\<J) 
 
 313 
 
 QJontdl IGaui ^rlyonl Sibtary 
 
Cornell University Library 
 KD 313.S97 
 
 A dictionary of English lawcontaining de 
 
 3 1924 017 854 104 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017854104 
 
DICTIONARY 
 
 OF 
 
 ENGLISH LAW. 
 
A DICTIONARY 
 
 OF 
 
 uqUxI) IHato 
 
 CONTAINING 
 
 DEFINITIONS OF THE TECHNICAL TERMS IN 
 
 MODERN USE 
 
 <@Lvti a ©onctee Statement of tgt Utiles of &afo 
 affecting t&e principal Sufyects 
 
 WITH HISTORICAL AND ETYMOLOGICAL NOTES.. 
 
 BY 
 
 CHARLES SWEET, LL.B. 
 
 OF LINCOLN'S INN. 
 
 LONDON : 
 
 Henry Sweet, 3, Chancery Lane, 
 
 %sw ^nhlisheti. 
 
 1882 
 
LONDON : 
 
 PRINTED BY C. F. ROWORTH, BREAM'S BUILDINGS, 
 
 CHANCERY LANE — E.C. 
 
Preface. 
 
 [HE object of this Work is sufficiently indicated by its 
 title. The Author believes it will be found that in many 
 cases a Dictionary, from the nature of its arrangement 
 and scope, affords an opportunity of giving a resume of 
 a subject with a completeness which would not be possible 
 in an ordinary text-book, while it also gives details which 
 would be out of place^ in an institutional work, such as that 
 of Blackstone. It is therefore hoped that this Dictionary may 
 be found useful by the practitioner as well as the student. 
 
 In compiling the Work the Author has relied almost wholly 
 on his own researches. In order to collect the necessary 
 materials, it was necessary to peruse the principal text-books 
 on the various branches of the law, and also the contemporary- 
 reports for the last ten years, the period over which the process 
 of collecting materials has (with some unavoidable interrup- 
 tions) extended. A more difficult task was that of selecting, 
 from the abundant store thus obtained, the matter appropriate 
 to the scheme of the Work. It would have been easier to 
 have made the book nearly twice its present size. 
 
 In order to include in the Dictionary as much useful 
 matter as possible without unduly increasing its bulk, all 
 obsolete matter has been omitted, except where it appeared 
 useful to explain the existing law, or to enable the student 
 
VI PREFACE. 
 
 to understand expressions used in the earlier reports and text- 
 books, which are still referred to at the present day. An 
 endeavour has been made, by the use of different types, 
 marginal notes, numbered paragraphs, and other typogra- 
 phical devices, to assist the reader in finding his way through 
 the book. 
 
 The Addenda contain the principal alterations in the law 
 which have been made during the progress of the Work 
 through the press, including the more important provisions 
 of the new Conveyancing Act. The reader is requested to 
 note up these alterations in their appropriate places in the 
 body of the Dictionary. 
 
 The Author's thanks are due to the Bar Association of 
 New York for their courtesy in allowing him the use of their 
 excellent library during a stay of some months in that city; 
 and to his former tutor, Mr. David Lyell, LL.D., of the 
 Inner Temple, for advice and assistance during the earlier 
 stages of the Work. 
 
 New York, 
 
 Christmas, 1 88 1. 
 
TABLE OF ABBREVIATIONS. 
 
 A. & E Adolphus and Ellis's Reports, K. B. 
 
 Amb Ambler's Reports, Chancery. 
 
 Anst Anstruther's Reports, Exch. 
 
 App. Ca Law Reports, Appeal Cases. 
 
 Archbold Crim. PI Archbold's Pleading and Evidence in Criminal Cases. 18th 
 
 edit, by William Bruce. 1875. 
 Archbold's Pr Archbold's Practice of the Queen's Bench, Common Pleas 
 
 and Exchequer Divisions of the High Court of Justice. 
 
 13th edit, by Samuel Prentice. 1879. 
 Atk Atkyns' Reports, Chancery. 
 
 B. & Ad Bamewall and Adolphus's Reports, K. B. 
 
 B. & B Broderip and Bingham's Reports, C. P. 
 
 B. & C Bamewall and Cresswell's Reports, K. B. 
 
 B. & S Best and Smith's Reports, Q. B. 
 
 B. C. C Bail Court Cases, Lowndes and Maxwell. 
 
 B. C. R Bail Court Reports, Saunders and Cole. 
 
 B. & L Browning and Lushington's Admiralty Reports. 
 
 B. N. C Brook's New Cases, K. B. 
 
 B. N. P Buller's Nisi Prius. 
 
 B. & P Bosanquet and Puller's Reports, C. P. 
 
 Bainbridge on Mines .... A Treatise on the Law of Mines and Minerals. By William 
 
 Bainbridge. 4th edit, by A. Brown. 1878. 
 
 Ball & B Ball and Beatty's Reports, Chancery, Ireland. 
 
 Barn. & Aid Bamewall and Alderson's Reports, K. B. 
 
 Bam. & Cress Bamewall and Cressweil's Reports, K. B. 
 
 Bam. K. B Barnardiston's Reports, K. B. 
 
 Barn. C Barnardiston's Reports, Chancery. 
 
 Beat Beatty's Chancery Reports, Ireland. 
 
 Beav Beavan's Reports, Rolls Court. 
 
 Bel Bellew's Reports, K. B. 
 
 Benjamin on Sales A Treatise on the Law of Sale of Personal Property. By 
 
 J. P. Benjamin, Q.C. 2nd edit. 1873. 
 
 Bing Bingham's Reports, C. P. 
 
 Bing. N. C ' . . . . Bingham's New Cases, C. P. 
 
 Bl Blount. 
 
 Bl. Comm Commentaries on the Laws of England. By Sir William 
 
 Blackstone. 21st edit, by Chitty, Hargrave, Sweet, Couch, 
 
 and Welsby. 1844. 
 
 Black. W. Sir Wm. Blackstone's Reports, K. B. 
 
 Black. H Henry Blackstone's Reports, C. P. 
 
 Bli Bligh's Reports, House of Lords. 
 
 Bli. N. S Bligh's Reports, New Series. 
 
 Block Diet Dictionnaire General de la Politique, par M. Maurice Block. 
 
 Nouv. edit. 2 vols. 1873-4. 
 Blount's Tenures Fragmenta Antiquitatis, or Antient Tenures of Land and 
 
 Jocular Customs of Manors. By Thomas Blount. New 
 
 edit, by Josiah Beckwith, 1784. 
 
viii TABLE OF ABBREVIATIONS. 
 
 Bos. & Pul Bosanquet and Puller's Reports, C. P. 
 
 Bos. & P. N. R Bosanquet and Puller's New Reports, C. P. 
 
 Braithwaite's Pr The Record and Writ Practice of the Court of Chancery. 
 
 By Thomas W. Braithwaite. 1858. 
 Brice on Ultra Vires A Treatise on the Doctrine of Ultra Vires. By Seward 
 
 Brice. 2nd edit. 1877. 
 
 Bridg. O Orlando Bridgman's Reports, C. P. 
 
 Bro. Ab Brooke's Abridgment. 
 
 Bro. C. C Brown's Chancery Reports (Eden or Belt). 
 
 Bro. P. C Brown's Parliament Cases. 
 
 Brod. & B Broderip and Bingham's Reports, C. P. 
 
 Broom's C. L Commentaries on the Common Law. By Herbert Broom. 
 
 4th edit. 1869. 
 Browne on Divorce A Treatise on the Principles and Practice of the Court for 
 
 Divorce and Matrimonial. Causes. By George Browne. 
 
 3rd edit. 1876. 
 Browne's Probate Practice .A Treatise on the Principles and Practice of the Court of 
 
 Probate in Contentious and non-Contentious Business. 
 
 By George Browne. 1873. 
 
 Brownl Brownlow and Goldsborough's Reports, C. P. 
 
 Bull. N. P BuUer's Nisi Prius. 
 
 Bulst Bulstrode's Reports, K. B. 
 
 Bunb Bunbury's Reports, Ex. 
 
 Burr Burrow's Reports, K. B. 
 
 Burr. S. C Burrow's Settlement Cases. 
 
 Burton's Comp An Elementary Compendium of the Law of Real Property. 
 
 By Walter Henry Burton. 7th edit, by Edward Priestly 
 
 Cooper. 1850. 
 Byles on Bills A Treatise on the Law of Bills of Exchange, Promissory 
 
 Notes, Bank Notes, and Cheques. By Sir John B. Byles. 
 
 10th edit, by M. B. Byles. 1870. 
 
 C. B Common Bench Reports, or Manning, Granger and Scott's 
 
 Reports. 
 
 C. B., N. S Common Bench Reports, New Series. 
 
 C. & M Crompton and Meeson's Reports, Ex. 
 
 C. M. & R Crompton, Meeson and Roscoe's Reports, Ex. 
 
 C. & P Carrington and Payne's Reports, N. P. 
 
 C. P. D Law Reports, Common Pleas Division. 
 
 Ca. temp. F Cases in the time of Finch. 
 
 Ca. temp. Holt Cases in the time of Holt, C. J. K. B. 
 
 Ca. temp. H Cases time Hardwicke, K. B. 
 
 Ca. t. K Cases time King, Chancery. 
 
 Ca. t. Talb Cases time Talbot, Chancery. 
 
 Camp. N. P Campbell's Reports, Nisi Prius. 
 
 Car. & P Carrington and Payne's Reports, N. P. 
 
 Cary Cary's Reports, Chancery. 
 
 Carth Carthew's Reports, K. B. 
 
 Ch. D Law Reports, Chancery Division. 
 
 Charley's Real P. Acts . .The Real Property Acts, 1874, 1875 and 1876. By WilHam 
 
 Thomas Charley. 3rd edit. 1876. 
 Chitty on Contracts A Treatise on the Law of Contracts. By Joseph Chitty, jun. 
 
 10th edit, by John A. Russell. 1876. 
 
 Chitty Pr. Chitty's Queen's Bench Practice. 12th edit. 1866. 
 
 CI. & Fin Clark and Finnelly Reports, House of Lords. 
 
 Co Coke's Reports. 
 
 Co - Litt The First Part of the Institutes of the Laws of England, or a 
 
 Commentary upon Littleton. By Sir Edward Coke. With 
 the Notes of Francis Hargrave and Charles Butler. 1 7th 
 edit, by Charles Butler. 1817. 
 
TABLE OF ABBREVIATIONS. ix 
 
 Col. C. C Collyer's Chancery Cases. 
 
 Corap. Clerk The Compleat Clerk, containing the best Forms of all sorts 
 
 of Presidents for Conveyancing and Assurances, &c. 5th 
 
 edit. 1683. 
 Comyns' Dig A Digest of the Laws of England. By Sir John Comyns. 
 
 4th edit, by Samuel Rose. 6 vols. 1800. 
 Cooke on Inclosure The Acts for Facilitating the Inclosure of Commons. By 
 
 George Wingrove Cooke. 4th edit. 1864. 
 
 Coop Cooper (G.), Chancery. 
 
 Coote's Prob. Pr The Common Form Practice of the High Court of Justiee in 
 
 granting Probates and Administrations. By Henry Charles 
 
 Coote. 8th edit. 1878. 
 
 Cowp Cowper's Reports, K. B. 
 
 Cox Cox's Reports, Chancery. 
 
 Cox C. C Cox's Criminal Cases. 
 
 Cox Inst The Institutions of the English Government. By Homersham 
 
 Cox. 1863. 
 
 Cox M; C Cox's Magistrates Cases. 
 
 Cr. & Ph Craig and Phillips, Chancery. 
 
 Cro. Car Croke's Reports, Charles I. 
 
 Cro. Eliz Croke's Reports, Elizabeth. 
 
 Cro. Jac Croke's Reports, James I. 
 
 Cromp. & J Crompton and Jarvis's Reports, Ex. 
 
 Cromp. & M Crompton and Meeson's Reports, Ex. 
 
 Cromp. M. & R Crompton, Meeson and Roscoe's Reports, Ex. 
 
 Cunn Cunningham's Reports, K. B. 
 
 Curt Curteis's Ecclesiastical Reports. 
 
 D. or Dig Justiniani Digesta, sive Pandects. 
 
 D. & L Dowling and Lowndes's Bail Court Reports. 
 
 D. & M Davison and Merivale's Q. B. Reports. 
 
 Dal Dalison's Reports, C. P. 
 
 Daniell Ch. Pr The Practice of the High Court of Chancery. By the late 
 
 Edmund Robert Daniell. 5th edit, by Leonard Field and 
 Edward Clennell Dunn. 1871. 
 
 Dart's V. & P A Treatise on the Law and Practice relating to Vendors and 
 
 Purchasers of Real Estate. 5th edit. By J. Henry Dart 
 and William Barber. 1876. 
 
 Davidson's Conv Davidson's Precedents and Forms in Conveyancing, Vol. I. 
 
 4th edit. 1874. Vol. H- P art r > 4 tn edit. 1877 ; part 2, 
 3rd edit. 1869. Vol. III. 3rd edit. 1873. Vol. IV. 2nd 
 edit. 1864. Vol. V. part 1, 3rd edit. 1876; part 2, 3rd 
 edit. 1878. 
 
 DavisonBuildingSocieties.The Law and Practice of Building and Freehold Land So- 
 cieties. By Henry F. A. Davis. 2nd edit. 1874. 
 
 Day's C. L. P. Acts The Common Law Procedure Acts and other Statutes re- 
 lating to the Practice of the Superior Courts of Common 
 Law. By John C. Day. 4th edit. 1872. 
 
 Dea. & Sw Deane and Swabey's Reports, Probate and Divorce. 
 
 Deac. & Ch Deacon and Chitty, Bankruptcy Reports. 
 
 Dears. C. C .Dearsley's Crown Cases. 
 
 Dears. & B. C. C Dearsley and Bell's Crown Cases. 
 
 De G De Gex's Bankruptcy Reports. 
 
 De G., F. & J De Gex, Fisher and Jones's Reports, Chancery. 
 
 De G. & J De Gex and Jones's Reports, Chancery. 
 
 De G., J. & S De Gex, Jones and Smith's Reports, Chancery. 
 
 De G., M. & G De Gex, Macnaghten and Gordon's Reports, Chancery. 
 
 De G. & Sm De Gex and Smale's Reports, Chancery. 
 
X TABLE OF ABBREVIATIONS. 
 
 Denison & Scott's Pr The Practice and Procedure of the House of Lords in Eng- 
 lish, Scotch and Irish Appeal Cases. By Charles Marsh 
 Denison and Charles Henderson Scott. 1876. 
 
 Dyer Dyer's Reports, K. B. 
 
 Dick Dicken's Reports, Chancery. 
 
 Die ... Tustiniani Digesta [The Digest or Pandects of the Emperor 
 
 s Justinian], recognovit Theodoras Mommsen. Berlin, 1872. 
 
 Dirksen Man. Lat Manuale Latinitatis Fontium Juris Civilis Romanorum, 
 
 auctore Henrico Edwardo Dirksen. Berohni, 1837. 
 
 Doug Douglas's Reports, K. B. 
 
 Dow & C Dow and Clark, House of Lords Cases. 
 
 Dow. & L Dowling and Lowndes, Bail Court Reports. 
 
 Dow. & Ry Dowling and Ryland's K. B. Reports. 
 
 Dow. & R. M. C Dowling and Ryland's Magistrates' Cases. 
 
 Dow. & Ry. N. P Dowling and Ryland's Nisi Prius. 
 
 Dr. & Wal Drury and "Walsh, Chancery Reports, Ireland. 
 
 Dr. & War Drury and Warren, Chancery Reports, Ireland. 
 
 Drew Drewry's Reports, Chancery. 
 
 Drew. & Sm Drewry and Smale's Reports, Chancery. 
 
 Drury Drury 's Reports, Chancery, Ireland. 
 
 Dumf. & E Durnford and East, or Term Reports, K. B. 
 
 E. & A Eccles. and Admiralty Reports. 
 
 E. of Cov Earl of Coventry's Case. 
 
 East East's Reports, K. B. 
 
 El. B. & E Ellis, Blackburn and Ellis's Reports, Q. B. 
 
 El. B. & S Ellis, Best and Smith's Reports, Q. B. 
 
 El. & Bl Ellis and Blackburn's Reports, Q. B. 
 
 El. & El Ellis and Ellis's Reports, Q. B. 
 
 Elphinstone's Conv A Practical Introduction to Conveyancing. By Howard 
 
 Warburton Elphinstone. 1 87 1. 
 
 Eq. Ca. Abr Equity Cases Abridged. 
 
 Eq. Rep Equity Reports. 
 
 Esp Espinasse's Rep. or Digest N. P. 
 
 Ex. D Law Reports, Exchequer Division. 
 
 Exch. Rep Welsby, Hurlstone and Gordon's Reports. 
 
 Fearne's Cont. Rem An Essay on the Learning of Contingent Remainders and 
 
 Executory Devises. By Charles Feame. loth edit, (with 
 the notes, &c. of Charles Butler), by Josiah W. Smith. 
 1844. [Cited by the paging of the 9th edit.] 
 
 Fisher on Mortgage The Law of Mortgage and other Securities upon Property. 
 
 By William Richard Fisher. 3rd edit. 1876. 
 
 Fitz. N. B The Natura Brevium of the most reverend Judge, Mr. 
 
 1 Anthony Fitzherbert. 9th edit. 1 794. 
 
 Fin Finch's Reports, Chancery. 
 
 Free. Chy Freeman's Chancery Reports. 
 
 Freem. K. B Freeman's Reports, K. B. 
 
 Gaius Gaii Institutionum Cbmmentarii IV. 
 
 Gale on Easements A Treatise on the Law of Easements. By Charles James 
 
 Gale. 5th edit, by David Gibbons. 1876. 
 Gibson's Codex Codex Juris Ecclesiastici Anglicani. By Edmund Gibson. 
 
 2nd edit. 1761. 
 
 Giff. Giffard's Reports, Chancery. 
 
 Godb Godbolt's Reports, K. B. 
 
 Godol Godolphin. 
 
TABLE OF ABBREVIATIONS. xi 
 
 Golds Goldsborough's Reports, K. B. 
 
 Gow's N. P. C Gow's Nisi Prius Cases. 
 
 Greaves' Crim. Acts The Criminal Law Consolidation and Amendment Acts of 
 
 the 24 & 25 Vict. By Charles Sprengal Greaves. 2nd 
 
 edit. 1862. 
 Grimm D. R. A Deutsche RechtsalterthiLmer von Jacob Grimm. 2nd edit. 
 
 1854. 
 
 H. & C Hurlstone and Coltman's Reports, Ex. 
 
 H. & N Hurlstone and Norman's Reports, Ex. 
 
 H. Cox Inst The Institutions of the English Government. By Homersham 
 
 Cox. 1863. 
 
 H. L. Rep. Cas Clark and Finnelly's House of Lords' Reports, New Series. ! 
 
 H. & R Harrison and Rutherford's Reports, C. P. 
 
 Haddan's Adm. Jurisd. . . Outlines of the Administrative Jurisdiction of the Couri of 
 
 Chancery. By Thomas Henry Haddan. 1862. 
 
 Hag. Adm Haggard's Admiralty Reports. 
 
 Hag. Con Haggard's Consistory Reports. 
 
 Hag. Ec Haggard's Ecclesiastical Reports. 
 
 Hare Hare's Reports, Chancery. 
 
 Hawkins P. C A Treatise of the Pleas of the Crown. By William Hawkins. 
 
 2nd edit. 1724. 
 
 Hayes Conv An Introduction to Conveyancing. By William Hayes. 5th 
 
 edit. 2 vols. 1840. 
 
 Haynes's Equity Outlines of Equity. By Freeman Oliver Haynes. 2nd edit. 
 
 1865. 
 
 Hem. & M Hemming and Miller, Chancery. 
 
 Hob Hobart's Reports, K. B. 
 
 Hodges on Railways A Treatise on the Law of Railways. By Sir W. Hodges. 
 
 6th edit, by J. M. Lely. 1876. 
 
 Holt Holt's Reports, K. B. 
 
 Holt N. P Holt's Nisi Prius Reports. 
 
 Holtz. Encyc Encyclopadie der Rechtswissenschaft, herausgegeben unter 
 
 Mitwirkung vieler namhafter Rechtsgelehrter von Dr. 
 Franz von Holtzendorff. Leipzig, 1870. 
 
 Hov. Suppl Hovenden's Supplement to Vesey, jun. 
 
 Hunter's Suit An Elementary View of the Proceedings in a Suit in Equity. 
 
 By Sylvester Joseph Hunter. 5th edit, by George Wood- 
 ford Lawrence. 1871. 
 
 Hut Hutton's Reports, C. P. 
 
 Inst Lord Coke's Institutes of the Laws of England. In four 
 
 parts. The First Institute is commonly cited as Coke upon 
 Littleton. 
 
 J. & W Jacob and Walker's Reports, Chancery. 
 
 Jac. or Jacob Jacob's Reports, Chancery. 
 
 Jac. & W Jacob and Walker's Reports, Chancery. 
 
 'A Selection of Precedents forming a System of Convey- 
 ancing, with Dissertations and Practical Notes. By the 
 late H. M. Bythewood and Thomas Jarman. (First 7 
 volumes are the 3rd edition by George Sweet, 1841-2 ; the 
 8th is the second edition; the nth vol. by George Sweet 
 and Andrew Bisset. 1849.) 
 
 Jenk Jenkins's Reports, Ex. 
 
 John Johnson's Reports, Chancery. 
 
 John. & H Johnson and Hemming's Reports, Chancery. 
 
 Johnson on Patents The Patentee's Manual. By James Johnson and J. Henry 
 
 Johnson. 3rd edit. 1866. 
 
 Jones T Jones's Reports, K. B. 
 
 Jones W Jones's Reports, K. B. 
 
 Jarman & Bythewood's < 
 Conv 
 
xii TABLE OF ABBREVIATIONS. 
 
 Jo. & Lat Jones and Latouch's Reports, Chancery, Ireland. 
 
 Jur The Jurist Reports in all the Courts. 
 
 Jur. N. S. Jurist, New Series. 
 
 Just; Inst Justiniani Institutiones [The Institutes of the Emperor 
 
 Justinian], recognovit Paulus Kmeger. Berlin, 1872. 
 
 K. C. R Rep. temp. King, C. Chancery. 
 
 K. & G. R. C Keane and Grant's Registration Cases. 
 
 Kames Karnes's Decisions, Court of Session. 
 
 Kay Kay's Reports, Chancery. 
 
 Kay & J Kay and Johnson's Reports, Chancery. 
 
 Keb Keble's Reports, K. B. 
 
 Keen Keen's Reports, Rolls Court. 
 
 Kel Sir John Kelyng's Reports, K. B. 
 
 Kel. 1,2 Wm. Kelynge's Rep., 2 parts, Chancery. 
 
 Keilw. Keil Keilway's Reports, K. B. 
 
 Klostermann Geist. Eig. . . Das Geistige Eigenthum an Schriften, Kunstwerken und 
 Erfindungen von R. Klostermann. Berlin, 1867. 
 
 L.J Law Journal, Reports in all the Courts. 
 
 L. R., Ad. &Ec Law Reports, Admiralty and Ecclesiastical. 
 
 L. R., C. C. R Law Reports, Crown Cases Reserved. 
 
 L. R., Ch Law Reports, Chancery Appeal Cases. 
 
 L. R., Ch. D Law Reports, Chancery Division. 
 
 L. R., C. P Law Reports, Common Pleas Cases. 
 
 L. R., C. P. D Law Reports, Common Pleas Division. 
 
 L. R., E. & I. App Law Reports, English and Irish Appeal Cases, House of Lords. 
 
 L. R., Eq Law Reports, Equity Cases. 
 
 L. R., Ex Law Reports, Exchequer Cases. 
 
 L. R., Ex. D Law Reports, Exchequer Division. 
 
 L.R., H. L Law Reports, English and Irish Appeal Cases, House ofLords. 
 
 L. R., H. L. Sc Law Reports, Scotch and Divorce Appeal Cases, House of 
 
 Lords. 
 
 £7R.. P. C Law Reports, Privy Council Appeal Cases. ■ 
 
 L. R., P. D Law Reports, Probate Division. 
 
 L. R., P. & D Law Reports, Probate and Divorce. 
 
 L. R., Q. B Law Reports, Queen's Bench Cases. 
 
 L. T The Law Times, Reports in all the Courts. 
 
 Law Mag Law Magazine. 
 
 Leake on Contracts The Elements of the Law of Contracts. By Stephen Martin 
 
 Leake. 1867. 
 
 Leake's Dig. Prop An Elementary Digest of the Law of Property in Land. By 
 
 Stephen Martin Leake. 1874. 
 
 Ld. Raym Lord Raymond's Reports, K. B. 
 
 Lely & Foulkes' Licens- ) The Licensing Acts, 1828, 1869 and 1872-74. By J. M. 
 
 ingActs J Lely and W. D. I. Foulkes. 2nd edit. 1874. 
 
 Leon Leonard's Reports, K. B. 
 
 Lev Levinz's Reports, K. B. 
 
 Lew. C. C Lewin's Crown Cases. 
 
 Ley Ley's Reports, K. B. 
 
 Lib. Ass Liber Assisarum, Year Book, pt. 5. 
 
 Lib. Feud Liber Feudorum, usuaUy printed at the end of the Corpus 
 
 Juris Civilis. 
 
 Lil Lilly's Reports or Entries. 
 
 Lil. Abr Lilly's Practical Register. 
 
 Litt Littleton's Tenures. 
 
 Lofft Lofft's Reports, K. B. 
 
 Lu * Lushington's Admiralty Reports. 
 
 Lut Lutwyche's Reports, C. P. 
 
TABLE OF ABBREVIATIONS. Xlll 
 
 M. & S Maule and Selwyn's Reports, K. B. 
 
 M. & W Meeson and Welsby's Reports, Ex. 
 
 Mac. & G Macnaghten and Gordon's Reports, Chancery. 
 
 Macpherson's Privy C. Pr. The Practice of the Judicial Committee of her Majesty's most 
 
 Honourable Plivy Council. By William Macpherson. 2nd 
 
 edit. 1873. 
 Macq. H. L. Cas Macqueen's Scotch Appeal Cases. 
 
 Macqueen's Husbandand ( Th S. Ri g h ' s and LiaMitie . s «f husband and W . ife - B J I«*» 
 Tfj\l e < Fraser Macqueen. 2nd edit, by Sidney Hastings and John 
 
 ( Davies Davenport. 1872. 
 
 Madd Maddock's Reports, Chancery. 
 
 Madox Bar. Ang Baronia Anglica. An History of Land-Honors and Baronies 
 
 and of Tenure in Capite. By Thomas Madox. 1741. 
 Madox Exch The History and Antiquities of the Exchequer of the Kings 
 
 of England. By Thomas Madox. 2nd edit, [quarto]. 1769: 
 Madox Form. Ang Formulare Anglicanum, or a Collection of Ancient Charters 
 
 and Instruments. By Thomas Madox. 1702. 
 
 Man. & G Manning and Granger's Reports, C. P. 
 
 Man. & R Manning and Ryland's Reports, K. B. 
 
 Manning's Exchequer . . . .The Practice of the Court of Exchequer. Revenue Branch; 
 
 By James Manning. 2nd edit. 1827. 
 Manning's Law of Nations .Commentaries on the Law of Nations. By William Oke 
 
 Manning. New edit, by Sheldon Amos. 1875. 
 Manwood, Forest A Treatise and Discourse of the Lawes of the Forrest. By 
 
 John Manwood. 1598. 
 
 Mar March's Reports, K. B. 
 
 Marsh. Marshall's Reports, C. P. 
 
 A Compendium of the Law of Merchant Shipping. By 
 
 Frederick Philip Maude and Charles Edward Pollock. 
 
 3rd edit. 1864. 
 
 Mau. & Sel Maule and Selwyn's Reports, K. B. 
 
 >r > t> 1 -p (A Treatise on the Law, Privileges, Proceedings and Usage of 
 
 may s ran. rr j Parliament. By Sir John Erskine May. 8th edit. 1879. 
 
 McCle McCleland's Reports, Ex. 
 
 McCle. & Yo McCleland's and Young's Reports, Ex. 
 
 Mee. & W Meeson and Welsby's Reports, Ex. 
 
 Mer. or Meriv Merivale's Reports, Chancery. 
 
 Mitford on Pleadings .... A Treatise on the Pleadings in Suits in the Court of Chancery 
 
 by English Bill. By John Mitford [Lord Redesdale]. 4th 
 
 edit, by George Jeremy. 1827. 
 
 Mo Moore's Reports, K. B. 
 
 Mod. Ca Modem Cases. 
 
 Mod. Rep Modern Reports, K. B. 
 
 Mont. B. C Montagu's Reports, Bankruptcy. 
 
 Mont. & B Montagu and Bligh's Reports, Bankruptcy. 
 
 Mont. & Chit Montagu and Chitty's Reports, Bankruptcy. 
 
 Moo. C. C Moody's Crown Cases. 
 
 Moo. & M Moody and Malkin's Reports, N. P. 
 
 Moo. P. C. C Moore's Privy Council Cases. 
 
 Moo. P. C. C, N. S Moore's Privy Council Cases, New Series. 
 
 Moo. Ind. Ap Moore's India Appeals. 
 
 Moo. & R # Moody and Robinson's Reports, N. P. 
 
 Moo. J. B J. B. Moore's Reports, C. P. 
 
 Moo. & P Moore and Payne's Reports, C. P. 
 
 Moo. & S Moore and Scott's Reports, C. P. 
 
 Moore (C. P.) Moore's Common Pleas Reports. 
 
 Mos Moseley's Reports, Chancery. 
 
 Myl. & Cr Mylne and Craig's Reports, Chancery. 
 
 Myl. & K Mylne and Keen's Reports. 
 
 Maude and Pollock's 
 Merch. Shipping .... 
 
xiv TABLE OF ABBREVIATIONS. 
 
 N. Benl New Benloe, K. B. Reports. 
 
 Nev. & M Neville and Manning's Reports, K. B. 
 
 New Rep New Reports in all the Courts. 
 
 Noy Noy's Reports, K. B. 
 
 N. R New Reports, by Bosanquet and Puller, C. P. 
 
 O. Benl Old Benloe, C. P. 
 
 Orl. Bridgman Orlando Bridgman's Reports, C. P. 
 
 Ortolan Inst Explication Historique des Institutes de l'Empereur Jus- 
 
 tinien. Par M. Ortolan. 8me edit. 1^70. 
 Ow Owen's Reports, K. B. 
 
 p. D Law Reports, Probate Division. 
 
 Pal Palmer's Reports, K. B. 
 
 Paley Summ. Conv Paley's Law and Practice of Summary Convictions by Jus- 
 tices of the Peace. 5th edit, by H. T. J. Macnamara. 1866. 
 
 Par Parker's Reports, Ex. 
 
 Pea Peake's Reports, N. P. 
 
 Peak. Ad. Cas Peake's Additional Cases. 
 
 Peak. N. P. C Peake's Nisi Prius Cases. 
 
 Per. & Dav Perry and Davison's Reports, K. B. 
 
 Perkins's Prof. Book .... A Profitable Book treating of the Laws of England, prin- 
 cipally as they relate to Conveyancing. By John Perkins 
 S originally published in French in 1532]. 15th edit, by R. 
 ". Greening [cited by the sections]. 
 
 Ph Phillips's Reports, Chancery. 
 
 Phillimore's Eccl. Law .... The Ecclesiastical Law of the Church of England. By Sir 
 Robert Phillimore. 2 vols. 1873. 
 
 Plow. Com Plowden's Commentaries or Reports, K. B. 
 
 Pol Pollexfen's Reports, K. B. 
 
 Pollock on Contract Principles of Contract at Law and in Equity. By Frederick 
 
 Pollock. 1876. 
 
 Pollock's County Court ) Pollock's Practice of the County Courts. The 8th edit, by 
 Practice / Henry Nicol and Arthur Wilson. 1876. 
 
 Poph Popham's Reports, K. B. 
 
 Pr. or Price Price's Reports, Exchequer. 
 
 P. W Peere Williams's Reports, Chancery. 
 
 Preston's Conv A Treatise on Conveyancing. By Richard Preston. 3rd edit. 
 
 3 vols. 1821. 
 
 Pritchard Q. S The Jurisdiction, Practice and Procedure of the Quarter Ses- 
 sions. By Thomas Sirrell Pritchard. 1875. 
 
 Q. B Adolphus and Ellis, Queen's Bench Reports, New Series. 
 
 Q. B. D Law Reports, Queen's Bench Division. 
 
 Ray. T Sir Thomas Raymond's Reports, K. B. 
 
 Raym Raymond. 
 
 Reg. Gen Regular Generales [General Rules of Practice under various 
 
 Acts of Parliament applying to the Common Law Courts] : 
 distinguished by the Term and Year in which they were 
 made; e.g., Reg. Gen. M. T. 1869 = Regulse Generales of 
 Michaelmas Term, 1869. 
 
 Rep Coke's Reports. 
 
 Rep. Comm. on Fees Report of Treasury Committee on the various Fees pay- 
 able on Appointments or for other Services. 14 August, 
 1867. 
 
 Rep. Legal Dep. Comm. . . First and Second Reports of the Commissioners appointed to 
 inquire into the Administrative Departments of the Courts 
 of Justice. 1874. 
 
 Robson's Bankruptcy ... .A Treatise on the Law of Bankruptcy. By George Youne 
 Robson. 2nd edit. 1872. 
 
TABLE OF ABBREVIATIONS. XV 
 
 Rogers' Eccl. Law ...... A Practical Arrangement of Ecclesiastical Law. By Francis 
 
 Newman Rogers. 2nd edit. 1849. 
 
 Rose Rose's Reports, Bankruptcy. 
 
 Rules of Court Rules of Court contained in the 1st Schedule to the Judicature 
 
 Act, 1875, as amended by Rules made subsequently at 
 
 various Dates. 
 
 Russ Russell's Reports, Chancery. 
 
 Russ. & M Russell and Mylne's Reports, Chancery. 
 
 Russ. & R Russell and Ryan's Crown Cases. 
 
 Russell on Crimes A Treatise on Crimes and Misdemeanors. By Sir W. O. 
 
 Russell. 5th edit, by Samuel Prentice. 3 vols. 1877. 
 Russell's Merc. Agency . . A Treatise on Mercantile Agency. By John A. Russell. 
 
 2nd edit. 1873. 
 Ry. & M Ryan and Moody, N. P. Reports. 
 
 Saint Bonnet Diet Nouveau Dictionnaire de Droit Franeais, par M. Saint Bonnet. 
 
 2eme tirage. 1872. 
 
 Salt Salkeld's Reports, K. B. 
 
 Saund Saunders's Reports, K. B. 
 
 Savigny vom Beruf Vom Beruf unsrer Zeit fur Gesetzgebung und Rechtswissen- 
 
 schaft : von F. C. von Savigny. 3 edit. 1840. 
 
 Savigny Obi Das Obligationenrecht : von F. C. von Savigny. 2 vols. 
 
 I8SI-3- 
 
 Savigny on Possession ...,Von Savigny's Treatise on Possession. 6th edit. Trans- 
 lated by Sir Erskine Perry. 1848. 
 
 Savigny Syst System des heutigen Romischen Rechts : von F. C. von 
 
 Savigny. 8 vols. 1840-9. And Index by Heuser. 1851. 
 
 Sav Savile's Reports, C. P. 
 
 Sch. & Lef. Schoale and Lefroy's Reports, Chancery, Ireland. 
 
 Schmid Ges Die Gesetze der Angelsachsen, herausgegeben von Dr. R. 
 
 Schmidt. 2 edit. 1858. (gl. = glossary.) 
 
 Scott Scott's Reports, C. P. 
 
 Sco. N. R Scott's New Reports, C. P. 
 
 Scriven's Copyhold .A Treatise on Copyhold, Customary Freehold and Ancient 
 
 Demesne Tenure. By John Scriven. 4th edit. By John 
 
 Stalman. 1846. 
 
 Selden Johannis Seldeni jcti. Opera omnia. 3 vols. 1726. 
 
 Shelford's Probate, Le- ) The Law relatin t0 the p ro t, ate , Legacy and Succession 
 Duties Successlon j Duties. By Leonard Shelford. 2nd edit. 1861. 
 
 Shelford's R. P. Stat Shelford's Real Property Statutes. 8th edit. By Thomas 
 
 H. Carson. 1874. 
 Shepp. Touch .Sheppard's Touchstone of Common Assurances. 7th edit. 
 
 by Richard Preston. 2 vols. 1820- 1. 
 
 ~, „ ... ,1 The Law relating to works of Literature and Art ; embracing 
 
 Shortt on Copyright and the Law of Copyri g htj &c . and the Law of Libel. By 
 
 ■ Llbel ( John Shortt. 1871. 
 
 Show Shower's Reports, K. B. 
 
 Shower's P. C Shower's Parliament Cases. 
 
 Sid Siderfin's Reports, K. B. 
 
 Sim. & St Simons and Stuart's Reports, Chancery. 
 
 Sim. or Sim. N. S Simons, or Simons's New Series, Reports, Chancery. 
 
 Skin Skinner's Reports, K. B. 
 
 Sm. & G Smale and Giffard's Reports, Chancery. 
 
 Smith's Action Smith's Elementary View of the Proceedings in an Action at 
 
 Law. 12th edit., adapted to the Practice of the Supreme 
 
 Court, by W. D. I. Foulkes. 1876. 
 Smith's Action (11) ......An Elementary View of the Proceedings in an Action at 
 
 Law. By John William Smith, nth edit, by Samuel 
 
 Prentice. 1873. 
 
X vi TABLE OF ABBREVIATIONS. 
 
 Smith on Exec. Int. ..... .An Original View of Executory Interests in Real and Per- 
 sonal Property. By Josiah "W. Smith. 1844. 
 Smith on Fines and Re- \ A Succinct View of the Operation of Fines and Recoveries. 
 
 coveries J By Josiah W. Smith. 1846. 
 
 Smith's L. C A Selection of Leading Cases on various Branches of the 
 
 S Law, with notes. By John William Smith. 7th edit, by 
 
 R. H. Collins and R. G. Arbuthnot. 1876. 
 
 Smith's Merc. Law A Compendium of Mercantile Law. By John William Smith. 
 
 7th edit, by George Morley Dowdeswell. 1865. 
 ( A Manual of the Law of Landlord and Tenant. By Horace 
 Smith & Soden's Land- I Sm i t h and Thomas Spooner Soden. Edited by Lewis W. 
 lord & Tenant . . | Cave l87 i. 
 
 Sol. J Solicitors' Journal. 
 
 Spence's Equity The Equitable Jurisdiction of the Court of Chancery. By 
 
 George Spence. 1846-9. 
 
 Stark. N. P Starkie's Reports, N. P. 
 
 Steph. Comm Mr. Serjeant Stephen's New Commentaries on the Laws of 
 
 England. 7th edit, by James Stephen. 1874. 
 Stephen's Crim. Dig A Digest of the Criminal Law (Crimes and Punishments). 
 
 By [Sir] James F. Stephen. 1877. 
 Stephen's Evidence Dig. . .A Digest of the Law of Evidence. By James Fitzjames 
 
 Stephen, Q. C. 1876. 
 
 c x. 1 t j- t? • I The Indian Evidence Act (I. of 1872), with an Introduction 
 Stephen s Indian Jivi- } on the Principles of T udicia i Evidence. By James Fitz- 
 
 dence Act ( James Stephen, Q.C. 1872. 
 
 Stephen Plead. (5) A Treatise on the Principles of Pleading in Civil Actions. 
 
 By Henry John Stephen. 5th edit. 1843. 
 
 Stone's Justice of thePeace.Stone's Practice of Justices of the Peace. 8th edit, by 
 Thomas Sirrell Pritchard. 1877. 
 
 Stra Strange's Repors, K. B. 
 
 Sugden on Powers A Practical Treatise of Powers. By Edward Sugden (Lord 
 
 St. Leonards). 8th edit. 1861. 
 
 Swa. Ad Swabey's Admiralty Reports. 
 
 Sw. & Tr Swabey and Tristram's Reports, Probate and Divorce. 
 
 Swans Swanston's Reports, Chancery. 
 
 T. R Term Reports (Durnford and East), K. B. 
 
 Tapping on the Cost Book.The Readwin Prize Essay on the Cost Book. By Thomas 
 
 Tapping. 2nd edit. 1854. 
 
 Taun Taunton's Reports, C. P. 
 
 Taylor on Med. Jur Principles and Practice of Medical Jurisprudence. By Alfred 
 
 Swaine Taylor, M.D., F.R.S. 2nd edit. 1873. 
 JTeulet Codes .Les Codes de la Republique Francaise. Par A. F. Teulet. 
 
 lime edit. 1873. 
 Thring on Companies .... The Law and Practice of Joint Stock and other Public Com- 
 panies. By Sir Henry Thring. 3rd edit, by G. A. R. 
 
 Fitzgerald. 1875. 
 Tidd Pr The Practice of the Courts of King's Bench and Common 
 
 Pleas in Personal Actions and Ejectment. By William 
 
 Tidd. 9th edit. 1828. 
 
 Toth Tothill's Reports, Chancery. 
 
 Tudor's Char. Trusts The Law of Charitable Trusts. By Owen Davies Tudor. 
 
 2nd edit. 1862. 
 
 Turn Turner's Reports, Chancery. 
 
 Turn. & R Turner and Russell's Reports, Chancery. 
 
 Tyrw Tyrwhitt's Reports, Exchequer. 
 
 Tyrw. & G Tyrwhitt and Granger's Reports, Exchequer. 
 
 Urliii's Office of Trustee ..A Manual of the Law relating to the Office of Trustee 
 By R. Denny Urlin. 3rd edit. 1868. 
 
TABLE OF ABBREVIATIONS. XV11 
 
 Vaugh Vaughan's Reports, C. P. 
 
 Vent Ventris's Reports, K. B. 
 
 Ves Vesey's, Sen., Reports, Chancery. 
 
 Ves. Jun Vesey's, Jun., Reports, Chancery. 
 
 Ves. & Bea Vesey and Beames's Reports, Chancery. 
 
 Vern Vernon's Reports, Chancery. 
 
 Voltaire Diet. Phil Dictionnaire Philosophique par Voltaire. CEuvres com- 
 pletes. 1784. 
 
 W. R "Weekly Reporter in all the Courts. 
 
 Watkins' Copyh A Treatise on Copyholds. By Charles Watkins. 4th edit. 
 
 by Thomas Coventry. 1825. 
 
 Web. P. C Webster's Patent Cases. 
 
 West West's Reports, Chancery, temp. Hardwicke. 
 
 Westlake's Priv. Int. Law. .A Treatise on Private International Law, or the Conflict of 
 Laws. By John Westlake [Q.C.] 1858. 
 
 White & Tudor's L. C. . . A Selection of Leading Cases in Equity, with Notes. By 
 Frederick Thomas White and Owen Davies Tudor. 3rd 
 edit. 1866. 
 
 Wight Wightwicke's Reports, Exchequer. 
 
 Williams on Executors .... A Treatise on the Law of Executors and Administrators. 
 By the Right Honorable Sir Edward Vaughan Williams. 
 6th edit. 1867. 
 
 Williams & Bruce Adm. . .The Jurisdiction and Practice of the High Court of Admi- 
 ralty. By R. G. Williams and Gainsford Bruce. 1869. 
 With Supplement. 1869. 
 
 Williams P. P Principles of the Law of Personal Property. By Joshua 
 
 Williams, nth edit. 1881. 
 
 Williams R. P Principles of the Law of Real Property. By Joshua Wil- 
 liams. 13th edit. 1880. 
 
 Wils. Ch Wilson's Chancery Reports. 
 
 Wils. Ex Wilson's Exchequer Reports. 
 
 Wils Wilson's Reports, K. B. 
 
 Win Winch's Reports, C. B. 
 
 Willes Willes's Reports, K. B. and C. P. 
 
 Wilm Wilmot's Notes and Opinions, K. B. 
 
 Wm. Rob William Robinson's New Admiralty Reports. 
 
 Wms. Saund Notes to Saunders' Reports, by the late Serjeant Wil- 
 liams. Continued to the present time by the Right Hon. 
 Sir Edward Vaughan Williams. 1 87 1 . 
 
 Woodfall's Landlord & \ Woodfall's Law of Landlord and Tenant, nth edit, by 
 Tenant J J. M. Lely. 1877. 
 
 Y. B Year Book. 
 
 Yelv Yelverton's Reports, K. B. 
 
 You Younge's Reports, Exchequer. 
 
 You. & Coll Younge and Collyer's Eq. Exch. 
 
 You. & Coll. C. C Younge and Collyer's Chancery Cases. 
 
 You. & Jer Younge and Jervis's Reports, Exchequer. 
 
 Zeitschriftfurvgl.Rechtsw...Zeitschrift fiir vergleichende Rechtswissenschaft : heraus- 
 gegeben von Bernhoft und Cohn. 1878 et seq. (cited by 
 the volume). 
 
 S. 
 
LAW DICTIONARY. 
 
 A. 
 A. and B. LISTS. See Contributory. 
 
 AB INITIO — from the beginning. See Relation. 
 
 ABANDONMENT. — § i. In the law of marine insurance, where Marine 
 the subject-matter of an insurance is constructively lost to the assured, msurance - 
 he cannot call upon the underwriter to settle with him for a total loss 
 without abandoning — that is, relinquishing to the underwriter whatever 
 may be saved, — because the property still exists in specie, and there is a 
 prospect, however remote, of its arriving at its destination. As to what 
 is a constructive total loss, see Loss, § 3. Abandonment is effected by 
 giving express and unconditional notice to the underwriter within a 
 reasonable time after the assured has received intelligence of the loss, 1 
 and its effect is to transfer the whole property and interest in the thing 
 insured to the underwriter. 2 (See Dereliction ; Non-user.) 
 
 § 2. The Board of Trade have power to authorize the abandonment of Of railway, 
 the whole or part of a railway, so as to release the company from all 
 liability to make or work it. The holders of three-fifths of the shares 
 must consent, and provision is made for the compensation of persons 
 damnified. 3 
 
 § 3. In criminal law, the offence of abandoning or exposing children Of children, 
 under the age of two years is punishable by penal servitude for five 
 years. 4 
 
 ABATEMENT. — I. § 1. To abate a nuisance is to remove it: thus, Of nuisance. 
 if a house or wall is erected by my neighbour so near to mine that it stops 
 my ancient lights, I may enter his land and pull it down ; or, if an ob- 
 struction is unlawfully placed in a highway, I may cut it down or remove 
 it. Abatement is a remedy by act of the party (see Remedy) ; it must be 
 effected peaceably, and (in the case of a private nuisance) without doing 
 more damage than is necessary. 5 
 
 II. § 2. In the law of real property, where a person dies seised of Of land, 
 land, and a stranger who has no right makes entry and gets possession 
 
 1 Smith's Merc. Law, 382 etseq.; Maude ment of Railways Acts, 1850, 1867, 1869. 
 & Pollock, Merch. Shipp. 413 etseq. i Stat. 24 & 25 Vict. c. 100, s. 27 ; 27 
 
 2 Maude & Pollock, 416. & 28 Vict. c. 47. 
 
 3 Hodges on Railways, 433 ; Abandon- 5 Steph. Comra. iii. 244. 
 
 S. B 
 
Abdication 
 
 LAW DICTIONARY. 
 
 Abduction 
 
 Of legacies, 
 &c. 
 
 Charitable 
 legacy. 
 
 Of action. 
 
 Civil. 
 
 of the freehold before the heir or devisee enters, this is called an abate- 
 ment, and the stranger is an abator. 1 The person entitled has, of course, 
 a right of action to recover the land. (See Disseisin ; Deforcement?) 
 
 III. § 3. In the administration of a testator's estate, abatement is where 
 the amount payable to a legatee or appointee has to be reduced because 
 there is not enough to pay all the legatees or appointees of the same 
 class in full, or because the claimant is not entitled to participate in a 
 certain part of the estate. Thus, where the estate of a testator, after 
 payment of his debts and specific legacies, is insufficient to pay all the 
 general legacies, they must abate or be reduced in proportion to their 
 respective amounts. 3 § 4. So, if a testator, whose estate consists both 
 of pure and impure personalty, gives a legacy to a charity without 
 directing it to be paid out of his pure personalty, the legacy must abate 
 in the proportion which the impure personalty bears to the whole resi- 
 duary personal estate — (thus, whole estate, 1,500/. : pure personalty, 
 1,000/. :: amount of legacy, 300/. : amount payable to charity, 200/.); 
 because the charity cannot participate in the impure personalty, owing 
 to the provisions of the Charitable Uses Act, commonly called the 
 Mortmain Act 3 (see those titles). 
 
 IV. § 5. In procedure, abatement is where an action is put an end 
 to and destroyed by the death of one of the parties, or some other 
 event which makes it impossible to continue the action. Thus, an action 
 for assault abates on the death of either plaintiff or defendant, because 
 the right of action, or liability (as the case may be), does not survive 
 to his representatives (see Actio Personalis moritur cum Persona). For- 
 merly almost every change of interest pendente lite caused an abatement, 
 which could be cured in cases where the right of action or liability 
 survived, by Revivor, Scire facias, or Suggestion (q. v.) ; but this is no 
 longer the case. 4 
 
 V. As to pleas in abatement, see Plea, §§ 2, 5. 
 
 Etymology.] — Norman-French : abatement from abatre, to throw down, destroy. 5 
 In treating of abatement in the second sense (supra, § 2), Britton sometimes spells the 
 word enbatre, embatement* which makes it possible that it was a different word from 
 abatement in the other meanings, and signified intrusion rather than destruction of the 
 estate. 
 
 ABDICATION is where a sovereign gives up his throne or govern- 
 ment, either (a) so that the abdication operates in favour of his suc- 
 cessor, or (b) so that the throne is vacant, and a successor has to be 
 appointed. A constructive abdication of the latter kind took place on 
 the Revolution of 1688.' (See Resignation ; Constructive.) 
 
 ABDUCTION.— § 1. In private or civil law, abduction is the act 
 of taking away a man's wife by violence or persuasion. For this injury 
 
 1 Co. Litt. 277 a. 
 
 * Williams on Executors, 1260, 1271 ; 
 Watson's Comp. Eq. 834, 1244. 
 
 3 Watson, 54. 
 
 * Rules of Court, 1. ; Eldridge v. Bur- 
 gess, 7 Ch. D. 41 1 ; Steph. Comm. iii. 591 ; 
 
 Smith's Action (nth ed.), 194. 
 
 5 Britton, 122 b, 155; Co. Litt. 134 b, 
 277 a. 
 
 6 Britton, 161 etseq. 
 
 7 Bl. Comm. i. 211 ; iv. 78. 
 
Abet— Abettor law dictionary. Abeyance 
 
 an action lies, formerly known as an action of trespass de uxore raptd 
 et abductd} 
 
 § 2. In criminal law, abduction is the act of taking away or detaining Criminal. 
 a woman, either against her own will, or (in the case of a woman under 
 the age of twenty-one) against the will of her parents or any other person 
 having the lawful charge of her. The abduction of an unmarried girl 
 under the age of sixteen is a misdemeanor punishable with two years' 
 imprisonment and hard labour; the abduction of any woman by force, 
 with intent to marry or carnally know her, is a felony punishable with 
 fourteen years' penal servitude, as is also the abduction against her own 
 will (or, in the case of a woman under twenty-one, against the will of her 
 parents or guardians) of a woman possessed of property, from motives of 
 lucre, with intent to marry or carnally know her, or to cause her to be 
 married or carnally known by any other person. 2 
 
 § 3. The abduction of a married woman is punishable with two years' Of married 
 imprisonment and fine. 3 woman. 
 
 § 4. The abduction of a voter to prevent him from voting at an election Of voter, 
 is a variety of the offence of undue influence 4 (q. v.). 
 
 ABET— ABETTOR. — To abet is to incite a person to commit a 
 crime ; an abettor is a person who, being present or in the neighbour- 
 hood, incites another to commit a crime, and thus becomes a principal in 
 the second degree. 5 (See Principal.) 
 
 Etymology.] — Old French : a and ieter, to bait or excite an animal. 6 
 
 ABEYANCE. — § 1. A hereditament or other right is said to be in 
 abeyance when it exists only in contemplation of law, because there is no 
 person in esse in whom it is vested, although the law considers it as 
 always potentially existing. 1 
 
 § 2. Thus the fee-simple in the glebe of a church is in perpetual Of glebe, 
 abeyance, for it is not in the patron, nor the ordinary, nor the parson. 
 Again, when the parson of a church dies, the freehold of the glebe is in 
 no one during the time that the parsonage is void, and is therefore said 
 to be in abeyance until another is made parson. 8 
 
 § 3. A dignity is said to be in abeyance when there is for a time no Of dignity, 
 person entitled to it. Thus, where an earl dies, leaving only daughters, 
 the dignity is in abeyance until the king confers it upon one of them. 9 
 
 Etymology.] — Norman-French : abeiance, dbaience, from haer, iayer, to gape, to 
 expect. 10 
 
 1 Steph. Comm. iii. 437. 7 Litt. §§ 645 — 647 ; Bl. Comm. ii. 107; 
 
 2 Stat. 24 & 25 Vict. c. 100, ss. 53 etseq.; Steph. Comm. i. 236 ; Fearne, Cont. Rem. 
 Russell on> Crimes, i. 883 ; Stephen's Crim. 353 et seq. 
 
 Dig. 177. 8 Litt. § 647. As to abeyance of an 
 
 3 Stat. 3 Edw. I, c. 13 ; Steph. Comm. estate tail, see §§ 649 et seq. 
 
 iii. 437. 9 Co. Litt. 165 a ; Bl. ii. 216. 
 
 4 Stat. 17 & 18 Vict. u. 102. 10 Co. Litt. 342 b ; Loysel, Gloss, s. v. ; 
 6 Bl. Comm. iv. 34. Diez, i. 44. 
 
 6 Skeat, Etym. Diet. s. v. 
 
 B2 
 
Abjuration 
 
 LAW DICTIONARY. 
 
 Absolute. 
 
 ABJURATION.— § i. To abjure is to renounce on oath. To abjure 
 the realm was to take a perpetual oath of banishment ; abjuration was 
 "a deportation for ever into a forreine land," and was a civil death, 1 
 Oath. until it was abolished by stat. 21 Jac. 1, c. z8. 2 § 2. The oath of abjura- 
 
 tion, by which members of parliament and public officials were required 
 to abjure or renounce the Pretender, was abolished by stat. 21 & 22 Vict. 
 c. 48, and 29 & 30 Vict. c. 19. 3 (See Oath ; Relegation; Death) 
 
 AB O RTI ON. See Miscarriage. 
 
 ABRIDGMENTS are digests of the law, arranged alphabetically. 
 The oldest are those of Fitzherbert, Brooke and Rolle, the more modern 
 those of Viner, Comyns and Bacon. 4 The term " digest" has now sup- 
 planted that of " abridgment." 
 
 ABROGATE is to annul or repeal an order or rule issued by a 
 subordinate legislative authority; e.g. a rule of practice issued by the 
 judges of a Court. 
 
 ABSCOND. — § 1. To abscond is to leave one's ordinary residence 
 or country to avoid legal proceedings. 5 
 
 § 2. The Absconding Debtors Act, 1870 (33 & 34 Vict. c. 76), is 
 intended to prevent " insolvent debtors departing for foreign countries 
 before the necessary proceedings can be taken to make them bankrupt;" 
 and for that purpose enables a Bankruptcy Court to issue a warrant for 
 the arrest of the debtor before the petition for adjudication has been 
 presented. (See Bankruptcy ; Debtors Act.) 
 
 ABSENCE BEYOND SEAS is absence from the United Kingdom 
 
 Of plaintiff, and the adjacent islands belonging to her Majesty. It was formerly a 
 
 disability in a plaintiff under the Statutes of Limitations entitling him 
 
 to an extension of time after his return ; but this is so no longer. 6 
 
 Of defendant. § 2. In the case of a person against whom a claim exists in respect of a 
 
 simple contract or tort being absent beyond seas at the time of the right 
 
 of action accruing, the plaintiff may bring his action within the time 
 
 limited for that purpose after the defendant's return. 7 
 
 Of appellant. § 3. Absence beyond seas entitles an intending appellant to the House 
 
 of Lords to an extension of the year usually allowed for appealing, but 
 
 not to more than five years in the whole. 8 (See Limitation; Disabilities.) 
 
 ABSOLUTE. — A decree, order, rule, declaration, &c, is said to 
 be absolute either (1) when it is to take effect at once (absolute in the 
 
 1 Co. Litt. 133 a. 
 
 2 Bl. Comm. iv. 133. 
 
 3 Steph. Comm. ii. 338, 401. 
 1 Steph. Comm. i. 51. 
 
 5 Crane v. Jullion, 2 Ch. D. 220 ; Ex 
 parte Gutierrez, 11 Ch. D. 298. 
 
 6 Stat. 19 & 20 Viet. c. 97, s. 10 ; 37 8c 
 
 38 Vict. c. 57, s. 4 ; Shelford, R. P. Sta- 
 tutes. 
 
 7 Stat. 4 & S Anne, t. 3, s. 19 (com- 
 monly cited as 4 Anne, t. 16) ; 19 & 20 
 Vict. c. 97, ss. ir, 12. 
 
 8 Standing Orders as to Appeals, May, 
 
Absolute LAW DICTIONARY. Abstract ; 
 
 first instance) ; or (2) when it was originally made provisional and no one 
 has satisfied the Court that it ought not to take effect. (SeeiW«; Decree; 
 Foreclosure) As to the meaning of " absolute," when applied to an estate, 
 to the acceptance of a bill of exchange, &c, see the various titles. 
 
 ABSTRACT. — § r. Upon a contract being entered into for the sale of Of title, 
 property the title to which is evidenced by deeds or other conveyances, 
 the purchaser (in the absence of a stipulation to the contrary) is entitled to 
 receive from the vendor a document containing an epitome of the deeds, 
 &c, with dates of events bearing on the title, e.g. deaths, marriages, &c, 
 so that the whole document may show the title which the vendor is bound 
 to give. (See Title.) This is called the abstract of title. Its object is 
 to facilitate the examination of the title by the purchaser and his legal 
 advisers, 1 and with this object it is arranged in a peculiar manner. The 
 brief paper on which it is written is divided into columns or margins, 
 and every margin is appropriated to a particular kind of clause in the 
 deeds to be abstracted ; thus the description of the deed and the names 
 of the parties are placed in the first or outer margin : the recitals in the 
 second margin, the testatum in the first margin, the parcels in the 
 fourth margin, the habendum and covenants in the third margin, &c. ; 
 all verbiage is omitted, and certain clauses of frequent occurrence in iden- 
 tical terms ("Common Forms") are represented by abbreviations. § z. The 
 abstract is verified by the production of the original deeds, certified 
 copies of the court rolls, probates of wills, statutory declarations, &c. 2 
 (See Evidence, § 2.) 
 
 § 3. A document from which the abstract is made is said to be In chief, 
 abstracted in chief, in opposition to those documents which are 
 abstracted indirectly by being introduced in the recitals of other 
 abstracted instruments. 3 Thus if an abstract is made from a conveyance 
 from A. to B., in which is recited a conveyance from Z. to A., the con- 
 veyance from A. to B. is said to be abstracted in chief, while that from 
 Z. to A. is not. 
 
 § 4. An abstract is said to be " perfect " if it is as complete as the Perfect, 
 vendor can make it at the time of delivery ; sometimes a " perfect 
 abstract " means one which shows a perfect title, that is, when it shows 
 that the purchaser will acquire the legal and equitable estates free from 
 incumbrances. 1 
 
 § 5. Of course where a person's title to property consists wholly of 
 entries in registers {e.g. a copyright or registered land) no abstract is 
 required. (See Requisitions.) 
 
 § 6. Under the Stamp Acts, when an adjudication stamp is applied for, Foradjudica- 
 the application is generally required to be accompanied by an abstract of tlon stam P- 
 the instrument to be stamped. 6 This abstract is made out on a printed 
 form furnished by the Commissioners. (See Stamp.) 
 
 1 See Bythewood, Conv. i. 75 ; Davids. i Ibid. 281. 
 
 Conv. i. 523. 5 Stamp Act, 1870, s. 20 ; Dowell, 
 
 2 Dart's Vendors and Purchasers, 310. Stamp Acts, 114. 
 
 3 Dart, 299. 
 
A but — A buttals 
 
 -LPJfi! DICTIONARY. 
 
 Acceptance 
 
 ABUT— ABUTTALS.— Land abuts on that by which it is bounded, 
 e.g. on another piece of land belonging to a different owner. In a deed 
 the description of the boundaries of the land conveyed or leased, &c. is 
 sometimes called the abuttals. 1 
 
 Etymology.]— French : dboutir, to adjoin ; d, "to," and hout, "end." 
 
 ACCELERATE.— An estate, interest or other right is said to be 
 accelerated when it comes into possession (or is likely to come into 
 possession) sooner than it otherwise would, by the surrender, merger or 
 destruction of a preceding estate, interest or right. Thus if property 
 belongs to A. for life, remainder to B. for life, remainder to C, and B. 
 surrenders his life interest to C, C.'s estate is accelerated, because it will 
 probably come into possession sooner than it would if B.'s life interest 
 were in existence. 
 
 ACCEPTANCE in its widest sense is the act of assenting to an 
 offer ; in other words, the expression of a unity of intention with the 
 person making the offer. 2 (See Agreement, § 3.) 
 
 II. § 2. In the law of bills of exchange, acceptance is where the drawee 
 of a bill (or in certain cases some other person) writes his signature across 
 the bill, with or without the word " accepted" or other words. 3 (See Pre- 
 sentation, § 1 .) He thereby engages to pay the bill when due. 4 
 
 § 3. An acceptance may be either absolute, \_general,~\ qualified, or special. 
 An absolute acceptance is one without qualification or limitation. A 
 qualified acceptance is either conditional, where the acceptor inserts in the 
 acceptance words which make his liability to pay dependent on the 
 happening of some event, or the like ; or partial, or varying from the tenor 
 of the bill, as where he accepts for part of the amount of the bill, or for 
 a different date. 5 § 4. A special acceptance is one which specifies a 
 particular place for payment of the bill. It may either make the bill 
 payable at a particular place {e.g. a banker's) without more, in which case 
 presentment may be made not only to the banker, but also to the acceptor 
 (whence such an acceptance is said to be a general acceptance as against 
 him) ; or it may make the bill payable at a particular place, and not else- 
 where, in which case presentment can only be made at that place. 6 
 For honour. § 5. When a bill has been dishonoured by non-acceptance or protested 
 
 for better security, any person may accept it for the honour of the drawer 
 or of any of the indorsers, and thereby engage himself to pay the bill at 
 maturity, if it is then presented to the drawee or acceptor and dishonoured. 
 Supra protest. Except where there is a " reference in case of need" (q . v.), it seems that 
 a bill can only be accepted for honour after it has been protested, and 
 hence such an acceptance is sometimes called an acceptance supra 
 
 Bill of ex- 
 change. 
 
 Absolute. 
 General. 
 Qualified. 
 Conditional. 
 
 Partial or 
 varying. 
 
 Special. 
 
 1 For the cases on the old rule, that in 
 an action of trespass the abuttals should 
 be set out, see Fisher's Digest, Trespass, 
 
 13 (a)- 
 
 2 Pollock on Contract, 9 ; Chitty on 
 Contracts, II. 
 
 3 Bills of Exchange Act, 1878, passed 
 in consequence of the decision in Hind- 
 laugh v. Blakey, 3 C. P. D. 136. 
 
 i Byles on Bills, 184. 
 
 6 Byles, 193. 
 
 6 Byles, 194; stat. 1 & 2 Geo. 4, c. 78. 
 
Access law dictionary. Accessory 7 
 
 protest. 1 The acceptor for honour, if he pays the bill, has a right of 
 action against the party for whose honour he accepts, and against all 
 ■whom that party might have sued. 3 
 
 ACCESS. — § 1. The right of access is that possessed by the owner of 
 land adjoining a highway (e. g. a road or river) to go from his land on to 
 the highway and vice versa without obstruction. It is a different right 
 from the public right of passage or navigation on the highway. 3 As to 
 access of light, see Ancient Lights ; Easement. § 2. The term " access " 
 is also used in questions of legitimacy to denote cohabitation or oppor- 
 tunity of sexual intercourse between husband and wife.* (See Bastard.) 
 
 ACCESSION, strictly speaking, is where a thing which belongs 
 to one person becomes the property of someone else, by reason of its 
 becoming added to or incorporated with a thing belonging to the latter. 
 This takes place in the case of alluvion, dereliction, the addition of 
 buildings, plants, &c. to the soil, the erection of fixtures, and where two 
 things are so united as to forfh one, as by the embroidering of cloth, the 
 painting of a picture on canvas, &c. 5 
 
 § 2. Blackstone includes under accession what is more correctly called Specificatio. 
 specificatio, which takes place where a person makes a new thing {species) 
 out of materials belonging to another, and thereby acquires the owner- 
 ship of them, subject to making compensation to the former owner for 
 their original value ; he also includes under accession the acquisition of 
 young animals born in confinement ; ° this is more correctly called 
 accretion (q. v.). 
 
 ACCESSORIUM SEQUITUR PRINCIPALE.— An accessory 
 thing follows the principal thing to which it is accessory. Thus, in 
 certain cases, a fixture becomes the property of the owner of the land 
 to which it is affixed, and crops are the property of him on whose land 
 they grow. (See Accession ; Accretion.) 
 
 ACCESSORY. — § 1. In criminal law, an accessory before the fact Before the 
 is he who, directly or indirectly, counsels, procures or commands any ac ' 
 person to commit any felony or piracy, which is committed in consequence 
 of his counselling, procuring or commandment. 7 An accessory before 
 the fact to any felony is in all respects in the same position as if he were 
 a principal felon. 8 In high treason and misdemeanor, there are no 
 accessories, but all persons concerned therein, if guilty at all, are 
 principals. 9 § 2. An accessory after the fact is a person who, knowing a After the fact. 
 felony to have been committed by another, receives, relieves, comforts or 
 assists the felon, in order to enable him to escape from punishment, or 
 
 1 Byles, 261. ° Bl. Comm. ii. 404 ; Kuntze, Cursus, 
 
 2 Smith's Merc. Law, 239. §§ 508—511. 
 
 8 Bell v. Corporation of Quebec, 5 App. 7 Russell on Crimes, i. 164; Stephen's 
 
 Ca. 84. Dig. Crim. 24. 
 
 4 Steph. Comm. ii. 285. *> Stat. 24 & 25 "Vict. c. 94, ss. I, 2 ; 
 
 5 Just. Inst. ii. I, §§ 20 et ieq.; Hunter's Greaves, Crim. Acts, 18. 
 Roman Law, 128 ; Vangerow, Pandekten, 8 Russell, i. 167, 169. 
 i. 629. 
 
Accident 
 
 LAW DICTIONARY. 
 
 Accord 
 
 the like. 1 Every accessory after the fact to any felony is guilty of a sub- 
 stantive felony, and is in general liable to two years' imprisonment. 2 An 
 accessory after the fact to murder is liable to penal servitude for life. 3 
 At the fact. § 3- Principals in the second degree are sometimes called accessories at 
 the fact. 4 (See Principal, § 4 ; Incite!) 
 
 ACCIDENT. — Formerly, there were many cases of accidental losses 
 which were recognized as giving a claim to relief in equity, but not at 
 law; thus, if a deed or negotiable security were lost, equity would enforce 
 the plaintiff's rights under the document on his giving, if necessary, 
 a proper bond of indemnity to the defendant. 6 A similar jurisdiction 
 was given to the common law courts, so far as relates to negotiable in- 
 struments, by stat. 17 & 18 Vict. c. 125, s. 87. So if an annuity was 
 directed by a will to be secured by an investment in public stock, and an 
 investment was accordingly made, sufficient at the time for the purpose, 
 but afterwards the stock was reduced by act of parliament, so that it 
 became insufficient, equity would decree the deficiency to be made up out 
 of the residuary estate. 6 Since the Judicature Acts, of course, relief is 
 given in such cases in all the divisions of the High Court. 7 
 
 ACCOMMODATION.— As to accommodation bills, see Bill of 
 Exchange. 
 
 Land. § 1. Accommodation land is land acquired for the purpose of being 
 
 added to other land for its improvement ; an accommodation road is one 
 
 "Works. constructed to give access to a particular piece of land. § 2. Where a 
 
 railway company takes land compulsorily, it is bound, under the 68th sec- 
 tion of the Railways Clauses Act, 1845, to construct all gates, bridges, 
 roads, fences, &c. necessary to make good any interruptions caused by the 
 railway passing through the land ; these are called accommodation works. 8 
 
 ACCOMPLICE. See Principal, § 4 ; Accessory. 
 
 ACCORD— ACCORD AND SATISFACTION.— § 1. An accord 
 is an agreement between two or more persons, one of whom has a right 
 of action against the other {e. g. for breach of a contract), that the latter 
 shall render and the former accept something in satisfaction of the right 
 of action, e.g. payment of money, delivery of goods, performance of 
 works or services, &c. If the accord is carried out by the payment, 
 delivery or performance, and acceptance, the arrangement is called an 
 Accord and " accord and satisfaction " (in the old books sometimes an " accord and 
 satisfaction. execution"), 9 and operates as a bar to the right of action. § 2. An 
 accord may also consist of mutual promises to do and accept something 
 in satisfaction of the right of action, but this is more in the nature of a 
 new contract. 10 (See Satisfaction.) 
 
 1 Russell, i. 171 ; Stephen, 27. 
 
 2 Stat. 24 & 25 Vict. c. 94, s. 4, and the 
 other Acts of 186 1. 
 
 3 Stat. 24 & 25 Vict. c. 100, s. 67. 
 
 4 Russell, i. 156. 
 » Snell's Eq. 335. 
 
 6 Ibid. 342. 
 
 • Jud. Act, 1873, s. 24. 
 
 8 Hodges on Railways, 361. 
 
 9 Blake 1 's case, 6 Rep. 43 b. 
 
 10 Leake on Contracts, 465 ; 
 Contracts, 692. 
 
 Chitty on 
 
Account LAW dictionary. Account g 
 
 ACCOUNT. — § i. An account is a list or statement of monetary 
 transactions, such as payments, receipts, purchases, sales, debts, credits, 
 &c, in most cases showing a balance or result of comparison between items 
 of an opposite nature, e.g. receipts and payments. As to the appropriation 
 of payments in a current account, see title Clayton's Case. § 2. When two Account 
 persons, having had monetary transactions together, close the account by stated - 
 agreeing to the balance appearing to be due from one of them, this is 
 called an account stated : it is of importance from the fact that it operates 
 as an admission of liability by the person against whom the balance 
 appears; or, in the language of the common law, "the law implies that 
 he against whom the balance appears has engaged to pay it to the other ;"' 
 and on this implied promise or admission an action may be brought. 
 § 3. When a trustee and cestui que trust agree to an account, it is called 
 a settled account, and the Court will not as a general rule open it — that Settled 
 is, require the whole of it to be investigated — unless there has been some account - 
 concealment or undue advantage taken by the trustee. 2 (See Falsify; 
 Surcharge.) 
 
 § 4. If the account is open, that is, if it has not been stated or agreed Open account, 
 upon by the parties, either of them may bring an action against the 
 other : if it is a mere question of indebtedness under a contract or a quasi- 
 contract, he may sue under the contract for the balance which he alleges 
 to be due to him ; if such an action is brought in one of the Common Law 
 Divisions, and it appears " that the matter in dispute consists wholly or 
 in part of matters of mere account which cannot conveniently be tried in 
 the ordinary way," it may be, and in practice always is, referred to a 
 master of the Court, or official referee, or an arbitrator. 3 
 
 § 5. But where the account is complicated or incidental questions Action (suit) 
 arise,* and one of the parties wishes to have it taken under the direction for account - 
 of the Court, he must bring an action in the Chancery Division, 5 and 
 then the transactions in question are investigated by the chief clerk in 
 chambers, or by an official or special referee, in accordance with the 
 directions of the Court. The "accounting party," or person from whom Accounting 
 the account is required, draws up an account and verifies it by an affidavit, P^ty- 
 with vouchers for the larger payments : the chief clerk embodies the 
 result in his certificate. 6 (See Certificate, § 2 ; Falsify ; Surcharge.) The 
 commonest instances of actions for accounts are actions by one partner Partnership, 
 against another for an account of the partnership dealings ; by a prin- 
 cipal against his agent (but not vice versa)? by a beneficiary against Trustees', 
 executors or trustees for an account of what they have received (or ought 
 
 to have received) and paid in respect of the trust property ; and by a Mortgagees' 
 . . accounts. 
 
 1 Bl. Coram, iii. 164; Chitty on Con- auditors appointed by the Court, see Co. 
 tracts, 599 et seq. Litt. 172 a; 3 Bl. Comm. 164; Broom's 
 
 2 Daniell, Ch. Pr. 576, 1 136. Comm. C. L. 123; Haynes's Equity, 234; 
 
 3 C. L. P. Act, 1854, s. 3 ; Day's C. L. Snell's Eq. 409. It had long been prac- 
 P. Acts, 246 ; cf. Rules of Court, xxxiii., tically obsolete, — a suit in equity being more 
 xl. 10. convenient. As to accounts in admiralty 
 
 4 SeeKimberleyv. Dick, L. R., 13 Eq. 1. actions, see Williams & Bruce, 23. 
 
 5 Judicature Act, 1873, s. 34. As to 6 Hunter's Suit, 109 ; Daniell's Ch. Pr. 
 the old common law action of account, in 1120. 
 
 which the accounts were taken before ' Haynes's Equity, 243. 
 
10 
 
 Account 
 
 LAW DICTIONARY. 
 
 Account 
 
 Executors' 
 accounts. 
 
 Account of 
 profits. 
 
 Receiver's 
 accounts. 
 
 Simple 
 account. 
 
 Income and 
 capital 
 accounts. . 
 
 Account with 
 rests. 
 
 Rests in mort- 
 gagee's 
 account. 
 
 mortgagor against a mortgagee who has entered into possession of the 
 mortgaged property, in order to ascertain what he has received or ought 
 to have received in respect of rents and profits, so that the amount may 
 be set off against the amount payable on the mortgage {infra, §§ 7, 10). 
 
 § 6. Sometimes, however, the taking of an account is merely incidental 
 to the main object of the action. Thus, in an administration action, the 
 executors or trustees have to bring in an account (or periodical accounts 
 from time to time, according to the nature of the trust) of what they have 
 received and paid in respect of the estate. Again, when an action for 
 injuries {e. g. infringement of a patent) is brought in the Chancery Divi- 
 sion, it is frequently necessary to ascertain what profits the defendant has 
 made, or an inquiry what damages the plaintiff has sustained, by the acts 
 complained of, in order that the amount may be paid to the plaintiff as 
 compensation ; and this is done by directing an account of the profits (or 
 an inquiry as to the damages) to be taken in chambers (see Inquiry, § 2). 
 So, when a receiver of real estate or of a manufactory is appointed, he is 
 generally directed to bring in his accounts at half-yearly intervals. 
 Committees in lunacy, also, must bring in and pass their accounts 
 periodically. 1 
 
 § 7. With reference to the manner in which they are taken, accounts 
 are of various kinds. Thus, suppose a mortgagee has entered into pos- 
 session of the property, and has received rents and profits, but not suffi- 
 cient to pay the interest on the debt, and an account is directed, the 
 receipts will be put on one side and the amounts due for interest on 
 the other, and the difference or balance will represent what the mort- 
 gagor has to pay in respect of interest : this is a simple account. § 8. In 
 certain cases, as where trustees have to pay income to a tenant for life, 
 the accounts are of two kinds — income accounts and capital accounts. 
 The former show the receipts, expenses and payments on account of 
 income {e.g. receipt of rents, payment of the expenses of collecting them, 
 and payment of income to the tenant for life) : the latter show the re- 
 ceipts, expenses and payments on account of capital {e.g. purchases and 
 sales of trust property, payments of debts due by the testator, &c). 
 § 9. When an accounting party has received sums which he has or ought 
 to have employed as principal, an account with rests may be directed 
 against him. By taking an account with rests is meant that at yearly, 
 half-yearly or other periods in the account the receipts and payments are 
 balanced, and the balance appears in the remainder of the account with- 
 out reference to the original amounts from which it is made up. The 
 object of making rests varies with the nature of the case. § 10. Thus, 
 suppose the mortgagee, under a mortgage for 10,000/. with interest at five 
 per cent, which has always been punctually paid, enters into possession of 
 the estate, and receives out of the rents and profits the clear annual sum 
 of say 600/., being a yearly surplus of 100/. after providing for the interest : 
 then if an account is directed against him at the suit of the mortgagor 
 after he has been in possession four years, instead of the surplus income 
 
 1 Pope on Lunacy, 182. 
 
Account law dictionary. Account 
 
 being added up and deducted from the principal (10,000/. - 400/. = 9,600/.) 
 as would be the case in a simple account {supra, § 7), the account will 
 be taken with yearly rests -, 1 that is, he will be treated as if he had applied 
 the surplus income each year in reduction of the principal, the effect of 
 which would have been to make the interest in the second year calculated 
 on 9,900/. (10,000/. less 100/.), in the third year on 9,800/., and in the 
 fourth year on 9,700/., and thus to reduce the amount required for interest 
 and increase the balance applicable in reduction of principal by 30/. : so ■ 
 that in this case the mortgagor would have to pay the mortgagee 9,570/. 
 only instead of 9,600/. § n. The nature of rests in an account against Rests in 
 executors or trustees is quite different. Thus, if an executor has neg- accounts!' 
 lected a direction by the testator to accumulate surplus income (see 
 Accumulation), or has employed money belonging to the estate in his own 
 business, he will be charged with interest at four per cent., or if he has em- 
 ployed the money in his own business at five per cent., and an account 
 with yearly or half-yearly rests will generally be directed against him : the 
 effect of this is, that at each rest the balance due by the executor is ascer- 
 tained, and interest is calculated on that balance and added as principal 
 to the balance found at the next rest, and so on. 
 Thus — 
 
 Receipts for first year ;£i>500 
 
 Less proper payments . . . . . . . . . , 500 
 
 Balance ^i>ooo rest. 
 
 Receipts for second year ,£1,700 
 
 Less proper payments . . . . . . . . . . 470 
 
 Balance . . . . . . . . 1,230 
 
 Add interest on preceding balance at 5 per cent. . . 50 
 
 1 1 
 
 ^1,280 rest. 
 
 It will thus be seen that an account with rests against an executor or 
 trustee means that he is charged with compound interest on his net re- 
 ceipts, because, in the case of neglect to follow a direction for accumula- 
 tion, he ought to have received compound interest for the benefit of the 
 estate, and because, in the case of the use of trust funds in his own 
 business, he is presumed to have made profit at the rate of five per cent, 
 compound interest. 2 In the case of rests against a mortgagee, on the 
 contrary, they are directed as a fair mode of appropriating his receipts 
 (see Appropriation, §5), and do not result in charging him with com- 
 pound interest. 3 
 
 1 Fisher on Mortgage, ii. 957 ; Spence's 3 As to rests generally, see Heighington 
 Equity, ii. 809. v. Grant (5 Myl. & C. 258), Turner v. 
 
 2 Compare the somewhat inconsistent Burkinshaw (L. R., 2 Ch. 488), Raphael 
 cases of Vyse v. Foster, L. R., 8 Ch. 309 ; v. Boehm (11 Ves. 92), where a very strict 
 7 H. L. 318; Att.-Gen.y. Alford, 4 D. account with double rests was directed; 
 M. & G. 843 ; Jones v. Foxall, 15 Beav. Williams v. Powell, 15 Beav. 46r. Mr. 
 at p. 392; Walkerv. Woodward,lRuss.loj. Fisher (Mortgage, ii. 959, n. (/), 961, 
 
12 
 
 Account 
 
 LAW DICTIONARY. 
 
 Account 
 
 Legacy and 
 succession 
 duties 
 accounts. 
 
 Accounts of 
 funds in 
 Court. 
 
 Causewise 
 accounts. 
 
 General 
 account. 
 
 Carrying over. 
 
 Separate 
 account. 
 
 Suspense 
 account. 
 
 Funds of the 
 Court of 
 Chancery. 
 
 § iz. Under the Legacy and Succession Duties Acts, executors, adminis- 
 trators, trustees and successors have to render accounts to the Commis- 
 sioners of Inland Revenue, showing the amount or value of property 
 chargeable with duty, the name of the person receiving it, or for whose 
 benefit it is received, and his degree of relationship to the testator, intes- 
 tate or predecessor. Accounts rendered under the Legacy Duty Acts are 
 known as legacy, annuity and residuary accounts, according as the subject 
 matter of duty is a legacy or annuity given by will, or the residue of a 
 testator's or intestate's estate. 1 
 
 § 13. Accounts of the money and securities held by the Bank of England 
 as bankers to the Chancery Division of the High Court are kept by the 
 Paymaster-General at the Chancery Pay Office in two ways. 
 
 § 14. First, as to the "causewise" accounts, viz., those showing the 
 amount of cash and securities belonging to the suitors in each cause 
 or proceeding. 3 When it is desired to pay money into Court, a direction 
 to that effect is usually obtained from the Paymaster-General, and when 
 the money has been paid in an account of it is opened in the books 
 both at the Paymaster-General's Office and at the Bank, entitled according 
 to the short title of the cause or matter in which it has been paid in 
 (thus, "The account of Park v. Robinson?' 1875, P. 55); this is called 
 the "general account" of the cause or matter. When the Court has 
 ascertained that a portion of such a fund belongs to a particular person, 
 but it cannot be immediately paid out to him (as in the case of a 
 minor), the Court usually orders the portion to be transferred or " carried 
 over" from the general account to another account, also kept in the 
 name of the cause, but distinguished by the addition of the name of 
 the person entitled, so as to release it from the general questions in 
 the cause {e.g. "Park v. Robinson, 1875, P. 55, the account of Thomas 
 Park, an infant") ; this is called a "separate account." 3 Transcripts or 
 copies of these accounts may be obtained by the persons interested. 4 
 When the dividends on an account consisting of stock have not been 
 dealt with by the person entitled for many years it is called a " dormant 
 account." 6 When money is paid in without a direction (as sometimes 
 happens in urgent cases) it is placed to the credit of a " Chancer}' suspense 
 account" at the Bank, and, on a direction being obtained, is transferred 
 to the Chancery Pay Office account. 6 
 
 § 15. Secondly, as to the accounts of funds kept without reference to 
 the suitors interested in them. The Bank formerly had the custody of 
 
 seems to consider that the mode of making 
 rests against executors is also applicable to 
 mortgagees. The present writer has not 
 been able to find any authority for this 
 proposition, which seems to involve a con- 
 fusion of two distinct doctrines. 
 
 1 See Hanson on Succession Duties ; 
 Hudson on Legacy and Succession Duties. 
 
 2 The phrase "causewise" probably 
 came into use before the introduction of 
 " matters," or the summary modes of pro- 
 ceeding created by various acts of parlia- 
 
 ment (e.g. The Trustee Relief Act, The 
 Lands Clauses Act, &c), under which 
 large sums are annually paid into Court. 
 
 3 DanieU, Ch. Pr. 1646. See tie Chan- 
 cery Funds Consolidated Rules, Orders, 
 and Forms, 1874, passim. For a variety 
 of titles of accounts, see Weekly Notes, 
 1877, part ii. 106 etseq. 
 
 4 Daniell's Ch. Pr. 1636. 
 
 6 Rep. Ch. Funds Comm. xxxii. 
 6 Ch. Funds Cons. Rules, 1^31. 
 
Accountable Receipt LAW dictionary. Accountant to Crown 13 
 
 several funds which appeared in their books as belonging to the Court 
 of Chancery, and were applied to certain purposes connected with the 
 Court; the principal of these were (1) the "Suitors' Fund," and (2) the 
 "Suitors' Fee Fund" (q. v.), which were by The Courts of Justice (Salaries 
 and Funds) Act, 1869, transferred to the Commissioners for the Reduction 
 of the National Debt, and are now invested by them, part of the profits 
 being devoted to the payment of interest on the " Suitors' Deposit 
 Account" (q.v.); and (3) the "Appeal Deposit Account" (q. v.), which 
 still belongs to the Chancery Division. 
 
 § 16. As to the similar accounts of the funds belonging to the London Bankruptcy 
 Bankruptcy Court and of the funds of the suitors of that Court, also kept Accouuts - 
 by the Bank of England, see the ninth and following sections and the 
 second schedule of The Courts of Justice Salaries and Funds Act, 1869. 
 
 § 17. The post-office savings banks act as the bankers to the County 
 Courts. 
 
 ACCOUNTABLE RECEIPT is an acknowledgment of the receipt 
 of money to be accounted for by the person receiving it, as opposed to 
 an acquittance or receipt for money paid in discharge of a debt. 1 The 
 forgery of an accountable receipt is felony. 2 
 
 ACCOUNTANT-GENERAL of. the Court of Chancery formerly 
 kept the accounts between the suitors of the Court of Chancery and the 
 Bank of England. (See Payment into Court.) " The institution of an 
 Accountant-General goes back to the year 1726, and had its origin 
 in the irregularities practised by some of the Masters of the Court, who 
 speculated with the suitors' moneys and effects, which up to that time 
 had been placed in their custody and in that of the usher of the Court. 
 .... The history of the precautions taken by the Court to prevent 
 any such malversations for the future will be found fully detailed in the 
 report of the Chancery Funds Commission presented to parliament in 
 1864. It is sufficient here to state that an Accountant-General was 
 appointed by the act 12 Geo. 1, c. 32 ;" 3 and that by the act 35 & 36 Vict. 
 c. 44, the duties of his office were transferred to the Paymaster- 
 General (q. v.). There was also an Accountant-General of the Court of 
 Exchequer, and there is an accountant of the Court of Bankruptcy, in 
 whose name the accounts of money belonging to bankrupts' estates and 
 paid into Court are kept.* 
 
 ACCOUNTANT TO THE CROWN generally means a person 
 falling within the purview of the act 13 Eliz. c. 4, which enumerates 
 many officers, such as treasurers, receivers, tellers, collectors, &c, who 
 are accountable to the crown for moneys received by them, and makes 
 their lands liable for their crown debts. The lien of the crown attaches 
 
 1 Clark v. Newsam, i Eich. at p. 138. 3 Second Report of Legal Dep. Comm. 
 
 2 Stat. 24 & 25 Vict. c. 98, s. 23 ; (1874), 51. 
 
 Stephen's Crim. Dig. 276. 4 Second Sched. to 32 & 33 Vict. c. 91. 
 
14 
 
 Accretion 
 
 LAW DICTIONARY. 
 
 Accretion 
 
 from the officer's acceptance of office, so that a sale of his land after that 
 time may be defeated by a subsequent claim of the crown. In the case 
 of an office accepted before ist November, 1865, the acceptance must be 
 registered (formerly in the Common Pleas, now) in the Central Office of 
 the Supreme .Court, otherwise the officer's land is not affected by the 
 lien, 1 and no acceptance of office after that date shall affect land as to 
 a bond fide purchaser or mortgagee, unless a writ of extent or other 
 process of execution founded on the acceptance of office has been pre- 
 viously issued and registered. 2 (See Judgment ; Extent) 
 
 Accrual of 
 right. 
 
 Of property. 
 
 Accretion. 
 
 Accruer. 
 
 ACCRETION— ACCRUAL— ACCRUE— ACCRUER.— I. A 
 
 right is said to accrue when it vests in a person, especially when it does 
 so gradually or without his active intervention, e.g. by lapse of time, or by 
 the determination of a preceding right ; 3 thus the Statute of Limitations 
 (3 & 4 Will. 4, c. 27) contains provisions for ascertaining when the right 
 to be barred is deemed to have first accrued, i.e. vested in the person 
 entitled to exercise it; so by the Apportionment Act, 1870, periodical 
 payments in the nature of income are to be considered as accruing {i.e. 
 the right to the payment is to be considered as arising) from day to day 
 (see Apportionment). Hence a debt owing is opposed to a debt accruing — 
 the former being a debt payable immediately, the latter a debt payable at 
 a future time (debitum in prasenti solvendum in futuro). The fact of a 
 right accruing is called its accrual. 
 
 II. When a fund, share, estate, security or other property is increased 
 by additions which take place ipso jure or ipso facto, the additions are 
 said to accrue either to the original fund, or to the person entitled to it. 
 The most important cases of this are (1) when property is increased or 
 added to by an act of nature — as in the case of the young of animals, 
 which belong to the owners of the parents, and in the case of alluvion 
 (q. v.) and dereliction (q. v.) ; (2) where property is increased or added to 
 by the act of the party, but not by a mode of acquisition recognized by 
 law, as in the case of encroachment (q. v.) by a tenant ; (3) when a fund 
 is increased by additions which arise from the rule accessorium sequitur 
 principale (q. v.), this is called accretion, and the additions themselves are 
 called accretions — e. g. the additions to a charitable fund from the increase 
 in the rents of the land of which it originally consisted, the savings of a 
 married woman's separate estate, &c. ; 4 (4) when property is divisible 
 among several persons so that on a certain event happening one of them 
 is excluded from participation and the others take the whole, the share 
 of that one is said to accrue to the others, and the fact of its doing so is 
 called its accruer — thus, if 300/. is given, by will to three minors, A., B. 
 and O, with a proviso that if anyone of them dies under twenty-one his 
 share shall go to the survivors ; on A.'s death under age, his share accrues 
 
 1 Stat. 2 & 3 Vict. u. 11, =. 8; Shel- 
 ford, R. P. Stat. 605. 
 
 2 Crown Suits Act, 1865. 
 
 3 Tacite ei deficientium partes etiam in- 
 
 vito adcrescunt. Dig. xxix. 2 fr. 53, § 1. 
 
 * Att.-Gen. v. Ma.rch.ant, L. R., 3 Eq. 
 424 ; Duncan v. Cashim, L. R., 10 C. P. 
 554; Watson's Comp. Eq. 643. 
 
Accumulation LAW DICTIONARY. Acknowledgment 15 
 
 to B. and C, who (if they both attain twenty-one) will thus take 150/. each, 
 of which 1 00/. is their original and 50/. their accrued share; the clause con- 
 taining this proviso is called a clause of accruer. The operation of the Clause of 
 clause does not extend to the accrued shares unless that intention appears, accruel '• 
 so that if B. also died under age, C. would only take B.'s original share 
 of 100/. in addition to his own 150/., and the testator would die intestate 
 as to B.'s accrued share of 50/. This result is always guarded against in 
 well-drawn instruments by making the clause expressly extend to accrued 
 shares. 1 (See Jus Accrescendi ; Survivorship ; Accession ; Alluvion.) 
 
 Etymology.] — Latin accrescere, to grow to, French accrues, waste lands added to 
 a forest by the trees encroaching on it. 2 
 
 ACCUMULATION is the putting by of dividends, rents or other 
 income and converting it into principal by investing it and again capi- 
 talizing the income arising from the new principal, and so on. The 
 capital and accrued income thus formed is called the accumulations. 
 
 § 2. The accumulation clause in a will or settlement directs the trustees Accumula- 
 te accumulate the surplus income of the settled property during the tlon dause - 
 minority of the children after providing for their maintenance (q. v.), and 
 directs the accumulations to follow the destination of the fund out of 
 which they have arisen. 3 
 
 § 3. The Thellusson Act (39 & 40 Geo. 3, c. 98) forbids the accumu- Thellusson 
 lation of income for any longer term than one of the following periods, 
 viz. : (a) the life of the settlor, or (b) twenty-one years from the death of 
 the settlor, or (c) during the minority of any person living or in ventre sa 
 mere at the death of the settlor, or (d) during the minority of any person 
 who under the settlement or will would for the time being, if of full age, 
 be entitled to the income directed to be accumulated. A direction to 
 accumulate income beyond any of these periods is void as to the excess 
 only ; unless, of course, it exceeds the rule against perpetuities (q. v.), in 
 which case it is void altogether. 4 (See Cumulative^) 
 
 ACKNOWLEDGMENT.-^ 1. By the various Statutes of Limita- Acknowledg- 
 tions, a 'written and signed acknowledgment of the title, debt, or right to ^"statutes 
 which the statute would otherwise be a bar, is sufficient to prevent the ofLimita- 
 statute from applying. 6 What is an acknowledgment within these nSf 
 statutes is a question of construction to be determined by the Court in 
 each case ; there are, however, some general rules on the subject : thus, 
 an acknowledgment under stat. 3 & 4 Will. 4, c. 42 (as to specialties), 
 need not amount to a promise to pay, while, under stat. 9 Geo. 4, c. 14, 
 the acknowledgment must contain, either expressly or impliedly, not only 
 an admission of the debt, but also a promise to pay accordingly; these 
 words in a letter : " I wish I could -comply with your request, for I am 
 
 1 Jarman, Wills, ii. 661 ; Watson, Comp. 4 Williams, R. P. 320. 
 
 Eq. ii. 1131. 5 Stat. 3 & 4 Will. 4, c. 27, ss. 14, 28, 
 
 2 Loysel, Inst. Cont. § 248. 40, 42 ; Real Property Limitation Act, 
 
 3 Elphinstone's Conv. 311; Watson's 1874; 3 & 4 Will. 4, c. 42, s. 5 ; 9 Geo. 4, 
 Comp. 585. <;• H, s. 1 ; 19 & 20 Vict. c. 97, s, 13. 
 
A cknowledgmeht 
 
 LAW DICTIONARY. 
 
 Acquiescence 
 
 ment by mar- 
 ried woman. 
 
 very wretched on account of your account not being paid ; there is a 
 prospect of an abundant harvest, which must turn into a goodly sum, and 
 considerably reduce your account ; if it does not, the concern must be 
 broken up to meet it ; my hope is, that out of the present harvest you 
 will be paid " — were held to be a sufficient acknowledgment to revive a 
 debt under the stat. 9 Geo. 4, c. 14. 1 In the case of the statutes relating 
 to debts, part payment on account of principal or interest amounts to an 
 acknowledgment, so as to prevent the statute from running. 
 Acknowledg- § 2. By the Fines and Recoveries Act {q. v.), a married woman may 
 dispose of any lands, or any interest in land which may belong to her, as 
 effectually as if she were a feme sole, provided that her husband concur in 
 the conveyance or other deed; and provided that the deed "be produced 
 and acknowledged by her as her act and deed before a judge of one of the 
 Superior Courts at Westminster, or a master in Chancery, 2 or before two 
 of the perpetual commissioners, or two special commissioners," appointed 
 under the act. 3 Before taking the acknowledgment, the judge or com- 
 missioners must examine the married woman apart from her husband, as 
 to her knowledge of the deed, and whether she freely and voluntarily 
 consents to the same ; and the judge or commissioners then sign a 
 memorandum to that effect, endorsed or written on the deed, and also a 
 certificate of the taking of the acknowledgment, written on a separate 
 piece of parchment. The certificate, verified by affidavit, is then filed 
 in the Central Office of the Supreme Court. 4 Dispositions by married 
 women of reversionary interests in personal estate must be acknowledged 
 in the same way." (See Fine, §§ 9, 1 1 ; Reversionary ; Survivorship!) 
 
 § 3. If a will is not signed in the presence of the witnesses, the testator 
 must acknowledge his signature in their presence. 6 It is not necessary 
 that he should say in express words to the witnesses, " That is my signa- 
 ture ;" it is sufficient if it clearly appears that the signature was existent 
 in the will when it was produced to the witnesses, and was seen by them 
 when they did, at the testator's request, subscribe the will. 7 
 
 § 4. If a mortgagee of copyholds by conditional surrender has not been 
 admitted, and the mortgage is paid off, the practice is to enter on the 
 court rolls a memorandum called an acknowledgment of satisfaction 
 stating that the debt has been paid. This is treated as sufficient evidence 
 of the discharge of the mortgage and as vacating the surrender. 8 
 
 Acknowledg 
 ment of will. 
 
 Acknowledg- 
 ment of satis- 
 faction. 
 
 ACQUIESCENCE is where a person who knows that he is entitled 
 to impeach a transaction or enforce a right neglects to do so for such 
 a length of time that under the circumstances of the case the other 
 party may fairly infer that he has waived or abandoned his right. Thus, 
 
 1 Bird v. Gammon, 3 Bing., N. C. 833 ; 
 Chitty on Contracts, 754; 5 Scott, 213, 
 cited Shelford, R. P. Stat. 277. 
 
 2 The office of master in Chancery is. 
 now abolished. See "Master," § 3. 
 
 3 3 & 4 Will. 4, c. 74, ss. 77, 79. 
 
 4 Sects. 80, 84, 85 ; Williams on Seisin, 
 III et seq.; Shelford's R. P. Stat. 368 et 
 
 seq. ; Judicature (Officers) Act, 1879 ; 
 Rules of Court, December, 1879. 
 
 6 Stat. 20 & 21 Vict. c. 5; Shelford, 
 4°5- 
 
 6 Wills Act, s. 9. 
 
 7 Keigwin v. Keigwin, 3 Curt. 607, 
 cited Shelford, R. P. Stat. ; Jarman, Wills. 
 
 8 Davids. Conv. ii. (2) 667, 1332. 
 
■Acquit LAW DICTIONARY. Act of Bankruptcy 17 
 
 if A. is induced by fraud to enter into a contract, and, having discovered 
 the fact, neglects to take proceedings to have it set aside for a great 
 number of years, he is said to have acquiesced in, and thus affirmed, the 
 contract. Full knowledge of the facts is essential, and this constitutes 
 the distinction between bar by acquiescence and bar by limitation, Or 
 mere lapse of time. 1 (See Estoppel; Laches; Limitation.) 
 
 ACQUIT— ACQUITTAL — § 1. Acquit "signifieth in law to dis- 
 charge or keepe in quiet," 2 and is used in the old books in the sense of a 
 release or discharge generally; but it is now chiefly applied to the case of accused; 
 of an accused person who is acquitted or discharged of a felony by judg- 
 ment, so that he can never again be tried on the same charge (see 
 Auterfois Acquit), as where the jury bring in a verdict of not guilty. 3 
 
 § 2. In the old books the term is also used in a special sense to denote by mesne lord. 
 an obligation by a lord to his tenant. In some cases, where land was 
 held of a mesne lord, he was bound to protect his tenant from any claims 
 by lords paramount arising out of the services due to them by the mesne 
 lord ; this was called acquittal. 4 (See Homage, § 4.) 
 
 ACQUITTANCE in the old books is a receipt given in acknow- 
 ledgment of the payment of money, 5 especially an acquittance or receipt 
 under seal. 6 (See Accountable Receipt.) 
 
 ACT generally means something voluntarily done by a person : thus, 
 where a person executes a deed he declares that he delivers it as his 
 " act and deed," the two words being synonymous. An " act in the Act in the 
 law" is an operation or effect produced by the law independently of law - 
 the acts or wishes of the parties : thus, a descent is an act in the law. 7 
 (See Overt Act.) 
 
 ACT OF BANKRUPTCY.— § 1. "It is one of the principal objects 
 of the bankrupt law, when a person becomes insolvent, to seize his 
 remaining property and distribute it among his creditors, instead of allow- 
 ing him to squander it, or to appropriate it in paying particular creditors 
 to the prejudice of others. It is therefore of great importance that an 
 insolvent debtor should be brought under the operation of the law as soon 
 as possible after his affairs become embarrassed, and for this reason certain 
 acts have been prescribed as indicia of insolvency. These acts are called 
 acts of bankruptcy." 8 
 
 Acts of bankruptcy may be divided into three classes : 9 — I. § 2. Those Relating to 
 which relate to the person of the debtor, and are evidence of an intention P erson ; 
 to deprive his creditors of their remedy against his person, as when he 
 goes or remains abroad, or otherwise conceals or absents himself with the 
 
 1 Stat. 3 & 4 Will. 4, c. 27, s. 27 ; Shel- 4 Co. Litt. ioo a. 
 ford, R. P. Stat. 210. See Pollock on 5 Noy, Maxims, 95. 
 
 Contract, 495; Wright v. Vanderplank, 6 Co. Litt. 373 a; Nichol's case, 5 Rep. 
 
 8 De G. M. & G. 133 ; Evans v. Smallcombe, 43 a. 
 
 L. R., 3 H. L. 256. ' Co. Litt. 149 a. 
 
 2 Co. Litt. 100 a. 8 Robson's Bankruptcy, 102. 
 
 3 Ibid. ; Archbold, Crim. Ev. 184. 9 Ibid. 103. 
 
 S. C 
 
i8 
 
 to property; 
 
 Act of Bankruptcy law dictionary. 
 
 Act of God 
 
 to circum- 
 stances. 
 
 Traders and 
 non-traders. 
 
 Insurance. 
 
 Contract. 
 
 intention or the effect of delaying or defeating his creditors (see Keeping 
 House). II. § 3. Those which relate to dispositions of the debtor's pro- 
 perty, and are evidence of an intention to deprive his creditors of their 
 remedy against his estate ; these are of two kinds :— 1st. Dispositions of 
 the whole or part of the debtor's property (not being bona fide assignments 
 for value), by which the property is removed from the reach of his credi- 
 tors, and the debtor is rendered insolvent. 2nd. Acts of fraudulent pre- 
 ference, that is, acts done with a view of giving one creditor a preference 
 over the others (such as conveyances, mortgages, payments, contracts, 
 judgments, &c. voluntarily entered into or suffered in contemplation of 
 bankruptcy), provided the debtor becomes bankrupt within a certain time 
 after the fraudulent act. III. § 4. Those which relate to the state of the 
 debtor's circumstances and are evidence of his insolvency, but not neces- 
 sarily of an intention to defeat or delay his creditors, such as a declaration 
 by the debtor of inability to pay his debts, an execution levied against him 
 for a sum not less than 50/., or non-compliance with a debtor's summons 
 requiring him to pay a sum not less than 50/. (See Debtor's Summons.) 
 
 § 5. Acts of bankruptcy may also be divided, with reference to the 
 status of the person committing them, into — those confined to traders 
 (e.g. departing from dwelling-house, outlawry, and execution levied for 
 not less than 50/.), and those applying to all debtors, whether traders or 
 non-traders. 1 
 
 § 6. An act of bankruptcy forms the foundation of a petition for adjudi- 
 cation. (See Bankruptcy, §§ 2 et seq.) 
 
 ACT OF GOD. — § 1. An act of God is an event which could not 
 happen by the intervention of man ; such as a death, storm, earthquake, 
 extraordinary flood, &c. a Thus, a tenancy in tail after possibility of issue 
 extinct is said to be created by the act of God — namely, the death of the 
 husband or wife of the tenant in tail — for it cannot be created by the act 
 of man, e.g. a divorce. 3 At the present day, the phrase is chiefly used in 
 the following branches of law. 
 
 § 2. In the law of insurance, an insurer is not liable to indemnify the 
 assured against loss occasioned by an act of God ; and a common carrier, 
 being an insurer, is similarly privileged. 4 
 
 § 3. In the law of contracts, where the performance of a contract 
 becomes impossible through an act of God, the promisor is in many cases 
 discharged from liability : thus, if a lessee of land covenants to leave a 
 wood in as good a plight at the end of the lease as it was at the begin- 
 ning, and afterwards the trees are blown down by tempest, he is discharged 
 of his covenant. 5 Whether an event is an act of God for the purposes of 
 a particular contract depends on the nature of the contract and the event, 
 especially on the question whether it can be foreseen and provided against 
 for the purposes of the contract. 
 
 1 Bankruptcy Act, 1869, s. 6. 
 
 2 Forward v. Pittard, I T. R. 27 ; Oak- 
 ley v. Portsmouth, &c. Co., 11 Exch. 618. 
 
 3 Co. Litt. 28 a. 
 
 4 Ma\ide & Pollock, Merch. Shipp. 259 ; 
 
 Nugent v. Smith, 1 C. P. D. at p. 435. 
 
 6 Shelley's case, I Rep. at p. 98 a ; cited 
 and explained in Baily v. De Cresbienv, 
 L. R., 4 Q. B. at p. 185. 
 
 6 See Pollock on Contract, 335. 
 
Act of God LAW dictionary. Ad of Parliament 19 
 
 § 4. In the law of torts, a person is frequently discharged from the Torts. 
 consequences of an event which has taken place indirectly through his 
 agency, if it has been directly caused by an act of God. Thus, where a 
 person made a reservoir by damming up a stream, and an extraordinary 
 rainfall caused the water to burst the embankment and flood the adjoining 
 land, the owner of which brought an action for damages against the owner 
 of the reservoir, it was held that the action was not maintainable, because 
 the injury was caused by the act of God. 1 
 
 § 5. "Act of God" is a classical expression : "vis major, quam Graeci 
 Seou /3/av appellant." 3 (See Vis Major.) 
 
 ACT OF PARLIAMENT is an enactment of the legislature, or 
 a formal declaration of provisions having the force of law, made by 
 the sovereign with the advice and consent of the lords and commons in 
 parliament. 3 Sometimes an act begins with a preamble stating its occa- 
 sion or purpose. 4 § 2. Acts are either public or private. Public acts (also Public. 
 called statutes, or general statutes, or statutes at large) are those which 
 relate to the community generally, or to sections of the community ; all 
 public acts are judicially noticed by the judges (see Notice, § 1). Some 
 public acts (such as the Mutiny [Army Discipline] and Appropriation 
 Acts) are enacted every year, and are hence called annual acts. Others 
 are passed to be in force for a limited time (temporary acts), and are fre- 
 quently kept in force from time to time by continuance acts. 5 Other 
 varieties of acts are referred to under the title "Statute." § 3. Private private, 
 (formerly called special 6 ) acts are those which relate either to particular 
 persons (personal acts) or to particular places (local acts). Personal acts Personal ; 
 chiefly relate to the naturalization, names, estates or divorces of particular 
 persons ; local acts relate principally to railways, bridges, docks, boroughs, local. 
 &c, and are contained partly in special acts and partly in consolidation 
 or clauses acts {infra, § 5). § 4. Private acts are also divisible into 
 (a) those which enact that they are to be judicially noticed ; (b) those of 
 which copies printed by the Queen's printers may be given in evidence ; 
 (c) those not so printed. 7 A private act not judicially noticed does not 
 form part of the law of England, and therefore must be pleaded in any 
 proceeding in which it is relied on as founding a claim or defence. (See 
 Bill, § 2.) 
 
 § 5. There is also a class of acts which may be placed midway between Special and 
 public and private acts, namely, those which contain clauses required to be £ eneral acts - 
 inserted in private acts of frequent occurrence. For the sake of uniformity, 
 and to avoid the necessity of repeating such clauses in each private act, 
 the clauses are set out in a general act, so that when a private or special 
 act relating to the matter in question is passed, the general act is incor- 
 
 1 Nichols v. Marsland, L. R., 10 Ex. 4 H. Cox, Instit. 19. 
 255; 2 Ex. D. I. Compare Rylands v. 6 H. Cox, 21. 
 Fletcher, L. R., 3 H. L. 330; Underhill e Co. Litt. 126a. 
 
 on Torts, 13; Nitroj>hos$hate, &c. Co. v. 7 H. Cox, 19; see stat. 13 & 14 "Vict. 
 
 L. &• St. C. Docks Co., 9 Ch. D. 503. c. 21, containing provisions as to the form 
 
 2 Pollock, 335, n. ; Dig. xix. 2, 25, fr. 6. and construction of acts of parliament. 
 
 3 Co. Eitt. 126a; Bl. Comm. i. 85. 
 
 C2 
 
20 Act of State LAW DICTIONARY. Actio Personalis, &c. 
 
 Lands Clauses porated with it. Thus the Lands Clauses Consolidation Acts, 1845, i860 
 Acts - and 1869, contain the " provisions usually inserted'in acts authorizing the 
 
 taking of lands for undertakings of a public nature," such as provisions 
 for ascertaining the value of land purchased under compulsory powers, 
 for payment of the purchase-money into Court where the parties entitled 
 to it are under disability, &c. Other acts of a similar nature are the 
 Companies Clauses Acts, 1845 and 1863, the Railways Clauses Acts, 1845 
 and 1863, the Commissioners Clauses Act, 1845, the Harbours, Docks 
 and Piers Clauses Act, 1847. 1 
 
 ACT OF STATE is an act done by the sovereign power of a country, 
 or by its delegate, within the limits of the power vested in him. An act of 
 state cannot be questioned or made the subject of legal proceedings in a 
 Court of law. Thus where a foreign sovereign contracted certain debts, 
 and his territory was afterwards annexed by the British government, it was 
 held that the annexation having been an act of state, the creditors could 
 not make any claim in respect of the revenue of the annexed territory. 3 
 
 ACT ON PETITION is a convenient and summary mode of pro- 
 ceeding in divorce, probate and ecclesiastical matters, often resorted to 
 for the adjudication of questions which are too important to be brought 
 before the Court on motion merely, and yet not so important as to 
 necessitate the pleadings and other steps involved in a regular action or 
 
 Divorce. suit. § 2. Thus in divorce suits, the question whether the Court has 
 
 jurisdiction in the matter is generally determined by an act on petition. 3 
 
 Probate. In probate matters, questions of propriety of conduct, personal qualifi- 
 
 cations, jurisdiction, &c, are generally brought before the Court by act 
 on petition. 4 
 
 §' 3. The proceedings commence with the petition, setting forth the 
 facts relied on, and the relief prayed, to which the defendant files his 
 answer, 6 and the plaintiff if necessary replies, and so on until the parties 
 are at issue, when the petition is set down for hearing as a cause. 
 
 ACTIO PERSONALIS MORITUR CUM PERSONA— "A 
 
 personal action dies with the person"— a maxim meaning that rights of 
 action arising out of torts, are destroyed by the death of either the injured 
 or the injuring person. This was the universal rule at common law, and 
 is still the rule in many cases. Thus an action for slander, battery or the 
 like, cannot be brought after the death of either party. But an action 
 may be maintained by the executors or administrators of a deceased 
 person, in respect of an injury committed to his real or personal property 
 during his lifetime, and, conversely, an action lies against the executors 
 
 1 Hodges on Railways, 24; Steph. 3 Browne on Divorce, 238 ; Divorce Rules 
 
 Coram, hi. 9 (1866), 56 et seq. ; Phillimore, Eccl. Law, 
 
 * Ijoss v. Secretary of State for India, 1259. 
 
 L. R., 19 Eq. 509; Mostyn v. Fabrigas, * Browne's Probate Pr. 294- Probate 
 
 Smith's L. C. i. 658; Phillip v. Eyre, Rules (1862), C. B., 64 et seq. 
 
 L. R„ 6 Q. B. 1 ; Musgra-ve v. Pulido, » In ecclesiastical practice this is called 
 
 5 App. Ca. 102, "writing to the act ;" Phill. 1259. 
 
Actio Personalis, &c. LAW DICTIONARY. Action 21 
 
 or administrators of a deceased person, for any wrong committed by him 
 in respect of his real or personal property — provided that in each case 
 the action is brought within a certain time. 1 Further, a remedy is given 
 to the near relatives of a person who has been killed by the wrongful act, 
 neglect or default of another 2 (see Campbell's Act). The result, therefore, 
 is that (a) in the event of the death of the injured person, the maxim only 
 applies in cases of torts to the reputation and torts to the person not 
 resulting in death, and that in all other cases the right of action survives 
 to the representatives of the injured person ; (b) in the event of the death 
 of the tortfeasor, the maxim applies in all cases of injury to the person or 
 reputation, so that the right of action only survives against the repre- 
 sentatives of a tortfeasor in cases of injury to property. (See Abatement, 
 § 5 ; Personal.) 
 
 ACTION. — § 1. An action is a civil proceeding taken in a Court of 
 law to enforce a right. (See Cause of Action.) 
 
 I. § 2. In the High Court of Justice, an action is a proceeding com- Actions in the 
 menced by writ of summons, as opposed to " matters," which are Hi S h Court - 
 commenced by motion, petition, summons, or some similar mode, and 
 the ordinary steps in it are as follows : — The first thing is to bring the 
 parties before the Court. For this purpose the writ of summons is 
 prepared, issued and served by the plaintiff on the defendant, and the 
 defendant appears. The next thing is to ascertain what is the question 
 or dispute between the parties : this is done (unless the parties agree to 
 state a special case) by the pleadings : the plaintiff prepares and delivers 
 his statement of claim, the defendant his demurrer or statement of defence, 
 and if necessary his counter-claim or notice to third parties, as the case 
 may be : the plaintiff delivers his reply or demurrer, and so on. 
 
 § 3. As soon as the parties are at issue, the next thing is to ascertain 
 which of them is in the right ; if the question is one of law raised by de- 
 murrer, it is argued before the Court, and judgment given for the party in 
 the right: if it is a question of fact, it has to be tried or referred, and when 
 the facts of the case have been ascertained from the evidence adduced on 
 the trial or reference (see Verdict ; Report), the judgment of the Court is 
 obtained, deciding what are the rights and liabilities of the parties on the 
 facts as found ; the costs are taxed, and the judgment is enforced if 
 necessary by execution. 3 
 
 § 4. In addition to these usual steps, almost every action involves a 
 number of miscellaneous proceedings, such as summonses, motions, 
 injunctions, discovery and inspection, accounts and inquiries, commis- 
 sions, new trials, appeals, &c. ; while many actions come to an end before 
 trial by discontinuance or dismissal, or by the default of one of the parties, 
 resulting in a judgment for the other. 
 
 § 5. Where a number of actions are brought by different plaintiffs 
 
 1 Steph. Comm. iii. 370 ; stat. 4 Edw. 3, " According to the old writers, an action 
 c. 7 ; 3 & 4 Will. 4, c. 42. comes to an end when judgment is given ; 
 
 2 Ibid. ; stat. 9 & 10 Vict. c. 93 ; 27 & Litt. § 504; Co. Litt. 289 a. 
 28 Vict. c. 95. 
 
Action 
 
 LAW DICTIONARY. 
 
 Action 
 
 Test action. 
 
 " Common 
 law " actions. 
 
 Popular 
 actions. 
 
 Qui tam 
 actions. 
 
 Chancery 
 actions. 
 
 Probate 
 actions. 
 
 Admiralty 
 actions : in 
 rem. 
 
 whose claims arise out of the same facts (as where several shareholders 
 in a company bring separate actions against the promoters for misrepre- 
 sentation, &c), the Court generally allows one of them to be selected as 
 a test action, on the condition that, if the plaintiff in that action fails, the 
 other plaintiffs shall abandon their claims. 1 (See Consolidation^ 
 
 § 6. Actions are distinguished partly by the Division of the High Court 
 in which they are brought, partly by the object for which they are brought, 
 as shown by the right which is sought to be enforced. 
 
 § 7. Actions in the Queen's Bench, Common Pleas, and Exchequer 
 Divisions are of great variety, the principal ones being actions for the 
 recovery of property and debts, and for damages for a tort or breach of 
 contract (as to which see Tort; Contract; Debt); there are also a few 
 special actions, such as quare impedit, replevin, &c. 2 (q. v.). 
 
 § 8. Popular actions are such as may be brought by any person, as in 
 the case of a penal statute, which forbids some act or omission on pain 
 of forfeiting a penalty to any such person as will sue for it. Sometimes 
 part of the penalty is given to the crown or the public, and the rest to 
 the informer, and then the suit is called a qui tam action, because it is 
 brought by a person " qui tam pro domino rege, &c, quam pro se ipso 
 in hac parte sequitur." 3 (See Informer.) 
 
 § 9. Actions in the Chancery Division are equally various; the prin- 
 cipal kinds are actions for specific performance, partnership actions, 
 actions for accounts, redemption, foreclosure, execution of trusts, adminis- 
 tration actions, &c. 4 Administration actions are actions for the adminis- 
 tration of the estates of deceased persons ; that is, for having the assets 
 collected and managed, and the debts and legacies paid under the direc- 
 tion of the Court, or for having the infant children of the testator or 
 intestate made wards of Court and educated under its directions, &c. 
 When such an action is instituted by a creditor of the deceased to 
 enforce payment of a debt due by him, it is called a creditor's administra- 
 tion action; if by a legatee to enforce payment of his legacy, a legatee's 
 action, &c. 5 (See Administration ; Account, §§ 5, 6; Inquiry; Certificate; 
 Classification?) 
 
 § 10. Probate actions, or actions relating to wills and letters of adminis- 
 tration, include the action for propounding a will in solemn form (q. v.) ; 
 the interest action, where the plaintiff claims the grant of letters of 
 administration as one of the next-of-kin of a deceased person ; and the 
 revocation action, for revoking a probate or letters of administration. 6 
 
 § 1 1. An Admiralty action may be either in rem or in personam. By pro- 
 ceedings in rem, the property in relation to which the claim has arisen, or 
 the proceeds of the property when in Court, can be proceeded against 
 and made available to answer the claim. 7 Thus, a claim for damage 
 caused by collision, or for salvage or necessaries, is generally enforced by 
 
 1 Amos v. Chadwick, 4 Ch. 869 ; Robin- 
 son v. Chadwick, W. N. (1878), 75. 
 " See Rules of Court, App. A, pt. ii. 
 3 Bl. Comm. iii. 161. 
 
 * Jud. Act, 1873, s. 34. 
 
 5 Haynes' Eq. 107. 
 
 G Smith's Action, 32. 
 
 7 "Williams & Brace's Admiralty, 186. 
 
Action LAW DICTIONARY. Action 23 
 
 an action in rem. 1 § 12. An action in rem is commenced by a writ of 
 summons, resembling an ordinary writ except that it is addressed, not to 
 any person by name, but to the owners of and persons interested in the 
 particular res (vessel or cargo) ; 3 and the action is known by the name of 
 the res, e.g. "The Star of India," "The Cargo ex Schiller," &c. The 
 writ is served on the ship or cargo (see Service, § io), 3 and then the plaintiff 
 issues a warrant of arrest, which commands the marshal to arrest the ship 
 or cargo. 4 On the warrant being served by the marshal, the ship or cargo 
 is thereby arrested, 5 and remains so until it is released on bail, or sold. 
 (See Bail, §3; Appraisement, §2.) § 13. An action in personam is an action Admiralty 
 against a particular person or persons, as in an ordinary action in the personam" 1 
 High Court. Of course, if the ship or other property in relation to which 
 a claim arises is out of the jurisdiction, the action must be in personam. 
 § 14. The pleadings and subsequent steps in an admiralty action are 
 similar to those in ordinary actions in the High Court, except that in 
 collision actions "preliminary acts" (q. v.) have to be filed. (See Com- 
 mission, §§5,8; Registrar and Merchants ; Monition.) 
 
 The following are the principal varieties of admiralty actions : — 
 
 § 15. An action of damage lies where damage is caused by one ship to Action of 
 another, or to a cargo, or to a person, or a wharf or pier, &c. {e.g. by dama S e ; 
 collision) ; or where a cargo in a ship is injured by the negligence of the 
 master or crew. 6 (See Limitation of Liability .) 
 
 § 16. An action of possession is one in which a person claims pos- of possession ; 
 session of a ship, either against a person wrongfully in possession or 
 against a co-owner. 7 § 17. Where the owners who represent the of restraint; 
 majority of interest in a ship are about to send her on a voyage against 
 the wishes of the minority, the minority may arrest the ship and have it 
 detained until security is given for its safe return. This is called an 
 action of restraint. 8 
 
 § 18. The nature of actions for salvage, towage, pilotage, wages and for salvage, 
 necessaries 9 is explained under their appropriate titles. &c- 
 
 § 19. Hitherto only those actions which are governed by the provi- Proceedings 
 
 sions of the judicature Acts have been considered; but "every writ "J. the nature 
 
 J J of actions, 
 
 whereunto the defendant may plead is in law an action, 10 and 
 
 therefore proceedings by scire facias, prohibition, quo warranto, &c, are 
 actions, though not often so called ; see the various titles : also Informa- 
 tion; Relation. 
 
 II. § 20. In the County Courts, actions are proceedings commenced by County Court 
 plaint (q. v.) ; there are no , pleadings, except that the plaintiff must, in acttons - 
 certain cases, file particulars of demand (q. v.), and that the defendant 
 cannot at the trial set up certain defences unless he has given notice of 
 his intention to do so. (See Special Defences.) A defendant may also 
 
 1 Ibid. 64, 187. * Williams & Bruce, 61, 85, 187; Roscoe, 
 
 2 Rules of December, 1875, App. -A-. 25. 
 
 3 Ibid. 2, 6. 7 Williams & Bruce, 20. See also 24 
 
 4 Ibid. r. 4, App. B. Vict. c. io, s. 8. 
 
 6 Ibid. r. 5. See Williams & Bruce, 8 Williams & Brace, 21. 
 
 l$$etseq. 9 Smith's Action, 33. 
 
 10 Co. Litt. 291 a. 
 
24 
 
 Actor 
 
 LAW dictionary. Ad quod Damnum 
 
 Civil and 
 criminal ; 
 
 real ; 
 personal ; 
 mixed. 
 
 Local and 
 transitory. 
 
 ' Faint 
 1 false.' 
 
 ' and 
 
 file a statement raising questions of law, &c. x The trial is had before the 
 judge alone, unless one of the parties applies for a jury or assessors. 2 
 
 III. § zi. As to actions in the Mayor's Court and other inferior Courts, 
 see the titles dealing with those Courts. 
 
 § 22. Before the Judicature Acts, "action," or "action at law," generally meant a 
 proceeding in one of the common law courts as opposed to a suit in equity. The frame 
 of the writ, and the pleadings in each case, depended on the nature of the right to be 
 enforced, and was extremely technical. In early times actions were divided into criminal 
 and civil, criminal actions being appeals and other proceedings in the name of the crown. 3 
 In modem times, however, " action" always meant a civil action. In this sense, actions 
 were divided into real, personal and mixed, real (or feudal) actions being those brought 
 for the specific recovery of lands or other realty ; personal actions, those for the recovery 
 of a debt, personal chattel or damages ; and mixed actions, those for the recovery of real 
 property, together with damages for a wrong connected with it. 4 By stat. 3 & 4 Will. 4, 
 all real and mixed actions were abolished, except the writ of right of dower, dower, quare 
 impedit and ejectment (see those titles), and now all differences in point of form between 
 actions under the common law jurisdiction of the High Court have been abolished. 5 
 
 \ 23. Actions were also divided into local and transitory, according as they were founded 
 on such causes of action as necessarily refer to some particular locality (as in the case of 
 trespasses to land) or not ; 6 but this distinction no longer exists. 1 (See Venue.) Another 
 now obsolete distinction is between a feint, faint or feigned action — that is, one in which 
 the words of the writ were true, yet, for certain causes not appearing on the writ, the 
 plaintiff had no right to recover what he claimed — and a false action, or one in which the 
 words were false or untrue. If a person recovered land against a tenant in tail by a 
 feint or false action, after the death of the tenant in tail his issue could recover the land 
 back again. 8 
 
 Etymology.] — Norman French : accioun, 5 from Latin actio, 
 
 ACTOR is used to denote the person who has the active claim in a 
 judicial proceeding, e. g. a plaintiff, or a claimant,, or a demandant under 
 the old practice. So, in an action of replevin, although the person who 
 actively claims the distress (the distrainor) is in point of form the 
 defendant, he is regarded as actor equally with the plaintiff, who is in 
 possession of the goods distrained, and merely resists the defendant's 
 claim for their return. 10 The term actor is borrowed from the Roman law. 11 
 
 AD COLLIGENDA BONA. See Grant, § 10. 
 
 AD OSTIUM ECCLESLffi. See Bower. 
 
 Highways. AD QUOD DAMNUM is a writ by which the owner of land over which a 
 
 highway passes may obtain leave to divert it. It is an original writ issuing out of 
 Chanceiy, and directing the sheriff to summon a jury to inquire whether the proposed 
 diversion will be detrimental to the public, and to return the inquisition (q. v.) into 
 Chancery, where any person injured thereby might have impeached it. 12 Since the passing 
 of the Highway Acts this writ has practically become obsolete. (See Highway.) 
 
 Franchises. \ 2. The writ is also said to have been formerly issued before the king granted certain 
 
 1 Pollock's C. C. Pr. 100 et seq. 
 
 2 Ibid. 104 et seq. 
 
 3 Co. Litt. 284 b, 287 b. 
 
 4 Litt. § 494; Bl. Comm. iii. 117. As 
 to real actions, see Williams on Seisin, 156 ; 
 Roscoe on Real Actions. 
 
 6 Rules of Court, i. 1. 
 
 6 Bl. Comm. iii. 294. 
 
 7 Rules of Court, xxxvi. 
 
 8 Litt. §§ 688, 689. 
 
 9 Britton, 128 a. 
 
 10 Co. Litt. 127 b. 
 
 11 Just. Inst. iv. 6, § 2. 
 
 12 Smith's L. C. ii. 151. 
 
Ad Valorem LAW DICTIONARY. Adjudication 25 
 
 liberties, such as fairs, markets, &c, which might be prejudicial to others. 1 (See 
 Franchise; Mortmain.) 
 
 AD VALOREM. See Stamp. 
 
 ADDRESS FOR SERVICE.— § 1. Where the plaintiff in an Writ of 
 
 action (if he appears in person), or his solicitor (if he appears by summons - 
 
 solicitor), resides or carries on business at a place more than three miles 
 
 from Temple Bar, the writ of summons must be indorsed with a proper 
 
 place, to be called his address for service, not more than three miles from 
 
 Temple Bar, where writs, notices, summonses, orders, &c. may be left for 
 
 him. 3 Similar provision is made for writs issued out of district registries, 3 Appearance. 
 
 and for appearances. 4 § 2. A petition or summons under the Trustee Originating . 
 
 Relief Act must also name an address where the petitioner or applicant P etltlon or 
 
 r. nn summons, 
 
 may be served with notices of proceedings. 5 (See Service, §§ 8 et seq.) 
 
 ADEEM— ADEMPTION.— § 1. Ademption takes place where a 
 legacy is given, consisting of specific property which can be identified as 
 belonging to the testator at the time of making his will, and the testator 
 afterwards parts with or alters the description of the property. Thus, if 
 a testator bequeaths his gold chain to A., and afterwards sells it or con- 
 verts it into a cup or the like, the legacy is adeemed, that is to say, A. 
 gets nothing. 6 It seems to be doubtful whether the testator revives an 
 adeemed specific legacy by afterwards acquiring an article which answers 
 the description of the original legacy. 7 § 2. As to ademption by satis- 
 faction, see Satisfaction, §§ 3, 4. 
 
 Etymology.] — § 3. Latin : adimere, to take away. The use of the term as applied 
 to legacies is taken from the Roman law, though there it signified to revoke. 8 
 
 ADJOURN. — To put off to another time: e.g. to adjourn a summons. 
 (See Motion; Appeal, § 3.) 
 
 ADJUDICATION is the judgment or decision of a Court. The Bankruptcy, 
 term is principally used in bankruptcy proceedings, the adjudication being 
 the order which declares the debtor to be bankrupt. (See Bankrupt; 
 Bankruptcy, § 4.) § 2. In the winding-up or administration of companies Adjudication 
 and estates in the Chancery Division of the High Court, a day is ap- 
 pointed for adjudicating upon the claims sent in against the company or 
 estate ; in the case of those claims which the liquidators or executors by 
 their affidavit state that they think ought to be allowed, the adjudication 
 consists in the examination by the chief clerk of the claims and the 
 reasons given for allowing them ; if he or the judge is not satisfied that 
 they ought to be allowed, the adjudication is adjourned that the claimants 
 may prove them ; in the case of those claims which the liquidators or 
 executors think ought not to be allowed, the claimants are required by 
 
 1 Termes de la Ley, s. v. 6 Williams on Executors, 1225 ; Watson's 
 
 * Rules of Court, iv. I, 2. Comp. Eq. 1242. See the curious case of 
 
 3 ibid, r. 3. Morgan v. Thomas, 6 Ch. D. 176. 
 
 4 Hid. xii. 7, 8. 7 See notes to Ashbumer v. Macguire, 
 
 5 Daniell, Ch. Pr. 1790. White & T. L. C. ii. 272. 
 
 8 Just. Inst. ii. 20 ; Dig. xxxiv. 4. 
 
26 
 
 Enrolment. 
 
 Adjustment 
 
 LAW DICTIONARY. 
 
 A dministration 
 
 Marine in- 
 surance ; 
 
 of average. 
 
 Dower. 
 
 Pasture. 
 
 Judicial. 
 
 notice to prove them within a specified time, and the adjudication consists 
 in the examination of the evidence adduced. The result of the adjudica- 
 tion is stated in the chief clerk's certificate. 1 (See Certificate) § 3. The 
 adjudication (or adjudicatory part) is that part of a docket of enrolment 
 of a decree in chancery (made under the old practice) which sets forth 
 the mandatory part of the decree, beginning with the words : " It is 
 
 therefore this present day ordered and adjudged," &c. 2 (See 
 
 Docket.) 
 
 ADJUSTMENT, in the law of marine insurance, is the operation of 
 settling and ascertaining the amount which the assured, after allowances 
 and deductions are made, is entitled to receive under the policy, and 
 fixing the proportion which each underwriter is liable to pay. 3 § 2. Simi- 
 larly, adjustment of average is the process of calculating the values at 
 which the articles which are to contribute are to be taken. " The rule 
 now adopted in England is to value the goods sacrificed as well as the 
 goods saved at their selling price, if the ship arrives at her port of desti- 
 nation, and the valuation is made there ; but if she puts back to her lading 
 port, and the average is adjusted there, the invoice or cost price is taken, 
 no other being well ascertainable." i (See Average.) 
 
 ADMEASUREMENT. — § 1. Admeasurement of dower was a writ or 
 action brought where a widow had taken or had assigned to her for her 
 dower more than she was entitled to. In such a case the person aggrieved 
 was entitled to have her proper share of the land ascertained by the 
 sheriff. 5 This mode of proceeding was long ago superseded by the more 
 convenient remedy of a suit in equity brought for the same purpose, and 
 the action of admeasurement seems now to have been abolished by stat. 
 3 & 4 Will. 4, c. 27. § 2. The same remark applies to the action for 
 admeasurement of pasture, which was anciently the remedy against a 
 person who surcharged a common. (See Surcharge.) The modern 
 remedy is a distress or action of trespass by the lord, or an action for 
 damages (formerly one of the class of actions on the case) by any com- 
 moner aggrieved by the surcharge. 6 
 
 ADMINISTRATION— ADMINISTRATIVE.— § 1. Administra- 
 tion is where the rights of one or more persons in relation to an estate, 
 property or collection of assets are adjusted and protected. The term is 
 applied to the duties of executors, administrators, trustees, liquidators, &c, 
 in managing the property committed to their charge, paying debts, 
 dividing the surplus assets, &c. These duties frequently have to be 
 performed under the direction or supervision of a Court, and this part of 
 its business is called its administrative jurisdiction, as opposed to its 
 jurisdiction in contentious business, in which every proceeding has for its 
 
 1 Rules under Companies Act, 1862, 
 rr. 20 et seq. ; Lindley on , Partnership, 
 1279 ; Gen. Order in Chancery, 27th May, 
 1865; Hunter's Suit, 112; Daniell, Ch. 
 Pr. 1093. 
 
 1 Braithw. Pr. 448. 
 
 3 Smith's Merc. Law, 392 ; Maude & 
 Pollock, Merch. Ship. 418. 
 
 4 Maude & Pollock, 328. 
 
 6 Co. Litt. 39 a. See the proceedings 
 described in Britton, 263 a, where the ad- 
 measurement is done by extent (q. v.) 
 
 Williams on Commons, 121. 
 
Administration LAW dictionary. Administration 27 
 
 main object to decide a dispute between two persons. Proceedings for 
 the winding-up of companies, partnerships and estates of deceased per- 
 sons and felons 1 in the Chancery Division, and proceedings in bankruptcy 
 and lunacy, are examples of administrative business. (See Action, § g.) 2 
 
 § 2. The order in which the assets {q. v.) of a deceased person are Order of ad- 
 applied in paying his debts, so as to exhaust one class of assets before ms ra lon ' 
 coming on another, and so as to pay one class of debts in preference to 
 another if the assets are not sufficient for the payment of all, is called the 
 order of administration. Thus, if a testator dies leaving as residuary per- as to assets ; 
 sonal estate sufficient to pay all his debts, they are paid out of that 
 residue, so as to leave the legacies and real estate untouched. If the as to debts, 
 residue were not sufficient, his real estate devised for payment of debts 
 would be taken before his real estate which had descended to his heir, and 
 so on. If his whole property were not sufficient for the payment of all 
 his debts, it would be applied (subject to the rule as to persons dying 
 before 1st January, 1870, infra, § 3) — first, in payment of his crown debts 
 in full, the residue in or towards payment of his judgment debts, and the 
 ultimate residue, if any, in paying a proportion of his other debts. 
 
 The following is the order in which the various classes of assets are 
 taken or exhausted in succession : ' — 
 
 Order of administration as regards assets. 
 
 1. Personal estate not specifically bequeathed. 
 
 2. Real estate devised or ordered to be sold for payment of debts. 
 
 3. Real estate descended. 
 
 4. Real estate charged with payment of debts. 
 
 5. General pecuniary legacies. 
 
 6. Land comprised in a residuary devise, real estate specifically 
 
 devised, and personal estate specifically bequeathed. 4 
 
 7. Property over which the testator had a general power of appoint- 
 
 ment which he has exercised. 
 
 1 Stat. 33 & 34"Vict.c.23,s. 28; Daniel], p. 612), think that this is the effect of the 
 
 Ch. Pr. 1990. See Administrator, § 2. section. It is difficult, however, to justify 
 
 3 Haddan's Adm. Jurisd. this construction. The section applies only 
 
 3 Jarman on Wills; Williams' P. P. 1 10 to the rights of secured and unsecured 
 
 et seq. ; White & Tudor's L. C. ii. 104, creditors, and a judgment creditor is not 
 
 120; Snell's Eq. 215, 221 ; stat. 32 & 33 a secured creditor within the meaning of 
 
 Vict. c. 46. The Judicature Act, 1875, tne Bankruptcy Act, 1869, s. 16, § 5, 
 
 s. 10, makes alterations in the rules as to though it has been decided that the words 
 
 the rights of secured and unsecured ere- " creditor holding a security" (B. A. 1869, 
 
 ditors, &c, in the administration of an in- s. 12), include a judgment creditor who has 
 
 solvent estate (In re Coal Consumers Asso- seized goods of the bankrupt before the 
 
 ciation, 4 Ch. D. 625: see Creditor), but commission of an act of bankruptcy (Slater 
 
 does not affect the order of administration, v.Pinder,'L.B*.,6Ex.228; Ex parte Roche, 
 
 although it would seem, from the discussion L. R., 6 Ch. App. 795). It has, however, 
 
 on the section when the bill was before been decided, that the execution creditor 
 
 parliament (see Charley's Judicature Acts, of a company has no priority over the other 
 
 notes to s. 25, § 1, of the 1873 Act), that creditors (In re Printing and Numerical 
 
 the legislature intended to assimilate the Registering Co., 8 Ch. D. 535). See also 
 
 rules of administration in chancery to those as to this obscure section, In re Albion Steel 
 
 in bankruptcy, and thus to make all debts and Wire Co., 7 Ch. D. 547 ; In re Richards 
 
 of a deceased person (except those men- &= Co., n Ch. D. 676 ; In re Crumlin Via- 
 
 tioned in s. 32 of the Bankruptcy Act, duct Works Co., nCh. D. 755; Bridgwater 
 
 1869) payable pari passu, in which case Co., 12 Ch. D. 181. 
 
 judgment debts would lose their priority. 4 See Lancefieldv. Iggulden, L. R., 10 
 
 Mr. Joshua Williams (P. P. 1 17) and V.-C. Ch. 136. 
 Malins (Shirreffv. Hastings, 6 Ch. D., at 
 
2§ 
 
 Administrator 
 
 LAW DICTIONARY. 
 
 Admiral 
 
 Equitable 
 assets. 
 
 Bankruptcy 
 and winding- 
 up. 
 
 Administrator 
 of convict's 
 property. 
 
 Lord High 
 Admiral. 
 
 Order of administration of assets as regards debts, 
 i . Crown debts. 
 
 2. 'Judgment debts. 
 
 3. Recognizances and statutes. 
 
 4. Special and simple contract debts. 
 
 5. Voluntary bonds and covenants. 
 
 § 3. In the case of a person who has died before the 1st January, 1870, 
 his specialty debts are payable in priority to his simple contract debts, 
 except so far as his property consists of equitable assets. 1 (See Assets, § 3.) 
 
 § 4. In bankruptcy and liquidation, and in the winding-up of insolvent . 
 companies, all debts are payable pari passu, 2 except that in bankruptcy, 
 certain debts in respect of rates and taxes and clerks' and servants' wages 
 and salaries are payable in priority to all other debts. 3 
 
 ADMINISTRATOR, in the most usual sense of the word, is a 
 person to whom letters of administration, that is, an authority to ad- 
 minister the estate of a deceased person, have been granted by the proper 
 Court. He resembles an executor, but, being appointed by the Court and 
 not by the deceased, he has to give security for the due administration of 
 the estate, by entering into a bond with sureties, called the administration 
 bond. 4 As to the varieties of administrators, see Grant, § 5 ; also Executor; 
 Letters of Administration ; Jus habens ; Prior petens. 
 
