A Philological Commentary, Philological commentary · Part V – Part Y
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 servus among the Civilians. A man of servile or base degree, villain from the French villein, à villa, from a Countrey Farm, whereunto they wereIudge Doderidge English Lawyer. 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 twofold.
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.Cook on Lit.
It is agreed by all men, that there were never any bondmen or villains, as the Law calleth themLambert perambul. of Kent. in Kent.
Villenage is where a man holdeth of his Lord, either by doing unto him some particular base service, and such an one is called a Tenant by villenage, or by doing generally whatsoever base service his Lord will command, and impose uponLit. lib. 2. cap. 10. sect. 12. 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.Cook on Lit. p. 120.
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 understanding 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 aera, Cook 5 Rep. Claytons Case.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 excessThe Statute 21 of K. Iames, c. 17. forbids taking above 8 in the, 100 that of Queen Eliz. above 10.
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 ofCambden of Durham. 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, Cook on Lit. l. 2. c. 11.because he might be pu… to death by any man, as a Wol… that harefull beast might be. But in the beginning 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 WarrantId. ib. therefore) to put to death any man outlawed 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 performingVadiare cometh of the French gager, id est dare pignus, pignore certare, to put in a surety. Minshew. 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 hisBooks tit Estray and waif. 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 forsaken,A thing pro derelicto, habita, waived and forsaken, is nullius in bonis. 29 E. 3. 29 E 4, 5, 12. 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 treasury …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 apparet, ideo cujus sunt incertum est, and therefore12 E. 3. Brief. 678. 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 orCook 5 Rep. Foxleys case. 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 areCook on Lit. l. 2. c. 11. sect. 186. 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 soWapentakia a Wapen. hoc est, armis: quae quoties novus esset hundredi dominus, ei in subjectionis signum reddebant. Vossius De vitiis Sermonis l. 2. c. 9. Smiths Common wealth of England. c. 19. 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, Arrows.
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 BargainerWarrantum 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 contractus instrumentum▪ Vossius De vitiis Sermonis. l. 2. c. 20. is bound to warrant the thing sold to the Bargainee, and is either,
1. Reall, or
2. Personall.
1. Real, when it is annexed to Lands or Tenements 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 other 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 either
1. Lineall.
2. Collaterall, or
3. Commencing by deseisen.
WARREN.
Warren, The King grants a Warren to me inIt comes from the French word garein, id est, vivarium, Dr. Cowell Instit. Cook on Lit. p. 5. mine own Lands for Pheasants and Partridges onelyonly, 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 haveBrooks abr. tit. Chattels p. 135. B. Cook on Lit. l. 1. c. 7. sect. 67. glass, for the house (saith he) is perfect without 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 byAnd Rep. Harle…anders case. fol. 63, 64 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 resolved, 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.Fitzh. Nat. Brev. 58 H.
By an Action of waste at our Law, the Plaintiff, if it be …ound for him, shall recover treble dammages.Cook l. 5. Rep. Countes de Salop. fol. 13.
For permissive waste no Action lies against Tenant at will, but for voluntary waste a generall Action of Trespass lies.
There are two kinds of waste, viz. voluntary,At the Common 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. 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 Tenant 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-edifie it again.
Though there be no timber growing upon the ground, yet the Tenant at his perillCook on Lit. l. 1. c. 7. sect. 67. 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 cannot 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 TenantId. Ib. 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 suffer it to be wasted, it is a new waste. Waste properly 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 whereby 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 LawId. ib. to repair a house in that case: And if he cut down Timber upon the ground so letten, and repair it, he may well justifie it; and the reason is, because the Law doth favour the supportation and maintenance of Houses of habitation for mankind.
WIFE.
Wife. After Marriage, all the will of the Wife,Cook 4 Rep. Forse and Hemblings case. 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, because the Law intends her to have no will, in regard of her subjection and obedience she owes to her Husband.45 Edw 3. Fitz. Coven 18. 1 H. 5. 12. 6. Perk. cap. de Grant. Nat. Brev. fol. 120. Nat. Brev. fol. 188. 11.
Our Law saith, that every gift, grant, or disposition of goods, lands, or other thing whatsoever, made by a woman covert, and all, and every obligation and seoffment made by her, and recovery 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 bePerk. fol. 2. A 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 assignedPerk. fol. 2. B 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 list27 H. 8. 27. p. 12. 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 entringPerk. f. 3, 4 by so…ce thereof, is a dissesor to the Husband and trespassor.
If she sell any thing, the sale is void, except she21 H. 7. 18 p. 29. Nat. Brev. f. 12. 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 casePlowd. Comment. 344 a Bret. and Rigdons case.
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 theDr. and Stud. f. 13. Plowd. Comment. fol. 418. 8. 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 interest.
By the Common Law Marriage is a gift of all12 H. 7. 22. Cook 5 Rep. fol. 36. H. 8. Dyer fol. 6. Dr. and Stu. fol. 13. Plowd. Comment. fol. 36. 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: she4 H. 6. 31. can neither let, set, al…en, give, nor otherwise of right make any thing away.
WITHERNAM.
Withernam comes from two old and out-worn Saxon words, Wither al terum & nam pignus quasi Doderidge. See Smiths Commonwealth of England. l. 3. c. 10.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, nothingCook 5 Rep. Sir Henry Constables case. Id. ib. 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, asDr. and Stud. 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,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. 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, Cook on Lit. l. 2. c. 1.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 contrary 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 mightCook preface to second Rep. be disturbed or delayed, according to the antient Law declared by the great Charter, Nulli v…ndemus aut negabimus aut differemus justitiam vel rectum.
Y.
YARD-LAND.
YArd-land, or Virgata terrae, the Saxons calledCook L. 5 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.