A Philological Commentary, Philological commentary · Part A

A Philological Commentary · Philological commentary · Part A

p. 1ABATE.

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 descendedCook on Lit. l. 3. c. 8. sect. 475. 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 overthrow; 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 SyriackCowels Interp. 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 relation to the Corporation.

ABEIANCE.

p. 2Abeiance, it seems to be derived from the FrenchIn Abeiance i. e. in expectation, of the French word bayer to expect, Cook on Lit. in potentia as the L…gi…ians t…rm …t, in expectation or consideration of Law in nubibus, in the Cl…uds. C…k on …i…. l. 3▪ c. 11. sect. …46. (Abayer) i. e. al…a…ra…e, to bark at, as Dogs do against 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 followeth o… this evil act, but not o… another distinct thing▪ as I command one to beat another, and p. 3he 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 goi…g F…i…, and he br…ak his house in …sid…, …nd th… away hi… Pla…e; I shallPlo. C…m▪ Sanders case. …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 cannot be arraigned; …or the Maximm… o…aw is, Vbi▪ non …orC…ok …. R…p. Cases of appeals and indict Sie…s 42. B. 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, because 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 attainder 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 Cook on Lat. l. 1. c. 8. sect. 7… ▪& armis, which are the lowest offences; and so in the highest offence, which is Crimen …oesae majestatis, p. 4there be no accessaries, but in Felony thereIn alta proditione nullus p…test esse accessorius, sed principalis solummodo. Fulb. praeparat. 5. c. p. 43. are both before and after.

In the third of Queen Mary a maidservant conspired 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 nothing; she was not a Principal, (thoug… she was present at the act, and did concur with the murderer from the beginning to the end) but accessary, because 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 Maidservant, 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, Termes of Law.for the first of these may be by word, without 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 discharge or keep in quiet, and to see that the TenantCook on Lit. lib. 2. sect. 142. be safely kept from any Entries or molestation, for any manner of service issuing out of the Land to any Lord that is above the Mesne, hereof cometh acquital & quietus est, i. e. he is discharged; and he that is discharged of a selony by p. 5judgment, is said to be acquitted of the selony a…atus de …el-nia, and if it be drawn in question again, he may plead auter sois acquite.

And acquitall is either in deed or in Law; acquitallCook. 2 Instit. 385. 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 himself 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 containethAcra …lim incerta nune ve…ò certa per Statut. 31. Ed. 1. 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.Actio est jus prosequendi in judicio, quod alicui debetur.

It may well be called an Action, quia agitur de injuria, for it is a complaint of an injury received.

ACTIONS are

1. Personall, whereby a man claimeth Debt or other Goods and Chattels, or Damage for them, or Damages for wrong done to hisRatione objecti circa quod ver. satur. person, it is properly that which in Civil Law is called actio in personam.

2. Beall, whereby the Demandant claimeth p. 6title to have a Freehold in any Lands, or Tenements, Rents or Commons in Free-simple, … tail, or for term of life.

3. Mixt, whereby something in the reallity i… recovered▪ and damages also, as in ….

Actio personalis m…itur cum p…rs…na. This rule is not generally to be admitted, but only in41. Ass. pl. 15. …. ex. 74. C…. 9. fol. 8… Fulb. para… ▪ second pa… ▪ second dial. & alii. 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 Civilion…, A…ti… in…iarum) is so termed in the Common Law, because every mans Case must be in the Action, specially, and at large set down; forFulb. par… ▪ second part second …al. Cook 5. Rep. 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 negligenligenter 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 theCook 4. Rep. actions upon slander. 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. Common Law for calling a man here…ick, or adulterer, 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 p. 7have 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 forswornCook …. Rep. Actions … slander. H…b Rep. …l. 126. 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 praeser…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 forsw…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 person 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 ActionCook ubi supra. for their uncertainty. 2. That the scandall be apparent 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 constat Cook 4. Rep. actiones de scandalis.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, p. 8said of Manwood chief Baron, That he was a corrupt 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 Bankrupt in two days, which imports onelyonly an inclination; 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 whichFriz. Herb. Nat. brev. Action upon the Case. Cook 8 fol. 32. Calyes Case. Id. ib. 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 notT…e Master hath n… da…g… by p…s…nall battery of his servant. 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. Morys Case.

p. 9ADIOUENMENT.

