ••. at such a day to the morgagee, that then he shall re-enter; the morgagor dyeth before the day, I. S. payes* 1.137 the money to the morgagee; this is a good perfor∣mance of the condition, and yet the Letter of the condition is not performed: but if the morgagor had been alive at that day, and he would not pay the money, but refused to pay the same; and I. S. alone had tendred the money, the morgagee might have refused it.

If Feofment in see be made upon such a condi∣tion, that the feoffee shall not alien his Land to any, this condition is void, because when a man is so in••••offed of Lands or Tenements, he hath power* 1.138 to alien them to any person by the Law. For if such a condition should be good, then it should de∣prive

him of all the power which the Law gives him, which is against reason: and therefore this condition is void. But if the condition be such, that the ••eo ••ee shall not alien to such a one, na∣ming his name, or any of his heirs, or the issue of such a one, or the like, such conditions are good: yet the King may give land in see upon condition not to alien. Cook l. 5. Knights Case. & 21. H. 7. 7.

CONFIRMATION.

Confirmation, comet•• of the verb confirmare quod est firmum facere; and therefore it is said, that confirmatio omnes supplet defectus, licet id qu••d actum est, ab initio non valuit. It is a conveyance* 1.139 of an estate or right in esse, whereby a voidable e∣state is made sure and unavoidable, or whereby a particular estate is increased.

It is a strengthening of an estate formerly had, and yet voidable, though not presently void.

Qu••libet confirmatio aut est perficiens, ••rese••ns, aut diminuens.* 1.140

• 1. Per••i••iens, as if feoffee upon condition make feo••••ment over, and the feoffer confirm the e∣state of the second feoffee; so if disseisee confirm the estate of the disseisor or his feof∣fee.
• 2. Crescens, doth enlarge the state of a Tenant, as Tenant a•• will to hold for years, or Tenant* 1.141 for years, to hold for life.
• 3. Diminuens, as where the Lord of whom the land is holden, confirms the estate of his Tenant to hold by a less rent.

CONFISCATE.

Confis••ate, this word ••ometh from the Latin* 1.142 word fiscus, which (as 〈◊〉〈◊〉 saith) originally signified an hamper; but metonymically the Em∣perours treasure, because it was antiently kept in hampers; and such good•• as were forfeited to the Emperours Treasure, or any offence, were b••na 〈◊〉〈◊〉, and so do we ca••l those goods that are forfeited to the Kings Exchequer.

••an Appeal of ••••bbery be brought, and the P••aintifi leaveth out some of his goods, he shall not be received to enlarge his Appeal; and be∣cause there is none to have his good so left out, the King shall have them as confi••cate, according to the old rule. Quod non capit Christus, capit ••iscus.

CONSPIRACY.

Conspiracy, The purpose or intent of a man without the act is not punishable by the Law; and although that for conspiracy a man may be punish∣ed in the Star-chamber; yet this is by the absolute power of the Court, and not by the Ordinary course of the Law.

CONSTABLE.

Constable, comes of two old Saxon word, Kin∣ning, which signifieth King, and Stable, stability; as the stability of the King and Kingdom.

The Common Law requireth that every Con∣stable* 1.143 be Idoneus homo, i. ••. apt and fit for exer∣cise of the said Office; and he is said in Law to be

Idoneus, which hath three things, Honesty, Sci∣ence, and ability:

• 1. Honesty, to execute his Office truly without malice, affection, or partiality.
• 2. Science to know what he ought to do duly.
• 3. Ability as well in substance or estate, as in body* 1.144 to execute his Office, when need is, diligen∣ly, and not through impotency o•• indi••ence to neglect it; for if poor men which live by the labour of their hands, be ele〈…〉〈…〉 to* 1.145 this Office; they will rather per••••it Felons and other Malefactors to escape, and neglect the execu••ion of their Office in other points, then intermit their labour, by which their w••••e and children live.

The Office and authority of high and petty Con∣stables remaineth, nowithstanding the death of the King, for their authority is by the common Law and not by commission; so also of Mayor••, ••••••∣liffs in Towns corporate, &c.

CONTRACT.

Contract, (called by the Civilians acceptilati) is an agreement between parties concerning goods or land•• for money or other recompence: It is called a contract because by covenanting diversae v••luntates in unum contrahuntur. It is a bargain* 1.146 or covenant between two parties, where one thing is given for another, which is called Quid pr•• Q••, as if you sell my horse for twenty Shillings, you may keep the horse till the other have paid the money. The want of recompence causeth it to be but nudum pactum, unde non oritur ••••••••••. For if a man make promise to me, that I shall have twenty shillings, and after I ask it, and he will not deliver it; yet you shall never have any action to recover it, because this promise was no contract,

but a bare promise; but if any thing were given for the twenty shillings, though it were but to the value of a penny, then it had been a good con∣tract.

If he to whom the promise is made, have a charge by reason of the promise, which he hath also performed, then in that case he shall have an Action for the thing that was promised, though he that made the promise have no worldly profit by it. As if a man say to another, Heal such a poor man of his d••sease, or make an High-way, and I shall give thee thus much; and* 1.147 if he do it, I think an Action lyeth at the Com∣mon Law.

This word (pro) makes a contract conditi∣onall; as if I Covenant to make an estate pro maritagio habendo; if the marriage take not effect, I shall be discharged of this Covenant. So if an Annuity be granted, pro consilio impendendo, stop the Counsell giving, and stop the Annuity;* 1.148 also if a man grant a way over his Land, and pro chimino illo habendo, he granteth to him a rent-charge: if one be stopped, the other is stopped; so it is in contracts; As for a Hawk to be delivered me at such a day, you shall have my horse at Christmass; if the Hawk be not de∣livered at the day, you shall not have an Action for the horse.

The Infants contract for his meat, apparell, and necessaries is good, if he be of the age of fourteen years.

COPY-HOLD* 1.149

Copy-hold, is a Tenure, for which the Tenant hath nothing to shew, but the Copies of the Rolls, made by the Steward of his Lords Court. This Tenure is called a base Tenure, because it holdeth

at the will of the Lord; it was wont to be called Tenure in villenage.

The doing of fealty by a Copy-holder, proveth* 1.150 that a Copy-holder so long as he observes the cu∣stom of the Mannor, and payeth his services, hath a fixed estate.

Although in the judgment of the Law, he hath but estate for will; yet custom hath so established and fixed his estate, that by the custom of the Man∣nor, it is descendible to him and his Heirs; and therefore his estate is not meerly ad voluntatem* 1.151 Domini, but ad voluntatem Domini secundum con∣suetudinem manerii; and by keeping the custom he shall inherit the Land, as well as he that hath Frank-tenement at Common Law, for consuetudo est altera Lex.

The stile of a Copy-holder imports three things.

• 1. N••men, his Name.
• 2. Originem, his Beginning.
• 3. Titulum, his Assurance.

• 1. His Name is, Tenant by Copy of Court Roll.
• 2. His Beginning is, ad voluntatem Domini, for at the beginning he was but Tenant at the will of the Lord.
• 3 His Title or Assurance, secundum consuetudi∣nem manerii; for the custom of the Mannor* 1.152 hath fixed his Estate, and assured the Land to him as long as he doth his service and duties, and performes the custom of the Mannor.

If a Copy-holder be a popish Recusant, his Copy-hold is forfeit, for his life to the Lord of the* 1.153 Mannor, if the Lord be not Re••usant, and if the Lord be, then to the King.

CORONER.

Coroner, is an antient Officer of trust, and of* 1.154 great authority, ordained to be a principall confer vator or keeper of the peace, to bear record of the Pleas of the Crown. Although by the Law, the Coroner cannot enquire of any felony; but the death of a man; yet it hath been said, that in N••••∣than••••erland 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 the Sea, where a man may see Land from the one part to the other, the Coroner shall enquire thereof, and not the Admirall, because the Countrey there∣of may well have knowledg.

The empannelling of the inquest, and the view of the body, and the giving of the Verdict, is* 1.155 commonly in the street in an open place, and in corona populi, but this name rather cometh, be∣cause the death of every subject by violence is ac∣counted to touch the Crown of the Prince, and to be a detriment unto it. The Prince accounting that his strength, power, and Crown doth con∣sist in the force of his people, and the maintenance of them in security and peace.

If a Coroner be minus idoneus ad officium illud exequendum, this is a good cause to remove him, for he ought to be the Coroner qui melius scia•• & possit officium illud intendere.

He must have two Properties, viz. sufficient Know∣ledg▪ Ability and diligence in execution of his Office.

Sir Edward Cook in his second part of his Instit. c. 10. saith he should have five Q••a••••∣ics.

• ••1. He should be Probus homo.
• 2. Legalis homo.
• 3. Of sufficient understanding and knowledg.
• 4. Of good ability and power to execute his Of∣fice according to his knowledg.
• 5. Diligent in the execution of his Office, See more there.

Coroners remain conservators of the Peace▪ within the County where they are Coroners, not∣withstanding the Kings death, for they are made by the Kings writ, and not by Commission, as Ju∣stices are, whose authority is determined by the death of the King, for by the Commission he* 1.156 maketh them Iusticiarios suos, so that he being once dead, they are no more his Justices.

The Statute giveth the Coroner thirteen Shil∣lings and four pence for taking inquisition super visum corporis.

CORPORATION.

Corporation, is a permanent thing that may have succession. It is an assembly and joyning toge∣ther* 1.157 of many into one fellowship, Brother-hood and mind, whereof one is head and chief the rest are the body.

No Corporations can be made but by the King, yet his Highness may depute this authority to a∣nother,* 1.158 for so it cometh originally from the King.

COVENANT.

Covenant, is an agreement made by Deed in writing, and sealed between two persons.

An Insant (by the Common Law) is not of age to bind it self by Covenant, ante annos nubiles,

which is twelve years in a woman, and fourteen* 1.159 years in a man-child.

COVINE.

Covine, cometh of the French word convine, and* 1.160 is a secret assent determined in the hearts of two or more, to the defrauding and prejudice of another.

As if Tenant for life will secretly conspire with another, that the other shall recover in prejudice of him in reversion, for by this his reversion is taken away. For this conspiracy may very well be said to be covine, since all the parts are therein contained, for it is an unity in the hearts of two, and it is secretly done in respect of a third who is thereby damni••ied, for if it be secret quoad him who is concerned, it is secret within the descrip∣tion.

COUNT.

Count, cometh of the French word conte which in Latin is narratio, and is vulgarly called a de∣claration. The original Writ is according to his Name Breve, brief and short, but the Count which* 1.161 the Plaintiff or Demandant makes, is more narrative and spacious, and certain both in matter and cir∣cumstance of time and place, that the Defendant may be compelled to make a more direct answer, so as the Writ may be compared to Logick, and the Count to Rhetorick.

COUNTY.

County, signifieth as much as Shire, both con∣taining* 1.162 a compass or portion of the Realm, into the which all the land is divided for the better government thereof, so as there is no Land, but it is within some County: there be in England 41 Counties, and in Wales 12.

COURT.

Court, is diversly taken, sometimes for the house* 1.163 where the King remaineth with his ordinary reti∣nue, and also the place where Justice is judicial∣ly ministred. In times past the Courts and Benches followed the King, and his Court wheresoever he went, which thing especially shortly after the conquest being found very cumbersome, painfull, and chargeable to the people, it was agreed by Parliament, that there should be a standing place where judgment should be given, and it hath long time been used in Westminster-Hall, which King William Rufus builded for the Hall of his own house. In that Hall are ordinarily seen three Tri∣bunals, or Judges ••ea••s. At the entry on the right hand the Common Pleas. Where Civil matters are to be pleaded, specially such as touch Lands or contracts. At the upper end of the Hall on the right hand, the Kings Bench, where Pleas of the Crown have their place, and where Kings* 1.164 in former times have often personally sate. And on the left hand sitteth the Chancellour accompanied with the Master of the Rolls, who in Latin may be called Custos Archiv••rum Regis, and certain men learned in the Civil Law, called Masters of the Chancery, in Latin they may be called Asses••••••es.

There is also another Court of special note* 1.165 called the Star-chamber, either because it is full

of windows, or because at the first all the roof thereof was decked and garnished with gilded stars.

The Judges of this Court are the Lord Chan∣cellour, the Lord Treasurer, all the Kings Maje∣sties counsell, the Barons of this Land; and ma∣ny other Courts there are, of which some may fine and not imprison, as the Court Leet, some can∣not fine or imprison, but amerce, as the Court-coun∣ty, Hundred, Baron, for no Court may fine or im∣prison which is not a Court of Record: some may imprison and not fine, as the Constables at the pet∣ty* 1.166 Sessions for any affray made in disturbance of the Court may imprison but not fine: some Courts can neither imprison, fine, nor a merce, as ecclesi∣asticall Courts held before the Ordinary, Arch∣deacon or other Commissaries, all which proceed according to canon or civil Law; and some may imprison, fine, and amerce, as the case shall re∣quire, as the Courts of Record at Westminster, and else where.

Courts of Record are the Kings Courts, as he is King, those have that credit, that no ameroement can be taken against any thing there entred or done.

CURSITER.

Cursiter, they are called cursitors, because they* 1.167 make brevia de cursu, Writs of course so called, because they have a setled form prescribed in an antient Book, therefore called the Register of Writs.

COURTESIE OF ENGLAND.

Courtesie of England, is where a man taketh a* 1.168 Wife seised in Fee simple or Fee tail general, or seised as Heir of the Tail speciall, and hath issue by the Wife, Male or Female, b•• the

issue dead or in life, if the Wife die, the Husband shall hold the Land during his life by the Law of England. If it be born alive it is sufficient, though it be not heard cry, for peradventure it may be born dumb, and this is resolved clearly in Pains Case 8 Rep. with whom agree Fitzherbert and Perkins 9. 47. for the pleading is that during the marriage he had issue by his Wife, and upon the evidence it must be proved that the issue was alive, for mortuus exitus non est exitus, Cook on Lit. l. 1. cap. 4.

CURTILAGIUM.

Curtilagium, is a soil or Garden spot belonging to a Messuage, quasi curta pecia terrae. Fairfax. 21 Ed. 4. fol. 52.

If the Wife be delivered of a monster, which* 1.169 hath not the shape of mankind, this is no issue in the Law, but although the issue hath some defor∣mity in any part of his body, yet if he hath humane shape, this sufficeth.

If the issue be born deaf or dumb or both, or be born an idiot, yet it is a lawfull issue to make the Husband Tenant by the courtesie, and to inherit the Wifes Lands of such Inheritances whereof actuall seisin cannot be gained untill a certain time (as of Rent in fee, in right of the Wi••e, untill the day* 1.170 of payment, nor of advowson in gross untill the incumbent die) of such Inheritances the Husband shall be Tenant by the courtesie, although he be not actually thereof seised during the Cover∣ture.

CONSUETUDO.

This word Consuetudo, hath in Law divers sig∣nifications.* 1.171

• 1. It is taken for the Common Law, as cons••etudo Angliae.
• 2. For Statute Law, as contra consuetudinem com∣muni concilio regni edit.
• 3. For particular customs, as Gavel kind, Borough, English, and the like.
• 4. For Rents, Services, due to the Lord, as consu∣etudines & servitia.
• 5. For Customes, Tributes, or Impositions, as de novis consuetudinibus levatis in regno, sive in terra sive in aqua.
• 6. Subsidies, or Customes granted by common consent, that is, by authority of Parliament, pro bono publico, these be, Antiquae & rectae consueta∣dines.

CUSTOM.

Custom, is one of the main Triangles of the Laws* 1.172 of England, these Laws being divided into.

• 1. Common Law.
• 2. Statute Law.
• 3. Custom.

Custom is a reasonable act iterated, multiplied* 1.173 and continued by the people time out of mind. Of every custom there be two essential parts, time and usage, time out of mind, and continual and peaceable usage without interruption.

Some say there are three essential qualities of a good Custom.

• 1. Certainty.
• 2. Reasonablen••ss.
• 3. Use or continuance.

Others say, a good Custom ought to have four inseparable Properties.

1. A reasonable commencement (for every* 1.174 Custom hath a commencement, although that the memory of man extend not to this, as the River Nilus hath a fountain, although the Geographers cannot find it) whence these maximes in Law▪ Obtemperandum est consu••tudini rationabili tan∣quam legi. In consu••tudini••us n•••• diuturnit•• temporis, sed soliditas rati••nis est consideranda. For if the custom be unreasonable in the origi∣nall, no use or continuance can make this good. Quod ab initio non valuit, tractu temporis non convalescit. A thing that is void ab initio, 〈…〉〈…〉 pre∣scription of time can make this good. Every custom is not unreasonable which is against the particu∣lar rule or maxim▪ of the posi••ive Law, as the custom of Gavel-••ind and Borough English are against the maxime and descent of inheritance, and the custom of ••••••••, the ••ather to the bough, the s••n to the plow, i•• against the maxime of eschea••es, for consuetudo ex certa causa rationabili ••sitata privat communem legem. Besides a custom may be preju∣ciall to the interest of a particular person, and yet reasonable; where it is for the benefit of the com∣mon-wealth in general: Salus populi suprema 〈…〉〈…〉 est••, as custom to make bulwarks upon the land of another for defence of the Kingdom, 36 H••n. 8. Dyer 60. B, and to raze houses in publico incendi••, 29 H. 8. Dyer 36. B. A custom which is prejudicial and injurious to the Common-wealth, and begins only by oppression and extortion of Lords, hath no lawfull commencement, but is void: So by* 1.175 Littleton fol. 46. Custome that the Lord shall have fine of his Frank-tenant for marriage of his Daugh∣ter is held void; and custome that the Lord of* 1.176 the Mannor shall detain distress taken upon his de∣means untill a fine be made to him for dammage at his will, is also void, 3 Eliz. Dyer 199. B.

2. Custom ought to be certain, and not ambi∣guous, for incerta pro malis hahentur, an uncertain thing may not be continued time out of mind with∣out* 1.177 interruption.

3. Custom ought to have continuance without interruption, time out of mind, for if it be dis∣••on* 1.178 inued within memory, the custom is gone: consuetudo ••emel reprobata non p••••••si amplius indu••••; for as continuance makes custom, so discontinu∣ance destroyes it. Nihil ••am conveniens natural•• ae∣quita••i, quam unum quodque dissol•••• ••o ligamine qu•• ligatum est.

4. It ought to be submitted to the Pr••rogative of the King, and not exalt it self against it; for prescription of time makes a custom, but nullum tempus o••••urrit Regi. If a man hath Toll or Wreck, or Stray by prescription, this extends not to the goods of the King: So prescription to have sanctu∣ary for treason; or to have ca••a••la selonum, is void against the King; because that such a priviledge exaltat se in praerogativam Regis, 1 Hen. 7. 236.

Custom is either,

1. Generall, which is currant through England.* 1.179 That which is used per totam Angliam, is Common Law, & quod habetur consutend•• per totam Angliam, is not a good manner, to alledge a Custom, Cook 9 Rep. Combes Case.

If any generall Custom were directly against the Law of God, or if any Statute were made directly against it, as if it were ordained, that no Alms should be given for no necessity, the custom and statute were void.

2. Particular, is that which belongeth to this or that County, as Borough English in many places, Gavel-kind to Kent, for all the Heirs Males to in∣herit alike; Countries have their Customes accor∣ding

to the constitution of the place: as in Kent North-wales; because those Counties have been most subject to forreign invasions, that every man there may be of power for resistance; the inheri∣tances for the most part descend in Gavel-kind, viz. to every brother alike. There are particular Customs also to this or that Lordship, City, or Town. The Custom of the County of Buckingham is, and hath been time our of mind, that every Swan which hath her cou••••e in any water that rans to the Thames within the said County; if the Swan come upon the Land of any man, and make her nest, and hath Cignets upon the same, he that hath the property of the Swan, shall have two of the Cignets, and he whose land it is, shall have the* 1.180 third Cignet which shall be of least value: this was held a good custom, because the owner of the land suffered them to breed there, whereas he might have chased them out.

In London, 1. If the Debtor be a Fugitive, the* 1.181 Creditor before the day of payment may arrest him to find better surety.

2. They may there enter a mans house with the Constable or Beadle upon suspicion of Baw∣dery.

3. They may remove an Action before the Major, depending the Plea before the Sheriffs.

These Customs in London though against the rule of Common Law, are allowed eo potius, be∣cause they have not only the force of a Custom, but also are supported and fortified by authority of Par∣liament.* 1.182

In some places within the County of Glocester, the goods and lands of condemned persons fall in∣to the Kings hands for a year only and a day, and after that term expired (contrary to the Cu∣stom of all England besides) return to the next heirs.

Baldwin le Pettour, held certain Lands in He∣mingston in Suffolk by Serjeanty, for which on Christmass-day every year before the King of Eng∣land* 1.183 he should perform one Saltus (that is, he should dance) one suffletus (puff up his checks, making there with a sound) and one bumbulus (let a crack downward.)

In some Countrey an Infant when he is of the age of fifteen years may make a feoffement, and* 1.184 the feoffement is good; and in some Country when he can mete an Eell of Cloth.

In som places the Widow shall have the whole or half, dum s••la & castra vixerit. Sir George Farmour claimed by Custom in his Mannor of Torcester in Northampton-shire, to have a Com∣mon Bake-house, and that none others should bake to sell there; and it was adjudged a good Custom Cook 8 Report. Case of the City of London. See more there concerning particular Customs.

Custom differeth from prescription, because

• 1. Custom is common to many, and prescription particular to this or that man.
• 2. Prescription may be for a shorter time then Custom, sc. for five years, or one year or* 1.185 less: As if a fine be duely levied of Lands or Tenements, and be not gainsaid with∣in five years, this is a barre to all claim for ever.

Custom is nothing else but 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉* 1.186 as indeed Law is no other thing then 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

D.

DAMMAGE.

DAmmage, in the Common Law, hath a spe∣ciall signification, for the recompence that is given by the Jury, to the Plaintiff or De∣fendant, for the wrong done unto him. Cook on Lit. l. 3. c. 7. sect. 431. Damnum dicitur à demende, cum diminutione ves deterior fit, Cook lib. 1 ••. Rep. So costs of suit are dammages to the Plaintiff, for by them his substance is diminished.

DAMMAGE FEASANT.

Dammage Feasant, is when a strangers Beasts are in another mans ground, without lawfull au∣thority or licence of the Tenant of the ground, and there do feed, tread and otherwise spoil the Corn, Grass, Woods, or such like. In which case, the Te∣nant, whom they hurt, may therefore take, distrain, and impound them, as well in the night as in the day; but for rent and services none may distrain in the night season.

He that hath the hurt may take the Beasts as a di∣stress, and put them in a Pound overt, so it be within the same shire, and there let them remain* 1.187 till the owner will make him amends for the hurt: but by the Stature of Queen Mary, the Beasts must not be driven above three miles out of the hun∣dred.

DEAN.

Dean, is derived of the Greek word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that signifieth ten, because he was antiently over ten

Prebands or Canons at the least in a Cathedrall* 1.188 Church, and is head of his Chapter.

DEBT.

Debt, debts due by Obligation, shall be paid by* 1.189 Executors before debts by simple contract, and debts by simple contract before Legacies.

If a man take a woman which is i debted to other persons, the Husband and Wife shall be sued for this debt, the Wife living. But if she die, the Husband shall not be charged for this debt after her death; unless the Creditour of the Husband and Wife recover the debt during the Coverture, then, although the Wife die, yet the Husband shall* 1.190 be charged for to pay this debt, after the death of the Wife by this recovery.

If a man lease land for term of life to a woman rendring rent, and she taketh a Husband, and after the rent is behind, and the woman die, the Hus∣band* 1.191 shall be charged by a Writ of Debt for this rent behind, because that he takes the profit of* 1.192 the land by reason of his Wife.

By Law of the Realm Debt only ariseth upon some contract or penalty imposed, upon some Sta∣tute, and not by other offences, as in the Civil Law, debitum ex delicto.

If a Tailor make a garment for me, if we be not* 1.193 agreed before what I shall pay for the making, he cannot have an Action of debt, otherwise it is for Victuals and Wine. But the Tailor may de∣tain the garment untill he be payed, as an Inne∣keeper may his guests horse for meat, or he may have an action upon the Case, upon an assum fit to pay him so much as he deserves.

DECIES TANTUM.

Decies tantum, is a Writ, and lyeth where a Ju∣ror in any enquest, taketh money of the one part

or other to give his verdict, then he shall pay ten times as much as he hath received.

DECEIT.

Deceit. the Common Law giveth a double re∣medy against such as endammage others by de∣ceit, viz. either a Writ of deceit or an Action upon the Case.

DEED.

Deed, This word in the understanding of the* 1.194 Common Law is an Instrument written in Parch∣men or Paper, whereunto ten things are necessarily incident.

• 1. Writing.
• 2. In Parchment or Paper.
• 3. A person able to contract.
• 4. By a sufficient name.
• 5. A person able to be contracted with.
• 6. By a sufficient name.
• 7. A thing to be contracted for.
• 8. Apt words required by Law.
• 9. Sealing.
• 10. Delivery.

In another place on Lit. (viz. l. 3. c. 1. sect. 259.) Sir Edward Cook saith, a Deed is an In∣strument consisting of three things, viz. Writing, Sealing, and Delivery, comprehending a bargain or contract between Party and Party, man or woman. Also in Goddards Case 2 Rep. he saith* 1.195 there are three things of the essence and substance of a Deed, viz. Writing in Paper or Parchment, Sealing, and Delivery, and if it have these three,* 1.196 although it want, in cujus rei testimonium sigillum suum apposuit, yet the Deed is sufficient; for the delivery is as necessary to the essence of a Deed, as putting of the Seal to it, and yet it is not necessary to express it in the Deed, that it was de∣livered.

The date of the deed is not of the sub∣stance of it, for if it want date, or if it be a false or impossible date, as the 30 day of February, yet the Deed is good, for it takes er••••••i by the delivery, and not the day o•• the date. The Order of making a Deed is,

1. To write it.* 1.197 Then to seal to it.

And a••ter to deliver it: And therefore it is not necessary, that the sealing o•• delivery be mentio∣ned* 1.198 within the writing, because they are to be done after.

Every Deed shall be taken most strongly against the Grant••r, and most beneficially for the Grantee,* 1.199 and is most strong against the Lessor, and most be∣neficial for the Lessee.

Of Deeds some be,

1. Indented, so called, because they are cut to the fashion of the teeth in the top or side, which are either,

Bipartite, when there be two parts and Parties to the Deed.

Tripartite, when there are three parts and Parties.

Quadripartite.

Quinquepartite.

2. Polls which are plain without any indenting* 1.200 so called, because they are cut even or polled, every deed that is pleaded, shall be intended to be a deed poll unless it be alledged to be indenced.

If a deed beginneth, Haec Indentura, and the parchment or paper is not indented, this is no In∣denture, because words cannot make it indented.* 1.201 And although there are no words of Indenture in the Deed, yet if it be indented, it is an Indenture in Law, for it may be an Indenture without words, but not by words without indenting.

DEFEISANCE.

Defeisance, is fetched from the French word de∣saire, that is, de••eat or undo, infectum redd••••* 1.202 quod factum est.

DEFAULT.

Default, is a French word, and defalta is legal∣ly* 1.203 taken for non-appearance in Court. There •••• divers causes allowed by Law for saving men de∣fault, as

• 1. By Imprisonment.
• 2. Inundation of Waters.
• 3. A Tempest.
• 4. Minority, but sickness is no cause of sa∣ving a default, because it may be so artificially counterfeited, that it cannot be known. C••••a∣tus ad locum non tutum, non arctatur compare•• is a rule in the Civil Law, as if the Plague to there.

SE DEFENDENDO

Se defendendo, is not matter of justification, be∣cause the Law intends it hath a commencement upon an unlawfull Case. For quarrels are not presumed to grow without some wrongs either in words or deeds; therefore the Law putteth him* 1.204 to sue out his pardon of course, and punisheth him by forfeiture of goods.

If a man kill another in his own defence, he shall not lose his life nor his Lands, but he must* 1.205 lose his goods, except the party slain did first ussault him, to kill, rob, or trouble him by the High-way side, or in his own house, and then he shall lose nothing▪

DEFORCE.

Deforce, deforciare is a word of Art, and can∣not be expressed by any other word, for it signifieth

to withhold Lands or Tenements from the right owner, a de••oriom dissereth from a disseisor.

• 1. A man may dis••cise another without force, which Act is called simple Diss••isin.
• 2. A man may desorce another that never was in possession.

DEMAUNDANT.

Demaundant, is he which is Actor in a reall Action, because he demandeth Lands. And Plaintiff, que••ens in Actions personall and mixt quia queritur de injuria, I'enant, I'erens, in reall Actions, and defendant desenden•• in Actions perso∣nal and mixt.

DEMAINES.

Demaines, according to the common speech, are the Lords chief Mannor-place, which he and his Ancestors have from time out of mind kept in their own hands, and have occupied the same together with all buildings and houses whatsoever. Domi∣nicum de maire of the hand i. e. manured by the hand, or received by the hand, Cook on Lit. l. 1. c. 1. sect. 10.

DEMURRER.

Demurrer, cometh of the French word demeu∣rer Lat. demorari to abide, and therefore he which demurreth in Law, abideth in Law, moratur or demoratur in lege. Minshew. Cook on Lit. lib. 2. cap. 3 sect. 96.

DENIZEN.

Denizen, quasi deins nee born within the Kings* 1.206 ligeance, and thereupon in Latin called Iudige∣na, or from donaison donatio, because his freedom is given unto him by the King.

DENIZATION.

Denization is three-fold.

• 1. Absolute, as the common denizations be to them, and their heirs without any limitation or restraint.
• 2. Limited, as when the King doth grant Let∣ters* 1.207 of his denization to an alien, and to the heirs males of his body, or to an alien for term of his life, for ••ujus ••st ••are, ejus est disponere, and this denization of an alien may be effected three manner of waies, by Parliament, Let∣ters Patents, and conquest, as if a King and his Subjects should conquer another Kingdom as well ante nati as p••st nati, as well they which sought in the field, as they which remained at home, are all Denizens of the Kingdom con∣quered.

DEODAND.

Deodand, is when any man by misfortune is* 1.208 slain by a Horse or by a Cart▪ or by another thing that moveth to further the death, then the thing that is cause of his death, and which at the time of his misfortune did move, shall be forfeit to the King, and that is called Deodand, and per∣tains to the Kings Almoner, for to dispose in Alms* 1.209 and Deeds of Charity.

If a man killeth another with my Sword, it shall be forfeit as a Deodand, for it shall be ad∣judged my ••ault, that I did not keep my weapon from him, Dr. and Student. Omnia quae moven•• ad mortem, sunt Deo danda. Cook l. 5. Foxleys Case.

This Law concerning Deodands, is grounded up∣on the Law of God, Exo. 2. 28.

DERAIGNE.

Deraigne, cometh of the French word derayer,* 1.210 or deraigner, i. e. to displace, or to turn out of his order, and hereof cometh deraignment, a displacing, or turning out of his order. So when a monk is deraigned, he is degraded and turned out of his or∣der of Religion, and become a Lay man.

DETINUE.

Detinue, is a W••it that lyeth against him who having goods and cha••tels delivered to him to keep, refuseth to deliver them again.

Upon generall acceptance of goods to keep or to* 1.211 keep safely, if the goods be stolen or otherwise pe∣rish, the ••a••li. For he that accepts them shall answer for them. ••therwise it is, if he take them upon spe∣ciall accep••an••e, to keep them as his own goods.

DEVISE.

Devise, cometh from the French word diviser,* 1.212 id est disperti••i, because those Lands or Goods which appertain to the Divisee, are distributed in∣to many parts, wherefore it is better written di∣vise then devise, or else it may be derived from the* 1.213 French word devise••, i. e. sermo••ina••i, consabulari, so as deviser person testament, is to speak by his testa∣ment what his mind is to have done after his de∣cease.* 1.214 If lands be devised to a man to have to him in perpetuum or to him and his a••ligns for ever; in these two cases the devisee shall have a Fee-simple: Perkins holds he hath only an Estate for the term of his life, for these words (for ever) saith he, can extend to none other then the devisee, because no more persons be named in the devise, and the life of man in this respect is said to be for ever with him. But Sir Edward Cook determines i••, that* 1.215 a Fee-simple doth pass by the intent of the Devi∣sor, but if the devise be to a man, and his Assigns

without saying (for ever) the Devisee hath but an estate for life.

If a man devise I and to one •• sanguini s••••, that is a Fee-simple, but if it be semin•• su••, it is an estate ••ail.

If a man devise an house furnished, the hous∣hold* 1.216 stuff passeth, but not the wine that is within the house, because by common intendment a house is not furnished by Wine.

By the Common Law, if a man devise the third part of his g••••ds to his Wife, it shall be* 1.217 so rated as they were at the time or the dea•••• of the Testator, though a man may not gran•• ••r give Lands to his Wife during the cove••••••re, be∣cause they are but one person in Law; yet he may devise his Lands to his Wife, to have in Fee-simple,* 1.218 or otherwise, because such device taketh no effect till the death of the Devisor, and then they are not one person.

The intent of the Devisor shall be observed for he shall be accounted in••ps consilii, because* 1.219 that wills are most often made when men l〈…〉〈…〉 extremity and want counsell. If a man make di∣vers wills and Testaments, yet the last Device and Will made by him shall stand, and the other are void.

If a man of sound memory make two Testa∣ments,* 1.220 viz. one Testament in the sixth year of our Lord the King which now is, and the other Te∣stament in the eighth year of the same King, and after the Testator languishing in his bed, and be∣ing dumb, one man in the presence of his other* 1.221 neighbours delivers him both the Testaments, and ••e takes them in his hand, and the other saith un∣to him, Re-deliver unto us that Testament which now you will shall stand, and be your last Will▪ and he delivers the Testament with the former

date, and retaineth the other with him, now the Testament which is delivered shall stand, notwith∣standing it hath the former date, and was written before the other.

If one devise to an Infant in his Mothers belly it is a good device, otherwise it is by feossement,* 1.222 g••ant or gift, for in these Cases there ought to be one of ability to take presently, or other wise it is void▪

If a man devise Land in certainty, as the man∣nour of Dase or white A••re, and he hath no interest nor p••ssession in them at the time of the making the Will, and after the Devisor doth purchase it, in such Case it shall pass to the Devisee, for then it shall be taken that his intent was to purchase it, as it is said, •••• H. ••. 1••.

The Device of Tenant for term of life or Tenant in dower o•• corn growing at the time of their death is good.

If a man be seised of a house, and possessed of* 1.223 divers heirlooms, that by Custom have gone with the house from Heir to Heir, and by his Will devi∣seth away the heirlooms, this device is void, for the Will taketh effect after his death, and by his death the heirlooms by antient custom are vested in the Heir, and the Law preferreth the custom before the Device.

So if the Lord ought to have a Herriot when his Tenant dieth, and the Tenant deviseth away all his good, yet the Lord shall have his Herriot for the reason aforesaid.

DEVIT.

Devit, in Latin Ius, in English Right, it is found in the Law six manner of waies, viz.

• 1. Ius recuperandi.
• 2. Ius Intrandi.
• ...

• 3. Ius habendi.
• 4. Ius retinendi.
• 5. Ius recipiendi.
• 6. Ius possidendi.

All these severall sort•• of Rights following the relations of their objects are the effects of Civil Law.

DISCRETION.

Discretion, is a knowledg or understanding to discern between fal••hood and truth, right and wrong, shadows and substance, equity and colour∣able* 1.224 pretences, and not to do according to their wills and private affections, for as one ••aith, Valu discretio discretionem confundit.

DISCONTINUANCE.

Discontinuance, is a word compounded of de* 1.225 and continuo, for continuare is to continue without intermission. Now by addition of de (Eup••••••i•• gratie dis to it) which is privative, it signifieth an intermission.

DISPARAGEMENT.

Disparagement, is a shame, disgrace, or villa∣ny done by the Guardian in Chivalry, to his ward in Chivalry, being within age by reason of his marriage. Of such disparagements there be four* 1.226 kinds.

The first, Propter vitium animi, as an ideot non composmentis, a Lunatick:

The second, Propter vitium sanguinis, as

• 1. A Vill••••.
• 2. Burg••nsis, a man of trade, as an Haberdasher, or Draper, this agreeth with the Civil Law, Patricii cum Plebe matrim••nia ne contrahant.
• 3. The Son or Daughter of a person attainted of* 1.227 treason, or felony, albeit pardoned, for the blood is corrupted.
• ...

• 4. An alien or child of an alien.

The third, Propter vitium corporis, as

• 1. De membris, having but one hand, one eye.
• 2. Desormity, as to look a squint, a c••ipple, halt, lame, dec••epit, crooked.
• 3. Privation, as blind, deaf, dumb.
• 4. A horrible disease, as leprosie, pal••••e, dropsie.
• 5. Great and continual infirmities, as a consum∣ption.
• 6. Impotency to have a child in respect of age, ten∣der years, or for natural disability.
• 7. De••owred.

The fourth kind of disparagement was propter ••a••••••ram privilegii, a•• ••o marry the heir to a widow, whereby he should by reason of the bigamy have lost the benefit of his Clergy whereby he might save his life, but now this is taken away by the Sta••u••e, it must be compe∣tens maritagium abs••ue disparagatione.

DISSEISIN.

Disseisin, is a wrongfull putting out of him that* 1.228 is actually seised of a Freehold. All lawfull acts which a disseisor or abator doth is good, and there∣fore i••a disseisor or abator in low a •••••••••• which hath title of Dower, this is good and shall bind the disseisee.

DISTRESS.

Distress, is a French word, in Latin it is cal∣ed districtio, sive angustia, because the cattel di∣streined* 1.229 are put into a streight which we call a Pound. It is a maxime in the Law, that no di∣stress can be taken for any services that are not put into certainty, as a man may hold of his Lord to shear all the Sheep depasturing within the Lords Mannor, and this is certain enough, albeit the Lord hath sometime•• a greater number, and some∣times

a lesser number there, and yet this incertain∣ty being referred to the Mannor which is retained, the Lord may distrein for this uncertainty.

One may distrein any where intra ••••••••um, so that it be not in the High-way nor Church-yard.* 1.230

A distress must be,

• 1. Of a thing, whereof a valuable property is in some body, and therefore Dogs, Bucks, Co∣nie••, and the like that are ferae naturae cannot be distreined.
• 2. Although it be of valuable property as a* 1.231 horse, (yet when a man or woman is riding on him) or an Ax in a mans hand cutting of wood and the like, they are for that time priviledged, and cannot be distreined.
• 3. Valuable things shall not be distreined for Rent, for benefit and maintenance of Trades▪ which by consequent are for the Common-wealth and are thereby Authority of Law, as a horse in a Smiths Shop shall not be distreined for the rent ••••••ing out of the shop, nor the horse in the Ho∣s••ry nor the materials in a Weavers Shop for ma∣king of cloth, nor cloth or Garments in a Tay∣lors Shop, nor sacks of Corn or Meal in a Mill, nor in a market, nor any thing distreined for dammage feasant, for it is in the custody of the Law.
• 4. Nothing shall be distreined for rent that cannot be rendred again in as good plight, as it was at the time of the distress taken, as Sheaves or Shocks of Corn cannot be distreined for rent, but for dammage feasant they may. But Carts with Corn may be distreined for rent, for they may be safely restored.
• 5. Beasts belonging to the Plow averia caru∣cae shall not be distreined, for no man shall be distreined by the Instruments of his Trade or pro∣fession,

• as the Ax of a Carpenter, or the Books of a Scholar, but goods or animalia ••••iosa may be 〈…〉〈…〉. If the distress be of utensils of houshold or such like dead goods, which may take harm by wet or weather, or be stolen away, th••••e he must 〈◊〉〈◊〉 them in a house or other Pound covert 〈…〉〈…〉 in the same 〈◊〉〈◊〉▪
• ••▪ Furnaces, Cauldrons or the like fi••••ed to the Freehold, or the doors or windows of a house, or the like, cannot be distreined.
• ••. Beasts that escape may be distreined for rent, though they have not been l••vant and cou••••••••nt, he that d••streins any thing that hath life must impound them in a lawfull pound within three miles in the same County.

