Genealogical Dictionary of Legal TermsEdit This Page
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The study of Genealogy is rarely confined to the formation of a bare "tree," and few genealogists are satisfied with such but wish to know, appreciate and record all the information obtainable in connection with the family being dealt with. Most of the recorded matter of use to genealogists in this wider sense is connected with the land, and particularly with legal actions and operations closely related to it. The consequence is that to take advantage of many of our old records a knowledge of legal history, terms and operations is essential. This is frequently the case too, even when the genealogist is confining himself to the "tree" strictly, for proper connections can sometimes only be made or confirmed by correct interpretation of legal documents and records. The neophytic genealogist usually lacks the knowledge referred to, and even when of a legal or semi-legal profession often has not the requisite knowledge of medieval law for his purpose. He appreciates this quickly if he is earnest, but not so quickly can he supply the deficiency. It is difficult to identify the proper books to refer to, and when reference is had, he finds that it is often very difficult to glean the simple information required. Inquirers in every subject experience this. The more or less basic or superseded principles that require elucidation on appear to be obscured by the mass of technical detail. In fact, it is similar to looking for a simple remedy for a cold in a learned medical work. It is, therefore, thought that the brief explanations given in the following pages of what to the beginner are obscure legal terms and documents will be of help to the genealogist, forming a handy reference to those terms, etc., the ignorance of which has been found from experience to constitute difficulty for him.
It should be understood that the matter presented has been written with special consideration to pre-Victorian conditions, as the genealogist's path in the Victorian era is straightforward, if not easy.
In order to economize space and make for clearness those terms used in the text, which are themselves substantively dealt with, are printed in italics.
P. C. Rushen
Attorn - To acknowledge a person to be your landlord in the case of a lease, or your immediate feudal superior in the case of a freehold.
Abjuration - Generally, an oath to quit the realm. Specially, an oath imposed 13 William III, respecting the succession to the Crown.
Action - Proceeding for justice under Common or Statute Law.
Addition of a person is an expression of his estate, degree, or occupation and residence.
Administration, Letters of - The court authority under which the administrator of a deceased person's estate acts. Where no executor is appointed, or he who is named predeceases the testator or refuses to act, "letters of administration with the will annexed" are granted to one of the next-of-kin to testator.
Administrator - Particularly, the person, one of the next-of-kin, to whom the court deputes under letters of administation the duty of dealing with the property of an intestate or of a testator having no executor.
Admittance - Particuarly, the giving possession by the lord of copyhold land to a person.
Advowson - The perpetual right of presentation to or patronage of an ecclestical benefice, and in itself an incorporeal hereditament. Originally appendant to manors, the lords being the only founders of benefices, and consequently the only patrons. The advowsons of Vicarages derive their title from the monastic house that held the rectorial property prior to the Dissolution.
Aids - The pecuniary services due by a tenant to his lord for ransoming him if a prisoner, or for providing a portion for his daughter, etc.
Alien - Prior to 1870 no alien could hold a freehold.
Allodial lands - those held free of all services and rents.
Alodium - A manor.
Amerciament - Pecuniary punishment.
Amy - An infant's next friend.
Ancient Demesne - A special freehold tenure existing only in those manors belonging to the Crown prior to Domesday, the chief peculiar incident of the tenure being that tenants could only sue or be sued in their lord's court, consequent on which fines and recoveries touching their lands could only be effected in that court.
Ancients - A grade of an inn of court, etc., composed of the oldest barristers.
Annats - First fruits.
Annuity - A yearly rent or payment, whether for years, life or perpetuity.
Annum Luctus - The year of mourning which the civil law ordained should elapse prior to a widow remarrying.
Answer - Particularly, a reply by a defendant to a bill in Chancery.
Appointment - In one sense a document by which a person who had power to do so by deed or will appointed the uses of realty. For instance, under a settlement a man who has the use for life may have power to appoint the subsequent use to another - say, a child. Specially used to signify deeds of this nature which really operate as conveyances, and favored as such 1790 - 1870 in order to escape dower. Thus, land was conveyed to A to such uses as B, the purchaser, might by deed or will appoint in default to the use of B for life, remainder to the use of C, a trustee for B, on determination of his estate during his lifetime for any cause such as forfeiture, remainder to the use of B's heirs. Under this conveyance to users, B had no inheritance and thus no dower attached, and when he sold he "appointed" to the use of the purchaser.
Appurtenances - Things appertaining to another as principal, as outhouses to a messuage.
Arches - The court of the Archbishop of Canterbury to try appeals from all inferior ecclesiastical courts in the province, the judge being termed "dean of the arches".
Armiger, or Esquire - A degree next below knighthood but above gentleman. He in immediate attendance on a knight. All esquires had to be entitled to coat armour.
Assart - A reclamation of waste lands.
Assigns - Are not only alienees but devisees.
Assignment - A conveyance of personalty such as a lease or bond.
Assize - An itinerant court which inter alia had power to take the verdict of an assize jury of the county in land disputes.
Assoile - To deliver from excommunication.
Attainder - Conviction of felony or treason whereby the kindred of the attainted could not inherit his estate.
Attornment - The consent of the tenant to the conveyance to a stranger of the seignory to which he owes service. Not required since 1705. Also, the assent of a mortgagor to be tenant to the mortgagee.
Attorney, Power or letter of - The most common medieval powers were those by feoffees to others to take seisin of lands on the former's behalf. Frequently, the power was inserted in the feoffment.
Aula - A court baron.
Aumone - A tenure of lands by ecclesiastics subject to the service of prayers.
Autre vie, Estate pur - An estate for another's life which, being uncertain, is real estate and a freehold.
Avenage - Rent in oats.
Badger - A travelling dealer in victuals, corn, etc.
Bailiwick - Specially a liberty exempted from the sherriff and over which the lord of the liberty appoints a bailiff.
Bankrupt - Prior to 1861 only dealers, etc., and not private persons, could get relief of bankruptcy.
Bannitus - An outlaw.
Bargain and Sale - Specially a contract for sale and purchase of land which by the Statute of Uses operates as a conveyance, for long prior, on such a contract equity presumed a use in the purchaser and the statute converted this into possession and the legal estate. A later statute of 1536, however, required such bargains when of the fee to be enrolled at Westminster, etc. A memo of this enrollment is usually endorsed on the deed an identifies its nature. A bargain and sale was at no time greatly favored for conveyance, particularly of small estates as it was not only as public as a feoffment but more costly. For large estates, it was somewhat favored because since 1711 the enrollment may be used as evidence, thus insuring title. Bargains and sales might also be made for a term, see Lease and Release. The operative words are or always include "bargain and sell" and it was not necessary to mention heirs to convey a fee simple.
Baron by tenure - He who is a peer by virtue of a feudal holding of land for defense of the kingdom, such as Arundel, in distinction to a baron created by patent.
Baron and Feme - Husband and wife.
Baronet - A hereditary dignity originated 1611 and created by patent.
Barony - In one sense a subdivision of an Irish county similar to an English hundred.
Barton - A manorial messuage and demesne.
Bastard Eigne - A child born before marriage, but whose parents intermarry.
Bedehouse - A hospital or almshouse, the beneficiaries of which prayed for the founder.
Berghmaster or Barmaster - A bailiff among miners who also executed the office of coroner.
Berghmote - A court in which differences between miners were settled.
Berwica - A hamlet belonging to a manor.
Bill - In a special sense, a declaration in writing by a complainant settling out his case, usually addressed to the Court of Chancery, to remedy some wrong in equity.
Bladarius - Cornmonger.
Blench - A tenure by payment of some small household or domestic article.
Bond - An obligation under seal to pay money, usually with a condition attached that if a certain sum of money with interest be paid by a certain date, or some covenant observed, or that of some other act performed, the bond shall be void. When securing repayment of money, the amount of the bond was usually made double that of the principal mentioned in the condition. Thus, bonds usually created a penalty, but as equity in later times held that no penalty but only the principal, interest or damages could be recovered in the event of the condition not being complied with, bonds went out of favor, bills and promissory notes being substituted. Large numbers of bonds are found amongst muniments, the binding portion being usually in Latin, while the conditon is in English. A post obit bond is one which is conditioned for satisfaction only after the death of some specified person and was used to anticiate inheritances.