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 present 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 Chattels within his Diocess belonging to any person that is dead, without Executor for the benefit ofCook 5. fol. 2…. Piggots case. 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 sellCook 5. Rep Princes Case. any of the goods of the dead, unless it be of necessity 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 …mnium & 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 onelyonly in an inferiour 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 sentence, because the Metropolitane hath jurisdiction over all the Diocesses within his Province, but if p. 10an 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 elsewhere, because that by … means he can have jurisdiction of the Cause.

ADVOWSON.

Advowson of a Church is the right of PresentationCook on Lit. l. 2. sect. 18…. or Collation to the Church, Adv…catio, so called, because the righ… of presenting to the Church was first gained …uch i… were Founders, 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 hisCook on Littelton l. 3. c. 13. sect. 722. 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 constructio… ▪ This hath been resolved by the Justices.

AFFEERORS.

**It comes of an old French word esscu…er. i. e. to tax or sine Minsh.Affeerors are such as are appointed in Courtleets, to mulct such as have committed any fault, p. 11which 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 usuall w… it will strike a fear into …er that be4 II. 6. 10. 8. Ed. 4. 5. not …, a… he is: for which reason i… i… a common 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 purposesCook on Lit. l. 2. c. 4. …ct. 1…2. Lit. Ten. tit. D…er & l. 2. c. 4. p. 22. 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…iage, 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 marriage, if she were under the age of fourteen atCook on Lit. ubi supra. Fitz. Herb. Nat. Brev. in brevi de rationabili auxilio. Lit. Ten. 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, fifteen years for the Lord to have aide pour sai…e p. 12fit… 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,Cook on Lit. l. 3. c. 1. sect. 259. …t. Ten. l. 2. c. 4. p. 22 & l. 4. c. 1. p. 5…, 57. 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 woman to enable them to seal any Bond or any Deed whatsoever; a man cannot lawfully be impannelled in a Jury before that age, and at 17 years he may administer as Executor.

AGREEMENT.

Agreement (saith Pl…d… ) is a word compoundedPlowden Term. Pa…. a…o 4. E. 6. Reniger against …. 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 TwelvePlowden ib. 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▪, Alienae gentis or alienae ligeantiae. Cook on Lit.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 within England.

1. Because the Secrets of the Realm may thus be discovered.

2. The Revenues of the Realm (which are the p. 13sinews of Warre, and ornament of Peace) shall be taken, and enjoyed by strangers born.

3. This will tend to the destruction of theCook …. …. Rep. …v. C…. 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 disturbed 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 Englishmen.

ALMS.

Alms, and relief of poor people, being a workCook on Lit. of charity, is accounted in Law Divine Service, for what herein is done to the poor for Gods sake, is done to God himself.Iura naturalia …ur… …vili di…imi non possunt. …nd Student.

If it were ordained that no Alms should be given for no necessity, this Custom and Statute were void, because no generall Custom of Statute must be directly against the Law of God. Nevertheless, 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, Cook on Lit▪ lib. 2. c. 11. p. 194.because it ought to be assessed mercifully, and this ought to be moderated by affeerement of his equals, p. 14or else a Writ de moderata misericordia doth lie, or because the party which offendethTerm. of Law. Cook▪ … ▪ Rep. 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 antecessorCook on Lit. …. 2. c. 4. sect. 1…3. 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 Corporate, 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 manCook on Lit l. 3. c. …. sect. 422. 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 …emes…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 pastures 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 suchCook▪ 2 Institut. 37. spoil, the King should have the lands of such … lon for a year and a day, and afterwards the Lord p. 15to 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 erroneously, 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 beI… … ▪ 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 ofCook on Lit. 144. money granted to another in see for life or years, charging the person of the grantor onelyonly.