The Common Law is, men cannot distrein for* 1.232 rent or service in the night, as is adiudged in the 12 of ••. ••. ••••••. distress, but for dammage seasant he may distrein in the night for necessity of the Case, for otherwise peradventure he shall not di∣strein 〈◊〉〈◊〉, for before the day they may be taken or s••ay out of his Land.

A grand distress is that which is made of all the goods and Chattels which the Party hath within the County.

DIVORCE.

Divorce, is so called either a diversa •• •••• mentium of the diversity of minds of those that are marri∣ed,* 1.233 because such as are divorced, go one a diverse way ••rom the other, or from the verb divert which signifieth to return back because after the Divorce between the Husband and the Wife, he returneth her again to her Father or other Friends, or to the place from whence he had her.

There are di••ers causes for which the Husband and the Wife may be divorced.

• 1. Causa praecontractus, therefore if a man mar∣ry wish a woman precon••••a••te•• and hath issue b•• her,* 1.234 this issue in Law, and in truth bears the sir∣name of his Father: but i•• after the Husband and the Wife be divorced for the pre-contra••t, there the issue hath lost his sirname, and it become a Bastard & nullius fi••u••s.
• 2. Causa frigiditatis, therefore if a man be ma∣ried to a woman, and after the•• are divorced causa frigiditatis, and then the m••n ta•••••••• ano∣ther Wife, and hath issue by her, ye•• his 〈…〉〈…〉 law∣full, because that a man may be habi•••••• & 〈…〉〈…〉 diversis temporibus. S••mp•••• p••esu••nt••r p••••••le▪ 〈…〉〈…〉∣tione ••ili••rum & ••iliatio n•••••• ••••st 〈…〉〈…〉.
• 3. Causa impubert••••••s, or m〈…〉〈…〉s statis, and •••• this ca••e if two be married 〈…〉〈…〉, and after the full age divorce is had between them th••s dissolves the marriage.

Divorce is two-fold.

• 1. A vinculo matrim••nti, causa praecontract••••, causa metus, causa imp••t••mi•• seu frig••ditatis,* 1.235 causa a••finitatis seu consanguin••tatis: all which are causes of divorce preceding the marriage.
• 2. A mensa & th••r••, as causa adulterii, which dissolves not the ma••riage a vincul•• matrimonii, nor bars the Wise of dower, for it is subsequent to the▪ marriage.

DOMINICUM.

Dominicum, is a word sorensale of many signi∣fications, amongst the French is called Domaniam, amongst the Italians demanium, and here with us demaine, which some erroneously call demeane or demesne, as if it came of the French word demesne, i. e. sui ipsius proprium, and not of the Latin word Dominicum.

Dominicum, saith Bracton, accipitur multiplici∣t••••.

Est autem dominicum quod quis habet ad* 1.236 ••inensam: & proprie sunt Boardlands Anglice i. e. dominicum ad men••am, and are such lands which are properly cultivated for the maintenance of the Family, as the demaines of a Mannor, &c. and it is of the like signification amongst the French, as appears by ••••••ppinus lib. 1. ••it. 1. ••. ••. ••••••••manio regis. Prim•••• (inquit) S••eptris ad∣••ictum ••uerit in necessarios Regiae mensa aulaeque ••••mptus.

Dominicum is sometime•• taken pro terris in vil∣l••••••••ium con••essis as Bracton ibidem, item dicitur vill••••••••••ium, quod ••ra••itur ••••llanis, quod quis tem∣p••stivè & intempesti••è resumere possit pro voluntate sua & 〈…〉〈…〉.

Dominicum is sometime•• taken pro libero tenemento, and this accptation, as saith Bracton, is three∣fold, viz.

• 1. Cum quis habet liberum tenementum, & alius usum fructum.
• 2. Cum quis habet liberum tenementum, & alius custodiam.
• 3. Cum quis habet liberum tenementum, & alius curam.

Dominicum generally (as saith Bracton) is when a man hath Lands in see to him and his heirs or to him and his successors.

In Dominico sei••i••us is when a man hath Lands or tenements for life at the least, Ita quod Assisum novae deseismae habere possit si ejectus fuerit.

Dominicum Bannum is a proclamation or edict by the King.

DOOMES-DAY.* 1.237

Doomes-day, Book is so called, because (as Mat∣thew Paris saith) it spared no man, but judged

all men indifferently, as the Lord in th•••• •••••••• d•• will do▪

Liber ••u 〈…〉〈…〉, quem librum librum 〈…〉〈…〉∣lem,* 1.238 Anglis ••••••ti••m, Angliae 〈…〉〈…〉▪ c••••••••ales, act•• publica & Angliae ••ust••um 〈…〉〈…〉∣nare* 1.239 placet.

DOWER.

Dowe••, in the Common Law, is taken for th••* 1.240 portion of Lands or Tenements, which the W•••• hath for term of her life of the Lands or Tenemen•••• of her Husbands after his decease, for the sustenan•••• of her self, and the nurture and education of her Children.

Dower is of five sorts or kinds, vix.

• 1. Dower per legem communem.
• 2. Dower per consuetudinem.
• 3. Dower, ex assensu patris.
• 4. Dower ad ostium Ecclesiae.
• 5. Dower de la plus baile.

To the consummation of Dower three things a•••• necessary, viz. marriage seisin, and the death 〈…〉〈…〉 her Husband. Id. ib. & Binghams Case 2 R••••

U••i nullum matrimonium, nulla dos.* 1.241

Of a Castle that is maintained for the necessary de••e••••e of the Realm, a woman shall not be in∣dowed, because it ought not to be divided, and the publick shall be pre••••••••ed before the private▪ •••••••• o•• a Castle that is only maintained for the pri••••••e use and habitation o•• the owner, a woman shall be endowed.

A woman may be endowed of the third part of 〈…〉〈…〉 of a Dove house, of the third part of a pi••••a••y▪ viz. te•••••••• piscem, ••el jactum retis ••er∣tium. The ••••••est endowment of Tythes, is of the thi••d Shea••, for what Land shall be sown is uncertain.

If the Wife be past the age of nine years at the death of her Husband, she shall be en∣dowed of what age soever her Husband be, albeit he were but four years old, for consen∣sus, non concubitus facit matrimonium, and a Woman cannot consent before twelve, nor a man before fourteen, yet this inchoate, and imperfect marriage (from the which either of the Parties at the age of consent may disagree) after the death of the Husband shall give dower to the Wife, and therefore it is ac∣counted in Law after the death of the Husband, legitimum matrimonium a lawfull marriage, quoad d••tem. If a man taketh a Wife of the age of seven years, and after alien his Land, and after alienation the Wife attaineth to the age of nine years, and after the Husband dieth, the Wife shall be indowed, for albeit she was not absolutely dowable at the time of the marriage,

yet she was conditionally dowable, vir. she a••tained to the age of 9 years, before the death of the Husband^• for by his death, the possibility of dower is consummate. So it is if the Husband ali∣en his Land, and then the Wife is attainted of Fe∣lony, now is she disabled, but if she be pardoned before the death of the Husband, she shall be in∣dowed.

By the Custom of Gavel-kind, the Wife shall be indowed of the moity, so long as* 1.242 she keep her self sole and without Child, which she cannot wave, and take her thi••ds for her life. For, in that case consuetudo tollit communent legem.

And as Custom may enlarge, so may Custom abridge dower, and restram it to a fourth part.

Albeit the Wife be an 100 years, and the Hus∣band at his death was but 4 or 7 years old, so as she had no possibil••ty to have issue by him, v••t* 1.243 seeing the Law saith, that if the Wife be above the age of 9 years at the death of her Husband, she shall be endowed, and that women in antient times have had Children at that age, whereunto no woman doth now attain, the Law cannot judg that impossible, which by nature was pos∣sible. And in my time, a woman about threescore years old hath had •• Child, & ideo non definit us in jure, and the Husband at such tender years, hath habitum, though not potentiam; therefore his Wife shall be endowed.

Dower is favoured in respect of the Widow∣hood and desolateness of th•• woman whose Hus∣band is deceased.

It is commonly said, Three things are savoured* 1.244 in Law, Life, Liberty, Dower. With the Civili∣ans, Dower may be in goods, and not in Lands

yet herein England it must be in Lands and not in goods.

If a woman go away from her Husband with an Adulterer, and will not be reconciled, she loseth her Dower by the Statute of Westminster 2. C. 34.

Sponte virum mulier fugiens, & adultera sacta. Dote sua careat, nisi sponso sponte retracta.

DRUNKENNESS.

Drunkenness, For being drunk a man shall for∣feit* 1.245 5 s. or sit six hours in the Stocks, for tipling 3 s. 4^d. or sit four hours in the Stocks, the Con∣stable for not executing it forfeits ten Shillings, proof of one witness is sufficient. Any one Justice of Peace hath power to convince an Offendor of drunkenness.

DURESSE.

Duresse, is where one is kept in Prison or re∣strained* 1.246 from his liberty contrary to the order of the Law. It is also an exception in pleading to avoid the Deed, which a man was enforced to seal to ransome himself from an unlawfull captivity. Vide new B. of Put Verbo duresse.

E.

ECCLESIA.

ECclesia, this word in the Common Law, is* 1.247 most commonly used for a place wherein Baptism, and the Scpulture of mens bodies is celebrated, and Fitzherbert saith, by this word Ecclesia is meant only a parsonage, and therefore if a presentment be made to a Chappel, as▪ to a Church, by the name of the word Ecclesia, this doth change and metamorphize the nature of it, and maketh it presently a Church.

Ecclesiastical persons are,

• 1. Regular, so called, because they live under certain rules, and have vowed three things, true* 1.248 obedience, perpetuall chastity, and wilfull poverty, when a man is professed in any of the orders of Religion, he is said to be a man of Religion, or religious, of this sort are Abbots, Priors and the like.
• 2. Secular, which because they live not under certain rules of some of the said orders, nor are voluntaries, they are for distinction sake called se∣cular, as Bishops, Deans and Chapters, Arch-dea∣cons, Prebends, Parsons, Vicars, &c.

ELECTION.

Election, is when a man is left to his own free will, to take or to do one thing or another, which* 1.249 he pleaseth.

Election may be of

• 1. Things, as i a man should pay a summe of Money, or else a Hor••e o•• a Hawk.
• 2. Of persons, as if he should pay it to I. S.* 1.250 or I. N.
• 3. Of places, as if he should pay it at Lond••n or at Lincoln.
• 4. Of the time, as the first day of April, or the second day of May.

In case an Election be given of two severall things, alwaies he which is the •••••••••• agent, and which ought to do the first act, shall have the E∣lection. As if a man granteth a Rent of 〈…〉〈…〉▪ or a robe to one and to his heirs, the G••antor shall have the election, for he is the first agent by pay∣ment of the one or delivery of the other. So if a man maketh a Lease rend••ing a ••••••t or a Robe, the Leslee shall have the election causa quâ supra.* 1.251 Bu•• if I give unto you one of my Ho••••es in my Stable, there you shall have the election, for you shall be the first agent by taking or seisure of one o•• them. And if one grant to another twenty loads of Hazill, or twenty loads of Maple to be taken in his wood of D. there the Grantee shall have electi∣on, for he ought to do the first act, sc. to sell and take the same.

When the thing granted is of things annuall, and are to have continuance, there the election remaineth to the Grantor as well after the day as before, otherwise it is when the things are to be performed vnied vice. And therefore If I grant to another for life an annuity or robe at the feall of Easter, and both are behind, the Grantee ought to bring his Writ of annuity in the disjunctive, for if he bring his Writ of annuity for the one only and recover, this judgment shall determine his election for ever, but if I contract with you to pay

unto you 20s. or a robe at the seast of Easter, after the feast you may bring an Action of Debt, for the one or the other.

If a Wife be indowed ex assensu patris, and the Husband dieth, the Wife hath election ei∣ther to have her dower at the Common Law, or ex assensu patris, if she bring a Writ of Dower at the Common Law and count, albeit she recover not, yet shall she never after claim her dower ex assensu, &c.

A. covenanteth to pay B a pound of Pepper* 1.252 or Saffron before Whitsuntide, which of them he will pay, but if he payes it not before the same feast, then afterwards it is at the election of B to have his action for which he pleaseth, either of the Pepper, or of the Saffron.

So if a man giveth to another his Horse or Cow, the Donee may take the one or the other* 1.253 at his election, but if it was that he will give it in the future tense, there the Donee cannot take the one nor the other, for then the Election is in the Donor.

If a Justice of Peace directeth his Warrant to a Constable, to bring the party apprehended before him or another Justice, it is in the E∣lection* 1.254 of the Constable to go to what Justice he pleaseth.

ELEGIT.

Elegit, est nomen Brevis, sic dictum ab hoc verb••* 1.255 (Elegit) in eodem comprehenso.

EMPARLANCE.

Emparlance, cometh of the French word (parler)* 1.256 and signifieth a desire or petition in Court, of a day to pause what is best to do.

ENDICTMENT.

Endictment, signifieth in Law an accusation* 1.257 sound by an enquest, of twelve or more upon their oath, and the accusation is called endictamentum, and as the appeal is ever at the suit of the party, so the endictment is alwaies at the suit of the King, and his Declaration.

To make a good endictment it is necessary to put* 1.258 in the day, year, and place, when and where the fe∣lony is done.

It ought to be certain also in the matter, as ap∣pears. P. 8. E. 4 f. 3. where a Bailiff was endicted, because he took one for suspicion of felony, and after eum feloni••è, & voluntariè ad largum ire per∣misit, and did not shew in certain for what suspicion of felony, so when one is endicted that he made an hundred shillings of Alchymy ad instar pecuniae Domini Regis, and alledged not what mo∣ney it was, groats or pennies: but in case a man be slain, and he is so mangled in the visage that one cannot know him, but the party which killed him is well known, there is no reason he should* 1.259 escape punishment, therefore although no ap∣peal lie against him in this case, yet and Endict∣ment lies, and he shall be endicted, quòd inter∣fecit quondam igno tum, the same Law is if one be endicted that he stole the goods eujusdam ignoti, or bona cujusdam personae, the reason is, because the Endictment is not his which was the owner of the goods, but is the suit of the King, which is to have the goods, is none claim them.

An Endictment ought to express in certain, as well in what part the mortall wound is, as the profundity and latitude of it, and therefore it was moved that such an Endictment, quòd unam

plagam mortalem dedit circiter pectus, was insuffici∣ent,* 1.260 because altogether uncertain, for it might be in the neck or belly, but it was good Law, saith Sir Edward Cook, in Youngs Case, l. 4. circiter pectus is uncertain and insufficient amongst the Cases of ap∣peals and Indictments.

Endictments of treason and of all other things* 1.261 are most curiously and certainly penned.

That Endictment is not good which ought to have an argument or implication to make it good, therefore that i•• no•• a good Endictment, if it be qu••d furatus est unum e••uum, and saith not felonice, and yet it is implyed in this word, furatus est, so if for Rape the Endictment be quòd eam carnali∣ter cognovit, without saying rapuit, this is not good; if one be endicted super visum corporis, before the Major of London, without adding this word Coroner, this is not good, and yet he which is Major of London is alwaies Coroner; and there∣fore* 1.262 it is implyed. If one be endicted quòd feloni••è abduxit unum equum: this is not good without saying coepit & abduxit, for it may be, that it was delivered to him, and so he leadeth him, in which Case it is not felony.

In the Endictment it shall be supposed, that a man such a day and place with force and arms,* 1.263 that is, with st••ves, swords and knives feloni∣ously stole the Horse, against the Kings peace, and that form must be kept in every Endict∣ment, though the felon had neither sword nor other weapon ••i••h him yet this is no untruth in the jury, ••or the form of an Endictment is, in ••••iratur •••••• D••mino Rege, si à tali die & an∣no apud talem l••cum vi & armis, viz. gladiis, &c. tal••m e••uum ••alis hominis ••aepit. The twelve men are only charged with the effect of the Bill, that is, whether he be guilty of the selony or

nor, and not with the form, and when they say billa vera, they say true, as they take the effect of the Bill to be, for though there be false Latin in the Bill, and the Jury saith billa vera, yet their verdict is true.

An Endictment of murder found in this sort that Eliz. fuit in pace quousque A. vir. 5. Praesat. Eliz. de Pin. com. S. yeoman did kill her, is good; for the addition yeoman must of necessity re••er to th•• Husband, because a woman cannot be a yeoman, but an Endictment quousque Alicia S. de Pin. in com. S. uxor J. S. Spinster is not good against A∣lice S. for there Spinster, being an indifferent ad∣dition,* 1.264 both for man and woman, must refer to I. S. which is the next antecedent, and so the wo∣man hath no addition. So is an endictment against I. S. serviens I. P. de D. in com. Mid. Butcher. This is not good, for servant is no addition, and Butcher re••erreth to the Master, which is the next antecedent.

If a man take a Coat-armour which hangs over a dead mans Tomb in a Church, the Endictment must be bona executorum of the dead man, but if a* 1.265 Gravestone be taken away, the Endictment must be bona Ecclesiae.

ENFRANCHISEMENT.

Enfranchisement, is when a man is incorporated into any society or body politick.

It is a more generall word then manumission, for it is more properly applied to a Villain, and therefore every manumission is an enfranchise∣ment,* 1.266 but every enfranchisement is not a manu∣mission.

ENTRUDER.

Entruder, An abator is he that entreth into Land void by the death of a Tenant in Fee, and an en∣truder is he that entereth into Lands void by the death of a Tenant for term of life or years.

EQUITY.

Equity, is the correction of a Law generally made in that part wherein it faileth; when an act of Parliament is made, that whosoever doth such a thing, shall be a felond, and shall suffer death, yet* 1.267 if a mad man or an infant of young years that hath no discretion do the same, they shall be no fe∣lons, nor suffer death therefore.

There is a general prohibition in the Laws of England, that it shall not be lawfull for any man to enter into the Freehold of another without au∣thority of the owner, or the Law, but yet it is ex∣cepted from the said prohibition by the Law of reason, that if a man drive beasts by the high∣way, and the beasts happen to escape into the corn of his neighbour, and he to bring out his beasts that they should do no hurt, goeth into the ground and fetcheth out the beasts, there he shall justifie the entry into the ground by Law. Also notwith∣standing the Statute of Edw. 3. made the 14 year of his reign, whereby it is ordained that no man upon pain of imprisonment should give any alms to any valiant begger, that is well able to la∣bour. Yet if a man meet with a valiant begger in so cold weather, and so light apparell, that if he* 1.268 have no clothes he is likely to die, and he giveth him apparell to save his ife, he shall be ex∣cused.

Breaking of prison is felony in the prisoner himself by the Statute de frangentibus prisonam, yet if the prison be burnt, and they which are

therein shall break prison for the salvation of their lives, this shall be excused by the Law of reason, so to save my life I may kill another which assaults me.

There was a Law amongst the Romanes, that every one that scaled the walls in the night should be condemned to death, and one in the night scaled the walls in times of warre to descry the enemies to the Romanes, and he by the judgment of the Senate was not only discharged of death, but had a great reward for it, and yet he had broken the words of the Law, but not the intent, as the Sage Fathers of the Senate judged.

ESCAPE.

Escape, is where one that is arrested cometh to his liberty before that he is delivered by award of any Justices, or by order of Law. If the arrest of him that escaped were for felony, then that shall be felony in him that did voluntarily suffer the escape, and if for treason, then it shall be treason in him, and if for trespass, then trespass. If murder be made in the day, and the murderer be* 1.269 not taken, then it is an escape, for the which the town where the murder was done shall be amerced.

If a man be robbed in the day, and the thief* 1.270 escape, and be not taken within half a year after the robbery, the Town or hundred shall answer it to the party robbed, if he have made hue and cry.* 1.271

The Township shall be amerced for an escape, if it was tempore diurno, although the murder was committed in the Town-field, or in a Lane, but it seemeth reasonable, that complaint be made to the Justices.

Although the prisoner which escapes be out of the view, yet if fresh suit be made, and he be re∣prised in recenti insecutione, he shall be in executi∣on,* 1.272 for otherwise at the turning of a corner, or by an entry of an house, or by any other such means the prisoner may be out of view.

If a Sheriff or Baiiiff of a Franchise assent, that one which is in execution, and under their custody shall go out of Gaol for a while, and then return, although that he return in the time, yet this is an escape, for the Sheriff or Baiiiff* 1.273 ought to guard him in salva & ar••ta custodia, and the Statute of Westminster c. 11. saith quòd carceri mancipentur in ferris. So that the Sheriff may keep them which are in execution in iron and fetters, till they have satisfied their Cre∣ditors.

Where the Sheriff dieth, and one in execution breaketh the Gaol, and goeth at large, this is no escape, for when a Sheriff dieth, all the Prisoners are in the custody of the Law, untill a new Sheriff be made.

If a woman be Warden of the Fleet, and a pri∣soner in the Fleet marrieth her, this shall be judged* 1.274 an escape in the woman, and the Law judgeth the prisoner to be at large.

ESCHEAT.

Escheat, Escheats happen two manner of waies Aut per defectum sanguinis, as if the Tenant dies* 1.275 without issue, aut per delictum tenentis, that is for felony, escheta is derived of the French word eschier accidere, for an escheat is a casuall profit quod accidit Domino ex eventu & ex insperato* 1.276 which happeneth to the Lord by chance, and unlooked for, in which Case we say the Fee is es∣cheated.

Those which are hanged by martiall Law, in furore belli, forfeit no Lands, for etcheat for felony is three manner of waies.

• 1. Aut quia suspensus per collum.
• 2. Aut quia abiuravit regnum.
• 3. Aut quia ut legatus est.

The Father is seised of Lands in Fee holden of I. S. the Sonne is attainted of high Treason the Father dieth, the Land shall escheat to I. S. pr••pter defectum sanguinis, because the Father dieth* 1.277 without heir, and the King cannot have the Land, because the Sonne never had any thing to forfeit, but the King shall have the escheat of all the Lands whereof the person attainted of high Treason was seised, of whomsoever they were holden.

ESCHEATOR.

Escheator, cometh from this word Escheat, he* 1.278 is so called because his Office is to enquire of all casuall profits, and to seise them into the Kings hands, that they may be answered to the King.

ESTATE

Estate, is the title or interest that a man hath in* 1.279 Lands or Tenements.

In the Law any Estate for life being an Estate for Freehold is a higher and greater Estate then a lease for years, though it be for a thousand or more, which never are without suspicion of fr••••d, Cook on Lit. p. 46.

ESSOIN.

Essoin, Essonium, and sometimes exonium, and sometimes without x or s is a word forensall and cometh of an obsolete French word essonier, or exonier, to excuse and free from care, from the word soingnire. It is an excuse made for the Te∣nant

or defendant who would not appear, and be admitted in reall actions, or to Suiters in Court baron for five causes.

• 1. De malo viae sive veniendi, where the Tenant* 1.280 would not come in respect of some impossi∣bility, or durst not in regard of some emi∣nent danger, and this is called es••onium com∣mune.
• 2. De malo lecti, where some disease hindereth, which according to its nature giveth longer or shorter day, Glan cap. 19.
• 3. Tenus mare, which is cast on the behalf of the Tenant when he is beyond the Seas, and this is for fourty daies at least, Glanvillus cap. 25.
• 4. Servitium Regis, when the Tenant is in the Kings service, and then the plea resteth with∣out day untill he retur, Glanvillus cap. 27.
• 5. De terra sancta, where the Tenant or Defendant was in pilgrimage to the holy Land, or as vo∣luntier against the Saracens, and then a year and a day at the least was allowed by the Essoin.

Essoin is sometimes taken for any excuse of As∣size in Clarendon tempore. H. 2. Forenden. p. 549. Nulli liceat hospitari aliquem extraneum ultra unam noctem in domo sua, nisi hospitatus ille essonium ratio∣nabile habuerit.

ESTOPPEL.

Estoppell is when one is concluded and forbidden in Law to speak against his own act or deed, yea* 1.281 though it be to say the truth, and therefore Ju∣rors cannot be estopped, because they are sworn to say the truth.

Estoppels are three waies effected,

• 1. By matter of Record.
• ...

• 2. By ba••e writing.
• 3. By Fact, in paiis.

ESTOUERS.

Estouers, are nourishment or maintenance, it* 1.282 is also used for certain allowances of wood to be taken out of another mans wood, whence the English call houshold goods or furniture, and the matter of which other things are made stuff Spel∣man Glossar.

It is the allowance to a selon in prison out of his own goods, in vitae sustentationem.

ESTRAY.

Estray, is where any beast or cattell is in any Lordship, and none knoweth the owner thereof, then it be shall sei••ed 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 come and make claim thereto within a year and a day, then he shall have it again, or else after the year, the property thereof shall be to the Lord, so that the Lord make proclamation thereof according to the Law.

Goods waived, the Civilians call d••relicta, and Bracton saith quod olim fuerint Inventoris de Iure na∣turali, & jam efficiuntur Principis de Iure gentium. But now Kings have granted this Prerogative un∣to their Subjects within their liberties, so that waives and estrayes are the Lords of the Fran∣chise where they are found, but they must first by him be caused to be cryed in Markets near a∣bout* 1.283 him, or else the year and day runs not to the prejudice of him that lost them.

ESTREATS.

Estreats, are so called from the word extract•• because they be short notes or memorials extra∣cted or drawn out of the Records by the Clerk of the peace, and by him indented and delivered sunderly to the Sheriff, and to the Barons of the Exchequer, bearing this or the like Title, Ex∣tracta finium amerciamentorum foris factorum ad generalem Sessionem pacis, &c. coram, &c. for the form of the making hereof, thence is full direction given to the Clerk of Estreats by the Stat. 7 H. 4 S.

EXCHANGE.

Exchange, is where a man is seised of certain Land, and another man is seised of another Land, if they by a deed indented, or without deed (the Lands being in one County) exchange their Lands, so that each of them shall have the others 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 ••••••in.

It behoveth alway, that this word exchange be in the deed, or else nothing passeth by the deed, except that he have livery and seisin, for the word, excambium only maketh an Echange, as the words liberum maritagium only do make frank marriage. Every exchange ought to be made by this word excambium, or by another word of the same effect, as permutatio Perkins.

Both the things exchanged ought to be in esse at the time of the Exchange, and therefore an ex∣change of Land for Rent granted de novo is not good, but an exchange betwixt a Rent and a Common which are in esse at the time or the exchange is good, and so it is of Land and Rent.

If two Parsons of several Churches change their Benefices, and resign them into the hands of the ordinary to the same intent, and the Patrons make their presentations accordingly, and the one of the Parsons is admitted, instituted and inducted, and the other parson is admitted and instituted, but dieth before induction, the other Parson shall not retain the benefice in which he is inducted, for the exchange is not perfected, because it is not executed.

EXECUTION.

Execution, Execution for debt is four-fold,

1. Of goods only by Fieri facias, or of the moi∣ty of Lands by Elegit, or upon the reconusance of a Statute; or of the Body by capias ad satisfacien∣dum.

EXECUTOR.

Executor, is when a man makes his Testament* 1.284 and last Will, and therein nameth the person that shall execute his Testament, then he that is so na∣med is his Executor, and is as much in the Civil Law, as haeres designatus, or testamentarius, as to debts, goods and chattels of the Testator.

An Executor is after three sorts.

• 1. Executor testamentarius a testatore constitu∣tus.
• 2. Executor legalis, That is the Ordinary.
• 3. Dativus the Administrator, Cook 8 Rep. Sir Iohn Nedhams Case.

An Executor or Administrator ought to execute* 1.285 his Office, and Administer the goods of the dead lawfully, truly and diligently.

• 1. Lawfully in paying all the duties, debts and legacies, in such precedency and order, as they ought to be paid by the Law.
• ...

• 2. Truly, to convert nothing to his own use, for an Executor or Administrator hath not goods of the dead to his own use, but in anothers right, and to others uses, and he ought not to practice or de∣vise any thing to hinder the Creditor of his debt, but truly to execute his Office according to the trust reposed in him.
• 3. Diligently, quia negligentia semper habet com∣item in fortunium.

If Tenant for life soweth the ground and dieth, his Executors shall have the Corn, because his estate was uncertain, and determined by the Act of God.

De bonis defuncti trina debet esse dispositio.

• 1. Necessitatis, ut funeralia.
• 2. Utilitatis, that every one shall be paid in such precedency as ought to to be.
• 3. Voluntatis, as Legacies.

Executor de son tort, is he that takes upon him the Office of an Executor by intrusion, not being so constituted by the Testator or deceased, nor (for* 1.286 want of such constitution) constituted by the or∣dinary to administer how farro we shall become lyable to Creditors vide 43 Eliz. cap. 8. Dyer 166. 105. 6. Dyer 166. Belknap. 50. Ed. 3. 9. 13, 14. Eliz. Dyer 305, 306.

EXIGENT.

Exigent, by which one is outlawed, not rendring himself, as ye would say exactus or actus in exilium

EXTORTION.

Extortion, is the unlawfull taking by any Officer, by colour of his Office, any money or valuable thing of or from any man, either that is not due, or more then is due, or before it be due. It is large∣ly taken for any oppression, by power, or by colour, or pretence of right, from the verb, extorqueo.

EVIDENCE.

Evidence, This word in legall understanding, doth not contain matters of Record, as Letters* 1.287 Patents, Fines, Recoveries, Inrolements, and the like, and Writings under Seal as Charters and Deeds, and other Writings without Seal, as Court Rols, Accounts and the like, instrumenta, but in a large sense it containeth also Testimonia the testimo∣ny of Witnesses, and other proofs to be produced and given to a Jury, for the finding of any issue joyned between the Parties, and it is called Evi∣dence, because thereby the point in issue is to be made evident to the Jury, Probationes debent esse e∣videntes, id est, perspicuae & faciles.

A man seised of Lands in see hath divers charters Deeds and Evidences, and maketh a feosment in see either without warranty, or with warranty only against him and his heirs, the Purchaser shall have the Charters, Deeds and Evidences as incident to the Lands and ratione terrae, that he may the better defend the Land himself, having no Warranty to recover in value, for the Evidences are as it were the sinews of the Land, and the feoffer being not ••ound to Warranty, hath not use of them, but if* 1.288 the feoffer be bound to warranty, then he shall have all Deeds and Evidences, which are material, for the maintenance of the Title of the Land, but others which concern the possession the feoffec shall have.

F

FARM

FArm, (in Latin firma) cometh from the Sa〈…〉〈…〉 word Feormian to feed or relieve, for in a〈…〉〈…〉 time, upon Leases were reserved Corn, Cattel•• Victuals, &c. which was called Feorme: so that al∣though* 1.289 now by agreement such Rent is turned in∣to Money, yet it retains the name still, and as well the Land so leased as the Rent is called Farm, and the occupyers of such Land Farmers. A Farm in Lancashire is called a Fermeholt, in the North parts a Tacke, and in Essex a Wike, and was an∣tiently* 1.290 called sundus. By the grant of Farmes will pass Leases for years, as also Houses▪ Lands, &c.

FEALTY.

Fealty, it is the most generall service in the Com∣mon* 1.291 Law, for it is incident to every Tenure, un∣less it be a Tenure in Frankalmoigne, it is also the most sacred, because it is done upon oath, and the reason wherefore the Tenant is not sworn, in do∣ing his homage to his Lord, is because no subject is sworn-to another subject, to become his man of life and member, but to the King only, and that is called the oath of allegiance, homagium ligeum, and those words for that purpose are omitted out of fealty, which is to be done upon oath.

FEE-SIMPLE.

Fee-simple, Fee cometh of the French Fief, that* 1.292 is praedium beneficiarum, and legally signifieth In∣heritance.

FEUDUM.

Feudum, is a barbarous word, but had his ori∣ginal (a•• I••idore saith) from foeaus, and is to be* 1.293 interpreted tanquam foeaum, that is, a thing co∣venanted between two, others deduce it from the word ••ides as it were in Latin Fideum and by a* 1.294 more pleasant pronuntiation Feudum, whereupon such as u••e Feudataries to others, are called in La∣tin Fideles, because they owe saith an allegiance to such whose Feudataries they are.

It is called Fee-simple, because it is descendible to his heirs generally that is simply without re∣straint* 1.295 to the heirs of his body.

A man may have a Fee-simple in 3 kinds of he∣reditaments, viz. Reall, personal and mixt, reall as Lands and Tenements.

2. Personall, as if an annuity be granted to a man and his heirs.

3. Mixt hereditaments, as when the King creat∣eth an Earl of such a County, to have the dig∣nity to him and his heirs, this dignity is per∣sonall, and also concerneth Lands and Tene∣ments.

Every man that hath a Fee-simple, hath it either by right or by wrong, if by right, then he hath it either by purchase or descent. If by wrong,* 1.296 then either by disseisin, intrusion, abatement, or u∣surpation.

FEE.

Fee or Inheritance is either,

• 1. Corporeall, as Lands and Tenements which lie in livery, these may pass by livery by Deed or* 1.297 without Deed.
• 2. Incorporeall, which lyeth in grant, and cannot pass by livery, but by Deed, as advowsons,* 1.298 Commons.

FEES.

Fees, there are divers Opinions about Knights* 1.299 sees. Some say that a hide or a plow of Land con∣tains 10 Acres, and that 80 hides or 800 Acres of Land, make a Knights Fee, and others hold that 680 Acres of Land make this, but a Knights Fee is properly to be esteemed according to the quality and not the quantity. In antient time men thought 20 l. of Lands was sufficient to maintain the degree of a Knight, also every Plow of Land was antiently worth four Nobles per an∣num, and this the life of a yeoman, & ex duode••in* 1.300 carucatis constabat unum foedum imlitare, which a∣mounts to 20 l. per annum.

FEOFFEMENT.

Feoffement, is the antient and most necessary* 1.301 conveyance, because it is solemn and publick, and also because it cleareth all disseisms, abatements, intrusions, and other deseasible estates, where the entry of the Feoffer is lawfull, which neither fi••e recovery, nor bargain and sale by Deed indented and inrolled doth, Ephron infeoffed Abraham Gen. 23.

If a contract of Matrimony be between a man and a woman, yet one of them may infeoff the o∣ther, for yet they are not one person in the Law, insomuch as if the woman die before the espousal* 1.302 celebrated between them, the man to whom sh••

was contracted shall not have her goods as her Husband, but the woman may well make her Te∣stament without his consent. It hath been held if a man be contracted to a woman, & postea cogno∣tit* 1.303 eam carnaliter, and after he infeof her of a plow of Land, and put her in seism, and af∣ter marry her in facie Ecclesie, that this feoffment was void, because it was done post fidem datam, & carnalem copulam, & sic tan••uam inter virum & u••••rem, insomuch as marriage followed, but at this day it such a feoffment be made, it is good enough.

FELONY.

Felony, is so called either of the Latin word* 1.304 f••••, which is in English gall, or of the antient English word fell or fierce, because it is intended to be done with a cruell, bitter, fell, fierce or mischievous mind. Significat quod libet capitale cri∣men felleo animo perpetratum, in which sense mur∣der is said to be done prr fel••niam, and in antient times this word (felonice) was of so large an ex∣tent, as it included high treason, and by pardon of all felonies, high treason was pardoned.

A man may have property of some things which are of so base nature, that no felony can be commited of them, and no man shall lose for them life or member, as a Blood-hound and a Mastiff.

To steal fruit that hangeth on a Tree, to cut down and carry away the Tree it self, is not fe∣lony,* 1.305 but these things be part of the Free-hold till they be sever'd, and cannot be reputed for any chat∣••els. But if I gather mine Apples or cut down a Tree of mine own, then may another become a felon by taking away either of them.

Felony cannot be comitted by the taking of beasts that be savage, if they be savage and un∣tamed

at the time of taking, nor for taking of Doves* 1.306 being out of a Dove-coat, not for taking of fishes being at large in a River, for such taking is not con∣trectatio rei alienae, sed quae est nullius in bonis, but the stealing of a Doe which is tame and domesticall is felony, but as M^r Stamford well noteth, it seemeth that he that stealeth it should have certain know∣ledg that it is tame; but if the Doe be killed, and then stolen, this is certainly felony, saith he. So if one break a Dove-coat, and take out the young Pigeons* 1.307 which cannot go nor ily, this is felony, or steal Fish out of a pond or trunk, or young goshawks ingen∣dered in my Park, which cannot go nor ily.

The punishment of a felon is grievous.

• 1. He loseth his life, his judgment is to hung by the neck untill he be dead.* 1.308
• 2. He loseth it in an odious manner, by hanging between Heaven and earth, as unworthy o•• both.
• 3. His blood is corrupted and stained that his Children cannot inherit to him nor any other Ancestors.* 1.309
• 4. He shall forfeit all his Lands and Tenements which he hath in Fee, and in tail, and for Te∣nour of his life.
• 5. All his goods and chattels.
• 6. His Wife shall lose her dower, thus severe it wa•• at the Common Law, that men should fear to commit felony, ut poena ad paucos, metus ad om∣nes perveniat.

An act Anno 21 Iacobi Regis, concerning wo∣men convicted of small felonies, continued tertio Caroli cap. 4. to the end of the first Sessions of the next Parliament.

Whereas women having not the benefit of Cler∣gy, do suffer death for small causes, be it enacted that a woman lawfully convict of felonious taking of any goods above twelve pence, and under ten Shillings value, or as accessary to such offence, the same being not burglary, nor robbery, nor pri∣vy stealing from the person (but only such an of∣fence for which a man shall have Clergy) she shall for the first time be branded upon the brawn of the left thumb with a hot iron having a Roman T by the Ga••ler in open Court, and further pu∣nished* 1.310 by imprisonment, whipping, stocking, house of correction, and for so long time not exceeding a year, as the ludge shall think meet

The Civil Laws do judg open theft to be satis∣fied by the recompence of four-fold, and private theft, by the recompence of double. But the Laws of England suffer neither of these offences to be more favourably punished then with the offendors death, if the value of the thing stollen be above twelve pence.

If a man be adjudged to be hanged, and the She∣riff* 1.311 be commanded that it be executed, and he be head him, this is felony in the Sheriff, because the order of Law is not observed.

FELO DE SE.

If a man of non sanae memoriae give to himself a mortall wound, and before he dieth he become of sound memory, and after dieth of the same wound, in this Case, although he die of sound memory, by* 1.312 reason of his proper stroke, yet because the ori∣ginal cause was committed, being not of sound

memory, he shall not be felo de se, because the death hath relation to the original act.

By the common Law if a man kill himself he is called felo de se, and he doth only forfeit hi•• goods and chattels, but not his Lands, neither dot•• this work corruption of Blood, no•• the Wife lose her Dower, because it is no attainder in deed.

He that is felo de se shall not have Christian buriall, and all his goods and chattels are for∣feited to the King, and by his Almner are to be distributed to pious uses (heretofore) in salutem animoe.

FINE.

Fine, This word (Finis) hath divers signifi∣cations* 1.313 in the Law, quia aliquando significat pretium aliquando poenam, aliquando pacem.

For 1. The price or summe which is the cause of obtaining a benefit, is called a fine: as a fine for alienation for admission to a Copy-hold for ob∣taining of Leases.

2. What the offender gives in satisfaction of his of∣fences, is called a fine also, and in this sense di∣citur poena.

3. The assurance which makes men to enjoy their Lands and Inheritance, is called finis quia ••i∣nem litibus imponit.

They are all so called, because they are the ends or causes of the ends of all such business.

Of fines taken of Copyholders,

Some be certain by custom,

And some be uncertain.

But that fine though it be incertus, yet it must be rationabilis, and that reasonableness shall be discussed by the Justices upon the true circumstan∣ces* 1.314 of the Case appearing unto them, and if the Court where the cause dependeth, adjudgeth the

fine exacted unreasonable, then is not the Copy∣holder compellable to pay it.