 § 2. By the act to abolish forfeiture for treason and felony, 6 where any 
 person has been sentenced to death or penal servitude for treason or 
 felony, the crown may commit the custody and management of his 
 property to an administrator, who has power to pay the debts and 
 liabilities of the convict, and to make allowances for the support of the 
 convict's family, &c. On the completion of his sentence, or on the pardon 
 or death of the convict, the property re-vests in him or his representatives. 
 (See Curator.') 
 
 ADMIRAL.— I. § 1. "Very early records refer to an officer of state, 
 to whom the keeping of the sea was entrusted by the crown. He seems 
 to have been called custos maris, and in later times admiral. Whether 
 judicial functions were originally conferred upon him or not may be 
 matter of doubt ; but as soon as maritime affairs began to assume import- 
 ance, matters happening at sea, and not within any county from whence 
 a jury could be summoned, requiring judicial investigation, were referred 
 to him for adjudication. At what period a regular tribunal for the 
 exercise of the duties thus cast upon the admiral was first erected, is a 
 question much debated among antiquaries ; but it is certain that in the 
 reign of Edward III., the Court of the admiral was firmly established, and 
 
 1 Williams on Executors, 1552 ; White 
 & Tudor, ii. 101. This rule is not altered 
 or extended by sect. 25, § u, of the Judi- 
 cature Act, 1873, because there is here no 
 conflict between the rules of law and equity. 
 In Shattock v. S. (L. R., 2 Eq. 182), the 
 late Master of the Rolls decided that where 
 the estate to be administered is the separate 
 estate of a deceased married woman, the 
 engagements or debts charged on it are 
 
 payable according to their priority, and not 
 pari passu. This case, however, has been 
 dissented from and practically overruled by 
 The London Chartered Bank of Australia. 
 v. Lemfriere, L. R., 4 P. C. 572. 
 
 2 Lindley, 1341. 
 
 3 Bankruptcy Act, 1869, s. 32. 
 
 1 Browne, Probate Pr. 150, 197. 
 ° 33 & 34 Vict. u. E3, ss. 9 et seq. 
 
Admiralty LAW DICTIONARY. Admissible 29 
 
 in the succeeding reign it was sufficiently powerful to assert prominent 
 jurisdiction." 1 The lord high admiral had two functions, first as chief of 
 the Court called after him (see High Court of Admiralty), though in 
 practice this was presided over by his deputy, and secondly as exercising 
 general authority over the naval strength of the kingdom. 2 In more 
 modern times, however, the judge of the Admiralty Court was appointed 
 by the crown, and the naval authority of the admiral is now always dele- 
 gated to commissioners called the lords of the admiralty. 5 " 
 
 II. § 2. Admiral is also the title of high naval officers; they are of Admirals in 
 various grades — rear-admiral, vice-admiral, admiral, admiral of the fleet — navy- 
 the latter being the highest. 4 
 
 Etymology.] — Spanish: almirante; Italian, almiraglio ; French, amiral, from 
 Arabic amir, commander, with the Arabic definite article "al" affixed or suffixed. 6 
 
 ADMIRALTY. — § 1. Admiralty matters may be said to include civil 
 questions relating to the possession, mortgage, damage, salvage and 
 towage of ships, and claims in respect of necessaries and wages (see the 
 various titles). They were formerly within the jurisdiction of the High High Court of 
 Court of Admiralty (q. v.), which originally had exclusive jurisdiction in Admiralty. 
 all matters arising wholly upon the sea, including crimes committed on 
 the sea, and offences against discipline in the Royal Navy ; but by various 
 acts concurrent jurisdiction in criminal matters was given to other Courts, 
 so that practically its jurisdiction was limited to civil matters. 6 By the 
 Judicature Acts, 1873, 1875, its jurisdiction has been transferred to the High 
 Court of Justice, and the Judge of the Admiralty Court made a Judge of 
 the Probate, Divorce and Admiralty Division of the High Court.' As to 
 the various kinds of admiralty actions, see Action, §§ 15 et seq.; also Ap- 
 praisement, § 2 ; Arrest, § 7 ; Assize, note to § 3 ; Bail, § 3 ; Caveat, § 3 ; 
 Central Criminal Court ; Intervene, § 3 ; Marshal, § 2 ; Monition, § 1 ; Pre- 
 liminary Acts ; Prize Court. 
 
 § 2. Some of the County Courts (q. v.) have jurisdiction in admiralty County 
 matters where the amount in dispute does not exceed a certain sum. Courts. 
 (See also Cinque Ports; Justices of the Peace; Court of Passage.) 
 
 ADMISSIBLE. — Evidence (that is, the statements of witnesses or 
 the production of documents or things) is said to be admissible when the 
 court or judge is bound to receive it, "that is, allow it to be^adduced, at a 
 trial or other inquiry. The question whether certain evidence is admis- 
 sible is one of law, 8 and depends either upon the nature of the fact offered 
 to be proved (see Relevancy), or upon the means by which it is offered to 
 be proved, as in the case of hearsay evidence, secondary evidence, &c. 
 (See Evidence.) When a judge at a trial rejects admissible evidence, or 
 admits inadmissible evidence, this may be a ground for a new trial. (See 
 Trial.) 
 
 1 Williams & Brace's Admiralty, 3; Co. " Diez, Etym. Wortb. 
 
 Litt. 260 b; Co. Fourth Inst, c.xxii.; Spel- 6 Williams & Bruce Adm.; Roscoe's 
 
 man's Post. Works, 217. Adm., passim; Steph. Comm. iii. 341 ; 
 
 2 Homersham Cox's Eng. Gov. 716. iv. 311 ; Reg. v. Keyn, 2 Ex. D. 63. 
 
 3 Hid. 720; 7 Jud. Act, 1873, ss. 3, 31. 
 1 Encycl. Brit. 1, Admiral. s Best on Evidence, 105. 
 
30 
 
 To benefice. 
 
 Admission 
 
 LAW DICTIONARY. 
 
 Adopt 
 
 In pleading 
 and evidence. 
 
 ADMISSION— ADMIT. — § i. Admission, in ecclesiastical law, is 
 where the bishop, upon examination of a person presented to a benefice 
 within his diocese, approves of him as a fit person "to serve the cure of 
 the church." 1 (See Presentation ; Institution; Induction?) 
 
 § 2. In the law of pleading and evidence, an admission is an acknow- 
 ledgment that an allegation is true. It may be made extrajudicially, as 
 where a person admits his indebtedness. An admission in judicio may be 
 made by a party to an action either expressly by a notice or pleading, 2 or 
 impliedly by failure to deliver a pleading or to traverse an allegation 
 made by his opponent : a sometimes the parties agree to make admissions 
 of facts or documents in order to save the expense of proving them. 
 (See Special Case; Notice to Admit!) 
 
 ADMIT—ADMITTANCE.— § i. The lord of a manor is said to 
 admit a person as tenant of copyhold lands forming part of the manor 
 when he accepts him as tenant of those lands in place of the former tenant, 
 e. g. on the surrender, devise, or death intestate of the former tenant : in 
 On surrender, the last case, it is called admittance on descent. In theory, the lord 
 admits the surrenderee, devisee, or heir as a favour, and hence in the 
 enrolment of an admittance on the court rolls it is stated that the 
 surrenderee " prays to be admitted ;" but in fact, the lord is bound to 
 admit the new tenant if his claim is in accordance with the custom of the 
 manor ; and hence an admittance in such cases is opposed to a voluntary 
 admittance, which takes place where the lord makes a voluntary grant. 
 (See Surrender, § 3 ; Grant, § 3.) 4 § 2. Admittance may be either ex- 
 press or by implication. Express or formal admission is generally per- 
 formed by the steward of the manor delivering a rod, straw, glove, or 
 other symbol representing the seisin of the land, to the new tenant, and 
 the admittance is then enrolled on the court rolls. 5 Formerly, admit- 
 tances could only be made in Court, i. e. in the customary Court of the 
 manor (see Court Baron), but this is no longer the case. 6 Admittance by 
 implication is where the lord does some act showing an intention of 
 accepting the new tenant (e. g. by receiving rent from him), or where the 
 admittance of one tenant operates as the admittance of another; thus 
 the admittance of a particular tenant may operate as the admittance of 
 a tenant in remainder. 7 (See Copyhold ; Fine, §§ 3 et seq.) 
 
 ADMONITION is the first and lightest form of ecclesiastical 
 censure, and is in the nature of a warning, which, if not obeyed, may be 
 
 descent, &c. 
 
 voluntary. 
 
 Express ; 
 
 by implica 
 tion. 
 
 Contract. 
 
 followed by 
 Censure.) 
 
 a severer censure, e.g. suspension (q. v.) s (See Monition ; 
 
 ADOPT.— I. § 1. To adopt a contract is to accept it as binding, not- 
 withstanding some defect which entitles the party to repudiate it. Thus, 
 
 1 Phill. Eccl. Law, 567; Co. Litt. 344 a. 
 
 2 Rules of Court, xxxii. 
 
 3 Ibid. xix. 17; xxix. 10; xl. II. 
 
 4 Co. Cop. § 41. 
 
 6 Elton, 59. 
 
 6 4 & 5 Vict. c. 35, s. 88. 
 
 7 Elton, 139. 
 
 8 See Phill. Eccl. Law, 136T, 1376. 
 
Adulteration law dictionary. Advancement 31 
 
 when a person affirms a voidable contract, or ratifies a contract made by 
 his agent beyond his authority, he is said to adopt it. So a company 
 may be formed for the purpose of adopting a contract entered into on its 
 behalf. (See Trustee, § 6 ; Affirm ; Ratify ; Voidable.) 
 
 II. § 2. The institution of adoption of children is not known to Children. 
 English law, that is, a person cannot by any declaration put a stranger in 
 the same position as a natural-born child. The only relation resembling 
 it in our law is that between a child and a person in loco parentis to it. 
 (See In Loco Parentis.) 
 
 ADULTERATION is the offence of wrongfully mixing cheap or 
 inferior substances with another substance, so that the compound may be 
 sold as pure or genuine. The act regulating the manufacture and sale of Food and 
 food and drugs is stat. 38 & 39 Vict. c. 63, amended by stat. 42 & 43 Vict. rugS- 
 c. 30. The penalty for making or selling food adulterated so as to be in- 
 jurious to health is 50/. for the first offence, and six months' hard labour 
 for the second. The penalty for selling adulterated food in other cases, 
 without giving notice to the purchaser, is 20/. The acts provide for the 
 appointment of public analysts. § 2. The adulteration of seeds is regu- Seeds, 
 lated by stat. 32 & 33 Vict. c. 112, and 41 & 42 Vict. c. 17. 1 
 
 ADULTERY is where a married person has connexion with a person 
 other than his or her wife or husband. Adulter}- by the husband is a 
 ground for judicial separation, or (when combined with other offences) for 
 dissolution of marriage. Adultery by the wife is by itself ground for 
 dissolution of marriage ; it may also form the subject of a petition by the 
 husband against the alleged adulterer and the wife for damages alone. 2 
 (See Co-Respondent ; Cruelty ; Desertion; Dissolution, § 6.) 
 
 ADVANCEMENT, in its most general sense, is an expenditure of Advance- 
 capital or principal money for the benefit of a person who is, to a certain ^^.° 
 extent, dependent or unprotected. § 2. Thus, in wills and settlements 
 containing limitations in favour of children on attaining twenty-one, 
 power is generally given to the trustees or guardians to apply for the 
 advancement or benefit of each child during its minority part of the 
 capital or share of the property to which it will become entitled on 
 attaining twenty-one. The money might, for instance, be wanted (in 
 former days) to purchase a commission in the army, or to pay a premium 
 on articles. 3 (See Maintenance and Accumulation.) 
 
 § 3. The stat. 22 & 23 Car. 2, c. 10, one of the statutes for the distri- by portion. 
 bution of intestates' estates, provides that, in dividing the estate of an 
 intestate, every child " who shall be advanced by the intestate in his life- 
 time by portion " shall only receive so much of the estate as, with the 
 portion advanced, will make his share equal to those of the other chil- 
 dren. An "advancement by portion " within the meaning of the statute 
 is a sum given by a parent to establish a child in life (as by starting him 
 
 1 For the history of the law, see Steph. c. 85, s. 33. 
 
 Comm. iv. 268. 3 Elphinstone's Conv. 310; Watson's 
 
 2 Browne on Divorce, 143; 20 & 21 Vict. Comp. Eq. 584. 
 
32 
 
 Doctrine of 
 advancement. 
 
 Adverse 
 
 LAW DICTIONARY. 
 
 Advowson 
 
 in business), or to make a provision for the child (as on the marriage of a 
 daughter). 1 (See Hotchpot.) 
 
 § 4. The equitable doctrine of advancement is that, if a purchase or 
 investment is made by a father, or person in loco parentis, in the name of a 
 child, a presumption arises that it was intended as an advancement ; that 
 is, for the benefit of the child, so as to rebut what would otherwise be the 
 ordinary presumption in such cases, of a resulting trust in favour of the 
 person who paid the money. 2 (See Trust.) 
 
 Etymology.]— " Advancement " seems to be an abbreviation of the expression 
 " advancement in the world." 
 
 ADVERSE. See Possession ; Witness. 
 
 For stolen 
 property. 
 
 ADVERTISEMENT. — When a person makes an offer by an adver- 
 tisement {e.g. of a reward for giving information or restoring lost pro- 
 perty), and a person performs the condition, this makes a contract on 
 which the latter can sue the advertiser. 3 (See Prospectus.) § 2. It is an 
 offence, punishable by a penalty of 50/., to publicly advertise a reward for 
 the return of lost or etolen property, coupled with an express or tacit 
 promise not to make inquiries, or to repay money for or advanced on the 
 property by a pawnbroker or other person. 4 (See Libel.) 
 
 ADVERTISEMENTS OF QUEEN ELIZABETH are certain 
 articles or ordinances drawn up by Archbishop Parker and some of the 
 bishops in 1564, at the request of Queen Elizabeth, the object of which 
 was to enforce decency and uniformity in the ritual of the Church. The 
 queen subsequently refused to give her official sanction to these adver- 
 tisements, and left them to be enforced by the bishops under their general 
 powers. 5 
 
 ADVOCATE, in its popular sense, is a person who argues cases in 
 Court on behalf of his clients. In the technical sense, an advocate is a 
 person admitted by the Archbishop of Canterbury to practise in the Court 
 of Arches in the same way as a barrister practises in the temporal Courts. 
 Formerly, the advocates of that Court formed a college, which was 
 abolished by stat. 20 & 21 Vict. c. 77. Barristers are now allowed to 
 practise in the Ecclesiastical Courts. (See Doctors Commons.) 
 
 ADVOCATE- GENERAL is the adviser of the crown on questions 
 of naval and military law. 
 
 ADVOWSON is the right of presenting to a rectory, vicarage or other 
 ecclesiastical benefice whenever it is vacant. (See Presentation, § 2.) It 
 
 1 Taylor v. Taylor, L. R., 20 Eq. 155. 
 
 2 Dyer v. Dyer, 2 Cox, 92 ; White & 
 Tudor's L. C. i. 184 ; Watson's Comp. Eq. 
 872 ; Bennet v. Bennet, 10 Ch. D. 474. 
 
 3 Pollock on Contract, 170. 
 
 4 Stat. 24 & 25 Vict. u. 96, s. 102. 
 
 6 Phill. Eccl. Law, 910; Ridsdale v. 
 Clifton, 2 P. D. 276; Combe v. Edwards, 
 2 P. D. 354. 
 
 6 Phill. Eccl. Law, 121 5 et seq. 
 
Affeer law dictionary. Affidavit ^ 
 
 may belong to a private person, or a bishop or other dignitary, or to the 
 crown. An advowson belonging to the bishop of the diocese is techni- 
 cally the right of collation (q. v.) ; some advowsons are called donatives 
 {q. v.), and a few (such as benefices attached to cathedrals) are elective ; an 
 ordinary advowson is sometimes called, by way of distinction, a presenta- 
 tive advowson. An advowson is an incorporeal hereditament, and is either 
 appendant or in gross (see those titles). 1 
 
 Etymology.] — Norman-French: avowesoun ; 2 Mediaeval Latin, advocatio, apparently 
 from advocatus, the patron or person who was bound to defend and protect the rights 
 of the Church. 
 
 AFFEER, or AFFERE, is an old word signifying to assess or tax; it was applied 
 principally to amerciaments, which were affered or assessed by a jury. 3 
 
 Etymology.] — Norman-French : affeurer, to assess, 4 from the low Latin afforare, to 
 fix a price, from forum, a market. 5 
 
 AFFIDAVIT. — § i . An affidavit is a written statement in the name 
 of a person called the deponent, by whom it is voluntarily signed and 
 sworn to or affirmed. (See Deposition ; Examination ; Commissioner.) 
 It is usually made in an action or other judicial proceeding (see Declara- 
 tion, § 6) ; and in that case the affidavit consists of the title (q. v.), the 
 body (which contains the statement, and is generally divided into para- 
 graphs), the signature of the deponent, and the jurat 6 {q. v.). 
 
 Affidavits are of infinite variety, but many are known by short names 
 which do not always explain themselves. The following are the prin- 
 cipal : — 
 
 § 2. When the evidence on the trial of an action is taken by affidavit, Evidence by 
 the plaintiff files his affidavits in chief, the defendant then files his affi- a avlt ' 
 davits in answer to the plaintiff's evidence, and the plaintiff files his 
 affidavits in reply to the defendant's affidavits. 7 On interlocutory appli- 
 cations, evidence is usually given by affidavit. 8 In either case each party 
 is as a general rule entitled to cross-examine the witnesses of the opposite 
 party. (See Answer; Deponent.) 
 
 § 3. When an order is made against a party to an action requiring him Affidavit of 
 to make discovery on oath of the documents in his possession or power documents 01 
 relating to the matters in question in this action, he is bound to file an 
 affidavit specifying the documents which he has at that time, or formerly 
 had, in his possession or power, and stating that he has not and never 
 had any others. 9 This affidavit is called in the Common Law Divisions an 
 affidavit of discovery, and in the Chancery Division an affidavit of docu- 
 ments. (See Discovery ; Production; Privilege; Traverse.) 
 
 § 4. Where in a common law action extra expenses have been incurred Affidavit of 
 which do not appear upon the face of the proceedings, such as witnesses' lncrease - 
 
 1 Phill. Eccl. Law, 328; Bl. Comm. 6 Hunter's Suit, 77; Smith's Action (iz), 
 ii. 21; Co. Litt. 17b, 119a. 81; Rules of Court, xxxvii. 3a «< seq. 
 
 2 Britt. 222 a; Mirehouse on Advowsons, (April, 1880). 
 
 6 ; Du Cange, s. v. Advocatus. ' Rules of Court, xxxviii. 
 
 3 8 Co. 39; Co. Litt. 126 b. e Ibid, xxxvii. 2. 
 
 4 Loysel, Inst. Cout. Gloss, s. v. 9 Ibid. xxxi. 13; Daniell's Ch. Pr. 1676. 
 
 5 Littre, s. v. Afforage. 
 
 S. D 
 
34 
 
 Affiliation 
 
 LAW DICTIONARY. 
 
 Affirm 
 
 Affidavit of 
 means. 
 
 Affidavit of 
 plight. 
 
 Affidavit of 
 scripts. 
 
 Affidavit of no 
 settlement. 
 
 Affidavit of 
 service. 
 
 expenses, fees to counsel, attendances, court fees, &c, an affidavit as to 
 these is required to enable the master to allow them on taxation. 1 This 
 is called an affidavit of increase. 
 
 § 5. An affidavit showing that a person sought to be committed for 
 non-payment of a judgment debt has the means to pay it, is called an 
 affidavit of means. 2 
 
 § 6. In probate practice, where probate is desired of a will containing 
 alterations, &c. not evidenced by the signature of the attesting witnesses, 
 an affidavit is required stating that the will is in the same state as when 
 found at the decease of the testator. 3 This is called an affidavit of plight. 
 
 § 7. In testamentary causes in the Probate Division the plaintiff and 
 defendant, within eight days after the defendant's appearance, must each 
 file an affidavit stating whether or not any script is in his possession or 
 knowledge. 4 (See Script.) 
 
 § 8. When a married woman is entitled to property which is in Court, 
 or the subject of administrative proceedings, it will not be delivered to her 
 unless she and her husband make an affidavit that no settlement or agree- 
 ment for a settlement of her property has been made ; for if such a settle- 
 ment existed the property might have to be delivered to the trustees of it. 5 
 
 § 9. An affidavit proving the service of a writ, notice, or other document, 
 is called an affidavit of service. (See Service, § 8.) 
 
 AFFILIATION. — An affiliation order is an order made by a magis- 
 trate on the putative father of a bastard, requiring him to pay a weekly 
 sum to the mother for the child's maintenance. (See Bastard.) 
 
 Contract. 
 
 Appeal. 
 Witness. 
 
 AFFINITY is relationship by marriage; that is, the relationship 
 between a husband and his wife's kindred, and between the wife and her 
 husband's kindred. Affinity is a bar to -marriage within the prohibited 
 degrees : thus a man may not marry the sister of his deceased wife, for 
 she is related to him in the second degree by affinity. 6 (See Consan- 
 guinity; Marriage!) 
 
 AFFIRM. — I. § 1. Where a contract is voidable, but the party at 
 whose option it is voidable elects to waive his right, and carry out the 
 contract as if it had been valid ab initio, he is said to affirm it. Thus, 
 where a contract is voidable for fraudulent misrepresentation, the party 
 defrauded may call on the other party to perform it and make good his 
 representations {q. v.)" 1 The affirmation may also be implied (q. v.). (See 
 Ratification; Adoption; Rescission.) 
 
 II. § 2. A Court of Appeal is said to affirm the judgment of a lower 
 Court when it agrees with it. (See Overrule.) 
 
 III. § 3. When a person called as a witness in a judicial proceeding 
 
 1 Archbold, Pr. 432. 
 
 2 Debtors Act, 1869, s. 5; Coe's Practice, 
 159- 
 
 J Probate Rules, 1862, Non-C. 8 et seq., 
 Form 30. 
 
 4 Probate Rules, 1862, C. B. 30 ; Rules 
 of Court, App. B. 16; Browne's' Probate 
 Pr. 280. 
 
 5 Daniell's Ch. Pr. 90. 
 
 6 Steph. Comm. ii. 243. 
 
 7 Pollock on Contract, 487. 
 
Afforest law dictionary. Agency 35 
 
 either refuses from conscientious motives, or is unable from want of 
 religious belief, to take an oath, he makes a solemn affirmation or declara- 
 tion that he will speak the truth ; if he wilfully and corruptly gives false 
 evidence he is liable to punishment for perjury as if he had taken an 
 oath. 1 (See Declaration.') 
 
 AFFOREST is to convert land into a forest in the legal sense of the 
 word {q. v.). 
 
 AFFRAY. — An affray is the fighting of two or more persons in a 
 public place to the terror of her Majesty's subjects. Taking part in an 
 affray is a misdemeanor. 3 (See Riat ; Unlawful Assembly?) 
 
 AFFREIGHTMENT.— A contract of affreightment is a contract 
 with a shipowner to hire his ship, or part of it, for the carriage of goods. 
 Such a contract generally takes the form either of a charter-party or of a 
 bill of lading 3 (17. v.). (See Freight!) 
 
 Etymology.] — Apparently from Italian affrettare, from low Latin fretta, freight {q. v.). 
 
 AGE is of importance in law in many ways. Thus, in private or civil Civil law. 
 law, an infant is subject to various disabilities imposed for his protection. 
 (See Infant ; Minor.) A male of fourteen, and a female of twelve, may 
 contract a binding marriage, if the necessary consents and other requisites 
 are present. 4 
 
 § 2. In criminal law a child under the age of seven years is incapable of Criminal law. 
 committing a crime, and no act done by a child between seven and fourteen 
 is a crime unless it be shown affirmatively that it had sufficient capacity to 
 know that the act was wrong. 5 
 
 § 3. In the old books, " age" is commonly used to signify "full age; " 
 that is, the age of twenty-one years. 6 (See Nonage.) 
 
 AGENCY — AGENT. — I. § 1. An agent is a person who acts on 
 behalf of another person (the principal). The status of an agent, or the 
 relation between him and his principal, is called agency. (See Principal 
 and Agent.) The general rule is, that whatever a person can do in his 
 own right he may appoint an agent to do for him ; but an agent, executor, 
 trustee, &c. cannot himself delegate his office, because the power which 
 he possesses is not in his own right. 7 (See Delegatus non potest delegare ; 
 Ministerial ; Substitution!) 
 
 § 2. As regards third persons, agency is merely a mode by which a per- 
 son can do acts through the medium of another person ; an act done by 
 an agent within the scope of his authority binds the principal in the same 
 
 1 Best on Evidence, 236; stat. 3 & 4 3 Maude & Pollock, Merch. Shipp. 227 ; 
 "Will. 4, cc. 49, 82 ; 1 & 2 Vict. c. 77 ; 17 Smith's Merc. Law, 295. 
 
 & 18 Vict. c. 125; 24 & 25 Vict. c. 66; 4 Macqueen's Husb. & Wife, 11. 
 
 32 & 33 Vict. c. 68 ; 33 & 34 Vict. c. 49. 6 Steph. Crim. Dig. 15. 
 
 2 Russell on Crimes, i. 390. B Litt. § 259. 
 
 7 Smith's Merc. Law, 109. 
 
 D 2 
 
36 
 
 Agency 
 
 LAW DICTIONARY. 
 
 Agent 
 
 Gratuitous. 
 
 Mercantile. 
 
 manner as if the principal himself had done it ; thus, if I authorize A. to 
 buy goods for me, and A. does so, I am liable to pay for them. 
 
 § 3. As regards the principal and the agent inter se. Agents are of 
 two kinds— gratuitous and remunerated. In the case of a gratuitous 
 agency, the principal cannot compel the agent to enter on the agency, 
 that is, to act as his agent, unless the contract is under seal ; but a gra- 
 tuitous agent who acts as such is liable for gross negligence. (Compare 
 Bailment) A gratuitous agent when formally appointed is commonly 
 Remunerated, called an attorney (q. v.). § 4. Where the agent is entitled to be paid 
 for his services, the agency consists of a contract by the agent to perform 
 the services, and by the principal to pay him for them. On the other 
 hand, the principal is entitled to demand an account from his agent. 
 (See Account.) 
 
 § 5. Agents employed for the sale of goods or merchandise are called 
 mercantile agents, and are of two principal classes — brokers and factors 
 (q.v.); a factor is sometimes called a commission agent, or commission 
 merchant, 1 but in practice the latter terms seem to be frequently used to 
 denote an agent who purchases goods for his principal, while " factor" 
 generally means an agent for sale. A commission agent stands in the 
 relation of vendor (as well as agent) to his principal, because the persons 
 from whom he buys the goods sell to him and not to his principal. 2 
 
 § 6. As regards the extent of the agent's authority (q. v.), he is either 
 general or special : a general agent is one who is empowered to act for 
 his principal in all business of a particular kind (e. g. to conduct a busi- 
 ness or branch of a business, or purchase goods of a particular kind from 
 time to time), or one who, though only appointed by his principal to do 
 a particular act, is by occupation an agent, such as a banker or horse- 
 dealer. A special agent is one who is authorized to do a particular act 
 (e. g. to buy a horse, execute a deed, or the like), 3 and whose ordinary 
 occupation is not to do such acts. In the case of a general agent, the 
 principal is bound by all acts done by him within the scope of his ordinary 
 employment, whether such acts were warranted by his private instructions 
 or not, while in the case of a special agent the principal is only bound if 
 the agent acts according to his particular commission or authority. 4 (See 
 Del Credere; Power of Attorney ; Authority; Ratification; Ultra Vires.) 
 
 § 7. In criminal law, where one person with criminal intention causes 
 another to do without criminal intention an act which would be a crime 
 on his part if it were done with criminal intention, then the former is 
 guilty of the crime committed, and the latter is the innocent agent. 5 
 
 As to frauds by agents, see Fraud. 
 
 II. § 8. In the practice of the House of Lords and Privy Council in 
 appeals, solicitors and other persons admitted to practise in those Courts 
 in a similar capacity to that of solicitors in ordinary Courts, are technically 
 called "agents." 6 
 
 General. 
 
 Special. 
 
 Criminal law. 
 
 House of 
 Lords and 
 Privy Council 
 
 1 Russell's Merc. Agency, 1. 
 
 8 See Ireland v. Livingston, L. R., 5 
 H. L. 395. 
 
 3 Smith's Merc. Law, 128 ; Chitty on 
 Contracts, 193; Russell, 61, 
 
 4 Russell, 61. 
 
 6 Russell on Crimes, 160; Stephen, Dig. 
 Crim. 22. 
 
 6 Macpherson, Privy C. Pr. App. 65. 
 
Aggravation law DICTIONARY. Agreement 
 
 AGGRAVATION. — In common law pleading, matter of aggravation 
 is matter which only tends to increase the amount of damages, and does 
 not itself constitute a right of action. (See Assault.) 
 
 AGISTMENT is where a person takes in and feeds or depastures 
 horses, cattle or similar animals upon his land for reward. An agister is 
 therefore a bailee for reward, and is liable for the cattle if he uses less 
 than ordinary diligence (e.g. if he leaves a gate open, or if he places a 
 horse in a field where it is likely to be attacked by a bull). An agister 
 has no lien on the animals which he agists, unless there is an express 
 agreement to that effect. 1 
 
 Etymology.] — Apparently from Norman-French a, to, and giste, a feeding or resting- 
 place for animals ; from Latin jacere, to lie. 2 
 
 AGREEMENT. — I. §. i. Agreement, in its widest sense, is where In general, 
 two or more persons concur in expressing a common intention with the 
 view of altering their rights and duties. 3 An agreement of this kind has 
 no legal effect when existing by itself, but is an essential part of every 
 true contract, gift, payment, conveyance and compromise, and of every 
 voluntary variation or discharge of a contract or other obligation. Thus, 
 in a formal deed of conveyance, the introductory recital always refers to 
 the agreement in pursuance of which the conveyance is executed, meaning 
 not the preliminary contract of sale, but the mutual assent of the parties 
 at the time the deed is executed. 4 
 
 When analyzed the essential marks of an agreement are these : there 
 must be at least two persons ; they must definitely intend the same thing; 
 they must communicate this intention to one another ; and the object of 
 their intention must be such as will, when carried out, alter their legal posi- 
 tion, e.g. by producing the transfer of property or the creation or extinction 
 of a right. The communication of intention may be formal or informal, 
 simple or complicated, but it may always be reduced to the elements of a 
 proposal made by one party and accepted by the other ; so that until a 
 proposal is absolutely accepted there is no agreement. 5 (See Promise.) 
 
 II. § 2. In its narrower and popular sense "agreement" has the same Contract. 
 meaning as "contract," especially "contract not under seal;" 6 thus an 
 agreement for a lease is a contract to grant a lease. § 3. "Agreement" 
 and "contract," however, are sometimes opposed to one another, 
 "contract" generally denoting an arrangement complete in itself, while 
 "agreement" may denote a part of an arrangement. Thus, in a sale of 
 a house, "contract of sale" denotes the whole arrangement between the 
 vendor and purchaser, while each clause binding either of the parties to 
 
 1 Gritty on Contracts, 435; Smith's L. Com. Dig. 311; Wainv. Warlters, 5 East, 
 C. i. 222 ; Jackson v. Cummins, 5 M. & W. 10 ; Smith's L. C. ii. 24r. 
 
 342 ; Smith v. Cook, 1 Q. B. D. 79. 4 See an instance of an agreement ope- 
 
 2 Littre, Diet. s. v. Gite; Spelm. Gl. s. v. rating as a conveyance, in Co. Litt. 10 a. 
 As to the officers called agistors of the royal 5 For an elaborate examination of the 
 forests, see Williams on Commons, 232. whole subject, see Savigny, Syst. § 140 j 
 
 3 See Savigny, Syst. iii. 309; Pollock on Chitty on Contracts, 8 et seq.; Rossiter v. 
 Contract, 2. Agreement is "aggregatio Miller, 3 App. Ca. 1 124. 
 
 mentium, or the union of two or more 6 Chitty, 2. 
 
 minds in a thing done or to be done." I 
 
 37 
 
a 8 
 
 Agricultural Holdings Act 
 
 LAW DICTIONARY. 
 
 Aid 
 
 do a specific thing is an agreement, e.g. a clause binding the vendor to 
 put the property in repair before the sale is completed. 1 (See Mutuality; 
 Contract.) 
 
 AGRICULTURAL HOLDINGS ACT, 1875 (38 & 39 Vict. c. 92), 
 is an act designed to give agricultural tenants compensation for so much 
 of the value of improvements effected by them on their holdings as 
 remains unexhausted at the determination of the tenancy, and so far to 
 reverse the general rule of law that what is in or attached to the soil 
 belongs to the landlord. 3 For this purpose the improvements entitling 
 the tenant to compensation are divided into three classes, according to 
 the degree of their permanence, and provisions are made for calculating 
 the unexhausted value at the time when the tenancy comes to an end. 3 
 The act is practically permissive only, as any landlord and tenant may 
 contract themselves out of its provisions : it is believed not to have 
 hitherto produced much effect, except that section which entitles a tenant 
 from year to year of agricultural land to a year's notice to quit. (See 
 Tenant from Year to Year ; Compensation, § 1 ; Reference, § 3 ; Fixtures.) 
 
 Execution of 
 power. 
 
 Defects in 
 pleading, &c, 
 
 Feudal. 
 
 AID is to assist, supplement, or exonerate. As to aiding and abetting 
 in the commission of a crime, see Principal, § 4. As to writs in aid, 
 see Writ, § 5. 
 
 § 2. Where a power of appointment is imperfectly executed in point of 
 form (as where it is executed by will instead of by deed, as directed by 
 the instrument creating it), the High Court under its equitable jurisdiction 
 can compel the person having the legal interest to transfer it in the manner 
 directed by the defective appointment. This is termed aiding the de- 
 fective execution. 4 
 
 § 3. In procedure, errors or omissions in pleading are said to be aided 
 when they are cured or made of no effect by some subsequent proceeding. 
 Thus, under the old common law practice, certain defects in point of form 
 were aided by verdict, that is, the opposite party could not take objection 
 to them after verdict, though for defects in point of substance he could (as 
 a general rule) move in arrest of judgment, unless it appeared from the 
 nature of the issue and the verdict that the same evidence had been given 
 as would have been given if the defect had not existed. 5 (See Arrest of 
 fudgment.) The new practice has abolished the doctrine of aider by 
 verdict so far as civil actions are concerned, but it still applies to criminal 
 pleading. 6 (See feofail.) 
 
 § 4. Formerly every tenant in chivalry was liable to make payments called aids 
 (1) to ransom his lord's person if taken prisoner; (2) to make the lord's eldest son a 
 
 1 See Wain v. Warlters, 5 East, 10 ; 
 Smith's L. C. ii. 241. 
 
 2 Sect. 5; Cooke's Agric. Holdings Act, 
 27. 
 
 3 Ibid. 28. 
 
 1 Tottetv. Toilet, 2 P. Wms.489: White 
 & Tudor's L. C. 207. 
 
 6 Smith's L. C. i. at p. 144; Stennelv. 
 Hogg, 1 Wms. Saund. 260 ; Archbold, Pr. 
 479. 
 
 6 Archbold, Crim. PI. 132 ; the principal 
 rules are contained in stat. 7 Geo. 4, c. 64, 
 s. 21, and Heyman v. R., L. R., 8 O. B. 
 p. 105. 
 
Air LAW DICTIONARY. Alias 
 
 knight ; and (3) to provide a portion for the lord's eldest daughter ; and every tenant in 
 socage was liable to the two latter aids. 1 Aids were abolished by stat. 12 Car 2. c. 24 ; 
 but parliamentary taxes for extraordinary purposes (including the land-tax before it became 
 permanent) were called aids down to the reign of William III. 
 
 AIR. — Rights in respect of air are of two kinds — natural and acquired. Natural 
 § 1. Every owner of land has the right to prevent his neighbours from nghts " 
 polluting the air coming to his land, and the infraction of this natural 
 right is a nuisance. But the right to pollute air may be acquired by pre- 
 scription, and such a right is an easement. 2 
 
 § 2. It seems that by prescription or grant an owner of land may Acquired 
 acquire the right to prevent his neighbours from obstructing the lateral "g llts - 
 access of air to his tenement. The existence of this easement is, how- 
 ever, not free from doubt ; 3 it is not within the operation of the Prescrip- 
 tion Act. 4 
 
 (See Natural Rights ; Easement.) 
 
 ALCIATUS. — Andreas Alciatus was born in 1492, taught law at 
 Avignon, Bourges, Bologna, &c, and died 1550. He was the founder of 
 the so-called " elegant " school of law. His principal works are the 
 Annotationes ; Dispunctiones ; Eniblemata? 
 
 ALDERMEN are members of municipal corporations. The Munici- 
 pal Corporations Act, 1835, provides that in every borough to which it 
 applies there shall be elected a mayor, and a certain number of fit persons 
 to be called the aldermen, and a certain number of councillors, and the 
 mayor, aldermen and councillors form the council or administrative body 
 of the corporation. The act regulates their qualification and the mode of 
 their election. 6 
 
 ALE-HOUSES. See Licence. 
 
 ALIA ENORMIA (" other wrongs") was the name given to a general 
 allegation of injuries caused by the defendant with which the plaintiff in 
 an action of trespass under the old practice concluded his declaration. 
 It is still used in indictments for assault, and entitles the prosecutor to 
 give in evidence circumstances of aggravation (q. v.)P 
 
 ALIAS. — § 1. An alias writ is one which is issued when a former writ Writ, 
 has not produced its effect ; thus, if nulla bona is returned to a writ of 
 fieri facias (q. v.), an alias fi. fa. may be sued out. 8 The writ is so called 
 from the words "as we have formerly commanded you" (sicut alias prag- 
 cepimus) being inserted after the usual commencement, "We command 
 you." 9 (SeePluries; Writ.) 
 
 1 Co. Litt. 76 a, g 1 a. interference with the access of air was 
 
 2 Gale on Easements, 335. restrained on the ground of its being a 
 
 3 See Aldred's case (9 Rep. 58 b), where nuisance. 
 
 the court said that for stopping wholesome i Webb v. Bird, 13 C. B., N. S. 841. 
 
 air an action lies, and 3, fortiori for infecting 5 Holtzen. Enclyc. s. v. 
 
 and corrupting the air; but this seems put 6 Grant on Corporations, 355, 415. 
 
 on the ground of property or natural right ' Archbold, Crim. PI. 694. 
 
 rather than of easement. In Dent v. Auc- 8 Archbold, Pr. 585. 
 
 tion Mart Co. (L. R., 2 Eq. p. 238), an s El. Comm. iii. 283. 
 
 39 
 
40 
 
 Alias dictus. 
 
 Alibi 
 
 LAW DICTIONARY. 
 
 Alien 
 
 By birth, or 
 by election. 
 
 § 2. When a person who goes by several names is indicted, he is 
 described in the indictment as "A. B., otherwise C. D.," &c; formerly, 
 when pleadings, &c. were in Latin, this was expressed alias dictus (" other- 
 wise called"), 1 and hence such a person is said to go by several aliases or 
 false names. 
 
 ALIBI. — A prisoner or accused person is said to set up an alibi when 
 he alleges that at the time when the offence with which he is charged 
 was committed he was " elsewhere," that is, in a different place from that 
 in which it was committed. If proved it is of course a complete answer 
 to the charge, 2 and is consequently a favourite defence. 3 
 
 ALIEN— ALIENAGE.— §. i. An alien is a person who is not a 
 British subject, as opposed (a) to natural-born subjects (as to these, see 
 Allegiance), (b) to aliens who have become British subjects by naturaliza- 
 tion (naturalized aliens), and (c) to denizens (q. v.)} 
 
 § 2. Aliens are either aliens by birth (aliens nees), or aliens by election. 
 The former class includes all persons born abroad, except the children of 
 ambassadors and persons whose fathers or paternal grandfathers were 
 British subjects. 5 To the class of aliens by election belong those persons 
 who have availed themselves of the provisions of the Naturalization Act, 
 1870, which allows a British subject to become an alien either by expa- 
 triation (q. v.), or, in certain cases, on his making a declaration of 
 alienage. 6 The act also makes an Englishwoman who marries a foreigner 
 an alien. 7 
 
 § 3. Aliens are also divisible into alien enemies and alien friends (alien 
 amys), according as the state of which they are subjects is or is not at 
 war with the United Kingdom. 8 Alien enemies have in theory no rights 
 or privileges unless by the Queen's special favour. 9 And if they bring 
 goods into this country after the declaration of war it is said that they are 
 liable to be seized. 10 It is also said that if the plaintiff in an action is or 
 becomes at any time before verdict an alien enemy, the Court will stay 
 Alien friends, the proceedings on the application of the defendant. 11 Alien friends have 
 certain disabilities ; thus, an alien cannot be the owner of a British ship, 13 
 or hold certain offices, or vote at certain elections. 13 (See Allegiance ; 
 Extraterritoriality . ) 
 
 Etymology and History.] — Norman French : alien, apparently from Latin alieni- 
 gena, "one bom in a strange country, under the obedience of a strange prince or country." 1 * 
 
 ALIEN— ALIENATION.— To alien is to pass property from one 
 person to another. 15 Alienation is either (1) voluntary, when it takes 
 
 Alien ene- 
 mies. 
 
 39- 
 
 1 Cro. Eliz. 249; Archbold, Crim. PI. 
 
 Best on Evidence, 460. 
 3 Ibid. 821. 
 1 See Co. Litt. 129 a. 
 6 Stat. 7 Anne, c. 5 ; 13 Geo. 4, c. 21. 
 
 6 Natur. Act, 1870, ss. 3, 4. 
 
 7 Ibid. s. 10. 
 
 8 Calvin's case, 7 Co. 1 7 ; Co. Litt. 129b. 
 
 9 Steph. Comm. ii. 409. 
 
 10 Ibid. 17. 
 
 11 Archbold's Pr. 1112. 
 
 12 Natur. Act, 1870, s. 14. 
 
 13 Sect. 2. 
 
 14 Co. Litt. 128 b; Bracton, 427 b. 
 
 15 Co. Litt. 118 a; Davids. Conv. i. 70. 
 As to the history of alienation, see Maine's 
 Ancient Law : Lavaleye de la Propriety. 
 
Alieni Juris LAW DICTIONARY. Allegiance 41 
 
 place with the will of the owner, as in the case of a conveyance, gift, &c. ; 
 (2) involuntary, where his consent is immaterial, as in the case of descent, 
 intestacy, bankruptcy, forfeiture, vesting orders, &c. ; or, (3) partly volun- 
 tary and partly involuntary, as in the case of alienation by will (devise 
 and bequest). 
 
 ALIENI JURIS. See Sui Juris. 
 
 ALIMONY is a gross or annual sum of money ordered, in a suit for 
 dissolution of marriage or judicial separation, to be paid by the husband 
 to the wife for her support. It is either payable pendente lite, that is, 
 during the suit, or is permanent. 1 
 
 Etymology.] — Alimonium, sustenance. 
 
 ALIO INTUITU (= " with another intent " than that alleged). In 
 Divorce practice, a suit is said to be brought alio intuitu when it is not 
 brought bona fide for the reason or with the object alleged. 3 
 
 ALITER = otherwise. In old reports it is used to contrast the rules 
 applying to two different cases. 
 
 ALIUNDE = from elsewhere. Thus in construing a document, ex- 
 planatory evidence which appears from some other source is said to 
 appear aliunde. 
 
 " ALL THE ESTATE " is the name given to the short clause in a 
 conveyance or other assurance which purports to convey " all the estate, 
 right, title, interest, claim and demand " of the grantor, lessor, &c, in the 
 property dealt with. The clause is said to be wholly inoperative and un- 
 necessary. 3 (See General Words ; Deed.) 
 
 ALLEGATION is a statement of fact made in a legal proceeding ; 
 e. g. in an affidavit or pleading. 4 
 
 § 2. In ecclesiastical causes, every plea after the first is termed an Ecclesiastical 
 allegation. 5 An allegation by the defendant, controverting the plaintiff's pleading, 
 charge, seems to be called a responsive allegation, and, if the plaintiff 
 rejoins to it, his allegation is called a counter allegation, or rejoining 
 allegation. When a party objects to the evidence taken by the other 
 party, he is said to give an exceptive allegation. 6 (See Plea; Libel; 
 Noviter perventa . ) 
 
 ALLEGIANCE " is the tie or ligamen which binds the subject to the 
 
 1 Browne on Divorce, 157. 4 See Rules of Court, xix. 
 
 2 Ibid. 131, 339. \ Phill. Eccl. Law, 1254, 1289. 
 
 3 Davids. Conv. i. 93. 8 Ibid. 1256; Rogers, Eccl. Law, 722. 
 
Allocatur 
 
 LAW DICTIONARY. 
 
 Allocutus 
 
 Natural. 
 
 Acquired. 
 Local. 
 
 Legal. 
 
 king, in return for that protection which the king affords the subject." 1 
 It consists in " a true and faithful obedience of the subject due to his 
 sovereign," 2 and is commonly said to be of four kinds— natural, acquired, 
 local, and legal. 
 
 § 2. Natural allegiance is that which is due from all men born within the 
 king's dominions immediately upon their birth. 3 A person born in the 
 British dominions of alien parents may divest himself of this natural alle- 
 giance by making a declaration of alienage {q. v.) 1 § 3 ■ Acquired allegiance 
 is that obtained by naturalization or denization (q. v.). 6 § 4. Local alle- 
 giance is that which is due from every alien only so long as he continues 
 within the dominions of the English crown. 6 § 5. Legal allegiance is so 
 called " because the municipal laws of this realm have prescribed the 
 order and form of it ; " 7 it is created by the oath of allegiance, which has 
 to be taken on various occasions — e. g. by the great officers of the crown 
 on assuming office. 8 It does not seem to add anything to the duties of 
 ordinary allegiance. To the class of legal allegiance may also be referred 
 that due from the children and grandchildren born abroad of natural-born 
 British subjects, of which, however, they may divest themselves by a 
 declaration of alienage (q. v.). a 
 
 § 6. Allegiance is also used with the sense of locality, as where a 
 person is said to be born within the allegiance of the crown, meaning 
 within the British dominions. 10 
 
 Etymology.]— Norman-French : aleggeaunce, 11 ligeaunce, 1 "- from lige, pure, absolute; 
 so that "liege homage " meant unconditional homage. 13 Lige is said to be derived from 
 German ledig = free, a "ledigman" (Ugius homo) being a man who was free from all 
 obligations to anyone but his lord. 1 - 1 Originally allegiance was applied also in certain 
 cases to the obligation due by tenants to their feudal lords. 13 
 
 ALLOCATUR, in the practice of the Common Law Divisions of the 
 High Court, is a certificate by a master of the result of a taxation of 
 costs. 15 (Latin = it is allowed.) 
 
 ALLOCUTUS. — In criminal procedure, when a prisoner is convicted 
 on a trial for treason or felony, the Court is bound to demand of him 
 what he has to say as to why the Court should not proceed to judgment 
 against him : this demand is called the allocutus, and is entered on the 
 record. 16 
 
 1 Bl. Comm. i. 366. Allegiance to the 
 king de facto is sufficient ; stat. 11 Hen. 7, 
 c. 1. 
 
 2 Calvin's case, 7 Co. 4b. 
 » Bl. ii. 369. 
 
 * See Expatriation ; Alienage. 
 
 5 Co. Litt. 129a; 7 Co. 5b; see the 
 Naturalization Oaths Act, 1870. 
 
 6 7 Co. 5 b ; Bl. ii. 370. 
 
 7 7 Co. sb, 6b. 
 
 8 Promissory Oaths Acts, 1868 and 187 1. 
 
 9 See Naturalization. As to the oath 
 
 of allegiance, see the Naturalization Act, 
 1870, and the Naturalization Oaths Act, 
 1870. 
 
 10 Litt. \ 198; Co. Litt. 129b ; Calvin's 
 case, 7 Co. 2 b. 
 
 11 Britton, 170 b. 
 13 Ibid. 175 a. 
 
 13 Loysel, Inst. Cout. Gloss. 
 
 14 Diez, Etym. Wortb. ii. 359 ; see Bl. i. 
 
 3°7- 
 
 15 Archbold, Pr. 129. 
 
 16 Archbold, Crim. PI. 173. 
 
Allodial LAW dictionary. Allotment Warden 43 
 
 ALLODIAL. — Land is said to be allodial, or to be held by an allo- 
 dial tenure, when it is the absolute property of the owner and not held 
 by him of any lord or superior, as in the feudal system. No subject in 
 England can hold land allodially. 1 (See Feudal.) 
 
 ALLONGE. — When the back of a bill of exchange or similar instru- 
 ment has been filled up with indorsements, a slip of paper may be 
 annexed to it to receive any further indorsements, and thenceforth forms 
 part of the bill. This slip is sometimes known by the French word 
 " allonge," 2 from allonger, to lengthen. 
 
 ALLOT. — § 1. To allot is to indicate that a portion of property held 
 by a number of joint owners is in future to belong exclusively to a specific 
 person called the " allottee." Thus a partition of land is effected by Partition, 
 allotting to each owner his share in severalty. 3 
 
 § 2. An inclosure of land under the General Inclosure Act, 1845, is Inclosed land, 
 carried into effect by the land being allotted in accordance with the 
 order or act authorizing the inclosure and the rights of the persons inte- 
 rested. "Allotment " signifies not only the act of allotting the land, but 
 also the portion of land allotted ; the allotments are named from the pur- 
 poses for which they are made, e.g. allotments for exercise and recrea- 
 tion, allotments for labouring poor, allotments to the lord, commoners, 
 &c. 4 (See Inclosure.') 
 
 § 3. In the law of companies, to allot shares, debentures, &c. is to Shares. 
 appropriate them to the applicants or persons who have applied for them ; 
 this is generally done by sending to each applicant a letter of allotment, 
 informing him that a certain number of shares have been allotted to him, 
 and he is then called an allottee. An allotment of shares pursuant to an 
 application for them, constitutes, with the application itself, an agreement 
 binding both on the applicant and on the company, the application being 
 an offer to take their shares, and the allotment an acceptance of the 
 offer. 5 (See Scrip.) 
 
 § 4. In the law of merchant shipping, an allotment of wages is where Wages. 
 a seaman by the agreement of service stipulates for the periodical payment 
 of sums out of his wages by the shipowner or agent. This is done by 
 an allotment note, which gives the necessary particulars, including the 
 name of the person to whom the allotments are to be paid, and the 
 relation in which he or she stands to the seaman, e. g. wife, parent, child, 
 &c. 6 
 
 ALLOTMENT WARDEN.— By the General Inclosure Act, 1845, 
 s. 1 08, when an allotment for the labouring poor of a district has been 
 made on an inclosure under the act, the land so allotted is to be under 
 the management of the incumbent and churchwarden of the parish, and 
 
 1 As to the derivation of the word, see 6 Lindley on Partnership, 108 ; Thring 
 
 Skeat's Etym. Diet. on Companies, 30 et sea. 
 
 3 Byles on Bills, 150. 6 Merch. Shipp. Act, 1854, s. 168; 
 " Litt. § 246 etseq. Maude & Pollock, 165. 
 
 4 General Incl. Act, 1845, s. 72 etseq. 
 
44 
 
 Allow 
 
 LAW DICTIONARY. 
 
 Alteration 
 
 Demurrer. 
 
 Claim. 
 
 " Just allow- 
 ances." 
 
 Allowance 
 pendente lite. 
 
 two other persons elected by the parish, and they are to be styled 
 allotment wardens " of the parish. (See Inclosure; Allot, § 2.) 
 
 'the 
 
 ALLOW— ALLOWANCE.— § 1. In procedure, to allow is to admit 
 the validity of something contended for by one of the parties. Thus the 
 Court allows a demurrer or plea, when it decides that it is well founded by 
 giving judgment in favour of the person demurring or pleading. 1 So, 
 when a claim against an estate in administration is made out, it is 
 allowed, 2 and a taxing master allows costs which have been properly 
 incurred. The costs, charges and expenses which are allowed to a trustee 
 are sometimes called his just allowances. 3 (See Costs.) 
 
 § 2. In the Chancery Division, where property which forms the subject 
 of proceedings is more than sufficient to answer all claims in the pro- 
 ceedings, the Court may allow to the parties interested in the whole or 
 part of the income, or (in the case of personalty) part of the property 
 itself. 4 
 
 ALLUVION is where sand and earth are washed up by the sea or a 
 river, so as to make an addition to the dry land ; if it is sudden and con- 
 siderable, the new land belongs (in the case of the sea) to the crown ; if 
 it is by small and imperceptible degrees, the new land belongs to the 
 owner of the adjoining land. 6 (From ad, to, and lucre, to wash.) (See 
 Dereliction ; Accretion; Accession.) 
 
 ALMANAC. See Notice. 
 
 Instrument. 
 
 Material. 
 
 ALTERATION. — § 1. An instrument is said to be altered when any 
 erasure or addition is made in it so as to alter its sense or effect ; thus, if 
 a seal is added to an instrument originally not under seal so as to make 
 it purport to be a deed, that is an alteration. 6 
 
 § 2. An alteration is said to be material when it affects, or may possibly 
 affect, the rights of the persons interested in the document. Thus, if the 
 date of a cheque is altered, that is a material alteration, because the legal 
 obligations of the drawer may be affected by it, e. g. if the bank failed 
 before it was presented. 7 A material alteration invalidates the instrument 
 even as against innocent strangers. 8 So, the addition of a seal to an 
 instrument is a material alteration {supra, § 1). As a general rule, a 
 material alteration, when made by the misfeasance or laches of the party 
 for whose benefit the instrument was made, invalidates it, even as against 
 
 1 Rules of Court, xxviii. iet seq.; Arch- 
 bold, Crim. PI. 184. 
 
 2 Daniell, Ch. Pr. 1 100. 
 
 3 Ibid. 1 133. 
 
 4 Stat. 15 & 16 Vict. c. 86, s. 57 ; 
 Daniell, 1070. 
 
 " Bl. Comm. ii. 262. In Roman law, 
 attuvio meant only an imperceptible addi- 
 tion (incrementum latens); Just. Inst. ii. 1, 
 
 \ 20 : a sudden alluvion was called avulsio. 
 
 6 Davidson v. Cooper, II M. & W. 778; 
 13 M. & W. 343 ; Leake on Contracts, 
 426. 
 
 7 Vance v. Loiather, 1 Ex. D. 176; 
 Mastery. Miller, 4 T. R. 320; 5 T. R. 
 367. 
 
 8 Ibid. 
 
Alternative LAW dictionary. Ambiguity 45 
 
 innocent strangers, 1 and so does an alteration made by a stranger, having 
 the custody of the instrument, but not otherwise. (See Void.) 
 
 § 3. An immaterial alteration does not appear to have any effect in Immaterial, 
 avoiding the instrument, even if made by a party to it. 3 
 
 § 4. Alterations in wills are disregarded by the Court in granting Wills. 
 probate, unless they are authenticated by the signatures of the testator 
 and witnesses, or unless the fact of their having been made before execu- 
 tion can be proved. 3 
 
 ALTERNATIVE. See Relief. 
 
 AMALGAMATION is where two incorporated companies or 
 societies become united by one of them being merged in the other. The ■ 
 amalgamation of two companies registered under the Companies Act, 
 1862, is effected by one of them going into voluntary liquidation, and 
 authorizing the liquidators to transfer or sell its property or business to 
 the other company in consideration of shares in the latter company to be 
 distributed among the members of the company being wound up. 4 
 
 § 2. Life assurance companies can only amalgamate with the sanction Assurance 
 of the High Court (on application to t the Chancery Division), and on com P anies - 
 complying with various formalities. 5 § 3. Industrial and provident 
 societies may amalgamate by special resolution. 6 
 
 AMBASSADORS are diplomatic agents residing in a foreign 
 country as representatives of the states by whom they are despatched. 
 In the strict sense of the word, an ambassador can only be despatched 
 by certain states of superior power and dignity, but, in its modern use, 
 the word also includes resident ministers despatched by any independent 
 state. 7 § 2. Ambassadors and their domestic servants are privileged from Privileges, 
 all arrest and process ; persons prosecuting or executing any process of 
 imprisonment against any -ambassador or his domestic servant without 
 his leave are guilty of a misdemeanor." (See Charge d' Affaires; Extra- 
 territoriality ; Alienage?) 
 
 AMBIGUITY. — § 1. In ascertaining the intention of a testator as 
 expressed in his will, or of the parties to a contract, a distinction is made 
 between patent and latent ambiguities. Thus, if a blank is left, or if Patent, 
 there is an obvious uncertainty or inconsistency in the instrument, this is 
 a patent ambiguity, which cannot be supplied or explained by extrinsic 
 evidence. If, however, the instrument is apparently complete and clear, but Latent. 
 
 1 Chittyon Contracts, 718 ; Pigot'scase, * Sects. 161, 162; Thriiig on Com- 
 
 11 Co. 27; Masterv. Miller, 4 T. R. 320; panies, 189. 
 
 1 H. Bl. 357 ; Smith, L. C. i. 871. 6 Life Assurance Companies Act, 1870 ; 
 
 3 Leake, 427. Thring, 743. , 
 
 3 Stat. 1 Vict. c. 26, s. 21 ; the initials ° I. & P. Soc. Act, 1876, s. 16. 
 
 of the testator and witnesses in the margin 7 Manning's Law of Nations, 106. 
 
 •are enough; In the goods of Blewitt, JP. 8 Stat. 7 Anne, c. 12 ; Smith's L. C. i. 
 
 D. 116. 714; Steph. Comm. ii. 485. 
 
4 6 
 
 Ameliorating 
 
 LAW DICTIONARY. 
 
 Amercement 
 
 it appears in the course of applying or executing it that its words are equally 
 applicable to two different things or persons, and there is nothing in it to 
 show which was meant, then the ambiguity is latent, and extrinsic evidence 
 is admissible to show which was meant, — as where a testator devises his 
 " manor of Dale," and he has two manors of that name ; or where he 
 bequeaths property to his cousin, A. B., and he has two cousins of that 
 name; or where persons contract with reference to a ship "Peerless," 
 and it appears that there are two of that name. 1 (See Evidence.) 
 
 AMELIORATING. See Waste. 
 
 AMENDMENT, in procedure, is the alteration of a pleading, writ, 
 petition, or the like, to make it accord with the facts of the case or with 
 the rules of practice. Under the new practice, amendments are of three 
 
 Voluntary. kinds. § 2. Where a person commences an action, and finds out from 
 the defendant's pleadings or his answer to interrogatories that he has 
 misapprehended the facts, it is generally necessary for him to amend his 
 statement of claim (and in some cases his writ) by stating the true facts, 
 adding or striking out parties, &c. So the defendant may find it neces- 
 
 Compulsoiy. sary to amend his pleadings. 2 § 3. The Court may compel a party to 
 amend his pleading, e.g. if it is calculated to embarrass his opponent. 3 
 § 4. A general power of allowing amendments is given to the Court, in 
 order to prevent slips, bad pleading, &c, from defeating justice. 4 This 
 power is sometimes exercised so late as at the trial of an action, where it 
 is obvious that the amendment does not take the other side by surprise. 
 (See Confession and Avoidance ; Variance.) 
 
 Amendment 
 of errors, &c. 
 
 AMENDS is compensation. By stat. 11 & 12 Vict. c. 44, when notice 
 of an action against a justice of the peace for anything done by him in 
 execution of his office has been given to him, he may tender the com- 
 plainant such sum of money as he may think fit, as amends for the injury 
 complained of, and, if the action is commenced, he may pay it into Court. 
 If the jury are of opinion that the plaintiff is not entitled to more, they 
 must give a verdict for the defendant, who is then entitled to have his 
 costs paid out of the sum in Court, and the plaintiff only receives the 
 balance. 5 Parish, borough, and special constables, and some other officers 
 and persons, have a similar privilege. 6 (See Notice of Action?) 
 
 AMERCEMENT, or AMERCIAMENT, was a fine to which a plaintiff or 
 demandant was liable if he failed in his action, or was nonsuited, &c. To be amerced 
 was to be in mercy of the king, in misericordiA domini regis, and the amount of the fine 
 
 1 Leake on Contracts, 179; "Watson's 
 Comp. Eq. 1206. 
 
 2 Rules* of Court, xxvii. 2 — 5. As to 
 amendment by adding or striking out par- 
 ties, .see Wymer v. Dodds, 11 Ch. D. 
 436- 
 
 3 Rules of Court, xxvii. r. 1. 
 
 4 Ibid. 1. 6 ; Rules of December, 1879, 
 
 5 Archbold, Pr. 1054. 
 
 6 Ibid. 1059 et seq. 
 
Amicus Curice law dictionary. Ancestor 47 
 
 imposed seems to have been originally arbitrary, 1 but in modem times it was always 
 affered or assessed by a jury, 3 therein differing from a fine in the technical sense, which is 
 assessed by the Court. 3 
 
 Amerciaments are now wholly obsolete. 4 (See Affere ; Fine, § 2.) 
 
 AMICUS CURIAE is a person who, being in Court and a stranger to 
 the case then in course of discussion, gives the judge information on a 
 question of which he may take judicial notice ; e. g. of an unreported 
 decision, &c. Counsel not unfrequently act as amid curia: in cases in 
 which they are not concerned. 
 
 AMORTISE. — § i. In the old writers, amortise is used in the sense Land. 
 of conveying land in mortmain, with the licence of the superior lords and 
 the crown. 5 (See Mortmain?) 
 
 § 2. In its modern sense, amortisation is the operation of paying off Bonds, &c. 
 bonds, stock, or other indebtedness of a state or corporation. 
 
 AMOTION — AMOVE. — § i. To amove is to take away, remove ; and 
 amotion is the act of so doing. (See Amoveas Manus.) § 2. The statute Amotion from 
 22 Geo. 3, c. 75 (Burke's Act), empowers the governor and council of office - 
 any colony to amove any person from any office, and gives the person so 
 amoved the right to appeal to the king in council, if he considers 
 himself aggrieved. There is no regular practice applicable to appeals for 
 amotion from office under this act. 6 
 
 AMOVEAS MANUS is a writ issuing from the High Court of Writ of. 
 justice (Exchequer Division), and commanding the restitution to a person 
 of property belonging to him which is in the possession of the crown : as 
 where judgment is given against the crown in proceedings by extent {q. v.), 
 or where in former times the property of an outlaw was seized, and the 
 outlawry was afterwards reversed.' (See Traverse, § 3.) 
 
 § 2. Under the old practice on petitions of right (q. v.), where the Judgment of. 
 decision was against the crown, the judgment was called judgment of 
 amoveas manus, because it directed that the king's hands should be 
 amoved from the property, and possession restored to the suppliant : 
 the modern judgment in such a case merely specifies the relief to which 
 the suppliant is entitled, but has the same effect as a judgment of amoveas 
 manus formerly had, the peculiarity of it being that it transfers the seisin 
 or possession of the property to the suppliant, without any execution 
 issuing. 8 
 
 ANCESTOR is a deceased person from whom another has inherited 
 land. (See Heir; Predecessor.) 
 
 1 Britton, 219 b. In Britton's time other que fait aucun hault justicier a personne ou 
 people besides parties to suits could be gens d'eglise, de tenir aucun heritage en leur 
 amerced ; see 4 a, 15 a, 218 b. main a perpetuite." Grand Cout. 258. 
 
 2 8 Co. 39 b. ° Macpherson, Privy C. Pr. 15, 62. 
 
 3 Ibid. 39 a. ' Chitty, Pr. (12th edit.) 1318. 
 
 4 Bl. Comm. iii. 376. 9 Stat. 23 & 24 Vict. c. 34; Staunf. 
 
 5 Stat. 15 Rich. 2, c. 5 ; Bl. Comm. ii. Prer. 77 b ; Chitty, Prer. 349 ; Steph. 
 272. " Amortissement est conge ou octroy Comm. iii. 657. 
 
48 Ancient Demesne law dictionary. Animals Fer<z Natures 
 
 ANCIENT DEMESNE is a freehold tenure confined to socage 
 lands held of manors which belonged to the crown in the reigns of 
 Edward the Confessor and William I., and are described in Domesday 
 Book as crown lands {term regis or terra regis Edwardi). The tenants are 
 freeholders, 1 and formerly had exceptional privileges, the chief of which 
 was the right to sue and be sued on questions affecting their lands in a 
 manorial court called the Court of Ancient Demesne ; 2 this and most of 
 their other privileges have been taken away, 3 but they still have in many 
 instances peculiar customs of descent, dower, curtesy, &c, similar to those 
 of borough-English and gavelkind lands. 4 
 
 ANCIENT DOCUMENTS OR WRITINGS are documents of 
 such a date that it cannot be reasonably expected to find living persons 
 acquainted with the handwriting of the supposed writer. In such a case 
 the law allows them to be compared with other ancient documents which 
 have been preserved as authentic; but no proof of a deed more than 
 thirty years old is required if it comes from an unsuspected repository. 6 
 § 2. Ancient documents are sometimes allowed to prove matters of public 
 and general interest, such as parish boundaries, rights of common, &c, 
 although they would otherwise be rejected for want of originality. 6 
 Ancient § 3. Ancient documents purporting to have been executed contempora- 
 
 neously with the transactions to which they relate are receivable as 
 evidence of ancient possession when they come from the proper custody, 
 as an exception to the rule against secondhand evidence. 7 (See Evidence.) 
 
 ANCIENT LIGHTS. See Easement. 
 
 ANCIENT MESSUAGES are houses or buildings erected before 
 the time of legal memory, 8 that is, before the reign of Richard I., although 
 practically any house is an ancient messuage if it was erected before the 
 time of living memory, and its origin cannot be proved to be modern. 
 Ancient houses frequently have rights of common (e.g. common of 
 estovers) attached to them and to houses built in their stead on the old 
 site, 9 and the easements of light and support were formerly confined to 
 ancient houses, but now the provisions of the Prescription Act (q. v.), and 
 the modern rules applied by analogy to cases not within the act, have 
 made the doctrine unimportant. (See Lost Grant.) 
 
 ANIMALS FER^E NATURE are such as are of a wild and un- 
 tameable disposition, such as deer, fish, &c. Independently of the 
 
 possession. 
 
 1 "There are, however, as a rule, in liams on Seisin, 31. 
 manors of ancient demesne, customary - Bl. Comm. ii. 99. 
 
 freeholders, and sometimes copyholders, at 3 Stat. 3 & 4 Will. 4. c 27 s *6 • t & 
 
 the will of the lord, as well as the true 4 Will. 4, c. 74, s. 4. ' ' ' ' 
 tenants in ancient demesne." Elton, J Elton, 7. 
 
 Copyh. 8 (see Socage, $ 3); Britton, 165 a. 6 Best on Evidence, 307, 33? 
 
 It is right to add that some writers con- e Ibid. 633. 
 
 sider tenure in ancient demesne to be a 7 Ibid. 635. 
 
 species of copyhold tenure, but the weight e Cooke, Incl. 35, 109. 
 
 of authority is the other way. See Wil- 8 Ibid. ; Williams on Commons, 186 
 
 m 
 
Animus law dictionary. Annul 49 
 
 statutory provisions, known as the game laws, applicable to these animals, 
 they are exceptions from some general rules of law : thus a man can have 
 no complete ownership in them, although he may have the possession of 
 them; and, therefore, as soon as they cease to be in his actual possession, 
 any one else may seize and keep them. A man may, however, have a 
 qualified ownership in animals ferae naturae, either by taming and con- 
 fining them, or by having the privilege of keeping them in a forest, park, 
 or other franchise (q. v.), for in either of those cases no other person can 
 lawfully take them so long as they remain in confinement. 1 (See Occu- 
 pancy.) § 2. Again, on the death of a man, the deer in his park, the 
 rabbits in his warren, the doves in his dove-house, and the fish in his 
 pond, pass to his heir and not to his executors, as in the case of domestic 
 animals and other chattels. 2 § 3. Animals ferae naturae are the subject of 
 larceny if they are kept for profit or any domestic purpose, or if they are 
 ordinarily kept in a state of confinement. 3 (See Game; Cruelty ; Scienter.) 
 
 ANIMUS = intention. 
 
 ANNUITY is the right to the yearly payment of a certain sum of 
 money, granted or bequeathed by one person to another. When it Personal, 
 charges only the person and personal representatives of the grantor, or is 
 granted out of or charged on personal property, it is a personal annuity. 
 When it issues out of land with a clause of distress it is a real annuity or Charged on 
 rent-charge ; without such a clause, it is a rent-seek (see Rent) ; in either ' 
 case it is an incorporeal hereditament, and may be limited for life, in fee, 
 or in tail, in the same way as land. Annuities of this kind must be 
 registered. 4 
 
 § z. A personal annuity may either be perpetual, for life, or for years, Perpetual, 
 and a perpetual annuity may be limited either to the heirs or the executors ' 
 of the grantee ; in the former case it is an annuity in fee. When limited iu fee - 
 to the heirs of the body of the grantee it is an annuity in fee simple con- 
 ditional, because the Statute de Donis (q. v.) does not apply to personal 
 annuities. 5 (See Fee.) A personal annuity in fee descends to the heir of 1 
 
 the grantee on his death intestate, but it is nevertheless personal estate, 
 and therefore would not pass under a devise of real estate. 
 
 ANNUL. — § 1. To annul a judicial proceeding is to deprive it of its 
 operation, either retrospectively or only as to future transactions. Thus, 
 annulling an adjudication in bankruptcy puts an end to the proceedings, 
 without invalidating any acts previously done by the trustee or the Court, 
 and makes the property of the bankrupt revert to him, unless the Court 
 otherwise orders. 6 
 
 1 Bl. Comm. ii. 14, 391, 419 ; so the 3 Steph. Crim. Dig. 202 ; stat. 24 & 25 
 owner of a several 'fishery has a qualified Vict. c. 96. 
 
 property in the fish before they are caught. 4 Stat. 18 & 19 Vict. c. 15. 
 
 (See Fishery.) 6 Co. Litt. 20 a, 144 b ; Watson, Comp. 
 
 2 Co. Litt. 8 a, Equity, 8 et seq. 
 
 6 Bankruptcy Act, 1869, s. 81. 
 
 S. E 
 
^o 
 
 Answer 
 
 LAW DICTIONARY. 
 
 Anticipation 
 
 To inter- 
 rogatories. 
 
 Viv& voce 
 answer. 
 
 Petition. 
 
 Divorce 
 practice. 
 
 Ecclesiastical 
 practice. 
 
 In Chancery. 
 
 Admiralty. 
 
 ANSWER.— § i. In ordinary actions in the High Court an answer is 
 an affidavit in answer to interrogatories ; it is like any other affidavit in 
 form, and requires to be filed ; if it is longer than ten folios it must be 
 printed. 1 The answer necessarily follows the terms of the interrogatories, 
 either giving information asked for, or admitting or traversing (denying) 
 the allegations impliedly contained in them. (See Traverse.) If the party 
 interrogated fails to answer, or fails to answer fully, he may be required to 
 answer viva voce. 3 
 
 § 2. A petition in the Chancery Division is said to be answered when 
 the Master of the Roll's secretary writes on it a fiat or memorandum ap- 
 pointing the day on which it is to be heard. 3 (See Fiat.) 
 
 §3. In matrimonial suits in the Probate, Divorce and Admiralty Divi- 
 sion an answer is the pleading by which the respondent puts forward his 
 defence to the petition {q. v.) ; it is filed. 4 
 
 § 4. In ecclesiastical causes the defendant is said to answer the libel 
 when he gives in an allegation (q. v.). But in all civil causes the plaintiff 
 is also entitled to what are called the personal answers of the defendant, 
 which are answers on oath to the several articles of the libel. 3 
 
 § 5. Under the old chancery practice, an answer by a defendant was, in ordinary cases, 
 not only an answer to the plaintiff's interrogatories, but also a pleading, inasmuch as it 
 contained the defendant's statement of his case ; hence, in complicated cases, answers 
 were frequently divided into two parts, one containing the defendant's statement, or the 
 facts on which he relied, and the other giving his answers to the interrogatories. If no 
 interrogatories were delivered, the defendant might put in a voluntary answer, containing 
 such facts as he thought material to his case. 6 A plaintiff's answer to a concise statement 
 and interrogatories (a. v.) was similar to a defendant's answer to interrogatories, except 
 that it was confined to giving the discovery required. 7 Every answer had to be signed by 
 counsel, sworn by the party, and filed. (See now Statement of Defence?) 
 
 § 6. Under the old admiralty practice the defendant's first pleading was called his 
 answer. 8 (See now Statement of Defence.) 
 
 ANTE LITEM MOTAM 
 
 tion." (See Lis mota.) 
 
 " before existing or anticipated litiga- 
 
 Income. ANTICIPATION.— I. § 1. In conveyancing, anticipation is the act 
 
 of assigning, charging or otherwise dealing with income before it 
 becomes due. A clause restraining anticipation is generally introduced 
 in a settlement of property on a woman, in order to protect her from the 
 influence of her husband by preventing her from depriving herself of the 
 benefit of the future income. Such a restraint cannot be imposed in the 
 case of anyone except a woman, and the restraint only exists so long as 
 she is married. 9 
 
 Patent. II. § 2. In patent law, a person is said to have been anticipated when he 
 
 patents a contrivance already known within the United Kingdom. 
 
 1 Rules of Court, xxxi. 6, 7. 
 3 Rules of Court, xxxi. 10. 
 
 3 Daniell, Ch. Pr. 1453. 
 
 4 Browne on Divorce, 223. 
 
 5 Phill. Eccl. Law, 1256, 1292. 
 
 6 Hunter's Suit, 43 ; Daniell, Ch. Pr. 457 ; 
 
 Mitford, PI. 306. 
 
 ' Hunter, 49 ; Daniell, 1406. 
 
 8 Williams & Bruce's Admiralty, 246. 
 
 9 Hayes' Conv. 499 et seq. ; Snell's Eq. 
 290; White & T. L. C. i. 468; In re 
 Ridley, 11 Ch. D. 645. 
 
Apology LAW DICTIONARY. Appeal 
 
 APOLOGY. — When an action is threatened or brought against a 
 person for a libel published in a newspaper, he may plead that it was 
 inserted without actual malice, and without gross negligence, and that an 
 apology for the libel has been published ; he may also pay a sum of 
 money into Court as amends to the plaintiff. (See Payment into Court.) 
 §.2. Any person sued in an action 1 for defamation may plead in mitigation 
 of damages that he has made or offered an apology to the plaintiff. 1 
 
 APOSTASY is a total renunciation of Christianity by one who has 
 been educated in or professed that faith within this realm. It is punish- 
 able by incapacity to hold any office, and, for the second offence, by 
 incapacity to bring any action or to be guardian, executor, legatee, or 
 grantee, and by imprisonment for three years. 2 (See Heresy.) 
 
 APOTHECARIES. See stat. 55 Geo. 3, c. 194 ; 37 & 38 Vict. c. 34. 
 
 APPARITORS (so called from that principal branch in their office, 
 which consists in summoning persons to appear) are officers of the Eccle- 
 siastical Courts appointed to execute the proper orders and decrees of the . 
 Court. 3 
 
 APPEAL. — I. § 1. In its most general sense an appeal is a proceed- 
 ing taken to rectify an erroneous decision of a Court by submitting the 
 question to a higher Court or Court of Appeal. (See Court.) The term 
 "appeal," therefore, includes, in addition to the proceedings specifically 
 so called {infra, §§ 2 — 6), the " cases " stated for the opinion of the 
 Queen's Bench Division and the Court for Crown Cases Reserved, &c, 
 under various statutes (see Case) and proceedings in error (see Error). 
 
 § 2. In the Supreme Court of Judicature, every appeal from a judgment Court of 
 or order of the High Court to the Court of Appeal is in the nature of a PP eali 
 rehearing {q. v.), and is brought by a simple motion in the Court of Appeal, 
 asking that the judgment or order complained of may be reversed, dis- 
 charged, or varied. 4 § 3. Appeals can also be brought on interlocutory 
 proceedings in chambers, from the master, chief clerk, or district regis- 
 trar, to the judge in chambers. In the Common Law Divisions, an 
 appeal lies from the judge in chambers to the Divisional Court, and thence 
 to the Court of Appeal ; 5 while in the Chancery Division, the judge in 
 chambers may either direct the matter to be argued before him in Court 
 (after which an appeal lies to the Court of Appeal) or may give leave to 
 appeal direct to the Court of Appeal. 8 
 
 § 4. Appeals to the House of Lords are brought by petition of appeal, House of 
 which is lodged by the appellant at the Parliament Office, and presented Lor ds- 
 to the House at its next meeting by the Lord Chancellor or Clerk of the 
 
 1 Stat. 6 & 7 Vict. c. 96. i Smith's Action, 214 ; Rules of Court, 
 
 2 Stat. 9 & 10 "Will. 3, c. 35; Steph. Iviii. 
 
 Comm. iv. 201. 5 Rules of Court, liv. 4, 5, 6, xxxv. 7. 
 
 3 Phill. Eccl. Law, 1246. " Dickson v. Harrison, 9 Ch. D. 243. 
 
 v. 9 
 
 51 
 
52 
 
 Privy 
 Council. 
 
 Inferior 
 courts. 
 
 Appeal 
 
 LAW DICTIONARY. 
 
 Appeal 
 
 Parliaments, after which an order requiring the respondent to lodge his 
 printed case is issued and served on him. If he intends to contest the 
 appeal, he enters an appearance, and the appellant gives security for 
 costs. Each party then lodges a printed case stating the facts and 
 reasons in his favour, and an appendix is also prepared containing 
 printed copies of the documents and other evidence used in the Court 
 
 below. 1 
 
 § 5. In appeals to the Privy Council leave to appeal has in most 
 instances to be obtained either from the Court below or from the Judi- 
 cial Committee, and security given for the costs of the appeal. The 
 appellant then causes a transcript of the pleadings and evidence in the 
 Court below to be transmitted to the Colonial Office, with the reasons 
 assigned by the judges for the decision appealed from. The appellant 
 also prepares and lodges his petition of appeal, giving a short abstract of 
 the proceedings. The respondent being generally aware of the appeal 
 having been lodged, he ought to enter an appearance, and then both 
 parties prepare their cases, and an appendix containing the material docu- 
 ments, &c. The cases and appendix are printed. If the respondent does 
 not appear, two successive notices to him to do so are posted at the Royal 
 Exchange and Lloyd's Coffee House, or the appeal is brought to his 
 knowledge in some other way, and if he still fails to appear, the appeal is 
 heard ex parte. 2 
 
 § 6. Appeals from inferior Courts to the High Court are generally 
 brought in one of two ways, either by a case or special case stated for the 
 opinion of the Appellate Court, 3 or by a motion to the Appellate Court. 4 
 (See Writ of Error; Writ of 'False Judgment, .) 
 
 As to appeals in ecclesiastical cases, see Phillimore, Eccl. Law, 1264 et seq. 
 
 Appeal of II. § 7. Formerly appeal (or "appeal of felony") signified a criminal proceeding, 
 
 felony. being an accusation by one private subject against another for some heinous crime de- 
 
 manding punishment, rather on account of the particular injury suffered by the individual 
 than for the offence against the public. 5 Appeals were of three classes, namely, by an 
 heir for the death (by murder or homicide) of his ancestor, by a wife for the death of her 
 husband, and by the appellant for a wrong done to himself or herself, as robbery, rape, 
 mayhem, &c. The judgment on a conviction on an appeal was the same as on a con- 
 viction on an indictment (except in the case of mayhem, for which damages only could be 
 recovered) ; but an appeal was so far considered a private action that it could be released by 
 the party injured. 6 Appeals were abolished by stat. 59 Geo. 3, c. 46. (See Trial.) 
 
 Etymology.] — "Appeal," in the sense of a criminal proceeding, comes from the 
 Norman-French apel, from appeler, to accuse,' from the Latin appellare, to call upon. 
 
 "Appeal," in the modem sense, seems to have come direct from the Latin appellare 
 (which has the same meaning 8 ), through the ecelesiastical Courts. 9 Its use in the tem- 
 poral Courts seems quite modern, the old terms being " error" and " rehearing." 
 
 1 Appellate Jurisdiction Act, 1876; 
 Standing Orders and Instructions (issued 
 by the House of Lords), May, 1878; 
 Denison & Scott's Pr., passim. 
 
 2 Macpherson's Privy C. Pr., passim. 
 
 3 As to County Courts, see Pollock's 
 C. C. Pr. 238. 
 
 . * Pollock, 242. 
 s Bl. Comm. iv. 312. 
 
 6 Co. Litt. 287b; 123b; Litt. §§500 tf 
 seq.; Bl. iv. 316. 
 
 7 Britton, 38 b. 
 
 8 Dig. xlix. 
 
 9 Co. Litt. 287 b. 
 
Appeal, &c. law dictionary. Appearance 53 
 
 APPEAL DEPOSIT ACCOUNT.— Under the former practice of 
 the Court of Chancery, when a party wished to appeal or have a rehear- 
 ing, he had to deposit 20/. as security for the costs of the opposite party, 
 in case he was unsuccessful. These deposits were paid into the Bank of 
 England to the above account, and were supposed to be paid out again 
 on the termination of each appeal ; but as it frequently happened that 
 the parties forgot all about them, a considerable sum has accumulated on 
 the account. 1 (See Account, §15.) 
 
 APPEARANCE.— § 1. In the primary sense of the word the parties 
 to a proceeding or application {e.g. a petition, motion, summons, &c.) are 
 said to appear on it when they are present before the Court, judges &c, 
 when it is heard. A party appears either in person or by his counsel or 
 solicitor. 
 
 § 2. In the secondary sense of the word, appearing or entering an ap- Entry of 
 pearance is a formal step taken by a defendant to an action after he has appearance. 
 been served with the writ of summons : its object is to intimate to the 
 plaintiff that the defendant intends to contest his claim, or in a friendly 
 action to take part in the proceedings in the action. (See Default.) In 
 some cases persons may appear who are not defendants to the action, 
 e.g. persons desiring to intervene in probate and admiralty actions (see 
 Intervention), or in actions for the recovery of land, and persons cited t*S 
 appear. (See Citation; Counterclaim.) 
 
 § 3. Appearance is effected by delivering to the proper officer of the Memoran- 
 Court a memorandum giving the title of the action, stating that the defen- dum - 
 dant appears in person or by his solicitor, as the case may be, giving the 
 address of himself or his solicitor (see Address for Service), and stating 
 whether he requires a statement of claim to be delivered. The defendant 
 must also produce a duplicate memorandum for sealing, which he afterwards 
 sends to the plaintiff. 2 § 4. Special forms of appearance are used in Limited 
 actions for the recovery of land : thus any person appearing in such an a PP earance - 
 action may by his appearance limit his defence to a part of the property. 3 
 
 § 5. In Chancery practice, where a defendant desires to object to the Conditional 
 regularity of the proceeding by which the plaintiff seeks to compel his a PP earance - 
 appearance, he must enter a conditional appearance, and then apply to 
 the Court to set aside the plaintiff's proceeding. This is the proper 
 course to pursue if a plaintiff irregularly obtains an order for substituted 
 service of a writ of summons on the defendant. 4 
 
 As to appearance under protest, see Protest. 
 
 § 6. If a defendant does not appear the plaintiff may in some cases sign 
 judgment, and in other cases proceed with his action. 6 (See fudgment.) 
 
 § 7. "Appearance" has a peculiar meaning in bailable process (see Bail), In bailable 
 where, to effect a complete appearance, the defendant is required to give proc ' 
 
 1 Daniell, Ch. Pr. 1350; stat. 15 & 16 3 Rules of Court* xii. 21; xiii. 7. 
 
 Vict. c. 87 ; Report of Chancery Funds " 4 Daniell, Ch. Pr. 459. As to appearing 
 
 Commissioners (1864), xliv. gratis under the old practice, see ibid. 462. 
 
 2 Smith's Action, 54 et seq.; Rules of 5 Rules of Court, xiii. 
 Court, xii.; Rules of April, 1880. 
 
54 Appendant law dictionary. Appointment 
 
 bail to the action, that is, to provide two sufficient sureties, who enter into 
 a recognizance to the effect that if judgment be given against him he shall 
 either satisfy the plaintiff or render himself to prison ; the ordinary kind 
 of appearance was called "common appearance" by way of distinction. 
 Bailable process having been abolished in ordinary actions, this kind of 
 appearance now only exists in proceedings in the Mayor's Court, where, 
 if the defendant wishes to dissolve (that is, put an end to) an attachment 
 of his property, he must appear according to the custom, either by putting 
 in bail, by rendering himself to prison, or by payment into Court of the 
 debt or the value of the property attached ; when he has done one of 
 these things his appearance is said to be perfected. 1 
 
 APPENDANT is often used in the same sense as appurtenant (q. v.), 
 that is, to signify that a hereditament is annexed to another : " appendant 
 is any inheritance belonging to another that is more superior or worthy," 2 
 and the difference between appendant and appurtenant is merely one of 
 name, appendant being applied to some things and appurtenant to others. 
 Historically, the difference seems to be that rights which were originally 
 created by implication of law and annexed to estates in land are properly 
 called appendant, and all others appurtenant. Thus common appendant 
 is the right which socage tenants of a manor have by the common law to 
 feed their beasts on the wastes of the manor, while common appurtenant 
 is a right gained from the lord by grant or prescription. 3 (See Lost Grant.) 
 So, an advowson or seignory is said to be appendant to a manor, 4 because 
 it is created and annexed to the manor by implication of law. 5 A cor- 
 poreal hereditament cannot be appendant to another corporeal heredita- 
 ment, nor an incorporeal to an incorporeal. (See Appurtenant; Regardant; 
 In Gross.) 
 
 APPENDIX.— In the practice of the House of Lords and Privy 
 Council in appeals, the appendix is a printed volume containing the 
 material documents or other evidence used in the Court below, and 
 referred to in the cases of the parties. 6 (See Appeal; Case.) 
 
 APPOINTMENT is the act of designating a person for a certain pur- 
 pose, e.g. to an office or as trustee, or to take an estate or interest in property 
 under a power of appointment. (See Power.) 
 Under power. § 2. An appointment of the latter kind takes effect as if the estate 
 limited by the power had been created. by the instrument which conferred 
 it. Thus, if A. conveys land to such uses as B. shall appoint, and B. 
 appoints to himself for life, with remainder to his eldest son in tail, this 
 
 1 Brandon, For. Att. 104 et seq. ; First * Williams' R. P. 322. 
 
 Rep. C. L. Com. 89. 5 Ultimately, no doubt, the origin of 
 
 2 Co. Litt. 121 b, where an instance is common appendant and similar rights may 
 given of a thing corporeal being appendant be traced back to the old vills or village 
 to a thing incorporeal, namely, lands ap- communities. Williams on Commons, 39. 
 pendant to an office. 6 Standing Orders of House of Lords in 
 
 3 Burton, Comp. § 1133; Elton, Com- Appeals; Macpherson'sPrivyC.Pr.84,237. 
 mons, 14, 47, 88. 
 
Apportion law dictionary. Apportionment 55 
 
 has the same effect as if A. had originally conveyed the land to B. for life 
 with remainder to his eldest son. But with regard to the rule against' 
 perpetuities, there is a distinction between general and particular powers, 
 for under a general power the donee can appoint in any manner he 
 pleases, while under a particular power (that is, a power to appoint to one 
 or more of a limited number of persons), ho estate can be created if it 
 would have been invalid in the original deed by reason of its infringing 
 the rule against perpetuities. 1 (See Perpetuity?) 
 
 § 3. An appointment to One or more of the objects of a particular Exclusive, 
 power to the exclusion of the others is called an exclusive appointment. 
 § 4. Formerly an appointment of a merely nominal share of the property Elusory. 
 to one of the objects, in order to escape the rule that an exclusive ap- 
 pointment could not be made unless it was authorized by the instrument 
 creating the power, was considered illusory and void in equity, but this 
 rule has been abolished. 2 § 5. An appointment is excessive when it is Excessive. 
 made to persons not objects of the power, or for a greater estate or 
 interest than is permitted by it, or subject to conditions unauthorized 
 by it. 3 
 
 As to the defective execution of a power, see Execution, § 2 ; Aid, § 2. 
 
 APPORTION— APPORTIONABLE— APPORTIONMENT. 
 
 § 1. To apportion a thing is to divide it with reference to the interests 
 of two or more persons. Apportionment is either in respect of contem- 
 poraneous or successive interests. An instance of the latter occurs where Successive. 
 a lessor of land dies intestate ; here the rent received on the first quarter 
 day after his death is divided so that his personal representatives take the 
 part due in respect of the period between the preceding quarter day and 
 the death, and the heir takes the amount due in respect of the period be- 
 tween the death and the following quarter day. All periodical payments 
 in the nature of income are now apportionable. 4 
 
 § 2. An instance of apportionment in. respect of contemporaneous Contem- 
 interests occurs where a reversion expectant on a lease devolves by law P oraneous - 
 on several persons ; here the rent is divided between them, according to 
 their interests. 5 
 
 § 3. A contract is said to be apportionable when the acts required to be Contract, 
 done under it are so distinct that if one is performed without the others, 
 the party performing it has the right of enforcing the contract pro tanto 
 against the other party. Thus, if A. enters into a contract to supply 
 machinery to B. for a certain price, and to keep it in order for a yearly 
 payment, he becomes entitled to recover the price of the machinery as 
 soon as he delivers it, without waiting for the performance of the rest of 
 the contract. 6 (See Entire; Sever.) 
 
 1 Sugden on Powers, 396, 470; Williams 4 Apportionment Act, 1870; Williams' 
 on Settlements, 43 ; Davids. Conv. ii. 176. R. P. 28; In re Griffith, 12 Ch. D. 655 ; 
 
 2 Sugden, 449; Williams, 153; stat. 11 Lewin on Apport. passim. 
 Geo. 4 & 1 Will. 4, c. 46, and 37 & 38 5 Lewin, 2. 
 
 Vict. c. .37. 6 Merchant Banking Co. v. Phoenix, &c. 
 
 3 Sugden, 498; Watson's Comp. Equity, Co., 5 Ch. D. 205. 
 827. 
 
56 
 
 Condition. 
 
 Common. 
 
 Appraise 
 
 LAW DICTIONARY. 
 
 Appropriate 
 
 § 4. At common law a condition of re-entry in a lease was said not to 
 be apportionable by act or agreement of the parties : that is, if the lessor 
 granted a licence to the lessee to do the act forbidden by the condition, 
 or waived a breach already committed, the condition was gone for ever, 
 although the licence or waiver was expressed to be limited to a particular 
 acty or to a part of the land. 1 This absurd rule was abolished by stat. 
 22 & 23 Vict. c. 35, and 23 & 24 Vict. c. 38. 
 
 § 5. Apportionment of commons. The general rule is, that common 
 appendant and appurtenant are apportioned by alienation of part of the 
 land to which the common is appendant or appurtenant, so that each 
 person may exercise his right of common in respect of his portion of the 
 land. 2 § 6. When it is said that if a man, having a common appendant, 
 purchase part of the land over which the common exists, the common 
 shall be apportioned, but not so in the case of any other common, the 
 meaning is that in the case of common appendant the commoner continues 
 to have a right of common over the portion of the land which he has 
 not purchased, while in the case of any other common his right of common 
 is wholly destroyed by the partial unity of possession. 3 It is not clear 
 whether this is now good law. 
 
 Things 
 publici juris. 
 
 Sale of 
 goods. 
 
 APPRAISE— APPRAISEMENT.— To appraise is to value. A 
 writ or commission of appraisement is one commanding the persons to 
 whom it is directed to ascertain and return (that is, report) the value of 
 certain property: as where goods are forfeited to the crown. 4 § 2. In an 
 admiralty action in rem, an official appraisement of the property pro- 
 ceeded against is made by the marshal under a commission or order of 
 the Court, either where bail is to be given for the value of the property, 
 or where it is to be sold. 6 (See Extent?) 
 
 APPREHEND— APPREHENSION.— To apprehend a person is 
 to seize him for the purpose of taking him before a magistrate to answer 
 for some offence alleged to be committed by him. Apprehension is 
 either with or without a warrant. (See Warrant; Arrest.) 
 
 APPROPRIATE— APPROPRIATION.— I. § 1. In the primary 
 sense of the word, to appropriate is to make a thing the property of a 
 person. Thus, to appropriate a thing which is publici juris is to obtain 
 a right to the exclusive enjoyment of it, 6 so that the appropriator becomes 
 the owner. (See Occupancy) 
 
 § 2. Where a person is entitled to goods or moneys which form part of 
 a larger quantity and are not distinguished, and afterwards the goods or 
 moneys to which he is entitled are separated from the rest and set apart 
 for him, they are said to be appropriated. Thus, if A. sell to B. 1,000 
 
 \£>umJ,or's case, 4 Co. 119; Smith, L. 4 Co. 36 b ; Elton, Comm. 120 ; Williams, 
 
 C.1.4I. 766. 
 
 Co. Litt. 122 a; Williams on Com- * Manning's Exchequer, 143. 
 
 mons, 183. 5 Roscoe's Admiralty, 113, 187. 
 
 Co. Litt. 122 a; Tyrringham's case, B Masonv. Hill, 5 B. & Ad. 1. 
 
Appropriation law dictionary. Appropriation 57 
 
 bricks, to be selected and taken away by B. from a certain stack, then, as 
 soon as B. has selected and taken away 1,000 bricks, they are appro- 
 priated to him, and the sale, which before was executory, is now 
 complete. 1 
 
 § 3. When money or goods are appropriated (that is, set apart) for the pur- Specific ap- 
 pose of securing the payment of a specific debt or class of debts, they are P ro P riation - 
 said to be specifically appropriated for that purpose. Thus, where A. draws 
 a bill of exchange on B. and remits to B. a bill of lading, draft, or other 
 document of title as security for the repayment of the bill, and B. accepts the 
 bill on that footing, the bill of lading is specifically appropriated to the 
 payment of the bill of exchange. The consequence of such a specific 
 appropriation is that the goods represented by the bill of lading are ap- 
 plicable exclusively to the payment of the bill of exchange, in whosesoever 
 hands the latter may be, and that when the bill has been satisfied, the 
 goods represented by the bill of lading (or what remains of them after 
 payment of the bill) revert to A., the original owner. Hence, if B. 
 becomes bankrupt before the goods are applied in payment of the bill, 
 and a balance remains after payment of it, the balance belongs to A. 3 
 
 II. § 4. To appropriate also means to distribute. The property in Distribution, 
 goods of a deceased person is in the executor or administrator, and it is 
 
 his duty to appropriate them, that is, to distribute them among the 
 persons entitled (legatees or next of kin, &c.) according to their rights. 
 
 §^. Appropriation of payments. If A. borrows, from B. a sum of 50/. Appropriated 
 on the 1 st January and another sum of 50/. on the 1st July, and on the P a yment. 
 1 st December pays him 50/., saying that it is in satisfaction of the debt 
 incurred on the 1st July, he is said to appropriate the payment to that 
 debt. The question whether a payment is appropriated by the debtor is 
 important in many ways ; thus, if A. owes B. two sums, one of which is 
 barred by the Statute of Limitations, while the other is not, and A. makes 
 a payment to B. without appropriating it (which is called a general pay- General 
 ment), then B. may appropriate it to the statute-barred debt, although he P a y ment ' 
 could not recover it by action. The general rule is that the debtor may 
 appropriate the payment at the time ; that if he fails to do so the creditor 
 may do so, and that if they both fail to do so the law will appropriate the 
 payment to the earliest debt. 3 (See Clayton's Case.) 
 
 § 6. Appropriation of supplies is the mode by which parliament regu- Supplies, 
 lates the manner in which the public money voted in each session is to be 
 applied to the various objects of expenditure [e. g. the army, navy, civil 
 service, &c), and the Appropriation Act is an annual act passed for the 
 purpose. 4 
 
 III. § 7. In ecclesiastical law appropriation is where a benefice is per- Benefice, 
 petually annexed to a spiritual corporation, either aggregate or sole, as 
 
 1 Benjamin on Sales, 264; Kershaw v. 3 See generally as to appropriation of 
 Kershaw, L. R., 9 Eq. 56. payments, Chitty on Contracts, 684 et 
 
 2 Ex parte Gomez, L. R., loCh. 639; seq.; Leake on Contracts, 491; Snell's 
 Banner v. Johnston, L. R., 5 H. L. 157; Equity, 418. 
 
 Steele v. Stuart, L. R., 2 Eq. 84 ; In re i Bl. Comm. i. 335, n. ; Steph. Comm. 
 
 Entwisile, 3 Ch. D. 477; Ranken v. ii. 579, note ; Hallam, Const. H. iii. 159; 
 Alfaro, S Ch. D. 786. Horn. Cox, Inst, of Eng. Gov. 
 
5? 
 
 LAW DICTIONARY. 
 
 Arbitration 
 
 Commonsf 
 
 Crime. 
 
 Approve 
 
 the patron of the living. In such a case the cure of souls is generally 
 given to a clerk who, from being in effect the deputy of the appropriator 
 or patron, is called the vicar {vicarius) ; he is instituted and inducted 
 in much the same way as a rector, but he has only a portion of the 
 emoluments of the living— generally a part of the glebe and a particular 
 share of the tithes. 1 In some appropriated churches the officiating 
 minister is a perpetual curate. 2 (See Impropriation; Tithes.) 
 Etymology.]— From Latin ad, to, and proprius, belonging. (See Property.) 
 
 APPROVE,— § i. By the Statute of Merton (20 Hen. 3, c. 4) the 
 lord of a manor may enclose portions of the waste lands, if they are sub- 
 ject only to a right of common of pasture, and provided he leaves suffi- 
 cient common for those entitled thereto. This is called " approving," 
 from appropriare, to appropriate. 3 (See Inclosure; Common?) 
 
 § 2. In criminal law approvement was a species of confession, by which 
 a person indicted of a capital crime, confessed it before plea pleaded, and 
 accused others, his accomplices, of the same crime in order to obtain his 
 pardon. The approvement was equivalent to an indictment. It has long 
 been obsolete. 4 (See Queen's Evidence!) 
 
 APPURTENANT signifies that a right is annexed to land, the con- 
 nexion having arisen either by grant or by prescription from long adverse 
 enjoyment. In such a case the appurtenant thing passes with the thing 
 to which it is annexed whenever a conveyance or transmission of the 
 latter takes place. The principal instances of appurtenant rights occur 
 in the case of commons and rights of way, which may be annexed to 
 lands or houses, and franchises, which may be annexed to manors. 6 (See 
 those titles; also Appendant; In Gross; Regardant?) 
 
 ARBITRAMENT AND AWARD was the technical name for the 
 plea used in a common law action for damages where the parties had 
 submitted the question to an arbitrator, and he had made his award, for 
 this was a good defence to the action. 6 Arbitrament (Norman French, 
 arbitremenf) is the old word for arbitration (q. v.). 1 
 
 By consent. 
 
 ARBITRATION is the settlement of a question (usually one of fact) 
 by the decision of one or more persons, called arbitrators, to whom the 
 dispute is referred. As a general rule, any question which might be 
 determined by a civil action may be referred to arbitration. Arbitration 
 is either by consent or compulsory. § 2. Arbitration by consent is 
 effected by a submission to arbitration; if no action has been com- 
 
 1 Bl. Comm. i. 304 ; Phill. Eccl. Law, 
 268, where the history of appropriations 
 will be found. 
 
 2 Phill. 276. 
 
 3 Bracton, 228a; Williams on Commons, 
 103; Stat. West. II. (13 Edw. 1, c. 116) : 
 not from " an antient expression signifying 
 
 the same as improving," as stated by 
 Blackstone, ii. 34. 
 
 4 Steph. Comm. iv. 394. 
 
 8 Co. Litt. 121b; Williams' R. P. 328. 
 
 8 Chitty on Contracts, 725. 
 
 7 Termes de la Ley, s. v. 
 
Archbisfiop law dictionary. Archbishop 59 
 
 menced concerning the matter in dispute, the submission takes the form 
 of an agreement, called an agreement of reference ; if an action has 
 been commenced, and the parties are willing to have the question 
 decided by arbitration, an order, of reference is made by a judge or the 
 Court, and in that case the order forms the submission. Sometimes the 
 question is referred to two arbitrators, and in the event of their disagree- 
 ing, then to an umpire (q. v.). Under the Common Law Procedure Act, . 
 1854, s. 17, any written submission to arbitration may be made a rule of 
 one of the superior Courts so as to give the Court jurisdiction to enforce 
 or set aside the award ; and the same act (s. 5) gives the arbitrator power 
 to state a special case (q. v.) for the opinion of the Court on a question 
 of law arising in the arbitration. 1 § 3. Compulsory arbitration is where Compulsory. 
 an action has been brought and the Court or judge, being of opinion 
 that the matter in dispute can be more conveniently decided by an arbi- 
 trator than by a jury (as where it consists of questions of account), orders 
 it to be so determined. 2 
 
 § 4. The decision of the arbitrator (if he is a private person) is termed Award, 
 his award ; it is engrossed on paper or parchment, and signed by the 
 arbitrator, who gives notice to the parties that it is ready, and the award 
 is then considered as published. 3 As to the effect of the award, see that 
 title. If the arbitrator is a master of the Supreme Court, it is called a 
 certificate.* (See Umpire; Reference ; Inquiry?) 
 
 As to references under the Judicature Act, see Refer; Referee; also 
 Inquiry. 
 
 § 5. Provision is also made by various Acts of Parliament for the deter- Statutory, 
 mination of certain questions by arbitration : e. g. the assessment of com- 
 pensation under the Lands Clauses Act {q. v.) ; disputes between railway 
 companies under stat. 22 & 23 Vict. c. 59 ; disputes between masters and 
 workmen with reference to their employment and service, &c. 6 
 
 ARCHBISHOP is the chief of all the clergy within his province 
 (q. v.). He has two concurrent jurisdictions, one as ordinary or bishop 
 within his own diocese, the other as superintendent throughout the whole 
 province, by virtue of which he has the inspection of the bishops of that 
 province as well as of the inferior clergy, or, as the law expresses it, the 
 power to visit them. (See Visit.) He confirms the election of the 
 bishops and afterwards consecrates them ; and, when so directed by the 
 Queen's writ, he calls the bishops and clergy of his province to meet him 
 in convocation. He is also superior ecclesiastical judge within his pro- 
 vince (see Ecclesiastical Courts), and a spiritual lord of Parliament. (See 
 Parliament ; Estate, § 1.) There are two archbishops, namely, of Canter- 
 bury and York, of whom the former is the superior, being called the 
 primate of all England. 6 (See Primate?) 
 
 1 Archbold's Pr. 1306 et seq.; Daniell, * Cruikshank v. Floating Swimming 
 
 Ch. Pr. 1901 etseq. Baths Co., I C. P. D. 260. 
 
 3 Common L. Pr. Act, 1854, s. 3 et seq. ; 6 5 Geo. 4, c. 96 ; 35 & 36 Vict. c. 46. 
 
 Archbold, 1378. 6 Phill. Eccl. Law, 82; Steph. Comm. 
 
 3 Smith's Action, 444 etseq. ii. 664. 
 
60 Archdeacon law dictionary. Arraign 
 
 ARCHDEACON is a dignitary of the Church, having an eccle- 
 siastical jurisdiction, immediately subordinate to, but independent of, the 
 bishop. A diocese is frequently divided into several archdeaconries. 
 The archdeacon visits the clergy (see Visitation), and has a Court for 
 hearing ecclesiastical causes. 1 (See Diocesan Courts) 
 
 ARCHES. See Court of Arches. 
 
 ARGUMENT.— § i. The argument of a demurrer, special case, 
 appeal or other proceeding involving a question of law, consists of the 
 speeches of the opposed counsel ; namely, the "opening " of the counsel 
 having the right to begin (q. v.), the speech of his opponent, and the 
 " reply " of the first counsel. It answers to the trial of a question of 
 fact. (See Trial.) 
 
 ARGUMENTATIVE is used in two senses. 
 
 § i. In the old common law pleading, a plea was said to be argu- 
 mentative if a material fact was stated, not directly, but by inference 
 only. " Thus, to allege that E. B. was seised for life, would be to deny 
 by implication, but by implication only, that the reversion belonged to 
 him in fee ; and, therefore, to avoid argumentativeness, a direct denial 
 that the reversion belonged to him is added." 3 This sense is obsolete. 
 
 § 2. In the more modern sense, an affidavit is said to be argumentative 
 if it contains, not merely allegations of fact, but arguments as to the 
 bearing of those facts on the matter in dispute such as should be left 
 to be advanced when the matter comes before the tribunal. This is 
 forbidden. 3 
 
 ARMS " in the common law signifieth anything that a man striketh or 
 hurteth withal," including therefore sticks, stones and fists, 4 as in the 
 'expression vi et armis (q. v.). 
 
 ARRAIGN— ARRAIGNMENT.— The arraignment of a prisoner, 
 against whom a true bill for an indictable offence has been found by the 
 grand jury, consists of three parts : first, calling the prisoner to the bar 
 by name ; secondly, reading the indictment to him ; and thirdly, asking 
 him whether he be guilty or not of the offence charged. On this he either 
 confesses, pleads, or stands mute. 5 (See Confession; Plea; Mute; Trial; 
 Issue.) 
 
 Etymology.] — Old French, aragnier, areisnier ; Latin, ad rationem ; to call to 
 account. 6 (See Deraign.) To "arraine an assize" was to bring an action.' 
 
 1 Bl. Comm. i. 383; Phill. Eccl. Law, 5 Archbold, Crim. PL 146; Steph. 
 
 236 et seq. Comm. iv. 389. 
 
 3 Stephen, Plead. (5) 208, 422. « Skeat'sEtym. Diet. s. v. 
 
 * Rules of Court, xxxvii. 3. ' Litt. §§ 366, 442; Co. Litt. 262 b. 
 i Co. Litt. 161 b. 
 
Arrangement law dictionary. Arrest 61 
 
 ARRANGEMENT WITH CREDITORS.— § i. The principle of 
 administering the estate of an insolvent by private arrangement with his 
 creditors, whether under the supervision of the Court of Bankruptcy or 
 not, but without the debtor actually being made bankrupt, was introduced 
 by the act 6 Geo. 4, c. 16, and developed by the act of 1849 and subse- 
 quent acts. 1 The arrangement was effected either by means of a deed Deed of ar- 
 assigning all the debtor's property to trustees for the benefit of his credi- ran g emen '- 
 tors, or by a resolution passed by the creditors, and the assent of a certain 
 majority of the creditors to a composition offered by the debtor was 
 binding on the minority. § 2. These acts have been repealed, and under Arrangement 
 the existing bankruptcy law arrangements consist either of a liquidation, £ y composi- 
 where the debtor's property is administered in much the same manner as liquidation. 
 in bankruptcy; or a composition,- when the debtor pays his creditors a 
 fixed proportion of their debts. (See Liquidation ; Composition!) § 3. An Registration 
 office is attached to the London Bankruptcy Court called the " Office for office - 
 Registration of Arrangement Proceedings," and presided over by registrars 
 appointed by the Chief Judge ; all petitions and proceedings in liquidations 
 and compositions are registered there.' 
 
 § 3. As to arrangements between joint stock companies and their credi- Companies, 
 tors, see 33 & 34 Vict. c. 104. 
 
 ARRAY. See Challenge, § 2, and note. 
 
 ARREST. — § 1 . To arrest is to stop. The term is applied to persons, 
 to things, and to judgments. 
 
 I. § 2. To arrest a person is to restrain him of his liberty by some Person, 
 lawful authority. Arrest is usually made by actual seizure of the 
 defendant's person, but any touching, however slight, of the person is 
 sufficient for this purpose. And arrest is not confined to corporal 
 seizure : where the officer entered the room in which the defendant was, 
 and locked the door, telling him at the same time that he arrested him, 
 the Court held it to be a good arrest. And if the officer say, " I arrest 
 you," and the party acquiesce, or afterwards go with him, this is a good 
 arrest. It seems that in order to constitute a valid arrest, the warrant 
 should be produced, or the party arrested made aware of it. 3 
 
 § 3. Arrest in civil proceedings is now rare; the principal instances civil proceed- 
 are : where a person is attached for contempt of Court (see Attachment, § 2 ; ings. 
 Serjeant-at-Arms); where the defendant in an action is suspected of in- 
 tending to leave the country before final judgment (see Debtors Act), and 
 in certain cases where a person has made default in the payment of a sum 
 of money recovered or ordered to be paid by a Court or judge, in penal 
 actions, in summary proceedings before justices of the peace, 4 and where 
 the debtor has means to pay but refuses to do so. 6 (See Committal, § 3 ; 
 Debtors Act.) 
 
 1 Robson's Bankruptcy, 4, 7, 9, 627. Excli. D. 352. 
 
 2 Ibid. 648; Bankr. Rules (1870), 315. * Debtors Act, 1869, s. 4. 
 
 3 Archbold's Pr. 606; Codd v. Cabe, I 5 Ibid. s. 5. 
 
62 
 
 Arrest 
 
 law dictionary. Arrest of Judgment 
 
 On mesne 
 process. 
 
 On final pro- 
 cess. 
 
 Criminal pro- 
 ceedings. 
 
 Admiralty 
 practice. 
 
 § 4. Formerly arrest in civil proceedings was of two kinds — on mesne 
 and on final process. At common law the object of arrest on mesne 
 process was originally to compel a person to appear in an action, but this 
 was afterwards altered so as to make it a means of compelling him to give 
 special bail. 1 (See Bail, §§ 9, 10.) Arrest on mesne process was abolished 
 by stat. 1 & 2 Vict. c. no, in all cases except that of a defendant sus- 
 pected of intending to abscond, and was abolished in that case also by 
 the Debtors Act, 1869 (q. v.), another mode of arriving at the same result 
 being substituted. Arrest on mesne process in Chancery was to compel 
 a defendant to put in an appearance or answer to a bill of complaint, 2 and 
 no longer exists, bills of complaint having been abolished. 
 
 § 5. Arrest on final process was a mode of execution, that is, of en- 
 forcing a judgment. The writ used was called a capias ad satisfacien- 
 dum (q. v.). But now this remedy has been much restricted, and is only 
 available in the cases mentioned in the Debtors Act (q. v.). (See Privi- 
 lege; Detainer: for the history of arrest, see Smith's Action, 103.) 
 
 § 6. In criminal procedure, arrest is generally made under a writ of 
 capias, or venire facias, or a warrant (q. v.). Arrest without warrant' is only 
 allowed in certain cases, as where a person is either seen committing an 
 offence or is apparently about to commit some offence. 3 
 
 II. § 7. In admiralty actions a ship or cargo is arrested when the 
 marshal has served the writ of summons in an action in rem. 4 (See 
 Action, §§ 12, 17; Bail, § 4 ; Release.) 
 
 Etymology.] — Old English, aresten ; old French, arester; from Latin, ad and restore 
 {re, back, and stare, to remain). 5 
 
 ARREST OF JUDGMENT.— § 1. On a criminal prosecution, when 
 there is some objection on the face of the record {e.g. a material mis- 
 statement or uncertainty in the indictment not aided, that is, not cor- 
 rected, by the verdict), the defendant may at any time between conviction 
 and sentence move the Court in arrest of judgment, and if the objection 
 is well founded, judgment of acquittal is given, which, however, is no bar 
 to a fresh indictment. 6 
 
 § 2. Under the old common law practice, where a defendant might 
 have taken, but did not take, some objection of substance to the plain- 
 tiff's pleading by demurring to it, and a verdict was found for the plaintiff, 
 the defendant might then take the objection by moving in arrest of 
 judgment, and if the objection was well founded, judgment would not be 
 entered for the plaintiff. 7 As a judgment on a verdict is, under the new 
 practice, only entered by order of the judge or Court, this procedure is 
 now inapplicable. 8 
 
 1 Bl. Comm. iii. 282 et seq. 
 
 2 Daniell, Ch. Pr. index, title Attach- 
 ment. 
 
 3 Steph. Comm. iv. 348; stat. 24 & 25 
 Vict. cc. 97, 100. 
 
 4 Williams & Bruce, 193. 
 6 Skeat, Etym. Diet. 
 
 B Archbold, Crim. PI. 17;. 
 
 7 Smith'sAction(nth edit.), 183; Steph. 
 Comm. iii. 562. 
 
 8 SeealsoRulesofCourt,xix.i8. Sect. 48 
 of the Judicature Act, 1873, which directed 
 motions in arrest of judgment to be heard 
 before Divisional Courts, was repealed by 
 the Judicature Act, 1875. 
 
Arson law dictionary. Articles of the Peace 63 
 
 ARSON, at common law, is the act of unlawfully and maliciously 
 burning the house of another man. 1 At the present day there is no dis- 
 tinction between arson and the crime of unlawfully and maliciously 
 setting fire to a place of worship, a building used in farming, trade, or 
 manufacture, a stack of hay, wood, &c, a ship, a mine of coal, or a public 
 or quasi-public building. The maximum punishment for arson is penal 
 servitude for life. Setting fire to certain other kinds of buildings, or to 
 growing crops, wood, gorse, &c, is punishable with fourteen years' penal 
 servitude. 3 (See Malicious Injuries to Property.) 
 
 ARTICLED CLERK is a pupil to a solicitor under articles of 
 agreement containing mutual covenants binding the solicitor to teach 
 and the articled clerk to learn the business of a solicitor. The stat. 
 6 & 7 Vict. c. 73, and various other Acts contain regulations limiting the 
 number of articled clerks serving the same solicitor at the same time to 
 two, fixing the time which every articled clerk must serve (three, four, or 
 five years, according to his education and preparation), and the number 
 of examinations which he must pass before he can be admitted a solicitor 
 (see Examination ; Solicitor), and regulating the manner in which articles 
 of clerkship must be registered and enrolled. If the service under the 
 articles is interrupted, or put an end to by agreement or by the death of 
 the master, or other cause, fresh articles have to be entered into for the 
 residue of the unexpired term of service. 3 
 
 ARTICLES are clauses of a document, and hence " articles" some- 
 times means the document itself: e.g. articles of agreement, articles of 
 partnership, &c. 
 
 § 2. In criminal proceedings in the Ecclesiastical Courts, the first plea 
 is called articles, because it runs in the name of the judge, who articles 
 and objects^ the facts charged against the defendant. 5 (See Libel, § 5 ; 
 Pleading.) 
 
 ARTICLES OF ASSOCIATION are regulations for the manage- 
 ment of a company formed under the Companies Act, 1862. They are 
 such as the subscribers to the memorandum of association (q. v.) deem 
 expedient, provided they do not infringe the provisions of the Act. 
 They generally contain regulations as to calls, transfers of shares, general 
 meetings, votes of members, powers of directors, &c. 6 
 
 ARTICLES OF THE PEACE are a complaint made or exhibited 
 to a Court by a person who makes oath that he is in fear of death or 
 bodily harm from some one who has threatened or attempted to do him 
 
 1 Steph. Comm. iv. 99 ; Russell on 40 & 41 Vict. c. 25. 
 Crimes, ii. 896; Steph. Crim. Dig. 298. * Phill. Eccl. Law, 1254, 1290. 
 
 3 Stat. 24 & 25 Vict. c. 97. 5 Rogers' Eccl. Law, 717. 
 
 3 Archbold's Pr. 29 et seq.; Steph. 6 Thring on Companies, 134; Companies 
 
 Comm. iii. 214; stat. 7 & 8 Vict. c. 86; Act, 1862, Schedule I., Table A. 
 23 & 24 Vict. c. 127; 37 & 38 Vict. c. 68 
 
64 Articles of Religion law dictionary. Assault 
 
 injury. The Court may thereupon order the person complained of to 
 find sureties for the peace, and, in default, may commit him to prison. 1 
 (See Breaches of the Peace ; fustices of the Peace.) It seems that articles 
 may be exhibited in the Queen's Bench or Chancery Divisions of the 
 High Court, or to any justice of the peace 2 (q. v.). 
 
 ARTICLES OF RELIGION, commonly called the Thirty-nine 
 Articles, are those which were agreed upon by the archbishops, bishops, 
 and the whole clergy in the Convocation of 1562. They must be sub- 
 scribed by persons before being received into the ministry. 3 
 
 ARTICLES OF WAR— ARTICLES OF THE NAVY— are 
 regulations made by the crown for the preservation of discipline in the 
 army and navy respectively. 4 (See Court Martial.) 
 
 \ ASPORTATION — ASPORTAVIT.— Asportation is the act of 
 
 carrying away goods, especially when the act is wrongful, in which case 
 it is either a civil injury (trespass de bonis asportatis ; see Trespass, § 4), 
 or a crime, namely, larceny (q. v.). 
 
 ASSART in the old forest laws was the offence of plucking up the 
 thickets or coverts of a forest by the roots so as to make them arable land 
 and prevent them from becoming forest again. 6 The laws of the forest 
 have long since fallen into disuse, 6 and with them the punishment of 
 assarting. 
 
 Etymology.] — Norman-French, assartir; old French, essarter ; to improve land by 
 rooting up thickets. Low Latin, exartare, from ex and sarrire, to hoe or weed. 7 
 
 ASSAULT. — § 1. Strictly speaking, an assault is an unsuccessful 
 attempt to do harm to the person of another, as by menacing with a stick a 
 person who is within reach of it, although no blow be struck. 8 If a blow 
 is struck, the act is a battery {q. v.) ; but in legal proceedings for an alleged 
 battery, in order that if the plaintiff or prosecutor failed to prove the 
 battery, he might still prove the assault, the act complained of would be 
 described as an assault and battery, and hence in popular language the 
 term assault has come to be treated as synonymous with battery. 
 
 Civil. § 2. In private or civil law, an assault is a tort (q. v.), giving rise to a 
 
 right of action for damages. (See Son Assault Demesne.) 
 
 Criminal. § 3- In criminal law an assault is — (1) an attempt unlawfully to apply 
 
 any actual force, however small, to the person of another, directly or 
 indirectly ; (2) the act of using such a gesture towards another person as 
 to give him reasonable grounds to believe that the person using the 
 gesture meant to apply actual force to his person ; (3) the act of depriving 
 
 1 Bl. Coram, iv. 255. 5 Manwood's Forest, 48 a. 
 
 2 Stat. 21 Jac. 1, c. 8. 6 steph. Comm. i. 668. 
 
 3 Phill. Eccl. Law, 125; stat. 13 Eliz. ' Britton, 184 b; Littre, Diet. s. v. 
 c. 12. Essarter. 
 
 1 Steph. Comm. ii. 589, 595. a Underhill on Torts, 118. 
 
Assembly LAW DICTIONARY. Assess 65 
 
 another of his liberty. The consent of the person assaulted does not 
 make the assault lawful if obtained by fraud. An act which is reasonably 
 necessary for the common intercourse of life is not an assault : as where 
 persons in a crowd push against one another. 
 
 § 4. A common assault is a misdemeanor punishable by one year's im- Common and 
 prisonment with hard labour. Assaults with intent to commit felony, other assaults, 
 indecent assaults, and other varieties of assault, are liable to special 
 punishments. 1 Assaults on the Queen are high misdemeanors, punishable 
 with penal servitude, or imprisonment with whipping. 2 (See Battery.) 
 
 § 5. With certain exceptions, assaults are also punishable on summary 
 conviction before justices of the peace ; aggravated assaults on women and Aggravated 
 children being subject to special punishments. 3 (See Separation Order; assau " s ' 
 Battery.) 
 
 ASSEMBLY. See Unlawful Assembly. 
 
 ASSENT. — The title of a legatee is not complete until the executor 
 has assented to the legacy, and hence executors may dispose even of pro- 
 perty specifically bequeathed if they have not assented to the bequest. 
 The assent may be express or implied ; almost any language or conduct Express or 
 acknowledging the right of the legatee, or from which it appears that lm P hed - 
 there is nothing to prevent the legatee from having his legacy, amounts 
 to an assent. After the assent the legatee's title to the legacy is com- 
 plete, and if the legacy is specific he may bring an action to recover the 
 property bequeathed. In the case of pecuniary legacies his only remedy 
 is an action for the administration of the testator's estate. 4 (See 
 Action, § 9.) 
 
 ASSESS — ASSESSMENT. — § 1. To assess damages, or the value of Damages, 
 property or some other unascertained sum, is to fix its amount. Thus, ' 
 
 where judgment by default is obtained in an action for detention of goods 
 or pecuniary damages, the value of the goods or the amount of the 
 damages must be ascertained before the judgment can be executed. 
 
 § z. Assessment is effected by a writ of inquiry (q. v.), or by any mode 
 of trial by which a question arising in an action may be tried 5 {e.g. by a 
 jury, referee, &c). 
 
 § 3. Rates and taxes in respect of land and houses are calculated with For rates, &c. 
 reference to the estimated value of the property, which is arrived at by a 
 process called assessment. For the purpose of levying poor rates and 
 other local taxes the guardians of every union or parish appoint from 
 among themselves an assessment committee, who revise the valuation 
 lists of the rateable hereditaments in each parish prepared by the over- 
 
 1 Steph. Crim. Dig. 162 et seq. ; stat. of the Peace, 240. 
 
 24 & 25 Vict c 100 4 "Williams on Executors, 1272 et seq., 
 
 2 Stat. 5 & 6 Vict. c. 51. 1783 ; Watson's Comp. Equity, 1247. 
 
 3 Stephen, 167 et seq. ; Stone's Justice 6 Rules of Court, xxix. 4. 
 
66 
 
 Assessed Taxes 
 
 LAW DICTIONARY. 
 
 Assets 
 
 seers. 1 In London the valuation so arrived at is also made use of for the. 
 purposes of the inhabited house duty and the property or income tax in 
 respect of land, 2 &c. In other places the mode of assessment for these 
 taxes depends on the acts relating to them. (See Income Tax; Inhabited 
 House Duly.) 
 
 ASSESSED TAXES. See Excise. 
 
 ASSESSOR is a person called in to assist a Court in trying a question 
 requiring technical or scientific knowledge. It is the practice of the High 
 Court and Court of Appeal in admiralty business (following the practice 
 of the Court of Admiralty) to call in assessors in cases involving questions 
 of navigation or seamanship: they are called "nautical assessors," and 
 are always Brethren of the Trinity House. § 2. Under the Judicature 
 Act, 1873, the High Court or Court of Appeal may call in the aid of one 
 or more assessors in any action or matter ; 3 and by the Appellate Jurisdic- 
 tion Act, 1876, provision is made for the appointment and attendance of 
 the archbishops and bishops of the Church of England as assessors of 
 the Judicial Committee of the Privy Council in ecclesiastical appeals. 4 
 § 3. Assessors are also employed in various inquiries of a judicial 
 character, e.g. in Courts of Survey and investigations by Wreck Commis- 
 sioners under the Merchant Shipping Act, 1876. 5 
 
 § 4. An assessor differs from a referee (q. v.) in having no voice or 
 power in deciding questions, his duties being confined to assisting the 
 deliberations of the Court. 
 
 Of married 
 woman. 
 
 Of partner- 
 ship or 
 company. 
 
 Of deceased 
 person. 
 
 Real. 
 
 ASSETS are property available for the payment of the debts of a 
 person or corporation. The term is sometimes applied to the property of 
 a living person, e.g. a bankrupt, or a married woman whose property has 
 vested in her husband, and to the extent of which he is liable for her 
 debts or liabilities contracted before marriage. 6 It is, however, more 
 often applied to the property of a deceased person, or of a partnership 
 or company which has ceased to carry on business and is being wound 
 up. (See Winding-up ; Estate.) 
 
 § 2. The assets of a deceased person are of various kinds, according as 
 they consist of real or personal estate belonging absolutely to the de- 
 ceased, or of property over which he had merely a power of appointment. 
 Real assets are the lands or other real property of the deceased which are 
 liable for payment of his debts, whether he has devised or charged them 
 for that purpose or not. 7 The distinction between the various classes of 
 assets is of importance with reference to the order of their administration 
 
 1 Stat. 25 & 26 Vict. u. 103 ; 27 & 28 
 Vict. c. 39, &c. 
 
 2 Stat. 32 & 33 Vict. c. 67. 
 
 3 Sect. 56 ; Rules of Court, xxxvi. 
 
 4 Sect. 14; Reg. Gen., 15th Nov. 1876: 
 2 P. D. 384. 
 
 5 As to assessors in county court actions, 
 see Pollock, C. C. Pr. 105. 
 
 Married Women's Prop. Act, 1874. 
 
 ' Williams' R. P. 82; Williams on 
 Real Assets ; stat. 3 & 4 Will. 4, c. 104 ; 
 32 & 33 Vict. c. 46. 
 
Assets LAW DICTIONARY. Assign 67 
 
 where the residuary estate is insufficient for payment of all the debts. 
 (See Administration, § 2.) 
 
 § 3. Another division of assets is into legal and equitable. Legal assets Legal and 
 comprise everything which an executor takes virtute officii, and with which equitable. 
 he would have been charged in an action at law by a creditor, while equit • 
 able assets are such as could only be reached by the creditor in a Court 
 of Equity. Thus, personal estate, including leaseholds, is legal assets, 
 while land charged or devised by a testator for payment of debts, and 
 equitable interests in or trusts of chattels, &c, are equitable assets. The 
 distinction is of importance with reference to the estates of persons who 
 died before the 1st January, 1870, because in the case of such a person 
 leaving an insolvent estate his debts are payable out of the legal assets in 
 a different order from equitable assets. 1 (See for this order, Administra- 
 tion, §3.) In the case of any person dying on or after the 1st January, 
 1 870, his debts, whether by specialty or simple contract, are paid pari passu 
 out of the assets without priority one over another, 2 and there is there- 
 fore no distinction between legal and equitable assets in such cases. 3 
 
 § 4. "Assets by descent" are lands which descend to an heir charged with the debts or Assets by- 
 obligations of his ancestor. The term was originally used in the law of warranty {q, v.) to descent, 
 signify land which descended to an heir of equal value to land as to which his ancestor had 
 entered into a warranty : thus, if A. was heir to his mother, subject to his father's estate 
 by the curtesy, and the father aliened the land with warranty and died, this warranty did 
 not bar A.'s title to the land without assets in fee simple, that is, unless land in fee 
 simple of equal value descended to him from his father. 4 The term " assets by descent " 
 was afterwards applied where a. man died leaving debts by specialty in which his heirs 
 were bound, in which case his heir was liable to pay the debts, so far as he had assets by 
 descent, that is, to the value of the land which descended to.him. 5 Now that all the 
 land left by a deceased person is liable for his debts, the term " assets by descent" has 
 been supplanted by "real assets." 
 
 Etymology.] — Norman-French : asetz, asset, enough or satisfaction. Latin ad and 
 satis. 6 (See Marshalling.) 
 
 ASSIGN— ASSIGNMENT.— I . § r. "Assign," like "grant" (?.».) 
 is a general word signifying a transfer of property: thus we speak in- 
 differently of granting or assigning a reversion in land. 7 An assignment 
 is the act of assigning or the instrument by which it is done. 
 
 § 2. In a conveyance to "A., his heirs and assigns," or "A., his "Assigns." 
 executors, administrators, and assigns," &c, the word "assigns" is in 
 reality mere surplusage, because the estate or interest passes without it 
 (see Words of Limitation). In a covenant by "A., his heirs and assigns," 
 the word " assigns " includes all those who take either immediately or 
 remotely from or under A., whether by conveyance, devise, descent or 
 other act of law, e. g. as assignee from A.'s heir, or as heir to A.'s 
 
 1 White & Tudor's L. C. ii. 101. 365 a, 374 b. 
 
 3 Stat. 32 & 33 Vict. c. 46. 6 Williams' R. P. 80. 
 
 3 See Watson's Comp. Eq. 29. ° Britton, 192 b; Littre.Dict. s. v. Assez. 
 
 i Stat. 6 Edw. 1 ; Litt. § 724 ; Co. Litt. ' See Woodfall's L. & T. 220, 232. 
 
 F 2 
 
68 
 
 Personal 
 estate, &c. 
 
 Assign 
 
 LAW DICTIONARY. 
 
 Assignment 
 
 Form of. 
 
 Choses in 
 action. 
 
 Assignment 
 of dower. 
 
 Of waste. 
 
 assignee, and so on 1 (see Covenant); and whether they take the fee 
 simple, or merely a limited interest, e. g. by lease. 2 
 
 § 3. In its more special sense, to assign is to transfer personal estate, 
 or chattels real, or certain rights in real or personal estate. The term is 
 especially applied to leases, terms of years, estates for life in land or 
 personal property, and to choses in action, and incorporeal chattels. 
 The word "assign" is the proper technical operative word, but any 
 expression showing an intention to make a complete transfer will con- 
 stitute an assignment. 3 An assignment by way of sale is an absolute 
 assignment for money : an assignment by way of mortgage is one made 
 as security for a debt or the like — e. g. a bill of sale (q. v.). 
 
 §4. Assignments of leases and terms of years must be by deed 4 ; 
 assignments of choses in action and incorporeal personal property do 
 not as a rule require to be by deed. In the case of policies of life and 
 marine assurance notice of the assignment must be given to the insu- 
 rance company ; in the case of patents the assignment must, and in the 
 case of copyrights it may, be registered. 5 
 
 § 5. Formerly choses in action were not assignable at law except in a 
 few cases (e. g. bills of exchange), but choses in action arising from 
 contract (such as debts) were assignable in equity. It was, however, 
 necessary for the assignee to give notice of the assignment to the debtor, 
 trustee or stakeholder, in order to prevent him from paying the money to 
 the original creditor (the assignor) or some subsequent assignee. Thus 
 if A. owed B. a debt and- B. assigned it to C, the assignment was not 
 complete as between C. and A. until notice of it had been given to A. 
 And C. took the debt subject to any prior equities (e.g. an agreement 
 between A. and B. by which the debt was affected). Such assignments 
 of choses in action were called equitable assignments. Now, by the 
 Judicature Act, 1873, an absolute assignment in writing of a legal chose 
 in action is effectual at law as well as in equity, provided notice is given 
 to the debtor, trustee, &c. 6 
 
 II. § 6. "Assign" is also sometimes used in its primary sense of 
 marking out, allotting. Thus in ordinary cases before a widow can take 
 possession of any of her husband's land as tenant in dower, her part must 
 be assigned to her, either by agreement between her and the heir, or by 
 the sheriff in execution of a judgment obtained by her.' (See Metes 
 and Bounds?) 
 
 § 7. Common of estovers and turbary is sometimes limited to those 
 parts of the waste which are assigned, that is, pointed out by the owner 
 from time to time for the purpose. 8 
 
 1 Batty v. De Crespigny, L. R., 4 Q. B. 
 p. 186; Spencer's Case, 5 Co. 17 b. 
 
 2 Taitev. Gosling, 11 Ch. D. 273. 
 
 3 Davids. Conv. ii. 212 ; Shepp. Touch. 
 266. 
 
 * Statute of Frauds, s. 4; Woodfall, 
 221 ; stat. 8 & 9 Vict. c. 106, s. 3. 
 
 5 Williams' P. P. 276, 281 ; stat. 5 & 6 
 Vict. c. 45 ; 15 & 16 Vict. c. 83; 30 & 31 
 
 Vict. c. 144; 31 & 32 Vict. c. 86. 
 
 6 Jud. Act, 1873, s. 25. See White & 
 Tudor's L. C. ii. 707 ; Fisher on Mort- 
 gage, 84 ; Brice v. Bannister, 3 Q. B. D. 
 
 569. 
 
 7 Co. Litt. 34 b. As to where assign- 
 ment is not necessary, see Litt, \ 43 ; 
 Dower. 
 
 8 Heydon's Case, 13 Co. 68. 
 
Assignee LAW DICTIONARY. Assise 69 
 
 As to assignment of breaches and errors, see Breach ; Error. 
 Etymology.]— Norman-French : assigner, 1 from Latin assignare, to mark out, allot. 
 
 ASSIGNEE (I.) is a person to whom an assignment is made, and the 
 term is therefore usually applied to personal property: it is, however, 
 sometimes applied to realty; thus, we speak of the assignee of a reversion. 2 
 (See Assignment; Assign.) 
 
 II. § 2. In the old bankruptcy law, assignees filled a similar place to that now Creditors' 
 occupied by trustees (q. v.). By stat. 6 Geo. 4, c. 16, the estates of bankrupts were Assignees. 
 administered by persons chosen by the creditors, and to whom the bankrupt's property 
 was assigned by the commissioners for that purpose ; they were, hence, usually called 
 assignees, or creditors' assignees. 8 § 3. By stat. 1 & 2 Will. 4, c. 56, official assignees Official Assig- 
 were introduced : they were permanent officials who, before their appointment, must nees - 
 have been engaged in commerce, &c, and one of them acted in each bankruptcy jointly 
 with the creditors' assignees. 4 
 
 ASSISE or ASSIZE (I.) anciently signified a legislative enactment Legislative, 
 some old statutes and ordinances are still so called, e. g. the assise of 
 bread, the assise of Clarendon, the assise of the forest, &c. 6 
 
 II. § 2. An assise passed in the reign of Henry II. (probably the Assises of 
 assise of Northampton, 1176) provided for the trial of questions of seisin land< 
 and title to land by a recognition or inquiry of twelve men sworn to 
 
 speak the truth : hence the proceedings, and the jurors themselves, be- 
 came known as the assises. Some assises were called from the objects for 
 which they were brought (such as the assise of common of pasture, to 
 recover seisin of a common of pasture), but more often from the occa- 
 sions which gave rise to them, e.g. the assises of novel disseisin, mort 
 d'auncestor, &c. 6 (See the following titles.) 
 
 III. § 3. Magna Charta provided that assises of novel disseisin and Trials at the 
 mort d'auncestor should only be taken in the shires where the lands lay, assizes. 
 and for this purpose justices were sent into the country once a year: 
 
 hence they were called justices of assize. Afterwards the Statute of Nisi 
 Prius (13 Edw. 1, c. 30) enacted that the justices of assize should try the 
 issues in ordinary actions in the counties in which they arose, and return 
 the verdict to the Court at Westminster. Hence trials before judges on 
 circuit are said to take place at the assizes (see Circuit; Nisi Prius), where 
 also are held trials under commissions of " oyer and terminer " and " gaol 
 delivery" (q. v.). 1 The assizes, therefore, are for criminal as well as civil 
 business. The judges also sit under a commission of the peace (see 
 Justices 0/ the Peace). The assizes are usually held twice a year, after the 
 
 1 Britton, 248a, 251 a. '' Reeves, i. 245 ; Smith's Action (nth 
 
 2 Davidson, Conv. i. 125. edit.), 134. Justices of assize, oyer and 
 
 3 Robson's Bankruptcy, 4. terminer and general gaol delivery, also 
 
 4 Ibid. 5. have jurisdiction in criminal matters for- 
 
 5 Litt. § 234. See the extracts in Stubb's merly within the jurisdiction of the High 
 Charters, 137 et seq. Court of Admiralty. (Stat. 7 & 8 Vict. 
 
 6 Litt. § 234 ; Reeves' Hist. i. 86, 342 c. 2.) 
 et seq. ; Digby, Hist. R. P. 79. 
 
7o 
 
 Assise LAW DICTIONARY. Associates 
 
 Hilary and Trinity sittings, but in some parts of the country winter assizes 
 are also held in the vacation after Michaelmas sittings, chiefly for criminal 
 trials. 1 The jurisdiction of the Courts created by Commissions of Assize, 
 of Oyer and Terminer, and of Gaol Delivery, is now vested in the High 
 Court of Justice. 2 The judges of assize for each county are appointed by 
 special commission from the Crown, and are hence also called commis- 
 sioners of assize : they must be selected from the judges of the High 
 Court and the Court of Appeal, or from the Serjeants at law and Queen's 
 counsel. 3 
 
 Etymology.] — Norman French : assise, from Latin assidere, to sit together, either as 
 a legislative or as a judicial assembly. 
 
 ASSISE of DARREIN PRESENTMENT, or last presentation, was a real 
 action which lay where a man (or his ancestors under whom he claimed) had presented a 
 clerk to a benefice, who was instituted, and afterwards, upon the next avoidance, a 
 - stranger presented a clerk, and thereby disturbed the real patron. It was abolished by 
 stat. 3 & 4 Will. 4, c. 27, having been previously superseded in practice by the action of 
 quare impedit (q. w.). 4 
 
 ASSISE of MORT D'ANCESTOR was a real action which lay to recover 
 land of which a person had been deprived on the death of his ancestor by the abatement 
 or intrusion of a stranger. 6 (See Abatement, § 2.) It was abolished by stat. 3 & 4 
 Will. 4, c. 27. 
 
 ASSISE of NOVEL DISSEISIN was a real action which lay to recover land of 
 which a person had been recently disseised. 6 It was abolished by stat. 3 & 4 Will. 4, 
 c. 27. It was called assisa nova disseisince because the judges on circuit only tried ques- 
 tions of disseisin which were new, that is, which had arisen since the last eyre. 7 
 
 ASSISTANCE. See Writ of Assistance. 
 