For it, no action lieth, but onelyonly a Writ of AnnuityF…. Herb. Na…. brev. p. 152. 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 thePloyd. an. 6. …resp. by Browning against Best…r. thing, for which he grants the annuity; It is a conditionall 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 p. 16Grantee 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 hisPlowd. Comment. p. 458. 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, yet6. H. 8. Dy. nevertheless the annuity is not determined by this non feasance, yet it was the Grantees act and default to commit the Treason, whereby the imprisonment 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. beBacons Collection. 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, & impendendo to one Pl…mer Attorney, there is contention between the Grantor and a stranger, and the Attorney dat consilium adversario concess…ris, sed non est requisitus ad dandum consilium per concessorem sibi in illa materia, whether this were against the effect and intention of the former grant, and it was held no, but the Annuity shall continue.

APPEAL.

Appeal cometh of the French word Appeller, Cook on Lit. l. 2. c. 11. sect. 180. Cook on Lit. l. 3. c. 8. sect. 500.that signifieth to accuse or appeach, it is an accusation, or of appeller to call, because appellans vocat reum in judicium, He calleth the Defendant into judgement.

p. 17There 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 wifeCook ubi supra. only of the death of her Husband to be prosecuted whilest she is a widow.

3. Of Wrongs done to the appellants themselves, as robbery, rape, and mayhem.

The Law prohibireth not counsell in an appeal,An Appeal is called but a suit of revenge, ergo not much sav ured. 11 H. 4. 1…. Dr. and Student. c. 48. as it doth in an Indictment, became there is no appeal brought, but that of common presumption, 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 favour.

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 provisiene hominis, he loseth … ▪ by the attainder of his father, but his wife shall have an appeal, because she is to have her appeal as wife, which she remaineth, notwithstanding the attainder, because maris & faeminae conjunctio est de jure naturae, and therefore …s indissoluble. The reason why a woman hath appeal de morte viri, is because by his death she is thought less able to live and maintain her self; if she marry again, her appeal isWomans Lawyer. 8 H. 4. 18. Ter…tes of Law. 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. & p. 18Indict. It shall be brought within a year after the stroke, and not the death, Stamford.T. of Law. T. of Law.

An appeal of Mayhem is in manner but a trespass, for he shall recover but damages, yet the indictment shall say quod felonete mahemavit.

APPENDANT.

Appendant is any inheritance belonging to anotherCook on Lit. l. 2. c. 11. s. 148. Cook 4 Rep. Tyrring. Case. 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 aId ib. 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 apprentiship,Mr▪ Seldens notes on Fortescue. pag. 3. 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. Fortescue saith, there were in the Ins of Court and Chancery, at the least 2000 of them, which prodigious number may be admired, since in the Parliament Rolls, 20 Ed. 1. Rot. 5. in dorso: it is there ordained in his verbis, De Attornatis & apprenticii…, p. 19D. Rex injunxit I. de Metingham, & sociis suis, quód ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet Comitatu de melioribus & legalioribus, & libentiùs addiscentibus, secundum quod intellexerunt quòd Curiae suae & populo de regno melius valere poterit, & majus commodum fuerit. Et quod ipsi quos ad hoc eligerent Curiam sequantur, & se de negotiis in eadem Curia intromittant, & alii non. Et videtur Regi & ejus Concilio, quod septies viginti sufficere poterint, apponant tamen praesati Iusticiarii plures si viderint esse faciendum, vel numerum anticipent, & de aliis remanentibus fiat per discretionem eorundem Iusticiariorum, &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 appears 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 Parliment 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 portio, which signifieth a part of the whole, and apportionCook on Lit▪ l. 2. c. 12. sect. …2…. 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 p. 20thing by vertue of these words pertinentiis, as Lands, Advowsons, Commons, Waies, Courts to a Mannour house, or Office. Appendants are everCook on Lit. l. 2. c. 11. by prescription, appurtenants may be created in some Cases, at this day.

ARBITREMENT.