FLIGHT.

Flight, one shall forfeit his chattels upon a su∣gam fecit, notwithstanding that he be acquitted of the same felony, and he shall forfeit them,* 1.315 although he have his Charter of pardon for the same felony. One may fly for felony, and yet he shall forfeit nothing, as where one is arrested for suspi∣cion of Felony and escapes, yet for this he shall not forfeit his goods, if he were not taken with the manner, or at the suit of the party, or endicted of the same.

When a true man is pursued as a felon, and he ••lieth and waveth his own goods, these are forfei∣ted,* 1.316 as if they had been goods st••llen. Fatetur facinus, qui judicium fugit. Those that ••ly for fear of the offence (we call it a sugam fecit) forfeit their chattels.

FLOATSOM.

Floatsom, is when a Ship is drowned, or other∣wise perished, and the goods ••loat upon the Sea,* 1.317 and they are given to the Lord Admiral by his Let∣ters Pattents.

FORCE.

Force, prohibited by the Statutes, must be either manu f••rti, with sorce or strong hand, or multitudi∣ne,* 1.318 with multitude of people.

The Counsellours and Committers of ••orce are alike punished.

FORGING.

Forging of Deeds, To forge is metaphorically taken from the Smith, who beareth upon his An∣vill, and forgeth what fashion or▪ shape he will.

FORMEDON.

Formedon, is so called, because the W••it doth comprehend the form of the gift. There be three kinds of Writs Formed••n, ••i••.

The first in the descender, to be brought by issue in tail, which claim by descent per formam* 1.319 doni.

The second is in the Reverter, which lieth for him in the reversion, or his Hel•••• or Assignes, after the State tail is spent.

The third is, the remainder which the Law gi∣veth to him in the remainder, his Heirs or As∣signs after the determination of the estate tail.

FOUNDATION.

Foundation, the foundation of a Colledge or Hospitall is called, fundati••, ••uasi fundi datio, vel* 1.320 fundamenti locatio.

FRANCHISE.

Franchise, is a priviledge from ordinary jurisdi∣ction, and it is called a Franchise Royall in some* 1.321 Statutes, where the Kings Writ runneth not, as when the King granteth to one and his Heirs, that they shall be quit of toll.

FRANKALMOIGNE.

Frankalmoigne, in Latin, libera eleemosyna, in English free Alms, is when a man in antient time before the Statute of quia emptores terrarum, had infeoffed an Ecclesiasticall person whether regular, as Abbo••s, Priors, &c. or secular, as Bishops, Deans, and Chapters, Arch-Deacons, Prebends, Parsons,

Vicars, &c. to have and hold to them and their suc∣ces••ors, to hold of the feoffe••, and his Heirs in frankalmoigne.

There is an Officer in the Kings house called Eleemosynarius, the Kings Almn••r▪

FRANK-TENEMENT.

Frank-Tenement, Free-h••ld, is an estate that a man hath in Lands or Tenements, for term of his own life, or of anothers li••e, in dower or by the co••••tesie of England, and under that there is no free-hold, for he that hath estate for years, or holdeth at will, hath no freehold, but they are called cha••tels.

A Tenement cannot be said to be free-hold, ex∣cept it touch the earth, and therefore a Chamber built upon a Hall or Parlor, cannot be said to be free-hold, because it cannot be perpetuall, for the foundation may perish, and therefore it cannot be demanded by plain•• or Writ.

Tenant in ••ee, tenant in tail and for life, are said to have a frank-tenement, a free-hold so called, because* 1.322 it doth distinguish it from termes of years, chattels upon uncertain interests, Lands in villenage, cus••o∣mary or copy-hold Lands.* 1.323

Free-man. A man may be liber homo a free-man in London three waies.

• 1. By service, as he who hath served his Ap∣prentiship.
• 2 By Birth-right, as he which is the Son of a Free-man of London.
• 3. By Redemption, that is, allowance of the Court of the Major and Alder∣men.

FRESH-SUIT.

Fresh▪Suit, 〈…〉〈…〉ner which esca∣peth be out of vi••w, 〈…〉〈…〉 be made, and he be 〈…〉〈…〉 〈…〉〈…〉 ins••cuti••e, he shall be in* 1.324 execution, 〈…〉〈…〉her wife at the turning of a corner or by 〈…〉〈…〉 a house, or by other means, the the prisone•• may be out of view.

G.

GAVELKIND.

GAvelkind, is a Custom annexed▪ with Lands in Kent, by which all the Brethren shall inherit together, as Sisters at the Com∣mon* 1.325 Law. It is called Gavelkind, either of give all kin, that is, to all the kindred in one line, ac∣cording as it is used among the Germanes, from* 1.326 whom we Englishmen, and chiefly of Kent come, or of give all ••ind, that is, to all the Male-chil∣dren, for ••ind in Dutch signifieth a Male-child. But now by the Star••te 31 H. 8 A great part of Kent is ••••••e desceadible to the Eldest Sonne ac∣cording to the course of the Common Law, because by that Custom, d••vers antient and great Fami∣lies after a few descents come to very little or* 1.327 nothing.

In 〈…〉〈…〉ties riv••s deducitur amnis. •••••• minor, ac••unda deficiente perit.

After that William Duke of Normandie had

invaded and conquered all England, Kent only* 1.328 excepted, atlast also the Kenti••h men yeilded, but upon condition that they might enjoy their anti∣ent customes of Gavelkind, which was granted un∣to them, and since hath continued.

In Gavelkind, though the Father be hanged,* 1.329 the Sonne shall inherit, for their Custom is, The Father to the bough, and the Son to the plow.

The Wise shall have the moi••y of the Lands of her Husband, so long as she lives unmarried, and* 1.330 of Lands in Gavelkind, a man shall be Tenant by the courtesie, without having of any issue.

If a man make a gift intail of Lands in Gavel∣kind, to a man and his Heirs, Males of his body* 1.331 lawfully begotten, and hath issue Sonnes, in this case all the Sonnes shall inherit, but if a Lea••e for life be made of Lands in Gavel-kind, the remain∣der to the right Heirs of I. S. and I. S. die having issue 4 Sons, in this case the eldest Sonne only shall have the remainder, he only can be a right Heir in case of purchase.

GENERAL

Generall, If one speak grosly, it shall be under∣stood* 1.332 secundum excellentiam, as of the Feast of ••i∣chael, it shall be understood of the Arch-Angel, as the more worthy and notorious.

GRAND SERIEANTY.

Grand Serjeanty, is where a man holdeth of the* 1.333 King certain Lands, by the service of carrying of his Banner or Launce, or to lead his Host, or to be his Carver, or Butler at his Coronation.

The Demockes hold a Mannour of Scrivel, by service of Grand Serjeanty, viz. That whenso∣ever any King of England is to be crowned, then the Lord of this Mannour, for the time being, or some one in his Name (if himself be unable) shall

come well armed for the Warre, mounted upon a* 1.334 good horse of service, in the presence of the Sove∣raigne Lord the King upon his Coronation day, and cause proclamation to be made, that if any man will avouch that the said Soveraign Lord the King, hath not right to his Kingdom and Crown, he will be prest and ready to defend the right of the King of his Kingdom, of his Crown and dignity, with his body against him and all o∣thers whatsoever.

GRANGE.

Grange, in legall Latin Grangea is a House or E∣difice not only where Corn is stored up like as in Barnes, but necessary places for Husbandry also, as Stables for Hay and Horses, and Styes for other Cattle, and by the grant of a Grange, which is often in Conveyances, will pass such places as a∣foresaid.

GRANT.

Grant. It is a maxim in Law that every mans* 1.335 Grant shall be taken by construction of Law most forcible against himself, which is so to be under∣stood, that no wrong be thereby done, for it is another maxim in Law, quód legis constructio non facit injuriam. And therefore if a Tenant for life maketh a lease generally, this shall be taken by construction of Law, an estate for his own lite that made the Lease, for if it should be a Lease for* 1.336 the life of the Lessee, it should be a wrong to him in the reversion. So if Tenant in tail make a Lease generally, the Law shall suppose this to be such a Lease as he may lawfully make, and that is for term of his own life, for if it should be for life of the Lessee, it should be a discontinuance, and consequently the state which should pass by con∣struction of Law should make a wrong.

Where the grant is impossible to take effect, ac∣cording* 1.337 to the Letter, there the Law shall make such a construction, as the gift by possibility may take effect. Ben••g••è faciendae sunt interpretatio∣nes chartarum propter simplicitatem Laicorum, ut res magis valeat quam pereat, that the thing may* 1.338 rather be strengthened then void, for if Writs be not formally made, they shall abate, which is no greater prejudice, then the purchasing of a new Writ, but if the Grant be void, the patty hath no remedy.

If two Tenants in common be, and they grant a Rent of 20 ••. per annum out of their Land, the Grantee shall have two Rents of 20 Shillings, be∣cause every mans grant shall be taken most strongly against himself, and therefore they be severall grants in Law. But if they two make a gift in tail, or Lease for life, reserving 20 s.* 1.339 Rent to them and their Heirs, they shall have but one twenty Shillings, for they shall have no more then themselves reserved, and the Donee or Lessee shall pay but 20 s. according to their own express reservation.

If a man have five horses ••in his Stable, and he* 1.340 give to me one of his Horses in his Stable, now I shall take which Horse I will.

If a man grant an annuity out of certain Land, and he hath no Land at the time of the grant, yet the grant shall charge his person.

The Law saith that benefits from the Crown are strictae, nay strictissimae interpretationis, because in such grants so much is taken away from the publick (which is chiefly to be tendered) as is im∣parted to the private.

If a man hath Mines hidden within his ground,* 1.341 and lets ••is ground and all the Mines with it, the Lessee may dig for them, for quando aliquis aliquid

concedit, con••edere videtur & id sine quo res ipsa esse* 1.342 non p••test.

The Queen is an exempt person from the King by the Common Law, and is of ability and capacity to purchase and grant without the King.

If a man grant certain Land to one cum communia* 1.343 in omnibus terris suis, and express not any certain place, he shall have common in all his Lands, which he had at the time of the grant.

A man grants all his Trees and wood upon B. acre, that may reasonably be spared, this is a void* 1.344 grant, unless it be referred to a third persons judg∣ment, what may be spared.

If the King grant to me that I shall not be She∣riff without shewing of what County, this is void* 1.345 for the uncertainty, quia concessi•• per regem oportet fieri de certitudine, but if the grant was quòd non erit vicecomes alicujus comitatus, there such a grant is good, when the words of a grant are not sufficient ex vi termini to pass the thing granted, but the grant is utterly void, there a non obstante connot make the grant good.

The Lord Chancellour of England, the Justi∣ces of the Kings Bench or Common Pleas, and Barons of the Exchequer, cannot grant their Offices over to other persons, nor occupy them by Deputy. If an annuity be granted to* 1.346 me pro consilio in posterum impendendo, I cannot grant this, unless it be granted to me and my Assigns.

A Parson may grant to another the moity of his Tythes for years, whether it be Lamb, Wool or Corn, and yet he hath no possession of them, be∣cause* 1.347 they are not yet in esse. But yet he hath an interest in them, and may grant the moity of them, as well as one may grant to another that it

shall be lawfull for him to take every year a Deer or a Hare, or a Cony within his soil, this is a good grant.

H

HARRIOT.

HArriot, in the Saxon tongue is called Hergeat,* 1.348 that is, the Lords Beast, for Here is Lord, and geat is best.

Harriot is in two sorts.

• 1. Harriot Custom, where Harriots have been paid time out of mind by custom, and this may be after the death of the Tenant for life. Harriot is the best Beast (whether it be Horse, Ox, or Cow) that the Tenant had at the time of his death.
• 2. Harriot service, when one holds by such service to pay Harriot at the time of his death, this is payable after the death of the Tenant in Fee∣simple.

For Herriot service the Lord shall distrain, and for Herriot custom, he shall seise, and not di∣strain.* 1.349

If the Lord purchase part of the Tenancy, her∣riot service is extinguished, but it is not so in her∣riot* 1.350 custom

In 34 Ed. 3. it is holden that if any Tenant wh••ch holdeth of me by a herriot, alien parcell of Land to another, every one is chargeable to me of a herriot, because it is entire, and if the Tenant pur∣chase the Land again, I shall have of him for every portion a herriot.

If the Lord ought to have an Herriot when his* 1.351 Tenant dieth, and the Tenant deviseth away all his goods, yet the Lord shall have his Herriot, for the Law preferreth the Custom before the devise.

HEIR.

Heir, in the legall understanding of the Com∣mon* 1.352 Law implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae de monstrant, and is he to whom Lands, Tene∣ments, or hereditaments, by the Act of God, and* 1.353 right of blood do descend, of some Estate of In∣heritance.

Every Heir is either a Male or a Female, or an Hermophrodite, that is both Male and Female. And an Hermophrodite (which is also called An∣dr••gynus) shall be Heir, either as Male or Fe∣male according to that kind of the sex which doth prevail.

Hermaphrodita, tam masculo quam foeminae com∣paratur,* 1.354 secundum proeva 'escentiam serus incalescentis, and accordingly it ought to be baptised.

Haeres est quintuplex.

• 1. Iure proprietatis, so the eldest Son shall inherit only before all his Brethren.
• 2. Iure repraesentationis, as where the eldest Sonne dieth, his issue shall inherit before the younger Son, he represents the person of his Father.
• 3. Iure propinquitatis, as propinquus excludit rem••∣tum,* 1.355 & remotus remotiorem.
• 4. Iure sanguinis, so the daughter of the first vent〈…〉〈…〉 shall inherit before the Son of the second.
• ...

• 5. Ratione doni, so the half blood shall inherit, as if a gift be made to one and the Heirs of his body, and he hath issue a son, and a daughter by one venter, and a son by another venter, the Father dies, and the eldest son enters and dies, the young son shall inherit per formam doni, for he claims as heir of the body of the Donee, and not generally as heir of his Brother: otherwise where Land cometh by descent, the rule is pos∣sessio fratris de foedo simplici facit sororem esse hae∣redem,* 1.356 but the Brother ought to be in actual possession of the Fee, and frank-tenement, ei∣ther by his own possession, or the possession of another to make his sister heir, and the reason is, because of all haereditaments in possession, he which claimeth as Heir, ought to make himself Heir by him that was last actually seised. Id. Ib.

But if the King by his Letters Patents make a* 1.357 Baron to him and his Heirs, possession in the el∣der brother of this Dignity cannot make his sister heir, but the brother of the half blood shall inherit, because no possession can be gained of this dignity ••er ped is p••sitionem.

In case of the descent of the Crown, the half blood shall mi••erit. So after the decease of King Edward the sixth, the Crown sell to Queen Mary, and from her to Queen Elizabeth, both which were of the half blood, and vet inheri••ed not only the Lands which King Edward, ••r Queen Mary pur∣chased, but the antient Lands parcell of the Crown also.

A man that is King by descent of the part of his Mother, purchaseth Land•• to him and his hens,

and dyeth without issue, this land shall descend to the heir of the part of the Mother, but in case of a Subject, the heir of the part of a father shall have them.

HEREDITAMENT.

Hereditament, is a word much used in Convey∣ances,* 1.358 and in grants will pass whatsoever may be inherited, be it corporeall or incorporeall, reall, personall or mixt, and by the grant of heredita∣ment Isles, Charters, Signioryes, Mannours, Houses and Lands of all sorts, Rents, Services, Advowsons, and Commons.

HAERES.

Haeres est pars antecessoris; Therefore if land* 1.359 be given to a man and his Heirs, all his Heirs are so totally in him, as he may give the Lands to whom he will; one cannot be heir till the death of his Ancestor; he is called Haeres apparens Heir apparent.

Every Heir having Land, is bound by the bind∣ing* 1.360 acts of his Ancestors, i•• he be named, qui se••∣ti•• commodum sentire debet & incomm••dum sive ••nus. Cook on Lit. l. c. 1. sect. 1.

A man by the Common Law cannot be Heir to goods or chattels; for haeres dicitur ab haereditate. If a man buy divers Fishes, as Ca••ps, Bream••▪ Tenches, and put them into his Pond and dieth; in this case the Heir shall have them, and not the Ex∣ecutors; but they shall go with the Inheritance▪ because they were at liberty and could not be got∣ten without industry, as by ne••s an: other Engines▪* 1.361 and otherwise it is if they were in a Trunk. Like∣wise Deer in a Park, Conies in a Warren, and Doves in a Dove-house, young and old shall go to the Heir.

HOTCHPOT.

Hotchpot, is a medling or mixing together, and a partition of Lands given in frank-marriage, with other Lands in fee-simple descended.

It is an old Saxon word, and signifieth a pud∣ding;* 1.362 and the French use Hotch-pot for a com∣mixtion of divers things together. It signifieth here metaphorically in partem positio; in English we use to say Hodge-podge, in Latin farrago or mi∣scellaneum.

HOMAGE.

Homage is,

• 1. The most honourable service.
• 2. The most humble service.

• 1. On part of the Tenant.* 1.363
  • 1. The Tenant when he doth his homage is dis••inctus, disarmed, because he must never be armed against his Lord.
  • 2. Nudo capite, bare headed.
  • 3. Ad pe•••••• Domini super genua projectus.
  • 4. Amb••s ma••us junctas, inter manus Domi∣ni porrigit, which betokeneth reverence and subjection.
  • 5. Per verba omni supplici veneratione ple∣na, he saith, I become your man.
• 2. On part of the Lord for three causes.
  • 1. The Lord doth sit.
  • 2. He uncloseth his Tenants hands between his own, which betokeneth protection, and defence.
  • 3. The Lord sitting kisseth the Tenant. Cook on Lit. lib. 2. cap. 1. sect. 85.

Glanvill saith women shall not do homage, but* 1.364 Littleton saith, that a woman shall do homage, but shall not say, I become your woman, but I do to you homage, and so is Glanvill to be understood, she shall not do compleat ho∣mage.

HOMICIDE.

Homicide, is when ••ne is slain with a mans* 1.365 will, but not with malice prepensed: most pro∣perly it is hominis occisi•• ab homine facta.

Bracton saith, it is homicide if one strike a wo∣man great with child, so that she miscarry; Si puer perium animatum fuerit, and this agreeth with the Canon and Civil Law, but the contrary is now Law amongst us.

To make it Homicide, it is requisite

1. That the party killed be in esse, viz. in rerum natura, for if a man kill an Infant in his Mo∣thers* 1.366 Womb, this is no felony, neither shall he forfeit any thing for it, for two Causes.

• 1. Because the thing had no Name of Bap∣tism.
• 2. Because it is hard to judg whether the Insant dyed of the Battery or not, or upon some other cause. Fitzherbert puts a stronger case, viz. If a man strike another woman great* 1.367 with child with two Infants, so that present∣ly after one of them die, and the other was born and baptized, and two daies after, for the hurt that he had received dieth, and yet it was no felony.

But if a woman being delivered of a Child doth presently kill it before it be baptized, this is felony in her, though the Child had no Name of Baptism; because the Child was in rerum

natura before it was killed, and it is known by* 1.368 whom, and by what means that Child came to his death.

Anno primo Iacobi Regis, c. 8. An Act to restrain suddain killing and stabbing of men done in time of drunkenness, rage, and hidden displeasure. Be it enacted that if any shall siab or thrust any that hath not a weapon drawn, nor hath first stricken, and the party dieth thereof within six moneths, the offender being thereof convicted by verdict of twelve men, confession or other∣wise, shall suffer death, as in case of wilfull murder, without benefit of Clergy. This Statute shall not extend to killing, se defendendo, by mis∣fortune or in other manner, then as aforesaid, nor to man-slaughter done in keeping of the Peace, so as it be not wittingly under colour of keeping the Peace, nor to any which in correcting Child or Servant shall beside their intent commit man∣slaughter, this Statute to continue untill the end of the first Session of the next Parliament, con∣tinued 21 Iacobi, cap. 28. & tertio Caroli cap. 4. to the end of the first Session of the next Parlia∣ment.

The offender in this case shall have his Clergy, but shall forfeit his goods.

There is Homicide,

• 1. Of malicious purpose, which we call mur∣der.
• 2. Upon the suddain, in a heat and fury of mind,* 1.369 which we term man-slaughter.
• 3. Which we call se defendendo.
• 4. Per infortunium, homicide of a mans self, whereby the offender is called Felo de se.

Man-slaughter se defendendo, is where two fight together upon a suddain, and before the mor∣tall

wound on either party, the one flieth unto the wall or some other place, beyond which he cannot pass, for the safeguard of his life, and the other pursueth him, and he which flieth kil∣leth him that pursueth, this is man-slaughter in his own defence, and the offender in this case shall forfeit his goods.

Quod quis ob tutelam corporis sui ecerit, jure id fecisse videtur.

HOUSE.

House in a house four things are necessary.

• 1. Habitatio homini••.
• 2. Delectatio inhabitantis.
• 3. Necessitas luminis.
• 4. Salubritas aeris.

For hurt made to three of these an Action lieth.

• 1. Of the habitation of a man, for this is the principall end of a house.
• 2. For hinderance of his light, for the antient form of an action upon the Case was signifi∣cant, quòd messuagium horrida tenebritate ob∣scuratum suit. It is said, Vescitur aura aetherea, and the words horrida tenebritate imply the be∣nefit of light, but for a prospect which is a matter only of delight, and not of necessity, no action lies for stopping of this, and yet it is a great commendation of an house, if it have a fair prospect.
  Unde dicitur, Laudaturque domus longos qui prospicit argos.
• 3. And if stopping of wholsome air be actionable à fortiori, an action lies for corrupting and in∣fecting the air, a lime kill is good and pro∣fitable, but if this be erected so near a house

• that none can inhabit there, for the entring of the smoke an action will lie, prohibetur ne quis faciat in suo quod nocere possit alien••.

The house of every one is to him as his Castle and Fortress, as well for his defence against inju∣ry and violence, as for his repose, and although that the life of a man be a thing precious and favoured in the Law, so that when a man kills another in his own defence, or per infortunium without any intent, yet this is felony, and in such Cases he shall for∣feit his goods and chattels for the great respect that the Law hath to the life of a man. But i•• Thieves come to ones house to rob or murder him, and the owner or his servants kill any of the Thieves in defence of him and his house, this is not felony, nor shall he lose any thing. Domus sua cu∣ique est tutissimum refugium.* 1.370

2. When any house is recovered by any reall acti∣on or by an Ejectione firmae, the Sheriff may break the house, and deliver seisin or posses∣sion to the Demandant or Plaintiff, for the words of the Writ are, Habere facias seisinam, or possessionem, and after Judgment this is not the house in right, and judgment of the Law, of the Tenant or Defendant.

3. In all Cases where the King is party, the She∣riff (if no door be open) may break the house of the party, either to take him or to do o∣ther execution of the process of the King, if otherwise he cannot enter in it, but be∣fore he break it, he ought to signifie the cause of his coming, and to request him to o∣pen the door. For in such Case if he break the house when he may enter without break∣ing it (that is upon request made, or if he may open the door without breaking it) he is a trespasser.

The preheminence and priviledge that the Law giveth to houses which are for habitation of men is great.

• 1. A house ought to have the precedency in a praecipe quod reddat, before Lands, Medowes, Pastures, Woods, for ones House is his Castle.
• 2. The House of a man hath a priviledge to* 1.371 protect him against an arrest, by force of a pro∣cess of the Law, at the suit of the Subject.
• 3. It was resolved that those that dig for salt∣peter shall not dig in the mansion house of any Sub∣ject, without his assent, for then he nor his wife, nor his Children, cannot be in safety in the night, nor his goods in his House preserved from Thieves.
• 4. He that kills one which will rob and spoil him in the house shall forfeit nothing.

If a man (hearing that another will fetch him out of his house and beate him) do assemble com∣pany* 1.372 with force, it will be no unlawfull assembly, for his house is his hold and Castle.

The Kings Officer may break an house for Fe∣lony, or suspicion of felony.

• 1. For the Common-wealth, for it is for the publick good to take Felons.
• 2. In every Flony the King hath an interest, and where he hath an interest, the Writ is, Non o∣mittas propter aliquam libertatem, the priviledge of the house will not hold against him. Cook 5 Rep. Cases of executions.

For the good of the Common-wealth, an house shall be pulled down, if the next be fired. Judge Doderidge.

HUE.

Hue and Crie is derived of two French words,* 1.373 Huyer & Cryer.

In legall understanding Hue and Crie is all one:* 1.374 In antient Records they are called Hutesium & clamor.

This Hue and Crie may be by Horn and by Voice. He that goeth not at the Commandement of the Sheriff or Constable upon Hue and Crie, shall be grievously fined and imprisoned. Cooks 2 part of his Instit. c. 9.

HUNDRED.* 1.375

Hundred, is so called, either because they were at the first an hundred Towns and Villages in each Hundred, or because they did find the King to his Wars an hundred able men.

Between Milborne and the Inhabitants of the Hundred of Dumnow in Essex, it was adjudged, for a robbery done in the morning ante lucem, t••e Hundred shall not be charged, because this robbery was done in the night, for there can be no negligence in them for not keeping the Coun∣try* 1.376 in the night, neither can they make pursuit af∣ter the Offenders. But if one kill one in a Town in the day, viz. as long as it is full day light, and he which kils him escape the Town where the Felony was, the Town shall be amerced for it, but not if such a Felony or Murder had been done in the night.

In Towns or Cities which are inclosed, the Gates ought to be shut from sun∣setting to sun-ri∣sing, and if in any such Town or City any mur∣der or man-slaughter be done in the day or in the night, and the Offender escape, such a City or Town shall be amerced.

I.

IDEOT.

IDeot, the words of the Statute be, Rex habebit custodiam ter••••rum fatuorum naturalium, by* 1.377 which it appeareth that he must be a fool na∣turall, that is a fool à nativitate, for if he were once wise, and became a fool by chance or mis∣fortune, the King shall not have the custody of him.

The King is Protector of all his Subjects, and of all their goods, Lands and Tenements, and there∣fore such as cannot govern themselves, nor or∣der* 1.378 their Lands and Tenements, his Grace (as a fa∣ther) must take upon him to provide for them, that they themselves, and their things may be pre∣served.

Ideot, is a Greek word, and properly signifieth a private man, which hath not any publick Of∣fice.* 1.379 Amongst the Latins it is taken for illitera∣••us, imperitus, amongst our Lawyers, for non com∣pos mentis, in our common English speech, called a natural fool. Fatuus à fando, quia inepta loqui∣tur. If one have so much understanding, as he can measure a yard of cloth, number twenty pence or rightly name the dayes in the week, or* 1.380 beget a child, son or daughter, he that can do so, shall not be accounted an Ideot or natural fool by the Law•• of the Realm.* 1.381

An Ideot naturall in an Action brought against him, shall appear in his proper person, but he who is become non compos mentis, shall appear

by his Guardian, if he be of full age.

IETSAM.

Ietsam, is when a Ship is in pe••ill to be drown∣ed, and to disburden the Ship, the Mariners cast the goods into the Sea; In cometh of the French word Ietter, to cast ou••; and sometimes signifieth the Admirals prescription▪ and sometimes the thing cast out of the Ship, and prescribed in.

IGNORANCE.

Ignorance, There is a difference in the Law be∣tween* 1.382 ignorantia and ignoranter. Such an Act is properly said to be done ex ignorantia, where invo∣luntary ignorance is the cause of it, as if a child or mad man kill a man, but if a drunkard kill a man, this act is said to be done ignoranter, but he is the cause of his own ignorance.

IMPRISONMENT.

Imprisonment, is the putting of any person from his own liberty, into the custody of the Law, to answer to that which is objected; and therefore* 1.383 to break the prison is to fly from the tryal of the Law, and is adjudged a publick Felony, if he were imprisoned for felony, otherwise not, as the stat. de frangent. prisonam. Out of this one fact, there groweth sometime a treble offence and selony, viz.* 1.384 1. In the prisoner himself, which is most proper∣ly called the breaking of prison. 2. Another in him that helpeth the prisoner to get away, which is commonly termed Rescuss. 3. A third, in the Officer or party whatsoever, by whose wilfull de∣fault he is suffered to go; and that is termed an escape.

A man imprisoned by process of Law, ought to be kept in salva & arcta custodia, and by the Law ought not to go out though it be with a Kee∣per,

and with the leave and sufferance of the Gao∣ler;* 1.385 but yet imprisonment must be custodia non poena, for carcer ad homines custodiendos, non ad puni∣endos dari debet.

He which is imprisoned by Judgment of the Law, ought to be kept in salva & arcta cu∣stodia, salva because he ought to be in a prison* 1.386 so strong, that he cannot escape, and arcta in re∣spect that he ought to be kept close without con∣ference with others, or intelligence of things at large.

INCIDENT.

Incident, is a thing appertaining to or follow∣ing another, as a more worthier principall: The incident shall pass by the grant of the principall, but not the principall by grant of the incident. Accessorium non ducit, sed sequitur suum princi∣pale.* 1.387

Incidents are,

• 1. Separable, as rents incident to reversions, which may be severed.
• 2. Inseparable, as fealty to a reversion or Tenure* 1.388

INCUMBENT.

Incumbent, cometh of the verb incumbo, that is to be diligently resident, and when it is written* 1.389 encumbent, it is falsly written, for it ought to be incumbent, and therefore the Law doth intend him to be resident on his Benefice.

INDUCTION.

Induction, The Arch-deacon is to put in the Mi∣nister in possession by delivering the Ring of the Church-door unto him, and ringing of Bel••, which is called an Induction, and that being done, the party becometh an incumbent.

A man having a Benefice with Cure, at the

value of ten pounds or more, receives another Benefice with Cure, and is inducted into this new; the first is void, ac si esset per mortem & re∣signationem, by Statute 21 Hen. 8. L. Dyer. The Statute is of the yearly value of eight pound.

INDENTED.

Indented, It cannot be a Deed indented, unless it be actually indented; for albeit the words of the Deed be haec indentura; yet if it be not indented, indeed it is no Indenture; but if the Deed be in∣dented, albeit the words of the Deed be not haec* 1.390 indentura, yet it is an Indenture.

Deeds indented are called by severall Names, as Scriptum indentatum, charta indentata, indentura, literae indentatae. An Indenture is a Writing con∣taining a Conveyance, Bargain, Contract, Cove∣nants or Argreements between two or more; and is indented in the top or side answerable to ano∣ther* 1.391 that comprehendeth the self-same matter. It is called an Indenture, because each part in the top or side, Similiter scinditur in morem dentium, ut pa∣res esse cognoscantur.

INFANT.

Infant, An Infant of eight years age or above, may commit Homicide, and shall be hanged for it, viz. If it may appear (by hining of the ••person slain, by excusing, or by any other act) that he had knowledg of good and evil, and of the danger of the offence; for here malitia supplebit aetatem. Yet Cook upon Littleton sect. 405. saith, That an Infant shall not be punished untill the age of four∣teen, viz. the age of discretion.

Before the age of one and twenty years a man* 1.392 or woman is called an Infant in the Law.

INHERITANCE.

Inheritance, A man may have an Inheritance in title of Nobility and Dignity three manner of waies; that is, 1. by creation, 2. by descent, 3. and by prescription: by creation two manner of ordi∣nary waies, 1. by Writ, 2. and Letters Patents. Crea∣tion by Writ is the antienter way; yet that by Let∣ters Patents is the surer. If he be generally called* 1.393 by Writ to the Parliament, he hath a Fee-simple in the Barony without words of Inheritance. But if he be created by Letters Patents, the state of In∣heritance must be limited by apt words, or else the Grant is void: But a man must not only have the Writ delivered to him, but sit in Parliament, to make him noble that way; and thereupon a Ba∣ron is called a Peer of Parliament: Therefore a Duke, Earl, &c. of another Kingdom are not to be sued by these Names here, for they are not Peers of our Parliament.

Some have an Inheritance, and have it neither by descent, nor properly by purchase, but by cre∣ation; as when the King doth create any man a Duke, a Marquess, Earl, Viscount, or Baron* 1.394 to him and his Heirs, or to the Heirs Males of his body, he hath an Inheritance therein by creation.

INNE.

Inne, Common Inns are instituted for passen∣gers and wayfaring men, for the Latin word for an Inne is diversorium, because he that lodgeth there est quasi divertens se à via, and therefore if a neighbour which is not a traveller, as a friend at the request of the Inkeeper lodge there, and his goods are stolen, he shall not have an Action, for the Writ is, ad hospitandos homines per partes,* 1.395 ubi hujusmodi hospitia existunt, transeuntes, & in

isdem hospitantes. The Innekeeper shall answer for not••ing, which is out of his Inne, but on∣ly for those things which are infra hospitium, the words are eorum bona, & catalla infra hos∣pitia ida existentia, and therefore the Horse which at the request of the owner is put to pasture, be∣ing not infra hospitium, the Innekeeper is not bound by the Law, to answer for him, if he be stolen, but if the owner require not this, but the Innekeeper of his own head puts the Horse of his Guest to the pasture, he shall answer for him if he be stolen, Hospes est, quasi hospitium petens. The host shall not be charged except there be some default in him or his servants. The words are ita quod per desectum hospitatorum, seu servientium s••orum, hospitibus hujusmo∣di damni non eveniat, and although the guest deliver not the goods to the Host to keep, nor acquaint him with them, yet if they be stollen, the Host shall be charged, but if the servant of the guest, or he which comes with him, or he which desires to be lodged with him, steal his goods, the Host shall not be charged, for it was the fault of the guest to have such a companion or servant, but if the Host appoint one to lodge with another, he shall answer for him, as appears.

The Hostler requires his guest to put his goods in such a chamber, under lock and key, and then he will warrant them, otherwise not, the guest suf∣fers* 1.396 them to be in outward Court, where they were ••tolen, the Host shall not be charged for the fault ••hat is in the guest.

If one bring a bag or chest of Evidences or Ob∣〈…〉〈…〉gations into an Inne, and they be stolen through 〈…〉〈…〉e default of the Host, the Innekeeper shall an∣••wer for them.

If a man lodg with any (which is not an Inne∣keeper, upon request, and he be robbed in his house, by his servants, which lodgeth him or any o∣ther, he shall not answer for it, for the words of the Writ are hospitatores qui communia hospitia Te∣nent.

Anno 21 Iacobi, Any person whatsoever found* 1.397 tipling in any Inne or Alehouse, to be adiudged within the compass of the Statutes against drunken∣ness.

An Alehouse-keeper convict of offence against the Statute, to be disabled to keep an Alehouse for three years after.

INSTITUTION.

Institution, is when the Bishop saith, Institu••* 1.398 te rectorem talis Ecclesiae, cum cura animarum, & accipe curam tuam & meam.

Every Rectory consists of a spiritualty, and temporalty, and as for the spiritualty, viz. cura* 1.399 animarum, he is a compleat Parson by Insti••uti∣on, but as for the temporalties, as the glebe land, he hath no Frank-tenement in them, till In∣duction.

INTRUSION.

Intrusion, properly is when the Ancestor died of any estate of Inheritance expectant upon an* 1.400 estate for life, and then Tenant for life dieth, and between the death and entry of the heir, a stranger doth interpose himself, and intrude.

IOINTTENANTS.

Iiont-tenants, are so called, because Lands or Te∣nements are conveyed to them joyntly, conjuncti〈…〉〈…〉 feossati, or qui conjunctim tenent, and are di∣stinguished from sole or severall Tenants, from

Parceners, and from Tenants in common, and an∣ciently* 1.401 they were called participes, and non haere∣des. And these joynt-tenants must joyntly implead, and joyntly be impleaded by others, which pro∣perty is common between them and coparce∣ners, but joynt-tenants have a sole quality of sur∣vivorship, which coparceners have not. Survi∣vourship is not proper to them quarto modo, for there may be joynt-tenants, though there be not* 1.402 equall benefit of survivour on both sides. As if a man letteth Lands to A and B. during the life of A. If B. dieth, A. shall have all by the Survivour, but if A. dieth, B. shall have nothing.

If one joynt-tenant should have more profit then another, the society should be Leonina, rather the devouring of Lions, then the dividing of men, or according to the Proverb, a man should divide honey with a Bear.

IOINTURE.

Iointure, it is so called, either because it is granted ratione juncturae in matrimonio, or be∣cause* 1.403 the Land in Frank-marriage is given joynt∣ly to the Husband and Wife, and after to the heirs of their bodies, whereby the Husband and the Wise be made joynt-tenants during the Cover∣ture.

IUDGES.

Iudges, All their Commissions are bounded with this express limitation, Facturi quod ad justi∣tiam pertinet secundum legem & consuetudinem Angliae.

The Judge at his creation takes an Oath, that he shall indifferently minister justice to all men,* 1.404 as well foes as friends, that shall have any suit or plea before him, and this shall he not forbear to

do, though the King by his Letters, or by ex∣press word of mouth should command the con∣trary. He shall also swear that from that time forward, he shall not receive or take any Fee or pension, of any man but of the King only, nor any gift, reward, or bribe of any man having suit or plea before him, saving meat and drink, which shall be of no great value.

It is a Maxim in the Law, Aliquis non debet esse jadex in propria causa.

Henry the fourth of that name, when his eldest Son the Prince was by the Lord Chief Justice, for some great misdemeanours, commanded and com∣mitted to prison, he thanked God that he had both a Son of that obedience, and a Judge so unpartiall, and of such undaunted courage.

Fortescue speaketh of a Judge complaining of a judgment given against a Gentlewoman of Sa∣lisbury,* 1.405 who being accused by her own man, with∣out any other proof, for murdering her Husband was thereupon condemned and burnt to ashes: the man who accused her being within a year after convict for the same offence, confest that his Mistris was altogether innocent of that cruell fact, whose terrible death he then (though over late) grie∣vously lamented: but this Judge (saith the same Authour) saepius mihi fassus est, quod nunquam in vita sua animum ejus de hoc facto purgaret. He himself often consessed unto me, that he should never during his life be able to clear his conscience of that fact.

Septimo Hen. 4. the King demands of Gascoin Justice if he see one in his presence kill I. S. and another (which was not culpable) was indicted of this before him, and found guilty of the same fact, what he will do in this case, who answered

that he ought to respite the judgment against* 1.406 him, because he knew the contrary, and to re∣late the matter ••ully to the King, to procure him a pardon; for there he cannot acquit him, and give judgment of his private knowledg, for the Judges have a private and judiciall knowledge, of their p••ivate knowledg they cannot judge, but may use their discretion. But where they have a judiciall knowledg, there they may and ought to give judgment according to that. As it one be arraigned upon an Indictment for any offence which is pardoned by Parliament, there they ought not to proceed in this, nor to give judge∣ment if he be sound guilty, because it appears to them by their judiciall knowledge, that they ought not to arr••ign them, and they ought to take know∣ledge of Statutes, although they be not plead∣ed.

IUDGMENT.

Iudgment, The censure of the Judges is called Iudicium, quasi juris dictum, the sinall saying,* 1.407 judgment and doom of the Law.

Every Iudg ought in giving his judgment, to a∣void two things.

• 1. Precipitationem, quia ad poenitentiam properat, cito qui judicat.
• 2. Morosam cunctationem, viz. either when the* 1.408 Law is determined, or to make a question in the Law where there is none, to cause delay to the party, which is in effect a denying of justice.

IURATA.

Iurata, A Iury vox est fori nostri, and sig∣nifies a company of honest and lawfull men, law∣fully sworn, to enquire and relare the truth concer∣ning such things as are inioyned them by a Iudge

Iurata, Iuratores, and Jury are so called à ju∣rando, they are called in legibus antiquis, Sacra∣mentales à Sacramento praestando, there are divers sorts of Jurors, according to the variety of an∣tient matters, and the nature of the Courts, of which there are two sorts more especially emi∣nent, viz.