 ASSISTANT JUDGE is a judge of the Court of General or Quarter 
 Sessions in Middlesex : he differs from the other justices in being a 
 barrister of ten years' standing, and in being salaried. 8 
 
 ASSOCIATES were formerly officers attached to the Queen's Bench, 
 Common Pleas, and Exchequer Divisions of the High Court. "Their 
 duties require them to be in Court whenever the judges ... are 
 sitting at Nisi Prius. They make out the cause list, empanel the jury, 
 call on the causes, read aloud any documents put in and required to 
 be read, &c." 9 By the Judicature (Officers) Act, 1879, the existing, 
 associates were converted into Masters of the Supreme Court (q. v.), 
 and the office of associate abolished. 
 
 1 Steph.Comm.iii. 351; Winter Assizes 6 Bl. Comm. iii. 187; Co. Litt. 159 a. 
 Act, 1876 ; Spring Assizes Act, 1879. 7 Co. Litt. 153 b. 
 
 2 Jud. Act, 1873, ss. 16, 29. 8 Stat. 7 & 8 Vict. c. 71 ; 22 & 23 Vict. 
 
 3 Ibid. s. 37. c. 4 ; Pritchard's Q. S. 31. 
 
 4 Bl. Comm. iii. 245. » Second Report Legal Dep. Comm. 14. 
 6 Ibid. 185; Co. Litt. 159 a. 
 
Association law dictionary. Attachment 71 
 
 ASSOCIATION is a word of vague meaning, used to indicate a col- 
 lection of persons who have joined together for a certain object. It is 
 applied sometimes to large partnerships or unincorporated companies, 
 and sometimes to corporations formed not for profit, but for some 
 scientific, charitable, or similar purpose. 1 (See Company ; Corporation ; 
 Partnership; Articles of Association ; Memorandum of Association.) 
 
 ASSUMPSIT (Latin : " he promised ") was the name for that action which lay to 
 recover damages for breach of a simple contract— that is, a promise not under seal. 2 
 It was a species of action on the case. 3 (See Action ; Trespass.) 
 
 ASSURANCE— ASSURE.— I. "Assure" and "assurance" are the Conveyance. 
 old words for "convey" and "conveyance" (q. ».). 4 They are still used 
 in this sense in the " covenant for further assurance," which occurs in 
 every conveyance at the present jiay. (See Covenant.) 
 
 II. "Assure" and "assurance" are also equivalent to "insure" and Insurance. 
 " insurance". (q. v.). 
 
 ATTACHMENT. — § 1. To attach a person is to arrest him under 
 a writ called a writ of attachment : to attach property is to seize it or 
 place it under the control of a Court. 
 
 I. § 2. Attachment of the person is of two kinds, that employed in Of person. 
 ordinary cases of disobedience to an order, judgment, &c. or other con- 
 tempt of Court committed in the course of a suit, and that employed 
 where no suit is pending. 
 
 § 3. The former kind is one mode of enforcing obedience to the orders In action. 
 of the High Court of Justice, such as injunctions, orders for discovery and 
 production, 5 and certain judgments. 6 The writ is issued by leave of the 
 Court or a judge on notice to the person concerned,' and directs the 
 sheriff to arrest him. 8 The contemnor then remains in prison until he 
 has cleared his contempt or is discharged. An attachment to enforce 
 payment of a sum of money can only be issued in the cases mentioned in 
 the Debtors Act, 1869 (q.v.); e.g. against a defaulting trustee. 9 (See 
 Committal.) 
 
 § 4. The other kind of attachment is issued to punish disobedience to Without 
 the Queen's writs, contempt of Court, disobedience to the rules or awards actlon - 
 of a Court, abuse of the process of a Court, forgeries of writs, &c. Its 
 peculiarity is that it " may be awarded by the discretion of the justices 
 upon a bare suggestion, or of their own knowledge, without any appeal, 
 indictment, or information;" 10 if it is awarded on the complaint of a 
 private person, the latter is called the prosecutor, 11 and the proceedings 
 
 1 Companies Act, 1867, s. 23. & Bruce's Admiralty, 299 et seq., and 
 
 ' Dicey on Parties, 24. Monition. 
 
 3 Stephen's PI. 18. 9 Daniell, 907 ; see Esdaile v. Visser, 
 
 4 See Shepp. Touch, passim. 13 Ch. D. 421. The old process of at- 
 B Rules of Court, xxxi. 20. tachment in Chancery to compel appear- 
 
 6 Ibid. xlii. passim. ance or answer by a defendant has been 
 
 7 Ibid. xliv. 2. abolished by the Judicature Acts. 
 
 8 See Daniell's Ch. Pr. 386 et seq. ; and 10 Hawkins' PI. Cr. II. xxii. 
 the Prisons Act, 1877, s. 26. As to attach- n Ibid. § 1. 
 
 ment in admiralty practice, see Williams 
 
72 
 
 Attachment 
 
 LAW DICTIONARY. 
 
 Attainder 
 
 Of property. 
 
 Of debts. 
 
 Garnishee 
 order. 
 
 generally take the following course (see, however, note (i) infra) : the pro- 
 secutor moves for a rule for an attachment, and on this being granted, a 
 writ of attachment issues, which commands the sheriff to attach {i.e. arrest) 
 the defendant ; on the sheriff returning " cepi corpus" a motion of course 
 is made for a habeas corpus to produce the defendant in Court, and the 
 prosecutor then moves that the defendant be sworn to answer interroga- 
 tories ; the defendant if he does not give bail is then returned to prison : 
 the interrogatories, which in effect contain the charge against the de- 
 fendant, are filed and the defendant is examined on them before a master, 
 and the examination is referred to the Queen's coroner and attorney, on 
 whose report the Court sentences the defendant to fine or imprisonment, 
 or discharges him. 1 
 
 II. Attachment of property is of importance in two cases — attachment 
 of debts, and attachment in the Mayor's Court. 
 
 § 5. Attachment of debts is a proceeding employed in actions in the 
 High Court where a judgment for the payment of money has been ob- 
 tained against a person to whom money is owing by another person ; in 
 such a case the judgment creditor on application to a judge at chambers 
 may obtain an order that all debts owing or accruing 2 from that person 
 (who is called the garnishee) to the judgment debtor shall be attached to 
 answer the judgment debt. The effect of this order is to bind the debt 
 in the hands of the garnishee as soon as he is served with the order, so 
 that he cannot deal with it until the judgment creditor's claim is disposed 
 of. If he does not dispute the debt he must either pay it over to the 
 judgment creditor or pay the amount into Court. 3 
 
 § 6. As to attachment in the Lord Mayor's or City of London Court, 
 see Foreign Attachment. 
 
 Etymology.]— Old French : attacker, to hold fast, apprehend.* 
 
 ATTAINDER was that extinction of civil rights and capacities which 
 formerly took place when judgment of death or outlawry was recorded 
 against a person who had committed treason or felony. The two prin- 
 cipal consequences were the forfeiture and escheat of the land and goods 
 belonging to the criminal (see Escheat ; Forfeiture), and the corruption 
 of his blood, by which was meant that he became incapable of holding 
 or inheriting land, or of transmitting a title by descent to any other 
 person. These consequences of attainder were mitigated by various Acts 
 of Parliament, until the statute 33 & 34 Vict. c. 23 wholly abolished 
 attainder, corruption of blood, forfeiture, and escheat for treason or 
 felony, preserving them, however, in the case of outlawry. 6 
 
 Etymology.]— See Attaint. 
 
 1 Chitty's Pr. (12th ed.), 1710 et sea. 
 Order XLIV. of the Rules of Court pro- 
 vides that a writ of attachment shall have 
 the same effect as a writ of attachment in 
 Chancery : it seems to be considered by 
 some writers that this abolishes the old 
 common law practice above described. 
 
 2 See Accrue, 6 1. 
 
 : * Rules of Court, xlv. ; Coe's Practice, 
 142 et seq. ; Smith's Action, 207 ; Day's 
 C. L. P. Acts, 313. 
 
 4 Skeat's Etym. Diet. s. v. 
 
 5 See Steph. Comm. i. 442 ; iv. 454 ; 
 Williams' R. P. 126; Shelford's R. P. 
 Stat. 456. 
 
Attaint law DICTIONARY. Attest 73 
 
 ATTAINT. — I. § I. A person was said to be attaint when he was under attainder ' 
 (3. v.). 
 
 II. § 2. An attaint or writ of attaint was anciently a proceeding " to enquire whether 
 a jurie of twelve men gave a false verdict, that so the judgment following upon it may 
 bee reversed, and the partie restored to all that he hath lost." 2 For this purpose a jury 
 (called the grand jury) was summoned by a writ of attaint to try the validity of the 
 verdict of the first, or, as it was called for distinction, the petty jury, and if the second 
 jury's verdict was contrary to the first, not only was the first verdict set aside, but the 
 first jury lost all civil rights and became liable to many barbarous punishments. Pro- 
 ceeding by attaint was abolished by 6 Geo. 4, <.. 50, ». 60. 3 At the present day, when a 
 verdict is suspected of being false or erroneous, a motion is made for a new trial. (See 
 Trial.) 
 
 Etymology.] — Latin attinctus, stained, "for that if the petty jury be attainted of 
 a false oath they are stained with perjury." 4 
 
 ATTEMPT, — § 1. An attempt to commit a crime is an act done with 
 intent to commit that crime, and forming part of a series of acts which 
 would constitute its actual commission if it were not interrupted, or were 
 successful, as where a person procures dies for the purpose of coining bad 
 money. It is immaterial whether the offender voluntarily desists from 
 the actual commission of the crime or not. § 2. Every attempt to commit 
 an offence is a misdemeanor, unless it is otherwise specially provided for. 
 Attempts to commit murder and some other crimes are felonies. 5 § 3. If, Conviction 
 son the trial of a person indicted for a felony or misdemeanor, it appears ™ c ^ r l^{^^ 
 to the jury that he did not commit the offence, but only attempted it, the 
 jury may acquit him of the offence, and find him guilty of the attempt, as 
 if he had been indicted for it. 6 
 
 ATTENDANT TERM. See Term. 
 
 ATTEST— ATTESTATION.— § 1. To attest is literally to witness 
 any act or event, but the term is now exclusively applied to the signature 
 or execution of a document. When A. executes a deed in the presence 
 of B., and B. signs his name on the document as a token of his having 
 witnessed A.'s execution, B. is said to attest the execution. (See Appoint- 
 ment^) The term is even more commonly applied to wills than to deeds. 
 A clause called an attestation clause is generally written at the foot of 
 the instrument as a declaration by the attesting witness that the instru- 
 ment was signed or executed in his presence. If the document is required 
 to be strictly proved, the attesting witness must prove its execution, 
 unless he is dead or cannot be found (in which case proof of his hand- 
 writing must be given), or unless the document is admitted. 7 § 2. An 
 attested copy of a document seems to be an examined copy, with a certi- 
 ficate or memorandum of its correctness, signed by the persons who have 
 examined it. (See Copy.) 
 
 1 Co. Litt. 390 b. 5 Stephen's Crim. Dig. 29 ; Russell on 
 
 2 Finch's Law, 484. Crimes, i. 188. 
 
 3 Smith's Action, 173. 6 Stat. 14 & 15 Vict. c. 100, s. 9 ; Arch- 
 
 4 Co. Litt. 294 b, 391 b. bold's Crim. PI. 176. 
 
 7 Best on Evidence, 306, 669. 
 
74 
 
 Attorn 
 
 LAW DICTIONARY. 
 
 Attorney 
 
 On assign- 
 ment of rever- 
 sion, &c. 
 
 In mortgage. 
 
 ATTORN— ATTORNMENT.— § i. Attornment is the agreement 
 of the owner of a particular estate in land to become the tenant of a 
 person who has acquired the estate next in reversion or remainder, or 
 the right to the rent or other services by which the land is held. 1 Thus if 
 A., being entitled to land in fee simple, grants a lease of it to B., then 
 B. is A.'s tenant. If, however, A. conveys his remainder to C, in this 
 case B. does not stand in the relation of tenant to C, unless he agrees or 
 consents to become his tenant. "And this yielding of consent is called 
 an attornment." 2 It may be either express (in deed) or implied (in law); 
 thus if the tenant, after notice of the grant of the reversion, pay his 
 rent to the grantee, this is a good attornment in law. 3 § 2. By statute 
 11 Geo. 2, c. 19, s. 11, attornments made by tenants to strangers 
 claiming title to the estate of their landlords are null and void, and their 
 landlord's possession not affected thereby unless made with their privity 
 and consent, or in pursuance of a judgment or order. 4 § 3. Formerly 
 attornment was necessary in most cases to perfect the grant of a rever- 
 sion or remainder, so that the grant was ineffectual until it was given. 5 
 Now, however, by the statute 4 Anne, c. 16, s. 9, such grants are effectual 
 without the attornment of any of the tenants, and the grantee of a rever- 
 sion may sue or distrain on the tenants for the rent if he has given them 
 notice of the grant. 6 
 
 § 4. Where a mortgage of land or buildings is executed with the inten- 
 tion that the mortgagor shall remain in possession, it is (or was before 
 the recent Act) usual to insert in the mortgage a clause of attornment by 
 which the mortgagor attorns tenant to the mortgagee at a rent equal to the 
 yearly interest on the debt, or sometimes in excess of the interest so as to 
 go towards reduction of the principal. The chief advantage of this is to 
 give the mortgagee a right of distress if the interest (or principal) is not 
 paid. Such an attornment is now a bill of sale within the meaning of 
 the Bills of Sale Act, 1878, and consequently if the mortgage is not 
 registered, and the mortgagor becomes bankrupt, the mortgagee would 
 be unable to seize any of his chattels. 7 
 
 Etymology.] — Norman-French: attoumer* from the Latin tornare, to turn in a 
 lathe. Attourner was used not only to signify the acceptance of a new lord by the 
 tenant, but also the transfer of the tenant's services by the old lord to the new, 8 so 
 that the primary sense of the word seems to be to change or assign. 
 
 ATTORNEY " is an ancient English word, and signifieth one that 
 is set in the turne, stead, or place of another ; and of these some be 
 private . . . and some be publike, as attorneys at law." 10 
 
 1 Co. Litt. 312 a. 
 
 2 Shepp. Touch. 253 ; Litt. \ 551. 
 
 3 Shepp. Touch. 262. 
 
 4 The statute proceeds : " or to any 
 mortgagee after the mortgage has become 
 forfeited." These words refer to the old 
 form of mortgage on condition, and are 
 apparently inapplicable to a modem mort- 
 gage. The question, however, has been de- 
 prived of importance by stat. 4 Anne, c. 16. 
 
 6 Shepp. Touch. 253 ; Litt. §§ 558 et 
 sea. Hence, means were appointed in cer- 
 
 tain cases to compel the tenant to attom 
 (Touch. 254, 256). (See Per quce Ser- 
 •vitia ; Quern Redditum Reddit ; Quid 
 Juris Clamat.) 
 
 6 Woodfall's L. & T. 243 ; Moss v. 
 Ga.llim.ore, Smith's L. C. i. 629. 
 
 7 Sect. 6.' See Hampson v. Fellows, 
 L. R.,6Eq. 575; Pope on Bills of Sale, 12. 
 
 8 Britton, 176 a, 106 a. 
 
 9 Diez, i. 418. 
 
 10 Co. Litt. 51 b, 128 a ; Britton, 285 b ; 
 irror, ii. \ 31. 
 
Attorney-General LAW dictionary. Audita Querela 75 
 
 I. § 2. A private attorney is a person appointed by another to act in Private or 
 his place, or represent him for a certain purpose : the document by which attorney in 
 the appointment is made is called a power or letter of attorney. (See 
 
 Power of Attorney ; Proxy; Agent; Syndic.) 
 
 II. § 3. Attorneys at law were formerly persons admitted to prac- Public or 
 tise in the Superior Courts of Common Law; they conducted pro- ^° meys at 
 ceedings in those Courts for suitors who did not appear in person. 1 In 
 practice every attorney was also a solicitor (q. v.), and was only called an 
 attorney in formal proceedings in the Common Law Courts. Now, by 
 
 the Judicature Act, 1873, the expression "attorney" is abolished, and the 
 title " Solicitor of the Supreme Court of Judicature" is substituted. 3 
 
 ATTORNEY- GENERAL is the principal counsel of the Grown. 
 As counsel he is bound to conduct prosecutions and other legal pro- 
 ceedings on behalf of the Crown, if required to do so. He also acts as 
 representative of the Crown in matters connected with charities, patents, 
 and in criminal proceedings instituted by government. (See Information ; 
 Patent ; Fiat.) His functions are, however, political as well as legal, for 
 he is almost invariably a member of the House of Commons, and is 
 appointed to his office on the advice of the government for the time 
 being : there is therefore a change of attorney-general on every change 
 of government. In the House of Commons he answers questions on 
 legal matters of public interest, and has charge of government measures 
 relating to legal subjects. § 2. The Prince of Wales has an attorney- 
 general ; and when there is a Queen Consort she has one also. 3 (See 
 Solicitor- General. ) 
 
 AUCTION. — § 1. Sales by auction of real estate are subject to the 
 statute 30 & 31 Vict. c. 48, which makes it unlawful, in every case where a 
 sale is stated to be without reserve, for the vendor to employ a person to 
 bid at the sale, but the vendor may in the particulars or conditions of 
 sale reserve the right to bid, and employ a person to bid accordingly. 1 
 § 2. At common law, the employment, of a puffer made a sale by auction 
 void in all cases : the rule has been altered by the above statute so far as 
 sales of real estate are concerned, but still applies to sales of goods. 5 
 § 3. An auctioneer is required to take out a licence. 6 
 
 AUDIENCE. See Court of Audience. 
 
 AUDITA QUERELA,, in the old common law practice, was a writ 
 given in order to afford a remedy to the defendant in an action where 
 
 1 Bl. Comm. iii. 25. 5 Green v. Baverstoclt, 14 C. B., N. S. 
 
 2 Jud. Act, 1873, s - 8 7- 20 4- 
 
 3 Steph. Comm. iii. 274 ; Solicitor of 6 Stat. 8 & 9 Vict. c. 15 ; 27 & 28 Vict. 
 Duchy of Cornwall v. Canning, 5 P. D. c. 56, s. 14 ; as to what is an auction within 
 114. the meaning of these acts, see Fisher's 
 
 •« Dart's V. & P. 112. Digest, 7689. 
 
76 Austin law dictionary. Auterfois Attaint 
 
 matter of defence (such as a release) had arisen since the judgment, and on 
 which the defendant applied to the Court, whence the name auditd 
 querela defendentis 1 "the defendant's complaint having been heard." The 
 proceeding by audita querela is abolished, the present practice being to 
 apply for a stay of execution or other relief against the judgment. 3 
 
 AUSTIN.— John Austin was born in 1790, and entered the army at 
 an early age. After serving five years he left the army, and was called 
 to the bar in 1818, but gave up practice in 1825 from ill-health. In 
 1827 he went to Germany and studied Roman law at Heidelberg and 
 Bonn with the view of qualifying himself for the professorship of juris- 
 prudence at University College, London, to which post he had been 
 appointed. In 1832 he resigned the appointment and published "The 
 Province of Jurisprudence Determined." After that date he lived princi- 
 pally on the Continent until 1 848, when the Revolution drove him back 
 to England. He died about i860. In 1861 a new edition of the "Pro- 
 vince " was published by his widow, followed by two volumes containing 
 his fragments. In 1869 an improved and completer edition of the whole 
 was published by Mr. Robert Campbell, with the assistance of notes of 
 Austin's Lectures taken by John Stuart Mill when a member of his class. 
 Mr. Campbell published a reprint of this edition in 1873, and an abridg- 
 ment in 1875. Austin's work on Jurisprudence is still a valuable and 
 suggestive work, notwithstanding its errors and incompleteness, and not- 
 withstanding the light which has since been thrown on the subject by the 
 writings of Savigny, Ahrens, Kuntze, and others. 
 
 AUTER DROIT. — A person is said to be entitled to something in 
 auter droit, i. e. in right of another, when he is entitled in a representative " 
 capacity: for example, as trustee, executor, guardian, &c. (SeeJ&gkl; 
 Merger.) 
 
 AUTER VIE. See Tenant for Life. 
 
 AUTERFOIS ACQUIT (= " formerly acquitted ") is a plea in bar 
 to a criminal prosecution, to the effect that the prisoner has been already 
 tried for the same offence before a court of competent jurisdiction and 
 has been acquitted. Such a plea, if true, is a good defence. The rejec- 
 tion of a bill of indictment by a grand jury is not an acquittal. 3 (See Plea.) 
 
 AUTERFOIS ATTAINT (= " formerly attainted") is a plea in bar 
 to a prosecution. Formerly if a man was attainted of treason or felony, 
 he could not be indicted for another felony while the attainder remained 
 in force, because he was considered dead in law. But by the statute 
 
 1 Archbold's Pr. 510; Wms. Saund. ii. 3 Archbold's Crim. PI. 136; Steph. 
 
 439 ; Bl. Comm. iii. 405. Comm. iv. 401 ; stat. 14 & 15 Vict. c. 100, 
 
 3 Rules of Court, xlii. 22. =. 28. 
 
Auterfois Convict law dictionary. Authority yj 
 
 7 & 8 Geo. 4, c. 28, s. 4, attainder is no bar to an indictment except 
 for the same offence, and in effect the plea of auterfois attaint is now 
 obsolete. 1 
 
 AUTERFOIS CONVICT (=" formerly convicted") is a plea in 
 bar to a criminal prosecution, by which the prisoner alleges that he has 
 been already tried and convicted for the same offence before a Court of 
 competent jurisdiction. Such a plea, if true, is a good defence. 2 
 
 AUTHORITY. — I. § 1. A person is said to be authorized or to have 
 an authority when he is in such a position that- he can act in a certain 
 manner (defined by the authority) (a) without incurring the liability to 
 which he would be exposed in the absence of the authority ; and (b) so 
 as to produce the same effect as if the person granting the authority had 
 himself done the act. Thus, if I authorize A. to sell goods for me, and 
 he does so, he incurs no obligation against me for so doing, and confers 
 a good title on the purchaser. (See Agent.) 
 
 § 2. With reference to the mode of its creation, an authority may be Express, im- 
 either express (as in the above instance), implied (or inferred), 3 implied in P* 1 ^' cu ^" 
 law, customary {e. g. the right of the lord of a manor to make grants of tory. 
 land in the manor 4 ), statutory, &c. (See Factors' Acts.) 
 
 § 3. With reference to its extent: an authority may be general, to act in General, 
 all the principal's affairs, or special, concerning some particular object , s P e . cla ]' 
 (e. g. to buy a particular piece of land) ; it may be limited by certain 
 instructions as to the conduct he is to pursue, or unlimited, i. e. leaving 
 his conduct to his discretion. 5 (See Agency!) 
 
 § 4. A mere, bare, or naked authority is an authority which exists only Mere or 
 for the benefit of the principal, and which, therefore, the agent must nake d. 
 execute in accordance with his directions, as opposed to an authority 
 coupled with an interest, where the person vested with the authority has Coupled with 
 a right to exercise it, partly or wholly, for his own benefit. 6 Thus, an an lnterest - 
 authority to collect debts, given by the owner of a business on his 
 assigning it to a purchaser, is an authority coupled with an interest, 
 because the purchaser, by purchasing the business, has acquired the right 
 to obtain the benefit of it. 7 A mere authority is revocable by the grantor 
 at any time ; one coupled with an interest is not. (See Power; Warrant.) 
 
 II. § 5. In the law relating to public administration, an authority is a Administra- 
 body having jurisdiction in certain matters of a public nature. Thus, 'J ve author i- 
 sanitary authorities have powers in relation to the public health ; of a 
 similar nature are prison authorities, local authorities for the execution of 
 the Artizans' Dwellings Acts, &c. (q. v.), all of which have only a local 
 
 1 Archbold's Crim. PI. 143. i Co. Litt. 52 b. 
 
 2 Ibid. 140; Steph. Comm. iv. 403; stat. 6 Smith, 113. 
 
 24 & 25 Vict. c. 100, ss. 44, 45. 6 See Co. Litt. 49 b, 52 b, 113 a, 181 b. 
 
 3 Smith's Merc. Law, no, 125. 7 Chitty on Contracts, 192. 
 
78 
 
 Authority 
 
 LAW DICTIONARY. 
 
 Average 
 
 Simple or 
 particular 
 average. 
 
 General 
 average. 
 
 jurisdiction. Lighthouse authorities, on the other hand, are divided into 
 general lighthouse authorities (e. g. the Trinity House), and local light- 
 house authorities. 1 
 
 AVERAGE. — I. § i. In the ordinary sense of the word, average is 
 where goods on board a ship, or part of the ship herself, are lost or 
 damaged. § 2. Simple, petty, or particular average is where any damage 
 is done to the cargo or vessel by accident or otherwise, but not for the 
 general benefit of the ship and cargo, such as the loss of an anchor or 
 cable, the starting of a plank, the turning sour of a cargo of wine, " which 
 are all losses which rest where they fall ;" 2 that is to say, the loss in each 
 case is borne by the owner of the thing damaged or lost, or the person 
 who has insured him (see Memorandum). § 3. The term average, however, 
 is usually applied to cases of general (or gross) average, which is a highly 
 important branch of maritime law. General average is where any loss or 
 damage is voluntarily and properly incurred in respect of the goods or of 
 the ship for the general safety of the ship and cargo ; in this event the 
 law provides that an equitable adjustment and distribution of the loss 
 shall be made between all the parties interested, each contributing his 
 share. 3 The simplest and oldest case of general average occurs where 
 goods are thrown overboard in a storm for the purpose of saving the 
 ship and the rest of the cargo ; here the several persons interested in the 
 ship, freight and cargo must contribute rateably to indemnify the person 
 whose goods have been sacrificed against all but his proportion of the 
 general loss 4 (see Jettison). So where a ship was in the course of her 
 voyage run foul of by another ship, owing to the violence of the wind 
 and weather, and was damaged, and the master was in consequence 
 obliged to cut away part of the rigging, the expenses of repairs were held 
 to be a general average. 5 (See Adjustment, § 2 ; Contribution.) 
 
 Etymology.]— Italian, a-varia, and Dutch, haverij, avarij, signifying damage from 
 perils of the sea ; French, avarie ; German, havarie, signifying (1) damage from perils 
 of the sea ; (2) harbour duty, whence it is said that the word comes from hafen or haven, 
 a harbour ; an ingenious and plausible suggestion is that it comes from the Arabic 'awdr= 
 damage, injury (Diez, Etym. Wortb. ; Littre, Diet. s. v.). 
 
 II. § 4. Average also denotes some petty charges, such as towage, 
 beaconage, &c. which the owner or consignee of goods shipped on board 
 a vessel is bound to reimburse the master or shipowner. It is generally 
 stipulated for in the bill of lading. 6 (a. v. and Primage.) 
 
 1 Merchant Shipp. Act, 1854, s. 389. 
 * Maude & Pollock's Merch. Shipp. 
 320, n. (h). 
 
 3 Ibid. 320; Smith's Merc. Law, 328; 
 Schuster v. Fletcher, 3 Q. B. D. at p. 425. 
 
 4 Ibid. 321. This is the celebrated rule 
 of the Lex Rhodia dejactu : ' ' Lege Rhodul 
 cavetur, ut si levandae navis gratia jactus 
 mercium factus est, omnium contribution 
 sarciatur quod pro omnibus datum est." 
 Digest, XIV. 2, fr. I. 
 
 6 Maude & Pollock, 322 ; Plummer v. 
 Wildman, 3 M. & S. 482 ; Robinson v. 
 Price, 2 Q. B. D. 91, 295. See also 
 Shepherd v. Kottgen, 2 C. P. D. 578, 585 ; 
 Atwoodv. Sellar, 5 Q. B. D. 286. 
 
 6 Smith's Merc. Law, 319. In Molloy, 
 however (p. 270), average, or petty aver- 
 age, is said to be " a small recompence or 
 gratuity for the master's care over the 
 lading." The etymology of the word in 
 this sense is unexplained. 
 
Aver law dictionary. Award 
 
 AVER— AVERMENT.— § i. In pleading, to aver is to allege, and 
 an averment is an allegation. § 2. The primary meaning of aver was to 
 verify or prove to be true {e.g. to aver a writ 1 ) from the old French averer 
 from Latin ad and verus, true. 2 (See Verification.} 
 
 AVOID. — To avoid a transaction is to make it void. Thus the 
 act 27 Eliz. c. 4 has the effect of avoiding in favour of subsequent pur- 
 chasers for value, all conveyances of land made voluntarily or without 
 consideration (see Voluntary) ; so a person is said to avoid a contract by 
 setting up as a defence in a legal proceeding taken to enforce it, some 
 defect which prevents it from being enforceable: thus, if an action is 
 brought against a person on a contract either void or voidable by him, 
 he avoids it by setting up that defence : similarly if he brings an action 
 to have a voidable contract, settlement, &c. declared void. 
 
 AVOIDANCE is the operation of making a transaction void. Thus 
 a bond is said to be conditioned for avoidance when it contains a condi- 
 tion providing that it shall be void on a certain event. (See Bond; 
 Condition ; Void.) 
 
 AVOW— AVOWANT— AVOWRY. See Replevin? 
 
 AVOWTERER, according to the Termes de la Ley, is an adulterer 
 with whom a married woman continues in adultery. In Britton, however, 
 the word avouterie means simply adultery. 4 
 
 AWARD. — § 1. To award is to adjudge: thus a jury is sometimes 
 said to award damages when it assesses the amount (see Verdict), and a 
 Court awards an injunction when it grants an order for that purpose. 
 (See Injunction.) 
 
 § 2. Most commonly, however, award signifies the decision of an Arbitrator, 
 arbitrator or umpire. (See Arbitration.) No precise form of words is 
 necessary, provided that the decision is expressed, that it follows the 
 submission, and that it is certain and unambiguous : otherwise the whole 
 or part of it may be set aside by the Court. It is signed by the persons Publica- 
 making it, and is then deemed to be published so far as the authority of n 
 the arbitrator is concerned. The award is considered as published for 
 all purposes when notice of its execution has been given to the parties. 
 
 § 3. An award is conclusive and binding on the parties, unless set Effect of. 
 aside, or unless the matter is referred back to the arbitrator for re-con- 
 sideration. An arbitrator may, however, give his award in the shape of a 
 special case for the opinion of the Court. (See Special Case.) 
 
 § 4. When a submission to arbitration can be made a rule of Court, the Enforce- 
 award may be enforced by execution like a judgment ; when it cannot be m ° 
 
 1 Litt. § 691. 3 As to the old law of avowries, see 
 
 2 Littri, Diet. s. v. Co. Litt. 268 a, 269 a. 
 
 1 Britt. 1 10 a, m b. 
 
 79 
 
80 Away-Going Crop LAW DICTIONARY. Bacon 
 
 made a rule of Court, it may be enforced by action ; the award on a com- 
 pulsory reference has the same effect as the verdict of a jury, so that 
 judgment may be signed on it. 1 
 
 Etymology— Old French : eswardeir, esgardeir, to examine into, adjudge. 2 
 
 AWAY- GOING CROP is one which has been sown or planted 
 during a tenancy, but is not ready for gathering until after its expiration. 
 Sometimes the outgoing tenant has the right to cut and take away the 
 crop when it is ripe, either by agreement or custom; sometimes the 
 incoming tenant is bound to buy the crop of him at a valuation. 3 (See 
 Emblements?) 
 
 AZO . — Porcius Soldanus Azo was an eminent jurist of the twelfth and 
 thirteenth centuries. He is believed to have been born at Bologna, 
 where he afterwards taught law in public, and died about 1230. His 
 principal works are the " Summae" to the Code and Institutes of Justinian 
 (the latter of which was employed by Bracton), the " Lectura de Codice," 
 " Quaestiones" and " Glossse." 1 
 
 B. 
 
 BACKING A WARRANT is where a magistrate indorses a war- 
 rant which has been issued by a magistrate of another district or jurisdic- 
 tion, in order that it may be executed within the jurisdiction of the 
 magistrate making the indorsement. 5 
 
 BACON. — Francis Bacon was born on the 22nd January, 1560 — 1, 
 entered as a student at Gray's Inn about 1577, was called to the bar in 
 1582, entered Parliament in 1584, was made a kind of Queen's Counsel, 
 under Elizabeth, and King's Counsel under James I. ; was created 
 Solicitor- General in 1607, Attorney- General in 1613, Privy Councillor in 
 1616, Lord Keeper in March, 1616 — 17; and Lord Chancellor in January, 
 1617 — 18. In 1 1618 he was created Baron Verulam, and 1620 Viscount 
 St. Albans. In the following year he was accused of corruption in his 
 office ; and, on his confession, he was deprived of the Great Seal, fined 
 and imprisoned. He was afterwards pardoned, but his health had begun 
 to fail, and he died on the 9th April, 1626.° His principal legal works 
 are the reading on the Statute of Uses, and some Essays on law reform, 
 but they are insignificant compared with his philosophical writings. 
 
 1 See C. L. P. Act, 1854 ; Archbold's worth v. Dallison, Smith's L. C. i. 598. 
 Pr. 1334 etseq. i Savigny, Gesch. des R. R. v. 1. 
 
 2 Skeat's Etym. Diet. s. v. 5 Stone's Justice of the Peace, 113. 
 
 3 Woodfall's L. & T. 714; Wiggles- c Foss's Biog. Diet. 
 
Bail LAW DICTIONARY. Bail 81 
 
 BAIL is security that a person or thing concerned in a civil or criminal 
 proceeding will obey, or be dealt with in accordance with, the requirements 
 of the Court. " Bail" also signifies the sureties who form the security. 
 
 I. § 2. In ordinary actions bail in the old sense {infra, § 8) has been Debtors Act, 
 abolished, but a somewhat analogous proceeding still exists under sect. 6 l869- 
 
 of the Debtors Act, 1869 (g. v.), which prevents a defendant from leaving 
 England unless he gives security, if his evidence is necessary to the 
 plaintiff; 1 and under Order XIV. of the Rules of Court, which enables 
 a plaintiff, where the defendant has no defence, to sign judgment unless 
 security is given. (See Security.) 
 
 § 3. Bail may still be required to be given by the defendant in certain Recovery of 
 actions for the recovery of land (see Recovery, § 4), and in cases where a landl 
 cause, in which the cause of action does not amount to £20, is removed Removal ot 
 from an inferior Court to the High Court either before judgment or after cause- 
 judgment by writ of error. Bail generally consists of a bond or recog- 
 nizance by the party, and two sureties. (See Justification .) 2 
 
 II. § 4. In Admiralty actions, where a ship, cargo, or other property has Admiralty 
 been arrested, the defendant may have it released on giving bail for its actlons - 
 value. The bail consists of two sureties, who execute a bond called a 
 
 bail bond. 3 (See Release, § 9 ; Appraisement.) 
 
 III. § 5. In criminal proceedings, where a person is accused before a Criminal, 
 magistrate of an indictable offence, and there is sufficient evidence to put 
 
 him on his trial, the magistrate may, in all cases except treason, admit the 
 accused to bail instead of committing him to prison ; in the case of a 
 person charged with a misdemeanor the magistrate is bound to admit him 
 to bail unless the offence falls within those mentioned in the stat. 1 1 & 12 
 Vict. c. 42, s. Z3. The Queen's Bench Division has authority to admit to 
 bail for any crime whatever. Bail consists of a recognizance entered 
 into by the accused and one or more sureties for the payment of a sum of 
 money if the accused fails to surrender himself for trial or departs the 
 Court without leave. If the sureties have reason to suppose that he is 
 about to escape, they may seize him and have him committed to prison, 
 whereby they are discharged. 4 
 
 § 6. Bail in error is bail given by a defendant or prisoner during the Bail in error. 
 pendency of a writ of error (q. v.). 5 
 
 IV. § 7. In a proceeding by foreign attachment, giving bail is one of Bail in foreign 
 the modes by which the defendant may dissolve the attachment ; bail are attachment - 
 also required to enable him to appear by means of a scire facias ad dis- 
 probandum debitum (see Foreign Attachment ; Scire Facias) ; the bail must 
 
 in either case be special bail ; that is, bail to render the defendant or pay 
 what shall be recovered against him if the plaintiff recover judgment. 6 
 
 Formerly bail played an important part in every action at law. Common bail. 
 § 8. Before the statutes 2 Will. 4, c. 39, and 1 & 2 Vict. c. no, the 
 ordinary mode of commencing an action was by serving the defendant 
 
 1 Coe's Practice, 165. i Archbold's Crim. PI. 87 ; Steph. 
 
 2 Stat. 19 Geo. 3, c. 70; Archbold's Comm. iv. 355. 
 Pr. 875, 1406, 1423. 6 Archbold, 206. 
 
 3 "Williams & Brace's Admiralty, 210 " Brandon, For. Att. 106. 
 et seq. 
 
 S. G 
 
Bail 
 
 LAW DICTIONARY. 
 
 Bailable 
 
 Bail below, or 
 to the sheriff. 
 
 Bail-bond. 
 
 Special bail. 
 
 Bail piece. 
 
 Perfecting 
 bail. 
 
 Bail in error. 
 
 with a capias and notice to appear (see Capias ad respondendum), and there- 
 upon the defendant appeared and put in sureties for his future attendance 
 and obedience, which sureties were called common bail, "being the 
 same two imaginary persons that were pledges for the plaintiff's 
 prosecution, John Doe and Richard Roe," 1 but this was abolished 
 by the acts above mentioned, and bailable proceedings then became 
 collateral to the main proceedings 3 in the action in the following man- 
 ner. § 9. In certain cases the plaintiff might by making an affidavit 
 as to the amount of the cause of action (called an affidavit to hold 
 to bail) arrest the defendant and make him put in substantial sureties 
 for his appearance, who were called bail below or bail to the sheriff, 
 because they and the defendant entered into a bond (called the bail-bond) 
 in favour of the sheriff to secure the debt sued for, and conditioned for 
 the appearance of the defendant and the putting in of special bail in due 
 course. If the defendant did not comply with the condition the plaintiff 
 might take an assignment of the bail-bond from the sheriff and enforce it 
 against the sureties, or compel the sheriff either to render the defendant 
 (technically called " bringing in the body") or to put in special bail for 
 him. This kind of bail is still required in proceedings by scire facias and 
 attachment {q. v.). § 10. Special bail (bail above or bail to the action) 
 were persons who undertook that if the defendant were condemned in the 
 action he should pay the debt or render himself to prison. The operation 
 of procuring special bail was called "putting in bail," and was effected 
 by leaving a memorandum called the bail piece with the proper officer, 
 and by the bail entering into a recognizance binding themselves as sureties 
 for the defendant. Bail was put in absolutely if the plaintiff consented to the 
 bail, or de bene esse if they were subject to his afterwards excepting to them ; 
 in the latter case the bail, after entering into the recognizance, made affida- 
 vits of justification, and if the plaintiff excepted to them they had to justify 
 {see Justification, § 1), or the defendant might add (that is, substitute) other 
 bail, who had to justify instead of the original bail ; in either case, if the 
 justification was successful a rule of allowance was drawn up, when the bail 
 was said to be perfected. 3 The practice of giving "bail below and bail 
 above in ordinary actions was abolished by the Debtors' Act, 1869, sect. 6, 
 doing away with arrest on mesne process, but such parts of the practice 
 remain as are applicable to the proceedings above mentioned (§ 2). 
 §11. Another kind of bail was bail in error, given by a defendant in an 
 action when he was going to bring error on the judgment and wished exe- 
 cution to be stayed in the meantime. The practice was similar to that 
 of putting in special bail {supra, § io). 4 Proceedings in error have been 
 abolished 5 and an appeal is no stay unless so ordered. 6 (See Security.) 
 
 BAILABLE. — A writ or process is said to be bailable when a person 
 arrested under it may be liberated on bail, either as a matter of right, or 
 in the discretion of the Court. (See Bail.) 
 
 1 3 Bl. 287. 
 
 2 Smith's Action (11), 314. 
 
 3 Chitty's Pr. 727 ; First Rep. C. L. 
 Comm. 88 ; Smith's Action (n), 2^ 
 
 4 Smith's Action, (11)232. 
 
 6 Appellate Jurisdiction Act, 1876, s. n; 
 Justice v. Mersey, drv. Co., I C. P. D. 
 575 ; Rules of Court, lviii. 1. 
 
 c Rules of Court, lviii. 16. 
 
Bailee law DICTIONARY. Bailor 83 
 
 BAILEE— BAILMENT— BAILOR.— § 1. Bailment is a contract 
 by which goods are delivered by one person (the bailor) to another person 
 (the bailee) for a certain purpose, upon an express or implied promise by 
 the bailee to return them to the bailor, or to deliver them to someone 
 designated by him, after the purpose has been fulfilled. The bailee is 
 bound to take a certain amount of care of the goods while in his posses- 
 sion, and the amount of care may be expressly fixed by the contract. 
 Where there is no express agreement as to this, one of the following rules, 
 founded on the presumable intention of the parties, is applied: (1) Where 
 the bailment is for the benefit of the bailor alone, the bailee is liable only 
 for gross negligence; (2) where it is for the benefit of the bailee alone, he 
 is bound to use the very strictest diligence; (3) where it is for the benefit 
 of both bailor and bailee, the bailee is only bound to use ordinary and 
 average diligence. 
 
 Bailments are of six kinds : the classification being of importance from 
 the different nature of the bailee's liability in each case. § 2. " The first Depositum. 
 sort of bailment is, a bare naked bailment of goods, delivered by one man 
 to another to keep for the use of the bailor; and this I call a depositum. . . . 
 § 3. The second sort is, when goods or chattels that are useful are lent to Commodatum. 
 a friend gratis, to be used by him ; and this is called commodatum, because 
 the thing is to be restored in specie. 1 § 4. The third sort is, when goods Locatio et 
 are left with the bailee to be used by him for hire ; this is called locatio et conductl0 - 
 conductio, and the lender is called locator and the borrower conductor. 
 § 5. The fourth sort is, when goods or chattels are delivered to another Pawnor 
 as a pawn, to be security to him for money borrowed of him by the bailor; P' ed S e - 
 and this is called in Latin vadium, and in English a pawn or pledge (q.v.). 
 § 6. The fifth sort is, when goods or chattels are delivered to be carried, Locatio operis 
 or something is to be done about them for a reward to be paid by the f aciendl - 
 person who delivers them to the bailee who is to do the thing about them 
 [sometimes called locatio operis faciendf\. § 7. The sixth sort is, when Mandatum. 
 there is a delivery of goods or chattels to somebody who is to carry them 
 or do something about them gratis ; without any reward for such his work 
 or carriage, and this is called mandatum."^ The general rule is, that in 
 the first case the bailee is only answerable for gross negligence, that in 
 the second case he is bound to use the strictest care and diligence, that 
 in the third and fourth cases he is only bound to use ordinary care, and 
 so in the fifth case, unless he is a common carrier (q . v.), and that in the 
 sixth case the bailee is only answerable for gross negligence. 3 (See 
 Negligence; Factor.) 
 
 Etymology. — From old French bail, haillir, from Latin iajulus, originally = 
 porter, in low Latin = a manager or bailiff. 4 
 
 1 It seems hardly necessary to remark especially Inst. iii. 14, 24, 26. 
 
 that the commodatum is so called because 3 See notes to Coggs v. Bernard, Smith's 
 
 it is a convenience or favour to the bailee. L. C. i. 207, where also Sir "William Jones's 
 
 2 Per Holt, J., in Coggs v. Bernard, criticisms on Lord Holt's classification are 
 Ld. Raym. 909 ; Smith's L. C. i. 188 ; shown to be unfounded. 
 
 Chitty on Contracts, 428 etseq. The Latin 4 Diez, 46 ; Littre, s. v. 
 terms are taken from the Corpus Juris, 
 
 ' G Z 
 
84 Bailiff law dictionary. Bank 
 
 BAILIFF is an officer concerned in the administration of justice in a 
 certain district. 1 Persons having the franchise of executing legal process 
 within a liberty or other district appoint their own bailiffs for that pur- 
 Bailiff of pose, 2 but usually "bailiff" signifies a sheriff's officer, being either a 
 hundred. bailiff of a hundred, appointed over a hundred for the routine part of the 
 sheriff's office, or a bailiff employed by the sheriff to serve writs and make 
 arrests and executions. The sheriff being responsible for their acts, the 
 latter class of bailiffs ,are annually bound to him in a bond with sureties 
 for the due execution of their office, and thence are called bound-bailiffs, 
 " which the common people have corrupted into a much more homely 
 Special bailiff, appellation." 3 § 2. A special bailiff is a particular person appointed by 
 the sheriff to execute a writ at the request of the person suing it out. The 
 sheriff is not liable to that person for the acts of his special bailiff. 4 
 
 II. § 3. Bailiff also sometimes denotes "a servant that hath adminis- 
 tration and charge of lands, goods and chattels to make the best benefit 
 for the owner." 5 
 
 BAILIWICK is the district in which an officer concerned in the 
 administration of justice has authority. 6 The term was formerly applied 
 to coroners and similar officers,' but at the present day it is only used to 
 denote the county in which a sheriff has authority or a liberty exempt 
 from the sheriff. 8 (See Bailiff.) 
 
 Etymology. — The Norman-French is baillie, 9 from bail, a manager, official, from Latin 
 bajulus, the bearer of a burden. 10 The last syllable is said to be Middle-English, wick, a 
 village. 11 
 
 BALANCE ORDER. — When an order for a call is made in the com- 
 pulsory winding-up of a company, a copy of it is served on each of the 
 contributories, together with a notice specifying the balance due from him 
 in respect of the call. If default is made by any contributory in payment 
 of the sum, another and special order, called a balance order, is made, 
 requiring him to pay what is due from him within four days after service. 12 
 
 BANC. — Sittings in banc were those sittings which the superior courts 
 of common law held for the purpose of hearing and deciding questions 
 of law, e.g. on demurrers, motions for new trials, &c, as opposed to sit- 
 tings at the assizes or at nisi prius, and to trials at bar (see those titles). 
 Since the Judicature Act sittings for deciding questions of law are properly 
 called sittings of divisional courts, but the term "in banc" is still some- 
 times used. (Banc = bench or court ; see Common Bench ; Queen's Bench.) 
 
 BANK — BANKER. — A banker is a person who receives the money 
 
 1 Co. Litt. 168 b. 1 Britton, 7 b. 
 
 3 Steph. Comm. ii. 630. (See Bailiwick ; 8 Bl. i. 344, ii. 38. 
 
 Non omittas.) Britton; 7b ; Williaml.'s Laws,i. 2, § I. 
 
 3 Bl. Comm. 345. 10 Diez, Etym. Wortb. i. 46. 
 
 4 Arch. Pr. 22. " Skeat, Etym. Diet. 
 
 6 Co. Litt. 172 a. For the etymology of 12 Lindley on Part. 1391 ; Rules under 
 bailiff, see Bailiwick. Companies Act, r. 35. 
 
 6 Co. Litt. 168 b. 
 
Bank Note law dictionary. Bankrupt 85 
 
 of his customers on deposit, and pays it out again in a manner agreed 
 on between them, e.g. by cashing cheques or drafts (q. v.) drawn on 
 him by the customer. In the meantime he employs the money by lend- 
 ing it at interest, discounting bills, &c. The relation between banker and 
 customer is that of debtor and creditor, not of trustee and cestui que 
 trust or of principal and agent. Some banks are also banks of issue, that Banks of 
 is, they issue promissory notes payable to bearer on demand (see Bank lssue - 
 Note) ; of these the Bank of England is the most important, while it also 
 has numerous public functions, such as paying the interest on and regis- 
 tering transfers of the public funds, circulating exchequer bills, making 
 advances to the government, keeping accounts with the paymaster-general, 
 &C 1 (See Clayton's Case.) 
 
 BANK NOTE is a promissory note made by a banker payable to 
 bearer on demand, and intended to circulate as money. All bank notes 
 are treated as cash, and therefore cannot be followed or identified. (See 
 Possession.) Bank of England notes are a legal tender for all sums above 
 5/. ; country bank notes are not. 3 
 
 BANKRUPT. — § 1. A bankrupt is a person who has been adjudicated 
 bankrupt by a Court of Bankruptcy. Such an adjudication is pronounced 
 when it is proved to the satisfaction of the Court either that the person 
 is unable to pay all his debts in full, or that his behaviour is such as to 
 raise a presumption that he intends to defeat the rights of his creditors. 
 (See Act of Bankruptcy.) § 2. As soon as a person becomes bankrupt, all Effects of 
 the property to which he is at the commencement of the bankruptcy bankruptcy. 
 or may during its continuance become beneficially entitled (with a few 
 exceptions), passes from him and vests in a trustee for the benefit of his 
 creditors. 3 (See Trustee!) On the other hand, the bankrupt is protected 
 from proceedings against him by his creditors during the bankruptcy. 
 Bankrupts are disqualified from sitting in the House of Lords or Com- 
 mons, and from filling certain offices. 4 Bankrupts are of two classes. 
 § 3. If the bankrupt's estate is sufficient to pay his creditors a dividend of Discharged 
 ten shillings in the pound, or if within three years after the close of the bankrupt. 
 bankruptcy he pays to his creditors a sum making with the dividends paid 
 in the bankruptcy the sum of ten shillings in the pound, he will be 
 entitled to an order of discharge ; in certain cases he may obtain his dis- 
 charge without having fulfilled this requirement. 5 An order of discharge 
 releases the bankrupt from all debts proveable under the bankruptcy 
 (see Debt), with a few exceptions, and all property acquired by him after Undischarged 
 his discharge vests in him and not in his trustee. 6 § 4. Where the bankrupt. 
 
 1 Grant on Bankers ; Steph. Comm. iii. issue of notes by the Bank of England and 
 221 et seq. ; in addition to the statutes there country banks, see Grant on Bankers, 
 referred to, see the Companies Act, 1879 ; 3 Robson's Bankruptcy, 542. 
 
 the Bankers Books Evidence Acts, 1876 i Ibid. 546. 
 
 and 1879. 6 Ibid. 551. 
 
 2 Miller v. Race, Smith, L. C. i. 526 ; 6 Ebbs v. Boulnois, 10 Ch. App. 479 ; 
 Byles on Bills, 9; stat. 3 & 4 Will. 4, Ex parte Hemming, 13 Ch. D. 163. 
 
 c. 96, s. 6. For the statutes regulating the 
 
86 Bankrupt LAW DICTIONARY. Bankruptcy 
 
 bankrupt has not obtained his discharge he is protected from his creditors 
 for the period of three years from the close of the bankruptcy, but if at 
 the end of that time he has not obtained his discharge, then any balance 
 remaining unpaid in respect of any debt proved in the bankruptcy revives 
 in the form of a judgment debt, and may be enforced against the property 
 of the debtor in such manner as the Court in which the bankruptcy took 
 place may direct ; for this purpose the creditor desiring to enforce his 
 claim files a statement verified by affidavit, showing that there is a balance 
 of his' debt remaining unpaid, and that the property against which pay- 
 ment is to be enforced is the property of the debtor ; notice is served on 
 the debtor, and the application is then heard. 1 (See Bankruptcy ; 
 Insolvency^) 
 
 BANKRUPTCY — I. is the name given to a variety of judicial or 
 quasi-judicial proceedings, having for their main object the distribution 
 of the property of- an insolvent person among his creditors. Formerly, 
 the term bankruptcy was also applied to companies (7 & 8 Vict. c. m) ; 
 the process of administering the property of an insolvent company is now 
 called winding-up or liquidation (q. v.). The law of bankruptcy is founded 
 on the principle, that when a man becomes insolvent, the property then 
 remaining to him rightfully belongs to his creditors, and ought to be 
 distributed rateably among them towards satisfaction of their claims, the 
 debtor himself being released from future liability in respect of his debts, 
 upon giving all the aid in his power towards the realization and distribu- 
 tion of his estate for the benefit of his creditors, and fulfilling the other 
 conditions prescribed by the law for his discharge. 2 This is effected in 
 two manners, either by bankruptcy in the strict sense of the word {infra, 
 § 2), or by arrangements between the insolvent and his creditors, which 
 form part of the law of bankruptcy, in the wide sense of the word, 3 and 
 are generally carried out under the supervision of the Bankruptcy Court. 
 (See Arrangement ; Liquidation; Composition.) 
 
 II. § 2. Bankruptcy, in the strict sense, denotes proceedings taken to 
 make a person bankrupt, and to administer his property for the benefit of 
 his creditors. A bankruptcy generally consists of the following steps : — 
 Petition for § 3- The filing by a creditor in the appropriate Court of a petition, stating 
 adjudication. that the debtor is indebted to him in the sum of 50/. at least, that he has 
 committed an act of bankruptcy (q. v.), and praying that he may be ad- 
 judicated a bankrupt.* The petition is accompanied by an affidavit veri- 
 fying the statements contained in it. 5 A time is then appointed by the 
 registrar of the Court for the hearing of the petition, 6 and a sealed copy of 
 the petition, indorsed with notice of the time appointed for the hearing, 
 is served on the debtor. 7 (See Service.) If the debtor intends to oppose 
 
 Robson, 554. As to a second adjudica- of bankruptcy consists of non-compliance 
 
 tion of bankruptcy against an undischarged with a debtor's summons (a. v.) the issue 
 
 bankrupt, see Ex parte Watson, 12 Ch. D. of the debtor's summons maybe considered 
 
 3°°- as the first step in the bankruptcy. 
 
 2 Robson's Bankruptcy, I. » Ibid. s. 80. 
 
 3 Megrath v. Gray, L. R., 9 C. P. 216. « Bank. Rules (1870), 34. 
 * Bank. Act, 1869, s. 6. When the act ' Ibid. 60. 
 
Bankruptcy law DICTIONARY. Bankruptcy 87 
 
 or show cause against the petition, he gives notice accordingly. 1 § 4. At Hearing of 
 the hearing, either the petition is dismissed 2 (as where the petitioning P etltlon - 
 creditor fails to prove the statements in the petition), or the proceedings 
 are stayed (as where the debtor gives security for the payment of the 
 alleged debt, and the creditor is left to establish it by proceedings in the 
 ordinary courts), 3 or the debtor is adjudicated bankrupt. § 5. On the Adjudication. 
 debtor being adjudicated bankrupt, all his property vests in the registrar 
 of the Court, 4 and all rights against him (except those arising from torts, 
 &c.) must be enforced in the bankruptcy, 5 and therefore no creditor can 
 bring an action against him. But every creditor, before he can take part 
 in the proceedings or receive a dividend, must prove his debt by making 
 an affidavit in a particular form. 6 (See Proof?) § 6. As soon as may First meeting. 
 be after the adjudication, a meeting of the creditors who have proved 
 their debts is held, for the purpose of appointing a trustee and a com- 
 mittee of inspection (q. v.) ; this is called " the first meeting." 7 § 7. On Trustee, 
 the appointment of the trustee being ratified by the Court, the property 
 of the bankrupt passes from the registrar and vests in the trustee without 
 any transfer ; 8 his duty is to discover, take possession of, manage, realize 
 and distribute the property among the creditors, subject to the directions 
 of the committee of inspection, the creditors and the Court. 9 § 8. When Close of bank- 
 the property has been realized and distributed, an order is made that the " y ' 
 bankruptcy has closed. 10 No further proceedings (except for granting the 
 bankrupt his discharge, and for enforcing the rights of the creditors against 
 the bankrupt if he has not obtained his. discharge 11 ) can then be taken in 
 it, and the trustee in proper cases obtains his release. 12 (See Bankrupt, §3.) 
 
 § 9. Bankruptcy is usually classed under modes of acquisition ; 13 but the Classification, 
 acquisition of the property by the trustee is merely incidental to the main 
 object of the bankruptcy, which is the administration of the property. 
 (See Administration.') 
 
 Etymology and History.] — § 10. " Bankruptcy" is derived from the Italian banco. 
 rotta, from the popular mediaeval practice of breaking the benches or counters of merchants 
 who failed to pay their debts. 14 Originally the bankruptcy law was a branch of criminal 
 law, being directed solely to the object of preventing fraudulent traders from escaping 
 from their creditors. 15 But by statutes passed in Queen Anne's reign provision was 
 made for relieving bankrupts from their debts, and by the Bankruptcy Act, 1861, the 
 distinction between traders and non-traders, who had hitherto not been subject to the 
 bankruptcy law, was to that extent abolished. The distinction between bankruptcy and 
 insolvency still exists on the continent. 16 
 
 (See Insolvency; Bankrupt; Bankruptcy Courts; Trader; Debtor; Creditor; 
 Claim; Mutual Credits; Protected Transactions; Reputed Ownership; Certificate.) 
 
 1 Bank. Rules (1870), 36. In re Westby, 10 Ch. D. 776. In both 
 
 2 Bank. Act, 1869, s. 8. these cases the question arose with refer- 
 
 3 /fad. s . 9. ence to property acquired by the bankrupt 
 
 4 Ibid. ». 17. after the close of the bankruptcy. 
 
 5 Ibid. s. 12. 12 Bank. Act, s. 51. 
 
 6 Bank. Rules (1870), 67. 13 2 Bl. Comm. 471 et seq. 
 
 7 Bank. Act, 1869, ss. 14, 16. u Voltaire, Diet. Phil., y . Banqueroute ; 
 
 8 ifad, s. 17. Saint Bonnet, Diet., v. Banqueroute, 
 
 9 Ibid. s. 20. Faillite. 
 
 10 Hid. s. 47. 15 Robson'sBank.ch. 1; 2Bl.C0m.471. 
 
 11 In re Petti? s Estate, I Ch. D. 478; 16 Holtz.Encyc, v. Bankerott, Concurs. 
 
Bankruptcy Courts law dictionary. 
 
 Bar 
 
 Court of 
 Appeal. 
 
 BANKRUPTCY COURTS.— § i. The present Bankruptcy Courts 
 are the London Bankruptcy Court, the Court of Appeal, and the local 
 London Bank- Bankruptcy Courts created by the Bankruptcy Act, 1869. § 2. The London 
 ruptcy Court. Bankruptcy Court consists of a judge called the Chief Judge in Bank- 
 ruptcy, and a number of registrars, clerks, ushers, &C 1 It is a principal 
 Court of Record, having original jurisdiction within the city of London 
 and the metropolitan district, and appellate jurisdiction from the local 
 Bankruptcy Courts. § 3. The Court of Appeal in Bankruptcy, which 
 hears appeals from the London Bankruptcy Court, was formerly the Court 
 of Appeal in Chancery ; 2 it is now the Court of Appeal of the Supreme 
 Court of Judicature, as constituted by the Judicature Act, 187s; 3 an 
 appeal may be brought from it to the House of Lords in the same manner 
 as before the Act of 1875, namely, by leave of the Court of Appeal.* 
 § 4. The local Bankruptcy Courts are the provincial County Courts ; that 
 is, all the County Courts except the metropolitan ones, the district of 
 which is included in that of the London Bankruptcy Court. 6 
 
 For a history of the old Bankruptcy Courts, see Robson, Bankruptcy, 
 ch. i. and ii. ; and see Commission. 
 
 County 
 Courts. 
 
 Of a Court. 
 
 "At bar." 
 
 Call to the 
 bar. 
 
 Trial at bar. 
 
 BAR. — I. § 1. A bar is a partition across a Court of justice. In the 
 Houses of Lords and Commons, the bar forms the boundary of the house, 
 and therefore all persons, not being members, who wish to address the 
 House, or are summoned to it, appear at the bar for that purpose ; thus, 
 in arguing appeals in the House of Lords, the counsel stand at the bar. 
 § 2. In the ordinary Courts, the bar is a more or less imaginary barrier 
 separating the bench and the front row of counsel's seats from the rest of 
 the Court ; in theory, only queen's counsel, serjeants-at-law, and a few 
 other barristers are allowed within the bar, together with solicitors (as 
 officers of the Court) and parties litigant who appear in person, while 
 junior or utter barristers and the general public remain without the bar. 
 § 2. Hence, " bar" has acquired the secondary sense of " Court" in such 
 phrases as the "case at bar," "disclaimer at the bar," meaning "in 
 Court," and the tertiary sense of the whole body or profession of bar- 
 risters ; the operation of being admitted to practise as an utter barrister 
 is described as being " called to the bar," while Serjeants and queen's 
 counsel, on taking their degrees, are called within the bar ; that is, invited 
 by the judges to take their seat in the front row. Special pleaders and 
 certificated conveyancers are said to be below the bar. (See Barrister.) 
 
 § 3. A trial at bar is a trial by a jury before a full Court {i.e. three or 
 four judges), instead of before a single judge at nisi prius. Trial at bar 
 was originally the normal mode of trial ; but as it made it necessary to 
 bring up the jury and witnesses from the locus in quo to Westminster, the 
 practice of trial at nisi prius was introduced. (See Nisi Prius.) Trials at 
 
 1 Bank. Act, 1869, s. 61. 
 
 2 Sect. 71. 
 
 a Jud. Act, 1875, s . 9. 
 
 4 Bank. Act, 1869, s. 71. 
 6 Ibid. s. 59. 
 
Bare Trustee law dictionary. Bargain and Sale 89 
 
 bar in civil cases have long been practically obsolete, but they are still 
 held occasionally in criminal cases of importance. 1 (See Trial!) 
 
 II. §4. Bar also signifies a metaphorical barrier or obstacle. Thus, in Bar to aright, 
 the old law, a fine with proclamations levied by a tenant in tail was said 
 
 to be a bar to the estate tail, because it took away the right of the issue 
 
 in tail. (See Fine.) So a judgment is a bar to another action for the 
 
 same right, and a debt or right is barred by the Statutes of Limitation 
 
 when the time for the enforcing it has gone by ; this is sometimes called Absolute, 
 
 an absolute bar, as opposed to a presumptive bar, which arises from laches presumptive. 
 
 or lapse of time otherwise than under the statutes. 2 In pleading, anything 
 
 is a bar which is an answer to the plaintiff's claim ; as to pleas in bar, see 
 
 Plea. 
 
 III. § 5. In the old books "bar" frequently means a "plea in bar," Plea in bar. 
 and is so called "because it barreth the plaintiff of his action." 3 Bars 
 
 in this sense were formerly divisible into many kinds, e.g. bars to common 
 intent, bars to special intent, bars at large, bars material, &c, but these 
 are all now obsolete. 4 
 
 Etymology.] — Old French barref a rod or rail ; of Celtic origin. 6 
 BARE TRUSTEE. See Trustee. 
 
 BARGAIN AND SALE. — I. § 1. In its primary sense, "bargain of goods, &c. 
 and sale doth signify the transferring of the property of a thing from one 
 to another upon valuable consideration," 7 and is accordingly used with 
 accuracy to signify an agreement for the sale of goods by which the pro- 
 perty in them passes immediately to the purchaser, as opposed to an 
 executory contract of sale, or contract by which the property in the goods 
 is not to pass to the purchaser until a future time, or until some condition 
 has been fulfilled. 8 (See Contract; Sale.) 
 
 II. § 2. In the law of real property, "bargain and sale" is the name 
 for two kinds of conveyances, " bargain and sell" being the correspond- 
 ing operative words (q. v.). , 
 
 i. § 3. Before the Statute of Uses, if a person contracted with another of land under 
 for the sale of land for a pecuniary consideration and paid the money, Statute of 
 but no proper conveyance (such as a feoffment) was executed to him, then 
 although the legal estate in the land remained in the vendor, yet in equity 
 the purchaser was looked upon as entitled to the land, and the vendor was 
 therefore said to be seised to the use (that is, for the benefit) of the pur- 
 chaser. Consequently when the Statute of Uses (q. v.) was passed, such 
 a "bargain and sale" of land vested the legal estate in the purchaser 
 without any livery of seisin. 9 To prevent land from being thus secretly Enrolment. 
 
 1 Archbold. Pr. 346 ; Rules of Court, 6 Skeat, Etym. Diet, 
 xxxvi. 7. 7 Shep. Touch. 221. 
 
 2 See Angus v. Dalton, 3 Q. B. D. 85. 8 Benjamin on Sales, 3, 227. 
 
 3 Co. Litt. 303 b. 9 Nor is it necessary that the purchase- 
 
 4 Plowden, 26 et seq.; Heath's Maxims, money should be actually paid if the deed 
 136. states that it has been paid ; Shepp. 222. 
 
 e Co. Litt. 372 a. 
 
go 
 
 Barmote Courts 
 
 LAW DICTIONARY. 
 
 Barratry 
 
 At common 
 law. 
 
 conveyed, the stat. 27 Hen. 8, c. 16, enacted that every bargain and 
 sale of estates of freehold should be enrolled within six months from its 
 date. Enrolment being considered undesirable, a bargain and sale was 
 thenceforward only used for conveyances of estates less than freehold, as 
 in the case of the ordinary " lease and release" (g. v.), and a mortgage by 
 a freeholder for a term of years, which is at the present day appropriately 
 made by the words "bargain and sell." 1 
 
 2. § 4. The words " bargain and sell" are the words commonly used in 
 the execution of common law authorities. Thus executors having a 
 naked power under a will to sell real estate convey by the words " bar- 
 gain and sell ;" such words have no effect in themselves, but merely 
 designate the persons to whom the executors sell, and who are to take 
 by virtue of that designation under the will. 2 The commonest instance 
 of this is where a testator wishes to empower his executors to sell his 
 copyholds, and at _ the same time wishes to prevent the expense of an 
 admittance, which would be necessary if he devised the land to them ; he 
 therefore merely gives them a power of sale, which they execute by a 
 deed called a bargain and sale. 
 
 BARMOTE COURTS are Courts held in certain mining districts 
 belonging to the Duchy of Lancaster for regulation of the mines, and for 
 deciding questions of title and other matters relating thereto. 3 (See 
 Stannaries.) 
 
 Exchequer. BARON. — § 1. The judges of the Court of Exchequer {q. v.) were 
 
 called barons, and the chief judge of the Court was called the Lord Chief 
 Baron of the Exchequer. By the Judicature Acts, 1873-5, they were 
 transferred to the High Court of Justice, of which they form the Ex- 
 chequer Division. The Lord Chief Baron is also ex officio a member of 
 the Court of Appeal. His successors will bear the same title until the 
 office is abolished by Order in Council. 4 The successors of the junior 
 barons are styled justices of the High Court. 6 
 Husband. § 2. Baron is the old word for husband : " baron and feme" in the old 
 
 Freeman. books means husband and wife. § 3. "And in ancient charters and 
 records, the barons of London and barons of the Cinque Ports, do signify 
 the freemen of London and of the Cinque Ports." 6 (See Court Baron.) 
 
 BARRATOR. See Barretry. 
 
 BARRATRY. — In the law of merchant shipping, any illegal, fraudu- 
 lent or knavish conduct of the master or mariners of a ship, by which 
 the freighters or owners are injured, is, by our law, barratry. This offence 
 may be considered, first, as an act of misfeasance or wilful neglect against 
 
 1 Davids. Conv. i. 73 ; Williams on 
 Seisin, 141. 
 
 2 Davids, i. 73. 
 
 3 Steph. Comm. iii. 347, n. (b) ; stat. 14 
 
 & 15 Vict. c. 94. 
 4 Jud. Act, 1873, ss. S, 6, 31, 32. 
 6 Jud. Act, 1877, s. 4. 
 6 Co. Litt. 58 a. 
 
Barretry law dictionary. Barrister 91 
 
 the owner, recognized by the common and maritime law : and, secondly, 
 as subjecting the offender to punishments imposed by statute. 1 Thus the 
 neglect to pay port dues, and smuggling, are instances of barratry giving 
 rise to civil liability for any injury thereby caused to the owner, 2 and 
 maliciously destroying or damaging a vessel is made criminal by various 
 acts. 3 (See Barretry!) 
 
 Etymology.] — Norman-French barat, fraud, chicane, the etymology of which is 
 doubtful.* 
 
 BARRETRY— BARRETTOR.— § 1. "A barrettor is a common 
 mover, and exciter or maintainer of suits, quarrels or parts, either in 
 Courts or elsewhere in the countrey." 6 
 
 § 2. Common barretry is the offence of frequently exciting and stirring 
 up suits and quarrels between the queen's subjects, either at law or other- 
 wise. The punishment for this offence, which is a misdemeanor, is by 
 fine and imprisonment, and the offender is disabled from practising as a 
 solicitor. 6 (See Maintenance.) 
 
 BARRIER, in the law of mines, is a wall of coal left between two 
 mines. In the absence of an agreement, easement or custom to the con- 
 trary, every mine owner may work up to the boundary of his land, 
 although his doing so may cause injury to his neighbour, e.g. by letting 
 water into his neighbour's mine ; but he is liable for injury caused by 
 negligence or malice. 7 In practice, it is usual for a mine owner to work 
 to the boundary on the dip of the coal bed, and to leave a barrier of his 
 own mineral on the rise, so as to prevent the water of the adjacent mine 
 on a higher level from flooding his mine. If the "upper owner" (that 
 is, the owner of the adjacent mine on the rise) trespasses on the barrier 
 so as to let the water through, he will be liable not only for the trespass, 
 but also for the consequential injury. 8 (See Boundaries.) 
 
 BARRISTER (or "barrister at law") is a person entitled to practise 
 as an advocate or counsel in the Superior Courts. The rank or degree of 
 barrister can only be conferred by one or other of the Inns of Court {q. v.), 
 where the candidate is required to pass through a preliminary course of 
 study and examination. 9 Barristers who have attained the rank of queen's 
 counsel or Serjeants at law (q. v.) take precedence of those who have not, 
 and who are sometimes called utter barristers, because formerly in arguing 
 moots (q. v.) they sat " uttermost on the formes, which they call the 
 barr." 10 A barrister cannot maintain an action to recover his fees for work 
 
 1 Maude & Pollock, Merch. Shipp. 105. ° Stephen's Comm. i. 19 ; iii. 270. 
 
 2 ibid. 106. 10 SeeManning'sServiensadLegem,262. 
 
 3 Xbid. 10". It might at first sight be supposed that 
 
 4 Britton, 224 b ; Littre, s. v. Baraterie. " utter barrister" means one who addresses 
 6 ' Co. Litt. 368 a. a court from outside the bar, as opposed 
 
 6 Bl. Comm. iv. 134; stat. 12 Geo. 1, to queen's counsel and Serjeants, who sit 
 c. 29 ; Russell on Crimes, i. 362 ; Steph. within the bar ; but this is negatived by 
 Crim. Dig. 86. the old use of "inner barrister" in the 
 
 7 Gale on Easements, 442. sense of student; Manning, ubi supra; 
 
 8 Bainbridge on Mines, 425. Reeves, v. 247. 
 
92 Base law dictionary. Bedford Level 
 
 done as counsel, nor, on the" other hand, is he liable to an action for 
 negligence in transacting the business of his client. He is also privileged 
 from the penalties of libel and slander for matter spoken or written by 
 him in the course of business. (See Privilege; Pleader; Solicitor.) 
 
 BASE. See Fee; Services. 
 
 BASTARD is a child whose parents were not married at the time of 
 its birth. Its mother is entitled to its custody, and is bound to maintain 
 it. If she has not the necessary means, she may, in some cases, compel 
 the putative father to pay her a weekly sum of money for its maintenance 
 until the age of thirteen or sixteen, if so directed. § z. A bastard is not 
 entitled to the name of either its father or mother, nor can it be heir or 
 next-of-kin to any one, or have an heir or next-of-kin, except its own 
 issue ; but a bastard may not marry a person who would have been related 
 to him within the prohibited degrees if his parents had been married 
 before his birth. 1 As to the old rule of " bastard issue," see Mulier. 
 
 BATTEL. See Trial. 
 
 BATTERY is an assault whereby any force, however small, is actually 
 applied, directly or indirectly, to the person of another, or to the dress 
 worn by him, against his will and without reasonable cause. 2 A battery 
 gives rise to an action for damages, and an intentional or wilful battery 
 is also punishable as an offence in the same way as an assault (q. v.). 
 See Tort ; Crime; Justification. 
 
 BEARER. — When the benefit of a security or document of title 
 can be claimed by any person who presents it for that purpose, it is said 
 to be a document to bearer. For instance, if a cheque is drawn thus : 
 " pay the bearer," or " pay A. B. or bearer," or " pay cash or bearer," 
 &c, the banker may pay it to any one who presents it, unless its negoti- 
 ability is restrained. See. Bill of Exchange; Cheque; Indorsement; Nego- 
 tiable; Possession. 
 
 BECCARIA. — Cesare Bonesana Beccaria was born at Milan in 1735, 
 taught political economy there and died in 1793. His chief work is on 
 Crimes and Punishments {Dei Delitti e delle Pene), which has been trans- 
 lated into almost all European languages. 3 
 
 BEDFORD LEVEL.— Lands within the Bedford Level are subject 
 to various provisions as to registration of conveyances, contained in the 
 stat. 15 Car. 2, c. 17. 4 
 
 1 Steph. Comm. ii. 297; stat. 7 & 8 2 Stephen's Crim. Dig. 162 ; Russell on 
 
 Vict. c. 101 ; Bastardy Acts of 1872 and Crimes, i. 957 ; UnderhiU on Torts, 119; 
 1873 ; Co. Litt. 243 b; Litt. §§ 399 et seq. Broom, C. C. L. 687. 
 As to the etymology of the word, see Diez, 3 Holtz. Encycl. 
 
 i- 57- i Dart, V. & P. 685 ; Willis v. Brovm, 
 
 10 Sim. 127. 
 
Beer-House law dictionary. Benefit of Clergy 
 
 BEER- HOUSE. See Licence. 
 BEGIN. See Right to Begin. 
 
 BENCH signifies a high seat or tribunal, especially the seat of a judge 
 in court, " and is properly applied to the justices of the Court of Common 
 Pleas, because the justices of that Court sit there as in a certaine place : 
 .... and legall records tearme them justiciarii de banco" justices of the 
 bench. 1 The Court was also called the Common Bench, to distinguish it 
 from the King's Bench (q.v.). § 2. "Bench" is also used to denote the 
 whole body of judges, or a particular class of them, as opposed to the 
 " bar," which denotes the barristers. 
 
 As to bench-warrants, see Warrant. 
 
 BENCHERS are the members of an Inn of Court (q. v.), to whom "is 
 chiefly committed the government and ordering of the house, as to men 
 meetest, both for their age, discretion and wisdomes." 2 They decide 
 questions as to calling persons to the bar and of disbarring those who 
 have been called. 3 
 
 BENEFICE is a large word, and is taken for any ecclesiastical pro- 
 motion or spiritual living whatsoever. 4 Ordinarily, however, it denotes 
 what is technically called "a benefice with cure of souls," that is, the office 
 and emoluments of a rector or vicar of a parochial church, including the 
 cure of souls, and in the case of a rector the freehold of the parsonage 
 house, the glebe, the tithes and other dues, or, in the case of a vicar, a pro • 
 portion of these emoluments. 5 (See Advowson ; Appropriation; Curate.} 
 
 BENEFICIARIES are persons for whose benefit property is held by 
 trustees, executors, &c. (See Trust!) 
 
 BENEFIT BUILDING SOCIETY is the old-fashioned name for 
 what is now more commonly called a building society (q. v.). 
 
 BENEFIT OF CLERGY was originally the exemption of the per- 
 sons of clergymen from criminal process before the secular Courts, in a 
 few particular cases. Afterwards the clergy arrogated to themselves this 
 exemption in the case of all crimes, and finally extended it not only to 
 " every little subordinate officer belonging to the church or clergy, but 
 even many that were totally laymen :" 6 every one that could read being 
 entitled to the privilegium clericale. The stat. 4 Hen. 7, c. 13, limited 
 the right in the case of laymen to one exemption, and directed them to 
 be burnt in the hand in order that they might not claim it twice. After 
 being delivered from the secular Court, the offender underwent a mock 
 
 1 Co. Litt. 71b. 4 2 Inst. 29. 
 
 2 See Manning's Serviens adLegem, 261. 5 Bl. Comm. i. 384 et seq. 
 
 3 Steph. Comm. i. 19. 6 Ibid. iv. 365. 
 
 93 
 
94 
 
 Benevolent Societies law dictionary. 
 
 Bill 
 
 Residuary. 
 
 Specific. 
 
 Executory. 
 
 Parliamentary 
 bills. 
 
 trial in the ecclesiastical Courts. The privilege of clergy was restricted 
 by various statutes, and finally abolished by stat. 7 & 8 Geo. 4, c. 28. 
 
 BENEVOLENT SOCIETIES are societies established and regis- 
 tered under the Friendly Societies Act, 1875, for any charitable or bene- 
 volent purposes. 1 In their constitution and management such societies 
 resemble friendly societies {q. v.) 
 
 BENTHAM, — Jeremy Bentham was born in London in 1748, was 
 educated at Westminster and Oxford, entered at Lincoln's Inn in 1673, 
 travelled in Russia and the east of Europe, and died on the 6th June, 
 1832. His works fill nine octavo volumes; the principal legal ones are 
 the Fragment on Government, Principles of Morals and Legislation, 
 Judicial Evidence, and numerous writings on codification and law reform ;* 
 many of his suggestions have been carried into effect ; most of the others 
 are impracticable. 
 
 BEQUEATH— BEQUEST.— § 1. To bequeath property is to leave 
 it by will, and a bequest is a gift by will ; the terms are only applied to 
 personal property. A residuary bequest is a gift of the residue of the 
 testator's personal estate, namely, of what is left after payment of debts 
 and legacies, &c. (See Residue; Legacy ; Legatee; Devise.) 
 
 § 2. A specific bequest (not a specific legacy) is where a testator be- 
 queaths to a person all his property of a certain class or kind, e.g. all 
 his pure personalty. 3 
 
 § 3. An executory bequest is the bequest of a future, deferred, or con- 
 tingent interest in personalty. (See Executory Interest.) 
 
 Etymology.] — Anglo-Saxon Mcwedkan, to declare. 4 
 
 BEYOND THE SEAS. See Absence beyond Seas. 
 
 BIGAMY. — Every person who, having a wife or husband still living, 
 goes through the form of marriage with any other person, commits the 
 felony called bigamy, and is liable on conviction to seven years penal 
 servitude. A person marrying again during the lifetime of his or her wife 
 or husband is not guilty of bigamy if the wife or husband has been con- 
 tinually absent for seven years, and has not been known by such person 
 to be living within that time, 5 nor of course is it bigamy for divorced per- 
 sons to marry again. 6 (See Divorce?) 
 
 BILL primarily means a letter or writing. In addition to the kinds of 
 bill described under subsequent titles, the word has the following mean- 
 ings in law : — 
 
 § 2. In parliamentary practice bills are incomplete acts of parliament. 
 
 1 Friendly Soc. Act, 1875, c. 8, s. 3. 
 See the Fourth Report of the Friendly 
 Soc. Comm. (p. xxxi), which gives a de- 
 scription of the " Order of Cemented 
 Bricks," a benevolent society confined to 
 officers of the royal navy, and established 
 partly for convivial purposes and partly for 
 ' ' distributing discriminating charity in de- 
 
 serving naval cases." 
 
 3 Bentham's Works by Bowring. 
 
 3 Shepherd v. Beetham, 6 Ch. D. 597. 
 
 4 Skeat, Etym. Diet. 
 
 6 Stat. 24 & 25 Vict. c. 100, s 57 ; 
 Stephen's Crim. Dig. 174; Russell on 
 Crimes, iii. 264. 
 
 6 Steph. Comm. iv. 279. 
 
Biu LAW DICTIONARY. Bill of Complaint 95 
 
 When a bill has passed both houses of parliament and received the royal 
 
 assent, it becomes an act of parliament (q. v.)} Bills, like acts, are divided 
 
 into public and private, but bills which, though they are local in their Public, 
 
 nature, are yet of public interest (e. g., bills affecting crown property or private, 
 
 the metropolis, &c), are sometimes called hybrid bills, and are introduced hybrid. 
 
 as public bills. 3 § 3. A bill of attainder is a bill formulating an accusation Of attainder. 
 
 against a peer or other high personage in a matter of public importance, 
 
 declaring him to be attainted and his property to be forfeited. It 
 
 resembles an impeachment (q. v.), except that it may be introduced in 
 
 either house, and requires no evidence in the judicial sense. 3 
 
 § 4. In criminal procedure, an indictment is presented to the grand Indictment, 
 jury under the name of a bill, and is not technically an indictment until 
 so found by the jury. (See Indictment.) 
 
 § 5. " Bill" also signifies the draft of a patent for a charter, commission, Patent, 
 dignity, office or appointment ; such a bill is drawn up in the Attorney- 
 General's Patent Bill Office, is submitted by a Secretary of State for her 
 Majesty's signature, when it is called the Queen's Bill ; it is countersigned 
 by the Secretary of State and sealed by the Privy Seal, and then the patent 
 is prepared and sealed. (See Crown Office.)* 
 
 Etymology.] — Middle-English, Mile, a letter, writing. Law Latin, Mia, a corruption 
 of bulla, a sealed writing. Classical Latin, bulla, a seal or stud of metal. 5 
 
 BILL OF COMPLAINT. § 1. Under the practice of the Court of Chancery, 
 before the Judicature Acts (q. v.), an ordinary suit was commenced by filing or exhibiting 
 a bill of complaint, which was a printed document in the form of a petition, addressed in 
 ordinary cases to the Lord Chancellor, containing a statement of the plaintiff's case, and 
 concluding with a prayer asking for the relief which he filed the bill to obtain. A bill, 
 therefore, consisted of four parts : — (i.) The title, giving the description of the court and Title, 
 the names of the plaintiffs and defendants ; (2.) The address to the Lord Chancellor, address, 
 (3.) The statement or stating part; and (4.) The prayer.* The bill was signed by the statement > 
 counsel who had settled it. § 2. The bill by which a suit was commenced was called 
 an original bill, as opposed to an amended bill (see Amendment). The bill was served Original and 
 on the defendant as a writ is under the new practice. It therefore combined the func- amen ded bills, 
 tions of a writ of summons and a statement of claim (q. v.). 
 
 § 3. The bill being the first step in a suit, the word " bill" was often used as synony- 
 mous with "suit;" and in this sense bills were of three kinds, original, — in the nature of 
 original, and not original. § 4. A bill was called original when it related to matters Original, 
 not already before the court, and either prayed relief or was filed for some subsidiary 
 purpose. §5. Bills praying relief were of infinite variety according to the right or equity Bills for relief, 
 sought to be maintained ; bills having special names were interpleader and certiorari 
 bills (see those titles); bills quia timet, to prevent an anticipated loss or injury; and 
 bills of peace, to establish a right which might otherwise be made the subject of re- 
 peated litigation. These kinds of bills were, however, rare in practice. \ 6. Bills not not for relief, 
 praying relief were of two kinds — (1), bills to perpetuate the testimony of witnesses (see 
 Perpetuation of Testimony) ; (2), bills of discovery (see Discovery),'' of which the principal 
 
 1 May, Pari. Pr. 479 et seq.; Steph, Suit; Daniell'sPr. 297, and Forms. Under 
 Comm. ii. 383. the practice before the stat. 15 & 16 Vict. 
 
 2 May, 693, 732. c. 86, a bill in Chancery consisted of nine 
 * Bl. Comm. iv. 259. parts. 
 
 4 Rep. Comm. on Fees, 9, 5. 7 Mitford, 145 ; Daniell, 239, 1408 ; 
 
 5 Skeat, Etym. Diet. Haynes's Eq. 185 ; Snell's Eq. 495, 
 For specimens of Bills see Hunter's 
 
9 6 
 
 BUI of Costs 
 
 LAW DICTIONARY. 
 
 Bill of Exchange 
 
 parts were the stating fart, containing the statement of facts ; the charging part, alleging 
 that the defendants set up a certain defence and charging or asserting matter to avoid it 
 (see Avoidance) ; and the interrogating part, in which the essential statements were re- 
 peated in the form of interrogatories (q. v.) (Mitford on Pleading, 42 et seq.) Strange as 
 it may seem, this barbarous form of pleading is still used in the United States. 
 English bill. § 7- Formerly an ordinary suit in Chancery was called a suit by English bill, by way of 
 
 distinction from suits on the common law side of the Court, which were conducted in 
 Norman French or Latin (Mitford, 8). (See Chancery.) 
 In the nature \ 8. Bills in the nature of original bills, and bills not original, have long ceased to be of 
 of original and practical interest : they included supplemental hills, filed to supply defects or omissions 
 not original. j n or jginal bills ; bills of revivor, to revive abated suits (see Revivor) ; and bills of 
 review, filed to obtain the reversal or alteration of a decree made in a former suit between 
 the same parties. 1 
 Fishing bill. \ 9. Where a person filed a bill claiming relief, but not knowing whether the real facts 
 
 would support his case and hoping to find out by interrogatories facts on which to found 
 his claim, the bill was called a fishing bill. 
 
 (See Suit; Action; Chancery; Information; Pleading.) 
 
 BILL OF COSTS is an account of fees, charges and disbursements 
 by a solicitor in a legal business. As to costs generally and their taxa- 
 tion, see those titles. It may here be mentioned that the Court has juris- 
 diction under the Attorneys and Solicitors Act, 1843, to make an order 
 for the delivery by a solicitor of a bill of costs against his client ; this is 
 necessary where the solicitor claims a lien on a fund or on papers in 
 his possession, so that they cannot be dealt with until his costs have 
 been paid. 2 Also under the Attorneys and Solicitors Act, 1870, a solicitor 
 may make an agreement in writing with his client as to his remuneration 
 by a gross sum, percentage, salary or otherwise ; such an agreement, how- 
 ever, is liable to be reviewed by a taxing master. 3 
 
 BILL OF EXCEPTIONS.— Under the former common law practice if a judge 
 at the trial of an action misdirected the jury on a point of law, or improperly received or 
 rejected evidence, he might be required to seal a bill of exceptions, which was a document 
 containing a statement of the objections taken by the party aggrieved. The bill was 
 then argued before the Court of Error, and if the objections were held to be well founded 
 there was a trial de novo. Bills of exceptions have been abolished. 4 The same result is 
 now obtained by a motion for a new trial. (See Trial.) 
 
 Acceptance. 
 
 BILL OF EXCHANGE is an unconditional written order from A. 
 to B., directing B. to pay C. a certain sum of money therein named, either 
 on demand or at sight, or at any certain period after date or after sight. 
 (See Days of Grace?) A. is called the drawer, B. the drawee, and C. the 
 payee ; sometimes A., the drawer, is himself the payee. § 2. When B., the 
 drawee, has, by accepting the bill, undertaken to pay it, he is called the 
 acceptor. 5 (See Accept!) 
 
 1 Mitford, 33 et seq. ; Daniell, 1377. 
 
 2 Daniell, Ch. Pr. 1728; Archbold's 
 Pr. 121. 
 
 3 Daniell, 1738. 
 
 4 Archbold's Pr. 376 ; Rules of Court, 
 lviii. 1. 
 
 6 Byles on Bills, 1, 78; Smith's Merc. 
 Law, 203 et seq. The Bills of Exchange 
 Act is the act of 18 & 19 Vict. c. 67, 
 passed to prevent delay in actions on bills 
 of exchange. It was virtually repealed by 
 the Rules of Court of April, 1880. 
 
Bill of Exchange law dictionary. Bill of Exchange 97 
 
 § 3. If a bill is made payable to C. without more, it is not transferable. 1 To order. 
 Usually, however, a bill is made payable either to " C. or order," or to 
 " C. or bearer." In the former case C. can transfer the bill by a written Indorsement, 
 order to pay to someone else (D.), who then becomes the holder of it, 
 and can transfer it to E., and so on. This order is generally written 
 on the back of the bill, and is called an indorsement, C. being then the 
 indorser, and D. the indorsee. If the bill is payable to C. or bearer, C. To bearer. 
 can transfer it to D. by merely delivering it to him. A bill payable to 
 order may be converted into a bill to bearer if the payee or indorsee 
 indorses it in blank. (See Indorsement^) Holder is a general word ap- Holder. 
 plied to anyone in actual or constructive possession of a bill, and entitled 
 to recover and receive its contents from the parties to it, viz., the acceptor, Parties. 
 drawer, and indorsers. 
 
 § 4. The legal effect of drawing a bill is a conditional contract by the Liability of 
 drawer to pay the bill if the drawee dishonours it, either by failing to drawer > 
 accept it, or, having accepted it, by failing to pay it at maturity. The 
 effect of accepting a bill is an absolute contract by the acceptor to pay of acceptor, 
 the bill. The effect of indorsing a bill is a conditional contract by the of indorser. 
 indorser to pay his immediate or any succeeding indorsee, or the bearer, 
 in case of the acceptor's default. 2 But if the bill is not presented for pay- 
 ment at the proper time, all the antecedent parties, except the acceptor, 
 are discharged from liability, 3 and the liability of a party may be qualified 
 by the terms of his acceptance or indorsement (see those titles). 
 
 § 5. When the drawee of a bill fails to accept it on its being presented Dishonour. 
 to him for that purpose it is said to be dishonoured by non-acceptance ; 
 when the acceptor of a bill fails to pay it on presentment at the proper 
 time it is said to be dishonoured by non-payment. § 6. As a general Notice of dis- 
 rule it is incumbent on the holder of a bill which has been dishonoured 
 to give prompt notice of the fact to the antecedent parties, otherwise they 
 will be discharged from all liability. 4 
 
 § 7. When a bill is made payable at a certain time {e.g., thirty days Maturity. 
 after date or sight), on that time arriving the bill is said to be at maturity 
 or due. After that time it is said to be overdue or afterdue. The nego- Overdue, 
 tiability of an overdue bill is qualified. (See Negotiable; Equity.) 
 
 § 8. Bills of exchange, promissory notes, and a few other instruments, Peculiarities of 
 differ from other simple contracts, first, in their negotiability (q. v.), and biUs > &c - 
 secondly, in being presumed to have been given or transferred for valuable 
 consideration until the contrary is proved. 5 
 
 § 9. An accommodation bill is one to which a person has put his name Accommoda- 
 as acceptor, drawer, or indorser, without consideration, for the purpose tlon biUs " 
 of benefiting or accommodating another person who desires to raise money 
 on the bill and is to provide for it when due. 6 When one person does this 
 in consideration of another doing the same for him, the bills are called 
 mutual accommodation bills. As between the accommodating and the 
 
 1 Byles, 82, 147. * Tbid. 269 et seq. 
 
 1 Ibid. 2 etseq. 5 Ibid. 2, 118. 
 
 3 Ibid. 215. ° Ibid. 129. 
 
 S. " 
 
98 
 
 Inland. 
 Foreign. 
 
 Parts. 
 
 Set. 
 
 Bills of Ex- 
 change Act. 
 
 Bill of Health 
 
 LAW DICTIONARY. 
 
 Bill of Lading 
 
 Mate's re- 
 ceipt. 
 
 Parts of bill. 
 
 accommodated parties, of course the ordinary rules of the liability of 
 acceptor, drawer, &c. do not apply, nor do they apply where a person 
 takes an accommodation bill with notice of its character. 
 
 § 10. Bills of exchange are either inland or foreign. Inland bills are 
 those which are both drawn and payable within the limits of the British 
 Islands ; all others are foreign bills. Foreign bills differ from inland 
 bills principally in being frequently drawn in sets or parts, 1 and in 
 requiring to be protested on dishonour in order to charge the drawer. 2 
 (See Protest^ Exemplars or parts of a bill are separate copies, each 
 part being numbered and referring to the other parts, but all the parts are 
 signed by the drawer and are otherwise identical with one another. All 
 the parts together make a set, and the whole set constitutes but one bill, 
 so that the payment of one part extinguishes all. The object of drawing 
 a bill in parts is to guard against loss and to facilitate negotiation. 3 
 
 § 1 1. Formerly there was a peculiar mode of suing on bills of exchange 
 provided by the act 18 & 19 Vict. c. 67, under which a person sued on a 
 bill was not allowed to defend the action unless he showed a prima, facie 
 defence. This principle has now been extended to all actions where the 
 writ is specially indorsed for a liquidated money claim, and the special 
 procedure on bills of exchange has been abolished. 4 
 
 As to the history of bills of exchange, see Jevons on Money, 300. 
 
 BILL OF HEALTH is a document given to the master of a ship 
 by the consul of the port from which he comes, describing the sanitary 
 state of the place. "It may be a clean, suspected, or foul bill. The first 
 is given where no disease of an infectious or contagious kind is known to 
 exist ; the second where, though no such disease has appeared, there is 
 reason to fear it ; and the last, when such a disease actually exists at the 
 time of the ship's departure. The latter subjects the ship to the full 
 period of quarantine" 5 {q. v.). 
 
 BILL OF LADING.— § 1. "Where a ship is not chartered wholly 
 to one person, but the owners offer her generally to carry the goods of 
 any merchants who may chose to employ her, or where, if chartered to 
 one merchant, he offers her to several sub-freighters for the conveyance 
 of their goods, she is called a general ship. In these cases the contract 
 entered into by and with the owners, or the master on their behalf, is 
 evidenced by the bill of lading. This is a document which is signed and 
 delivered by the master to the shippers on the goods being shipped. In 
 practice, when goods are shipped, an acknowledgment is given by the 
 mate, known as the " mate's receipt." This is afterwards exchanged by 
 the captain or the broker of the ship for the bill of lading. Several parts, 
 that is to say copies, of the bill of lading are commonly made out ; one 
 
 1 Byles, 390. 
 
 2 Ibid. 255. 
 
 3 Ibid. 385. 
 
 4 Rules of Court, XIV.; Rules of April, 
 1880. 
 
 5 Maude & Pollock on Merch. Shipp. 
 104. 
 
Bill of Peace law dictionary. Bill of Sale 
 
 99 
 
 or more of these is sent by the shipper of the goods to the person for 
 whom they are intended (the consignee), one is retained by the shipper 
 himself, and another is kept by the master for his own guidance. 1 
 
 § 2. A bill of lading specifies the name of the master, the port and Contents of. 
 destination of the ship, the goods, the consignee, and the rate of freight. 2 
 
 § 3. A bill of lading is a negotiable instrument, and the property in the Qualities of. 
 goods which it represents is transferred by its indorsement and delivery, 
 subject to any rights of stoppage in transitu, liability to freight, &c. 3 
 (See Affreightment.) 
 
 BILL OF PEACE. — Formerly, where the same question had been frequently 
 litigated in the same manner (as where repeated actions of ejectment had been brought 
 for the same land), or where it was likely to be contested in a multiplicity of suits (as 
 where the tenants of a manor had a dispute with the lord), a bill might have been filed 
 in Chancery to restrain the vexatious or unnecessary litigation by perpetual injunction ; 
 this was called a bill of peace. 4 Now there cannot be an injunction by one branch of the 
 High Court to restrain proceedings in another ; provision is, however, made for staying 
 proceedings, or for transferring them to the division in which other proceedings are 
 pending. Moreover, any matter of equity on which an injunction might have been 
 obtained before the Judicature Acts, may now be relied on ■ as a defence. 3 
 
 BILL OF PROOF. — In a proceeding for foreign attachment, it is a 
 rule that the garnishee cannot raise the defendant's want of title as a 
 defence to the attachment, and, therefore, he cannot show that the pro- 
 perty to be attached really belongs to a third person : the real owner, 
 however, is permitted to do this by what is called a bill of proof, which 
 is a claim by him to be admitted to prove that the property is his ; thus, 
 if the defendant delivered to the garnishee goods belonging to A., and 
 the plaintiff issues an attachment against them, A. must file a bill of 
 proof in order to show his right to the goods ; having filed his bill, he is Approver, 
 called the approver. The plaintiff appears to the bill of proof, and the 
 approver delivers the probation, which is in the nature of a declaration, Probation, 
 and sets forth the approver's title ; the plaintiff then pleads and the issue 
 is tried as in ordinary cases, the approver being in the position of real 
 plaintiff. 6 
 
 BILL OF REVIEW— BILL OF REVIVOR. See Bill of Com- 
 plaint. 
 
 BILL OF SALE is a deed assigning personal property. 
 
 I. § 2. A bill of sale of ordinary chattels by way of absolute assignment Bill of sale 
 is not very common, except in cases where the thing sold is of some J^™^ 
 importance, as where a sheriff sells goods under an execution. 7 
 
 1 Maude & Pollock, Merch. Shipp. 255; set, see Glyn, Mills &• Co. v. East and 
 Smith's Merc. Law, 302. TVest India Dock Co., 5 Q. B. D. 129. 
 
 2 See the form, Maude & Pollock, 256. 4 Darnell, Ch. Pr. 1532. 
 s IUd. 2W. 315; stat. 18 & 19 Vict. 5 Jud. Act, 1873, s - 2 4- 
 
 c in • Fuentes v. Mentis, L. R„ 3 C. P. 6 Brandon, For. Attach. 128. 
 
 at p. 276. As to the rights of the holder ? Smith's Merc. Law, 484. 
 of one part of a bill of lading drawn in a 
 
 H2 
 
ioo Bilk of Mortality law dictionary. Bishop 
 
 Bill of sale of § 3. A bill of sale is the usual, 1 and in the case of registered ships the 
 
 s llp ' only, mode of transferring ships ; a bill of sale of a registered ship, under 
 
 the Merchant Shipping Act, 1 8S4, 2 is in the form given in the act, specifying 
 
 the number and date of registry, the description of the ship, &c. ; it is 
 
 under seal and must be registered. 3 
 
 § 4. Formerly bills of sale were divided into two kinds, — the grand bill 
 of sale, which conveyed the ship from the builder to the purchaser or 
 first owner, and the ordinary bill of sale by which any subsequent transfer 
 was made ; but these terms are not now used. 4 
 Bill of sale by II. § 5. The most usual kind of bill of sale, and that to which the term 
 gage. is m practice applied, is a bill of sale of chattels (e. g. furniture, horses, 
 
 stock-in-trade, &c.) by way of mortgage to secure a debt, being an assign- 
 ment with a covenant for reconveyance on payment of the debt, similar 
 Bills of Sale in most respects to a mortgage of land. (See Mortgage.) It is with 
 reference to these instruments that the Bills of Sale Acts 6 are of import- 
 ance ; they were passed to prevent frauds " committed upon creditors by 
 secret bills of sale of personal chattels, whereby persons are enabled to 
 keep up the appearance of being in good circumstances and possessed of 
 property" which really belongs to some one else. The Bills of Sale Act, 
 1878, provides in effect that unless a bill of sale, together with an affidavit 
 verifying its execution, is filed in the Central Office of the Supreme 
 Court 6 within seven days from its execution, it shall be void against the 
 trustee in bankruptcy or liquidation of the grantor, against his assignees 
 for the benefit of his creditors, and against his execution creditors, so 
 far as regards any of the goods which remain in his actual or apparent 
 possession. 7 (See Possession; Order and Disposition ; Attornment, §4.) 
 
 BILLS OF MORTALITY were returns of deaths in London before 
 the present system of registration was instituted. (See Registration of 
 Births, Deaths and Marriages^) The returns covered the greater part of 
 the district now known as the Metropolis (q. v.). 
 
 BIRTH. See Registration of Births, Deaths and Marriages ; Conceal- 
 ment of Birth ; Abortion. 
 
 BISHOP is an ecclesiastical dignitary, being the chief of the clergy 
 within his diocese, subject to the archbishop of the province in which his 
 diocese is situated ; most of the bishops are also members of the House of 
 Lords {q. v.). § 2. Every bishop is elected by the dean and chapter of 
 the bishopric on the nomination of the crown, the election being a mere 
 form. 8 (See Conge d : 'Hire; Letter Missive.)' 
 
 ■^ \-, 27 ? Sisters, J Rob. 159 ; Maude & former statutes, 17 & 18 Vict. c. -?6 ; and 
 
 Pollock, Merch. Shipp. 22. 29 & 30 "Vict. c. 96. 
 
 I « Ct J 5S i -o „ ! o 6 J udic atu>"e (Officers) Act, 1879, s. 4; 
 
 ' Maude & Pollock, 22-25; Smith's Rules of Court, LXa (December, 1879, 
 
 Merc. Law, 188. and April, 1880). 
 
 * Maude & Pollock, 22. 7 See Pope on Bills of Sale _ 
 
 6 Bills of Sale Act, 1878, repealing the s Phill. Eccl. Law, 41. 
 
Blackstone LAW DICTIONARY. Blended Fund 101 
 
 § 3. The principal powers and duties of a bishop consist in ordaining 
 priests and deacons, licensing curates, consecrating churches, and visiting 
 the clergy in his diocese. (See Visitation?) He is an ecclesiastical judge, 
 but his principal jurisdiction is exercised by his chancellor (q. v.). 1 He 
 also has certain duties under the Church Discipline Act and the Regula- 
 tion of Worship Act, 1874 (q.v.). 
 
 § 4. The term " suffragan bishop " {suffragan, to help) appears to have Suffragan, 
 two meanings : (1) a bishop consecrated to supply the place of the bishop 
 of a see, when absent therefrom: the duties of the suffragan being 
 confined to conferring of orders, confirming, &c. The stat. 26 Hen. 8, 
 c. 14, created certain sees of suffragan bishops, and made provision for 
 their appointment. (2) In a less proper sense, all the provincial bishops, 
 with respect to the archbishop, are sometimes called his suffragans. 2 
 (See Ordinary; Ecclesiastical Courts; Dean and Chapter?) 
 
 BLACKSTONE.— William Blackstone was born on the 10th July, 
 1723, educated at the Charterhouse and Oxford, called to the bar in 1746, 
 elected to the Viner professorship in 1758, and appointed solicitor-general 
 to the Queen in 1763. In 1765 he published his Lectures in the form of 
 "Commentaries on the Laws of England." In 1768 he entered parlia- 
 ment, and in 1770 was made a judge of the King's Bench ; shortly after- 
 wards he was removed into the Common Pleas. He died on the 14th 
 February, 1780. In addition to his famous Commentaries, he was the 
 author of an Analysis of the Laws of England, of a work on the Charters, 
 of some law tracts, and of several volumes of reports. 3 
 
 BLANK. See Acceptance; Indorsement. 
 
 BLASPHEMY is the offence of speaking matter relating to God, 
 Jesus Chirst, the Bible or the Book of Common Prayer, intended to wound 
 the feelings of mankind or to excite contempt and hatred against the 
 Church by law established, or to promote immorality. According to 
 some opinions it is also blasphemy to speak words denying the truth of 
 Christianity in general, or the existence of God, even if spoken decently 
 and in good faith. Blasphemy is a misdemeanor (q. v.) 
 
 It is also a misdemeanor to publish a blasphemous libel, that is, a Blasphemous 
 document containing blasphemous matter. 4 (See Apostasy; Heresy.) 
 
 libel. 
 
 BLENDED FUND. — § 1. Where a testator directs his real and Conversion. 
 personal estate to be sold, and disposes of the proceeds as forming one 
 aggregate, this is called a blended fund. The expression is chiefly used 
 in cases where part of the testator's disposition fails, by lapse or other- 
 wise, so that it becomes a question, whether so much of the undisposed 
 of portion as consists of or arises from land goes to the testator's heir-at- 
 
 1 Steph. Coram, ii. 671. * Stephen's Crim. Dig. 97 ; Shoitt on 
 
 ■■■ PhiL 96. Copyright, 301. 
 
 3 Foss, Biog. Diet. 
 
102 
 
 Blockade LAW DICTIONARY. Blood 
 
 law or next of kin. The leading case on this point is Ackroyd v. Smithson, 1 
 where the testator ordered his real and personal estate to be sold, and 
 gave the- proceeds to several legatees, some of whom died during the life- 
 time of the testator, so that their shares lapsed : it was held that so much 
 of their shares as consisted of personal estate went to the testator's next 
 of kin, and so much as consisted of the proceeds of real estate, went to 
 the testator's heir-at-law, although the real estate had been sold. The 
 rule is a branch of the doctrine of conversion {q. v.) 
 Charitable § 2i Where charitable legacies are made payable out of a fund con- 
 
 sisting partly of personal property and partly of the proceeds of realty, 
 the funds are generally distinguished as pure and impure personalty. (See 
 Personalty ; Abatement, § 4.) 
 
 legacies. 
 
 BLOCKADE, in international law, is where two powers are at war, 
 and one maintains such a naval force near the shore or ports of the other 
 as to prevent access to them, or, as it is sometimes put, the vessels must 
 be so disposed that there is an evident danger in entering the port or 
 approaching the shore, notwithstanding that the blockading squadron 
 may be accidentally absent for a time, e. g. from being blown off by the 
 De facto. wind. § 2. A blockade de facto is where the blockade has not been 
 notified (as is usually done) by the belligerent to neutral governments, so 
 that every approaching vessel has to be warned off by the squadron. 
 Vessels attempting to pass a blockade are liable to confiscation * (q. v.). 
 
 BLOOD, in law, is (1) that quality or relationship which enables a 
 person to take by descent, sometimes called in the old books " blood 
 inheritable;" 3 and (2) a number of persons connected by blood relation- 
 ship, that is, by being descended from one or more common ancestors. 
 
 § 2. Blood is of two kinds, — the whole blood and the half blood. One 
 person is said to be of the whole blood to another when they are both 
 descended from the same pair of ancestors, e.g. two brothers who have 
 the same father and mother. 4 Two persons are said to be of the half 
 blood to one another when they are descended from one common ancestor 
 only, e. g. two brothers who have the same father, but diiferent mothers. 5 
 Formerly, relations by the half blood were incapable of inheriting to one 
 another, but now they are admitted in the table of descent after the rela- 
 tion of the whole blood of the same degree and his issue where the 
 common ancestor is a male, and next after the common ancestor when 
 the common ancestor is a female. 6 In the distribution of the personal 
 estate of an intestate, there is no difference between the half blood and 
 the whole blood.' 
 
 1 I Bro. C. C. 503 ; White and Tudor, 5 Litt. § 6. 
 
 L, C. i. 783 ; Jessopp v. Watson, 1M.i1 6 Inheritance Act, s. 9 ; Williams, R. P. 
 
 K- 665. _ 109. For an explanation of the latter part 
 
 2 Manning's Law of Nations, 400 et seg. of the rule, see Bythewood's Conv. (Sweet) 
 
 3 Co. Litt. 12 a. i. 146, n. (a). 
 
 4 Ibid. 14 a. t Williams, P. P. 405. 
 
Blount LAW dictionary. Bona Fides 
 
 BLOUNT. — Thomas Blount was born at Bordesley, in Worcestershire, 
 about 1619, and was called to the bar at one of the Temples. He died 
 26th December, 1679. His principal legal works are (1) the No/xoXe&xov, 
 or Law Dictionary, " interpreting such difficult and obscure words and 
 terms as are found either in our common or statute, ancient or modern 
 laws" (London, 1671, fol. ; reprinted with corrections and additions, 
 1691). (2) Fragmenta Antiquitatis, Ancient Tenures of Land and Jocular 
 Customs of some Manors, &c. (London, 1679, 8vo. ; edited by Beckwith, 
 1784; re-edited, 1815 ; and, lastly, by W. C. Hazlitt, 1874, but this last 
 is not properly an " edition," for the whole matter is re-arranged on 
 Mr. Hazlitt's own plan). (See Wood's Ath. Ox. ii. col. 73.) 
 
 BOARD OF TRADE is that committee of the Privy Council which 
 is appointed for the consideration of matters relating to trade and 
 foreign plantations. 1 It has the general superintendence of matters 
 relating to merchant ships and seamen 3 (including the power of stopping 
 unseaworthy ships, 3 and of instituting inquiries and investigations into 
 shipping casualties), 4 of matters relating to railways (especially as regards 
 the inspection and control of railways before and after their opening for 
 traffic, the sanctioning of bye-laws, and the investigation of accidents), 5 
 of matters relating to the registration of joint-stock companies, 6 designs,' 
 &c, &c. 
 
 BODY POLITIC or POLITIQUE is the old term for a corpo- 
 ration. 8 
 
 BONA FIDES— "good faith;" bond fide— "in. good faith," that is, 
 honestly, without fraud, collusion or participation in wrong-doing. The 
 phrase want of good faith is chiefly used not so much to denote that kind 
 of fraud which makes a contract or other transaction voidable as between 
 the parties to it, as to denote that kind of collusion or knowledge which 
 disentitles the party to set up a claim against a person who would other- 
 wise be liable to him. Thus the general rule is that a person who takes 
 a negotiable instrument in good faith for valuable consideration can sue 
 the person liable on the instrument, notwithstanding a defect in the title 
 of the person from whom he acquired it : if, however, he had notice of 
 the defect in the title, then he would not have taken the instrument in 
 good faith, and would be unable to sue on it. 9 (See Negotiable.) 
 
 §2. The phrase "bona fide" is often used ambiguously: thus the 
 expression " a bona fide holder for value" may either mean a holder for 
 real value as opposed to a holder for pretended value, or it may mean a 
 holder for real value without notice of any fraud, &c. 10 
 
 1 Merchant Shipping Act, 1854, s. 2. 8 Statute of Uses, s. 1 ; Co. Litt. 95 a, 
 
 2 Ibid. s. 6. 250a. 
 
 3 M. S. Act, 1876. 9 Goodman v. Harvey, 4 Ad. & El. 870. 
 
 4 Ibid. ; M. S. Act, 1854, s. 507. 10 Byles on Bills, 121. As to what is a 
 
 5 Hodges on Railways, 410 et se%. "bon& fide traveller" within the meaning 
 
 6 Companies Act, 1862, s. 174. of the licensing acts, see Roberts v. Hum- 
 
 7 Steph. Comm. ii. 462. phreys, L. R., 8 Q. B. 483 ; as to a " bona 
 
 103 
 
104 
 
 Bona Notabilia 
 
 LAW DICTIONARY. 
 
 Bond 
 
 BONA NOTABILIA.— Before the creation of the Probate Court 
 (q. v.) wills were proved before the bishop of the diocese in which the 
 property of the deceased was situated : if the deceased had bona notabilia, 
 or chattels to the value of one hundred shillings, in two distinct dioceses, 
 then the will was proved before the metropolitan of the province. 1 
 
 BONA VACANTIA are goods which are found without any apparent 
 owner. They vest in the crown by exception to the general rule as to 
 occupancy (q. v.). Such are wrecks, treasure trove, waifs and estrays. 2 
 (See those titles.) 
 
 BONA WAVIATA are waifs (q.v.). 
 
 Single. 
 
 Double or 
 conditional. 
 
 Form of. 
 
 Varieties of. 
 
 Effect of. 
 
 BOND is a contract under seal to pay a sum of money, 3 or a sealed 
 writing distinctly acknowledging a debt, present or future; 4 and when 
 this is all the bond is called a single one — simplex obligatio. A double or 
 conditional bond is where a condition is added that if the obligor does or 
 forbears from doing some act the obligation shall be void. Formerly 
 such a condition was sometimes contained in a separate instrument, and 
 was then called a defeazance (q. v.). The person who binds himself is 
 called the obligor, and the person in whose favour the bond is made is 
 called the obligee. The bond usually consists of (i) the obligation or 
 operative part, by which the obligor binds himself to pay the money; 
 (ii) any recitals which may be necessary to explain the nature of the 
 transaction ; and (iii) the condition, which sets out the acts on the per- 
 formance of which the bond or obligation is to cease to be of effect. 
 Thus in an ordinary sureties' bond for the payment of a debt„ the obliga- 
 tion binds the sureties to pay a sum double the amount of the debt, and 
 hence called the penalty: the recitals then explain the circumstances 
 under which the bond is given, and the condition declares that in the 
 event of the debtor paying the debt with interest, &c. on a certain day, 
 the obligation shall be void, that is, the sureties shall no longer be liable 
 for the debt. 
 
 § 2. As to administration, bail, bottomry and replevin bonds, see those 
 titles. Voluntary bonds are bonds given without valuable consideration. 
 (See Administration, §2.) 
 
 § 3. Formerly the common law rule was that on non-performance of 
 the condition of a bond on the day fixed the penalty was absolutely for- 
 feited and recoverable by the obligee 4n full; Courts of Equity gave relief 
 against penalties on payment of the sum or damages actually due or 
 sustained, and by various acts (4 & 5 Anne, c. 16 ; 8 & 9 Will. 3, c. 11) 
 the obligee was prevented from recovering even at law more than tr 
 
 fide shareholder," see Bloxam v. Metro- 
 politan Rail. Co., L. R., 3 Ch. 337 ; as to 
 a "bon& fide parishioner," see Etherington 
 v. Wilson, 1 Ch. D. 160. 
 
 1 Bl. Comm. ii. 509. 
 
 - Steph. Comm. ii. 529. 
 
 3 Sheppard, Touch. (367), adds, " or to do 
 some other thing." At the present day a 
 contract under seal to do anything other 
 than the payment of money is more com- 
 monly called a covenant (q. v.). 
 
 1 Davids. Conv. v. (ii.) 268. 
 
Bond LAW DICTIONARY. Borough 105 
 
 sum or damages actually due or sustained. 1 At the present day, therefore, 
 a bond merely amounts to a covenant to pay a sum of money, and is 
 adopted partly because the form is sanctioned by antiquity, and partly 
 because it is sometimes more flexible than an ordinary covenant. For- 
 merly bonds, like other specialty contracts, had the advantage of binding 
 the lands of the debtor after his decease, while simple contracts did not ; 
 but this difference no longer exists (see Contract ; Administration, § 3); 
 and at the present day almost the only advantage which a bond has over an 
 ordinary contract to pay money is that the period fixed by the Statute of 
 Limitations within which to bring an action is twenty years instead of 
 six. 3 
 
 II. § 4. The term " bond" is also applied to instruments of indebtedness Bonds of 
 issued by companies and governments to secure the repayment of money companies, 
 borrowed by them. Sometimes the bond is in the form of a promissory 
 note (in which case it may also be called a debenture, q. v.) : 3 sometimes 
 it consists of an undertaking to pay the principal and interest, secured by 
 a mortgage or hypothecation of the property of the company or govern- 
 ment ; sometimes a mortgage of this kind is contained in a trust-deed or 
 a " general bond" by which the property is conveyed to trustees for the 
 bondholders. A bond issued by a government cannot be the subject of 
 an action against the government. 4 (See Lloyd's Bonds.) 
 
 BOOTY OF WAR. See Capture. 
 
 BOROUGH (in the old sense of the word) is " an ancient towne, 
 holden of the king or any other lord, which sendeth burgesses to the 
 parliament." 5 Many of these boroughs, however, having been dis- 
 franchised in modern times, are now only boroughs to this extent, that 
 the land within them is held by tenure in burgage or subject to the 
 custom of borough-English (q. v.). At the present day " borough" almost 
 always means either a borough corporate (or municipal borough), or a 
 parliamentary borough, 6 most (if not all) municipal boroughs being also 
 parliamentary. § 2. As to municipal boroughs, see Municipal Corpo- 
 ration. 
 
 § 3. A parliamentary borough is a town which returns one or more Parliamentary 
 members to parliament:' some of these towns are ancient boroughs, boroughs- 
 others are towns on which the right of returning members has been con- 
 ferred by statute. 8 
 
 § 4. In the case of a municipal borough regulated by the Municipal Borough fund, 
 Corporations Act, 1835, the income of its property forms a fund called 
 the borough fund, out of which the expenses of the corporation are 
 
 1 Leake on Contracts, 575. e See Bl. Comm. 1. 115 ; Steph. Comm. 
 
 1 Stat. 3 & 4 Will. 4, c. 42. i. 125. 
 
 3 See Crouch v. Credit Fonder, L. R., ' See Parliamentary and Municipal Re- 
 
 8 Q B. 374. gistration Act, 1878, s. 4. 
 
 * Ibid. ; and Twycross v. Dreyfus, 5 6 Stat. 2 Will. 4, c. 45 ; 30 & 31 Vict. 
 
 Ch. D. 605. c - I02 - 
 
 s Litt. § 164 ; Co. Litt. 109 a. 
 
106 Borough Courts law dictionary. Bottomry 
 
 and rate. paid ; and if it is not sufficient for the purpose, they are authorized to 
 
 levy a rate, called a borough rate, on the occupiers of property within the 
 borough. 1 
 
 § 5. As to sessions of the peace in boroughs, see Commission of the 
 Peace; Recorder. 
 
 BOROUGH COURTS are Courts existing in many boroughs in 
 England, and having a local jurisdiction in civil matters. They are 
 Courts of record, and are generally held by prescription or charter. In 
 ordinary cases, the recorder of the borough is the judge. As to the pro- 
 cedure in them, see the Borough and Local Courts Act, 1872. 2 The 
 tendency now is to transfer business from these Courts to the County 
 Courts. 3 (See Mayor's Court of London; Salford Hundred Court; 
 Recorder.} 
 
 BOROUGH-ENGLISH.— Some boroughs have a custom that if a 
 man has issue many sons and dies, the youngest son shall inherit all the 
 tenements which were his father's within the borough, as heir unto his 
 father by force of the custom; this is called "borough-English." 4 In 
 some places the custom extends to collateral heirs, so that the youngest 
 brother succeeds instead of the eldest. 6 
 
 § 2. There is also a special kind of borough-English, by which the 
 land descends to the younger son if he be not of the half-blood, and if he 
 be, then to the eldest son. 6 
 
 BOTE is the old-fashioned name for estovers (q. v.). In Anglo-Saxon idi meant 
 (t) improvement or repair ; (2) a fine or compensation for a wrongful act. 7 
 
 BOTTOMRY is an agreement entered into by the owner of a ship or 
 his agent, whereby, in consideration of a sum of money advanced for the 
 use of the ship, the borrower undertakes to repay the same with interest, 
 if the ship terminate her voyage successfully, and binds or hypothecates 
 the ship and freight, or the cargo, for the performance of his contract, 
 the debt being lost in case of the non-arrival of the ship. The instru- 
 ment by which this is effected is sometimes in the shape of a deed-poll, 
 By master of and is then called a bottomry bill ; sometimes in that of a bond. 8 8 2. The 
 most important case of borrowing money on bottomry is where the master 
 of a ship is at a foreign port, and finds it absolutely necessary to obtain 
 money, and can only do so by executing an instrument of hypothecation. 9 
 (See Necessaries ; Respondentia^) 
 
 1 Stat, s & 6 Will. 4, c. 76, s. 92; custom, see Litt. \ 211; 2 Bl.83; Maine'is 
 35 & 36 Vict. c. 91 ; Grant on Corpora- Early Inst. 222. 
 tions, 487. As to district rates or borough 6 Co. Litt. nob. 
 rates leviable in parishes, &c. lying partly 6 Ibid. 140 b. 
 
 within and partly without the borough, see 7 Schmid, Ges, gl. s. v. ; Co. Litt. 41 b, 
 
 stat. 8 & 9 Vict. c. no. 127 a. 
 
 2 Steph. Comm. iii. 292. 8 Smith's Merc. Law, 416; Fisher on 
 a Stat. 15 & 16 Vict. c. 54. s. 7 ; 30 & Mortgage, 84 ; Williams and Bruce's Ad- 
 
 31 Vict. c. 142, s. 29. miralty, 31. 
 
 1 Litt. § 165. As to the origin of the » Smith, 418. 
 
 ship 
 
Bought, &c. LAW DICTIONARY. Boundaries 
 
 107 
 
 § 3. A rule peculiar to bottomry and respondentia bonds is, " that if Priority of. 
 securities of this sort are given at different periods of a voyage, and the 
 value of the ship is insufficient to discharge them all, the last in point of 
 date is entitled to priority of payment; because, the last loan furnishes the 
 means of preserving the ship, and without it the former lenders would 
 have entirely lost their security." 1 (See Salvage.) 
 
 § 4. A bottomry bond may be enforced by a proceeding in rem in the Enforcement 
 Admiralty Court. (See In Rem.)* of - 
 
 Etymology.] — Dutch: bodmerie, from bodem, the keel of a ship. 3 
 
 BOUGHT AND SOLD NOTES are documents which are usually 
 delivered by brokers to their principals on the conclusion of a contract of 
 sale and purchase, the bought note being delivered to the buyer, and the 
 sold note to the seller. The notes should contain the names of both the 
 contracting parties, the quantity of the article bought and sold, and the 
 price if agreed upon. They should also substantially correspond with 
 each other ; for otherwise, where the same broker acts for both parties, 
 the bought and sold notes do not constitute a binding contract, and where 
 the same broker does not act for both parties, it will be a question for the 
 jury by which note the parties intended to be bound. The notes consti- 
 tute the original contract between the parties, and are the proper evidence, 
 but not necessarily the only evidence of it.* (See Broker; Agent.) 
 
 BOUNDARIES. — § 1. A boundary is that imaginary line which 
 divides two pieces of land from one another. The line is generally, but 
 not necesssarily, marked or indicated on the surface of the land by a wall, 
 fence, ditch or other object. Where land belonging to a private person Land adjoin- 
 adjoins the sea or a public tidal river, the boundary is usually the line of ™S sea or 
 medium high tide, while, in the case of a non-tidal or private stream, the 
 boundary between the adjoining estates is presumed primS. facie to be 
 the medium filum of the stream. Ditches and fences between adjoining Fences and 
 estates are also presumed to be party boundaries, and to belong, to the walIs > &c * 
 owners as tenants in common. 6 The same rule generally applies to a 
 party wall 6 (q. v.). 
 
 § 2. Every owner of land is so far liable to keep up a fence or other Liability to 
 material boundary that he is liable for a trespass if he allows his animals malntaln - 
 to stray on to the land of his neighbour.' There are, however, cases in 
 which a person is absolutely bound to keep up a fence, or the like, be- 
 tween his own and his neighbour's land ; such a liability may arise by 
 prescription. 8 A tenant is also bound, in the absence of an agreement to 
 the contrary, to maintain the fences of the property demised to him, and 
 if the demised land adjoins land belonging to himself, he is under an 
 obligation to keep the boundaries, distinct during the term. 
 
 1 Smith, 421. s Watson v. Gray, 14 Ch. D. 192; Gale 
 
 2 Maude and Pollock, Merch. Shipp. on Easements, 513. 
 441. 7 Gale, 515. 
 
 3 Molloy de Jure Mar. 294. 8 IUd. 516 ; Hunt, 32. 
 
 4 Russell on Merc. Agents, 4. 9 Hunt, 81 ; Att.-Gen. v. Fullerton, 2 
 
 5 Hunt on Boundaries, 1, 4, 12, 25. V. & B. 264. 
 
io8 
 
 Bounds 
 
 LAW DICTIONARY. Branding in the Hand 
 
 Remedy. 
 
 Inspection of 
 mine. 
 
 Inclosure 
 Commission- 
 ers. 
 
 § 3. Where there is a dispute between two adjoining owners as to the 
 boundary between their lands, the question may, in a simple case, be 
 determined by an action of trespass or recovery of land ; but where the 
 boundaries have been confused, so that it becomes necessary to establish 
 old boundaries, to direct intermingled land to be separated, or an equiva- 
 lent set out, or the like, the proper remedy is an action in the Chancery 
 Division for a commission to ascertain the boundaries. 1 A landlord is 
 also entitled to this remedy if the tenant has confused the boundaries of 
 his own and the demised land. 2 (See Perambulation.) 
 
 §4. If a mine owner trespasses on his neighbour's land by excavating 
 beyond the boundary, he may be restrained by injunction ; and for this 
 purpose, in a case of suspected trespass by underground working, the 
 Court will, if necessary, allow an inspection ; that is, give the plaintiff 
 leave to go on and into the land of the defendant and see whether he is 
 really working under the plaintiff's land. 3 (See Barrier?) 
 
 § 5. As to the jurisdiction of the Inclosure Commissioners in respect of 
 boundaries, see stat. 8 & 9 Vict. c. 118 ; 9 & 10 Vict. c. 70. Their juris- 
 diction extends not only to land in process of enclosure under the acts, 
 but also to any land which belongs to separate owners, but which is 
 intermixed or inconveniently subdivided. 4 
 
 BOUNDS. — In the law of mines, the trespass committed by a person 
 who excavates minerals underground beyond the boundary of his land is 
 called working out of bounds. The person on whose land the trespass is 
 committed may bring an action for damages in one of the common law 
 Divisions of the High Court, or an action in the Chancery Division for an 
 injunction, and an account of the minerals taken, in which case he may 
 obtain an inspection. 6 (See Boundaries, § 4 ; Barriers?) 
 
 BOVILL'S ACT. See Partnership Act. 
 
 BRACTON. — Henricus de Bracton is the author of a work enti- 
 tled De Legibus et Consuetudinibus Anglice, written during the reign of 
 Henry III. He is said to have been a judge under that king. The work 
 itself is a systematic exposition of the English law, being to some extent 
 an adaptation of Azo's Summa to the Institutes of Justinian. It is a work 
 of great historical interest, and is still occasionally cited on obscure ques- 
 tions of law. The only complete editions are the folio of 1569 and the 
 quarto reprint of 1640, both printed in an inconvenient and repellent 
 form. A new edition, under the editorship of Sir Travers Twiss, is now 
 being published by the Record Commissioners. 6 (See Britton; Glanville.) 
 
 BRANDING IN THE HAND. See Benefit of Clergy. 
 
 1 Hunt, 205 ; Walte v. Conyers, I Eden, 
 331 ; White and Tudor, L. C. ii. 394. 
 
 2 Spike v. Harding, 7 Cli. D. 871. 
 In this case, however, an inquiry in cham- 
 bers was directed instead of a commission 
 being issued. 
 
 3 Hunt, 67. 
 
 4 Cooke on Inclosure, 144. 
 
 6 Bainbridge on Mines, 506. 
 6 See Reeves, Hist. ii. 86; 
 on Bracton. 
 
 Giiterbock 
 
Brawling LAW dictionary. Breach 109 
 
 BRAWLING. — By stat. 5 & 6 Edw. 6, c. 4, if any person, by words 
 only, quarrelled, chided or brawled in a church or churchyard, the ordi- 
 nary {i.e. the bishop) was to suspend him, if alayman, ab ingressu eccksia, 
 and if a clerk in holy orders, from the ministration of his office during 
 pleasure. And if any person in a church or churchyard proceeded to smite 
 or lay violent hands upon another, he was excommunicated ipso facto : if 
 he struck the person with a weapon, or drew any weapon with intent to 
 strike, he was, on conviction by a jury, to have one of his ears cut off, or 
 if he had no ears, to be branded with the letter F in his cheek, in addi- 
 tion to being excommunicated. 1 (See Excommunication.) By the stat. 
 23 & 24 Vict. c. 32, the jurisdiction of the Ecclesiastical Courts over lay- 
 men for brawling was taken away, and all riotous, violent or indecent 
 behaviour in any church or recognized place of religious worship was 
 made a misdemeanor, punishable on summary conviction by fine or im- 
 prisonment." 
 
 BREACH is the invasion of a right or the violation of a duty. 
 The word is used in a literal sense in such phrases as " breach of close," Of close, 
 which is an old-fashioned name for the tort of breaking a man's close — 
 in other words, trespassing on his land, more generally called trespass 
 quare clausum fregit (see Trespass, § i), 3 also in "pound-breach" and of pound, 
 "prison-breach," the last of which is a criminal offence (see the titles). Of prison. 
 
 § 2. More usually "breach" is applied to the violation of an obliga- 
 tion. Breach of a contract, promise or covenant is the failure to perform Of contract, 
 it (see Performance) ; it converts the right under the contract, &c. into ° cc - 
 a right to obtain a remedy for the breach, generally a right of action 
 (see Remedy)?- § 3. What may be called a constructive breach is an Constructive 
 act of the promisor which disables him from performance, or a refusal to breach. 
 perform before the time of performance arrives; as if A. contracts to con- 
 vey land to B. at a future time, and, before the time arrives, conveys it to 
 C. B. may at once sue A. for breach of his contract. 5 
 
 § 4. Breach of promise of marriage gives rise to a right of action for Promise of 
 damages, unless the breach was justifiable, e. g. if the man, after making marriage, 
 the promise, discovers that the woman is unchaste. 6 The parties to such 
 an action are competent to give evidence in it, but the plaintiff's testi- 
 mony must be corroborated by some other material evidence. 7 
 
 § 5. By 8 & 9 Will. 3, c. 11, in an action on a bond for non-perform- Assignment 
 ance of any covenant or condition, the plaintiff may assign (that is, of breaches, 
 specify) as many breaches as he pleases, and the jury shall assess the 
 damages on such breaches as shall be proved at the trial, or if he ob- 
 tains an interlocutory judgment (see Judgment), he suggests as many 
 breaches as he likes, and a writ of inquiry issues to assess the damages. 
 (See Writ of Inquiry.) The judgment will be entered up for the whole 
 
 1 Bl. Comm. iv. 146. i- Leake on Contracts, 460. 
 
 2 Steph. Crim. Dig. 102 ; and see stat. 5 Main's case, 5 Rep. 21a; Leake, 460. 
 C2 Geo. 3, c. 155, s. 12. 6 Macqueen, Husb. and Wife, 229. 
 
 3 Bl.' Comm. iii. 209 ; Steph. Comm. ' Stat. 32 & 33 Vict. c. 68 ; Best on 
 iii. 399. Evidence, 255, 773. 
 
no 
 
 Breach of the Peace law dictionary. 
 
 Breach of Trust 
 
 penalty, but is only allowed to be executed to the extent of the damages 
 assessed ; it stands as a security for further breaches, and if there shall 
 afterwards be any further breaches, upon a scire facias by the plaintiff on the 
 judgment, suggesting the breaches, then the damages will be assessed. 1 
 
 BREACH OF THE PEACE, — Breaches of the peace are offences 
 against public order. They are commonly divided into actual, construc- 
 tive and apprehended. 
 
 Actual. I. § 2. Actual breaches of the peace include riotous and unlawful 
 
 assemblies, riots, affrays, forcible entry , and detainer, &c. 2 (See those 
 titles.) 
 
 Constructive. II, § 3. Constructive breaches of the peace include the offences of 
 sericling challenges and provoking to fight, going armed in public without 
 lawful occasion in such a manner as to alarm the public, &c. These are 
 misdemeanors, punishable with imprisonment and other penalties. 3 
 
 Apprehended. III. § 4. An apprehended breach of the peace is where one man 
 threatens another with bodily injury, or with injury to his wife' or chil- 
 „ dren, or where a man goes about with unusual weapons or attendance, to 
 the terror of the people, or publishes an aggravated libel of another. In 
 such a case the offender may be summoned before a justice of the peace, 
 and bound over to keep the peace for a limited time by entering into a 
 recognizance with sureties, and, in default, committed to prison for not 
 more than a year. 4 This may also be done where a person has been con- 
 victed of a misdemeanor or felony. 5 
 
 BREACH OF TRUST is where a trustee does an act which is un- 
 authorized or forbidden by the terms of his trust, or where he omits to do 
 an act which the trust required him to do. Thus, in general, a trustee 
 commits a breach of trust when he employs trust funds in his own busi- 
 ness, or when he fails to call in and convert into money such parts of the 
 trust property as are of a fluctuating or deteriorating kind. 6 
 
 Remedy for. § 2. A breach of trust is in the nature of a tort, and entitles the cestui 
 que trust who has been injured to compel the trustee to make good the 
 loss caused by it. There is even something penal in the relief given in 
 some cases of breach of trust : thus where a trustee has employed trust 
 funds in his own business, and has thereby made a profit, the cestui que 
 trust is entitled to it, although the trust estate has not been injured.' As 
 to accounts with rests directed against trustees, see Account, §11. 
 
 Injunction. § 3. A cestui que trust is also entitled to an injunction to restrain his 
 
 trustee from committing a threatened breach of trust. 8 
 
 1 Archbold's Pr. 817; Davids. Conv. 
 v. (2) 273 ; Wras. Saund. i. 67. 
 
 3 Bl. Comm. iv. 142 ; Steph. Comm. 
 iv. 248; Steph. Crira. Dig. 40 etseq. 
 
 3 Ibid. 
 
 4 Stone's Justice, 368 etseq. ; Bl. iv. 251 ; 
 Steph. Comm. iv. 293, where a distinction 
 is drawn between recognizances for the 
 peace (as in the cases mentioned above), 
 and recognizances for good behaviour, said 
 
 to be applicable in the case of drunkards, 
 vagabonds, &c. 
 
 s Stat. 24 & 25 Vict. cc. 96, 97, 98, 99, 
 100. 
 
 6 Lewin on Trusts, 738 etseq. ; Watson's 
 Comp. Eq. 903 ; TJrlin's Office of Trustee, 
 114. 
 
 7 Lewin, 742; Watson, 885. 
 ' Lewin, 697. 
 
Bribe law dictionary. Brief m 
 
 § 4. Where a breach of trust amounts to a fraudulent misappropriation Criminal, 
 or disposition of the trust property, it is a criminal offence, punishable 
 with seven years' penal servitude (maximum) ; the fiat of the Attorney- 
 General is required before the prosecution can be instituted. 1 
 
 BRIBE— BRIBERY.— § 1. A bribe is a gift or payment made to a Judicial 
 judicial officer in order to influence or reward him in respect of or in othcei - 
 relation to any business having been, being, or about to be transacted 
 before him, in his office. Bribery is the misdemeanor committed by a 
 person who gives or offers a bribe, and by a public officer who accepts 
 one. 2 
 
 § 2. Bribery at parliamentary and municipal elections is the offence of At elections, 
 giving, offering or promising any money or other valuable consideration 
 in order to induce any voter to vote or refrain from voting, or as a reward 
 for his having voted or refrained from voting ; the voter who receives or 
 contracts for any such bribe is also guilty of bribery. It is a misdemeanor, 
 and makes the election void. 3 
 
 BRIDGES. — § 1. At common law, the expense of maintaining a 
 public bridge falls on the county, borough, city, &c. in which it is situate, 
 except where a parish is bound by prescription to repair a bridge; in 
 such a case the parish and county may enter into a contract for the repair 
 of the bridge by the county. As to private bridges, see Toll. In 
 the case of bridges built since the Highway Act, 1J835, the repair of the 
 . road passing over or adjoining to a bridge is done by the parish or other 
 authority or persons bound to the general repair of the highway of which 
 it forms a portion. Any parish, county, or other body or person neglecting 
 the duty of repairing a bridge is liable to an indictment. 4 § 2. Numerous 
 bridges have been built under statutory powers, e.g. under Turnpike 
 Acts. 5 
 
 § 3. Causing malicious injuries to bridges, so as to destroy them or injuries to 
 make them dangerous or impassable, is a felony, punishable with penal bridges, 
 servitude for life (maximum). 6 
 
 BRIEF. — A brief is a document containing the materials or instruc- 
 tions furnished by a solicitor to a barrister to enable him to represent the 
 client on the trial of an action, or on the hearing of a petition, motion, 
 summons or other application. Strictly speaking, the " brief" includes 
 all the documents supplied to counsel, such as copies of pleadings, affidavits, 
 correspondence, &c. ; but in a more technical sense the " brief" is that 
 document which is drawn up by the solicitor in the form of a narrative or 
 explanatory comment on the case. At the trial of an action where the 
 
 . 1 Stat. 24 & 25 Vict. c. 96, ss. 80 etseg.; 4 Steph. Comm. iii. 129. 
 
 Lewin 735. 6 On the determination of a turnpike 
 
 3 Stephen's Dig. Crim. 77 ; Russell on trust, the bridges vest in the county: stat. 
 
 Crimes, i. 318. 33 & 34* Vict. c. 73, s. 12. 
 
 3 Stat. 17 & 18 Vict. c. 102 ; 30 & 31 « Stat. 24 & 25 Vict. c. 97, ss. 33 et 
 
 Vict. c. 102 ; 35 & 36 Vict. c. 60; Russell, seq. 
 3 r 9> 333 ; Stephen, 78. 
 
ii2 Brissonius law dictionary. Broker 
 
 evidence is given viva voce, this is the most important part of the docu- 
 ments supplied to counsel, consisting as it does of an expanded version 
 of the pleadings, with the important documents set out and commented 
 on, and the proofs of the witnesses. (See Proof, § 4.) On the trial of 
 an action where the evidence is given by affidavit, and on the hearing of 
 a petition, motion, &c, the brief in this sense is less important, as the 
 counsel have the facts of the case stated in the other documents. In 
 Chancery practice the brief in this sense is frequently called " observations," 
 being merely annexed to the petition or other documents in the case. 1 
 Hand-briefs. § 2. Formerly, certain orders were obtainable as a matter of course on 
 production of a brief purporting to contain instructions to counsel to apply 
 to the Court for the order required, and indorsed with counsel's hand, 
 i. e. signature, although the matter was never mentioned to the Court at 
 all ; these were hence called hand-briefs : they appear to be quite obsolete. 
 
 Etymology.] — Brief in Norman French meant a writ, 2 and a writ was so called, 
 "quia breviter et paucis verbis intentionem proferentis exponit." 3 It is possible that 
 a brief to counsel originally consisted merely of the writ with the Norman French name 
 for it on the back. In early times the pleadings were oral. 
 
 BRISSONIUS. — Barnabe Brisson was born in Poitou in 1531, became 
 avocat- general in the parlement in 1575, president a mortier in 1583, and 
 died on the 15th Nov. 1591. His principal works sxe.De Verborum Signi- 
 ficatione and De Formulis et Solennibus Verbis.*- 
 
 BRITTON is the name given to a work on English law written in the 
 reign of Edward I. by an author whose identity has not been clearly 
 established. The work is in Norman-French, and claims to be promul- 
 gated with the authority of the king. It is founded to a great extent on 
 Fleta, and to a less extent on Bracton ; the arrangement, however, is quite 
 different from that of either of those treatises, being based on the remedies 
 appropriate to the various rights rather than on the rights themselves. 
 Britton has the advantage over other early treatises in having been 
 admirably edited. 5 
 
 BROKER. — § 1. A broker is an agent for the purchase and sale of 
 goods, being employed by an intending vendor to find a purchaser, or by 
 an intending purchaser to find a vendor. His remuneration consists of a 
 commission or payment (called brokerage) proportionate to the price of 
 the goods sold. A broker differs from a factor {q. v.) in the following 
 respects : — He generally contracts in the name of his principal, while a 
 factor may buy and sell either in his own name or in that of his principal ; 
 he is merely a negotiator between the parties, and is therefore not 
 entrusted with the possession or control of the goods, while a factor is. 6 
 Stockbrokers are an exception to these rales. 
 
