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Legal terms found in early Virginia court records

Court clerks frequent used (and misused) Latin terms derived from early English law. Following are terms used in the court records of Westmoreland County, Virginia which can also be found in other court records.

Our author, Pamela Pearson has created a list of these terms and their apparent meanings based primarily on Black’s Law Dictionary, for her own use, and now, for yours. It becomes obvious that the court clerk injected his own interpretation, often modifying the earlier meanings and spelling.

Pam has also found help in the work, “What Did They Mean by That?" by Paul Drake, J.D.; published by Heritage Books, 2003. She has put these entries into her own words, trying to simplify as much as possible without losing the meaning.

P.S. We welcome corrections & additions. Please send to holly@delmarvaroots.com with the subject line “Old Legal Terms Submission” (or something similar) so I will know it is not spam… HW

Alias capias; als. capias: court order issued when a prior similar or identical order has failed or not been fulfilled. See also capias.

Alias pluries: court order issued when a pluries capias was not fulfilled. See also capias; alias capias; pluries capias.

Arbitration: method of resolving disputes; the decision of one or more third parties is binding.

Assignee: one to whom property rights or powers are transferred.

Attachment: seizing of a person’s property to either (1) secure a judgment or, (2) be sold to satisfy a judgment.

Bill of revivor: revival of a suit which was abated by the death or marriage of one of the parties.

Capias: court order directing arrest, notification, attachment, etc.

Chancery: court of equity, as opposed to a court of a law.

Counter (countor) security: security given to one who has become security for another.

Covenant: formal agreement or promise between two or more parties, usually in the form of a contract.

Coverture: legal condition of being a married woman.

Curtesy: by common law, a husband’s entitlement, upon the death of his wife, to a life estate in any land she owned during their marriage, assuming a child was born alive to the couple.

De bene esse: done conditionally; done in anticipation of a future need.

Dedimus: writ allowing a person to act in place of a judge or court; e.g., to administer an oath or examine witnesses.

Deed of trust: deed conveying title to a trustee, as security, until the grantor repays a loan; resembles a mortgage.

Demurrer: assertion by a defendant that the allegations, even if true, do not legally constitute a cause for action; now called a motion to dismiss.

Detinue: action taken to recover personal property wrongfully detained or taken by another.

Ejectment: ejection of an owner or occupier from property.

Exon: exoneration; removal of a burden, responsibility or duty; the right of a surety to compel the principle debtor to satisfy the obligation.

Ex parte; expartee: done without input or argument from the absent party.

Feoffor; feoffer: person granting a feoffment.

Feoffment: transfer of property accompanied by livery of seisin; the new owner has the right to sell the property or pass it on to heirs. See also livery of seisin.

Fieri facias: writ directing a sheriff to seize and sell a defendant’s property to satisfy a monetary judgment.

Garnishee: person who holds money or property belonging to a debtor and subject to an attachment.

Habere facias possessionem: writ directing a sheriff to cause the plaintiff to have immediate possession of disputed land.

Imparlance: extension of time for a party to a lawsuit to further plead his or her cause.

Imparte: to make known or disclose; to obtain information and/or facts.

Imprimis; imprs: “in the first”; in the first place; first of all.

Indemnification: compensation for loss or damage; restitution; reimbursement.

Indemnify: to compensate for loss or damage; to provide security for reimbursement to a person in case of a specified loss incurred by the person.

Indictment: formal, written accusation of a crime made by a Grand Jury and presented to the Court for prosecution.

Injunction: court order commanding or preventing an action.

Livery of seisin (seisen, seizen): symbolic ceremony by which possession of land is delivered from the grantor to the grantee.

Mittimus: court order directing a sheriff to arrest and detain a person until ordered otherwise.

N.B.; nota bene: take notice; Latin for “note well.”

Nihil dicit: the defendant does not plead or answer the plaintiff’s complaint; Latin for “he says nothing.”

Non est inventus: sheriff’s return to a writ, requiring him to arrest a person, signifying that the person was not found within the sheriff’s jurisdiction; Latin for “he is not found.”

Nonsuit: judgment against a plaintiff who has given no evidence of his claim, or who refuses or neglects to proceed with the case.

Ordinary: tavern and/or restaurant, having no overnight accommodations, that is open to the public.

Oyer: hearing or an inspection.

Petition: written application made to the court requesting action on a certain matter.

Pluries capias: court order issued for the third time. See also capias and alias capias.

Privily: privately or secretly.

Prefer: to present for consideration or resolution by a Court or other legal authority; to bring a charge against a person.

Presentment: report to the Court, initiated by a Grand Jury, stating that a crime was committed.

Processioners: parishioners appointed to determine the boundaries of private lands within a parish.

Processioning: walking of private lands within a parish, by appointed parishioners, to determine boundaries and resolve disputes.

Proffer; profer: to offer evidence in Court.

Qui tam; quitam: action brought by a private person with knowledge of fraud committed against the government; today, the plaintiff is called a “whistle blower”; Latin for “who as well.”

Replevy: action for the recovery of property.

Replication: reply, or answer, made by a plaintiff to a plea.

Scire facias: writ requiring a party to show cause why a judicial record should not be enforced; often used when a person was occupying land patented or granted to another.

Special bail: person bound to answer for the appearance of another.

Special imparlance: allowance of time with a saving only of exceptions to the writ, but not to the Court’s jurisdiction.

Trespass on the case: action brought to recover damages from one whose actions indirectly resulted in injury or loss.

Trover: action for the recovery of damages for the conversion of personal property.

Trumphery: items of limited or no value.

Without day: the legal proceedings against a defendant are resolved, usually by dismissal; shortened from “go hence without day.”

Writ: written order from the court.

Writ of enquiry (inquiry): writ ordering the sheriff to empanel a jury and act as judge in a trial held to determine the damages suffered by a plaintiff who has won a default judgment on an unliquidated claim.

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