Bordars - Servile feudal men of a manor who held a little house with a small piece of land at the will of the lord. For some centuries, included in the class of copyholders.
Borough English - A freehold tenure in certain ancient boroughs, the chief peculiar incident of which was that the youngest son of the tenant was heir.
Brehons - In Ireland, judges and lawyers.
Burgage - A tenement in a town held subject to a certain rent to the lord and not to agricultural, etc. services.
Bursar - A cashier in colegiate and conventual bodies.
Bury - The mansion or courthouse of a manor.
Cadet - Generally, the younger son of a gentleman.
Capite, In - A description applied to those tenures direct of the King without a mesne lord.
Carucate - See Plowland.
Cestui que Trust - A party who is a beneficiary under a trust or use.
Chancellor of a diocese - an ecclestiacal and judicial offer under a Bishop.
Chancery, Court of - Formerly, the highest Court of Judicature, and presided over by the Lord Chancellor. Principally, an extraordinary unlimited and absolute court of equity giving a remedy where law was defective, or abating the rigor of the common law.
Chapman - A dealer in goods.
Charter - Besides its generally understood meaning of grant of some privilege, etc., frequently means a written conveyance of land (a feoffment) prior to about 1550.
Charter Land - Freehold land.
Chattels, Real - Leases.
Chevalier - See gentleman.
Childart - A manorial fine for every bastard born in the manor.
Churl - A Saxon tenant at will but a free man.
Clarencieux - The King of Arms officiating South of the Trent.
Close Roll - The record of "close" letters of the Crown; that is, letters to individuals but not to the public at large.
Co-Heiresses - Females of equal consanguinity, as two sisters inheriting together.
Commendam - The retention, by Royal license, of a benefice after promotion to a higher.
Commissary - The ecclesiastical jurisdiction of one who has jurisdiction in places so remote from the chief City of the diocese that the Chancellor cannot call the subjects to the Bishop's principal consistory without subjecting them to great inconvenience.
Commission in Bankruptcy - The official document by which under the old law bankruptcy was adjudged.
Common Fields - Strictly, enclosures in which various tenants of a manor had rights of pasture, etc. in common, but usually used to signify large enclosures of which various tenants each owned small strips, usually one acre or one-half an acre in size. One tenant frequently owned several of these strips, sometimes as many as 30 or 60 dispersed through one of the fields, or perhaps in the several common fields of a manor. These fields were as much private property as private enclosures, and must not be confused with the "commons" of the present day, which were anciently manorial wastes.
Common Law - The unwritten natural and customary law of the realm, and the common rule for administering justice.
Common of Pasture - A right to depasture cattle on the waste land of a manor possessed in common by the tenants thereof.
Common Pleas - Civil actions between subjects. Actions real, that is, actions concerning real estate at law could only be brought in the Court of Common Pleas, from which an appeal laid to the King's Bench.
Concealed Land - Land kept from the king by persons who have nothing to show for their title therein.
Consistory Court - The court of a bishop in his diocese from which appeal laid to the archbishop.
Constable - Tithing man or person to keep the peace in a tithing village or hundred, and admitted as such by the feudal lord on election by the freemen.
Constablewick - A tithing, or a district formed in later times by the freemen and lord to be served by a constable.
Conventicle - An illegal meeting of non-conformists before 1689.
Conveyance of Land - Early feudal tenants could not alienate without their lord's consent, whether they had the fee for life or to their heirs, for in the latter case, the heirs took their estate from the grantor as much as did the grantee, who consequently was restrained from defeating the independent rights of the heirs. Later, the rule was relaxed, perhaps because early alienations were by sub-infeudation; that is, the consideration was reserved services or rent whereby all benefit to the heirs was not defeated. For instance, a portion of a holding could be given in frank marriage and, if no issue, collateral heirs could be defeated, and when a man held to him and the heirs of his body, he could sell immediately if he had issue. Finally, by the Statute Quia Emptores 18 Ed. I, it was enacted that freeholds might be alienated by feoffment, provided they were held by the feoffee of the same lord as the feoffor had held. Later, conveyances were made also by bargain and sale, fine, lease and release recovery.
Co-Parceners - Co-heiresses, so called because each could require the other to join in a partition of the inheritance, so that they should hold in severally, each having the entirety of her own parcel.
Copyhold, Copyholders - A customary tenure and the tenants thereof in distinction to a tenure by grant. Copyholders represent the ancient servile villeins, who were allowed by their lord to occupy small holdings at his will in return for services on his demesne land. Later, custom gave security of possession to copyolders, and as early as the XIV century, a lord could not dispossess a copyholder, provided he performed his services, but to this day the freehold is in the lord, and he has the mines and minerals. Custom is the life of copyholds, and their incidents are governed by the custom of their manor; but generally the custom as regards descent, etc. followed the common law in freeholds. Copyholds are aliened by surrender to the lord, who by custom is bound to admit the tenant put forward by the aliener. These surrenders and admittances took place in the customary section of the lords court baron, and were recorded on the Court Roll, copies of the entries in which were handed to the parties concerned and formed their only title, hence the term. Fines on these admittances and reliefs on admittances of heirs are still payable, and usually a quit rent is payable in lieu of the services due, which have never been performed since temp. Cromwell.
Cornage - A species of grand serjeantry, the service being the giving notice of invasion by the Northern enemy.
Corporations Aggregate - consist of a plurality, such as mayor and commonalty, dean and chapter. Corporation sole is such as a bishop, dean, etc.
Cottars - Servile feudal men of a manor who held cottages at the will of their lord. Included in the class copyholders.
Counter - In one sense, a prison.
Court Baron - The court which every lord of a manor had within its precincts, and a necessary incident of a manor. In particular, it was that manorial court which dealt with civil matters of common law before the freeholders of the manor, but it was also a customary court.
Courtesy of England - The right in law of a man to a life tenancy of lands formerly belonging to his deceased wife provided she had issue by him capable of inheriting. Usually refrred to as "The Courtesy". In Gavelkind there is courtesy in a moiety only which ceases on re-marriage.
Courtlands - Those demesne lands actually in the lord's own occupation.
Courtroll - The manorial record of admissions, etc. to copyhold lands. Usually in the past a roll of skins sewn together, but latterly frequently in book form.
Coverture - The state of a married woman.
Croft - A little close near a dwelling house.
Curtilage - A yard or backside or ground immediately round a messuage.
Customary Court - The particular species of a court baron in which matters touching the customary tenants or copyholders and their holdings were dealt with.
Customary Freehold - A copyhold that is not expressed to be at the will of the lord.
Date - Writings before the Reformation were dated as of a regual year; that is, the year of the king's reign reckoned from his accession, but later Anno Domini was used, although not commonly untl after 1650.
Deacon - Before 1814 a person could be a deacon at any age, but since 1571 must not be presented to a benefice under 23, without faculty.
Declaration of Trust - A document whereby a person declares that property has been conveyed to him merely as a legal owner, and that the purchase-money was that of another for whom he will hold in trust. Equity enforced this.
Decree - Judgment of a court of equity.
Deeds, that is sealed writings, were of two kinds, vis.: - "indented" and "poll", the former being used where there was a plurality of parties to it, each having counterparts which to prevent frauds of substitution were unevenly cut or vandyked at top in exactly the same way by the same act of cutting. A deed poll was used where there was only one party, and its top was allowed to remain straight or polled. Most early feoffments and releases were deeds poll, the grantee being merely an acceptor, not a party.
Defeasance - Generally, an instrument that defeats another, but specifically, that which sets out the conditions on which a judgment, statute stample or other recorded security will be void. It is similar to a condition of a bond, except that it is a document separate from the security.