 1 As to briefs generally, see Archbold, 6 Britton, edited (for the Clarendon 
 Pr. 345; Daniell, Ch. Pr. 841, n. (z). Press), by Mr. Francis Morgan Nichols: 
 
 2 Co. Litt. 73b. 1865. 
 
 3 Bract. 413. 6 Russell on Merc. Agency, 3 ; Chitty 
 
 4 Holtz. Encycl. on Contracts, 189. 
 
Broker LAW DICTIONARY. Building Societies 113 
 
 § 2. In criminal law, a broker who fraudulently misappropriates money Frauds by 
 or property belonging to his employer is guilty of a' misdemeanor. 1 brokers. 
 
 § 3. Brokers in the city of London, before exercising their callings, are London 
 required to be admitted by the mayor and aldermen, and to pay a yearly brokers - 
 fee of \os. to the city (stat. 6 Anne, c. 68), increased to 5/. per annum by 
 stat. 57 Geo. 3, c. lx. (local and personal). Formerly, the mayor and 
 aldermen exercised control over brokers in other respects, but this was 
 abolished by the stat. 33 & 34 Vict. c. 60. 
 
 (See Agent ; Lien; Bought and Sold Notes.) 
 
 BUILDING SOCIETIES.— § 1 . A building society is one established 
 for the purpose of raising, by the subscriptions of some of its members, a 
 stock or fund for making advances to others of its members upon security 
 of freehold, copyhold or leasehold estate, by way of mortgage. 2 The 
 advances are generally, but not necessarily, made to enable the members 
 to acquire the property which they mortgage to the society. 3 Theore- 
 tically, therefore, the mehibers are of two classes : the borrowing members 
 being those who have obtained advances from the society, and the invest- 
 ing members those who have not, 4 and who therefore simply participate 
 in the profits arising from the interest paid by the borrowers. Provision 
 is generally made by the rules of the society for determining, in case of 
 competition, the members to whom the available funds of the society are 
 to be advanced from time to time. In many cases, however, so-called 
 building societies are little more than investment or savings banks, all 
 the available funds being lent to strangers. 5 
 
 § 2. A building society is formed either under the act 6 & 7 Will. 4, 
 c. 32, or under the Act of 1874, and is regulated by rules registered with 
 the registrar. 6 A society formed or re-registered under the Act of 1874 is 
 a corporation.' 
 
 Building societies are of two principal kinds : 
 
 § 3. A terminating society is one which by its rules is to terminate at a Terminating 
 fixed date, or when a given result has been attained. 8 " The general plan societies - 
 of these societies may be thus briefly described : — A certain number of 
 persons form themselves into a society, of which they become members 
 by subscribing for a certain number of shares. Upon each share a certain 
 periodical subscription of uniform amount is payable throughout the 
 whole duration of the society, the object being to continue the society 
 until the members' subscriptions, being invested, shall amount to a fund 
 large enough to give every member a sum fixed by the rules at the com- 
 mencement. Thus it may be proposed to close the society when there 
 
 1 Stat. 24 & 25 Vict. c. 96, ss. 75 et seq. the purpose of raising, by small periodical 
 
 2 See Building Societies Act, 1874, s. subscriptions, a fund to assist the members 
 13 ; Davis on Building Societies, 53 ; thereof in obtaining a small freehold or 
 Stone on Building Societies, passim. leasehold property." 
 
 3 See Grimes v. Harrison, 26 Beav. 4 Scratchley on Building Societies, 2. 
 435, cited Davis, 70 ; also the preamble to 5 See Second Report of the Friendly 
 the act 6 & 7 Will. 4, t. 32, which recites Societies Commissioners, 1872, p. 13. 
 that "certain societies commonly called 6 Act of 1874, ss. 16, 17. 
 
 building societies have, been established 7 Act of 1874, s. 9 ; Act of 1875. 
 
 in different parts of the kingdom, prin- 8 Building Societies Act, 1874,3.5. 
 
 cipally among the industrious classes, for 
 
 S. I 
 
ii4 
 
 Building Societies LAW DICTIONARY. 
 
 Burgage 
 
 Bowkett and 
 
 Starr-Bowkett 
 
 Societies. 
 
 Permanent 
 societies. 
 
 Co-operative 
 
 building 
 
 society. 
 
 Freehold land 
 societies. 
 
 are funds sufficient to give to the members seventy pounds in respect of 
 each share held by them, and the monthly subscription will be 7*. 6d. 
 .... When by means of these subscriptions the society has in hand a 
 sum of (say) seventy pounds, it will be advanced to one of the members 
 upon mortgage of land or house property, and the member will thenceforth 
 pay an increased subscription (perhaps 13 s. 6d.) so long as the society 
 lasts." 1 There" are two varieties of the terminating society, called Bowkett 
 and Starr-Bowkett Societies, from the names of their originators: the prin- 
 ciple on which they are based is too complicated to be described here. 2 
 
 § 4. A permanent society, as it name implies, may last for ever. In a 
 society of this kind, shares are issued upon which the various members 
 make payments, either in one sum, when the share is said to be " paid 
 up," or by periodical or other sums ; the interest is either allowed to 
 accumulate until the share has reached the full value prescribed by the 
 rules, or else paid out yearly to the member, as he may prefer. Advances 
 are made to borrowing members or strangers, repayable by small periodical 
 instalments, extending over a fixed term of years. 3 
 
 § 5. A society may be formed under the Industrial and Provident 
 Societies Act, 1876 (repealing the Acts of 1862 and 1871) for the purpose 
 of buying and selling land, with power to mortgage, lease or build upon 
 land bought or taken on lease by it. Such societies are sometimes called 
 co-operative building societies. 4 
 
 § 6. Freehold land societies are only in form within the scope of the 
 Building Societies Acts. In a society of this kind "subscriptions are received 
 from the members in the way generally adopted by building societies, and, 
 with the funds thus acquired, an estate is purchased in some eligible situ- 
 ation. The property is then laid out in lots of a size suited to the wants of 
 the members ; roads are made, and other improvements effected, the cost 
 of which, and of the conveyance to the society, is added to the amount of 
 the purchase-money. The total sum thus expended upon the whole estate 
 is then equitably apportioned amongst the several lots, and determines 
 
 their price The members are thus enabled to obtain a small 
 
 quantity of land at wholesale price." 5 As a building society formed under 
 the Building Societies Acts cannot legally hold land, except as security 
 for advances, such an arrangement as the one above described is in reality 
 ultra vires, and has to be effected through the medium of trustees, on 
 whose honour the members must rely. This kind of society was invented 
 principally to give the working classes votes in the days when the franchise 
 was higher than it is now. 
 
 BURDEN OF PROOF. See Proof. 
 
 BURGAGE. — Tenure in burgage is where the king or some other 
 person is lord of an ancient borough, and the tenements in the borough 
 
 1 Davis on Building Societies, 55. 
 
 2 See Davis, 56 et seq. ; Second Rep. 
 of Comm. 14. 
 
 3 Davis, 60. Building societies, are 
 popular among the working classes, who 
 are attracted by the apparent mutuality of 
 
 the system ; their real advantage is, that 
 they encourage saving habits. 
 
 4 Davis on Building Societies, 278 et 
 seq. 
 
 5 Davis, 63. 
 
 6 Second Rep. of Comm. 16 ; Davis, 63. 
 
Burgess law dictionary. Burial 
 
 "5 
 
 are held of him by a yearly rent or other certain service. " And such 
 tenure is but tenure in socage," 1 being a kind of town socage, as distin- 
 guished from common socage, which is usually of a rural nature. (See 
 Socage.) Many tenements held by burgage tenure are subject to a great 
 variety of customs, of which the most remarkable is that called borough- 
 English 2 (q. v.). 
 
 BURGESS. — A member of a borough (q. v.). 
 
 BURGLARY, by the common law, is where a person breaks and 
 enters any dwelling-house by night, with intent to commit a felony 
 therein, whether such felonious intent be executed or not. 3 § z. The 
 "breaking" is either actual (as where the person makes a hole in a 
 door or opens a window), or in law (as where he obtains an entrance by 
 threats or fraud, or by collusion with someone in the house. 4 § 3. Night 
 is the interval between 9 p.m. and 6 a.m. 6 
 
 § 4. A person who breaks out of a dwelling-house by night is guilty 
 of burglary if he entered it by day with intent to commit a felony, or if 
 he committed a felony therein before breaking out. 6 
 
 § 5. Burglary is punishable with penal servitude for life as a maximum 
 punishment. 7 
 
 Etymology.] — "This word burglar is derived of these two words, viz. burgh, signi- 
 fying an house, and laron, signifying a thief, as it were an house-thief." 8 
 
 (See Housebreaking.) 
 
 BURIAL. — § 1 . At common law, every person may be buried in the Right oi. 
 churchyard of the parish where he dies, unless he was within certain 
 ecclesiastical prohibitions {e. g. not having been baptized), and provided 
 that the rites of the Church of England are observed. 9 But no person is 
 entitled to be buried in the church itself without the consent of the in- 
 cumbent, unless such a right exists by prescription, as belonging to a 
 manor-house or other messuage. The right of burial may be enforced by 
 mandamus or information, 10 or by the ecclesiastical punishment of sus- 
 pension. 11 The common law rule, that every burial in a parochial church- Burials Act, 
 yard must be celebrated according to the rites of the Church of England, l88 °- 
 has been abolished by the Burial Laws Amendment Act, 1880 (43 & 44 
 Vict. c. 41), which provides that a deceased person maybe buried within 
 the churchyard or graveyard of a parish or ecclesiastical district or place, 
 without the Church of England service for the burial of the dead, pro- 
 vided proper notice of the intended burial is given to the incumbent ; 
 the burial may take place either without any religious service, or with 
 any Christian and orderly religious service. The act only extends to 
 burial grounds in which the parishioners or inhabitants of the parish or 
 ecclesiastical district have rights of burial, and it expressly enacts, that it 
 
 1 Litt. § 162 ; Co. Litt. 108 b. 7 Sect. 52. 
 
 2 Bl. Comm. ii. 82. 8 8 Inst. 63. 
 
 3 Stephen's Crira. Dig. 231 ; Russell on 9 Stat. 4 Geo. 4, c. 52, provides for 
 Crimes, ii. 2. the burial of suicides in churchyards with- 
 
 * Ibid. out Christian rites. 
 
 s Stat. 24 & 25 Vict. c. 96, =. I ; Rus- 10 Phill. Eccl. Law, 839 et seq. 
 
 sell, 36. " Ibid. 857. 
 
 8 Sect. 51; Russell, 7.' 
 
 I 2 
 
n6 
 
 Burial 
 
 LAW DICTIONARY. 
 
 Bye-Laws 
 
 Fees. 
 
 Cemeteries 
 Clauses Act, 
 1847. 
 
 Burial boards, 
 under the 
 Burial Acts, 
 1852—1871. 
 
 Public Health 
 Act, 1879. 
 
 Grants of 
 land for burial 
 grounds. 
 
 Railway 
 companies. 
 
 Municipal. 
 Manorial. 
 
 shall not authorize the burial of any person in any place where such 
 person would have had no right of interment if the act had not passed ; 
 nor authorize the burial of any person in a burial ground vested in 
 trustees, without the performance of any express condition on which, by 
 the terms of the trust deed, the right of interment may have been granted. 
 
 § 2. Fees on burial are due only by custom in each place, and not by 
 the general law. 1 
 
 § 3. The principal statutes relating to burials are the stat. 10 & 1 1 Vict. 
 c. 65, regulating the making and management of cemeteries by companies 
 incorporated for that purpose ; stat. 15 & 16 Vict. c. 85, making provision 
 for closing burial grounds in the metropolis for the protection of the 
 public health; stat. 16 & 17 Vict. c. 134, extending those provisions to 
 other cities and towns ; and stat. 20 & 21 Vict. c. 81, as to burial grounds 
 for the paupers. 
 
 § 4. The stats. 15 & 16 Vict. c. 85, and 16 & 17 Vict. c. 1 34 (as amended 
 by stat. 18 & 19 Vict. c. 128), also contain enactments for providing a new 
 burial ground in any parish where the existing burial ground is insufficient 
 or dangerous to health : in such case a burial board is appointed by the 
 vestry, with power to purchase land for a burial ground, and to borrow 
 money for that purpose, the expenses being charged on the poor rate. 2 
 § 5. The Public Health (Interments) Act, 1879, empowers local' authori- 
 ties to acquire, construct and maintain cemeteries, subject to the provi- 
 sions of the Cemeteries Clauses Act, 1847, and the Public Health Act, 
 1875. (See Mortuary.) 
 
 § 6. Stats. 30 & 31 Vict. c. 133 ; 31 & 32 Vict. c. 47 ; and 36 & 37 
 Vict. c. 50, contain provisions for voluntary grants and sales of land for 
 the purposes of burial grounds, including gifts of land by limited owners, 
 such as tenants for life. 3 
 
 As to the registration of burials, see Registration. 
 
 BUTLERAGE. See Prisage. 
 
 BYE-LAWS are rules made by some authority (subordinate to the 
 legislature) for the regulation, administration or management of a certain 
 district, property, undertaking, &c, and binding on all persons who come 
 within their scope. 4 Thus every act of parliament incorporating a railway 
 company gives it power to make bye-laws for the regulation of its line, 
 subject to the sanction of the Board of Trade. 4 Municipal corporations 
 have a similar power. 6 § 2. The homage of the customary Court in some 
 manors has, by custom, the right of making bye-laws for the regulation 
 of the common, e. g. the draining and fencing of the land, stinting the 
 number of cattle, &c. 7 
 
 Etymology.]— Apparently from Danish by-love, Swedish by-lag, = leges urbanee, 
 laws of particular towns. 8 
 
 1 Steph. Comm. ii. 740. 
 
 2 See also the Burial Act, 1871, and the 
 acts mentioned in the schedule to that act ; 
 and sect. 343 of the Public Health Act, 
 1875, re-enacting the enactments set out 
 in Schedule 5, Part 3. 
 
 s Phill. 853. 
 
 1 Termes de la Ley; Lumley on By- 
 
 Laws, 2. 
 
 6 Hodges on Railways, 426, 548. 
 
 6 Stat, s & 6 Will. 4, c. 76, s. 90; 
 Grant on Corporations, 76; Companies 
 Clauses Act, 1845, &c. ; Lumley, 15. 
 
 7 Elton on Copyh. 244; Fox v. Am- 
 hurst, L. R., 20 Eq. p. 404. 
 
 8 Miiller, Etym. Wortb. s. v. 
 
Ca. Sa. LAW dictionary. Calvm's Case 
 
 117 
 
 CA. SA. — Capias ad satisfaciendum. See that title. 
 
 CAIRNS'S ACT (so called from the Solicitor-General by whom it 
 was introduced) is the act. 21 & 22 Vict. c. 27, enabling the Court of 
 Chancery to award damages in addition to or in substitution for an in- 
 junction or decree for specific performance, e.g. in a suit to restrain 
 interference with ancient lights. The jurisdiction given by the act ought 
 not to be exercised in such a way as to enable one person to buy the pro- 
 perty of another without his consent. 1 
 
 CALENDAR, in criminal procedure, is a list of prisoners to be tried 
 at the assizes or Central Criminal Court, and of the offences with which 
 they are charged. At the end of the assizes, the clerk of assize makes 
 out a calendar, showing the verdicts and sentences passed on the pri- 
 soners, with a blank column to be filled up by the judge in cases where 
 any prisoner is reprieved, respited, or the like. A copy of this calendar 
 is given to the sheriff as his warrant or authority for executing the judg- 
 ment against each prisoner. 3 
 
 CALL is a demand for money required for the purpose of a company. 
 There are two kinds of calls — (i) those made in respect of the unpaid-up Directors' 
 portions of the capital of a company, in order to raise money for carrying caUs - 
 on its business (directors' calls) ; and (ii) those made to pay the debts of Liquidators' 
 a company when its business is suspended by liquidation (liquidators' caUs - 
 calls). In the case of a limited company, these latter calls cannot be made 
 beyond the amount (if any) remaining unpaid on each share ; in the case 
 of an unlimited company, the calls depend on the amount of debts and 
 the number of the solvent shareholders. 3 
 
 § 2. In the case of companies under the Companies Acts, 1862 — 1880, 
 calls due from members are specialty debts. 4 (See Company.) 
 
 CALLING THE PLAINTIFF is the old-fashioned term for a non- 
 suit (q. v.). 5 
 As to calling upon a prisoner, see Allocutus. 
 
 CALVIN'S CASE is the case of Calvin v. Smith, reported in 7 Coke's 
 Reports, p. 1 . It decided that persons born in Scotland after the acces- 
 sion of James I. to the English crown were natural-born subjects of Eng- 
 land : it is hence sometimes called the case of the post-nati. (See 
 Allegiance.) 
 
 1 Per Jessel, M. R., vnKrehlv. Surrell, 3 Lindley on Partn. 643. 
 7 Ch. D. 551. 4 Act of 1862, ss. 16, 75. 
 
 2 Steph. Comm. iv. 478. • Bl. Comm. iii. 376. 
 
n8 
 
 Camera 
 
 LAW DICTIONARY. 
 
 Canon 
 
 CAMERA. See In Camera. 
 
 CAMPBELL'S ACT is the popular name for the act 9 & 10 Vict, 
 c. 93, by which (as amended by stat. 27 & 28 Vict. c. 115) an action for 
 damages is given for the benefit of the wife, husband, parent, grandparent, 
 stepparent, child, grandchild and stepchild of a person whose death has 
 been caused by a wrongful act, neglect or default for which he himself 
 could, if death had not ensued, have recovered damages from the wrong- 
 doer. 1 (See Tort; Actio personalis moritur cum persona!) 
 
 CANALS,— The principal acts relating to canals are 8 & 9 Vict, 
 cc. 28 and 42 ; 10 & n Vict. c. 94 ; 17 & 18 Vict. c. 31 ; 36 & 37 Vict. 
 c. 48, relating to the traffic and management of canals ; 24 & 25 Vict, 
 c. 96, ss. 63 et seq., relating to thefts from canals ; 24 & 25 Vict. c. 97, ss. 31 
 et seq., relating to malicious injuries to canals ; and 40 & 41 Vict. c. 60, 
 regulating the use and registration of canal boats as dwellings. 
 
 CANCEL— CANCELLATION.— § 1. Literally, to cancel an in- 
 strument is to draw lines across it, or across some part of it, such as the 
 signatures of the parties, with the intention of indicating that it is no 
 longer in force ; thus bankers commonly cancel cheques when they have 
 been paid. A deed is usually cancelled by striking out the signatures 
 and tearing off the seal. 2 ' (See Alteration.) Cancellation of a will, even 
 by the testator, does not revoke it, unless it is accompanied by a declara- 
 tion executed by the testator in the manner in which wills are required to 
 be executed. 3 
 Action for § 2 . Cancellation is sometimes directed by a Court. Thus, when a 
 
 of instrument. P erson has entered into a contract for the sale of land, and the purchaser 
 refuses to pay the money, the vendor may bring an action against him to 
 deprive him of his right under the contract ; time is given by the Court 
 for payment of the money, and if the time expires without the money 
 being paid, the contract is cancelled by the decree or judgment of the 
 Court, and the vendor becomes again the owner of the estate. 4 This is 
 technically called a decree or judgment for cancellation of the contract. 
 
 § 3. The Chancery Division also frequently cancels instruments which 
 have answered the end for which they were created, or instruments which 
 are void or voidable, in order to prevent them from being vexatiously 
 used against the person apparently bound by them. 6 
 
 Etymology.] — Latin : cancelli, lines drawn in the form of lattice-work. 
 
 CANON in ecclesiastical law means either (i) any rule of the jus 
 canonicum contained in the Decretum Gratiani ; or (ii) a rule of eccle- 
 
 1 Underhill on Torts, 143 ; Campbell on 
 Negligence, 20. 
 
 2 See Shepp. Touch. 69 et seq. 
 
 3 Shelford, R. P. Stat. 517. 
 
 4 Lysaghtv. Edwards, 2 Cli. D, at p. 506. 
 
 5 Snell's Eq. 498. As to the cancel- 
 lation of shares in companies, see Lindley 
 on Companies, 1446 ; Bath's Case, 8 Ch. 
 D- 334- 
 
Canon law dictionary. Canon Law 119 
 
 siastical conduct promulgated by the Convocation of the Church of 
 England, whether it has legal force or not. Thus the canons of 1603 
 have no legal force. 1 (See Canon Law; Convocation.) 
 
 § 2. The word is also sometimes used to denote a rule of civil law, as in 
 the expression " the canons of descent." (See Descent.) 
 
 CANON LAW is a body of Roman ecclesiastical law, compiled 
 from the opinions of the ancient Latin fathers, the decrees of general 
 councils, and the decretal epistles and bulls of the Holy See. About Decretum 
 the middle of the 12th century the confusion and obscurity of the eccle- Gratiani - 
 siastical law induced a monk of Bologna, called Gratianus, to codify the 
 existing materials down to the year 11 39; his work was known as the 
 Concordantia Discordantium Canonum, afterwards as the Decretum Gratiani, 
 and included not only the decrees, epistles, &c. themselves, but also a 
 commentary of his own, known as the Dicta Gratiani. The subsequent 
 decrees (Decretales extravagantes 11 ) were collected from time to time, espe- - 
 cially in the five Compilationes antiques, until the inconvenience of these 
 collections led Gregorius IX. to have a new collection prepared, hence 
 known as the Decretales Gregorii IX., in five books. A sixth book (Liber 
 Sexfus) was added by Boniface VIII. in 1298, and another by Clement V. 
 in 1 3 1 3. The two later collections, namely, th.e Extravagantes Jodnnis XXII. 
 and the Extravagantes communes (which were added by Joannes Chappuis 
 to his edition of the canon law published in 1500), were not official like 
 the preceding collections. The Decretum Gratiani, and the five subse- Corpus Juris 
 quent collections, together form the Corpus Juris Canonici? Canonici. 
 
 § 2. Besides these pontifical collections, which, during the times of English canon 
 popery, were received as authentic in this island, as well as in other parts w- 
 of Christendom, there is also a kind of national canon law, composed of 
 legatine and provincial constitutions, and adapted only to the exigencies 
 of this church and kingdom. The legatine constitutions were eccle- Legatine con- 
 siastical laws, enacted in national synods, held under legates from the stations. 
 popes in the reign of King Henry III., about 1220 and 1268. The pro- Provincial 
 vincial constitutions are principally the decrees of provincial synods of c0nstltutl0Ils - 
 Canterbury, from the reign of Henry III. to that of Henry V., and adopted 
 by the province of York in the reign of Henry VI. At the dawn of the 
 Reformation, it was enacted by stat. 25 Hen. 8, c. 19, that a review 
 should be had of the canon law, and that, till such review should be made, 
 all canons, constitutions, ordinances and synodals provincial, being then 
 already made, and not repugnant to the law of the land or the king's 
 prerogative, should still be used and executed. And, as no such review 
 has yet been made, upon this enactment now depends the authority of 
 the canon law in England, while all canons made since its date have no 
 legal force, so far as the laity are concerned. 4 (See Ecclesiastical Law.) 
 
 1 Bl. Comm. i. 83. 3 Holtz. Encycl. i. 122 etseq. 
 
 2 So called because they did not form 4 Bl. Comm. i. 82, etseq; Steph. Comm. 
 part of Gratian's collection (Decretales qu<z i. 65 et seq. 
 
 extra Decretum vagdbantur). 
 
120 Capacity LAW dictionary. Capias extendi facias 
 
 CAPACITY. — A person is said to have legal capacity when he can 
 alter his rights and duties by the exercise of his own will. Hence idiots 
 and lunatics are said to have no legal capacity, and infants and married 
 women have a restricted capacity : in other words, they are under dis- 
 ability (q. v.). 
 
 CAPIAS ("that you take") is the generic name for several writs 
 directing the person to whom they are addressed to arrest the person 
 therein named. They are usually directed to the sheriff, and are of the 
 following kinds : — 
 
 CAPIAS AD AUDIENDUM JUDICIUM.— In some cases it is 
 necessary that the defendant in a criminal prosecution should be present 
 in Court when judgment is pronounced against him, and, therefore, if he 
 is at large when the verdict of guilty has been given, a writ of capias may 
 be issued for the purpose of bringing him up to receive judgment : this 
 writ appears to be called a capias ad audiendum judicium. 1 
 
 CAPIAS AD RESPONDENDUM is a writ which may be issued 
 for the arrest of a person against whom an indictment for a misdemeanor 
 has been found, in order that he may be arraigned (q. v.). 2 In practice, 
 however, a justice's warrant is always used (see Warrant), except where it 
 is desired to make the defendant an outlaw {q. v.). § 2. Under the old 
 practice in common law actions, before 1832, the capias ad respondendum 
 was the writ by which an ordinary action was commenced ; the defendant 
 was not actually arrested on it, but was merely required to appear and 
 put in common bail, unless ' the cause of action amounted to a certain 
 sum, in which case he might be arrested or compelled to put in special 
 bail. 3 (See Bail, § 8 et seq.; Venire facias ; Distringas.) 
 
 CAPIAS AD SATISFACIENDUM, or ca. sa., is a writ for the 
 arrest of the defendant in a civil action when judgment has been recovered 
 against him for a sum of money and has not been satisfied. The sheriff 
 generally returns to this writ : cepi corpus et paratum habeo — i. e. that he has 
 taken the body of the debtor, and has it ready ; or that the debtor is so 
 ill that he cannot remove him without danger to his life; or he may return 
 non est inventus— i. e. that the debtor is not found within his bailiwick. 1 
 Imprisonment for debt having been abolished by the Debtors Act, 1869. 
 in all except a few cases, the writ of ca. sa. is now rare. (See Com- 
 mittal.) 
 
 CAPIAS EXTENDI FACIAS is a writ of execution issuable against a debtor to 
 the crown, and commands the sheriff to "take" or arrest the body, and "cause to be 
 extended" the lands and goods of the debtor. 5 It seems to be practically obsolete. 
 (See Extent.) 
 
 l _ Archb. Crim. PI. 178; Bl. Comm. iv. a Bl. Cohim. iii. 287. 
 
 ^>_ . . 4 Smith's Action, ii. 282; Arch. Pr. 
 
 Pl s mm ' w - 3l8; Archbold, Crim. 602. 
 
 "• ° 2 - 6 Manning's Exchequer, 5. 
 
Capias in Withernam LAW dictionary. Capture 1 2 1 
 
 CAPIAS IN WITHERNAM was a writ formerly used in cases where the 
 defendant in an action of replevin had obtained judgment for the re-delivery of the goods, 
 and the sheriff has returned elongata (q. v.). The capias in withernam commanded the 
 sheriff to take other goods of the plaintiff to the value of the goods replevied, and deliver 
 them to the defendant to be kept by him until the latter goods were returned. The 
 practice is now obsolete. 1 
 
 Etymology.] — Anglo-Saxon : withern&m, a taking again ; 3 the accent is on the first 
 syllable. 
 
 CAPIAS UTLAGATUM is a writ for the arrest of an outlaw. 
 As outlawry has been abolished in civil cases, this writ is now only 
 available in criminal proceedings, and even in those it is rare. 3 (See 
 Outlawry.) A general ca. utl. is against the person only, and commands General, 
 the sheriff to arrest the defendant and produce him in Court on a certain 
 day ; a special ca. utl. is against the person, lands and goods, and commands Special, 
 the sheriff not only to arrest the defendant, but also to hold an inquisi- 
 tion as to his goods and lands, and to take possession of them on behalf 
 of the Queen. 4 In criminal cases this is also called a capias utlagatum cum 
 breve de inquirendo? 
 
 CAPITA— CAPITE. See Per Capita; In Capite. 
 
 CAPTION, in procedure, is the history of a judicial proceeding. 5 
 Thus, in a prosecution by indictment, the record begins by a caption 
 giving the title of the Court, and stating that the jurors on their oaths 
 presented the facts alleged in the indictment, which immediately follows 
 the caption. 7 The title of a deposition taken before a magistrate is also 
 called the caption. 8 
 
 CAPTURE is, in some cases, a mode of acquiring property. Thus, Animals. 
 every one may, as a general rule, on his own land, or on the sea, capture 
 any wild animal, and acquire a qualified ownership in it by confining it, 
 or absolute ownership by killing it. 9 (See Animals Fera Natura.) 
 
 § 2. In international law, the strict rule is, that when two nations are at Prize and 
 
 war with one another, the movable property of the individual subjects of °°' y '"' * 
 
 each nation is liable to capture by the other. In modern times, however, 
 this rule has generally been subject to two qualifications. First, that the 
 capture must be effected by persons holding a commission or authority 
 from their government ; and, secondly, that the property of those subjects 
 of the enemy who are within the dominions of the other state at the time 
 of the declaration of war is exempt from capture, except by way of 
 
 1 Woodfall, L. & T. 481. ' Archbold, Crim. PI. 38, 124; Pritchard, 
 
 a See Schmid, Ges. gl. s. v. Ndm. Q. S. 25. 
 
 3 See Archbold, Crim. PI. 87. 8 Roscoe, Cnm. Ev. 71. As to captions 
 
 * Chitty, Pr. (12th edit.) 131 2. under the old practice in Chancery, see 
 6 Grady '& Scotl. 321. Daniell, Ch. Pr. 654. 
 
 • Taylor v. Clemson, 2 A. & E., N. S. 9 Steph. Comm. u. 19. 
 at p. 1010. 
 
122 
 
 Capture 
 
 LAW DICTIONARY. 
 
 Capture 
 
 Booty. 
 
 Prize. 
 
 Actual cap- 
 tors. 
 
 Joint or con- 
 structive 
 captors. 
 
 reprisals. 1 It follows from the first qualification that persons seizing an 
 enemy's property on the high seas without a commission are guilty of 
 piracy. 
 
 § 3. Capture is either by land or by sea. Property captured by an army 
 on land is called " booty of war," and belongs to the crown ; but it has 
 long been usual to grant it to the captors as a reward for their services. 
 Questions of booty (e. g. as to the persons among whom it should be dis- 
 tributed) are commonly referred by the crown to the High Court of 
 Justice in its admiralty jurisdiction, pursuant to the statute 3 & 4 Vict. 
 
 C. 65, S. 22. 3 
 
 § 4. Property captured at sea (called " prize") belongs to the crown if 
 captured by one of the Queen's ships, and to the capturing vessel if cap- 
 tured by a privateer. The practice of privateering having been abolished 
 as between the principal European nations by the Treaty of Paris, ques- 
 tions of prize can seldom arise except in cases of capture by the Queen's 
 ships. At the outbreak of a war requiring the services of the navy, it has 
 been customary for the crown to issue a proclamation bestowing the 
 proceeds of maritime capture upon the takers — that is, upon the officers 
 and crews who have made or assisted in the capture {infra, § 5). But 
 whether the prize has been taken by a privateer, or by one of the Queen's 
 ships, the rule equally applies that the property in the prize does not pass 
 to the captors until it has been condemned by a competent Prize Court. 3 
 The High Court of Justice, in its admiralty jurisdiction, is the Court for 
 deciding questions of prize in this country. (See further on this point, 
 the titles Condemnation ; Prise Court.) 
 
 § 5. Captors, whether of booty or of prize, are of two classes, actual 
 and constructive, or joint. " When a prize is taken at sea there is usually 
 no doubt as to who is the actual captor, namely, the ship to which the 
 prize strikes its flag. But it is important to observe, that even so, the 
 phrase ' actual captors' includes many others besides those who actually 
 have taken part in the capture. The whole of the ship's crew may not be 
 on board the ship at the time of the capture ; or the prize may have been 
 taken out of sight of the ship, and at a great distance from it, by the 
 ship's tender, or by a boat's crew detached from the ship. But in all 
 these cases it is the ship, and not a part of the ship, that is held to take 
 the prize. The whole of the ship's crew share." 4 In the case of booty, a 
 similar principle is applied by drawing the line between division and divi- 
 sion, treating the division of an army as analogous (for this purpose) to 
 a ship of war, so that when booty has been captured by any portion of a 
 division, that division is, in the first instance, to be regarded as the actual 
 captor. 6 § 6. Joint or constructive captors are those who have assisted, 
 or are taken to have assisted, the actual captors. But it is not every kind 
 
 1 Manning's Law of Nations, 166. et seq. 
 The latter qualification is considered by 
 some not to be a matter of strict right; it 
 is provided for by treaties between the 
 principal states of the world. Manning, 
 172. 
 
 1 Banda and Kirwet Booty, L. R., I 
 Ad. & Ecc. at p. 129 ; 4 A. & E. 436. 
 
 3 Manning, 476. 
 
 4 Banda and Kirwee Booty, I A. & E. 
 at p. 135. 
 
 6 Ibid. 180. 
 
Capture law dictionary. Carrier 
 
 123 
 
 of assistance which constitutes a joint capture ; for the leaning of the 
 Courts is against claims by joint captors except in the two cases of asso- 
 ciation and co-operation ; association takes place when two or more ships Association. 
 or divisions of an army are associated under the same immediate com- 
 mander ; co-operation is where the joint captors have assisted the actual Co-operation, 
 captors by conveying encouragement to them or intimidation to the 
 enemy. In the case of naval prize, the joint captor must be in sight both 
 of the prize and the actual captor to substantiate her claim ; but in cases 
 of booty, a wider application is allowed to the term co-operation, owing 
 to the difference between the nature of naval and military operations, and 
 between the surface of the sea and that of the land ; hence the rule of 
 • sight is inapplicable to capture on land, and each case must be judged on 
 its own grounds, subject to the rule that services, to base a claim of joint 
 capture, must have a direct and immediate effect in influencing the 
 capture. 1 
 
 § 7. Where a capture is effected by her Majesty's naval or military Conjunct 
 forces in conjunction with an ally, the capture is said to be conjunct, and ca P ture - 
 is divided between the allied forces. 3 (See Postliminium?) 
 
 CARRIER. — § 1. A carrier is a person who has received goods for 
 the purpose of carrying them from one place to another for hire, either 
 under a special contract or in the course of his business of a common 
 carrier. A carrier who receives goods under a special contract is a bailee, Special 
 and, in accordance with the general rules governing contracts of bail- con tract. 
 ment, he is bound to use ordinary and average care in conveying the 
 goods entrusted to him. 3 (See Bailment.) 
 
 § 2. A common carrier is one who, by profession to the public, under- Common 
 takes for hire to transport from place to place, either by land or water, carrier - 
 the goods of such persons as may choose to employ him. Instances of 
 common carriers are : the proprietor of a common stage coach or waggon, 
 and the owner or master of a general ship. A railway company is not a 
 common carrier of passengers, and is only a common carrier of those goods 
 which it is bound by statute to carry, or which it professes to carry with- 
 out express stipulations limiting its liability. 4 § 3. The peculiarity of a 
 common carrier of goods is, that he is bound to convey the goods of any 
 person who offers to pay his hire, 5 and that he is an insurer of goods en- 
 trusted to him, that is, he is liable for their loss or injury, in the absence 
 of a special agreement or statutory exemption, and unless the loss or 
 injury was caused by the act of God or the Queen's enemies. 6 In this 
 respect a common carrier is an exception to the general rule, that bailees 
 for reward are only liable for ordinary negligence. (See Bailment; Carriers 
 Act.) 
 
 1 Ibid. 136, 181. Railways, 576; Smith, L. C. i. 223. 
 5 Naval Prize Act, 1864, s. 35. 5 Smith, L. C. i. 223. 
 
 3 See Shaife v. Farrant, L. R., 10 Ex. 6 Nugent v. Smith, 1 C. P. D. 423 ; 
 
 358. Chitly, 442. As to common carriers of 
 
 1 Chitty on Contracts, 439 ; Hodges on passengers, see ibid. 463. 
 
i24 Carriers Act law dictionary. Case for Motion 
 
 CARRIERS ACT is the act 1 1 Geo. 4 & 1 Will. 4, c. 68 (amended 
 by the stat. 28 & 29 Vict. c. 94. Its object was to modify the common 
 law rule, that a common carrier was liable for goods lost or injured in his 
 custody, unless he could prove a special contract to the contrary. 1 Its 
 principal provisions are — (1) that no carrier by land is to be liable for 
 loss of or injury to certain valuable descriptions of property (coin, 
 jewellery, pictures, &c.) beyond the value of 10/., unless their value was 
 declared at the time of delivery ; 2 (2) that any carrier may require an 
 increased rate of charge for such articles over the value of 10/. by a notice 
 affixed in his receiving house, and all persons delivering such articles are 
 bound by the notice, without proof of its having come to their knowledge. 3 
 The Railway and Canal Traffic Act, 1854, s. 7, contains further provisions 
 limiting the liability of railway companies for loss or injury to horses, 
 cattle, &c. 4 
 
 CARTELS are agreements between states as to the exchange and 
 ransom of prisoners during war. 5 
 
 CASE is (i) an abbreviation for "trespass on the case," as to which 
 see Trespass. It also signifies (ii) a written statement of facts for the 
 opinion of counsel ; (iii) in House of Lords and Privy Council practice, 
 a statement prepared and printed by each party to an appeal, showing the 
 facts on which he relies, and containing references to the evidence con- 
 tained in the appendix {q. v.) ; the cases, therefore, correspond to some 
 extent to the pleadings in an ordinary action, but differ from them in 
 being prepared independently, for neither party sees his opponent's case 
 until his own has been lodged ; " (iv) a written statement by an inferior 
 Court or judge, raising a question of law for the opinion of a superior 
 Court ; the principal instances of this kind are the Crown Cases Reserved 
 (q.v.), and cases stated by justices (q. v. ; and see Appeal; Special Case). 
 § 2. By stat. 22 & 23 Vict. c. 63, any Court in her Majesty's dominions 
 may remit a case to one of the superior Courts in any other part of her 
 Majesty's dominions, desiring it to pronounce its opinion on a question 
 as to the law administered by it ; and by stat. 24 Vict. c. 1 1, the superior 
 Courts in her Majesty's dominions may remit a case to a Court of any 
 foreign state with which her Majesty may have made a convention for 
 that purpose, to ascertain the law of such state. 7 
 
 CASE FOR MOTION. — In divorce and probate practice, when a 
 party desires to make a motion,, he must file, among other papers, a case 
 for motion, containing an abstract of the proceedings in the suit or 
 action, a statement of the circumstances on which the motion is founded, 
 and the prayer or nature of the decree or order desired. 8 
 
 1 Chitty on Contracts, 455 ; Hodges on " House of Lords Standing Orders in 
 
 Railways, 599. Appeals ; Macpherson, Privy C. Pr. 84. 
 
 * Sect. I. ' Archbold, Pr. 1462. 
 
 3 Sect. 2. As to the general effect of 8 Browne on Divorce, 251; Divorce 
 
 the act, see Chitty. 457. Rules (1866), 147 ; Browne's. Probate Pr. 
 
 J Hodges on Railways, 592. 295. 
 
 s Manning's Law of Nations, 218. 
 
Case stated law dictionary. Catching Bargain 125 
 
 CASE STATED BY JUSTICES.— By the stat. 20 & 21 Vict, 
 c. 43, after the hearing and determination by a justice or justices of the 
 peace (including metropolitan police and stipendiary magistrates) of any 
 information or complaint under their summary jurisdiction, either party 
 to the proceedings, if dissatisfied with the determination as being 
 erroneous in point of law, is entitled to require the justices or magistrate 
 to state and sign a case, setting forth the facts and the grounds of the 
 determination, for the opinion of a divisional Court of the High Court of 
 Justice. 1 
 
 CASSETUR BILLA is an entry made on the record in a proceeding 
 in the Mayor's Court when the plaintiff withdraws his action before the 
 defendant demands the declaration or bill. 8 It is so called from being a 
 prayer by the plaintiff that the bill may be quashed. The proceeding 
 was also used in actions in the superior Courts commenced by bill, when 
 the plaintiff found that his action was misconceived, and wished to com- 
 mence a fresh one. 3 (See Cassetur Breve.} 
 
 CASSETUR BREVE (= Let the writ be quashed). In the old common law 
 practice, when the defendant in an action pleaded a sufficient plea in abatement, and the 
 plaintiff could not deny it or demur, and did not wish to amend his declaration, he might 
 enter on the roll a judgment that the writ be quashed, in order that he might be enabled 
 to commence a new action. In practice, the prayer of judgment that the writ be quashed, 
 and award that it be so, were copied on paper, and delivered to the defendant's attorney 
 or agent, the same as a pleading, and very often no entry was made on the roll or judg- 
 ment signed. 4 Under the present practice the plaintiff in such a case would give notice 
 of discontinuance (q. v.). 
 
 CASTLE-YARD, or CASTLEWARD, was a form of tenure by knight-service, 
 the duty of persons holding land by such a tenure being " to ward a tower of the castle 
 of their lord, or a doore or some other place of the castle, upon reasonable warning, when 
 their lords heare that the enemies will come, or are come in England." 5 (See Knighfs 
 Service; Tenure.') 
 
 CASUAL EJECTOR. See Ejectment. 
 
 CATCHING BARGAIN is a bargain for a loan or payment of 
 money made on oppressive, extortionate, or unconscionable terms, between 
 a person having money and another person having little or no property 
 immediately available, but having property in reversion or expectancy. 
 Relief against the unreasonable part of such a bargain is generally granted 
 to the borrower. 6 (See Expectant Heir) Formerly, the rule was, that mere 
 inadequacy of price was a sufficient ground for rescinding a sale or other 
 dealing with a reversion, but this rule has been abolished, and it is now a 
 question in each case, whether there has been fraud or unfair dealing. 7 
 
 1 Stone's Justice of the Peace, 225. 6 Earl of Chesterfield v. Janssen, 2 Ves. 
 
 2 Brandon, For. Attach. 109. sen. 125 ; White & Tudor, L. C. i. 483 ; 
 8 Tidd, Pr. 683. Earl of Aylesford v. Morris, L. R., 8 
 * Chitty's Pr. 1487. Ch. 484; Pollock on Contract, 529. 
 
 5 Litt. § in ; Co. Litt. 82b. 7 Stat. 31 & 32 Vict. c. 4. 
 
126 Cattle Insurance law dictionary. Cause of Action 
 
 CATTLE INSURANCE SOCIETIES are societies established 
 and registered under the Friendly Societies Act, 1875, for insurance 
 against loss of neat cattle, sheep, lambs, swine and horses by death from 
 disease or otherwise. 1 In their constitution and management such socie- 
 ties resemble friendly societies {q. v.). They were introduced during the 
 panic caused by the cattle plague of 1866. 2 
 
 CAUSE, — § 1. Before the Judicature Act, 1873, "cause" was the 
 generic term for ordinary civil proceedings, whether at law or in equity, 
 and therefore included actions and suits, but not statutory proceedings in 
 equity commenced by petition, motion, summons, &c, which were and 
 are known as " matters " (q. v.). Since the Judicature Acts came into 
 operation, the word " cause " has practically been superseded by "action" 
 
 Ecclesiastical: § 2. In the Ecclesiastical Courts, causes are divided into plenary and 
 plenary; summary. " Plenary causes are those in which the order and solemnity of 
 
 the law is exactly to be observed, so that if there be the least infringe- 
 ment or omission of that order, the whole proceedings are annulled ; and 
 in these there must be a contestation of suit, a term to propound all 
 summary, things, and a term to conclude. Summary [causes] are those in which 
 such order is dispensed with." 3 (See Litis Contestatio.) 
 
 CAUSE-BOOKS are books kept in the Central Office of the Supreme 
 Court, in which are entered all writs of summons issued in the office. 4 
 
 CAUSE OF ACTION means (I.) the fact or combination of facts 
 which gives rise to a right of action. Thus in the case of a simple tort 
 {e.g. an assault or trespass), the cause of action is the wrongful act ; in the 
 case of a breach of contract, the cause of action consists of two things, 
 the making of the contract and breach of it, and each of these may be 
 more or less complicated. 5 § 2. The phrase is of importance chiefly with 
 reference to the Statutes of Limitation and the jurisdiction of certain 
 Courts. Thus, if A. incurs a debt while he is abroad, the cause of action 
 is not complete, and therefore the Statute of Limitations does not begin 
 to .run, until he brings himself within the jurisdiction of the English 
 Courts. Again, the jurisdiction of a Court is frequently limited to cases 
 where the " cause of action " arises within a certain district or county. 
 Here the phrase may mean either the cause of action in the proper sense 
 of the word (called for distinction the "whole cause of action" ), or the 
 act on the part of the defendant which completes the cause of action, 
 e. g. the breach of a contract. 7 
 
 1 Friendly Soc. Act, 1875, <=• 8, s. 2. e Dicey on Parties, 6. 
 
 2 Fourth Report of Friendly Soc. Comm. 6 Douglas v. Forrest, 4 Bing. 686. 
 cxlix; Davis on Friendly Soc. 57. 1 See the long conflict of decisions on 
 
 3 Rogers, Eccl. Law, 716; Martin v. the 1 8th section of the Common Law Proc. 
 Mackonochie, 3 Q. B. D. 755 ; 4 Q. B. D. Act, 1852, set at rest by Vaughan v. 
 6 9J- Weldon, L. R., 10 C. P. 47, and now of 
 
 4 Rules of Court, v. 8. no importance so far as the High Court is 
 
Cause-List law dictionary. Caveat 127 
 
 II. § 2. "Cause of action" sometimes means a person having a right 
 of action. Thus, where a legacy is left to a married woman, and she and 
 her husband bring an action to recover it, she is called in the old books 
 the " meritorious cause of action." 1 
 
 CAUSE-LIST is an official list of actions, demurrers, petitions, 
 appeals, &c, set down for trial or argument in open Court. 
 
 CAUTION— CAUTIONER.— § 1. By the Land Transfer Act, 1875, After regis 
 regulating the registration of land, any person interested under any un- tratlon - 
 registered instrument, or interested as a judgment creditor, or otherwise 
 howsoever, in any land or charge registered in the name of any other 
 person, may lodge a caution with the registrar to the effect that no dealing 
 with such land or charge be had until notice has been served on the 
 cautioner or person who has lodged the caution. 2 § 2. And by sect. 60 of Before regis- 
 the same act, any person claiming such an interest in any land not already tratlon - 
 registered, as entitles him to object to any disposition thereof being made 
 without his consent, may lodge a caution with the registrar to the effect 
 that the cautioner is entitled to notice of any application for the registra- 
 tion of the land. ' 
 
 § 3. A caution on land is like a distringas {q. v.) on stock ; it gives the 
 cautioner no interest in the land, 3 but merely entitles him to a notice, so 
 as to enable him to take proceedings {e. g. obtain an injunction or issue 
 execution) before any dealing with the land, by which his right might be 
 barred, can take place. Cautions, like distringases, will probably be used 
 chiefly by cestui que trusts, to prevent unauthorized dealings with the land 
 by their trustees. 
 
 (See Caveat ; Distringas ; Restriction ; Inhibition.') 
 
 § 4. In ecclesiastical law, a caution is a security for the performance of Ecclesiastical 
 a duty, and is said to be of three sorts: (1) cautio fidejussoria, as where 
 the person binds himself with sureties to do something; (2) c . pignoratitia 
 or realis, as where he engages goods or mortgages land for the perform- 
 ance; and (3) c.juratoria, where he takes a corporal oath to perform the 
 duty. 4 
 
 CAVEAT — CAVEATOR. — § 1. A caveat is an entry made in the 
 books of the offices of a registry or Court to prevent a certain step being 
 taken without previous notice to the person entering the caveat (some- 
 times called the caveator). Thus, where a person wishes to prevent the Patent, 
 granting of letters-patent for an invention, he enters a caveat at the 
 Patent Office. 5 
 
 § 2. In probate practice, a caveat is entered in the caveat books by a Probate, 
 person who wishes to oppose the issue of a grant of probate or letters of 
 
 concerned (Rules of Court, xi.). As to the * Sect. 64. 
 
 Mayor's Court and other Inferior Courts, * Phillimore, Eccl. Law, 1414; Gibson's 
 
 see Candy's Mayor's Court Pr. 39 etsea. Codex, 1063. 
 
 1 Rose v. Bowler, 1 H. Bl. 108. 6 Stat. 15 & 16 Vict. c. 83, s. 20; Re 
 
 2 Sect. 54. Somerset and Walker, 13 Ch. D. 397. 
 
128 Caveat law dictionary. Cemeteries. 
 
 administration, and has a sufficient interest to entitle him to do so. (See 
 Interest. ) x It is a notice to the officers of the registry requiring them 
 to let nothing be done in the goods of the deceased, that is, to let no 
 grant be issued, unknown to the caveator; it remains in force for six 
 months only, unless renewed, and its effect is to stop all proceedings for 
 the purpose of obtaining a grant of probate or administration in respect 
 of the goods of the deceased until the caveat expires or a writ of sum- 
 mons is issued. 2 (See Warning?) 
 Caveat against § 3- In admiralty practice, where the owner of a ship, or cargo, &c, 
 arrest. knows that an action is about to be instituted, and wishes to avoid the 
 
 inconvenience of his property being arrested, he may enter a caveat 
 against the issue of a writ of summons, on filing an undertaking to enter 
 an appearance and give bail in any action which may be instituted against 
 the property ; if, notwithstanding the caveat, a person causes the property 
 to be arrested, without good reason, he is liable to be condemned in costs 
 and damages. 3 
 Caveat against §4. The Admiralty Court Rules, 1859, provide, that where a solicitor 
 desires to prevent the release of any property under arrest, he shall file in 
 the registry a praecipe, and thereupon a caveat against the release of the 
 property shall be entered in the Caveat Release Book, so as to prevent the 
 release of the property without notice to him. A person entering a 
 caveat without sufficient reason is liable for costs and damages. 4 
 Ecclesiastical § 5. In ecclesiastical practice, a caveat is entered in a spiritual Court, 
 prac ice. ^ Q p revent a ii cencej dispensation, faculty, institution, or the like, from 
 
 being granted without the knowledge of the party who enters it. 5 
 
 CAVEAT EMPTOR (" Let the buyer beware") is a maxim em- 
 ployed in the law of sales of chattels to signify that when a buyer of 
 goods has required no warranty, he takes the risk of quality upon himself, 
 and has no remedy if he chose to rely on the bare representation of the 
 vendor, unless he can show that representation to be fraudulent. 6 To 
 this rule there are many exceptions. Thus, if a chattel is made or supplied 
 to the order of the purchaser, there is an implied warranty that it is 
 reasonably fit for the purpose for which it is ordinarily used, or for the 
 special purpose intended by the buyer, if that purpose was communicated 
 to the vendor. 7 It has not yet been decided whether on a sale of an 
 ascertained specific chattel by an innocent vendor, he thereby warrants 
 the title to it, though it is clear that if he knows he has no title, and 
 conceals that fact from the buyer, he is liable for fraud. 8 (See Warranty) 
 
 CEMETERIES. See Burial, § 3. 
 
 1 Probate Rules, 1862, Non-C. 59 et Act contained some provisions on this 
 seq.; C. B. 7 et seq.; Browne's Probate subject (v. 12), which were afterwards re- 
 Pr. 263 ; Coote's Probate Pr. 208. pealed by the Rules of December, 1875. 
 
 2 Browne, 265. 5 phillimore, Eccl. Law, 1279. 
 
 3 Williams and Bruce, 197. « Benjamin on Sales, 498. 
 
 4 Williams and Bruce, 196 ; Roscoe, ' Ibid. 525. 
 Adm. Pr. 117. It is to be remarked, that s Ibid. 511. 
 the Rules of Court under the Judicature 
 
Censure law dictionary. Central Office 129 
 
 CENSURE, in ecclesiastical law, is a spiritual punishment and con- 
 sists in withdrawing from a baptized person (whether belonging to the 
 clergy or the laity) a privilege which the Church gives him, or in wholly 
 expelling him from the Christian communion. 1 The principal varieties of 
 censures are admonition, penance, suspension, excommunication, seques- 
 tration, deprivation, degradation ; see those titles. 
 
 CENTRAL CRIMINAL COURT is a Court having jurisdiction 
 to try all offences committed within the city of London, the county of 
 Middlesex, and certain suburban parts of Essex, Kent and Surrey. The 
 judges or commissioners are the Lord Mayor of London, the Lord Chan- 
 cellor, the judges of the High Court, the Dean of Arches, the aldermen 
 of London, the Recorder and Common Serjeant of London, the judge of 
 the City of London Court, and other persons appointed by the crown. 
 Commissioners of oyer and terminer and gaol delivery (q. v.) are issued 
 to the Court, under which any two or more of the judges hold sessions in 
 the city of London, or its suburbs, at least twelve times a year, to " in- 
 quire of, hear, determine and adjudge" all treasons, felonies and misde- 
 meanors committed within the district of the Court. 2 By stat. 19 & 20 
 Vict. c. 16, the Queen's Bench Division may order any indictment or 
 inquisition for an offence committed out of the jurisdiction of the Central 
 Criminal Court to be tried in that Court. The Court also has jurisdiction 
 in respect of offences committed on the high seas, formerly within the 
 jurisdiction of the High Court of Admiralty. 3 By the Winter Assizes 
 Act, 1876, the jurisdiction of the Court may be extended by order in 
 council to any neighbouring county, or part of a county, in the months 
 of November, December and January. 
 
 CENTRAL OFFICE of the Supreme Court of Judicature is the 
 office established in pursuance of the recommendation of the Legal De- 
 partments Commission, 4 in order to consolidate the offices of the masters 
 and associates of the Common Law Divisions, the Crown Office of the 
 Queen's Bench Division, the Record and Writ Clerks', Report, and Enrol- 
 ment offices of the Chancery Division, and a few others. 5 The Central 
 Office is divided into the following departments, and the business and 
 staff of the office are distributed accordingly : 6 —( 1 ) Writ, Appearance and 
 Judgment ; (2) Summons and Order (for the Common Law Divisions only) ; 
 (3) Filing and Record (including the old Chancery Report Office) ; (4) Tax- 
 ing (for the Common Law Divisions only); (5) Enrolment ; (6) Judgments 
 (for the registry of judgments, executions, &c.) ; (7) Bills of Sale ; 
 (8) Married Women's Acknowledgments ; (9) Queen's Remembrancer ; 
 (10) Crown Office; and (u) Associates. See the titles of the various 
 officials and title Master. 
 
 1 Phillimore, Eccl. Law, 1367. * Second Rep. 23, 47. 
 
 2 Stat 4 & S Will. 4, c. 36 ; Steph. 6 Judicature (Officers) Act, 1879, ss. 4 
 Comm. iv. 315. etseg. 
 
 3 Sect. 22; Steph. 312; Reg. v. Keyn, 6 Rules of Court, Dec. 1879: April, 
 2 Ex. D. 63. (See Territorial.) 1880. 
 
.130 
 
 Cepi Corpus 
 
 ■LKW DICTIONARY. 
 
 Certificate 
 
 CEPI CORPUS.— When the sheriff has arrested a person under a 
 writ of capias or attachment (q. v.) he endorses on the writ a return to 
 that effect, which is technically called a return of cepi corpus} (See 
 Return.) 
 
 CEPIT IN ALIO LOCO was the name given to that plea in an 
 action of replevin under the old practice, by which the defendant pleaded 
 that he took the goods in another place than that mentioned in the declara- 
 tion. It was a plea in bar, not a plea in abatement. 2 
 
 CERTAINTY. See Intent. 
 
 General. 
 
 Separate. 
 
 Certificate of 
 debts. 
 
 CERTIFICATE. — § 1. A certificate is a statement (generally in 
 writing 3 ) by a person having a public or official status, concerning some 
 matter within his knowledge or authority. The principal varieties of 
 certificates relating to legal matters are the following : — 
 
 Associate. — § 2. Where at the trial of an action at nisi prius, or at 
 the assizes, the judge directs judgment to be entered, the associate gives 
 a certificate to that effect, which is produced to the officer in charge of the 
 judgment book when judgment is entered. 4 (See Postea.) 
 
 Charge. — § 3. When the proprietor of land registered under the Land 
 Transfer Act, 1875, creates a charge on it, the proprietor of the charge is 
 entitled to a certificate of charge under the seal of the office ; if he 
 transfers the charge, the transferee is entitled to a fresh certificate. It is 
 prima facie evidence of its contents. 5 (See Charge.) 
 
 Chief Clerk. — § 4. When a question in an action or suit in the 
 Chancery Division is referred to chambers (as where accounts or inquiries 
 are directed, or a receiver is ordered to be appointed, or a conveyance or 
 other instrument is directed to be settled in chambers), the result of the 
 proceedings is stated in the chief clerk's certificate, which is in the nature 
 of a report to the Court of the matters referred to. him. 6 In administra- 
 tion actions, certificates may be either general or separate. A general 
 certificate embraces the result of all the proceedings taken at chambers 
 under the judgment or order ; a separate certificate comprises the result 
 of only some one or more of them. Separate certificates are made in 
 cases where it is not desirable to wait till the whole proceedings are com- 
 pleted. Thus, in an action for the administration of the estate of a 
 deceased person, where there are debts remaining unpaid, a certificate of 
 their amount is taken at the earliest possible moment, in order that they 
 may be paid. 7 When a party interested thinks the certificate wrong, he 
 may apply to the judge, within a certain time, to vary or discharge it. 8 
 
 1 Archbold, Pr. 611 ; Daniell, Ch. Pr. 
 
 395- 
 
 2 Bullythorpe v. Turner, Willes, 475. 
 
 3 Probably the only verbal certificate of 
 practical interest is that given by the Re- 
 corder of the City of London, on a question 
 of foreign attachment ; see that title, and 
 Trial. 
 
 4 Rules of Court, xxxvi. 23 etseq.; xli. 
 
 S ; Archbold, Pr. 382. 
 
 5 Land Transfer Act, 1875, ss. 22, 40, 
 80. 
 
 6 For a specimen of a chief clerk's cer- 
 tificate, see Hunter's Suit, 294. 
 
 7 Daniell, Ch. Pr. 1215 etseq. 
 
 8 Ibid. 1222. As to certificates in the 
 winding-up of companies, see also Lindley 
 on Partnership, 1364. 
 
Certificate law dictionary. Certificate 
 
 Costs.— § 5. By the County Courts Act, 1867, if the plaintiff in an 
 action in the High Court recover a sum not exceeding 20/. for breach of 
 contract, or 10/. for a tort, he is not entitled to costs, unless the judge 
 before whom the action was tried certifies that there was sufficient reason 
 for bringing the action in the superior Court. 1 Some statutes give the 
 plaintiff, in certain actions, double or treble costs, if the judge before 
 whom the action was tried certifies that he is entitled to them. 2 (See 
 Costs.) 
 
 Counsel. — § 6. In common law practice, when a summons at chambers 
 is argued by counsel, it is necessary to obtain the certificate of the judge 
 or master that it was a case requiring the services of counsel*: otherwise 
 the successful party will not be allowed the costs of counsel's attendance. 
 
 Discharge. — § 7. In proceedings by liquidation, when the creditors 
 have granted the debtor his discharge, the registrar gives a certificate to 
 that effect, which has the same effect as an order of discharge in the case 
 of a bankrupt. 3 (See Discharge.) 
 
 Dismissal. — § 8. Where a person is charged before justices of the peace- 
 with a common or aggravated assault or battery, and they consider the 
 offence not proved, or find the act to have been justified, or so trifling 
 as not to merit punishment, and they accordingly dismiss the complaint, 
 they are bound to give the defendant a certificate of dismissal, which 
 operates to release him from all other proceedings, civil or criminal, for 
 the same cause. 4 
 
 Incorporation. — § 9. When a company is registered under the Com- 
 panies Acts, the registrar is bound to give a certificate stating that the 
 company is incorporated, and (if the fact be so) that it is limited. It is 
 conclusive evidence that all the requisitions of the act in respect of regis- 
 tration have been complied with. 5 
 
 Land. — § 10. A land certificate is a certificate under the seal of the 
 Land Registry, containing a copy of the registered description of a certain 
 piece of land on the register, the name and address of the registered pro- 
 prietor, and other particulars. It is prima, facie evidence of the matters 
 contained in it. 7 
 
 Mortgage. — § 11. Under the Merchant Shipping Act, 1854, the owner 
 of a registered ship may obtain a certificate of mortgage, enabling the 
 person named in it to raise money by mortgage of the ship to a limited 
 amount. The form and object of certificates of mortgage are similar to 
 those of certificates of sale {infra, § 17). 8 
 
 Paymaster- General. — § 12. Upon the completion of every operation 
 
 1 Archbold, Pr. 421. It seems that the 3 Bankruptcy Act, 1869, s. 125, §§ 9, 10. 
 concluding words of s. 67 of the Judicature 4 Stat. 24 & 25 Vict. c. 100, ss. 44, 45. 
 Act, 1873, have the effect of limiting the 5 Companies Act, 1862, s. 18. 
 operation of the County Courts Act to 6 Land Transfer Act, 1875, ss. 10, 19 ; 
 those actions which may be brought in the General Rules, 33. 
 
 County Courts. See Garnett v. Bradley, '• Sect. 80. 
 
 3 App. Ca. at p. 971. 8 Sect. 76 el seq.; Maude and Pollock, 
 
 2 Archbold, 430. 39. 
 
 k2 
 
 131 
 
132 Certificate. law dictionary. Certificate 
 
 by the paymaster-general, except that of paying money out of Court, he 
 files a certificate of the fact in the Central Office (formerly in the Chancery 
 Report Office), and any person interested may obtain an office copy of it. 
 
 Voluntary. § 13. Another kind of certificate is what is called a voluntary certificate, 
 which is issued by the paymaster-general to show the state of an account 
 in his books at the request of a person interested in it ; it merely gives 
 the balance or result of the operations on the account up to that time. 
 (See Account, § 14.) No order dealing with a fund in Court is made 
 
 Negative. without the production of one of these certificates. §14. A negative cer- 
 tificate is one certifying that a particular sum of cash or stock has not 
 been paid or transferred into Court ; such a certificate is required to prove 
 that the order requiring the payment or transfer has not been complied 
 with. 1 
 
 Referee. — § 15. When a question in an action is referred to an officer 
 of the Court {e.g. a master) under the Common Law Procedure Act, 1854, 
 s. 3, or the Judicature Act, 1873, s. 57, on the ground that it is a question 
 of account or the like, the award of the officer is called a certificate. 
 (See Arbitration, § 4.) 
 
 Registration or Registry. — § 16. When an act of parliament re- 
 quires any document or fact to be registered, it generally provides for the 
 delivery by the registrar of a certificate stating that the registration has 
 been effected. Such a certificate is usually prima facie evidence of the 
 facts stated in it. To this class belong the certificates of charge and in- 
 corporation and land certificates mentioned in this article. 
 
 Sale. — § 17. By the Merchant Shipping Act, 1854, the registered owner 
 of a ship may apply to the registrar for a certificate of sale, which contains 
 a description of the ship, a list of registered mortgages, &c, and an ap- 
 pointment by the owner of a person to sell the ship on his behalf, with 
 any limitations as to the price, place and time at which the sale is to be 
 made, which the owner may desire to impose. 8 The object of obtaining 
 a certificate of sale is to enable the owner to sell his ship out of the 
 country where its port of registry is situate. 3 (See supra, §11.) 
 
 Sale and Transfer. — § 18. In chancery practice, when an order 
 directs the sale or transfer of stock in Court, it is necessary to obtain a 
 direction by one of the registrars, addressed to the paymaster-general, to 
 the effect that the stock is to be sold or transferred, as the case may be. 
 The order and the registrar's direction are then left at the paymaster- 
 general's office to be acted on. The direction is commonly called a cer- 
 tificate of sale (or transfer), or simply a registrar's certificate. 4 
 
 Sheriff. — § 19. When a writ of inquiry (q.v.) has been executed, but 
 the sheriff thinks that the defendant ought to have an opportunity to set 
 the execution aside, he may endorse on the writ a certificate to that effect, 
 
 1 Chancery Funds Comm. Rep. App. 3 Maude and Pollock, Merch. Shipping, 
 38 ; Daniell, Ch. Pr. 1635. 28. 
 
 2 Sect. 76 etseq. * Daniell, Ch. Pr. 1666; Forms, 1898. 
 
Certified Copy law dictionary. Cessavit 133 
 
 which will prevent the plaintiff from signing final judgment until the 
 defendant has had time to move. 1 
 
 Special Jury. — § 20. Where an action is tried by a special jury, the 
 party at whose instance it is so tried has to bear all the expenses caused 
 by that mode of trial, and is not allowed, upon taxation of costs, any 
 more or other costs than he would have been entitled to if the cause had 
 been tried by a common jury, unless the judge, within a reasonable time 
 after the verdict, certifies that it was a proper cause to be tried by a 
 special jury. 2 
 
 CERTIFIED COPY is a copy of a document, signed and certified 
 as a true copy by the officer to whose custody the original is entrusted. 
 By stat. 14 & 15 Vict. c. 99, s. 14, it is enacted, that whenever any book 
 or other document is of such a public nature as to be admissible in evi- 
 dence on its mere production from the proper custody, any copy thereof 
 or extract therefrom shall be admissible in evidence in any Court of jus- 
 tice, &c, provided it purport to be signed and certified as a true copy or 
 extract by the officer to whose custody the original is entrusted. 3 (See 
 Copy.) 
 
 CERTIORARI (in ordinary cases) is a writ directed to an inferior 
 Court of Record, commanding it to certify to the Queen in the High 
 Court of Justice some matter of a judicial character. Its principal use is For removal 
 to remove civil causes from inferior Courts of Record into the High °f cause. 
 Court (e. g. from a County Court or the Mayor's Court),* where it is de- 
 sirable that they should be tried in the superior Court, or to remove an 
 indictment from an inferior criminal Court {e.g. quarter sessions) into 
 the Central Criminal Court or the Queen's Bench Division, or from the 
 Central Criminal Court into the Queen's Bench Division, in order the 
 better to consider and determine the validity of the indictment and the 
 proceedings thereon, and to prevent a partial (i. e. biased) and insufficient 
 trial. 5 The inferior Court obeys the writ by transmitting the record of 
 the proceedings (or, in some cases, a transcript of it) to the superior 
 Court. § 2. A certiorari is also sometimes used where the record of a To produce 
 proceeding in an inferior Court is required to be produced in the High record - 
 Court on an issue of nul tiel record (q. v.). e 
 
 II. § 3. Where a peer or peeress is indicted of treason or felony, the Trial of peer. 
 indictment is removed into the House of Lords, or (if it is not sitting) 
 into the Court of the Lord High Steward, by writ of certiorari. 7 
 
 CESSAVIT was an action which lay where a man who held lands by rent or other 
 services, neglected or ceased to perform his services for two years together. The action 
 
 1 Stat. 1 Will. 4, c. 7, s. 1 ; Archbold, Candy's Mayor's Court Pr. 104 ; Judi- 
 
 Pr. 815. cature Act, 1873, s. go ; Reg. v.Sheward, 
 
 1 Stat. 6 Geo. 4, c. 50, s. 34; Archbold, 5 Q. B. D. 179. 
 Pr. 456. 6 Archbold, Cr. PI. 98 ; Pritchard, Q. S. 
 
 3 Best on Evidence, 620. 357 ; Stat. 19 & 20 Vict. c. 16. 
 
 4 Archbold's Pr. 1404 et seq. ; DanielFs , • Archbold's Pr. 753. 
 Ch. Pr. 1430 ; Pollock's C. C. Pr. 230 ; 7 Horn. Cox, Inst. 472. 
 
134 Cesse law dictionary. Cestui que use 
 
 enabled the plaintiff to recover the land itself, unless the tenant tendered the arrears of 
 rent (if any), and damages before judgment, and gave security for the future performance 
 of the services. The action was abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. 1 
 
 CESSE.— A tenant of land was said to cesse when he neglected or ceased to perform 
 the services due to the lord. 3 (See Cessavit.) 
 
 CESSER.— The cesser of a term, annuity, or the like, takes place 
 
 when it determines or comes to an end. The expression is chiefly used 
 
 with reference to long terms of a thousand years or some similar period, 
 
 created by a settlement for the purpose of securing the income, portions, 
 
 &c, given to the objects of the settlement. (As to these, see Settlement.) 
 
 Proviso for When the trusts of a term of this kind are satisfied (as where it was 
 
 cesser. created to secure an annuity, and the annuitant has died), it is desirable 
 
 that the term should be put an end to, and with this object it was 
 
 formerly usual to provide in the settlement itself that as soon as the 
 
 trusts of the term had been satisfied, it should cease and determine ; this 
 
 was called a proviso for cesser. Now, however, by the operation of the 
 
 Stat. 8 & 9 stat. 8 & 9 Vict. c. 112, every term of years ceases and determines ipso 
 
 Vict. c. 112. facto as soon as its trusts are satisfied. 3 (See Term.) 
 
 CESSIO BONORUM, in Roman law, was where a debtor surren- 
 dered his property to his creditors in lieu of execution against his body. 
 It did not release the debtor from his debts if he afterwards acquired 
 property from which he could pay them without leaving himself in want. 4 
 The principle of cessio bonorum has been adopted in many continental 
 countries as a mode of giving relief to insolvent debtors, 6 and was for- 
 merly a mode of effecting arrangements with creditors in English law 
 (see Arrangements with Creditors). A cessio bonorum is now an act of 
 bankruptcy 6 (q. v.). 
 
 CESSION, in jurisprudence, signifies transfer or alienation, but it is 
 not a term of English law in this sense. § 2. In ecclesiastical law, ces- 
 sion is where a person loses a benefice by accepting a new benefice or 
 preferment, contrary to the acts against pluralities 7 {q . v.). 
 
 CESTUI QUE TRUST is a person for whom another is trustee. 
 (See Trust ; Beneficiary.) 
 
 CESTUI QUE USE, in the old law of real property, was a person 
 to whose use (that is, for whose benefit) lands or other hereditaments were 
 held by another person. The modern equivalent is the cestui que trust. 
 (See Use.) 
 
 " Cestui que use" is a corruption of cestui d que use = " he to whose 
 use." (See- Cestui que vie.) 
 
 1 Bl. Comm. iii. 232; Termes de la Ley ; 6 Holtz. libi supra ; Banco de Portugal 
 Hargrave's note to Co. Litt. 142 a. v. Waddell, 5 App. Ca. 161. 
 
 2 Co. Litt. 373 a, 380b. e Tomkinsv.Saffery, 3 App. Ca. 213. 
 
 a Williams on Settlements, 253 et seq.. ' Stats. 1 & 2 Vict. c. 106; 13 & 14 Vict. 
 
 4 Hunter's Roman Law, 879; Holtz. c. 98 ; Steph. Comm. ii. 691. 
 Encycl. s. v. 
 
Cestui que vie LAW DICTIONARY. Chambers 135 
 
 CESTUI QUE VIE. — Where a person is entitled to an estate or 
 interest in property during the life of another, the latter is called the 
 cestui que vie. As to the production of a cestui que vie in cases where 
 it is suspected that he is dead, see Production. 
 
 " Cestui que vie" is a corruption of cestui a que vie = "he for whose 
 life :" Compare the phrase " que estate" in the title Prescription. 
 
 CHALLENGE is an objection to persons returned to be jurors in a 
 civil or criminal proceeding. It is of two kinds, — to the array, or to the 
 polls. 
 
 § 2. A challenge to the array is an exception to the whole jury 1 in re- To the army : 
 spect of some partiality or default of the sheriff or other officer. Some principal; 
 causes of challenge to the array are called principal challenges, because 
 if they are true they must be allowed, while others are called challenges 
 for favour, because they show some grounds that imply a probability of for favour, 
 favour or partiality, but are left to the discretion of the triors (q. v.). 
 
 § 3. Challenges to the polls (that is, to particular jurors) are of five To the pits: 
 kinds: (1) A peremptory challenge is where the objecting party may peremptory; 
 challenge without showing any cause ; this is only allowed in trials for 
 treason or felony, infavorem vitce, and is restricted to thirty-five jurors in 
 the former, and twenty in the latter. 2 § 4. The following kinds of chal- for cause. 
 lenges are called by way of distinction " challenges for cause" : 
 (2) Propter honoris respectum, as where a lord of parliament is empannelled 
 on a jury; (3) propter defectum, for some want or derault in the individual 
 juror, e.g. persons not having qualification, idiots, aliens neither domiciled 
 nor naturalized, 3 women, &c. ; (4) propter affectum, for suspicion of par- 
 tiality, which is either (a) a principal challenge, as where the juror is of 
 kin to either party, or has an interest in the cause, &c. ; or (b) a chal- 
 lenge to the favour, where there is merely a probability of bias f 
 (s) propter delictum, for some crime or misdemeanor. 5 § 5. Challenges Triors, 
 are tried and determined by triors appointed by the Court, or, in some 
 cases, by the Court itself, or by persons who have been already sworn on 
 the jury. 6 (See Elisors.) 
 
 CHALLENGE TO FIGHT.— It is a misdemeanor, punishable 
 with fine and imprisonment, to challenge any person to fight a duel, or to 
 endeavour to provoke him to send a challenge. 7 
 
 CHAMBERS. — Attached to the various Divisions of the High Court 
 are rooms called chambers, in which the judges and tKeir deputies, the 
 
 1 "And herein you shall understand that 3 See Juries Act, 1870, s. 8 ; for other 
 
 the jurors' names are ranked in the pannel defects now obsolete, see Co. Litt. 156b. 
 
 one under another ; which order or ranking * Co. Litt. 157 a, b; Steph. Comm. iv. 
 
 the jurie is called the array." Co. Litt. 525. 
 
 156 a. 5 Ibid. 
 
 3 6 Geo. 4, c. 50 ; 7 & 8 Geo. 4, c. 28 ; 6 Steph. 522, 526 ; Chitty, Pr. 433 ; 
 
 Archbold, Crim. PI. 157. Co. Litt. 158 a. 
 
 7 Steph. Crim. Dig. 40. 
 
136 Champarty law dictionary. Chancellor 
 
 masters and chief clerks, sit to transact business which does not require 
 to be done in Court, or can be more conveniently disposed of in cham- 
 bers. 1 The proceedings in chambers are private, only the parties or their 
 solicitors and counsel being admitted. The principal business is hearing 
 summonses (q.v.); but, in the chambers of the common law Divisions, the 
 masters also conduct references and examine witnesses about to proceed 
 abroad, &c, while in the chambers of the Master of the Rolls and the 
 Vice-Chancellors, the judges examine wards of Court, and the chief 
 clerks investigate accounts, conduct inquiries, settle deeds, &c. Some- 
 times also the hearing or further consideration of a cause in the Chan- 
 cery Division is taken in chambers, to save expense ; and some adminis- 
 trative proceedings are conducted entirely in chambers.' (See Appeal ; 
 Summons.) 
 
 CHAMPARTY or CHAMPERTY is the act of assisting the 
 plaintiff in a legal proceeding in which the person giving the assistance 
 has no valuable interest, on an agreement that if the proceeding is suc- 
 cessful, the proceeds shall be divided between the plaintiff and the 
 assisting person. It is a misdemeanor (q. v.). 3 {See. Maintenance.) 
 
 Etymology.]— Norman French: champart;* Latin, campi pars = " part of the 
 field ;" originally the right of a feudal lord to take part of the produce of land cultivated 
 by his tenants. 5 
 
 CHANCE-MEDLEY is where a man is assaulted in the course of 
 a sudden brawl or quarrel, and, after he has declined any further combat, 
 kills his adversary in self-defence. It is a variety of excusable homicide. 6 
 (See Homicide.) Coke paraphrases "chance-medley" as "homicide 
 per infortunium" 7 but it is said that the term is a corruption of chaude 
 meslee, a hot fight. 8 
 
 CHANCEL is that part of a church which was originally set apart 
 for the clergy to perform their religious offices ; it answers to the choir 
 in a cathedral or collegiate church. The rector or lay impropriator is 
 bound to repair the chancel, and in return he is entitled as of common 
 right to the chief seat in it, unless some other parishioner has it by pre- 
 scription." Chancel is derived from cancelli, a lattice-work partition be- 
 tween it and the body of the church. 10 
 
 Lord Chan- CHANCELLOR. — § i . A chancellor is a judicial officer of a king, a 
 
 bishop, or other high dignitary. 
 
 I. § 2. The Lord High Chancellor of Great Britain is "created by the 
 
 1 Judicature Act, 1873, 3. 39 ; Rules of Mookerjee, 2 App. Ca. 186. 
 Court, liv. i Britton, 37 b. 
 
 2 See as to the business to be con- 5 Littre, s. v. 
 
 ducted in the chambers of the equity 6 Russell on Crimes, i. 845. 
 
 judges, 15 & 16 Vict. c. 80; 18 & 19 Vict. 7 Co. Litt. 287 b. 
 
 c. 134 ; Order xxxv. 1 ; Daniell, Ch. Pr. 8 See Bl. Comm. iv. 184 ; Loysel, Inst. 
 
 1040. Cout. gl. ; Littre, s. v. Melee. 
 
 3 Steph. Comm. iv. 237; Pollock on 9 Phill. Eccl. Law, 1785, 1807. 
 Contract, 270; Steph. Crim. Dig. 86. See 10 Ibid. 1776. 
 
 Ram Coomar Coondoo v. Chunder Canto 
 
Chancellor LAW DICTIONARY. Chancellor 137 
 
 mere delivery of the king's great seal into his custody, whereby he 
 becomes, without writ or patent, an officer of the greatest weight and 
 power of any now subsisting in the kingdom, and superior in point of 
 precedency to every temporal lord. He is a privy councillor by his 
 office, and, according to Lord Chancellor Ellesmere, prolocutor (or 
 speaker) of the House of Lords by prescription. To him (under the 
 crown) belongs the appointment of all justices of the peace throughout 
 the kingdom. Being formerly usually an ecclesiastic (for none else were, 
 then capable of an office so conversant in writings), and presiding over 
 the royal chapel, he became keeper of the king's conscience, visitor (in 
 right of the king) of all hospitals and colleges of the king's founda- 
 tion, and patron of all the king's livings under the value of twenty marks 
 per annum in the king's books. 1 He is the general guardian of all 
 infants, idiots and lunatics, and has the general superintendence of all 
 charitable uses in the kingdom." 2 He was formerly the principal judge 
 of the Court of Chancery, and is now president of the Court of Appeal, 
 of the High Court of Justice, and of the Chancery Division of the High 
 Court, and acts as president of the House of Lords when sitting as a 
 Court of Appeal. He is, therefore, of course a barrister, and, as a rule, 
 has previously either been Attorney- or Solicitor-General, or held some 
 judicial office. He is also a cabinet minister, and has charge in the 
 House of Lords of all legal measures brought forward by the government. 
 (See Chancery ; Presentations Office; Vice-Chancellor.) 
 
 II. § 3. The Chancellor of the Duchy and County Palatine of Lan- chancellor of 
 
 caster is an official of the crown as owner of the duchy of Lancaster. P uch y of 
 
 .Lancaster. 
 His duties appear now to be chiefly ministerial, although he is nominally 
 
 the judge of the Chancery Court of the County Palatine, and of the Duchy 
 
 Chamber Court (see those titles). The judicial duties of the former 
 
 Court are performed by the Vice-Chancellor, and the latter Court seems 
 
 rarely to sit. 3 
 
 III. § 4. The chancellor of a bishop or diocese is a judicial officer Chancellor of 
 who acts as the delegate of the bishop in hearing ecclesiastical causes, &c. diocese - 
 The office generally includes in it two other offices— that of official prin- 
 cipal, and that of vicar-general 4 (q. v. and see Court of Arches). 
 
 IV. § 5. The Chancellor of the Exchequer was an officer originally Chancellor of 
 appointed to act as a check on the Lord Treasurer, and was a judge of 
 the Court of Exchequer sitting as a Court of Equity. The office, how- 
 ever, has long ceased to belong to the Exchequer in the modern sense of 
 the word, and has formed part of the Treasury. 5 The judicial functions 
 of the Chancellor of the Exchequer were formally abolished by the 
 Judicature Act; having long been practically obsolete. 
 
 Etymology.] — Latin : cancellarius, a clerk, said to be so called from his sitting ad 
 cancellos, at the railing which separated the judges from the public. 6 Compare Bar. 
 
 1 Twelve canonries and 650 livings are 3 Bl. Comm. iii. 78. 
 now in the gift of the Lord Chancellor: 4 Phillimore, Eccl. Law, 1208. 
 Second Rep. of Legal Deputy Comm. 34. 5 Horn. Cox, Inst. 683; Bl. Comm. iii. 44. 
 
 2 Bl. Comm. iii. 47. See Butler's note 6 See Dirksen, Man. Lat. s. v.; Littre, 
 to Co. Litt. 290 b. Diet. s. v. Chancelier. 
 
 the Exche- 
 
138 
 
 Chancery 
 
 LAW DICTIONARY. 
 
 Chancery 
 
 High Court of 
 Chancery. 
 
 Chancery 
 Division. 
 
 Common law 
 side and offices 
 of the 
 Chancery. 
 
 Lancaster 
 Chancery 
 Court. 
 
 CHANCERY. — I. § i. Before the Judicature Acts came into operation 
 the Chancery consisted of two Courts, and a number of offices. § 2. The 
 court of equity, or the equity side of the Court of Chancery, which is 
 generally meant by the expression " Court of Chancery," was the principal 
 Court in which that part of the law of England known as " equity" {q. v.) 
 was enforced. It consisted of four judges of first instance, namely, the 
 Master of the Rolls (q. v.), and three vice-chancellors (q. v.), and a Court 
 of Appeal, consisting of the Lord Chancellor and two Lords Justices (q. v.). 
 Not only did the law administered in the Court of Chancery differ 
 from that recognized in the Courts of Common Law, but it had also a 
 different procedure. (See Suit; Bill of Complaint; Petition; Matter.) 
 § 3. By the Judicature Acts the Court of Chancery has been merged in the 
 Supreme Court of Judicature, and its practice altered (see Action) ; but 
 its judges of first instance form a separate Division of the High Court, 
 namely, the Chancery Division, which retains most of the business which 
 was formerly within the exclusive jurisdiction of the Court of Chancery ; 
 and in many of its details the practice in Chancery proceedings remains 
 the same as before. The Chancery Division also retains many of the 
 various offices and officers attached to the Court of Chancery, while 
 other have been abolished. (See Account, §§ 5 et seq.; Certificate, §4; 
 Chief Clerk; Equity; Inquiry ; Master; Record and Writ Clerk ; Registrar!) 
 
 § 4. The common law court and offices of the Chancery are much more 
 ancient than the equity court, 1 the jurisdiction of the latter having been 
 originally an encroachment, and hence in old books the equitable jurisdic- 
 tion of the Court is called its extraordinary jurisdiction. The most im- 
 portant part of the common law side of the Court of Chancery was its 
 offices, especially the Petty Bag Office, the Hanaper Office and the Enrol- 
 ment Office, the two former of which were concerned in issuing or sealing 
 original writs, writs of error, parliamentary writs, letters-patent, commis- 
 sions to inquire as to lunatics, charities, &c, while in the Enrolment 
 Office, as its name implies, deeds, &c. were enrolled or entered on 
 record. The Court on this side of the Chancery had jurisdiction in 
 matters relating to the business of the offices — e.g. in proceedings by 
 scire facias to repeal letters-patent, to enforce recognizances, in traverses 
 of 4 offices, and inquisitions, &c. (See Petty Bag Office; Scire Facias; 
 Enrolment; Hanaper. s f 
 
 § 5. By the Judicature Act, 1873, the Court of Chancery, as a common 
 law court, and its offices, were transferred to the Supreme Court of Judi- 
 cature. 3 By the Judicature (Officers) Act, 1 879, the Enrolment Office was 
 consolidated (with others) into the Central Office of the Supreme Court, 
 and the Petty Bag Office is to be abolished on the next vacancy. 
 
 II. § 6. The Court of Chancery of the County Palatine of Lancaster 
 is a Court having a local jurisdiction in equity. It consists of a vice- 
 chancellor, with a registrar and other officers, forming a Court of first 
 
 1 3 Bl. 48. 
 
 - 3 Bl. 48 etseq. ; Gilbert's Chancery, 9 ; 
 Chitty's Pr. 1757; DanieU's Ch. Pr. ii. 
 
 1608 ; Wms. Saund. ii. 15. 
 3 Jud. Act, 1873, ss - I0 . 77- 
 
Chancery LAW DICTIONARY. Chapels 139 
 
 instance, from which an appeal formerly lay to the " Court of Appeal in 
 Chancery of the County Palatine of Lancaster," consisting of the Chan- 
 cellor of the Duchy and the Lords Justices of the Court of Appeal in « 
 Chancery; 1 but by the Judicature Acts, 1873, 1875, this appellate jurisdic- 
 tion has been transferred to the Court of Appeal of the Supreme Court. 3 
 
 § 7. The Chancery Court of York is the ecclesiastical Court of Appeal Chancery 
 for cases decided in the diocesan Courts within the province of York. 3 .york" ° 
 The judge is called the official principal of the Court ; he is also official 
 principal of the Court of Arches (q. v.)} 
 
 Etymology and History.] — Norman French: chauncelerief low Latin cancel- 
 laria,* from cancellarius, a chancellor. 
 
 The Chancery was originally an office for the issue of writs, 6 including the original 
 writs by which all common law actions were commenced in ancient times. It was the 
 business of the clerks in the Chancery to "hear and examine the petitions and complaints 
 of suitors, and give them a remedy by the king's writ fitted to their case." 7 The 
 Chancellor being keeper of the king's seal also had the sealing of all charters, letters 
 patent, and other public instruments ; 9 hence when any question arose on a charter, 
 patent, commission, &c, proceedings were taken before the Chancellor; this was the 
 origin of its common law jurisdiction. As to its equitable or extraordinary jurisdiction, 
 see Equity ; Subpoena; Attachment; Commission of Rebellion. 10 
 
 CHAPELS belonging to the Church of England are of the following 
 kinds. § 1. A chapel of ease is one which is used only for the ease of the Chapel of 
 parishioners in prayers and preaching, while the sacraments and burial ease ' 
 are received and performed at the mother church ; the curate of such a 
 chapel is generally removable at the pleasure of the parochial minister. 
 § 2. A parochial chapel is one which has the privilege of administering Parochial, 
 the sacraments (especially baptism), and the office of burial. § 3. A free- Free, 
 chapel is one which is exempt from the jurisdiction of the bishop of the 
 diocese, having been erected either by the crown, or by the crown's 
 licence, with that exemption. § 4. Private chapels are such as noblemen Private, 
 and other persons have, at their own private charge, built in and near 
 their own houses, for them and their families to perform religious duties 
 in. The minister is called a chaplain, and is nominated by the owner of 
 the chapel. 11 § 5. There are also chapels built or endowed under acts of 
 parliament, especially under the Church Building and Church Extension 
 Acts ; the principal of these are (i) district chapelries or chapels to which District 
 districts have been assigned by the Ecclesiastical Commissioners ; such cna P elnes - 
 chapels have perpetual curates, with tithes, and exclusive cure of souls, 
 and differ from churches in little more than name; 13 (ii) consolidated Consolidated 
 chapelries, which differ from district chapelries chiefly in being formed cha P elnes - 
 
 1 Stat. 13 & 14 Vict. c. 43; 17 & 18 4 Public "Worship Regulation Act, 1874. 
 Vict. c. 82. As to the jurisdiction of the 6 Britton, 37 b, 122 b. 
 
 Court, see In re Alison's Trusts, 8 Ch. D. 6 " Officium quod dicitur cancellaria," 
 
 I ; In re Longden, cVc. Co., ibid. 150. Fleta, 75. 
 
 2 Jud. Act, 1873, s. 18. New rules for 7 Reeves, ii. 251. 
 
 the procedure of the Court were issued at 8 See Reeves, Eng. Law, i. 60; ii. 250. 
 
 the end of 1876. Since the above article 9 Gilbert's Chancery, 12. 
 
 was written, a treatise on the Practice of the 10 Bl. Comm. ii. 50 et seq. ; 4 Inst. 78. 
 
 Court, by Messrs. Snow and Winstanley, n PhiU. Eccl. Law, 1821. 
 
 has appeared. n Ibid. 2171. 
 
 3 Phillimore, Eccl. Laws, 1207. 
 
140 
 
 Chapter 
 
 LAW DICTIONARY. 
 
 Charge 
 
 Chapels with- 
 out districts. 
 
 Of party. 
 
 Of witness. 
 
 out of portions of many parishes j 1 (iii) chapels to which an endowment, 
 without a district, has been granted by the Commissioners. 3 
 
 CHAPTER. See Dean and Chapter. 
 
 CHARACTER. — § i. Evidence as to the character of a party to a 
 judicial proceeding is not, in general, admissible, unless the nature of the 
 proceeding is such as to put his character in issue. Such evidence is, 
 therefore, admissible on an indictment for keeping a common gaming- 
 house, or for being a common barretor, if it bears on the charge ; and 
 so, in an action for seduction, or in a prosecution for rape, evidence may 
 be given as to the character of the woman for chastity. 3 A prisoner may 
 call witnesses to speak to his character in reference to the charge against 
 him, and the prosecutor may then adduce evidence of his general bad 
 character, but he cannot go into particular instances of misconduct, 
 except in the case of a prisoner charged with felony not punishable with 
 death, for if he calls witnesses as to character, the prosecutor may, in 
 answer thereto, give evidence of his conviction for a previous felony. 4 
 § z. Evidence is also admissible to show that a witness is unworthy of 
 credit by reason of his general bad character ; and if he is asked whether 
 he has been convicted of felony or misdemeanor, and denies or refuses 
 to answer, the opposite party may prove the conviction. 5 
 
 On property. 
 
 Charge of 
 debts or 
 legacies. 
 
 CHARGE. — I. § i. In its general sense, a charge is an obligation or 
 liability. Thus we speak of a district being chargeable to maintain its 
 own highways, and of a pauper being chargeable to the parish. 
 
 § 2. More frequently, however, charge is applied to property, and 
 signifies that it is security for the payment of a debt or performance of 
 an obligation. It is a general term, and therefore includes mortgages, 
 liens, writs of execution, &c, but is also applied in a restricted sense to 
 cases where the security has no special name, and where there is not 
 necessarily a personal debt. Thus, if the owner of land agrees that it 
 shall be security for a debt or obligation by himself or another person, 
 that will charge the land ; s the principal effect of such a charge is to 
 entitle the grantee to take proceedings to obtain a sale of the property 
 charged. 7 (See Hypothecation.') 
 
 § 3. Where a person by his will charges his real estate with the pay- 
 ment of any debts or legacies, the executors or trustees may raise such 
 debts or legacies by sale or mortgage of the lands, unless he has devised 
 them to any person for his own benefit subject to the charge, in which 
 case the devisee (if he accepts the devise) must satisfy the debts or 
 legacies ; 8 for this purpose he may sell or mortgage the land. 
 
 1 Phill. 2172. 
 
 a Ibid. 2168. 
 
 3 Best on Evidence, 358. 
 
 4 Stat. 6& 7 Will. 4, c. in. 
 
 5 Stats. 17 & 18 Vict. c. 12;, s. 2t; : 28 
 Vict. c. 18. 
 
 6 Fisher on Mortgage, 78. 
 
 7 See Fisher, 8, 77. 
 
 8 Williams, R. P. 219; stat. 22 & 23 
 Vict. c. 35, ss. 14 etseq.; Shelford, R. P. 
 Stat. 484. 
 
Charge law dictionary. Charge a" 'Affaires 141 
 
 § 4. " Charge" is also applied to equitable assignments by way of Equitable 
 security. (See Assignment, §§ 3, 5.) Thus, if A., being entitled to a pay- assignment, 
 ment in futuro of 500/. from B., and being indebted to C. for 200/., gives 
 C. an order on B. to pay him 200/. out of the 500/., this is an equitable 
 assignment, and would be called a "charge" on the 500/. in B.'s hands, 
 because its operation is to secure the payment of C.'s debt. 1 
 
 § 5. By the stat. 23 & 24 Vict. c. 127, s. 28, where a solicitor is em- Declaration of 
 ployed to prosecute or defend any proceeding in a Court, the Court may chav 2 e - 
 make a declaration that the solicitor is entitled to a charge upon the 
 property recovered or preserved by the proceeding, and the charge is 
 effectual against all persons, except bona fide purchasers of the property 
 for value without notice. 2 
 
 § 6. Under the Land Transfer Act, 1875, the registered proprietor of Registered 
 freehold or leasehold land may charge it with the payment of money, with cnar S e - 
 or without a power of sale, by executing an instrument of charge in the 
 statutory form, and by having the charge entered on the register. 3 It 
 has most of the incidents of an ordinary mortgage. 4 The proprietor of 
 the charge is entitled to a certificate of charge. 5 
 
 § 7. Under the Agricultural Holdings Act, 1875, when a landlord pays Charge on 
 to his tenant compensation in respect of improvements effected by the holdm S- 
 latter on the land, he may obtain from the County Court of the district 
 a charge of the amount on the land, the effect of which is to make the 
 land liable for the repayment of the amount by instalments to the land- 
 lord, his executors, administrators and assigns, so that where he is merely 
 a limited owner {e. g. a tenant for life) the amount will be repaid to him 
 or his personal representatives if his estate comes to an end before the 
 time when the improvement in respect of which the compensation was 
 paid is taken to be exhausted. This time varies with the nature of the 
 improvement. 6 (See Agricultural Holdings Act.) 
 
 § 8. In an action for an account in the Chancery Division, a person is In action for 
 said to be charged with sums which he admits, or is proved to have account - 
 received. When he brings in an account showing receipts and payments 
 by him, he is said to charge himself with the receipts, and to discharge 
 himself by the payments. 7 (See Discharge ; Surcharge.) 
 
 II. § 9. In criminal law a charge is an accusation, made by a sum- Criminal law. 
 mons, warrant, information, indictment or the like. (See those titles.) 
 
 III. § 10. Under the old chancery practice, charges were allegations in a bill of com- 
 plaint intended either to substantiate the general statement of the plaintiffs case, or to 
 avoid a defence which he anticipated that the defendant would set up. (See Bill of 
 Complaint, § 6.) 
 
 CHARGE D'AFFAIRES is a diplomatic agent, differing from 
 an ambassador or minister in being accredited to the minister, not the 
 
 1 See In re Lewer, Ex parte Wilkes, 4 * Sects. 23—27. 
 
 Ch. D. 101. 5 Sect. 22. 
 
 3 Daniell, Ch. Pr. 1721. See Pitcher ° 38 & 39 Vict. c. 92, s. 42. 
 
 v. Arden, 7 Ch. D. 318. 7 As to the old practice of bringing in 
 
 3 Sect. 22 ; General Rules, 20, Form charges and discharges in the master's 
 
 20. office, see Daniell, Ch. Pr. 11 22, n. («). 
 
142 Charging Order law dictionary. Charity 
 
 sovereign, of the foreign state where he resides, and in representing a 
 minister and not the sovereign of his own state. 1 
 
 CHARGING ORDER.— § i. By i & 2 Vict. c. no, ss. 14—16, 
 and 3 & 4 Vict. c. 82, when judgment has been recovered in an action a 
 judge at chambers may make an order that any government stock, funds 
 or annuities, or any stock or shares in a public company in England, 
 standing in the name of the judgment debtor in his own right, or in the 
 name of any person as trustee for him, shall stand charged with the 
 payment of the judgment debt. 2 The effect is to prevent the transfer of 
 the stock, and to give the judgment creditor all the remedies which he 
 would have been entitled to if the charge had been made in his favour 
 by the judgment debtor, but he cannot enforce it until six months from 
 the date of the order. 3 
 
 § 2. As to so-called charging orders under stat. 23 & 24 Vict. c. 127, 
 see Charge, § 5. 
 
 (See Distringas ; Stop Order.) 
 
 CHARITABLE TRUSTS ACTS (stats. 16 & 17 Vict. c. 137; 18 & 19 
 Vict. c. 124; 23 & 24 Vict. c. 136; 25 & 26 Vict. c. 112; and 32 & 33 Vict. 
 c. 1 1 o) 4 were passed to constitute a board of commissioners called the 
 Charity Commissioners, with powers for inquiring into the nature, objects, 
 condition and management of charities, and for giving advice and direc- 
 tions, and making orders for the administration of charity property, and for 
 authorizing leases, sales, and exchanges of charity lands. A mode of 
 applying to the Chancery Division in matters relating to charities, by 
 petition or summons, in a summary way, is also provided. The acts do 
 not apply to unendowed charities. 5 (See Charity, § 3; Scheme; Official 
 Trustees of Charitable Funds and Charity Lands.) 
 
 CHARITABLE USES ACT is the act 9 Geo. 2, c. 36, which pro- 
 hibits gifts to charities of land, or moneys arising from or to be laid out in 
 land, unless made in accordance with the provisions of the act. It is com- 
 monly, but inaccurately, known as the Mortmain Act, 6 (See Mortmain.) 
 
 CHARITY. — § 1. When a person gives money or property for the 
 benefit of the public, or a section of the public, this constitutes a 
 _ charitable gift, and the donor is called the founder of the charity. In 
 practice, however, the term is usually applied to institutions of a perma- 
 nent character, such as hospitals, schools, &c. The object must be 
 'Private" public, and therefore gifts for the erection or repair of private tombs or 
 monuments (so-called private charities) are not charities in the proper 
 sense of the word. 7 Instances of proper charities (sometimes called 
 
 1 Manning's Law of Nations, 106. 5 Tudor's Charitable Trusts, 1 89; Steph. 
 
 a Smith's Action, 211; Rules of Court, Coram, iii. 74; Daniell's Ch. Pr. 1766; 
 
 xlvi. 1. Hunter's Suit, 246. 
 
 3 1 & 2 Vict. c. no, s. 14; Fisher on 6 See Luckraft v. Pridham, 6 Ch. B. 
 Mortgage, 113 et seq. 205. 
 
 4 See also Sir Samuel Romilly's Act, ' Watson's Comp. Eq. 42. 
 52 Geo. 3, c. 101. 
 
 charities. 
 
Charter law dictionary. Charter-party 143 
 
 public charities) are gifts for the relief of aged, poor and sick persons, 
 
 for the relief of the donor's poor relations, for education, for the repair 
 
 of bridges, towards payment of the national debt, &C. 1 § 2. When a Ecclesiastical, 
 
 charity has to be administered with reference to the tenets of a particular eleemosynary. 
 
 religion {e. g. where its purpose is education in those tenets, or where its 
 
 objects must be persons holding those tenets), the charity is said to be 
 
 ecclesiastical, as opposed to a lay or eleemosynary charity, which is not 
 
 restricted with reference to any particular religion. 2 § 3. An endowed Endowed 
 
 charity is one which possesses property from which it derives income, cnariti es. 
 
 and which was originally given to it for the purpose of being kept as a 
 
 source of income; a charity, therefore, which is supported wholly or 
 
 partially by voluntary subscriptions is (wholly or partially) an unendowed 
 
 charity ; and neither money arising from voluntary subscriptions, nor 
 
 property given to a charity in such a way that it might legally be applied 
 
 as income, is converted into an endowment merely by being set apart or 
 
 invested for the purpose of being applied to some denned and specific 
 
 object connected with the charity. 3 
 
 (See Charitable Trusts Acts ; Mortmain; Information; Scheme; Cypres; 
 Visitor.) 
 
 CHARTER formerly meant any deed relating to hereditaments, es- 
 pecially deeds of feoffment, 4 but it is now always used in the sense of a 
 royal charter, which is a grant by the crown, in the form of letters patent 
 under the great seal, to persons therein designated, of jura regalia or 
 other franchises, liberties, property, rights, powers, privileges or immuni- 
 ties. 5 At the present day the most usual instances of charters are those 
 creating universities and other corporations. (Old French: chartre, 
 Latin charta.) 
 
 (See Letters Patent ; Corporation; Surrender.) 
 
 CHARTER-PARTY is a written agreement by which a shipowner 
 lets an entire ship, or a part of it, to a merchant for the conveyance of 
 goods, binding himself to transport them to a particular place for a sum 
 of money which the merchant undertakes to pay as freight for their car- 
 riage. 6 The principal stipulations in an ordinary charter-party refer to 
 the places of loading and delivery, the mode and time of paying the 
 freight, the number of laying days (that is, the time allowed the freighter 
 for loading and unloading), and the rate of demurrage {q. v.)? 
 
 Etymology.] — Carta partita, an instrument or deed cut in two; apparently the ship- 
 
 1 See the quaint enumeration in stat. The Governors of the Charity for Widows, 
 43 Eliz. c. 4, from which the legal idea of <2fc. of Clergymen v. Sutton, 27 Beav. 
 a charity is taken, and cases cited, "Watson, 651 ; In re Sir R. Peel's School, L. R., 3 
 opetseq.; Daniell's Ch. Pr. 1760; Tudor's Ch. 543. 
 
 Char. Trusts Act, 4. 4 Co. Litt. 7 a, 9 b. 
 
 2 Att.-Gen. v. St. John's Hospital, 2 5 Grant on Corporations, 9 ; Lindley on 
 Ch. D. 554 ; Tudor's Char. Trusts, and the Partn. 154. 
 
 cases cited. 6 Maude and Pollock, Merch. Shipp. 
 
 3 See sects. 62 and 66 of the Charitable 227. 
 
 Trusts Act, 1853 ; and as to their con- 7 See the form, ibid. 228. 
 
 struction (which is not free from difficulty), 
 
144 
 
 Chase 
 
 LAW DICTIONARY. 
 
 Cheat 
 
 owner's copy and the merchant's copy were originally written on the same sheet of paper 
 or parchment, which was then cut in two, in the same manner as an indenture (q. v.). 
 (See Affreightment.) 
 
 CHASE is a district of land privileged for wild beasts of chase, with 
 the exclusive right of hunting therein. It resembles a forest {q. ».), 
 Royal. except that it has no peculiar laws or courts. § 2. A chase belonging to 
 
 Free. the crown is called a chase royal ; a chase in the hands of a subject 
 
 (whether by royal grant or by prescription) is sometimes called a free 
 (or frank) chase ; it is a franchise {q. v.), and may belong either to the 
 owner of the land over which the right of chase exists, or to another 
 person. 1 
 
 Etymology.] — Norman French : chace,' 1 from chacier ; Italian cacciare, to hunt, most 
 probably from a Romanic form, captiare, of the Latin capture, to pursue, hunt. 3 
 
 Chattels real. 
 
 Chattels per- 
 sonal. 
 
 CHATTELS is a term used to denote any kind of property which, 
 having regard either to the subject-matter or the quantity of interest 
 therein, is not freehold. Any estate in lands and tenements which does 
 not amount to freehold is consequently a chattel, but inasmuch as it 
 concerns or "savours" of the realty, it is called a chattel real, to dis- 
 tinguish it from things which have no concern with land, viz. mere 
 moveables and rights connected with them, all of which are called 
 chattels personal. Chattels real include estates for years, at will, by 
 sufferance, wardships, and various interests of uncertain duration. 4 (See 
 Estate; Interest?) 
 
 § 2. The term " chattels personal" is generally applied to tangible 
 things, such as furniture, jewels, animals and the like. Choses in action 
 (q. v.) and incorporeal personal property, such as copyrights, patent 
 rights, and the like, are not generally included in the term chattels. 5 
 (See Personal Property.) 
 
 CHAUD- MEDLEY. See Chance- Medley. 
 
 CHAUNTRY was a church or chapel endowed with lands or other yearly revenues 
 for the maintenance of one or more priests, to sing mass daily for the souls of the donors 
 and such others as they appointed. 6 Chauntries were abolished by the acts 37 Hen. 8, 
 c. 4, and 1 Edw. 6, c. 14, and their lands given to the crown. 7 
 
 CHEAT in criminal law is a generic term for the act of fraudulently 
 obtaining the property of another by any deceitful practice not amounting 
 to felony, but of such a nature that it directly affects or may directly 
 affect the public at large. Thus, selling by a false weight or measure, 
 
 1 C0.Litt.233 a; Manwood, Forest, 6b; 
 Comyns, Dig. Chase, B. 
 
 2 Britton, 138 b. 
 
 3 Die/., Wortb. i. 97. 
 
 4 Steph. Comm.i. 280; Co. Litt. 118b. 
 6 See Litt. §§ 281, 282, where he treats 
 
 of debts and duties as distinct from chattels 
 
 personal, such as a horse. Coke, however, 
 talks of chattels in possession and chattels 
 in right, which latter appear to be the same 
 as choses in action. Co. Litt. 182 a. 
 
 6 Termes de la Ley; Litt. § 530. 
 
 1 Co. Litt. 301 b. 
 
Cheat LAW DICTIONARY. Cheque 145 
 
 even to a single person, is a cheat, while selling short measure or weight 
 (no false weights or measures being used) is not, because it only affects 
 the person actually defrauded. So, maiming oneself in order to have a 
 pretext for begging is a cheat. 
 
 Every cheat is a misdemeanor (q. v.) x 
 
 (See False Pretences.) 
 
 CHEQUE, — § 1. A cheque is an order addressed by a person to his 
 banker, requiring him to pay a certain sum to a person therein indicated 
 on demand. The person making the cheque is called the drawer, and 
 the person to whom it is payable the payee. 
 
 § 2. A cheque resembles a bill of exchange in many respects : thus, it 
 is a negotiable instrument, unless its negotiability is qualified or re- 
 strained ; it may be made payable to order or bearer ; and the liability of 
 the drawer resembles that of the drawer of a bill. 2 But there are several 
 special rules and usages applying to cheques and not to bills, and it is, 
 therefore, not strictly accurate to say (as is sometimes done), 3 that a 
 cheque is an inland bill of exchange ; thus, the drawer of a cheque is not 
 discharged by the holder's failure to present in due time, unless he has 
 sustained actual prejudice from the delay, as by the failure of the banker ; 
 again, a banker who pays a cheque to order on a forged indorsement of 
 the payee's name, is not liable to his customer for the amount ; 4 and the 
 negotiability of a cheque may be restrained by means not applicable to 
 bills of exchange. 
 
 § 3. The negotiability of a cheque may be restrained by crossing it. Crossed 
 When the cheque bears across its face two parallel lines (with or without c™'!' 168, 
 the words " and Company," or an abbreviation thereof), it is said to be 
 crossed generally. When it bears across its face the name of a banker, 
 it is said to be crossed specially, and to be crossed to that banker. To 
 a crossing, whether general or special, may be added the words " not 
 negotiable." § 4. When a cheque is crossed generally, the banker on General 
 whom it is drawn must not pay it across the counter, but can only crossul g- 
 pay it to another banker ; in other words, the holder of such a cheque 
 cannot obtain payment of it unless he has an account with some banker. 
 When a cheque is crossed specially, the banker on whom it is drawn Special 
 can only pay it to the banker to whom it is crossed ; in other words, the crossing, 
 holder of that cheque cannot obtain payment of it unless he has an 
 account with the banker to whom it is crossed. § 5. When a cheque "Notne- 
 bears the words "not negotiable," in addition to the crossing, the holder gobble." 
 of it cannot give a transferee a better title than he has himself. 5 
 
 Etymology.] — To check is to control or verify, especially applied to that kind of 
 
 1 Stephen's Crim. Dig. 254 ; Russell on protects a banker who collects an ordinary 
 
 Crimes, ii. 511 et seq. crossed cheque for his customer, although 
 
 . z Keeney. Beard, 8 C. B., N. S. 372; there may be some defect in the latter's 
 
 Eyre v. Waller, 5 H. & N. 460; 29 L. J., title {Matthiessen v. London and County 
 
 Ex. 246. Bank, 5 C. P. D. 7) ; but this would not 
 
 3 Byles on Bills, 13; HopMnson v. be so if the cheque were crossed " not ne- 
 Forster, L. R., 19 Eq. 74. gotiable." 
 
 4 Byles,i9; Stat. i6&i7"Vict.c.59, s. 19. 5 Crossed Cheques Act, 1876, repealing 
 The Crossed Cheques Act, 1876 (s. 12), also 19 & 20 Vict. t. 25, and 21 & 22 Vict. c. 79. 
 
146 Chevage law dictionary. Chief Judge 
 
 regulation or supervision which is exercised by one department of an office over 
 another. The original meaning of the word was to stop, derived from the expression 
 check-mate (Persian shdh-mdt, " the king is dead," used in the game of chess). Hence 
 check or cheque was applied to slips of paper of which a piece was torn off to serve as a 
 counterfoil or tally. For a sketch of the history of cheques, see Cohn " Zur Geschichte 
 der Checks," Zeitschrift fur vergl. Rechtsw. i. 117; and for an account of the functions 
 which cheques fill in the money market, see Jevons on Money, 240 et seq. 
 
 CHEVAGE is a sum of money formerly paid by villeins to their lords in acknow- 
 ledgment of their bondage. It seems also to have signified a sum of money paid to a 
 man of power and might for his protection. 1 It comes from the Norman French, chief, 
 chef, a head or superior. 2 
 
 CHIEF. See Examination ; Evidence; In capite; Lord Chief Baron ; 
 Lord Chief fustice ; Rent. 
 
 CHIEF CLERKS of the Master of the Rolls and Vice-Chancellors 
 are officers who transact the principal judicial business in the chambers 
 of the Chancery Division of the High Court. There are three to each 
 judge. They act as the deputies of the judges in making orders relating 
 to the ordinary conduct of an action, such as orders for time, amend- 
 ment, discovery, &c, and in questions of administrative detail, such as 
 those relating to the maintenance, guardianship, &c. of infants, and the 
 management of settled estates and companies in liquidation {e. g. orders 
 for calls and the adjudication and payment of claims by creditors). They 
 also answer inquiries and take accounts referred to them by the judges ; 
 the result is embodied in what is called the chief clerk's certificate (see 
 Certificate, § 4), and they settle conveyances and other documents re- 
 quiring the sanction of the judge, with or without the assistance of the 
 conveyancing counsel (q. v.). The chief clerks and their subordinates 
 are merely deputies of the judge ; consequently all orders, &c. are drawn 
 up in the name of the judge, not of the chief clerk, and every party to the 
 proceeding is entitled as a matter of right to bring the question before 
 the judge in person. 3 The chief clerks are assisted by junior clerks, who 
 prepare the draft certificates, minutes of orders, &c, vouch accounts, and 
 hear summonses and applications relating to matters of routine, such as 
 summonses for time and affidavits of documents ; there are also additional 
 and assistant clerks. 4 (See Master.) 
 
 CHIEF JUDGE is the judge of the London Bankruptcy Court. 
 The Bankruptcy Act, 1869, provides for the appointment of one of the 
 commissioners of the old London Bankruptcy Court as the first chief 
 judge of the present Court, and for the appointment of subsequent 
 judges. 5 He may delegate his powers to the registrars of the Court. 6 
 (See Bankruptcy Courts.) 
 
 1 Co. Litt. 140 a; Termes (Je la Ley, « Second Rep. of Leg. Dep. Comm. 
 
 ■J\ , T (1874), 58; Daniell, Ch. Pr. 1042; stat. 
 
 - Loysel, Inst. Cout. Gloss. 15 & 16 Vict. c. 80. 
 
 ■' Darnell, 1045. s Sects. 6l, 128. 
 
 6 Sect. 6;. 
 
Child LAW DICTIONARY. Chose 147 
 
 CHILD— CHILDREN.— § 1. As to the status of children in civil 
 law, see Infants and Minors. The criminal law contains various provi- 
 sions for the protection of children (see Abduction ; Abandonment, § 3); 
 also stats. 24 & 25 Vict. c. 100, and 27 & 28 Vict. c. 47 (as'to the kid- 
 napping, stealing and abusing of children) ; stat. 35 & 36 Vict. c. 38 
 (regulating houses for the nursing arid maintenance of children apart 
 from their parents) ; the Poor Law Amendment Act, 1868, s. 37 (making 
 parents who neglect their children liable to imprisonment) ; the Factory- 
 Acts, 1833 to 1 87 1 ; the Workshop Acts, 1867 to 1871, and other acts 
 regulating the employment of children in occupations likely to be in- 
 jurious to health ; and the Education Acts (g. v.). (See also Affiliation ; 
 Guardian; Maintenance; Necessaries; Parent and Child '.) 
 
 § 2. As a technical term, in legal instruments, " child " is always con- 
 strued to mean a legitimate, as opposed to an illegitimate, child (see 
 Bastard). Hence, where a testator, having married a woman by whom 
 he had had illegitimate children, but no legitimate children, left his pro- 
 perty to " my children by her,' ; it was held that the illegitimate children 
 could not take. 1 If the testator had used words sufficient to identify the 
 children as personce designates, the gift would have been effectual in their 
 favour. 
 
 CHIROGRAPH— CHIROGRAPHER anciently signified a deed 
 of two parts which' were written on the same paper or parchment, with 
 the word chirographum in capital letters between the two parts : the paper 
 or parchment was then cut through the middle of the letters, and a part 
 given to each party. If the cutting was indented, the deed was an in- 
 denture. 2 § 2. When fines of land were in use, the last step in the pro- Of fine, 
 cess of levying a fine was the chirograph, which was an engrossment of 
 the substance of the whole matter, beginning Hac est finalis concordia, and 
 was retained by the purchaser as one of his title deeds. It was conclusive 
 evidence of the fine. The officer who made the engrossment was called 
 the chirographer. 3 (See Fine.) 
 
 CHIVALRY. See Guardian; Knight-service. 
 
 CHOSE. — § 1. A chose is a chattel personal 4 (see Chattel); and is 
 either in possession or in action. 
 
 § 2. Choses in possession are moveable chattels, — such as furniture, ^ possession, 
 horses, and generally all goods and merchandise. 
 
 § 3. A chose in action is a right of proceeding in a Court of law to I n action, 
 procure the payment of a sum of money (e. g. a bill of exchange, a policyof 
 insurance, 6 an annuity, 6 or a debt), or to recover pecuniary damages for the 
 
 1 Dorin v. Dorin, L. R., 7 H. L. 568. 6 See Bro. Abr. s. v. ; Hargrave's note 
 
 2 Madox, Form. Ang. ii. 29 ; Co. Litt. to Co. Litt. 144 b ; Dicey on Parties, 67 ; 
 143 b, and note. Bl. Comnft ii. 389.' A right of presenta- 
 
 3 Ley's Case, 5 Rep. 39 a; Williams on tion to a benefice when the church is vacant 
 Seisin, 107 ; Madox, 217. is called in the old books a chose in action 
 . *. Williams, P. P. 4. (Cro. El. 174, 788); but this use of the 
 
 8 Ex parte Ibbetson, 8 Ch. D. 519. word is obsolete. It is not impossible 
 
 L2 
 
148 
 
 Chose 
 
 LAW DICTIONARY. 
 
 Chose 
 
 Legal, infliction of a wrong or the non-performance of a contract. 1 Originally 
 
 the term was only applied to a right of action in the strict sense, that is, 
 the right to bring an action at law, but subsequently it was extended to 
 
 equitable. the right of taking proceedings in equity ; thus the right to take pro- 
 ceedings to recover a legacy, or to recover a trust fund which has been 
 misapplied by the trustee, is an equitable chose in action. 2 The distinc- 
 tion is still of importance, as the provisions of the Judicature Act relating 
 to assignment of choses in action are limited to legal choses in action 
 
 Assignment, {infra, § 4). 3 § 4. Formerly choses in action were of two classes, namely, 
 those which were assignable at law, and those which were only assignable 
 in equity. Originally the only choses in action assignable at law were 
 bills of exchange and similar negotiable instruments. Most other choses 
 in action were only assignable by the device of allowing the assignee to 
 sue in the name of the assignor. 4 Debts and equitable choses in action 
 were assignable in equity ; but it was necessary for the assignee to give 
 notice of the assignment to the debtor or trustee in order to preserve his 
 priority. (See Assignment, § 5). By the Judicature Act, 1873,° any abso- 
 lute assignment of a legal chose in action, followed by express notice in 
 writing to the debtor, trustee or other person from whom the chose in 
 action is due, operates to pass the legal right to the chose in action to 
 the assignee from the date of the notice, subject to any equities affecting 
 it. 8 Every assignment not falling within the words of this enactment 
 remains subject to the former rules ; therefore, an absolute assignment of 
 an equitable chose in action, or an assignment of a legal or equitable 
 chose in action by way of charge, is effectual only in equity. As, how- 
 ever, the High Court is bound to give relief in all cases in which it would, 
 before the Judicature Act came into operation, have been given by a Court 
 of Equity,' the distinction between the two kinds of choses in action is 
 not of practical importance, except, perhaps, with reference to the division 
 of the Court in which relief should be sought. 
 
 § 5. Choses in action are of two classes, those which are immediately 
 reducible into possession (see Reduction into Possession), and those which 
 
 Reversionary, are reversionary, such as a reversionary interest in consols. The latter class 
 were formerly of importance, from the fact that a reversionary chose in 
 action belonging to a married woman could not be disposed of by her or 
 the husband, or both together. Now, however, a married woman can 
 dispose of any reversionary interest in personalty (with certain exceptions) 
 by deed acknowledged. 8 
 
 that "chose in action" originally denoted 
 a right of doing something, and had no 
 necessary connection with legal proceed- 
 ings. (See Chattel, note ( 5 ).) 
 
 1 Williams, P. P. 4 ; Watson's Comp. 
 Eq. 328. 
 
 2 Williams, 6 ; Pigottv. Stewart, W. N. 
 (1875), 69. 
 
 3 Judicature Act, 1873, s s- 24, 25. 
 
 4 As to policies of life insurance, see 
 stat. 30 & 31 Vict. c. 144. 
 
 6 Sect. 25, § 6. As to the reason for 
 
 the old prohibition against assigning choses 
 in action, see Spence's Eq. ii. 850; Mr. 
 F. Pollock on " The Personal Character of 
 Obligations in English Law," Law Mag. 
 1874. 
 
 6 Sect. 25, } 6. How a legal chose in 
 action can be received or claimed from a 
 trustee is not easy to understand. The 
 word legal is probably a mistake. 
 
 7 Sect. 24. 
 
 8 20 & 21 Vict. c. 57 ; Watson's Comp. 
 E q- 334 ; Williams, P. P. 379. 
 
Church law dictionary. Cinque Ports. 149 
 
 § 6. Patents, copyrights, trade marks and similar rights, are generally 
 classed as incorporeal personal property. (See Personal Property.) 
 
 CHURCH is a building consecrated for divine service according to 
 the rites of the Church of England, and having an incumbent for the 
 cure of souls within the parish in which the church is situated. Churches 
 are divisible into — (a) what are commonly called parish churches, or 
 churches belonging to original parishes ; and (b) churches belonging to 
 new parishes, formed by the separation or sub-division of original 
 parishes under the provisions of the early Church Building Acts, 1 and 
 the acts relating to the Ecclesiastical Commissioners. 2 (See. Parish; also 
 Chancel; Chapel.) 
 
 CHURCH DISCIPLINE ACT is the stat. 3*4 Vict. c. 86, con- 
 taining regulations for trying clerks in holy orders charged with offences 
 against ecclesiastical law, and for enforcing sentences pronounced in such 
 cases. 3 (See Public Worship Regulation Act.) 
 
 CHURCH-RATE is a rate levied by the churchwardens of a parish 
 for the repair of the church. Formerly such rates appear to have been 
 recoverable in the ecclesiastical Courts ; but now the payment of them is 
 voluntary, except where they are levied under local acts of parliament, 
 either (a) in lieu of tithes or for other good consideration ; or (b) to pay 
 off money borrowed on the security of church-rates. 4 
 
 CHURCHWARDENS " are parochial officers for several purposes, 
 and are to inspect the morals and behaviour of the parishioners, as well 
 as to take care of the goods and repairs of the church." 5 They are a 
 corporation for the purpose of the custody of the ornaments of the 
 church, 8 and levy the church-rate (q. v.)? (See Corporation, § 6.) 
 
 CHURCHYARD. — By the common law, the rector of a church has 
 the freehold in the churchyard, subject to the rights of the parishioners. 8 
 (See Burial.) 
 
 CINQUE PORTS are the five harbours of Hastings, Romney, 
 Hythe, Dover and Sandwich. " On these ports extensive privileges were 
 conferred by our early sovereigns, particularly by William the Conqueror 
 and King John ; and two other towns, Winchelsea and Rye, were subse- 
 quently added to their number. From their position, lying more imme- 
 diately exposed to attacks from the French coast, they were supposed to 
 be among the most important places in the kingdom, and were placed 
 
 > Stat. 58 Geo. 4, c. 45; 59 Geo. 3, 4 Stat. 31 & 32 Vict. c. 109; Phffl. 
 
 c 134; 3 Geo. 4, t. 72. Eccl. Law, 1816; Steph. Comm. ii. 698. 
 ' 2 Phill. Eccl. Law, 1755 et seq., 2167. 6 Phill. Eccl. Law, 1837 etseq. 
 
 3 Phill. Eccl. Law, 1314 ; Reg. v. Bishop 6 Ibid. 1839. 
 
 of Oxford, 4 Q. B. D. 245. S2S- I ItCojPy V 394- 
 
 " Phill. Eccl. Law, 1779. 
 
150 
 
 Circuits 
 
 LAW DICTIONARY. 
 
 Circumstantibus 
 
 Commission- 
 ers. 
 
 Admiralty 
 Court. 
 
 under the especial custody of a Lord Warden Until recently the 
 
 Lord Warden of the Cinque Ports and the constable of Dover Castle had a 
 local jurisdiction in relation to civil suits and proceedings ; but this was 
 taken away by 18 & 19 Vict. c. 48 (amended by 20 & 21 Vict. c. 1, and 
 32 & 33 Vict. c. S3)" 1 
 
 § 2. The Commissioners within the Cinque Ports are persons nominated 
 by the lord warden to determine certain questions as to salvage and 
 claims for services to ships by pilots or others within the jurisdiction of 
 the Cinque Ports. 3 
 
 § 3. The Admiralty Court of the Cinque Ports seems to have as ex- 
 tensive a jurisdiction in Admiralty matters within its local limits as the 
 High Court of Justice. It also hears appeals from the commissioners 
 {supra, § 2) and the County Courts within the Cinque Ports. 3 
 
 CIRCUITS are divisions of the country for judicial business. For 
 the purpose of holding assizes {q. v.), the country is divided into seven 
 circuits, namely, the Northern, North-eastern, Midland, South-eastern, 
 Oxford, Western, and North and South Wales, the last being divided into 
 two divisions. The county of Surrey forms a kind of circuit by itself. 1 
 § 2. County Court circuits were created by stat. 8 & 9 Vict. c. 95 ; as its 
 name implies, a County Court circuit is a district having several Courts in 
 which the judge of the district holds sittings in rotation. 
 
 CIRCUITY OF ACTION is where two or more proceedings are 
 taken to effect the same result, as might be effected by one. Thus, 
 where A. sues B. for a debt, and B. brings another action against A. on 
 a contract, instead of B. setting off his claim against A. in the first action; 
 so, where A. sues B. on a liability against which B. has a guarantee or 
 indemnity by C, and B. brings an action against C. on his guarantee or 
 indemnity, instead of C. defending the original action against B. Formerly 
 circuity of action was the rule and not the exception, but now the pro- 
 visions of the Judicature Acts relating to counter-claim, citation, and 
 other proceedings may be said to have abolished circuity of action as far 
 as is practically possible. 5 (See Discharge.) 
 
 CIRCULAR NOTES. See Letter of Credit. 
 
 CIRCUMSPECTE AGATIS is the title usually given to the stat. 
 13 Edw. 1, defining the respective jurisdictions of the temporal and 
 ecclesiastical Courts in certain matters. 6 
 
 CIRCUMSTANTIAL. See Evidence. 
 
 CIRCUMSTANTIBUS, TALES DE. See Tales. 
 
 1 Steph. Comm. ii. 499, 11. (z) ; Bl. 
 Comm. iii. 79. 
 
 3 Roscoe's Admiralty, 81; stat. I & 2 
 Geo. 4, c. 76. 
 
 3 Roscoe, 99. 
 
 4 Order in Council, J February, 1876, 
 made under Judicature Act, 1875, s - 2 3- 
 
 5 See the concluding words of s. 24 of 
 the Judicature Act, 1873. 
 
 6 Steph. Comm. iii. 310. 
 
Citation LAW DICTIONARY. Citation i 5 i 
 
 CITATION is the operation of calling upon a person who is not a 
 party to an action or proceeding to appear before the Court in that action 
 or proceeding. 
 
 § 2. In an action in the High Court, where a defendant claims to be Inordinary 
 entitled to relief {e.g. contribution or . indemnity) against any person not actlon - 
 a party to the action he may, by leave, issue a notice to that effect, stating 
 the nature of the claim, and requiring him to enter an appearance in the 
 action ; the notice is filed, and a sealed copy of it is served on the person, 
 together with a copy of the statement of claim in the action. 1 This is 
 called citation or notice by defendant to third party. 3 If the third party 
 fails to appear, he cannot dispute the validity of any judgment obtained 
 against the defendant citing him. 3 If he appears, it is the duty of the 
 party citing him to apply to the Court for directions as to the mode of 
 having the question in the action determined. (See Third Party.) 
 
 § 3. In divorce practice, a citation corresponds in some respects with Divorce prac- 
 the writ of summons in ordinary actions ; it is a document directed to tlce - 
 the respondent or co-respondent, and commanding him to appear within 
 a certain time after service. It cannot be extracted or issued until the 
 petition has been filed, and after being served it is filed in the registry. 4 
 
 § 4. In probate actions, citation is employed in order to give notice of Citation to 
 the proceedings to persons whose interests are or may be affected by ? ee P r °ceed- 
 them, so as to give them an opportunity of appearing and taking part in lngS a 
 the proceedings if they wish to do so. This is called citation to see 
 proceedings. 5 The person issuing a citation is called the party citant, 
 and the person to whom it is addressed the citee. 
 
 § 5. Formerly citation was also a mode of commencing a suit in the Probate (old 
 Probate Court : such citations were of various kinds, the principal being practice), 
 citations by an executor to the next of kin, &c, to see a will proved in 
 solemn form : by a legatee to an executor to prove the will, or to bring in 
 a probate to be revoked, &c. 6 Under the new practice such suits or 
 actions are now commenced by writ of summons. 7 
 
 § 6. Under the old admiralty practice, where a ship, cargo, &c, was Citation in 
 already under arrest in a cause and a second cause was instituted against rem - 
 it, the plaintiff in the latter issued instead of a warrant a citation in rem, 
 commanding the marshal to cite all persons interested to enter an appear- 
 ance ; it was served in the same way as a warrant. 8 Under the new 
 practice a writ of summons in rem is issued. 9 (See Caveat, § 4.) In an 
 admiralty action in personam the defendant was cited to appear by a Citation in 
 , citation in personam ; 10 this is now done by a writ of summons in the P ersonam - 
 ordinary form. 11 
 § 7. In the ecclesiastical courts generally, the issue of a citation is the Citation. 
 
 1 Rules of Court, xvi. 18. 6 Probate Rules, 1862, C.B. 16; Forms, 
 
 2 Swansea, &c. Co. v. Duncan, 1 No. 4; Kennawayv. K., 1 P. D. 148. 
 Q. B. D. 644. 8 Browne, 269. 
 
 3 Rules of Court, xvi. 20. See York- 7 Rules of December, 1875. 
 shire Waggon Co. v. Newport Coal Co., 8 Williams & Bruce, 196. 
 
 S Q. B. D. 268. » Rules of Court, ii. 1, 7. 
 
 * Browne on Divorce, 207, 217. 10 Williams & Bruce, 241. 
 
 11 Rules of Court, ii. 3. 
 
152 City LAW dictionary. Claim 
 
 usual mode of commencing a suit. It is a judicial act by which the de- 
 fendant is commanded to appear in the suit. 1 
 (See Decree; Viis et Modis.) 
 
 CITY is a borough "which hath or hath had a bishop." 2 (See 
 Borough.) 
 
 CITY OF LONDON COURT is a Court having a local jurisdic- 
 tion within the city of London. It is to all intents and purposes a 
 County Court, having the same jurisdiction and procedure. 3 It has 
 exclusive jurisdiction in admiralty matters within the city. 4 (See Mayor's 
 Court of London.) 
 
 CIVIL is opposed (i) to ecclesiastical; (ii) to criminal. As to civil 
 death, see Death. 
 
 § 2. The "civil law" is an old-fashioned term for the Roman law, 
 derived from the title Corpus Juris Civilis. 
 
 CIVIL LIST is the revenue settled on the crown, and so-called from 
 having been originally intended to defray the ordinary expenses of the 
 government, as opposed to the military or extraordinary expenses. After- 
 wards the crown surrendered its hereditary revenues (the profits of crown 
 lands, &c), and the civil list is now fixed at 385,000/. per annum, out of 
 which are defrayed the personal expenses of the crown and royal house- 
 hold, special and secret services. Pensions to the amount of 1,200/. may 
 also be granted by the crown to persons deserving of the public bounty. 5 
 The other public expenses formerly charged on the civil list are now 
 charged on the Consolidated Fund (q. v.). 
 
 CLAIM, generally, is the assertion of a right. (See Continual Claim; 
 Statement of Claim.) 
 Claims in § 2. In administration actions, windings-up, and similar proceedings in 
 
 Chancery. tne Chancery Division, persons who consider themselves to have rights 
 against the assets in course of administration, have to send in claims in 
 the shape of formal notices to the executor, liquidator, &c. (See Adjudi- 
 cation, § 2.) 6 
 In bank- § 3. In bankruptcy, a creditor of the bankrupt is not allowed to receive 
 
 raptcy. a dividend from the estate until he has proved his debt (see Proof) ; but 
 
 where a creditor, though he has a just demand against the estate, is not 
 able to perfect his proof before a dividend is declared, he is allowed to 
 enter a claim, and the dividends in respect of it will be reserved for a 
 reasonable time until he can prove his debt. 7 
 
 1 Phill.Eccl. Law, 1253, 1280; Rogers's 6 Homersham Cox, Inst. 606; Steph. 
 
 Eccl. Law, 743. Comm. ii. 516 ; stat. I & 2 Vict. c. 2. 
 
 3 Co. Litt. 109 b, and note (2). Daniell's Ch. Pr. 1091 et seq. As to 
 
 s Stat. 30 & 31 Vict. c. 142, s. 35. the old practice in suits instituted by claim 
 
 1 Roscoe's Admiralty, 75; stat. 31 & without bill, see Hunter's Suit, 208 ; Braith. 
 
 32 Vict. c. 71. Pr. 92. 
 
 7 Robson's Bankr. 327. 
 
Claimant . law DICTIONARY. Clayton's Case 153 
 
 CLAIMANT is a person who makes a claim in an administrative 
 proceeding. (See Claim, § 2.) 
 
 § 2. The plaintiff in the old action of ejectment was called the 
 claimant. 
 
 CLASS. — Gifts by will to classes of persons, e.g. to the children, 
 nephews, brothers, &c. of the testator or of another person, frequently 
 give rise to the question, at what time the members of the class who are 
 to share in the gift are to be ascertained, and at what time their interests 
 are to be treated as vested. Rules of construction have been adopted by 
 the Court, but they are too complicated to be stated here. 1 (See 
 Inquiry.) 
 
 CLASSIFICATION.— In the practice of the Chancery Division, 
 where there are several parties to an administration action, including 
 those who have been served with notice of the decree or judgment (see 
 Notice 0/ Decree), and it appears to the judge (or chief clerk) that any of 
 them form a class having the same interest (e. g. residuary legatees), he 
 may require them to be represented by one solicitor, in order to prevent 
 the expense of each of them attending by separate solicitors. This is 
 termed " classifying the interests of the parties attending," or, shortly, 
 "classifying" or "classification." In practice the term is also applied to 
 the directions given by the chief clerk as to which of the parties are to 
 attend on each of the accounts and inquiries directed by the judgment. 3 
 
 CLAYTON'S CASE 3 is the leading authority on appropriation of 
 payments in a current account, e.g. that of a banker. In that case 
 Devaynes, the partner in a banking firm, died on the 29th November, 
 1809, leaving a considerable estate, and the surviving partners carried on 
 the business on their own account until July, 1810, when they became 
 bankrupt. At the death of Devaynes, Clayton had a balance of 1,713/. on 
 his cash account with the firm. Between the death of Devaynes and the 
 bankruptcy, the payments made to Clayton by the surviving partners 
 largely exceeded the 1,713/., and the payments so made amounted to 
 1,260/. within a few days after Devaynes' death, and before they had 
 received any money whatever from Clayton. But their subsequent re- 
 ceipts largely exceeded the payments, and at the date of the bankruptcy 
 the balance due on the account exceeded the amount of the balance due 
 at Devaynes' death. Under these circumstances, Clayton claimed against 
 the estate of Devaynes the 1,713/., after deducting the dividends received 
 by him in the bankruptcy of the surviving partners. But it. was held that 
 in an account of this kind, in the absence of an express appropriation by 
 the creditor, the first sum paid in is the first one drawn out ; in other 
 words, that the first payment by the banker must be set against the first 
 
 1 See Watson's Comp. Eq. 1281 etseq. on this head are in force in the Master of 
 
 1 Consol. Orders, XXX. 20 ; Daniell, the Rolls's Chambers, 
 
 Ch. Pr. 1088. See also Rules of Court, 8 1 Mer. 529. 
 
 xvi. 12 b (April, 1880). Special regulations 
 
154 Clerks of Arraigns law dictionary. Clerk of Enrolments 
 
 receipt, and so on : consequently, no part of the 1,713/. remained due by 
 the estate of Devaynes, because it had been drawn out by Clayton. 
 
 § 2. The rule in Clayton's Case does not apply where a person in a 
 fiduciary position, e. g. a trustee, has paid money held by him in that 
 character to his general account, and mixed it with his own money ; for 
 in such a case, when he withdraws money from the account for his own 
 purposes, he is deemed to withdraw it from that part of the fund which 
 belonged to him, so as to leave the trust money intact. 1 
 
 CLERKS OF ARRAIGNS are officers attached to the Central 
 Criminal Court and to each circuit {q. v.)., The clerk of arraigns " has to 
 discharge for the judge sitting on the crown side (z'. e. in criminal cases) 
 the duties which are discharged for him by a master on the civil side : 
 taxation of costs, allowances to witnesses, the business connected with 
 jurors, their excuses and fines, the custody of documents, the duty of 
 recording verdicts and making out warrants after sentence, are, in addi- 
 tion to advising the Court upon points of criminal procedure, among the 
 duties of the clerk of arraigns." 2 (See Arraign ; Clerk of Assize ; Clerk of 
 Indictments!) 
 
 CLERK OF ASSIZE is the officer who is responsible for the due 
 performance of the administrative duties of the Courts of assize on each 
 circuit. He performs the same duties on circuit which the associates 
 formerly performed, and which the masters now perform, at the sittings at 
 Nisi Prius in London and Middlesex 3 (see Associate) ; and he also acts as 
 clerk to the crown on circuits, by which apparently is meant that he per- 
 forms similar functions when the Courts of assize are sitting for criminal 
 business. 4 It seems, however, that " on several circuits the Clerk of 
 Assize rarely attends in Court," and that " on five of the great circuits the 
 functions of the Clerk are wholly or partially performed by his deputy," 
 who also acts as Clerk of Arraigns or Clerk of Indictments (q. v.) on the 
 same circuit. 5 
 
 CLERK OF THE CROWN.— As to the duties performed by the 
 clerk of assize as clerk of the crown see Clerk of Assize. There is a 
 Clerk of the Crown for each of the Counties Palatine of Durham and 
 Lancaster, 6 who performs the same duties as are performed in ordinary 
 counties by the Clerk of Assize in his character of clerk of the crown. 7 
 
 CLERK OF THE CROWN IN CHANCERY. See Crown 
 Office in Chancery. 
 
 CLERK OF ENROLMENTS was the chief officer of the Enrol- 
 ment Office (q. v.). He now forms part of the staff of the Central 
 Office {q. v.) ; but the office is to be abolished on the next vacancy. 8 
 
 1 In re Halletts Estate, 13 Ch. D. 696. 22. As to the qualification of Clerks of 
 
 2 Second Report of Legal Dep. Comm. Assize, see the Clerks of Assize, &c. Act, 
 (1874), 22. 1869. 
 
 3 Archbold's Practice, 15. 6 Second Rep. Legal Dep. Comm. 21. 
 
 4 See stat. 18 & 19 Vict. c. 126, s. 20. ' Stat. 19 & 20 Vict. c. 118. 
 
 5 Second Report of Legal Dep. Comm. 8 Judicature (Officers) Act, 1879. 
 
Clerk of the Hanaper law dictionary. Clerks of Records, &c. 155 
 
 CLERK OF THE HANAPER. See Hanaper. 
 
 CLERK OF THE HOUSE OF COMMONS is one of the chief 
 officers of the lower house. He is appointed by the crown as under- 
 clerk of the parliaments to attend upon the Commons. He makes a 
 declaration on entering upon his office to make true entries, remembrances 
 and journals of the things done and passed in the house. He signs all 
 orders of the house, indorses the bills sent or returned to the Lords, and 
 reads whatever is required to be read in the house. He has the custody 
 of all records and other documents. 1 
 
 CLERKS OF INDICTMENTS are officers attached to the 
 Central Criminal Court and to each circuit. They prepare and settle 
 indictments against offenders and assist the clerk of arraigns. 2 (q. v.). 
 
