A Philological Commentary, Philological commentary · Part E
E.
ECCLESIA.
ECclesia, this word in the Common Law, isFitz. Nat. Brev. 32. c. 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, trueCook on Lit. l. 2. c. 6. sect. 133. 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 secular, as Bishops, Deans and Chapters, Arch-deacons, 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, whichTerms of …. 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. Fulbeeks prepar.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 Election. 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 payment 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. Cook on Lit. l. 2. c. 12. sect. 319.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 election, 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 either 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 PepperDyer fol. 18. 104. 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 other21 H. 7. 19. 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 ElectionCook l. 5. Rep. fol. 59 of the Constable to go to what Justice he pleaseth.
ELEGIT.
Elegit, est nomen Brevis, sic dictum ab hoc verb… Cowel Instit.(Elegit) in eodem comprehenso.
EMPARLANCE.
Emparlance, cometh of the French word (parler)Cowels Interpreter. and signifieth a desire or petition in Court, of a day to pause what is best to do.
ENDICTMENT.
Endictment, signifieth in Law an accusationSome derive it from the word foreign to accuse. 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 putIf it be uncertain, it is not good. Stamford pl. of Cr. l. 2. c. 30. in the day, year, and place, when and where the felony is done.
It ought to be certain also in the matter, as appears. 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 permisit, 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 money 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 shouldStam. ubi supra. escape punishment, therefore although no appeal lie against him in this case, yet and Endictment lies, and he shall be endicted, quòd interfecit 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 insufficient,Brooks abr. 4 Rep. cases of Appeals and Indict. 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 appeals and Indictments.
Endictments of treason and of all other thingsCook 7 Rep. Calv. Case. 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 carnaliter 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 thereforeStamford pl. of Cr. 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,Vi & armis must …e in all Endictmen… … treason, murder, selony▪ … else it is not good. D. and Student. c. 5. 4. that is, with st…ves, swords and knives feloniously stole the Horse, against the Kings peace, and that form must be kept in every Endictment, 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 & anno 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 Alice S. for there Spinster, being an indifferent addition,Ad proximum antecedens fiat relatio. both for man and woman, must refer to I. S. which is the next antecedent, and so the woman 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 aLambert. Eirenarch. 494, 495. 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 enfranchisement,Cook on Lit. p. 137. but every enfranchisement is not a manumission.
ENTRUDER.
Entruder, An abator is he that entreth into Land void by the death of a Tenant in Fee, and an entruder 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, yetAd ea quae frequentius accidunt jura adaptantur. if a mad man or an infant of young years that hath no discretion do the same, they shall be no felons, 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 authority of the owner, or the Law, but yet it is excepted from the said prohibition by the Law of reason, that if a man drive beasts by the highway, 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 notwithstanding 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 labour. Yet if a man meet with a valiant begger in so cold weather, and so light apparell, that if heD. and Student. c. 16. If he be commited for felony. Plowden term. Hil. in quarto. Ed. 6. Renig. against Fogassa. have no clothes he is likely to die, and he giveth him apparell to save his ife, he shall be excused.
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 beStamford▪ pl. of Cr. 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 thiefId. pl. of Cr. l. 1. c. 33. 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.L. Dyer. Term. Hill. an. 4. Reg. Eliz.
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 reprised in recenti insecutione, he shall be in execution,Cook Rigewayes Case. 3 Rep. 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 BaiiiffCook Boytons Case. 3 Rep. 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 Creditors.
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 prisoner in the Fleet marrieth her, this shall be judgedPlowd. Commen. Plato's Case. 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 diesCook on Lit. p. 31 & 492. 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 Escheats by Civilians are called caduca.which happeneth to the Lord by chance, and unlooked for, in which Case we say the Fee is escheated.
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 diethCook on Lit. l. 1. sect. 4. 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, heId. l. 2. c. 5. sect. 130. 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 inStatus dicitur à stando because it is fixed and permanent. Cook on Lit. 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 Tenant 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 TenantSee Cooks 2 part of Instit. c. 12. would not come in respect of some impossibility, or durst not in regard of some eminent danger, and this is called es…onium commune.
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 without 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 voluntier 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 Assize in Clarendon tempore. H. 2. Forenden. p. 549. Nulli liceat hospitari aliquem extraneum ultra unam noctem in domo sua, nisi hospitatus ille essonium rationabile habuerit.
ESTOPPEL.
Estoppell is when one is concluded and forbidden in Law to speak against his own act or deed, yeaCook 2 Rep. Goddards Case. though it be to say the truth, and therefore Jurors 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, ità Gallico estouer, id est fovere ma…eriam exhibere. See Cooks 2 part of Instit. c. 7. Vide vossium de vitiis Sermonis. l. 2. c. 7. Bracton l. 3. c. 18. Animalia vagrantia Bracton or vacantia as others call them, quia Domino vacare debent. 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 Spelman 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 naturali, & jam efficiuntur Principis de Iure gentium. But now Kings have granted this Prerogative unto their Subjects within their liberties, so that waives and estrayes are the Lords of the Franchise where they are found, but they must first by him be caused to be cryed in Markets near aboutThe Common Law extendeth derelictum both to that which is voluntarily forsaken, and to that which is waived and left by necessity. 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 extracted 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, Extracta 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 exchange 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 moity of Lands by Elegit, or upon the reconusance of a Statute; or of the Body by capias ad satisfaciendum.
EXECUTOR.
Executor, is when a man makes his TestamentAn Executor of a last Will and Testament executing and performing the Will of the dead Iudg Doderidge. and last Will, and therein nameth the person that shall execute his Testament, then he that is so named 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 constitutus.
2. Executor legalis, That is the Ordinary.
3. Dativus the Administrator, Cook 8 Rep. Sir Iohn Nedhams Case.
An Executor or Administrator ought to executeDebts due by obligation, shall be payed by Executors before debts by single contract, and they before Legacies Cook 9 Rep. Duchons Case. Cook 8 Rep. Tamors Case. Cook on Lit. p. 55. Cook 8 Rep. Nedhams Case. 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 devise 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 comitem 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 (forSmiths Commonwealth of England. Quod non est debitum vel quod est ultra detum, vel ante tempus quod est debitum. want of such constitution) constituted by the ordinary 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 largely 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 LettersCook on Lit. l. 3. c. 8. sect. 485. 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 testimony 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 Evidence, because thereby the point in issue is to be made evident to the Jury, Probationes debent esse evidentes, 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 ifCook on Lit. lib. 1. c. 1. sect. 1. 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.