• 1. Iurata delatoria, is which inquires out offen∣ders against Law, and presents their names together with their offences to the Judge, ut in examen vocati juris subeant sententiam, si∣ve ad condemnationem, sive ad deliberatio∣nem, and this is called an Inquest, and is two-sold.
  • 1. Major, cui totius Comitatus lustratio, ut in Assisis & Sessionibus pacis, nec non in curia Regii tribunalis demandatur, and is called the Grand Jury, or grand Inquest.
  • 2. Minor, cui minor jurisdictio, ut unius Hundredi in Sessionibus pacis creditur.
• 2. Iurata judiciaria, is that Jury which deter∣mineth de summa litis, or the matter of fact in issue before the Judge, doth punire de jure, and this Iurata, or Jury is also two∣fold.
  • 1. Civilis, which takes cognizance of civil Actions between Subject and Sub∣ject.
  • 2. Criminalis, which takes cognizance o•• Actions Criminal de vita & membri•• and is alwayes betwixt the King, and the Subject, commonly called the Jur•• of life and death.

The determination of the Jury is called some times duodecim virorum judicium, for that t•••• number of men to make up a Jury are for th••

most part but twelve, which custom for the triall of matter of fact, is very antient, and was u∣sed amongst the Saxons, ut è L. L. ••theldredi in frequ••nti Senateu apud Panatingum editis cap. 4. resert Lambertus, in singulis (inquit) Centu∣riis Comitia sunto, atq••e liberae c••nditionis viri du••deni aetatè superi••res una cum pr••p••sito sacra te∣nentes j••rento se adeo virum ali ••uem innocentem, haud damnaturos, so••temve absolutur••s, The like to which memorial is, in consulto de monti••ul••s Wal∣liae sub aev•• ejusdem Etheldredi cap. ••. de pignore ab∣lat•• viri du••de••im jure consulti (seu legales) Ang∣lis & Wallis jus dicunt•• sc. Angli s••x Walli t••••idem, which we call medietas linguae which i•• a priviledge or courtesie afforded by the Law to strangers, aliens whose King is in league with us, in s••its about things personall, namely that the Jury shall consist of six English, and six of the aliens own Countrey-men, if so many can be found, if not aliens of any other Country, who by league are capable.

The Office of the Jury is to sind veritatem facti, and of the Judge to declare veritatem ju∣ris.

It is a Maxim in the Law, quòd ibi semper fieri* 1.409 debet triatio, ubi juratores meliorem possunt habere no∣titiam.

Their finding is called veredictum, quasi dictum veritatis.

By the Law of England a Jury after their e∣vidence given upon the issue, ought to be kept in some convenient place, without meat or drink, fire or candle, which some Books call an imprison∣ment,* 1.410 and without speech with any unless it be the Bailiff, and with him only if they be a∣greed.

After they be agreed, they may in causes be∣tween

party and party give a verdict before any of the Iudges of the Court, and then they may eat and drink, and the next morning in open Court, they may either affirm or alter their pri∣vy verdict, and that which is given in Court shall stand.

If the Jury after their evidence given unto them at the Barre, do at their own charges eat or drink either before or a••ter they be agreed on their verdict, it is unable, but it shall not avoid the Verdict, but if before they be agreed upon their Verdict, they eat or drink at the charge of the Plaintiff, if the verdict be given for him, it shall avoid the Verdict, but if it be given for the Defendant, it shall not avoid it, & sic è con∣verso. But if after they be agreed on their ver∣dict, they eat and drink at the charge of him for whom they do pass, it shall not avoid the ver∣dict.

If A. be appealed or indicted of murder, viz. that he of malice prepensed, kills I. A. pleadeth* 1.411 that he is not guilty modo & forma, yet the Iury may find the defendant guilty of man-slaughter without malice prepensed, because the killing of I. is the matter, and malice prepensed is but a cir∣cumstance.

Quod verò Polydorus Virgilius scribit Guilielmum illum victorem duodecim virorum judicium primum induxisse, nihil à vero alienius. Multis enim ante annis in usu fuisse certissimum est ex legibus Ethel∣redi, nec est our terrible judicium vocaret, è po∣pulo enim duodecim viri liberi & legales è vi∣cinia ritè evo••antur, hi jurejurando obligantur vere de facto sententiam dicere, advocatos coram testes tribunali ut••inque differentes, & audiunt; inde ac∣ceptis* 1.412 utrius••; partis instrumentis concl••••u••tur, sine ci••••••, p••tu, & igne detinentur (ni sorte pericu∣lum

sit ne ex iilis quispiam moriatur) donec coram judice pronun••iaverint, ille de jure sententiam prose••t. Hanc enim rationem prudentissimi majores nostri, op∣timam esse ad veritatem eliciendam, ad corrup∣telas evitandas, & affectus intercludendos existima∣runt.

IUSTICES.

Iustices, They are called Iustices per metono∣m••am subjecti, because they do or should do Law* 1.413 and Iustice.

All the Commissions of the Iustices of the Assize are bounded with this express limitation, Factum quod ad justitiam pertinet secundum legem & consue∣tudinem Argliae.

K.

KING.

KING, The King by his dignity royall, is the principall Conservator of Peace with∣in his Dominions, and is capitalis Iustiti∣arius Angliae. The Kings of England themselves heretofore often •••••• in Court in the Kings Bench, the King of Denmark sitteth open•••• in Iustice thrice in the Week, and hath doores kept open for the nonce.* 1.414

The Kings of England at their Coronation take a solemn oath to came all the Customes of their Realm faithfully to be observed, they promise to all their Subjects, ••••••d •••••••• 〈◊〉〈◊〉, nulli n••••abunt, aut different justitiam vel 〈◊〉〈◊〉.

The King cannot take or part from any thing but by matter of Record, and that is for the digni∣ty and Maie•••••• of his person.

Rex precipit, & lex precipit, are all one, for the King must command by matter of Record, according to the Law. Cooks 2 part of I••stit. cap. 15.

All Lands are holden of him either imme∣diately,* 1.415 or mediately, no Action lieth against him.

It is a Maxim in the Law, That the King can* 1.416 do no wrong, because it presumes he will do no wrong.

The King hath two capacities in him.

One a naturall body, being descended of the blood Royal of the Realm, and this body is of the creation of the Almighty God, and is subject to death, infirmity.

2. A politique body or capacity, so called because it is framed by the policy of men, and in this capacity, it is said, the King never dieth.

Although it be a Rule in the Law, that the King is not bound by the generall words of an* 1.417 Act of Parliament, where he is not named, yet in these cases the King shall be bound by the generall words of an Act, though he be not named, viz. if the Statute be to supress wrong, to take away fraud, or to prevent de∣cay of Religion, for Religion, Justice and truth are the Supporters of Crowns and Dia∣dems.

KNIGHT.

Knight, is a Saxon word, and by them writ∣ten Cnit••, ••hivaler taketh his Name from the Horse, because they alwaies served in Warres

on hors-back. The Latins call them equites, the Spaniards Cavalleroes, the French-men,* 1.418 Chivaliers, the Italians Cavallieri, and the Ger∣maines Reiters, all from the Horse.

KNIGHTS-FEE.

A Knights-Fee consisteth of twenty pound* 1.419 Land, and he payeth for his relief, for a whole Knights Fee, the fourth part of his Fee, viz. five pound and so according to the rate.

KNIGHTS-SERVICE.

Knights-Service, is commonly called servitium militare, or servitium militis. Regularly there are six incidents to Knights service, viz. two of* 1.420 honour and submission, as Homage and Fealty, and four of profit, Escuage, wardship of the Lands, marriage and relief.

It was called servitium militare, the service of a Souldier, and the title of Knight-hood came first by doing some military service, and miles signifieth both a Souldier and a Knight.

L.

LAND.

LAnd, The Land of every man is in the Law inclosed from other, though it lie in the open field, and therefore if a man do tres∣pass* 1.421 therein, the W••i•• shall be, Quare clausu•• fregit.

Terra, Land in his generall and legall significa∣tion,* 1.422 includeth not only kind of grounds, as Me∣dow, Pasture, wood, but House••, and all Edifices whatsoever: i•• a more restrained sense it is taken for arable ground.

Twenty pound of Land was held antiently suf∣ficient to m••••••t in the degree of a Knight, 400* 1.423 markes of Land per annum, was a competent li∣ving 〈◊〉〈◊〉 or a Baron, and 400 l. per annum, ad sustinendum nomen & ••us of an Earl 8•••• markes per annum, the Revenue of a Marquels, and 800 l. of a Duke.

Qui capit u••orem, capit lites, & qui habet terras, ha••er 〈◊〉〈◊〉. A Wise brings Warres, and wealth brings Warres, Quarrels, Suits and Controversies at Law.

All Lands are holden of the Crown either imme∣diately* 1.424 or mediately by meine Tenants, the Conque∣ror by righ•• o•• Conquest got all the Lands of the Realm into his own hands, and as he gave it, he still reserved Rents, and services, which reservation is that which is called the Tenure of Lands.

Terra Land, in the legall signification compre∣hendeth any ground, soil, or earth whatsoever,

as Medows, Pastures, Woods, Moors, Waters, Ma••ishes, Furses and Heath, Terra est n••men ge∣neralissimum, & comprehendit omnes species terrae,* 1.425 but properly terra dicitur à terendo, quia vomere teritur, and antiently it was written with a single ••, and in that sense it includeth whatsoever may be ploughed, and is all one with arvum ab arando. It legally includeth also all Castles, Houses and o∣ther buildings: For Castles and Houses consist up∣on two things, viz. Lands or Ground, as the foun∣dation and structure thereupon; ••o as passing the Land or Ground, the structure or building passeth therewith.

The earth hath in Law a great extent upwards,* 1.426 for cujus est solum, ejus est usque ad caelum.

If a man seized of Lands in see, by his Deed granteth to another the profits of those Lands, to have and to hold to him and to his Heirs, and ma∣keth livery secundum formam chartae, the whole Land it self doth pass, for what is the Land, but the profits thereof? for thereby pasture, herbage, trees, mines, and all whatsoever parcell of the Land doth pass.

LARCENIE.

Larcenie, is so called from the Latin, Latro∣cinium;* 1.427 it is defined to be the taking away of some personall Chattel in the absence of the owner. In respect of the thing taken away, it is said to be either great or little. Petty Larceny is, where the thing stollen doth not exceed the value of 12 d. and that (say some) is Felony: For the Indict∣ment (say they) must be felonice coepit, and a man may justifie the calling of one theif for such an of∣fence, and he shall forfeit all his goods and chattels for such a felony.

If one shall steal goods to the value of 4. d. at one time, and 6 d. at another, and of 3. d. at another time, which do exceed the value of 12 d. and the••e severall goods be all stolen from one and the same person, then may they be put toge∣ther in one Indictment; and the offender being thereupon arraigned, and sound guilty, shall have judgment of Death.

LATINE.

Latine. Fals Latin shall not quash an Indict∣ment,* 1.428 nor abate any Declaration; for although the Original Writ shall abate for sal••e Latin, yet judicial Writs, or a Fine, shall not be impeached for false Latin.

The same Law is of an Indictment, as if in an Indictment it be proefato reginae, whereas it should be praefatae reginae, or praefatae Regi, for praefato Regi; the word being Latin, and significant; although it be not congruous Latin, the Indict∣ment for such incongruity shall not be quashed.

But if the word be not Latin, nor a word al∣lowed by the Law, as vocabulum artis, (for e∣very Art and Science have their propria vacabula Artis) but i•• insensible; and if it be in a materiall point, this makes the Indictment insufficient, as burglaritur, murarum, selonicè, & similia sunt voca∣bula Artis known to the Law; and therefore if these words, or the like, be mistaken in an In∣dictment, so that in a materiall place there is an insensible word which is not Latin, nor any word known in the Law, this makes the Indictment vitious and insufficient, as murdredum for mur∣drum, or burgariter for burgulariter; feloniter for felonice.

LAW.

Law, is an Art of well-ordering a Civil So∣ciety.* 1.429

Our Common Laws are aptly and properly cal∣led Leges Angliae the Laws of England, because they are appropriated to this Kingdom of England as most apt and sit for the Government thereof, and have no dependance upon any forrein Law whatsoever, no not upon the Civil or Canon Law other then in Cases allowed by the Laws of Eng∣land. Cook's 2 part of Instit. c. ••.

The Common Law of England is a Law used time out of mind, or by prescription throughout the Realm.

The Law of nature is that which God at the time of creation of the nature of man, infused into his heart for his perservation and direction, and this is lex aeterna; this was 2000 years before* 1.430 any Law written, and before any Judiciall or Municipall Laws. Iura naturalia sunt immuta∣bilia this Law is indelibilis & immutabilis, Cook Calvins Case.

The Law of England is grounded upon six prin∣cipall Points:

• 1. The Law of Reason.
• 2. The Law of God.
• 3. On divers generall Customes of this Realm.
• ...

• 4. On divers Principles and Maximes.
• 5. On divers particular Customes.
• 6. On divers Statutes made in Parliaments.

The Antient and excellent Laws of Aengland* 1.431 are the Birth-right, and the most antient and best inheritance that the Subjects of this Realm have, for by them he enjoyeth not only his Inheritance and goods in peace and quietness, but his life, and his most dear Countrey in safety: sometime it is called Right; sometime Common Right, and some∣time Communis Iustitia.

Our Laws are the same which the Norman Conqueror found in this Realm of England. The Laws that William the Conqueror sware to* 1.432 observe, were, Bonae & approbatae antiquae regni leges.

The Law of England respects the effects and substance of the matter, and not the very niceity of form and circumstance, Qui haeret in litera, he∣ret* 1.433 in cortice, apices juris non sunt jura: Nihil quod est cortra rationem, est licitum: For Reason is the life of the Law, nay, the Common Law it self is nothing else but Reason, which is to be under∣stood of an artificiall perfection of reason gotten by long study, observation, and experience, and not of every mans naturall reason: For nemo na∣s••itur* 1.434 artifex. This legall reason is summa ratio. And therefore, if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of Ages it hath been fined and refined, by an infinite number of grave and learned men, and by long experience grown to such a perfection for the Government of this Realm, as the old Rule may justly be veri∣fied of it, Neminem oportet esse sapientiorem le∣gibus. No man (out of his own private reason)

ought to be wiser then the Law, which is the per∣fection of Reason.

Quaeritur, ut crescunt tot magna volumin•• legis? In promptu causa est, crescit in orbe dolus.

All Books written in the Law are either Histori∣call,* 1.435 as the Year-Books of the Common Law, or explanatory, as M^r Stamford his Treatise of the Prerogative, or Miscellan••all, as the Abridge∣ments of the Common Law, or Monologicall, be∣ing of one certain subject, as M^r Stamford his Book intituled the Pleas of the Crown, Lamberds Justice of Peace. One of the Books of the Law is called Fleta, because the Authour wrote it in the Fleet, and the Fleet took the name of the River running by it, called the Fleet. Cook's Preface to 10 Rep. See M^r Seld. ad Fled. Dissect.

LEGACY.

Legacy (otherwise termed by our Common Lawyers a devise) is a Gift left by the deceased to be paid or performed by the Executor, or Admi∣nistrator.

LEASES.

Leases. There be three kinds of persons,* 1.436 that at this day may make Leases for three Lives, which could not do so when Littleton wrote.

• 1. Any person seised of an Estate tail in his own right.
• 2. Any person seised of an Estate in Fee-simple in* 1.437 the right of his Church.
• 3. Any Husband and Wife seised of any Estate of Inheritance in Fee-simple, or Fee-tail in the right of his Wife, or joyntly with his Wife be∣fore the coverture, or after.

If one make a Lease for so many years as he* 1.438 shall live, this is void in praesenti, for the incer∣tainty.

In the eye of the Law, any estate for life be∣ing an estate for free-hold, against whom a prae∣cipe* 1.439 doth lie, is an higher and greater estate then a Lease for years, though it be for a thousand, or more, which are never without suspicion of fraud.

Touching the time of the beginning of a Lease for years; it is to be observed, that is a Lease be made by indenture, bearing date 26 May, to have and to hold for twenty one years, from the date, or from the day of the date, it shall begin on the twenty seventh day of May, if the Lease* 1.440 bear date the twenty sixth day of May, &c. to have and to hold from the making thereof, or from henceforth, it shall begin on the day in which it is delivered; for the words of the Indenture are not of any effect till the delivery, and thereby from the making or henceforth take their first effect. But if it be à die confectionis, then it shall begin* 1.441 on the next day after the delivery, if the habe••∣dum be for the term of twenty one years without mentioning when it shall begin, it shall begin from the delivery, for there the words take effect. If an Indenture or Lease bear date which is void, or impossible, as the 30 day of February, or 40 of March, if in this case the term be limited to begin from the date, it shall begin from the delivery, as if there had been no date at all.

It is true, that every Lease at will must be at the* 1.442 will of both parties, and therefore when the Lease is made to have and to hold at the will of the Lessor, the Law implyeth it to be at the will of the Lessee also; for it cannot be at the will of

the Lessor, but it must be at the will of the Les∣see.

If the Wife of I. S. be great with Child with a Sonne, and a Lease be made untill the issue in the Womb of his Mother come to full age, this is not a Lease for years; for at the time when the Lease is to take effect, it is uncertain when the Sonne shall be born; and by consequence the begin∣ing, continuance, and end of this is uncertain. And when a Lease for years shall be made good by reference, the reference ought to be to a thing which hath expressed certainty at the time of the Lease made, and not to a possible or causuall cer∣tainty. Therefore, if I have rent of 20 s. per annum in fee issuing out of Black Acre, pay∣able* 1.443 continually at the Feast of Easter, and I grant the same Rent to you untill ye shall have received of the same Rent 21 l. in this case you shall have this Rent for 21 years; for this hath re∣ference to the express certainty, viz. the an∣nuall Rent, which is twenty Shillings per annum, untill twenty one pounds be levied of the issues and profits, this is but a Lease at will without livery, for it is not certain, that the Land shall be every year of an annuall value.

If a man hath Mines hidden within his Land,* 1.444 and leaseth his land, and all the Mines within it, there the Lessee may dig for them, for Quando ali∣quis aliquid concedit, concedere videtur & id sine quo ••es ipsa esse non potest.

There must not be a double Lease in being at one time, as if a Lease for years be made accor∣ding to the Statute, he in reversion cannot put but the Lessee, and make a Lease for life, or lives, according to the Statute, nor è converso; for the* 1.445 words of the Statute be to make a Lease for three lives, or one and twenty years, so as one or the

other may be made, and not both.

A Lease of Lands is as good without deed as with deed. But in a Lease for term of life, it be∣hoveth to give livery and seism upon the land, or else nothing shall pass by the grant, because they are called Free-holds.

LIBELL.

Libell. Every Libell (which is called samo••us libellus seu infamatoria scriptura) is made either against a private man, or against a Magistrate, or publique person; the first deserves a severe punishment; for although the Libell be made against one, yet this incites all the same Family, kindred, or socie••y to revenge; the second is a greater offence, for it concernes not only the breach of Peace, but the scandall of Govern∣ment.

2. Although the private man or Magistrate be dead at the time of making the Libell, yet this is punishable: for in one case this incites others of the same Family, Blood, or Society, to break the Peace; and in the other the Libeller traduceth an•• slandereth the State and Government, which dieth not.

3. A Libeller was to be punished either by in∣dictment at the Common Law, or by Bill, if he* 1.446 deny this, or ore t••enus, upon consession in the Star-Chamber, and according to the quality of his offence, he was to be punished by sine or im∣prisonment, and if the case be exorbitant, by pillo••y and loss o•• his ears.

4. Non refert, it skills not, whether the Libeil be true, or the party against whom this is done, be of good or evil same.

Every infamous Libell, aut est in scriptis aut sine scriptis:

• 1. In scriptis, when an Epigram, or other wri∣ting is composed, or published to anothers disgrace, and it may be published Verbis aut ••antilenis, as where this is malitiously repeated or sung in the presence of others.
• 2. Traditione, when the Libell, or any Copy of it is delivered over to scandalize the party. Famosus* 1.447 libellus sine scriptis may be
  • 1. Picturis, as to paint the party in a shamefull and ignominious manner.
  • 2. Signis, as to fix a Gallowes, or other re∣proachfull and ignominious signes at the door of the party, or else-where. And it was resolved, M••••h. 43. and 44 Elizab. in the Star-Chamber in Hallywoods case, that if any find a Libell, and will p••eserv▪ himself out of danger, if this be composed against a private man, the finder either may burn this, or presently shew it to the Magi∣stra••e: But if it concern a Magistrate, or other publique person, the finder ought presently to de∣liver this to a Magistrate, to the intent, that by examination and industry the Authour may be found and punished. Tria sequuntur defamatorem samosum.

• 1. Pravitatis incrementum, increase of lewd∣ness.
• 2. Bursae decrementum, evacuation of purse and beggery.
• 3. Conscientiae detrimentum, shipwrack of Con∣science.

If one read a Libell, or hear it read, this is no publication of it; for before he read, or hear it read, he cannot know it to be a Libell; or if he hear, or read it, and laugh at it, this is no publi∣cation of it: But if after that he hath read, or heard it, he repear this, or any part of it in the hearing of others; or after that he knows it to be

a Libell, reads it to others, this is an unlawfull publication of it; or if he write a copy of it, and do not publish it to others, this is not a publica∣tion of the Libell: for every one which shall be* 1.448 convicted, ought to be a contriver, procurer, or publisher of it, knowing it to be a Libell. But it is a great evidence that he publisheth it, when he knowing it to be a Libell writes a copy of it▪ unless he can after prove that he delivered this to a Ma∣gistrate to examine it, for then the subsequent act explains his precedent intention.

LIBERTY.

Liberty. This word Liberty notes a priviledge* 1.449 held by grant or prescription, whereby a man en∣joyes some favour beyond an ordinary Sub∣ject.

Liberty from the Law is the delivering us from that hand or power of the Law, by which we were formerly held.

LIGEANCE.

Ligeance, is so called à ligando, being the great∣est and highest obligation of duty and obedience that can be. It is, the true and faithfull obedience* 1.450 of a Liege-man, or Subject to his Liege-Lord or Soveraign.

Ligeantia Domino Regi debita est Lex.

• 1. Perpetua.
  • 1. Originaria, sive naturalis sive nata, and this is alwaies absolute, and due by birth-right▪ and is called Alta ligeantia; and he that oweth this, is called Subditus natus.
  • 2. Data, aut per denizationem aut per naturalizatio∣nem.* 1.451
• 2. Temporaria, aut
  • 1. Localis, wrought by the Law when an Alien•• that is in amity, cometh into England, fo••

• ...
  • then he is within the Kings protection, and owes a locall obedience or ligeance.
  • 2. Limitata, as when one is made denizen for life, of in tail.

As the ligatures or strings do knit together the* 1.452 joynts of all the parts of the body, so doth lige∣ance joyn together the Soveraign and all his Sub∣jects, quasi uno ligamine.

Between the Soveraign and the Subject, there is duplex & reciprocum ligamen; quia sicut sub∣ditus Regi tenetur ad obedientiam, ita Rex sub∣dito tenetur ad protectionem. There is praesidium due on the Kings side, subsidium on the Subjects part. In the Acts of Parliament, Subjects are cal∣led Liege-people, and the King the naturall Liege-Lord of his Subjects; therefore protectio trahit subjectionem, & subjectio protectionem. He should maintain and defend them, and they are bound to obey and serve him. Ligeance is due only to the King, to his naturall body, therefore the indict∣ment in Treason concludeth, Contra ligeantiae suae debitum.

LIMITATION.

Limitation. If a man give lands to a man, to* 1.453 have and to hold to him, and to the heirs males of his body, and to him and the heirs females of his body; the estate to the heirs females is in re∣mainder, and the daughters shall not inherit any part so long as there is issue male; for the estate to the heirs males is first limited, and shall be first served, and it is as much to say, and after to the heirs females, and males in construction of Law are to be preferred.

LIVERY.

Livery of seisin, is a solemnity that the Law requireth for the passing of a Free-hold, or Lands or Tenements, by delivery of sesin thereof. There be two kinds of livery of seisin, viz. a livery in Deed, and a livery in Law. A livery in Deed, is when the Feoffor taketh the ring of the door, or turf, or twig of the Land, and delivereth the same upon the Land to the Feoffee, in the name of seisin of the Land. A livery in Deed may be two man∣ner* 1.454 of waies by a solemn act and words, as by de∣livery of the ring, or hasp of the door, or by a branch or twig of a tree, or by a turf of the Land; and with these, or the like words, the Feoffor, and Feoffee, both holding the deed of the feoffment, and the ring of the door, hasp, branch, twig, or turf; and the Feoffor saying, Here I deliver you seisin and possession of this house, in the name of seisin, and possession of all the Lands contained in this Deed; or enter you into this house or land, and have and enjoy it according to the Deed; or enter into the house or land, and God give you joy; or I am content you shall enjoy this Land, according to the Deed, or the like. A livery in Law is when the Feoffor saith to the Feoffee, being in* 1.455 view of the house or Land (I give to you yonder land, to you, and your Heirs, and therefore enter into the same, and take possession thereof accor∣dingly) and the Feoffee doth accordingly in the life of the Feoffor enter; this is a good feoffment for signatio pro traditione habetur. But if either Feoffor or the Feoffee die before the entry, the li∣very is void. And delivery within the view is good, where there is no deed of feoffment: And such a livery is good, albeit the Land lie in another Countrey.

There is a diversity between the livery of seisin of land, and the delivery of a Deed; for if a man deliver a Deed without saying of any thing, i•• is a good delivery; but to a livery of leism of land words are necessary; as taking in his hand the deed, and the ring of the door (if it be an house) or a turf or twig (if it be of land) and the Feoffee laying his hand on it, the Feoffor say to the Feoffee, Here I deliver to you seisin of this house, or of this land, in the name of all the land contained in this Deed, according to the form and effect of the Deed, and if it be without Deed, then the words may be, Here, I deliver you sei∣sin of this house or land, to have and to hold to you for li••e, or to you, and the heirs of your body, or to you, and your heirs for ever. When Ephron infeoffed Abraham of the field of Machpela, he said to him, Agrum trado tibi, I deliver the field to thee. When one makes livery of sesin, this livery shall be taken most strong against him.

And therefore if one give land to a man & hae∣redibus, this shall be a Fee-simple to him, although* 1.456 suis be left out, and yet he gives not Fee-simple ex∣pressly, but because every livery shall be taken most strongly against him that makes it.

M.

MAGISTRATE.

MAgistrate, he is custos utriusque tabulae the keeper or preserver of both Tables of the Law.

If any Magistrate or Minister of Iustice in ex∣ecution of their Office, or in keeping of the peace, according to the duty of their office, be slain, this is murder, for their contempt and disobedience to the King and the Law; for it is contra potestatem Regis & Legis. If the Sheriff, a Iustice of Peace, the chief Constable, Watchmen, or any which come in their aid, be killed in doing of their Office, this is murder. For when any of the Kings* 1.457 Officers by process of Law (be it erroneous or not) arresteth another in the Kings Name, or re∣quire the disturbers of peace to keep peace in the Kings Name, and they disobey tho Kings Com∣mand and kill him, reason requireth that this kil∣ling should be an offence of the highest degree in this nature, and that is murder of malice pre∣pensed.

MAIME.

Maime, (membri mutilatio or obtruncatio) is a* 1.458 corporall hurt, whereby one looseth a member, by reason whereof, he is less able to fight, as by put∣ting out his eye, beating out his foreteeth.

This offence of maim, is under all felonies de∣serving death, and above all other inferiour offen∣ces,* 1.459 so as it may be truly said of it, that it is inter

crimina majora minimum, & inter minora maximum. Vita & membra sunt in potestate Regis. The li••e and members of every subject are under the protection of the King.

In my Circuit (saith Sir Edward Cook) in an∣no* 1.460 11. Iacobi Regis, in the County of Leicester, one Wright, a young, strong, and lusty Rogue, to make himself impotent, thereby to have the more colour to beg, or to be relieved without putting himself to any labour, caused his companion to strike off his left hand, and both of them were indicted, fined and ransomed therefore.

The cutting of an ear or nose, or breaking of the hinder teeth is no maim, but rather a deformity of body, than diminution of strength; by a maim a member is hurt, or taken away, and the party thereby so hurt is made unperfect to fight.

The party shall recover only dammages in* 1.461 maim.

MAINPRISE.

Mainprise, manucaptio is compounded of two French words, main, id est, manus a hand, and* 1.462 prins, id est, captus taken, as it were taken into their hands. It signifieth in our common Law, the taking or receiving a man into friendly custody, that otherwise is or might be committed to prison,* 1.463 upon securtiy given for his forth-coming at a day assigned.

Such are called Mainpernours, because they do receive him into their hands.

MANNOUR.

Mannour, manerium est nomen collectivum & ge∣nerale, it comprehendeth Houses, Lands, Gardens,* 1.464 Trees, Rents and Services: Manerium quasi manu∣rium, because it is laboured with handy work by the Lord himself; or it may come from the French

word manoir, id est, mansions; because the Lord* 1.465 remaineth there, and hath his house which is cal∣led, the principall house of the Mannour. It can∣not be a Mannour unless there be a Court Baron belonging to it, and be time out of mind: it con∣sists of demeans and services, if they be severed, the Mannour is destroyed.

MAINTENANCE.

Maintenance, manuten••ntia is derived of the verb manutenere, and signifieth in Law a taking in hand,* 1.466 bearing up or upholding of Quarrels, and sides, to the disturbance or hinderance of com∣mon right, culpa est rei se immiscere ad se non per∣tinenti.

When one laboureth the Jury, if it be put to ap∣pear, or if he instruct them or put them in fear, or the like; he is a maintainer, and an action of maintenance lyeth against him.

Manutenentia est duplex, 1. Curialis, in Courts of* 1.467 Justice, pendonte placito.

2. Ruralis, to stirre up and maintain complaints, suits, and parts in the County other then their own, though the same depend not in plea.

MANUMISSION.

Manumission, manumitter, which signifieth to make free, is properly to send one out of his hand, because so long as a slave continues in his servitude, he is in the hand of his Master.

MARRIAGE.

Marriage, A feme covert is not sui juris, but only sub po••estate viri, when a Baroness marri∣eth one under the degree of a Baron, by such mar∣riage her dignity is determined; for the rule* 1.468 is, quando mulier nobilis nupserit ign••bili desinit esse nobilis. But this rule is to be intended of a woman which attains Nobility by Marriage; as by marriage of a Duke, Earl, or Baron: For in such case, if after she marry under the degree of Nobility, by such marriage with one which is ignoble, she loseth her dignity, which she had attained by marriage with one of the Nobility. For Eodem modo quo quid constituitur, dissolvi∣tur.

But if a woman be Noble, as a Dutchess, Countess, Baroness, by descent, although she marry with one under the degree of the Nobility; yet her birth-right remains: for this is annexed to the blood, and is Character inde∣lebilis.

But if a Dutchess by marriage marry a Ba∣ron of the Realm, she remaineth a Dutchess, and loseth no her name, because her Husband is Noble.

Yet by the Courtesie of England, if women get to any degree of Estate, they never lose it, by marrying after more meanly; bu•• do still* 1.469 take place according to the estate of their first Hus∣band.

The Law tenders the speedy advancement of women, quia maturiora sunt vota mulierum quam ••i••orum.

MAXIM.

A Maxim, is a proposition to be of all men con∣fessed,* 1.470 and granted without a proof, argument or discourse, contra negantem principia, non est dis∣putandum, antient principles of the Law ought not to be disputed.

It is better (saith the Law) to suffer a mischief that is particular to one, then an inconvenience, that* 1.471 may prejudice many, Lex citius tolerare vult priva∣tum damnum quam publi cum malum. Summa ratio est, quae pro religione facit. A Statute directly against the* 1.472 Law of God is void.

The Rule of the Law is, Nemo debet bis puniri pro uno delicto, and the Divine saith, Nemo bis agit in id ipsum. Interest Reipublicae ne quis re sua malè utatur.

Beneficium transit cum onere, qui sentit commodum sentire debet & omis.

Benignior sententia in verbis generalibus seu dubiis est praeferenda.

Interest Reipublicae, ne malificia maneant im∣punita, & impunitas semper ad deteriora in∣vitat.

Nihil tam conveniens est naturali aequitati, u∣numquodque dissolvi eo ligamine quo ligatum est.

As no estate can be vested in the King without* 1.473 matter of Record, so none can be devested out of him without matter of Record. Things are dissol∣ved, as they are contracted.

An Obligation or other matter in writing, can∣not be discharged by an Agreement by word.

In praesentia majoris cessat potentia minoris.

The Book Cases are best proofs what the Law is.

Argumentum ab authoritate, fortissimum est in* 1.474 Lege.

Repellitur à Sacramento insamis.

Quod ab initio non valet, in ••ractu temporis non con∣valejcet,* 1.475 & quae mala sunt in••h••ata à principio, vix est ut bono per agantur exitu.

MISPRISION.

Misprision, is when one knoweth that another hath committed treason, or felony, and will not* 1.476 discover him to the King, or to any Magistrate, but doth conceal the same.

In all Cases of Misprision of Treason, the party offender shall forfeit his goods for ever, and the profits of his Land for term of his life, and his bo∣dy to prison at the Kings pleasure.

MONEY.

Money, the King by absolute prerogative may* 1.477 make any forreign coyn lawfull money of England at his pleasure by his proclamation.

If a man be bound to pay four hundred pounds* 1.478 at such a day, if he tender it in bags it is sufficient, for it cannot be counted in a day.

Lawfull Money of England, either gold or silver, is of two sorts.

Viz. 1. The English Money coyned by the Kings Authority.

2. And forreign Coyn by proclamation made cur∣rant within the Realm.* 1.479

Coyn, cuna dicitur à cudendo, of coyning, in French coin signifieth a corner, because in antient time Money was square with corners, as it is in some Countries at this day. Some say it is so called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, quia communis, moneta à monendo, because* 1.480 it sheweth the authour and value. Every piece of Money ought to have a certain form of impression which shall be cognoscibilis, & discernibilis, for as Wax is not a Seal without print, so metall is not Money, without impression.

MONOPOLY.

Monopoly, It is an allowance by the King by his Grant, Commission or otherwise, to any person or persons, bodies politique or corporate, of or for the sole buying, selling, making, working, or using of any thing, whereby any person or per∣sons, bodies politique or corporate, are sought to be restrained of any Freedom or Liberty that they had before, or hindred in their lawfull Trade. Cook's 3 part of his Institutes c. 85.

All Grants of Monopolies are against the An∣tient and Fundamentall Laws of this King∣dom. Id ibid.

All Monopolies are against the great Charter, because they are against the Freedom of the Subiect, and against the Law of the Land. Cook's 2 part of Instit. c. 29.

MONSTER.

A Monster born within lawfull matrimony, that* 1.481 hath not humane shape, cannot purchase, much less retain any thing, yet if he have humane shape, he may be heir, though he have some desormity in any part of his body.

MORTGAGE.

Mortagage, is derived of two French words, viz. mort, id est, mortuum, and Gage, id est vadium, or pignus. And it is called in Latin mortuum vadium or Morgagium, to distinguish it from that which is called vivum vadium. As if a man borrow an hundred pounds of another, and maketh an estate of Lands unto him, untill he hath received the said summe of the issues and profits of the Lands, so* 1.482 as in this Case neither Money nor Land dieth or is lost, and therefore it is called vivum vadium.

MORTMAIN.

Mortmain, Some have said, that it is called manus mortua, quia possessio eorum est immorta∣li••, manus pro possessione, & mortua pro immorta∣li. Others say, it is called manus mo••tua per an∣tiphrasin, because bodies politick and co porate never die. Others say, that it is called Mortmain by resemblance to the holding of a mans hand that is ready to die, for that he then holdeth, he letteth not to go, till he be dead. These and such others are framed out of wit and invention, but the true cause of the name, and the meaning thereof was taken from the effects, as it is expressed in the S••atute it self, per quod quae servitia ex hujus∣modi* 1.483 foedis debentur, & quae ad defensionem reg∣••i ab initio provisa fuerunt indebitè subtrahun∣tur, & capitales domini eschaetas suas amittant, 〈…〉〈…〉 as the Lands were said to come to dead hands, as to the Lords, because by alienation in Mortmain, they lost wholly their Escheats, and in effect their Knights services for the desence of the Realm, Wards, Marriages, Reliefs, and the like, and there∣fore it was called a dead hand, for that dead hand 〈…〉〈…〉ieldeth no service.

Notwithstanding the Statute of Mortmain, a∣〈…〉〈…〉y one at this day may give Lands for finding a 〈…〉〈…〉reacher maintenance, or a School, for the Sta∣〈…〉〈…〉te was made to restrain men from giving to su∣••rstitious* 1.484 uses, and not to good and charitable 〈…〉〈…〉es.

MULIER.

Mulier, hath three significations.* 1.485

• 1. Sub nomine mulieris continetur quoelibet foe∣mina.
• 2. Propri•• subnomine mulieris continetur mulier, quae virgo non est.
• ...

• 3. Appellatione mulieris in legibus Angilae conti∣netur uxor, & sic filius natus, vel filia nata ex justa uxore appellatur in legibus Angliae filius mu∣lieratus, seu filia mulierata, a son mulier, or a daughter mulier.

If the Bastard dieth, seised without issue, and the Lord by escheat entreth, this dying seised shall not barre the mulier, because there is no de∣scent.

If the Bastard enter, and the mulier dieth, his Wife privement enseint with a Son, the Bastard hath issue and dieth seised, the Son is born, his right is bound for ever, but if the Bastard dieth seised, his Wife enseint with a Son, the mulier en∣ter, the Son is born, the issue of the Bastard is barred.

A young Son which is born during the espou∣sals* 1.486 of a lawfull Wife, is called mulier or filius mulieratus, for in our Laws mulier is taken for uxor.

It is taken in our Law for one that is lawfully be∣gotten and born, and is alway used in comparison with a Bastard, only to shew a difference between them and alwaies you shall find this addition to* 1.487 Bastard eldest, and mulier youngest, when they be compared together.

MURDER.

Murder, is a wilfull killing of a man upon malice prepensed or forethought, and seemeth to come of the Saxon word Mordren which so signifieth.

If upon an affray made, the Constable and others in his assistance come to suppress the fray, and to* 1.488 preserve the Peace, and in doing their office, the Constable or any of his assistants is slain, this is murder in the Law, although the murderer knew not the party which was killed, and although the

affray was suddain, because the Constable and his a••sistants came by authority of the Law to keep the peace, and to prevent the danger which may ensue by breaking of it, and for this the Law ad∣judgeth it murder, and that the murderer had ma∣lice prepensed, because he opposeth himself againt the Justice of the Realm, so if the Sheriff, or any* 1.489 of his Bailiffs or other Officers be slain in the exe∣cution of the process of the Law, or in doing their Office, or if a Watchman be killed in doing his Of∣fice, this is murder.

If a thief, which offers to rob a true man, kill* 1.490 him in resisting the thief, this is murder of malice prepensed; or if one kill another without any pro∣vocation, the Law implyeth malice.

The Statute 1 Iac. Reg. c. 8 hath well pro∣vided, that that party that stabbeth, or thrusteth any person (not having a weapon drawn, or that hath not first striken him) so as he die thereof within six moneths after, shall suffer death as a willfull murderer.

A. hath wounded B. in fight, and after they meet suddainly, and fight again, and B. killeth A. this seemeth murder, and malice shall be intended in B. upon the former hurt; but now if A. had kil∣led B. this seemeth but man-slaughter in A. for his former malice shall be thought to be appeased by the hurt he first did to B.

If two fall out upon a suddain occasion, and a∣gree to fight in such a field, and each of them go and fetch their weapon, and go into the field, and there in fight, the one killeth the other: here is no malice prepensed, for the fetching of the weapon and going into the field, is but a continuance of the

suddain falling out, and the blood was never cool∣ed: But it they appoint to fight the next day, that is malice prepensed. Sir Edward Cook's 3 part of Institutes c. 1.