 CLERK OF THE PARLIAMENTS is one of the chief officers 
 of the House of Lords. He is appointed by the crown, by letters patent. 
 On entering office he makes a declaration to make true entries and records 
 of the things done and passed in the parliaments, and to keep secret all 
 such matters as shall be treated therein. 3 By stat. 33 Geo. 3, c. 13, the 
 Clerk of the Parliaments is directed to indorse on every act the date on 
 which it receives the royal assent. 
 
 CLERK OF THE PATENTS.— As to the Clerk of the Patents, 
 see Patent Office : as to the Clerk of the Patents to the Attorney- and 
 Solicitor-general, see Patent Bill Office. 
 
 CLERK OF THE PEACE is an officer appointed by the Gustos 
 Rotulorum (q . v.), to assist the justices of the peace in quarter sessions' 
 in drawing indictments, entering judgments, issuing process, &c* 
 
 CLERK OF THE PETTY BAG. See Petty Pag. 
 
 CLERKS OF RECORDS AND WRITS were officers formerly 
 attached to the Court of Chancery, whose duties consisted principally in 
 sealing bills of complaint and writs of execution, filing affidavits, keeping 
 a record of suits, and certifying office copies of pleadings and affidavits. 
 They were three in number, and the business was distributed among 
 them according to the letters of the alphabet. 5 (See Reference to Record.') 
 By the Judicature Acts, 1873, 1875, they were transferred to the Chan- 
 cery Division of the High Court. Now by the Judicature (Officers) Act, 
 1879, they have been transferred to the Central Office of the Supreme 
 Court, under the title of Masters of the Supreme Court, and the office of 
 clerk of records and writs has been abolished. (See Central Office; 
 Master!) 
 
 - 1 May, Pari. Pr. 289. 4 Pritchard, Q. S. 49. 
 
 2 Second Rep. Legal Dep. Comm. 23. 5 Second Rep. Legal Dep. Comm. 43. 
 
 * May's Pari. Pr. 238. 
 
156 
 
 Clerks of Seats 
 
 ■LKW DICTIONARY. 
 
 Coadjutor 
 
 Land. 
 
 Pleadings, 
 evidence, 
 
 bankruptcy. 
 
 CLERKS OF SEATS, in the Principal Registry of the Probate 
 Division, discharge the duty of preparing and passing the grants of pro- 
 bate and letters of administration, under the supervision of the registrars. 
 There are six seats, the business of which is regulated by an alphabetical 
 arrangement, and each seat has four clerks. They have to take bonds 
 from administrators, and to receive caveats against a grant being made 
 in a case where a will is contested. They also draw the " acts," that is, 
 a short summary of each grant made, containing the name of the deceased, 
 amount of assets and other particulars. 1 
 
 CLOSE.— I. § i. In the law of real property, close signifies a piece 
 of land, and a trespass on a man's land was formerly described as a breach 
 of his close, or trespass quare clausum fregit. " For every man's land 
 is in the eye of the law enclosed and set apart from his neighbours' ; and 
 that either by a visible and material fence, as one field is divided from 
 another by a hedge, or by an ideal, invisible boundary, existing only in 
 the contemplation of the law, as when one man's land adjoins to another's 
 in the same field." 2 (See Boundaries ; Trespass.) 
 
 II. § z. In procedure, close signifies conclusion. Thus the close of 
 the pleadings is where the pleadings are finished, that is, when issue has 
 been joined. 3 (See Pleading; Issue.) So, when evidence is taken by 
 affidavit, it is said to be closed when the affidavits in reply have been 
 filed. 4 (See Affidavit, § z.) As to the close of a bankruptcy, see Bank- 
 ruptcy, § 8. 
 
 CLOSE ROLLS. See Bolls. 
 
 CLUB is a voluntary association of persons for social purposes, and 
 sometimes also for purposes of a literary or political nature, or the like. 
 A club is not a partnership. 5 In some clubs the expenses are borne by a 
 contractor, who receives the subscriptions of the members, and makes his 
 profit out of the difference : these are called proprietary clubs. 
 
 § 2. A club is regulated by the rules agreed to by the members, and 
 for the time being in force, and therefore if a member is expelled from a 
 club by a decision which has been arrived at bona fide in accordance with 
 the rules and in a judicial manner, without caprice or improper motive, 
 the Court cannot interfere. 6 In a proper case, however, the Court will 
 grant an injunction to prevent a member from being deprived of the 
 benefits of the club.' 
 
 COADJUTOR. — § i. The coadjutor of an executor is the same 
 thing as an overseer (q. v.). § 2. In the old writers, coadjutor signifies 
 one who disseises a person of land to the use (that is, for the benefit) not 
 of himself, but of another. 8 
 
 ' Second Rep. Legal Dep. Comm. 79. 
 
 2 Bl. Comm. iii. 209. 
 
 3 Rules of Court, xxv. 
 1 Ibid, xxxviii. 6. 
 
 6 Fleming v. Hector, 2 M. & "W. 172. 
 
 6 HopMnson v. Marquis of Exeter, L. R. , 
 5 Eq. 63. 
 
 7 Fisher v. Deane, 1 1 Ch. D. 353. 
 
 8 Litt. 6 278. 
 
Code LAW DICTIONARY. Cognizance 
 
 157 
 
 CODE— CODIFICATION.— § 1. The term code is used in various 
 senses. In the Corpus Juris Civilis it is used to signify a consolidation 
 of the statute law, namely, a collection of enactments arranged sys- 
 tematically, with all obsolete and inconsistent enactments omitted. In 
 modern times the term is more commonly used to signify a new enact- 
 ment containing legislative rules of law relating to a particular subject 
 {e.g. civil law, criminal law, procedure, evidence or the like). Such a 
 code differs from that of Justinian in being expressed in new language, 
 instead of being a mere re-arrangement of existing enactments. 
 
 § 2. A code differs from a digest {q. w.) in consisting of abstract rules 
 of law : a digest, in the proper sense of the word, is a collection of con- 
 crete cases. 1 
 
 § 3. Codification is the process of converting the law of a country, or a Codification, 
 portion of it, into a code, whether that law consists of statutes, or case- 
 law, or customs, or all three. Codification is in theory a formal process, 
 as opposed to legislation : that is, the codifier takes the law as he finds 
 it, without reference to its expediency, and merely puts it in a more con- 
 venient shape ; in practice, however, codification is impossible without 
 introducing amendments of the law, in matters of detail at least. 
 
 § 4. The most celebrated modern codes are those of Napoleon. 
 Several codes have been promulgated in India, and a code of the 
 criminal law has long been under discussion in this country. 
 
 CODICIL. — § 1. A codicil is an instrument executed by a testator for 
 adding to, altering or explaining a will previously made by him. It is in 
 law part of the will, and the will and codicils (if more than one) make 
 but one testament. 3 A codicil must be executed with the same formalities , 
 
 as a will. 3 
 
 § 2. Before the Wills Act (I Vict. c. 26), a testator could make a nuncupative or word Nuncupative 
 of mouth disposition of property undisposed of by his written will, and such a disposition codicil, 
 was called a nuncupative codicil. 4 Nuncupative testamentary dispositions have been 
 abolished by the Wills Act in all but a very few cases. (See Will.) 
 
 Etymology.] — § 3. Latin : codicilli, a little book, especially a note-book, for informal 
 letters. 5 In Roman law codicilli meant an informal or " unsolemn " testamentary dispo- 
 sition, as opposed to a testamentum, which appointed a. hares or executor, and was 
 executed with formalities. 6 It is said by old writers that in English law also " codicil" 
 meant an "unsolemn last will," not containing the appointment of an executor; 7 but 
 whether this is really so, or whether these writers merely copied the passages on codicils 
 from Justinian, is not clear. 
 
 COGNIZANCE— COGNIZEE— COGNIZOR. See Conusance; 
 ■Notice. 
 
 1 As to Codes generally, see Holland 3 1 Vict. c. 26, ss. 1, 9. 
 
 on the Form of the Law, passim ; Holtz. * Williams, 117. 
 
 Encycl. i. 227 ; Savigny's admirable essay, 6 Ortolan, Inst. ii. 660. 
 
 " Vom Beruf unserer Zeit, &c." (see 6 Just. Inst. ii. 25. 
 
 Savigny), and the works of Austin and 7 Williams, 7, citing the works of Swin- 
 
 Bentham. bume and Godolphin 
 
 2 Williams on Executors, 8. 
 
158 Cognovit LAW dictionary. Collateral 
 
 COGNOVIT. — § 1. Where the defendant in an action in one of the 
 Common Law Divisions of the High Court has no defence, he may give 
 the plaintiff a written confession of the action, upon condition that he 
 shall be allowed a certain time for the payment of the debt or damages, 
 the amount of which is generally agreed upon. This is called a cognovit 
 [cognovit actionem). It impliedly authorizes the plaintiff's solicitor to do 
 everything necessary to obtain judgment against the defendant if he fails 
 to comply with the conditions on which time is given. That part of the 
 document which contains the terms on which the defendant is to be 
 allowed to discharge the plaintiff's claim is called the defeazance : it must 
 be written on the same piece of paper as the cognovit. The cognovit 
 must be attested by a solicitor, whose duty it is to inform the defendant 
 of its nature and effect, and it must be filed within twenty-one days after 
 execution, or it will be void. 1 Cognovits are not now of frequent occur- 
 rence. (See Warrant of Attorney.) 
 
 COIF is a white silk cap which serjeants-at-law are supposed to wear 
 in Court, as "a badge that they are graduates in law." 2 
 
 Etymology.] — Old French, coif ox coiffe ; Low Latin, cofia, a cap. a 
 COIN. See Counterfeit Coin ; Utter. 
 
 COKE. — Edward Coke was born 1st February, 1551-2, called to the 
 bar in 1578, became recorder of London, 1591-2, solicitor-general, 
 1592, member and speaker of the House of Commons, 1593, attorney- 
 general, 1594, was knighted on the accession of James I., made chief 
 justice of the Common Pleas, 1606, of the King's Bench, 1613; from 
 which office he was removed in 16 16, in consequence of his resistance to 
 the king and Court of Chancery : he was again returned to parliament in 
 1 62 1, and died on September 3rd, 1633. 
 
 His principal works are— (1) the so-called Institutes of the Laws of 
 England, in four parts, consisting of the celebrated Commentary on 
 Littleton's Treatise on Tenures, a commentary on many old acts of par- 
 liament, a treatise of Pleas of the Crown, and an account of the various 
 Courts ; (2) eleven volumes of reports ; and (3) a volume of law tracts, 
 published after his death, including the " Compleat Copyholder." 4 
 
 COLLATERAL is, literally, that which is " by the side of" or 
 distinct from a certain thing. Thus, collateral consanguinity is the rela- 
 tionship between persons who are descended from the same ancestor 
 (brothers, cousins, &c), as opposed to lineal consanguinity, which exists 
 
 1 Archbold's Pr. 755 ; Debtors Act, Chitty, Pr. 942. 
 
 1869, ss. 24 etseq. Under the old practice 3 Fortescue, de Laud, ch. 50. 
 
 a cognovit given after plea was called a 3 Skeat, Etym. Diet. 
 
 cognovit actionem relictA verificatione. 4 Foss's Biog. Diet. ; Bl. Comm. i. 72. 
 
Collation law DICTIONARY. Collision 159 
 
 between persons of whom one is descended from the other (father and 
 son, grandfather and grandson, &c.) (See Consanguinity ; Descent?) 
 
 § 2. A collateral security is one which is given in addition to the Security. 
 principal security. Thus, a person who borrows money on mortgage 
 (which is the principal security) may deposit shares with the lender as 
 collateral security. (See Addenda!) 
 
 § 3. A collateral assurance, agreement, &c, is one which is inde- Assurance. 
 pendent of, but subordinate to, an assurance or agreement affecting the 
 same subject-matter. Thus, where A. agreed to take a lease of B.'s 
 land, but finding, on examination, that it was overrun with rabbits, 
 declined to sign the lease unless B. would promise to destroy the rabbits, 
 which B. did, but no term to that effect was inserted in the lease, which 
 provided that A. should preserve the game on the land, and reserved the 
 right of sporting to B., it was held that the agreement by B. to destroy 
 the rabbits was collateral to the lease, and could, therefore, be taken ad- 
 vantage of by A., although it had not been inserted in the lease. 1 
 
 § 4. In the law of evidence, a collateral issue is a question which is Collateral 
 not immediately or mediately a matter in dispute in the proceeding. lssue - 
 Thus, it is not allowable to adduce evidence as to particular acts of mis- 
 conduct by a witness with a view of discrediting his testimony, because 
 that would raise a collateral issue. 8 (See Character!) § 5. In criminal 
 procedure, when a prisoner has been found guilty, and on being asked 
 why execution should not be awarded against him, pleads in bar of execu- 
 tion that he is not the person who has been found guilty (called a plea 
 of diversity of person or non-identity), a jury is empannelled to try this 
 collateral issue. 3 
 
 § 6. In the old books, when a bond, recognizance or the like, was Collateral 
 entered into to secure the performance of some act, such as to execute act " 
 a conveyance, build a house, &c, it was called a bond to do a collateral 
 act, as opposed to a bond for the payment of money, 4 apparently because 
 in the latter case the act and the penalty are both of the same nature. 
 
 As to collateral warranty, see Warranty. 
 
 COLLATION is the ceremony by which a bishop admits and insti- 
 tutes a clerk to a church or benefice in his (the bishop's) own gift, 
 whether as patron or by lapse : it is equivalent to the two acts of presen- 
 tation and institution, which are necessary in cases where the patron and 
 the bishop are different persons. 5 When the benefice is in the bishop's 
 own gift, it is sometimes called a collative advowson. (See Advowson.) 
 
 COLLIGENDA BONA. See Grant, § 10. 
 
 COLLISION. — § 1. Cases of damage caused by the collision of 
 ships form an important part of the Admiralty jurisdiction of the High 
 
 1 Morgan v. Griffith, L. R., 6 Exch. 3 Bl. Comm. iv. 396. 
 70 ; Salaman v. Glover, L. R., 20 Eq. i 9 Rep. 79 a. 
 
 444. 6 Phill. Eccl. Law, 348, 467; Bl. Comm. 
 
 2 Best on Evidence, 803. i. 39°- 
 
i6o 
 
 LAW DICTIONARY. 
 
 Colour 
 
 Affidavit of 
 no collusion. 
 
 Divorce. 
 
 Colloquium 
 
 Court, and County Courts. These cases are subject to peculiar rules, 
 regulating the liability of the respective vessels and their owners, and the 
 procedure to be adopted. Thus, if the collision is caused by the negli- 
 gence of both vessels, each party can only recover half his loss, and the 
 liability of each vessel is limited according to its size. 1 The result of the 
 former rule is, that if two vessels, A. and B., come into collision, both 
 being to blame, causing loss or injury to A. to the extent of 500/., and to 
 B. to the extent of 1000/., half the loss of A. would be deducted from 
 half the loss of B., so that A. would pay B. 250/. (See Preliminary Acts ; 
 Limitation of Liability.) 
 
 COLLOQUIUM, in the old common law pleading in cases of slander, was that part 
 of the declaration which alleged that the words complained of were spoken of and con- 
 cerning the plaintiff, or of and concerning the plaintiff in the way of his trade and 
 profession. 2 [Colloquium = conversation.) 
 
 COLLUSION is where two persons, apparently in a hostile position, 
 or having conflicting interests, by arrangement do some act in order to 
 injure a third person or deceive a Court. Thus, where a person brought 
 an action for penalties against a company by arrangement with them, for 
 the purpose of protecting them against other actions by hostile persons 
 for the same penalties, it was held that the judgment was obtained by 
 collusion. 3 The effect of collusion is to vitiate the transaction in which 
 it is employed. 
 
 § 2. A person taking interpleader proceedings for his own protection is 
 bound to make an affidavit that there is no collusion between him and 
 either of the adverse claimants.' 1 
 
 § 3. In suits for dissolution of marriage, collusion was formerly used in 
 the sense of connivance and conspiracy to commit the offence complained 
 of ; but it now means a conspiracy in presenting or prosecuting the peti- 
 tion in the suit, as where the respondent agrees with the petitioner to 
 assist in obtaining a decree. Collusion is a bar to such a suit. 6 (See 
 Lntervention.) 
 
 COLOUR, — I. § 1. Colour primarily signifies any appearance, pre- 
 text or pretence : thus, a person is said to have no colour of title when he 
 has not even a prima facie title. 6 
 
 II. § 2. Colour was formerly an important term in the language of pleading, but is 
 now obsolete. "It signifies an apparent or prima facie right, and the meaning of the 
 rule that pleadings in confession and avoidance should give colour is, that they should 
 confess the matter adversely alleged to such an extent at least as to admit some apparent 
 right in the opposite party, which requires to be encountered and avoided (2. e. deprived 
 of its effect) by the allegation of new matter." 7 Colour was either implied or express. 
 § 3. Implied colour : " "Where to an action of assumpsit the defendant pleads in confession 
 
 1 Williams & Brace's Admiralty, 70 ; 
 Judicature Act, 1873, s. 25, §9; Regula- 
 tions for Preventing Collisions at Sea ; 
 Orders in Council of 9th January, 1863 
 (Maude & Pollock Mer. Shipp. 451), 14th 
 August, 1879 (4 P. D. 241). 
 
 2 1 Wms. Saund. 246 b. 
 
 3 Girdlestone v. Brighton Aquarium 
 Co., 3 Ex. D. 137 ; 4 Ex. D. 107. 
 
 4 Mariby v. Robinson, 4 Ch. App. 347 ; 
 stat. I & 2 Will. 4, c. 58. 
 
 6 Browne on Divorce, 105. 
 
 6 Litt. § 400. 
 
 7 Stephen, PI. (5th edit.) 233. 
 
Colourable law dictionary. Commandite 161 
 
 and avoidance that he did not promise within six years before the action brought, it is an 
 absolute implied admission of the truth of the adverse allegation, that he had at one time 
 made such promise as alleged, and that there is therefore an apparent right in the plaintiff 
 and this right is avoided by relying on the lapse of time." 1 § 4. Express colour 
 (called in the old books "colour " simply) is " a feigned matter, pleaded by the defendant 
 in an action of trespass, from which the plaintiff seems to have a good cause of action, 
 whereas he has in truth only an appearance or colour of cause." 2 Thus, if the defendant 
 in an action of trespass quare clausum fregit wished to defend himself upon the ground 
 that J. S., a third person, being seised in fee of the land in question, demised it to him for 
 a term of years, he was not allowed to plead those facts simply, because they would 
 amount to a denial of any title to possession whatever in the plaintiff, and for such a 
 denial a traverse (q. v.) was the proper plea ; but as it was frequently advantageous for 
 the defendant to set forth such facts in his plea, the old pleaders devised the expedient of 
 " inserting in the plea a fictitious allegation of some colourable but insufficient title in the 
 plaintiff, which they at the same time avoided by the preferable title of the defendant." 3 
 Thus, in the example given above, the defendant would plead the demise by J. S. to 
 himself, and proceed to aver that the plaintiff claimed under another demise from J. S., 
 and that it was 'inoperative ; this was called giving colour, because it supplied the want 
 of implied colour. 
 
 Etymology.] — Latin : color, a pretext. 4 
 
 COLOURABLE is that which is in appearance only and not in 
 substance what it purports to be. 
 
 Thus, where a person took a house, for which he paid rates and taxes 
 in a parish, for the purpose of obtaining a qualification for certain 
 privileges given to the parishioners of that parish, it was held that his 
 qualification was good and not colourable ; but that if he had not really 
 taken the house, " but only got somebody to put up his name over the 
 door or something of that kind, then it would have been colourable, and 
 it would have been a sham." 5 
 
 Colourable imitation, as applied to trade marks (q . v.), is such a close or 
 ingenious imitation as to be calculated to deceive ordinary persons. 6 
 
 COMITY. — The comity of nations [comitas gentium) is that body of 
 rules which states Qbserve towards one another from courtesy or mutual 
 convenience, although they do not form part of international law. 7 
 
 COMMANDITE— COMMANDITAIRE.— A societeen commandite 
 in French law is a partnership of which some of the members (the 
 associes commanditaires) are mere lenders of capital to the firm, and 
 are not responsible for any losses beyond the amount of their capital. 8 
 The principle has been introduced into English law by the Partnership 
 Act, 1865, and in mercantile language a person who advances money to 
 a partnership under that act is called a commanditaire. An attempt was 
 
 1 Stephen, PI. 5th edit. 234. * Wotherspoonv. Currie, L. R., 5 H. L. 
 
 2 Bac. Abr. Trespass (T. 4.) at p. 519; Ludlow and Jenkyns on Trade 
 
 3 Stephen, PI. 241. Marks, 74. 
 
 4 Dirksen, Man. Lat. s. v. \ 2 ; Stephen, 7 Holtz. Encycl. s. v. ; Manning's Law 
 PI. Append, n. 40 et seq. of Nations, 122. 
 
 6 Etherington v. Wilson, L. R., 1 Ch. 8 Teulet, Codes, s. v. ; Holtz. Encycl. 
 
 D. p. 166. Compare Co. Litt. 245 a. ». v. Commandit-gesellschaft. 
 
 S. M 
 
1 62 Commendam law dictionary. Commission 
 
 also made by the Companies Act, 1867, to apply the principle of socidtds 
 en commandite to English companies, but without success. (See Company, 
 § 50 
 
 COMMENDAM is a benefice or ecclesiastical living which, being void, or to pre- 
 vent its becoming void, is committed (commendatur) to the charge and care of some 
 sufficient clerk, to be supplied until it may be conveniently provided of a pastor. Thus, 
 formerly when a parson of a parish was made the bishop of a diocese, there was a cession 
 of his benefice ; but if the king gave him power to retain his benefice, he continued 
 parson thereof, and was said to hold it in commendam. This was called a commendam 
 retinere, as opposed to a commendam caj>ere, which was where power was given to take 
 a benefice in addition to one which the incumbent' already had. Commendams were 
 also divided with reference to their duration into semestris (six months), perpetua (for 
 life), and limitata (temporary). 1 Commendams were practically abolished by stat. 6 & 7 
 Will. 4, c. 77, s. 18, and the modem acts against pluralities, except in the rare instances 
 in which pluralities (q. v.) are still allowed. 2 
 
 COMMENDATION, in feudal law, was where an owner of land 
 placed himself and his land under the protection of a lord, so as to con- 
 stitute himself his vassal or feudal tenant. Commendation and the grant 
 of beneficia or feuds were the two principal modes by which the feudal 
 system was established. 3 
 
 COMMISSARY is an ecclesiastical officer who exercises jurisdiction 
 " in places of the diocese so far from the chief city that the chancellor 
 cannot call the people to the bishop's principal consistory Court without 
 great trouble to them." 4 (See Diocesan Courts.) 
 
 COMMISSION is an order or authority to do some act. 
 
 I. § 2. In the law of contracts and agency a commission is an authority 
 to an agent to enter into a contract, especially one for the sale or purchase 
 of goods : such a commission generally includes an engagement by the 
 principal to remunerate the agent, and hence "commission" is sometimes 
 used to denote the remuneration paid to an agent. 5 
 
 Del credere. § 3. A del credere commission is an authority to an agent to negociate 
 
 sales of goods on behalf of his principal, the latter engaging to pay him 
 a higher remuneration than usual in consideration of his guaranteeing the 
 payment of the price by the persons to whom he may sell them. 6 
 
 II. § 4. Commission also signifies an authority given by the crown, a 
 Court or the like to a person or persons to do some act, especially to 
 inquire into certain facts. When the commission creates a permanent 
 office it is generally known by the description of the commissioners — 
 such as the Ecclesiastical Commissioners, the Charity Commissioners, 
 
 Phillimore, Eccl. Law, 503 et seq. ; * Phfflimore, Eccl. Law, 12 15, 
 
 Steph. Comm. ii. 692 ; Colt and Glover V '. 5 Chitty on Contracts, 512; Smith's 
 
 Bishop oj 'Coventry, Hob. 140. Merc. Law, 122. 
 
 2 Phillimore, 504. 6 Smith, 119. 
 
 3 See Stubbs' Const. Hist. i. 153, 
 
Commission law DICTIONARY. Commission 163 
 
 Railway Commissioners, &c. (See the various titles.) The following 
 commissions are of a temporary nature : — 
 
 Appraisement and Sale.— § 5. Where property has been arrested in 
 an admiralty action in rem and ordered by the Court to be sold, the 
 order is carried out by a commission of appraisement and sale ; in some 
 cases (as where the property is to be released on bail and the value 
 is disputed) a commission of appraisement only is required. The com- 
 mission of appraisement is directed to the marshal and commands him to 
 reduce into writing an inventory of the property, to choose one or more 
 experienced persons, to swear them to appraise the property according to 
 its true value, and to file a certificate of the value signed by himself and 
 the appraisers. 1 The commission of sale (which is generally added to the 
 commission of appraisement, though it may be separate) commands the 
 marshal to sell the property by public auction for not less than the 
 appraised price and to pay the proceeds into the registry. 2 
 
 Assize. — § 6. Commissions of assize are those issued to judges of the 
 High Court or Court of Appeal, or to serjeants-at-law and queen's counsel, 
 authorizing them to sit at the assizes for the trial of civil actions. (See 
 .Assize, § 3 ; Nisi Prius.) 
 
 Delegates. See that title. 
 
 Examination of Witnesses. — § 7. When a person whose evidence is 
 required in a cause is out of the jurisdiction, a commission is issued 
 authorizing a person or persons therein named to take his evidence on 
 oath either by interrogatories or viva voce, or by both methods, and the 
 depositions are read at the trial. 3 (See Examiner; Mandamus.) 
 
 Gaol Delivery. See that title. 
 
 Lunacy. — § 8. Commissions in lunacy are issued under the great seal 
 and are of two kinds, special and general. Before the Lunacy Regulation Special. 
 Act, 1853, a special separate commission, called a "commission in the 
 nature of a writ de lunatico inquirendo," was issued in each case of 
 alleged lunacy, requiring the person to whom it was directed to inquire 
 concerning the state of mind of the alleged lunatic and to certify the 
 result by inquisition {q. v.) ; but although special commissions may still 
 be issued if the Lord Chancellor thinks fit (sect. 50), it is provided by the 
 above act (sect. 39) that a general commission may be issued, directed to General, 
 the Masters in Lunacy by name, and authorizing them to inquire in each 
 case of alleged lunacy referred to them by the Lord Chancellor in the 
 same manner as if a commission had issued specially in the case ; this 
 has practically superseded special commissions. 4 (See Masters in Lunacy.) 
 As to the permanent Commissioners in Lunacy, see that title. 
 
 Oyer and Terminer. See that title. 
 
 1 Williams and Brace's Admiralty, 206, 3 Archbold's Pr. 309 ; Smith's Action, 
 
 225, 232. 95. 
 
 - Hid. 236. 4 Pope on Lunacy, 43. 
 
 M 2 
 
1 64 Commission-day. LAW DICTIONARY. Commissioners 
 
 Partition. — § 9. Formerly a partition was effected by issuing a com- 
 mission to commissioners to divide the property, and on their return 
 coming in the parties were ordered to execute mutual conveyances to 
 carry out the division. 1 (See Partiiion.) 
 
 Peace. — § 10. A commission of the peace is one by which the crown 
 appoints (or technically "assigns") a number of persons to act as justices 
 of the peace (q. v.) within a certain district. The ordinary commission 
 to justices contains two assignments or appointments ; by the first, the 
 general power of preserving the peace is given to the justices jointly and 
 severally ; by the second, power to hold sessions (q. v.) is given to all the 
 justices and to every two or more of them, of whom (in the original Latin 
 quorum) one of certain named justices must be one. 2 
 
 §11. The commission to the mayors and chief officers in certain cor- 
 porate towns not mentioned in the Municipal Corporations Act is in the 
 nature of a perpetual commission, the powers of which are exercised by 
 the persons who for the time being fill the offices designated. 3 (See 
 Recorder.) 
 
 Rebellion. — § 12. A commission of rebellion was the old method of 
 compelling a defendant to a suit in Chancery to appear and answer the 
 bill : it authorized the commissioners to attach, i. e. arrest, him. The 
 process was abolished in 1841. 4 
 
 Sewers. See Sewer. 
 
 Unlivery. — § 13. In an action in the Admiralty Division, where it is 
 necessary to have the cargo in a ship unladen in order to have it 
 appraised, a commission of unlivery is issued 5 and executed by the 
 marshal. 6 
 
 COMMISSION-DAY is the opening day of the assizes at a par- 
 ticular town. (See Assize, § 3.) 
 
 COMMISSIONER means a person to whom a commission is 
 directed by the crown, or a Court, &c. The most important classes of 
 commissioners, however, are those holding permanent offices, and of 
 these the following are the principal : — 
 
 COMMISSIONERS FOR TAKING ACKNOWLEDG- 
 MENTS OF MARRIED WOMEN are either special, that is, ap- 
 pointed for taking the acknowledgment in a particular case (as where the 
 married woman is abroad), or perpetual. 7 (See Acknowledgment, § 2.) 
 
 COMMISSIONERS IN BANKRUPTCY.— Formerly the jurisdiction over 
 bankrupts' persons and estates was exercised by commissioners appointed by a com- 
 mission issued by the Lord Chancellor under the great seal in each case ; the Lord 
 Chancellor exercising superintendence over the proceedings. 8 By stat. 1 &.2 "Will. 4, 
 
 Haynes s Eq. 153. i Bl. Comm. iii. 444, aud notes. 
 
 ' Pntchard's Q. S. 3 et seq. At the 6 Williams & Brace's Admiralty, 233. 
 
 present day it is usual to include all the G Ibid. 234, n. (m). 
 
 justices in the quorum clause, and con- ' Stats. 3 & 4 Will. 4, c. 74, ss. 81 et 
 
 sequently any two justices may hold a seq. ; 23 & 24 Vict. c. 127, s. 30; Shel- 
 
 quarter sessions ; ibid. 12. ford's R. P. Stat. 384. 
 
 3 Pntchard, 3. s R bson's Bankruptcy, 2. 
 
Commissioners law dictionary. Commissioners 165 
 
 c. 56, a court of bankruptcy consisting of four judges (exercising as a Court of Review the 
 jurisdiction previously exercised by the Lord Chancellor), and six commissioners (who 
 were permanent officials), was constituted ; country commissioners were also appointed 
 from time to time. The proceedings in each case were commenced by a fiat, called * 
 London or a country fiat according to circumstances, and issued out of Chancery, instead 
 of by a commission. 1 By stat. S & 6 Vict. c. 122, permanent district commissioners, 
 attached to districts courts in the country, were appointed. 2 Commissioners in bank- 
 ruptcy were abolished by the Bankruptcy Act, 1869. 3 (See Bankruptcy ; Bankruptcy 
 Courts.) 
 
 COMMISSIONERS OF INLAND REVENUE have for their 
 functions to superintend the collection of the internal taxes (as opposed 
 to the customs or frontier duties), such as the land tax, the income tax, 
 succession and legacy duties, and stamp duties 4 (q. v.). Their offices are 
 in Somerset House. The commissioners of inland revenue are the result 
 of the consolidation, in 1849, of the commissioners of stamps and taxes 
 with the commissioners of excise. 5 
 
 COMMISSIONERS IN LUNACY are officers appointed under 
 stat. 8 & 9 Vict. c. 100. They have the control of lunatic asylums and 
 of houses licensed for the reception of lunatics, which they are required 
 to visit periodically, but they have no jurisdiction over the property or 
 persons of lunatics, nor have they anything to do with lunatics so found 
 by inquisition, unless confined in an asylum or licensed house. 6 (See 
 Visitors ; 3f asters in Lunacy ; Commission, § 8.) 
 
 COMMISSIONERS TO ADMINISTER OATHS are solicitors 
 appointed to administer oaths to persons making affidavits before them. 
 Formerly they were appointed under various acts of parliament according 
 to the Court in which the affidavit was to be used, 7 but now all such 
 commissioners may administer oaths in all causes and matters pending in 
 the Supreme Court, 8 and in future all commissioners for this purpose will 
 be appointed by the Lord Chancellor under the Judicature Act. 9 Com- 
 missioners for taking oaths in the Supreme Court may also take oaths in 
 the ecclesiastical Courts. 10 
 
 § 2. A commissioner must not administer an oath to a person for whom 
 he is acting as solicitor or agent. 11 
 
 COMMISSIONERS OF PATENTS investigate applications for 
 patents, have the letters patent prepared, and issue their warrant for 
 having them sealed with the great seal ; they also keep the register of 
 
 1 Robson's Bankruptcy, 4. Pr. 15, 1299. As to commissioners in 
 
 2 Ibid. 6. Scotland and Ireland, see 3 & 4 Will. 4, 
 
 3 Sects. 128, 130. c. 42, s. 42 ; Isle of Man and Channel 
 " DowelFs Stamp Duties, 4, 5. Islands, 22 Vict. c. 16. 
 
 6 Ibid. 119. 8 Jud. Act, 1873, s. 82. 
 
 6 Second Rep. of Legal Dep. Comm. 9 Sect. 84. 
 
 60; Pope on Lunacy, 37 ; stats. 8 & 9 10 Stat. 40 & 41 Vict. c. 25, s. 18. 
 
 Vict. c. 100; 16 & 17 Vict. cc. 96 and 97; u Archbold, 1299; Daniell, 651, n.; 
 
 18 & 19 Vict. c. 105 ; 25 & 26 Vict. c. ill. Duke of Northumberland v. Todd, 7 Ch. 
 
 ' Stats. 29 Chas. 2, c. 5 ; 16 & 17 Vict. D. 777. 
 c. 78; Daniell, Ch. Pr. 646: Archbold, 
 
i66 
 
 Commissioners 
 
 LAW DICTIONARY. 
 
 Committee 
 
 patents and assignments, 1 and have the superintendence of the registry of 
 trade-marks 2 (q. v.). The commissioners themselves are high judicial 
 officers, and all the routine work is performed by clerks. (See Patent 
 Office.) 
 
 COMMISSIONERS OF WOODS, &C. The Commissioners of 
 Woods, Forests and Land Revenues, and of Works and Public Buildings, 
 are two boards appointed for the superintendence of the public property 
 indicated by their titles, which includes the royal parks in and near 
 London and the other royal demesnes given up by the crown on the 
 settlement of the civil list. 3 (See Civil List ; Demesne.) 
 
 Committing 
 for trial. 
 
 Committal for 
 contempt ; 
 
 for judgment 
 debt. 
 
 COMMIT— COMMITMENT— COMMITTAL.— § i. A person 
 is committed to prison when he is sent there by a court or judge, 
 generally for a short period or for a temporary purpose. 
 
 § 2. In criminal law, when a person is accused of an indictable offence, 
 the magistrate before whom he is examined, after hearing the evidence 
 of witnesses, is bound either to discharge the accused or to commit him 
 to prison to take his trial (commonly called committing him for trial), 
 unless it is a bailable offence, in which case he may be admitted to 
 bail (q. v.). This imprisonment is only for safe 1 custody and not for 
 punishment. 4 The next step is the indictment (q. v.). 
 
 § 3. In civil proceedings, the principal instances of committal are those 
 for punishment of contempt of Court 5 (see Contempt), and for non-payment 
 of a judgment debt under the Debtors Act, 1869 (q. v.). In the latter 
 class of cases the first step (in the practice of the common law divisions 
 of the High Court) is to obtain a committal summons, calling on the 
 judgment debtor to show cause before a judge at chambers why in default 
 of payment he should not be committed to prison, and on default, if the 
 case is one to which the statute applies, the committal order is made, on 
 which the debtor is arrested and imprisoned. 6 (See Attachment.) 
 
 In lunacy. COMMITTEE. — § 1. In lunacy practice, a committee is a person to 
 
 whom the custody of the person or the estate of a lunatic is committed or 
 granted by the Lord Chancellor. The same person may be committee of 
 the person and of the estate, or the two offices may be vested in two 
 different persons, or either office may be vested in two or more persons, 
 called joint committees. The committee represents the lunatic, 7 but acts 
 under the direction of the Master, Lords Justices or Lord Chancellor having 
 jurisdiction in the matter, in much the same manner as the guardians and 
 trustees or executors act in an administration suit, the committee of the 
 
 1 Stat. 15 & 16 Vict. t . 83. 
 
 2 Stat. 38 & 39 Vict. c. 91. 
 
 3 Stats. 14 & 15 Vict. c. 42 ; 15 & 16 
 Vict. c. 62; 16 & 17 Vict. c. 56, and 
 numerous other acts down to 36 & 37 Vict, 
 c. 36 (see index to statutes) ; Steph. Comm. 
 ii. 535- 
 
 4 Steph. Comm. iv. 354. 
 
 s Rules of Court, xlii. 5. 
 
 6 Smith's Action, ii. 284 et seq., 515; 
 Coe's Pr. 159. In the Chancery Division 
 the application is made by motion. Daniell, 
 Ch. Pr. 928. 
 
 7 Viner, Abr. "Lunatick;" 2 Sch. & 
 Lef. 439. 
 
Committee law DICTIONARY. Common 167 
 
 person being responsible for the comfort and well-being of the lunatic, 
 and the committee of the estate being responsible for its proper manage- 
 ment. 1 
 
 § 2. In parliamentary practice a committee is a sitting of one of the Parlia- 
 houses of parliament or of a number of its members for considering mental T- 
 questions of detail ; hence committees are distinguished as " committees 
 of the whole house," 3 and "select committees," consisting of certain Select, 
 members appointed by the house to inquire into and report on a par- 
 ticular matter for the information of the house, 3 especially such matters 
 as involve the examination of witnesses ; e.g. a private bill 4 or an inquiry 
 into an alleged public abuse, or the like. 
 
 § 3. The principal function of committees of the whole house is to Committees 
 consider bills which have been read a second time and to amend them ££*| whole 
 where necessary. 5 In the House of Commons two committees of the 
 whole house also sit at intervals throughout the session, one (called the 
 Committee of Supply) for the purpose of considering how much money is Committees 
 required for the public expenditure, the other (called the Committee of ° upp y ' 
 Ways and Means) for providing that money by sanctioning the imposition and of Ways 
 of taxes and the application of public revenues. 6 The recommendations 
 of the latter are carried into effect by the Annual Appropriation Act.' 
 (See Appropriation, § 6.) 
 
 § 4. There are also committees nominated for purposes of parlia- 
 mentary business, e.g. the Committee of Selection, appointed by the Committee 
 House of Commons to classify private bills and arrange for their con- 
 sideration by select committees. 8 A bill is sometimes referred to what is 
 called a hybrid committee, consisting partly of members nominated by Hybrid 
 the house and partly of members nominated by the Committee of Selec- Lomimttee - 
 tion. 3 (See Bill, § z.) 
 
 COMMITTEE OF INSPECTION is a number of persons, not ex- 
 ceeding five, chosen by the creditors in a bankruptcy or liquidation from 
 among their own body for the purpose of superintending the administra- 
 tion by the trustee of the bankrupt's property, 10 auditing his accounts, &c. n 
 There are certain things which the trustee can only do with the sanction 
 of the committee of inspection, such as mortgaging the bankrupt's pro- 
 perty to raise money for the payment of his debts. 13 
 
 COMMODATUM. See Bailment, § 3. 
 
 COMMON. — I. § 1. In the technical sense of the words, a common 
 (or right of common) is the right of taking some part of any natural 
 product of the land or water belonging to another man in common with 
 
 1 Elmer, Pr. in Lunacy, passim; Pope 7 Ibid. 637. 
 on Lunacy, 92. 8 Ibid. 745. 
 
 2 May, Pari. Pr. 392. 9 Ibid. 811. 
 
 3 Ibid. 408. 10 Bankruptcy Act, 1869, ss. 14, 125. 
 
 4 Ibid. 414. u Ibid. 3. 20. 
 
 5 Ibid. 500 et seq. 13 Ibid. s. 27. 
 
 6 Ibid. 616. 
 
i68 
 
 Common 
 
 LAW DICTIONARY. 
 
 Common 
 
 Common of 
 pasture. 
 
 Appendant. 
 
 him. Therefore, the right to take the whole of the product, or to exclude 
 the owner from taking it, is not a common — though sometimes called a 
 sole common— but an estate in land : " for it is against the nature of this 
 word common ; and it was implyed in the first grant that the owner of 
 the soyle should take his reasonable profit there." 1 Hence, also, a right 
 of common cannot be claimed by custom, because, the number of 
 claimants under a custom being indefinite, the subject of the right would 
 be liable to be entirely destroyed. 2 The only exception to this rule occurs 
 in the case of copyholders, who may claim a right of common against their 
 lord by virtue of a custom in the manor. The reason of this is, that copy ■ 
 holders are but tenants at will to their lord, and therefore cannot claim 
 by prescription except in his name; as they could not claim a right in his 
 name against himself, they would not be able to claim at all if they were 
 not allowed to claim under a custom. 3 Most rights of common may be 
 created by grant at the present day, or may be claimed by prescription. 
 (See Appendant ; Appurtenant; Lost Grant; Prescription^) 
 
 § 2.- A common is an incorporeal hereditament, and a species of profit 
 a prendre. (See Hereditament ; Profit.) 
 
 § 3. A person having a right of common is called a commoner. (See 
 Commonable.) 
 
 Commons are of four principal kinds, viz., common of pasture, of 
 estovers, of turbary, of piscary; the remaining rights are generally 
 classed together as miscellaneous. 
 
 A. § 4. Common of pasture is the right of feeding one's beasts upon 
 another's land ; the most usual instances of this are : the right of the 
 tenants of a manor to pasture their beasts on the waste, woodlands, &c. 
 of the manor ; the right of pasture over royal forests possessed by persons 
 owning land within the forest: 1 and the reciprocal rights of pasture 
 possessed by owners of shack-lands, lammas-lands, lot-meadows, &c. 5 
 {infra, § 7 ; and Commonable, § 2). But any owner of land in fee simple 
 may grant to another person the right of pasturing animals on his land, 
 and the right of common so created may be either appurtenant or in 
 gross. 6 
 
 Common of pasture is either appendant, appurtenant, because of 
 vicinage, or in gross. 1 § 5. Common of pasture appendant is the right 
 which every freehold tenant of a manor possesses to feed his cattle used 
 in agriculture {i. e. horses, cattle and sheep) upon the lord's waste, pro- 
 vided they are levant and couchant on the tenant's freehold land. It 
 is said to exist " of common right," because (as it is usually put) on 
 every original feoffment of arable land to be held of the manor in socage, 
 the law, without express words, presumed a grant of sufficient pasture in 
 the waste for the beasts levant and couchant on the land. The more 
 correct view appears to be that the right of common appendant is trace- 
 
 1 Co. Litt. 122 a. 
 
 2 "Williams on Commons, 194 
 ford, R. P. Stat. 30. 
 
 3 Williams, 17; Elton, Copyh. 215. 
 
 4 Commissioners of Sewers v. Glasse, 
 Shel- L.R., 19 Eq. 134; Cooke, Incl. 45. 
 4 Cooke, Incl. 42. 
 » Williams, 168, 184. 
 '' Co. Litt. 122 a. 
 
Common law dictionary. Common 169 
 
 able to the village communities or vills which existed in England at the 
 time of the Conquest. The right of common appendant cannot be 
 created since Quia Emptores, that statute having prohibited the creation 
 of new manors, and the land to which such a right is appendant must 
 originally have been arable. 1 (See Appendant ; Levant and Couchant.) 
 
 § 6. Common of pasture appurtenant is a right annexed to certain Appurtenant, 
 lands, by virtue of which the owner of those lands feeds cattle on the soil 
 of another person ; 2 it differs from the right of common appendant 
 {supra, § 5) in all the characteristics which arise from the connection of 
 the latter with the socage tenure of ancient arable land in a manor : 3 it 
 may, therefore, be held by copyholders or strangers to a manor, and may 
 arise by grant or prescription since Quia Emptores, and is not necessarily 
 confined to commonable beasts. 4 (See Commonable, § 1.) 
 
 § 7. Common of pasture appurtenant may be either simple or reciprocal : Simple. 
 the former occurs where the owner of the waste has no pasture over 
 the tenant's land in return, the latter where neighbours have a mutual Reciprocal, 
 right of turning out cattle to feed on each other's land. The simple 
 right is usually exercised upon the waste of a manor by the tenants, and 
 strangers who can show a grant or prescribe : these may be either indi- 
 vidual landowners in the neighbourhood, or a whole body of tenants 
 within an adjoining lordship. The reciprocal right is found in shack 
 fields, and open meadows or common fields, which at certain seasons are 
 open to the cattle of all the proprietors of allotments. Such a right may 
 also be alternate as well as reciprocal, 5 as if one township has common Alternate, 
 in another during one season, and the second has common in the first 
 during the next, and so on. 6 
 
 §8. Common because of vicinage (pur cause de vicinage, causa Pur cause de 
 vicinagii) is where the tenants of two adjoining manors, the inhabitants of vlclna g e ; 
 two adjoining townships, or the owners of two contiguous pieces of land,' 
 have from time immemorial " intercommoned," i. e. allowed each other's 
 cattle to stray and pasture on each other's land, or on a waste or open 
 field lying between their lands. The reason for which this kind of com- 
 mon is allowed in law to exist is to avoid the disputes which would arise , 
 on both sides if actions could be brought for trespass, or if distress 
 damage feasant could be made whenever the cattle of one person stray 
 over the undivided land of the other. 8 Consequently, either party may 
 put a stop to it by enclosing his land. 9 The chief difference between 
 this and the other kinds of common is, that a commoner pur cause de 
 vicinage may not put his beasts into another's land, but must first put 
 them into his own land, "and then the beasts may well stray and go into 
 the other common without being distrained. 10 
 
 1 Williams, 31 ; Williams, R. P. Ap- N. S. 620. 
 
 pendix (C) ; Elton, Comm. 47. 8 Elton, 71 ; Tyrringham's Case, 4 Co. 
 
 2 Cooke, Incl. 19; Williams, 168. 37. 
 
 3 Elton, 62. 9 Co. Litt. 122 a. 
 
 * Co. Litt. 122 a. 10 Anon., 1 Dyer, 47 b. For the other 
 
 5 Elton, 65 ; Williams, 57. differences, see Elton, Comm. 72 ; Cooke, 
 
 6 Anon., 1 Dyer, 47 b. Incl. 29; Commissioners of Sewers v. 
 
 7 See Jones v. Rodin, 10 Ad. & El. Glasse, L. R., 19 Eq. at p. 159. 
 
170 
 
 Common 
 
 LAW DICTIONARY 
 
 Common 
 
 In gross. 
 
 Common of 
 estovers. 
 
 Common of 
 turbary. 
 
 Common of 
 piscary. 
 
 Common of 
 
 Common of 
 fowling. 
 
 § 9. Common of pasture in gross differs from the foregoing varieties of 
 common in being unconnected in any way with the tenure or occupation 
 of land. It may be created either (1) by the owner of a common appur- 
 tenant for a fixed number of cattle alienating the common without the 
 tenement to which it belongs, or (2) by the owner of land granting to 
 another man and his heirs the right to put beasts on the land of the grantor, 
 with or without restrictions as to number and time of year. It is also 
 said that a common in gross may be claimed by prescription in respect of 
 mere inheritance. 1 (See Prescription?) 
 
 § 10. Common appendant, appurtenant, and in gross, are either certain 
 by number, that is, for a certain number of beasts, or certain by levancy 
 and couchancy (q. v.), or sans nombre z (q. v.). 
 
 The following rights of common differ from common of pasture in being 
 limited to those parts of the land where the product is found, while com- 
 mon of pasture extends to every place across which the cattle may wander 
 in search of food, although there may be no pasture there. 3 
 
 B. § 11. Common of estovers is the right of taking from the woods or 
 waste lands of another person a reasonable portion of his timber or under- 
 wood for use in the commoner's tenement. As to the different kinds of 
 estovers, see Estovers. Common of estovers is either appurtenant, that 
 is, annexed to land, or in gross, that is, existing independently of land 4 
 (see supra, §§ 6, 9 ; and In Gross ; Appurtenant). 
 
 § 12. Another species of common, often included under common of 
 estovers, is the right to take for use on the commoner's tenement part of 
 the wild herbage and brushwood (such as heath, furze, broom, fern, rushes, 
 and, in some manors, hay) from the land of another. 5 
 
 C. § 13. Common of turbary in its modern sense is the right of taking 
 peat or turf from the waste land of another for fuel in the commoner's 
 house. 6 It appears that formerly a distinction was drawn between peats 
 (turbo) from a peat-moss or boggy ground, and " flags " (French Heches, 
 Latin blestice) or turves pared from the surface, and that strictly speaking 
 common of turbary does not give a right to take " flags," that being 
 destructive of the pasture.' The right is, however, unimportant at the 
 present day ; it is analogous to common of estovers, and is therefore 
 either appurtenant or in gross, but not appendant. 8 
 
 D. § 14. As to common of piscary, see Fishery. 
 
 E. § 15. Common of digging or common in the soil is the right to take 
 for one's own use part of the soil or minerals in another's land ; the most 
 usual subjects of the right are sand, gravel, stones and clay. It is of a 
 very similar nature to common of estovers and of turbary 9 (supra, §§ 11, 13; 
 and see Dole ; Tinbounding). 
 
 F. § 16. In some parts of the country a right of taking wild animals 
 
 1 Williams, 184. 
 
 2 Co. Litt. 122 a. 
 
 3 Elton, 229. 
 
 4 Elton, 82, where it is shown that there 
 is no such thing as common of estovers 
 appendant. Cooke, 34. 
 
 5 Elton, 117. 
 
 G Bl. Comm. ii. 35 ; Williams, 187. 
 
 7 Elton, 96. 
 
 8 Ibid. 99. 
 
 9 Ibid. 109. 
 
Common Assurances LAW dictionary. Common Employment 171 
 
 (such as conies or wildfowl) from the land of another has been found to 
 exist ; in the case of wildfowl it is called a common of fowling. 1 
 
 As to apportionment of commons, see Apportion, § 5. See also Sans 
 Nombre; Levancy and Couchancy ; Surcharge; Pawnage. 
 
 II. § 17. Common is sometimes used to denote certain rights which 
 resemble rights of common in the strict sense {supra, § 1) in giving a 
 person the right of taking the profits of land in common with others, but 
 nevertheless diifer from rights of common in some essential point. 
 Thus the right of the lord of a manor to take profits from the waste 
 of the manor in common with the tenants is not strictly a right of 
 common, because the waste is vested in him, and no one can have com- 
 mon in his own land. 2 (See Pasture ; Seignorial.) 
 
 § 18. So cattle-gates or stints, the rights of pasture of the inhabitants of 
 a parish or other similar class over lammas-lands, &c. are not rights of 
 common, though frequently so called, but shares in the vesture of land, 
 and therefore corporeal hereditaments. 3 
 
 III. § 19. Common also signifies a piece of land subject to rights of 
 common. As to the enclosure and regulation of commons under the 
 Commons Acts, see Inclosure. 
 
 COMMON ASSURANCES, in the language of the old books, are 
 those conveyances " by which commonly the property of things is made 
 or changed." 4 Property here, of course, means ownership. For the 
 various kinds of common assurances, see Conveyance ; see also Assurance. 
 
 COMMON BENCH is another name for the Court of Common 
 Pleas (q. v.) 
 
 COMMON CALAMITY. See Commorientes. 
 
 COMMON CARRIER. See Carrier. 
 
 COMMON EMPLOYMENT.— § 1. In the law of master and 
 servant, the common law rule is that a master is not liable to his servant 
 for injuries resulting from the negligence of a fellow servant in the course 
 of their common employment, unless the servant causing the injury was 
 incompetent to discharge his duty, or the servant injured was not at the 
 time acting in his master's employment. 5 § 2. The question whether 
 there is a common employment, that is, whether two servants are fellow 
 servants within this rule, depends on whether they are under the orders 
 and control of the same person, although their wages may be paid by 
 different persons ; 6 and they are not the less fellow servants because one 
 is a foreman and the other a subordinate workman, 7 or because the duties 
 
 1 Elton, 118. Fowler, 3 M. & W. I ; Wiggett v. Fox, 
 
 - Elton, Comm. 8; Cooke, Incl. 56. 11 Ex. 832. 
 
 * Elton, 31, n. (d). 6 Rourke v. White Moss Colliery Co., 
 
 1 Sheppard's Touchstone of Common 1 C. P. D. 556. 
 
 Assurances, 1. 7 Wilson v. Merry, L. R.., 1 Sc. & D. 
 
 5 Underfill! on Torts, 42 ; Priestly v. 326. 
 
172 Common Informer law dictionary. Common Law 
 
 of one are dissimilar from those of the other, provided the risk of injury 
 from the negligence of the one is so much a natural and necessary conse- 
 quence of the employment which the other accepts that it must be in- 
 cluded in the risks which have to be considered in his wages. 1 
 Employers' § 3 _ T ne common law rule on the subject has been altered by the 
 
 1880. ly °' Employers' Liability Act, 1880, which provides that a workman shall be 
 entitled to compensation for personal injuries caused (a) by reason of the 
 negligence of any person in the exercise of a superintendence entrusted 
 to him by the employer ; (b) by reason of the negligence of any person 
 in the service of the employer to whose directions the workman was 
 bound to conform and did conform, whereby the injury was caused ; 
 (c) by reason of the act or omission of any person in the service of the 
 employer, in obedience to some improper or defective rule, bye-law, &c. 
 of the employer; or (d) by reason of the negligence of any person in the 
 service of the employer who has the charge or control of any signal 
 points, locomotive or train on a railway. Provision is made by the act, 
 limiting the amount of compensation recoverable, the time for bringing 
 the action, &c. (which must, in the first instance, be brought in a County 
 Court), and other matters. 
 
 COMMON INFORMER. See Informer. 
 
 COMMON INTENDMENT— COMMON INTENT. See In- 
 tendment; Intent. 
 
 COMMON LAW, in the widest sense of the word, is that part of the 
 law of England which, before the Judicature Acts, was administered by 
 the common law tribunals, especially the former Courts of Queen's Bench, 
 Common Pleas, and Exchequer, as opposed to Equity (q. v.), or that part 
 of the law of England which was administered by the Court of Chancery. 
 
 § 2. The common law consists of (1) what may be called the original 
 common law, or those rules which have been administered by the common 
 law courts from time immemorial ; in this sense "common law" is opposed 
 to "statute": (2) those modifications and extensions of the original 
 common law which have been introduced by statute ; thus the course in 
 which lands descend by inheritance was formerly regulated entirely by 
 the original common law, but the present law of inheritance (though still 
 part of the common law) consists to a considerable extent of statutory 
 rules : (3) the customary law. 2 (See Custom.) 
 
 § 3. With reference to the subjects with which it deals, the common 
 law is divided into civil and criminal ; the former includes the two great 
 branches of private rights arising out of contracts and torts (q. v.) ; the 
 latter deals with crimes {q. v.). In addition to these subjects, the 
 superior courts of common law had jurisdiction in other matters by means 
 of the writs of habeas corpus, mandamus and prohibition (q. v.). 
 
 1 Morgan v. Vale of Neath R. Co., 2 See Bl. Comm. i. 67 etsea.; Broom's 
 
 L. R., 1 Q. B. 149. C. C. L. 3 etsea. 
 
Common Pleas LAW dictionary. Commonable 173 
 
 § 4. The jurisdiction of the superior courts of common law was by the 
 Judicature Act transferred to the High Court of Justice, but actions which 
 were formerly within the exclusive jurisdiction of any of the old common 
 law courts must still be brought in the corresponding division of the 
 High Court. (See High Court of Justice?) 
 
 COMMON PLEAS.— I. § 1. The Court of Common Pleas (or Com- 
 mon Bench) was originally the only superior Court having jurisdiction in 
 ordinary civil actions between private persons, although subsequently the 
 Courts of King's (or Queen's) Bench and Exchequer (q. v.) acquired con- 
 current jurisdiction in all actions, except real actions, in which the Court 
 of Common Pleas retained exclusive jurisdiction (see Dower; Quare Im- 
 pedit ; Action). It was a superior Court of record, consisting of a lord 
 chief justice and five puisne justices. 1 
 
 By modern acts of parliament exclusive jurisdiction was given to it in 
 appeals from revising barristers, in petitions against parliamentary elec- 
 tions, and in respect of acknowledgments under the Fines and Recoveries 
 Act. 
 
 § 2. By the Judicature Acts, 1873, 1875, the jurisdiction and judges of Common 
 the Court of Common Pleas were transferred to the High Court of Justice : Division, 
 the judges form a Division of the High Court called the Common Pleas 
 Division, and all actions which were formerly within the exclusive juris- 
 diction of the Court of Common Pleas must be assigned to that Division ; 
 the judges for the trial of election petitions, however, are now selected 
 from all the three common law divisions." 
 
 II. § 3. The Court of Common Pleas at Lancaster was a Palatine Common 
 
 Pleas at 
 
 Court having a local common law jurisdiction. By the Judicature Act its L ancas ter. 
 jurisdiction was transferred to the High Court of Justice. 3 (See County 
 Palatine; Palatine Courts!) 
 
 COMMON RECOVERY. See Recovery. 
 
 COMMON SERJEANT is a judicial officer of the Corporation of 
 the City of London. He is a kind of assistant or deputy to the recorder, 
 and as such is a judge of the Mayor's Court in the absence of the recorder: 4 
 he is also a judge of the Central Criminal Court (q. v.). 
 
 COMMONABLE in its widest sense is applied to a thing over, by, 
 or in respect of which a right of common may be exercised. Thus com- Commonable 
 monable land is land subject to a right of common; therefore under a land ( : 0- 
 grant of common of pasture, pasture-land only is " commonable," that is, 
 may be used by the commoner. 5 So a " commonable messuage " is a Commonable 
 house to which a right of common is attached ; 6 and "commonable beasts" messua g e - 
 (in the primary sense of the phrase) are those animals which a commoner tea™™?!? e 
 
 1 Smith's Action, 4 et seq. ; Bl. Comm. 4 Candy's Mayor's Court Pr. 2. 
 iii. 37 ;• Co. Litt. 71b. " Perkins, § 108. 
 
 2 Jud. Act, 1873, ss. 16, 31 etseq. e General Incl. Act, 1845, s - S3- 
 8 Ibid. s. 16 ; Bl. Comm. iii. 79. 
 
174 
 
 Commorancy 
 
 LAW DICTIONARY. 
 
 Commutation 
 
 Commonable 
 beasts (II.). 
 
 Commonable 
 rights. 
 
 Commonable 
 lands (II.). 
 
 is entitled to put on the common ; thus sheep are commonable beasts 
 under an ordinary right of common of pasture, but not in royal forests. 1 
 As the only commonable beasts in the case of common appendant are 
 beasts used in agriculture (horses, cattle and sheep), the phrase " com- 
 monable beasts " is generally confined to those animals, to the exclusion 
 of hogs, goats, geese, &c. 2 (See Pawnage.) 
 
 II. § z. "Commonable" is also used in a special sense as opposed to 
 "common;" thus commonable rights are rights of pasture over lammas- 
 lands, cattle-gates or stints, &c, which are not rights of common in the 
 strict sense (see Common, § 18), and "commonable lands" include not 
 only lammas-lands, cattle-gates, &c, but also shack-lands, open fields, &c. 
 which are subject to the rights of common, but differ from "common 
 lands," such as manorial wastes, &c, in being subject to severalty rights. 
 (See Severalty ; Common, § 7-) 3 
 
 COMMORANCY— COMMORANTS.— § i. Commorants are per- 
 sons residing within a certain district, and commorancy is the fact of their 
 residence there. Thus all persons commorant within the district of a 
 court leet (17. v.) were bound to attend its sittings in ancient times. 4 (See 
 Resiant.) 
 
 § 2. Formerly it was supposed that there might be a right of common 
 in the inhabitants of a vill or township by reason of their commorancy, 
 but the contrary was decided in Gateward's Case. 5 (See Common, § 1 ; 
 Custom; Easement!) 
 
 COMMORIENTES are persons dying together or simultaneously. 
 The term is applied to persons who perish by a common calamity (ship- 
 wreck, massacre, &c), so that it cannot be ascertained which died first. 
 Where they stand in the relation of ancestor and heir or the like, so that 
 the devolution of a right depends upon the order of death, the question 
 becomes of importance, but the English law provides no rules for deter- 
 mining the question in the absence of evidence. 6 
 
 Tithes. 
 
 Manorial 
 rights. 
 
 COMMUTATION is the conversion of the right to receive a variable 
 or periodical payment into the right to receive a fixed or gross payment. 
 Commutation may be effected by private agreement, but it is usually done 
 under an act of parliament. Thus, under the Tithe Commutation Acts, 
 " a rent-charge, varying with the price of corn, has been substituted all 
 over the kingdom for the inconvenient system of taking tithes in kind." 7 
 (See Tithes!) Under the Copyhold Acts the rents, fines, heriots or other 
 manorial rights of the lord of a manor may be commuted into a rent- 
 
 1 Manwood, 82. 
 
 2 Co. Litt. 122 a; Smith v. Feverett, 2 
 Mod. 7. 
 
 a Cooke, Incl. 42. 
 
 4 Bl. Comm. iv. 273. 
 
 6 6 Co. 59 ; Elton, Comm. 5. 
 
 " Best on Evidence, 525 ; Coote's Pro- 
 
 bate Pr. 182; Feame's Post. "Works. The 
 Roman law had a system of presumptions 
 to determine the question (Digest, xxxiv. 
 5, fr. 9 ; Savigny, Syst. ii. 20), some of 
 which have been adopted by the Code 
 Civil. 
 7 Wins. R. P. 347. 
 
Company LAW DICTIONARY. Company 175 
 
 charge (either fixed or varying with the price of corn), together with a 
 
 small fixed fine on- death or alienation, or in various other manners. 1 
 
 Under the Succession Duty Act the commissioners may commute duty Succession 
 
 presumptively payable for a certain sum to be presently paid ; 2 and under uty- 
 
 the Pensions Commutation Acts the right of an officer or other public Pensions. 
 
 servant to receive a pension may be commuted by the payment of a gross 
 
 sum of money. 
 
 COMPANY. — § 1. A company is an association of persons formed 
 for the purpose of some business or undertaking carried on in the name 
 of the association, each member having the right of assigning his share 
 to any other person, subject to the regulations of the company. 
 
 § 2. An incorporated company is a corporation formed for the purpose Incorporated, 
 of carrying on a business for profit. (See Association?) Such companies 
 are incorporated either (1) by charter (q. v.) ; 3 (2) by special act of par- 
 liament ; 4 or (3) by registration under one of the public general acts 
 relating to companies. 5 (See Companies Acts.) 
 
 § 3. Unincorporated companies are associations of individuals not Unincorpo- 
 forming a corporation, but carrying on business under a corporate name, rated - 
 and having certain qualities resembling those of incorporated companies. 
 To this class belong (1) companies formed under the act 7 Will. 4 & 
 1 Vict. c. 73, which enables the crown, without incorporating a company, 
 to confer upon it, by letters-patent, certain privileges, including the power 
 of suing and being sued by a public officer (q . v.) and limited liability ; 6 
 (2) companies formed under private acts of parliament, generally with the 
 power of suing and being sued by a director or other officer; 7 (3) com- 
 panies formed for banking under the act 7 Geo. 4, c. 46, and having 
 certain privileges, such as that of suing and being sued by a public 
 officer; 8 (4) cost book companies {q. v.) ; (5) companies formed without 
 the authority of a charter or act of parliament, and before 2nd November, 
 1862 (see Companies Act, 1862, s. 4), consisting of a large number of 
 members, with transferable shares, and a directorate for the management 
 of the business. The question whether such companies are illegal has 
 been much discussed. 9 To this class belong what are sometimes called 
 scrip companies, in which the members simply hold scrip certificates, 
 transferable by delivery. 10 (See Scrip.) 
 
 § 4. Companies are described as limited or unlimited, according as 
 the liability of their shareholders is or is not limited. In the case of an Unlimited, 
 unlimited company, each shareholder is liable to contribute to the debts 
 of the company to the full extent of his property (see Calls), but some 
 
 1 Elton, Copyh. 292. As to commuta- 3 Lindley on Part. 7, 152. 
 tion of penance in the ecclesiastical courts, * Ibid. 156. 
 
 see 4 Bl. 217. 5 For a history of these acts, see Thring 
 
 2 Stat. 16 & 17 Vict. c. 51, s. 41. This on Companies, 14 etseq. ; Lindley, 8 et seq. 
 power is seldom exercised unless there is 6 Lindley, 154. 
 
 some special reason, e. g. where the pro- 7 Ibid. 155. 
 
 perty subject to the duty is being sold, e Ibid. 162. 
 
 divided, or otherwise dealt with. Hanson, 9 Ibid. 11, 81, 189; Thring, 10. 
 
 Succ. Duties, 329. l0 Lindley, 128, 195. 
 
176 
 
 Company 
 
 LAW DICTIONARY. 
 
 Company 
 
 Limited by 
 shares ; 
 
 by guarantee. 
 
 Commandite 
 company. 
 
 ' ' Limited and 
 reduced." 
 
 Limited 
 company with 
 reserve capital. 
 
 Limited banks 
 of issue. 
 
 Joint stock 
 companies. 
 
 Public and 
 
 private 
 
 companies. 
 
 insurance companies, though strictly speaking unlimited, are practically 
 limited by the insertion in each policy of a clause, restricting the claim 
 of the assured to the amount remaining unpaid-up on each share. 
 
 § 5. A company is limited either by the amount of the share which 
 each member takes in the company, and beyond which he therefore 
 cannot be compelled to contribute to the debts of the company (company 
 limited by shares), or by the amount which each member undertakes by 
 the memorandum of association (g. v.) to contribute to the assets of the 
 company in the event of its being wound up (company limited by 
 guarantee) ; the latter mode is used in the case of companies supported 
 by annual subscriptions, or formed on the principle of mutual assurance. 1 
 There is a hybrid kind of company in which the liability of the share- 
 holders is limited (either by shares or by guarantee), while the liability 
 of the directors or managers, or the managing director, is unlimited. 2 
 Provision for the creation of such companies seems to have been con- 
 sidered desirable from a mistaken view of the nature of French societh en 
 commandite ; the provision is a dead letter. (See Commandite.) 
 
 § 6. A company formed for profit must, if the liability of its members 
 is limited, have the word " limited " as the last word in its name. 3 When 
 a company limited by shares has obtained the leave of the Court to 
 reduce its capital, the words " and reduced " must be added and used as 
 the last words of its name for a certain period to be fixed by the Court. 4 
 (See Reduction of Capital.) 
 
 § 7. Under the Companies Act, 1879, a limited company may create a 
 reserve capital as security for its creditors, by providing that a certain 
 portion of its capital shall not be capable of being called up except in 
 the event of the company being wound up. 
 
 § 8. A bank of issue registered as a limited company is not entitled to 
 limited liability in respect of its notes. 6 
 
 § 9. Joint stock companies are those having a joint stock or capital 
 which is divided into numerous transferable shares, or consists of trans- 
 ferable stock. 6 (See Stock.) The term "joint stock" was originally 
 applied to those companies which were formed without the authority of 
 any statute ; and afterwards to those formed under various acts from 1825, 
 including the Joint Stock Companies Acts of 1844, 1856 and 18S7. 7 
 
 § 10. Companies are sometimes divided into public and private; "but 
 in this, as in many other instances, the word public is used with no 
 definite signification ; and it is extremely difficult to say exactly what the 
 essential character of a public company really is. It has, however, been 
 decided that banking companies, governed by the 7 Geo. 4, c. 46 {supra, 
 § 3), are public companies within the meaning of the statute 1 & 2 Vict, 
 c. no, s. 14 8 [enabling separate creditors of shareholders in public com- 
 
 1 Thring on Companies, 129. 
 
 3 Companies Act, 1867, ss. 4 et seq. 
 
 3 Companies Act, 1862, ss. 8, 9, 41, 42; 
 Companies Act, 1867, s. 23. 
 
 4 Companies Act, 1867, s. 10; Thring 
 on Companies, 214; Companies Act, 1877. 
 
 5 Act of 1879, s. 6. 
 
 6 Lindley, 6. And see Companies Act, 
 1862, s. 181. 
 
 7 Lindley, 5 ; Thring, 10. 
 
 8 M'Intyre v. Connell, 1 Sim., N. S. 
 225. 
 
Companies Acts. LAW dictionary. Compensation 177 
 
 panies to obtain charging orders on their debtors' shares (see Charging 
 Order)] ; and from that decision it would seem that those companies only 
 are public which are either incorporated, or if unincorporated are endowed 
 by the crown or the legislature with some special privileges, and are bound 
 to make some kind of return or list of their members which the public 
 have a right to see. A mere partnership, however large and however 
 transferable its shares, is apparently not a public company." l §11. Some- 
 times, however, "private company" is used to denote a company the 
 shares in which are held by a few persons personally acquainted with one 
 another and are not dealt with in the market. (See Association ; Corpora- 
 tion; Partnership.) 
 
 COMPANIES ACTS. The principal Companies Acts now in 
 force are — 
 
 (i) The Companies Clauses Consolidation Acts, 1845 and 1863, con- Companies 
 taining provisions applicable to companies incorporated by special acts of Clauses Acts, 
 parliament, such as railway and canal companies. (See Act of Parliament, 
 
 §50 
 
 (ii) The Companies Acts, 1862 to 1879, regulating the incorporation, Companies 
 management and dissolution of companies formed under them. As the ^vf' ' 2 
 majority of modern companies are formed under these acts, it may be 
 convenient to state generally that under their provisions any seven or 
 more persons associated for any lawful purpose may form themselves into 
 an incorporated company, with or without limited liability, by subscribing 
 a memorandum of association and causing it to be registered at the 
 Registry of Joint Stock Companies ; provision is made for meetings and 
 resolutions of the members, the periodical returns to be made to the 
 registrar, and for the winding-up of the company. (See the various titles, 
 also Articles of Association.) 
 
 (iii) There are also various miscellaneous acts relating to companies, Miscellaneous, 
 such as the Companies Seals Act, 1864, enabling an English company to 
 have a seal for use abroad ; and the Joint Stock Companies Arrange- 
 ment Act, 1870, to facilitate compromises and arrangements between 
 creditors and shareholders of companies in liquidation ; and acts relating 
 to special kinds of companies, such as railway and life assurance com- 
 panies. 
 
 COMPARISON OF HANDWRITING.— By the common law it 
 was not allowable to prove the handwriting of a party to a document by a 
 comparison between it and other documents proved or assumed to be in 
 his handwriting. 2 This rule was practically abolished by the Common 
 Law Procedure Act, 1854, ss. 27, 103, and 28 Vict. s. 18. 3 
 
 COMPENSATION is a recompense or reward for some loss, injury 
 or service, especially when it is given by a statute. Thus acts for the 
 
 •• Lindley, 13. 2 Best on Evidence, 333. 3 Ibid. 343. 
 
 S. N 
 
i 7 8 
 
 Competency 
 
 LAW DICTIONARY. 
 
 Composition 
 
 Vendor and 
 purchaser. 
 
 Absolute. 
 Relative. 
 
 construction of railways and other public works provide for the payment 
 of compensation to the owners of land taken compulsorily for the pur- 
 poses of the works;' so the Agricultural Holdings Act, 1875 (?.».), 
 provides for the payment of compensation to agricultural tenants for 
 improvements (draining, manuring, &c.) executed by them on their 
 holdings, and unexhausted at the time the tenancy is determined; 2 and 
 stats. 7 Geo. 4, c. 64, and 14 & 15 Vict. c. 55, empower courts of criminal 
 jurisdiction to award compensation to persons who have been active in 
 the apprehension of prisoners charged with certain crimes. (See also 
 Common Employment, § 3.) 
 
 § 2. In agreements between vendors and purchasers of real estate, it is 
 usual to stipulate that errors, misdescriptions and omissions in the par- 
 ticulars of sale or description of the property, shall not avoid the sale, but 
 be the subject of compensation. But such a stipulation will not protect 
 the vendor in the case of a misdescription arising from fraud or gross 
 negligence, or of such a nature that in the absence of it the purchaser 
 would presumably not have entered into the contract at all. 3 
 
 § 3. As to the doctrine of compensation with reference to questions of 
 equitable election, see Election. 
 
 COMPETENCY— COMPETENT.— § 1. A person is said to be 
 competent to testify, or a competent witness, when he is allowed by law 
 to give evidence on a trial or other judicial inquiry. The question of a 
 witness's competency may arise either with reference to his ability to give 
 evidence generally (absolute incompetency), or with reference to a par- 
 ticular fact or inquiry (relative incompetency). Thus an idiot is not com- 
 petent to give evidence at all, while a person accused of a crime is not 
 competent to give evidence as to it ; nor is the husband or wife of such 
 a person. 4 
 
 § 2. Competency is of course a different thing from credibility {q. v.). 
 
 COMPLAINT. — § 1. In proceedings before justices of the peace to 
 obtain an order for the payment of money, the proceedings are com- 
 menced by a complaint, which is a statement of the facts of the case 
 made by the complainant or person aggrieved, sometimes in writing, some- 
 times verbally. 5 § 2. As to bills of complaint, see that title. 
 
 COMPOSITION, in its widest sense, is an arrangement between 
 two or more persons for the payment by one to the other or others of a 
 sum of money in satisfaction of an obligation to pay another sum differing 
 either in amount or mode of payment. " Composition" also signifies the 
 sum so agreed to be paid. (See Compound.) 
 
 1 Lands Clauses Cons. Act, 1845, ss. 21 
 et seq. ; Railways Clauses Cons. Act, 1845, 
 3. 6 ; Hodges on Railways, 200 et seq. 
 
 2 Sects. 5 et seq. 
 
 3 Dart, V. & P. 134 et seq. See In re 
 Arnold, 14 Ch. D. 270. 
 
 4 Best on Evidence, 188 et seq. ; Omy- 
 chund v. Barker, I Atk. 21 ; stats. I & 2 
 Vict. c. 105 ; 6 & 7 Vict. c. 85 ; 14 & 15 
 Vict. c. 99 ; 16 & 17 Vict. c. 83 ; 22 & 23 
 Vict. c. 61 ; 32 & 33 Vict. c. 68 ; 40 Vict, 
 c. 14. 
 
 Stone's Justice of the Peace, 75. 
 
Composition LAW DICTIONARY. Composition Deeds 179 
 
 § 2. Compositions are generally entered into by a person who is unable 
 to pay all his debts in full, and whose creditors have agreed to accept a 
 certain proportion .of their debts, and release him from the rest, either 
 absolutely or conditionally on the composition being duly paid. 1 Such Composition 
 an arrangement is sometimes entered into by a deed, called a composi- deed- 
 tion deed (q. v.) ; but at the present day the statutory mode of composi- Composition 
 tion by an arrangement under the supervision of the Court of Bankruptcy ™ ^ kru t pt 2 °J 
 is generally adopted. 2 This may be done in two ways : — § 3. The creditors 
 in a bankruptcy may by special resolution sanction the acceptance of a 
 composition offered by the bankrupt, but the terms must be sanctioned 
 by the court. 3 § 4. The creditors of a debtor unable to pay his debts Composition 
 may, without any proceedings in bankruptcy, by an extraordinary resolu- ""g 61 sect- 
 tion, resolve that a composition shall be accepted in satisfaction of their 
 debts: certain formalities as to notice, &c, have to be complied with, 
 and the debtor is required to present a statement of his assets and debts. 
 If properly passed, the resolution, with the statement, is registered in the 
 Court of Bankruptcy, and is then binding on all the creditors named in 
 the debtor's statement ; the composition may be enforced by motion to 
 the court. 4 ' Proceedings by composition under sect. 126 somewhat re- 
 semble proceedings by liquidation {q. v.) ; but in the case of a composi- 
 tion, the property of the debtor is not taken out of him and vested in a 
 trustee, nor distributed in the same manner in bankruptcy as is the 
 case in liquidation ; for the debtor must be left in possession of his pro- 
 perty to enable him to pay the composition. 5 
 
 § 5- In the law of tithes any owner of land may claim exemption from Real com- 
 tithes in respect of that land by reason of a real composition, which is an position, 
 agreement made between him and the incumbent, with the consent of the 
 ordinary and the patron, that the land shall for the future be discharged 
 from payment of tithes by reason of some land or other real recompense 
 given in lieu and satisfaction thereof. 6 
 
 COMPOSITION DEEDS are of two kinds :— 
 § 1. In the most general sense of the word, a composition deed is one 
 executed by a debtor and his creditors or a majority of them for the pur- 
 pose of winding-up the debtor's estate without recourse to the Court of 
 Bankruptcy. Thus a debtor may by deed assign all his property to trustees 
 in trust to realize it and distribute the proceeds rateably among the 
 creditors or to pay them a stated composition (q. v.). Such a deed is an 
 act of bankruptcy (q. v.). 
 
 § 2. In the stricter meaning of the term a composition deed is one by 
 which the debtor either alone or in conjunction with a surety, covenants 
 to pay a stated composition to his creditors. This is followed by a 
 declaration by the creditors that they will accept the composition in full 
 discharge of their claims. 7 
 
 1 Robson's Bankruptcy, 213. In re Kearly 6" Clayton, 7 Ch. D. 615 ; 
 
 2 But see Jenneyv. Bell, 2 Ch. D. 547. Breslauer v. Brown, 3 App. Ca. 672. 
 
 3 Bank. Act, 1869, s. 28. 6 Steph. Comm. ii. 727 ; stat. 2 & 3 
 
 4 Ibid. s. 126. Will. 4, c. 100, s. 2. 
 
 5 In re Adams, L. R., II Eq. 204; ' Davids. Conv. v. (2), 518. 
 
 N 2 
 
180 Compound law dictionary. Compromise 
 
 § 3. Composition deeds are not often entered into except for the purpose 
 of carrying out a resolution for composition under sect. 126 or sect. 28 of 
 the Bankruptcy Act, 1 869, because if the concurrence of all the creditors 
 is not obtained, the deed is not binding on the minority creditors who do 
 not join, and therefore they have to be paid in full. 
 
 See Bankruptcy ; Inspectorship Deeds ; Letter of Licence ; Liquidation. 
 
 COMPOUND.— I. § 1. To compound for a debt is for a debtor and 
 
 creditor to agree that the creditor shall accept a composition or smaller 
 
 sum in discharge of the original debt, e. g. on the ground of the debtor's 
 
 inability to pay the whole. (See Composition ; Accord and Satisfaction.) 
 
 § 2. To compound for a debt under a debtor's summons {q. v.) is to 
 
 arrange for the payment of it to the satisfaction of the creditor ; thus, 
 
 agreeing for securing the debt is compounding for it in this meaning. 1 
 
 Compounding II. § 3. In criminal law to compound a felony is to enter into an 
 
 felony. agreement, for valuable consideration, not to prosecute a person for 
 
 felony, or to show him favour in a prosecution, as where a person takes 
 
 back goods which have been stolen from him upon agreement not to 
 
 Compounding prosecute. It is a misdemeanor (q. ».). 2 It is also a misdemeanor to 
 
 pen action. com p OUn( j an action or information under a penal statute without leave 
 
 of the Court. 3 
 
 COMPOUND HOUSEHOLDER.— By the stat. 59 Geo. 3, c. 12, 
 s. 19, reciting that the payment of poor's rates was greatly evaded by 
 houses being let out in separate apartments or for short terms, it was 
 enacted that it should be lawful to rate the owners of such houses instead 
 of the occupiers. As the effect of this was to keep the names of the 
 occupiers off the rate-books and thus deprive them of their municipal 
 and parliamentary franchise, the stats. 14 & 15 Vict. c. i4, and 21 & 22 
 Vict. c. 43, enacted that such occupiers should have the same privileges 
 as if they were themselves rated to the relief of the poor, provided that 
 the rates were paid either by them or the owner. Such persons are 
 called " compound householders." See also stats. 30 & 31 Vict. c. 102 ; 
 32 & 33 Vict. c. 41 ; 41 & 42 Vict. c. 26, s. 14. 
 
 COMPTROLLER IN BANKRUPTCY is an officer whose duty 
 it is to receive from the trustee in each bankruptcy his accounts and 
 periodical statements showing the proceedings in the bankruptcy, and 
 also to call the trustee to account for any misfeasance, neglect or omis- 
 sion in the discharge of his duties. 4 
 
 COMPROMISE is where the parties to a dispute dispose of 
 it by agreement between themselves, whether legal proceedings have 
 been commenced or not. (See Accord and Satisfaction; Compound.) 
 
 1 Robson's Bankruptcy, 145. s stat. i8Eliz. c. 5; Steph. Crim. Dig. 
 
 2 Steph. Com. iv. 232. As to adver- 94. As to compounding misdemeanors, 
 tisements promising that no inquiry shall see Steph. Comm. iv. 234. 
 
 be made as to stolen goods if returned, see * Robson's Bankruptcy, 13 ; Bank. Act, 
 
 Advertisement, \ 2. 1869, s. 55. 
 
Compulsory LAW DICTIONARY. Concealment 
 
 COMPULSORY. — In ecclesiastical procedure, a compulsory is a 
 kind of subpoena to compel the attendance of a witness. 1 
 
 As to compulsory pilotage, see Pilotage ; and as to compulsory powers, 
 see Power. 
 
 CONCEALER. — Concealers are persons who, having obtained grants 
 from the crown of all "concealed" or forfeited lands within a parish or 
 other area, proceed to bring actions against and otherwise harass the 
 persons or bodies holding lands upon charitable trusts connected with 
 Church purposes ; thus by letters patent under the great seal, dated at 
 Gorhamburge, the 24th of July, 1570 (12 Eliz.), her Majesty promised to • 
 grant to Sir Thomas Wentworth, Knight, Lord Wentworth. ... all and 
 so many of all such her Majesty's lordships, manors and other heredita- 
 ments and advowsons to the same belonging within the realm of England 
 and the dominions of the same as then or at that time were concealed, 
 subtracted or unjustly detained from her Majesty. 2 Such grants are not 
 usual at the present day. 
 
 CONCEALING BIRTH.— Endeavouring to conceal the birth of a 
 child by any secret disposition of its dead body is a misdemeanor punish- 
 able by two years' imprisonment with hard labour. 3 
 
 CONCEALMENT is where a party to a contract does not disclose 
 a fact relating to it. § z. As a general rule, simple concealment, or simple, 
 rather non-disclosure, has no effect on the validity of the contract, 1 but in 
 certain cases it has. Thus, in the contract of marine insurance, conceal- 
 ment of a material fact, though made without any fraudulent intention, 
 makes it voidable at the insurer's election. 5 (See Insurance?) 
 
 §. 3. Wilful or fraudulent concealment is where the concealment amounts Fraudulent, 
 to fraud (q. v.). This occurs where a person has been induced to enter 
 into a contract or the like by means of the concealment by the other 
 party of a fact of which he was aware, and which if disclosed would have 
 prevented the first party from entering into the contract. The effect of 
 fraudulent concealment is to make the contract voidable at the option of 
 the party deceived. 6 
 
 § 4. "Active concealment" is where one party takes means to conceal Active, 
 a defect, or otherwise prevent the other party from learning a material 
 fact ; or makes a statement true in terms as far as it goes, but keeps 
 silence as to other things which if disclosed would alter the whole effect 
 of the statement, so that what is in effect told is a half-truth, equivalent 
 to a falsehood ; or allows the other party to proceed on an erroneous 
 belief to which the acts of the concealing party have contributed.' The 
 
 1 Phill. Eccl. Law, 1258. 6 Maude and Pollock, Merch. Shipp. 
 
 2 Alt.-Gen. v. Webster, L. R., 20 Eq. 398; Smith's Merc. Law, 394. 
 
 p a%a_ 6 Central Rail. Co. of Venezuela v. 
 
 3 Stephen'.s Crim. Dig. 155; Russell on Kisch, L. R., 2 H. L. at p. 120; Oakesv. 
 Crimes, I ; stat. 24 & 25 Yict. c. 100, Turquand, ibid, at p. 344. 
 
 s _ go, ' Pollock, 473 ; Benjamin on Sale, 384 ; 
 
 * New Brunswick, &c. Co. v. Cony- Peek v. Gurney, L. R., 6 H. L. 392; 
 
 beare, H. L. C. 711. Keates v. Earl Cadogan, 10 C. B. 591 ; 
 
 20 L. J., C. P. 76. 
 
 181 
 
1 82 Concessit law dictionary. Concurrent 
 
 general rule is, that where a person is induced to enter into a contract by 
 active concealment of a material fact, he is entitled to rescind the contract, 
 and (in some cases) to bring an action for misrepresentation or deceit. 1 
 Concealment § 5. Concealment is also in some cases a criminal offence: as where a 
 oftitle deeds, vendor Qr mort g a g 0r f real or personal property fraudulently conceals 
 any material title deed or incumbrance affecting the property. Such an 
 offence is a misdemeanor, punishable with two years' imprisonment and 
 hard labour. 6 (See Misrepresentation ; Fraud.) 
 
 CONCESSIT SOLVERE is a form of action of debt on simple 
 contract which lies by custom in the Mayors' Courts of London and 
 Bristol ; the declaration is to the effect that the defendant on a fictitious 
 date, in consideration of divers fictitious sums of money before that time 
 due and owing from him to the plaintiff and then in arrear and unpaid, 
 granted and agreed to pay {concessit solvere) to the plaintiff the sum sued for, 
 but has not done so. 3 It is said to have the advantage of being " a more 
 comprehensive count than almost any other," 4 and is therefore usually 
 adopted in proceedings in foreign attachment, in which most of the other 
 steps are equally full of fictions. (See Foreign Attachment.) 
 
 CONCILIUM. — In proceedings on a writ of error in a criminal case, 
 a rule directing the case to be put down in the paper for argument is ob- 
 tained as soon as the joinder in error is filed, This rule is called a rule 
 for a concilium ° {dies concilii, a day to hear counsel). Formerly a similar 
 rule was required .in a civil action when issue had been joined in 
 demurrer. 6 (See Writ of Error ; Joinder.) 
 
 CONCLUDE is to bar or estop {q. v.).' 
 
 CONCLUSION is (i) an irrebuttable presumption or rule of law (see 
 
 Presumption) ; (ii) an estoppel {q. v.). 
 
 § 2. In the old common law practice, that part of a pleading by which the party 
 offered that the issue raised should be tried by a jury was called a "conclusion to the 
 country." 8 (See Country.) 
 
 § 3. Under the old admiralty practice a party who had a right to plead further might, 
 if he thought fit, file what was called a conclusion, by which he denied the statements 
 in the preceding pleading, and prayed that the pleadings might be concluded. 9 It 
 answered to what is now called a joinder of issue (q. v.). 
 
 CONCORD, in the old books, signified an agreement for the compromise of a right 
 of action arising out of a trespass. 10 It also signified a part of a fine (q. v.). 
 
 CONCURRENT. See Jurisdiction ; Writ. 
 
 1 Peek v. Gurney, L. R., 6 H. L. at Pr. 139. 
 
 pp. 391, 403. 6 Archbold, Crim. PI. 205. 
 
 2 Stats. 22 & 23 Vict. c. 35, s. 24; 23 6 Tidd's Pr. 737. 
 
 & 24 Vict. c. 38, s. 8. 7 Co. Litt. 37 a, 170 a. 
 
 3 1 Wms. Saund. 94 (TurUWs Case). 8 Steph. PI. (5th edit.), 79. 
 
 See the form, Brandon, For. Attach. 159. 9 Williams and Brace's Admiralty, 249. 
 
 4 Brandon, 76 ; Candy's Mayor's Court 10 Plowd. 5. 
 
Condemnation LAW DICTIONARY. Condition 183 
 
 CONDEMNATION is where a Court of competent jurisdiction ad- 
 judges a prize or captured vessel to have been lawfully captured. The 
 effect of a condemnation is to vest the property in the captor, unless the 
 Court, either before or after condemnation, orders it to be sold or deli- 
 vered up on bail, in which case the proceeds of sale or appraised value 
 take the place of the property itself. The High Court of Justice, in its 
 Admiralty jurisdiction, is the principal Court for deciding such questions 
 in the British dominions. 1 (See Capture; Prize Courts?) 
 
 CONDITION. — I. § 1. A condition is a declaration or provision 
 which makes the existence of a right dependent on the happening of an 
 event, and the right is then called conditional, as opposed to an absolute 
 right. Thus if A. leaves a legacy in the following form : "I give 100/. to 
 B. if he shall act as my executor," the legacy is conditional, because B.'s 
 right to the 100/. is dependent on the fulfilment of the condition, that is, 
 on his acting as executor. 
 
 Conditions are either true or apparent. § z. A true condition is True, 
 where the event on which the existence of the right depends is future and 
 uncertain '* (" I give Blackacre to A. if B. shall die without leaving chil- 
 dren"). § 3. Apparent conditions, or conditions merely in form, are Apparent, 
 (i) where the event, though unascertained, is not future, but is either 
 happening at the time the condition is created (" if A. is now living"), or 
 has already happened ("if A. is dead"); (ii) where the event, though 
 future, is not uncertain, either because it must necessarily happen ("I 
 give Blackacre to A. if B. shall die"), or because its happening was 
 always impossible {infra, § 8) ; (iii) where the condition is a mere repeti- 
 tion or expression of something implied by law from the nature of the 
 right ; as if an estate is given to A. in tail, and if A.'s issue fail, then 
 to B. : here the words " if A.'s issue fail " do not create a condition, 
 being merely an unnecessary expression of what is implied in A.'s estate 
 tail, which can only last so long as he has issue. 3 
 
 With reference to their creation, conditions are either express or 
 implied. § 4. An express condition (or condition in deed) is one " ex- Express (in 
 pressed by the partie in legall termes of law," 4 as in the examples given deed )- 
 above. § 5. An implied condition (or condition in law) is one "created implied (in 
 by law without any words used by the partie," 5 whether the parties had it law )- 
 in their minds at the time or not ; thus, in every policy of marine insur- 
 ance, a condition or warranty that the vessel is seaworthy is implied in 
 law. 6 (See Warranty.) 
 
 With reference to their effects, conditions are of various kinds. 
 §. 6. A condition precedent is one which delays the vesting of the right Precedent, 
 until the event happens ; thus, if I give 100/. to A. if he shall act as my 
 
 1 Maude and Polloek, Merch. Shipping, * Co. Litt. 201 a ; Shepp. Touch. 117. 
 41 ; Manning's Law of Nations, 476; 5 Ibid. 
 
 Naval Prize Act, 1864. 6 Smith's Merc. Law, 377 ; Littleton 
 
 2 Savigny, System, iii. 121. (§§ 378 et seq.) calls conditional and col- 
 
 3 Feame, C. R. 242 ; Page v. Hay ward, lateral limitations, "conditions in law." 
 ibid. 424. (See Limitation.) 
 
1 84 
 
 Condition 
 
 ■LKW DICTIONARY. 
 
 Condition 
 
 Subsequent. 
 
 Possible. 
 Impossible 
 
 Dependent 
 
 Mutual. 
 
 Illegal. 
 
 executor, A.'s right to the legacy is dependent on a condition precedent, 
 because the performance of it must precede his receipt of the 100/ 
 § 7. A condition subsequent is where the event is to destroy or divest an 
 existing right; thus if I give an annuity of 100/. to C. so long as she 
 shall remain my widow, this creates a condition subsequent, because the 
 performance of it is subsequent to the vesting of the right. § 8. Condi- 
 tions are either possible or impossible. A condition may be impossible 
 either ab initio or by matter subsequent, and in the latter case the impos- 
 sibility may arise from the act of the person who is to perform the condi- 
 tion, of the person for whose benefit it is to be performed, of a stranger, 
 by the act of God {e.g. death), 1 by vis major, or by a combination of 
 these. Impossibility is either physical (" If A. go from the church of 
 St. Peter in Westminster to the church of St. Peter in Rome within three 
 hours" 2 ), logical ("I give my land to my executors if they shall sell it"), 3 
 or legal, where the act required is legally inoperative (" If A. shall make 
 Independent, a valid will during his minority" 4 ). § 9. Conditions are independent 
 when they must be performed without reference to one another, depend- 
 ent, when one has to be performed before the other need be performed, 
 and mutual, when one party need not perform his condition unless 
 the other is willing and ready to perform his. 5 § 10. A condition is 
 illegal when its performance is forbidden by law (" If you kill such a man 
 I will give you ten shillings "), 6 or where it is against some maxim or rule 
 of law (as if I make a conveyance to a man upon condition that he shall 
 not alien the land, this condition is repugnant and against law, and the 
 grantee takes the land absolutely 7 ). These divisions are important with 
 reference to the effect of nonperformance of the condition : thus, as a 
 general rule, if a condition precedent is illegal or impossible, the right 
 does not vest at all, while an illegal condition subsequent has no effect. 8 
 Again, if a condition precedent, which was originally -possible, becomes 
 impossible by the act of the person intended to be benefited, the right 
 vests as if the condition had been performed. 9 As to conditions in re- 
 straint of marriage, see Restraint 0/ Marriage. 
 
 II. § 11. In the old writers, condition is used in the technical sense 
 of a condition annexed to realty, which Coke defines as " a qualitie 
 annexed by him that hath estate, interest, or right to the same, whereby 
 an estate, &c. may either be defeated or enlarged or created upon an in- 
 certaine event." 10 As to estates on condition, see Estate. Formerly, 
 " condition " included both conditions in the strict sense, and what are 
 now more commonly called conditional limitations, the distinction being 
 that when a freehold 'estate is limited to cease on a condition, and the con- 
 dition happens, the person in whose favour the condition is reserved 
 must make an entry or claim, otherwise the estate continues ; in the case 
 
 Conditions 
 annexed to 
 realty. 
 
 1 Co. Litt. 206 a. 
 
 2 Ibid. 206 b; Britton, 62 b. 
 
 3 Dig. xl. 4, fr. 39 ; Britton, 62 b. 
 
 4 See Co. Litt. 206 b. 
 
 " Leake, Dig. 345 ; Jones v. Barkley, 
 2 Doug. 684. 
 
 c Britton, 62 b. 
 
 7 Co. Litt. 206 b. 
 
 8 "Watson, Eq. 1107. 
 
 » Co. Litt. 206 b ; "Watson's Comp. 
 Eq. 1 107. See Litt. §§ 355 et seq. 
 10 Co. Litt. 201 a. 
 
Conditional Limitation law dictionary. Conduct Money 185 
 
 of a conditional limitation, on the other hand, the estate determines ipso 
 facto on the happening of the event, and the remainder or reversion takes 
 effect in immediate possession. 1 (See Limitation.') If, however, a lease- 
 hold estate is granted on condition, it determines ipso facto on breach of 
 the condition without any entry being required, unless an entry is ex- 
 pressly stipulated. 2 
 
 § 12. Formerly, a condition was not assignable in any way, but by stat. 
 32 Hen. 8, c. 34, a condition annexed to a reversion passes on an assign- 
 ment of the reversion. 3 
 
 As to the apportionment of conditions, see Apportionment, § 4. 
 
 III. § 13. Condition is also used as equivalent to restriction or stipu- 
 lation, e.g. conditions of sale {q.v.). 
 
 § 14. The Land Transfer Act, 1875, provides for the registration, as 
 annexed to registered land, of conditions that the land is not to be built 
 on or put to a particular use, or of any other conditions running with or 
 annexed to land. 4 (See Covenant.) 
 
 CONDITIONAL LIMITATION. See Limitation. 
 
 CONDITIONS OF SALE.— When property is to be sold by auc- 
 tion, the terms on which the purchaser is to take it are usually specified 
 in a document called the conditions of sale, copies of which are distri- 
 buted among intending bidders. In the case of land, houses, &c, the 
 conditions are usually printed with the particulars of sale {q. v.) ; in the 
 case of furniture, books, &c, they are usually printed at the beginning of 
 the catalogue. 
 
 Conditions of sale of real property generally contain elaborate provi- 
 sions as to the title which the purchaser is to accept, and the means by 
 which it is to be proved. 5 On the conclusion of the sale the purchaser 
 signs a memorandum endorsed on the conditions, which thus form a 
 contract of sale. 
 
 (See Title ; Abstract.) 
 
 CONDONATION is forgiveness of a conjugal offence, with full 
 knowledge of all the circumstances ; its effect is to restore the offending 
 person to the same position which he or she held before the offence 
 was committed, so that the injured person cannot subsequently seek 
 redress for it by proceedings for a divorce or judicial separation. 6 (See 
 Revival.) 
 
 CONDUCT MONEY is money given to a witness to defray his 
 expenses of coming to, staying at, and returning from the place of trial. 
 A witness is entitled to decline to attend or be sworn until his expenses 
 have been paid or tendered to him. 7 
 
 1 Co. Litt. 214 b; Fearne, C. R. IS ; 5 Dart's Vendors and Purchasers, 114, 
 Leake, Prop. 223. 124 etseq. ; Davids. Conv. i. 505. 
 
 2 Co. Litt. 214 b ; Leake, 226. 6 Browne on Divorce, 94. 
 
 3 Williams, R. P. 246. See Entry. 7 Archbold, Pr. 322. 
 1 Sect. 84. 
 
i86 
 
 Confederacy 
 
 LAW DICTIONARY. 
 
 Confession 
 
 CONFEDERACY, in political and popular language, is a combina- 
 tion of persons for any purpose. In law, it has the technical meaning of 
 a combination for maintenance, as prohibited by the Ordinance of Con- 
 spirators (see Conspiracy), while the term conspiracy was appropriated to 
 false and malicious indictments. 1 
 
 Parlia- 
 mentary. 
 
 CONFERENCE is a meeting between a counsel and the solicitor 
 who instructs him (with or without the client), to discuss a question 
 arising out of the business in hand. 
 
 § 2. In parliamentary practice, " a conference is a mode of communi- 
 cating important matters by one house of parliament to the other, more 
 formal and ceremonious than a message, and sometimes better calculated 
 to explain opinions and reconcile differences. By a conference both 
 houses are brought into direct intercourse with each other, by deputations 
 of their own members : and so entirely are they supposed to be engaged 
 in it, that while the managers are at the conference, the deliberations 
 of both houses are suspended." 2 The most usual occasion of a con- 
 ference is where one house is unable to agree to the amendments made 
 by the othe'r in a bill pending in parliament. 
 
 Civil pro- 
 cedure. 
 
 Criminal law. 
 
 CONFESSION. — § i. In civil procedure, a confession is a formal 
 admission : thus, where a defendant in an action alleges any ground of 
 defence which has arisen after the commencement of the action (e. g. the 
 bankruptcy of the plaintiff), the plaintiff may confess the defence, that is, 
 admit its validity, by delivering a confession of defence, which is in the 
 nature of a pleading. 3 Under the old practice, this was called a confes- 
 sion of plea. 4 Such a confession puts a stop to the action, and entitles 
 the plaintiff to his costs up to the defence or plea confessed. 5 § 2. Under 
 the old practice, the defendant in an action of ejectment might confess 
 the action, that is, admit the plaintiff's claim, and so entitle him to judg- 
 ment, by delivering a notice to that effect ; 6 under the new practice, the 
 same result is obtained by the defendant abstaining from delivering a 
 defence. 7 (See Cognovit ; Warrant of Attorney.) 
 
 § 3. In criminal law, a confession is an admission of guilt, made either 
 judicially, that is, in the course of a judicial proceeding, or not. Judicial 
 confession may operate as an estoppel, and, if plenary, is sufficient to 
 found a conviction, as where a prisoner pleads guilty; 8 an extrajudicial 
 confession, if made freely, is admissible as evidence, but never operates 
 as an estoppel. 9 (See Plenary ; Plea; Approve, § 2.) 
 
 § 4. As to confessions to priests, see Confidential Communications, § 2. 
 
 1 Wright on Conspiracies, 15 
 
 2 May, Pari. Pr. 451. 
 
 3 Rules of Court, xx. 3. 
 * Day's C. L. P. Acts, 499. 
 6 See Fosters. Gamgee, I Q 
 
 Newington v. Levy, L. R., 5 
 6 C. P. 180. 
 
 6 Day's C. L. P. Acts, 197. 
 
 7 Rules of Court, xxix. 7. 
 
 8 Best on Evidence, 691 ; Roscoe, Crim. 
 Ev. 39. 
 
 9 Best, 693 ; Roscoe, 39. Confession 
 seems originally to have been applied espe- 
 
 B.D. 666; cially to an admission by record: thus a 
 C. P. 607 ; villein by confession was one who had con- 
 fessed himself to be a villein in a court of 
 record. Litt. § 175. 
 
Confession law dictionary. Confiscation 187 
 
 CONFESSION AND AVOIDANCE.— A pleading is said to be 
 in confession and avoidance when it confesses («". e., admits) the truth of 
 an allegation of fact contained in the preceding pleading, but avoids it (z'. e., 
 deprives it of effect) by alleging some new matter. Thus if the statement 
 of claim alleges a breach of contract, the defendant may confess and avoid 
 by admitting the breach and alleging that the plaintiff has waived it ; so 
 in an action for assault the defendant may plead son assault demesne (q. v.) ; 
 or if a defendant in an action on a covenant pleads a release, the plaintiff 
 may reply in confession and avoidance that it was obtained by fraud. 1 
 (See Traverse.) 
 
 CONFIDENTIAL COMMUNICATIONS, in the ordinary sense 
 of the term, are communications between a party and his solicitor, or 
 between the solicitor and the cpunsel, made during and with reference to 
 judicial proceedings, or in anticipation or for the purposes of such pro- 
 ceedings. Written communications are privileged from production, and 
 verbal communications and the contents of written communications are 
 privileged from discovery. (See Discovery; Production; Privileged) § 2. 
 The question whether communications made to spiritual advisers are Spiritual 
 privileged is one which has never been authoritatively decided, though ^Jj^mts "^ 
 there is (for obvious reasons) a strong leaning towards allowing the 
 privilege; 3 communications to medical advisers are not protected from 
 disclosure. 3 § 3. Communications between husband and wife are pro- 
 tected from disclosure, even after they are separated by divorce or death. 4 
 
 CONFIRMATION, in conveyancing, "is a conveyance of an estate 
 or right- in esse, whereby a voidable estate is made sure and unavoidable, 
 or whereby a particular estate is increased." 5 Thus where a person is 
 disseised of land and executes a deed of confirmation to the disseisor, the 
 estate of the latter becomes absolute. 6 A confirmation is also sometimes 
 used when there has been a previous conveyance of the property to the 
 grantee. 7 (See Adopt ; Affirm; Conveyance; Rectify.) 
 
 CONFIRMATION OF SALES ACT, 1862. See Minerals. 
 
 CONFISCATION, in international law, is where a state seizes pro- 
 perty belonging to another state, or to its subjects, and appropriates it. 
 Confiscation is the punishment for carrying contraband of war (q. v., and 
 Preemption) ; 8 or for attempting to carry supplies to a place beseiged or 
 blockaded. 9 
 
 Forfeiture as a punishment for smuggling, &c. is sometimes called 
 confiscation. 
 
 (See Blockade ; Search; Condemnation; Forfeiture?) 
 
 1 See Hall v. Eve, 4 Ch. D. 341; firmations, see Shepp. Touch. 311, and for 
 Smith's Action, 66. the differences between a confirmation and 
 
 2 Best on Evidence, 727 et seq. a release (q. v.), see Littleton, §§ 516 et 
 
 3 Ibid. 726. seq. 
 
 4 Ibid. 732 ; stat. 16 & 17 Vict. c. 83. ' Davids. Conv. 1. 72. 
 
 5 Co. Litt. 295 b. 8 Manning's Law of Nations, 352. 
 
 6 Litt. § 519- For the varieties of con- 9 Ibid. 400. , 
 
i8S 
 
 For election 
 of bishop. 
 
 For election 
 of deans. 
 
 Conflict of Laws law dictionary. Consanguinity 
 
 CONFLICT OF LAWS. See International Law. 
 
 CONFRONTATION. — In matrimonial suits in the Probate, Divorce 
 and Admiralty Division of the High Court (other than suits for dissolu- 
 tion) the respondent may be ordered to attend in Court while the 
 witnesses are giving evidence, so as to be confronted with them {i. e. 
 pointed out to them) for the purpose of identification. 1 
 
 CONFUSION OF BOUNDARIES. See Boundaries, §§ z, 3. 
 
 CONGE D'ELIRE (permission to elect) is a, licence from the 
 crown to the dean and chapter of a bishopric, allowing them to proceed 
 to the election of a bishop ; it is accompanied by a letter missive from 
 the crown, containing the name of the person whom he would have them 
 elect, " by virtue of which licence the dean and chapter shall with all 
 speed in due form elect and choose the said person named in the letters 
 missive, and none other, and if they delay their election above twelve 
 days after such licence or letters missive to them delivered, the king shall 
 nominate and present, by letters patent under the great seal, such person 
 as he shall think convenient." 2 
 
 § 2. A conge d'elire appears to be also used in the election of deans 
 on some of the old foundations. 3 
 
 In divorce. 
 
 CONGEABLE in the old books means lawful or allowable ; " disseisin is properly 
 where a man entreth into any lands or tenements where his entry is not congeable, and 
 ousteth him which hath the freehold," &c. 4 
 
 Etymology.]— Old French : conge, a temporary dispensation or liberation from a 
 duty ; from the Latin commeatus, furlough. 5 
 
 CONJUGAL RIGHTS. See Restitution of Conjugal Rights. 
 
 CONNIVANCE is where a person knows that a wrongful act is being 
 done, and either assists or does not interfere to prevent. Connivance may 
 take the form of fraud or conspiracy {q. v.). 
 
 § 2. In the law of divorce, connivance is where a person has consented 
 or acquiesced in an adultery committed by his or her wife or husband. It 
 is a defence to a petition for dissolution of marriage presented by the 
 conniving party. 6 (See Accessory; Condonation; Conspiracy.) 
 
 CONSANGUINITY is relationship by descent, either lineally, as in 
 the case of father and son, or collaterally, by descent from a common 
 ancestor: thus, cousins are related by collateral consanguinity, being 
 descended from the same grandfather or grandmother. The prohibited 
 degrees of consanguinity, namely, those which prevent marriage between 
 
 1 Browne on Divorce, 259. 
 
 2 Stat. 25 Hen. 8, c. 20 ; Phill. 
 Law, 42 ; Bl. Comm. i. 379. 
 
 3 Phill. 154. 
 
 4 Litt. § 279. 
 Eccl. -"■ Littre, Diet. s. v. 
 
 6 Browne on Divorce, 
 
Consent LAW DICTIONARY. Conservators of Rivers 189 
 
 persons so related, are set forth in the Book of Common Prayer.' (See 
 Affinity; Next-of-Kin ; Half Blood ; Cosinage.) 
 
 Etymology.] — Latin: consanguineus, related by the same blood; in Roman law 
 consanguinei = brothers and sisters descended from the same father, as opposed to 
 uterini = brothers and sisters descended from the same mother. 
 
 CONSENT. — § 1. Where there is a protector of a settlement of Settlement, 
 entailed lands, the tenant in tail cannot absolutely bar the entail 
 without the consent of the protector ; this consent may be contained 
 either in the disentailing assurance or in a separate deed. 2 Where the 
 Lord Chancellor is protector (which happens when the person who would 
 otherwise be protector is a lunatic) the consent consists of an order 
 authorizing the disentailment. 3 
 
 § 2. In civil procedure, an order to which the parties consent cannot Practice, 
 be appealed against ; but if the consent of any party is obtained by fraud 
 or the like, the order may be set aside : in such a case there is in truth no 
 consent. And a consent may be withdrawn at any time before the order 
 is perfected. 
 
 CONSEQUENTIAL. See Damages. 
 CONSERVANCY. See Conservators. 
 
 CONSERVATORS OF THE PEACE.— Before the present system 
 of appointing justices of the peace was invented, there were peculiar officers 
 appointed by the common law for the maintenance of the public peace. 
 Of these some had this power annexed to other offices held by them ; 
 others had it merely by itself. Those that were conservators of the peace 
 virtute officii still continue, including the crown, the lord chancellor, the 
 judges of the Queen's Bench Division and the coroners and sheriffs 
 within .their respective jurisdictions. The other kind of conservators are 
 superseded by the modern justices of the peace. 4 
 
 CONSERVATORS OF RIVERS are commissioners or trustees 
 in whom the control of a certain river is vested by act of parliament. It 
 is often a question whether the act gives the conservators the right of 
 navigation or passage only, or whether it also vests in them the soil of 
 the river and its banks. They generally have power to make locks, 
 towing-paths and similar works, to levy tolls, and to make and enforce 
 bye-laws for regulating the navigation and use of the river. 5 
 
 § 2. The conservancy of the river Thames is regulated by the acts 
 20 & 21 Vict. cap. cxlvii; 29 & 30 Vict. c. 89 ; 30 & 31 Vict. cap. ci ; 
 33 & 34 Vict. cap. cxlix. 6 
 
 1 Browne on Divorce, 72; Bl. Comm. ss. 24 et seq., 49 ; Order 5 et seq. 
 i. 434 ; Steph. Comm. ii. 194, 242. * Steph. Comm. ii. 642. 
 
 * Fines and Recoveries Act, ss. 42 et ' See Coulson and Forbes on Waters, 
 
 seq. 80 et seq. 
 
 3 Ibid. ss. 48, 49. As to consents 6 Ibid. 451 et seq. 
 
 under the Settled Estates Act, 1877, see 
 
190 Consideration LAW dictionary. Consideration 
 
 CONSIDERATION.— § 1. The consideration in a contract, con- 
 veyance or other legal transaction, is an act or promise by which some 
 right, interest, profit or benefit accrues to one party, or by which some 
 forbearance, detriment, loss or responsibility is given, suffered or under- 
 taken by the other, and in return for which the party who receives the 
 benefit, or for whom the detriment is suffered, promises or conveys some- 
 thing to the other. 1 Thus, in a contract of sale, the money paid or agreed 
 to be paid by the purchaser is the consideration to the vendor, and the 
 property sold is the consideration to the purchaser. So, if a person fore- 
 goes a legal right, that is a detriment to him which may form a considera- 
 tion for a payment or promise by the person against whom he might have 
 enforced the right. The consideration is said to move from the party who 
 produces the benefit or suffers the detriment of which it consists, and to 
 move to the other party ; every other person is said to be a stranger to it. 
 Thus, where A. being indebted to B. in 70/., made an arrangement with 
 C. that C. should pay the money to B., and that A. in return should convey 
 a house to C, in consideration of which C. promised to pay the 70/. to B., 
 it was held, in an action brought by B. to enforce C.'s promise, that B. was 
 a stranger to the consideration, and therefore could not recover. 2 Whether 
 the person receiving the consideration derives any benefit from it, or 
 whether it is adequate, is immaterial ; thus, if a man who owns some goods 
 allows another to weigh them, this being an inconvenience or detriment 
 suffered by him is a good consideration for the other's promise to give 
 them back in as good condition as before. 3 § 2. The doctrine of con- 
 sideration is of importance in many ways ; thus, an action does not lie 
 for breach of a contract not under seal, unless there is a consideration 
 between the parties (see Contract; Voluntary); nor will specific perfor- 
 mance of a gratuitous contract be enforced, even if it is under seal ; 4 and 
 although no consideration is required for the validity of a complete 
 declaration of trust or a complete transfer of any legal or equitable 
 interest in property, yet an incomplete voluntary gift creates no right 
 which can be enforced ; 5 thus, if a person expresses his intention of 
 voluntarily giving another an interest in property, but does not effect his 
 intention by absolutely parting with it, no trust is created. 6 (See also 
 Voluntary; Bill of Exchange, §3.) 
 
 In dealing with the various kinds of considerations it will be convenient 
 to assume that in each case the consideration forms part of a contract ; 
 that is, is in return for a promise, although, as already explained, it may 
 form part of a conveyance. 
 
 I. With reference to its connection with the promise in regard to time, 
 
 a consideration may be of various kinds. 
 
 Past or § 3. A past or executed consideration is some act performed, or some 
 
 executed. 
 
 1 Cume v. Misa, L. R., 10 Ex. p. 162 ; s Bainbridge v. Firtnstone, 8 A. & E. 
 Pollock on Contract, 147. Compare the 743. 
 
 definitions in Evans's Pothier, and in * Pollock, 164. 
 
 Chitty on Contracts, 16; Leake on Con- s Ibid. 165. 
 
 tracts, 10; Smith, L. C. 141, 188. e Warrinerv. Rogers, 16 Eq. 340. 
 
 2 Crowe v. Rogers, Str. 592 ; Chitty, 52. 
 
Consideration law DICTIONARY. Consideration 191 
 
 value given before the making of the promise. 1 Thus, if A. does an act 
 for B.'s benefit, and B. afterwards promises to pay him 50/. in return, the 
 consideration for B.'s promise is executed. The question is of import- 
 ance, because such a consideration is not sufficient to support the subse- 
 quent promise, unless a previous request can be shown or implied by law, 
 as if A. requested B. to do the act, and afterwards promised him the 50/.; 
 in such a case the same result is produced as if the promise had preceded 
 the act. 2 (See Request ; Promise; Contract?) 
 
 § 4. The consideration and the promise may be simultaneous ; that is, Simultaneous, 
 the promise may be given and the consideration executed at the same 
 time ; as where A. pays B. ready money in consideration for B.'s promise 
 to deliver him goods at a future time. 
 
 § 5. The consideration may be executory; that is, to be performed at Executory, 
 some future time. An executory consideration may be either an act which 
 the promisee is bound to perform (in which case the contract consists of 
 mutual promises ; see Promise), or simply an act which he may do or not 
 at his own pleasure : thus where A. promises B. that if he will sell goods 
 to C, A. will guarantee payment of the price ; here B. is not bound to 
 supply goods to C, and until he does so he has no claim on A. ; but, as 
 soon as he supplies goods to C, that forms a consideration for A.'s pro- 
 mise. (See Guarantie; Letter 0/ Credit.) 
 
 § 6. A continuing consideration is one which is part executed and in Continuing, 
 part executory, as where A., in consideration of his being tenant to B., 
 undertook to manage the farm in a husbandlike manner. 3 
 
 II. With reference to the nature of the act of which it consists : — 
 
 § 7. "A good consideration is such as that of blood, or of natural love "Good" and 
 and affection, being founded on motives of generosity, prudence, and 
 natural duty ;" 4 hence a "good" consideration is sometimes opposed to a 
 " valuable " consideration, i.e., one by which some benefit accrues to the 
 promisor or some detriment to the promisee as above explained. It seems 
 that the only purpose for which a good consideration in this sense is 
 effectual in law is to support a covenant to stand seised to uses 5 {q. v.) 
 and at the present day, covenants to stand seised being unknown, " good" 
 and "valuable," as applied to considerations, are synonymous terms. 6 
 
 § 8. A promise founded on an illegal consideration is void, whether Illegal, 
 the consideration is wholly or partly illegal. 7 (See Illegal; Unlawful.) 
 
 § 9. When a consideration does not produce the advantage which was Failure of 
 contemplated by the parties, it is said to have failed. Where a person consideration, 
 has paid money on the strength of a consideration which entirely fails, 
 he may, in some cases, recover it back r thus if A. sells goods which are 
 not his own to B., and the true owner subsequently claims them, B. may 
 recover the price which he paid to A., as having been paid for a consider- 
 ation which has failed. 8 
 
 1 Chitty on Contract, 48. 6 Ibid. 337 ; Shep. Touch. 512 ; Hayes's 
 
 2 Lampleigh v. Braithwaite, Hob. 106 ; Introd. to Convey. 102 ; Leake on Con- 
 Smith's L. C. 141. tracts, 312, n. (e). 
 
 s Chitty, 51. 6 Chitty, 18. 
 
 1 Bl. Comm. ii. 297. ' Leake, 322, 409. 
 
 8 Leake, 60. 
 
19- 
 
 Consistorial 
 
 LAW DICTIONARY. 
 
 Consolidation 
 
 CONSISTORIAL or CONSISTORY COURT is the principal 
 ecclesiastical court of a diocese, in which the chancellor or official prin- 
 cipal sits as judge. 1 (See Diocesan Courts?) 
 
 CONSOLIDATED FUND comprises the produce of the customs, 
 excise, stamps, and other taxes, with a few other sources of revenue, and 
 it constitutes almost the whole of the ordinary public income of the 
 United Kingdom. On it are charged the interest of the national debt, 
 the civil list, &C. 1 (See Appropriation, § 6.) 
 
 CONSOLIDATED ORDERS are the orders regulating the practice 
 of the Court of Chancery, which were issued in i860 in substitution for 
 the various orders which had previously been promulgated from time to 
 time. Some of the Consolidated Orders have been abrogated by the 
 provisions of the Judicature Acts and the new Rules of Court, but many 
 of them are still in force. (See Chancery?) , 
 
 Several 
 defendants. 
 
 Several 
 plaintiffs. 
 
 CONSOLIDATION OF ACTIONS is of three kinds— § 1. Under 
 the practice of the superior courts of common law, if several actions were 
 pending between the same parties for the same cause of action, or brought 
 by the same plaintiffs against different defendants for the same, or sub- 
 stantially the same, cause of action, the Court would stay proceedings in 
 all but one action. The application was most frequently made in actions 
 against underwriters on a policy of insurance ; in such a case, as the 
 question is the same against each underwriter, it was usual for the 
 defendants to move for what was called the consolidation rule — a rule 
 which was invented by Lord Mansfield, and the effect of which was to 
 bind the defendants in all the actions by the verdict in one, the pro- 
 ceedings in the others being stayed. The order did not bind the plaintiff 
 by the result of the selected action, and therefore if he failed in that 
 action he might proceed in the others ; if he was successful, the defend- 
 ants were jointly liable to contribute to the payment of the amount 
 claimed and the plaintiff's costs. 3 This practice has been adopted by the 
 Rules of Court under the Judicature Act, and is now applicable to actions 
 pending in any division of the High Court. 4 
 
 § 2. Another mode of consolidation is that applicable to the case of 
 several actions being brought by different plaintiffs against the same 
 defendant for the same cause of action ; here the Court will, on the 
 application of the plaintiffs, make one of the actions a test action by 
 enlarging the time for the plaintiffs to proceed with the other actions 
 until the test action has been decided, they consenting to be bound by 
 the result of that action ; the defendant is not so bound, and therefore, if 
 he is unsuccessful in the test action, he may nevertheless defend the 
 
 1 Phillimore, Eccl. Law, 1202. As to 
 the practice of the Consistory Court of 
 London, see Reg. Gen. 1877 (L. R., 2 
 P- D- 373)- 
 
 2 Steph. Comm. ii. 578 ; H. Cox, Inst. 
 89. 
 
 8 Archbold's Pr. 1085 ; Coe's Pr. 126. 
 4 Rules of Court, li. 4. 
 
Consolidation LAW DICTIONARY. Conspiracy 193 
 
 others when they are proceeded with. 1 If the selected action fails to 
 decide the real issue between the parties (as if the plaintiff in that action 
 suffers judgment to go by default against him), the Court will substitute 
 another action as the test action. 2 (See Action, § 5.) 
 
 § 3. Under the practice of the Court of Chancery and the Chancery Chancery 
 Division of the High Court, two suits or actions are said to be consoli- actlons - 
 dated when they are ordered to be carried on as one action, the parties 
 to one of them being distributed as plaintiffs or defendants in the other.* 
 
 § 4. In Privy Council practice, where there are several appeals against Privy Council 
 one judgment or relating to the same subject-matter, the Court will fre- a PP eals - 
 quently permit them to be consolidated, and to come on for hearing on 
 one printed case on each side, and a single appendix. 4 
 
 CONSOLIDATION OF SECURITIES.— If the owner of different 
 properties mortgages them to one person separately for distinct debts, 
 or successively to secure the same debt or the same debt with further 
 advances, and allows the time for redemption limited by all the mortgages 
 to go by, then the mortgagee may insist that one security shall not be 
 redeemed alone. Thus if A. mortgages Whiteacre to B. to secure 500/., 
 and afterwards mortgages Blackacre to B. to secure 1,000, A. cannot 
 redeem (that is, pay off) the mortgage on Whiteacre without also redeem- 
 ing the mortgage on Blackacre. Similarly where A. mortgages Whiteacre 
 to B. and Blackacre to C, and C. afterwards purchases B.'s mortgage, 
 A. cannot redeem one without redeeming the other. The doctrine has 
 been carried to such an extent that if A. assigns the equity of redemption 
 in Whiteacre to X., then X. cannot redeem Whiteacre without also re- 
 deeming Blackacre. 5 The rule, however, would not apply if the equity 
 of redemption in Whiteacre was assigned to X. before A. mortgaged 
 Blackacre, 6 and, as already stated, it does not apply except where the time 
 for redemption of each mortgage has gone by.' The doctrine also does 
 not apply to registered bills of sale of chattels. 8 
 
 " Consolidation" must not be confounded with " tacking," although 
 they are sometimes spoken of as synonymous. 
 
 CONSPIRACY consists in the agreement of two or more to do an 
 unlawful act, or to do a lawful act by unlawful means, whether the act is 
 committed or not. 9 (See Overt Act.) 
 
 I. § 2. In private law conspiracy is a tort in the nature of trespass, for Civil, 
 which the injured person has an action for the damage caused to him, as 
 where several persons conspire to falsely indict a man of a crime. 10 (See 
 Malicious Prosecution^) A combination among several persons to affect 
 
 1 Amos v. Chadwick, 4 Ch. D. 869. 6 Mills v. Jennings, 13 Ch. D. 639. 
 
 3 Robinson v. Chadwick, 7 Ch. D. 878 ; 7 Cummins v. Fletcher, supra. 
 
 Amosy. Chadwick, 9 Ch. D. 459. 8 Chesworth v. Hunt, 5 C. P. D. 266. 
 
 3 See In re Wortley, 4 Ch. D. 180. 9 Mulcahy^ v. Reg., L. R., 3 H. L. at 
 
 * Macpherson, Privy C. Pr. 91. p. 317; Wright on Conspiracies, where 
 
 6 Fisher on Mortgage, ii. 630 ; Williams, the criminal law of conspiracy is historically 
 
 R. P. 441 ; Cummins v. Fletcher, 14 Ch. explained. 
 
 D. 699. It is hoped that this absurd and 10 Finch, Law, 305 ; Steph. Comm. iii. 
 
 unjust doctrine will shortly be abolished. 384. 
 
 S. O 
 
194 
 
 Constables 
 
 LAW DICTIONARY. 
 
 Construction 
 
 constables. 
 
 the market price of a commodity by unlawful means (e. g. fictitious pur- 
 chases or sales) would also, no doubt, give a person injured thereby a 
 right of action against the conspirators. 1 
 Criminal. n, § 3. In criminal law a conspiracy is a misdemeanor 2 (q. v.) ; some 
 
 conspiracies, however, are subject to special punishments, e.g. a con- 
 spiracy to murder a person, the maximum punishment for which is ten 
 years' penal servitude. 3 Combinations among workmen to raise the rate 
 of wages were formerly conspiracies, being in restraint of trade, but this 
 is no longer so. 4 It has been said that, perhaps, few things are left so 
 doubtful in the criminal law as the point at which a combination of several 
 persons in a common object becomes unlawful. 5 
 
 High con- CONSTABLES are inferior officers of the peace, and are of various 
 
 kinds. § 1. The high constables are appointed at the courts leet of the 
 franchise or hundred over which they preside, or in default of such an 
 appointment, then by the justices at their special sessions. Their duty 
 seems to be to keep the peace within the hundred : but the office is in 
 
 Petty or parish process of abolition. 6 § 2. The principal duty of petty or parish con- 
 stables (who are appointed by the justices in petty sessions) is the pre- 
 servation of the peace within their parish or township ; they also have 
 assigned to them the service of the summonses and the execution of the 
 warrants of the justices of the peace. In many places they have been 
 superseded by the establishment of a county police, who are under the 
 superintendence of a chief constable appointed by the justices. 7 
 
 In boroughs subject to the Municipal Corporations Act (5 & 6 Will, 4, 
 c. 76), the constables are appointed by the watch committee of each 
 borough. 
 
 § 3. Special constables are persons appointed (with or without their 
 consent) by the magistrates to execute warrants on particular occasions, 
 as in the case of riots, &c. 8 
 
 Etymology.] — Low Latin amstabularius, from stabula, a stable, the first constables 
 having been originally masters of the king's stables and afterwards commanders of troops 
 in time of war or disturbance, especially on the borders of the kingdom. 9 
 
 CONSTITUENT is a person who appoints another to do some act 
 for him by power of attorney (q. v.). He is also called a principal (q. v.). 
 
 CONSTRUCTION is the process of ascertaining the meaning of a 
 written document. " Construction of law" is a fixed or arbitrary rule, by 
 which a result follows from certain acts or words without reference to the 
 intention of the parties : thus, " if a tenant for life maketh a lease generally, 
 
 Borough 
 constables 
 
 1 See Rex v. De Berenger, 3 M. & S. 
 67; Reg. v. Asfinall, 1 6. B. D. 7 -jo: 
 2Q. B. D. 48. 
 
 2 Steph. Comm. iv. 238 ; Steph. Crim. 
 Dig. 29, 87 ; Reg. v. Aspinall, supra. 
 
 3 Stat. 24 & 25 Vict. c. 100, a. 4. 
 
 4 Trades Union Act, 1 871 ; see, how- 
 ever, 34 & 35 Vict. c. 32. 
 
 5 Russell on Crimes, iii. 109. 
 
 6 Steph. Comm. ii. 652 ; stat. 32 & 33 
 Vict. c. 47. 
 
 1 Steph. 654 etseq. ; stat. 35 & 36 Vict. 
 c. 92. 
 
 8 Steph. 657. As to other meanings of 
 the word constable, see Co. Litt. 234 a. 
 
 9 Madox, Ex. 39 et seq. 
 
Constructive law dictionary. Consultation 
 
 this shall be taken by construction of law an estate for his own life that made 
 the lease ; for if it should be a lease for the life of the lessee, it should be 
 a wrong to him in the reversion." l Sometimes, however, " construction of 
 law" simply means " implication :" thus, " if I grant to you, that you 
 and your heires, or the heires of your body, shall distreine for a rent of 
 forty shillings within my mannor of S., this by construction in law shall 
 amount to .a grant of a rent out of my mannor of S. in fee simple or fee 
 tail." 3 (See Implication!) 
 
 CONSTRUCTIVE denotes (i) that a right, liability or status has 
 been created by the law without reference to the intention of the parties, 
 as in the case of a constructive trust or constructive notice (see Notice; 
 Trust), or (ii) that a transaction or operation has not really taken place, 
 but that something equivalent has. Thus, where delivery of goods is 
 required, if the goods " be ponderous and incapable of being handed over 
 from one to another, there need not be an actual delivery, but it may be 
 done by that which is tantamount, for instance, by the delivery of the key 
 of the warehouse in which goods are lodged, or of some other indicia of 
 property, such as the bill of lading." 3 This is called constructive delivery. 
 § 2. So a chattel not fixed to land is sometimes for certain purposes con- 
 sidered as being annexed to it, as where a miller " takes the millstone out 
 of the mill, to the intent to pick it to grind the better, although it is 
 actually severed from the mill, yet it remains parcel of the mill as if it 
 had always been lying upon the other stone, and by consequence, by 
 lease or conveyance of the mill, shall pass with it." 4 This is called con- 
 structive annexation. (See Implied ; Quasi-contract!) 
 
 CONSTRUCTIVE FRAUD. See Fraud. 
 
 CONSTRUCTIVE LOSS, See Loss. 
 
 CONSTRUCTIVE NOTICE. See Notice. 
 
 CONSTRUCTIVE TRUST. See Trust. 
 
 CONSULS are a class of diplomatic agents or representatives of a 
 foreign country. Their customary functions are to give advice and assist- 
 ance to citizens of the state they represent, and to uphold their interests 
 by due representations in the proper quarter, and to certify and attest 
 acts and documents. 5 (See Exequatur.) 
 
 CONSULTATION is a writ whereby a cause which has been wrong- 
 fully removed by prohibition out of an Ecclesiastical Court to a Temporal 
 
 195 
 
 1 Co. Litt. 183 a. As to the existing 3 Smith's Merc. Law, 492 ; Chaplin v. 
 law on the subject of leases granted by Rogers, I East, 192. 
 
 tenants for life, see Lease. * Liford's Case, 1 1 Co. 50 ; Smith's 
 
 2 Co. Litt. 147 a. L. C. ii. 184. 
 
 Manning's Law of Nations, 113. 
 
 o2 
 
196 Contemnor law dictionary. Contentious 
 
 Court is returned to the Ecclesiastical Court. 1 § 2. Consultation also 
 signifies a meeting between counsel to discuss a question or to settle 
 a document. (See Conference.) 
 
 CONTEMNOR— CONTEMPT.— § 1. Contempt of Court is where 
 a person who is a party to a proceeding in a Court of Record fails to 
 comply with an order made against him or an undertaking given by him, 
 or where a person, whether a party to a proceeding or not, does any act 
 which may tend to hinder the course of justice or show disrespect to the 
 Court's authority. Thus it is a contempt of Court to attempt by threats 
 to induce a judicial officer to depart from the course of his judicial duties ; 
 to attempt to prevent a party from conducting his case in a proper manner; 
 or to publish, while a cause is pending, comments upon the evidence which 
 are calculated to injure the parties' cases, or to create ill-feeling against 
 the witnesses. It is also a contempt to remove a ward of Court from the 
 custody of the person with whom such ward has been residing under the 
 authority of the Court, or to marry a ward of Court without the sanction 
 of the Court. 2 
 
 § 2. A person committing a contempt of Court is called a contemnor. 
 
 § 3. Contempt of Court is an offence punishable summarily by fine or 
 imprisonment or both. (See Attachment, § 4 ; Committal.) Moreover, 
 where a party to a proceeding is guilty of contempt of Court, he cannot, 
 as a general rule, make any application to the Court while he is in con- 
 tempt, 3 unless it is required for the purpose of his defence. 4 
 
 § 4. The contemnor is said to clear or purge his contempt when he 
 expresses his contrition and submits himself to the Court. 6 
 
 (See Committal ; Attachment?) 
 
 CONTEMPT OF PARLIAMENT.— Whatever obstructs or tends 
 to obstruct the due course of proceeding of either House of Parliament, 
 or grossly reflects on the character of a member of either House, or imputes 
 to him what it would be a libel to impute to an ordinary person, is a con- 
 tempt of Parliament, and thereby breach of privilege. 6 Commitment with 
 or without fine is the ordinary punishment inflicted, but a libel on either 
 House may also be dealt with by prosecution in the Criminal Courts. 7 
 
 CONTENTIOUS. — Probate business is divided into contentious and 
 non-contentious, the former including actions for proving a will in solemn 
 form or revoking a probate already granted (see Action, § 10), while the 
 
 : Phillimore, Eccl. Law, 1439. mentioned) (Daniell, 431) seems no longer 
 
 2 Daniell's Ch. Pr. 937 ; Bl. Comm. iv. to exist. 
 
 283. Inferior courts of record (such as 3 Daniell, 427. 
 
 county courts) appear to have power only 4 Haldane v. Eckford, L. R., 7 Eq. 
 
 over contemps in facie cu7~ice, that is, com- 425. 
 
 mitted in the court itself {Reg. v. Lefroy, 6 Daniell, 938. 
 
 L. R., 8 Q. B. 131). The distinction be- 6 Shortt on Copyright, 344, 351, citing 
 
 tween ordinary contempts in process (as Beaumont v. Barret, 1 Moore's P. C. C. 
 
 where a defendant in Chancery failed to 76, and Holt's Law of Libel, 118 ; Steph. 
 
 put in his answer within the proper time) Comm. ii. 344. 
 
 and special contempts (such as those above 7 Shortt, 344. 
 
Contestation law dictionary. Continuando 
 
 non-contentious business consists of the grant of probates and letters of 
 administration in common form. (See Grant; Probate; Warning?) 
 
 CONTESTATION OF SUIT, in an ecclesiastical cause, is that stage 
 of the suit which is reached when the defendant has answered the libel 
 by giving in an allegation (q. v.). If he confesses the libel, he is said to 
 contest the suit affirmatively : if he denies it, he is said to contest the suit 
 negatively, or he may give a qualified affirmative or negative by confessing 
 the whole or part of the libel and adding other facts. 1 (See Confession 
 and Avoidance.) 
 
 The term is a translation of litis contestatio, and is taken from the 
 Roman law. 
 
 CONTINGENCY— CONTINGENT.— § i. An estate, interest, 
 right, liability, or obligation is said to be contingent when its existence 
 depends on an uncertain event, which is called a contingency. Thus, if 
 A. guarantees B. the payment of a sum by C. the right of B. to receive, 
 and the liability of A. to pay, the amount guaranteed, are contingent on 
 the default of the principal debtor, C. § 2. The term is chiefly used in 
 conveyancing as applied to remainders (q. v.). Where an estate is limited 
 with substitutionary or alternative contingent remainders (as to A. for life, 
 and if he should leave issue male then to such issue male in fee, but if he 
 should die without issue male then to B. in fee), this is called a contin- 
 gency with a double aspect. 2 
 
 CONTINUAL CLAIM.— Under the old law, if a man had a right of entry 
 on land he might prevent this right from being tolled or taken away by the person in 
 possession dying seised of the land, if he made " continual claim" to the land, that is, if 
 at intervals of a year and a day he either entered on the land, or, in case of threatened 
 violence, went as near the land as he could and byword claimed the land to be his. The 
 result of making continual claim was that if the person seised died within a. year and a 
 day after the claim, the claimant could enter on the heir, instead of being put to his 
 action. 5 
 
 The doctrine of continual claim was abolished by stat. 3 & 4 Will. 4, c. 27, ss. 10, 11. 
 (See Entry.) 
 
 CONTINUANCE. — In the old common law practice, after issue or demurrer was 
 joined in an action, as well as in some of the previous stages of the proceedings, a day 
 was from time to time given and entered on the record for the parties to appear. The 
 giving of this day was called a continuance, because thereby the proceedings were con- 
 tinued without interruption from one adjournment to another. The entry of continu- 
 ances was abolished in 1833.* (See Puis darrein Continuance?) 
 
 CONTINUANDO. — In an action of trespass under the old practice, when the 
 trespass was of a continuing nature (e. g. spoiling or consuming a. man's herbage with 
 cattle), the declaration might allege the injury to have been committed by continuation 
 from one given day to another, instead of the plaintiff being compelled to bring separate 
 actions for each day's separate offence : this was called laying the action with a con- 
 tinuando. 5 
 
 1 Phffl. Eccl. Law, 1255; Rogers, 3 Litt. §§ 414— 422. 
 
 Eccl. Law, 720. 4 Bl. Comm. iii. 316. 
 
 s Fearne, Cont. Rem. 225, 373; Wil- * Ibid. iii. 212. 
 liams on Settlements, 207. 
 
 197 
 
ig3 
 
 Contraband 
 
 LAW DICTIONARY. 
 
 Contracts 
 
 CONTRABAND OF WAR, in international law, is the name given 
 to such articles as may not be carried by a neutral to a belligerent, 
 because they are calculated to be of direct service to him in carrying on 
 war. The question whether certain goods (other than munitions of war, 
 as to which there is no question) are or are not contraband depends 
 partly on the practice of each nation, and partly on stipulations in treaties. 1 
 (See Preemption ; Confiscation.') 
 
 Simple or 
 parol. 
 
 Arising from 
 agreement. 
 
 Express and 
 implied. 
 
 Written and 
 verbal. 
 
 CONTRACTS are of various kinds. 
 
 I. § i. With reference to the modes of their formation, contracts are 
 generally divided into three kinds : simple, or parol contracts, specialty- 
 contracts, or contracts under seal, and contracts of record.' 
 