Demesne - The land of a manor not feudally or customarily held by a tenant, that is, all land except that held as freehold or copyhold.
Demise - Conveyance of land in fee, or for life or years, but usualy applied only to the last.
Depositions - Written testimony of witnesses.
Devise - A disposition of real estate by will.
Donative - An advowson to a living founded by royal license, where it is ordained that the church shall be in the gift of the patron without presentation to the bishop.
Donor, Donee - In a special sense the grantor and grantee of an estate, the descent of which is limited, that is, an entail.
Dower - The interest of a widow in the freehold lands of her deceased husband held by him at anytime during coverture in fee simple or fee tail. This interest was one-third for life but, in gavelkind, one-half until remarriage, and attached to the land, notwithstanding any sale or devise by the husband. This necessitated the wife concurring in any conveyance, which concurence at one time could only be made of legal effect by a fine, under which the wife was separately examined. Dower could, however, be barred in later times by other means (see Fointure, Use).
Eigne - Eldest.
Ejectment - An action by a lessee to gain possesion of lands from which he had been ousted. As in this action, it was necessary for the plaintiff to prove his lessor's title, this kind of action was much favored for trying the title to land. In most caes, it was done by a series of legal fictions. The plaintiff lessee, dubbed say John Doe, and his lease and the ouster, say Richard Roe, were fictitious. The just defendant, the supposed ejector, was supposed to give notice to the actual tenant in possession that he, his lessor, did not intend to defend and that he, the tenant, should appear to defend. Whereupon the latter did so and was made defendant in lieu of the alleged ejector, the tenant's real landlord supporting his defense.
Enfeoff - Act of feoffment.
Entail - Strictly fee tail, but in early feudal times fee conditional. An estate to a person and the heirs of his body. Either general or special, male or female, according as limited to issue by a certain wife or to male or female issue. Prior to the statute De donis, 1289, such an estate could be made a fee simple by alienation directly issue was born, but that statute enacted that the will of the donor of the estate as expressed in the grant, by which expression such conditonal fees were created, should be observed, and they to whom the tenement was given should have no power to alien it. Until 1473, it was not possible for tenants in tail to overcome the statute, but since that date it has been possible to destroy an entail by recovery or since 1835 by a disentailing deed. Only inheritances can be entailed under the statute, but in some manors by custom copyholds could be entailed, and the entail broken by a customary recovery or a preconcerted surrender to and readmittance by the lords.
Equity - A system of jurisprudence originating in the ecclesiastical court of chancery, its principle being to moderate the rigor of the common law and to give the remedy to cases outside the expression of a statute but within its supposed intention. The chancellor not being tied to the law had power to moderate it, and judging according to the supposed law of nature and his conscience. In early days this power was frequently used merely to serve certain purposes. Its rules are now as settled in many respects as statutes, so that one could aptly describe it as Solomonistic judge-made law in distinction to that made by the franchise in days when it was tolerated rather than submitted to. It is doubtful if equity has not creatred more hardship than statute law, although perhaps giving moral justice in individual cases. Rules of conscience, intention and rigor, are matters of individual opinion, and in course of time equity has led to loose reading and carelessly expressed legislation.
Escheat - A reversion to the lord of lands feudally held by him on failure of heirs as for instance when a bastard died without issue, for he could have no heirs but through the latter. Such a reversion also occurred when the tenant was sentenced to death for felony or high treason, the escheat being to the lord paramount, vis. the king, who also takes where the immediate lord is not known as is frequently the case in freeholds. In copyholds there is escheat by custom to the immediate lord, not only on failure of heirs and felony, but treason also.
Escheator - A Crown officer whose duty it was to look to escheats, wardships, and other casualties belonging to the Crown.
Escrow - A sealed deed awaiting delivery up to complete effect of it, subject to the performance of a condition, such as payment of money.
Escuage - A kind of military service whereby a tenant was bound to follow his lord to Scotch and Welch wars at his own expense. Also used to signify a money payment in lieu of military service.
Essoign - Excuse or plea of one summoned or owing suit to a court.
Estate - In a legal sense, the extent of a particular proprietorship in land, etc., irrespective of tenure or the services of the feudal seisin. Thus, there may be an estate of fee simple or fee tail, or for life.
Estovers - The right which every feudal tenant and later tenants for years had to cut timber on their land for repairs, etc.
Ex Officio - By virtue of office.
Exchequer - A former inferior court of law and equity, having an appeal as regards the latter to the Peers, and the former to the Exchequer Chamber, which was erected 31, Ed. III., and to which appeals also laid from the common pleas. Established to try debts against the Crown, and to recover property belonging thereto, but in later times thrown open to any person barely suggesting privilege, such as being the King's debtor or accountant.
Executory Devise, Interest - A future interest that does not vest on death of testator, or act of creating, but depends upon some incident that must happen before it can vest.
Extra-Parochial - A district not taken into any parish, such as lands recovered from the sea, and exempted from the duties and barred from the privileges of any parish.
Ex Parte - Done by one party only.
Eyre, Justices in - Established 1176, abolished 1817, were the predecessors of justice of assize, whose functions are very similar.
Faculty - An ecclesiastical privilege granted by special indulgence to do that which the law prohibits as a marriage without banus, conversion of church property, etc.
Farm - To let anything on lease, not only lands, but tithes, tolls, etc.
Fealty - The oath of fidelity a tenant was bound to take to his lord.
Fee - Anciently, any estate feudally held of another, but later confined to estates that might descend to heirs, that is, inheritances.
Fee Base, Qualified or Determinable - Anciently, an estate of inheritance limited to a determinable incident that may never happen, such as a grant to A and his heirs so long as they be lords of a certain manor, or the etate of a tenant in fee tail, who barred the issue only by a fine for such an estate would fail on failure of the heirs of his body. In modern times "base fee" means only such an estate out of a fee tail, while estates having the qualification annexed at grant are known as fees determinable.
Fee Simple - The greatest estate allowed by law in land that is an estate to a man and his heirs generally. To grant it the word "heirs" had to be used without limitation, except in conveyances by bargains and sales, fines and recoveries (see also Wills). A grant to A simply was a grant for life only.
Fee Tail - (See Entail).
Feme Covert - A married woman.
Feme Sole - An unmarried woman, or one who although married may by custom or law be considered unmarried in a particular capacity.
Feoffment - The ancient method and deed of conveyance of a fee simple, fee tail, or for life in lands. Still operative, but rarely used after 1750. Most frequently used before conveyance by lease and release became common. Feoffments are incomplete without livery of seisin of the land, and as other methods of conveyance not requiring this became available, feoffments went largely out of use. Although anciently unnecessary, feoffments were usually evidenced by deed. Pre-reformation feoffments are usually although incorrectly termed "charters". They usually begin "Sciant p'sentes & futuri qd. Ego". (Know present and future that I) followed by the feoffee's name, etc. dedi concessi & hac p'senti carta mea confirmam (have given granted and by this my present deed shall confirm). Then follow the feofee's name, etc., and the parcels conveyed. The place and date of execution if given will be found at the end, but before 1400 it was very usual to omit the date, so that the deed could be put in evidence, for deeds made at a time out of memory could not be so used. When it became customary after the Reformation to write feoffments in English, the operative words nearly always included "enfeoffed", although words such as "bargained", "sold", "given", "granted", "aliened" were usually coupled with it. Prior to Jacobean times, it was customary to affix the seal to a feoffment to a small strip of parchment, threaded through a slit near the foot of the deed which was at that part turned up. In medieval times, this manner of sealing in most caes distinguishes a feoffment from a release. Post-Reformation feoffments are usually endorsed with a memo, attested by witnesses that peaceable possession and seisin of the property was given. In earlier times the witnesses named in the deed before the date were the witnesses of seisin.
Feud, Feod - A fee of land.
Feudal Barony - Barony by tenure.
Feudatory - A tenant who held by feudal service.