Arbitrement, it is so called, because the Judges elected therein may determine the controversie not according to the Law, but ex boni… viri arbitrio, or else because the parties to the controversie 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,L. Dyer, term. mich. Anno sexto Ed. 6. 75. 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.Dyer 21… Pl. ….

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, whenY. of Law. he is indicted, and put to his tryal.

One arraigned upon an an indictment of selonyDr. and Student. …. …. 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 p. 21by his mispleading, to arraign an Assise to prosecute by such a Writ.

ARREST.

Arrest, is derived as some think of the FrenchDoderidge. word arrester to stay, or from the Greek word foreign, 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 warrant. 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.Brook. abri. fol. 182. B.

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 NobilityCook 6. Rep Countess of Ratlands Case. 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 extends also to women that are Countesses by birth or marriage, if those by marriage loose not that dignity by intermarriage with one under the degree of Nobility. They shall not therefore be putCook 9 Rep Earl of Salops Case. in Juries, although it be the service of the Countrey.

An arrest in the night is lawfull, for the Officer 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 Officer do not arrest him when he findeth him and mayCook 9 Rep. Mackallies Case. arrest him, the Plaintiff shall have an action upon the Case, and recover all his loss in dammages. p. 22No 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 Office, was taken for an assault. To strike at a man27 Ass. Pl. 11. 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.T. of Law.

ASSISE.

Assise sayeth Littleton, est nomen aequivocum, sometimes 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 properly it is taken for a Writ or Action, and it lieth where any man is put out of his Lands, Tenements 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 p. 23Land it self, and damages, but only in an Assise against the disseisor.

There be four Assises in an Assise of Novell disseism, 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 voluntaryTerm. of Law. 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 without consideration will not bind in Law to performance, but is called nudum pactum ex quo non oritur actio.

ATTACHMENT.

Attachment, signifieth a taking hold, or apprehending 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 bodyTerms of Law. Minish. of a man, an Attachment is more general, and extends to the taking of goods. Kitchin saith a man may attach a Cow.

ATTAINDER.

Attainder, is when a man hath committed Treason or Felony, and after conviction judgment hath passed upon him, he is then said to be attainted, 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. p. 24If 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; before that time it was rare to attaint a man after his death, but since frequent.

1. His Children cannot be Heirs to him, nor anyCook on Lit. l. 3. c. 13. sect. 745. other Ancestor.

2. If he were noble and gentle before, he and all his Children and Posterity are by his attainder 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 Writers it is called breve de convictione, and is derived of the participle tinctus, or attinctus, because if the p…rty Jury be attainted of a false Oath, they are stained with perjury, and become infamousCook on Lit. l. 3. c. 8. sect. 5. 14. for ever, for the judgment of the Common 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.

p. 253. Quòd terrae & tenementa in manus Domint Regis capiantur.

4. Quòd u…res & liberi extra domus suas ejicerentur.S… odious is perjury in the eye of the Common Law. Cows Institut. Minsh.

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 attingere, 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. stained.

ATTORNEY.

Attorney, is an antient English word, and signifieth one that is set in the turn, stead, or place of another. Of these some be private and some be publick,Cook on Lit. l. 1. c. …. l. 1. sect. 59. 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 sometimes 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 AuthorityPerk. 187. 109. and commandment, all that he doth is void, but where he doth that which he is authorized 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 entereth only into one and maketh Livery, it is void for all. So if a Letter of Attorney be made to p. 26deliver 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 Authority 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 TenantOf the French tourner to turn: therefore they say to turn Tenant Minsh. Cook on Lit. l. 3. c. 10. sect. 551. 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 another. 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, Remainder, 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 seigniory, rent, reversion, &c. before attornment, cannot 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 attorn 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 p. 27for 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 Regist. Orig fol. 87. Glanvil. l. 9. cap. 8.filium maritandum, is a Writ directed to the Sheriff 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 Common Law it was not limited, yet ought to have beenWest. 1. 3. Ed. 1. 25. Ed. 3. 11. 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 impleaded 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… …otest4. H. 30.

2. In a Plea …all, and then the Defendant pet… auxilium ad manulerendum exititium.