 A. Simple or parol contracts are of two kinds, according as they arise 
 from agreement between the parties, or from implication of law. 
 
 i. § 2. A simple contract arising from agreement is where two (or 
 more) persons agree that one of them is to do or not to do some particular 
 thing in consideration of something done or to be done by the other. 3 
 "Contract" therefore differs from "agreement" in the primary sense 
 of that word in including, in addition to the unity of intention and the 
 juridical nature of the subject-matter constituting a simple agreement, the 
 incidents of one of the parties being bound to a future performance or 
 forbearance, and of the other party doing or agreeing to do something in 
 return. On the side of the party so bound to a future performance or 
 forbearance, the expression of his willingness or intention to do it is 
 called a promise (q. v.), and the performance or forbearance done or pro- 
 mised by the other party is called the consideration for his promise. 
 Thus, if A. agrees with B. that he will sell B. goods, and B. pays him 5/. 
 in respect of them, this is a contract of sale ; there is a unity of intention 
 between the parties : A. promises to deliver the goods to B. in considera- 
 tion of B.'s paying him 5/. 1 (See Promise; Request ; Consideration^) 
 
 § 3. Simple contracts created by agreement are divided, according to 
 the manner in which the agreement appears, into express and implied. 
 Thus, if A. says to B., "Will you sell me your horse for 50/.?" and B. 
 says, " I will," this is an express contract ; but if I order goods of a 
 tradesman without promising to pay for them, my contract to do so is 
 implied. (See Express; Implied.) "Implied contracts" must not be 
 confounded with "contracts implied in law" {infra, § 5), although the 
 terms are sometimes used interchangeably. 5 
 
 § 4. Simple contracts are also divisible into contracts in writing and 
 verbal contracts. Contracts are put into writing either voluntarily, or in 
 
 1 Manning's Law of Nations, 352; Naval 
 Prize Act, 1864. 
 
 2 Chitty on Contracts, 2. In Rann v. 
 Hughes (7 T. R. 370, 3 Burr. 1672), it is 
 said " that all contracts are by the laws of 
 England distinguished into agreements by 
 specialty and agreements by parol." If 
 English law did not include contracts of 
 record and quasi-contracts among true con- 
 'tracts as it does, this would be a far better 
 
 classification than the ordinary one, which 
 is that given in the text. (See Obligation ; 
 Quasi-contract. ) 
 
 3 Chitty, 8. 
 
 4 Leake on Contract, 8 et seq. ; Pollock 
 on Contract, 5 et seq. 
 
 6 Leake, 12; Chitty, 55; Bl. Comm. 
 ii. 443 ; Marzetti v. Williams, I B. & Ad. 
 415- 
 
Contracts law DICTIONARY. Contracts 199 
 
 pursuance of a rule of law, as in the case of bills of exchange and con- 
 tracts falling within the Statute of Frauds and Tenterden's Act (q. v.). 
 In either case the writing is the only admissible evidence of the contract, 
 although extrinsic evidence is admissible for various purposes, e.g. to 
 identify the parties and the subject-matter of the contract, or to show 
 that it was made subject to usages of trade, &C. 1 
 
 2. § 5. Simple contracts arising independently of agreement, or con- Implied in 
 tracts implied in law, exist in certain cases where an obligation is created law - 
 by law for the purpose of setting the parties right— where one of them 
 has suffered loss by doing something for the benefit of the other, or where 
 one of them has wrongfully or by accident gained an advantage over the 
 other. The following are the most important examples : — § 6. If A., 
 being compelled by law, has paid money which B. is ultimately liable to 
 pay, A. may recover it from B. under an implied contract to repay it ; as 
 if an executor has been compelled to pay legacy duty for which the 
 legatee is ultimately liable. 2 This is called an action for money paid by 
 the plaintiff for the use of the defendant at his request. § 7. Where a 
 person does something for another without having been requested by him 
 to do it, and the latter adopts and takes the benefit of the act, the law 
 implies a contract by him to pay the reasonable value of the other's 
 services ; this is called acceptance of an executed consideration. 3 § 8. 
 If A. wrongfully takes goods from B. and sells them, or has obtained 
 money from B. by fraud, or by B.'s mistaken the like, B. may sue A. for 
 the amount on an implied contract by A. to pay it to him ; this is called 
 an action for money had and received by the defendant for the use of the 
 plaintiff. 4 These forms of actions seem to have been invented partly to 
 give a remedy which would not otherwise have been available at common 
 law, partly because the procedure in an action of assumpsit (q. v.) was 
 often more convenient than that in an action of debt or tort. 
 
 B, § 9. A contract under seal, or specialty contract, is created by the Specialty 
 execution of a deed binding the party or parties executing it to a future' contracts, 
 act or forbearance. (See Deed.) Such a contract necessarily involves the 
 element of agreement, but it derives its legal effect solely from the 
 formality of sealing and delivery, and not from the mere fact of agree- 
 ment; 1 ' it also involves the element of a promise (as opposed to a con- 
 veyance, appointment, &c), and in these two points a contract under 
 
 seal resembles a simple contract, but they differ in the important respect 
 that no consideration is required to give validity to a contract under 
 seal as between the parties to it. (See Consideration, § 2.) 6 As 
 regards its -effects, also, a contract under seal differs in some respects 
 from a simple contract. (See Debt; Covenant ; Estoppel; Limitation of 
 Actions; Merger. y 
 
 C. § 10. Contracts of record are not really contracts at all, but are Contracts of 
 
 record. 
 
 1 Leake, 103. 6 Leake, 76. 
 
 2 Chitty, 587; Leake, 41. 6 Chitty, 5; Leake, 84. 
 
 3 Chitty, 50. ' Chitty, 6 ; Leake, 88. 
 
 4 Ibid. 558 ; Leake, 47. 
 
200 
 
 Contracts 
 
 LAW DICTIONARY. 
 
 Contracts 
 
 Personal. 
 
 Continuing 
 
 Executed. 
 
 Executory. 
 
 transactions which, being entered on the records of certain Courts called 
 Courts of Record, are conclusive proof of the facts thereby appearing, 
 and could formerly be enforced by action of law as if they had been put 
 in the shape of a contract. 1 They consist of judgments, recognizances 
 and statutes staple. (See those titles: also Debt; Warrant of Attorney ; 
 Cognovit ; Merger; Limitation of Actions!) 
 
 II. With reference to their nature, contracts are divisible into the 
 following kinds : — 
 
 § ii. A personal contract is one which depends upon the existence, or 
 the personal qualities, skill or services of one of the parties : such as a 
 contract of marriage, or a contract to paint a picture. It follows from 
 the nature of a personal contract that it cannot be assigned, 3 and 
 that it is discharged by the death of the party on whose personality it is 
 founded. 3 
 
 § 12. A continuing contract is one for the performance of several acts 
 from time to time : thus, a contract to maintain and repair railway waggons 
 for seven years is a continuing contract. 4 
 
 § 1 3. When a contract has been performed by both parties, it is said to be 
 executed, or when it has been performed by one of the parties, it is 
 executed as far as he is concerned, but so long as something remains 
 to be done by one of the parties, it is said to be executory as regards 
 him. 5 When applied to contracts of sale, "executed" and "executory" 
 have peculiar meanings. (See Sale.) 
 
 III. § 14. With reference to their objects, contracts are of innumerable 
 varieties, — such as contracts of agency, service, works, insurance, guarantee, 
 contracts of debt 6 (that is, contracts for the payment in future of money), 
 and contracts of sale, that is, contracts by which one person agrees to sell, 
 and the other to buy, certain property. (See Sale.) In the case of a sale of 
 goods, the contract is generally restricted to the question of price, quality 
 and time of delivery ; but in the case of land, leaseholds, &c. the contract 
 
 1 This classification, — which by includ- 
 ing under the same head true contracts, 
 fictitious contracts and " contracts of re- 
 cord," puts ii considerable strain on the 
 meaning of "contract," — seems, like many 
 other accepted classifications in English 
 law, to be founded on the old rules of 
 pleading. The action of debt was applic- 
 able whenever a certain sum of money was 
 due (Fitz. N. B. H5g; Stephen, Plead. 
 (5) 15), whether bysimple contract, specialty 
 or judgment ; in the case of a judgment re- 
 covered in a personal action, the plaintiff 
 could not at common law issue execution 
 on it after a year and a day, but was driven 
 to bring a new action on the judgment 
 (Hiscocki v. Kemp, 3 Ad. & E. 679 ; 
 Foster on Scire Facias, 6 ; Williams v. 
 Jones, 13 M. & "W". 628. See 43 Geo. 3, 
 c. 46, s. 4 ; Leake, 92). " Debt" had the 
 technical sense of an obligation to pay a 
 certain sum of money whether created by 
 
 contract or not, and in this sense debts are 
 correctly divided by the old writers into 
 debts of record, debts by specialty, and 
 debts by simple contract. (2 Bl. 465 ; see 
 Debt.) But as a debt, in the usual sense 
 of the word, is an obligation to pay money 
 voluntarily entered into by the debtor, in 
 other words, created by contract, legal 
 writers seem to have considered it neces- 
 sary to classify contracts as if they were the 
 only source of debts in the technical sense, 
 namely,into contracts of record, by specialty 
 and simple. 
 
 2 Chitty on Contracts, 671. 
 
 3 Leake on Contracts, 642. See also as 
 to the bankruptcy of the contractor, ibid. 
 648. 
 
 4 In re Sneezum, ex parte Davis, 3 Ch. 
 D. 463. 
 
 6 Chitty, 136, 591. 
 
 6 2 Bl. Com. 465 ; Smith's Merc. Law, 
 532- 
 
Contracts law dictionary. Contribution 201, 
 
 generally contains elaborate provisions (principally in the interest of the 
 vendor) as to the investigation of the title, the delivery of the abstract and 
 requisitions {q. v.), and the power of the vendor to rescind the contract 
 if he cannot show a good title. When a person enters into a contract Open con- 
 for the sale of land or leaseholds without making these stipulations, he is tract " 
 said to have entered into an open contract. 1 (See also Vendors and 
 Purchasers; Necessaries; Restraint of Marriage ; Restraint of Trade.) 
 
 IY. § 15. " Contract" is also sometimes used in a sense similar to that 
 of " agreement" in its primary sense, namely, the common intention of 
 two persons with regard to a certain subject. Thus the phrase " contract 
 of sale" frequently denotes the ordinary transaction of A. delivering 
 goods to B. and B. paying the price to A. at the same instant. Here 
 there is no true contract, for "contract" implies a promise to be per- 
 formed at a future time {supra, § 2). It is in fact merely a sale, not a 
 contract of sale. 2 (See Sale; Discharge; Release; Performance; Satis- 
 faction.) 
 
 CONTRIBUTION, — § 1. Where one person has sustained some loss 
 which would have fallen upon others as well as upon himself, if it had not 
 been diverted from them at his expense, or where a payment has been 
 made out of one property when it might have been divided between it 
 and another property, payment by the other persons or property of the 
 proportion which they or it ought originally to have borne, is called con- 
 tribution. § 2. The commonest instance of contribution by persons Contribution 
 occurs in the case of co-sureties: thus if A., B. and C. make themselves vsureies - 
 liable for D. to the extent of 300/., and A. is compelled to pay the whole 
 amount, he is entitled to payment (or contribution) of 100/. from B. and • 
 100/. from C. 3 There is no right of contribution between wrongdoers. 4 
 (See Contributory.) § 3. The other kind of contribution frequently Contribution 
 occurs in the administration of the assets of a deceased person: thus if vestate > &c - 
 a testator directs his real estate (value 10,000/.) and his personal estate 
 (value 5,000/.) to be applied in payment of his debts, which amount to 
 1,500/., each contributes rateably, i.e. 1,000/. is paid out of the real estate 
 and 500/. out of the personalty. So if several properties are subject to 
 one mortgage, and on the death of the mortgagor they devolve on 
 different persons, each property must contribute rateably towards payment 
 of the mortgage debt according to its value. 5 
 
 § 4. A similar kind of contribution occurs in the case of general Contribution 
 average, where several persons have to contribute, and the amount of m S enera ^ 
 each person's contribution depends on the value of the goods belonging 
 
 1 Greenwood's Conv. 15. Tudor's L. C. i. 89; North British and 
 
 2 Benjamin on Sales, 227. The old Mercantile Insurance Co. v. London, Li-ver- 
 writers more accurately termed the trans- pooland Globe Insurance Co., 5CI1. D.569. 
 action a "bargain and sale " (q.v.) ; Shep. 4 Merryweather v. Nixon, 8 T. R. 186. 
 Touch. 224. 6 Watson, Comp. Eq. 667 ; Fisher on 
 
 3 Lindley on Partnership, 737 ; Dering Mortgage, ii. 699 et seq. 
 v. Winchelsea, 1 Cox, 318; White & 
 
202 
 
 Contributory 
 
 LAW DICTIONARY. 
 
 Conusance 
 
 to him in the ship. (See Average, § 3 ; Adjustment, § 2 ; Contributory ; 
 Marshalling; Exoneration; Quasi-contract; Subrogation.) 
 
 A. contribu- 
 tories. 
 
 B. contribu- 
 tories. 
 
 CONTRIBUTORY is a person who, on the winding-up of a company, 
 is bound to contribute to its assets for the payment of its debts. 1 One of 
 the first duties of the Court or the liquidators after the winding-up has 
 been definitely commenced is to settle the list of contributories, 2 a process 
 which involves that of ascertaining the liability of persons included in it. 
 
 § 2. Persons who are contributories in their own right are distinguished 
 from those who are contributories as the representatives of or as being 
 liable for the debts of others — such as the executors, husbands, trustees 
 in bankruptcy, &c. of contributories in their own right. 3 
 
 § 3. By the Companies Act, 1862, s. 38, as regards companies formed 
 under the act, every person who was a member at the commencement of 
 the winding-up, and every person who had been a member within one 
 year prior to that time, is liable to be put on the list of contributories, but 
 no past member is liable to contribute in respect of any debts of the 
 company contracted after the time at which he ceased to be a member, 
 nor is he liable to contribute at all unless the existing members are unable 
 to satisfy the contributions required of them. In order to carry out these 
 provisions the list of contributories is divided into two parts : the A. list, 
 containing the names of the present members, hence called A. contribu- 
 tories ; and the B. list, containing the names of persons who have been 
 members within one year before the commencement of the winding-up, 
 hence called B. contributories.* (See Call; Balance Order.) 
 
 CONTRIBUTORY NEGLIGENCE. See Negligence. 
 
 CONTUMACY is where any person having been duly cited to appear 
 in an Ecclesiastical Court, or required to comply with the lawful order of 
 any such Court, neglects or refuses to appear, or neglects or refuses to obey 
 the order, or where any person commits a contempt in the face of the 
 Court. Contumacy is punishable by imprisonment. 5 (See De Contumace 
 capiendo.) 
 
 CONUSANCE. — I. § 1. The primary meaning of conusance is 
 acknowledgment. Thus, a fine "sur conusance de droit" was a fine 
 founded on an acknowledgment of right (see Fine) ; so, in an action of 
 replevin the conusance was a plea by which the defendant admitted that 
 he took the goods for which the action was brought. (See Replevin.) 
 
 II. § 2. Conusance also signifies jurisdiction. " Conusance of pleas " 
 is a franchise granted to an inferior Court, giving it jurisdiction to enter- 
 
 1 Companies Act, 1862, s. 74. 
 
 2 Lindley on Companies, 1289 ; Thring 
 on Companies, 184, 271. See form of 
 list, general rules under Companies Act, 
 1862, form 25. 
 
 3 Lindley, 1295. 
 
 4 Thring on Companies, 157. 
 
 5 Stat. 53 Geo. 3, u. 127; Phfflimore, 
 Eccl. Law, 141 7. 
 
Conusance LAW DICTIONARY. Conversion 203 
 
 tain certain proceedings. Thus, the universities of Oxford and Cambridge 
 have conusance in certain personal actions. (See Courts of the Universi- 
 ties.} When an action for a cause within the conusance of an inferior 
 Court of Record is brought in a superior Court, it may put forward a claim 
 of conusance, and, if it is allowed, the action is remitted to the inferior 
 Court. 1 
 
 III. §3. Conusance sometimes means judicial notice. 3 (See Notice.) 
 
 CONVERSION. — I. § 1. In equity, conversion is the operation of 
 changing the nature of property ; it is either actual or constructive. 
 Actual conversion is the act of converting land or other property into Actual, 
 money by selling it, or of converting money into land by buying land 
 with it. Conversion in this sense is frequently directed by wills and 
 settlements, or ordered by a Court in administering an estate. 
 
 § 2. Constructive conversion is a fictitious conversion, which is assumed Constructive, 
 in certain cases to have taken place in order to carry out the intention of 
 the parties. The constructive or equitable conversion of land into money 
 (realty into personalty), and vice versa, takes place when an actual conversion 
 has been directed or agreed to, but not actually carried out. The effect of 
 this doctrine is that land directed to be sold is treated and devolves as if it 
 were personalty, and vice versa ; thus, if land is directed by a will to be sold 
 and the proceeds to be paid to A., and A. dies before the sale, the land goes 
 to A.'s personal and not to his real representatives. 3 But where the trust or 
 power of sale is discretionary or conditional, no constructive conversion 
 takes place, and the property retains its original character until it is 
 actually converted.* § 3. Constructive conversion takes place from the 
 death of the testator in the case of a will, and in the case of a deed from 
 the date of execution. 5 § 4. Sometimes a double conversion, as land into Double, 
 money and the money again into land, is directed. In this case the pro- 
 perty is to be considered, in general, as in that state in which it is ulti- 
 mately to be converted ; in the case supposed, therefore, the property 
 would be treated as land. § 5- " Conversion out and out," or conversion Out and out, 
 
 to all intents, is where the testator meant to give the produce of real or t ° a11 m " 
 
 ..... tents, 
 
 estate the quality of personalty to all intents, that is, in any event, as 
 
 opposed to conversion for the purposes of the will only ; the distinction 
 is of importance in the event of some of the dispositions of the property 
 failing by lapse or otherwise. Thus, if a testator simply gives the pro- 
 ceeds of real estate to several legatees, and one of them dies in the testa- 
 tor's lifetime, his share goes to the testator's heir-at-law, while if the 
 testator shows an intention that the real estate is to be considered as 
 personalty, whether the expressed purposes of his will take effect or not, 
 then the conversion is " out and out," and any lapsed share goes to the 
 testator's next-of-kin ; see further as to this doctrine under title Result. 
 
 1 Archbold, Pr. 1431 ; Termes de la White & Tudor's L. C. i. 741. 
 Ley * "Watson, Comp. Eq. 105. 
 
 ■' Litt. § 366. 6 Snell, 142. 
 
 3 Haynes's Eq. 353; Snell's Eq. 140; 6 Watson, 100. 
 
 Fletcher v. Ashburner, I Bro. C. C. 497 ; 
 
204 
 
 Retrospec- 
 tive. 
 
 Conversion 
 chattels. 
 
 Conversion 
 
 LAW DICTIONARY. 
 
 Convey 
 
 Conversion 
 joint and 
 separate 
 estates in 
 bankruptcy 
 
 By matter 
 of record. 
 
 By matter 
 
 IN PAIS. 
 
 § 6. Retrospective conversion takes place where a person {e.g. a lessee) 
 has an option of purchasing the land, and declares his option after the 
 death of the owner (lessor) ; here the purchase-money goes to the per- 
 sonal representatives of the lessor, as if the option had been exercised 
 during his lifetime. 
 
 of II. § 7. At common law, conversion is that tort which is committed 
 by a person who deals with chattels not belonging to him in a manner 
 which is inconsistent with the rights of the lawful owner. Thus if a 
 person in possession of goods belonging to another wrongfully refuses 
 to deliver them up to him, or sells, disposes of, parts with or destroys 
 them, he is guilty of a conversion. The remedy of the person injured is 
 either by recaption (q. v.) or by action ; if he merely claims damages, the 
 old rule would still seem to apply, namely, that the judgment vests the 
 property of the goods in the defendant, 1 but the plaintiff may if he likes 
 claim a return of the goods in specie, and a judgment to that effect is 
 enforceable by writs of delivery, attachment and sequestration. 2 (See 
 Trover; Detinue.) 
 
 of III. § 8. In the law of bankruptcy "it is competent for solvent partners 
 to make any arrangement which they think proper with respect either to 
 the joint property of the firm or the separate property of the persons 
 constituting it, and to alter the character of the property so as to convert 
 joint into separate property, and vice versa, ; and every such agreement, if 
 made bond fide, will bind their creditors, and in the event of bankruptcy, 
 the property will be distributable as joint or separate estate according to 
 the character which it then bears as between the partners themselves."' 
 (See Joint.) § 9. Joint debts also may be converted into separate debts, 
 and vice versa ; thus if an action is brought againt one partner alone 
 for a joint debt, and judgment is obtained before the bankruptcy, the 
 joint debt will be converted into a separate debt against that partner. 4 
 
 CONVEY— CONVEYANCE.— I. § 1. In the widest sense of the 
 word a conveyance is a mode by which property is conveyed or voluntarily 
 transferred from one person to another by means of a written instrument 
 and other formalities. It also signifies the instrument itself. Conveyances 
 are of three classes, — by matter of record, by matter in pais, and by special 
 custom. 5 
 
 A. § 2. Conveyances by matter of record are such as are substantiated 
 by a Court of Record. The only examples of this class in use at the 
 present day are royal grants and vesting orders (q. v.). Fines and re- 
 coveries (q. v.) belonged to this class before their abolition. 
 
 B. §3. Conveyances by matter in pais are such as only require the 
 act or consent of the parties themselves, testified by the proper formalities. 
 They are of three kinds, according as they operate by the common law, 
 by the Statute of Uses, or under certain modern acts of parliament. 
 
 1 Broom, Comm. Com. Law, 806. 
 
 2 Rules of Court, xlii. 4 ; xlix. 
 
 8 Robson's Bankr. 587 ; Lindley on 
 Partner. 115 1. 
 
 4 Robson's Bankr. 605, 607. 
 
 6 Bl. Comm. ii. 294, 344, where private 
 acts of parliament are treated of under the 
 head of conveyance. As to conveyances 
 generally, see the works of Elphinstone, 
 Davidson, Bythewood and Jarman. 
 
Convey LAW DICTIONARY. Convey 205 
 
 ( 1 .) § 4. Conveyances at common law are said to be original or primary At common 
 when they transfer the property without reference to a previous con- law- 
 veyance, and derivative or secondary when they follow a previous 
 conveyance and take effect with reference to it. To the former class 
 belong conveyances by feoffment, gift (of estates tail), grant (of incor- 
 poreal hereditaments), lease, exchange, partition and assignment ; to the 
 latter class belong conveyances by confirmation, release, surrender and 
 defeazance. (See the various titles.) 
 
 (2.) § 5. Conveyances under the Statute of Uses (q. v.) are those which Under Statute 
 derive their force from the stat. 27 Hen. 8, by which the use or beneficial of Uses - 
 interest in land is in certain cases converted in the legal possession and 
 ownership. § 6. Conveyances of this kind are said to operate with trans- 
 mutation of possession, where the possession of the land is first transferred 
 by a conveyance taking effect independently of the Statute of Uses, and 
 the statute then transfers the possession to the cestui que use. To this class 
 belong the obsolete feoffment to uses and the modern deed of grant to 
 uses, in each of which the land is conveyed to a feoffee or grantee, and 
 either by the same or by a separate instrument (whether contemporaneous 
 or subsequent) uses are declared in favour of other persons to whom the 
 legal possession and ownership are transferred by force of the statute. 
 Examples of such conveyances occur in a strict settlement, in which 
 power is usually given to the tenant for life (the husband) to grant leases 
 for twenty-one years. This is done by conveying the land to certain 
 persons (called the " trustees of the powers") to the uses of the settle- 
 ment, and by giving the tenant for life a power to appoint the land by way 
 of lease for any term not exceeding twenty-one years. 1 (See Power.) 
 § 7. Conveyances are said to operate without transmutation of possession 
 where nothing but the use passes until the statute takes effect ; these 
 include the bargain and sale, the covenant to stand seised, and the lease 
 and release. 2 (See those titles.) 
 
 (3.) § 8. Conveyances under modern statutes include (a) the release Undermodem 
 under the stat. 4 & 5 Vict. c. 2 1 (see Lease and Release) : (b) the s atu es ' 
 modern deed of grant under stat. 8 & 9 Vict. c. 106 (see Grant): (c) dis- 
 entailing deeds and conveyances by married women under stat. 3 & 4 
 Will. 4, c. 74 (see Disentailing Deed; Acknowledgment, § 2) : (d) registered 
 transfers under the Land Transfer Act, 1875 (see Land Registries) : and 
 (e) conveyances of land to companies under the Lands Clauses Consoli- 
 dation Act, 1 845 ; transfers of ships by bill of sale under the Merchant 
 Shipping Act, &c. 3 
 
 C. § 9. Conveyances by special custom are employed for aliening By special 
 and dealing with copyhold lands and such customary estates as are holden CUST0M - 
 
 1 Williams' Settlements, 37; Davids, iii. lead the uses; if subsequently, a deed to 
 480, 1005. When fines and recoveries declare the uses. (Bl. ii. 363.) 
 were employed as modes of conveyance, % Hayes, Conv. i. 76 ; ii. 74, n. 
 any complicated limitations required (as in 3 Some writers include alienation by de- 
 settlements) were effected by deeds speci- vise among conveyances (Bl. ii. 373 ; 
 fying the uses to which the land was to be Stephen, i. 588) ; but this is contrary to 
 held. If the deed was made previously to the usual meaning of the word, 
 the fine or recovery it was called a deed to 
 
zo6 Conveyancer law dictionary. Convict 
 
 in ancient demesne or in manors of a similar nature. The usual method 
 is by surrender followed by admittance. 1 (See Surrender ; Admittance; 
 Grant ; Bargain and Sale, §4; Use; Covenant.) 
 
 II, § 10. In the narrower sense of the word, "conveyance" signifies 
 the instrument employed to effectuate an ordinary purchase of freehold 
 land (e. g. the modern deed of grant), as opposed to settlements, wills, 
 leases, partitions, &c. 
 
 Etymology.] — Apparently from the French convoyer, to accompany (con with, vote, 
 Latin via, a way) ; hence to convoy, take safely from one place to another, convey. 2 
 " Conveyance " in the sense of a transfer of property seems to be a comparatively modem 
 term, the old word being "assurance" (?.».). Coke used "conveyance" as signifying 
 that part of a pleading which serves as an explanation or introduction to the material 
 facts. 3 
 
 CONVEYANCER— CONVEYANCING.— § 1. Conveyancing is 
 that part of the lawyer's business which relates to the alienation and trans- 
 mission of property and other rights from one person to another, and to 
 the framing of legal documents intended to create, define, transfer or 
 extinguish rights. It therefore includes the investigation of the title to 
 land, and the preparation of agreements, wills, articles of association, 
 private acts of parliament operating as conveyances, and many other 
 instruments, in addition to conveyances properly so called. 
 
 § 2. "Conveyancer" now generally means a barrister who chiefly 
 devotes himself to the practice of conveyancing or combines it with 
 equity drafting (see Draftsman). Formerly it was not unusual for a 
 person to obtain from one of the Inns of Court a certificate allowing him 
 to practise as a conveyancer below the bar, that is, without being called 
 to the bar. But this is practically obsolete.* (See Special Pleader!) 
 
 CONVEYANCING COUNSEL.— By the act 15 & 16 Vict. c. 80, 
 s. 41, the Lord Chancellor is empowered to appoint not less than six 
 barristers, who have practised as conveyancing counsel for ten years at 
 least, to be conveyancing counsel of the Court of Chancery, and the 
 opinion of any of them may be received and acted on by the Court or 
 by a judge at chambers in the investigation of the title to an estate, or in 
 the settlement of a draft conveyance, mortgage, &c. 5 By the Judicature 
 Act, 1873, s. 77, they were transferred to the Supreme Court. 
 
 CONVICT. — Formerly a man was said to be convict when he had 
 been found guilty of treason or felony, but before judgment had been 
 passed on him, after which he was said to be attaint 6 (q. v.). The term 
 " convict" has, however, long had the popular meaning of a man who 
 has been sentenced to death or penal servitude for treason or felony, and 
 this use of the word has been adopted by the legislature. 7 
 
 1 Davids, ii. 198. Inns of Court), 1872. 
 
 2 Diez, ii. 455. & Daniell's Ch. Pr. 1046. 
 
 8 Co. Litt. 303 a. n Co. Litt. 390 b. At that time the 
 
 4 Stat. 23 & 24 Vict. c. 127, s. 34; word was no doubt pronounced convict. 
 
 Stamp Act, 1870, s. 63 ; Regulations of 7 Stat. 33 & 34 Vict. c. 23, s. 6. (See 
 
 the Council of Legal Education (of the Administrator, § 2.) 
 
Conviction law DICTIONARY. Convoy 207 
 
 CONVICTION is where a person is found guilty of an offence. 
 Convictions are either ordinary or summary. § 2. An ordinary conviction Ordinary, 
 takes place in a criminal prosecution by indictment, &c, and may either 
 consist of the prisoner's confession and plea of guilty, or of the verdict 
 of guilty found by a jury. 1 (See Verdict ; Judgment; Sentence.) 
 
 § 3. A summary conviction is a judgment pronounced by one or more Summary, 
 justices of the peace or other magistrates under the authority of a statute 
 giving them criminal or penal jurisdiction, — e. g. in cases of assaults. 2 The 
 conviction itself is a memorial of the proceedings under the hands and 
 seals of the justices. 3 (See Jurisdiction ; Quash.) 
 
 CONVOCATION is an assembly of the clergy. There are two con- 
 vocations — one for the province of Canterbury, the other for that of York, 
 and each one consists of two houses, of which the archbishop and 
 bishops form the upper house, the lower house consisting of deans, arch- 
 deacons, proctors representing the chapters, and proctors representing the 
 parochial clergy. All deans and archdeacons are members of the convo- 
 cation of their province, and each chapter sends one proctor; in the 
 province of Canterbury the beneficed parochial clergy in each diocese 
 elect two proctors, while in the province of York the clergy in each arch- 
 deaconry elect two proctors. 1 
 
 § 2. Convocation is summoned by the archbishop of the province in 
 pursuance of the Queen's writ. 6 
 
 § 3. Formerly the beneficed clergy taxed themselves in convocation, Powers of. 
 but they have not done so since 1663.° Convocation has no power to 
 bind the temporalty, but it seems that it may with the licence or authority 
 of the crown make constitutions and canons binding on the spiritualty, 
 provided they are not against the law of the land or the crown's 'pre- 
 rogative. 7 
 
 CONVOY consists of one or more ships of war sent by a neutral 
 country in time of war to protect and escort merchant ships belonging to 
 that country. It was formerly a moot point whether merchant vessels 
 sailing with convoy were exempt from search (q. v.), and although the 
 principle of that exemption was recognized at the close of the last century 
 by most of the principal maritime powers, it was denied by Sir William 
 Scott in the case of "The Maria" in 1798. 8 In 1801, however, the 
 principle was adopted by Great Britain, with certain restrictions, in a con- 
 vention with Russia. 9 
 
 , § 2. In the law of marine insurance, warranty to sail with convoy is a "Warranty of 
 stipulation in a policy of insurance on a ship that it will sail with convoy, convoy. 
 
 1 Bl. Comm. iv. 362 ; Steph. Comm. iv. 4 Phill. Eccl. Law, 1923 et seq. ; Steph. 
 435 ; Archbold, Crim. PI. 183. Comm. iv. 525. 
 
 2 Stat. 24 & 25 Vict. c. 100, s. 42. 5 Steph. 668. 
 1 Paley, Summ. Conv. 157, where the ° Phill. 1932. 
 
 distinction between a conviction and an ' Ibid. 1958 ; Steph. 526. 
 
 order is discussed; Stone's Justice, 182; 8 Rob. 340 ; Manning, Law of Nations, 
 
 Pritchard's Q. S. 1055. 439- 
 
 B Manning, 449. 
 
208 Co-Creditors, &c. LAW dictionary. Copy 
 
 It implies — (i) a convoy for the whole voyage, (ii) sailing orders from the 
 officer in command of the convoy, and (iii) exertion on the part of the 
 ship insured to keep with the convoy. 1 
 
 CO-CREDITORS — CO-DEBTORS — CO-OWNERS. See 
 
 Joint. 
 
 COPARCENER— COPARCENARY.— § i. Where lands descend 
 on an intestacy to several persons as co-heirs, e. g. to several daughters at 
 common law, or to several sons according to the custom of gavelkind, 
 the persons so inheriting are called coparceners, or tenants in copar- 
 cenary. 2 In the former case they are called in the old books coparceners 
 by the common law, and in the latter case coparceners by the custom. 3 
 
 § 2. Coparceners form one heir to their ancestor, and therefore they 
 have one entire freehold in the land in respect of strangers so long as it 
 remains undivided, "but betweene themselves to many purposes they 
 have in judgement of law severall freeholds ; for the one of them may 
 infeoffe another of them of her part, and make liverie. And this copar- 
 cenarie is not severed or divided by law by the death of any of them ; for 
 if one die, her part shall descend to her issue." 4 Coparceners may also 
 convey to one another by deed of release, in the same way as joint tenants. 5 
 § 3. Coparceners could always compel one another to make partition {q.v.). 6 
 On a partition by agreement, the part allotted to each coparcener in 
 severalty descends in the same way as the undivided share to which he was 
 entitled previously to partition ; in other words, the partition does not 
 make the coparceners purchasers of their several shares within the mean- 
 ing of the Inheritance Act (q. v.)." 1 (See Joint Tenancy ; Tenancy in Com- 
 mon ; Severalty; Estate; Descent; Partition; Enitia Pars.) 
 
 Etymology.] — § 4. N ormanP'rench parcenier, parchonnier, one who holds something 
 in common [parchonnier de meurtre, an accomplice), 8 from Latin partio, a share. 
 
 COPARTNER— COPARTNERSHIP. See Partnership. 
 
 COPY. — I. § 1. A copy is a document which is taken or written from 
 another, as opposed to an original. The principal sorts of copies used 
 for the proof of documents are — (1) Exemplifications under the Great 
 Seal ; (2) exemplifications of a record under the seal of the Court where the 
 record is ; (3) office copies, or copies made by an officer appointed for 
 that purpose and sealed with the seal of the office ; (4) examined copies, 
 or copies sworn to be true copies by persons who have compared them with 
 the original, either by one person comparing the copy line for line with 
 the original, or by reading the copy while another person read the 
 original; (5) copies signed and certified as true by the officer to whose 
 custody the original is entrusted (see Certified Copy) ; (6) photograph 
 
 1 Maude & Pollock, Merch. Shipp. 381. " Litt. § 241 ; Co. Litt. 164 b; "Watson's 
 
 2 Litt. §§ 241 etseq. Comp. Eq. 458. 
 
 3 Ibid, and \ 265. ' Williams on Seisin, 72. 
 
 4 Co. Litt. 164 a. 8 Loysel, Inst. Cout. gloss, s. v. 
 
 5 Williams on Seisin, 119. 
 
Co Py LAW DICTIONARY. Copyhold 
 
 copies. 1 To these may be added (7) attested copies, as to which see 
 Attest, § 2. 
 
 § 2. As to the rules governing the admissibility of copies in evidence, 
 see Evidence. 
 
 II. § 3. As to tenancy by copy of court roll, or tenancy by copy, as it 
 is called in the old books, see Copyhold. 
 
 III. § 4. Copy in the old writers also signifies copyright (q. v.)? The 
 "right of copy" is the right to reproduce, from Latin copia, abundance. 3 
 
 COPYHOLD— COPYHOLDER.— § 1. Copyholds, or lands held 
 by copyhold tenure, are lands, forming part of a manor, originally granted 
 by the lord for tenancies at will merely, which However have by imme- 
 morial custom become converted into estates independent of the will of 
 the lord in everything but name, and of various degrees of duration, 
 according to the custom of the particular manor. Copyholds are so 
 called, because the evidence of the title to such lands consists of copies 
 of the court roll of the manor, a book in which all dealings with the land 
 are entered. 4 (See Roll.) 
 
 § 2. All copyhold land is therefore subject to two estates, namely, that 
 of the lord, which is a freehold estate, and that of the tenant, which is a 
 customary estate. (See Tenure; Estate.) Except that it gives rise to 
 certain fines (q. v.) and other dues, the estate of the lord is almost purely 
 nominal. (See Interest.) 
 
 § 3. The following consequences follow from the estate of the copy- 
 holder having been originally an estate at will only, and from the freehold 
 being vested in the lord : — (1) That the minerals under and the timber 
 on the land belong to the lord, so that the tenant cannot take them with- 
 out a licence from the lord, while the lord cannot take them without the 
 consent of the tenant, unless there is a custom enabling him to do so ;" 
 (2) that all alienations of the tenant's interest in the land must be effected 
 by the intervention of the lord (see Grant ; Surrender ; Admittance), to 
 whom a fine is generally payable (see Fine) ; and (3) that a copyholder 
 cannot lease his land for a longer period than one year without a licence 
 from the lord, unless there is a special custom enabling him to do so. 
 
 § 4. Subject to these restrictions, the ownership of a copyholder is 
 practically as absolute as that of a freeholder. It is true that he holds 
 his land nominally at the will of the lord, but he also holds it according 
 to the custom of the manor, which overrides the will of the lord ; s if the 
 tenant aliens or devises the land, or dies intestate, the lord is bound to 
 admit the alienee, devisee or heir as tenant, and if he refuses he can be 
 
 1 Best on Evidence, 619. taile or for terme of life, &c. at the will of 
 
 2 Millar v. Taylor, 4 Burr, at p. 2311, the lord according to the custome of the 
 2396. same mannor." Litt. § 73. " And foras- 
 
 3 Littre, Diet. s. v. CoJ>ie. much as the title or estate of the copy- 
 
 4 " Tenant by copy of court roll is, as if holder is entred into the roll whereof the 
 a man be seised of a mannor, within which steward delivereth him a copie, thereof he 
 mannor there is acustome whichhath been is called copiholder." Co. Litt. 58 a. 
 used time out of minde of man, that certaine 5 And when he does take them the re- 
 tenants within the same mannor have used suiting space belongs to the copyholder, 
 to have lands and tenements, to hold to Eardley v. Granville, 3 Ch. D. 826. 
 them and their heires in fee simple, or fee • Co. Litt. 60 b ; Co. Copyh. 
 
 S. P 
 
 209 
 
2io Copyhold law dictionary. Copyright 
 
 compelled by mandamus to do so. 1 Copyholds are liable for the debts 
 of the deceased copyholder if he had an estate beyond his own life : 2 they 
 are also liable to be taken in execution for his judgment debts under a 
 writ of elegit, 3 and pass on his bankruptcy to his trustee for the benefit 
 of his creditors. 4 
 
 § 5. The custom of each manor determines the maximum degree of 
 property which the copyholders may have in their customary tenements. 
 Hence copyholds are generally divided into (a) copyholds of inheritance, 
 which are alienable for an estate of inheritance or any less estate, but not 
 for an estate tail, unless there is a custom to entail in the manor ; if there 
 is no such custom then a gift to a man and the heirs of his body will give 
 him a customary estate of fee simple conditional at the common law (see 
 Fee ; Tail) : (b) copyholds for lives, which are alienable for one or more 
 lives in a great variety of manners, but for no greater estate ; when a 
 copyholder for lives has a tenant right of renewal or of appointing his 
 successor, his estate is almost the same as a customary fee, and he is 
 hence called a quasi-copyholder in fee : (c) copyholders for years, which 
 are alienable for terms of years, renewable or not according to the custom, 
 but for no greater estate. 5 (See generally as to estates in copyholds, 
 title Estate : also Freebench ; Grant.) 
 
 As to the rights of the lord to heriots, rents, fines, reliefs, forfeitures, 
 &c, see those titles ; also Commutation. As to the enfranchisement of 
 copyholds, see that title : see also Ancient Demesne; Customary Freeholds ; 
 Demesne ; Seizure ; Tenant by the Verge ; Villenage. 
 
 COPYHOLD COMMISSIONERS are commissioners appointed 
 to carry into effect various acts of parliament having for their principal 
 objects the compulsory commutation of manorial burdens and restrictions 
 (fines, heriots, rights to timber and minerals, &c.), and the compulsory 
 enfranchisement of copyhold lands. (See Commutation; Enfranchisement '.) s 
 
 COPYRIGHT. — I. § 1. In the proper sense of the word, "copy- 
 right" is the exclusive right of printing or otherwise multiplying copies 
 of a published literary work, that is, the right of preventing all others 
 from doing so. 7 The infringement of this right is called piracy (q. v.). 
 Copyright is of two kinds, — by prerogative and by statute. 
 
 By preroga- A. § 2. The crown has the exclusive right of publishing certain books, 
 
 of which the most important are the English translation of the Bible, the 
 statutes, and reports of judicial proceedings. The privilege of publishing 
 the Bible and some other books has been granted to the Universities of 
 Oxford and Cambridge. The crown's copyright is not. now strictly 
 enforced. 8 
 
 By statute. B. § 3. The right of a subject to prevent others from multiplying 
 
 1 Williams on Seisin, 48. 4 H. L. C. at p. 920 ; 5 & 6 Vict. c. 45, 
 
 - Stat. 3 & 4 Will. 4, c. 104. s. 2; Curtis on Copyright; Lowndes on 
 
 Stat. 1 & 2 Vict. c. no, s. II. Copyright. Compare the French statute 
 
 * Bankruptcy Act, 1869, ss. 22, 25. of 19 July, 1793 (Teulet, Codes, supp. 184), 
 
 Elton, 44 etseq. and the "German Copyright Act of nth 
 
 « Steph. Comm. i. 643 ; Elton, Copyh. June, 1870. 
 7 Per Parke, B., in Jeffreys y.Boosey, 8 Shortt on Copyright, 36. 
 
Copyright LAW DICTIONARY. Copyright 211 
 
 copies of a published work (such as a book, painting, engraving-, photo- 
 graph, &c.) is a statutory one, depending on the provisions of various 
 statutes from 8 Anne, c. 19, to 25 & 26 Vict. c. 68. 1 They vest the copy- 
 right of the work in the author and his assigns ; limit the time during 
 which the copyright exists ; and prescribe certain formalities, the prin- 
 cipal of which are registration in the books of the Stationers' Company, 
 and (in the case of a book) the deposit and delivery of copies of it to 
 certain public libraries. 2 The term of copyright in the case of a book, 
 pamphlet, sheet of music, map, &c, is either the life of the author and 
 seven years more, or the period of forty-two years from the first publica- 
 tion of the book, whichever period is longer. 3 In the case of engravings, 
 prints and lithographs, the term is twenty-eight years from publication, 
 whether the engraving, is original or taken from a picture. 4 The right of 
 copying, engraving, reproducing and multiplying every original painting, 
 drawing and photograph, is reserved to the author and his assigns for the 
 term of his natural life and seven years after his death. 6 
 
 § 4. The right of representation and performance (q. v.) is sometimes 
 called dramatic copyright. 6 
 
 § 5. The term copyright is also used to denote the exclusive right of Copyright in 
 applying ornamental or useful designs to articles of manufacture, &c, and fure S &c SCUlP " 
 to the right of multiplying copies or casts of sculpture and models ; these 
 are registered under the Registration of Designs Acts' (q.v.). 
 
 § 6. International copyright is the right of a subject of one country to International 
 protection against the republication in another country of a work which c0 P vn g ht - 
 he originally published in his own country. The right of foreigners to 
 protection in this country against the republication here of works (books, 
 prints, sculptures, &c.) originally published abroad can only exist by virtue 
 of an order in council applying to the particular country, and such an 
 order can only be made when by the law of that country reciprocal 
 protection is given to British subjects. 8 § 7. Similar protection may be Authorized 
 given against the publication in this country of unauthorized translations translations, 
 (that is, translations not sanctioned by the author) of books published 
 abroad, provided the original work is registered here and an authorized 
 
 1 Shortt on Copyright, 65 et seq. As to Independently of copyright, however, the 
 the copyright in an engraving from a pic- publication of a periodical which imitates in 
 ture, see Dicks v. Brooks, 15 Ch. D. 22. form, title, &c. one which has previously 
 
 2 Stat. 5 & 6 Vict. c. 45, ss. n, 6; been published, maybe restrained by in- 
 Shortt, 86 et seq. ; Watson's Comp. Eq. junction, on the principle of trade-mark or 
 122. trade-name ( q. v.). See Hogg v. Maxwell, 
 
 3 5 & 6 Vict. c. 45, s. 3. In the case of L. R., 2 Ch. 318 ; Bradbury v. Beeton, 39 
 articles in encyclopaedias, periodicals, &c, L. J. (Ch.) 57; Weldon v. Dicks, 10 Ch. D. 
 the copyright of each article belongs to the 247. 
 
 author, unless he and the publisher other- i Stat. 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38 ; 
 
 wise agreed, and even then it only belongs 17 Geo. 3, c. 57; Shortt, 106. See Dicks 
 
 to the publisher for 28 years, after which v. Brooks, 15 Ch. D. 22. 
 
 time the right of publishing it in a separate 5 Stat. 25 & 26 Vict. c. 68. 
 
 form reverts to the author for the remainder 6 Chatterton v. Cave, 3 App. Ca. 483. 
 
 of the term of 42 years : stat. 5 & 6 Vict. " 54 Geo. 3, c. 56 ; 13 & 14 Vict. c. 104, 
 
 c. 45, s. 18. Where a book is publishedin a. 6 ; Shortt, 124, 602. 
 
 parts (as in the case of an encyclopaedia or s 7 & 8 Vict. c. 12 ; Shortt, 130 ; 
 
 periodical), it is only necessary to register Fairliev.Boosey, 4 App. Ca. 711; Kloster- 
 
 the title and time of the first publication of mann, Geist. Eig. ; Eisenlohr, Vertrage, 
 
 the first number: stat. 5&6Vict. c.45, s. 19. passim. 
 
 P 2 
 
212 Coram non Judice law dictionary. Cornage 
 
 translation published within a certain time from the publication of the 
 original work. 1 
 
 § 8. Copyright is a species of incorporeal personal property; it may 
 be assigned by a written instrument, or by an entry in the register. 2 
 
 II. § 9. Copyright is also said to mean the right which the author of 
 an unpublished literary composition has at common law to the piece 
 of paper on which it is written and to the copies of it which he chooses 
 to make. If he lends or entrusts a copy to another, that person cannot 
 multiply copies of it, or publish it, or make any other use of it, except 
 with the consent of the author. 5 This, however, does not seem to be an 
 accurate use of the term copyright, nor is it common. 
 
 See Right of Representation and Performance. 
 
 CORAM NON JUDICE (before one who is not the judge) is an 
 expression used where a Court proceeds in a matter beyond its jurisdic- 
 tion. The term was generally used in reference to proceedings before 
 justices of the peace, the general rule being that if the want of jurisdiction 
 appeared on the face of the proceedings they were void, and no act done 
 in pursuance of them could be justified ; but this rule has been modified 
 by the act 1 1 & 12 Vict. c. 44, for the protection of justices of the peace 
 from vexatious actions for acts done by them in the execution of their 
 office, sect. 2 of which requires the conviction or order to be quashed 
 before an action can be brought. 4 
 
 CO-RESPONDENT. — Where a husband brings a suit against his 
 wife charging her with adultery, the alleged adulterer must as a rule be 
 made a party to the petition as a co-respondent. If the adultery is proved 
 the Court may order him to pay damages to the husband. 5 (See Adultery ; 
 Dissolution of Marriage.") 
 
 CORNAGE was a tenure by which land might formerly be held. " It is said that 
 in the marches of Scotland some hold of the Icing by cornage, that is to say, to winde a 
 home, to give men of the countrie warning, when they heare that the Scots or other 
 enemies are come or will enter into England ; which service is grand serjeanty. But if 
 any tenant hold of any other lord than of the king by such service of comage, this is 
 not grand serjeanty, but it is knight's service, .... for none may hold by grand 
 serjeanty but of the king only." 6 
 
 Comage was abolished by the act 12 Car. 2, c. 24, certainly so far as it constituted 
 knight's service, and apparently also in the case of grand serjeanty, because the service of 
 comage could hardly be called an honorary service, which is the only kind of service 
 excepted from the act. (From old French, corn, come, a horn.) (See Tenure ; Grand 
 Serjeanty.) 
 
 1 15 & 16 Vict. c. 12. 4 Crepps v. Durden, Smith, L. C. i. 
 
 3 Shortt, 152. 716. 
 
 3 Jeffreys v. Boosey, 4 H. L. C. at p. 6 Browne on Divorce, 143, 204 ; 20 & 
 
 919; Shortt, 48 ; Prince Albert \ . Strange, 21 Vict. c. 85, ss. 28, 33. 
 
 2 De G. & S. 693. " 6 Litt. § 156. 
 
213 
 
 Corn-wall law dictionary. Coroner 
 
 CORNWALL. — The eldest son of the reigning sovereign is by 
 inheritance Duke of Cornwall during the life of the sovereign. 1 The 
 principal statutes relating to the duchy lands are — 7 & 8 Vict. c. 65 ; 
 25 & 26 Vict. c. 49; 26 & 27 Vict. c. 49 ; and 31 & 32 Vict. c. 35. 
 Stat. 21 & 22 Vict. c. 109 relates to mines, and 9 Geo. 3, c. 16 ; 7 & 8 
 Vict. c. 105 ; 23 & 24 Vict. c. 53, and 24 & 25 Vict. c. 62, to the limita- 
 tion of suits in relation to lands within the duchy. 3 (See also Stannaries; 
 Tinbounding.) 
 
 CORODY was a sum of money or allowance of a house, chamber, meat, drink, 
 clothing or other necessaries paid or allowed by an abbey or other house of religion to a 
 servant of the crown at the king's request ; but the king was only entitled to demand 
 corodies of such abbeys, &c. as he was founder of by right of his crown (see In Capite).* 
 Corodies also seem to have been created by grants from one person to another, like 
 annuities ; 4 but they are now all obsolete. (See Hereditament.) 
 
 CORONER is an officer having both judicial and ministerial duties, 
 the former including the duty of inquiring as to the manner of death of 
 any person who is slain or dies suddenly, or in prison. The inquest is 
 held before at least twelve jurymen, super visum corporis (after viewing the 
 dead body). If the jury return a verdict of murder or manslaughter 
 against any person by name, the inquisition is equivalent to an indict- y 
 ment {q. v.), and it is the duty of the coroner to commit the accused for 
 trial, unless (in case of manslaughter) he thinks fit to admit him to bail. 
 He may also bind over any witnesses to appear at the trial. Another 
 branch of the coroner's office is to inquire concerning shipwrecks (though 
 this seems to have been practically abolished by modern legislation (see 
 Wreck) and treasure trove. The coroner is also a conservator of the king's 
 peace and a magistrate by virtue of his appointment. His ministerial 
 office is only as the sheriff's substitute in executing process where the 
 sheriff is suspected of partiality. 5 
 
 § 2. There are coroners (usually four in number) for every county in County 
 England, some counties being divided into districts for the purpose ; they coronels - 
 are elected by the freeholders. 6 There is also a coroner in every borough Borough 
 having a separate court of quarter session ; he is appointed by the council coroners - 
 of the borough,' and some franchises or liberties (such as lordships, Coroners of 
 universities, and the like) have their own coroners, being either persons franchlses - 
 acting as coroners ex officio (such as heads of corporations), or persons 
 appointed by them ; the right of acting as or appointing coroners in such 
 places being derived from the crown, they are sometimes called coroners 
 by charter. The City of London, the Cinque Ports and the Stannaries 
 have coroners of this description. To the same class belong the coroners 
 of the verge (see Verge), and the coroners of the Admiralty, who have 
 
 1 Bl. Comm. i. 224 ; The Prince's Case, 5 Jervis on Coroners, passim ; Steph. 
 
 8 Rep. 1. Comm. ii. 637 et sea.; Pritchard, Q. S. 62. 
 
 3 Steph. Comm. ii. 451, note. 6 Stats. 7 & 8 Vict. c. 92 ; 23 & 24 Vict. 
 
 3 Fitz. N. B. 230 ; Co. Litt. 49 a ; Finch, c. 116. 
 
 Law, 162 ; Cowell, s. v. ' Steph. 636 ; stat. 5 & 6 Will. 4, c. 76, 
 
 4 Termes de la Ley, s. v. s. 62. 
 
214 
 
 Coroner 
 
 LAW DICTIONARY. 
 
 Corporation 
 
 Official 
 coroners. 
 
 jurisdiction in matters arising on the high seas, or on creeks and public 
 rivers, their jurisdiction in the latter cases being concurrent with that of 
 the coroner of the county. The judge of the Admiralty Division is coroner 
 by patent; he appoints deputies or substitutes for particular districts. 
 § 3. Official coroners are the Lord Chief Justice of England, who, by 
 virtue of his office, is supreme coroner over all England, and the judges 
 of the High Court of Justice, who are also sovereign coroners. 1 
 
 Etymology.] — Norman French : corouner, from coroune, the crown, apparently be- 
 cause the coroner was the chief representative of the crown in criminal and other 
 business. 2 
 
 CORPORATION is a succession or collection of persons having in 
 the estimation of the law an existence and rights and duties distinct from 
 those of the individual persons who form it from time to time. 3 Corpora- 
 tions are of three kinds. 
 
 Sole. § 2. A corporation sole consists of only one member at a time, the 
 
 corporate character being kept up by a succession of solitary members. 
 Corporations sole are always holders of a public office, the principal 
 examples being the sovereign and ecclesiastical persons, such as bishops, 
 parsons, &c. ; the Solicitor for the Aifairs of her Majesty's Treasury is a 
 corporation sole of statutory creation. 4 The principal incident of such 
 a corporation is that the property which the member holds by virtue of his 
 office (but not his private property) passes on his death not to his real or 
 personal representatives, but to his successor in office, as if he and the 
 successor were the same person. 5 
 
 Aggregate. § 3- A corporation aggregate consists of several members at the same 
 
 time. The most frequent examples are incorporated companies and 
 municipal corporations. (See Company ; Municipal Corporation.') The 
 chief peculiarity of a corporation aggregate is that it has perpetual suc- 
 cession {i.e. existence), a name, and a common seal by which its intention 
 may be evidenced ; that, being merely a creation of the law, it cannot 
 commit a crime or enter into a personal contract or relation (see Personal) ; 
 and that the majority of the members have power to bind the minority in 
 matters within the powers of the corporation. 6 
 
 § 4. There are also certain corporations which are partly sole and partly 
 aggregate, namely, those in which the property and rights of the corpora- 
 tion are vested in one member as the head or representative of the others, 
 as in the case (before the Reformation) of an abbot and his convent, or 
 (at the present day) the master of a hospital, who holds the property for 
 the benefit of the poor brethren. These corporations are sometimes 
 spoken of as "corporations aggregate of which the head only is capable" 
 
 1 Jervis, 2, 49. 
 
 3 Britton, 3 b. 
 
 3 Sutton's Hospital Case, 10 Rep. 32 b ; 
 Reg. v. Arnaud, 9 Ad. & E. (N. S.) 806 ; 
 Co. Litt. 250 a; Lindley on Part, i. 213; 
 Grant on Corporations, passim ; Smith's 
 Merc. Law, 104; Bl. Coram, i. 468; Steph. 
 
 Comm. iii. 2 ; Pollock on Contract, 83 ; 
 Shelford, R. P. Stat. 133. 
 
 4 Treasury Solicitor Act, 1876. 
 
 6 It is only in a few instances that chat- 
 tels go in succession in the case of a cor- 
 poration sole : Grant, 629. 
 
 6 Pollock, 84 ; Grant, 5 ; Bl. Comm. i. 478. 
 
Corporator law dictionary. Cosinage 215 
 
 (that is, capable of taking land in succession), 1 and sometimes as " cor- 
 porations sole in auter droit." 3 
 
 § 5- Corporations are further divisible into eccksiastical[spirilual\ such Ecclesiastical, 
 as bishops, deans and chapters, &c, or lay. Lay corporations again are Lay. 
 either civil — such as the sovereign, municipal corporations, and trading Civil. 
 companies : or eleemosynary — such as colleges, hospitals, and other charit- Eleemosy- 
 able corporations. 3 nary " 
 
 § 6. There are some aggregate bodies which are not complete cor- Quasi-cor- 
 porations, and are therefore sometimes called quasi-corporations : such pora lons ' 
 are churchwardens, who cannot hold land in succession, and have not a 
 common seal. 4 
 
 § 7. With reference to the mode of their creation, corporations exist 
 according to the common law or under a statute. The first class includes 
 many corporations virtute officii — such as the crown, bishops, parsons, 
 &c. : and corporations existing by prescription (q. v.), by charter (q. v.), 
 and by implication. An example of the last kind is where the crown 
 grants land to "the men of Islington" at a certain rent; this incor- 
 porates them, for otherwise the grant could not be fully carried into effect. 5 
 Corporations created by statute may be divided into those incorporated 
 by special act of parliament, as in the case of a railway company, and 
 those created under a general act, e.g. the Companies Act, 1862. 
 
 See Visitation; Dissolution; Seal; Ultra Vires. 
 
 CORPORATOR. — A corporator is a member of a corporation 
 aggregate. 6 
 
 CORPOREAL. See Hereditament. 
 
 CORPUS JURIS CANONICI. See Canon Law. 
 
 CORPUS JURIS CIYILIS is the body of Roman law contained 
 in the Institutes, Digest and Code compiled by the orders of Justinian, 
 together with the Novelise, or constitutions promulgated after the com- 
 pilation of the Code : see the various titles. 
 
 CORROBORATIVE. See Evidence. 
 
 CORRUPT. See Bribery. 
 
 CORRUPTION OF BLOOD. See Attainder. . 
 
 COSINAGE in the old books signifies consanguinity. A writ of cosinage was a real 
 action which lay for the recovery of lands, &c. of which the heir's great grandfather's 
 father was seised on the day of his death, and which had been abated by a stranger. 7 
 (See Abatement, § 2.) 
 
 1 Co. Litt. 94 a, b. * Grant, 6oo. 
 
 2 Litt. $§ 443, 645, 653 et seq.; Co. 5 Ibid. 8 ; Bl. Comm. i. 472. 
 
 Litt. 10? a, 321; b, 338 b, 341 b : Bl. Comm. " Grant on Corporations, 48 '. Russell v. 
 
 ii. 431. Wakefield W. Co., L. R , 20 Eq. at p. 479. 
 
 3 Bl. Comm. i. 470 ; Phill. Eccl. Law, ' Litt. § 286. 
 1982 ; Brice on Ultra Vires, 13. 
 
2l6 
 
 Cost Book 
 
 LAW DICTIONARY. 
 
 Costs 
 
 Solicitor's 
 costs. 
 
 Litigant's 
 costs. 
 
 Costs from 
 opponent. 
 
 Costs out of 
 estate. 
 
 Costs in the 
 cause. 
 
 COST BOOK. — A cost book mining company is a partnership formed 
 for the purpose of working a mine under the local customs of the district 
 where the mine is situate. The shareholders appoint an agent, commonly 
 called a purser, for the purpose of managing the affairs of the mine subject 
 to the control of the shareholders. They write in a book, called the cost 
 book, the agreement into which they have entered, and in the same book 
 the purser inserts from time to time the receipts and expenditure of the 
 mine, the names of the shareholders, their respective accounts with the 
 mine, and transfers of shares. Each member may transfer or relinquish 
 his share. As a general rule the capital is not paid up in the first instance, 
 but calls are made from time to time at meetings of the members when 
 required. Cost book companies are generally within the jurisdiction of 
 the Stannaries Court (q. v.)} 
 
 COSTS. — I. § i. The term "costs" has two meanings. In one sense 
 it denotes the charges which a solicitor (and also to some extent a special 
 pleader or certificated conveyancer) is entitled to make and recover from the 
 client orperson employing him as his remuneration forprofessional services, 
 such as legal advice, attendances, drafting and copying documents, con- 
 ducting legal proceedings, &c. A solicitor's bill of costs is subject to 
 special provisions as to taxation, &c. (q. v.), with a view to the protection 
 of the client. 
 
 II. § 2. The term "costs'' also denotes the expenses which a person 
 is entitled to recover by reason of his being a party to legal proceedings. 
 They include court fees, stamps, &c, and also, where the party is represented 
 by a solicitor, the reasonable charges and fees of the solicitor and counsel. 
 The amount of these costs is ascertained by the process of taxation (q. v.), 
 which is regulated by certain principles of general application. 
 
 § 3. In contentious proceedings (such as an action to recover a debt or 
 damages, &c.) the successful party generally recovers his costs from his 
 opponent, unless the Court or judge otherwise orders, the rule now being 
 that the costs follow the event, not only on the main issues in the action, 
 but also on interlocutory proceedings. 2 
 
 § 4. In administrative proceedings, e. g., actions for the administra- 
 tion of the estate of a deceased person, actions for the execution of 
 trusts, proceedings to ascertain the construction of a will, and bankruptcy 
 and winding-up proceedings, those parties who have properly or neces- 
 sarily taken part in the proceedings (such as the executors, trustees and 
 persons beneficially interested who have established their rights) com- 
 monly obtain their costs out of the estate or fund which is the subject of 
 the proceedings. 3 
 
 § 5. The costs of the general or ordinary proceedings in an action or 
 suit are called " costs in the cause'' or " costs in the action." Costs of 
 some interlocutory proceedings are not included in the " costs in the 
 
 1 Lindley on Partn. 148 ; Tapping on 
 the Cost Book, passim ; Stannaries Act, 
 1869 ; Chynoweth's Case, 15 Ch. D. 13. 
 
 - See Rules of Court, iv. ; Rules of 
 August, 1875 ; Memorandum, 1 Ch. D. 
 
 41; Ex parte Masters, I Ch. D. 1 13; 
 Garnett v. Bradley, 3 App. C. 944. As 
 to the old statutes relating to costs, see 
 Steph. Comm. iii. 575. 
 3 Daniell, Ch. Pr. 1239, 1271. 
 
Costs LAW dictionary. Council 
 
 217 
 
 cause" unless so ordered. The costs of an interlocutory application are Costs in any 
 sometimes ordered to be the costs of one of the parties in any event ; so event 
 that even if he loses the action he is entitled to set off the amount of those 
 costs against the costs in the cause which he has to pay; 
 
 § 6. When a trial, motion or other step in an action is put off at the Costs of the 
 request of one of the parties, the Court usually requires him to pay the dav - 
 other party the costs which he has been put to in preparing for the trial 
 or motion, and which are thrown away by the postponement. These are 
 called "costs of the day." 1 
 
 § 7. Some old statutes expressly or impliedly gave a successful litigant Double and 
 in certain cases double or treble the amount which he would otherwise costs- 
 
 have been entitled to in respect of costs. These statutes were abolished 
 by stat. 5 & 6 Vict. c. 97.* (See Certificate, § 5.) 
 
 - In the Chancery Division the following varieties of costs require 
 notice : — § 8. The costs allowed a successful litigant in ordinary cases Party and 
 are termed " costs as between party and party," and do not include all P artv - 
 the expenses to which the party has been put. § 9. In certain cases the Solicitor and 
 Court allows costs to be taxed upon a more liberal scale, so as to include c en " 
 many charges which would not be allowed in taxation as between party 
 and party : these are called " costs as between solicitor and client." The 
 most usual instance of their allowance is where a trustee or executor is a 
 party to proceedings in his representative character, and there is a fund 
 under the control of the Court out of which the costs can be paid. 3 
 § 10. In some cases the Court goes even further, and directs a trustee's Costs, charges 
 costs to include " costs, charges and expenses" properly incurred by him, and ex P er >ses. 
 although not strictly costs in the action : these include such allowances 
 as the trustee would be entitled to in an account between him and his 
 cestui que trust. 4 (See Allowance.') 
 
 As to the costs in actions brought in the High Court which ought to 
 be brought in the County Court, see Certificate, § 5. 
 
 See Affidavit, § 4 ; Dives ; Higher and Lower Scale ; In Forma Pauperis; 
 Pauper; Security. 
 
 COUNCIL OF CONCILIATION.— By the act 30 & 3 iVict. c. 105, 
 power is given for the crown to grant licences for the formation of 
 councils of conciliation and arbitration, consisting of a certain number of 
 masters and workmen in any trade or employment, having power to hear 
 and determine all questions between masters and workmen which may be 
 submitted to them by both parties, arising out of or with respect to the 
 particular trade or manufacture, and incapable of being otherwise settled. 
 They have power to apply to a justice to enforce the performance of their 
 
 1 Archbold, Pr. 1208. 19 Vict. c. 126 ; 29 & 30 Vict. c. 52 ; 30 
 
 2 Ibid. 429. & 31 Vict. c. 35 ; 33 & 34 Vict.- c. 23 ; 
 
 3 Daniell, 1240, 1299. Steph. Comm. jv. 435 ; Pritchard, Q. S. 
 
 4 Ibid. 1304. As to costs in ecclesi- 339. As to parliamentary costs given to 
 astical cases, see Phill. 1297. As to costs the promoters of, or petitioners against, a 
 in lunacy, see Pope, 202 et seq. As to the private bill, see stats. 28 & 29 Vict. c. 27 ; 
 costs of criminal prosecutions, see stats. 7 34 & 35 Vict. t. 3 ; May, Pari. P. 805, and 
 Geo. 4, c. 64 ; 10 & 11 Vict. c. 82 ; 18 & Taxation. 
 
2l8 
 
 Council of Judges. LAW DICTIONARY. 
 
 Counter-Claim 
 
 award. The members are elected by persons engaged in the trade. 1 
 (See Trade Union.) 
 
 COUNCIL OF JUDGES. — Under the Judicature Act, 1873, an 
 annual council of the judges of the Supreme Court is to be held for the 
 purpose of considering the operation of the new practice, offices, &c. 
 introduced by the act, and of reporting to a Secretary of State as to any 
 alterations which they consider should be made in the law for the admi- 
 nistration of justice. An extraordinary council may also be convened at 
 any time by the Lord Chancellor. 2 The only meeting of the Council 
 which has hitherto taken place is that held in November, 1880, to 
 consider the advisability of abolishing the offices of the Lord Chief 
 Justice of the Common Pleas Division and the Lord Chief Baron of the 
 Exchequer, and of consolidating the three common law divisions of the 
 High Court. 
 
 COUNSEL is a general name for barristers, used especially in certain 
 locutions. Thus, we speak of " instructing counsel," of " giving a brief 
 to counsel," of " the plaintiff's counsel," and so on, meaning that the 
 instructions or brief are given to a barrister : that the plaintiff in a certain 
 case is represented by a barrister, &c. 
 
 As to "counsel's signature," see Brief, § 2. 
 
 Indictment. 
 
 Civil action. 
 
 Common 
 counts. > 
 
 COUNT. — § 1. In criminal procedure, the statement of the indict- 
 ment is divided into paragraphs called counts. If the defendant is 
 charged with several offences in any one count, the indictment is open to 
 the objection of duplicity, or being double, which may be taken by 
 demurrer, though it is cured by verdict. 3 In some cases, the indictment 
 may charge several offences in several counts ; but in other cases, if this 
 is done, the Court may quash the indictment, or require the prosecutor to 
 elect on which charge he will proceed. 4 (See Attempt, § 3.) 
 
 § 2. In civil procedure count originally meant the declaration in a real action. 5 In a 
 personal action, if the plaintiff included several causes of action in the same declaration, 
 each section of the declaration was called a count. 6 It was usual to put at the end of a 
 declaration a number of claims analogous to that arising out of the real cause of action 
 (e. g. in an action of debt the declaration concluded with claims for money paid by the 
 plaintiff for the defendant at his request, for money received by the defendant for the use 
 of the plaintiff, and for money found due from the defendant to the plaintiff on an 
 account stated), and these were called common counts. Count "cometh of the French 
 word conte, which in Latyne is narratio." ' 
 
 COUNTER-CLAIM.— § 1. If the defendant in an action has a 
 claim against the plaintiff, which he might have asserted by bringing a 
 separate action against the plaintiff, he may raise it in the existing action 
 
 1 Davis on Friendly Societies, 232. 
 
 » Sect. 75. 
 
 3 Archbold, Crim. PI. 66. 
 
 1 Ibid. 71. 
 
 5 Stephen on PI. (5) 30. 
 
 6 Ibid. 302. 
 
 7 Co. Litt. 17 a, 303 a; Stephen, App. 
 Ixxv. 
 
Counterfeit Coin law dictionary. Country 219 
 
 by adding to his statement of defence a statement of the facts on which 
 he bases his claim, and of the relief which he claims against the plaintiff ; 
 this is called a counter-claim : so if the defendant has a claim connected 
 with the subject of the action against the plaintiff and another person 
 {e.g. a co-defendant or a stranger), he may set it up by counter-claim ; in 
 the latter case, the statement of defence has, in addition to the original title 
 of the action, a new title setting forth the names of the persons against 
 whom the counter-claim is set up ; if any one of them is not a party to 
 the action, he is served with a copy of the defence, indorsed with a notice 
 to appear, and is thenceforth in the same position as if he had been sued 
 in an independent action by the defendant, 1 except, of course, that his 
 statement in answer to the counter-claim is called a reply and not a 
 defence. 2 
 
 § 2, If the counter-claim is of such a nature that it cannot be con- 
 veniently disposed of in the pending action, or is otherwise objectionable, 
 it is liable to be struck out. 3 
 
 § 3. The Court gives judgment both on the original claim and on the 
 counter-claim ; and if the balance is in favour of the defendant, judgment 
 is given for the defendant as if he were plaintiff in an action against the 
 original plaintiff in the pending action. 4 
 
 As to counter-claims in County Court actions, see Pollock, C. C. Pr. 54. 
 
 See Set-off. 
 
 COUNTERFEIT COIN is coin not genuine, but resembling or 
 apparently intended to resemble or pass for genuine coin, and includes 
 genuine coin prepared or altered so as to resemble or pass for coin of a 
 higher denomination. Making or importing counterfeit coin, whether to 
 pass for coin current in any part of her Majesty's dominions, or to pass 
 for gold or silver foreign coin, is felony; making counterfeit foreign 
 copper coin is a misdemeanor. 5 (See Utter.) 
 
 COUNTERMAND. — To countermand is to recall or revoke: thus 
 to countermand an authority is to revoke it. 6 (See Revocation.) Notice 
 of trial in an action in the High Court may be countermanded by consent 
 of the parties, or by leave of the Court or a judge. 7 
 
 COUNTERPART. SeeZease; Indenture. 
 
 COUNTRY is used in certain antiquated locutions to signify (i) a jury, as in the 
 expressions " trial by the country," 8 and "conclusion to the country," which was the 
 mode by which a plaintiff or defendant in pleading offered his case for trial by jury ; 9 
 
 1 Judicature Act, 1873, s - 2 4> Furness s Stat. 24 & 25 Vict. c. 99 ; Russell on 
 v. Booth, 4 Ch. D. 586, and the cases there Crimes, i. 200 ; Stephen's Crim. Dig. 292 ; 
 cited; Hollo-way v. York, Week. N. (1877), Reg. v. Hermann, 4 Q. B. D. 284. 
 
 112 ; Original Hartlepool Co.v. Gibb, 5 Ch. 6 Co. Litt. 52 b. 
 
 D. 713 ; Harris v. Gamble, 6 Ch. D. 748. , Rules of Court, xxxvi. 13. 
 
 2 Rules of Court, xxii. 8. 8 Bl. Comm. iv. 349. 
 
 3 Ibid. xix. 3, xxii. 9 ; Coe's Pr. 79. " Stephen, Pleading (5), 79. 
 
 4 Rules of Court, xxii. 10. 
 
220 
 
 County 
 
 LAW DICTIONARY. 
 
 County Courts 
 
 (2) any place other than a Court, as in the expressions " maintenance in the country" 
 (see Maintenance), and a "deed in the country,'' as opposed to an alienation by record, 
 that is, in Court. 1 (See In Pais.) 
 
 COUNTY or shire is a civil division of England and Wales, of which 
 there are at present forty in England and twelve in Wales. The division 
 is of importance in law with reference to the jurisdiction of commis- 
 sioners of assize, justices of the peace, sheriffs, coroners, county courts, 
 &c, and to parliamentary elections and local taxation. 2 (See Rate.) 
 § 2. Ordinary counties are sometimes called " counties at large," to dis- 
 tinguish them from " counties corporate" or " counties of cities or towns," 
 which are certain cities and towns, some with more, some with less, 
 territory annexed to them, and having, by the special grace of various 
 kings, the privilege to be counties of themselves, and not to be com- 
 prised in any other county, but to be governed by their own sheriffs and 
 other magistrates. Such are London, York, Bristol, and many others. 3 
 For some purposes, however, these counties corporate are deemed part 
 of the adjoining counties at large. 4 (See County Palatine; Hundred; 
 Sheriff.) 
 
 Etymology.] — Norman French: counti, from counte, an earl or lord lieutenant. 5 
 
 Districts. 
 
 Circuits. 
 
 Original 
 jurisdiction. 
 
 COUNTY COURTS.— § 1. The modern or statutory County Courts 
 are local and inferior Courts of Record established throughout England 
 by various acts of parliament 6 for the purpose of providing a cheap and 
 summary mode of procedure in civil cases involving small amounts. For 
 this purpose the country is divided into districts, in each of which is held 
 a County Court, presided over by a judge, who is assisted by a registrar 
 and high bailiff (q. v.). Two or more districts are frequently formed into 
 one circuit, in which one judge holds Courts alternately. 1 ' The ordinary- 
 process of the Court is by plaint and summons (a. v.), but in some cases 
 proceedings by petition, similar to those in use in the Chancery Division 
 of the High Court and the Bankruptcy Court, are applicable. 
 
 § 2. County Courts are divisible into those having ordinary and those 
 having extraordinary jurisdiction. The ordinary jurisdiction is again 
 divisible into original and auxiliary. 
 
 § 3. The original jurisdiction may be said generally to extend to 
 claims of debt or damages not exceeding 50/., to claims for the re- 
 covery of land the yearly value of which does not exceed 20/., and to 
 claims for the administration of estates, execution of trusts, foreclosure 
 and redemption of mortgages, specific performance, and proceedings under 
 the Trustee Acts and Trustee Relief Acts, where the value of the estate, 
 
 1 Litt. § 728. 
 
 2 Steph. Comm. i. 126 ; Co. Litt. 100 b, 
 r68a. 
 
 3 Bl. Comm. i. 120. 
 
 4 Stephen, 133 ; stats. 2 Will. 4, c. 45, 
 =>. 17; 38 Geo. 3, c. 52; 14 & 15 Vict, 
 cc. 55 and 100 ; Reg. v. Cumpton, 5 Q. B. 
 
 D. 341. 
 
 5 Britton, 274b ; Co. Litt. 168 a. 
 
 6 9 & io Vict. c. 95, amended and ex- 
 tended by numerous acts. See Pollock's 
 County Court Practice, xxvi. 
 
 7 Pollock, 1 et seg. 
 
County Courts LAW dictionary. County Palatine n\ 
 
 mortgage, property, &c, does not exceed 500/. ;' also to contentious 
 business in probate and administration matters where the estate of the 
 deceased is under a certain value. 2 
 
 § 4. The auxiliary jurisdiction is principally applied in the trial «of, or Auxiliary 
 the taking of evidence in, actions and other proceedings pending in the J unsdlction - 
 High Court. 3 
 
 § 5. Extraordinary jurisdiction. By stat. 31 & 32 Vict. c. 71, provision Admiralty 
 is made for assigning to convenient County Courts jurisdiction in 
 Admiralty matters (namely, claims for salvage, towage, necessaries, 
 wages, collision, &c, not exceeding a certain amount), and by 31 & 32 
 Vict. c. 71, provision is made for the appointment of County Courts to and bank- 
 exercise the jurisdiction in bankruptcy which by that act is given to the aj£k,' n -' llris " 
 County Courts over all persons not residing within the London district. 4 
 
 § 6. The High Court has concurrent jurisdiction with the County 
 Courts in matters within their ordinary jurisdiction, but in many cases 
 where the County Courts have jurisdiction a plaintiff who brings an action 
 in the Superior Courts, though he is successful, runs the risk of losing 
 his costs (see Certificate, § 5), and such actions may be remitted to the 
 County Court on the application of the defendant. 6 By the County 
 Courts Act, 1867, s. 28, no action which can be brought in a County 
 Court shall be brought in an inferior Court not of record. 
 
 § 7. An appeal lies from the judgment of a County Court (i) if given 
 in its ordinary and Admiralty jurisdiction, to a divisional Court of the 
 High Court of Justice; 6 (ii) if given in its Bankruptcy jurisdiction, to the 
 Chief Judge of the London Bankruptcy Court. 
 
 As to the power of the County Courts to commit for non-payment of 
 judgment debts, see Debtors Act, 1869, and for contempt of Court, see 
 p. 196, note (2). 
 
 § 8. The old County Court was presided over by the earl of the county, Sheriff's 
 or in his absence by the sheriff; the suitors, that is the freemen or land- count y c ° ul "ts. 
 holders, were the judges. The County Courts were the principal civil 
 Courts until the system of assizes {q. v.) was introduced, after which they 
 fell into disuse, until nearly the whole business transacted in them was 
 that which they still retain, namely, the proclaiming of, outlawries and 
 the election of sheriffs. They were not Courts of Record. 7 
 
 See Courts of Requests ; City of London Court; Court. 
 
 COUNTY PALATINE is a county the owner of which formerly had 
 jura regalia, or royal franchises and rights of jurisdiction similar to those 
 possessed by the crown in the rest of the kingdom ; thus he had the 
 
 1 For an enumeration of the statutes 6 30 & 31 "Vict. <.-. 142, ss. 5, 7; Judi- 
 under which the County Courts have juris- cature Act, 1873, s. 67 ; Neale v. Clarke, 
 diction in respect of friendly societies, 4 Ex. D. 286. 
 
 agricultural holdings, &c. see Pollock, 6 Jud. Act, 1873, s. 45 ; Rules of De- 
 
 xxxi. et seq. cember, 1875 ; The Glannibanta, 2 P. D. 
 
 2 Pollock, 331. 45. 
 
 s Ibid, xxxvi. 7 Pollock, i ; Reeves's Hist. i. 7 ; Bl. 
 
 * Ibid, xxxix. Comm. iii. 36. 
 
222 
 
 County Palatine 
 
 LAW DICTIONARY. 
 
 Court 
 
 power of pardoning crimes and appointing judges and officers within his 
 county. Three counties palatine — Chester, Durham, and Lancaster, still 
 exist, but they have long been united to the crown, and assimilated in all 
 important respects to the rest of the kingdom, though the Duchy of Lan- 
 caster still has some local Courts, as to which see Duchy of Lancaster ; 
 also Chancellor, § 3 ; Chancery, § 6 ; Clerk of the Crown ; Palatine Courts} 
 
 COURT has the following meanings : — (1) "A place where justice is 
 judicially ministred" 2 ; (2) the judge or judges who sit in a Court; and 
 (3) an aggregate of separate Courts or Judges, as when we speak of the 
 Supreme Court of Judicature (q. v.), which never sits as a Court, being 
 merely a name for the Court of Appeal and High Court of Justice. (See 
 Council of fudges.) 
 
 Of record. § 2. Courts are of two principal classes — of record and not of record. A 
 
 Court of Record is one whereof the acts and judicial proceedings are 
 enrolled for a perpetual memory and testimony, and which has authority 
 to fine and imprison for contempt of its authority. 3 Such were the 
 superior Courts of common law before their abolition, and such are the 
 modern High Court of Justice and Court of Appeal, the London Bank- 
 ruptcy Court, and the County Courts ; many of the ancient inferior 
 Courts {infra, § 4) are also Courts of Record. 
 
 Superior. § 3- Courts are also divided into superior and inferior, superior Courts 
 
 being those which are not subject to the control of any other Courts, 
 except by way of appeal : such are the Court of Appeal, the High Court 
 of Justice, and the London Bankruptcy Court. 4 
 
 Inferior. § 4. The inferior Courts include the County Courts, the Mayor's Court 
 
 of London, the Stannaries Court, the Ecclesiastical Courts, Borough 
 Courts, Courts Baron, Courts Leet, and other local Courts. No action 
 which can be brought in a County Court may be brought in an inferior 
 Court not of record. (See County Court, § 6.) When an inferior Court 
 refuses to exercise its jurisdiction, it may be compelled to do so by 
 mandamus, and if it exceeds its jurisdiction it may be restrained by pro- 
 hibition. 6 (See Mandamus ; Prohibition}) 
 
 § 5. A third class of Courts may be said to consist of the Supreme 
 Courts, which are not subject to the appeal of any other Courts, and 
 whose decisions are therefore final. These are the House of Lords and the 
 Privy Council; the so-called Supreme Court of Judicature {supra, § 1) is 
 not a supreme Court in this sense, being subject to the appellate jurisdic- 
 tion of the House of Lords. 
 
 Civil. § 6- Lastly, Courts are divided into civil, criminal, and ecclesiastical. 
 
 Criminal. Those hitherto mentioned belong to the first class. The criminal Courts 
 include the High Court of Justice (in which is now vested the criminal 
 
 Supreme or 
 ultimate. 
 
 1 Steph. Comm. i. 129 et seq., iii. 347; 
 Jud. Act, 1873, s. 99. 
 
 3 Co. Litt. 58 a. 
 
 ' Steph. Comm. iii. 269. 
 
 4 The palatine common law courts of 
 Lancaster and Durham were also superior 
 courts, because the counts palatine had 
 
 jura regalia within their counties, and their 
 courts were therefore not subject to the 
 control of any other courts. 
 
 5 The characteristics of inferior courts 
 are referred to in detail in Mayor, &r"c. of 
 London v. Cox, L. R., 2 H. L. 239. 
 
Court of Admiralty LAW DICTIONARY. Court of Appeal 223 
 
 jurisdiction of the Court of Queen's Bench and of the Courts of Assize 
 under commissions of "oyer and terminer" and "gaol delivery," q.v.), 
 the Central Criminal Court and the courts of magistrates and justices of 
 the peace. (See the various titles.) 
 
 As to the Ecclesiastical Courts, see that title. Ecclesiastical. 
 
 Etymology.] — Norman French : court, 1 which originally meant a manor or large 
 farm ; low Latin, cortis or curtis, from Latin cohors, cors, a yard. 2 
 
 COURT OF ADMIRALTY. See Admiralty ; High Court of Ad- 
 miralty. 
 
 COURT OF ANCIENT DEMESNE, as its name implies, is a 
 Court in which the freeholders of land in ancient demesne are the judges, 
 in much the same way as the freeholders of an ordinary manor are the 
 judges in a Court Baron {q.v.). The two Courts closely resemble one 
 another.* (See Ancient Demesne ; Manor.) 
 
 COURT OF APPEAL is that division of the Supreme Court of 
 Judicature (q. v.) which exercises appellate jurisdiction in all causes and 
 matters originating in the Supreme Court. It consists of (a) five ex-omcio 
 judges — the Lord Chancellor, Lord Chief Justice of England, Master of 
 the Rolls, Lord Chief Justice of the Common Pleas and Lord Chief 
 Baron of the Exchequer, 4 who only sit when it is convenient and neces- 
 sary for them to do so, amd never all at the same time ; and (b) six 
 ordinary judges, styled Lords Justices of Appeal (q. v.). The Lord 
 Chancellor also has power to summon not more than four additional 
 judges from the Queen's Bench, Common Pleas, Exchequer and Probate 
 Divisions of the High Court to attend as judges of the Court of Appeal, 5 
 but the exercise of this power has to a great extent, if not altogether, been 
 made unnecessary by the addition of the three justices of appeal by the 
 Appellate Jurisdiction Act, 1876. (See Lords f us tices of Appeal.) The 
 Court of Appeal generally sits in two divisions, one at Lincoln's Inn to take 
 appeals from the Chancery and Probate Divisions (including Admiralty 
 business) and from the Bankruptcy Court ; the other at Westminster, to 
 take appeals from the common law divisions. 
 
 § 2. The Court of Appeal hears appeals from all the divisions of the 
 High Court, and from the Courts whose jurisdictions are transferred to 
 the High Court, thus exercising the jurisdiction of the old Court of 
 Appeal in Chancery, of the Exchequer Chamber, and of the Privy Council 
 in admiralty and lunacy appeals. The appellate jurisdictions of the 
 Palatine Court of Lancaster and of the Stannaries Court are also trans- 
 ferred to the Court of Appeal. 6 (See High Court of fustice.) 
 
 1 Britton, 274 a. * Jud. Act, 1875, «• 4- 
 
 2 Littre, s. v. Cour. 6 Ibid. 
 
 3 4 Inst. c. lviii. e Jud. Act, 1873, s. 18. 
 
224 
 
 Court of Appeal 
 
 LAW DICTIONARY. 
 
 Court Baron 
 
 COURT OF APPEAL IN CHANCERY consisted of the Lord Chancellor and 
 
 two Lords Justices of Appeal (q. v.). "When they all sat together they constituted the full 
 Court ; but generally the Lords Justices sat together as one Court and the Lord Chancellor 
 alone as another Court. 1 The Court heard appeals from the Master of the Rolls and the 
 Vice-Chancellors and from the London Bankruptcy Court, and also had jurisdiction in 
 lunacy (q. v.) ; and from its decisions in most cases an appeal lay to the House of Lords. 
 The jurisdiction of the Court is now transferred to the Court of Appeal [q. v.). 
 
 COURT OF ARCHES is an ecclesiastical Court exercising appellate 
 jurisdiction over each of the diocesan Courts within the province of Can- 
 terbury. It may also take original cognizance of causes by letters of 
 request from one of those Courts. 2 The judge is called the Dean of 
 Arches or the Official Principal of the Court : he is also the Official 
 Principal of the Chancery Court of York (see Chancery, § 7), and is 
 appointed by the two primates. 3 
 
 § 2. The Court is " so called of Bow Church in London, by reason of 
 the steeple thereof raised at the top with stone pillars in fashion like a 
 bow bent archwise ; in which church this Court was ever wont to be 
 held." 4 (See Provincial Courts ; Dean of Arches.) 
 
 COURTS OF AUDIENCE are ecclesiastical Courts, in which the 
 primates once exercised in person a considerable part of their jurisdiction. 
 They seem to be now obsolete, or at least to be only used on the rare 
 occurrence of the trial of a bishop. 5 
 
 COURT BARON is a Court held in a manor, and is of two kinds : 
 Freeholders. § 2. A Court Baron, in the original sense of the word, is a Court in 
 
 which the freetenants or freeholders of the manor are the judges, and the 
 steward of the manor is the registrar. 6 In it all suits concerning lands 
 held of the manor might be, and in early times not unfrequently were, 
 determined, 7 but their jurisdiction in real actions has been practically 
 abolished (see County Court, § 6), and now such Courts are rarely held, 
 except in those manors where the freeholders have a set of customs 
 relating to fines, heriots, regulation of commons and the like. 8 
 Customary. § 3. A Customary Court Baron is one which "doth concerne copiholders, 
 
 and therein the lord or his steward is the judge." 9 The province of such 
 a Court seems to be to deal with all matters concerning the rights of the 
 copyholders between themselves (as where their consent is to be given 
 to an enclosure of part of the waste), but more especially to register alien- 
 ations of the copyhold land, all of which were originally transacted in the 
 Customary Court and entered on the court rolls, whence the tenants are 
 called tenants by copy of court roll. 10 At the present day, a Customary 
 
 1 Haynes's Equity, 33. 
 
 - Phillimore, Eccl. Law, 1202. 
 
 3 Public Worship Regulation Act, 1874, 
 s. 7. 
 
 4 Phill. 259. 
 
 " Phillimore, Eccl. Law, 1201, 1204. 
 6 Co. Litt. 58 a; Steph. Comm. iii. 279. 
 
 7 Williams on Seisin, 16. 
 
 8 Elton on Copyholds, 239 ; County 
 Courts Act, 1867, s. 28. 
 
 9 Co. Litt. 58 a; 4 Co. 26b. 
 
 10 Co. Litt. 58 a ; Elton, 242 ; Burton, 
 394 ; Williams on Seisin, 36. 
 
Court of Chivalry LAW DICTIONARY. Court of the Duchy 225 
 
 Court may be held without the presence of any copyholder, unless the 
 business to be transacted requires the consent of the homage. 1 
 See Presentment ; Roll; Manor; Hundred Court. 
 
 Etymology.]— § 4. It has been said that in the term Court Baron, " baron" means 
 merely a freeman who holds land ; 3 but this seems inconsistent with the old names 
 given to the Court, viz. court de baroun, 3 curia baronis E. C. militis manerii sui 
 fradictif where " baron" clearly means the lord of the manor. 
 
 COURT OF CHIVALRY, or Court Military, was a Court not of record, held 
 before the Lord High Constable and Earl Marshal of England. It had jurisdiction, 
 both civil and criminal, in deeds of arms and war, armorial bearings, questions of pre- 
 cedence, &c, and as a court of honour. It has long been disused. 5 
 
 COURT CHRISTIAN is the old name for an Ecclesiastical Court. 
 
 COURTS OF CONSCIENCE were the same thing as Courts of Request \q. v.). 
 
 COURT FOR CROWN CASES RESERVED is the Court 
 created by stat. 11 & 12 Vict. c. 78, for the decision of questions of law 
 arising on the trial of a person convicted of treason, felony or mis- 
 demeanor (e.g. at the Central Criminal Court, the assizes or quarter 
 sessions), and reserved by the judge or justices at the trial for the consi- 
 deration of the Court. For this purpose, the judge or justices state and 
 sign a case setting forth the question and the facts out of which it arises. 6 
 The jurisdiction is now exercised by the judges of the High Court of 
 Justice, or five of them at the least. Their decision is final. 7 
 
 COURT OF DELEGATES. See Delegates. 
 
 COURT FOR DIVORCE AND MATRIMONIAL CAUSES was 
 
 established by stat. 20 & 21 Vict. c. 85, which transferred to it all jurisdiction then 
 exerciseable by any Ecclesiastical Court in England in matters matrimonial, and also gave 
 it new powers. The Court consisted of the Lord Chancellor, the three chiefs and three 
 senior puisne judges, of the common law Courts, and the Judge Ordinary, who together 
 constituted and still constitute the " full Court." The Judge Ordinary heard almost all 
 matters in the first instance. By the Judicature Act, 1873, s - 3> tne jurisdiction of the 
 Court was transferred to the Supreme Court of Judicature ; but the only effect of the 
 transfer seems to be to have changed the name of the Court to that of the Probate, 
 Divorce and Admiralty Division of the High Court of Justice, and the name of the 
 Judge Ordinary to that of the President of the Division, for the practice of the Court 
 remains as before. (See Probate, Divorce and Admiralty Division.) 
 
 COURT OF THE DUCHY CHAMBER OF LANCASTER 
 
 is a Court held before the Chancellor of the Duchy or his deputy, and 
 having jurisdiction in all matters of equity relating to lands held of the 
 
 1 Stat. 4 & S Vict. c. 35, s. 86 et seq.; 4 4 Inst. cap. lvii. 
 
 Williams, R. P. 372. 6 Bl. Comm. in. 103 ; Steph. Comm. 
 
 2 Williams on Seisin, 15, following, iii. 335, n. (I). 
 apparently, Co. Litt. 58 a. . 6 Archbold, Cnm. PI. 191. 
 
 3 Britton, 274 a. 7 Judicature Act, 1873, ss. 47, 100. 
 
 S. Q 
 
226 Court of Hustings law dictionary. Court of Peculiars 
 
 crown in right of the Duchy of Lancaster ; these are said to include a 
 large district of land within the city of Westminster. 1 
 
 COURT OF HUSTINGS is a Court in the city of London 
 analogous to the sheriff's county court 2 (see County Court, § 8), which 
 it resembles in having formerly had jurisdiction in causes of action 
 arising within its district, namely, the city. 
 
 COURT LEET. — The lords of a great number of manors have the 
 privilege of holding a Court Leet, which, so far as it is useful in the present 
 day, is held for the purpose of presenting small offences in the nature of 
 a common nuisance, which require immediate attention and redress. 3 It 
 is a Court of Record ; the steward of the manor is the judge and the jury 
 is formed from the inhabitants. 4 Originally it was a court of criminal 
 jurisdiction over the tenants and resiants (or persons resident within the 
 manor) 5 in all matters in which the sheriff's tourn had jurisdiction, from 
 which court it is said to be derived; it also had the " view of frank 
 pledge" (see Frank Pledge), 6 but these portions of its jurisdiction are quite 
 obsolete. (See Commorant ; Manor; Presentment ; Sheriff.) 
 
 COURT MARTIAL is a Court convened by or under the authority 
 of the crown to try an offence against military or naval discipline, com- 
 mitted by a soldier or sailor in her Majesty's service. Courts martial 
 proceed and pass sentence according to the Articles of War, the Articles 
 of the Navy {q. v.), and the acts regulating the discipline of the army and 
 navy respectively. 7 
 
 COURT OF PASSAGE is an inferior Court, possessing a very 
 ancient jurisdiction over causes of action arising with the borough of 
 Liverpool. It appears to have been also called the Borough Court of 
 Liverpool. 8 It has the same jurisdiction in admiralty matters as the 
 Lancashire County Court. 9 . 
 
 COURT OF PECULIARS, according to Blackstone, is a branch of and 
 annexed to the Court of Arches, and has jurisdiction over all those parishes dispersed 
 through the province of Canterbury in the midst of other dioceses, which are exempt 
 from the ordinary's jurisdiction, and subject" to the metropolitan only. 10 It seems, how- 
 ever, to have been practically abolished by the stats. 3 & 4 Vict. c. 86, and 10 & n Vict, 
 c. 98." 
 
 1 Bl. Comm. lii. 78 ; Steph. Comm. iii. ' Steph. Comm. ii. 589 et seq. ; Naval 
 347, n. (b). Discipline Act, 1866 ; Army Discipline 
 
 2 Steph. Comm. iii. 293, n. (w.) Act, 1879. 
 
 3 Elton on Copyh. 239. s Laughton v. Taylor, 6 M. & W. 695. 
 
 4 Ibid. 241. 9 Roscoe's Admiralty, 75. 
 
 5 Williams on Seisin, 16. 10 Bl. Comm. iii. 65. . 
 
 6 2 Inst. ; Magna Charta, c. 35 ; Steph. » Phill. Eccl. Law, 260. 
 Comm. iv. 321. 
 
Court of Pleas law dictionary. Courts of Universities 221 
 
 COURT OF PLEAS at Durham was a Court of the county palatine of Durham, 
 having a local common law jurisdiction. It was abolished by the judicature Act, which 
 transferred its jurisdiction to the High Court. 1 (See County Palatine; Palatine Courts.) 
 
 COURT OF PROBATE.— By the stat. 20 & 21 Vict. c. 77, it was enacted that 
 the voluntary and contentious jurisdiction and authority of all ecclesiastical, peculiar, 
 manorial and other courts and persons in England having jurisdiction or authority to 
 grant probate of wills or letters of administration should cease, and that such jurisdiction 
 and authority should thenceforth be exercised in the name of her Majesty in a court to be 
 called the Court of Probate, consisting of a judge and a number of registrars (see Regis- 
 trar). By the Judicature Act, 1873, the jurisdiction of the Court was transferred to the 
 Supreme Court of Judicature, the principal effect of the transfer being to change the name 
 of the Court to that of the Probate, Divorce and Admiralty Division of the High Court 
 of Justice (q. v.), and to alter the practice in contentious business. (See Action, § 10; 
 Caveat, § 2; Citation, §§ 4, 5 ; Pleading; Prohate ; Warning.) 
 
 COURTS OF REQUEST were inferior Courts having local jurisdiction in claims 
 for small debts, established in various parts of the kingdom by special acts of parliament. 
 They were abolished in 1846, and the modern County Courts (q. v.) took their place. 2 
 
 § 2. There was also a minor court of equity called the Court of Requests, presided 
 over by the lord privy seal and the masters of the requests (similar to the masters in 
 chancery), which entertained suits by poor persons. It was virtually abolished in Queen 
 Elizabeth's reign by a decision of the Court of Queen's Bench. 3 
 
 COURT OF REVIEW was part of the old Court of Bankruptcy under stats. I & 
 2 Will. 4, c. 56, and 5 & 6 Vict. *.. 122, and exercised a kind of supervision or appellate 
 jurisdiction over the commissioners. It was abolished in the year 1847. ' (See Bank- 
 ruptcy Courts ; Commissioners in Bankruptcy.) 
 
 COURT ROLL. See Copyhold, § 1 ; Court Baron, § 3. 
 
 COURTS OF SURVEY are Courts for the hearing of appeals by 
 owners or masters of ships from orders for the detention of unsafe ships 
 made by the Board of Trade under the Merchant Shipping Act, 1876. 5 
 A Court of Survey consists of a judge summoned by the registrar from a 
 list of Wreck Commissioners (q. v.), stipendiary magistrates, &c, which 
 is provided for the purpose, and of two assessors, one appointed by the 
 Board of Trade, and the other summoned by the registrar out of a list of 
 persons provided for the purpose. 6 
 
 COURTS OF THE UNIVERSITIES of Oxford and Cambridge 
 have jurisdiction in all personal actions to which any member or servant 
 of the respective university is a party, provided that the cause of action 
 arose within the liberties of the university, and that the member or ser- 
 vant was resident in the university when it arose, and when the action 
 was brought. 7 Each University Court also has a criminal jurisdiction in 
 all offences committed by its members. 8 
 
 1 Jud. Act, 1873, s. 16; Bl. Comm. iii. 6 Sect. 7 ; Rules of Court of Survey, 
 79. 1876. 
 
 2 Steph. Comm. iii. 283. ' Steph. Comm. iii. 299; stat. 25 & 26 
 
 3 Spence's Equity, i. 351 ; 4 Inst. 97. Vict. c. 26, s. 12 ; 19 & 20 Vict. c. x-ui. 
 * Robson's Bankr. 25, 81. 8 Steph. Comm. iv. 325. 
 
 6 Sect. 6. 
 
 Q2 
 
228 
 
 Covenant 
 
 LAW DICTIONARY. 
 
 Covenant 
 
 Express, 
 implied. 
 
 Real, 
 
 personal. 
 
 Covenants 
 running with 
 the land. 
 
 Collateral or 
 in gross. 
 
 COVENANT is a promise under seal, 1 that is to say, a promise, 
 agreement or contract contained in a deed or instrument sealed and 
 delivered by the promisor, who is called the covenantor, the promisee 
 being called the covenantee. A covenant, being a contract, is in many 
 respects subject to the same rules as other contracts ; as to these, see 
 Contract; Condition; Promise. 
 
 § 2. Covenants are either express or implied. By an implied covenant 
 (or covenant in law) is generally meant one created by the .law irrespec- 
 tively of the intention of the parties : thus, in a lease for years the word 
 "demise" creates a covenant by the lessor for quiet enjoyment by the 
 lessee {i.e. that he shall occupy the land free from eviction and disturb- 
 ance by the lessor), unless the lease includes an express covenant to the 
 same effect. 2 There are also implied covenants in the more accurate 
 sense of the term : thus, the reddendum of a lease is an implied covenant 
 by the lessee for payment of the rent. 3 (See Express; Implied; Tacit.) 
 
 § 3. Covenants were formerly divided into real and personal. A real 
 covenant was one by which a man bound himself to pass or convey 
 lands, &c. to another, so that the land itself could be recovered : e.g. a 
 covenant to levy a fine or a warranty (q. v.); a personal covenant, on the 
 other hand, merely gave the right to recover damages for non-performance. 4 
 Real covenants, in this sense, no longer exist; 5 the term "real covenant" 
 is, however, sometimes used to denote a covenant running with the land 6 
 {infra, § 5). § 4. A personal covenant may deal with any subject, e.g. 
 the payment of a sum of money, the execution of work and labour, &c, 
 or it may relate to or be connected with land. Covenants connected 
 with land are divided into those which are annexed to an estate in the 
 land, and collateral covenants. 7 § 5. A covenant annexed to an estate in 
 land, or a " covenant running with the land," is one the benefit or burden 
 of which passes to an assignee of the estate when the owner assigns it: 
 thus, if a lessee of buildings covenants to repair them, and assigns the 
 lease, the covenant binds the assignee. 8 So we speak of covenants being 
 annexed to, or running with, a reversion : thus, a covenant to pay rent 
 runs with the reversion, that is, every assignee of the reversion can 
 enforce the covenant against the tenant. 9 (See Privity.) Some covenants 
 run with the land whether assigns are mentioned in them or not, while 
 others only do so where assigns are expressly mentioned. 10 § 6. Opposed 
 to such covenants are collateral covenants or covenants in gross, namely, 
 to do something not concerning the land demised or conveyed, "as if 
 the lessee covenants for him and his assigns to build a house upon the 
 land of the lessor which is no parcel of the demise .... it shall not 
 
 1 Shepp. Touch. 160. 
 
 2 Woodfall, L. & T. 155 ; Davids. 
 Conv. i. 106. 
 
 3 Ibid. 107; Duke of St. Albans v. 
 Ellis, 16 East, 352. 
 
 4 Shepp. Touch. 161 ; Co. Litt. 384 b; 
 Bl. Comm. iii. 157. 
 
 5 Stat. 3 & 4 Will. 4, c. 27, s. 36. 
 
 6 Davids. Conv. i. no. 
 
 7 Shepp. 161. 
 
 8 Woodfall, 146; Spencer's case, 5 Co. 
 16 ; Smith, L. C. i. 60; Leake on Con- 
 tracts, 615 ; Pollock on Contract, 214. 
 
 9 Leake, 620 ; stat. 32 Hen. 8, c. 34. 
 10 Davids, i. no. 
 
Covenant law DICTIONARY. Covin 229 
 
 bind the assignee." 1 § 7. A covenant, however, though it does not run Covenant 
 with the land, may be binding in equity upon every person who takes an ™f n |^ ith 
 assignment with notice of it : such a covenant is sometimes called a equit^ 
 " covenant running with the land in equity." 2 
 
 § 8. Covenants are known by names indicating their object or purport. 
 (See Covenant to stand seised.) Thus, on . every conveyance, mortgage, Covenants for 
 &c, the grantor enters into covenants for title, usually four in number : title - 
 namely, (i) that he has good right to convey the lands ; (ii) that they shall 
 be quietly enjoyed ; (iii) that they are free from incumbrances ; and (iv) 
 that the grantor and his heirs will make any further assurance {q. v.) which 
 may be required to vest the lands in the grantee, his heirs or assigns. 3 
 § 9. A vendor of land only enters into qualified covenants for title, by 
 which his responsibility is limited to the acts of those who have been in 
 possession since the last sale. A mortgagor gives absolute covenants. 
 Trustees, mortgagees, and other persons having no beneficial interest in 
 the property, merely covenant that they have not incumbered it. 4 
 
 Etymology.] — Norman French, covenaunt ; 5 Latin, convenire, to agree. 
 
 COVENANT TO STAND SEISED is a conveyance adapted to the case where 
 a person seised of land in possession, reversion, or vested remainder, proposes to convey 
 it to his wife, child or kinsman. In its terms it consists of a covenant by him, in 
 consideration of his natural love and affection, to stand seised of the land to the use of 
 the intended transferee. Before the Statute of Uses this would merely have raised a 
 use in favour of the covenantee ; but by that act this use is converted into the legal 
 estate, and the covenant therefore operates as a conveyance of the land to the covenantee. 
 It is now almost obsolete. 6 (See Conveyance, § 7 ; Statute of Uses; Consideration, 
 § 7.) 
 
 COVERT— COVERTURE.— A married woman is, called in Norman 
 French a feme covert, because she is under the protection of her hus- 
 band. Coverture means — (1) the condition of a married woman, or the 
 fact of her being married, and (2) the continuance of the marriage. 7 (See 
 Marriage.) 
 
 COVIN "is a secret assent determined in the hearts of two or more 
 to the prejudice of another : as if a tenant for term of life, or tenant in 
 tail, will secretly conspire with another, that the other shall recover 
 against the tenant for life the land which he holds, &c. in prejudice of 
 him in the reversion. Or if an executor or administrator permit judg- 
 ments to be entered against him by fraud, and plead them to a bond, or 
 [if] any fraudulent assignment or conveyance be made, the party grieved 
 may plead covin and relieve himself." 8 
 
 1 Spencer's Case, 5 Co. 16 b ; Smith, 6 Britton, 242 a. 
 
 L. C. i. 60. 6 Steph. Comm. 1. 532 ; Williams on 
 
 2 See Renats v. Coltilishaw, 9 Ch. D. Seisin, 145. 
 
 125. 7 Co. Liu. 112 a ; Bl. Comm. 1. 442. 
 
 3 Davids, ii. 191. 6 Tettnes de 1ft Ley, s. v.; Co. Litt. 
 
 4 ibid. i. 122; Williams, R. P. 447 i 357 a, 
 Elphinstone, Conv. 122. 
 
230 
 
 Credit 
 
 LAW DICTIONARY. 
 
 Creditor 
 
 Covin therefore seems to have merely a negative effect, that is, it avoids 
 the transaction of which it forms part, but does not give rise to a liability, 
 as does conspiracy or fraud. The term, however, is not now in common 
 use. 1 (See Collusion?) , 
 
 Etymology.]— Apparently from Norman French : covenir, to agree. (See Covenant) 
 
 CREDIT— CREDIBILITY— primarily signifies belief in a person's 
 trustworthiness. 
 
 Witness. § 2. Thus, in the law of evidence, the objections which were formerly 
 
 sufficient to make a witness incompetent are now in general only avail- 
 able as affecting his credibility, or his worthiness to be believed. Such 
 are — the fact of his having an interest in the result of the proceeding, the 
 fact of his having been convicted of felony, of his being under the age of 
 fourteen years, &c. Credibility is a question for the jury. 3 (See Com- 
 petency; Discredit?) 
 
 Payment. § 3. When a 'person agrees to postpone the payment of money to 
 
 which he would otherwise be entitled, he is said to give credit ; thus, if 
 A. sells goods to B. and the price is to be paid at a future time, this is a 
 sale upon credit. (See Creditor ; Debt; Letter of Credit ; Mutual Credits?) 
 
 Secured and 
 unsecured. 
 
 CREDITOR is a person to whom a debt is owing by another person, 
 called the debtor. The creditor is called a simple contract creditor, a 
 specialty creditor, a bond creditor, or a judgment creditor, according to 
 the nature of the obligation giving rise to the debt (see Contract; Debt); 
 and if he has issued execution to enforce a judgment he is called an execu- 
 tion creditor. He may also be a sole or a joint creditor. (See Joint?) 
 
 % 2. In the law relating to the administration of the assets of bankrupts, 
 companies in liquidation, and persons dying insolvent, creditors claiming 
 to share in the assets are divided into secured and unsecured. A secured 
 creditor is a person who holds a security on the property of the individual 
 or company, 3 and includes not only persons holding mortgages, charges, 
 and liens, but also judgment creditors who have levied execution by 
 seizure of property belonging to the individual or company, 4 or have 
 obtained and served garnishee orders. 6 
 In bankruptcy. § 3. In bankruptcy, a secured creditor is for the purpose of petitioning 
 for adjudication, proving his debt, receiving dividends, and voting, 
 deemed to be a creditor only in respect of the balance due to him after 
 realizing or deducting the value of his security, unless he gives up his 
 security to the trustee. If he does not comply with these conditions he 
 is excluded from all share in the dividends. 6 In order to prevent persons 
 
 1 See GirdUstone v. Brighton Aquarium 
 Company, 3 Exch. D. 137 ; 4 Exch. D. 
 107. 
 
 2 Best on Evidence, 189 et seq. 
 
 3 Bankruptcy Act, 1869, s. 16, \ 5. 
 
 4 Robson's Bankruptcy, 256 ; Slater v. 
 Finder, L. R., 6 Ex. 228 ; Ex parte 
 Roche, L. R., 6 Ch. 795 ; In re Printing. 
 
 &°c. Co., 8 Ch. D. 535 ; Ex parte Evans, 
 
 13 Ch. D. 252. 
 
 * In re Watt, W. N. (1878) 70; Silk- 
 stone Coal Co., 11 Ch. D. 160; Ex parte 
 Schofield, 12 Ch. D. 337; Levy v.Lovell, 
 
 14 Ch. D. 234. 
 
 6 Bankruptcy Act, 1869, ss. 12, 16, 40. 
 
Crime law dictionary. Cross 
 
 231 
 
 from under-estimating the value of their securities, it is also provided 
 that the trustee shall have power to purchase the security of any creditor 
 at the value which he has set on it ; or if the creditor has realized it at a 
 price exceeding his valuation, he is bound to pay the surplus to the 
 trustee. 1 
 
 §4. The Judicature Act, 1875, s. 10, provides that the rules of the In administra- 
 bankruptcy law as to the respective rights of secured and unsecured ^din^s-up. 
 creditors shall prevail and be observed in the administration by the Court 
 of the assets of any person dying insolvent after the commencement of 
 the act, and in the winding-up of an insolvent company under the Com- 
 panies Act, 1862. The principal effect of this section appears to be to 
 abolish the rule in Kellock's Case, 2 so as to compel a secured creditor to 
 deduct the value of his security and prove for the balance of his debt. It 
 also appears to have the effect of depriving a creditor of the right to 
 interest on his debt from the date of the judgment or order of administra- 
 tion, which is treated as equivalent to an adjudication in bankruptcy. 3 
 Whether it entitles the executor (in the case of an administration) or the 
 liquidator (in the case of a company) to purchase the security of a creditor 
 at his own valuation is not clear ; taken in its literal meaning the section 
 would not have that effect. It has, however, given rise to many specula- 
 tions and inconsistent decisions (some of which are referred to in note (3) 
 to title Administration), and a creditor would not be safe in relying on its 
 omissions. 
 
 § 5. In the law of bankruptcy and winding-up a petitioning creditor is Petitioning 
 a creditor who presents a petition for adjudication or winding-up. In 
 bankruptcy his debt must amount to 50/. 4 (see supra, § 3). In winding-up 
 his debt must exceed 50/. 5 
 
 As to frauds on creditors, see Fraud ; Fraudulent Conveyances. 
 
 CRIME— CRIMINAL LAW.— The word "crime" has no technical 
 meaning in the law of England, but it is generally used to include all acts 
 amounting to treason, felony or misdemeanor (q. v.). Crimes are viola- 
 tions of " public rights and duties due to the whole community, considered 
 as a community, in its social aggregate capacity." 6 
 
 Criminal law is that part of the law which relates to crimes and their 
 punishment. 
 
 As to the Courts of Criminal Jurisdiction, see Queen's Bench; Central 
 Criminal Court; Court for Crown Cases Reserved; Assize; Quarter Sessions; 
 Lord High Steward. 
 
 As to the procedure in criminal cases, see Indictment; Information; 
 Summary ; fury ; Certiorari; Trial. 
 
 CROSS. — When A. brings an action against B., and B., before final 
 judgment is given in that action, brings another action against A. in 
 
 1 Bankruptcy Rules, 1870, rr. 99, 100,101. 1879,8.6. 
 
 2 L. R., 3 Ch. 789. 5 Companies Act, 1862, s. 80. 
 
 3 In re Summers, 13 Ch. D. 136. 6 BI. Comm. iv. 5 ; Stephen, Crim, 
 
 4 Robson's Bankr. 153, 176; Act of Dig. 8. 
 
232 Cross-Examination LAW dictionary. Crown Office 
 
 respect of a claim arising out of the same subject-matter, this second 
 action is called a cross action. 1 Formerly it was not uncommon in 
 Chancery practice for the defendant in a suit to bring a cross bill against 
 the original plaintiff, either for discovery or for some relief which he could 
 not obtain in the original suit. The suits were then generally consolidated 
 and one judgment given in the two. Now, however, the procedure by 
 counter-claim (q. v.) has almost superseded this mode of proceeding. As 
 to cross actions against foreign governments, see State. 
 
 Cross actions are also sometimes brought in the Admiralty Division in 
 respect of damage by collision of ships. 2 (See Collision; Limitation of 
 Liability!) 
 
 CROSS-EXAMINATION. See Examination. 
 
 CROSS REMAINDER. See Remainder. 
 
 CROSSED CHEQUE, See Cheque. 
 
 CROWN DEBTS. See Debts. 
 
 CROWN LANDS. See Demesne. 
 
 CROWN OFFICE IN CHANCERY is one of the offices of 
 the High Court of Chancery now transferred to the High Court of 
 Justice. The principal official, the Clerk of the Crown, " is an officer 
 of parliament and of the Lord Chancellor in his non-judicial capacity 
 rather than an officer of the Courts of Law." 3 His principal duties are 
 to make out and issue writs of summons and election for both Houses of 
 Parliament and to keep the custody of poll-books and ballot-papers. 
 Nearly all patents passing the Great Seal, except those for inventions,* are 
 made out in his office, and he makes out the warrants for almost all 
 letters-patents under the Great Seal. (See Patent.') He also does the 
 duties formerly performed by the Clerk of the Hanaper; they chiefly con- 
 sisted in collecting fees, but have now ceased almost entirely. He is 
 registrar of the Lord High Steward's Court. 5 
 
 CROWN OFFICE IN THE QUEEN'S BENCH was the office 
 in which all the business of the Queen's Bench Division in respect of 
 its prerogative and criminal jurisdiction was transacted. 6 It has now 
 been transferred together with its principal officer, the Queen's Coroner 
 {q. v.), to the Central Office (q. v.). 
 
 1 See Davis v. Hedges, L. R., 6 Q. B. 5 Second Rep. Legal Dep. Comm. 39; 
 687. Rep. Comm. on Fees, 5 ; 2 & 3 "Will. 4, 
 
 2 See Chapman v. Royal Netherlands c. ill; 3 & 4 Will. 4, c. 84; 15 & 16 
 Steam. Nav. Co., 4 P. D. 157. Vict. c. 87 ; 37 & 38 Vict. c. 81. 
 
 3 Second Rep. Legal Dep. Comm. 39. 6 Second Rep. Leg. Dep. Comm. 15. 
 1 Great Seal Act, 1880. 
 
Cruelty law dictionary. Cumulative 
 
 233 
 
 CRUELTY. — § 1. In the law of divorce, cruelty maybe said generally Husband and 
 to be where the husband has so treated his wife and manifested such wife - 
 feelings towards her as to have inflicted bodily injury, to have caused 
 reasonable apprehension of bodily suffering, or to have injured health. 1 
 Acts of cruelty to children committed in the presence of the mother are 
 sometimes called constructive cruelty to her. 2 § 2. Cruelty by the wife 
 towards the husband generally requires to be of an aggravated character 
 in order to give him a right to a judicial separation. 3 (See Dissolution of 
 Marriage ; Judicial Separation.) 
 
 As to cruelty to children, see Children. 
 
 § 2. Cruelty to animals is punishable by fine or imprisonment under To animals. 
 the stats. 7 & 8 Vict. c. 87, 12 & 13 Vict. c. 92, and 17 & 18 Vict. c. 60 ; 
 these acts also provide for animals in pounds being supplied with food 
 and water. The Cruelty to Animals Act, 1876, deals with the subject of 
 vivisection. 
 
 CUI ANTE DIVORTIUM was an action by which a divorced woman could 
 recover her lands if they had been aliened during the coverture by her husband, "cui 
 ante divortium ipsa contradicere non potuit." 4 If she died before bringing the action 
 her heir could bring an action called a "sur cui ante divortium." They were both 
 abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. 
 
 CUI IN VITA was an action by which a widow could recover her lands if they 
 had been aliened during the coverture by her husband, " cui in vita suS. ipsa contradicere 
 non potuit." If she died before bringing the action her heir had an action called " sur 
 cui in vit§.." 5 
 
 They were both abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. (See Discontinuance!) 
 
 CUJACIUS. — Jacobus Cujacius (Cujas) was born at Toulouse in 1522, 
 studied there under Ferrier, taught law from 1547, principally at Bourges, 
 Turin and Paris, until his death at Bourges on 4th October, 1590. His 
 principal works are notes and commentaries on the different portions of 
 the Corpus Juris Civilis, on the Basilica, and on the Decretals ; and the 
 " Usus Feudorum." Collections of his works have been published at 
 Paris, Naples and other places. 6 
 
 CUM TESTAMENTO ANNEXO. See Letters of Administration. 
 
 CUMULATIVE signifies that two things are to be added together 
 or taken one after another, instead of one being a repetition or in sub- 
 stitution of the other. Thus where a testator gives two legacies of 
 unequal amount to the same person, even by the same testamentary 
 instrument, they are in general cumulative, that is, the legatee takes 
 both. 7 So when two statutes provide different remedies, penalties or 
 
 1 Tomkins v. Tom&ins, I Sw. &Tr. 168; 6 Litt. § 594 ; Bl. Comm. iii. 183, n. 
 Browne on Divorce, 30. 6 Holtz. Encycl. s. v. 
 
 2 Browne, 36. 7 Watson's Comp. Eq. 1239 ; Williams 
 
 3 Hid. 40. on Executors, 1196. 
 1 Co. Litt. 326 a. 
 
234 Curate law dictionary. Curtesy 
 
 punishments for the same act or offence, it is a question of construction 
 whether they were intended to be cumulative or whether it was intended 
 that only one could be exercised or imposed in a given case. 
 
 CURATE. — A temporary or stipendiary curate is a clerk in holy 
 orders who assists a rector or vicar, and is paid by him. In some cases 
 the bishop may compel an incumbent to employ a curate. 1 A perpetual 
 curate officiates in a parish or district to which he is nominated by an 
 impropriator or lay rector. 2 A curate of the latter class seems now to 
 be properly called a vicar. 3 (See also Chapel, § 5.) 
 
 CURATOR sometimes means the same thing as " guardian." Thus 
 in probate practice the guardian appointed to take out letters of adminis- 
 tration durante minore atate is sometimes called a curator, and in divorce 
 practice a curator ad litem is the same thing as a guardian ad litem. 4 
 (See Guardian?) 
 Felons' es- § 2 . By the act to abolish forfeiture for treason and felony, 6 where a 
 
 person has been convicted of treason or felony and no administrator of 
 his property has been appointed, an interim curator of the property may 
 be appointed by the justices of the peace of the district where the convict 
 last resided. The interim curator has powers similar to those of an 
 administrator (q. v. § 2), but can only exercise some of them with the 
 sanction of the justices or a Court. 
 
 CURE. See Aid, § 3. 
 
 CURSITORS were clerks in the chancery office, whose duties consisted in drawing 
 up those writs which were of course, de cursu, whence their name. They were 
 abolished by stat. 5 & 6 Will. 4, t . 82. 6 
 
 CURTESY. — § 1. Where a man marries a woman seised of land in 
 fee simple or fee tail, and has by her issue born alive capable of inheriting 
 the land as heir to her, notwithstanding the issue may afterwards die, yet 
 if the husband survives the wife he shall hold the land during his life. 
 "And he is called tenant by the curtesie of England, because this is 
 used in no other realme but in England onely." ' If land is given to a 
 woman and the heirs male of her body, and she marries and has issue 
 a daughter and dies, the husband is not tenant by the curtesy, because the 
 daughter by no possibility could inherit her mother's estate in the land. 8 
 
 § 2. Where a married woman is entitled to an equitable estate of in- 
 
 1 Steph. Comm. ii. 696 ; stat. 1 & 2 ' Litt. \ 35 ; Co. Lift. 29 a ; the law 
 Vict. c. 106. (See Non-Residence.) Latin phrase was tenens per legem Anglice. 
 
 2 Phillimore, Eccl. Law, 299. It is said that this species of estate was not 
 
 3 Stat. 31 & 32 Vict. c. 117; Steph. peculiar to England, and that the name is 
 Comm. ii. 682. connected with curia ; Digby, R. P. 122. 
 
 4 Browne on Divorce, 23. In Scotland it was called curialitas Scotia; 
 6 33 & 34 Vict. c. 23, ss. 21 et seq. Co. Litt. 30 a. 
 
 6 Spence's Equity, 238 ; 4 Inst. 82. 8 Co. Litt. 29 b. 
 
Curtilage LAW DICTIONARY. Custom 235 
 
 heritance to her separate use and does not dispose of it by deed or will, 
 the husband is entitled to equitable curtesy. 1 
 
 § 3. By the custom of gavelkind a man may be tenant by the curtesy 
 without having any issue. 2 
 
 § 4. And by the special custom of some manors the widower of a 
 deceased female copyholder is entitled to a customary curtesy. 3 
 
 See Dower; Freebench. 
 
 CURTILAGE is a court-yard adjoining a messuage, " i. <?., a little 
 garden, yard, field or piece of void ground, lying near and belonging to 
 the messuage."* By the grant of a messuage in a deed the curtilage 
 passes without being expressly mentioned. 5 (For the etymology of the 
 word, see Court.) 
 
 CUSTODY in criminal law is the same thing as detention in civil 
 law. Thus where the owner of a moveable thing gives it to his servant 
 to keep until he wants it back, the servant is said to have the custody of 
 it and the master retains the possession. 6 But if a thing is delivered by 
 a stranger to a servant on behalf of his master, then the servant has the 
 possession and not the mere custody of it. 7 
 
 See Embezzlement. 
 
 CUSTOM. — I. § 1. A custom is a rule of conduct which a given 
 class of persons observe spontaneously or by tacit consent. 8 
 
 Customs are of two classes, namely, those which form part of the law 
 of England, and those which operate by modifying contracts entered into 
 by private persons. 
 
 A. § 2. Customs which form part of the law of England are com- 
 monly divided into three kinds, namely, general, local or particular, and 
 personal. 
 
 § 3. General customs, or customs of the realm, 9 are the universal rule General, 
 of the whole kingdom, and form the common law in its stricter and more 
 usual signification ; 10 such are the rules as to the inheritance of land, 
 the solemnities and obligations of contracts, the liabilities of common 
 carriers, &c, so far as they have not been altered by statute." 
 
 1 Cooper v. Macdonald, 7 Ch. D. 288. sense of the term ; see Holland's Jurispr. 
 
 2 Co. Litt. 30 a. 44 <* s *q- 
 
 3 Elton, Copyh. 153. 9 Cow P- 375- 
 
 4 Shepp. Touch. 94. 10 Bl. Comm. 1. 67. 
 
 6 Co. Litt. 5b; Williams, R. P. 13. n This use of the word custom seems 
 6 Stephen, Crim. Dig. 196. to be modem, for Bracton, Britton and 
 ' Stephen, 224. Littleton use "custom" or "usage" in 
 6 Bracton, 2; Austin, 104; Markby's the sense of "particular custom," and say 
 Elements of Law, § 67 et seq. As to the nothing about " general customs," but 
 relation between custom and law see also simply speak of the law of England. 
 Maine, Anc. Law, ch. i. ; Mr. F. Pollock (Bracton, 1 a, 2a; Britton, 1 a, 33 b, 
 on Law and Command, Law Mag. April, 187b; Littleton, § 170.) Coke also says 
 1 872, and The History of the Word "Law," that the laws of England are "divided into 
 by the present writer, Law Mag. June and common law, statute law and custome," 
 July, 1874. It may now be taken that and " a custome cannot be alledged gene- 
 Austin's view of custom is incorrect, and rally within the kingdome of England : for 
 that custom is a source of law in the strict that is the common law " (Co. Litt. 
 
236 
 
 Custom 
 
 LAW DICTIONARY. 
 
 Custom 
 
 Particular or 
 local. 
 
 Personal. 
 
 § 4. Particular or local customs are those which only affect land situate 
 within particular districts ; such are the customs of gavelkind and borough- 
 English, which govern the descent of land in certain places, — the customs 
 which give the inhabitants of a certain place rights over land in the 
 neighbourhood (see. Easement; Recreation), — the custom of tin-bounding in 
 Cornwall, — and the customs relating to lands held by copyhold and cus- 
 tomary freehold tenure. 1 § 5. The customs of gavelkind and borough - 
 English are judicially noticed ; but to make any other particular custom 
 good, it must be reasonable and must have been peaceably and con- 
 tinually observed from time immemorial ; it is of course not necessary to 
 prove that it has existed from time immemorial, for proof of its existence, 
 for say twenty years, is often sufficient evidence of its immemorial 
 existence. 3 
 
 § 6. The principal, if not the only, custom having the force of law and 
 affecting a particular class of persons, is that known as the custom of 
 merchants or law merchant, sometimes called the general custom of 
 merchants to distinguish it from usages or customs of trade (infra, § 8). 
 It resembles the common law in following precedents, for " the custom 
 of merchants, when established and settled by known decisions, is the 
 general law of the kingdom, and therefore ought not to be left to a jury 
 after it has been already settled by judicial determinations ; but where it 
 is doubtful it may be fit to ascertain from merchants the facts." 3 The 
 rules as to bills of exchange, cheques, and other negotiable securities, 
 form an important part of the law merchant : a person who makes use of 
 a mercantile instrument, such as a bill of exchange, becomes to that 
 extent subject to the custom of merchants. 4 
 
 B. § 7. Customs which modify contracts entered into by private 
 persons are those which have prevailed so long and so uniformly in 
 transactions between persons engaged in a particular occupation, that 
 when two of such persons enter into a contract relating to their occu- 
 pation, and not containing anything inconsistent with the custom, they 
 are presumed to have contracted with reference to it, and it then forms 
 part of the contract so far as it is applicable. 
 
 nob); but elsewhere he distinguishes be- 
 tween general and particular customs (115b; 
 see also Finch's Law, 77 ; Noy's Maxims, 
 i. 1 7) . In truth it is misleading to describe 
 the common law as consisting of customs : 
 if it did, a rule hitherto unrecognized might 
 be introduced on proof of its having been 
 observed from time immemorial. In re- 
 ality, of course, this is not so ; for no rule 
 of the common law can now be recognized 
 unless a judicial precedent can be found 
 for it. 
 
 1 Bl. i. 74; Co. Litt. nob; Noy's 
 Dialogue, 27. 
 
 2 Litt. § 170; Co. Litt. nob, 113b, 
 175 b; Bl. Comm.i. 76; Broom's C. C. L. 
 12 ; Shelford's R. P. Stat. 31. The Pre- 
 scription Act, 1832, applies to certain cus- 
 toms, and limits the length .of time to be 
 proved. 
 
 3 Per Lord Mansfield, Edie v. East 
 India Co., 2 Bun-, at p. 1226; I W. Bl. 
 298. It has been said that where a usage 
 among merchants is of recent date, it may 
 be proved by evidence and then form part 
 of the law merchant. (Good-win v. Rooarts, 
 L. R., 10 Ex. at p. 346.) This view, how- 
 ever, seems to involve a confusion between 
 customs having the force of law and cus- 
 toms which modify contracts presumed to 
 have been made with reference to them. 
 In Goodwin v. Robarts the decision went 
 on the ground of a usage having been es- 
 tablished among bankers, and not on the 
 ground of the existence of a custom having 
 the force of law. See S. C, 1 App. Ca. 
 476; Smith's L. C. 610 ; Crouch v. Credit 
 Fonder, L. R., 8 Q. B. at p. 386 ; a learned 
 note by the reporters in 8 C. B. p. 967. 
 
 4 8 C. B. 967 ; Bl. Comm. i. 273. 
 
Custom LAW DICTIONARY. Customary- Freeholds 237 
 
 Customs modifying contracts are generally divided into two classes. 
 
 § 8. Usages or customs of trade are customs prevailing in a particular Usage of 
 trade or business : thus, if by the usage of bankers, stockbrokers, &c. 
 bonds or scrip certificates of a certain kind are treated as negotiable, a 
 person who has deposited them with a stockbroker cannot claim them 
 from a boml fide holder for value, who has acquired them by delivery 
 from the stockbroker. 1 § 9. Such usages or customs may not only annex 
 terms to a contract which is not inconsistent with them, but may also 
 control the interpretation of a contract which is complete in itself but 
 which contains terms used in a technical sense. 2 
 
 § 10. Customs of the country are customs relating to agriculture and Customs of 
 the tenure of land for agricultural purposes, prevailing within a certain e coun 17 ' 
 district. They are of two principal kinds : customs relating to and regu- 
 lating the course of husbandry, and the periods of taking farms ; and 
 customs which modify the rule of law that the land, together with every- 
 thing that is in the soil or attached to it, at the determination of a tenancy, 
 belongs to the landlord and not to the tenant. 3 
 
 The leading case on this subject is Wigglesworth v. Dallison ; i there 
 the defendant granted to the plaintiff a lease of a farm situate within a 
 parish where there was an ancient and laudable custom for tenants of 
 lands in certain cases to cut and take away after the expiration of the 
 lease crops sown by them before the expiration of the term ; the lease 
 was silent on the question of away-going crops, and it was held that the 
 custom formed part of the agreement between the parties, being supple- 
 mental to the lease. 
 
 Customs of this kind also regulate the rights of outgoing and incoming 
 tenants, which vary infinitely in different parts of the country. 5 (See 
 Tenant Right.) 
 
 CUSTOMARY FREEHOLDS.— I. § 1. In the proper sense of 
 the term customary freeholds are a privileged and superior kind of 
 copyholds. The tenants of these lands hold by copy of court roll 
 according to the custom of the manor, but they are not said to hold 
 at the will of the lord. This tenure is found chiefly in the north of 
 England, where it is not unfrequently known by the name of "tenant 
 right" {q.v.).* 
 
 II, § 2. Sometimes the term is inaccurately applied to lands which are 
 really freehold, but which are subject by custom to some peculiar and 
 customary mode of alienation : as in the case of lands held of a certain 
 manor in which there was a custom that every feoffment should be void 
 unless it were presented at a Manorial Court within a certain time. 7 
 
 1 Goodwin v. Robarts, 10 Ex. 76, 337 ; 6 Woodfall's L. & T. 706 et seq. 
 
 1 App. Ca. 476 ; Gorgier v. Mieville, 3 B. 6 Williams on Seisin, 49, citing Duke of 
 
 & C. 45. Portland v. Hill, L. R., 2 Eg. 765; 
 
 3 Broom's C. L. 507. Eardley v. Granville, 3 Ch. D. 826. 
 
 3 Cooke's Agricultural Holdings Act, 4. " Williams, 130, citing Ferryman's Case, 
 
 1 Dougl. 201 ; Smith's L. C. i. 598. 5 Rep. 84. 
 
238 
 
 Customs 
 
 LAW DICTIONARY. 
 
 Damage 
 
 CUSTOMS are the duties or tolls payable upon merchandise exported 
 from and imported into the country. The proceeds form part of the 
 Consolidated Fund {q.v.)} (See Excise.) 
 
 CUSTOS ROTULORUM is the first justice of the peace and first 
 civil officer of the county for which he is appointed. As his name 
 implies, he is nominally keeper of the rolls or records (writs, indictments, 
 &c.) under the commission of the peace, but in practice they are kept by 
 the clerk of the peace (q.v.). 2 
 
 GY-PRES. — § i. Where a person has expressed a general intention 
 and also a particular mode in which he wishes it carried out, but the 
 intention cannot be carried out in that particular mode, the Court before 
 whom the matter comes will in certain cases direct the intention to be 
 carried out cy-prh, that is, as nearly as possible in the mode desired. 
 § 2. Thus if a testator shows an intention that part of his property should 
 be devoted to charitable purposes, but he either does not effectually 
 indicate the particular manner in which he wishes it applied, or indicates 
 a mode of application which is or subsequently becomes impracticable, 
 the Court will execute the trust cy-prh, by applying the property to 
 charitable purposes similar to those (if any) mentioned by the testator. 3 
 (See Scheme, § 3.) So where an executory trust, if carried literally into 
 effect, would be void for illegality, as where it would infringe the rule 
 against perpetuities, the Court, in order to carry the testator's intention 
 into effect as far as possible, or, as it is termed, cy-prh, will direct a 
 settlement to be made as strictly as the law permits. 4 
 
 Etymology.]— Evidently from the French ci or cy = " this" or " here," and pris, = 
 " near," although the phrase does not seem to occur in French. 
 
 Damage in 
 law. 
 
 Actual 
 damage or 
 special (I.). 
 
 D. 
 
 DAMAGE is where one person has done a wrongful act for which the 
 person injured may obtain compensation in an action. 
 
 § z. Damage in law or general damage is where no actual damage has 
 been caused, but where the person whose right has been infringed brings 
 an action to vindicate that right : thus if A. enters on B.'s land without 
 permission, B. may bring an action and recover nominal damages against 
 A. for the trespass, though no actual injury to the land was caused, for 
 repeated trespasses on the land might eventually give rise to an easement 
 or right over the land. 5 So A. may recover nominal damages against B. 
 for a libel although it caused A. no pecuniary loss. 6 
 
 § 3. Actual or special damage is where the wrongful act has caused a 
 
 1 Steph. Comm. ii. 560; stats. 16 & 17 
 Vict. c. 107, to 39 & 40 Vict. c. 36. 
 
 2 Pritchard, Q. S. 34; Bl. Comm. iv. 
 272. 
 
 3 Watson's Comp. Eq. 43 ; Tudor's 
 Char. Trusts, 259. 
 
 4 White & Tudor's L. C. i. 33. 
 Broom's C. C. L. 90, 860. 
 
 6 Ibid. 89. 
 
Damage law DICTIONARY. Damages 239 
 
 loss or injury which can be assessed in money : as where A. negligently 
 drives a carriage so as to cause bodily injury to B., whereby B. is pre- 
 vented from carrying on his business and put to medical expense ; or 
 where a slander injures a person in his business. 
 
 § 4. " Special damage" is also used in the sense of extraordinary Special (II.). 
 damage : as where a person suffers damage from a public wrong {e.g. a 
 public nuisance), differing in kind from the damage suffered by the 
 community in general. 1 
 
 § 5. Consequential damage is that which is either the natural result of Consequen- 
 the wrongful act, according to the usual course of things, or, in the case tial " 
 of a breach of contract, such damage as may reasonably be supposed to 
 have been in the contemplation of the parties, at the time they made the 
 contract, as the probable result of the breach of it. 2 Thus medical 
 expenses incurred in consequence of an injury maybe recovered; 3 again, 
 in an action for the breach of a warranty of a chain cable, it was held 
 that the plaintiff might recover the value of the anchor to which the 
 cable was attached and which was lost by the breaking of the cable. 4 
 (See Remote.') 
 
 DAMAGE-FEASANT. See Distress. 
 
 DAMAGES are a sum of money adjudged to be paid by one person 
 to another as compensation for a loss sustained by the latter in consequence 
 of an injury committed by the former. 5 The test by which the amount Measure of 
 of the damages is ascertained is called the measure of damages. Thus damages, 
 where a vendor sues his vendee for breach of contract for the sale of 
 goods, the measure of damages is the price of the goods if the property 
 in them has passed to the vendee, or the difference between the contract 
 price and the market price at the time of the breach if the vendor has 
 re-sold the goods. 6 As to when interest is payable as damages, see 
 Interest. 
 
 § 2. When the parties to a contract agree that on a breach of its provi- Liquidated 
 sions the one shall pay to the other a specified sum of money, the question damages, 
 frequently arises whether that sum is merely a penalty {q. v.), or whether it 
 is liquidated damages, that is, a sum agreed to be paid on the breach in 
 order to save the trouble and expense of ascertaining the damage actually 
 sustained. The language in which the provision is expressed is immaterial 
 if its true nature is apparent. Thus where A. agreed to do certain ser- 
 vices for B., for which B. agreed to pay him 3/. 6s. 8d. per day, and the 
 
 1 Broom's C. C. L. 657 ; see also infra, 6 Co. Litt. 257 a ; Mayne on Damages, I. 
 note (2). 6 Broom's C. C. L. 631; Mayne, 78. 
 
 2 Chitty on Contracts, 814. Conse- As to damages for breach of contract, see 
 quential damage is sometimes called Chitty on Contracts, 807 et seq ; Leake on 
 special damage, as opposed to general Contracts, 56 et seq. As to torts see 
 damage, which is the immediate result of Broom, 852 et seq. In some cases a 
 the breach ; Leake on Contracts, 564. measure of damages is fixed by statute, 
 
 3 Underhill on Torts, 59. e.g. by the Merchant Shipping Act, 1854, 
 « Borradaile v. Brunton, 8 Taunt. 535 ; s. 510. 
 
 Chitty, 816. 
 
240 
 
 Dame 
 
 LAW DICTIONARY. 
 
 Date 
 
 Nominal. 
 
 Exemplary or 
 vindictive. 
 
 contract stipulated that if either party should commit a breach of any part 
 of it he should pay the other 1,000/. as "liquidated and ascertained 
 damages, and not a penalty or penal sum," it was held that on a breach 
 the plaintiff was only entitled to recover the damage actually sustained, 
 and not 1,000/., because otherwise if B. had failed to make a single pay- 
 ment of 3/. 6s. 8d., A. would have become entitled to 1,000/. as damages. 1 
 On the other hand, where a lease stipulated that the lessee should pay 5/. 
 for every acre of meadow land which he should plough up, this was held 
 to be liquidated damages and not a penalty. 2 
 
 § 3. Nominal damages are damages to such a small amount (e.g. a 
 farthing) as to shew that they r are not intended as any equivalent or 
 satisfaction to the party recovering them. They are given when the 
 plaintiff in an action for an invasion of his right establishes his right 
 but does not show that he has sustained any damage. 3 
 
 § 4. Exemplary or vindictive damages are damages given not merely as 
 pecuniary compensation for the loss actually sustained by the plaintiff, 
 but likewise as a kind of punishment to the defendant, with the view of 
 preventing similar wrongs in future, as in actions for malicious injuries, 
 fraud, seduction, oppression, continuing nuisances, &c. 4 (See Aggra- 
 vation.') 
 
 As to excessive damages, see New Trial; see also Double Damages; 
 Inquiry ; Writ of Inquiry. 
 
 Etymology.] — Norman French, damages ; 5 from Latin, damnum* 
 
 DAME is the legal title of the wife or widow of a knight or baronet. 
 
 DAMNIFY. — To cause damage or injurious loss to a person. 
 
 DAMNUM ABSQUE INJURIA is a loss which does not give 
 rise to an action of damages against the person causing it. As where a 
 person blocks up the windows of a new house overlooking his land, or 
 injures a person's trade by setting up an establishment of the same kind 
 in the neighbourhood. 7 
 
 DANGEROUS GOODS. See stat. 29 & 30 Vict. c. 09 ; 34 & 35 
 Vict. c. 105 ; 36 & 37 Vict. c. 85. 
 
 DARREIN is Norman French for " last." (See Assise of Darrein 
 Presentment ; Puis darrein Continuance. .) 
 
 DATE. See Deed. 
 
 1 Kemble v. Farren, 6 Bing. 141, cited 
 Chitty on Contracts, 808 ; Leake on Con- 
 tracts, 573. 
 
 1 Birch v. Stephenson, 3 Taunt. 469, 
 cited 'Chitty, 810. 
 
 3 Beaumont v. Greathead, 2 C. B. 494 ; 
 
 Leake on Contracts, 567. 
 