Fiat - A warrant for a thing to be done.
Fine - In a special sense (from finis the end) the compromise of a fictitious action at law in which the plaintiff, demandant or cognizee alleged that the deforciant or cognizor was in wrongful possession of land, and the deforciant fictitiously acknowledged the plaintiff's right to it, the effect being that the land became vested in the latter. A conveyance could thus be made without feoffment, and fines have largely been used for this purpose, particularly since 1294, from which time with a hiatus from 1361 to 1484, they have had the effect of barring all claims by others unless made within a certain short period following the fine. They thus constituted a very effective assurance. As fines were the only means whereby a wife transferring land or right therein could be separately examined, a wife's lands or her right of dower could only be conveyed or barred by her being a party to a fine, and fines were frequently used for this purpose. After about 1500, fines levied by tenants in tail barred the entail so far as the issue was concerned, and were frequently used for this purpose also, although as remainders or reversions after the entail when vested in others were not so barred, recoveries were usually used for breaking entail. Fines were abolished in 1833. They were of several kinds, but the fine sur cognizance de droit come ceo, which gave a fee simple to the plaintiff (the purchaser) was that most frequently levied. The fine was recorded in triplicate, one part being kept in court and called the "foot" (hence the term "feet of fines"), and another part called the "chirograph", given to each of the parties. Chirographs, which are often found among muniments, are on long narrow strips of parchment indented at the top, and commence "Haoc est finalis concordia" (this is the final agreement). To assure a fee simple, it was not necessary to refer to heirs in a fine. Besides the chirographs, many private deeds dealing with the uses of a fine are found such as a deed to declare the uses or a deed before the fine to "lead" its uses, or covenants to levy fines to certain uses (see Ancient Demesne). In another special sense, "Fine" is the payment made to a lord of a manor on admitting a person to the possession of copyhold property. If fixed it is small, say Id. per acre, but in most manors it is "arbitrary"; that is, at the will of the lord, but by custom the lord is not allowed to demand more than two years of the improved rental.
Firebote - Right of a tenant to take sufficient fuel for himself from the lands demised to him or his lord's wood.
First Fruits and Tenths - One year's value of a spiritual benefice and a tenth of the value every year anciently payable to the Pope, later to the Crown. Applied by Queen Anne to augment poor livings, the fund being known as "Queen Anne's Bounty."
Flotsam - Goods found floating in the sea and the perquisite of the Crown or the lord of the manor, unless claimed by the owner within a year and a day.
Foldcourse - Sheepwalk.
Folkland - Villenage.
Foreclose - To bar or shut out as where a mortgagee takes possession of the mortgaged property, and so bars the equity of redemption.
Forest - Was waste ground belonging to the Crown, stocked with beasts of the chase, and having cover to protect them for royal recreation. Forests had special laws, officers, courts, etc., for their conduct.
Forged Deeds - May often be detected by their anticipating historical incidents or customs. Thus, a deed styling Henry VIII defensor fidei before 1522 or supreme head before 1529 must be forged, and a feoffment before 1500 endorsed with livery of seisin is probably so.
Forisfamiliari - When a son accepts part of his father's lands in his lifetime in lieu of birthright.
Forma Pauperis - When a person not being worth five pounds sues or is sued without cost to himself.
Formedon - A real action for recovery of land by a tenant in tail or a remainder man or reversioner.
Frank Farm - A tenure which by feoffment has been freed from military service and subjected only to a rent or agricultural services.
Frank Marriage - The tenure in lands when granted to a daughter on her marriage, being holden by the parties to the marriage, and the heirs of their two bodies free from all service, to the fourth degree of consanguinity.
Frankalmoign - The tenure in lands given to religious uses in feudal times, being free of all earthly service, unlike grants to laymen.
Frankpledge, View of - Taken by the steward of a court leet of the behavior of men in its jurisdiction, and to swear them to the king at any age above 12.
Frauds - Statute of, 29 Chas. II, one of the principal provisions of which was that conveyances of land and leases over three years should be in writing.
Free Bench - A custom in many manors under which a widow had a life interest of one-third in the copyhold lands held by her husband at death, thus not restricting his power of alienation in his lifetime.
Free Warren - An exclusive Crown license or franchise to keep and kill game in a certain district, most game belonging to the Crown.
Freehold - A rather indefinite term, but strictly a tenure under a lord by a freeman, in which the latter held, subject to feudal services, free of the former's will, either for life in very early times or to him and his heirs later, unlike copyholders. In other words, an interest which was accompanied by the feudal seisin, therefore he who had such seisin had a freehold as not only a tenant in fee simple but also a tenant for life or in tail, but not a tenant for years. Sometimes loosely used in the sense of an estate in land as fee simple, but a freehold need not be a fee simple, but may be a fee tail, and there may be a fee simple in land not of freehold tenure. All freeholds are real estate.
Gavelkind - A freehold tenure common throughout, but restricted to Kent, the peculiar incidents of which are that the lands descend to all the sons or brothers in equal shares, could not be escheated and could be conveyed by feoffment if the owner were but 15 years of age, and dower extended to one-half.
Gentleman, or Chevalier - A degree below Armiger, but yet entitled to bear arms, or according to other authorities, a person whose ancestors had never been servile.
Glebe - Land belonging ex officio to an incumbent.
Grand Serjeantry - To hold lands by personal service on the King, such as carrying his sword, etc. The services of this tenure have been retained and were not abolished with Knight's service.
Grange - Homestead.
Grant - Strictly the operative word in a conveyance of an incorporeal hereditament prior to 1845, or gift of a franchise, etc., but loosely used to signify a medieval conveyance by feoffment.
Hanaper - A chancery office from which all Great Seal writs affecting the public such as commissions in lunacy, sewers, etc. were issued.
Headborough - Anciently, the head of the franklpledge or tithing. Later, a kind of constable.
Hedgebote - Right of a tenant to take sufficient material for repair of hedges.
Heir, Heiress - The person to whom an estate of inheritance passes by right of blood under Common Law, Statute or custom. The heir at Common Law or heir general is he who succeeds under Common Law, the heir under Statute is he who succeeds under an entail, and the heir under custom is he who succeeds under a special custom, as in Borough English or Gavelkind tenure, etc. No person is heir until the death of his ancestor, but before that event is generally called the heir apparent. The heir presumptive is one who, if his predecessor dies immediately, would be his heir but if such death is deferred, may have his presumed inheritance defeated, e.g., by a birth. A bastard can be heir to no one, and prior to 1870 a person attainted of treason or felony forfeited his inheritance. The inheritance under Common Law was materially changed in 1834. Prior to that, briefly, the following rules obtained: -- A person to inherit must have been the heir of the person who last had seisin, and was first to be found in the lineal descendants, fathers being prererred to sons, sons to brothers, brothers to sisters, and daughters to males in generations of nearer consanguinity. Lineal descendants failing the heir was found in the collateral kindred of the last who had seisin, and being of the blood of the last purchaser brothers and sisters and their descendants being prefered to cousins. The requirement of the blood of the last purchaser excluded many collaterals, but frequently the last purchaser was not known, in which case all those on the paternal side took in front of those on the maternal side of the last possessor. Brothers and sisters of the half-blood of the latter were barred, and the heir could not in any event be a lineal ancestor. All females in equal degre took together and were co-heiresses.
Heirlooms - Personal chattels which, by special custom, pass to the heir of an intestate with the real estate.
Hereditament - An inheritance.
Heriot - The due of a lord on death of a freeholder or copyholder of a manor. Regulated by custom of the particular manor, and usually a money payment, or the best beast or some other chattel.
Hide - A Saxon measure of land varying from 60 to 120 acres, being sufficient to support one free family, and containing four yardlands.
Higgler - A hawker of small goods, a pedler.
Hirst - Hurst, holt, wood.
Holme - An isle, or fenny ground.
Homage - An incident of military tenure consisting in the tenant kneeling to his lord and professing to become his man, and receiving from him a kiss.