If A. put poison in a pot of Wine, to the intent to poison B. and lay it in a place where he sup∣poseth B. will come and drink of it, and by acci∣dent one C. (to whom A. hath no ma••ice) come, and of his own head take the pot, and drink of this; of which poison he dies, this is murder in A. for* 1.491 he coupleth the event with the intention, and the end with the cause But if one prepare Bats-bane to kill Rats and Mice, or other Vermine, and leave this in some place to this purpose, and with no ill intent; and one finding this, eat of it, this is not f••lony, because he which prepared the poison, had no evil or felonious intent.

Iohn Sanders had a purpose to kill his Wife, to the intent he might marry another whom he bet∣ter affected, and opens his intent to Alexander Ar∣cher, and prayes his aid and counsell how he may effect it; he counsels him to poison her. And to this purpose the said Alexander buyes the poi∣son, viz. Arsenick and Rose-acre, and gives this* 1.492 to Sanders to minister to his Wife. Afterwards he gives his Wife this in a rosted Apple, and the Wi••e eats a little part of it, and gives the rem∣nant to her young child about three years old, and the said Iohn Sanders seeing this, reprehends his Wife, and saith that Apples were not good for such* 1.493 children, and she saith it was better for the child then for her; and the child eats the impoisoned

Apple, which the Father permits, to avoid suspicion; afterward the woman recovers, and the child dies of the said poison. This was murder in Sanders, though he bore no malice to his child, because he had an intent to kill a person: so if one lie in wait in a place to kill one, and another cometh to the place, and he which lies in wai•• mistakes him, and kills him; this is murder, being founded upon prepen••ed malice.

It was a Custom in old time, if one were found* 1.494 g••ilty in any appeal of murder, that his Wife, and all the nearest of his kin which was murdered, should draw the felon, who committed the mur∣der, by a long rope to the place of execu∣tion.

If a Peer of the Realm be arraigned at the suit of the King upon an Indictment of Murder he* 1.495 shall be tryed by his Peers, that is Nobles; but if he be appealed of murder by a Sub••ect, his tryal shall be an ordinary Jury of twelve Free∣holders, as appears 10 Edw. 4, 6. 33 Hen. 8.

The Town-ship shall be amerced for the escape of a murderer tempore diurno, although the mur∣der was committed in the town-field, or lane, L. Dyer p. 210. B.

If a man be attainted of murder, he shall suffer pain of death, and shall forfeit lands, goods and cha••tels.

MUTE.

A Prisoner may stand Mute two manner of waies;

• 1. When he stands mute without speaking of any thing; and then it shall be enquired, whether he stood mute of malice, or by the Act of God, and if it be found that it was by the Act of God, then the Judge of the Court ex officio, ought to

• inquire whether he be the same person, and of all other Pleas which he might have pleaded, if he had not stood mute.
• 2. When he pleads not guilty, or doth not di∣rectly answer, or will not put himself upon the enquest, to be tryed by God and the Countrey. Cook's 2 part of Instit. c. 12.

If a man stand mute in an Indictment he shall be put to his penance, if in an appeal he shall be hanged, if in a case of Treason, he shall be drawn and hang'd.

N

NAME.

NAme, If a grant be made to a Bastard, by* 1.496 the name of him which begot him, as is supposed; this is good, if he be known by such a Name.

The penalty or forfeiture of Players, prophanely using the Name of God, is ten pounds, the one moity to the King, the other to him that will sue the Statute, 3 Iac. 21.

NIEFE.

Niefe, some have holden, that if a Free-man take a niefe, by this marriage the Wife shall be* 1.497 free for ever; but the better opinion of our Book•• is, that she shall be priviledged during the cover〈…〉〈…〉 ture only, unless the Lord himself marrieth hi〈…〉〈…〉 neife, and then some hold that she shall be free fo〈…〉〈…〉* 1.498 ever.

If a Free-man marry a Wife which is a neife t〈…〉〈…〉

another, she shall be free for ever, although the Husband die and she survive, this is in favorem li∣bertatis.

NISI PRIUS.

Nisi prius, is a judiciall Writ, and so called because* 1.499 that word is in the Writ.

NON COMPOS MENTIS.

Non compos mentis, is a man of no sound memo∣ry, many times the Latin word explaineth the true sense, and calleth him Amens, demens, furiosus, luna∣ticus,* 1.500 fatuus, stultus, or the like: but non compos men∣tis is most sure and legall.

Non compos mentis is of four sorts. Ideota which from his nativity by a perpetuall infirmity is non compos mentis. 2. He that by sickness, grief,* 1.501 or other accident wholly looseth his memory and understanding. 3. A lunatique, that hath some time his understanding and sometime not aliquando gaudet lucidis intervallis: and therefore he is called non compos mentis so long as he hath not understanding. Lastly, He that by his own vitious act for a time depriveth himself of his memory and understanding as he that is drunken, but that kind of non compos mentis shall give no priviledge or benefit to him or his heirs; and a discent shall take away the entry of an Ideot, albeit the want of understanding was perpetual. So likewise if a man that becomes non compos mentis by accident be disseised and suffer a dis∣cent, albeit he recover his memory and under∣standing again, yet he shall never avoid the dis∣cent, and so it is a fortiori of one that hath lucida* 1.502 intervalla. If an Ideot make a scoffment in fee, he shall in pleading never avoid it, saying that He was an Ideot at the time of his scoffment, and so had been from his nativity. But upon an

Office found for the King, the King shall avoid the seossment for the benefit of the Ideot, whose custody the Law giveth to the King: So it is of a non compos mentis, and so it is of him qui gaudet lucidis intervallis, of an estate made during his lunacy; for albeit the parties themselves can∣not be deceived to disable themselves, yet twelve men upon this Office may find the truth of the matter. But if any of them alien by fine or recovery, this shall not only bind himself, but his heirs also.

Non compos mentis cannot commit Felony, because he cannot have a selonious intent. Fu∣riosus (saith Bracton) non intelligit quid agit, & animo & ratione caret, & non multum distat à bru∣tis.* 1.503 Neither can he commit Petty Treason, as if a woman non compos mentis kill her Husband; but in some cases non compos mentis may comm••t high treason, as if he kill, or offer to kill the King, for He is Caput & salus reipublicae, & à ca∣pite bona valetudo transit in omnes: and for this cause their persons are priviledged, that none ought to offer volence to them, but he is reus criminis laesae majestatis, and pereat unus ne pereant omnes.

Of▪ an Ideot which is so à nativitate the King* 1.504 hath custodiam, of non compos mentis He hath only provision, that is, of a naturall Ideot, the King hath his Lands to his own use; but of non compos mentis, He hath not to his own use, but shall with the profits of the Land maintain him, his Wife, Children and Houshold.

NOBILITY.

Nobility. In antient time the Senatours of Rome* 1.505 were elected a censu of their Revenues, so here in antient time, in conferring of Nobility respect

was had to their Revenues, by which their dig∣nity and nobility might be supported and main∣tained.

Gentry and Arms is of the nature of Gavel∣kind, for they descend to all the Sonnes, every Son being a Gentleman alike, which Gentry do not descend to all the Gentry alone, but to all their posterity. But yet jure primogeniturae the eldest* 1.506 shall bear a badge of his birth-right, his Fathers Arms without any difference, for he (as Little∣ton saith) is more worthy of blood; but all the younger Brethren shall give severall differences, & additio probat minoritatem.

The Common Law calls none noble under the* 1.507 degree of a Baron, and not as men of forraign Countries, with whom every man of gentle birth is accounted noble; for we daily see that both Gentlemen and Knights do serve in Par∣liament as Members of Commonalty; The Law hath conceived such an opinion of the peace∣able* 1.508 disposition of Noble-men, that is hath been thought enough to take one of their promises upon his honour, that He would not break the peace against a man. The person of a Baron (who is a Peer of Parliament) shall not be ar∣rested* 1.509 by his body, 1. In respect of their dignity▪ 2. Because the Law presumeth that they have suf∣ficient Lands and Tenements wherein they may be distrained; yet in case of contempt they may be arrested by a Capias or attachment.* 1.510

About 200 Gentlemen have got honour in their Famalies by the study of our Common Law.

Every Baron of the Parliament ought to have a Knight returned of his Jury, every Earl or Baron shall be amerced a 100 li. The eldest Sons of Earls or Vicounts are not Barons in Law, but

in reputation. Those which of antient time were created Earls were of the blood Royal, and to this day the King in all his appellations stiles them per nomen charissimi consanguinei nostri, and* 1.511 therefore their bodies shall not be arrested for debt, trespass, and they shall not be put in Juries.

Those which were Earls were created for two purposes: 1. Ad consulendum regem & patriam tem∣pore pacis. 2. Ad defendendum regem & patriam tempore ••e••l••: and therefore antiquity hath given them two ensigns to resemble these two duties.

• 1. Their head is adorned with a Cap of honour,* 1.512 and a Coroner; and their body with a Robe in re∣semblance of Counsell.
• 2. They are girt with a Sword, to shew that they should be faithfull, and loyall to defend their Prince and Countrey.

NUSANS.

Nusans. A man shall not have an action upon the Case for a Nusans done in the high-way, for it is a common Nusans; and then it is not reason* 1.513 that a particular person should have an Action. For by th•• same reason that one person should have an Action for this, every one may have an Action for it, and then he shall be punished a 100 times for one and the same cause. But if any particular per∣son after the Nusans made hath a more particular dammage then any other, for this particular injury he shall have a particular Action upon the Case.

O.

OATH.

AN Oath is an affirmation or denyal by any Christian of any thing lawfull and honest, be ore one or more, that have authority to give the same for advancement of truth and right, call••ng Almighty God to witness that his testimony is true. It is called a corporall Oath, because he toucheth with his hand some part of the Holy Scrip∣ture. Cook's 3 part of Instit. c. 74.

The Law esteems it the best means to search out* 1.514 the truth, by the Oaths of honest lawfull and in∣different persons, as God shall help him, that is, as he will expect the blessing of God in this life, and eternal salvation in the life to come: therefore an Oath is aptly termed Sacramentum, an holy band, or sacred tie, or godly vow: some do call it Fir∣mamentum* 1.515 veritatis, the foundation and ground of truth: and some vinculum pacis, and if it be taken and sound by a whole Jury, consisting upon twelve persons or above, it is called Veredictum, viz. a presentment of truth.

OBLIGATION.

Obligation, is a word of his own nature of large extent, but it is commonly taken in the Common Law, for a Bond containing a penalty with Con∣dition* 1.516 for payment of Money, or to do, or suffer any act or thing, and a Bill is most com∣monly taken for a single Bond without Con∣dition.

If a man be bound i•• an Obligation with Con∣dition, that if the Obligor do go from the* 1.517 Church of St. Pet. in We••tmi••ster, to the Church of St. Pet. in Rome within three hours, that th••n that Obligation shall be void: the Condition is void, and im••o••••ble. If a man be bound to pay 20 pound a•• any time at a place certain, the O••∣ligo* 1.518 cannot tender the Money at the place when he will, •••••• then the Obligee should be bound to perpetuall a•••••••• ••ince, and therefore the Obligor in ••e••p•••••• o•• the 〈◊〉〈◊〉 of the time must give the Ob••ige•••••• •••••••• that on such a day at the place limited he wil•• pay the Money, and then the Obli∣gee must attend there to receive it; for if the Obli∣gor pay the money. He shall save the penalty of the Bond •••••• ••ve••.

Wher•••••• a man is bound to pay 1•• li. at such a day and place, i•• the Obligee accept a le••s summe at the same day and place, this appears to the Court to be no 〈◊〉〈◊〉 of the greate, but acceptance* 1.519 of the les•• at a day before it is d••e, or at another place, or of some other thing (as of an horse) may be a s••••••sfaction

When any act to be done by condition, is to be done by the sole act, or labour, or industry of a stranger, which act in no manner concerns the Obligo••, Obligee, or any other person, and no time is limited when this shall be done, it sufficeth the Obligor, if the act be done in the life of him which ought to do this, as if I am ob∣liged* 1.520 to you on condition, that I. S. shall go to Rome or Ierusalem, or that such a Student in Di∣vinity at the University shall preach at Pauls, or in the Law, shall argue the matter in Law in Westminster Ha••l, in these cases no time being limited, they have time to do it during their lives.

OCCUPATION.

Occupation, is a word of Art, and signifieth a putting out of a mans Free-hold in time of warre,* 1.521 and it is all one with a disseinsin in time of peace, saving that it is not so dangerous.

OFFICE.* 1.522

Office. If an Office be granted to two proter∣mino vitarum suarum, by the death of one of them the grant shall be void; for being an O••••••ce of trust there shall be no survivour of it. •••••• i•• it be ex∣pressly granted to two, & di••tius ••••••um ••i••enti, the survivour shall have it.

Officia Iudicialia non c••nceda••tur a••te ••am ••••∣cent:* 1.523 Judicial Offices cannot be granted in rever∣sion, but ministerial may.

By the Law of England it is provided that no* 1.524 Officer or minister of the King shall be ordained or made for any gift or brocage, favour or affection; nor that any which pursueth by him, or any other* 1.525 privily or openly to be in any manner of Office, shall be put in the same Office or in any other, but that all such Officers shall be made of the best, and most lawfull men, and 〈◊〉〈◊〉. A Law worthy to be written in Letters of gold, but more worthy to be put in due execution.

An Office of skill and diligence, or annuity pro concilio impendendo, cannot be forfeited by attainder of treason. The King granteth an Of∣fice to one at will, and 10 li. ••ee during li••e pro officio illo: now if the King put him from this Of∣fice, the ••ee shall cease.

The Officer or Minister of Law in the execution* 1.526 of his Office, if he be resisted or assaulted, is not bound to fly to the wall (as other Subiects are) for Legis minister non tenetur in execution•• officii fugere seu retrocedere.

If a Justice of the Common Place be made Justice of the Kings Bench, though it be but hac vice, it* 1.527 determineth his Patent of the Common Place; for if he should be Judg of both Benches together, he should controll his own judgment: for if the com∣mon place erre, it shall be reformed in the Kings Bench. But a man may be Justice of the Common Pleas, and Chief Baron of the Exchequer simul & se••el.

These words colore officii are alwaies taken in malam partem, and vary from these words virtute officii, or ratione officii, which are alwaies taken in bonam ••a••tem, and imply that the Office is the just cause of the thing and the thing is pursuing the Office: but the other words signifie an act ill done* 1.528 by pretence and countenance o•• the Office, and it carrieth the counterseit shew of duty, and the act it self hath a proper name, and is called Extortion. As if an Officer will take more for his fees then he ought, this is done col••re officii sui, but yet it is not part of his Office, and it is called Extortion, which is no other then robbery; nay more hate∣full, in as much as the other is apparent, and hath the visor o•• vice▪ but this appeareth under the visage of virtue, and so is more hard to be avoided, and by so much the more detestable.

OXGAUGE.

Oxgauge, or oxgate, Bo••a••a ter••ae, a word much* 1.529 used in our old Books, and is as much land as an Ox can till, by the grant of an Oxgauge of land may pass Medow and Pasture.

ORDINARY.

Ordinary, is he that hath Ordinary jurisdiction in causes Ecclesiasticall, immediate to the King and* 1.530 his Courts of Common Law for the better execu∣tion of Justice; as the Bishop or any other that

hath exempt and immediate jurisdiction in causes Ecclesiasticall.

It is derived ab ordine, to put him in mind of the duty of his place, and o•• that order and Office that he is called unto. Cook's 2 part of Institutes c. 19. See more there.

ORDAEL ORDALIUM.

Ordael ordalium, in the Saxon language ordael,* 1.531 which is as much to say, as Expers criminis, for or in that language is privative, and del is part, that is, not party, or not guilty * 1.532.

Or signifies right. deale part (say some) whereof they had these kinds: or deal by fire which was for the better sort, and by water for the interiour. That of fire was to go blind••old over certain plough-shares made red hot, and layed an uneven distance one from another▪ that of water was either of hot, or cold, in the one to put their arms to the elbow, in the other to be cast head-long.

OUTLAWRIE.

Outlawrie, is the loss or deprivation of the be∣nefit belonging to a Subject, that is of the Kings protection and the Realm. Heretofore none could* 1.533 be out-lawed but for felony, the punishment where∣of was death, but now the Law is changed. An out-lawed man had then caput lupin••m, because he might be put to death by any man, as a Wol•• that hatefull heast might.

P.

PAINE FORT ET DURE.

PAine f••••t & dure is a speciall punishment for such as being arraigned for selony, re∣fuse to put themselves upon the common tryall of God and the Countrey, and thereby are m••••e. Such a one shall be sent back to the pri∣son whence he came, and be laid in some low* 1.534 dark house where he shall lie naked upon the earth, without any litter or other clothing, and without any rayment, save only to cover his p••ivy Members, and he shall lie upon his back, with his head covered and his feet. And one arm shall be drawn to one quarter of the house with a co••d, and the other arm to another quarter, and ••ro•• or stone shall be laid on his body so much as he can bear; and the next day follow∣ing he shall have three morsels of barley Bread Without drink and puddle water next unto the prison door, which pain may be called fort, in that it is so ponderous and grievous that he cannot bear or sustain it; and dure because he shall not* 1.535 have release of it during his life, but shall die in it.

PANNELL.

Pannell, is an English word, and signifieth a little part, for a pane is a part, and a pannell a little part (as a pannell of wainscot, a pannell of a saddle, and a pannell of parchment, wherein* 1.536 the Jurors Names be written, and annexed to the Writ; And a Jury is said to be impannelled)

when the Sheriff hath entred their Names into the pannell, or little piece of pa••chment in pannell•• Assisae.

PARAVAILE.

Paravaile. He is called Tenant paravaile, be∣cause* 1.537 the Law presumeth that he hath benefit and availe over the services which he payeth to the Lord.

PARCENERS.

Parceners. If a partition be made between two Coparceners of one and the self same land,* 1.538 that the one shall have the land from Easter un∣till Lammas, and to her heirs; or the one shall have it the first year, and the other the second year alternis vicibus, there it ••s one self same land wherein two persons have severall Inhe∣ritances at severall times. So it is if two Copar∣ceners have two severall Mannors by descent, and they make partition, that the one shall have one Mannor for a year, and the other the other Mannor for the same year, and after that year, then she that had the one Mannor shall have the other, & sic alternis vicibus for ever.

If an Earl that hath his dignity to him, and his heirs dieth, having issue one daughter, the dignity shall descend to the daughter, for there* 1.539 is no incertainty, but only one daughter, the dignity shall descend unto her and her poste∣rity, as well as any other Inheritance: but where there be more daughters then one, the eldest shall not have the dignity and power of the Earl, that is to be a Countess, but the King who is the Sovereign of Honour and Dignity, may for the incertainty conferre the dignity up∣on which of the daughters he pleaseth. But

there is a difference between a dignity or name of nobility, and an Office of Honour. For if a man hold a Mannor of the King to be high Con∣stable of England, and die having issue two* 1.540 daughters, the eldest daughter taketh Husband, he shall execute the Office solely, and before mar∣riage it shall be executed by some sufficient Depu∣ty. But the dignity of the Crown of England is without all question descendible to the eldest daughter alone and her posterity, and so it hath been declared by Act of Parliament: for Regnum non est divisibile.

They are called Parceners, because by the Writ which is called De partitione facienda, the Law will compell them to make partition of the Land. There is an Action in the Civil Law very like to this, called Actio familiae here s∣cundae.

PATRON.

Patron. Pollard 12. H 8. doth well distinguish the interest of the Parson, Patron and Ordinary, the Parson (saith he) hath a spiritual posses∣sion in the Church, the Ordinary hath charge of the Church to see the cure served, the Patron jus praesentandi to the Church.

PARSON.

Parson. Persona in the legall signification is taken for the Rector of a Church parochial, and is called Persona Ecclesiae, because he assumeth* 1.541 and taketh upon him the Parson of the Church, and is said to be feised in jure Ecclesiae, and the Law had an excellent end herein, viz. that in his person the Church might sue for and defend her right; and also be sued by any that had an elder and better right: and when the Church is full, it is said to be plena & consulta of such a one

Parson thereof, that is, full and provided of a Parson that may vicem seu personam ejus gerere,* 1.542 persona impersonata: Parson Impersonee is the Re∣ctor that is in possession of the Church parochi∣all, be it presentative or impropriate, that may vicem seu personam ejus gerere. If a Parson of a Church waste the Inheritance of his Church to his private use in cutting down the Trees, the* 1.543 Patron may have a Prohibition against him, for he is seised in right of his Church, and his glebe is the dower of his Church.

PARLIAMENT.

Parliament, is the highest, and most honourable,* 1.544 and absolute Court of Justice of England, con∣sisting hereto••ore of the King, the Lords of Parli∣ament and the Commons. And again, the Lords, viz. Spiritual and Temporall. And Commons are di∣vided into three parts, viz. into Knights of Shires or Counties, Citizens out of Cities, and Burgesses out of Buroughs. All which have voices and suf∣frages in Parliament. Of the Members of the Court, some were by descent, as antient Noble∣men; some by creation, as Nobles newly created; some by succession, as Bishops; some by election, as Knights, Citizens and Burgesses.

In the Lords House, the Lords give their voices from the paisne Lord seriatum by the word of (Content) or (not Content.) The Commons give their voices upon the question, by Yea or No, and if it be doubtfull, and neither party yeeld, two are appointed to number them, one for the Yea, another for the No: the Yea going out, and the No sitting: and thereof report is made to the House. Cook's 4 part of Instit. c. 1.

It is called Parliament, because every Member of the Court should sincerely and discreetly parler

la ment for the generall good of the Common∣wealth.* 1.545 This Court the French calleth ••es estats, or l•• assemblee des estats: in Germany it is called a Diet. It is legally called in Writs and judiciall proceedings, C••m••une con••ilium Regni Angliae.

The jurisdiction of this Court is so transcen∣dent, that it maketh, inlargeth, diminisheth, ab∣rogateth, repealeth, and reviveth Laws, Statutes, Acts and Ordinances concerning matters Ecclesi∣asticall, capitall, criminall, common, civill, martial, maritime, and the rest.

The efficient causes of an Act of Parliament were the assent of the Estates, viz. 1. Of the* 1.546 King. 2. Of the Lords Spirituall and Temporall. And, 3. Of the Commons: and each without the other cannot perfect this work; and yet untill the royal assent, it was but embrio in ventre matris, and by the royal assent coming last it took life and vigour. The Assembly of the three Estates, viz. the King, Nobility and Commons, which make the body of the Realm, was called a Parliament. For without all three (as if it be done by the King and Lords, but nothing spoken of the Commons) it was no Act of Parliament. And although the Lords and Commons agree to it, yet it was not an Act untill the King had assented al∣so, and his assent alwaies comes after their assent, and commonly this is the last day of Parliament▪ from this day forward it was an Act, and not be∣fore, for before the Kings assent, it was an issue in the Mothers womb, which is not perfect untill it be born, for the Statute was not full and perfect untill his assent given to it. But it shall be count∣ed* 1.547 an Act from the first day of the Parliament, unless the certain time be specified when the Act shall first take effect. But if the Parliament have divers prorogations, and in the second o••

third Session an Act is made, this shall not have relation to the day of the beginning of the Par∣liament, viz. to the first day of the first Session, but only to the first day of the same Session, in which it is made.

Of Acts of Parliament some are introductory of a new Law, and some are declaratory of the antient Law, and some are of both kinds by ad∣dition of greater penalties or the like. Cook's 4th part of Instit c. 1.

One of the principall ends of ca••ling of Parlia∣ments is for the redress of the ••mischiefs and grievances that daily happen. Cook's 4th part of Instit. c. 1.

PARQUE.

Parque, is a French word, and signifieth that which we vulgarly call a Parke, of the French verb, parquer to inclose, it is called in Domesday Parcal, in Law it signifieth a great quantity of ground inclosed, priviledged for* 1.548 wild Beasts of chase by prescription, or by the Kings Grant; The forfeiture for hunting or kil∣ling of Deer in a Park, is 10 ll. or else treble dammages.

PEACE.

Peace, The Law of our Land useth the word Peace diversly: Sometimes it is taken for pro∣tection* 1.549 or defence, so Bracton calleth the Writs of protection Brevia de pace. Sometimes it is ta∣ken for Rrights, Priviledges, and Liberties, as in the Oath of the King at his Coronation: He swear∣eth servare ecclesiae Dei, cleri & populi pacem ex in∣tegro, that he will maintain each degree, and estate of his Subjects, as well Ecclesiasticall as Temporall. according to their severall Customes, Laws and Priviledges, sometimes for an abstinence from

injurious force and violence, so it is commonly* 1.550 taken, menacing beginneth the breach of the Peace, assaulting increaseth it, and battery accomplish∣eth it.

PERIURY.

Perjury, if a man swear to one that he will pay to him twenty pound which he oweth him at a certain day, and at the day faileth of the paiment, he may not be sued in the spirituall Court for the perjury, because an Action of debt lieth at the Common Law for for the principall. But 34 H. 6. it is said, that if a man buy an Horse for five pound, solvendum, such a day, and swear∣eth to make payment at the day, but when the day is come, faileth of payment, an Action of debt ly∣eth at the Common Law, and another at the Spi∣rituall Law, pro laesione fidei.

If a man calleth another perjured man, he may have his Action upon his Case, because it must be intended contrary to his oath in a judiciall pro∣ceeding: but for calling him a forsworn man, no Action doth lie, because the forswearing may be extra judiciall. Cook's 3 part of his Instit. c. 74.

PILLORY.

Pillory, cometh of the French pilorie, which proceeds from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 janua, and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 video, be∣cause* 1.551 one standing on the Pillory, putteth his head through a kind of door.

PIPOWDERS.* 1.552

Pipowders, is a Court belonging to Markets and Fairs, to yeeld Justice to the buyers and sellers coming thither, which because they are most frequented in Summer, the word was given of the dusty feet of the comers, from two French

words, pies pouldrez, id est, pedes pulvere inqui∣natos.

PLEAS.

Pleas. All pursuits and actions (we call them in our English tongue Pleas) and in barbarous, (but now usuall Latin) placita, taking the name abusive, of the definitive sentence, which may well be called placitum, or▪ 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The* 1.553 French call it arest, in which word after their custom, they do not found the••••. But we call placitum the action, not the sentence: and placi∣tare barbarously for to plead in English agere, or litigare.

Pleas are divided into Pleas of the Crown, and into Common or Civil Pleas. Pleas of the Crown are Treason and Felony, and misprison of Trea∣son and Felony; They are Communia placita, not in respect of the persons, but in respect of the quality of the Pleas. Cook's 4th part of Instit. c. 10.

All those Pleas which touch the life or mutila∣tion* 1.554 of man, are called Pleas of the Crown, and cannot be done in the name of any inferiour per∣son, then He or She that holdeth the Crown of England. And likewise no man could give pardon thereof, but the Prince only.

POSSESSION.

Possession. Possessio est quasi pedis positio.

In aequali jure melior est conditio possidentis, He that hath possession of Land, though it be by disseism, hath right against all men, but against* 1.555 him that hath right.

Possession is either 1. Actuall (possessio in fa∣cto) when a man entreth in deed into Lands or Tenements to him descended: 2. Or possession in Law possessio Civilis, when Lands or Tenements

are descended to a man, and he hath not as yet actually, and indeed entred into them.* 1.556

Possession must have three qualities, it must be 1. Long, 2. Continual, and 3. Peaceable.

POUND.

Pound, is either overt and open, so called be∣cause* 1.557 the owner may give his Cattell meat and drink without trespass to any other, and there the Cattell must be sustained at the perill of the owner, or covert and close, as if one impound the Cattell in some part of his house, and then the Cat∣tell are to be sustained with meat and drink at the perill of him that distreineth, and he shall not have any satisfaction therefore.

If a man distrain Cattell for dammage Feasant, and put them in the pound, and the owner that had common there make fresh suit, and find the door unlocked, he may justifie the taking away* 1.558 of his Chattell in the Writ of à Parco sracto. If the owner break the Pound, and take away his goods the party distreining may have his Action de par••o fracto, and he may also take his goods that were distreined wheresoever he find them, and impound them again.

PRAEMUNIRE.

Praemunire, is to be adjudged out of the Kings* 1.559 protection, to lose all their Lands and Goods, and to suffer perpetuall imprisonment.

Some hold an opinion, that the Writ is so called a praemunire, because it doth fortifie juris∣dictionem jurium regionum Coronae suae, the King∣ly Laws of the Crown against forreign jurisdicti∣on, and against the usurpers upon them, as by divers Acts of Parliamentt appear. But in truth it is so called of a word in the Writ, for the

words of the Writ are, praemunire facias prefatum* 1.560 A. B. quòd tum sit coram nobis, where praemunire is used for praemonerè, and so do divers Interpreters of the Civil and Canon Law use it, for they are raemuniti that are praemoniti, so odious was this Of∣fence of praemunire, that a man that was attaint∣ed of the same, might have been sla••n by any man without danger of Law, because it was provided by Law, that a man might do to him as to the Kings enemy, and any man may lawfully kill an enemy. But Queen Elizabeth, and her Parlia∣ment* 1.561 liking not the extream and inhumane ri∣gor of the Law in that point, did provide that it should not be lawfull for any person to slay any person in any manner attainted, upon any prae∣munire.

If a man kill one which is attainted by a prae∣munire, this is not felony, for he is out of the Kings* 1.562 protection, but it is contrary if one kill another, that is attainted of felony, and judged to die, but now by the Statute of Eliz. it is felony to kill one attainted by a praemunire.

Prebenda a praebendo auxilium, & consilium Epis∣copo.* 1.563

PREROGATIVE.

Prerogative, Littleton speaketh of the Kings* 1.564 prerogative but twice in all his Books, viz. sect. 126. and 178. and in both▪ places as part of the Laws of England, prerogativa is derived of prae, id est, ante & rogare, that is, to a••k or de∣mand* 1.565 before hand, whereof cometh prerogativa, and is denominated of the most excellent part, because though an Act hath passed both the

Houses of the Lords and Commons in Parliament, yet before it be a Law, the Royall assent must be asked, or demanded, and obtained, and this is the proper sence of the wold. But legally it ex∣tends to all powers, preheminences, and privi∣ledges, which the Law giveth to the Crown, Bracton l. 1. in one place calleth it libertatem, in another privilegium Regis. The King hath many rights of Majesty peculiar to himself (the learn∣ed Lawyers term them sacra sacrorum, that is, sacred, and individua, inseparable, because they cannot be severed, and the common sort r••yall Prerogatives, which they term the flowers of his Crown, in which respect they affirm, that the regall materiall Cown is adorned with flowers.

His person shall be subject to no mans suit, his possessions cannot be taken from him by any vio∣lence,* 1.566 or wrongfull disseism, his goods and chattels are under no tribute, toll, nor Custom, nor other∣wise distreinable.

The peoples liberty strengthens the Kings Prero∣gative, and the Kings Prerogative is to defend the peoples liberties, King Charles his speech, in the 3d of his Reign.

The King may licence things forbidden by Sta∣tutes; As to coyn money which is made fe∣lony by the Statute, and was before lawfull, for that is but malum prohibitum, but malum in se, as to leavy a nusance in the High-way, he cannot licence to do, but when it is done he may pardon it. All white Swannes not marked, which have* 1.567 gained their naturall Liberty, and are swimming in an open and common River, may be seased to the use of the King by his Prerogative, the Swanne is a royall Bird, and so the Whale, and Sturge∣on are royall Fishes, and belong to the King by his Prerogative. All those things, the property of

which is not known, belong to the King by his Prerogative.

A grant to the King, or by the King to ano∣ther,* 1.568 is good without attonement by his prero∣gative.

PRESCRIPTION.

Prescription, is three-sold, viz.

• 1. Personall, as the Inhabitants of a Town may prescribe for a way, &c.
• 2. Reall, as incident to an estate, as for a man to prescribe that he and they whose estate he hath had common, &c.
• 3. Locall, as where a man doth prescribe that within such a Mannor, &c.

Prescription, is a title taking his substance of use,* 1.569 and time allowed by the Law, as I. S. seised of the Mannor of D. in see, prescribeth thus, that I. S. his Ancestors, and all those whose estate he hath in the said Mannor, have time out of mind of man had, and used to have Common of pasture in such a place, being the Land of some other, as pertaining to the said Mannor. This properly we call a prescription. Cook on Lit. l. 2. c. 10. sect. 170.

Prescription shall hold sometime against the King, in such things as a man may prescribe in,* 1.570 as one shall prescribe for wayse and straise against the King. The King may also outstay his time, if it be found the Tenant for term of life, hath forfeited his estate to the King, whereby the King ought to cease, if his grace sease not, but tarry till he be dead, so that he in the reversion entreth, he cannot then cease, so that maxim is not universally true, Nullum tempus occurrit Regi.

The Statute de praerogativa Regis, quòd nullum tempus occurrit Regi, is to be understood when

the King hath an Estate or Interest certain and per∣manent,* 1.571 and not when his interest is specially limi∣ted; for the time is the substance of his title, and in such case ocurrit Regi.

PRESENTMENT.

Presentment, co••es of the French word pre∣senter to set before one: and in the understanding of the Law is a meer denuncia••ion of the Jurors themselves, or of some other Officer, as Justice, Constables, Surveyors, &c. most commonly de pro∣prio visu without the in••ormation or the prosecution of a third party of any offence inquirable in the Court whereunto it is presented. Lamb. Eirenarch. pa. 467.

PRESUMPTION.

Presumption. There be three sorts of presump∣tions: 1. Violent, which is many times plena probatio;* 1.572 as if one be run through the body with a sword in an house, whereof he instantly dieth, and a man is seen in the house to come out with a bloody sword, and no other man was at that time in the house. 2. Probable which moveth little▪ 3. Levis seu teme∣raria, which moveth not at all. So in a case of a Charter of seossment, if all the Witnesses to the Deed be dead, then violent presumption which stands for a proof is continual and quiet possession.

Presumptio stat in dubio: it is doubted of, and yet it is accounted veritatis comes quatenus in contrarium nulla est probatio ut regula se habet, stabitur presumpti∣oni donec probetur in contrarium.

PRISON.

Prison. Every suffering of a Prisoner to escape is a* 1.573 breach of prison. If a man arrest one for felony, and after let him go at large whether he will, if he be arrested for felony, it is Felony; if for Treason, it is* 1.574 Treason; if for a trespess, it is a trespass, & sic de singulis.

PRIVITIE.

Privitie, is a word common as well to the Eng∣lish as to the French, and in the understanding of the Common Law is four-sold: 1. Privies in estate as between the Donor and Donee, Lessor and Les∣see,* 1.575 which privitie is ever immediate. 2. Privies in Blood, as the Heir to the Ancestor, or between Coparceners. 3. Privies in representation, as Ex∣ecutors to the Testator. And 4thly, Privities in te∣nure, as the Lord and Tenant which may be re∣duced to two generall Heads, Privies in Deed, and Privies in Law.

PRIVILEDGE.

Priviledge, privilegium is ius singulare, whereby a private man, or a particular Corporation is ex∣empted from the vigour of the Common Law, for that which is now called proprium, hath been called of old Writers privum.

PROCES.

Proces, it is called process, because it procee∣deth (or goeth out) upon former matter, either original or judicial.

This word process hath two significations, it is largely taken for all proceeding in all reall and personall actions, and in all criminall and common Pleas, and processus derivatur à proceden∣do us{que} ad finem. 2. More safe for the proceeding af∣ter the originals is but of the plea before judgment.

The difference between process and the precept or warrant of the Justices. The precept* 1.576 or Warrant is only to attach and convent the party before any Indictment or conviction, and may be made either in the name of the King or of the Justice. Process is alwaies in the name of the King, and usually after an Indictment ••ound or other conviction; and because the King

is a party, it must also be with a non omittas propter aliquam libertatem.

PROOF.

Proof. Bracton saith there is probatio duplex, viz. viva, as by Witnesses, viva voce, and mortua; as by Deeds, Writings, Instruments. A Wife can∣not be produced either against or for her Husband, quia duae sunt animae in carne una, and it might be a cause of implacable discord between the Husband* 1.577 and the Wife, and a mean of great inconvenience; but in some cases Women are by Law wholly ex∣cluded to bear testimony, as to prove a man to be a villein; Mulieres ad probationem status hominis ad∣mitti non debent.

PROPERTY.

Property, if Plate be stollen, and sold openly in a Scriveners Shop, on the Market day, as every day is Market day in London, saving Sunday, this sale shall not change the property, but the party shall have restitution: for a Scriveners Shop is not a Market overt for Plate, for none will search there for such a thing, but if the sale had been o∣penly in a Gold-smiths Shop in London, so that every one which passed by the Shop might have seen it, this would have altered the property; But if the sale be in a Gold-smiths Shop, either be∣hind a hanging or cupboard, so that one passing by* 1.578 the Shop cannot see it, this shall not change the property, so if the sale be not in the Shop, but in a Warehouse, or other place of the House, this shall not change the property, for it is not in a Market overt, and none will search there for his Goods.

There can be no property of Birds, Fowls, Wild Beasts, in any person, unless they be* 1.579 tame, nevertheless, the Hawks, or Herons that build

in the ground of any person, be adjudged to be∣long to him that oweth the Ground.

Some things there are, the property whereof the Law cannot vest in any, and therefore it leaveth them to the occupant, that is, to him that can seise them as things which are by nature ferae naturae, as Beasts, Birds, or Fishes, being in their own liberty, and such things are no longer any mans, then when they are in his possession or custody, for when they have escaped and recovered their natu∣rall liberty, then they cease to be his. The nature of Bees is wild, and therefore when a swarme of* 1.580 them lighteth upon thy tree, they are no more thine before they be covered with thy Hive, then Hawks which have made their nests in some of thy trees, or Doves in thy Dove-house, for though the young birds be thine, whereof thou maist bring an Action of trespass, quare vi & armis pullas esperuiorum suorum in bosco nidificantium, or Columbas Colum∣baris sui caepit. Here he shall not use this word suos in his Writ, for that implyeth a contradicti∣on. The nature of Doves is wild, neither is it materiall that by custom they are wont avolare & revolare, to fly from home, and return home, and in such things which are tame, and by custom are wont to depart, and yet to return, this rule is al∣lowed, that so long they may be said to be thine, as they have animum revertendi.

Felony cannot be committed in taking of Beasts that be savage, and untamed at the time of taking, nor for taking of Doves being at large in the River, for such taking is not contr••ctatio rei alienae, sed quae est nullius in bonis. But when such things are made tame by any labour, and cost, the property of them is changed, and the nature altered, and then if a man take them out of my possession, a man may have an Action. It is felony to take young

Pigeons, or young Hawks out of their Nests be∣fore that they can fly, so to take Fishes kept in a Trunk. To take tame Deer is selony, i•• the taker* 1.581 know it to be tame. But the nature of Hennes and Geese is not savage, and therefore if they shall fly away, though they be past thine eye-sight, not∣withstanding in what place soever they be, they cease not to be thine, and whosoever detaineth them, is punishable by way of action.

There be three manner of rights of property.

• 1. Absolute, this property a man cannot have in any thing which is ferae naturae, but only in such things as are domitae naturae.
• 2. Qualified.
• 3. Possessory, these properties a man may have in things ferae naturae, and he may attain to them.