 4 Broom's C. C. L. 855 ; Smith's L. C. 
 "■ 549- 
 
 5 Britton, 245 b. 
 
 6 Littre, Diet. s. v. Dommage. 
 1 Broom, C. C. L. 75. 
 
Day law dictionary. De bene esse 
 
 DAY. — § i. According to Coke, days are either natural or artificial. 
 The natural day consists of twenty-four hours, and includes the solar day 
 and the lunar day, which are artificial days. The solar day is from the 
 rising to the setting of the sun : the lunar day or night is from the setting 
 to the rising of the sun. 1 In the definition of burglary, however, night 
 means the time between 9 p.m. and 6 a.m. (See Burglary, §3.) 
 
 § 2. In the space of a day all the twenty-four hours are usually reckoned ; 
 the law generally rejecting all fractions of a day, in order to avoid dis- 
 putes. Therefore, if I am bound to pay money on any certain day, I 
 discharge the obligation if I pay it before twelve o'clock at night, after 
 which the following day commences. 5 
 
 § 3. In some cases, however, fractions of a day are taken into account: 
 thus, bills of sale comprising the same chattels have priority in the order 
 of the date of their registration, though they may be registered on the 
 same day. 3 
 
 DAY TO SHOW CAUSE.— Under the practice of the Chancery 
 Division of the High Court, where an infant is defendant to a suit or 
 action in which his inheritance is concerned, and a decree or judgment is 
 made against him, he has in general a day given him after attaining 
 twenty-one, to show cause against the decree or judgment ; for this 
 purpose a subpoena is served upon him on his coming of age, requiring 
 him to show cause against the decree, &c. ; if he does not do so, he is 
 bound by it. The necessity for this proceeding has been taken away in 
 some cases by statute. 4 (See Demur, § 2.) 
 
 DAYS OF GRACE are days allowed for making a payment or 
 doing some other act after the time limited for that purpose has expired. 
 Thus, insurance companies commonly allow a certain time for the pay- 
 ment of overdue premiums before forfeiting the policy. 5 
 
 § 2. In the law of bills of exchange, days of grace are a period allowed 
 in many countries to the drawee or acceptor of a bill of exchange to pay 
 the bill after the due date, originally as a favour, but now as a matter of 
 right. The number of these days varies in different countries : in Eng- 
 land it is three ; hence, if a bill falls due on the 1 ith June, the acceptor 
 is not bound to pay it until the 14th. Days of grace are not allowed in 
 the case of bills, notes or drafts payable on demand or at sight. 6 
 
 DE BENE ESSE. — To do a thing de bene esse is to do it provisionally 
 or in anticipation of the occasion when it may be needed. Thus, " in 
 
 1 Co. Litt. 135 a. In the old practice l Darnell's Ch. Pr. 71, 151 ; Forms, 880; 
 at common law, "day" had several technical Fisher on Mortgage, lofyet seq. ; nGeo. 
 meanings, as to which see Co. Litt. 134 b ; 4 & 1 Will. 4, c. 47 ; Trustee Acts, 1850 
 Bl. Comm. iii. 277, 316; and Continuance. and 1852. 
 
 See also Days of Grace ; Without Day. 6 Formerly days of grace were granted 
 
 2 Bl. Comm. ii. 141 ; i. 463, note (17). in actions at the prayer of the plaintiff; 
 
 3 Bills of Sale Act, 1878, s. 10, § 4; and Co. Litt. 134 b. 
 
 see stat. 7 Anne, c. 20, s. 6. 6 Byles on Bills, 205 ; stat. 34 & 35 
 
 Vict. c. 74. 
 
 S. R 
 
 241 
 
242 De Bonis law dictionary. De non decimando 
 
 t 
 
 certain cases, the Court of Chancery [now the Chancery Division of the 
 High Court] will allow evidence to be taken out of the regular course, in 
 order to prevent the evidence being lost by the death or the absence of 
 the witness. This is called taking evidence de bene esse, and is looked 
 upon as a temporary and conditional examination, to be used only in case 
 the witness cannot afterwards be examined in the suit in the regular way." ? 
 
 DE BONIS ASPORTATIS. See Trespass. 
 
 DE BONIS NON. See Grant. 
 
 DE CONTUMACE CAPIENDO ("for arresting a contumacious 
 person") is a writ issued out of the Petty Bag Office (q.v.) on a signi- 
 ficavit (q. v.) from an Ecclesiastical Court for the enforcement of a decree 
 pronounced by that Court. It is addressed to the sheriff, and directs the 
 arrest of the person who refuses to obey the decree. 3 (See Contumacy.') 
 
 DE CORONATORE ELIGENDO — DE CORONATORE 
 EXONERANDO— are writs issued out of the Petty Bag Office {q.v.) ; 
 the former, for the election of a county coroner, — the latter, for his 
 removal from office for inability or misbehaviour. 3 
 
 DE DONIS. See Tail. 
 
 DE EXCOMMUNICATO CAPIENDO is a writ issuing out of 
 Chancery and directed to the sheriff, commanding him to arrest and 
 imprison a person who has been excommunicated. 4 (See Excommunica- 
 tion ; Significavit; De Contumace Capiendo!) 
 
 DE MEDIETATE LINGUAE. See Jury. 
 
 DE NON DECIMANDO. — A prescription de non decimando 5 is a 
 claim to be exempt from tithes and to pay no compensation in lieu of 
 them. Such a prescription can only be set up by spiritual persons or by 
 corporations or persons claiming under them, and formerly it was necessary 
 to prove that the land in question had been immemdrially exempt from 
 tithes. 6 But by the stat. 2 & 3 Will. 4, c. 100, non-payment of tithes 
 during a certain period (thirty years in some cases and sixty in others) is 
 sufficient to establish a prescriptive exemption. 7 
 
 1 Hunter's Suit, 75 ; Haynes's Eq. 183; 6 Sometimes inaccurately called a modus 
 Mitford's PI. 52, 149 ; Rules of Court, de non decimando, the word modus in the 
 xxxvii. 4: phrase modus decimandi being erroneously 
 
 2 Stats. S3 Geo. 3, c. 127; 2 & 3 Will. 4, taken to mean prescription. The full name 
 c. 93 ; 3 & 4 Vict. c. 93 ; Phillimore, Eccl. for a modus was " prescription de modo 
 Law, 1261, 1417; Hudson v. Tooth, 2 P. D. decimandi" (concerning the manner of 
 125. tithing.) 
 
 3 Jervis on Coroners, 12: 6 Bl. Comm. ii. 31. 
 
 4 Phillimore, Eccl. Law, 1404 et seq. ; ' As to tithes in lay hands, see stat. 3 & 
 stat. 5 Eliz. c. 23. 4 Will. 4, c. 27, s. I. 
 
De Parcofracto LAW dictionary. Death 
 
 DE PARCO FRACTO was a writ or action for damages caused by 
 a pound-breach (q. v.). It has long been obsolete. 1 
 
 DE RETORNO HABENDO is a writ of execution issued in an action of replevin 
 to compel the return of goods rightfully taken in distress and replevied. It seems to have 
 fallen into disuse, the ordinary writ of delivery (q. v.) being sufficient. 3 (See Replevin ; 
 Elongata.) 
 
 DE SON TORT. See Executor. 
 
 DE VENTRE INSPICIENDO.— Where the widow of an owner of 
 land is suspected of feigning herself with child in order to produce a 
 supposititious heir to the estate, the heir presumptive may have a writ de 
 ventre inspiciendo, to examine whether she be with child or not ; and if she 
 be, to keep her under proper restraint until delivered. The writ appears 
 to direct the sheriff to summon a jury of matrons for the purpose. 3 It is, 
 however, practically obsolete. 
 
 DE VI LAICA REMOVENDA— "for the removal of lay force"— 
 is an obsolete writ, which seems to have been applicable where an incum- 
 bent was hindered or disturbed in his possession of the benefice. 4 
 
 DEAN— DEAN AND CHAPTER— are the council of a bishop, and 
 also assist in the celebration of divine service in his cathedral. The dean 
 is the president of the council. The chapter consists of dignitaries of 
 the Church called canons. 6 (See Bishop; Conge d'itire; Archdeacon.) 
 There are also other kinds of deans : such as rural deans (q. v.); deans of 
 peculiars (of whom the Dean of Arches is one) ; honorary deans, such as 
 the Dean of the Chapel Royal at St. James's; and deans of provinces or 
 deans of bishops; the Bishop of London is dean of the province of 
 Canterbury. 6 (Latin, decanus, one set over ten monks or canons.) (See 
 Corporation, §5.) 
 
 DEAN OF ARCHES is the chief judicial officer or " official prin- 
 cipal" of the Archbishop of Canterbury. 7 He is the judge of the Court 
 of Arches (q. v.), and is not really a dean in the modern sense of that 
 word. 8 
 
 DEATH. — § 1. "There is a death in deede [or natural death], and 
 there is a civill death, or death in law, mors civilis and mors naturalis."* 
 Civil death formerly took place when a man was banished or adjured 
 the realm by the process of the common law, or when a man became 
 professed in religion, for on such an event happening his property devolved 
 as if he were really dead, 10 and therefore grants of land for life were 
 
 1 Co. Litt. 47 b ; Bl. Comm. iii. 146. 6 Bl. Comm. i. 382 ; Steph. Comm. ii. 
 
 2 Woodfall's Landlord and Tenant, 674; stats. 3 & 4 Vict. c. 113 ; 35 & 36 
 481. Vict. c. 8. 
 
 3 Co. Litt. 8 b, 123 b and notes; Bl. 6 Co. Litt. 95 a, n. (1). 
 Comm. i. 456; Theater's Case, Cro. Jac. ' Phillimore, Eccl. Law, 1203. 
 685. 6 Ibid. 260. 
 
 4 Phillimore, Eccl. Law, 513 ; Ex parte 9 Co. Litt. 132 a. 
 
 Jenkins, L. R., 2 P. C. 258. ' I0 Litt. § 200; Bl. Comm. i. 132. 
 
 R 2 
 
 243 
 
244 
 
 Death 
 
 LAW DICTIONARY. 
 
 Debenture 
 
 Mortgage 
 Debenture 
 Acts. 
 
 Local Loans 
 Act. 
 
 Private acts. 
 
 Railway 
 debentures. 
 
 formerly made for the term of the man's natural life. The doctrine of civil 
 death in such cases is now abolished, 1 and also in the case of conviction 
 for treason or felony (see Attainder); but it seems that 'it may still 
 occur where a person is outlawed, 2 which still produces the effect of 
 attainder. (See Commorientes; Donatio Mortis Causa. .) 
 
 § 2. In criminal law the punishment of death is inflicted by hanging 
 the offender by the neck until he is dead. 3 (See Murder; Piracy; 
 Treason.) 
 
 DEBENTURE is an instrument issued by a company or public body 
 as security for a loan of money. It contains either expressly or impliedly 
 a promise to pay the amount mentioned in it, and almost invariably 
 creates a charge on the whole or part of the property of the company or 
 public body. A debenture generally forms part of a series or issue of 
 similar instruments, with a provision that they shall all rank pari passu in 
 proportion to their amounts. 4 
 
 Debentures are of two classes. 
 
 A. Debentures so called by the statutes under which they are issued: — 
 
 i. § 2. Mortgage debentures issued under the Mortgage Debenture 
 Acts, 1865 and 1870. — The object of these acts is to enable a company 
 formed for the purpose of lending or borrowing money on real securities, 
 to raise money by issuing debentures charged on the securities for the 
 time being in its possession, whether they belong to the company itself or 
 to persons who have borrowed money of it. Provision is made for the 
 registration in the Land Registry 5 of the securities on which the debentures 
 are to be charged, and for ascertaining their value ; also for registering 
 the debentures themselves, and for enabling a person who has borrowed 
 money of the company to redeem his security notwithstanding that the 
 company has made use of it by issuing debentures charged on it. 
 
 ii. § 3. Debentures issued by a local authority {e.g., an urban sani- 
 tary authority) pursuant to the Local Loans Act, 1875 (repealing the 
 County Debentures Act, 1873). — The provisions of this act are made 
 applicable to a local authority either by a special act of parliament incor- 
 porating its provisions, or by sanction of the Local Government Board. 
 The security generally consists of a local rate, with or without other 
 property. The amount of the debenture may be made payable either to 
 the bearer or to a person named therein, his executors, administrators 
 or assigns ; the latter kind is called a nominal debenture. 
 
 iii. § 4. There are also numerous private or special acts of parliament 
 authorizing the issue of debentures by the companies or public bodies to 
 which they relate. The nature and incidents of such debentures of 
 course depend on the statutory provisions in each case. 
 
 B. Debentures, popularly so called, are of the following varieties: — 
 i. § 5. Mortgages issued by railway and other companies (incorporated 
 by special act) under the Companies Clauses Acts, 1845 and 1863. — Such 
 
 1 Rex v. Lady Partington, I Salk. 162 ; 
 stat. 21 Jac. I, c. 28. 
 
 2 Williams, R. P. 23. 
 
 s Stephen's Crim. Dig. 1. 
 
 4 As to debentures generally, see Cava- 
 nagh on Securities, 267 et seq. 
 
 5 Now regulated by the Land Transfer 
 Act, 1875. 
 
Debenture LAW DICTIONARY. Debenture 
 
 245 
 
 debentures contain an assignment of the undertaking and receipts of the 
 company, and not merely a charge on them. Debentures issued by rail- 
 way companies are also subject to the Railway Companies Securities Act, 
 1866, and the Railway Companies Act, 1867. 1 (See Debenture Stock.) 
 
 ii. § 6. Mortgages issued by commissioners and similar bodies under Commis- 
 the Commissioners Clauses Act, 1847.— The provisions' of this act are goners' 
 
 • ClCDCl.ltu.fGS 
 
 similar to those of the Companies Clauses Act, 1845. {Supra, § s.) 2 
 
 iii. § 7. Debentures of a company registered under the Companies Companies 
 Act, 1862, issued pursuant to express powers contained in the articles of Act > l862 - 
 association. — Such debentures vary in form and effect according to the 
 provisions of the articles and the skill of the draftsman, but they generally 
 purport to create a charge on the whole or part of the property of the 
 company' (see Security) ; sometimes, however, so-called debentures are 
 merely bonds or in the form of promissory notes.* 
 
 § 8. The payment of interest on debentures issued under statutory 
 powers (i.e., debentures belonging to all the above classes except B. iii.) 
 may be enforced by the judicial appointment of a receiver to collect the 
 income of the property and apply it in payment of the interest. (See 
 Receiver.) 
 
 iv. § 9. Debentures issued by foreign or colonial governments cannot 
 be enforced by legal proceedings in this country. 5 
 
 § 10. The question whether a debenture is a negotiable instrument is Negotiability. 
 sometimes one of difficulty. It seems clear that the varieties mentioned 
 under A. i., B. i. and ii., and the nominal debentures mentioned under 
 A. ii., are merely statutory mortgages, assignable in a particular form, and 
 not negotiable. A debenture to bearer under A, ii. appears to be nego- 
 tiable so far as the issuing authority is concerned : that is, the authority 
 would be bound to pay the bearer without reference to his title : but it 
 does not appear whether a person wrongfully in possession of such a 
 debenture could give a good title to a bona fide purchaser as against the 
 true owner. The question whether a debenture under B, iii. is or can be 
 negotiable in the latter sense (i.e., as between the successive holders of 
 it) must apparently be answered in the negative : whether the holder of a 
 particular debenture belonging to that class can claim the amount from 
 the company, irrespectively of any question between the company and a 
 prior holder, depends on the form of the instrument and (in some cases) 
 on the circumstances attending its issue. 6 Debentures of foreign govern- 
 ments may by usage of trade be negotiable instruments in the full sense of 
 the term. 7 
 
 § 1 1 . A debenture is within the Mortmain or Charitable Uses Act if it When pure 
 gives the holder an estate or interest in land, but not otherwise. A P ersonalt y- 
 
 1 Hodges on Railways, 118 et seq-.; 6 Twycross v. Dreyfus, 5 Ch. D. 605; 
 Cavanagh, 281. Sloman v. New Zealand, I C. P. D. 563. 
 
 2 Cavanagh, 292. 6 See Crouch v. Credit Foncier, L. R., 
 
 3 In re Florence Land Co., Ex parte 8 Q. B. 374 ; In re Blakely Ordnance Co., 
 Moor, 10 Ch. D. 530 ; In re Colonial 3 Ch. App. 154 ; Cavanagh, 273. 
 Trusts Corporation, 15 Ch. D. 465. 7 Goodwin v. Rouarts, L. R., 10 Ex. 
 
 4 Crouch v. Credit Foncier of England, 76,337. 
 L. R., 8 Q. B. 374- 
 
246 Debenture Stock law dictionary. 
 
 Debt 
 
 debenture issued under the Companies Clauses Acts {e. g., an ordinary 
 railway debenture) does not give the holder any interest in the land of 
 the railway, nor the right to possess or manage the railway, but merely 
 the right to receive the surplus earnings, and it therefore appears that 
 such a debenture is not within the Mortmain Act. 1 
 
 Etymology.]— Latin: debentur, "they [moneys] are due," the word with which 
 certain obsolete bonds given by the exchequer began. 2 
 
 DEBENTURE STOCK is a stock or fund representing money 
 borrowed by a company or public body, and charged on the whole or 
 part of its property. It differs from debentures chiefly in these respects : 
 the title of each original holder appears in a register, instead of being 
 represented by an instrument complete in itself: and the stock is capable 
 of being transferred in any amounts, unless the regulations of the com- 
 pany, &c. forbid the transfer of amounts or fractions less than 10/. or the 
 like. § 2. Provision is sometimes made for issuing to each holder a 
 certificate representing the amount of his stock, transferable by delivery, 
 so as to entitle the bearer for the time being to the stock in question : 
 such certificates generally have coupons for interest attached to them, 
 and while they are outstanding the stock ceases to be transferable on the 
 register. § 3. Perpetual debenture stock is stock which cannot be 
 paid off. 
 
 The principal statutes relating to debenture stock are the Companies 
 Clauses Acts, 1845 and 1863, the Commissioners Clauses Act, 1847, and 
 the Local Loans Act, 1875 (see Debenture). Debenture stock issued 
 under these acts is not within the Mortmain or Charitable Uses Act. 3 
 
 DEBT.— I. § 1. In the strict sense of the word a debt exists when a 
 certain sum of money is owing from one person (the debtor) to another 
 (the creditor). 4 Hence "debt" is properly opposed (1) to unliquidated 
 damages (see Damages, § 2) ; (2) to " liability," when used in the sense 
 of an inchoate or contingent debt ; and (3) to certain obligations not 
 enforceable by ordinary process (see Obligation). "Debt" denotes not 
 only the obligation of the debtor to pay, but also the right of the creditor 
 to receive and enforce payment. 
 
 Debts are of various kinds, according to their origin (see Contract, 
 
 § 0- 
 
 Statutoiy. § 2. Debts may be created under the provisions of various statutes, as 
 
 in the case of penalties imposed by penal statutes, and payable to an 
 informer or to the party grieved ; debts in respect of calls under the 
 Companies Acts ; debts for tolls payable under statutes, and the like. 6 
 By the provisions of the acts creating them, some of these debts have the 
 same effect as debts created by specialty {infra, § 4).° 
 
 1 See Attree v. Hawe, 9 Ch. D. 337, a 3 Attree v. Hawe, 9 Ch. D. 337. 
 
 decision on debenture stock; Gardners. * Fitz. N. B. H9g; Bl. Comm.ii.464; 
 
 London, Chatham and Dover Ry. Co., L.R., Smith, Merc. Law, 532. 
 2 Ch. 201. 6 Leake on Contracts, 96. 
 
 3 Blount, Law Diet. e See the Companies Act, 1862, s. 75. 
 
Debt LAW DICTIONARY. Debt 247 
 
 § 3. A debt of record is a debt proved to exist by the official records of Of record. 
 a Court of Record. 1 (See Court, § 2.) Among such debts are recog- 
 nizances and statutes (q. v.), 2 but the most important are judgment debts/ 
 or debts created by the judgments, decrees, &c. of Courts of Record. 
 (See Judgment). Thus if A. injures B., his liability to recompense B. does 
 not constitute a debt, but if B. brings an action and recovers judgment 
 against him for 500/., this constitutes a judgment debt, and may therefore . 
 be proved for in the event of A. becoming bankrupt. Judgment debts 
 have certain privileges, which however have been much curtailed by recent 
 legislation, 3 though some still remain. Thus, on the death of a person, 
 his judgment debts must be paid in full by his executors out of his per- 
 sonal estate before any of his debts due on contract. (See Administration, 
 § 2.) The judgment creditor also has various rights of enforcing his 
 judgment by execution and attachment ,(q. v. and Debtors Act). 
 
 Debts created by contract are of two kinds, specialty and simple Specialty 
 contract debts. § 4. Specialty debts are those created by deed or debts ' 
 instrument under seal, e.g., a bond or covenant (q. ».). 4 Formerly there 
 was an important distinction between debts of specialty in which the 
 heirs were bound (that is, where the person entering into the instrument 
 expressly bound his heirs as well as himself), and those in which they were 
 not, as debts of the former class had in some cases priority in payment out of 
 the real estate of the debtor after his death over ordinary specialty debts, 
 and all specialty debts had priority in payment out of the personal estate 
 over simple contract debts ; thus if a man owed 500/. on bond and 500/. 
 on a bill of exchange, his personal estate being worth 700/., the bond 
 would have been paid in full, leaving only 200/. to pay the other debt ; 
 but these distinctions no longer exist in the case of persons dying on or 
 after the 1st January, 1870. 6 (See Assets.) Specialty debts, however, 
 have still this advantage over simple contract debts, that they may be 
 enforced by action within twenty years, while actions on simple contracts 
 can only be brought within six years from the right of action accruing. 6 
 
 § 5. Simple contract debts are all debts, not secured by record or deed, Simple con- 
 e. g., the liability on a bill of exchange. 7 rac e s ' 
 
 § 6. Debts due on specialty or simple contract are sometimes said to Debts arising 
 arise from privity of contract, as opposed to those created by privity of e g°™ e pnvjty 
 estate. Thus if A. devises land to B. charged with an annuity in favour 
 of C, C.'s right to the annuity as against B. arises from privity of estate. 8 
 (See Privity.) 
 
 With reference to the privileges which they confer on the creditor, 
 debts are of the following kinds : — 
 
 § 7. Crown debts, or those due to the crown, have been invested with Crown debts. 
 special privileges by various acts of parliament, some of which apply 
 exclusively to debts due from accountants to the crown, that is, persons 
 
 1 BI. ii. 485 ; "Wms. Pers. P. 1 10. 4 Bl. ii. 465. 
 
 2 As to debts of record due to the crown, 5 Wms. Pers. P. 121. 
 
 see Chitty, Prer. 272. 6 3 & 4 Will. 4, u. 42, s. 3 ; 21 Jac. I, 
 
 • 3 See Bl. ii. 465 et seq. ; Wms. Real P. c. 16, s. 3. 
 
 84. An action cannot now be brought on 7 Wms. Pers. P. 125. 
 
 a judgment; Birmingham Estates Co. v. B Whitaher v. Forbes, L. R., 10 C. P. 
 
 Smilh,VT. N. (1880) 19. 583. 
 
248 Debt LAW dictionary. Debtee 
 
 employed to collect and account for money due to the crown, hence called 
 "accountants' debts." 1 Examples of these privileges are: that they bind 
 the debtor's land if duly registered (see Accountant to the Crown) ; that on 
 the death of the debtor his crown debts are payable in priority to other 
 debts ; and that if he becomes bankrupt and obtains his discharge he 
 nevertheless remains liable for his crown debts. 2 
 Secureddebts. § 8. Secured debts are those for which the creditor has some security 
 in addition to the mere liability of the debtor. The term is somewhat 
 vaguely used. Examples of secured debts in the strict sense are debts 
 secured by mortgage, charge or lien, or by the collateral liability of some 
 other person (see Guarantie) ; but we also speak of a debt being secured 
 by a judgment, warrant of attorney, or by the bond, promissory note, &c. 
 of the debtor, because the enforcement of the debt is thereby facilitated 
 or made more certain. (See Security.) 
 
 § 9. Debts may also be absolute or conditional, payable at once or in 
 future, &c. 
 
 II. In the law of bankruptcy, "debt" is used in various meanings. 
 Petitioning § 10. A debt sufficient to maintain a petition for adjudication, in other 
 
 debt 1 ° r S words, a debt which enables the creditor to have the debtor adjudicated 
 bankrupt, is called a good petitioning creditor's debt. Such a debt must 
 be one "which may be the immediate subject of an action," 3 and must 
 not be less than 50/., nor secured, unless the creditor is willing to give up 
 the security or give credit for it. 4 
 Debt provable § 11. The term "debt provable in bankruptcy" excludes demands in 
 in bankruptcy. fa e na t ure of unliquidated damages arising otherwise than by reason of a 
 contract or promise (e. g., rights of action founded on tort), and also debts 
 contracted with notice of an act of bankruptcy ; but with this exception, 
 "debt provable in bankruptcy" means any debt or liability, present or 
 future, certain or contingent, existing before the order of adjudication, 
 including liabilities to arise on events not likely to occur or not capable 
 of occurring before the close of the bankruptcy, and liabilities capable 
 of being valued or assessed by fixed rules, by a jury, or as matter of 
 opinion. 5 
 Preferential § 12- Debts provable in bankruptcy are called preferential debts when 
 
 debts. j-jjgy are payable in full before any other debts ; they consist of taxes and 
 
 rates, and wages or salaries due to clerks, servants, labourers or 
 workmen. 6 
 "Debt"= III. § 13. "Debt" sometimes denotes an aggregate of debts: thus, 
 of debts' 6 t ' le "bonded or mortgage debt" of a turnpike trust,' means all the debts 
 of the trust secured by bond or mortgage. 
 
 See Chose in Action; Credit; Action; Contract; Due. 
 
 DEBTEE is a person to whom a debt is owing ; i. e., a creditor. 8 The 
 term is not common. 
 
 1 Wms. Real P. 91, Pers. P. in, 185. See In re Newman, Ex parte 
 
 2 Ibid.; Bankruptcy Act, 1869, s. 49. Brook, 3 Ch. D. 494. 
 
 3 In re Muirhead, L. R., 2 Ch. D. at 6 Bankr. Act, 1869, a. 32 ; Robson's 
 p. 25. Bankr. 191. 
 
 * Bankr. Act, 1869, s. 6. 7 37 & 38 Vict. c. 95, s. II. 
 
 5 Ibid. s. 31 ; Robson's Bankruptcy^ 8 4 Ad. & El. at p. 683. 
 
Debtor law dictionary. Debtor's Summons 249 
 
 DEBTOR is a person who owes a debt. § 2. A person whose affairs 
 are being liquidated by arrangement is called a liquidating debtor. (See 
 Liquidation.) The status of discharged and undischarged liquidating 
 debtors is similar to that of discharged and undischarged bankrupts. 1 
 (See Bankrupt, §3.) 
 
 DEBTORS ACT, 1869, is the statute 32 & 33 Vict. c. 62. Its 
 provisions may be treated of under four heads. 2 
 
 § 1. It abolishes imprisonment for debt, except in certain cases, 3 the most Imprisonment 
 important of which are those of a defaulting trustee, 2 and of a judgment for debt- 
 debtor who is able but refuses to pay. 1 (See Attachment, § 3 ; Committal, § 3 .) 
 
 § 2. It abolishes arrest upon mesne process (see Arrest, § 4), but Absconding 
 provides that when in any action in one of the superior Courts in which, 
 if brought before the act, the defendant would have been liable to arrest, 
 the plaintiff proves at any time before final judgment that he has a 
 good cause of action for 50/. or upwards, that there is probable cause for 
 believing that the defendant is about to leave England, and that his 
 absence will materially prejudice the plaintiff in the prosecution of his 
 action {i. e., that the presence of the defendant is absolutely required for 
 purposes of evidence), 5 the judge may order the defendant to be im- 
 prisoned until he gives security that he will not go out of England 
 without the leave of the Court. When the action is for a penalty (q. v.), 
 proof that the defendant's absence will be prejudicial is not required, 
 and the security is to the effect that any sum recovered against the 
 defendant shall be paid or that he shall be rendered to prison. 6 (See 
 Security.) 
 
 § 3. It provides for the punishment of fraudulent debtors, namely, Fraudulent 
 persons who having been adjudged bankrupt, or whose affairs are liqui- debtors, 
 dated by arrangement, fail to discover or deliver to the trustee, or conceal or 
 remove, their property, books, &c, or make false statements of affairs, false 
 entries in account books, &c, or leave England with property of a certain 
 value, with the intent of defrauding their creditors or defeating the law, or 
 obtain property on credit by false pretences, or make false represen- 
 tations, for the purpose of obtaining the consent of their creditors to an 
 agreement for composition, discharge, &c. Most of these offences are 
 misdemeanors. 7 
 
 § 4. It regulates ' the manner of executing and enforcing warrants of Warrants of 
 attorney, cognovits and orders for judgment. 8 attorney. 
 
 DEBTOR'S SUMMONS. — A debtor's summons is a summons 
 
 1 Ex parte Williams, L. R., 20 Eq. debts of 50/. or under, although there is a 
 743. prevailing impression to this effect, ap- 
 
 2 See Middleton v. Chichester, L. R., parently produced by a misleading mar- 
 6 Ch. 152 ; Evans v. Bear, L. R., 10 Ch. ginal note to the act. (See Judgment.) 
 76 ; Marris v. Ingram, 13 Ch. D. 338 ; 5 Day, C. L. P. Acts, 407 ; Coe's Prac- 
 Metcalfe's Case, 13 Ch. D. 815. lice, 165. 
 
 3 Sect. 4 — 10, as amended by the 6 Smith's Action, 102 ; Pollock's County 
 Debtors Act, 1878. Court Practice, 346. 
 
 1 The power of committal for non-pay- 7 Sect. 11—23. 
 
 rhent of judgment debts is not restricted to s Sect. 24 — 28. 
 
25° 
 
 Deceit. 
 
 LAW DICTIONARY. 
 
 Declaration 
 
 under the seal of a Court of Bankruptcy giving notice to the person to 
 whom it is addressed (the debtor), that unless he pays or compounds for 
 a debt (not less than 50/.) due by him to a person therein named (the 
 creditor) within a certain time, he will have committed an act of bank- 
 ruptcy and will be liable to be adjudicated a bankrupt, unless he disproves 
 the debt. 1 
 
 A trader debtor's summons is one for service on a trader, and differs from 
 a non-trader debtor's summons in giving the debtor a shorter time for com- 
 pliance with its terms. (See Act of Bankruptcy, § 4; Bankruptcy, note (4).) 
 
 DECEIT. — § 1. An action upon the case for a deceit was an action 
 which lay to recover damages caused by the fraud or false affirmance by 
 the defendant of a thing within his knowledge. 2 This tort is now more 
 commonly called fraud or misrepresentation (g . v.). 
 
 § 2. The writ of deceit to reverse a judgment in a real action obtained 
 by fraud or collusion was abolished by stat. 3 & 4 Will. 4, c. 27, s. 36.' 
 
 DECEM TALES. See Tales. 
 
 DECLARATION is a formal statement intended to create, preserve, 
 assert or testify to a right. The following are the principal kinds of 
 declarations : — 
 
 Of uses. I. § 2. A declaration of use or trust is a statement or admission 
 
 (which in the case of land or chattels real must be written 1 ), that pro- 
 perty is to be held to the use of or upon trust for a certain person. 
 Thus under the Statute of Uses land may be conveyed to A. to such 
 uses as B. shall declare, and a declaration of the uses by B. takes effect- 
 accordingly by vesting the land in the person or persons in whose favour 
 it is made. Deeds to declare uses were commonly employed before the 
 abolition of fines and recoveries, which being only adapted to convey the 
 absolute estate, could not be made to answer the purposes of family 
 settlements where a variety of substitutional limitations are required, and 
 therefore the land was conveyed by fine or recovery to a given person, 
 and the uses afterwards declared by a separate deed. 5 Appointments of 
 uses under powers are identical in effect with declarations of uses, but, 
 strictly speaking, the latter term is only applied in the case of uses created 
 by a fine or recovery. 
 
 Of trusts. § 3. A declaration of trust is the ordinary mode of creating a trust 
 
 when the trust property is already vested in the intended trustee. Thus 
 if A. being owner of property wishes to create a trust in it for the benefit 
 of B. without conveying it to another person, he executes a deed whereby 
 he declares that he holds the property in trust for B. 
 
 Bankruptcy. § 4. A declaration of inability to pay debts is a declaration by a person 
 admitting his inability to pay his debts ; such a declaration when signed 
 
 1 Bankruptcy Act, 1869, ss. 6, 7, 
 Form 4. 
 
 2 See Chitty on Contracts, 628; Broom's 
 Comm. C. L. 340 ; Comyn, Dig. Action 
 upon the Case for a Deceit, A. 10 ; Pasley 
 v. Freeman, 3 T. R. 51 ; Smith's L. C. 
 
 ii. 64. 
 
 3 Bl. Comm. iii. 405. 
 
 4 Stat. 29 Car. 2, c. 3, s. 7 (Statute of 
 Frauds) . 
 
 6 Bl. Comm. ii. 363 ; see supra, p. 205, 
 note (1). 
 
Declaration law dictionary. Declaration of Title 251 
 
 and filed with the required formalities constitutes an act of bankruptcy on 
 which the debtor may be adjudicated a bankrupt. 1 Under the old law it 
 was called a declaration of insolvency. 2 The commonest instance of a 
 declaration of inability to pay debts is where a person presents a petition 
 for liquidation declaring that he is_ insolvent. 3 
 
 § 5. In the law of evidence, declaration is commonly used to denote a Evidence, 
 statement made (not on oath) by a deceased person and admissible in 
 evidence contrary to the general rule against derivative evidence. Thus Dying declara- 
 in a case of murder, the dying declaration of the murdered person is ^ st jn _ 
 admissible; and so in a civil case is a declaration made by a deceased terest : or as to 
 person against his proprietary or pecuniary interest, or on a question of P edl g ree - 
 pedigree, &c. 4 § 6. A statutory declaration is a written statement of facts Statutory. 
 which the person making it (the declarant) signs and solemnly declares to 
 be true before a commissioner or magisterial officer. Making a false 
 declaration is a misdemeanor. 5 (See Affidavit ; Affiliation, § 3 ; Oath.) 
 Statutory declarations were introduced to prevent the frequent use of 
 oaths in extrajudicial proceedings, and oaths are accordingly forbidden 
 in these cases. Thus the execution of a deed, if required to be proved 
 extrajudicially, is properly proved by a statutory declaration. But as the 
 act does not apply to the colonies, proof of the execution in England of 
 a deed for use in one of the colonies is properly made by an extrajudicial 
 affidavit. 
 
 § 7. In a judgment, decree, or order, the declaration- or declaratory Inajudg- 
 part is that part which gives the decision or opinion of the Court on the ment * 
 question of law in the case ; thus in an action raising a question as to the 
 construction of a will, the judgment or order declares that according to 
 the true construction of the will the plaintiff has become entitled to the 
 residue of the testator's estate, or the like. 6 (See Declaration of Title 
 Act.) 
 
 II. § 8. In the old common law and probate practice, a declaration was Pleading, 
 the first pleading delivered by the plaintiff, corresponding to the Statement 
 of Claim (q. v.) under the new practice/ It was divided into counts (q. v.) 
 and was framed in technical language. (See Pleading; Venue.) 
 
 DECLARATION OF TITLE ACT, 1862 (25 & 26 Vict. c. 67), 
 provides that any person entitled to land in possession for an estate in 
 fee simple, whether absolutely or subject to incumbrances, &c, may 
 apply to the High Court of Justice, by petition in the Chancery Division, 
 for a declaration that he has a good title to the land, and the Court,' after 
 causing the title to be investigated, may make a declaration nisi, and 
 cause notice thereof to be given to all persons interested. If no one 
 
 1 Robson's Bankruptcy, 136 ; Bank- 4 Best on Evidence, 630. 
 
 ruptcy Rules, 1870, s. 16. 5 Stat. 5 & 6 Will. 4, c. 62. 
 
 * 2 Bl. Comm. 488, note (6) ; stat. 4 " See Hunter's Suit, 89. 
 
 Geo. 4, c 16. 7 Smith's Action at Law; Browne's 
 
 * Robson, 137. Probate Pr. 285. 
 
252 Declaratory LAW dictionary. Decretal 
 
 shows cause against the declaration within a certain time, the Court may 
 make a declaration that the petitioner has the title which he claims. 1 
 It is believed that the act has not yet been put in force to any extent. 
 
 DECLARATORY.— § i. A declaratory statute is one which 
 declares or formally states what the existing law is on a given subject, so 
 as to remove any doubts which may have been raised. 
 
 § 2. A declaratory decree or judgment is one which simply declares 
 the rights of the parties, or expresses the opinion of the Court on a 
 question of law, without ordering anything to be done. (See Declaration, 
 
 §7-) 
 As to declaratory evidence, See Declaration, § 6 ; Evidence. 
 
 DECREE is an order of a Court pronounced on the hearing of 
 a suit. 
 
 Decree nisi. § 2. In matrimonial suits in the Probate, Divorce, and Admiralty 
 
 Division of the High Court, every decree for dissolution or nullity of 
 marriage is in the first instance a decree nisi, that is, provisional, and 
 cannot be made absolute until after the expiration of a certain time 
 (generally six months), during which period any person is at liberty to 
 show cause to the Court why the decree should not be made absolute, by 
 reason of its having been obtained by collusion, or of material facts not 
 brought before' the Court ; and, on cause being so shown, the Court 
 deals with the case by making the decree absolute, or by reversing it, or 
 by requiring further inquiry. 3 
 
 Court of § 3. In the Court of Arches {q. v.), a suit is commenced by a process 
 
 called a decree, which is the same thing as a citation (q. v. § 7).* (See 
 Viis et Modis.) § 4. A final interlocutory decree is the same thing as a 
 definitive sentence (q. v.), except that it is under the hand of the registrar, 
 and not of the judge. 4 
 
 § 5. Under the practice in Chancery before the Judicature Acts, the decree was an 
 order pronounced on the hearing of a suit, and was either final or interlocutory, in which 
 latter case the "further consideration" (q. v.) was reserved. The decree usually con- 
 tained a declaration (q. v. § 7), followed by the ordering or mandatory part. 5 
 
 5 6. Under the present practice, what was formerly called the decree is now usually 
 represented by the judgment (q. v.) ; in administration actions and actions for accounts, 
 &c. it sometimes takes the form of an order. 6 (See Motion for Decree ; Hearing; 
 Further Consideration ; Enrolment.) 
 
 DECRETAL. — In the former Chancery practice, a decretal order was an order 
 made on motion or otherwise not at the hearing of the cause (that is, not on motion for 
 decree), but having the effect of a decree. 7 
 
 1 Daniell's Ch. Pr. 1957. * Ibid. 1260. 
 
 2 Browne on Divorce, 298 ; 23 & 24 5 See generally as to decrees, Hunter's 
 Vict. c. 144, a. 7 ; 29 Vict. c. 32, s. 3 ; Suit, 84 ; Daniell's Ch. Pr. 850 et seq. ; 
 36 Vict. u. 31, s. . 1. It is not now neces- Seton on Decrees, passim. 
 sary to make a motion to have the decree 6 See Rules of Court, xv., xxxiii. 
 
 < made absolute; Divorce Rules, July, 1880. 7 Hunter's Suit, 85. 
 
 3 Phillimore, Eccl. Law, 1253. 
 
 Arches. 
 
Decretals law dictionary. Deed 253- 
 
 DECRETALS. See Canon Law. 
 
 DEDICATION is where a person expressly or tacitly throws open 
 for public use a road on his land, and the public assent to or avail 
 themselves of the dedication. 1 " For instance, if a man build a double 
 row of houses opening into an ancient street at each end, making a 
 street, and sells or lets the houses, that is instantly a highway." 2 A 
 dedication will be implied from an uninterrupted use by the public of the 
 right of way claimed, 3 even for a few years. 4 
 
 § 2. A dedication may be limited in point of time, so that the highway Limited, 
 is useable by the public at certain times only ; or may be qualified so as and qualified 
 to make the use of the highway subject to a right of user by the owner of dedlcatlon - 
 the soil for other purposes, or subject to an existing obstruction or 
 excavation, which, if made after the dedication, would have been a 
 nuisance. 5 (See Highway ; Way.) 
 
 DEDIMUS POTESTATEM is a writ sued out of Chancery, 
 empowering the persons to whom it is directed to administer the oath of 
 allegiance and a judicial oath to a person who has been newly appointed 
 a justice of the peace. 6 The writ was also formerly used to appoint 
 special commissioners in the country to take a conusance of a fine, or to 
 swear an answer to a bill in equity. 1 And in still earlier times it was 
 required when a person wished to appoint an attorney to represent him 
 in Court (dedimus potestatem de atturnaio faciendo), because the law 
 required the parties to appear in Court personally. 8 
 
 DEED. — I. § 1. "A deed is a writing or instrument written on paper or 
 parchment, sealed and delivered, to prove and testify the agreement [i. e. 
 the intention] of the parties whose deed it is, to the things contained in 
 the deed." 9 A deed cannot be written on wood, leather, cloth, stone, or 
 any other material than paper or parchment. 10 A deed differs from other 
 instruments not merely in its formalities (as to which, see Seal; 
 Delivery; Execution; Registration; Stamp), but also in its effects (as 
 to which, see Bond ; Contract, § 9 ; Covenant ; Estoppel ; Limitation ; 
 Merger). 
 
 § 2. All deeds are either poll or indented. A deed poll is a deed Deed poll, 
 made by one person or by several persons in the same interest, as where 
 several persons appoint an attorney by deed, or bind themselves by a 
 bond. A deed poll is so called because the paper or parchment is polled 
 or cut even, as opposed to a deed indented. 11 In the old writers " deed" 
 is generally used in the sense of deed poll. 13 
 
 1 Smith's L. C. ii. 146, 150. ° Stone's Justice of the Peace, 5. 
 
 2 Woodyer v. Hadden, 5 Taunt. 125, 7 Bl. Comm. ii. 351, iii. 447. 
 cited in Smith's L. C. ii. 146 (notes to 8 Fitz. Nat. Brev. 25 a. 
 Dtrvaston v. Payne). 9 Shepp. Touch. 50. 
 
 3 R. v. Lloyd, I Camp. 260, cited ibid. 10 Co. Litt. 35 b, 229 a. 
 
 4 Shelford's R. P. Stat. 63. " Ibid. 229 a; Shepp. 50. 
 
 5 Smith's L. C. ii. 148, citing Fisher v. 12 Co. Litt. 229 a. 
 Prowse, 2 B. & S. 770. 
 
254 Deed of Settlement law dictionary. Defamation 
 
 As to deeds indented, see Indenture. As to deeds acknowledged, see 
 Acknowledgment, § 2. As to deeds enrolled, see Enrolment ; Disentailing 
 Deed ; Bargain and Sale, § 3. 
 
 § 3. A deed generally consists of the following parts, or some of them, 
 — the premises, the habendum, the tenendum, the reddendum, the 
 conditions, and the covenants. 1 See the various titles. 
 
 § 4. Deeds are essential to the validity of certain legal acts, especially 
 for almost all conveyances and leases of real property, 2 and for the 
 alienation of chattels where there is no contract of sale or delivery of 
 possession. 3 (See Bill of Sale.) Bonds, powers of attorney, and a few 
 other instruments, are in practice always made by deed. (See Escrow.) 
 
 II. § 5. Deed is also used in the expression "in deed" to signify 
 that a thing has been really or expressly done, as opposed to " in law," 
 which means that it is merely implied or presumed to have been done 
 (see Condition, §§ 4, 5) ; therefore, when we say that a surrender in deed 
 of an estate in land must be made by deed, the word " deed " is used in 
 different senses. 
 
 Etymology.] — Deed seems formerly to have signified a writing under seal not con- 
 cerning land, as opposed to a charter. 4 It is obviously derived from do in the sense of 
 execute, possibly in imitation of the Norman French fet,fait. s 
 
 DEED OF SETTLEMENT. —A joint-stock company formed 
 before November 1st, 1844, was usually formed by a deed of settlement, 
 constituting certain persons trustees of the partnership property, and 
 containing regulations for the management of its affairs. It was 
 sometimes accompanied by a private act of parliament or by letters 
 patent. 6 (See Company.) Companies registered after 1st November, 
 1844, under the 7 & 8 Vict. c. no, and before 1862, were regulated by 
 deeds of settlement, 1 in the same way as companies formed under the 
 Act of 1862 are regulated by a memorandum and articles of association 
 {q. v.). 
 
 DEER. See Animals Fern Natures. 
 
 DE FACTO. — The stat. 11 Hen. 7, c. 1, enacts that no person 
 serving the king for the time being in his wars shall be convicted or 
 attaint of high treason for so doing. The intention was to protect persons 
 serving the king de facto against punishment or forfeitures imposed by 
 the king de jure on his recovering the kingdom. 
 
 DEFAMATION is the act of maliciously making a false and dis- 
 paraging statement concerning a person; by "disparaging" is meant 
 that the statement is calculated to expose him to contempt, ridicule or 
 public hatred, or to injure his character or credit, or to cause him to be 
 
 1 Shepp. 52, 74; Co. Litt. 229b. * Co. Litt. 9 a; Litt. § 259; Britton, 
 
 3 Steph. Comm. i. 481 ; stat. 8 & 9 Vict. 98 b. 
 c. 106. 5 Britton, 101 a. 
 
 3 Williams, P. P. 37. » Smith's M. Law, 62. 
 
 ' Ibid. 67. 
 
Default law dictionary. Defeat 255 
 
 feared or avoided, or the like. 1 Defamation is cither libel or slander 
 (q. v.). (Sec also Malice; Privilege.) 
 
 DEFAULT " is legally taken for non-appearance in Court ;" 2 but at 
 the present day it means the failure to take any step required by the rules 
 of procedure. Thus, if a party fails to appear or to deliver a pleading 
 within the proper time, he is in default, and a judgment given against 
 him in consequence is called judgment by default. Such a judgment may 
 be set aside by the Court on proper terms, if it appears that the default 
 was unintentional. 3 (See Writ of Inquiry.) 
 
 DEFEASANCE, " in a large sense, doth sometimes signify [i.] a con- 
 dition annexed to an estate ; and sometimes [ii.] the condition of an 
 obligation, made with and annexed to the obligation at the time of making 
 thereof;" 4 but it is more properly applied [iii.] to a condition relating to 
 a deed, such as an obligation, recognizance, statute, or the like, but con- 
 tained in a separate instrument, whether entered into at the same time .as 
 the deed itself, or afterwards ; on the condition or defeasance being per- 
 formed by the obligor or recognisor, the deed is made void. A con- 
 veyance of the freehold of land at common law {e.g., by feoffment) could 
 not be defeated by a defeasance unless it was executed at the same time 
 as the conveyance. 5 And in this manner mortgages were in former times 
 usually made, the mortgagor enfeoffing the mortgagee, and he at the same 
 time executing a deed of defeasance, whereby the feoffment was rendered 
 void on repayment of the borrowed money at a certain day. 8 
 
 Almost the only instances of defeasances at the present day occur in 
 the case of cognovits and warrants of attorney {q. v.). 
 
 § 2. "Defeasance" is also used to describe the effect of a conditional 
 limitation in defeating or putting an end to an estate. (See Limitation.) 
 Etymology.] — Norman French : defere, to undo. 7 
 
 DEFEASIBLE. — An estate or interest in property is said to be 
 defeasible when it is subject to be defeated by the operation of a 
 condition subsequent or conditional limitation. Thus the estate of a. 
 mortgagee is defeasible, because the mortgagor has the right to redeem, 
 and an estate followed by a conditional limitation is defeasible on the 
 performance of the condition ; for examples of conditions, see that title ; 
 also Limitation. The term may also be applied 'to interests given by will 
 subject to being divested (see Divest), and to an estate or interest subject 
 to a power of revocation. (See Power.) 
 
 DEFEAT. See Defeasance. 
 
 1 See Underhill on Torts, 83. 5 Co. Litt. 236 b. 
 
 * Co. Litt. 259 b. c Bl. Comm. ii. 327. 
 
 3 Rules of Court, xiii., xxix. 7 Britton, 216 b. 
 
 4 Shepp. Touch. 396.. 
 
256 
 
 Defence 
 
 LAW DICTIONARY. 
 
 Deforcement 
 
 In pleading. 
 
 Self-defence. DEFENCE.— § i. The right of private or self-defence is the right 
 which every person has to inflict death or bodily harm in order to defend 
 himself or any other person from unlawful violence, provided that he 
 inflicts no greater injury than he in good faith and on reasonable grounds 
 believes at the time to be necessary. 1 
 
 § 2. In pleading, a defence is a reason given by the defendant, respon- 
 dent, prisoner or other person against whom a proceeding is brought, 
 tending to show that there is no case against him. 
 
 § 3. In ordinary actions in the High Court, defences are of innumerable 
 variety, both of law and of fact, and are put forward either by statement 
 of defence or demurrer (q. v.). Some of the old defences at common law 
 had short names, which are still preserved, e.g., "not guilty,'' "non 
 assumpsit," &c. (See also Amends; Confession and Avoidance; Pleading; 
 Traverse.) 
 
 § 4. In matrimonial suits, defences are divided into absolute, that is, 
 such as being established to the satisfaction of the Court are a complete 
 answer to the petition, so that the Court can exercise no discretion, but is 
 bound to dismiss the petition ; and discretionary, or such as being esta- 
 blished leave to the Court a discretion whether it will pronounce a decree 
 or dismiss the petition. Thus in a suit for dissolution, condonation is an 
 absolute, adultery by the petitioner a. discretionary, defence. 2 
 County Court. § 5. In County Court practice, defences of set-off, infancy, coverture, 
 statute of limitations, and discharge under the bankruptcy acts, are called 
 special defences, and a defendant cannot set up one of them unless he 
 gives the registrar notice of his intention to do so, 3 and files a notice with 
 a concise statement giving the material facts involved in the defence. 4 
 
 § 6. As to defences in criminal procedure, see Arrest of fudgment; 
 Demurrer; Plea. 
 
 Etymology.] — Norman French: defender, to deny ("il defendera forsque tort et 
 force," = "he shall only deny the wrong and the force"), 5 so that defence originally 
 signified merely a denial. 6 
 
 Matrimonial 
 suits. 
 
 DEFENCE ACTS are the acts s&6Vict. c.94; 23*24 Vict. c. 112; 
 and 36 & 37 Vict. c. 72, by which certain lands are vested in the Secretary 
 of State for War to be used for military purposes. 7 
 
 DEFENDANT is a person against whom an action, information, or 
 other civil proceeding (other than a petition) is brought, including sum- 
 mary proceedings before magistrates and justices for the recovery of 
 penalties. (See Counter-Claim ; Prisoner; Respondent.) 
 
 DEFORCEMENT— DEFORCEOR — DEFORCIANT.— De- 
 forcement is where a man wrongfully holds lands to which another 
 
 1 Stephen's Crim. Dig. 124 ; Steph. 
 Comm. iii. 241. 
 
 2 Browne on Divorce, 86. 
 
 3 9 & 10 Vict. c. 95, s. 76 ; Pollock's 
 C. C. Practice, 100. 
 
 1875, ix - 7 et seq. ; 
 
 4 C. C. Rules, 
 Pollock, 100. 
 
 6 Litt. \ 195. 
 
 6 Bl. Comm. iii 
 to Co. Litt. 127 b. 
 
 1 See Hawley v. Steele, 6 Ch. D 
 
 296 ; Hargrave's note 
 521- 
 
Degradation law dictionary. Delegatus 257 
 
 person is entitled. It therefore includes disseisin, abatement, discon- 
 tinuance, and intrusion, 1 but it is applied especially to cases, not falling 
 under those heads, where the person entitled to the freehold has never 
 had possession : thus, where a lord has a seignory, and lands escheat to 
 him propter defectum sanguinis, but the seisin is withheld from him, this 
 is a deforcement, and the person who withholds the seisin is called a 
 deforceor. 2 § 2. So if a man covenants to convey lands to another and Deforciant, 
 refuses to do so, continuing in possession against him, this wrongful pos- 
 session is a deforcement ; whence in levying a fine of lands, the person 
 against whom the fictitious action was brought upon a supposed breach 
 of covenant, was called the deforciant. 3 (See Quod ei deforceat; Fine; 
 Tenant by Sufferance.} 
 
 DEGRADATION is an ecclesiastical censure, whereby a clergyman 
 is removed from the ministry, that is, deprived, of holy orders. It seems 
 to differ from deposition in being more humiliating, but there is some 
 confusion in the books on the subject. 1 
 
 DEGREES in the law of real actions were certain alterations in the rights of a 
 person who had disseised another of his land, as where the disseisor conveyed the land to 
 a stranger, or died seised so that the land descended to his heir. The nature of the 
 action to be brought by the disseisee depended upon the number of degrees between the 
 original disseisor and the person actually in possession of the land. 5 
 
 DEL CREDERE. — A del credere agent, or agent acting under a 
 del credere commission, is an agent for the sale of goods, who, in 
 consideration of a higher reward than is usually given, guarantees the due 
 payment of the price of all goods sold by him, that is to say, engages to 
 pay the price himself if the purchaser does not. 6 (See Commission, § 3.) 
 
 DELEGATES were commissioners appointed by the crown, by a special commis- 
 sion of delegacy, to hear an ecclesiastical cause either in lieu of the archbishop of the 
 province, or by way of appeal from him. The Court of Delegates was abolished by 
 stats. 2 & 3 Will. 4, c. 92, and 3 & 4 Will. 4, c. 41, and its jurisdiction transferred to the 
 Judicial Committee of the Privy Council. 7 
 
 DELEGATUS NON POTEST DELEGARE.— A person to 
 whom a power, trust or authority is given to act on behalf or for the 
 benefit of another, cannot delegate it — that is, he cannot put another 
 person in his place — unless he is authorized to do so. (See Substitute!) 
 The rule applies especially to persons acting under powers of attorney, to 
 directors of companies, and to trustees, executors, &c. It must not, how- 
 ever, be understood of merely ministerial acts, which do not involve the 
 exercise of discretion, and which the delegatus cannot reasonably be 
 
 1 Co. Litt. 277 b, 331b. 6 Co. Litt. 238 b; Roscoe on Real 
 
 2 Bl. Comm. iii. 172 ; Butler's note to Actions, 88. 
 
 Co. Litt. 331 b. 6 Chitty on Contracts, 189; Benjamin 
 
 3 Bl. iii. 174. , on Sales, 607, n. 
 
 4 Phillimore, Eccl. Law, 1399 ; Rogers, 7 Phill. Eccl. Law, 1268 et seq. 
 Eccl. Law, 335 et seq. 
 
258 
 
 Deliverance 
 
 LAW DICTIONARY. 
 
 Delivery Order 
 
 Chattels. 
 
 Actual or 
 constructive. 
 
 Deeds. 
 
 Pleadings. 
 
 Execution; 
 
 expected to perform himself. Therefore a trustee may employ a banker, 
 steward or agent to receive or pay money or the like. 1 (See Agency, § i.) 
 
 DELIVERANCE. See Replevin. 
 
 DELIVERY.— I. § i. Delivery primarily signifies the act of trans- 
 ferring the possession of a moveable thing from one person to another : 2 
 thus the delivery of goods is a necessary part of the transaction called a 
 sale (q. v.). 3 § 2. Delivery is either actual or constructive : thus if goods 
 cannot conveniently be actually handed from one person to another, as if 
 they are in a warehouse or a ship, the delivery of the key of the ware- 
 house, a delivery order, bill of lading, &c, is a constructive or symbolical 
 delivery of the goods themselves. 4 (See Livery ; Delivery Order.) 
 
 II. § 3. In conveyancing, delivery is that part of the operation of 
 executing a deed by which the grantor signifies his intention when and 
 how the deed is to take effect. Delivery is of two kinds: (1) absolute 
 delivery, when the grantor intends the deed to take effect at once and 
 unconditionally, even though he should retain the deed in his own posses- 
 sion; 5 this kind of delivery is generally effected by the grantor saying at the 
 time of signing and sealing the deed, " I deliver this as my act and 
 deed ;" 5 (2) delivery as an escrow, when the deed is delivered by the 
 grantor to a third person not a party to it, to be delivered up to the 
 grantee upon the performance of a condition, as the payment of money or 
 the like. 6 
 
 III. § 4. Pleadings are delivered by being left at the address of the 
 opposite party or his solicitor, unless the party has failed to enter an 
 appearance, in which case the pleading (if one is required) is delivered by 
 being filed with the proper officer. 7 (See Service.) 
 
 IV. § 5. As to execution by delivery, see Writ of Delivery ; Judgment; 
 Execution. 
 
 DELIVERY ORDER is an order addressed by the owner of goods 
 to a person holding them on his behalf, requesting him to deliver them 
 to a person named in the order. Delivery orders are chiefly used in the 
 case of goods held by dock companies, wharfingers, &c. Such an order 
 is not a document of title, and therefore does not transfer the property or 
 divest the vendor's lien for the purchase-money, until it is acted on by the 
 holder obtaining either (i) actual delivery, or (ii) an entry of his title in the 
 wharfinger's books, or (iii) the issue of a dock warrant in his name, which 
 last operation would apparently pre-suppose the second. Until he does 
 one of these things, the original owner may obtain delivery to himself or 
 transfer the property in the goods to some one else. 8 (See Dock Warrant?) 
 
 1 Lewin on Trusts, 224. 
 
 * Perkins speaks of the delivery (i. e. 
 payment) of legacies; Prof. Book, § 7. 
 
 6 As to the distinction between delivery 
 in the formation and delivery in the per- 
 formance of a contract, see Benjamin on 
 Sales, 554. 
 
 4 Wms. P. P. 37 ; Benjamin, 573. 
 
 5 Wms. R. P. 14 7 et seg. 
 
 6 Ibid.-. Shep. Touch. 57. {See Escrow; 
 Execution.) As to the history of delivery, 
 see Markby's Elements of Law, § 473. 
 
 7 Rules of Court, xix. 6. 
 
 8 McKewan v. Smith, 2 H. L. C. 309 ; 
 Imperial Bank v. L. &* St. K. Dock Co., 
 5 Ch. D. 195 ; Cavanagh on Securities, 
 338 ; Benjamin, 684. 
 
Delusions LAW DICTIONARY. ' Demandant 259 
 
 DELUSIONS. — The general rule is that where a person suffers from 
 mental delusions, his capacity to enter into contracts and make testa- 
 mentary and other dispositions of his property is not affected by the 
 delusions unless they are calculated to influence the particular contract 
 or disposition, even although they are connected with its subject-matter. 
 Thus where a person at the time he granted a lease laboured under the 
 delusion that the property was impregnated with sulphur, it was properly 
 left for the jury to say whether as a matter of fact that delusion made him 
 incompetent to grant the lease. 1 (See Lunatic?) 
 
 DEMAND " in the understanding of the common law is of so large 
 an extent as no other one word in the law is," 2 and therefore if a person 
 release to another all manner of demands, this is the best release that the 
 latter can have, for by it all actions, executions, rights of entry, rents, 
 commons, profits a prendre, obligations, contracts, &c. are released and 
 discharged. 3 (See Demandant.) 
 
 § 2. A demand also signifies a request addressed to a person that he 
 will do some act which he is legally bound to do, after the request has 
 been made. Thus bills of exchange and promissory notes may be, and 
 cheques must be, made payable on demand. When a bill or note is made 
 payable on demand the Statute of Limitations does not in general begin to 
 run until the demand is made, unless it appears that the debt was recover- 
 able on demand, and not merely payable on demand. 4 
 
 § 3. It is a doctrine of equity that where a claim is put forward which Stale demand, 
 arose many years ago, and it is clear from the circumstances of the case 
 that the person putting it forward has long been cognizant of his rights 
 and has neglected to enforce them, the Court will decline to recognize 
 his claim, although it may not be barred by the Statute of Limitations. 
 Such a claim is called a stale demand. The term is chiefly used with 
 reference to trusts, to which the Statutes of Limitation do not apply, 6 
 but it is also sometimes applied to ordinary debts. Thus where A. gave 
 B. a promissory note payable three months after demand, no interest 
 being reserved, and A. paid two half-yearly instalments of interest within 
 eighteen months from the date, but no further interest was paid, and no 
 proceedings were taken to enforce payment of the note for nearly forty 
 years, the Court expressed an opinion that even if the claim had not 
 been barred by the statute it ought to be rejected as a stale demand. 6 
 
 DEMANDANT was the technical name for the actor in a real action, corresponding 
 to "plaintiff" in a personal or mixed action. 1 (See Actor.) 
 
 1 Jenkins v. Morris, 14 Ch. D. 674 ; see or note raises a presumption that the cause 
 
 Banks v. Goodfellow, L. R., 5 Q. B. 549 ; of action accrued from that date, and not 
 
 Smeev.Smee, 5 P. D. 84. from the time of demand; ibid, and see 
 
 s Co. Litt. 291 b. infra, § 3. 
 
 3 Ibid. ; Litt. §§ 508 et sea. 6 McDonnell v. White, II H. L. C. 570. 
 
 4 Shelford, R. P. Stat. 269. The reser- ° In re Rutherford, 14 Ch. D. 687. 
 vation of interest from the date of the bill 7 Co. Litt. 127 b. 
 
 s2 
 
260 
 
 Demesne 
 
 LAW DICTIONARY. 
 
 Demesne 
 
 DEMESNE.— I. § i. In its primary sense "demesne" signifies 
 " own," or that which is a man's private property. 1 
 Land II. § 2. Hence " demesne," as applied by the old writers to lands or 
 
 rents, signified that they were in the possession or occupation of a free- 
 hold tenant, or of his lessees for years, as opposed to those which others 
 held of him for an estate of freehold. Thus, if A. was seised for an 
 estate of freehold of eleven acres of land, and granted six of them to B., 
 to be held by him as A.'s tenant, then A. was said to be seised of the 
 remaining five in dominico, and of the six which he had granted to B. he 
 was seised in servitio. 
 
 § 3. Under the old law when an heir brought an action to recover land 
 belonging to his ancestor, he had to allege in the writ that his ancestor 
 died seised of the land " in his demesne as of fee," meaning that the 
 immediate freehold in severalty was vested in him for an estate of fee 
 simple, as opposed to one who held land for a term of years or for life 
 only, or in common with others, or in servitio. 2 From this use of the 
 phrase, in dominico suo ut defeodo came to be the technical description of 
 an estate of fee simple in a real action. 3 
 
 Manor. HI, § 4,. Demesne was also applied to those parts of a manor which 
 
 were in the occupation of the lord, or of his villeins, or tenants for 
 years, being cultivated " for the necessary sustentation, maintenance, 
 and supportation of the lord and his household," i as opposed to that 
 part of the manor which had been granted out to free tenants in 
 consideration of services ; hence, a manor is said to be held in dominico 
 and in seivitio, or to consist of demesnes and services. 5 At the present 
 day the demesne lands of a manor consist (1) of the lord's demesnes, or 
 that part which is in the actual occupation of the lord, (2) of the 
 copyholders' demesnes, or the part held by copyhold tenants, and (3) of 
 the waste land of the manor. 6 (See Manor; Service.) 
 
 Crown lands. IV. The demesne lands of the crown are those which belong to the 
 sovereign in her public capacity, that is, by succession from her 
 predecessors, or by escheat, &c, as opposed to her private estates, 
 namely, such as have been acquired by her by moneys out of her privy 
 purse, or by gift or inheritance from any person other than her 
 predecessors. The demesnes are under the management of the 
 Commissioners of Woods, Forests, and Land Revenue, and their revenue 
 
 1 Thus Btitton (90 b) speaks of the right 
 of some lords to hang their tenants on their 
 fourches demeyne, or private gallows : in 
 propria patibulo (Fleta, 62), 
 
 - The authorities are very conflicting as 
 to the proper meaning of dominicum, but 
 the explanation given above seems the most 
 probable : see Britton, 205 b ; Bracton, 
 263 a; Fleta, 289; Co. Litt. 17 a; Co. 
 Copyh. §12; Williams on Seisin, 6 ; Bl. 
 Comm. ii. 105 ; Steph. Comm. i. 233. Of 
 course, after the abolition of subinfeudation 
 
 (q. v.) no one can create an estate to be 
 held by the grantee as his tenant unless it 
 is less than an estate in fee simple. 
 
 » Litt. 6 10. 
 
 1 Co. Litt. 17 a; Britton, 205 ; Att.-Gen. 
 v. Parsons, 2 Cr. & Jer. 279. That part of 
 the demesne lands which was in the posses- 
 sion of the villeins was called dominicum 
 ■villenagium. Bracton, 263 a ; Fleta, 289. 
 
 6 Co. Litt. 17 a; Co. Copyh. § 2. 
 
 6 Co. Copyh. § 12 et seq. 
 
Demise , law dictionary. Demurrage 261 
 
 forms part of the Consolidated Fund (y. ».).' (See Ancient Demesne ; 
 Seignory ; Manor.) 
 
 Etymology.] — Norman-French : demeyne, from Latin, dominium, ownership. 
 
 DEMISE seems originally to have meant any transfer or succession Of copyholds: 
 of a right. Thus, in the old books, copyholds are said to be demisable 
 by copy of court roll, meaning- that the lord can grant them according to 
 the custom of the manor. 2 So "demise," as applied to the crown, Of crown, 
 signifies that change in the succession which takes place when the royal 
 dignity is transferred or demised from one king to his successor. This 
 ordinarily occurs on the death of the king, but the expression is also 
 used in the event of the king being deposed. 3 
 
 § 2. In its ordinary sense, however, to demise is to grant a lease of lands Lease, 
 or other hereditaments. 4 It is also applied, though rarely, to chattels, — 
 e. g., a ship. 5 The word "demise" in a lease of land under seal implies a 
 covenant for title ; in a parol lease it implies a covenant for quiet 
 enjoyment. 6 
 
 Etymology.] — Old French : demise or desmise, from desmettre ; Latin, dimittere, to 
 send away. 7 
 
 DEMONSTRATIVE. See Legacy. 
 
 DEMUR. — § 1. In pleading, to demur is to raise an objection by 
 demurrer (q. v.). 
 
 § 2. Formerly, at common law, in all actions for debt against infant Parol, 
 heirs by specialty creditors of their ancestors, either party was entitled to 
 pray that the parol might demur, that is, that the proceedings might be 
 stayed until the heir had attained his full age. This rule was the 
 foundation of a similar practice in equity, where it was by analogy 
 extended to all cases in which the real estate of an infant was to be sold 
 or conveyed under the decree of the Court, — e.g., foreclosure and partition 
 suits. (See Day to show Cause.) The demurrer of the parol was 
 abolished by stat. 11 Geo. 4 & 1 Will. 4, c. 47, s. io. 8 
 
 Etymology.] — "Demur" signifies to stop; "parol" seems here to signify the 
 pleadings, which were originally oral. 
 
 DEMURRABLE. — A pleading, petition, or the like, is said to be 
 demurrable when it does not state such facts as support the claim, 
 prayer, or defence put forward. 9 
 
 DEMURRAGE, in the law of merchant shipping, means (I.) the 
 detention of a ship by the freighter beyond the number of days allowed 
 
 1 H. Cox, Instit. 698 ; Steph. Comm. ii. 6 Davids, i. 108. 
 
 534 ; stat. 14 & 15 Vict. c. 42. ' Skeat's Etym. Diet. s. v. 
 
 2 Co. Litt. 58 b. 8 Archbold, Pr. 1013 ; Daniell's Ch. 
 
 3 Bl. Comm. i. 249. Pr. 149. 
 
 4 Davids. Conv. i. 108. 9 Ex parte Coates, 5 Ch. D. 979. 
 6 Steely. Lester, 3 C. P. D. 121. 
 
263 Demurrer law dictionary. Demurrer 
 
 for loading or unloading, and (II.) the sum which is fixed by th.e contract 
 of affreightment {e.g., the charterparty) as a remuneration to the shipowner 
 for the detention of the ship ; the number of days during which the ship 
 may be detained on demurrage at the rate agreed upon (called days of 
 demurrage) is generally fixed by the contract. When the ship is detained 
 by the freighter beyond the days of demurrage, a claim of the same nature 
 arises for damages for the subsequent detention. 1 (See Charterparty.) 
 
 Etymology.] — Spanish: demorrage, from Latin, demorari, to delay. (See Demur.) 
 
 DEMURRER.— § i. In an action in the High Court, a demurrer is 
 a pleading by which one of the parties in effect alleges that the facts 
 stated by the opposite party in the preceding pleading (or in a particular 
 part of it), even assuming them to be true, do not sustain the contention 
 based on them ; that is, do not show a good cause of action or ground 
 of defence, set-off, counterclaim, reply, &c. 2 § 2. Thus, in an action on 
 a bill of exchange, by an indorsee against the acceptor, if the defendant 
 in his statement of defence alleges that there was no consideration for the 
 acceptance, the plaintiff may demur to the statement of defence, because 
 a bona fide holder for value of a bill of exchange can recover against 
 the acceptor notwithstanding a defect in the title of the original holder. 
 (See Negotiable.') § 3. Such simple cases as this are not likely to occur 
 in practice, and usually demurrers raise new points, e.g., whether the 
 acceptance of a composition by the joint creditors of a partnership under 
 sect. 126 of the Bankruptcy Act, 1869, is a satisfaction of the separate 
 debts of the partners. 3 (See Joint.) 
 Demurring § 4, When a demurrer comes on for hearing and the party demurring 
 
 takes an objection which might have been but was not raised by the 
 demurrer, this is called demurring ore tenus. 4, 
 
 § 5. If on the argument of a demurrer judgment is given in favour of 
 the demurring party, the demurrer is said to be allowed ; if it is given 
 against him, it is said to be overruled. 
 
 § 6. A demurrer affords a rapid and inexpensive mode of determining 
 a point of law in question between the parties, and if the whole case lies 
 in that question, the determination of the demurrer determines the result 
 of the action. If, however, there are several questions of fact Or law in 
 the case, 6 or if the demurrer is occasioned by bad pleading, the action goes 
 on notwithstanding the determination of the demurrer, because in the 
 former case the remaining questions have to be decided, and in the latter 
 case the Court generally gives the party against whom a demurrer has 
 been allowed leave to amend his pleading, so as to state facts showing a 
 
 1 Maude & Pollock, Merch. Shipp. 306. ' Daniell's Ch. Pr. 504 ; Dawkins v. 
 
 '' Rules of Court, xxviii. 1. For form of Lord Penrhyn, 6 Ch. D. 318. 
 
 demurrer see Jud. Act, 1875, Sched. 6 As to demurring and pleading at the 
 
 App. (C), Form 28. same time, see Rules of Court, xxviii. 4, 5 ; 
 
 3 Simpson v. Henning, L. R., 10 Q. B. as to pleading after demurrer overruled, 
 
 406, where there was a demurrer to the ibid. 12. As to demurring in divorce suits, 
 
 plea and a demurrer to the replication ; see Browne on Divorce, 236. 
 Leyman v. Latimer, 3 Ex. D. 15. 
 
Demurrer LAW dictionary. Denization 263 
 
 cause of action or ground of defences Questions of law may also be 
 raised by special cases, motions for judgment and new trial, &c. 
 
 Formerly the nature of demurrers differed according as they were used at common law 
 or in equity. § 7. At common law there were two kinds of demurrers, viz., demurrers Demurrer 
 upon pleading and demurrers upon evidence. 1 Demurrers upon pleading were similar to uponpleading. 
 demurrers under the present practice, except that a joinder in demurrer was necessary by 
 the party whose pleading was impeached, and that the pleadings down to the joinder had 
 to be made up into a demurrer book. 2 (See Issue.) § 8. Before the Common Law 
 Proc. Act, 1852, demurrers upon pleading were of two kinds — general demurrers, or 
 demurrers to the substance, raising * point of law, and special demurrers, or demurrers Special. 
 to the form, used where the pleading demurred to did not follow the rules of pleading. 
 The latter were called special because the defect of form objected to had to be specified 
 in the demurrer. 3 Special demurrers were abolished by the C. L. P. Act, 1852, s. 51. 
 § 9. There were also demurrers to aid prier, voucher, receipt, waging of law and the 
 like, 4 but these were antiquated long before the passing of the Judicature Acts. § 10. A Demurrer to 
 demurrer to evidence was raised upon the trial of an action ; the party demurring declared evidence, 
 that he would not proceed because the evidence offered on the other side was not 
 sufficient to maintain the issue. The practice of moving for a new trial has superseded 
 this proceeding. 5 
 
 \ II. In equity demurrers were rarely pleaded except by defendants, and were of 
 several kinds, of which demurrers for want of equity, for want of parties, and for multi- 
 fariousness, were the most important. 6 If a demurrer was so framed as to bring in facts Speaking 
 not stated in the bill it was called a speaking demurrer, and would be overruled. 7 demurrer. 
 
 § iz. Demurring is also applicable to various proceedings not being 
 actions, e.g., to some old common law writs, 8 and to an indictment or 
 information. 9 
 
 § 13. Demurrers in criminal prosecutions by indictment or information Criminal 
 seldom occur in practice. A general demurrer is founded on some sub- procedure, 
 stantial defect in the indictment ; a special demurrer, or demurrer in 
 abatement, is founded on some?- formal defect ; special demurrers are 
 quite obsolete. 10 (See Arrest 0/ Judgment.) 
 
 Etymology.] — From Latin demorari, to abide ; either because the party demurring 
 relied on the point of law ("nous demurroins en vos discretions si nous etions mest a 
 respond" 11 ), or because he put a stop to the pleadings in order to have the question of 
 law determined. 12 (See Demur.) 
 
 DENIZATION— DENIZEN.— I. § i. A denizen in the primary 
 but obsolete sense of the word is a natural-born subject of a country, 13 or 
 a native or inhabitant of a city or liberty. 14 Denization therefore originally 
 
 1 Co. Litt. 72 a. 9 Broom's Comm. Com. Law, 993, 
 
 2 Chitty, Pr. 928. n. (p). 
 
 3 Co. Litt. 72 a; Bl. Comm. iii. 315; 10 Archbold, Crim. PI. 131. 
 
 Steph. PI. (s) 151. ' " Year Book, 1 Edw. 2, 8, cited Steph. 
 
 * Co. Litt. 72 a. PI. (S), App. note (14). 
 
 5 S Co. 104; Co. Litt. 72 a ; Steph. PI. 12 See Co. Litt. 71 b. 
 
 (5) 99. Ior >" 3 Bl. 372 ; Chitty, Pr. 439. - 13 Co. Litt. 129 a. "If the king and his 
 
 6 Hunter's Suit, 29 ; Mitford on PI. 107 subjects should conquer another kingdom 
 et sea. ; Darnell's Ch. Pr. 470 et seq. or dominion, [they] are all denizens of the 
 
 7 Hunter, 36; Daniell, 504. kingdom or dominion conquered." Cal- 
 " For an instance of a demurrer to a re- vin's Case, 7 Co. 6. 
 
 turn to a mandamus and of a demurrer to " " Cest asavoir, qe lasise de pain soit 
 
 a plea to the return, see The Queen v. The- garde surle assai, ausi bien de denzeins come 
 
 Postmaster-General, I Q. B. D. 658. de/oreins." Liber Custumarum, 303. 
 
264 Deodand law dictionary. Deportation 
 
 signified making an alien into a denizen or natural-born subject ; 1 and 
 thus " denizen" afterwards acquired the special sense of an alien who had 
 been "indenized" or made a natural-born subject. 
 
 II. § 2. Denizen in its modern sense denotes a person who is an alien 
 born, but who has obtained from the crown letters patent, called letters 
 of denization, to make him an English subject; 2 formerly there were 
 several differences between denizens and naturalized subjects, principally 
 with reference to the inheritance of land; 3 but since the passing of the 
 Naturalization Act, 1870, these differences have become unimportant, and 
 now that naturalization can be easily obtained, 4 letters of denization are 
 seldom granted. 5 (See Naturalization?) 
 
 Etymology.]— Norman French : denzein, from deins, within ; the i seems to have 
 been inserted by analogy to citizen? 
 
 DEODAND.— Formerly if a personal chattel was the immediate and accidental 
 cause of the death of any reasonable creature (as where a man was run over by a cart or 
 killed by an ox), it was forfeited to the crown under the name of a deodand {Deo, to God, 
 and dandum, to be given). This rule was abolished by stat. 9 & 10 Vict. c. 62. 1 
 
 DEPARTURE, "in pleading, is said to be when the second plea 
 containeth matter not pursuant to [the party's] former [plea], and which 
 fortifieth not the same, and thereupon it is called decessus, because he 
 departeth from his former plea." 8 Thus, if a plaintiff, suing as the 
 executor of A. B., alleges in his statement of claim that the cause of 
 action accrued to A. B. in his lifetime, and in his replication alleges that 
 it accrued to him as executor after A. B.'s death, this is a departure. 9 
 Departure was forbidden by the rules of common law pleading, and is so 
 still by the modern rules, although the term itself is not used. 10 
 
 DEPASTURE is to feed cattle on the grass, &c. growing on land. 
 (See Common, §§ 4 et seq.) 
 
 DEPONENT is a person who makes an affidavit, 11 as opposed to a 
 declarant, who makes a declaration, and a witness, who makes an oral 
 statement. (See Deposition.) 
 
 DEPORTATION. See Abjuration. 
 
 1 " The king cannot grant to any other 4 Stat. 7 & 8 Vict. c. 66 ; Naturaliza- 
 
 to make of strangers bom denizens . . . tion Act, 1870. 
 
 for the law esteemeth it a point of high 6 Rep. of Comm. on Natur., App. 8. 
 
 prerogative ... to make aliens bom sub- * Muller, Etym. Wb. s. v. ; Co. Litt. 
 
 jects of the realm, and capable of the lands 129 a. 
 
 and inheritances of England in such sort, as 7 Bl. Comm. i. 300; Steph. Comm. ii. 
 
 any natural-bom subject is." 7 Co. 25 b. 551. 
 
 _ 2 Co. Litt. 129 a, where particular or 8 Co. Litt. 304 a. 
 
 limited denizations, " as when one is made 9 Stephen on Pleading (5), citing ^'en- 
 denizen for life, or in taile," are mentioned. man v. Walker, Willes, 27. 
 (See Allegiance.) 10 Rules of Court, xix. 19. 
 
 3 Ibid. u m^ xxxviii. 4. 
 
Deposit LAW DICTIONARY. Deratgn 265 
 
 DEPOSIT. — § 1. An equitable deposit is a deposit of title-deeds or Equitable. 
 other documents of title, so as to create an equitable charge. (See 
 Charge; Mortgage.) 
 
 § 2. A deposit in Court is where property is deposited with an officer in Court, 
 of the Court for safe keeping, pending litigation, e.g., until a question as 
 to the person entitled to its possession is determined ; or where money is 
 paid into Court as security, e. g., under the Parliamentary Deposits Act, 
 as security for the execution of a railway or similar work. 1 (See Payment 
 into Court ; Bailment.) 
 
 § 3. On a sale of real estate, and on a sale by auction of personal On sale, 
 property, it is usual for the purchaser to pay the vendor or auctioneer a 
 deposit, that is, part of the purchase-money by anticipation, as security 
 for the completion of the purchase. 3 
 
 DEPOSITION, in ecclesiastical law, is an ecclesiastical censure by Ecclesiastical, 
 which a clergyman is removed from the ministry, that is, deprived of 
 holy orders, as opposed to deprivation of benefice 3 (q. v. and Degradation). 
 
 § 2. In procedure, depositions, in the most general sense of the word, Procedure, 
 are the statements on oath of a witness in a judicial proceeding. It is in 
 this sense that the term is used when we say that where a witness is 
 dead, his depositions at a former trial are admissible in evidence on a 
 subsequent trial between the same parties. 4 In criminal procedure, the 
 depositions of witnesses taken before a magistrate or justices of the 
 peace, against a person charged with an indictable offence, are subject to 
 the same rule. 5 
 
 § 3. In the practice of the High Court, deposition is used in a special 
 sense to denote a statement made orally by a person on oath before an 
 examiner, commissioner, or officer of the Court (but not in open Court), 
 and taken down in writing by the examiner or under his direction. The 
 deposition is filed, and is used as evidence in such manner as the Court 
 directs. 6 (See Evidence; Examiner; Commission, § 7.) 
 
 DEPRAVE is to despise or exhibit contempt. Depraving the Lord's 
 Supper or the Book of Common Prayer is a criminal offence, punishable 
 with fine and imprisonment. 7 
 
 DEPRIVATION is an ecclesiastical censure, whereby a clergyman is 
 deprived of his parsonage, vicarage, or other spiritual promotion or dig- 
 nity, on account of some offence. 8 (See Censure; Deposition, § 1.) 
 
 DERAIGN " commeth of the French word derayer or deraigner, that is to say, to 
 displace or to tume one out of his order. ... So when a monke is deraigned, he is 
 degraded and turned out of his order of religion, and become a lay man." 9 
 
 1 9 & 10 Vict. c. 20; Daniell's Ch. Pr. 5 Best on Evidence, 140; Roscoe, Crim. 
 1056. Ex. 71 ; stat. n & 12 Vict. c. 42. 
 
 2 Dart's Vendors and Purchasers, 191 ; 6 Rules of Court, xxxvii. 4. 
 Davids. Conv. i. 520. 7 Stephen's Crim. Dig. 99. 
 
 3 Phfflimore, Eccl. Law, 1399. 8 Phillimore, Eccl. Law, 1395. 
 1 Powell on Evidence, 183. 9 Co. Litt. 136 b. 
 
266 Derelict law dictionary. Derogate 
 
 § 2. In the old books to deraign a warranty paramount seems to have meant to enforce 
 or take advantage of it. Thus if A. conveyed land to B. with warranty, and B. con- 
 veyed it to C. with warranty, and C. was evicted and recovered lands of equal value 
 against B., and B. recovered lands of equal value against A., then A. was said to deraign 
 the warranty paramount. 1 
 
 Etymology.] — There is a Norman word, desreyner, to prove one's case in Court, from 
 the late Latin disrationare. 2 (See Arraign.) Hence it signified to establish one's right, 
 or to recover by legal proceedings. 3 
 
 DERELICT— DERELICTION.— § i. Dereliction is the act of 
 abandoning a chattel or moveable ; as " if one is possessed of a jewel, 
 and casts it into the sea or a public highway, this is such an express 
 dereliction, that a property will be vested in the first fortunate finder 
 that will seize it to his own use." 1 
 
 ^ P s- § 2. The term is, however, more commonly used of ships, which are 
 
 said to be derelict when they are abandoned on the high seas. If the ship 
 is salved, a greater amount of remuneration is frequently allowed to the 
 salvors than in ordinary cases of salvage. 5 " Abandonment " here merely 
 means physical abandonment, not necessarily that kind of abandonment 
 which takes place in the case of a constructive total loss ; therefore if a 
 derelict is salved it belongs to the owner, unless he has given notice of 
 abandonment to the underwriters. (See Abandonment, § i.) 
 
 Land. § 3. The term is also applied to land left dry by the sea shrinking back 
 
 below the usual high-water mark, or by a river changing its bed. If this 
 dereliction is sudden and considerable, the new land, in the case of the 
 sea or a tidal river, belongs to the crown ; in the case of a non-tidal river, 
 the property in the bed and the adjoining land remains as before, so that 
 if the river leaves its bed altogether, the old bed is divided between, the 
 riparian proprietors according to the medium filum, while the new bed 
 remains the property of the person over whose land the river has made 
 itself a course. If the dereliction is by small and imperceptible degrees, 
 the new land goes to the owner of the adjoining land; 6 and if the owner 
 of the original bed of the river had a several fishery over it, he has a 
 similar right over the new bed. 7 
 Etymology.] — Latin : derelinquere, to abandon. 
 
 DERIVATIVE. See Conveyance, § 4; Evidence; and Settlement (as 
 applied to paupers). 
 
 DEROGATE— DEROGATION.— § 1. To derogate from a right, 
 obligation, or the like, is to destroy, prejudice or evade it. Thus there is a 
 maxim that no man can derogate from his own grant, which is chiefly applied 
 to cases of the creation of easements by implied grant. If a man erect a 
 
 1 Co. Litt. 174 a, 376 b ; Plowd. 7, 515. <* Maude & Pollock, Merch. Shipp. 495; 
 
 2 Britton, 42 a; Loysel, Inst. Cout. The Cleopatra, 3 P. D. 145. 
 
 gloss. ; Schmid, Ges. der Ang. gloss, s. v. 6 Bl. Comm. ii. 262 ; Coulson & Forbes 
 
 Dirationare; Miiller's Etym. Wiirtb. s. v. on Waters, 22, 62, 94 ; cf. Just. Inst. ii. 
 
 3 Britton, 98 b, 230 a. § 23, and Alluvion. 
 
 « Bl. Comm. ii. 9. ^ Foster v. Wright, 4 C. P. D. 438. 
 
Derogate law dictionary. Descent 267 
 
 house on his own land, and afterwards sell it to another, reserving the 
 adjoining land, he cannot obstruct the windows in the house by building 
 on the adjoining land, because the grant of the house contains an implied 
 grant of the easement of light to its windows, and if the grantor were 
 allowed to obstruct them he would derogate from his grant. 1 
 
 § 2. Agreements or provisions are said to be in derogation of the 
 marriage contract when they tend to disturb or prejudice the status of 
 lawful marriage; thus a provision in a settlement for the future separation 
 of the husband and wife is in derogation of the marriage contract, because 
 it is calculated to facilitate the dissolution of the marriage contract, 
 " which the policy of the law is to preserve intact and inviolate." 2 (See 
 Separation Deeds ; Immorality.} 
 
 § 3. An agreement is said to be in derogation of an act of parliament 
 or of a rule of law, when it enables the parties to evade a rule made not 
 for their benefit, but in the interest of the public. 3 
 
 DESCENT is what takes place when land or some interest in land or 
 other realty belonging to a person passes on his death intestate to some 
 one related to him by consanguinity, either directly or by reference to 
 some other person, according to certain rules of law. 4 Descent, there- 
 fore, is opposed on the one hand to what takes place when land on the 
 death of a person passes to someone else by virtue of a gift or limitation 
 to him as "persona designata" (q. v.); and on the other hand to the 
 devolution of personal property, which is governed by the rules of 
 distribution (q. v.). 
 
 § 2. The rules by which the descent of realty is governed have two Stock or root 
 objects : first, to determine the stock of descent, that is, the person from of descent> 
 whom the descent is to be traced, or, in other words, the person with 
 reference to whom the question of consanguinity is determined ; and, 
 secondly, to settle who is to be selected from the persons related by 
 consanguinity to the stock of descent. 
 
 § 3. The rule which determines the stock of descent is that in every 
 case descent shall be traced from the purchaser, that is, from the last 
 person who acquired the land otherwise than by descent. 5 (See Pur- 
 chaser.) Thus if land is conveyed or devised to A. and he dies intestate, 
 the descent is traced from him, because he was the purchaser ; again, if 
 on A.'s death intestate the land descends to B., and he also dies intestate, 
 the descent is still traced from A., because B. was not the purchaser, 
 although he is the person from whom the land descends. 6 If, however, 
 
 1 Palmer v. Fletcher, I Levinz, 122; it is not universally accepted. According 
 Gale on Easements, 97. to Mr. Joshua Williams (notes to Watkins 
 
 2 H. v. W., 3 K. & J. 382. on Descent, 119; Jurist, N. S. iv. (2) 
 
 3 See Savin v. Hoylake Rail. Co., L. 56), where a person (B.) has acquired land 
 R., 1 Ex. 9 ; Pollock on Contract, 242. by descent from the purchaser (A.) and 
 
 1 Co. Litt. 13 b, 237 a. As to the dies intestate, the person (C.) who then 
 
 descent of a warranty under the old law, takes the land by descent derives his title 
 
 see Litt. §§ 718, 735 et sea. not from B. but from the purchaser A., 
 
 5 3 & 4 Will. 4, c. 106, s. 2. so that he would take the land free from 
 
 6 This view of the operation of the act B.'s specialty debts if it were not for the 
 seems to the author the correct one ; but act 3 & 4 Will. 4, c. 104, making the land 
 
268 : Descent law dictionary. Descent 
 
 there is a total failure of heirs of the purchaser, the descent is traced from 
 
 the person last entitled to the land. 1 
 
 § 4. The rules regulating the selection of the person to take by descent 
 
 in a given case are divisible according to their source, and are of the 
 
 following kinds : — 
 Descent by I. § S- Descent according to the common law means either literally 
 
 law 00 ™" 1011 the common law > or (more usually) the common law as altered by the 
 
 Inheritance Act. 3 The rules regulating this kind of descent are called the 
 
 canons of descent, and are as follows : 3 — 
 Fee simple. A. Descent of an estate in fee simple. 
 
 ( 1 ) Inheritances in the first place lineally descend to the issue of the 
 
 purchaser, in infinitum, but the issue nearest in degree to the purchaser 
 
 are preferred to the more remote; consequently the children of the pur- 
 chaser are preferred to their own issue. 
 
 (z) The male issue is admitted before the female in the same degree ; 
 
 for instance, sons are admitted before daughters. 
 
 (3) Where two or more of the male issue are in equal degree of 
 consanguinity to the purchaser, the eldest only shall inherit ; but the 
 females shall inherit all together. 
 
 (4) The lineal descendants of any person deceased shall represent 
 him; that is, shall stand in the same place as the person himself would 
 have done had he been living. Therefore, if the purchaser leaves a 
 daughter, and a grandson by a deceased son, the grandson takes the land 
 by right of representation, to the exclusion of the daughter. (See Per 
 Capita ; Per Stirpes.) 
 
 (5) On failure of lineal descendants of the purchaser, the inheritance 
 descends to his nearest lineal ancestor, or to the issue of such lineal 
 ancestor, if he has died, according to the rule of representation (canon 4). 
 
 (6) The paternal line is preferred to the maternal. In other words, 
 the father and all the male paternal ancestors of the purchaser and their 
 descendants shall be admitted to inherit before any of the female paternal 
 ancestors or their descendants ; all the female paternal ancestors and 
 their heirs before the mother or any of the maternal ancestors of the 
 purchaser, or her or their descendants ; and the mother and all the male 
 maternal ancestors and their descendants before any of the female 
 maternal ancestors or their descendants. 
 
 (7) A kinsman of the half blood shall inherit next after a kinsman in 
 the same degree of the whole blood to the purchaser, and after the issue 
 of such kinsman, when the common ancestor is a male, and next after 
 the common ancestor, when such ancestor is a female. (See Blood 
 §*■) 
 
 of every deceased owner assets for payment this point in the Jurist, N. S. iv. (2) 56 
 
 of his debts. The objection to this view 72, 109, 120. ' 
 
 is that the Inheritance Act does not say 1 Stat. 22 & 23 Vict. c. 35 s . 19. 
 
 that every descent shall take place from the 2 3 & 4 Will. 4, c. 106 ' s 2 
 
 purchaser, but that where a descent takes s See Williams,' R. P.'ioo.'and Steph 
 
 place "the title to inherit by reason of Comm. i. 391 etseq., where the operation 
 
 consanguinity" shall be traced from the of these canons is fully explained and 
 
 purchaser. See the correspondence on illustrated. 
 
Descent law dictionary. Descent 269 
 
 (8) In the admission of female ancestors, the mother of the more 
 remote male (paternal or maternal) ancestor, and her heirs, shall be 
 preferred to the mother of a less remote male (paternal or maternal) 
 ancestor and her heirs. 
 
 B. § 6. The descent of an estate tail follows the first four canons, Estate tail, 
 unless it is barred, or unless it is limited to special heirs or to males or 
 females, in which case the canons govern its descent so far as they are 
 applicable 1 (See Tail; and t'/i/ra, § n.) 
 
 II. § 7. Customary descent is a descent regulated by the custom of Customary 
 the place where the land is situated, as in gavelkind and borough-English escen " 
 lands (q. v.) ; other peculiar kinds of descent occur in many manors. 2 
 
 § 8. An anomalous kind of descent takes place on the death of a mort- Trust and 
 gagee of land, or where a bare trustee dies intestate as to any corporeal ^°a t 'ff ge 
 or incorporeal hereditament of which he was seised in fee simple. In 
 the former case the legal personal representative of the mortgagee may, 
 on payment of the mortgage debt, reconvey the land to the mortgagor, 
 and, in the latter case, the hereditament vests like a chattel real in the 
 legal personal representative of the deceased trustee. 3 
 
 § 9. An equitable estate or interest descends in the same way as if it Equitable 
 were legal. Thus an equity of redemption in fee simple land descends ' 
 
 to the heirs of the mortgagor in the same way as the fee simple would 
 have descended. 
 
 § 10. With reference to the nature and degree of the consanguinity, 
 descent is said to be lineal when it takes place from an ancestor to a Lineal, 
 descendant {e. g., from father to son) or vice versa, and collateral or trans- Collateral. 
 venal when the parties are descended from a common ancestor, as in the 
 case of uncle and nephew, cousin and cousin, &c. 4 (See Consanguinity.) 
 
 § 11. If an estate is limited to the heirs of the body of A., a deceased Descent per 
 person who has left two sons, B. and C, B. takes by purchase as the first ormam onl - 
 donee in tail, but nevertheless the estate devolves on his death as if he 
 had taken it by descent from A., and, therefore, on B.'s death without 
 issue the estate devolves on C. as the heir of the body of A. This is 
 called a descent per formam doni (" according to the form of the gift"), 
 although it is in strictness neither a descent nor a purchase. 5 
 
 § 12. Before the Inheritance Act there were several other kinds of descent, the most 
 important of which were descent ex parte paternd and maternd (on the paternal or Ex parte 
 maternal side). If a person succeeded to land as heir to his mother and died intestate paterni ! and 
 without issue, the land descended to his heir on the mother's side, that is, to a descendant matern& - 
 of one of his mother's ancestors. In all other cases land descended to the heirs ex parte 
 
 1 Williams, R. P. 105. Transfer Act. 
 
 2 Williams on Seisin, 93 ; Elton, Copyh. 4 Under the old law lineal descent could 
 117. The Duchy of Cornwall (q. v.) has a only take place downwards, from ancestor 
 special mode of descent. See also a pecu- to descendant, and not from a descendant 
 liar kind of descent mentioned by Coke, to an ancestor (Bl. Comm. ii. 208) ; but 
 by which " the shield, armorie and armes" there seems no inaccuracy in now describ- 
 of a nobleman descend to such of his heirs ing a descent from a descendant to an 
 as are able to bear them ; Co. Litt. 27 a. ancestor as lineal descent. 
 
 3 Vendor and Purchaser Act, 1874, s. 4; 6 Fearne, Cont. Rem. 81; Co. Litt. 
 Land Transfer Act, 1875, s. 48. See 26 b.- See Williams, R. P. 58 ; Williams 
 Trustee. The latter provision does not ap- on Seisin, 65! 
 
 ply to lands registered under the Land 
 
270 Descent cast LAW DICTIONARY. Detention 
 
 $aterh& of the person last seised. If a person who had acquired land as heir to his 
 mother conveyed it to a third person, and then took a reconveyance to himself, he was 
 said to break the descent, because on his death intestate the land would descend to his 
 heirs ex parte paternd. 1 
 
 See Heir; Hereditament; Inheritance. 
 
 DESCENT CAST is the same as what the older writers called a " descent which 
 tolls entry." Where a person who had acquired land by disseisin, abatement, or intru- 
 sion, died seised of the land, the descent of it to his heir took away or "tolled" the 
 real owner's right of entry, so that he could only recover the land by an action. 2 The 
 doctrine of descent cast was abolished by stat. 3 & 4 Will. 4, u. 27. 3 
 
 § 2. The term seems to have originally meant the happening of any descent, because 
 the law casts the land upon the heir. 4 
 
 DESERTED PREMISES may be ' recovered by the landlord in a 
 summary way before a magistrate or justices of the peace, if they were 
 held at a rent of three-fourths at least of their yearly value and no 
 sufficient distress has been left by the tenant. 5 
 
 DESERTION is where a husband voluntarily and without reasonable 
 cause leaves his wife against her wish, or similarly where the wife leaves 
 her husband. 6 Desertion for two years or upwards affords ground for an 
 application for judicial separation, and, in some cases, for dissolution of 
 marriage (q. v.) ; and desertion by a husband for any time enables the 
 wife to apply for a protection order (q. v.). 
 
 DESIGNATIO PERSONS. See Persona designata. 
 
 DESIGNS, copyright of. See Registration of Designs. 
 
 DETAINER, — When a person is in arrest in a civil proceeding and 
 another writ for his arrest is lodged with the sheriff or other officer before 
 his discharge, it is executed by detaining him. This is called a detainer. 7 
 As to detainer of lands, see Forcible Detainer. 
 
 DETENTION IN A REFORMATORY, as a punishment or 
 measure of prevention, is where a juvenile offender, or offender under 
 sixteen years of age, is sentenced to be sent, at the expiration of his 
 term of imprisonment, to a certified reformatory school, and to be there 
 detained for a period of from two to five years. 8 
 
 1 Williams on Seisin, 62. There were s Litt. §§ 385 et set;. ; Co. Litt. 237 b. 
 
 also other kinds of descent which have no 3 Shelford, R. P. Stat. 228. 
 
 modern interest, such as mediate and im- 4 Litt. \ 385 ; Watk. Desc. 33. 
 
 mediate descent (Collingwood v. Pace, Sir 5 Stats. 11 Geo. 2, c. 19; 55 Geo. 3, 
 
 O. Bridg. 436) ; descent by relation and u. 52 ; 3 & 4 Vict. c. 84 ; 11 & 12 Vict. 
 
 by matter subsequent (Butler and Baker's c. 43 ; Woodfall, L. & T. 789. 
 Case, 3 Co. 25 ; Rolle, Abr. Discent, G.); 6 Browne on Divorce, 43. 
 
 ordinary and privileged descent (1 Burr. ' Archbold, Pr. 694. 
 
 109; see Descent cast), and others (Watkins 8 Reformatory Schools Act, 1866 ; 
 
 on Descent, 27). Russell on Crimes, i. 82. 
 
Detention of Ships LAW DICTIONARY. Deviation 271 
 
 DETENTION OF SHIPS.— The Merchant Shipping Act, 1876, 
 contains provisions for the detention by the Board of Trade of unsafe 
 ships (z'. e., ships unfit to proceed to sea without serious danger to human 
 life), and for the appointment by the Board of officers called detaining 
 officers. 1 (See Court of Survey.) 
 
 DETERMINABLE— DETERMINATION— DETERMINE.— 
 
 An estate is said to determine when it comes to an end, whether by 
 limitation, effluxion of time, merger, surrender or otherwise. When an 
 estate is subject to a condition, defeasance, or the like, it is said to be 
 determinable on the happening of the event specified in the condition. 
 Thus ah estate given to a woman during widowhood is determinable on 
 her marrying again. 
 
 DETINUE was the name of the action which, before the Judicature Act came into 
 operation, was the remedy where a person claimed the specific return of goods wrong- 
 fully detained from him, or their value ;* as where A. lent B. a horse, and B. refused to 
 return it. 3 (See Action, § J; Recovery; Writ of Delivery.) 
 
 DEVASTAVIT (" he has wasted [the assets]") is the name given to 
 any violation or neglect of duty by an executor which makes him per- 
 sonally responsible to persons having claims on the assets, e. g., creditors 
 and legatees. Thus if an executor applies the assets in satisfaction of a 
 debt due by himself to a third person, or collusively sells the testator's 
 goods at an undervalue, or pays claims which he is not bound to satisfy, 
 he is guilty of a devastavit. 1 
 
 § 2. In ordinary cases the remedy for a devastavit is by action to make 
 him responsible or to administer the estate under the direction of the 
 Court. (See Administration?) 
 
 There is also a remedy in some cases by writ of fi. fa. de bonis propriis 
 or scire fieri inquiry. (See those titles.) 
 
 DEVIATION, in the law of marine insurance, happens where there Ship, 
 is a wilful and unnecessary departure from the due course of the voyage 
 of a ship, for any, even the shortest time. A deviation discharges the 
 underwriters from liability in ordinary cases, 6 but in some cases a devia- 
 tion is justifiable, e.g., for the purpose of saving life. 6 
 
 § 2. In the law of railways, a deviation is a lateral alteration of the line Railway, 
 of a railway. The Railways Clauses Act authorizes a company which is 
 subject to its provisions to deviate from the line marked on the deposited 
 plans within the limits delineated thereon. 7 
 
 1 Sects. 6, 12. * Williams, Ex. 1658 etseq. 
 
 2 Co. Litt. 286 b ; Common Law Proc. 6 Smith's Merc. Law, 374. 
 
 Act, 1854, s. 78. See now Rules of 6 Scaramangav. Stamp, 4C.P. D. 316; 
 
 Court, xlix. S C. P. D. 295. 
 
 3 Stephen's Comm. iii. 424. 1 Hodges on Railways, 341 et seq. 
 
•272 
 
 Device 
 
 LAW dictionary. Diem clausit extremum 
 
 Specific or 
 residuary. 
 
 Executory. 
 
 DEVICE. See Trade-mark; Registration of Designs. 
 
 DEVISAVIT VEL NON.— Under the old Chancery practice, where an heir at 
 law was a party to proceedings affecting the real estate of his ancestor under an alleged 
 will, he was generally entitled to an issue devisavit vel non, that is, to have the question, 
 whether his ancestor devised the lands or not, tried in a common law Court before a jury. 
 The practice was in effect abolished by stat. 25 & 26 Vict. c. 42. 1 
 
 DEVISE— DEVISEE.— § 1. A devise is a gift of land or other 
 realty by will, e.g., "I devise Blackacre to A. for life and after his death 
 to B. ;" this gives A. an estate for life and B. the fee simple (see Estate). 
 A. and B. are called devisees. 
 
 • § z. A devise may be either'specific (as in the above instance), or re- 
 siduary, e. g., " I devise the residue of my land and realty to C," which 
 gives C. all lapsed and undisposed-of real property belonging to the 
 testator at his death. 2 But in some respects every residuary devise is in 
 effect specific, for where the testator's personal estate is insufficient for the 
 payment of his debts, the specific devisees must contribute towards their 
 payment rateably with the residuary devisee, 3 while in the case of per- 
 sonalty the debts are payable out of the residue in exoneration of the 
 legacies. (See Administration, § 2.) 
 
 § 3. An executory devise is such a direct 4 limitation by will of a con- 
 tingent interest in land as would be void at common law if made by deed; 
 executory devises are therefore opposed on the one haud to limitations 
 allowed at common law (such as contingent remainders), and on the other 
 hand to limitations by use (see Use), though they scarcely differ from the 
 latter except in form. Thus if A. devises land to B. (a minor) and his 
 heirs, but if he should die under twenty-one then to C, this is an exe- 
 cutory devise to C, the effect of which might also be produced by a 
 shifting use, though not by a conveyance at common law, because no 
 limitation over can follow the limitation of an estate in fee simple 5 (see 
 Limitation). Executory devises must not transgress the rule against per- 
 petuities, or the provisions of the Thellusson Act {q. v.). 
 
 DICTUM is an observation by a judge on a legal question suggested 
 by a case before him, but not arising in such a manner as to require 
 decision by him. It is therefore not binding as a precedent on other 
 judges, although it may be entitled to more or less respect. "Dictum" 
 is an abbreviation of obiter dictum, " a remark by the way." 
 
 DIEM CLAUSIT EXTREMUM (= "he has died") is a special 
 writ of extendi facias, or extent in chief, issuing after the death of the 
 king's debtor, against his lands and chattels. It sets out with stating the 
 death of the debtor, from whence it derives its name. 6 (See Extent.) 
 
 1 Daniell, Ch. Pr. 772, 942. 
 
 s 1 Vict. c. 26, ss. 24, 25. 
 
 3 Hens-man v. Fryer, L. R., 3 Ch. 420 ; 
 Lancefield v . Iggulden, 10 Ch. 136. 
 
 * That is, not created by way of use. 
 
 5 "Wms. Real P. 312 ; Watson's Comp. 
 Equity, 1334. See Feame, Cont. Rem. 
 
 381 et seq., who with other writers includes 
 executory bequests under the same head. 
 (See Legacy.) 
 
 6 Tidd's Pr. 1057 ; West on Extents, 
 319; Manning's Exchequer, 9; Crown 
 Suits Act, 1865, 5. 47. 
 
Dies non LAW DICTIONARY. Dilapidations 273 
 
 DIES NON or DIES NON JURIDICUS is a day on which no 
 legal business can be transacted. Such is Sunday, Christmas Day, Good 
 Friday, &C. 1 (See Vacation.) 
 
 DIGEST. — § 1. In jurisprudence, a digest properly means a collection 
 of rules of law on concrete cases, as opposed to a code, which consists of 
 abstract rules of law. In other words, a code lays down principles, while 
 a digest gives examples of their application to certain combinations 
 of facts. A digest may be either a legislative work (as the Digest of 
 Justinian), or it may be the work of a private author. (See Code.) 
 
 § 2. In English phraseology, "digest" sometimes means (i) a collection 
 of head-notes of decided cases, arranged either alphabetically or syste- 
 matically, of which Comyn's and Fisher's Digests are well-known ex- 
 amples ; 2 and sometimes (ii) a collection of principles or abstract rules of 
 law, made by a private author, and which if promulgated by the legis- 
 lature would be called a code : such are the Digests of the Criminal Law 
 and of the Law of Evidence, compiled by Mr. Justice Stephen. 
 
 DIGNITY. — § 1. A dignity is the right to bear a title of nobility or 
 honour. Some dignities, such as those of peers and baronets, are created 
 either by writ or by letters patent ; a knight is created by corporeal investi- 
 ture. 3 § 2. Dignities are either for life, such as knighthood, or of inheritance, 
 such as baronetcies and ordinary peerages. A dignity of inheritance may 
 also exist by prescription. 1 § 3. A dignity of inheritance is an incorporeal 
 hereditament. 5 It is generally limited either to the heirs or the heirs of 
 the body of the grantee, and follows the rules governing the ordinary 
 descent of land. 6 If, however, a man holds an earldom to him and the 
 heirs of his body, and dies leaving only daughters, the dignity is in 
 suspense or abeyance until the crown declares which daughter shall hold 
 it during her life.' (See Abeyance, § 3 ; Office.) 
 
 DILAPIDATIONS. — In ecclesiastical law, an incumbent who incurs 
 dilapidations, that is, allows the buildings of the benefice to fall into ruin, 
 or pulls them down, or commits waste on the timber or lands of the 
 benefice, is liable in the Ecclesiastical Courts to be punished for so doing 
 and to be compelled to make good the injury. He and his personal 
 representatives are also liable to an action at law by his successor in the 
 benefice. 8 (See Waste.) 
 
 1 See Rules of Court, lvii. 2, 3, lxi. 4. the House of Lords (in Lord Wensleydale's 
 
 2 The older digests (such as those of case) that a peer for life has no right to sit 
 Rolle and Brooke) were called abridg- and vote in the House of Lords (Steph. 
 ments. The modern abridgments (such as Coram, ii. 607, note). By the Appellate 
 that of Bacon) are short treatises on vari- Jurisdiction Act, 1876, however, the crown 
 ous branches of the law, arranged alpha- is empowered to appoint life-peers under 
 betically. the title of Lords of Appeal in Ordinary 
 
 3 Co. Litt. 165a; Bl. Comm. i. 272, (see Lords of Appeal) . 
 396. ' Bl. Comm. ii. 216. 
 
 4 Co. Litt. 16 b. 8 Phillimore, Eccl. Law, 1459, 161 1; 
 6 Ibid. 165 a; Bl. ii. 37. Steph. Comm. ii. 713. As to the survey- 
 6 If a dignity is conferred on a man by ing of dilapidations and loans to incum- 
 
 patent, without mentioning his heirs, he bents to execute repairs, see the Ecclesi- 
 
 has a dignity for life, without inheritance astical Dilapidations Acts of 1871 and 
 
 (Co. Litt. 9b, 16 b). It was resolved by 1872. 
 
 S. T 
 
274 Dilatory law dictionary. Director 
 
 DILATORY. See Plea. 
 
 DILIGENCE is care. As to the effect of the absence of diligence, 
 
 see Bailment ; Negligence. 
 
 DIMINUTION.— Where a record in a proceeding is ordered to be 
 sent or certified by an inferior to a superior Court for the purpose of 
 review, and the record is not completely or truly certified, the party 
 injured thereby may allege a diminution of the record {I.e., its incomplete- 
 ness), and a certiorari will be awarded. 1 
 
 DIMISSORY LETTERS.— Where a candidate for holy orders has 
 a title of ordination in one diocese and is to be ordained in another, the 
 bishop of the former diocese gives letters dimissory to the bishop of the 
 latter to enable him to ordain the candidate. 3 (See Title.) 
 
 DIOCESE is a district subject to a bishop's jurisdiction, and is 
 divided into archdeaconries {q. v.)? (See Province.) 
 
 DIOCESAN COURTS are ecclesiastical Courts taking cognizance 
 of all matters arising within the diocese of each bishop. They consist of 
 the Consistorial Court {q. v.) ; the Courts of one or more commis- 
 saries (q. ?'.) ; and the Courts of Archdeacons, exercising general or 
 limited jurisdictions, according to the terms of their patents, or to local 
 custom, or to the authority of recent legislation. 4 (See Provincial Courts.) 
 
 Trial. DIRECTION. — § i. When an action is tried before a jury, and a 
 
 question of law arises on which the verdict of the jury partly depends, 
 the judge directs them on the subject, that is, tells them what the law is, 
 and they find accordingly. If the judge directs them erroneously, this is 
 a misdirection, and may be a ground for granting a new trial. (See 
 Trial.) 
 Payment into § 2. When money is to be paid into Court in the Chancery Division, 
 Court. the Paymaster-General issues what is called a " direction to pay in," which 
 
 is in form a certificate by him specifying the date of the order, request, 
 &c. under which the payment in is to be made, the sum to, be paid in, the 
 person to pay it in, and the title of the cause, matter or account to the 
 credit of which it is to be placed. This forms the authority to the Bank 
 of England to receive and deal with the money. 5 (See Account; Payment 
 into Court.) 
 
 DIRECTOR of a company is a person elected by the shareholders or 
 otherwise appointed to superintend the management of the company's 
 
 1 Archbold's Pr. 484 ; Archbold, Crim. 4 Phillimore, Eccl. Law, 1202. 
 
 PI. 203 ; Bl. Comm. iv. 390. 5 Chanc. Funds Comm. Rep. (1864), 
 
 2 Holthouse's Law Diet, citing Cowel ; App. 34 : Chancery Funds Rules, 1874, 
 Phill. Eccl. Law, 121 et seq. ss. 25 et seq. 
 
 3 Bl. Comm. i. in. 
 
I 
 Director LAW DICTIONARY. Disability 275 
 
 affairs. There are usually several directors, with power for a certain 
 number of them to act without the others. (See Quorum.) The directors 
 are the agents of the company, and it is bound by all acts done by them 
 within the scope of their authority. 1 They are not trustees in the proper 
 sense of the word. 3 (See Trustee; also Company ; Qualification; Articles 
 of Association.) 
 
 DIRECTOR OF PUBLIC PROSECUTIONS.— By the Prose- 
 cution of Offences Act, 1879 (which came into operation on the 1st 
 January, 1880), provision is made for the appointment of an officer to be 
 called the Director of Public Prosecutions, whose duty it is, subject to 
 the superintendence of the Attorney-General, to institute, undertake, 
 carry on or give advice or assistance in criminal proceedings which 
 appear to be of importance or difficulty, or in which special circum- 
 stances, or the refusal or failure of a person to proceed with a prosecution, 
 appear to render the action of the Director necessary to secure the due 
 prosecution of an offender. 
 
 DIRECTORY. — A provision in an act of parliament, rule of pro- 
 cedure, or the like, is said to be directory when it is to be considered as- 
 a mere direction or instruction of no obligatory force, and involving no 
 invalidating consequence for its disregard, as opposed to an imperative 
 provision, which must be followed. The general rule is that the pre- 
 scriptions of a statute relating to the performance of a public duty are so 
 far directory, that though neglect of them may be punishable, yet it does 
 not affect the validity of the acts done under them ; as in the case of a 
 statute requiring an officer to prepare and deliver a document to another 
 officer on or before a certain day. 3 
 
 DISABLE. — I. § 1. In its ordinary sense to disable is to cause a 
 disability (q. v.). 
 
 II. § 2. In the old language of pleading, to disable is to take advantage 
 of one's own or another's disability ; thus it is " an express maxim of the 
 common law that the party shall not disable himself;" but "this disability 
 to disable himself ... is personal." ' 
 
 DISABILITY is the absence of legal ability to do certain acts or 
 enjoy certain benefits ; such as the disability to sue, to take lands by 
 descent, to enter into contracts, to alien property, &c. 
 
 § 2. Disability is called general when it disables the person from doing General and 
 all acts of a given kind, or special when it disables him from doing a s P eclal - 
 specific act. Examples of general disability occur in the case of outlaws 
 and convicts, who cannot bring any action or suit in their own right, and 
 lunatics and infants, who cannot alien property or enter into contracts 
 except for necessaries. The disabilities of married women have recently 
 
 1 Lindley on Companies, 256, 567. 3 Maxwell on Statutes, 330 et seq. 
 
 2 Smith v. Anderson, 15 Ch. D. at p. 275. * 4 Co. 123 b. 
 
 T 2 
 
276 
 
 Disabling 
 
 LAW DICTIONARY. 
 
 Disbar 
 
 Personal and 
 absolute. 
 
 Civil and 
 canonical. 
 
 been modified by the Married Women's Property Act (q. v.). A special 
 disability occurs where a person who has entered into a contract becomes 
 incapable of performing it. 1 Such a disability generally arises by act of 
 the party; as where a person who has contracted to marry a woman marries 
 another, and thereby disables himself from performing his promise. 3 
 § 3. As a rule " disability" means a general disability, especially a dis- 
 ability to sue. 3 Disabilities of this kind are of importance with reference 
 to the Statutes of Limitation and the Prescription Act (q. v.), which allow 
 persons under certain disabilities an extended time within which to enforce 
 their rights. 4 
 
 § 4. Disabilities are either personal or absolute. A personal disability 
 is one which is confined to a certain person, such as that of an infant, 
 married woman, &c. An absolute or perpetual disability is that which 
 not only attaches to the person disabled, but also to his descendants or 
 successors. Thus formerly where a person was attainted of treason or 
 felony, that was an absolute and perpetual disability by corruption of 
 blood for any of his posterity to claim any inheritance in fee simple, 
 either as heir to him or to any ancestor above him. 5 But this rule as to 
 attainder has been abolished except in the case of lineal descent from 
 persons outlawed. 6 
 
 § 5. Disability is also used in the special sense of disability to enter 
 into the contract of marriage. This may be either canonical (such as the 
 natural inability at the time of marriage to procreate children) or civil. 
 A canonical disability makes the marriage voidable, while a civil dis- 
 ability (except that for want of age) makes it void. Examples of civil 
 disabilities are : ( 1 ) a prior and existing marriage of one of the parties ; 
 (2) want of reason ; (3) consanguinity or affinity within the prohibited 
 degrees ; (4) want of age, viz., the fact that the- male is under 14 or the 
 female under 12. 7 
 
 DISABLING. See Statute. 
 
 DISAPPROPRIATION is where the appropriation of a benefice is 
 severed, either by the patron presenting a clerk, or by the corporation 
 which has the appropriation being dissolved. 8 See Appropriation, § 7 ; 
 
 Sinecure. 
 
 DISBAR. — When a barrister is expelled from his inn for misconduct 
 he is said to be disbarred. 
 
 1 Hochster v. De La Tour, 2 El. & Bl. 
 678. 
 
 2 Ibid. ; Litt. § 355. 
 
 3 Co. Litt. 128 a. 
 
 4 The stat. 3 & 4 Will. 4, c. 27, s. 16, 
 includes "absence beyond seas" (q. v.) in 
 the list of disabilities, although it is, strictly 
 speaking, only a disadvantage or " impedi- 
 ment," as the stat. 21 Jac. 1, c. 16, s. 4, 
 
 rightly calls it. 
 
 6 Lord De La Warre's Case, 11 Co. I. 
 Hence called " disability in the blood." 
 Collingwood v. Pace, I Ventr. 413. 
 
 6 Stats. 3 & 4 Will. 4, c. 106, s. 10; 
 33 & 34 Vict. c. 23 ; Shelford, R. P. 
 Stat. 456. 
 
 1 Steph. Comm. ii. 240. 
 
 8 Bl. Comm. i. 385. 
 
Discharge law DICTIONARY. Disclaim 
 
 277 
 
 DISCHARGE. — I. § 1. To discharge a right or obligation is to 
 deprive it of its binding force, and to discharge a person is to release him 
 from an obligation ; thus payment discharges, a debt, and in the case of 
 a guarantie, an alteration of the contract, without the consent of the 
 surety, will in general discharge him. 1 § 2. Discharge is a generic term; 
 its principal species are rescission, release, accord and satisfaction, per- 
 formance, judgment, composition, bankruptcy, merger (q. v.). i 
 
 § 3. Discharge by operation of law is where the discharge takes place 
 whether it was intended by the parties or not : thus if a creditor appoints 
 his debtor his executor, the debt is discharged by operation of law, 
 because the executor cannot have an action against himself. 3 
 
 II. § 4. In the law of bankruptcy, a discharge is the proceeding by Discharge 
 which a person who has been adjudicated a bankrupt, or whose affairs . 1 ? an ! c r u P t or 
 are being liquidated, is freed from all his debts proveable in the bank- debtor, 
 ruptcy or liquidation, with a few exceptions, and is also enabled to 
 
 acquire property without its vesting in the trustee. As to the discharge 
 of a bankrupt, see Bankrupt, § 3. Where the proceedings are by liqui- Certificate of 
 dation, the debtor's discharge is granted by the creditors in general d'scharge. 
 meeting, and the registrar gives to the debtor a certificate of discharge. 4 
 
 III. § 5. To discharge a proceeding (such as the order of a Court or 
 judge, or the certificate of a chief clerk, process of attachment or execu- 
 tion, or the like) is to set it aside, on an application made for that purpose, 
 either to the Court in which the proceeding is pending, or to a Court of 
 Appeal. To discharge a rule or order nisi is where the Court refuses to 
 make it absolute. (See Absolute ; Nisi.) 
 
 IV. § 6. At the trial of an action in the High Court, it sometimes Discharge of 
 becomes necessary to discharge the jury, either on account of the sudden J ur y- 
 illness of a juryman, 5 or because they cannot agree ; in which case, when 
 
 there is no hope of their resolving on a verdict, it is now the practice to 
 discharge them. 
 
 § 7. A prisoner or defendant is discharged from arrest or imprisonment 
 when he is set at liberty. 
 
 DISCLAIM— DISCLAIMER,— § 1. To disclaim a right, interest 
 or office is to expressly renounce all claim to it or refuse to accept it. 
 Thus where property is conveyed to a person upon certain trusts, he may 
 disclaim the trust unless he has accepted the office or has acted as 
 trustee. The act of disclaiming is called a disclaimer, and is generally 
 evidenced by a deed. 7 (See Renunciation.) 
 
 § 2. Where a person has obtained a patent for an invention of which Patent, 
 the title is inconsistent with the specification, or of which a part is neither 
 
 1 Chitty on Contracts, 492 et seq. ; 6 Rea v. Edwards, 3 Camp. 207. 
 White & Tudor's L. C. ii. 892. 6 Smith's Action, 139. 
 
 2 Leake on Contracts, 413. 7 Elphinstone's Conv. 401 ; Watson's 
 
 3 Co. Litt. 264 b, n. (1) ; Williams on Comp. Eq. 877. As to disclaimer by a 
 Executors, 1216; Chitty, 714. lord or tenant of land (disclaimer in the 
 
 4 Bank. Act, 1869, s. 125, § 10; Bank. seignory, disclaimer in the tenancy, and 
 Rules (1870), 362 ; Ex parte Hemming, disclaimer in the blood), see Co. Litt. 
 13 Ch.D. 163; Lewis v. Leonard, 5 Ex. 102 a. 
 
 D. 165. 
 
:7 8 
 
 Disclaim 
 
 LAW DICTIONARY. 
 
 Discontinuance 
 
 Trustee in 
 bankruptcy. 
 
 Disclaimer in 
 suit in equity. 
 
 Action. 
 
 Land. 
 
 new nor useful, the patent is in strictness void; but by stat. 5 & 6 Will. 4, 
 c. 83, a patentee is in such a case empowered, with the leave of the 
 proper law officer, to enter a disclaimer of any part of either the title or 
 the specification, and the disclaimer is then deemed to be part of the 
 letters patent or specification, so as to render them valid for the future. 1 
 (See Title.) 
 
 § 3. Where any property of a bankrupt consists of land burdened with 
 onerous Covenants, of unmarketable shares in companies, of unprofitable 
 contracts, or of property which is not saleable by reason of its binding the 
 possessor to the performance of any onerous act, the trustee in the bank- 
 ruptcy may sign a disclaimer of the property, which has the effect of 
 determining the contract, surrendering the lease, forfeiting the shares, or 
 determining the estate and interest of the bankrupt, according to the 
 nature of the property, 2 but a disclaimer cannot prejudice the rights of 
 third persons, such as a mortgagee of the bankrupt. 3 
 
 § 4. Under the practice of the Court of Chancery, before the Judicature Act, if a bill 
 claiming relief was filed against a person who had no interest in the subject-matter of the 
 suit, his proper course was to file a disclaimer, alleging that he had not any right or title, 
 and that he did not and never did claim any title to the subject-matter of the suit. In 
 such a case the plaintiff generally had his bill dismissed as against that defendant. 4 
 
 DISCONTINUANCE.— I. §1. In the procedure of the High Court 
 discontinuance is where the plaintiff in an action voluntarily puts an end 
 to it, either by giving notice in writing to the defendant before any step 
 has been taken in the action subsequent- to the statement of defence, or 
 at any other time by order of the Court or a judge. The effect of dis- 
 continuance is that the plaintiff has to pay the defendant's costs, but may 
 commence another action for the same cause. 5 (See Withdrawal!) If 
 the defendant has put in a counter-claim, the discontinuance puts an end 
 to it as well as to the original action. 6 
 
 II. § 2. Formerly, 'in the law of real property, discontinuance was 
 where a man wrongfully aliened certain lands or tenements and died, 
 whereby the person entitled to them was deprived of his right of entry, 
 and was compelled to bring an action to recover them. The term was 
 specially applied to alienations by husbands seised jure uxoris, by eccle- 
 siastics seised jure ecclesicz, and by tenants in tail : thus, if a tenant in tail 
 aliened the land and died leaving issue, the issue could not enter on the 
 land, but was compelled to bring an action. 7 
 
 The principal actions appropriate to discontinuances were : formedon, 
 cui in vita, cui ante divortium. 
 
 The effect of discontinuance is taken away by stat. 3 Sz 4. Will. 4, c. 27, 
 s. 39. (See Recontinuance.) 
 
 1 Johnson on Patents, 151. 
 
 '- Bankr. Act, 1869, s. 23. As to the 
 construction of this section see Poison's 
 Bankr. 377 et seq. ; In re Mercer and 
 Moore, 14 Ch. D. 287. 
 
 3 Ex parte Buxton, 15 Ch. D. 289. 
 
 4 Hunter's Suit, 43 ; Mitford on Plead- 
 ing, 283 ; Daniell's Ch. Pr. 458. 
 
 5 Rules of Court, xxiii. ; Newcomen v. 
 Coulson, 7 Ch. D. 264. 
 
 e Vavasseurv. Krupp, 13 Ch. D. 474. 
 
 " Litt. §§ 592 et seq. ; Co. Litt. 325 a, 
 and Butler's note. See also §§ 470, 614, 
 where Littleton uses discontinuance for 
 devesting, as applied to a reversion. 
 
Discovery LAW DICTIONARY. Discretion 
 
 DISCOVERY. — § i. Discovery is where one party to an action or 
 suit obtains from another party information on oath. It is of two kinds — 
 (i) discovery by interrogatories of facts relevant to the issue in the action, 
 and within the knowledge of the party interrogated ; and (ii) discovery 
 of documents relating to the matters in question in the action, and in 
 the possession of the party. The object of the former proceeding is 
 partly to obtain information on subjects of which the interrogating party 
 is ignorant or misinformed, and partly to obtain admissions so as to save 
 the necessity of proving certain facts. For this purpose, the inter- 
 rogating party delivers to the opposite party interrogatories (q. v.), to 
 which the latter is bound to file his answer on oath. (See Answer, § i.) 
 For the purpose of obtaining discovery of documents, the party seeking 
 it issues a summons, asking that the other party may be ordered to make 
 an affidavit stating whether he has or has had in his possession any and 
 what documents relating to the matters in question in the action. The 
 proceeding is merely a preliminary to the more important one of pro- 
 duction or inspection 1 (q. v., and see Affidavit, § 3 ; Privilege ; Confidential 
 Communications) . 
 
 § 2. Sometimes an action is brought against a person for the sole 
 purpose of obtaining information to enable the plaintiff to take pro- 
 ceedings against some other person : such an action is called an action 
 for discovery, as opposed to an action in which relief is sought against 
 the defendant. 2 
 
 DISCREDIT. — § 1. To discredit a witness is to throw doubts on 
 the correctness of a statement made by him in giving evidence, either — 
 (i) by giving evidence of his general bad character for veracity, or by 
 cross-examining him on the subject (see Character, § 2) ; (ii) by showing 
 that he has on former occasions made statements inconsistent with the 
 evidence he has given relevant to the cause ; (iii) by proving miscon- 
 duct connected with the proceedings, e.g., his having been bribed by 
 one of the parties. 
 
 § 2. A party cross-examining an opponent's witness may use any of 
 these modes. A party examining his own witness cannot as a rule 
 discredit him, except collaterally, that is, by adducing evidence to show 
 that the evidence he gave was untrue in fact. But if a witness prove 
 adverse, the party calling him may use the second mode of discrediting 
 above mentioned. 3 (See Witness.) 
 
 DISCRETION— DISCRETIONARY.— Discretion is a man's own 
 judgment as to what is best in a given case, as opposed to a rule governing 
 all cases of a certain kind. Thus a trustee often has a discretion given 
 him by the settlor, as to the management or application of the trust 
 property. So a judge or Court often has a discretion in making orders 
 or imposing conditions on litigants, e.g., as to payment of costs, relaxing, 
 rules of practice, &c. Discretion, however, is "to discerne by the right 
 
 i See Rules of Court, xxxi. 3 Best on Evidence, 803 ; stats. 17 & 18 
 
 - Orr v. Diaper, 4 Ch. D. 92. Vict. c. 125 ; 28 & 29 Vict. c. 18. 
 
 279 
 
280 Disentailing Deed LAW DICTIONARY. Disparage 
 
 line of law, and not by the crooked cord of private opinion, which the 
 vulgar call discretion;" 1 and, therefore, if a judge proceeds on a wrong 
 principle in a matter within his discretion, his order may be set aside by 
 a Court of Appeal, 3 and if a trustee acts fraudulently or negligently, the 
 possession of a discretionary power will not protect him. 3 (See also 
 Delegation; Power; Trust.) 
 
 DISENTAILING DEED is an assurance by which a tenant in 
 tail bars his estate tail so as to convert it into an estate in fee, either 
 absolute or base. By the Fines and Recoveries Act, by which this mode 
 of barring entails was introduced, every tenant in tail may dispose of the 
 land for an estate in fee simple absolute, so as to defeat the rights of all 
 persons claiming under and after him : provided (i) that the disposition, 
 in the case of freehold land, is by deed enrolled in the High Court of 
 Justice, or if the land is copyhold, by surrender enrolled on the court 
 rolls of the manor, unless the estate tail is equitable, when it may be 
 barred either by surrender or by deed enrolled ; and (ii) that if there is a 
 protector under the instrument creating the entail, no disposition made 
 without his consent by the tenant in tail bars the persons entitled in 
 remainder or reversion expectant on the determination of the estate tail. 
 An ordinary disentailing deed consists of a conveyance of the land by the 
 tenant in tail to a nominee to such uses as the tenant in tail shall appoint, 
 and in default of appointment to the use of him and his heirs. 4 (See 
 Enrolment; Surrender; Protector; Fee.) 
 
 DISGAVEL. — To convert gavelkind land into ordinary freehold 
 land. Several private acts have been passed disgavelling land in Kent. 
 
 DISHONOUR. See Bill of Exchange, § 5 ; Honour. 
 
 DISMISSAL OF ACTION.— If the plaintiff in an action does not 
 deliver his statement of claim within the time during which he is bound 
 to do so, or if the plaintiff does not set down the action for trial within 
 •the proper time, the defendant may apply to the Court or a judge to 
 dismiss the action for want of prosecution, thereby putting an end to the 
 action. He may also take this step if the plaintiff fails to comply with 
 an order to answer interrogatories or produce documents. 5 
 
 DISORDERLY HOUSE is any common (i.e., public) bawdy house, 
 common gaming or betting house, or disorderly place of entertainment. 
 It is a common nuisance, and therefore a misdemeanor, to keep a dis- 
 orderly house. 6 
 
 DISPARAGE— DISPARAGEMENT.— § 1. As to disparaging 
 statements, see Defamation. 
 \ 2. Under the old law, if a tenant of land held by knight's service died leaving an 
 
 1 Co. Litt, 227 b. * Stat. 3 & 4 Will. 4, c. 74, ss. 15, 40 
 
 2 See Watson v. Rodwdl, 3 Ch. D. 380. et seq. ; Shelford, R. P. Stat. 320, 343. 
 
 3 Lewin on Trusts, 511. 6 Rules of- Court, xxix. 1, xxx., xxxvi. 
 
 6 Stephen's dim. Dig. 109. 
 
Dispauper LAW DICTIONARY. Disseisin 281 
 
 infant heir, the lord of whom the land was held was entitled to the marriage of the heir, 
 that is, to bestow him or her in marriage. (See Marriage.) It was necessary, however, 
 that the proposed marriage should be without disparagement, that is, suitable to the 
 heir ; otherwise the heir was said to be disparaged. 
 
 § 3- Disparagements were of several kinds, of which the principal were : propter vitium 
 animi, as where the proposed wife or husband was an idiot, &c. ; propter vitium 
 sanguinis (as in the case of villeins, " men of trade," &c), and propter vitium corporis, 
 by reason of some bodily defect. 1 
 
 Etymology.]— Latin : dis-, apart ; and old French, parage, lineage, rank. 2 
 
 DISPAUPER. — A person who has been admitted to sue in forma 
 pauperis {q. v.) is said to be dispaupered when that privilege is with- 
 drawn : as where it appears that he has means. 3 
 
 DISPOSITION OF THE OWNER OF TWO TENE- 
 MENTS. See Easement, § 10. 
 
 DISSEISIN "is the wrongful putting out of him that is actually 
 seised of a freehold;" 4 in other words, the act of wrongfully depriving 
 a person of the seisin of land, 5 rents, 6 or other hereditaments, as where a 
 man not having a right of entry on certain lands or tenements enters into 
 them and ousts him who has the freehold. 7 In the case of land, the 
 disseised person has both a right of entry and a right of action {q. v. 
 and Descent cast). In the case of incorporeal hereditaments, as the 
 disseisin is only so by election {infra, § 3), the disseised person may 
 either have an action for the disseisin, or he may avail himself of any 
 other remedy which the law gives him {e.g., in the case of rent, by 
 distraining). 8 
 
 § z. Equitable disseisin is where a person is wrongfully deprived of the 
 equitable seisin of land, e.g., of the rents and profits. 9 
 
 § 3. Disseisin by election is where a person alleges or admits himself By election, 
 to be disseised when he has not really been so. In former days this was 
 done by persons in order to avail themselves of the writ of assize, which 
 was a convenient remedy available only by those who had been disseised 
 of land. 10 Since the abolition of forms of action, the distinction between 
 disseisin and other modes of wrongful dispossession of land is no longer of 
 practical importance. Disseisin of incorporeal hereditaments cannot be an 
 actual dispossession, being in general nothing more than a disturbance 
 of the owner in the means of coming at or enjoying them. Disseisin of 
 an incorporeal hereditament therefore only takes place at the election of 
 the party injured, for the sake of more easily trying the right. 11 As the 
 
 1 Litt. § [09 ; Co. Litt. 80 a. § 237) ; see those titles. 
 
 * Skeat, Etym. Diet. s. v. 7 Litt. § 279. 
 
 3 Darnell's Ch. Pr. 43. 8 Ibid. $ 588. 
 
 4 Co. Litt. 277a. '" Cholmondeley v. Clinton, 2 Mer. 171 ; 
 
 5 Ibid. 153 b ; Butler's note to 266 b. 2 J. & W. at p. 166. 
 
 6 Litt. §§ 233 et seq. "There be three 10 Butler's note (1) to Co. Litt. 239 a. 
 causes of disseisin of rent service, that is to n Bl. Comm. iii. 169. 
 
 say, rescous, replevin, and enclosure" (Litt. 
 
282 
 
 Dissolution 
 
 ~LhW DICTIONARY. 
 
 Distress 
 
 remedy for a disseisin has now no advantages over other kinds of actions, 
 disseisin by election is practically obsolete. 
 
 See Abatement; Action; Deforcement; Disturbance; Intrusion; Possession; 
 Seisin. 
 
 Partnership. 
 
 Companies. 
 
 Marriage. 
 
 Foreign 
 divorce. 
 
 DISSOLUTION is the act of putting an end to a legal relation. 
 § 2. In the case of a partnership, dissolution takes place either by opera- 
 tion of law (e. g., in ordinary cases on the death or bankruptcy of one of 
 the partners), by agreement between the partners, by effluxion of time, or 
 by the order of a Court in proceedings taken for the purpose. A state of 
 things which entitles a partner to obtain an order of dissolution is called 
 a ground of dissolution : such is the insanity or misconduct of one of the 
 partners, the hopeless state of the business, or any other state of things 
 which makes it impossible to continue the partnership. 1 § 3. In the case 
 of a company incorporated under the Companies Act, 1862, dissolution 
 takes place when its affairs have been completely wound up and certain 
 formalities have been gone through, 2 or where a company has ceased to 
 carry on its business or operations. 3 § 4. A Friendly, Industrial or 
 Provident Society is dissolved either by an order of the County Court, or 
 by an instrument of dissolution setting forth the liabilities and assets of 
 the society, signed by a certain majority of the members and registered. 4 
 A Friendly Society may also be dissolved by the award of the registrar. 6 
 § 5. Other corporations may be dissolved in various ways, e.g., by sur- 
 render or forfeiture of a charter, &c. 6 
 
 § 6. The High Court, on proceedings taken in the Probate, Divorce 
 and Admiralty Division (q. v.), has power to decree the dissolution of a 
 marriage on the petition of the husband alleging adultery by the wife, or 
 on the petition of the wife alleging that the husband has committed 
 adultery and cruelty ; or adultery and desertion or certain other offences.' 
 (See Adultery ; Cruelty; Desertion; Divorce; Judicial Separation.) § 7. A 
 divorce of a foreign Court dissolving an English marriage — that is, a 
 marriage celebrated in England — will be recognized by the English 
 Courts : (a) if it was pronounced for grounds on which the marriage was 
 .liable to be dissolved in England ; 8 or (b) if the husband was at the time 
 of the marriage domiciled in the foreign country. (See Domicile ; Judg- 
 ment.) 
 
 DISTRAIN— DISTREIN.— To distrain or distrein is to seize goods 
 
 by way of distress (q. v.). 
 
 DISTRESS is the act of taking moveable property out of the posses- 
 sion of a wrongdoer, to compel the performance of an obligation, or to 
 
 1 Lindley, Partn. 234. 
 
 " Companies Act, 1862, ss. in, 143; 
 Lindley on Partn. 1489 ; In re Pinto Silver 
 liming Co., 8 Ch. D. 273 ; In re London 
 and Cal. M. I. Co., 11 Ch. D. 140. 
 
 3 Companies Act, 1880, s. 7. 
 
 4 Industrial and Provident Societies Act, 
 1876, a. 17. 
 
 5 Friendly Soc. Act, 1875, s - 2 5- 
 
 6 Steph. Comm. iii. 30. 
 
 7 20 & 21 Vict. c. 85, s. 27 ; Browne on 
 Divorce, 24; Macqueen's Husband and 
 "Wife, 203 et seq. 
 
 6 Solley's Case, Russ. & Ry. 237. 
 9 Harvey v.Farnie, 5 P. D. 153. 
 
Distress LAW DICTIONARY. Distress 
 
 28; 
 
 procure satisfaction for a wrong committed. 1 An ordinary distress is 
 effected by seizing the goods and placing them in a pound (q. v.). Some 
 goods are privileged or exempted from distress, such as things in personal 
 use or occupation at the time, instruments of husbandry and trade 
 fixtures, things in the possession of a trader but belonging to his cus- 
 tomers, things in the custody of the law (e.g., goods seized under an exe- 
 cution), &c. 
 
 " Distress " also signifies the property distrained. 
 
 A. With reference to its origin, the right to distrain is either given by 
 common law, or by statute, or created by reservation or agreement 
 between the parties. 
 