Honour - In a special sense, a superior lordship or seignory on which inferior manors depend and owe services, and particularly such lordships as formerly belonged to great feudal barons or have been in the hands of the Crown. To an honor appertain special liberties and franchises and it was frequently held in grand serjeantry.
Hoo - A hill.
Hotchpot - A mingling of monies in order to more equally partition them.
Housebote - Right of a tenant to take sufficient wood for repair of his house from the lord's wood.
Hundred - An ancient Saxon judicial division of a county originating, it is said, from there having been an hundred free families resident in it. The hundred was liable for damages consequent on such crimes as riotous assembly, burndown houses and trees, felony, etc.
Hustings - The highest court of the City of London and other cities, and held by the lord mayor, etc., for determining civil actions respecting lands, etc., in the respective cities.
Hypothecate - To plege by delivery, mortgage.
Impeachment - An indictment presented by the Commons to the Peers for treason or other crime. Impeachment of waste, the bringing into question the misuse of land and buildings.
In Ventre Sa Mere - A woman is with child at her husband's death. On birth of such child, it takes its birthright as if it had been born in its father's lifetime.
Indenture (see Deed) - In modern times, an indenture of apprenticeship specially.
Inpropriator - Lay rector.
Infant - Under Common Law a male could marry or bequeath his person estate at 14, at 17 he might be an executor, and at 21 dispose of lands. At 7 a female could be given in marriage, at 9 was entitled to dower, at 12 might assent to marriage, at 14 choose a guardian, at 17 be executrix, and at 21 dispose of lands.
Inheritance - The ownership in things that might pass to heirs; that is, land and rights that are connected with or have been appendant to it. These are termed hereditaments, and are all real estate. Corporeal hereditaments are land and buildings. Incorporeal hereditaments are tithes, advowsons, etc. Conveyance of the latter has always laid in grant that is by a deed in writing, whereas the former at one time could only be conveyed by livery.
Inquisition - An official inquiry. Inq. ad quod damnum to ascertain what damage might be done by granting a franchise. Inq. post mortem to ascertain what lands were held by a deceased person and the tenure thereof, and what was due to the Crown in respect thereof.
Interlocutory - Intermediate, before the final delivery.
Intestate - A person dying without a testamentary disposition.
Jetsam - Things thrown out of a ship in danger of wreck, and driven to the shore by the waves.
Jointure - An estate for life secured by deed to a woman of part of her husband's lands in case he predeceased her, and expressed to be made in lieu of dower. If made before marriage, her dower was barred but, if after, she might elect either jointure or dower. Jointures have been possible since 1536. The jointure deed in later times became known as a marriage settlement.
Jurats - Aldermen.
King's Bench - The supreme Court of Common Law from which an appeal laid to the peers. It was also an appeal court for the Common Pleas. Principally for criminal cases, but dealt also with civil cases of a criminal nature.
King's Silver - A fine of money imposed for license to levy a fine.
Knight Bachelor - The most ancient, lowest and ordinary honor of knighthood.
Knight Banneret - A knight made in time of war. If made by the king in person on the battlefield, such knight took precedence next after barons. If otherwise, after baronets.
Knight of the Shire - M.P. for a county.
Knight's Fee - A term used to signify the extent of an inheritance held by military service, the value being so much as would maintain a knight with convenient revenue, which in the XIV century was about 20 pounds per annum.
Knight's Service - Military service.
Land - In ancient times, meant generally arable land only, meadow, etc., being specified, but later was used to mean all land and buildings thereon, which is its strict legal meaning.
Lathe - A large division of a county sometimes containing three or more hundreds.
Lease - A conveyance of land for life or years at a yearly rent. A lease for life sprung from the feudal grant to a man instead of to a man and his heirs, and the feudal seisin is still incident to it, and it is therefore a freehold and real estate. A lease for years originated in the medieval agricultural lease at a rack rent, which gave little more than security of occupation. Like the farming implements, it was therefore looked on as a chattel or personal property, and so the law has since always considered them whatever their value in consequence of length of term or nominal rent. Advantage has been taken of this when it was wished to create a valuable interest in land without parting with the feudal seisin and freehold and its incidents, such as when mortgages were to be effected or portions for younger children raised and nearly all very lengthy terms, such as 500 or 1,000 years, owe their origin to these operations. Building leases, that is, leases at a small rent for a lengthy term as 60, 80 or 99 years, with a premium paid by way of an erection on the land began to be favored in Jacobean times. As all parties intereted in the land, such as mortgagees, had to join in a lease at less than rackrent, the lessor's interest is frequently exhibited by such leases. Leases for lives strictly are rarely met with after 1650, but such leases in effect have since been very common, particularly in the West, by a lease for a long term, if some life should so long exist, the term being such that there was practically no possibility of the life being longer, and this was not a freehold. It was very usual to put in three lives and to renew when one or two of the lives had terminated. The lives need not include that of the lessee, but usually did so, and usually the other lives were those of wife, children or relations. These leases are therefore often of value to the genealogist. Many large estates still have their old records of leases, and the books may often be examined on courteous applicaton. From these, one may gather relationships, and the renewal records supply approximate dates of death. In some manors in the West, it became a fixed custom to grant such leases, and the holders had customary rights to renewal on customary premiums, and took the place of copyholders.
Lease and Release - Two deeds that together formed a conveyance of land under a method invented temp. Elizabeth, whereby the fee could be conveyed without the public livery of seisin required in feoffments, actual possession as required for a release, or enrollment as required for a bargain and sale. By the lease, the vendor bargains and sells the land to the purchaser for six months or one year at a nominal rent. Under Equity the vendor was then presumed to stand seized of the fee for the use of the purchaser for that term, and the Statute of Uses converted this use into actual possession on the part of the purchaser. He was then in a positon to take a release of the vendor's interest in the fee, which release was dated the day after that of the "lease of possession" as it was called. As the bargain and sale was not of the fee, no enrollment was needed. The two deeds are sometimes found together and sometimes divorced, but either is good evidence that the conveyance took place, although only the release shows the consideration and the limitations to the estate. Leases and releases was the usual method of conveyance of land 1660-1841.
Lease of Possession - (See Lease and Release).
Leasowe, leswes, lesues - Saxon, pasture.
Leet - A court incident to hundreds and some manors for trying lesser crimes and annoyances and punishing them by fine or pillory, etc. The steward is the judge.
Letters Patent - Open letters of the Crown (in distinction to letters close) granted under prerogative to a person securing him some privilege. "Open" because they were addressed to the public, although held by the grantee.
Ley - Pasture.
Liberty - Specially, a district which by grant or prescription is exempted from the county sheriff and has special public officers.
License to Alienate - (See Mortmain).
Livery - A payment due to the lord of a manor when his ward attained majority.
Livery of Seisin - A delivery of the feudal possession or ownership of lands.
Lordship - A seignory.
Mainprise - Similar to bail, but the person was in the friendly custody of his sureties.
Mandamus - A King's Bench writ requring some inferior court or officer to do a certain act.
Manor - A holding of land by one called the "lord" under the king or a mesne lord in return for military or other feudal service, and parts of which land have been granted definitely by the lord to freemen to hold of him in return for military service and other feudal dues, so creating freehold tenure. Parts of the land were retained in the lord's occupation as demesne, and parts the lord allowed to be occupied at will by his serfs or semi-serfs in return for agricultural services, to be performed by them on his demesne, so giving rise to copyholds. An incident of a manor was a lord's court, in which the freemen were judges. To constitute a manor, some of the lands thereof must be held feudally of the lord, and as this was an incident only of freeholds, no manor could exist without freeholders. If the connection between the lord and the freeholders has been lost as e.g., by reason of the total loss of the now slight services due by the latter, the manor is but a "reputed" manor, and such freeholders are presumed to hold direct from the king. Most manors have been created by sub-infeudation, but no manor can have been created since 1294.