• 1. By industry, either by taking them only, and yet such things are his no longer, then they be in his possession or custedy, or by making them mansueta, id est, manui assueta, or domestica, id est, domui as∣sueta: But in these past, a man hath but a qualified property, so long as they remain tame, and so long felony may be committed by taking them away, but if they attain to their naturall liberty, and have not animum revertendi, then the property of them is lost.
• 2. Ratione imp••tentiae & loci, as where a man hath young Goshawks, Herons, or the like, which are ferae naturae, and do breed (or ayre) in his ground, he hath a Possessory property in them, so as if one take them when they cannot sly, the owner of the soyl may have an action of trespas, and to take these away is selony. But when a man hath Beasts, or Fowles that be savage, and in their wildness ratione privilegii Scil. by reason of a Parke, or Warrein, (as Deer, Hares,

• Conies,) Phesants, or Partridges, he hath no pro∣perty in them, therefore in an Action quare par∣cum,* 1.582 or Warrenam, regit & intravit & tresodamas, lepores, cuniculos, phasianos, perdices, &c. ib idem in∣venit, cepit, & asportavit, he shall not say suos, for that he hath no property in them, but they be∣long unto him, ratione privilegii, (for his gain and pleasure, so long as they remain in the place priviledged. And if the owner of the Park die, his Heir shall have them, and not his Execu∣tor, or Administrators, for that without them the Parke (which is an Inheritance) is not compleat, neither can Felony be committed by taking them.

If a man find an Hawk that was lost, and he do not sorthwith bring it to the Sheriff to be proclaimed, but do steal and carry it away, this is felony.

If a man make Cony-burrows in his own land, which increase to so great number, that they de∣stroy the Land of his neighbour next adjoyn∣ing, his neighbour cannot have an Action upon the Case against him, which makes the said Co∣ny-borrows, for now as the Conies come upon his Neighbours Land, he may kill them, for they are ferae naturae, and he which makes the Cony∣burrows hath no property in them, and he shall not be punished for the dammages which the Conies made, in which he hath no property, and which another may lawfully kill, and it was re∣solved in this case that none may erect a Dove∣coat,* 1.583 but the Lord of the Mannor, and if any do, that he may be punished in the Leet, but no Acti∣on of the Case lyeth by any particular man, for the infiniteness of the Actions which may be brought.

PROTECTION.

Protection, there be three things whereby eve∣ry Subject is protected, viz. Rex, Lex, & rescrip∣ta Regis, the King, the Law, and the Kings Writs. The Law is the rule, but it is mute, the King* 1.584 judgeth by his Judges, and they are Lex loquens. The process and the execution which is the life of the Law, consisteth in the Kings Writs, so that he that is out of the protection of the King, cannot be aided or protected by the Kings Law, or the Kings Writs, Rex tuetur legem & lex tuetur jus.

PROVISO.* 1.585

Proviso, this word hath divers operations sometimes it worketh a qualification or limita∣tion, sometime a condition, and sometime a co∣venant.

PUBLIKE.

Publike, necessity priviledgeth only quoad jura privata, for in all cases if the act that should de∣liver a man out of necessity to be against the Common-wealth, necessity excuseth not for privilegium non valet contra rempublicam, as ano∣ther saith, necessitas publica major est quam privata. If in danger of tempest those that are in the Ship throw over other mens goods, they are not an∣swerable: but if a man be commanded to bring Ordinance or amunition to relieve any of the Kings Towns that are distressed, then he can∣not for any danger of tempest justifie the throw∣ing of them overboard. If Husband, and Wife joyn in committing treason, the necessity of obe∣dience doth not excuse the assence as it doth in selony, because it is against the Common∣wealth.

PURCHASE.

Purchase, is when one cometh to Lands by con veyance, or title.

An Infant, or minor, (that is any that is under the age of twenty one years) hath without con∣sent of any other capacity to purchase, for it is intended for his benefit, and at his full age he* 1.586 may agree thereunto, and perfect it, or waive and disagree to the purchase, and so may his Heirs after him, if he agreed not thereunto at his full age. A man of non sane memory may without the consent of any other purchase Lands, but he himself cannot waive it, but if he dy in his mad∣ness, or after his memory recovered without a∣greement thereunto, his heir may waive and disa∣gree to the state, without any cause shewed. An Hermophradite may purchase according to the Sex which prevaileth.

A Wife (Uxor) is a good name of purchase, without a Christian Name, and so it is if a Christi∣an Name be added, and mistaken, as Em for Eme∣lin, for utile per in utile non vitiatur. But the* 1.587 Queen the consort of the King of England is an exempt person from the King by the common Law, and is of ability and capacity to purchase, and grant without the King, Purchases are good in many cases by a known name, or by a certain de∣scription of the person, without either sirname, or name of Baptism, as Uxori I. S. or primo genito filio, or filio natu minimo, I. S. or omnibus filiis, & fil•••••• us. A Bastard having gotten a name by reputation may purchase by his reputed or known name, to him and his Heirs, although he can have no beir. Per∣sons desormed having humane shape, Ideots, mad men, Leapers, Bastards, deaf, dumb, and blind minors, and all other reasonable Cratures, have power to

purchase, and retain Lands or Tenements. A monster born within lawfull matrimony, that hath not humane shape, cannot purchase, much less retain any thing. The same Law is, de pro∣fessis & mortuis seculo, for they are civiliter mor∣tui. If the Tenant holdeth by ••ealty, and a bushell of Wheat, or a pound of Comyn, or of Pepper or such like, and the Lord purchaseth a parcell of the Land, there shall be an apportionment, as* 1.588 well as if the rent were in money: and yet if the rent were in one grain of Wheat, or one seed of Comyn, or one Pepper-corn, by the purchase of past, the whole should be extinct, because when that thing which is extracted out of the Land comes to the Land again, it shall be natural∣ly extinguished, for that is revolutio ad materiam primam.

But if an intire service be pro b••no publico, as Knights service, Cas••le gard, cornage pro defensio∣ne* 1.589 Regni, for the defence of the Realm, or to re∣pair a Bridge or a way, to keep a Beacon, or to keep the Kings Records, or for advancement of Justice and peace, as to aid the Sheriff, or to be Constable of England, though the Lord purchase part, the service remaines, so it is if the Tenure be pro opere dev••tionis sive pietatis, as to find a Preacher, or to provide the Ornaments of such a Church, or pro opere charitatis, as to marry a poor Virgin, or to bind a Boy Apprentice, or to feed a poor man.

Q.

QUARRELS.

QUarrels, ▪Querela à querendo. This properly* 1.590 concerneth personall actions, or mixt at the highest, for the Plaintiff in them is called Querens, and in most of the Writs it is said Queritur. And yet if a man release all quar∣rels (a mans deed being taken most strongly against himself) it is as beneficiall as all actions, for by it all Actions reall and personall are re∣leased.

R.

RANSOME.

RAns••me, signifieth properly a summe of mo∣ney, paid for the redemption of a Captive, and is compounded of re and emo, that is to redeem, or buy again. There is a manifest* 1.591 difference between a ransome and an amerciament. For ransome is ever when the Law infflicteth a corporall punishment by imprisonment, but other∣wise it is of an amerciament.

RAPE.

Rape. Raptus is when a man hath carnall* 1.592 knowledge of a woman by force, and against her will. But if the woman conceive that is no rape, for she cannot conceive unless she con∣sent.

This word Rape is so appropriated by Law to this case, as without the word (••••apuit) it can∣not be expressed by any periphrasis or circumlocu∣tion; for carnaliter cognovit eam, or the like will not serve.

One W. D. was arraigned in the Kings Bench upon an Indictment of Rape of a Girl of 7 years* 1.593 old, and not above, viz. quod ipsam felonic•• rapuit & carnaliter cognovit. He pleaded that he was a Sc••t known and prayeth for his triall per medie∣tatem linguae, and he could not have it; because a Scot is not accounted here for an Alien, but ra∣ther a Subiect, and the Scottish Language is meer English. By good evidence of divers grave Wo∣men he was found guilty, but the Court doubts of the Rape in so tender years: but if she had* 1.594 been nine and over it would have been otherwise. In Bracto••s time Ravishers were thus punished, they lost their eyes and stones, for they calorem stupri induxerunt.

REBOUTER.

Rebouter, is a French word, and is in Latin re∣pellere, to repell or bar; that is in the understand∣ing* 1.595 of the Common Law, the Action of the Heir by the warranty of his Ancestor, and this is called to rebut, or repell.

RECORD.

Record, is derived of recorder to remember, as the Poet saith, si ritè audita recorder, if a Record once say the word, no man shall be received to averr or speak against it, or impugne the same, no, though such record contain a manifest or known falsehood, tending to the mischief, and overthrow of any person.

The Records are vetustatis & veritatis vestigia,* 1.596 the lively representations of time and truth, and reputed the Treasures of the Kingdom.

The Kings excellency is so high in the* 1.597 Law, that no Frce-hold may be given to the King, nor derived from him but by matter of Record.

A Record or sufficient matter in writing are* 1.598 good memorials, for litera scripta manet. And therefore it is said when we will by a••y Record or Writing commit the memory of any thing to posterity, it is said tradare memoriae. And this is the reason that regularly a man cannot prescribe or alledge a custom against a Statute, because that is matter of Record.

Record is a memoriall or remembrance in Rolls of Parchment, of the Proceedings and Acts of a Court of Justice, which hath power to hold plea according to the course of the Common Law, of reall or m••xt actions, or of actions quare vi & armis, or of such personall actions, whereof the debt or dammage amounts to forty shillings or above, which we call Courts of Record, and are created by Parliament, Letters Patents, or prescription, legally Records are rostrained to* 1.599 the Rolls of such only as are Courts of Record, and not Rolls of inferiour, nor of any other Courts which proceed not secundum legem & con∣suetudinem

angliae, and the Rolls being the Re∣cords or memorials of the Judges of the Courts of Record,) import in them such incontrolable credit and verity, as they admit no averment, plea or proof to the contrary. And if such a record be alledged, and it is pleaded that there is no such record, it shall be tried only by it self, and not by witness or Jury.

REGISTER.

Register, is the name of a most antient Book,* 1.600 and of great authority in Law, containing all the originall Writs of the Common Law: It is two∣fold, viz. Registrum brevium originalium, & registrum brevium Iudicalium, it is a French word and signi∣fieth a memoriall of Writs.

RELATION.

Relation, is a species of fictions in Law, making a thing done at one time to be accepted, revert∣ed, and as it were repuld, or to have its operation as is it had been done at another time, past verbi gratiâ. A. doth bargain, and sell Lands to B. in August by Indenture, which is not inrolled untill Oct. following, yet this hath such relati∣on to the date of the Indenture, that if A. offer that, and before the inrolment become bound in a statute or grant a Rents charge, or make a Lease for years, or take a Wise, or committed felony, yet shall none of these be of any force to charge or prejudice the state of B. for that the Law judgeth him now owner by relation, as from the time of the date, yet if a servant depart in August, for some great breach with his Master, do kill his Master in October, this is in Law petty treason, as if he had continued servant when he did the fact, because it relates to the malice concerned, when he was his servant.

RELEASE.

Release, is the giving or discharging of the right* 1.601 or action which any hath or claimeth against ano∣ther, or his Land, Laxare is properly to put Priso∣ners in setters at liberty, and relaxare is to do this often, and metaphoricè relaxare is to put at liberty settered estates and interests, and to make them absolute.

RELIEF.

Relief, as in antient time the Senatours of Rome* 1.602 were elected à censu of their Revenues, so here in antient time, in conserring of Nobility respect was had to their Revenues, by which their Dignity and Nobility may be supported and maintained, and so a Knight ought to have 20 li. per annum, a Baron 13 Knights Fees, and a quarter, an Earls 20 Knights Fees, and alwaies the fourth part of such Revenue which is requisite, by the Law to the Dignity shall be payed to the King for Relief, as the relief of a Knight is 5 ll. which is the 4th part of 20 ll. the re∣venue of a Knight, and the relief of a Baron is at 100 Marks which is the 4th part of his revenue, viz. 400 Marks, and includeth 13 Knights fees; and a quarter; and the relief of an Earl is a 100 ll. which is the 4th part of 400 of ll. his revenue: the Relief of a Marquess 200 Marks, his revenue being 800 Marks: the relief of a Duke shall amount

to 200 ll. and by consequent his revenue ought to be 800 ll. per annum; for every one of the Nobility is presumed in the Law to have suffici∣ent Frank-tenement ad sustinendum nomen & onus.

REMAINDER.

Remainder, is a remnant of the estate of the* 1.603 Grantor, or a residue of an estate in Lands de∣pending upon a particular estate, and created toge∣ther with the same; and in Law Latin it is called remanere.

There is a diversity between a Remainder limi∣ted by particular name, and by a generall name. For a Remainder limited by generall name* 1.604 may be good, although the person be not in esse at the time of the remainder limited; as if a Lease for life be made the Remainder to the right Heirs of I. and S. which is alive, this Re∣mainder may be good, and yet he hath no Heir at the time of the Remainder limited, the same Law is of a Remainder primo genito filio, but a Re∣mainder limited in particular, by name of Bap∣tism and sirname is not good if the person be not in esse.

If the person that is to take the Remainder be not in rerum natura, as if a Lease for life be made the Remainder to the right Heirs of I. S. I. S. being then alive, it sufficeth that the Inhe∣ritance* 1.605 passeth presently out of the Lessor, but cannot rest in the Heir of I. a St. For that living his Father he is not in reram natura, for non est haeres viventis: so as the Remainder is good upon the contingent, viz. if I. S. die during the life of the Lessee.

Remainder is a residue of the estate at the same time appointed over: Reversion is a residue

of the estate not at the same time appointed over: reversion is ad Dominum aut ejus haeredes unde jus primo derivatur Remainder ad tertium aliquem qui neque Dominus neque tenens in praesente est.

REMITTES.

Remitter, a French word, it signifieth to re∣store,* 1.606 and importeth a restitution of Possession unto a man antient right. It is derived of the Latin verb reomittere, which hath two significa∣tions,* 1.607 either to restore, and set up again, or to cease.

RENTS.

Rents, Rent paid yearly for Land, or other* 1.608 things, is call'd in Latin Reditus a reddendo, be∣cause it is yearly yeelded or restored for the Lands, rather à redeundo quia retr•• it: because it doth return to the Lessor or Donor, for the issues and profits of the Land, and in English it is called a Rent, the French word rentor, to rate or assess a price. Tenure by Rents is called vivi re∣ditus,* 1.609 because the Lords and the owners thereof do live by them.

A feme sole Lessee for life rendring Rent, takes a Husband, the Rent arere, the Wife dieth though here be no recovery in the Wives life time, yet be∣cause* 1.610 the Baron took the profit, he is still charge∣able in a Writ of debt for the Rent, for qui sentit commodum sentire debet & onus.

For Rent payable at a day, the party hath all the day till night to pay it, but i•• it be a great summe* 1.611 as five hundred, or a 1000 ll. He must be ready as long before the Sun-set, as the money may be told: for the other is not bound to tell it in the night.

REPLEVIN.

Replevin, is derived of replegiare, to redeliver* 1.612 to the owner upon pledges or surety: It had its originall of the word pledges, which denoteth them that undertake for the party, that he shall abide to be justified by the Law.

Goods may be replevied two manner of waies, viz. by Writ, and that is by the Common Law,* 1.613 or by the pleinte, and that is by the Statutes for the more speedy having a gain of their Cattell, and Goods. Replegiare is compounded of re and plegiare, that is to redeliver upon pledge or Sure∣ties.

RESCEIT.

Resceit, is in the Civil Law called Admissio tertiae persone pro interesse, in our Law when one is sued whose estate is so weak that he cannot de∣fend full Suit, then is another who is better able admitted up payer; sometimes Receit i•• sur Receit, this is against rule) as, A Wife be∣ing Tenant for life is received upon the default of her Husband, and after makes default he in rever∣sion* 1.614 shall be received; so if baron and feme be re∣ceived, and after baron make default the feme shall be received.

RESCOUS.

Rescous. It is an antient French word, coming from rescourrer, that is, recuperare to take from, to* 1.615 rescue, or recover Rescous is a taking away, and setting ••at liberty against Law, a distress taken, or a Parson arrested by the process or course of the Law. There is a Rescous indeed, and a Res∣cous in Law: of the first hath been spoken. A Re∣scous in Law is when a man hath taken in distress, and the Cattell distreined, as he is driving of them to the Pound, to go into the house of the owner, if he that took the distress demand them of the owner, and he deliver them not, this is a Rescous in Law.

RESERVATION.

Reservation, cometh of the Latin reservo, that is to provide for store. As when a man departeth with his land, he reserveth or provideth for him∣self a Rent for his own lively-hood. And some∣time it hath the force of saving or excepting; so as sometime it serveth to reserve a new thing, viz. a rent, and sometime to except part of the thing in esse, that is granted.

RETRAXIT.

Retraxit, is so called, because that word is the effectuall word in the entry. The difference be∣tween a non-suit and a retraxit, is ever when the Demandant or Plaintiff is present in Court. A non-suit is ever upon a demand made, when the* 1.616 Demandant▪ or Plaintiff should appear, and he makes default. A retraxit is a barre of all other actions, of like or inferiour nature. Q•••• semel acti∣onem renunciavit amplius repetere non potest. But re∣gularly non-suit is not so, but that he may com∣mence an action of like nature again. For it may be that he hath mistaken somewhat in that acti∣on,

or was not provided of his proofs, or mistook the day, or like.

REVERSION.

Reversion, it hath a double acception in our Law, the one is, jus revertendi cum status possessio∣nis defecerit: and this is but an interest in the* 1.617 Land when the occupation and possession of it shall fall, and so it is commonly taken. 2. When the possession and estate which was parted for a time ceaseth, and is determined in the persons of the aliens, assignees, grantees, or their Heirs, and shall effectually return to the Donor, his heirs or assignees whence it was derived. This is the most apt and proper signification of the word, which is nomen verbale, and derived of the verb revertor, & aptè dici non potest reversio; ante∣quam revertatur in facto.

A reversion is where the residue of the estate alwaies doth continue in him that made the par∣ticular estate, or where the particular estate is derived out of his estate. Cook on Lit. l. 1. c. 2. sect. 19.

RIGHT.

Right. Ius or right in generall signification includeth not only a ••ight for the which a writ* 1.618 of Right doth lie, but also any title or claim ei∣ther by force of a condition, Mo••••••ain or the like, for the which no Action is given by Law, but only an entry.

There is Ius proprietatis a right of ownership: Ius p••ssessionis, a ••ight of seis•• or possession: and Ius proprietatis & possessionis; a right both of pro∣perty

and possession; and this is antiently called Ius duplicatum. For example, if a man be disseised of an Acre of Land, the Disseisee hath* 1.619 Ius proprietatis, the Disseisor hath Ius possessionis, and if the Disseisee release to the Disseisor, he hath Ius proprietatis, & possessionis dormit aliquando Ius, moritur nunquam: for of such an high estima∣tion* 1.620 is right in the eye of the Law, as the Law preserveth it from death and destruction, troden down it may be, but never troden out.

Ius sive Rectum, signifieth properly and spe∣cially in Writs and in Pleas when an Estate is turned to a right, as by a discontinuance, dis∣sesin, where it shall be said, quod Ius descendit & non terra. But Right (also) doth include the Estate in esse in conveyances; and therefore if* 1.621 the Tenant in Fee-simple make a Lease for years, and release all his right in the Land to the Lessee and his Heirs, the whole estate in Fee-simple passeth.

Ius est sextuplex: 1. Ius recuperandi: 2. In∣tandi:* 1.622 3. Habendi: 4. Retinendi: 5. Percipiendi: 6. Pos∣sidendi.

RIOT.

Riot, is where three (at the least) or more do some unlawfull Act, it comes from the French word riottor, id est, rixari, scold or brawle.

ROBBERY.

Robbery, is so called, because Goods are taken* 1.623 as it were de la robe, from the robe, that is from the person. It is when a man taketh any thing from the person, or out of the possession of ano∣ther seloniously.

A Robbery was done in Ianuary after the Sun∣setting, during twilight, and it was adjudged that the Hundred should answer for it, because it was convenient time for men to travell, or be about their works or businesses, and with this accords* 1.624 the Book in 3. Edw. 3. tit coronne 293. that if one kill another at the hour of the Evening and escape, by the Common Law the Town shall be amerced, for this is counted in the Law part▪ of the day.

A man in time of Divine service upon the Sab∣bath Day was rob'd, Mountague Chief Justice was of opinion that the Hundred should not be charg'd, but Doderidge, Sir Iohn Crook, and Hawtain Justi∣ces, were of contrary opinion, that the Hundred should be charged, and so it was adjudged termi∣no Michaelis.

Although the thing so taken be not to the value but of a penny, yet it is felony for which the offender shall suffer death, and shall not have the* 1.625 benefit of his Clergy, not so much for the value of the goods taken, as for terrifying the party robbed, a putting him in dread and fear of his life.

He that robbeth any dwelling house, or out∣house* 1.626 belonging to it in the day time, of the va∣lue of 5 s. whether it be money, goods or ca••tels shall not have his Clergy.

If a Bailiff of a Mannor, or a receiver, or a Factor of a Merchant, or the like accountant be robbed, he shall be discharged thereof upon his* 1.627 account. But otherwise it is of a Carrier, for he hath his Hire, and thereby implicitely underta∣keth the safe delivery of the goods delivered to him, and therefore he shall answer the value of them if he be robbed of them. So if goods be de∣livered to a man to be safely kept, and after those

goods are stollen from him, this shall not excuse him, because by the acceptance he undertook to keep them safely, and therefore he must keep them at his perill. So it is if goods be delivered to one to be kept; for to be kept and to be safely kept is all one in Law: but if goods be deli∣vered to him to be kept as he would keep his own, there if they be stollen from him without* 1.628 his default or negligence, he shall be discharged. So if goods be delivered to one as a gage or pledge, and they be stollen he shall be discharged, because he hath a property in them, and there∣fore he ought to keep them no otherwise then his own: but if he that gaged them tendred the money before the stealing, and the other refused to deliver them, then for this default in him he shall be charged. If A. leave a Chest locked with B. to be kept, and taketh away the Key with him, and acquainteth not B. what is in the Chest, and the Chest together with the goods of B. are stollen away, B. shall not be charged therewith, because A. did not trust B. with them as th••s case is.

ROGUE.

Rogue. This word is but a late guest in our Law, for the Elder Statutes call such a one a vu∣••an•• strong or sturdy Begger and Vag••bond, and it seemeth to be se••ched from the Latin R••∣galor, an asker or Beggar, or the French, Rogue 〈…〉〈…〉d est arrogans.

ROUT.

Rout, is so called, because they do move and* 1.629 proceed in routs and numbers. The difference ••etwixt an unlawfull assembly, a rout and riot, ••s this, when three or more do meet to do an un∣••awfull act, this is an unlawfull Assembly, when

they move being weaponed from the place of their meeting, towards the place where they purpose to do an unlawfull act, (though they do it not) this is a Rout. When with unlawfull weapons, they do an unlawfull act, this is a Riot. An un∣lawfull Assembly may well be called an Intro∣duction, a Rout, a Persecution, and a Riot, an Execution.

S.

SEISIN.

SEisin or Seison, is common as well to the Eng∣lish* 1.630 as French, and signifieth in the common possession. whereof Seisina a Latin word is made, and Seisire a verb.

SEISINA.

Seisina is derived of à sedendo, for untill he have* 1.631 seisin, all is labour and grief, but when he hath seisin, he may sedere & acquiescere.

SERGEANTS.

Sergeants are so called à serviendo, & à servan∣do, or conservando, for they are conservators of the Law and Justice, and may be stiled as well Ser∣vantes leges, as servientes ad legem.

SHERIFF.

Sheriff or Shireve, is derived of two Saxon words, viz. Shire comitatus, which cometh of* 1.632 the Saxon verb, Shiram id est partiri, because the whole Realm is parted, and divided into Shires▪

and Reve praefectus, or praepositus, so as Sheriff is ••raefectus provinciae, or Comitatus, Keeper of the Shire or County, the words of his Patent be com∣missimus vobis custodiam comitatus nostri. And he hath triplicem custodiam, a three-fold custody, viz.

• 1. Vitae Iustitiae, for no suit begins, and no pro∣cess is served but by the Sheriff.
• 2. Vitae Legis, he is after long Suits, and charge∣able to make execution, which is the l••••e and fruit of the Law.
• 3. Vitae Reipublicae, he is Principalis conservator* 1.633 pacis, within the County, which is the life of the Common-wealth. He is called in Lain vice co∣mes, id est, vice comitis, that is instead of the Earl of the County, who in antient time had the Re∣giment of the County under the King, Sheriffs were great Officers, and Ministers of Justice long before the Conquest, and Justices of Peace had not their being untill almost 300 years after, viz. in the first year of Edward the 3d.

When the King makes a Sheriff, durante bene∣placito, although he may determine his Office at* 1.634 his pleasure, yet he cannot determine this in part, nor abridge the Sheriff of any thing incident or appurtenant to his Office, for the Office is in∣tire, and it ought to continue so without any fracti∣on or diminution, unless it be by Act of Par∣liament.

SOCAGE.

Socage, the legall termination of (agium) in composition signifieth service or duty, as homa∣gium* 1.635 the service of the man, escuagium servitium scuti socagium servitium socae h••••agium: the duty to be paid for a hide or plough-land, and so of cornagium, burgagium, villenagium.

When the Lord infeoffes another of arable land to hold of him in Socage, that is, per servi∣tium socae, as every such tenure at the beginning was, as Littleton saith: the Feoffee ad manutenen∣dum servitium socae, shall have common in the wastes of the Lord for his necessary beasts which dung his Land.

• 1. Because it was tacitely implyed in the feoffment, for the feoffee cannot dung his land without beasts, and they cannot be sustained* 1.636 without pasture, and per consequens the Feoffee shall have (as a thing necessary and incident) Common in the wastes and lands of the Lord.
• 2. For the maintenance▪ and advancement of tillage which is much regarded and favoured in the Law.

SERIEANTY.

Serjeanty, cometh of the French word Serge∣ant, that is Satelles, and it is the same with ser∣vice.* 1.637 It is called Magna serjeantia, or magnum servitium; great service as well in respect of the excellency and greatness of the person to whom it is to be done (for it is to be done to the King only) as of the honour of the service it self: and Littleton saith, it is greater and more worthy then Knights service.

This Tenure hath 7 speciall Properties.

• 1. To be holden of the King only.
• 2. It must be done when the Tenant is able in proper person.
• 3. This service is certain and particular.
• 4. The Relief due in respect of this tenure dif∣fereth from Knights service.
• 5. It is to be done within the Realm.
• 6. It is Subject to neither aid pour faire fitz chi∣valier. or file marrier.
• ...

• 7. It payeth no escuage.

STATUTE.

Statute, cometh of the Latin word statatum,* 1.638 which is taken for an Act of Parliament made by the King, the Lords, and Commons.

STATUTES.

Statutes. Anno gtio. Caroli Regis. C. 1. No Car∣rier with any Horse or Horses Waggon, men with waggons, Waynemen with Waynes, nor Drovers with Cattell shall travell upon the Lords Day, twenty Shillings forfeit for every offence, every Dutcher that kills or sells Victuals on that day, shall forfeit for every offence 6 s. 8 d. The offences being done in view of any Justice of Peace, Mayor, &c. or proved upon Oath by two Witnesses, or by confession of the offendor.

All such forfeits shall be leavied by any Con∣stable, or Church-Warden, by warrant from any Justice, Mayor, and by distress, sale of goods, or recovered by any person that will sue for the same by Bill, Plaint, or information in any of the Kings Courts of Record in any City or Town corporate, to the use of the poor of the Parish, saving that the Justice, Mayor, may reward the Informer according to their discretions: So that such reward exceed not the third part of the for-••eitures, to continue to the end of the first Se••••••on of the next Parliament.

Anno 1. Caroli Regis, C. 1.

No meetings of people out of their own Pa∣rishes on the Lords-day within this Realm, or the Dominions thereof, for any pastime whatso∣ever. Nor any Bear-baitings. Bull-baitings, Com∣mon Playes, or other unlawfull exercises used by any within their own Parishes, every person o••∣••ending, to forfeit for every offence 3 ••. 4 d. to

the poor of the Parish. One Justice of Peace of the County, or the chief Officer or Officers of any City or Borough, upon view or confession of the parties, or proof of one or more Witnesses on Oath, shall give warrant under hand, and seal to the Constables or Church-wardens of the Pa∣rish, to leavy the said penalty by distress and sale. And in default of distress, the offender to be set in the stocks three hours.

None shall be impeached by this Act, unless he be questioned within the moneth, to continue till the first session of the next Parliament.

Tertio Caroli capite 4to continued untill first ses∣sion of the next Parliament.

Anno 21 Iac. Regis. An Act to prevent and re∣form prophane swearing and cursing.

None shall hereafter swear or curse, if any of∣fend herein in the hearing of any Justice of Peace of the County, or of any Major, Justice of Peace, Bailiff, or Head-Officer of any City or Town Corporate, or shall be thereof convicted by the Oathes of two Witnesses, or confession of the party. They shall forfeit to the poor of the Parish for every time they so offend 12. d. And the Constable, Church-Warden, and Overseers of the poor of that Parish, by Warrant from such Ju∣stice or Head-Officer, shall leavy the same by di∣stress and sale of the offenders goods, rendring the overplus. And in defect of distress, if he or she be above twelve years, shall by Warrant from such Justice of Peace, or Head-Officer be set in the Stocks three whole hours. And if the offen∣dor be under 12 years of age, and do not forth∣with pay the forfeit, then he or she by Warrant of such Justice, or Head-Officer, shall be whip∣ped by the Constable, or by the Parent, or ma∣ster in his presence. This Statute shall be read by

the Minister of every Parish twice in the year, up∣on the Sunday after Evening Prayer.

The forfeiture for not repairing to the Church weekly is 12 d.

10. Iacobi. Who be adjudged Rogues by the Stat. of 39 Eliz. 4.

All persons calling themselves Scholars, going about begging, all Sea-fa••ing-men pretending loss of their Ships or goods on the Sea, going about the Country begging, all idle persons, For∣tune-tellers, all Fencers, Bear-wards, common Players of Enterludes, and Minstrels wandring abroad.

STEALING.

Stealing. Theft is the fraudulent taking away of another mans goods, with an intent to steal them against (or without) ▪the will of him, whose goods they be.

The Civil Laws do judg open theft to be sa∣tisfied by the recompence of four-fold, and pri∣vy theft, by the recompence double, but the* 1.639 Laws of England suffer neither of those offences, to be more favourably punished, then with the of∣fendors death, so that the value of the thing stollen be above 12 d.

He that stealeth the Eggs of Swans out of their Nests, shall be imprisoned for a year and a day, and fined according to the Kings pleasure,* 1.640 one moity to the King, and the other to the owner of the Land where the Eggs were so taken, and it was a Custom in antient time, that he which stole a Swanne in an open and common River lawfully marked, the same Swanne (if it may be) or another Swanne shall be hanged in a House by the beak, and he which stole him in recompence thereof compelled to give the owner

as much Corn as may cover all the Swan, by put∣ting and turning the Corn upon the head of the Swanne, untill the head of the Swanne be covered with the Corn.

STEWARD.

Steward. This word is derived of two old words, Stede and ward, and it is as much to say, as a man appointed in my steed or place. And Seneschallus in Latin hath the signification: the Under-sheriff Subvicomes, in antient times was* 1.641 called Seneschallus vicecomitis, because he exer∣ciseth the place of the Sheriff himself, and there∣fore a great Officer of this Realm is called the great Steward, because the King appoints him in divers cases to exercise his place. By the Law, without speciall words, a Steward cannot make a Deputy, because his Office requires sciency, fidelity, and discretion.

Security of peace, Securitas de pace. Surety of the word Securitas, because the party that was in fear, is thereby secure and quiet. Lambert.

It is an acknowledgment of a Bond to the King, taken by a compent Judge of Record, for the keeping of the peace, Securitas de bono gestu suo, Surety of the good abearing, differs from surety of the peace in this, that whereas the peace is not broken without an affray, or battery, or such like; this surety, De bono gestu, may be broken by the number of a mans company, or by his or their weapons, or harness.

Surrender, quia sursum redditio, and it is of

two French words, Suise & rendre, a yeelding up of an estate again to his Lessee, or his assignee.

SVSPENCE.

Suspence, cometh of suspendeo; and in legall understanding is taken when a Seignory, Rent, profit, apprender, by reason of unity of possessi∣on* 1.642 of the Seignory, Rent, &c. and of the Land out of which they issue, are not in esse, for a time, & tune dormiunt, but may be revived, or awaked. And they are said to be extinguished, when they are gone for ever. Et tune moriuntur, and can never be revived, that is, when one man hath as high, and p••rdurable an estate as ano∣ther.

SUIT.

Suit. A Wife is disabled to sue without her* 1.643 Husband, as much as a Monk is without his So∣vereign. But by the Common Law the Wife of the King of England is an exempt person from the King, and is capable of Lands or Tene∣ments of the gift of the King, as no other Feme covert is, and may sue, and be sued without the King, as a Feme sole by the Common Law, but* 1.644 where the Husband is banished, the Wife may sue, and be sued.

T.

TAILE.

TAile. An estate Tail, it cometh of the French word Tailler, to cut, Lit. l. 1. At the Common Law, before the Statute, De* 1.645 donis conditionalibus, the Donor and Donee had possibility, the Donor of reverter, if the Donee dyed without issue male, and the Donee to have power to alien, if he had issue male▪ potestatem alie∣nandi post prolem suscitatam. Then he had full and absolute fee-simple to three purposes:

• 1. To alien.
• 2. To forfeit by attainder of Felony.
• 3. To charge with rent common, &c. a woman being Tenant imspecial tail to her, and her first Hus∣band, after issue had by her first, she had full fee∣simple* 1.646 to make the same Land descend to any of her issues by any other Husband.

An annuity at this day is not within the Statute De donis conditionalibus, because it is nec terre, nec tenement, nor exercisable within Land Tenement, nor concerning land, but onely a meer personall hereditament.

To estate tail, it is requisite, that the Heirs be* 1.647 limited to be procreate of some body in certain, either by express words, or by words equivalent; for the precise words, D•• corpore, are not al∣waies necessary to the creation of an estate tail.

If Land be given by Deed to I. S. Et si contin∣gat* 1.648 ipsum abire sine hae••ede de corpore suo, quod

tune revertatur, to the Donor and his Heirs, and livery of seism is made according to the Deed; in this case the Donee hath estate, notwithstanding it be not given to him, and his heirs. For the Stature of Westminster the second, c. 1. will quod voluntas donatoris secundum formam in charta doni sui manifestè expressam, de caetero obser∣vetur.

If Land be given to a man, and to his heirs* 1.649 males, and he hath issue male, he hath fee-simple, but when Lands be given to a man, and to his Heirs males of his body begotten, then he hath fee-tail.

A devise made to one and his Heirs males, makes an estate tail, it being supposed that the Testator was inops conci••ii, in making his Will, and there∣fore his intent shall be taken.

The King conveyes Land to a man and his heirs* 1.650 males, his estate is void because the King is de∣ceived.

If Lands be given to a man, and to his heirs* 1.651 which he shall beget of his Wife, or to a man, Et haeredibus de carne sua, or to a man, Et haeredibus de se, this is an estate tail.

This word may in many cases be omitted, or ex∣pressed* 1.652 by the like, and yet the state in tail is good, as Haeredibus de carne, haeredibus de se haeredibus quos sibi contigerit, &c. if the word be procreandis, or quos procreaverit, the estate in tail is good; and as procreatis shall extend to the issue; begotten before, so procreandis shall extend to the issues begotten after∣wards.

If Lands be given to a man and a woman un∣married, and the heris of their two bodies, for the apparent possibility to marry, they have an estate* 1.653 tail in them presently.

TAIL.

Tail after possibility. To hold in the tail after* 1.654 possibility of issue extinct, is where land is given to a man, and to his Wife, and to the heirs of their two bodies engendred, and one of them o∣verliveth the other without issue between them begotten, he shall hold the Land for term of his own life, as Tenant in tail after possibility of issue extinct.

This Tenant hath seven qualities and priviledges which Tenant in tail himself hath, and which Les∣see for life hath not. As

• 1. He is not punishable for wast.
• 2. He shall not be compelled to attor••.
• 3. He shall not have aid of him in the rever∣sion.
• 4. Upon his alienation, no Writ of entry in consimili casu lieth.
• 5. After his death, no Writ of Intrusion doth lie.
• 6. In a praecipe brought by him, he shall not name himself Tenant for life.
• 7. In a praecipe brought against him, he shall not be named barely Tenant for life.

And yet he hath other qualities which are not agreeable to an estate in tail, but to a bare Lessee for life.

• 1. If he make a feoffment in fee, this is a forfei∣ture of his estate.
• 2. If an estate in fee, or in fee tail, in rever∣sion or remainder descend, or come to this Tenant, his estate is drowned, and the fee, or fee-tail exe∣cuted.
• 3. He in the Reversion or remainder shall be re∣ceived upon his default, as well as bare Tenant for life.
• ...

• 4. An exchange between a bare Tenant for life and him is good, for their estates in respect of* 1.655 the quantity are equall, so as the difference standeth in the quality and not in the quan∣tity of the estate, And as the estate tail was originally carved out of a Free-simple, so is the estate of his Tenant out of an estate in spe∣ciall tail; and he is called Tenant in tail af∣ter possibility of issue extinct, because by no possibility he can have any issue inheritable to the same estate tail. But if a man giveth Land to a man and his Wife, and to the heirs of their two bodies, and they live till each of them be an hundred years old, and have no issue, yet do they continue Tenants in tail, for the Law seeth no impossibility of having children.

TALLAGE.

Tallage. Tallagium, or Talagium cometh of the French word Tailer, to share or cut out a part, and metaphorically is taken when the King or any other hath a share or part of the value of a mans goods or Chattels, or a share or part of the annual revenue of his Lands, or puts any charge or burden upon another.

It is a generall word, and doth include all Sub∣sidies, Taxes, Tenths, Fifteens, Impositions or other charge put or set upon any man. Cook's ad part of Insti••.

TENEMENT.

Tenement, is the same with us that praedium ur∣••anum is with the Civilians, it includeth not only* 1.656 all corporate Inheritances, which are or may be holden, but also all Inheritance issuing out of any of those Inheritances, or concerning or annexed to, or exercisable within the same, though they

lie not in tenure▪, therefore all these without question may be intailed, as Rents, Estoures, Com∣mons, or other profits whatsoever granted out of the Land.

TENURE.

Tenure, there is a Tenure in England, where* 1.657 the Tenant maketh proffer of a Present to the Landlord, but delivereth it not, that the chief Lord may say unto him, I thank you for no∣thing.

TESTAMENT.

Testament, The making of a Testament hath three parts.

• 1. Inception, which is the writing of the Testa∣ment.
• 2. Progression, which is the publication of it.
• 3. And consummation, which is the death of the party.

Testamentum est duplex.

• 1. In scriptis, written, which at the time of making,* 1.658 is put in writing.
• 2. Nuncupativum, seu sine scriptis, when the Testa∣tor doth by word only declare his will be∣fore witnesses. And in some Cities, or Bo∣roughs, Lands may pass, as Chattels by will, nuncupative or paroll, without writing, but in Law most commonly ultima voluntas in scriptis is used where Lands or Tenements are devised, and Testamentum, where it concerneth cha••tels.

Testamentum is testatio mentis, and is favourably

to be expounded, according to the meaning of the Testator.

The first Grant and the last Will is of greatest force. Cook on Littleton ibidem, sect. 168.

A Testament is defined voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit, cum executoris institutione, a declaration of our mind concerning that which we would have done after our deaths, with the ordaining of an executor thereof. Wests Presidents.

Every Testament is a last Will, but every last Will is not a Testament, a Testament is one kind of last Will, wherein the Executor is named, who is called haeres in the Civil Law.

Testaments ought to be proved before the Or∣dinary, unless it be in special Cases, where the Lords have probate of the Testaments of their* 1.659 Tenants, before the Stewards, or themselves in their temporall Courts.

