A Philological Commentary, Philological commentary · Part T
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 Cook Rep. l. 7. Nevils case, fol. 33. B.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 alienandi 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 Husband, after issue had by her first, she had full feesimpleCook Rep. l. 8. Paines case. p. 35. B. Cook 7 Rep. Nevils case p. 33, 34, 35 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 onelyonly a meer personall hereditament.
To estate tail, it is requisite, that the Heirs beCook 7 Rep. Beresfords case. 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 alwaies necessary to the creation of an estate tail.
If Land be given by Deed to I. S. Et si contingat Perkins tit. Faits, f. 36. Aipsum 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 observetur.
If Land be given to a man, and to his heirsLittleton Cook Rep. l. 8. Princes case, f. 22. A 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 therefore his intent shall be taken.
The King conveyes Land to a man and his heirsCook Lovels case. males, his estate is void because the King is deceived.
If Lands be given to a man, and to his heirsCook on Lit. l. 1. c. 2. sect. 15. 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 expressedId. ib. 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 afterwards.
If Lands be given to a man and a woman unmarried, and the heris of their two bodies, for the apparent possibility to marry, they have an estateId. sect. 16. tail in them presently.
TAIL.
Tail after possibility. To hold in the tail afterCook on Lit. l. 3. c. 3. sect. 32. and 11. Rep. Lewis Bowles case. 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 overliveth 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 Lessee 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 reversion.
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 forfeiture of his estate.
2. If an estate in fee, or in fee tail, in reversion or remainder descend, or come to this Tenant, his estate is drowned, and the fee, or fee-tail executed.
3. He in the Reversion or remainder shall be received 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 ofId. on Li… ▪ ib. the quantity are equall, so as the difference standeth in the quality and not in the quantity 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 speciall tail; and he is called Tenant in tail after 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 Subsidies, 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 onlyCook on Lit. l. 1. c. 2. sect. 14. 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, Commons, or other profits whatsoever granted out of the Land.
TENURE.
Tenure, there is a Tenure in England, whereSee afore tit. 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 nothing.
TESTAMENT.
Testament, The making of a Testament hath three parts.
1. Inception, which is the writing of the Testament.
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,Cook on Lit. l. 2. c. 10. sect. 167. Voluntas testatoris ambulatoria usque ad mortem, testamentum morte consummatum est. Ultima voluntas, a last Will is the disposition or bestowing of a mans own goods and lands taking effect after his death. is put in writing.
2. Nuncupativum, seu sine scriptis, when the Testator doth by word only declare his will before witnesses. And in some Cities, or Boroughs, 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 Ordinary, unless it be in special Cases, where the Lords have probate of the Testaments of theirPerkins tit. of testam. Tenants, before the Stewards, or themselves in their temporall Courts.
A Testament proved before the Bishop himself 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 inferiour Diocess, but the Metropolitane of the same Province pretending that he had bona notabilia in divers Diocesses, commits administration, this administration is not void, but voidable by sentence,Perk. ib. Cook 5 Rep. Veres case in the latter end of Princes. because the Metropolitane hath jurisdiction over all Diocesses within his Province, but if an Ordinary of a Diocess commit administration of goods, when the party hath bona notabilia in divers 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, thatFitzh. abri. administrat. if the Testato. …ie possessed of goods or chat…els to the value of sorry Shillings in two severall Diocesses, then he ought to be deemed to have notable goods, others have been of this mind, that the testator is deemed to have notable goods,Perk. tit. test. f. 94. 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 inPlowd. in case inter Paramor & Iurdley fol. 541. 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 Testator be of memory, when he maketh his will, to answer to familiar and usefull questions, but heCook 6 Rep. Marquess of Winchesters case. ought to have a disposing memory, so that he be able to make a disposition of his Lands with understanding 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…iting 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 Executor, and declare his own mind before witnesses. It is of as great force and efficacy (except for lands, Tenements, and Hereditaments) as a writtenLands holden in burgage and gavelkind are devisable by will. Testament. This kind of Testament is commonly made when the testator is now very sick, weak, and past all hope of recovery.
These persons following cannot make a testament, 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, areStat. H. 8. anno 34 c. 5. Dr. and Student. l. 1 cap. 21. Perk. tit. d… devise. not good or effectual in Law, for untill that time by the Common Laws of this Realm they be accounted 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,Fitz. abrid▪ exec. 108▪ 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 account in Law, as very profitable for the Commonwealth, the Common Law giveth arable LandCook on Lit. l. 2. c. 5. the preheminence and precedency before Meadows, 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 labours, by converting of tillage into Pasture, onelyonly two or three Herdmen are maintained.
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 enemies, 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 every right is a title, but every title is not such a right for which an action lieth, and therefore titulus 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 andCook 4 Rep. Edward Althams Case. 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 Cook 3 Rep. preface to the Reader Cook on Lit. l. 2. c. 10. sest. 171. Villa quasi vehilla quòd in eam convehantur fructus vicus because it is prope viam. Transgressio dicitur à transgrediendo, because it passeth that which is right. Cook on Li…. P. 57.…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 contrary 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,Fitz. Herb. N. Brev. tit. Tre…p. is coeperunt & abduxerunt, for a dead thing, coeperunt & asportaverunt.
TRAVERSE.
Traverse, It took the name of the French d… traverse, which is no other then de traverse in Latin 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 himself.
Traversing of an Endictment is to take issue upon the chief matter thereof, which is to make contradiction, 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 treason, and stands mute, or will not directly answe… L. Dyer.to the crime, judgment shall be given upon him a… upon a traytor convict. Fatetur facinus qui judicium 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 intent, and killeth him which was his Master: th… is petty-treason, for the execution respects the originalCook. 1 Rep. …ellies case 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 majori proditione omnes sunt principales.
It is either High, or Petty-Treason: It is calledAlta proditio, & prodit to parva. Proditorie must necessarily be used in every Indictment of Treason. High in respect of the King which is the highest person; Petty in regard of the inferiority of the persons against whom it is committed. Voluntas non reputabitur pro facto nisi in causa proditio…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 beingStams pl. of C. l. 3. c. 19. with Dr. Boys his gloss. The Romans called high treason laesam Majestatem. 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 between Heaven and Earth, as deemed unworthy of both; his Privy parts are cut off, as being unprofitably begotten, and unfit to leave any generation after him; his Bowels and Intrals burned, which inwardly had conceived and concealed such horrible Treason; then his Head cut off, that imagined the mischief.
Petty Treason is a killing of any to whom pri…ateStamf. pl. of Cr. l. 1. c. 44 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 Ordinary, 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 principall 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,L. Dyer. ter. Hil. an. 2. & 3 P. & M 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 ofCook on Lit. 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, exceptBrook abri. fol. 181. 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… Fitz. coron. 281. 436. Ployden.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 theyIt is called in the common Law treasure trove, that is, treasure found. 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 aLambert. 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 creation, 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 RealmSee Cook's 2d part of Instit. c. 29. 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.