Mansion - Capital messuage or manor place. The chief residence of a lord in his manor, however small be the messuage.
Marches - The boundaries between England and Wales and Scotland.
Marchet or "Maid's Fee" - Payable in some manors to the lord on the marriage of a tenant's daughter.
Maritagium - The feudal rights of a lord as regards marriage of the daughter of a deceased tenant.
Markets - Were the king's prerogative, and could only be properly established by his grant or long custom.
Marque and Reprisals, Letters of - Commissions to private persons to fit out vessels, to cruise against an enemy either directly for the public good or as a consideration for wrongs of debt, etc., done to the grantee by such enemy.
Marriage - In a special sense, the right a lord had to dispose in marriage of an infant ward hlding lands of him.
Marriage Articles - The agreement prior to marriage as to jointure and provision for the issue on which the settlement was based.
Marriage Settlement - (see Jointure).
Married Women might, according to the custom of London, trade there and have property free from their husbands.
Merger - Occurs when an interest in land is terminated by its being in the same person as holds a larger interest in the same land as when a term of years is conveyed to the freeholder.
Mesne - Middle or between.
Military Service - The most usual species of feudal, that is, freehold tenure, under which he who held was bound to render service in war to his lord. Other incidents of the tenure were homage, fealty, relief, wardship, livery, marriage, and suit of court. This tenure was abolished and free and common socage substituted therefor 1660.
Mortgage - A pawn or pledge of an estate or interest in land or other hereditament or something that cannot be conveyed by mere manual delivery, the borrowing owner being the mortgagor, and the lender on the security of the pledge the mortgagee. Very early mortgages were simply feoffments, conditional on the estate ceasing when the profits outset the debt, and this was strictly a vivum vadium. Evidences of these are never found, although probably many feoffments prior to the Statute of Uses were such with the use, secret and unexpressed. After the statute mortgages of freeholds were effected by enfeoffing the mortgagee with an estate limited to expire when the money borrowed had been repaid. Later it became the custom to convey the land to the mortgagee, subject to an expressed proviso that the conveyance should be void if the debt were paid by a certain date, usually six or twelve months ahead, the mortgagor being meanwhile allowed to retain possession of the land. Equity, however, would not allow the estate to be forfeited to the mortgagee, even if the money was not repaid by that date, but allowed him to redeem at any time later, subject to the mortgagees remedy at law, to obtain repayment or foreclosure, and this equitable right is know as the equity of redemption. It was customary therefore to insert the voidance proviso, merely to preserve the equity, and the proviso which will be found at about the middle of the document, distinguishes a mortgage from a conveyance on sale. To obviate the necessity of a mortgagee having to get a writ of foreclosure when he required repayment, it was usual in later times to insert a power of sale to be exercised if the mortgagor made default after a certain time from demand. Occasionally in temp. of Elizabeth and James I., other forms of mortgages are found, such as a clear conveyance to the mortgagee, and a separate reconveyance back to the mortgagor, with a covenant by him that he would not alien the land, or a separate deed of covenant setting out the true meaning of the open conveyance to the mortgagee, which in these cases cannot be distinguished from a conveyance on sale. Another method was by a deed of covenant by the mortgagor to levy a fine to his own use, provided he repaid by a certain date and in default to the use of the mortgagor and his heirs. All these, being pledges of the freehold, are termed mortgages in fee. Mortgages were, however, frequently made by demise or lease, that is by creating a long term of years in the mortgagee, conditioned to become void on repayment, and many ownerships in possession for 500 and 1,000 years have originated on foreclosure on such terms. Such mortgages had to be resorted to where trustees, to raise portions for younger children, had but a long term of years vested in themselves for the purpose, and generally such mortgages were favored as rights of dower which attached to the freehold were thereby avoided, and the pledged interest being but a chattel passed to an intestate's executor and not his heir, the mortgagor retaining the feudal seisin or freehold with its incidents. Mortgages of leases were either made by assignment of the residue of the term, or by creation of a shorter term by sub-lease, there being a condition for voidance in either case. Mortgages of copyholds are not met with before Jacobean times. They were usually effected, custom permitting, by surrender to the lord to the use of the mortgagee, subject to a condition of voidance if the mortgagor repaid on a certain day. Copies of such surrenders are often found in the deed chest.
Mortmain - Alienation of lands to corporate bodies, such as religious houses, which could not be done without license from the lord and also from the king, because such feoffees could not perform the services of tenure, and the tenure being in dead hands the lord was defeated of reliefs, escheats, etc.
Muniments - Records, documents.
Murage - A toll for repair of city walls.
Name - A man may have several surnames. "Alias dictus" is used where the legal name is not known for certain. A man may, however, have only one name of baptism, which could be changed at confirmation. A name such as Fitz-William should never be translated, for that is the name whatever that of the father of the bearer was.
Neif - A bond woman or female villein.
Next of Kin - Those persons who are entitled to the personal property of an intestate as distinct from the heir.
Nisi Prius - A court constituted of the court of assize to try all questions of fact issuing out of the courts at Westminster, before a jury of the county where the cause of action arose.
Non-Jurors - Persons who refused to take the oath to Goverment, the faction first being given prominence on the accession of William III.
Norroy, North Roy - The title of the King of Arms, officiating North of the Trent.
Notary Public - A person who attests writings to make them legal in other countries, etc.
Nuncupative - 'Verbal': but nuncupative wills were abolished under Charles II.
Obit - A funeral solemnity for the dead performed before burial, or on the anniversaries of death.
Oblations - Payments to a Priest for particular services.
Obventions - All ex officio payments to an incumbent.
Offerings - Special customary payments to an incumbent.
Ordinary - A Judge or Bishop who has the right of taking cognizance of causes in his own right.
Orphans - According to the custom of London and some other cities, a court existed therein for the government of orphans.
Oxgang - A variable measure of land, but usually about 13 acres.
Oyer and Terminer - A commission to courts of assize to try all treasons, felonies and misdemeanors.
Outlaw - One put out of protection of law in every way for treason felony or enormous trespasses.
Paraphernalia - Personal chattels such as jewelry and clothes which, if in use by a wife, she might retain as her property after the husband's death.
Parol Contracts - Those in writing but not under seal.
Parson - Spiritual rector.
Parties - The persons named in an instrument as principals, but strictly only those as principals in the same capacity. Thus, a party may comprise several persons, but such parties are always identified as e.g., "the 1st part".
Patent Roll - The official record of grants of Letters Patent, and of markets, etc., and Crown Licenses.
Peculiars - Parishes dispersed in various dioceses in the province of Canterbury exempt from the ordinary's jurisdiction, and subject only to the archbishop. There were 13 such in London. The Court of Peculiars is a branch of the Arches, and has jurisdiction over such parishes.
Personalty - Property which (before 1926) did not on death cease (as a life interest) or descend to the heir. This includes cattle, furniture, money, debts, investments in companies, and terms of years (such as an ordinary lease).
Prerogative Court - The court of an archbishop for granting probates, etc., where the deceased held property in more than one diocese.
Perpetual Curacy - A benefice which, although the tithes were in the hands of a religious house, was not endowed under the acts of Richard II and Henry IV with a portion of the tithes, but has attached by prescription a fixed salary payable by the impropriator.
Petit Serjeantry - A freehold tenure of lands in capite under which the tenant had to render to the King some small thing belonging to war, such as arrows. This tenure was not abolished with military service.
Petty Bag - An office in chancery which issued all writs under the Great Seal directly affecting the Crown in distinction to the hanaper.
Pie Poudre - A court incident to every fair or market for the salesmen thereat, of which court the stewart of the owner of the tolls is judge.
Piscary - Right of fishing.
Ploughbote - Right of a tenant to take wood to repair husbandry implements.
Plowland - A Norman measure of arable land, being as much as one plough could till. About the same as a hide.
Pontage - A bridge toll.
Portreeve - Chief magistrate of a seaport.
Possi Comitatus - The whole power or people of a county available to the sheriff for apprehending felons, etc.