A Testament proved before the Bishop him∣self of the same Diocess where the party dies is good, if he have not goods and chat••els to the value of fourty Shillings in any other Diocess, for then it ought to be proved in the Prerogative Court, where one hath Goods only in an in∣feriour Diocess, but the Metropolitane of the same Province pretending that he had bona notabilia in divers Diocesses, commits administration, this ad∣ministration is not void, but voidable by sentence,* 1.660 because the Metropolitane hath jurisdiction over all Diocesses within his Province, but if an Or∣dinary of a Diocess commit administration of goods, when the party hath bona notabilia in di∣vers Diocesses, such administration is meerly void, as well for the goods within his own Diocess, as else-where, because that by no means he may have jurisdiction of the cause. What is meant by

noble goods, divers Authours have been of divers opinions. Some have been of this opinion, that* 1.661 if the Testato. ••ie possessed of goods or chat••els to the value of sorry Shillings in two severall Di∣ocesses, then he ought to be deemed to have no∣table goods, others have been of this mind, that the testator is deemed to have notable goods,* 1.662 though at the time of his death he had but one penny in another Diocess. Others are of this judgment, that he is said to have notable goods, which hath goods to the value of ten pounds of currant Money of England, dispersed in divers Diocesses or jurisdictions, this opinion seemeth best to some.

When the Testator doth in the former part of his will devise his Lands in such a place to one in* 1.663 Fee, and after in the latter part of the same will to another person in Fee, it seemeth by the Laws of the Realm, that the latter part doth overthrow the former.

It is not sufficient by the Law, that the Testa∣tor be of memory, when he maketh his will, to answer to familiar and usefull questions, but he* 1.664 ought to have a disposing memory, so that he be able to make a disposition of his Lands with under∣standing and reason, which memory the Law calls a sound and per••ect memory.

If the Writer being skilfull in the Law, do only take notes from the mouth o•• the deceased, of his last will for the devi••e o•• L••n••s, tenements and hereditaments, and after wards write the same, but before it be shewed to the T〈…〉〈…〉, he depart this life, yet this is sufficient ••or a will in w••i∣ting for the conveyance of Land, tenements, and hereditaments, whereof such notes were taken.

It is called nuncupative à nun••••••and••, id est

••rninando, because a man must name his Execu∣tor, and declare his own mind before witnesses. It is of as great force and efficacy (except for lands, Tenements, and Hereditaments) as a writ∣ten* 1.665 Testament. This kind of Testament is com∣monly made when the testator is now very sick, weak, and past all hope of recovery.

These persons following cannot make a testa∣ment, or dispose of their goods and chattels.

• 1. Such as want discretion, as children, mad fokls, and ideots.
• 2. Such as lack freedom and full liberty, as bondslaves and villains, captives and women covert.
• 3. Such as lack some of their principal senses, viz. such as be dumb, deaf, and blind.
• 4. Such as have committed some hainous crimes, as traytors, felons, hereticks, apostates.

Wills or Testaments made of any Mannours, Lands, or Tenements, or other hereditaments, by any person within the age of twenty one years, are* 1.666 not good or effectual in Law, for untill that time by the Common Laws of this Realm they be account∣ed Infants, howbeit a boy after the age of fourteen years, and a wench after the age of twelve may make a Testament, and dispose of their goods and ••hattels.

If mad persons make their Testaments when they have clear or calm intermissions, it is good. See Cooks 6 Rep. in Pawlets case.

By the opinion of divers Justices of this Realm,* 1.667 and Doctors of the Canon and Civil Law, the goods of this Realm, that is, of the antient Crown and Jewels cannot be disposed by will.

TILLAGE.

Tillage. Agriculture or tillage is of great ac∣count in Law, as very profitable for the Common∣wealth, the Common Law giveth arable Land* 1.668 the preheminence and precedency before Mea∣dows, Pastures, Woods, Mines, and all other ground whatsoever. By laying of Lands used in tillage to Pasture, six main inconveniences do daily increase.

• 1. Idleness, which is the ground and beginning of all mischief.
• 2. Depopulation and decay of Towns, for where in some Towns two hundred persons were occupied and lived in their lawfull la∣bours, by converting of tillage into Pasture, onely two or three Herdmen are main∣tained.
• 3. Husbandry is decayed.
• 4. Churches are destroyed, and the service of God neglected by diminution of Church Livings.
• 5. Injury and wrong done to Patrons and Gods Ministers.
• 6. The defence of the Land against forreign ene∣mies, enseebled and empaired, the bodies of Husbandmen being more strong and able, and patient of cold, heat, and hunger, then of any other.

TITLE.

Title, properly (as some say) is when a man hath a lawfull cause of entry into Lands whereof another is seized, for the which he can have no action, as title of condition, title of Mortmain▪ But legally this word (Title) includeth a right also, and title is the more generall word, for e∣very right is a title, but every title is not such a right for which an action lieth, and therefore ti∣tulus

est justa causa possidendi, q••od nostrum est, and signifieth the means whereby a man cometh to Land, as his title is by fine, or by scoffment, & dicitur titulus à tuendo, because by it he holdeth, and defendeth his Land, and as by a release of a right a title is released, so by release of a title, a right is released also but title in a proper and* 1.669 strict significati••n, is taken for a right of Entry, where a man can have no action, as to enter for condition broken, or alienation in Mortmain.

TOLT.

Tolt, It is so called because it doth tollere* 1.670 ••••quelam from the Court Baron to the County Court.

TOWN.

Town, If a Town be decayed, so as no honses ••emain, yet it is a Town in Law. It cannot be a Town in Law, unless it hath, or in times past had •• Church, and celebration of Divine Service, Sa∣••raments and Burials.

It appeareth by Littleton, that a Town is a ••••nus, and a Borough is the-species, for he saith, ••hat every Borough is a Town, but every Town is ••ot a Borough. There be in England and Wales, ••ight thousand, eight hun••red and three Towns, 〈…〉〈…〉 thereabouts.

TRESPASS.

Trespass. The Law adjudgeth every tres∣••ass to be done with force and arms, therefore ••e Plaintiff, that saith the Defendant took his ••orse with force and arms, (though he came with∣••ut weapon) saith truly that he took him with 〈…〉〈…〉rce, as the Law meaneth force. Dr. and Stu∣••ent cap. 14.

If vi & armis be not in the Writ, it shall abate, 〈…〉〈…〉itz. nat. brev.

The Law accounteth all to be vis, which is con∣trary to Ius. If I do but hawk or walk for my pastime or recreation over another mans ground, he may have his action of trespass against me, quare vi & armis, for though I meant no harm to him or his, yet I might not pass upon his grouad without Licence.

The form of a Writ for living things, as Horses,* 1.671 is coeperunt & abduxerunt, for a dead thing, coepe∣runt & asportaverunt.

TRAVERSE.

Traverse, It took the name of the French d•• traverse, which is no other then de traverse in La∣tin signifying, on the other side, because as the indictment on the one side chargeth the party, so he on the other side cometh in to discharge him∣self.

Traversing of an Endictment is to take issue up∣on the chief matter thereof, which is to make con∣tradiction, or to deny the point of the indictmen••

TREASON.

Treason, is derived from (trahir) which i•• treacherously to betray, Trahison, per contracti••∣nem; Treason, if a man be arraigned for high trea∣son, and stands mute, or will not directly answe••* 1.672 to the crime, judgment shall be given upon him a•• upon a traytor convict. Fatetur facinus qui judici∣um fugit.

If a servant hath an intent to kill his Master and before execution of his intent depart out o•• service, and being out of service, executeth his in∣tent, and killeth him which was his Master: th•• is petty-treason, for the execution respects the o∣riginal* 1.673 cause, which was malice conceived, wh•••• he was servant.

In Treason concealment is as capitall as the practice. Here are no accessaries, all are in a like predicament of offence and danger of Law, in ma∣jori proditione omnes sunt principales.

It is either High, or Petty-Treason: It is cal∣led* 1.674 High in respect of the King which is the high∣est person; Petty in regard of the inferiority of the persons against whom it is committed. Vo∣luntas non reputabitur pro facto nisi in causa pro∣ditio••is. To intend, or imagine the death of the King or Queen, though it be not effected, yet if this be declared by an open act, or uttered by words, or Letters, it is Treason.

A man that is a traytor convicted and attainted, hath his Judgment to be drawn upon a Hurdle from his Prison to the place of Execution, as be∣ing* 1.675 unworthy to tread any more upon Mother Earth, and that backward, with his Head down-ward, for that he hath been retrograde to naturall courses; after hanged up by the neck be∣tween Heaven and Earth, as deemed unworthy of both; his Privy parts are cut off, as being unpro∣fitably begotten, and unfit to leave any generation after him; his Bowels and Intrals burned, which inwardly had conceived and concealed such hor∣rible Treason; then his Head cut off, that imagined the mischief.

Petty Treason is a killing of any to whom pri∣••ate* 1.676 obedience is due; as for a servant to kill his Master or Mistriss, a Wife her Husband, a Child her Father or Mother; a Clerk his Ordi∣nary, to whom he oweth Canonicall obedi∣••nce.

If a Servant procure another to kill his Master, and he kill him in his Servants presence, this is Pet∣••y Treason in the Servant, and murder in the ••ther; but if it be in his absence, the Servant is

only accessary to the murder, because the princi∣pall is not a Traytor, and the accessary shall not b•• in worse condition then the principall.

A maid conspired with a stranger to rob her Mistress, and in the night time lethim in at the door,* 1.677 and led him to her Mistress bed with a Candle, and the stranger kill'd her, the servant saying, or doing nothing, but holding the Candle, this was petty Treason in her.

TREASURE.

Treasure, the Kings Treasure is the sinews of* 1.678 War, and the Honour and safety of the King in time of Peace, Firmamentum belli & ornamentum pacis.

If any Mine or Metall be found in any ground, that alway pertaineth to the Lord of the soil, ex∣cept* 1.679 it be a Mine of Gold or Silver, which shall be alway to the King, in whose ground soever they be found.

Our Law saith, Quod thesaurus competit Domi••••* 1.680 Regi, & non domino libertatis, si non sit per ver•••• specialia, ut per praescriptionem.

Oars of Gold and Silver belong to the King by his Prerogative, but not Treasure found, for they* 1.681 are called Thesauri in terra, and not de terra Treasures hid in the Earth; as when any Money Gold, Silver, Plate, bullion is found in any place, and no man knoweth in whom the property is, the Law bestoweth it upon the King, and it becometh re fiscalis, parcell of the Treasure Royall.

TRIALL.

Triall. If the triall be of an alien born (for selon•• or murder committed by him) the Jury shall b•• de medi••tate linguae, that is, half of one Natio, an•• half of Strangers, except it be in the case of a* 1.682 Scot, whose Jury shall be altogether English, be

cause both he speaks our language, and is reputed a Subject.

In Ianuary 38. H. 8. Henry Howard, Earl of Surrey, Son and Heir apparent to Thomas, Duke of Norfolk, was attainted of High Treason, for joyning the Armes of England to his own, and he was tryed by Knights and Gentlemen, and not per Dominos ••ec per pares Regni, because he was not Earl by creation, but by nativity, as Heir apparent to the Duke, which is not a dignity in the Law; for if he had had the dignity by crea∣tion, and had been Lord of Parliament, he should have been tryed by his Peers.

In such a Triall per pares, the Lords shall not be sworn, and every one shall give his Verdict by himself, and if the greater number agree, it is sufficient. A Lord which is a Peer of the Realm* 1.683 shall not be tryed per pares suos, in an appeal, but in an Indictment at the suit of the King.

It is a maxim in the Law, Quod ibi semper fieri debet triatio, ubi juratores meliorem possunt habere notitiam.

TALLAGIUM.

Tallagium, or Tailagium, cometh of the French word (Tayler) to share or cut in pieces, and per metaphoram is taken, when the King, or any other hath a share or part of the value of a mans goods or chattells; or a share or part of the annuall revenue of his Land, or puts any charge or burthen upon another; so as Tallagium is de genere inclusive, of Subsidies, Taxes, Tenths, Fifteenths, Impositions, and other burthens put, or set upon any man; and so it is expounded in our Year-Books, what shall be said to be Tallag▪ put upon the Subject by the King unjustly. Vide 2 part of Cook's Instit. 533.

V.

VAGABOND.

VAgabond, is one that wandereth about, rogue and vagabond are all one, whosoever wandreth about idly and loyteringly is a rogue or vagabond, although he beggeth not.

VERDICT.

Verdict, quasi verè dictum, as the saying of truth.

VILLENAGE.

Villenage. A villain signifieth as much as ser∣vus among the Civilians. A man of servile or base degree, villain from the French villein, à villa, from a Countrey Farm, whereunto they were* 1.684 deputed to do service, as our villains regardant to Mannors, were glebae ascriptitii, tied to the turf, or rather of the word vilis, of his vile and base condition.

Villenage is then the service of a Bondman, and yet a freeman may do the service of him that is bound, therefore Tenure in villenage is two∣fold.

One where the person of the Tenant is bound, and the Tenure servile, and the other where the person is free, and the Tenure servile.* 1.685

It is agreed by all men, that there were never any bondmen or villains, as the Law calleth them* 1.686 in Kent.

Villenage is where a man holdeth of his Lord,

either by doing unto him some particular base ser∣vice, and such an one is called a Tenant by vil∣lenage, or by doing generally whatsoever base ser∣vice his Lord will command, and impose upon* 1.687 him, and such a Tenant is termed in our Law a villain.

VOID.

Void, A Church Representative may become void five manner of waies.

• 1. By death.* 1.688
• 2. By creation.
• 3. By resignation.
• 4. By deprivation.
• 5. By cession, as by taking a Benefice incompatible

VOUCHER.

Voucher, in Latin vocatio, or ad vocatio, is a word of art made of the verb voco, and is in the under∣standing of the Common Law.

When the common tenant calleth another into the Court that is bound to him to warranty, that is either to defend the right against the demandant, or to yeeld him other Land.

USURY.

Usury, Usura dicitur ab usu & aere, quasi usu ae∣ra,* 1.689 id est, usus aeris, & usura est commodum certum, quod propter usum rei mutuatae accipitur.

The Statute now in force enacted, Eliz. 13. c. 8.

• 1. It alloweth not usury but punisheth the excess* 1.690
• 2. The title of the act is an act against usury, how then is it for it?
• 3. It calleth usury a detestable fin, how then can it secure the conscience of any?

The Statute of II. the 8. punished all usury above ten in the hundred, with the forfeiture of treble value. See that of Ed. 6th.

UTLARY.

Utlary, The Bishops of Durham have had their Royalties and Princely rights, so that the goods of outlawed and attainted persons out of* 1.691 the Kings Protection, fall into their hands, and not into the Kings.

Utlagatus, est quasi extra legem positus, and Bracton saith, that caput gerit lupinum,* 1.692 because he might be pu•• to death by any man, as a Wol•• that harefull beast might be. But in the be∣ginning of the reign of King Edward the third, it was resolved by the Judges, for the avoiding of inhumanity, and of effusion of Christian blood, that it should not be lawfull for any man, but the Sheriff only (having a lawfull War∣rant* 1.693 therefore) to put to death any man out∣lawed though it were for felony, and if he did, he should undergo such punishments, and pains of death, as if he had killed any other man, and so from thenceforth the Law continued untill this day.

VV.

VVAGE.

WAge, is the giving security for the per∣forming* 1.694 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* 1.695 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,* 1.696 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* 1.697 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* 1.698 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* 1.699 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* 1.700 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* 1.701 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* 1.702 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* 1.703 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* 1.704 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.* 1.705

By an Action of waste at our Law, the Plaintiff, if it be ••ound for him, shall recover treble dam∣mages.* 1.706

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,* 1.707 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* 1.708 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* 1.709 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* 1.710 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,* 1.711 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.* 1.712

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* 1.713 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* 1.714 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* 1.715 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* 1.716 by so••ce thereof, is a dissesor to the Husband and trespassor.

If she sell any thing, the sale is void, except she* 1.717 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* 1.718

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* 1.719 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* 1.720 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* 1.721 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* 1.722 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* 1.723 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* 1.724 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,* 1.725

• 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,* 1.726 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* 1.727 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.

Y.

YARD-LAND.

YArd-land, or Virgata terrae, the Saxons called* 1.728 it Girdland, is a proportion of Land, in some Countries it is ten Acres, in some twenty, some twenty sour, and some thirty Acres of Land.

Notes

• * 1.1

  Cook on Lit. l. 3. c. 8. sect. 475.
• * 1.2

  Cowels In∣terp.
• * 1.3

  In Abei∣ance i. e. in expectation, of the French word bayer to expect, Cook on Lit. in po∣tentia as the L••gi••i∣ans t••rm ••t, in expecta∣tion or consi∣deration of Law in nu∣bibus, in the Cl••uds. C••••k on ••i••. l. 3▪ c. 11. sect. ••46.
• * 1.4

  Plo. C••m▪ Sanders case.
• * 1.5

  C••ok ••. R••p. Cases of appeals and indict Sie••s 42. B.
• * 1.6

  Cook on Lat. l. 1. c. 8. sect. 7••▪
• * 1.7

  In alta pro∣ditione nul∣lus p••test esse accesso∣rius, sed principa∣lis solum∣modo. Fulb. praep∣arat. 5. c. p. 43.
• * 1.8

  Termes of Law.
• * 1.9

  Cook on Lit. lib. 2. sect. 142.
• * 1.10

  Cook. 2 In∣stit. 385.
• * 1.11

  Acra ••lim incerta nune ve••ò certa per Statut. 31. Ed. 1.
• * 1.12

  Actio est jus prose∣quendi in judicio, quod ali∣cui debe∣tur.
• * 1.13

  Ratione ob∣jecti circa quod ver. satur.
• * 1.14

  41. Ass. pl. 15. 〈…〉〈…〉. ex. 74. C••••. 9. fol. 8〈…〉〈…〉 Fulb. para••▪ second pa••▪ second di∣al. & alii.
• * 1.15

  Fulb. par••••••▪ second part second ••••al. Cook 5. Rep.
• * 1.16

  Cook 4. Rep. actions upon slan∣der. 5. Rep. Sep. cot•• Case. Brooks Abri. fol. 4. Brook ubi supra. Fitz. Herbert. in Natura Brev. hath the same, and gives this ••eason, because it is the duty of every Arti••icer to do his Art duly •••••• truly as he ••••ght.
• * 1.17

  Cook ••. Rep. Acti∣ons 〈…〉〈…〉 slander. H••b Rep. ••••l. 126.
• * 1.18

  Cook ubi supra.
• * 1.19

  Cook 4. Rep. acti∣ones de scandalis.
• * 1.20

  Friz. Herb. Nat. brev. Action upon the Case. Cook 8 fol. 32. Calyes Case. Id. ib.
• * 1.21

  T••e Master hath n•• da••••g•• by p••••s••nall battery of his servant.
• * 1.22

  Cook 5. fol. 2••. Piggots case.
• * 1.23

  Cook 5. Rep Princes Case.
• * 1.24

  Cook on Lit. l. 2. sect. 18••.
• * 1.25

  Cook on Littelton l. 3. c. 13. sect. 722.
• * 1.26

  It comes of an old French word esscu∣••er. i. e. to tax or sine Minsh.
• * 1.27

  4 II. 6. 10. 8. Ed. 4. 5.
• * 1.28

  Cook on Lit. l. 2. c. 4. ••••ct. 1••2. Lit. Ten. tit. D••••••er & l. 2. c. 4. p. 22.
• * 1.29

  Cook on Lit. ubi supra. Fitz. Herb. Nat. Brev. in brevi de rationabili auxilio. Lit. Ten.
• * 1.30

  Cook on Lit. l. 3. c. 1. sect. 259. ••••t. Ten. l. 2. c. 4. p. 22 & l. 4. c. 1. p. 5••, 57.
• * 1.31

  Plowden Term. Pa••••. a••••o 4. E. 6. Reniger a∣gainst 〈◊〉〈◊〉.
• * 1.32

  Plowden ib.
• * 1.33

  Alienae gentis or alienae li∣geantiae. Cook on Lit.
• * 1.34

  Cook ••. ••. Rep. 〈…〉〈…〉v. C••••••.
• * 1.35

  Cook on Lit.
• * 1.36

  Iura natu∣ralia ••ur•• 〈…〉〈…〉vili di••i∣mi non possunt. 〈…〉〈…〉nd Student.
• * 1.37

  Cook on Lit▪ lib. 2. c. 11. p. 194.
• * 1.38

  Term. of Law. Cook▪ ••••▪ Rep.
• * 1.39

  Cook on Lit. ••. 2. c. 4. sect. 1••3.
• * 1.40

  Cook on Lit l. 3. c. ••. sect. 422.
• * 1.41

  Cook▪ 2 In∣stitut. 37.
• * 1.42

  I•• ••••▪
• * 1.43

  Cook on Lit. 144.
• * 1.44

  F••••••. Herb. Na••. brev. p. 152.
• * 1.45

  Ployd. an. 6. ••resp. by Browning against Be∣st••r.
• * 1.46

  Plowd. Comment. p. 458.
• * 1.47

  6. H. 8. Dy.
• * 1.48

  Bacons Collection.
• * 1.49

  Cook on Lit. l. 2. c. 11. sect. 180. Cook on Lit. l. 3. c. 8. sect. 500.
• * 1.50

  Cook ubi supra.
• * 1.51

  An Appeal is called but a suit of revenge, ergo not much sa∣v ured. 11 H. 4. 1••. Dr. and Student. c. 48.
• * 1.52

  Womans Lawyer. 8 H. 4. 18. Ter••tes of Law.
• * 1.53

  T. of Law. T. of Law.
• * 1.54

  Cook on Lit. l. 2. c. 11. s. 148. Cook 4 Rep. Tyrring. Case.
• * 1.55

  Id ib.
• * 1.56

  Mr▪ Seldens notes on Fortescue. pag. 3.
• * 1.57

  Cook on Lit▪ l. 2. c. 12. sect. ••2••.
• * 1.58

  Cook on Lit. l. 2. c. 11.
• * 1.59

  L. Dyer, term. mich. Anno sexto Ed. 6. 75.
• * 1.60

  Dyer 21•• Pl. ••••.
• * 1.61

  Y. of Law.
• * 1.62

  Dr. and Student. ••••••. ••.
• * 1.63

  Doderidge.
• * 1.64

  Brook. abri. fol. 182. B.
• * 1.65

  Cook 6. Rep Countess of Ratlands Case.
• * 1.66

  Cook 9 Rep Earl of Sa∣lops Case.
• * 1.67

  Cook 9 Rep. Mackallies Case.
• * 1.68

  27 Ass. Pl. 11.
• * 1.69

  T. of Law.
• * 1.70

  Term. of Law.
• * 1.71

  Terms of Law. Minish.
• * 1.72

  Cook on Lit. l. 3. c. 13. sect. 745.
• * 1.73

  Cook on Lit. l. 3. c. 8. sect. 5. 14.
• * 1.74

  S•• odious is perjury in the eye of the Common Law. Cows Insti∣tut. Minsh.
• * 1.75

  Cook on Lit. l. 1. c. ••. l. 1. sect. 59.
• * 1.76

  Perk. 187. 109.
• * 1.77

  Of the French tourner to turn: there∣fore they say to turn Te∣nant Minsh. Cook on Lit. l. 3. c. 10. sect. 551.
• * 1.78

  Regist. Orig fol. 87. Glanvil. l. 9. cap. 8.
• * 1.79

  West. 1. 3. Ed. 1. 25. Ed. 3. 11.
• * 1.80

  4. H. 30.
• * 1.81

  Cook on Lit. l. 1. c. 10. sect. 79. What kinds of offenders may be bailed, See Cook 2 part of Instit. c. 15. Termes of Law. Dalton.
• * 1.82

  Cook on Lit. l. 1. c. 10. sect. 79. Id. l. 3. c. 1. sect. 248.
• * 1.83

  ••ook on Lit. l. 2. c. 3. sect. 96.
• * 1.84

  Termes of Law.
• * 1.85

  Fitz. Nat. brev. 98. K.
• * 1.86

  1 H. 7. 9. 6 E. 6. 71. Dy. 14 H. 8. 1. 33 H. 8. Br. Reser∣vant. 39.
• * 1.87

  Cook on Lit. l. 3. c. 13. sect. 708.
• * 1.88

  The word is derived of Barret which sig∣nifieth a quarrell, a barre∣troubler, or barre-ste••∣der. Cook on Lit. l. 3. c. 13▪ sect. 701.
• * 1.89

  Cook 8. Rep. Barrets Case. p. 37. He causeth men to be troubled at the Barre, Minsh.
• * 1.90

  Vitilitigator quasi vitio∣se litiga∣tor.
• * 1.91

  Either from the French Ba∣stard, as Cowelin in∣stit. or from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Meretrix quia pro∣creatur ex mretrice. Cook on Lit. Cook 8 Rep. Letchfords Case. Stat. 20. H. 3. 9. Cook preface to his 4 Rep.
• * 1.92

  Smiths Common∣wealth of England. Terms of Law.
• * 1.93

  To the end of the first Session of next Par∣liament.
• * 1.94

  Dalton.
• * 1.95

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.96

  Id. ib.
• * 1.97

  Septimo Jacobi c. 4. and for the second of∣fence to be committed to the house of Correcti∣on, till, &c.
• * 1.98

  Daltons Iust. of P.
• * 1.99

  There are two Sta∣tutes for it, 25 H. 8. revived, 3 Eliz. 17. Fitz. Nat. brev. 269. ••. Dalton.
• * 1.100

  Cook on L••••. l. 2. c. 10. sect. 16.
• * 1.101

  It is deri∣ved of burgh a house, and ••aron a thief. Cook 4 Rep. as if one break down a window to book out any thing. Cooks Case of Appeal and Indict∣ments. 4^th Rep.
• * 1.102

  Id. ubi supra.
• * 1.103

  Stamford.
• * 1.104

  Dalton. 18 Eli. c. 6.
• * 1.105

  Lit. Te••. l. 2. c. 1••. So called, beecause this custom was first (as some hold) in England. Cook on Lit. p. 11••. B. Cook on Lit. l. 2. c. 10, sect. 165.
• * 1.106

  L. Dy. term. Pasch. in 2. Reg. Eliz.
• * 1.107

  Cook 6 Rep. Gorges case
• * 1.108

  Cook on L••••. l. 2. c. 9. sect. 159.
• * 1.109

  L. Dyer ••, 44. A.
• * 1.110

  L. Dyer p. 144. B.
• * 1.111

  Cook on Lit. p. 5.
• * 1.112

  Cook on Lit. l. 2. c. 12. sect. 234.
• * 1.113

  In savo∣rem vitae.
• * 1.114

  Magna Charta saith per judicium Parium suorum.
• * 1.115

  Cook ub•• supra▪
• * 1.116

  Cook 2 part of Instit. c. 3.
• * 1.117

  Cook on Lit. lib. 3. c. 8. sect. 500. Lamberts Iust. of P. It cometh of two French words, that is, ••apsus & mes••er, id est, misce∣re.
• * 1.118

  Cowells In∣terpr. Stamford Pr••erog. c. 16 But so shall n••t h〈…〉〈…〉 that killeth one that would r••b him in his house, or the Officer which kil∣led one that will not be arrested.
• * 1.119

  Perkins tit. eschanges. p. 58.
• * 1.120

  Terms of Law.
• * 1.121

  ••ook on Lit. ••. 2. c. 4. sect. 108. and epist. 8 Rep. and Proeme to his 2 part of Instit.
• * 1.122

  Iudge Do∣deridge. Cook on Lit. ubi supra.
• * 1.123

  Termes of Law.
• * 1.124

  Cook on 9 Rep. Anna Beding∣fields Case. Cook on Lit. l. 1. c. 1. s. 1. Lord Buck∣hursts Case. 1 Rep. 1.
• * 1.125

  Cowells in∣terp. verb. Cattalls. Kitchin fo. 32. verb. Catalla.
• * 1.126

  Cook on Lit. lib. 2. c. 11. sect. 177. Bona in∣cludes all Chattels, as well real, as personal. Id ib.
• * 1.127

  Cook on Lit. ubi supra.
• * 1.128

  Dr. Cowels interp. Kitchin.
• * 1.129

  Cook on Lit. l. 2. c. 11. sect. 209. T. of Law.
• * 1.130

  Bacons use of the Law. p. 22.
• * 1.131

  Horse or mare-stea••∣ers shall not have their Clergy, be∣cause horses are for pub∣lick service and com∣merce. 2. The thief by them is armed to do mischief. Stamford pl. of Cr. l. 2. c. 43. Id. C. ••4. Stamford ib. c. 45.
• * 1.132

  Dyer term. Pasch. ann. Mariae p. 99 L. Dyer term. Mi∣chael. Annis 3. & 4 Reg. Eliz.
• * 1.133

  Frust•• a Legi▪ au••ilium implo••at, qui com∣mi••tit in legem.
• * 1.134

  Ployd. Com. Dive against Manyngh. f 64. A 68. A.
• * 1.135

  Termes of Law.
• * 1.136

  Cook ••n lat. l. 3. c. 5. sect. 352.
• * 1.137

  Cook on Lit∣tlet••n l. 3. c. 5. sect. 352.
• * 1.138

  Lit. l. 3. c. 5.
• * 1.139

  Cook on Lit. l. 3. c. 9. sect. 515.
• * 1.140

  Fit. N. bre. s. 169.
• * 1.141

  Cook l. 9. of Rep. Beau∣monts Case. 142.
• * 1.142

  Confiscare i. e. con∣ferre in fiscum. Fis∣cus propriè principis est, aera∣••ium rei publicae. T••it••s ille Pli••ii l••••us ad ••••••••anum & fortasse eadem severitate ••••••••um qua aerarium ••••••i••es. Cook 5. Rep. Foxleys Case. S••am. Pl. •••• ••r. l. 3. c. ••4.
• * 1.143

  I. Doderig.
• * 1.144

  Cook 8 Rep. Grieslies. Case.
• * 1.145

  Dalt. Iust. of P.
• * 1.146

  Contra∣ctus est quasi actus contra actum. Cook.
• * 1.147

  D. and Student▪ cap. 4.
• * 1.148

  L. Dyer ter∣min. Mi∣chael Anno 6 E. 6. P. 76
• * 1.149

  The Te∣nants there∣of do hold per copi∣am rotu∣lorum Do∣mini.
• * 1.150

  Cook on Lit. p. 63.
• * 1.151

  It is an e∣state of in∣heritance, secundum quid. Cook 4 Rep. Copy-hold case.
• * 1.152

  Cook 9 Rep. Combes case.
• * 1.153

  35 Eliz. c. 1.
• * 1.154

  His Name is derived à Corona, because he is an Offi∣cer of the Crown, and hath ••••nusance of some Pleas, which are called Pla∣cita Co∣ronae. Cooks 2 part of Instit. c. 17. See more there. He is s•• called, because he deals principally with Pleas of the Crown, o•• matters concerning the Crown. Cooks 4 part of Instit. c. 59. T. of Law.
• * 1.155

  Smiths Common∣wealth of England▪ c. 24
• * 1.156

  Daltons Iust. of P.
• * 1.157

  T. of Law.
• * 1.158

  Fulb. Law of Nature. 8. c.
• * 1.159

  Daltons Iust. of P.
• * 1.160

  Cook on Lit. l. 3. c. 12. sect. 678. Plowd. fol. 54. b.
• * 1.161

  Cook on Lit. l. 1. c. 1. sect. 10.
• * 1.162

  Cook on Li••▪ l. 2. c. 10. sect. 124.
• * 1.163

  •• cometh of he Latin uria which ••so is etched from cura (as Valla writeth) whereby it is notified that heed and care ought to be taken in the deci∣ding of con∣troversies.
• * 1.164

  Wherein are holden all common Pleas be∣tween Sub∣ject and Subject of all matters of common Law so called, for that it serveth for the exact and precise administration of the common Law, Smiths com∣mon-wealth of England.
• * 1.165

  Smiths Common∣wealth of England, camera stellata, or of the Latin word stellio, a starry Beast, whence c••senage is called by the Civilians crim••n stellionatus, because that sinne is punished in this Court, Lamb. Iur. of Cour.
• * 1.166

  Cook 11 Rep. Godferys case.
• * 1.167

  Iudge Doderidge.
• * 1.168

  It is called courtesie of England, because it is not used in any other Realm, some say he shall not be Tenant by the courte∣sie, unless the Child which he hath by his Wife be heard cry, for by the cry it is proved that the child was born a∣live, Lit. Nam dicunt E vel A quotquot nascuntur ab Eva.
• * 1.169

  Cook ib. & Pains case.
• * 1.170

  Perkins fol. 90. b. & 91. a.
• * 1.171

  Cooks 2 part of the Institutes c. 30.
• * 1.172

  Cook on Lit. lib. 2. ••. 10. sect. 165.
• * 1.173

  Sir Iohn Davis his Reports. Cook ubi supra.
• * 1.174

  The com∣mencement of a custom must be up∣on a reason∣able ground and cause. Consuetu∣do contra rationem introducta po••ius u∣surpatio quam con∣sue••udo appellari ••••••er. Sir John Davis Rep. Case ••f ••a∣nistry. Davis ubi supra.
• * 1.175

  See him.
• * 1.176

  Malus usus abolendus est.
• * 1.177

  Davis ib.
• * 1.178

  Consuetu∣do is no∣thing else but com∣munis as∣suetudo.
• * 1.179

  The parti∣cular and approved custom of e∣very Nation is the most usual bind∣ing and as∣sured Law. Cook pref. to 5 Rep. Dr. and Student. c. 6.
• * 1.180

  Cook 7 Rep. case of Swans.
• * 1.181

  Cook 8 Rep. case of the City of London.
• * 1.182

  Consuetu∣do loci est observan∣da. Camb. Brit. in Glocester∣shire.
• * 1.183

  Cambden in Suffolk.
• * 1.184

  D. & Stu∣dent c. 10
• * 1.185

  Termes of Law.
• * 1.186

  Suidas.
• * 1.187

  D. and Student.
• * 1.188

  Cook on Lit
• * 1.189

  Cook 9 Rep. Pin••hons case.
• * 1.190

  Fitzh. Na. Br••tu. Det.
• * 1.191

  Id. Ib.
• * 1.192

  Qui sentir commo∣dum sen∣tire debet & onus.
• * 1.193

  Cook lib. 8. Rep. p. 147.
• * 1.194

  Factum un fait it is called of the Civili∣ans litera∣rum obli∣gatio. Cook on Lit. l. 1. c. 5. sect. 40.
• * 1.195

  Traditio lo∣qui facit Chartam.
• * 1.196

  In Deeds the Deli∣very is to be proved.
• * 1.197

  Cook 2 Rep. Goddards Case.
• * 1.198

  Cook 5 Rep. Wyndams Case.
• * 1.199

  Which di∣vision groweth from the form or fashion of them. West. part 1. Symb.
• * 1.200

  Cook on Lit. l. 3. c. 5. sect. 3 ••0.
• * 1.201

  Cook ubi supra. And Cook 5 Rep. Stiles case.
• * 1.202

  Cook on Lit.
• * 1.203

  Cook on Lit. l. 3. cap. 7. sect. 438.
• * 1.204

  Bacons Col∣lections of the Law.
• * 1.205

  Id. use of the Law.
• * 1.206

  Cook on Lit. cap. 11. sect. 198.
• * 1.207

  Cook Calvins Case.
• * 1.208

  Quasi Deo dandum, i. e. in elee∣mosynas erogan∣dum.
• * 1.209

  Where a man killeth another with the sword of ••. at stile, the sword shall be forfeit as a Deodand D. and Student. c. 51.
• * 1.210

  Cook on ••i••. l. 2. c. 11. sect. 2••2. Dicitur à detinendo because de∣tinet is the principall word in the W••••t.
• * 1.211

  Cook on Lit. Cook 4 Rep. S••uth••••tes Case.
• * 1.212

  Minishew.
• * 1.213

  Cook on Lat. l. 2. c. 10.
• * 1.214

  Lit. Ten. l. 3. c. 10. p. 123. Sect. 55••.
• * 1.215

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.216

  Fulbecks prepar. Id. ib.
• * 1.217

  Fulbecks parallel.
• * 1.218

  Lit. l. 2. c. 10.
• * 1.219

  Ployden p. 413.
• * 1.220

  Exceptio.
• * 1.221

  Perkins ••••••. of testam. p. 92. ••▪
• * 1.222

  Termes of Law.
• * 1.223

  Cook on Lit. l. 3. c. 3. sect. 287.
• * 1.224

  Cooks 5 Rep Rooks case.
• * 1.225

  Cook on Lit. l. 3. cap. 11. sect. 592.
• * 1.226

  Termes of Law.
• * 1.227

  Cook on Lit l. 2. c. 4. sect. 188.
• * 1.228

  Cook on Lit. lib. 3. c. 8. sect. 475. Cooks case of execu∣ors. 5 Rep.
• * 1.229

  Cook on Lit. l. 2. c. 6. sect. 136.
• * 1.230

  Of what things a di∣dress may be taken.
• * 1.231

  Cook on Lit. l. 1. c. 7. 〈…〉〈…〉. 5••.
• * 1.232

  Cook 7 Rep. cases vpon the Statute and •• Rep. ••••••••allyes Case, and ••n l••••. l. 2. c. 1••.
• * 1.233

  Ridly of the Civil Law. Cook on Lit.
• * 1.234

  Buries case 5 Rep.
• * 1.235

  Cook on Lit. l. 3. c. 5. sect. 38••. and •• Rep. Kennes case.
• * 1.236

  Brac. l. 4. tract. 3. c. 9. n. 5.
• * 1.237

  I ambert in his peram∣bulation of Kent.
• * 1.238

  Camb. Brit.
• * 1.239

  Liber Do∣me▪ Dei varie ap∣p••llatur, viz. Censuali•• Angliae, Ro••ulus Win••oni••, 〈…〉〈…〉: Angli•• notitia & Liber Judiciarius, 〈…〉〈…〉 in Anglici enim •••••••••• Archi••is augustissimum & 〈…〉〈…〉a i••••d•••• Crinelia monumentum prostat 〈…〉〈…〉 R••••ni anti••ua p••litia antiquarum legum & v〈…〉〈…〉 ••••nsu••tudinum verae Origines & solidissima fundamen•••• 〈…〉〈…〉 sunt continentur iste ingens duobus Tomis sive 〈…〉〈…〉 thesaurus, & in ips••s s••accarii magni Angliae fisci••••a••ibus s••••••∣ma cum vigilantia & cautela reponitur Dominus Simonds ••∣eus in Epist••la manuscripti istius praefixa.
• * 1.240

  Cook on Lit. li. 1. cap. 5. sect. 3••.
• * 1.241

  D••s is de∣rived ex donatione, & es•• quasi donarium, because the Law it self giveth it to her.
• * 1.242

  Id. sect. 53.
• * 1.243

  Id sect. 35.
• * 1.244

  Cook on Lit. Fulbecks p••epar.
• * 1.245

  An. 4. Iac. 5. c. made perpetuall by 21. Iac. 7. 6.
• * 1.246

  Ex duritia of straight imprison∣ment or hard in∣treaty. Do∣deridge.
• * 1.247

  Fitz. Nat. Brev. 32. c.
• * 1.248

  Cook on Lit. l. 2. c. 6. sect. 133.
• * 1.249

  Terms of ••••••.
• * 1.250

  Fulbeeks prepar.
• * 1.251

  Cook on Lit. l. 2. c. 12. sect. 319.
• * 1.252

  Dyer fol. 18. 104.
• * 1.253

  21 H. 7. 19.
• * 1.254

  Cook l. 5. Rep. fol. 59
• * 1.255

  Cowel Instit.
• * 1.256

  Cowels In∣terpreter.
• * 1.257

  Some de∣rive it from the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 to accuse.
• * 1.258

  If it be un∣certain, it is not good. Stamford pl. of Cr. l. 2. c. 30.
• * 1.259

  Stam. ubi supra.
• * 1.260

  Brooks abr. 4 Rep. cases of Appeals and Indict.
• * 1.261

  Cook 7 Rep. Calv. Case.
• * 1.262

  Stamford pl. of Cr.
• * 1.263

  Vi & armis must ••e in all Endict∣men•••• •••• treason, murder, se∣lony▪ 〈…〉〈…〉 else it is not good. D. and Student. c. 5. 4.
• * 1.264

  Ad proxi∣mum ante∣cedens fiat relatio.
• * 1.265

  Lambert. Eirenarch. 494, 495.
• * 1.266

  Cook on Lit. p. 137.
• * 1.267

  Ad ea quae frequenti∣us acci∣dunt jura adaptan∣tur.
• * 1.268

  D. and Student. c. 16. If he be commited for felony. Plowden term. Hil. in quarto. Ed. 6. Re∣nig. against Fogassa.
• * 1.269

  Stamford▪ pl. of Cr.
• * 1.270

  Id. pl. of Cr. l. 1. c. 33.
• * 1.271

  L. Dyer. Term. Hill. an. 4. Reg. Eliz.
• * 1.272

  Cook Rigewayes Case. 3 Rep.
• * 1.273

  Cook Boy∣tons Case. 3 Rep.
• * 1.274

  Plowd. Commen. Plato's Case.
• * 1.275

  Cook on Lit. p. 31 & 492.
• * 1.276

  Escheats by Civilians are called caduca.
• * 1.277

  Cook on Lit. l. 1. sect. 4.
• * 1.278

  Id. l. 2. c. 5. sect. 130.
• * 1.279

  Status di∣citur à stando because it is fixed and permanent. Cook on Lit.
• * 1.280

  See Cooks 2 part of Instit. c. 12.
• * 1.281

  Cook 2 Rep. Goddards Case.
• * 1.282

  à Gallico estouer, id est fo∣vere ma••e∣riam ex∣hibere.

