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My musings on cozenage and its relations to "cousinage," provoked another legal thought. At common law, one could bring various kinds of actions, but care had to be taken to conform your pleadings to the so-called "common law forms of action." You had to fit your pleading into the "cubbyhole" which precisely described your problem. In contrast to today, where most jurisdictions are under a system of what is called "notice pleading," where you just have to, as it were, "notify" the defendant in a short and concise statement about the nature of your problem with them, in the common law pleading you had to fit your complaint into one of the approved forms of action. I want to illustrate this system ever so briefly here because the use of the term cousinage provoked it.

Common law forms of action were denominated either real, mixed or personal. By far the most numerous forms of action were the real actions, because most of the earlier common law was preoccupied with inheritance laws and rules. Money, power and social status resided in land. Thus, the pressure points in the system were when a person died and ownership of property had to pass to another person or the next generation. It was at this moment, too, when pretenders were most apt to intervene to try to take possession of property. Thus, a lot of time in early common law litigation (before the 16th century), was taken up trying to ascertain who had title ("right") to the land and how to kick the people off who didn't have title or shouldn't have possession.

The Writ of Cosinage

This early common law form of action had everything to do with one's relatives and nothing to do with deception. If for example, a cousin of the one claiming the land died and owned the land (the common law way to say this was "dyeth seised [that is, in possession] in fee-simple"), and if another person came into the land to claim possession ("a stranger abateth, viz. entreth into the lands"), then the one claiming the land would write out and file a writ of cosinage against the stranger [we won't now get into the subject of what your pleadings actually looked like or what the process of pleading entailed].

The writs became so technical by the time of Henry VIII that there was a separate writ for an instance in which the person who died seised with the land in fee-simple was your grandfather. If you believed that the land devolved to you and a stranger had intervened to occupy the land ("abateth"), you could file the writ of aiel to reclaim your land. Blackstone called this writ "a writ of ayle, or de avo." In Latin the avus is the grandfather.* Make

[*I didn't realize until today that avuncular, a term we all love and use, and which means "Of, belonging to, or resembling, an uncle," is actually a diminutive of avus, grandfather. Thus, an uncle is sort of a "little grandfather," a rather quaint but not-so-bad way of saying it. There was also a writ of besaiel in the common law, used when where one's great-grandfather had died seised--that is, in possession--of the estate in fee-simple and a stranger had abated. Indeed, a writ of tresaiel is, I believe, even attested, though you have to wonder how long people lived way back then, don't you?].

sure you file the right writ, however. You could be thrown out of court if you don't. That was the problem with common law pleading. It was the means by which those who were in the know could keep out those who were not.

Returning to Property Law

Let's leave deception for a minute to talk about not the repeated selling or conveying of property to different people without informing subsequent conveyees, which we now know is stellionatus or the "crime of stellionate," but the process of conveyance. One can sell land, hypothecate land or pignorate land or other object. When you sell it, you convey title of it to another person. But when you hypothecate land, you mortage it but keep both possession and ownership. In Roman law a hypotheca is a security for a loan or debt. It, literally, is what you "put down" (derived from the Greek "upo," meaning "down" or "under," and "tithemi," meaning "to place." Thus, the term has a very visual origin. We still say that we will "put down" a certain amount of money for car or piece of property. A closely related term, hypothesis, is also derived from the same Greek terms, and means the "putting down" not of money but of a thesis or proposition for discussion.) The debtor therefore, is able to keep but not alienate (sell or transfer) the property. As one 20th century treatise says, "hypothecs may arise by the direct application of a rule of law, by judicial decision, or by agreement."

One may, in contrast to hypothecating land, pledge it. If you pledge it, you are pignorating it. A pignus is a pledge or "bailment in which goods are delivered to secure payment of a debt or performance of an engagement, accompanied by a power of sale in case of default." Thus, the linguistic field for pignus, pignoration, and pignorate suggests movable goods (personal property) rather than real property. Thus, if you pignorate something you are actually handing it over to someone as security for a debt or bond. The OLD informs us that, with respect to persons, a pignus could even be a hostage. If you pledge something, you are engaging in a pignorative action. In this connection the common law also knew the term oppignorate (with the Latin prefix "ob," meaning "from" added on), which means the same thing as pignorate. When the pledgor does not come through with his payment, you can initiate a pignoratitia actio, but sometimes people were known to take matters into their own hands and just commit a pignoriscapio, a Latin term (not attested in English), meaning "the seizing of a pledge in order to enforce payment of money due."

Conclusion

I have fully gotten the common law terms out of my system now that were suggested by the chain of thinking beginning with stellar, and so I return to one more use of the apparent root stell but which is, in fact, not that root at all.

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