Possession - Strictly the feudal seisin of hereditaments, that is the holding of a freehold in distinction to rights in remainder or reversion, or to the benefit of a lease or to mere occupancy. Later extended to the benefit of a term of years.
Pot Waller - A person who provides his own diet, which in some boroughs gave a parliamentary vote.
Pound - In one sense a small enclosure at one time found in almost every parish for holding strays until their owners came forward.
Praemunire - Judgment against him who denies the elements of our constitution, etc.
Prebend - Land, etc. endowment of a cathedral or conventual church for the maintenance of a secular priest or regular canon, who is thus a prebendary.
Prescription - Right acquired by long usage.
Probate - The proving of a will before the proper authorities, formerly ecclesiastical, and the documents issued by them under seal verifying the fact. This document was a small piece of parchment closely written, and having appended to it a copy of the will on parchment. These parts are frequently found divorced.
Proctor - An attorney in an ecclesiastical court for proving wills.
Prothonotary - Chief clerk whose duties were similar to the present masters of the high court.
Provost - Chief municipal or collegiate officer.
Puisne - Junior; other than the Chief. The judges of the courts other than the Chief Judge are "puisne judges".
Purchaser - In a special sense, a person who takes land either on conveyance or devise.
Putative - Reputed.
Quasi Entail - An entail in an estate pur autre vie.
Quit Claim - A release.
Quo Warranto - A writ against the usurper of an office, franchise or liberty.
Rape - A district consisting of one or more hundreds.
Real Estate, or Realty - Indestructible and immovable property, that is, land, etc., which has been held feudally of another, that is in which there is a tenure or seisin strictly, subject of old to feudal services. Such property was the subject of a real action (hence the term), that is, an action in which the thing itself was recovered, and no remedy laid against the person, unlike chattels, possession of which was transferred by mere manual delivery, and of which destruction was possible. All freehold land is real estate, whether held in fee simple, fee tail or for life, because the feudal seisin accompanies such estates, while it does not accompany terms of years, and a holder for years, if dispossessed by a stranger, had only a personal action against his lessor, and not a real action. Certain incorporeal hereditaments are also real estate, because although now perhaps held quite apart from the corporeal, yet originally were appendant thereto, and have sprung therefrom, such as a seignory pure, rights of common, rent charges, advowsons and tithes. Copyholds are now considered real estate.
Recorder - In one sense, a person of legal attainments associated by the Crown with the magistrates of a corporate town or city having a court of record to help in administration of the law.
Recovery, Common - A collusive or fictitious action at law carried to a termination and not compromised as in a fine, the effect being to effectually break an entail and destroy all remainders and reversions and give a fee simple. This method of breaking through the Statute de donis, all attempts to repeal which had failed, was conceived temp. Edward IV. The purchaser, assuree or conveyee, that is, the person who was to have the fee simple, was plaintiff or demandant against the tenant in tail in possession, that is, the vendor, conveyor or assurer, who was allowed to bring forward a third person called the vouchee as the creator of the estate tail and warrantor of the title which he was called upon to defend. This he did not do, but allowed judgment to go against him in default, and the plaintiff got the land he claimed in fee simple, the deforciant or tenant only having a judgment against the vouchee for lands of equal value in entail. The vouchee, however, was a man of straw who had no interest in the case, usually the court crier, and the remedy against him was useless, and the issue in tail, etc., were thus defrauded. In later times the proceedings were varied a little and made more complicated. The deforciant, instead of being the tenant in tail, was one to whom the fee had been formally conveyed for the purpose so as to make him "tenant of the præcipe" or writ, and he vouched the tenant in tail to warranty, who in turn brought in the common vouchee who failed to appear. The result was, as in the earlier form of proceedings, a fee simple estate in the demandant who, if merely a nominee of the tenant in tail, disposed of his legal estate according to his direction. A recovery was usually preceded in later times by a recovery deed between the parties, by which the tenant conveyed to the deforciant to make him tenant to the præcipe, the demandant covenanted to use out the recovery, the deforciant to suffer it, and the uses of the recovery were declared. The officially-issued exemplification of the recovery is an elaborate writing with the Great Seal appended, commencing with the Sovereign's style and title, and setting out what is enrolled in the court. It was not necessary to mention heirs in a recovery to make a fee simple in the plaintiff. Recoveries were abolished with fines in 1833, and other provisons made for disentailing.
Rectory, or Parsonage - The entire enowment of a parish church, including the tithes and glebe. Prior to the dissolution, much tithe had got into the hands of monastic houses by reason of the advowsons having been given to them. These houses, while retaining all the profits, deputed a vicar or perpetual curate to perform the cure, endowing his office with the small tithes or a yearly payment. When at the dissolution monastic property went to the Crown, many of the great tithes so obtained were granted to laymen, and have since been vested in lay hands. When the whole of the tithe is attached to the cure the incumvent is termed a rector, and a layman holding the great tithe is an impropriator.
Recusant - One separated from the Church of England.
Reeve - A steward; generally a steward of a manor.
Registration of Land - All conveyances of land in Middlesex since 1708 should have been registered in the Middlesex Registry, and in Yorkshire West Riding since 1704, East Riding 1707, and North Riding 1735. A memo of this registration is endorsed on such deeds.
Release - In particular, a conveyance of the fee simple or other interest in land when the grantee is already in possession, for a term either under Common Law, that is actually, or under the Statute of Uses, in which circumstances livery of seisin is either impossible or unnecessary. The operative words of medieval releases were "remisisse relaxasse et quietum clamasse", that is, relinquished, released and quit claimed, and such deeds may always be identified thereby. They may also often be distinguished from feoffments by having the seal upon a strip of the parchment body, almost severed horizontally at the bottom of the deed.
Relief - Fine payable by an heir to his lord on succeeding to land.
Remainder - The interest in an estate remaining over in a person after the termination of a prior limited estate in another, and created by express grant. Thus, a grant to A for life and then to B and his heirs creates a vested remainder in fee simple in B, who until possession is a "remainder man". A contingent remainder is one which does not vest at grant, but depends upon some uncertain event or circumstance.
Rent - A rack rent is the full annual rent. There are several specially termed rents of ancient origin, as a quit rent payable to a manorial lord by a freeholder or copyholder in lieu of services originally due; a seek rent, which was a feudal rent, that by grant to another had been divorced by the lord from his seignory, and so called because prior to 1731 it could not be distrained for. Chief rent is a rather loose term, but generally means a rent payable to a lord for freehold like a free rent, and which was originally reserved on the grant (as e.g., for burgages), and is not in quittance of services. A fee farm rent was a similar rent, but so styled when it was not less than a quarter of the full annual value. A white rent or alba firma generally signifies a silver money rent in distinction to services, and thus quit rents are often termed white rents.
Reprises - Deductions from annual value as of charges on an estate.
Requests - A court of Equity inferior to Chancery, and abolished in 1665.
Residuary Legatee - One to whom the residue of an estate, after specific legacies, is given by will.
Reversion - Strictly the interest in the fee simple remaining without express words in the grantor of a smaller freehold estate. Thus the creator of an entail has a reversion on failure of the issue in tail. If the remaining interest is vested by express words, it is a vested remainder. In later times the term has also been applied to the interest of a lessor of a term of years.
Revivor, Bill of - Necessary in Chancery after a bill has been exhibited and answered and one party dies.
Salic Law - An ancient law by which females were excluded from inheriting.
Sanctuary - Certain privileges allowed to criminals who succeeded in admittance before arrest to consecrated places. Abolished in 1624.
Scrivener - One who drew up and engrossed conveyances, etc., between the later law writer and a solicitor.
Seignory - The lordship of a manor and indicative of the purely incorporeal rights apart from the land of which the lord retained feudal seisin, such as the demesne and copyhold.
Seisin - Feudal, that is, freehold possession of land. One is not "seized" of leaseholds or copyholds.
Selion - A ridge of land of no fixed area.