  See Cooks 2 part of Instit. c. 7. Vide vos∣sium de vitiis Ser∣monis. l. 2. c. 7.

  Bracton l. 3. c. 18.

  Animalia vagrantia Bracton or vacantia as others call them, quia Do∣mino va∣care de∣bent.
• * 1.283

  The Com∣mon Law extendeth derelictum both to that which is voluntarily forsaken, and to that which is waived and left by necessity.
• * 1.284

  An Execu∣tor of a last Will and Testament executing and perfor∣ming the Will of the dead Iudg Doderidge.
• * 1.285

  Debts due by obligati∣on, shall be payed by Executors before debts by single contract, and they before Le∣gacies Cook 9 Rep. Duchons Case. Cook 8 Rep. Tamors Case. Cook on Lit. p. 55. Cook 8 Rep. Nedhams Case.
• * 1.286

  Smiths Common∣wealth of England. Quod non est debi∣tum vel quod est ultra de∣tum, vel ante tem∣pus quod est debi∣tum.
• * 1.287

  Cook on Lit. l. 3. c. 8. sect. 485.
• * 1.288

  Cook on Lit. lib. 1. c. 1. sect. 1.
• * 1.289

  Pl. Com. 169.
• * 1.290

  Br. Grant. 155.
• * 1.291

  In the civil Law is cal∣led fideli∣tas. Cook l▪ 4. Berits case, and on Lit. l. 2. c. 2. sect. 91.
• * 1.292

  Littleton and Cook n Lit.
• * 1.293

  Ridleys view of the Civil Law.
• * 1.294

  Nec Gothi∣cam Feudi vocem ab∣horream; Ed signifi∣catur genus clientelae, quo vel praedium, cui quam datur, ut & auctorem agnoscant caput, honorem, at vel dignitas, vel vecti∣gal ipsi, & posteri, beneficii pro patrono, ejusque fortunas defen∣dant, Vossius De vitiu Sermo••nis l. 1. c. 7.
• * 1.295

  Cook on Lit. l. 1. c. 1.
• * 1.296

  Id. ubi su∣pr••.
• * 1.297

  Haereditas corporata.
• * 1.298

  Haereditas incorporata.
• * 1.299

  A plow or hide of land which is all one, is as much as one may plow in one year.
• * 1.300

  Cook 9 Rep. Lowes case.
• * 1.301

  It is deri∣ved of foe∣dum quia est donatio foedi. Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.302

  Perkins tit. Fe••ffments.
• * 1.303

  Id. Ib.
• * 1.304

  Termes of Law. Ideo dicta est felonia, quia fieri debet fel∣leo animo. Cooks 4 R. Bedlies Case. Cook on Lit. 3. p. 392. Cooks 7 R. Cases of Swans.
• * 1.305

  But a tres∣pass.
• * 1.306

  Stamford pl. of Cr. p. 1. c. 1.
• * 1.307

  Id. Ib. Quam va∣ria sunt feloniarum genera, Henricus Spelmannus, eques Auratus in eruditissimo suo Glossari•• ostendit. Vossius De vitiis Sermonis. l. 2. c. 6.
• * 1.308

  Quod sus∣pendatur per col∣lum.
• * 1.309

  Cook 4 Rep. Beverlies case, and on Lit. By the Sta∣tute, de do∣nis condi∣tionalibus, lands in∣t••••iled are not forfeited for felony, but for the life of Tenant in Ta•• the Inheritance is preserved to the issues.
• * 1.310

  This Sta∣tute to con∣tinue untill the first Session of the next Farliament Portescue. de laud. leg Ang.
• * 1.311

  Stamf. l. 1. pl. of Cr. c. 4.
• * 1.312

  Cook 1 Rep. Shellies case.
• * 1.313

  Cook 8 Rep. Keechers Case.
• * 1.314

  Cook on Lit. lib. 1. cap. 9. sect. 74.
• * 1.315

  Stamsord pl. o•• Cr. l. 3. cap. 2. Stam••. of prero. c. 16.
• * 1.316

  29 E. 3. 29. 37 H. 8. Stam••. fol. 186. 4.
• * 1.317

  Cook l. 5. Sir Henry Constables Case.
• * 1.318

  Ubi sactum nullum ibi ••ortia nulla There is a difference in the Common Law betwixt publick and open force.
• * 1.319

  Cook onl it. l. 3. c. 11. sect. 595.
• * 1.320

  Cook l. 10. Rep.
• * 1.321

  An. 15. Rich. 2. c. 4. An. 8. Hen. 5.
• * 1.322

  Cook on ••••••.
• * 1.323

  Cook 8 Rep. Case of the City of London.
• * 1.324

  Cook 3 Rep. Rigewayes Case.
• * 1.325

  Verstega∣nus de ••nt.
• * 1.326

  Lamberts perambul, of Kent Verstegan.
• * 1.327

  Cook on Lit.
• * 1.328

  ••amd. Brit. and Lamb. perambul. of Kent.
• * 1.329

  D. and Student. ••. 10.
• * 1.330

  Cook on Lit. l. 2. c. 10. sect. 105.
• * 1.331

  Cook •• Rep. Shelleys Case.
• * 1.332

  Cook 9 Rep. Gregs case.
• * 1.333

  So called because it is the most honourable and worthy service that a Tenant may d••.
• * 1.334

  Camd. in Lincoln∣shire.
• * 1.335

  Quaelibet concessio fortissimè contra donato∣rem inter∣pretanda est.
• * 1.336

  Cook on Lit. lib. 3. c. 3. sect. 283.
• * 1.337

  Id. ib.
• * 1.338

  Cook 6 Re.
• * 1.339

  Cook on Lit. l. 3. ••. 0. sect. 314.
• * 1.340

  Perk of Grants.
• * 1.341

  Cook 6 Rep. Sanders Case.
• * 1.342

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.343

  Fitz. Nat. brev. tit. Common L. 180. B.
• * 1.344

  1 Mar. Dy. 91.
• * 1.345

  Cook 9 Rep-Earl of Sa∣lops Case. Cook 4 Rep. Bozouns Case.
• * 1.346

  Perkins tit. Grants.
• * 1.347

  38 Ed. 3. 6.
• * 1.348

  Cook on Lit. l. 3. cap. 3. sect. 287.
• * 1.349

  D. and Student. c. 9
• * 1.350

  Cooks 8 Re. Talbots Case.
• * 1.351

  Cook on Lit. l. 3 c. 3. p. 185. B.
• * 1.352

  Cook on Lit. lib. 1. cap. 1. sect. 1.
• * 1.353

  Haeres di∣citur ab haerendo, quia qui haeres est haeret, id est, proximus est sanguine, illi cujus est haeres.
• * 1.354

  Id. Ib.
• * 1.355

  Cook •• Rep. R••t••liff••s Case.
• * 1.356

  Soror est haeres facta, therefore some act must be done to make her Heir, and the younger Brother is haeres natus, if no Act be done to the contrary.
• * 1.357

  Cook ubi supra, and on Lit. l. 1. c. 1. sect. 8. Possessio quasi pedis posi••io. Cook l. 7. of R••p. Ca••v. case. and on Lit. l. 1. c. 1. sect. 8.
• * 1.358

  Cook Lit. 6. 16.
• * 1.359

  Cook on Lit. l. 1. c. 2. Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.360

  Solus Deus facit haere∣des.
• * 1.361

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.362

  Cook on Lit. l. 3. c. 12. sect. 267.
• * 1.363

  Homage, is derived of homo, and is called homage, because when he doth this service, he saith, I become your man, and in English homage is called man-hood; as the man-hood of his Tenant, and the homage of his Tenant is all one. Cook on Little∣〈…〉〈…〉n ibidem.
• * 1.364

  Cook ubi supra.
• * 1.365

  Cook on Lit. l. 3. c. 8.
• * 1.366

  Stamf. pl. of Cr. l. 1. and Pulton de pace Regis.
• * 1.367

  Brooks abr. f. 177. and Stamf.
• * 1.368

  Stamford and Pulton▪
• * 1.369

  Delinquens per iram provocatus puriri debet mitius. The chief reason why seipsum ••esen••len∣do is not matter of justification, is because Law suppo∣seth it hath a com∣mencement upon an un∣lawfull cause.
• * 1.370

  Cook 5 〈…〉〈…〉. of Rep. S••∣mains Case.
• * 1.371

  Cook 11. Rep. Bowls Case.
• * 1.372

  Lambert.
• * 1.373

  Cowel In∣stit.
• * 1.374

  See Cook's 3 part of Institutes c. 52.
• * 1.375

  Smiths Common∣wealth of England.
• * 1.376

  Cook 7 Re. Cases on the Statute. Hundre∣dum saepe legas in Anglico∣rum Regum diplomati∣bus, & e∣jus gentis scriptori∣bus. Signi∣ficat verò partem comitatus, in qua habitarent centum Regij fide jussores. Explicati us plen•• de eo Spelmannus. Vossius. De vitijs Sermo∣nis l. 2. c. 9.
• * 1.377

  Stamf. prae. r••g. Reg. ••. 9
• * 1.378

  Fitz. N. b. fol. 232.
• * 1.379

  Cook 4 Rep. Beverlies Case. Fitz. Herb. H ••. brev. p. 233.
• * 1.380

  T••••m. of Law.
• * 1.381

  Stamf. Prae. r••g. Reg. c. 9 Cook 4 Rep. Beverlies Case.
• * 1.382

  Plowd. Cominent. p. anu. E. 6. Reniger a∣gainst Fo∣gassa.
• * 1.383

  Lamb. Iust▪ of Peace.
• * 1.384

  Id. ib.
• * 1.385

  Cook on Lit. l. 3. c. 7. sect. 438.
• * 1.386

  Cook. Lechfords Case. 8 Rep.
• * 1.387

  Cook on Lit. l. 2. c. 12.
• * 1.388

  Id. l. 2. c. 5.
• * 1.389

  Cook on Lit. l. 2. c. 11. sect. 180.
• * 1.390

  Cook on Lit. l. 2. c. 12. sect. 217. & l. 3. c. 5. sect. 370.
• * 1.391

  Cowels In∣stit. Iur. Angl.
• * 1.392

  Cook on Lit. lib. 1. c. 21. & l. 2. c. 28.
• * 1.393

  Cook on Lit. l. 1. c. 1. sect. 9.
• * 1.394

  Id. ib.
• * 1.395

  Cook 8 Rep. Calyes Case.
• * 1.396

  Cook ubi supra.
• * 1.397

  Proof of one witness sufficient. See the Statute pri∣mo Car••li c. 4.
• * 1.398

  Cook on Lit.
• * 1.399

  Cook 4 Rep. Digbies case.
• * 1.400

  Cook on Lit. l. 3. c. 8. sect. 475.
• * 1.401

  Cook on Lit. l. 3 c. 3. sect. 277.
• * 1.402

  Id. ib. sect. 280.
• * 1.403

  Cook l. 3. Rep. Mar∣quess of Winchesters Case.
• * 1.404

  Fortescue •• de laudi∣bus legum Angliae.
• * 1.405

  De laudi∣bus leg. Ang. 53. c.
• * 1.406

  See the like Case deter∣mined by King Iames in disputa∣tions at Ox∣ford.

  R••x. Plath p. 1 ••••. 113. 114. 115. Pl••yden. Partridge against St••ange. fol. 83. B.
• * 1.407

  Cook.
• * 1.408

  Cook Downams Case. •• Rep.
• * 1.409

  Cook 4 Rep. Cases of Appeals and indict
• * 1.410

  Cook on Lit. l 2. c. 5. sect. 366.
• * 1.411

  Cook on Lit. l. 3. c. 8. sect. 484.
• * 1.412

  Cambden in Britan.
• * 1.413

  Cook on Lit.
• * 1.414

  D. & Stu∣dent c. 7. Fortescue de laudi∣bus legum Angliae, &▪ ali••.
• * 1.415

  Bracton.
• * 1.416

  Cook 7 Rep. Calv. case. in genere he dieth not but in hoc individuo, Henry and Edward the King.
• * 1.417

  Cook 5 Rep. Cases of Ecclesiasti∣call persons.
• * 1.418

  Cook on Lit. l. 2. c. 4. sect. 112.
• * 1.419

  Foedum militis. Cook on Lit. l. 2. c. 4. sect. 112.
• * 1.420

  Cook on Lit. l. 2. c. 4. sect. 103.
• * 1.421

  Dr. & Stu∣cap. ••.
• * 1.422

  Cook on Lit. l. 1. c. 2. sect. 14.
• * 1.423

  C••o••s •• Re. A••th••••y Howescase.
• * 1.424

  F••r ••rigi∣na•••• all lands were derived f•••••• the Crown.
• * 1.425

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.426

  Cooks Rep. A••u••eds case.
• * 1.427

  Terms of Law, the Indictment must be also coepit & asportavit, or coepit & abdux∣it. One shall forfeit his goods and be whipped for petty Larceny.
• * 1.428

  False La∣tin will a∣bate a writ, not a Grant, Malagram∣matica non vitiat con∣cessionem sal••a Or∣thographia non vitiat ••noce••••o∣nem. Cook 5 Rep. Longs case.
• * 1.429

  Bracton ••aith, that Lex est sanctio justa, jubens honesta, & prohibens contraria: so as every Law must have three qualities. 1. It must be justa, 2. Jubens honesta, 3. Prohibens contraria.
• * 1.430

  Neminem oportet esse sapi∣entiorem legibus, ubi lex non distinguit, nec nos distinguere debemus. Lex plus laudatur quando ratione probatur.
• * 1.431

  Cook pre∣face to the 6 Rep. and on Lit. l. 2. c. 12. sect. 213.
• * 1.432

  Cook pre∣face to the 8 Rep.
• * 1.433

  Cook on L••••tieton.
• * 1.434

  Cook on Lit. l. 2. c. 9. sect. 138.
• * 1.435

  See in Ful∣becks paral∣lels, 3 chap. a censure of the Writers of the Law.
• * 1.436

  Lease from the French laisser, lin∣quere, re∣linquere, omittere.
• * 1.437

  Cook on Lit. l. 1. c. 7. sect. 58.
• * 1.438

  Id. ib.
• * 1.439

  Id. ubi supra.
• * 1.440

  Cook 5 Rep. Claytons case.
• * 1.441

  Id. ib.
• * 1.442

  Cook on Lit. u••i supra. sect. 68.
• * 1.443

  Cook 6 Rep. Bishop of Bathes case
• * 1.444

  Cook 5 Rep. Cases of Leases.
• * 1.445

  Cook on Lit. l. 1. c. 7. sect. 58.
• * 1.446

  Cook▪ 5▪ Rep. de libellis famosis.
• * 1.447

  Cook 5 Rep. de libellis famosis.
• * 1.448

  Cook 9 Rep. Io. Lambs case.
• * 1.449

  Bracton, l. 2. c. 2.
• * 1.450

  Cook on Lit. l. 2. c. 11. sect. 198. Ligeantia est vincu∣lum fidei ligeantia est legis es∣sentia.
• * 1.451

  Cook on Lit. l. 2. c. 11. sect. 198. and 7 Rep. Calv. case.
• * 1.452

  Cook 7 Rep. Calvins case.
• * 1.453

  Cook on Lit. l. 3. c. 13. sect. 719. ••
• * 1.454

  Cook on Lit. l. 1. c. 7. sect. 59.
• * 1.455

  Cook on Lit. l. 1. c. 7. sect. 59. and 5 Rep. Sharpscase.
• * 1.456

  Plowden ••o••thrist a∣gainst Be∣inshin.
• * 1.457

  Cook 9 Rep. Mackallies c••se.
• * 1.458

  Cook on Lit.
• * 1.459

  Cook ubi supra.
• * 1.460

  Cook on Lit. l. 2. c. 11. sect. 194.
• * 1.461

  Lit. tit. Vil. lenage.
• * 1.462

  Minshew.
• * 1.463

  See Baile∣ment.
• * 1.464

  L. Dyer.
• * 1.465

  Cowels In∣terpret. & Innstitut.
• * 1.466

  Cook on Lit. l. 3. c. 13. sect. 701. Mainte∣nance is most usually done by the hand, either by delivery of Money, or other reward, or by ••riting on the behalf of one of the parties in a suit depend∣ing. Cook's 2 part of Instit. c. 28.
• * 1.467

  Cook's 2 part of In∣stit. c. 28.
• * 1.468

  Cook 4 Rep. Actons ••ase and on ••it. l. 1. p. 16. & 6 Rep. Coun∣tess of Rut∣lands case.
• * 1.469

  Dalton.
• * 1.470

  Cook on Lit. Principia probant, non pro∣bantur.
• * 1.471

  Cook on Lit. p. 7. 7.
• * 1.472

  Dr. and Student. Cook 5 Rep.
• * 1.473

  Cook 1 Rep. Cholmleys case.
• * 1.474

  Cook on Lit. p. 141.
• * 1.475

  Cook.
• * 1.476

  Est quae∣dam neg∣lectio supi∣na rei cu∣jusquam, à Gallico Mesp••iser Cowels Inst.
• * 1.477

  Cook 5 Rep. Wades case
• * 1.478

  Id. ib. The party that is to receive it, is to pull it out and tell it.
• * 1.479

  Cook on Lit.
• * 1.480

  Cook on Lit. p. 207. B.
• * 1.481

  Monstrum dicitnr à monstran∣do, Varr••. S••aliger. Cook on Lit. l. 3 b. & 7. b
• * 1.482

  Cook on Lit. l. 3. c. 5. sect. 332.
• * 1.483

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.484

  Cook 1 Rep. Porters case
• * 1.485

  Cook on Lit. l. 3. c. 6. sect 299. and 8 Rep. Sir Rich. Lech∣fords case.
• * 1.486

  Cook 8 Rep. Lechfords case.
• * 1.487

  T. of Law.
• * 1.488

  Cook 4 Rep. cases of ap∣peals and indictinents fol. 10. ••.
• * 1.489

  The like is in 9 Rep. Mackallies case, and this reason given, for this is contra potestatem Regis, & Legis.
• * 1.490

  Cook 9 Rep. Mackallies case.
• * 1.491

  Cook 9 R. p. Agnes Gores case.
• * 1.492

  Plowdens Comment. Sanders case.
• * 1.493

  Here San∣ders was adjudged a principall, and hanged; but whether Archer was accessary here, was a great doubt; for his offence was in counselling, and pro∣curing him to kill his Wife, and no other, for no mention was made of the Daughter.
• * 1.494

  Pulton de place Re∣gis & Reg∣ni.
• * 1.495

  Cook 9 Rep Et probos & legales homines juratos.
• * 1.496

  Cook 6 Rep. Sir Moyle •• Finches case.
• * 1.497

  Cook on Lit l. 2. c. 11. sect. 202.
• * 1.498

  ••itzh natu∣ra Brev. tit. de libertate probanda.
• * 1.499

  Smiths Commonw. of Engl. c. 25.
• * 1.500

  Cook on Lit. l. 3. c. 6.
• * 1.501

  Cook on Lit. l. 3. c. 6. sect. 405. & 4 Rep. Beverlies case.
• * 1.502

  Id. ib.
• * 1.503

  Cooks 4th Rep. Be∣verlies case
• * 1.504

  Id. ib.
• * 1.505

  Cook on Lit. & 4th Rep. Nevils case
• * 1.506

  Cook on Lit
• * 1.507

  Lamberts Iustice of P. c. 13.
• * 1.508

  Pultons Iustice of peace.
• * 1.509

  Id ib.
• * 1.510

  Cooks Pre∣face to the 2d part of his Reports Cooks 6th Rep. Coun∣tess of Rut∣lands case.
• * 1.511

  Cooks 9th Rep. the Countee of Salops case, the King calls them Companions and Cosens, Comites & consanguineos.
• * 1.512

  Cooks 7th R••p. Nevils case.
• * 1.513

  Nocumen∣tum, it comes of the French nuire, id est, nocere Cooks 5th Rep. Willi∣ams case.
• * 1.514

  See more in Cook's 3 part of In∣stitutes c. 74.
• * 1.515

  Pulton de pace Regis & regni.
• * 1.516

  Cook on Lit. l. 3. c. 1. sect. 259.
• * 1.517

  Cook on Lit. l 3. c. 5.
• * 1.518

  Cook on Lit. l. ••. c. 5. sest. 34••.
• * 1.519

  Cooks 5th Rep Pin∣ness cas••.
• * 1.520

  Cooks 6th Rep. Bo∣th••es case,
• * 1.521

  Cook on Lit. ••. 3. c. ••. ••••••••. 41••.
• * 1.522

  Cooks 11th Rep. Curles case.
• * 1.523

  Id. ib.
• * 1.524

  Anno 12. R. 2. c 2.
• * 1.525

  Cook on ••it. l. 3. c. 5. sect. 3••••.
• * 1.526

  Cook 9th Rep. Mack∣allyes case.
• * 1.527

  Cook on Lit.
• * 1.528

  Ploydens Commenta∣ries & Manning∣hams case.
• * 1.529

  Plo. Com. 168.
• * 1.530

  Cook on Lit. l. 3. c. 11. sect. 641.
• * 1.531

  Ordalium Sax••nibus & Anglis, dicebatur probatio per aquam gelidam vel ••ervidam, aut candens ferrum. ••anden∣tium vomerum judicium subjit summa mater Regis Edvardi Con∣fessoris. Vossius De vitijs Sermonis l. 12. c. 14.
• * 1.532

  Cook l. 9. de Strata Marcella.
• * 1.533

  Dictus Utlagatus quasi ex∣tra legem positus.
• * 1.534

  Stamford pl. Cor. l. 2. c. 1.
• * 1.535

  Id. Ib.
• * 1.536

  Cook on Lit. l. 2. c. 2. sect. 234.
• * 1.537

  Cook 9th Rep. Co∣ny's case.
• * 1.538

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.539

  Cook on Lit, l. 3. c. 1. sect. 241.
• * 1.540

  Id. ib.
• * 1.541

  Cook on Lit. l. 3. c. 9. sect. 528.
• * 1.542

  Id. ib.
• * 1.543

  Cook 9th R••p. Li∣fords case.
• * 1.544

  Si vetusta∣tem spe∣ctes est an∣tiquissima, si dignita∣tem est honoratis∣sima, si ju∣risdictio∣nem est capacissi∣ma. Cook on Lit. l. 2. c. 10. sect. 164.
• * 1.545

  Id. ib. & Preface to the 9th Rep.
• * 1.546

  Iudge Do∣deridge. An Ordi∣nance in Parliament differs from an Act that is ordained by one or two of them. Cook's In∣stit. 4th part c. 1. Cook l. 8. of Rex. case, de Prin. 20 b. 11. H. 7 27 7. H. 4
• * 1.547

  Ployden Partridge against Strat. s••l. 79. ••.
• * 1.548

  Cook on L••t. l. 3. c. 5. sect. 378. 9 timo Ia∣cobi.
• * 1.549

  Lamberts Iustice of Peace.
• * 1.550

  Lamberts Iustice of peace. Pulton.
• * 1.551

  Collistrigi∣um Cowell.
• * 1.552

  Curia pe∣dis pulve∣rizati. Iudge Do∣deridge, Cowels Instit.
• * 1.553

  Smiths Commonw. of England c. 9.
• * 1.554

  Id. c. 4.
• * 1.555

  Dr. & Stud. c. 9.
• * 1.556

  Cook on Lit▪
• * 1.557

  Either a Pinfold made for such purpo∣ses in his own Close, or anothers with his consent.
• * 1.558

  Cook on Lit. l. 1. c. 7. sect. 58.
• * 1.559

  Cook on Lit. & Preface to the 7th Rep.
• * 1.560

  Cook on Lit. l. 2 c. 11. sect. 199.
• * 1.561

  5 of Eliz. c. 1.
• * 1.562

  Brooks abridg. fol. 181. B.
• * 1.563

  Cook.
• * 1.564

  Cook on Lit. l. 2. c. 5. sect. 125.
• * 1.565

  Prerogati∣va is a pri∣viledge or prehemi∣nence that any person hath before an other, which as it is tolerable in same, so it is most to be permitted and allowed in a Prince. Stamford. Camdens Brit.
• * 1.566

  Stamfods prerogative.
• * 1.567

  Cooks 7th Rep.
• * 1.568

  Cook on Littleton.
• * 1.569

  Prescrip∣tio est ti∣tulus ex usu & tem∣pore sub∣stantiam capiens. Cook on Lit. l. 2. c. 10.
• * 1.570

  Stamf. of the prerog. c. 8.
• * 1.571

  Cooks 7th Rep. Bas∣ke••viles Case.
• * 1.572

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.573

  See Impri∣sonment.
• * 1.574

  Stam. l. 1. cap 26.
• * 1.575

  Cook on Lit. l. 3. c. 8. sect. 461. & Bever∣lies case non compos mentis.
• * 1.576

  Cooks 8th Rep. Black∣mores case.
• * 1.577

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.578

  Cooks 5th Rep. case. of Market overt.
• * 1.579

  Dr. & Stu▪ c. 5.
• * 1.580

  Iustinian l. 1. Inst••t.
• * 1.581

  Stams. l. 1. c. 16.
• * 1.582

  Cook 7th Rep. case of Swans.
• * 1.583

  Cooks 9th R••p. P••ul. stons case.
• * 1.584

  Cook on Lit. l. 2. c. 11. sect. 199.
• * 1.585

  Cook on Lit. l. 2. c. 12. sect. 220.
• * 1.586

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.587

  Id. ib.
• * 1.588

  Co••k on Lit. l. 2. c. 12. sect. 222.
• * 1.589

  Cooks Rep. Bruertons & Calbots case.
• * 1.590

  Cook on Lit. l. 3. c. 8. sect. 511. Litis no∣men actio∣nem signi∣ficat sive in rem sive in perso∣nam.
• * 1.591

  Cook on Lit. l. 2. c. 11. se••t. 194.
• * 1.592

  Cook on Lit. l. 2. c. 11. sect. 190. The offen∣der is cal∣led Rap∣tor. Cook ib. Stamford.
• * 1.593

  L. Dye•• term. Mich. Annis 13. & 14 Reg. Eliz. p. 304
• * 1.594

  Womans Laws.
• * 1.595

  Cook on Lit. l. 3. c. 12.
• * 1.596

  Cook pret. to 8th Rep.
• * 1.597

  Dr. & Stu. c. S.
• * 1.598

  Cook on Lit. l. 2. c. 10. sect. 170.
• * 1.599

  Cook on Lit. l. 3. c. 7. s••••t. 431. & l. 2. c. 1 •••• sect. 175.
• * 1.600

  Cook on Lit. l. 2. c. 3. sect. 101. &c. 12.
• * 1.601

  Cooks 10 Rep. Ham∣pets case.
• * 1.602

  Relevium is derived from the Latin word relevari, quia haere∣ditas quae jacens fuit per ante cessoris decessum relevatur in manus haeredum. Cook on Lit. & Minshew in Domes∣day it is called rele∣vamentum & relevatio. Cooks 7th Rep. Nevils case, and on Li••. Relevium ut Ho••omanus describit, est honorarium, quod novus vassallus patrono largitur introitus caussa, nomen ex eo, quia morte vassalli, ut vassallus cecidit, siccum eo cecidit seudum, & propterea denuo oporteat releva∣ri, hoc est, attolli. Itaque non relevium modo sed & relevatio vocatur. Vossius De vitiis Sermonis lib. 3. cap. 42.
• * 1.603

  Cook on Lit. l. 1. c. 7. sect. 60. & l. 4. c. 12. sect. 215.
• * 1.604

  Cooks first Rep. Hugh Cholmleys case.
• * 1.605

  Cook on Lit. l. 3. c. 13. sect. 721.
• * 1.606

  Doderidge.
• * 1.607

  Cook on Lit. l. 3. c. 12.
• * 1.608

  Cooks Rep. l. 10. & on Lit. l. 2. c. 12. Doderidge.
• * 1.609

  Cook on Lit.
• * 1.610

  Wom. Law.
• * 1.611

  Cooks 5th Rep. Wades case.
• * 1.612

  Cook on Lit. l. 2. c. 12▪ Lambert.
• * 1.613

  Cook on Lit. l. 2. c. 12. sect. 219. Replegiare est repo∣scere bona mobilia dato apud praefectum vade sive fide jussore. Sane & Ang∣lis breve, per quod bona ea reposcerent to replevin, quasi replegium dicitur sunt verò replegium & replegiare à plegius, vel plegium. Plegius vas, sive fidei jussor. Vossius De Vi∣tiis Sermonis. l. 2. c. 25.
• * 1.614

  2 p. of In∣stit. fol. 345
• * 1.615

  Cook on Lit. l. 2. c. 12. sect. 237.
• * 1.616

  Cook on Lit. l. 2. c. 11. sect. 288.
• * 1.617

  It cometh of the La∣tin word revertor, and signifi∣eth a re∣turning a∣gain, therefore reversio terrae est tanquam terra re∣vertens in possessione donatori sive h••redibus suis post donum finitum. Cook on Lit.
• * 1.618

  Cook on Lit. l. 3. c. 8. sect 445.
• * 1.619

  Id. ib. sect. 447.
• * 1.620

  Id. ib. sect. 478.
• * 1.621

  Id. ib. c. 11. sect. 650.
• * 1.622

  Cook l. 8. Rep. Edw. Althams case. Cook on Lit. l. 3. sect. 50.
• * 1.623

  Either be∣cause they bereaved the true man of some of his robes or garments, or because his money or goods were taken ••ut of some part of his garment, or robe about his person. Sir Edward Cook's 3d parto•• Instit. Ch. 16.
• * 1.624

  Cook 7th Rep. Ash∣pooles case.
• * 1.625

  Stamford Dr. & Stu.
• * 1.626

  39 Eliz. 15. c.
• * 1.627

  Cook 4th Rep. South∣cots case. 83. B. & on Lit. l. 2. c. 5. sect. 123.
• * 1.628

  Id. ib.
• * 1.629

  From the French word ••ou••e id est, tur∣ma.
• * 1.630

  Cook on Lit. l. 2. c. 12. sect. 233.
• * 1.631

  Cooks 6th Rep. Bre∣dimans case.
• * 1.632

  Cook on Lit. l. 3. c. 1. sect. 248.
• * 1.633

  Vita rei∣publicae pax. Vicem ge∣rens seu vicarius comitis. Cook pre∣face to 3d Rep.
• * 1.634

  Cook 4th Rep. Mit∣tons case.
• * 1.635

  Cook on Lit. l. 2. c. 5. sect. 117.
• * 1.636

  Cook ••th Rep. Cir∣ringhams case.
• * 1.637

  Cook on Lit. l 2. c. 8. sect. 153.
• * 1.638

  Cook on Lit. l. 2. c. 11. sect. 193.
• * 1.639

  Fortescue de laudibus legum Au∣gliae.
• * 1.640

  Cooks 7th Rep. Cases of Swans.
• * 1.641

  Cooks Rep. The Coun∣tess of Sa∣lops case, Seneschall is derived of sein, a house or place, and schal an Of∣ficer ••r Governour; some say that sen is an antient word for Iustice, so as Seneschall should signisie Officiarius Justitiae Cook on Lit. l. 1. c. 9. sect. 78.
• * 1.642

  Cook on Lit. l. 3. c. 10. sect. 559.
• * 1.643

  Cook on Lat. l. 2. c 11. sect. 200.
• * 1.644

  Cook ib. fol. 132, 133.
• * 1.645

  Cook Rep. l. 7. Nevils case, fol. 33. B.
• * 1.646

  Cook Rep. l. 8. Paines case. p. 35. B. Cook 7 Rep. Nevils case p. 33, 34, 35
• * 1.647

  Cook 7 Rep. Beresfords case.
• * 1.648

  Perkins tit. Faits, f. 36. A
• * 1.649

  Littleton Cook Rep. l. 8. Princes case, f. 22. A
• * 1.650

  Cook Lo∣vels case.
• * 1.651

  Cook on Lit. l. 1. c. 2. sect. 15.
• * 1.652

  Id. ib.
• * 1.653

  Id. sect. 16.
• * 1.654

  Cook on Lit. l. 3. c. 3. sect. 32. and 11. Rep. Lewis Bowles case.
• * 1.655

  Id. on Li••▪ ib.
• * 1.656

  Cook on Lit. l. 1. c. 2. sect. 14.
• * 1.657

  See afore tit.
• * 1.658

  Cook on Lit. l. 2. c. 10. sect. 167. Voluntas testatoris ambulato∣ria usque ad mor∣tem, testa∣mentum morte consum∣matum est. Ultima voluntas, a last Will is the disposition or bestowing of a mans own goods and lands taking effect after his death.
• * 1.659

  Perkins tit. of testam.
• * 1.660

  Perk. ib. Cook 5 Rep. Veres case in the lat∣ter end of Princes.
• * 1.661

  Fitzh. abri. admini∣strat.
• * 1.662

  Perk. tit. test. f. 94.
• * 1.663

  Plowd. in case inter Paramor & Iurdley fol. 541.
• * 1.664

  Cook 6 Rep. Marquess of Winche∣sters case.
• * 1.665

  Lands hol∣den in bur∣gage and gavelkind are devisa∣ble by will.
• * 1.666

  Stat. H. 8. anno 34 c. 5. Dr. and Student. l. 1 cap. 21. Perk. tit. d•• devise.
• * 1.667

  Fitz. abrid▪ exec. 108▪
• * 1.668

  Cook on Lit. l. 2. c. 5.
• * 1.669

  Cook 4 Rep. Edward Althams Case.
• * 1.670

  Cook 3 Rep. preface to the Reader Cook on Lit. l. 2. c. 10. sest. 171. Villa quasi vehilla quòd in e∣am conve∣hantur fru∣ctus vicus because it is prope viam. Transgres∣sio dicitur à transgre∣diendo, be∣cause it pas∣seth that which is right. Cook on Li••. P. 57.
• * 1.671

  Fitz. Herb. N. Brev. tit. Tre••p.
• * 1.672

  L. Dyer.
• * 1.673

  Cook. 1 Rep. ••••ellies case
• * 1.674

  Alta prodi∣tio, & pro∣dit to parva. Proditorie must neces∣sarily be used in every In∣dictment of Treason.
• * 1.675

  Stams pl. of C. l. 3. c. 19. with Dr. Boys his gloss. The Romans called high treason lae∣sam Maje∣statem.
• * 1.676

  Stamf. pl. of Cr. l. 1. c. 44
• * 1.677

  L. Dyer. ter. Hil. an. 2. & 3 P. & M
• * 1.678

  Cook on Lit.
• * 1.679

  Brook abri. fol. 181.
• * 1.680

  Fitz. coron. 281. 436. Ployden.
• * 1.681

  It is called in the com∣mon Law treasure trove, that is, treasure found.
• * 1.682

  Lambert.
• * 1.683

  See Cook's 2d part of Instit. c. 29.
• * 1.684

  Iudge Do∣deridge English Lawyer.
• * 1.685

  Cook on Lit.
• * 1.686

  Lambert perambul. of Kent.
• * 1.687

  Lit. lib. 2. cap. 10. sect. 12.
• * 1.688

  Cook on Lit. p. 120.
• * 1.689

  Cook 5 Rep. Claytons Case.
• * 1.690

  The Statute 21 of K. Iames, c. 17. forbids taking above 8 in the, 100 that of Queen Eliz. above 10.
• * 1.691

  Cambden of Durham.
• * 1.692

  Cook on Lit. l. 2. c. 11.
• * 1.693

  Id. ib.
• * 1.694

  Vadiare cometh of the French gager, id est dare pignus, pignore certare, to put in a surety. Minshew.
• * 1.695

  Books tit Estray and waif.
• * 1.696

  A thing pro dere∣licto, habi∣ta, waived and for∣saken, is nullius in bonis. 29 E. 3. 29 E 4, 5, 12.
• * 1.697

  12 E. 3. Brief. 678.
• * 1.698

  Cook 5 Rep. Foxleys case.
• * 1.699

  Cook on Lit. l. 2. c. 11. sect. 186.
• * 1.700

  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.
• * 1.701

  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.
• * 1.702

  It comes from the French word ga∣rein, id est, vivarium, Dr. Cow∣ell Instit. Cook on Lit. p. 5.
• * 1.703

  Brooks abr. tit. Chat∣tels p. 135. B. Cook on Lit. l. 1. c. 7. sect. 67.
• * 1.704

  And Rep. Harle••an∣ders case. fol. 63, 64
• * 1.705

  Fitzh. Nat. Brev. 58 H.
• * 1.706

  Cook l. 5. Rep. Coun∣tes de Sa∣lop. fol. 13.
• * 1.707

  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.
• * 1.708

  Cook on Lit. l. 1. c. 7. sect. 67.
• * 1.709

  Id. Ib.
• * 1.710

  Id. ib.
• * 1.711

  Cook 4 Rep. Forse and Hemblings case.
• * 1.712

  45 Edw 3. Fitz. Coven 18. 1 H. 5. 12. 6. Perk. cap. de Grant. Nat. Brev. fol. 120. Nat. Brev. fol. 188. 11.
• * 1.713

  Perk. fol. 2. A
• * 1.714

  Perk. fol. 2. B
• * 1.715

  27 H. 8. 27. p. 12.
• * 1.716

  Perk. f. 3, 4
• * 1.717

  21 H. 7. 18 p. 29. Nat. Brev. f. 12.
• * 1.718

  Plowd. Comment. 344 a Bret. and Rig∣dons case.
• * 1.719

  Dr. and Stud. f. 13. Plowd. Comment. fol. 418. 8.
• * 1.720

  12 H. 7. 22. Cook 5 Rep. fol. 36. H. 8. Dyer fol. 6. Dr. and Stu. fol. 13. Plowd. Comment. fol. 36.
• * 1.721

  4 H. 6. 31.
• * 1.722

  Doderidge. See Smiths Common∣wealth of England. l. 3. c. 10.
• * 1.723

  Cook 5 Rep. Sir Henry Constables case. Id. ib.
• * 1.724

  Dr. and Stud.
• * 1.725

  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.
• * 1.726

  Cook on Lit. l. 2. c. 1.
• * 1.727

  Cook pre∣face to se∣cond Rep.
• * 1.728

  Cook L. 5