Sequestration - The turning aside into another channel of profits, such as when a benefice is vacant the income is sequestered by being paid to the church-wardens to hold for the next incumbent.
Severalty - When persons separately hold portions of a property after having held undivided portions.
Shawe - Wood.
Soc, Soke - The Saxon power of administering justice within a franchise, liberty or seignory, and the territory over which the power extended.
Socage - Free and common, a species of freehold tenure of Saxon origin, not having the incidents of military service, homage, wardship and marriage, but subject to agricultural services or rents. In 1660, all military tenures were abolished and converted into this tenure.
Stannaries - Those districts of the Duchy of Cornwall where the mines were worked, and having their own wardens and courts.
Stallage - Fees paid to a lord of a fair for liberty to erect stalls.
Star Chamber - A court which consisted of several temporal and spiritual lords, being Privy Councillors, with two judges. Its jurisdiction was over notorious misdemeanors, but it was illegally extended to all matters which were supposed to affect the prerogatives and dignity of the Crown to such extent that it was abolished in 1665.
Statute Merchant - A band of record made before the officers of a merchant town by virtue of which the creditor might have execution in default. Now obsolete.
Statute Staple - Like a Statute Merchant, but made before the mayor of a staple.
Sub-Infeudation - The grant of lands by a freeholder to be held of him by feudal service, which had usually the effect of creating a sub-manor within another, for the grantor would himself hold feudally of another lord. Thus, the grantor would be mesne lord. This was stopped by the statute Quia Emptores 1294, which enacted that lands should only be aliened to hold of the same superior lord as before.
Suit - Service of a feudatory at his lord's court. Proceedings in a court of Equity.
Swanmote - A court held before the verderers of a forest.
Tabarders - Bachelor scholars of Queen's College, Oxford.
Tack - Northern name for a farm of lands.
Tailzie - Entail in Scotland.
Tenant - Includes not only a person at rack rent at will, but freeholders all of whom, strictly, merely hold of a superior lord or the king. Copyholders are termed customary tenants, because they have no feudal tenure, but have acquired a species of tenure by custom. Joint tenants are those holding together as one. This necessarily imports the quality of survivorship, for the tenant is not dead until the survivor is dead, when it passes to his heirs or devisees. For convenience, trustees always hold as joint tenants. A grant to A and B and their heirs made a joint tenancy. Tenants in common hold undivided portions as separate beings, and their respective shares pass to their heirs, etc. Tenant in tail is the person who is holding for life under an entail, and a tenant for life is one who has but a life interest, either under an entail or when there is a remainder in another after his death. A grant to A has always been a grant for life only, except in a bargain and sale, and the earliest feudal grants are presumed to have been such.
Tenement - Anything held feudally, whether corporeal or incorporeal. Leaseholds and copyholds not conferring the feudal seisin are not tenements, but the latter have been referred to as such for several centuries.
Tenths - (see First Fruits).
Tenure - A definite feudal holding under a lord of a manor or the king. As all such were freehold, there is no tenure strictly in anything but that, copyholds being merely at the will of the lord. Copyhold has, however, been referred to as a tenure for several centuries, and even leasehold is usually now referred to as a tenure.
Termor - One who holds land for life or years.
Terrier - A roll or recorded survey of lands.
Testator - One who dies leving a testamentary disposition.
Thane - A Saxon tenant in capite.
Tithes - The tenths of the profits of land or stock upon it anciently given by the lord of such land for support of a church. They are divided into "great", being those of corn, grain, hay and wood, and "small" being those of fruit, calves, poultry, milk, etc. No tithes under Common Law are payable out of anything that does not renew, therefore, they are not due on messuages except by custom in some boroughs, and under Statute in the City of London. Before the Tithe Commutation Act, 1836, tithes were usually paid in kind, but in many places by ancient custom a money payment in lieu of tithes had been established called a modus. Lands owed by the religious houses, together with the rectorial rights on the lands, of course could not pay tithes, and when the greater houses were dissolved, their lands were regranted free of tithe by special provision and remain so, but this does not apply to the lands of lesser houses. Much land is, however, held tithe-free now for other reasons. Prædial tithes are those growing directly out of the land, as corn, etc.
Tithing, or Decennary - An ancient Saxon division of a hundred or parish containing ten freeholders formed for administrative purposes. A parish sometimes has several tithings, frequently known as hamlets, but their boundaries are often difficult to ascertain.
Tithing Man - Constable or civil dean, he whose duty it was to determine small differences between men of a tithing.
Toft - A place where a house once stood.
Twaite - Arable land, formerly woodland.
Uses - The origin of trusts and prior to 1536, practically the equivalent of them, for he who had feudal seisin to the use of another merely held the legal estate, and the Court of Chancery in equity enforced the use. Uses were introduced towards the end of the XIV century by the religious houses to overcome the Statute of Mortmann, and enable them to have the benefit of lands without contravening that Statute by being seized of them. Uses were also largely used to enable a man to devise the fee in lands in effect although not in form, by conveyance to another to the uses of the feoffor's will. They were also used to obscure the real; that, the beneficial owner, who having the "use" merely needed no seisin, avoiding thereby the old necessity of publicity on feoffment. Common Law was so much subverted by these practices that it was enacted by the Statute of Uses, 1536, that he who had the use should have the legal possession or feudal seisin, so that in the future the feoffee without the use should have no estate whatever. In this way, it was supposed that beneficial and legal ownerships could never again be divorced, but by a curious oversight, the Statute was only made to operate the first use, and not a use upon a use, which has since been termed a trust, and is still countenanced by Equity. Thus, on a grant by A to B to the use of C, to the use or in trust for D, B takes nothing, C has the legal estate under the Statute, but Equity can and will make him hold merely for the benefit of D, who is thus the beneficial owner. Uses were sometimes created by expression in the feoffment, but more often it was secret and unexpressed. From about 1400 to 1536 a hidden complete ownership in a purchaser was very often created by enfeoffing to him with others jointly, who it was understood by mutual agreement were to hold simply to the use of the purchaser, and for this reason it is common in feoffments of that period to find several feoffors and feoffees. The presumption is that the first named in each class was the actual seller and purchaser respectively. Among the others will often be found the parson or chaplain.
Usucaption - Title to a thing by prescription.
Uterinus Frater - A brother by the same mother.
Uxorium - A fine for not marrying.
Vicar General - A diocesan officer having cognizance of spiritual irregularities. The duties are now performed by the chancellor.
Vicarage - An ecclesiastical benefice endowed only with a portion of the whole of the tithes, such as the small tithes - (see Rectory).
Villein - In feudal times a man of semi-servile condition, subsequently known as a copyholder.
Villenage - A holding by serfs or semi-serfs such as villeins at the will of the lord.
Virgate - A Norman measure of land about the same as a yardland.
Wards and Liveries - A court erected by Henry VIII to deal with the King's Wards, that is, the heirs of the King's tenants in capite, and afterwards augmented with the issue of liveries. Abolished in 1660. The Master was chief officer, and the Attorney the third.
Wardship - The incident of military tenure by which the lord had the custody of an infant heir and his lands until of full age.
Warrant or Attorney - Generally a power of attorney, specially that by which a debtor empowered a creditor to confess judgment against him in a court given as a security for a debt.
Wike - Essex name for a farm of lands.
Will - Until 1541, real estate could not be legally devised by will, except by special custom in some places, such as London, but it could be effected by uses under Equity. A nuncupative will is a verbal will reduced to writing by others, and was valid as regards personal estate until 1837. Wills have always been interpreted according to the supposed intention of the testator, and not strictly according to written expression where that appears to be vague, inconsistent or incongruous. Thus, wills have been a fruitful source of litigation. In a devise of land the court would always construe the devise as one in fee simple, if there was the least evidence that such was the intention, but since 1837 a devise to a man without mention of heirs gives a fee simple, unless the contrary intention appears.
Yardland - A measure of land in different districts from 15 to 30 acres.
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