 1. § 2. The principal kind of distress given by law is that used to Distress for 
 compel payment of rent in arrear, especially by a landlord against his rent ' 
 tenant. 2 (See Rent.) § 3. A right of distress (not often exercised) is — for services, 
 given to every feudal lord (e.g., the lord of a manor) to compel his 
 
 tenants to perform their services. 3 § 4. A right of distress also exists to 
 
 enforce payment of amercements (q. v.) in certain cases. 4 § 5. "Another — on cattle 
 
 injury for which distresses may be taken, is where a man finds beasts of f e ™^ e " 
 
 a stranger wandering in his grounds, damage-feasant, that is, doing him 
 
 hurt or damage, by treading down his grass or the like, in which case the 
 
 owner of the soil may distrein them till satisfaction be made him for the 
 
 injury he has thereby sustained." 5 § 6. Distress also exists in name, 
 
 though it is practically obsolete, as a mode of compelling obedience to 
 
 the orders of courts of justice, e.g., to compel the attendance of jurors. 
 
 (See Distringas.) 
 
 2. § 7. A statutory or statute-distress is given as a remedy for several Statutory 
 duties and penalties inflicted by special acts of parliament, such as assess- dlstress - 
 ments made by commissioners of sewers, or for the relief of the poor. 5 
 
 (See Warrant.) 
 
 3. § 8. A remedy by distress, analogous to the ordinary distress for Power of dis- 
 rent, is sometimes created by agreement between the parties to secure tress . ( con " 
 the performance of an obligation : thus an annuity deed may include a 
 conveyance of land to a trustee, with a power of distress whenever the 
 
 annuity is in arrear. 6 
 
 B. With reference to the extent of the remedy, distresses are of three 
 kinds: 1. § 9. Formerly every distress was a mere pledge or security, Simple 
 and this is still so in the case of distress of cattle damage-feasant, distress dlstress - 
 for services, &c, which merely entitle the distrainor to retain the pro- 
 perty until satisfaction is made. (See Lien.) 2. § 10. Where the distress Distress in- 
 is for fealty or suit of Court, or to compel the attendance of jurors, and in finite - 
 
 1 Bl. Comm. iii. 6 ; Steph. Comm. iii. 3 " If an abbot or prior holds of his lord 
 
 245. by a certaine divine service . . . . , as to 
 
 - Co. Litt. 47a, 57b ; Woodfall's Land- sing a mass everie Friday in the weeke 
 
 lord and Tenant, 374. As to the protec , in this case, if such divine service 
 
 tion of goods belonging to lodgers, see be not done, the lord may distreyne." 
 
 stat. 34 & 35 Vict. c. 79. See also the Litt. § 137 (see Tenure). For other kinds 
 
 stat. 8 Anne, c. 14, which prevents a of obsolete rights of distress, see Co. Litt. 
 
 sheriff or execution creditor from removing 169 b. 
 
 goods from land occupied by the execution 4 Bl. Comm. iii. 7. 
 
 debtor without first paying the landlord all 5 Ibid. 
 
 arrears of rent. G Elphins. Conv. 
 
284 
 
 Distribution 
 
 LAW DICTIONARY. 
 
 District Registries 
 
 Distress and 
 sale. 
 
 Juridical 
 nature of 
 distress. 
 
 other cases where it is the only remedy and merely gives the right of 
 detaining the goods, it is called a distress infinite, because it has no 
 bounds with regard to its quantity and may be repeated from time to 
 time, until the stubbornness of the party is conquered. 1 3. §11. In the 
 case of distress for rent, for a crown debt and some other cases, if the 
 amount is not paid within a certain time the distrainor may sell the pro- 
 perty distrained and satisfy the debt out of the proceeds. 3 
 
 § 12. Distress is an extra-judicial remedy. (See Remedy?) 
 
 See Replevin ; Rescue ; Levant and Couchant. 
 
 DISTRIBUTION.— § 1. By the stat. 22 & 23 Car. 2, c. 10, com- 
 monly called the Statute of Distributions, when the administrator of a 
 deceased intestate has paid the expenses, debts, &c, he is directed to 
 make "just and equal distribution of what remaineth clear amongst the 
 wife and children or children's children, if any such be, or otherwise to 
 the next of kindred to the dead person in equal degree," according to the 
 rules contained in the statute ; namely, if there is a widow and children, 
 one-third is to go to the wife and the rest to the children in equal shares ; 
 if there are no children, then one-half is to go to the wife and the other 
 half to the next of kin ; and if there is no wife, then the whole property is 
 divided among the children or next of kin. 3 
 
 § 2. Formerly customs of distribution prevailed in certain places {e.g., 
 the City of London), but they have been abolished. 4 (See Next of Kin ; 
 Representation; Per Capita?) 
 
 High Court. 
 
 Proceedings 
 
 DISTRICT REGISTRIES.— § 1. By the Judicature Act, 1873, 
 provision is made for the establishment of district registries of the High 
 Court of Justice, and for the appointment of district registrars. 5 District 
 registries have accordingly been established in the principal country 
 towns of England and Wales. 6 
 
 § 2. An action in the High Court proceeds in a district registry when 
 the plaintiff has issued the writ in that registry and all the defendants 
 have appeared there. A defendant is only bound to appear in a district 
 registry if he either resides or carries on business in the district ; other- 
 wise he has the option of appearing in London. 7 When an action pro- 
 ceeds in a district registry, all the proceedings in the action down to and 
 including final judgment, and the subsequent proceedings necessary to 
 enforce it (including the issue of writs of execution, garnishee and 
 charging orders) are taken in the district registry. 8 The trial or hearing 
 of the action must take place in the same way as if the action had been 
 instituted in London, that is, before a judge of the High Court in 
 
 1 3 Bl. Comm. 231 : Elton, Copyholds, 
 178. 
 3 3 Bl. Comm. 14. 
 
 3 Williams on Executors, 1372. 
 
 4 Stat. 19 & 20 Vict. c. 94; Williams, 
 141 1 . 
 
 5 Sect. 60. 
 
 6 Order in Council, August, 1875. 
 
 7 Rules of Court, xii. 2 et seq. The de- 
 fendant may, however, in certain cases, 
 remove the action from the district registry 
 into the High Court. Jud. Act, 1873, 
 s. 65 ; Rules of Court, xxxv. 1 1 . 
 
 8 Jud. Act, 1873, s. 64 ; Rules of Court, 
 xxxv. (including Amended Rules of June, 
 1876, April and May, 1880), 
 
District Registries law dictionary. Distringas 285 
 
 London or at the assizes, with or without a jury, according to the practice 
 applicable to the particular case. 1 The district registrar may however 
 enter judgment or make an order for an account under Order XV. either 
 by consent of the parties or by reason of the defendant's default. 2 
 
 § 3. The district registrar exercises most of the functions of a judge at Jurisdiction of 
 chambers ; an appeal lies from him to a judge of the High Court sitting registrar, 
 in chambers. 3 
 
 § 4. The district registries are therefore in effect local branches of the 
 Central Office and Judges' Chambers of the High Court, and are under 
 the control of the Court accordingly. 4 
 
 § 5. District registries for the registration of the title to land may be District land 
 formed under the Land Transfer Act, 1875, s. 1 18. This part of the act registries, 
 does not seem to have been yet put in force. 
 
 § 6. As to the district registries of the Probate Division of the High Probate. 
 Court, see Registry (sub-division Probate and Divorce Registries). 
 
 DISTRINGAS is a writ so called from its commanding the sheriff 
 to distrain on a person for a certain purpose. The following are the 
 principal instances in which it is used, the old distringas to compel 
 appearance, the distringas juratores, and other varieties of the writ, having 
 been abolished. 5 
 
 § 2. A judgment for the delivery of any property other than land or Distringas for 
 money (e. g., a chattel) may be enforced by a writ which authorizes the chattel 7 
 sheriff to distrain the defendant by all his lands and chattels until he 
 delivers it up. 6 
 
 § 3. Where a writ of fieri facias has been sued out, and the sheriff, Distringas 
 
 after returning that he has levied but that the goods remain in his hands nn P e * Vlce " 
 
 . . comitem. 
 
 for want of buyers, goes out of office, the execution creditor, instead of 
 
 suing out a venditioni exponas {q. v.), may sue out a writ called a dis- 
 tringas nuper vicecomitem ("that you distrain the late sheriff "), directed 
 to the present sheriff, commanding him to distrain the late sheriff to 
 compel him to sell the goods. 7 
 
 § 4. A writ of distringas, directed to the coroner, may be issued Distringas 
 against a sheriff if he neglects to execute a writ of venditioni exponas. 8 vlce comi era " 
 
 § 5. A judgment against a corporation may be enforced by writ of Against cor- 
 distringas, commanding the sheriff to distrain its lands and tenements, P oratlon - 
 goods and chattels, so that it may not possess them until the Court shall 
 make order to the contrary. 9 (See Sequestration.) 
 
 § 6. Distringas is also applicable to compel a person, body of persons To answer 
 or corporation, against whom an indictment for misdemeanor or on 1 a ln lc men • 
 penal statute has been found, to appear and answer the charge. 10 
 
 1 Irlam v. Mam, 2 Ch. D. 608. Common Law Froc. Act. 1854, s. 78; 
 
 2 Order xxxv. 1 a. Steph. Comm. iii. 582. 
 
 3 fbid. 4 et seq. ' Archbold's Pr. 585 ; Smith's Action, 
 • Ibid. 9. 197 ; Rules of April, 1880, form F. 12. 
 
 5 Common Law Procedure Act, 1852. 8 Archbold, 584. 
 
 6 Rules of Court, xlix., adopting the 9 Daniell's Ch. Pr. 931, 401. 
 former practice in actions of detinue; 10 Archbold, Crim. PI. 81. 
 
286 Distringas LAW dictionary. Disturbance 
 
 V> 
 
 Distringas on § 7. The commonest species of distringas, however, was that formerly 
 St0ck " issued by the Court of Exchequer, then by the Court of Chancery, and 
 
 lastly by the High Court of Justice, to prevent a public company (most 
 commonly the Bank of England) from permitting the transfer of a sum 
 of stock in their books, or from paying the dividends on it, without 
 previously giving notice to the person who had obtained the writ or 
 " put on the distringas." The proceedings were to a great extent of a 
 fictitious character, and have been recently simplified. Under the 
 present practice no writ is issued, and in lieu of it a notice is given to 
 the Bank or other company to stop the transfer of stock or payment of 
 dividends : this notice is filed in the Central Office, with an affidavit 
 stating that the person giving it is beneficially interested in the stock ; 
 an office copy of the affidavit and a sealed copy of the notice are served 
 on the Bank or company. 1 § 8. The proceeding is commonly used to 
 prevent unauthorized or fraudulent dealings with stock by the person in 
 whose name it is standing, e.g., a trustee. As soon as the Bank receive a 
 request from that person to permit a dealing with the stock, they give 
 notice to the person who has served the distringas notice, and if he does 
 not obtain an order or injunction from a Court to restrain the dealing 
 within eight days from the stockholder's request, the Bank are compelled 
 to allow the stockholder to deal with the stock. (See Stop Order; 
 Restraining Order.) 
 
 DISTURBANCE. — I. § 1. In the law of incorporeal hereditaments, 
 disturbance is where a man infringes a right of easement, common, 
 profit k prender, franchise or similar right ; e. g., by obstructing an 
 ancient light. 2 The rights of the aggrieved person are the same as in a 
 case of private nuisance, namely, either by abatement, action for damages, 
 or injunction. 3 Where the disturbance consists in refusing to pay toll for 
 a market, ferry, &c, or in wrongfully putting beasts on a common, the 
 person injured also has a right of distress. 4 
 Disturbance of § 2 . To the same class of injuries belongs disturbance of patronage, or 
 pa ronage. ^ e wrongful hindering or obstruction of a patron in the presentation of 
 his clerk to a benefice : for this an action of quare impedit lies against 
 the disturber, who may be the bishop alone, or a pretended patron and 
 his clerk, or all three. 5 (See Usurpation?) 
 Disturbance II. § 3. In the law oftenure, disturbance is where a stranger, by 
 
 11 '■""'"■ menaces, force, persuasion or otherwise, causes a tenant to leave his 
 tenancy : this disturbance of tenure is an injury to the lord for which an 
 action will lie. 6 
 Public dis- ni. § 4. As to public disturbances, see Affray; Brawling; Riot; 
 
 Unlawful Assembly ; also stat. 24 & 25 Vict. c. 100, s. 36, et seq. 
 
 1 Stat, 5 Vict. c. J ; Rules of Court,, 3 Ibid. 643. 
 xlvi. 2 a et seq (April, 1880). In this rule l Steph. Comm. iii. 411. 
 
 the notice is simply called a " notice as to 6 Ibid. 414; Phill. Eccl. Law, 445; 
 
 stock" ; in practice, however, it is still see Jus Paironatfts. 
 called a distringas. 6 Steph. Comm. iii. 414. 
 
 1 Gale on Easements, 633 et seq. 
 
Diversity law dictionary. Divisional Courts 2S7 
 
 DIVERSITY. See Collateral, § 5. 
 
 DIVES. — In the practice of the Chancery Division, "dives costs" are 
 costs on the ordinary scale, as opposed to the costs formerly allowed to a 
 successful pauper suing or defending in forma pauperis, and which con- 
 sisted only of his costs out of pocket. 1 (See In Forma Pauperis.) 
 
 Etymology.]— Latin : dives = a rich man. 
 
 DIVEST. — To divest is to take away from a person an estate or 
 interest which has already vested in him. The term is generally used 
 with reference to gifts by will. Thus where a testator gives property to 
 A. for life, and after his death to B., and then directs that on a certain 
 event the property shall go to C, then B. takes a vested estate or interest 
 subject to being divested on the happening of the event. 2 The rule is 
 that if the substituted legatee or devisee (C.) cannot take, then the 
 original estate becomes absolute. Thus where a testator gave property 
 to A. for her life, and after her death to her heirs, &c. ; but in case A. 
 should marry and have no child, then the property to belong to B. ; A. 
 married and had no child, and B. died in her lifetime without issue : it 
 was held that A.'s estate became absolute. 3 (See Defeasible.) 
 
 DIVISION. See High Court of Justice; Court of Appeal. 
 
 DIVISIONAL COURTS are Courts consisting of two or (in special 
 cases) more judges of the High Court of Justice, sitting to transact certain 
 kinds of business which cannot be disposed of by one judge. When the 
 High Court was first formed it was intended that the Divisional Courts 
 should take the place of the sittings in banc of the old Common Law 
 Courts (see Banc) ;* but by the Appellate Jurisdiction Act, 1876, it was 
 enacted that all proceedings in an action subsequent to the hearing or 
 trial should, so far as is practicable and convenient, be taken before the 
 judge before whom the trial or hearing took place. The business trans- 
 acted before Divisional Courts consists principally of Crown, Revenue 
 and Election Petition business, appeals from County Courts, appeals from 
 chambers in the Common Law Divisions, and applications for a new trial 
 in the same divisions where the action has been tried with a jury. 5 
 
 § 2. Divisional Courts must not be confounded with the Divisions of 
 the High Court, which are quite different things. The present practice 
 is for one Divisional Court to sit for business arising in all the three 
 Common Law Divisions. Divisional Courts may also be held in the 
 Chancery and Probate, Divorce and Admiralty Divisions, 6 but in practice 
 this is never done. 
 
 1 Daniell's Ch. Pr. 43 ; Cons. Old. 3 Jackson v. Noble, 2 Kee. 590; Jarman 
 xl. 5. on Wills, 823. 
 
 2 Whitter wBremridge, L. R., 2 Eq. 4 Jud. Act, 1873, s. 41. 
 736; see In re Peek's Trusts, L. R., 16 6 Rules of Court, Ivii. a. 
 Eq. 221. ° Jud. Act, 1873, ss. 43, 44. 
 
288 Divorce LAW dictionary. Docket 
 
 DIVORCE was a term used by the Ecclesiastical Courts to signify an 
 interference by them with the relation of husband and wife. It was of 
 two kinds, — a divorce a mensd etthoro ("from bed and board"), granted in 
 cases where the husband or wife had been guilty of such conduct as to 
 make conjugal intercourse impossible (as in the case of adultery, cruelty, 
 &c.) ;* and a divorce a vinculo matrimonii (" from the bond of marriage"), 
 granted where the marriage was voidable or void ab initio (as in the case 
 of the parties being within the prohibited degrees, or one of them having 
 been already marriedj or being impotent). 3 The former is now represented 
 by judicial separation, the latter by a decree of nullity of marriage (q. v. ; 
 and see Disability, § 4). 
 
 The term " divorce" is now applied both to decrees of nullity and 
 decrees of dissolution of marriage. (See Dissolution, § 6.) 
 
 , DIVORCE COURT. See Court for Divorce and Matrimonial Causes ; 
 Probate, Divorce and Admiralty Division. 
 
 DOCK "WARRANT is a document issued by a dock company or 
 dock owner stating that certain goods therein mentioned are deliverable 
 to a person therein named or to his assigns by indorsement. Dock 
 warrants in form resemble bills of lading (q. v.), but they differ from them 
 in this, that when goods are at sea a purchaser who takes a bill of lading 
 has done all that is possible to obtain possession of them, ^vhile a pur- 
 chaser who takes a dock warrant can at any moment lodge it with the dock 
 company and so take actual or constructive possession of the goods. It 
 therefore seems that the indorsement of a dock warrant does not at com- 
 mon law pass the ownership in the goods, or divest the vendor's lien 
 if the goods have not been paid for, but merely operates as a con- 
 structive delivery of them as between the indorser and indorsee, until the 
 dock company has " attorned" to the indorsee by agreeing to hold the 
 goods for him. 3 (See Delivery Order; Document of Title.) § 2. Dock 
 warrants, however, are included in the Factors Acts among the " docu- 
 ments of title" the possession of which gives a factor power to confer a 
 good title to the goods on persons dealing with him in good faith. 1 (See 
 Factors Acts.) 
 
 DOCKET, or docquet (from dock, to cut), is an epitome or abstract of a judgment, 
 decree, order, &c. 
 Enrolment. § 2 - In Chancery practice, a docket was formerly used for the purpose of enrolling a 
 
 decree or order of tbe Court (see Enrolment). It consisted of a statement of the filing 
 of the bill, petition, &c. and the other pleadings or proceedings ; a recital of the decree 
 made on the hearing ; and the adjudication or adjudicatory part {q. v.), which set forth 
 the mandatory part of the decree. It was certified by the Clerk of Records and "Writs, 
 signed by the Lord Chancellor, engrossed on parchment in the form of a continuous roll, 
 and deposited at the Public Record Office, when it became a record 5 (q. v.). 
 
 1 Gibson's Codex, 445, a. (0) ; Browne borough v. L. &° St. K. Docks Co., 3 C. P. 
 on Divorce, 29. D. 373, 450. 
 
 2 Gibson, 446, n. (c) ; Co. Litt. 235 a. 4 Benjamin, 668. 
 
 3 Benjamin on Sales, 573, 674 ; Atten- 6 Daniell, Ch. Pr. 882 ; Braith. Pr. 446. 
 
•Doctors Commons law dictionary. Document 289 
 
 § 3. By stat. 4 & 5 Will. & Mary, c. 20, an alphabetical index or docket of judgments Judgment, 
 was directed to be kept by the Clerk of the Dockets in each of the superior Courts of 
 common law, in order to give notice to intending purchasers of land from judgment 
 debtors, because the judgment bound the land of the debtor from its date, even if the 
 land had been sold before execution was issued. These dockets were closed by stat. 2 & 
 3 Vict. c. 11, the provisions for registration of judgments (y. v.) having made them 
 unnecessary. l 
 
 DOCTORS COMMONS is the popular name for the buildings in 
 which the Ecclesiastical and Admiralty Courts, and the College of Advo- 
 cates practising in those Courts, were formerly held. The Courts and 
 College were built in 1567, and the College was incorporated in 1786, under 
 the title of " The College of Doctors of Law exercent in the Ecclesiastical 
 and Admiralty Courts," 2 whence the popular name. (See Advocate.) 
 
 DOCUMENT. — § 1. A document is any solid substance upon which 
 matter has been expressed or described by conventional signs, with the 
 intention of recording or transmitting that matter. Thus a piece of 
 paper on which words are written, lithographed, printed or stamped, or 
 expressed by arbitrary signs or ciphers, is a document ; and so is a tally 
 or piece of wood with notches to represent figures or amounts. 3 
 
 § 2. In the law of evidence, documents are either public or private. Public. 
 A public document is one recording facts which have been inquired into 
 or taken notice of for the benefit of the public by an agent authorized 
 and accredited for the purpose. Such are acts of parliament, judgments 
 and proceedings of Courts, records generally, registers of births, deaths 
 and marriages, and other registers {q. v.)* § 3. Public documents are 
 admissible as evidence of the truth of the facts stated in them without 
 being verified on oath, some being conclusive on all the world, while 
 others (and the greater number) merely afford prima facie evidence ; that 
 is, hold good until they are disproved. 5 Hence public documents are 
 sometimes said to prove themselves. 6 It is, however, in many cases 
 unnecessary to produce the original of a public document, many acts of 
 parliament having provided for the proof of such documents by authenti- 
 cated or official copies : thus a proclamation by the crown or privy 
 council may be proved by the production of a copy of the Gazette con- 
 taining it :' as to copies under stat. 14 & 15 Vict. c. 99, see Certified Copy; 
 also Copy ; Exemplification. 
 
 § 4. Private documents include deeds, wills, agreements and the like. Private. 
 
 1 Williams, R. P. 85. , by a public officer. I understand a public 
 
 " Phillimore, Eccl. Law, 1 2 18. document ... to mean a document that 
 
 3 Best on Evidence, 300. is made for the purpose of the public 
 
 * Ibid. 304. " It should be a public in- making use of it, and being able to refer to 
 
 quiry, a public document, and made by a it. It is meant to be where there is a 
 
 public officer. I do not think that ' pub- judicial, or quasi-judicial, duty to inquire." 
 
 lie' ... is to be taken in the sense of Per Lord Blackburn, Sturla v. Freccia, 
 
 meaning the whole world. I think an 5 App. Ca. at p. 643. 
 
 entry in the books of a manor is public in 5 Best, 305. 
 
 the sense that it concerns all the people 6 Daniell, Ch. Pr. 757. 
 
 interested in the manor. . . . But it must ' Documentary Evidence Act, 1868 ; 
 
 be a public document, and it must be made Best, 622. 
 
290 Doderidge law dictionary. Dolus dans Locum 
 
 "& 
 
 of title. 
 
 Of course when a will has been proved, it becomes a public document. 
 (See Probate!) As to private documents which prove themselves, see 
 Ancient Documents. 
 Document § s- A document of title is a document which enables the possessor to 
 
 deal with the property described in it as if he were the owner. In this 
 way a bill of lading represents the goods while they are at sea ; and by it, 
 when the goods arrive at the port of destination, the possession of the 
 goods may be obtained, 1 either by the person to whom the bill of lading 
 was originally given, or by a person to whom he has transferred it, which 
 he may do absolutely or by way of charge, &c. Some documents of title 
 (as in the case of a bill of lading) pass the ownership of the goods repre- 
 sented by them ; while others, such as delivery orders and dock warrants 
 {q. v.), are mere authorities to obtain delivery of them. 8 (See Negotiable.) 
 § 6. As to the discovery and production of documents, see those titles. 
 
 DODERIDGE. — John Doderidge was born in 1555, was appointed 
 justice of the King's Bench in 1612, and died in 1628. 3 The work on con- 
 veyancing, known as " Sheppard's Touchstone of Common Assurances," 
 is generally attributed to him. 4 
 
 DOLE. — § 1. A dole is a share in waste or common land. 
 
 § 2. Thus, open meadows are frequently divided into allotments called 
 doles or lots, the ownership of which is shifted among the whole body of 
 proprietors in yearly rotation, determined by lot or similar methods ; s 
 hence such fields are sometimes called dole-meadows. (See Open Fields ; 
 Shack ; Common, § 7.) 
 
 § 3. Sometimes the right to take the whole of the turf from a given 
 piece of land is vested in a number of persons, who may either have 
 "doles," i.e., separate portions of turf-land allotted to them, or take the 
 turf from any part of the land. Such a " dole," although similar to a 
 common of turbary (see Common, § 13), is not a common, but an interest 
 in land. 6 
 
 § 4. Under the customs of certain mining districts, wastes lands are 
 frequently divided into doles (called "doles of lead," "doles of tin," &c), 
 ■each of which is worked by a separate miner' (see Tinbounding) ; these 
 doles also are interests in land. 8 
 
 Etymology.] — Anglo-Saxon : ddl, ddl, a portion. 9 
 
 DOLUS DANS LOCUM CONTRACTUI,— literally, "fraud or 
 deceit giving occasion for the contract,"— is applied to a false representa- 
 tion (q.v.) when it is such as to induce the contract. The phrase is com- 
 monly used in expressing the rule that a contract is not voidable for 
 misrepresentation unless the representation was dans locum contractui, that 
 
 1 Gunn v. Bolckow, Vaughan 6 s Co., " Elton, Comm. 31 ; Blount's Tenures; 
 L. R., 10 Ch. at p. 502. Blount, Diet. v. Dole. 
 
 2 See Benjamin on Sales, 673. fl Elton, 103. 
 
 3 Foss, Biog. Diet. ' Blount. 
 * Milliard's Preface to the Touchstone. s Elton, 116. 
 
 9 Skeat, Etym. Diet. 
 
Domat LAW dictionary. Domicile 
 
 is, unless it induced the misled party to enter into the contract. There- 
 fore if the person to whom the false representation was made did not rely 
 on it, but made further inquiries, he could not afterwards make use of it 
 to avoid the contract. 1 
 
 DOMAT.— Jean Domat was born at Clermont in 1625 and died in 
 Paris in 1695. His chief work is Les Loix civiles dans lew ordre naturel. 
 He also wrote Le Droit public and Legum Delectus? 
 
 DOMICILE is the legal home of a person, or that place where the 
 law presumes that he has the intention of permanently residing, although 
 he may be absent from it or even never have been there 3 {infra, § 4). 
 § 2. The question where a person is domiciled may be important, because 
 it is by the law of that place that his civil status, so far as it is indepen- 
 dent of his voluntary acts, is regulated. Thus the question whether one 
 person can contract a legal marriage with another is decided, not by the 
 law of the country where he happens to go through the ceremony, but by 
 the law of his domicile; 4 so the legitimacy and majority of a child 
 (except with reference to his capacity of inheriting real estate 5 ) depend on 
 the law of its parents' domicile : ' and the manner in which personal 
 estate devolves on the death of the owner is regulated not by the law of 
 the country where he dies, nor by that of the place where the property is, 
 but by the law of his domicile. 7 Real estate is regulated by the lex loci 
 reisitcB {q. v.). Formerly, also, a will of personal estate had to be made 
 according to the formalities required by the law of the country where the 
 testator was domiciled at the time of his decease ; but this rule has been 
 abolished as to wills made after the 6th August, 1861, and it is now suffi- 
 cient if a will made out of the United Kingdom by a British subject was 
 made according to the forms required either by the law of the place 
 where it was made, or by the law of his domicile at the time, or by the 
 law of his domicile of origin. 8 
 
 § 3. Companies are also sometimes said to have domiciles when their Companies. 
 operations are carried on in one country and their administration or 
 direction in another : thus, a company formed in England to construct a 
 railway in Germany, and having its principal seat of administration here, 
 would be said to be domiciled in England. 9 (See Resident; Non-Resident. ,) 
 
 1 Attwood v. Small, 6 CI. & F. at p. Harvie v. Farnie, 5 P. D. 153. 
 
 444. 6 Doe d. Birtwhistle v. Vardett, 5 B. & 
 
 2 Holtz. Encycl. C. 438 ; see 2 Bl. Comm. 248, n. (11). 
 
 3 See Westlake's Priv. Int. Law, 28, 6 See Skottowe v. Young, L. R., nEq. 
 and the various definitions of domicile 474; In re Hellermann's Will, L. R., 
 quoted in Phillimore, ch. ii. They gene- 2 Eq. 363. 
 
 rally err in being applicable only to domi- ' Jarman on Wills, p. 2, vol. i. (4th ed.). 
 
 cile of choice (infra, §§ 7, 13). 8 Williams, P. P. 365; stat. 24 & 25 
 
 4 Sottomayer v. De Barros, 3 P. D. 1 ; Vict. c. 1 14. 
 
 Niboyet v. Niboyet, 4 P. D. I. But where • See Savigny, Syst. viii. 65; Buenos 
 
 the parties have different domiciles, see Ayres, &c. Rati. Co. v. Northern Rail. Co. 
 
 Sottomayer v. De Barros, 5 P. D. 94 ; 2 Q. B. D. 210. 
 
 U 2 
 
 291 
 
292 
 
 Domicile 
 
 LAW DICTIONARY. 
 
 Domicile 
 
 Dorhicile of 
 origin. 
 
 Necessary 
 domicile. 
 
 Domicile of 
 choice. 
 
 Principal 
 domicile. 
 
 Domicile is of three kinds : — 
 
 (i.) §4. The domicile of origin or birth (natural domicile) 1 is that 
 which a child receives from its parents at its birth. Every person pre- 
 serves his domicile of origin until he acquires another domicile, and on 
 his abandoning or losing an acquired domicile, his domicile of origin 
 revives. Thus, if a husband and wife domiciled in England take a voyage 
 to India, and a child is born to them on the voyage, or in India before 
 they acquire a domicile there, its domicile is English ; 2 if the child grows 
 up and settles in India he acquires an Indian domicile {infra, § 8) ; if he 
 leaves India with the intention of settling permanently in America, he 
 loses his Indian domicile, and his English domicile revives, so that if 
 he dies before reaching America the succession to his personal property 
 will be regulated by English law. 3 
 
 (ii.) § 5. Domicile by operation of law (necessary domicile) is that 
 which attaches to a person independently of his or her will, and without 
 reference to birth, residence or other facts. § 6. Thus the domicile of 
 an infant follows that of his father, so that if the father changes his domi- 
 cile the infant's domicile ipso facto changes too. 4 So the domicile of a 
 wife follows that of her husband. 5 
 
 (iii.) § 7. Domicile of choice arises where a person having the power 
 of changing his domicile voluntarily abandons his existing domicile and 
 settles in another country with the intention of permanently residing 
 there (animo manendi). Questions of change of domicile are pro- 
 verbially difficult to determine, owing to the ambiguity of ordinary 
 conduct : thus a person may have lived many years abroad without having 
 acquired a foreign domicile if it appears that his reason for doing so was 
 a desire to avoid his creditors or the like. 7 So an ambassador or other 
 public officer does not acquire a domicile in the country where he resides 
 as a matter of duty. 
 
 § 8. Some writers affirm that a person may have two domiciles, one of 
 them being called the principal domicile. 8 The doctrine seems contrary 
 to the principles of English law, 9 except in this sense, that a person may be 
 
 1 As to the phrase domicilium originis, 
 see infra, \ 9. 
 
 1 Somervillev.Somerville, 5"Vesey, 749. 
 
 3 Udny v. Udny, L. R., I Sc. App. 441. 
 
 1 As to whether the mother or guardian 
 of an infant whose father is dead can influ- 
 ence his domicile, see Phillimore, 37. 
 
 5 As to the domicile of a wife deserted 
 or judicially separated from her husband, 
 see Le Sueur v. Le Sueur, 1 Prob. D. 139. 
 As to the domicile of a widow, see Phill. 
 
 27- 
 
 6 Lord v. Colvin, 4 Drew. 366. By stat. 
 24 & 25 Vict. c. 121, the crown is em- 
 powered to enter into conventions with any 
 foreign state to prevent British subjects 
 from acquiring a domicile in such state un- 
 less they have resided there for one year 
 before their death, and have deposited a 
 declaration of their intention to become 
 domiciled there (Williams, P. P. 366). It 
 is believed that no such convention has yet 
 
 been entered into, and that the act is 
 therefore inoperative. 
 
 7 "Although residence may be some 
 small primil facie proof of domicile, it is by 
 no means to be inferred from the fact of 
 residence that domicile results, even al- 
 though you do not find that the party had 
 any other residence in existence or in con- 
 templation." Bell v. Kennedy, L. R., 
 1 Sc. App. p. 321. 
 
 8 See Phillimore, ch. iii. 
 
 9 See Udny v. Udny, supra. The error 
 seems to have arisen partly from a misap- 
 prehension of the meaning of domicilium 
 in Roman Law (infra, \ 9), partly from a 
 confusion between domicile and nation- 
 ality (q. v.). For other points as to domi- 
 cile, see Piatt v. A. G. of New South 
 Wales, 3 App. Ca. 336 ; Hamilton v. 
 Dallas, L. R., 1 Ch. D. 257, where it was 
 decided that the provisions of the Code 
 Napoleon, § 13, requiring the authorization 
 
Dominant LAW DICTIONARY. Dominium 
 
 domiciled in one place according to the law of one country, and domiciled 
 in another place according to the law of another country. Thus the fact 
 of a Frenchman having resided in England for a number of years may be 
 sufficient to give him an English domicile according to English law, and 
 yet not sufficient to divest him of his French domicile according to 
 French law. 
 
 Etymology and History.]— § 9. Latin : domicilium, from domus, a house or 
 home, and colore, to inhabit. In Roman law there was no opportunity for questions of 
 domicile (in our sense of the word) to arise, because there was one system of law for the 
 whole of the civilized world. The empire was divided into municipalities or local self- 
 governed districts [civitates or respublica), all subject to the jus commune or imperial 
 law, but having peculiar constitutions, jurisdictions and legislatures. Every subject of 
 the empire was a member of at least one of these municipalities, either by origo, which 
 was the case when he had been born, adopted or manumitted in it, or by domicilium? 
 which was the case when he voluntarily chose the municipality as the chief place of his 
 business and pleasure. 2 Domicilium, therefore, was merely a peculiar mode of becoming 
 a member of a municipality, with its accompanying incidents of burdens and liabilities ; 
 consequently a person could at the same time have an origo in one municipality and a 
 domicilium in another or in several others, 3 just as a person at the present day may be 
 rated in respect of several parishes. Many modem writers seem to suppose that the 
 Roman domicilium is exactly equivalent to our "domicile," and quote the definitions 
 and principles of the Roman law as authorities on the subject. 4 The same ignorance 
 has given rise to the barbarous expression domicilium originis, which purports to be the 
 equivalent for " domicile of origin" in Roman law, where it would have been an impos- 
 sible combination, domicilium and origo being opposed to one another. 5 (See Nation- 
 ality ; Residence • Lex Loci.) 
 
 DOMINANT. See Easement. 
 
 DOMINIUM is equivalent to ownership (q. v.). The term dominium 
 directum (or direct dominion), i. <?., the nominal or bare right of ownership 
 remaining in an owner who has granted the exclusive right of enjoyment 
 and of limited or unlimited disposition over the thing to another person, 
 
 of the French government as the condition Cochin's argument in the case of the Mar- 
 
 for the enjoyment of full civil rights by a quis d'Hautefort, CEuvres, t. 3, p. 327, 
 
 foreigner resident in that country, do not cited by Phillimore, Domicil, 15, n. (c). 
 prevent the acquisition, by simple residence See also Le Sueur v. Le Sueur (1 Prob. 
 
 cum animo manendi, of a " de facto domi- D. 139), where the expressions "bond fide 
 
 cile" governing the devolution of his per- domicil " and " matrimonial domicil " are 
 
 sonal property. By this seems to be used. What these expressions mean ii not 
 
 meant, not that a person may have a domi- clear, but from the reference to Manning 
 
 cile de facto in one country, and one de v. Manning (L. R., 2 P. & D. 223) it 
 
 jure in another, but that he may acquire would seem that "domicil" is used in the 
 
 a domicile without thereby acquiring the sense of "residence" {q. v.). 
 enjoyment of all civil rights (in other 1 Cod. X. 39, 7 ; Dig. L. i. I. 
 
 words, an imperfect domicile) in one coun- 2 Ibid. Dig. L. i. 27, § 1 ; L. 16, 203. 
 
 try, thus altogether losing his former domi- 3 The whole subject is exhaustively 
 
 cile in another. The expression "de facto treated by Savigny, System, viii. §§ 350 — . 
 
 domicile," however, is used by French 359 ; Savigny on Priv. Inter. Law, 42 et 
 
 jurists to denote one of two domiciles. seq. 
 
 " Si 1'on pouvoit avoir deux domiciles, ce * See especially Story, Confl. of Laws, 
 
 seroit par rapport a des objets tout dif- The possibility of a Roman having several 
 
 ferens ; ainsi I'un pourroit &tre un domicile domicilia is quoted as an argument for the 
 
 de fait qui influeroit sur tout ce qui regarde existence of the same rule in English law 
 
 directement la personne domiciliee; 1'autre {supra, § 8). 
 un domicile de droit et de volonte, qui 5 Savigny, viii. 105. 
 
 decideroit du sort de la succession." 
 
 293 
 
294 Dominus Litis LAW DICTIONARY. Donee 
 
 and dominium utile (or beneficial dominion), i. e., the practical right of 
 enjoyment and disposition thus vested in the grantee, were invented by the 
 glossators to express the relation between the dominus and emphyteuta of 
 the Roman law, which allowed the latter a so-called utilis in rem actio, 
 while the dominus retained the rei vindicatio directa. The terms are also 
 applied to the interests of the lord and the tenant under the feudal 
 system 1 {q. v.), and to the legal and equitable interests in property recog- 
 nized by the rules of common law and of equity respectively. (See Estate ; 
 Interest.} 
 
 DOMINUS LITIS—" master of the suit"— is a person who has con- 
 trol over an action or other judicial proceeding, and can dispose of it as 
 he thinks fit. Thus, where one of several actions has been selected as a 
 test action, the plaintiff in that action is nevertheless dominus litis, and 
 can allow it to be dismissed, or judgment to go by default 3 (See Con- 
 solidation, § z.) A solicitor or counsel employed by a person to conduct 
 a suit for him is sometimes said to be dominus litis for certain purposes, 
 e.g., to compromise, withdraw a jury, &c. without the client's instructions, 
 and in some case even against them. 3 
 
 DONATIO MORTIS CAUSA is a gift of personal property on a 
 death-bed. It must be made iii contemplation of the donor's death, to 
 take effect on his death by his existing illness, and it must be completed 
 by delivery of the thing at the time by the donor or by his direction 
 to the donee. Hence things, the property of which does not pass by 
 delivery (such as stock), cannot be the subject of a donatio mortis causa. 
 A donatio mortis causi resembles a legacy in being subject to legacy 
 duty and to the debts of the deceased. 4 
 
 DONATIVE is an advowson or spiritual preferment, be it church, 
 chapel, or vicarage, which is in the free gift of the patron by mere deed 
 of gift or donation, without any presentation, institution or induction (q.v.). 
 It seems that only advowsons created by the crown itself, or by a subject 
 under express licence of the crown, exempting them from the necessity 
 of presentation and visitation by the bishop, are properly called donative. 8 
 (See Advowson.) 
 
 DONEE— DONOR. — In the most general sense of the words, a 
 donor is a person who gives property, and the donee is the person to 
 whom it is given, as in the case of a donatio mortis causa (q. v.). In 
 their technical sense, " where a man giveth certaine lands or tenements 
 
 1 Co. Litt. lb; Blackstone, ii. p. I ; 4 "Williams on Executors, 725; Wat- 
 
 Hayes, Conveyancing, I. i. ii. iii. ; Holtz. son's Comp. Eq. 127 ; Ward v. Turner, 
 
 Encyc. I. 308 ; Mackeldey, § 296, n. (a). 2 Ves. 431 ; White & Tudor's L. C. i. 816 ; 
 
 3 Robinsonv. Chadwick, 7 Ch. D. 878. In re Mead, 15 Ch. D. 651 (a case of de- 
 
 3 See Strauss v. Francis, L. R., 1 Q. B. posit notes and bills of exchange). 
 
 379, and the cases there cited. 5 Co. Litt. 344 a ; Phill. Eccl. Law, 318 ; 
 
 Bl. Comm. ii. 23. 
 
Dormant LAW DICTIONARY. Dower 295 
 
 to another in taile, he which maketh the gift is called the donor, and he 
 to whom the gift is made is called the donee." 1 (See Gift.) 
 
 DORMANT. See Partnership. 
 
 DOUBLE. See Costs, § 7 ; Count, § 1 ; Duplicity; Double Damages; 
 Portion; Probate; Proof; Vouch. 
 
 DOUBLE DAMAGES— DOUBLE RENT— DOUBLE 
 VALUE. — Double and treble damages are in some cases given by par- 
 ticular statutes. The most important instances are — (a) where a person 
 has distrained for rent although no rent was owing, and the distress has 
 been sold, the owner may recover double the value of the goods dis- 
 trained ;- (b) where a person is guilty of pound-breach or rescue of goods 
 distrained for rent, the person grieved shall recover treble damages; 3 
 (c) where a tenant of land holds over (that is, retains possession of the 
 land) after the determination of his tenancy (see Holding Over) • (d) in 
 some cases where the revenue has been defrauded by non-payment of 
 customs, excise, or other duties, the person offending is liable to pay 
 double or treble duty, or double or treble the value of the property. (See 
 Smuggling.) 
 
 DOWER is "that portion of lands or tenements which the wife hath 
 for terme of her life of the lands or tenements of her husband after his 
 decease, for the sustenance of herself and the nurture and education of 
 her children." 4 Dower was formerly of five kinds : — 
 
 I. § 2. At the common law, where a man was seised in deed or in law By common 
 of land for an estate of inheritance (otherwise than as joint tenant), 5 and law " 
 died leaving a widow, she was entitled to hold the third part of such lands" 
 and tenements as were her husband's at any time during the coverture, 
 as tenant in dower for the term of her life, 6 and notwithstanding that the 
 husband might have sold, mortgaged or devised the lands or part of them, 
 unless in the case of a conveyance the wife joined to release her dower, or 
 unless she had barred her right of dower by accepting a jointure {q. v.) in 
 lieu of it. To prevent this inconvenience several methods were adopted to 
 enable a person acquiring lands to aliene them at a future time without 
 his wife's concurrence ; 7 the most important of these methods was that of 
 inserting " uses to bar dower" in the conveyance to the original purchaser. 
 (See Uses to bar Dower.) § 3. But no such precaution is required in a Dower Act. 
 conveyance to a man married since the 1st January, 1834, for by the 
 Dower Act 8 no woman married since that day is entitled to dower out of 
 any land which has been absolutely disposed of by her husband in his 
 lifetime or by his will ; and her right to dower is subject to all partial 
 estates and interests created by him, and all debts, charges, encumbrances, 
 
 1 Litt. § 57 ; Shepp. Touch. 228. 6 Litt. § 45. 
 
 2 Stat. 2 Will. & Mary (sess. i), c. 5 ; 6 Ibid. \ 36. 
 Woodfall,L.&T.488; Archbold'sPr.408. 7 Williams, R. P. 225. 
 
 3 Same statute ; Woodfall, 443. 8 Stat. 3 & 4 Will. 4, c. 105 ; Shelford's 
 * Co. Litt. 30 b. R. P. Stat. 417. 
 
2g6 
 
 Dower 
 
 LAW DICTIONARY. 
 
 Dormer 
 
 Action of 
 dower. 
 
 By custom. 
 
 Ad ostium 
 ecclesiae. 
 
 Ex assensu 
 patris. 
 
 De la pluis 
 beale. 
 
 &c. to which his lands are liable. A husband may also wholly or partially 
 deprive his wife of her dower by making a declaration to that effect by 
 deed or will. So that now a widow can only claim dower as against her 
 husband's heir-at-law, and she cannot even do that if her husband has 
 executed a declaration to the contrary. 1 § 4. On the other hand, the act 
 has granted widows a right of dower out of lands to which the husband 
 had a mere right, without having had actual or legal seisin, and has ex- 
 tended the right of dower to equitable as well as legal estates in posses- 
 sion. 2 
 
 § 5. An action by a widow to enforce her right to dower is brought in 
 the Common Pleas Division or in the Chancery Division of the High 
 Court of Justice 3 by writ of summons in the ordinary form endorsed with 
 a claim for dower, 4 and the judgment is executed by the sheriff assigning 
 and delivering a third part of the lands to the widow. 5 
 
 II. § 6. By the custom of some places a widow has the half, or a 
 quarter, or the whole of her husband's lands : with or without special 
 incidents. Thus, in gavelkind lands, the widow has the half for her 
 dower so long as she remains unmarried and without child. 6 
 
 The three following kinds of dower no longer exist : — 
 
 III. § 7. Dower ad ostium ecclesia, or dowment at the church door, " is where a man. 
 of full age seised in fee simple, who shall be married to a woman, and' when he commeth 
 to the church doore to be married, there, after affiance and troth plighted betweene them, 
 he endoweth the woman of his whole land, or of the halfe, or other lesser part thereof, 
 and there openly doth declare the quantity and the certainty of the land which she shall 
 have for her dower. In this case the wife, after the death of her husband, may enter 
 into the said quantity of land of which her husband endowed her without other assign- 
 ment." 7 
 
 IV. § 8. Dower ex assensu patris, or dowment by assent of the father, " is where the 
 father is seised of tenements in fee, and his sonne and heire apparent, when he is married, 
 endoweth his wife at the monastery or church doore, of parcel of his father's lands or 
 tenements with the assent of his father, and assignes [i. e. fixes] the quantity and 
 parcels. In this case, after the death of the son, the wife shall enter into the same 
 parcell without the assignment of any." 8 
 
 V. § 9. Dower de la pluis beale is " where a man is seised [e. g.] of forty acres of 
 land, and he holdeth twenty acres of the said forty acres of one [lord] by knights service, 
 and the other twenty acres of another in socage, and taketh wife, and hath issue a sonne, 
 and dieth, his sonne being within the age of fourteene yeares, and the lord of whom the 
 land is holden by knights service entreth into the twenty acres holden of him, and 
 holdeth them as gardein in chivalrie during the nonage of the infant, and the mother of 
 the infant entreth into the residue, and occupieth it as gardein in socage : if in this case 
 the wife bringeth a writ of dower against the gardein in chivalry, to be endowed of the 
 tenements holden by knights service, . . . the gardein in chivalry may pleade in such 
 case all this matter, and shew how the wife is gardein in socage as aforesaid, and pray 
 that it may be adjudged by the Court that the wife may endow her selfe de la pluis 
 
 1 Williams, R. P. 236; Watson's Comp. 
 Eq. 349. 
 
 2 Williams, 236. 
 
 3 Common L. Proc. Act, i860, s. 26; 
 Judicature Act, 1873, s. 34; Williams, 238. 
 As to the old kinds of " writ of dower 
 unde nihil habet," and "writ of right of 
 dower," abolished by the former act, see 
 Bl. Comm. iii. 182. 
 
 * Jud. Act, 1875, Forms A. II. iv. 
 6 Co. Litt. 34 b ; Reg. Brev. 297, De 
 dote assignanda. 
 
 6 Litt. § 37 ; Co. Litt. 33 b. 
 
 7 Litt. \ 39. Abolished by stat. 3 & 4 
 Will. 4, c. 105, s. 13. 
 
 8 Litt. § 40. Abolished by stat. 3 & 4 
 Will. 4, c. 105, s. 13. 
 
Draft LAW DICTIONARY. Drain 297 
 
 beale, i. e., of the most faire of the_tenements which she hath as gardein in socage, after 
 the value of the third part which she claimes by her writ of dower to have of 1 the tene- 
 ments holden by knights service." 3 " And note that after such a judgment given, the 
 wife may take her neighbours and in their presence endow herself by metes and bounds 
 of the fairest part of the tenements which she hath as gardein in socage, to have and to 
 hold to her for terme of her life : and this dower is called dower de la $luis ieale." 3 
 
 Etymology."] — Norman French : doweyre, dowarrie ; from Low Latin dotarium, 
 from Latin dotare, to endow ; from dos, a marriage portion. 
 
 See Estate ; Freeiench ; Curtesy ; Assignment, § 6 ; Metes and Sounds. 
 
 DRAFT. — I. § i. A draft is an order for the payment of money drawn 
 by one person on (i.e., directed to) another. Cheques and bills of ex- 
 change (q. v.) belong to the genus of drafts. In its technical sense a 
 draft is an order drawn by one banker on another, but otherwise resembling 
 an ordinary cheque. 
 
 II. § 2. Draft also signifies a document drawn up or framed for the 
 purpose of discussion or consideration : e.g., a draft agreement, will, lease, 
 conveyance, statement of claim, affidavit, &c. When the document is 
 engrossed or copied for execution or signature the draft from which the 
 engrossment or copy is made is the original draft. (See Engross.) 
 
 DRAFTSMAN is anyone who draws or frames a legal document, e.g., 
 a will, conveyance, pleading, &c. (See Draw, § 2 ; Conveyancer.) § 2. 
 Under the old practice in chancery, all bills, answers, &c. had to be 
 signed, and were almost invariably drawn, by counsel. A barrister whose 
 practice included the drafting of chancery pleadings was called an equity 
 draftsman, the correlative term at common law being special pleader (q. v.). 
 
 DRAIN— DRAINAGE.— I. § 1. Under the Sanitary and Public Houses. 
 Health Acts, " drain" means an underground channel or passage for 
 carrying off water, soil, &c. from. one building or premises within the 
 same curtilage, into a cesspool or sewer (q. v.). Sanitary authorities have 
 power to compel the effectual drainage of houses within their respective 
 districts. 4 (See Sanitary Authorities.) 
 
 II. § 2. The drainage of land, that is, the construction of works for Land, 
 taking off superfluous water from land for the purpose of improving it (as 
 opposed to the drainage of houses, which is of a sanitary nature), is one 
 of the works for which limited owners are empowered to borrow or 
 advance money and charge it on the land with the sanction of the 
 Enclosure Commissioners. (See Improvement of Land Acts.) 
 
 § 3. The Enclosure Commissioners are also empowered to enable land- Public money, 
 owners to obtain advances from the treasury for the improvement of land Drainage 
 
 xxClS* 
 
 1 "De les tenements'' in the original. tenures by stat. 12 Car. 2 ; Bl. Comm. ii. 
 Coke's translation omits the " of." 132. 
 
 2 Litt. § 48. 4 Public Health Act, 1875 \ Metropolis 
 
 3 Ibid. § 49. This kind of dower was Management Acts. 
 necessarily abolished with the military 
 
298 Dramatic Copyright LAW dictionary. Drunkenness 
 
 Compulsory by drainage, 1 and to authorize landowners to execute works required for 
 powers. t jj e drainage of their land on land belonging to other persons, on making 
 
 compensation to such persons for damage thereby occasioned. 2 
 
 § 4. Under the Settled Estates Act, 1877, the High Court may direct 
 
 any part of a settled estate to be laid out for drains, and the expenses to 
 
 be raised by sale, mortgage or charge of the estate. 3 
 
 DRAMATIC COPYRIGHT, See Right of Representation and Per- 
 formance. 
 
 DRAW— DRAWEE— DRAWER.— To draw a bill of exchange is 
 to write (or cause it to be written) and sign it ; and hence to draw on a 
 person is to draw a bill of exchange for his acceptance. The person 
 who draws it is called the drawer, and the person to whom it is directed 
 or addressed the drawee. (See Bill of Exchange ; Draft; Draftsman!) 
 
 DROIT— DROITURAL.— " Droit" is Norman French for "right" (Latin, 
 directum) . In the old books it signifies especially a right to land. Thus, if a tenant in 
 fee simple was disseised of his land, his estate was said to be turned to a right, or a bare 
 or naked right, meaning a right of ownership : the disseisor thereby acquired a mere 
 possession (only good as against strangers), while the disseisee retained, in addition to 
 his right of ownership, the right of possession as against the disseisor, which he could 
 exercise either by entry or possessory action. If, however, the disseisee neglected to 
 pursue his remedy within the time limited by law, or if he failed in a possessory action, 
 the disseisor gained the right of possession as against him, so that the disseisee could 
 only exercise his right of ownership by bringing a writ of right or droitural action. 
 When a person had the actual possession, the right of possession, and the right of owner- 
 ship, all at the same time, he was said to have droit droit, or jus duplicatum. 1 These 
 distinctions were abolished when real actions were done away with. (See Action, § 22 ; 
 Descent cast ; Right; Right of Entry .) 
 
 DROITS OF ADMIRALTY are certain perquisites which origi- 
 nally belonged to the Lord High Admiral for the time being by virtue of 
 his office, or, during a vacancy of the office, to the crown. The most 
 important droit seems to have been property captured from an enemy 
 during war, either by the army or navy, or by a subject of the crown 
 acting without commission. 5 (See Letters of Marque.) It has, however, 
 long been usual to grant captured property to the captors. (See Capture!) 
 Under the present arrangement of the public revenue and civil list, all 
 casual revenues arising from any droits of admiralty or droits of the 
 crown are carried to the Consolidated Fund." (See Civil List.) 
 
 Civil law. DRUNKENNESS.— I. § 1. In civil law where a person at the 
 
 time he enters into a contract is by reason of drunkenness incapable of 
 
 1 Stats. 9 & 10 Vict. c. 101 ; 10 & 11 158 b, 266 a, 345 a. There is some incon- 
 "Vict. c. 11 ; 11 & 12 Vict. c. 119 ; 13 & sistency between the statements in the old 
 14 Vict. c. 31 ; 19 & 20 Vict, c. 9. books on the subject. 
 
 2 Stat. 10 & 11 Vict. c. 38. 6 Steph. Comm. ii. 494. 
 
 3 Sects. 20, 21. « Stat. 1 & 2 Vict. c. 2, s. 2. 
 
 4 Bl. Comm. ii. 195, iii. 190; Co. Litt. 
 
Duces tecum LAW DICTIONARY. Duchy Court 299 
 
 understanding its terms, the contract is voidable at his option, provided 
 his condition was known to the other party at the time, 1 
 
 § 2. Under the Habitual Drunkards Act, 1879, the justices of the peace Habitual 
 for a given district may license a retreat for the reception of habitual drunkar s - 
 drunkards, and any habitual drunkard may, on his own application and 
 on complying with certain formalities, be admitted into the retreat for 
 a time mentioned in the application. He will not be allowed to leave 
 the retreat during that time unless discharged by a justice, or unless he 
 obtains a licence by a justice permitting him to leave the retreat for a 
 time. Provision is made for the inspection of retreats. 
 
 II. § 3. In criminal law the wholesome theory of the old writers was, Criminal law. 
 that as a drunkard is voluntarius dcemon, " he hath no privilege thereby, 
 but what hurt or ill he doth his drunkenness doth aggravate it." 3 The 
 modern principle however is, that if the existence of a specific intention 
 is essential to make an act a crime, the fact that the offender was drunk 
 when he did it should be taken into account by the jury in deciding 
 whether he had that intention. 3 
 
 §4. Drunkenness is forbidden by stat. 4 Jac. 1, c. s, and 21 Jac. 1, Punishment 
 c. 7, s. 3, under the penalty of a fine. Drunkenness accompanied by for drunkel1 - 
 riotous or indecent behaviour in certain towns is punishable by fine or 
 imprisonment under stat. 10 & 11 Vict. c. 89, and under the Licensing 
 Act, 1872, drunkenness in any highway or public place or building is 
 punishable by fines and (in certain cases) by imprisonment. 4 
 
 DUCES TECUM. See Subpoena. 
 
 DUCHY OF CORNWALL. See Cornwall. 
 
 DUCHY OF LANCASTER consists of those lands which formerly 
 belonged to the dukes of Lancaster, and now belong to the crown in 
 right of the duchy. The duchy is distinct from the county palatine of 
 Lancaster, and includes not only the county but also much territory at a 
 distance from it, especially the Savoy in London and some land near 
 Westminster. 5 There are numerous local acts relating to the duchy, as 
 to which see the Index to the Statutes published by the Statute Law 
 Revision Commissioners. (See County Palatine.) 
 
 DUCHY COURT OF LANCASTER, also called the Court of 
 the Duchy Chamber of Lancaster, is a Court held before the Chancellor 
 of the Duchy or his deputy, concerning all matter of equity relating to 
 lands holden of the king in right of the Duchy of Lancaster and also all 
 matters of revenue relating to the duchy. It therefore resembles the old 
 Court of Exchequer. It seems not to be a Court of Record and not to 
 have exclusive jurisdiction. 6 Its jurisdiction appears to be rarely exer- 
 
 1 Chitty on Contracts, 136 ; Pollock on 4 Steph. Comm. iv. 281. 
 
 Contract, 78. 6 Bl. Comm. iii. 78. 
 
 3 Co. Litt. 247 a. ° Ibid. iii. 78, 428. 
 3 Steph. Crim. Dig. 17. 
 
300 Due LAW DICTIONARY. Duplicate 
 
 cised, if not obsolete. (See Chancellor, § 3; County Palatine ; Palatine 
 Courts. 
 
 DUE, as applied to a sum of money, means either that it is owing or 
 that it is payable : in other words, it may mean that the debt is payable 
 at once or at a future time. Thus where a bill of exchange is payable at 
 a future day, the amount is debitum in prczsenti, solvendum infuturo: when 
 the time for payment has arrived, the amount is payable at once. It is a 
 question of construction which of these two meanings the word " due" 
 bears in a given case. Thus in sects. 6 and 15 of the Bankruptcy Act, 
 1869, the word " due" means " payable." 1 (See Bill of Exchange, § 7.) 
 
 Etymology.] — Old French, deu; Latin, debitum. 
 
 DUEL. See Challenge to Fight ; Trial. 
 
 DUM BENE SE GESSERIT.— During good conduct. Applied 
 to offices from which the holder cannot be removed at the mere will of 
 the crown, as is the case in those held durante bene placito. Thus a judge 
 of the High Court can only be. removed on the address of both Houses 
 of Parliament. 2 
 
 DUM FUIT INFRA .^ETATEM— DUM FUIT NON COMPOS 
 MENTIS — were writs which lay for the recovery of land which had been aliened by a 
 person " while he was within age," or "while he was non compos mentis." The former 
 could be brought by the alienor after he had attained majority, or by his heir ; the latter 
 could only be brought by the heir. 3 
 
 DUPLEX QUERELA is a remedy which a clerk in holy orders has 
 against the bishop if the latter refuses or delays to admit and institute 
 him to a church to which he is presented. It is a monition addressed by 
 a judge of the Ecclesiastical Court to the bishop, requiring him to admit 
 the party complaining, with a citation requiring the bishop, in case he 
 does not comply with the monition, to appear and show cause why the 
 right of institution has not devolved on the judge. It sometimes also 
 contains an inhibition commanding the bishop to do nothing pending 
 the suit to the prejudice of the party complaining. 4 (See Citation!) 
 
 DUPLICATE. — Agreements, deeds and other documents are fre- 
 quently executed in duplicate, in order that each party may have an 
 original in his possession. In such cases each party as a rule only exe- 
 cutes the part which is to be delivered to the other party. The part 
 executed by the grantor, promisor or person receiving the pecuniary 
 consideration is called the original, and the other the duplicate. A dupli- 
 cate lease is called a counterpart. (See Lease; Indenture!) 
 
 1 Ex parte Shirt, L. R., 13 Eq. 309; 3 Litt. § 406; Co. Litt. 247 b. 
 
 Ex parte Kemp, L. R., 9 Ch. 387 ; In re 4 Phillimore, Eccl. Law, 440 ; Willis v. 
 
 Stockton, (&v. Co., 2 Ch. D. 103. Bishop of Oxford, 2 P. D. 192. 
 
 2 Bl. Comm. i. 267. 
 
Duplicity LAW dictionary. Dying Declarations 301 
 
 DUPLICITY. — A pleading is double, or open to the objection of 
 duplicity, when it, or a portion of it, contains more claims, charges or 
 defences than one. Formerly the general rule was that a pleading ought 
 not to contain more than one claim, charge or defence, but it has gradually 
 been relaxed, and now no longer applies to civil pleadings, except so far 
 as they may be embarrassing or otherwise objectionable. The rule still 
 applies in many cases of criminal charges, as to which see Count, § 1 } 
 
 DURANTE BENE PLACITO.— During the pleasure of the 
 crown. (See Dum bene se gesserit.) 
 
 DURANTE MINORE yETATE. See Grant, § 8. 
 
 DURESS is where a man is compelled to do an act either by injury, 
 beating or unlawful imprisonment (sometimes called duress in the strict 
 sense), or by the threat of being killed, suffering some grievous bodily 
 harm, or being unlawfully imprisoned (sometimes called menace, or duress 
 per minas). Duress also includes threatening, beating or imprisonment 
 of the wife, parent or child of a person. 2 
 
 § 2. An act done under duress has not in general the legal effect which 
 it would otherwise have. Thus if a man is compelled by duress to execute 
 a deed or contract he may afterwards avoid it. (See Undue Influence.) 
 So a person is excused from guilt if he is compelled by personal violence, 
 or threats of death, or grievous bodily harm, to do what would otherwise 
 be a crime. 3 
 
 § 3. Strictly speaking, there is no such thing as duress to the goods or Compulsion, 
 property of a person. If, however, a person pays money to obtain the 
 possession of property wrongfully detained, or if he pays, under protest, 
 an excessive charge for the performance of a duty, he can recover it 
 back. 4 
 
 Etymology.] — Old French, duresce ; Latin, duritia, hardship. 
 
 DURHAM. See County Palatine. 
 
 DUTY is the correlative of right {q.v.). In practice, however, " duty" 
 is usually applied to those acts which a person is bound to do by virtue 
 of an office held by him, e. g., as trustee, executor, director, &c, while the 
 obligation created by a contract is called a debt or liability, according to 
 its nature. 
 
 § 2. As to duties of customs and excise, see those titles. 
 
 DYING DECLARATIONS. See Declaration, § 5. 
 
 1 See also Reg. v. Guthrie, I C. C. R. 3 Steph. Crim. Dig. 18 ; not.-however, 
 241. if the crime consists in killing an innocent 
 
 2 Pollock on Contract, 500 ; Chitty on person ; Steph. Comm. iv. 33. 
 Contracts, 186 ; Shepp. Touch. 61 ; Bl. 4 Pollock on Contract, 502. 
 Comm. i. 130. 
 
302 Earmark law dictionary. Easement 
 
 EARMARK. — § i . Property is said to be earmarked when it can be 
 identified or distinguished from other property of the same nature. The 
 term is chiefly used in respect of money, which differs from most other 
 things in being rarely capable of being earmarked. As a general rule 
 "money has no earmark," 1 and therefore if a sum is paid to a banker and 
 is mixed by him in the ordinary -course of business with other money in 
 his custody, that particular sum is incapable of being distinguished from 
 the rest. But if money is received by a person for a special purpose, and 
 is kept separate from his other money or is invested in some property or 
 security which can be identified, then the money is said to be earmarked, 
 and can be " followed," that is, claimed and recovered, by the person 
 entitled to it. The question is of importance in cases where the receiver 
 of the money has become insolvent, for unless it is earmarked the person 
 entitled to it can only share in the general assets instead of recovering the 
 whole sum. (See Clayton's Case.) 
 
 EARNEST. — Giving an earnest or earnest money is a mode of signi- 
 fying assent to a contract of sale or the like, by giving to the vendor a 
 nominal sum [e. g., a shilling) as a token that the parties are in earnest or 
 have made up their minds. The expression is chiefly of importance from 
 the provisions of the Statute of Frauds making the giving of " something 
 in earnest to bind the bargain" one mode of dispensing with a written 
 contract for the sale of goods for the price of _£~io or upwards. 2 It must 
 be an actual payment. 3 
 
 EARNINGS. See Married Women's Property Acts. 
 
 EASEMENT.— § i. When A., the owner of a piece of land, has the 
 
 right of compelling B., the owner of an adjoining piece of land, either 
 
 to refrain from doing something on his (B.'s) land, or to allow A. to 
 
 do something on his (B.'s) land, then A. is said to have an easement 
 
 Dominant and over B.'s land : A. is called the dominant owner, and his land the 
 
 servient dominant tenement ; B. is called the servient tenant, and his land the 
 
 tenements. 
 
 servient tenement. 1 The two tenements may adjoin either horizontally, 
 
 1 Whitecomb v. Jacob, I Salk. 161, cited be an easement in gross, that is, unattached 
 Ex parte Dale ; In re West of England to a dominant tenement, that the law may 
 Bank, nCh. D. 772; Re Halletf s Estate, be considered as so settled. It is, how- 
 13 Ch. D. 696, and see Miller v. Race, ever, to say the least, open to question 
 Smith's L. C. i. 526. whether in English law an easement might 
 
 2 29 Car. 2, c. 3, s. 17 ; Smith's Merc. not at one time be created in gross. Thus 
 Law, 499. Bracton says : " Si autem sic constituta 
 
 3 Chitty on Contracts, 373. fuerit servitus : tali et ha;redibus suis, vel 
 1 Gale on Easements, 5 ; Goddard on cui dare vel assignare voluerit, omnes tales 
 
 Easements ; "Watson's Comp. Eq. 130. per modum constitutionis sive donationis 
 
 All modern cases and authors on the sub- admittuntur ad usum successive" (f. 53 a), 
 
 ject, from the Termes de la Ley down- The cases and textbooks are equally unani- 
 
 wards, state so distinctly that there cannot mous in asserting that an easement is a 
 
Easement law dictionary. Easement 303 
 
 as in the majority of cases, or vertically, as in the case of the owner of 
 stratum of minerals being entitled to work them in such a manner as to 
 let down the surface of the land. 1 
 § 2. The following are the principal kinds of easements : — 
 
 (1) In respect of water. (See Water; Watercourse.) 
 
 (2) In respect of air. (See Air.) 
 
 (3) In respect of light. (See Light!) 
 
 (4) Rights of way. (See Way.) 
 
 (5) Rights of support. (See Support.) 
 
 (6) In respect of party-walls and fences (q. v.) 
 As to easements of recreation, see note below. 
 
 § 3. Easements must be distinguished — (a) from rights of property or 
 ownership {q.v.)\ (b) from profits a prender(y.z\), which are rights to the 
 produce or profit of land, while easements only relate to the user of land ; 
 
 (c) from natural rights (q. v.), such as the natural right to support (q. v.) ; 
 
 (d) from licences (q. v.), which are personal, and confer no interest in 
 the land. 
 
 § 4. As regards the servient owner, an easement is always negative, 
 the obligation on him being either to suffer or not to do something. As 
 regards the dominant owner, easements are divisible into affirmative and 
 negative. § 5. An easement is affirmative when it entitles the dominant Affirmative, 
 owner to make active use of the servient tenement, or to do some act 
 which, in the absence of an easement, would be a nuisance or a trespass. 
 The principal affirmative easements are rights of way, the right to lead or 
 discharge water over or on a neighbour's land, the right to use or affect 
 the water of a natural stream in a manner not justified by natural right 
 (see Water ; Watercourse), and the right to carry on an offensive trade. 2 
 § 6. An easement is negative when it merely restrains the servient owner Negative, 
 from exercising an ordinary right of ownership over his land ; such are 
 the rights of light and air (q. v.), and the acquired right of support 3 (q.v.). 
 
 § 7. Continuous easements are those of which the enjoyment is or may Continuous, 
 be continual without the interference of the person entitled — as in the 
 case of an artificial watercourse, or the right to light and air, — as opposed 
 to discontinuous easements, such as rights of way. 
 
 § 8. Apparent easements are those the existence of which appears from Apparent. ' 
 the construction or condition of one of the tenements, so as to be capable 
 of being seen or known on inspection : ,such as a drain or artificial water- 
 course. 4 
 
 privilege which can only belong to an 230. Hence the right of the inhabitants Easement of 
 
 individual, and not to a class by virtue of a of a place to walk, dance or hold lawful recreation. 
 
 custom. (Mounsey v. Ismay, 3 H. & C. sports on the land of another is sometimes 
 
 497, cited in Gale, 5, n.) In Gateward's called an easement of recreation. See 
 
 Case (6 Rep. 60 b), however, it was taken Elton on Commons, 283 et seq. 
 
 and agreed by the whole Court that "a ' Gale, 23. 
 
 custom that every inhabitant of such a 3 Ibid. 23 ; Shelford, R. P. Stat. 7. 
 
 town shall have a way over such land, (See Legalization!) 
 
 either to the church or market, Sec, that 3 Gale, 24. 
 
 is good, for it is but an easement." See 4 Ibid. 25, 100 ; Pyerv. Carter, I H. & 
 
 also Goodday v. Michell, Cro. Eliz. 441 ; N. 922. 
 
 Constable v. Nicholson, 14 C. B., N. S. 
 
304 
 
 Easement 
 
 LAW DICTIONARY. 
 
 Easement 
 
 Necessary. 
 
 Disposition of 
 owner of two 
 tenements. 
 
 Secondary 
 easements. 
 
 Creation and 
 extinguish- 
 ment of 
 easements. 
 
 Suspension of 
 easement. 
 
 § 9. Easements of necessity are those which are absolutely necessary 
 for the enjoyment of a piece of land or building. 1 
 
 § 10. The distinction between these classes of easements is of im- 
 portance with reference to the rule that where the owner of a piece of 
 land divides it, and conveys one part to a person without any stipulations 
 on the subject, then the grantee becomes entitled by what is sometimes 
 called "the disposition of the owner of two tenements" 2 — (1) to all con- 
 tinuous and apparent easements, that is, to such easements as will enable 
 him to enjoy the property in the same way as it is evident, from its con- 
 dition, that the owner enjoyed it, and (2) to all easements of necessity. 
 Thus, where the owner of land on which were some cattle sheds, made 
 an artificial watercourse through another part of the land to supply them 
 with water, and afterwards conveyed the cattle sheds to another person, 
 it was held that the grantee was entitled to the apparent and continuous 
 easement of receiving water from the watercourse on the grantor's land. 3 
 So, if I have a field enclosed by my own land on all sides and I alien 
 this field to another, he shall have a way to it over my land as an ease- 
 ment of necessity, for without it he could not have any benefit of the 
 field. 4 
 
 § 11. In some cases an easement is accompanied by certain rights 
 which are necessary for its enjoyment, in which case it is called the 
 principal easement, and the accompanying rights are called secondary 
 easements ; thus a right of watercourse includes the secondary easement 
 of going on the servient tenement to clean and repair the channel. 5 
 
 § 12. Easements may be created— (i) by express grant, as where A. 
 grants B. a right of way over A.'s land ; (ii) by implied grant, either on 
 the principle of the disposition of the owner of two tenements [supra, § 10), 
 or on the principle that a man cannot derogate from his own grant (see 
 Derogate, § 1), and (iii) by prescription {q. v.) They may be extinguished 
 — (i) by express release ; (ii) by implied release, namely, (a) by merger 
 or unity of possession, which occurs when the two tenements become 
 united in the ownership of one person; (b) by necessity, as where 
 the owner of the dominant tenement does, or authorizes the owner of 
 the servient tenement to do, an act which necessarily prevents the 
 future enjoyment of the easement; (c) by alteration of the dominant 
 tenement, so as to make the easement inapplicable (see Encroachment ; 
 Light) ; (d) by non-user, evidencing an intention of abandoning the 
 easement. 6 
 
 § 13. In the case of a temporary or imperfect unity of possession, 
 as where the owner of the dominant tenement acquires a lease of the 
 
 1 Gale, 96. 
 
 2 This phrase seems to have been in- 
 vented by Mr. Gale (p. 97) ; it has been 
 judicially adopted ; see Leech v. Schweder, 
 L. R., 9 Ch. at p. 472. 
 
 3 Watts v. Nelson, L. R., 6 Ch. 166, 
 approving Pyer v. Carter, 1 H. & N. 922. 
 See also Leech v. Schweder, L. R., 9 Ch. 
 463. But there is, in general, no corre- 
 
 sponding implication in favour of the 
 grantor except so far as easements of ne- 
 cessity are concerned ; Wheeldon v. Bur- 
 rows, 12 Ch. D. 31. 
 
 4 Rolle, Abr. ii. Graunt Z. pi. 17, 18, 
 cited Gale, 133. 
 
 5 Bracton, 232 a, cited by Gale, 549 ; 
 see Pom/ret v. Ricroft, I Saund. 321. 
 
 6 Gale, 578 et sea. 
 
Ecclesiastical LAW DICTIONARY. Education Acts 3°5 
 
 servient tenement, the easement is only suspended and not extinguished, 
 and revives when the unity of possession ceases. 1 
 
 § 14. As to the protection of easements, see Disturbance, § 1. 
 
 Etymology.] — Norman French : aisetnent? from aise, convenience, accommoda- 
 tion ; 3 Law Latin, aisiamentum. 
 
 ECCLESIASTICAL COMMISSIONERS are commissioners es- 
 tablished by statute, principally for the purpose of preparing schemes for 
 the improvement of our ecclesiastical system, especially as to the equaliza- 
 tion of the revenues and duties of the various dioceses, and to provide for 
 the cure of souls in parishes where assistance was required. Several of 
 such schemes have been given effect to by orders in council. By later 
 acts a fund has been vested in the commissioners to enable them to make 
 provision for the cure of souls in populous districts, and provision is 
 accordingly made for the creation of ecclesiastical districts and parishes, 
 and the appointment of ministers therein. 1 (See Parish.) 
 
 ECCLESIASTICAL COURTS are Courts which have jurisdiction 
 only in ecclesiastical matters. They are — ( 1 ) the two provincial Courts 
 of Canterbury and York, and (2) the diocesan Courts of each diocese (see 
 the titles). There are also various other Courts which are either obsolete 
 or are not strictly judicial tribunals ; such are the Courts of Audience, the 
 Court of the Vicar-General, ofthe Master of the Faculties {see Faculty), &c. 
 
 The Privy Council is the supreme Court of Appeal in ecclesiastical 
 matters. 5 
 
 ECCLESIASTICAL LAW is that part of the law which relates to 
 the ministrations and governments, rights and obligations, of the Church 
 established in the State, that is, of the Church of England. 6 It is derived 
 from constitutions of synods and councils of the Church, from canons of 
 convocation, from usage, and from acts of parliament. 7 
 
 Public ecclesiastical law determines the authority of the Church and 
 those who govern it, and is both internal and external, the former being 
 concerned with the constitution of the Church relatively to the members 
 of it, and the latter with the relations of the Church to the State and reli- 
 gious bodies not directly connected with herself. 8 (See Advcrwson ; Ap- 
 propriation; Bishop; Churchwarden ; Diocese ; Rector ; Tithes; Title; Vicar; 
 Visitation.) 
 
 EDUCATION ACTS. — The principal acts on the subject of educa- 
 tion are the Elementary Education Acts, 1870 and 1873, directed towards 
 
 1 Gale, 581. 5 Phill. Eccl.Law, 1201; Steph. Comm. 
 
 2 Loys'el Inst. Cout. § 291. iii. 301; Martin v. Mackonochie, 4Q.B.D. 
 
 3 See Godley v. Frith, Yelv. 159. at pp. 760, 783. 
 
 1 Phillimore.Eccl. Law, 2090; Stephen's 6 Phillimore, 12; Steph. Comm. ii. 
 
 Comm. ii. 748 ; stats. 6 & 7 Will. 4, c. 77 ; 659. 
 
 13 & 14 Vict. c. 94; 29 & 30 Vict. c. in, 7 Phillimore, 19. 
 
 &c, &c. 8 Ibid. 12. 
 
 s. x 
 
306 Egality law dictionary. Ejectment 
 
 the provision of public elementary schools in districts where there is 
 insufficient accommodation for the purpose, and making attendance at. 
 school obligatory. These enactments are carried out (under the superin- 
 tendence of the Education Department of the Privy Council) by school 
 boards elected by the ratepayers of each district, and having the power 
 of levying an education rate. 1 See also the Public Schools Act, 1868, 
 and the Endowed Schools Acts, 1869 and 1873, which deal with higher 
 education, 2 and the Reformatory Schools Act, 1866, and the Industrial 
 Schools Act, 1866, for the reformation and useful training of juvenile 
 offenders. 3 
 
 EGALITY = "owelty" (q.v.y 
 
 EGRESS AND REGRESS. See Free Entry, Egress and Regress, 
 
 EI INCUMBIT PROBATIO QUI DICIT NON QUI NEGAT. 
 
 — In the law of evidence the burden of proof lies on the party who asserts, 
 not on the party who denies, for the reason that it is generally difficult, 
 and sometimes impossible, to prove a negative. Thus if in an action on 
 a promissory note the defendant denied that he made the note, the 
 burden of proof would lie on the plaintiff. But if the defendant pleaded 
 that he had paid the note, then the affirmative would be on him. 5 
 
 EIGNE. See Mulier. 
 
 EIRE. See Eyre. 
 
 EJECTMENT is a judicial proceeding for recovering land from a 
 person wrongfully in possession of it. Formerly, an action brought for 
 this purpose in any of the Superior Courts of Common Law was called 
 an action of ejectment {infra, § 3), but now it is called an action for the 
 recovery of land, as to which see Recovery. 
 Ejectment in § 2. Where the yearly value or rent of the land to be recovered does 
 County Lourt. nQ ^ exceet j 20 i m> an action of ejectment may be brought in the County 
 Court of the district, unless it is a case in which an action lies under the 
 County Courts Act, 1856.' (See Recovery.) 
 
 § 3. Before the Common Law Procedure Act, 1852, the action of ejectment was a 
 complicated proceeding, resting on several fictions. It was originally devised to escape 
 from the still greater intricacies of real actions, which were the proper mode of trying 
 questions of title to the freehold of land, while ejectment was available only for persons 
 entitled to the possession of land under a lease or other chattel interest. To adapt the 
 remedy to questions of freehold title two fictions were introduced — one, an imaginary 
 lease by the real plaintiff (the freeholder) to an imaginary "John Doe" (the nominal 
 plaintiff); and the other, an imaginaiy ouster of John Doe by "Richard Roe," the 
 
 1 Steph. Comm. iii. 93 et seq. 6 County Courts Act, 1867, s. 11 et seq.; 
 
 2 Ibid. 97 etseq. " WoodfaU's L. & T. 777. 
 
 3 Ibid. 108 et seq. ' County Courts Rules, 1877, xxxvii. 
 * Co. Litt. 169 a. 2, 25. 
 
 5 Smith's Action, 156; Best, Ev. 371. 
 
Election law dictionary. Elegit 3°7 
 
 nominal defendant, commonly known as the " casual ejector." The person really in 
 possession of the land was then allowed to defend the action on condition that he ad- 
 mitted the truth of these fictions and relied only on his title as a defence. 1 
 
 § 4. The C. L. P. Act, 1852, abolished these fictions, and made the action of eject- 
 ment similar to other actions, except that it had no pleadings. 3 (See Habere facias 
 Possessionem ; Writ of Restitution.) 
 
 See also Landlord and Tenant; Deserted Premises ; Writ 0/ Possession. 
 
 ELECTION is (i) the right, and (ii) the act, of choosing: the term 
 is applied both to rights and liabilities. " If I give unto you one of my 
 horses in my stable, there you shall have the election ; for you shall 
 be the first agent by taking or seizure of one of them." 3 
 
 § 2. The equitable doctrine of election is founded on the principle Equitable 
 that there is an implied condition that he who accepts a benefit under an d ° ct t ™^ of 
 instrument must adopt the whole of it, conforming with all its provisions 
 and renouncing every right inconsistent with them. 4 Thus, suppose A. 
 by will or deed gives to B. property belonging to C, and by the same 
 instrument gives other property belonging to himself to C, a Court of 
 Equity will hold C. to be entitled to the gift made to him by A., only 
 upon the implied condition of renouncing his own property in favour of 
 B. He is therefore put to his election whether he will take under the 
 instrument, that is, take the property given him by A., and give up 
 his own property to B., or against the instrument, that is, retain his own 
 property, and either forfeit the property given him by A., or take it and 
 make compensation to B. for the value of his (C.'s) own property which 
 he has retained. 5 
 
 § 3. Election is also the operation of choosing a representative, 
 officer, &c, such as a member of parliament," director, or the like. So a 
 bishop is elected by the chapter of the cathedral by virtue of a cong6 
 d'elire.' As to election of guardian by an infant, see Guardian. 
 
 ELECTION PETITIONS are petitions for inquiry into the validity 
 of elections of members of parliament, when it is alleged that the return of 
 a member is invalid for bribery or any other reason. These petitions 
 are heard by a judge of one of the Common Law Divisions of the High 
 Court. 8 
 
 ELEEMOSYNARY. See Charity, § 2 ; Corporation, § 5. 
 
 ELEGIT is a writ of execution by which a judgment creditor may 
 obtain possession of his debtor's chattels in satisfaction of the debt 
 
 1 Adams on Ejectment, 1 — 16; First 5 Ch. D. p. 173. 
 
 Rep. C. L. P. Comm. 54 et seq. 6 As to parliamentary elections, see 
 
 2 Smith's Action (nth ed.), 405 et seq. Steph. Comm. ii. 370 et seq.; the Reform 
 
 3 Co. Litt. 145 a. Act (2 Will. 4, c. 45) ; Representation of 
 
 4 White & Tudor's L. C. 1..311, notes the People Act, 1867; the Ballot Act, 
 to Noys v. Mordaunt, 2 Vem. 581, and 1872; Parliamentary Elections and Cor- 
 Streatfield v. Streatfield, Cas. t. Talbot, rapt PracticesAct, 1879; also titles Bribery, 
 176. Personation, Registration. 
 
 4 White & Tudor, i. 312 ; Haynes' ' Bl. Comm. i. 377. 
 
 Equity, 293; Snell's Equity, 169; Wat- 8 Parliamentary Elections Act, 1868; 
 
 son's Comp. 156 ; Pickersgill v. Rodger, Judicature Act, 1873, s. 38. 
 
 x2 
 
3°3 Elegit LAW DICTIONARY. Elisors 
 
 wholly or pro tanto ; if they are not sufficient, he may also obtain 
 possession of the debtor's land, and hold it until the debt is satisfied, 
 either out of the rents and profits, or otherwise. By stat. West. 2 
 (13 Edw. 1), c. 18, where a debt is recovered or acknowledged in the 
 King's Court or damages awarded, it shall be in the election of the 
 plaintiff", either to have a fieri facias to the sheriff to levy the debt (see 
 Fieri facias), or that the sheriff shall deliver to him all the chattels of 
 the debtor (saving only his oxen and beasts of the plough), and the one 
 half of his land, until the debt be levied upon a reasonable price or 
 extent. From the election given to the plaintiff by this statute, and from 
 the entry of the award of this execution on the roll, " quod elegit sibi exe- 
 cutionem," the writ of elegit derives its name. 1 A creditor who has sued 
 out the writ is called an elegit creditor. § 2. By stat. 1 & 2 Vict. c. no, 
 the remedy by writ of elegit was extended to the whole of the debtor's 
 land, including copyholds and lands over which he has an absolute power 
 of disposition {e.g., by appointment). The Statute of Frauds had made 
 it applicable to trust estates. 
 
 § 3. In executing this writ, the sheriff first seizes the chattels and 
 land, and then impanels a jury to inquire as to their respective values. 
 If the chattels are sufficient to satisfy the debt, he delivers them to the 
 execution creditor ; if they are not sufficient, he also delivers legal (not 
 actual) possession of the lands to the creditor ; if the latter cannot 
 otherwise obtain actual possession, he must bring an action of ejectment. 3 
 The writ must be registered in the Registry of Judgments. 3 (See 
 Registry.) While the creditor holds the lands* he is called tenant by 
 elegit, and has a chattel interest in them 4 (see Chattels) ; he may obtain 
 an order for the sale of the debtor's interest in them, by presenting a 
 petition to the High Court in the Chancery Division. 5 (See Inquisition; 
 Possession; Extent; Scire facias.) 
 
 § 4. The writ of elegit is a clumsy and inconvenient remedy, and was 
 formerly never used, except where the execution creditor desired to seize 
 the debtor's land. Of late years the writ has come into use for seizing 
 chattels, because suffering the execution of a writ of elegit is not an act of 
 bankruptcy on the part of the debtor, as is the case with a writ of fi. fa., 
 where the chattels are sold for 50/. or upwards. 6 (See Act of Bankruptcy.) 
 
 ELISORS or ESLIORS (from the French Hire, to choose) are 
 persons appointed to return a jury for the trial of an action when the 
 jury returned by the sheriff and that returned by the coroner have been 
 successively challenged to the array for partiality or default. (See 
 Challenge.) No challenge to the array can be made against a jury 
 returned by elisors. The proceeding, however, is practically obsolete. 7 
 
 1 Chitty, Pr. 683 ; Co. Litt. 289 b. * Stat. 27 & 28 Vict. c. 112. 
 
 2 Smith's Action, 199. 6 Ex parte Abbott, 15 Ch. D. 447 
 
 3 Stat. 27 & 28 Vict. c. 112. ' Co. Litt. 158 a ; Bl. Coram, iii. 7 W 
 
 4 Co. Litt. 42 a. ■"* 
 
Eloign LAW DICTIONARY. Embezzle 309 
 
 ELOIGN is to remove. See Elongata ; Elongavit. 
 
 ELONGATA, — Where goods taken in distress and replevied are 
 directed to be returned to the distrainor by a writ of delivery or de retorno 
 habendo, and the sheriff finds that they have been eloigned, that is, 
 removed to places unknown, he makes a return to that effect; called a 
 return of elongata. It is rare in practice. 1 (See Replevin; Capias in 
 Withernam; De Retorno habendo!) 
 
 ELONGAVIT. — Where in a proceeding by foreign attachment the 
 plaintiff has obtained judgment of appraisement, but by reason of some 
 act of the garnishee the goods cannot be appraised (as where he has 
 removed them from the city, or has sold them, &c), the serjeant-at-mace 
 returns that the garnishee has eloigned them, i. e., removed them out of 
 the jurisdiction, and on this return (called an elongavit) judgment is 
 given for the plaintiff that an inquiry be made of the goods eloigned : this 
 inquiry is set down for trial and the assessment is made by a jury after the 
 manner of ordinary issues. 3 The proceedings on the inquiry are also 
 sometimes called the elongavit. (See Foreign Attachment ; Judgment.) 
 
 EMBARGO is the temporary or permanent sequestration of the 
 property of individuals for the purposes of a government, e. g., to obtain 
 vessels for the transport of troops, the owners being reimbursed for this 
 forced service. 3 § 2. In international law, where one State has received 
 or anticipates injury from another State, it may lay an embargo on 
 property within its territory belonging to subjects of the offending State 
 as a means of securing redress. Such an embargo may be civil or hostile, 
 according as it results in peace or war. 4 The term civil embargo is also 
 sometimes used to describe the kind of embargo mentioned in § 1. 
 (Spanish embargar, to hinder or detain.) (See Reprisals.) 
 
 EMBARRASSING. See Amendment, § 3. 
 
 EMBEZZLE— EMBEZZLEMENT.— When a clerk or servant 
 commits theft by converting to his own use any chattel, money or 
 valuable security received or taken into possession by him for or in the 
 name or on account of his master or employer, his offence is called 
 embezzlement. 6 If a clerk or servant commits theft by converting to his 
 own use a chattel of which he has merely the custody (not the possession) 
 as clerk or servant of the owner, his offence is larceny and not embezzle- 
 ment. 6 As to the distinction between custody and possession, see 
 Custody. 
 
 The punishment for embezzlement is the same as that for larceny {q. v.). 
 
 1 Woodfall, L. & T. 481. Crim. Dig. 220. See Reg. v. Rogers, 3 
 
 2 Brandon, For. Attach. 124. Q. B. D. 28. 
 
 3 Manning, Law of Nations, 143. ° Stephen, 209, 224. As to the sum- 
 
 4 Ibid, and 144, note. mary jurisdiction of justices in cases of 
 6 Stat. 24 & 25 Vict. c. 96 (applying embezzlement, see Stone's Justice of the 
 
 also to servants of the crown) ; Stephen's Peace, 360. 
 
310 Emblements LAW DICTIONARY. Encroachment 
 
 EMBLEMENTS.— In certain cases where a tenant of land has sown 
 corn, or set roots, or sown " hempe or flax, or any other annual profit," and 
 his estate is determined before the crop is ready to be gathered, he or his 
 executors shall nevertheless have it, with the right of free entry, egress and 
 regress on the land to take it and carry it away when it is ready. This is 
 called the right to emblements. Thus if a tenant at will sows corn, and the 
 lessor ousts him before it is ripe, he is entitled to go upon the land when 
 it is ripe, and cut and carry it away, " because he knew not at what time 
 the lessor would enter upon him." 1 For a similar reason if a tenant for 
 life sows corn and dies, his executors shall have the crop ; or if he leases 
 the land to an undertenant, who sows a crop, and then the tenant for life 
 dies, the crop belongs to 'the undertenant. 2 But by a modern statute 3 it 
 is provided that where a landlord entitled for his life, or any other 
 uncertain interest has let land at a rackrent, and his estate determines by 
 his death or otherwise, then the tenant instead of being entitled to 
 emblements, shall continue to hold the land until the expiration of the 
 current year of his tenancy.* 
 
 § 2. From the nature of the right to emblements it is obvious that it 
 does not exist in the case of labour which yields no immediate annual 
 profit (as where a lessee at will plants .young fruit-trees, &c), nor in the 
 case of the tenancy being determined by the tenant's own act : thus where 
 a woman holding land durante viduitate sows the ground and marries, the 
 landlord shall have the emblements. 6 
 
 Etymology.] — Norman French : Emblavence de hied, corn sprang up above ground. 6 
 
 EMBRACERY is the misdemeanor committed by a person who by 
 any means whatever, except the production of evidence and argument in 
 open Court, attempts to corrupt, influence or instruct any juryman. 7 It is 
 a species of maintenance {q. v.). 
 
 ENABLING. See Statute. 
 
 ENCLOSURE. See Inclosure. 
 
 Land. ENCROACHMENT is where a person attempts to extend a right 
 
 possessed by him, as where a tenant of land takes in or adds to it other 
 land adjoining or near to it, so as to make the added land appear to be 
 part of his original holding. The general rule is that if the wrongful act 
 is acquiesced in, the encroachment (that is, the land added) is considered 
 as annexed to the original holding, and as having the same incidents as 
 if it had originally formed part of it. 8 Therefore, if a lessee of land makes 
 
 1 Litt. § 68 ; Co. Litt. 55 a ; Woodfall's Crimes, i. 360. 
 
 L. & T. 703. s See Woodfall's L. & T. 696 ; Kings- 
 
 2 Co. Litt. 55 b. mill v. Millard, n Ex. 313; Earl of 
 
 3 14 & 15 Vict. c. 25. Lisburne v. Davies, L. R., 1 C. P. 259; 
 1 Williams, R. P. 28. Whitman v. Humphries, L. R., 7 C. P. 1 ; 
 6 Co. Litt. 55 b. ' A. G. v. Tomline, 5 Ch. D. 750. As to 
 
 6 Woodfall, 703. whether the doctrine applies to copyhold 
 
 7 Stephen's Crim. Dig. 77 ; Russell on land, see A. G. v. Tomline, 15 Ch. D. 150. 
 
Encumber law dictionary. Enfranchise 311 
 
 an encroachment on an adjoining waste, at the expiration of the tenancy 
 the encroachment will as a general rule belong to the landlord and not to 
 the tenant. (See Approvement^ 
 
 § 2. In the law of easements, where the owner of an easement alters Easement, 
 the dominant tenement, so as to impose an additional restriction or 
 burden on the servient tenement, he is said to commit an encroachment. 
 The principle seems to be that if the excess can be ascertained and 
 separated, such excess alone is bad, and the original right remains, but 
 that if the original right and the encroachment are so blended together 
 that they cannot be separated, then the original right is lost or suspended 
 so long as the dominant tenement remains in its altered form. 1 
 
 ENCUMBER — ENCUMBRANCE.— To encumber land is to 
 make it subject to a charge or liability, e. g., by mortgaging it. Encum- 
 brances include not only mortgages and other voluntary charges, but also 
 liens, lites pendentes, registered judgments and writs of execution, &c. 
 (See Covenant, § 8.) 
 
 ENDOW— ENDOWMENT. See Charity, § 3. 
 
 ENFEOFF is the technical and proper operative word of a feoffment 3 
 {q. v. ; and see Operative Words). 
 
 ENFRANCHISE-ENFRANCHISEMENT. — § 1. To enfran- 
 chise is to make free or to confer a liberty. Thus in the old books a man 
 is said to be enfranchised when he is made a free man of a city, or burgess 
 of a borough, or where an alien is made a denizen, or a villein is manu- 
 mitted. 3 At the present day to enfranchise often means to confer on a 
 man the franchise, or the liberty of voting at parliamentary elections. 
 
 § 2. To enfranchise copyhold land is to free it from the customs' of that Copyholds. 
 tenure and to render it subject to the same law as freehold land. 4 The 
 operation may take place either at common law or under a statute. 
 
 § 3. Enfranchisement at common law is effected by the conveyance of At common 
 the freehold to the copyholder, or by a release of all customs and services * aw- 
 by the owner of the freehold. 5 
 
 § 4. Statutory enfranchisement takes place under the Copyhold Acts, Statutory: 
 and is either voluntary or compulsory. The provisions as to voluntary voluntary, 
 enfranchisement make it possible for persons to enfranchise who could 
 not do so at common law ; e.g., persons having limited interests. Com- compulsory, 
 pulsory enfranchisement is effected by an award of the Copyhold Commis- 
 sioners, made on the application of either lord or tenant ; the amount of 
 compensation payable to the lord in commutation of his rights to fines, 
 heriots, &c. is settled by valuation. When the enfranchisement takes 
 place on the application of the tenant, the compensation consists of a 
 gross sum of money payable by the copyholder, or in some cases it may 
 
 1 Gale on Easements, 615. i See Copyhold Act, 1852, s. 34. 
 
 2 Davids. Conv. i. 72. 6 Elton, Copyh. 288. 
 
 3 Co. Litt. 137 b. 
 
3^ 
 
 Engagement 
 
 LAW DICTIONARY. 
 
 Enitia Pars 
 
 remain a first charge on the land for a period not exceeding ten years ; 
 when it takes place on the application of the lord, the compensation con- 
 sists of an annual rent-charge. 1 On a statutory enfranchisement, the 
 rights of the lord or tenant to any minerals under the land are not 
 affected. 2 
 
 General 
 engagements. 
 
 ENGAGEMENT, in its most general sense, is any undertaking or 
 promise, but in practice the term has been appropriated to denote a con- 
 tract entered into by a married woman with the intention of binding or 
 charging her separate estate, or, with stricter accuracy, a promise which 
 in the case of a person sui juris would be a contract, but in the case of a 
 married woman is not a contract, because she cannot bind herself person- 
 ally, even in equity ; her engagements therefore merely operate as dispo- 
 sitions or appointments pro tanto of her separate estate. 
 
 § 2. The promises or debts of a married woman which are not ex- 
 pressly charged by her on her separate estate are sometimes called her 
 general engagements, and do not bind her separate estate unless made 
 with reference to and upon the faith and credit of that estate. 3 (See 
 Separate Estate; Limitation; Administration, supra, p. 28, note (1).) 
 
 Criminal law. 
 
 ENGLISH BILL. See Bill of Complaint, § 7. 
 ENGRAVINGS. See Copyright, § 3. 
 
 ENGROSS— ENGROSSMENT.— I. § 1. Formerly to engross a 
 document was to write it in a peculiar hand (chiefly remarkable for its 
 illegibility), derived from the court-hand in which records were anciently 
 written. This engrossing hand was also used until recently in transcribing 
 wills at the Probate Office, but has now given way to the ordinary round 
 hand. 
 
 § 2. At the present day, engrossing means copying a deed, agreement 
 or the like with all words, dates and amounts written at length, and with 
 the formal testatum and attestation clauses, so as to be ready for 
 execution. 
 
 II. § 3. In criminal law, engrossing was the offence of buying up 
 large quantities of corn, &c. with intent to sell them again ; it was 
 abolished by stat. 7 & 8 Vict. c. 24.* (See Regrating; Forestalling.) 
 
 ENITIA PARS or AEISNETIA, which is derived of the French word eisne, 
 for eldest (modem French aim), and means the part of the eldest, 5 is used in the old 
 books to denote the part or share taken by the eldest sister when several coparceners 
 make partition of their land by agreement. 6 
 
 1 Act of 1852, s. 7. 
 
 2 Ibid. s. 48. 
 
 3 Johnson v. Gallagher, 3 D. F. & J. 
 513; Shattock v. S., L. R, 2 Eq. 182; 
 London Chartered Bank v. Lempriire, 
 L. R., 4P. C. at p. 593 ; Flowery. Buller, 
 
 15 Ch. D. 665 ; Pollock on Contract, 66 
 "White & Tudor's L. C. i. 435. 
 
 4 Steph. Comm. iv. 266, n. (p). 
 
 * Co. Litt. 166 b. 
 
 6 Litt. § 245. 
 
Enjoyment law dictionary. Enrol 313 
 
 ENJOYMENT is the exercise of a right. It is to a right what pos- 
 session is to a corporeal thing, and is therefore divisible, like possession, 
 into simple, rightful, permissive, adverse, &c. Adverse enjoyment is more 
 commonly known as " enjoyment as of right," and occurs where a person 
 exercises a right which does not belong to him in the same manner as if 
 he were entitled to it, and without the permission of the true owner. 
 Enjoyment which is open, peaceable, continuous, and of right, resembles 
 adverse possession in being a mode of acquiring by lapse of time the 
 right so enjoyed. 1 (See Presoiplion.) 
 
 ENLARGEMENT.— When a tenant in tail has created a base Base fee., 
 fee in lands and it afterwards becomes united with the remainder or 
 reversion in fee in the same lands in the same person, and there is no 
 intermediate estate between them, then the base fee does not merge in 
 the fee, but is ipso facto enlarged into as large an estate as a tenant in tail 
 with the consent of the protector, if any, might have created by a disen- 
 tailing assurance if the remainder or reversion had been vested in any 
 other person.' Thus if land is settled upon A. for life, with remainder in 
 tail to B., with remainder in fee to C, and B. executes a disentailing deed 
 without the consent of A., the protector, B. acquires a base fee ; if he 
 subsequently purchases the reversion from C, his base fee is enlarged into 
 a fee simple, because if he had executed a disentailing assurance with the 
 consent of A., the protector, he would have created a fee simple. The 
 object of the rule of law which produces an enlargement instead of (as in 
 ordinary cases) a merger, is to prevent any mesne incumbrances from being 
 let in or accelerated : thus, if in the above example C. had mortgaged his 
 reversion before conveying it to B., the enlargement would destroy the 
 incumbrance thus created, while a merger would have made it a charge 
 on B.'s new fee simple. (See Merger.) 
 
 ENQUIRY. See Inquiry; Writ of Inquiry. 
 
 ENROL— ENROLMENT.— § 1. To enrol is to enter (that is, copy) 
 a document on an official record. Originally such records were kept in 
 the shape of continuous rolls of parliament, but now most, if not all of 
 them, are kept in books of the ordinary shape. (See Roll.) The principal 
 documents which require enrolment at the present day are recognizances 
 and disentailing assurances (q. v.). (See also Bargain and Sale, §3.) 
 
 § 2. The Enrolment Office was a department of the Court of Chancery Enrolment 
 and of the Chancery Division of the High Court, in which, as its name office - 
 implies, the enrolment of documents was effected. 3 By the Judicature 
 (Officers) Act, 1879, the Enrolment Office was amalgamated with the 
 Central Office {q. v.). The office of Clerk of Enrolments is to be abolished 
 on the next vacancy. 4 
 
 1 Gale on Easements, 207. Second Rep., Legal Dep. Comm. 43. 
 
 s Fines and Recoveries Act, s. 39. 4 Sects. 4 et seq. ; Rules of Court, 
 
 3 Daniell, Ch. Pr. index, Enrolment; December, 1879; April, 1880. 
 
3 1 4 Entail LAW DICTIONARY. Entitle 
 
 Chancery § 3. Formerly in the practice of the Court of Chancery, its decrees 
 
 decrees. were nQt un f re q Uent iy enrolled in order to prevent appeals or rehearings 
 
 being brought from a judge of first instance to the Court of Appeal in 
 Chancery. The effect was that an appeal could only be brought to the 
 House of Lords, or by a bill of review. This rule has been abrogated by 
 the new practice. 1 (See Docket.) 
 
 ENTAIL. — An entail exists when land, or money directed to be in- 
 vested in the purchase of land, 2 is limited to a person and the heirs of his 
 body, with or without prior estates. The land or the money, as the case 
 may be, is then said to be entailed. (See Estate Tail; Quasi Entail.) 
 
 ENTER is used not only in the technical sense of going upon land 
 (see Entry), but also in the sense of making in a book or record a note 
 of a transaction or a transcript of a document. § 2. Thus, a defendant to 
 an action, if he wishes to contest it, enters an appearance (q. v.). Every 
 order or judgment pronounced by the Chancery Division is entered or 
 copied into the registrar's book, 3 and until this is done the order or judg- 
 ment is not complete and cannot be enforced. In the Queen's Bench 
 Division, the operation of entering a judgment is usually called " signing 
 judgment." (See Pass; Minutes.) 
 
 ENTIRE. — § 1. A contract, claim, or the like, is said to be entire 
 when each part is so connected with the rest that it cannot be separated 
 into several distinct contracts or claims, as opposed to a severable or 
 apportionable contract, &c. Thus, where a sailor was to be paid a certain 
 sum for serving on a voyage and he died before the voyage was completed, 
 it was held that his executor had no claim to any part of his wages ; 
 because the contract was to perform the complete voyage. 4 (See Appor- 
 tionment, § 3 ; Sever.) 
 
 § 2. As to entire hereditaments, see Hereditament, § 7. 
 
 ENTIRETIES, — If lands are given to A. and B., husband and wife, 
 and their heirs, they are not joint tenants, because they are in law con- 
 sidered as one person, but they take by entireties ; that is, neither can 
 dispose of any part of the land without the concurrence of the other, and 
 if they do not agree in making a disposition, the survivor takes the whole. 
 During the coverture the husband is entitled to the rents and profits. 5 
 (See Estate, § 11.) 
 
 ENTITLE. — I. § 1. In its usual sense, to entitle is to give a right ; 
 therefore a person is said to be entitled to property when he has a right 
 to it. 6 (See Right; Title.) 
 
 1 Daniell, Ch. Pr. 879 ; Hastiev. Hastie, Co. Lift. 200 a. 
 
 2 Ch. D. 304. 5 Williams, R. P. 228; Jiclding's 
 
 3 Fines and Recoveries Act, s. 71. Analogy, 252. 
 
 3 Hunter's Suit, 87. e Churchill v. Denny, L. R., 20 Eq. 
 
 * Chitty on Contracts, 666, 667 ; Smith, 534. 
 L. C. ii. 1. As to entire chattels real, see 
 
Entry law DICTIONARY. Equitable 3 J 5 
 
 II. § 2. In ecclesiastical law, to entitle is to give a title for ordination 
 as a minister. 1 (See Title.) 
 
 ENTRY. — § i. Entry is the act of going on land, or doing something 
 equivalent, with the intention of asserting a right in the land. It may 
 be made either in person or by a representative, such as a guardian, 
 lessee, &c. 
 
 § 2. Entry is actual when the person making it goes on the land itself; Actual, 
 while an entry in law is a constructive or fictitious entry. Thus, where in law. 
 "a man maketh a charter of feoffment, and delivers seisin within the view, 
 [and] the feoffee dares not enter for feare of death, but claims the same, 
 this shall vest the freehold and inheritance in him." 2 (See Livery; and Free 
 Entry, Egress and Regress. As to forcible entry, see Forcible Entry.) 
 
 § 3. The doctrine of entry is now of much less importance than formerly, 
 owing to the abolition of most of the rules relating to seisin (q. v.) ; but 
 entry is still a means of regaining possession of land from a person wrong- 
 fully in possession, being equivalent to recaption (q. v.) in the case of 
 goods. It must be peaceable, and must be made within the period allowed 
 by the statutes of limitation. 3 (See Right 0/ Entry.) 
 
 § 4. In the old books, " entry " often signifies a " right of entry " 
 
 (?• v.y 
 
 ENURE is to operate or take effect. Thus, where it is said that if an 
 attornment be made by a tenant of land to one only of several grantees of 
 the reversion, it shall enure to the rest, 5 it is meant that the attornment 
 takes effect as if it had been made to all. (See Attornment.) 
 
 EQUALITY of Exchange or Partition. See Owelty. 
 
 EQUITABLE denotes — I., that which is fair (see Equity, § 1 ); II., that 
 which arises from a liberal construction or application of a legal rule or 
 Te.me&y(se.eEquity, %feietseq.)\ III.,thatwhich is in accordance with, or regu- 
 lated, recognized, or enforced by, the rules of equity, as opposed to those 
 of the common law. Thus, an equitable right, estate, or interest, is one 
 which was originally recognized and enforced only in Courts of Equity — 
 e. g., that of a cestui que trust, or of a mortgagor, after the day fixed for 
 redemption had passed. So an equitable tenant for life is a person who 
 is entitled for his life to the rents or income of property which is vested 
 in trustees for his benefit. 
 
 Equitable fraud and equitable waste are wrongs which were originally 
 recognized and restrained only in Courts of Equity. (See Assets; Assign- 
 ment; Estate; Fraud; Mortgage; Waste.) 
 
 1 Gibson's Codex, 141, n. 3 Steph. Comm. 111. 243. 
 
 2 Co. Litt. 48 b, 253 b. Coke also l Co. Litt. 237 b. 
 treats of several, general, and special 6 Shep. Touch. 265. 
 entry; Co. Litt. 15 a. 
 
statute. 
 
 316 Equity LAW DICTIONARY. Equity 
 
 EQUITY. — I, § 1. In its primary sense equity is fairness, or that rule 
 of conduct which in the opinion of a person or class ought to be followed 
 by all other persons. 
 
 Equity in this sense is frequently opposed to law and legality, because 
 that which is fair does not always constitute a legal claim or defence. 1 
 Hence — 
 
 II. § 2. When a legal rule or remedy is capable of two interpretations 
 or applications, one literal or restrictive, and the other liberal (that is, cal- 
 culated to make the rule or.remedy operate fairly, and to extend its benefit 
 to as many cases as possible), the latter is called the equitable construc- 
 tion or application. 2 It is in this sense that the right of stoppage in tran- 
 situ {q. v.), the writ of audita querela (q. v.), and the old action of ejectment 
 are said to be equitable remedies ; * and the jurisdiction of the Common 
 Law Courts, to set aside judgments obtained by default and confession, 
 was called an equitable one. 4 
 
 Equity of a § 3. When a statute contains a provision which literally applies only to 
 
 a particular class of cases, but it is clear from the nature of the provision 
 that if another class of cases had been present to the mind of its framer 
 it would have been extended to them, they are said to be within the equity 
 of the statute : ° " and the reason hereof is, for that the lawmakers could 
 not possibly set downe all cases in expresse terms." 5 Thus an old statute 
 literally applying only to executors was held to extend by equity to admi- 
 nistrators, " because they are of the like kind." ' 
 
 *' Equity" _ III. § 4. But the most important sense of the word equity is that in 
 
 which it denotes a part of the general law of England, as opposed to what 
 is called the common law (q. v.). The distinction is purely historical, and 
 arose from the fact that in former times the common law Courts provided 
 no remedy in many cases where one was required. Hence the custom 
 grew up of applying for redress in such cases either to the king in parlia- 
 ment or to the king in council, who referred the matters to the chancellor. 
 In later times petitions were presented to the chancellor direct. The 
 chancellor, being an ecclesiastic, and keeper of the king's conscience, 
 did not feel bound to follow the rules of the common law, but gave such 
 relief as he thought the petitioner or plaintiff entitled to " in equity and 
 good conscience." 8 (See Chancellor, § 2.) § 5. For a long time "equity" 
 was an indefinite standard of right and wrong, and was regarded as having 
 the function of mitigating the rigour and supplying the defects of the 
 common law without any limitation except the personal opinions of each 
 chancellor ; but in more modern times equity became as fixed in its 
 principles, and as incapable of introducing new remedies without the 
 authority of parliament, as the common law itself. 
 
 § 6. At the time of the passing of the Judicature Act, equity was to be 
 
 1 See Calvinus, Lex. Jur. ; Dirksen, 6 Cf. Dig. xix. 5, 11. 
 Man. Lat. v. ALquitas. In the same 8 Co. Litt. 24 b, 70 a ; 2 Inst. 199. 
 sense Coke speaks of the equity of the 7 Termes de la Ley, v. Equity, where 
 law ; Co. Litt. 354 b. instances are given of the use of the term 
 
 2 See Spence's Equity, i. 321 etseq., 412. as restricting the general words of an act. 
 
 3 Clay v. Harrison, 10 B. & C. 99. This use seems obsolete. 
 * Smith's Action, 163. 8 See Spence's Equity, i. 411. 
 
 and "law. ! 
 
Equity LAW DICTIONARY. Equity 317 
 
 regarded as part of the law of England, distinguished from the common 
 law only by reason of its being, or having originally been, administered in 
 different Courts (the principal of which was the Court of Chancery), and 
 by a different procedure. 1 In many cases the chancery and common law 
 Courts had concurrent jurisdiction (^..in cases of ordinary fraud), while 
 in other cases the same right gave rise to different remedies in law and in 
 equity (see Specific Performance; Injunction), and in others the rules of law 
 and equity were in direct conflict. 
 
 § 7. The principal subjects on which the rules of equity either differed Conflict of law 
 from or conflicted with those of the common law were trusts, administra- and e 1 ultv - 
 tion, separate property of married women, mortgages, penalties and for- 
 feitures, and the wrongs known as equitable fraud, equitable waste, &c. 
 (see those titles); and as the doctrines of equity on these points were not 
 recognized by the Courts of Common Law, it sometimes happened that a 
 person had rights which the common law would have allowed and assisted 
 him to enforce, but which a Court of Equity would not allow him to enforce, 
 on the ground of the existence of an equitable right overriding or qualifying 
 his legal rights. Thus, if A., the owner of an estate, stood by and allowed 
 B. to expend money upon it in the belief that the estate belonged to him- 
 self, then if A. brought an action of ejectment against B. to recover pos- 
 session of the estate, B. might file a bill in equity to restrain A. from 
 ejecting him without compensation for his expenditure. 8 Various statutes 
 were from time to time passed, giving the common law Courts jurisdiction 
 to recognize and enforce equitable rights ; * and finally, by the Judicature 
 Acts, 1873 and 1875, the superior Courts of Equity and Common Law were 
 amalgamated, the rules of law and equity on certain points were assimi- 
 lated, and on all other points where there is a difference or conflict between 
 equity and common law, the rules of equity are to prevail. 4 Every division 
 and judge of the Supreme Court of Judicature is now bound to recognize 
 and give effect to all equitable rights and liabilities appearing incidentally 
 in the course of any action or matter. 5 (See Chancery.) 
 
 IV. § 8. Equity also signifies an equitable right, that is, aright enforce- "Equity" = 
 able in a Court of Equity ; hence, a bill of complaint which did not show " e ^' l ; t ; at,le 
 that the plaintiff had a right entitling him to relief was said to be de- 
 murrable for want of equity ; and certain rights now recognized in all the 
 divisions of the High Court, are still known as " equities '' from having 
 been originally recognized only in the Court of Chancery. (See Equity of 
 Redemption ; Equity to a Settlement.) 
 
 Y. § 9. Equity also denotes a right or obligation incident to a property Equities. 
 
 1 Chute's Equity, 9. 5 Jud. Act. 1873, s. 24. The student is 
 
 2 Day's C. L. P. Acts, 330; Earl of recommended to le. id (1) Haynes's Outlines 
 Oxford's Case, 1 Ch. R. 1 ; White & of Equity, (2) Snell's Principles of Equity, 
 Tudor's L. C. ii. 548. a useful book, consisting as it does of ex- 
 
 3 See Common Law Procedure Act, tracts, for the most part verbatim, from 
 1854, ss. 83 et seq.j Day, 328 et seq. ; authoritative works, and (3) White & 
 Chitty on Contracts, 801 et seq. ; 23 & 24 Tudor's Leading Cases. Watson's Comp. 
 Vict. c. 126 ; Married Women's Property of Equity is useful for practitioners. 
 Actj 1870. Spence's Equity is a learned but discur- 
 
 * Jud. Act, 1873, a, 25 ; Jud. Act, sive work. 
 1875. 
 
3.1-8 Equity LAW DICTIONARY. Equity to a Settlement 
 
 or contract as between two persons, but not incident to the property or 
 contract from its own nature. In this sensethe word is generally used 
 in the plural — " equities " — and is chiefly of importance with reference 
 to assignments of choses in action, the rule being that where there is a 
 chose in action, whether it is a debt or an obligation, or a trust fund, 
 and it is assigned, the person who owes the debt or obligation, or has 
 undertaken to hold the trust fund, has, as against the assignee, exactly the 
 same equities that he would have as against the assignor j 1 or it may be 
 expressed in the converse manner, that the assignee takes the chose in 
 action subject to the same equities as those to which it was subject in the 
 hands of the assignor. Thus, a debt is due from B. to A., but there is 
 also a debt due from A. to B., which B. might set off in an action by A| 
 In this state of things A. assigns the first debt to C, without telling him" 
 of the set-off. B. is entitled to the set-off as against C. Again, if B. has 
 contracted to pay a sum of money to A., but the contract is voidable on 
 the ground of fraud or misrepresentation, and A. assigns the contract to 
 C, who does not know the circumstances that render it voidable, then 
 B. may avoid the contract as against C. 2 
 Bills of § 10. In the law of bills of exchange, a distinction is drawn between 
 
 exchange. << equities attaching to the bill itself" (such as an agreement between the 
 original parties to the bill that in certain events the acceptor shall not 
 be held liable) and " collateral equities," such as set-off. 3 As a rule a 
 bill of exchange in the hand of a bona, fide holder for value is not subject 
 to the equities between prior parties, but in the case of a bill negotiated 
 when overdue, the holder takes it subject to the " equities attaching to 
 the bill," though not to any collateral equities. 4 (See Negotiable?) 
 See Chancery, Chancellor, Exchequer. 
 
 Etymology.] — From Latin cequitas, equality or fairness, from aquus, equal. See 
 the uses of csquitas cited in Spence, i. 412. 
 
 EQUITY DRAFTSMAN. See Draftsman, § 2. 
 
 EQUITY OF REDEMPTION is that right which a mortgagor 
 has to redeem the mortgaged property at any time until he has been 
 foreclosed, or until his right is barred by the statutes of limitations, or 
 until the property has been sold by the mortgagee under a power of sale. 
 See further on this point under Mortgage ; also Equity. 
 
 EQUITY TO A SETTLEMENT.— Where a husband becomes 
 entitled in possession in right of his wife to property which before the 
 Judicature Act he would have been unable to recover by an action at law 
 (say a legacy left to his wife by the will of a testator, or a share of per- 
 sonalty to which his wife has become entitled under a settlement), although 
 prima facie the husband is entitled to receive the property, so that upon 
 
 1 Phipps v. Lovegrove, L. R., 16 Eq. Johnson, L. R., 8 Eq. 36. 
 
 p. 88. 3 Ex parte Swan, L. R., 6 Eq. 344. 
 
 2 Pollock on Contract, 201, citing Caven- i Byles on Bills, 168. 
 dish v. Glaves, 24 Beav. 163 ; Graham v. 
 
Erasure law dictionary. Error 319 
 
 the executor or trustee paying him the wife's legacy or share of personalty, 
 the husband's receipt would be a good discharge ; yet if the intervention 
 of a Court exercising equitable jurisdiction be in any way called into 
 action, whether by the husband to claim the property, or by the wife to 
 enforce her equity, the Court only allows the husband to receive the pro- 
 perty, subject to what is called the wife's right or equity to a settlement ; 
 that is to say, unless the wife expressly waives this right or equity, the 
 Court will inquire into all the circumstances connected with the marriage 
 (e. g., whether the husband has made a settlement on his wife, how much 
 of her property he has already received, what is his pecuniary position, 
 whether the husband and wife are living together or apart), and will, 
 upon a consideration of all the material facts, decide how much of the 
 property (if any) shall be paid to the husband, and how much (if any) 
 shall be settled on the wife. 1 
 
 ERASURE. See Alteration. 
 
 ERROR. — § 1 . In the old common law practice in civil actions, error 
 was some mistake in the foundation, proceeding, judgment or execution 
 of an action in a Court of Record, requiring correction either by the Court 
 in which it occurred (in case of error in fact), or by a superior Court or In fact. 
 Court of Error (in case of error in law); to "bring error" was to apply Inlaw, 
 for the rectification required. 2 Error in fact was some mistake in the 
 process 3 (e. g., where an infant appeared by attorney instead of by guar- 
 dian), while error in law was a mistake in the judgment, such as might 
 have formed the foundation for a demurrer, motion in arrest of judgment, 
 &c* Errors in law were either common {e.g., that the judgment was 
 given for the plaintiff instead of for the defendant), or special, which was 
 where some matter appeared on the face of the record which showed the 
 judgment to be erroneous. 5 
 
 Proceedings in error in civil cases have been abolished, and a more 
 simple mode of appeal substituted (see Appeal),* except in appeals to 
 the High Court from inferior Courts proceeding according to the course 
 of the common law, which are brought by writ .of error, or writ of false 
 judgment. In those cases the old practice still applies, and the plaintiff Assignment 
 in error (the appellant), is therefore obliged to "assign errors," that is, errors - 
 specify the defects complained of in the judgment of the Court below; 
 the defendant then delivers either a joinder in error, or a plea to the as- joinder in 
 signment of errors, or a demurrer, and so on until issue is joined, when error - 
 the case is set down for argument.' * This procedure seems to be very 
 rare. 
 
 1 Haynes' Equity, 114; Snell'sEq. 299; See Trial. 
 
 White & Tudor's L. C. i. 381 et seq. An i Steph. Comm. iii. 578; for the prac- 
 infant feme covert cannot waive her equity tice on proceedings in error, see Arch- 
 to a settlement : Shipway v. Ball, 16 Ch. bold's Pr. 483 et seq. 
 D. 376. 5 Archbold's Pr. 483. 
 
 2 Co. Litt. 288 b ; Smith's Action (nth 6 Rules of Court, lviii., lix. ; and Rules 
 ed.), 220. of December, 1879. 
 
 3 Not in the facts of the case ; for that ' Archbold, 1424. 
 the remedy was (and is) a new trial. 
 
320 
 Criminal. 
 
 Escape 
 
 LAW DICTIONARY. 
 
 Escheat 
 
 Voluntary. 
 
 Negligent. 
 
 By prisoner. 
 
 Propter de- 
 fectum san- 
 guinis. 
 
 Propter de- 
 lictum ten- 
 entis. 
 
 § 2. Appeals in criminal cases are also brought by proceedings in error, 
 namely, by writ of error (g. v.) ; the plaintiff in error (that is, the prisoner 
 or accused) assigns or indicates the errors of which he complains in the 
 indictment. 1 
 
 See Writ of Error; Joinder. 
 
 ESCAPE. — § i. Voluntary escape is the offence committed by a per- 
 son who knowingly, and with intent to save him from trial or execution, 
 permits any person in his lawful custody to regain his liberty otherwise 
 than in due course of law. The degree of this offence varies with that 
 of which the escaped prisoner was guilty. 
 
 § 2. Negligent escape is the misdemeanor committed by a person who 
 by the neglect of any duty, or by ignorance of law, permits a person in 
 his lawful custody to regain his liberty otherwise than in due course of 
 law. 3 It is punishable by fine. 3 If a sheriff allows a person in custody 
 under a ca. sa. to escape, he is liable to the plaintiff for the amount of the 
 judgment debt. 
 
 § 3. An escape by a prisoner himself is a misdemeanor, and assisting a 
 prisoner to escape, or attempt to escape, is felony. 4 
 
 See Rescue. 
 
 ESCHEAT takes place when by accident lands fall to the lord of 
 whom they are holden, 5 or to the crown. It is derived from the feudal 
 rule, that where an estate in fee simple comes to an end, the land 
 reverts to the lord by whose ancestors or predecessors the estate was 
 originally created. 6 At the present day, seignories in freehold land are 
 of no practical value, and the evidence of them has generally been lost ; 
 so that where an escheat takes place the land in almost all cases goes to 
 the crown as the ultimate lord of all lands in England. 7 
 
 § 2. "An escheat doth happen two manner of wayes — aut per defectum 
 sanguinis, i. e. for default of heir ; aut per delictum tenentis, i. e. for felony." 8 
 Escheat for default of heirs, as may be imagined, seldom occurs, almost 
 the only case being where a bastard dies intestate without children or 
 other issue. 9 Escheat propter delictum tenentis takes place where a 
 person is outlawed for felony, upon which his blood is corrupted ; that 
 is to say, he becomes incapable of holding land, or of inheriting it, and 
 it therefore escheats to the lord. Formerly judgment of death for 
 felony caused an escheat in the same manner as outlawry ; but this has 
 recently been abolished 10 (see Attainder), as has also the rule that a 
 person could not trace descent to land through an ancestor who has been 
 attainted of treason or felony, so that the land escheated to the lord. 11 
 
 1 Archbold's Crim. PL 203, where forms 
 of assignment of errors are given. 
 
 2 Stephen's Crim. Dig. 88. 
 
 3 Steph. Comm. iv. 228. 
 
 4 Hid. 90 ; see also the stats. 1 & 2 Vict. 
 t. 82 ; 5 & 6 Vict. c. 29 ; and 6 & 7 Vict, 
 c. 26. 
 
 6 Co. Litt. 13 a, 92 b. 
 
 6 Williams, R. P. 126; except in the 
 
 case of high treason, when the land always 
 escheated to the crown; Co. Litt. 13a. 
 
 ' Williams, R. P. 128 ; Co. Litt. 1 a. 
 
 8 Co. Litt. 13 a. 
 
 " Williams, R. P. 127. Seestat. 22 & 23 
 Vict. c. 35, s. 19. 
 
 10 Stat. 33 & 34 Vict. c. 23. 
 
 11 Stat. 3 & 4 Will. 4, c. 106, s. 10 ; 
 Steph. Comm. i. 445. 
 
Escheator law dictionary. Essence 
 
 § 3. Escheat is not properly a purchase in the technical sense of the 
 word, for the land thus acquired by the lord descends as the seignory 
 would have descended, into the place of which it comes. ' (See 
 Purchase?) 
 
 See Seignory ; Title ; Inquest of Office. 
 
 Etymology.] — Norman French, eschete, from escheoir, to fall to (in the sense of a 
 wind-fall) ; Latin, cadere? 
 
 ESCHEATOR, " an ancient officer, so called because his office is properly to look 
 to escheats, wardships, and other casualties belonging to the crowne." 3 The office is 
 now obsolete. (See Inquest of Office.) 
 
 ESCROW is a writing sealed and delivered to a stranger (i. e., a 
 person not a party to it) to be held by him until certain conditions be 
 performed, and then to be delivered to take effect as a deed. It is said 
 that, to make the writing an escrow, the word " escrow" must be used in 
 delivering it ; but whether this is so at the present day is doubtful. 4 
 (Apparently from Norman-French, escrit f Latin, scriptum, a writing.) 
 
 ESCTJAGE. — Tenure by escuage was one of the varieties of tenure by knight's 
 sen-ice. It imposed on the tenant the duty of accompanying the king to war for forty 
 days, or of sending a substitute, or of paying a sum of money, which was assessed by 
 parliament after the expedition or " voyage royal." \ 2. This payment was also called Uncertain, 
 escuage, or escuage uncertain, to distinguish it from escuage certain, which was one of Certain, 
 the services of which socage tenure might consist. Thus if a man held land by the 
 service of paying to his lord half a mark, or other fixed sum for escuage, this was escuage 
 certain, and the tenure was socage and not knight's service. 6 (See Tenure.) 
 
 § 3. Escuage was abolished by 12 Car. 2, c. 24, and had fallen into disuse long 
 before, for there is no instance of parliament's assessing it since the reign of Edward II. 
 
 Etymology.] — Norman French, escuage (late Latin, scutagium), from escu ; Latin, 
 scutum, a shield. 8 
 
 ESQUIRE. — Strictly speaking, the only persons entitled to the 
 description of esquire, are — (i) the eldest sons of knights, and their 
 eldest sons in perpetual succession ; (ii) the eldest sons of younger sons 
 of peers in like succession ; (iii) esquires created by the crown's letters- 
 patent or other investiture, and their eldest sons ; (iv.) esquires by virtue 
 of their office, such as justices of the peace and barristers-at-law ; 
 (v) foreign peers. Every knight of the bath has the privilege of creating 
 three esquires at his installation. 9 
 
 ESSENCE OF THE CONTRACT.— A provision in a contract is 
 said to be " of the essence of the contract " when compliance with it 
 
 1 Burton's Comp. 325 ; Hargrave's note 5 Britton, 98 b. 
 
 to Co. Litt. 18 b. 6 Litt. §$ 95 etseq., 120; Co. Litt. 68 b 
 
 2 Britton, 28 a ; Litt. § 682 ; Littre, et seq. 
 
 s. v. ' Co. Litt. 72 b, 74 b, n. 
 
 3 Co. Litt. 13 b ; Cox's Inst. 685. 8 Loysel, Gloss, s. v. 
 
 * Shep. Touch. 58; Co. Litt. 36 a. 9 Steph. Comm. ii. 616. 
 
 S. Y 
 
 321 
 
3-22. Essoign law dictionary. Estate 
 
 was known by both parties at the time of entering into the contract to 
 be of such importance that performance of the contract ' without strict 
 compliance with it may be of no avail ; as where the subject-matter of 
 the contract is required for immediate use, or is of a terminable or 
 fluctuating character or value. 1 Where a contract limits a time for the 
 performance of an act, the promisor has the right of performing it 
 within a reasonable time after the date, unless it appears that performance 
 within the time was intended to be of the essence of the contract ; 
 hence it is usual in such cases to insert an express condition to that 
 effect.' 
 
 ESSOIGN, in the old books, means an excuse for not appearing in Court to defend 
 an action, and as the first day of Term was the day for hearing such excuses it was 
 called the essoign-day. 3 
 
 ESTABLISHMENT OF WILLS.— Formerly where the validity 
 of a will disposing of real estate was disputed, or likely to be disputed by 
 the heir-at-law, or any other person, the only remedy open to the devisee 
 was to bring a suit in equity against the person disputing the will, called 
 a suit to establish the will, so as to prevent him from contesting it in 
 future. In such a suit the execution of the will, and the other requisites 
 to its validity, were proved (see Devisavit vel nori). Now, however, 
 probate in solemn form is conclusive as to the validity of the will as 
 regards real estate ; 4 and proceedings to establish wills in Chancery have 
 consequently become obsolete. 6 
 
 ESTATE. — I. § i. In its widest sense, "estate" denotes the condition 
 or circumstance of a person or a class of persons ; hence its use in the 
 expression "the three estates," or estates of the realm; that is, the lords 
 spiritual, the lords temporal, and the commons of England. 6 (See 
 Parliament.') 
 
 II. §2. More usually, however, "estate" signifies — (i) the condition 
 or circumstance in which a person stands with regard to property in 
 which he has an interest/ and, by extension, (ii) the interest itself. In 
 this sense " estate " means certain varieties or modes of ownership, 
 especially in land, the rule being that no person can be the absolute 
 owner of land in England ; in theory, he can only have an estate or 
 limited interest in it. B (See Tenure?) 
 
 These limited interests are of the following kinds : — 
 Legal (I.) § 3. Where a person has such an estate in property that he is 
 
 entitled to the possession or enjoyment of it (either in present or in 
 future) against all the world, or against all the world except one or more 
 specified persons, he is said to have a legal estate in it, as opposed to 
 
 1 Leake on Contracts, 448. 5 Daniell, Ch. Pr. (4th edit.) 226, 812 ; 
 
 a As to time being of the essence of the Snell's Eq. 536. 
 
 contract in sales of realty, see Parkin v. e Bl. Comm. i. 153 ; Hallam, M. A. 
 
 Thorold, 16 Beav. 59 ; Chitty on Con- iii. 105 ; Block, Diet. v. Etat. 
 
 tracts, 283 ; Leake, 447. ' Litt. § 347 ; Bl. Coram, ii. 103. 
 
 3 Tidd's Pr. 125. 6 Williams, R. P. 17. 
 
 4 Stat. 20 & 21 Vict. c. 77, s. 66. 
 
 Estates. 
 
Estate LAW dictionary.' Estate 
 
 323 
 
 an equitable or beneficial estate {infra, § 13). He may be entitled to 
 it for his own benefit, or as trustee for some one else. (See Trustee?) 
 Legal estates are divisible as follows : — 
 
 (A) Estates in land of freehold tenure :» f'^hldl d ' 
 
 §4. With reference to their quantity, or the extreme limit of their ' 
 
 duration, 2 estates are either freehold (q. v.) or less than freehold. ' Estates Estates of 
 of freehold again are either (a) estates of inheritance, which include [jj^ance, 
 estates in fee simple, estates tail, and estates in frankmarriage (see those 
 titles) ; or (b) estates not of inheritance, which are either (a) conventional, not of inherit- 
 i.e., created by the act of the parties, including estates for life and ance- 
 estates pur autre vie (see Tenant for Life; Quasi-tail); or (/3) legal, 
 that is, created by construction or operation of law ; to this class belong 
 the estates of a " tenant in tail after possibility of issue extinct," and of 
 tenants by the curtesy, and in dower (q. v.). § 5. Estates less than Less than free- 
 freehold are either (a) certain, namely, estates for years (see Tenant for k° ld - 
 Years ; Term), or (b) uncertain, namely, estates at will, by sufferance, 
 statute merchant, statute staple and elegit, and a few other interests 
 without specific names, e. g., under a devise of land to executors to pay 
 debts. 3 (See Chattels.) 
 
 With reference to their qualities, estates are either absolute, deter- Absolute, 
 minable, or conditional. § 6. An estate is said to be absolute when 
 nothing but its quantity is indicated ; thus, a conveyance to a man and 
 his heirs gives him a fee simple absolute. § 7. An estate is determinable determinable, 
 when by the terms of its limitation it may either continue as long as if it 
 were absolute, or determine before that period ; thus, a conveyance to A. 
 during her widowhood, gives her an estate for life determinable on her 
 marrying again. 3 § 8. A conditional estate is one which has a condition conditional, 
 annexed to it, which may defeat it before its natural termination ; a 
 familiar instance of a conditional estate is that created by the old- 
 fashioned form of mortgage, and the estate of a lessee under an ordinary 
 lease with a proviso for re-entry on non-payment of rent, &c. 4 As to the 
 various kinds of conditions, see that title. Estates which depend for their 
 creation on the performance of a condition precedent are not generally 
 called conditional estates, but contingent remainders or executory 
 interests (q. v.). Estates in fee are subject to a peculiar division with 
 reference to conditions, as to which see Fee; Limitation. 
 
 § 9. With reference to the time of their enjoyment, estates are either in possession, 
 in possession or expectancy. An estate in possession (or an immediate in expectancy, 
 estate) gives a present right of present enjoyment, while an estate in 
 expectancy is one which cannot be enjoyed until a future time. An 
 estate of freehold is said to be in possession, although it is subject to an 
 existing prior chattel interest. Estates in expectancy include reversions, 
 remainders and future interests (q. ».). 5 Every estate which precedes a Particular. 
 
 1 " Freehold " in the sense of tenure 3 Co. Litt. 42 a. 
 
 must not be confounded with "freehold" * Preston on Estates, 44 ; Leake, 214. 
 
 in the sense of an estate of a certain quan- 5 Stephen's Comm. i. 313; Burton, 
 
 tity. (See Freehold.) Comp. \ 833. 
 
 2 Co. Litt. 18 a ; Bl. Comm. ii. 103. 
 
 Y 2 
 
324 
 
 Estate 
 
 LAW DICTIONARY. 
 
 Estate 
 
 Vested, 
 
 in possession, 
 
 in interest ; 
 contingent. 
 
 In severalty, 
 
 in joint 
 tenancy, &c. 
 
 Customary 
 estates. 
 
 Equitable 
 Estates. 
 
 reversion or remainder is also called a particular estate ; l thus, if land 
 is granted to A. for life, with remainder to B. and his heirs, A. has a 
 particular estate, and B. a reversionary estate. 
 
 § 10. With regard to the certainty of their enjoyment, estates are 
 either vested or contingent. An estate is said to be vested in possession 
 when the tenant has a present right to the present enjoyment ; 
 vested in interest, when he has a present fixed right to the future enjoy- 
 ment ; and contingent, when his right of enjoyment is to accrue on an 
 event which is uncertain ; in other words, when he has an estate in 
 expectancy, which may or may not take effect in possession. 3 (See 
 Remainder; Reversion ; Executory Interest ; Vest.) 
 
 § ii. An estate held by one person alone is called an estate in severalty, 
 or in sole tenancy ; estates held by two or more persons together are of 
 the following kinds : tenancy by entireties, coparcenary, joint-tenancy, 
 and tenancy in common. 3 (See those titles.) 
 
 (B) § iz. Customary estates are those which exist, by virtue of a 
 custom, in land forming part of a manor, as in the case of copyholds and 
 customary freeholds (q. v.). As a rule they are similar to estates in 
 freeholds : thus a copyholder may have a customary fee simple, an estate, 
 for life, for a term of years, in joint-tenancy, &c. ; and, if there is a 
 special custom to that effect, a customary estate tail ; if there is no such 
 custom, then a gift of land to A. and the heirs of his body creates a 
 customary fee simple conditional at the common law.* (See Fee.) 
 
 (II.) § 13. Equitable estates are those which were formerly recognized 
 only in Courts of Equity. 5 (See Equity ; Equitable.) The main differences 
 between legal and equitable estates are that the latter can exist to a certain 
 extent in personalty as well as realty, and that they are free from many of the 
 restrictions and incidents attached by the common law to legal estates 
 inland. Equitable estates maybe divided as follows — (1) those which 
 are analogous to legal estates, e.g., equitable estates in fee simple, 
 in tail, for life, in joint tenancy, &c. In these cases the legal estate in 
 the property is vested in one person, and the beneficial or equitable 
 estate in another ; as where land or stock is given to trustees upon trust 
 for A. and B. during their lives, and, after the death of the survivor, 
 to C. ; here A. and B. have an equitable joint life estate or interest, and 
 C. has an equitable reversion or reversionary interest : (2) those having 
 no corresponding estates at law, e. g., equities of redemption. 6 
 
 III. § 14. "Estate" also signifies "property": thus we speak of real" 
 and personal estate, of partnership estate, trust estate, a married woman's 
 separate estate, &c, especially with reference to questions of adminis- 
 tration, as in the case of the estate of a deceased person, a bankrupt, or 
 a dissolved partnership. (See Assets.) 
 
 1 Co. Litt, 22 b. 
 
 2 Feame, Cont. Rem. I. 
 
 3 To this head may also be referred 
 those estates which are sometimes in one 
 person or in one place, and altemis vicibiis 
 in another (Co. Litt. 4 a) ; they do not 
 seem to occur at the present time, except 
 
 in the case of lot-mead or sTufting several- 
 ties. (See Inheritance, § 5 ; Severalty.) 
 4 Burton, § 1284 ; Elton, Copyh. 32. ' 
 6 Burton, § 1358; see Jiclding's Ana-- 
 logy, passim. 
 6 Burton, § 1458. 
 
Estate at Will LAW DICTIONARY. Estate Tail 325 
 
 § 15. From its use in these cases, "estate" has acquired the sense of a 
 juridical or fictitious person, as when we say that a debt is due to the 
 estate of a bankrupt or deceased person, or speak of an estate being in- 
 solvent, or of its being a co-contractor in a business. 1 The idea is, that 
 the estate represents or continues the persona of the individual to whom 
 it belonged. 
 
 Etymology.]— Norman French, estate from the Latin, status. "Estate" was 
 formerly also a verb active, meaning to create, limit, or grant an estate. 3 
 
 ESTATE AT WILL— ESTATE FOR LIFE, &c. See Tenant 
 at Will; Tenant for Life, &c. 
 
 ESTATE TAIL, or an estate in fee tail, is an estate in lands or 
 tenements, created by a conveyance or devise to a person and his 
 descendants, or the " heirs of his body," as they are technically called 
 (see Heir, § 9). Such an estate will, if left to itself, descend on the death 
 of the first owner to his children, grandchildren and more remote 
 descendants, but not to his ascendants or collateral heirs; so that if he 
 dies without issue, or any of his descendants dies without issue, and , 
 there is no other descendant of the first owner living, the estate will, if 
 left alone, come to an end, and the land will pass to the reversioner or 
 remainderman. The owner for the time being of such an estate is called 
 a tenant in tail. 
 
 § 2. An estate tail may be either general, as where land is given to A. General, 
 and the heirs of his body without more, in which case it descends to such 
 of his heirs as are descended from him in the same manner as an estate 
 in fee simple descends to the issue of the last purchaser : or special, when special, 
 it is restrained to certain heirs of his body, as where land is given to B. 
 and the heirs of his body by a particular wife ; here none can inherit but 
 such as are his children by that particular wife, or descended from his 
 children by her. 4 
 
 § 3. Each of these kinds may also be either in tail male, where the land Tail male. 
 is limited to the heirs male of the donee, so that it cannot descend to any 
 but males who can trace their descent through male descendants from the 
 donee (that is, to sons, sons of sons, and so on) : or in tail female, where Tail female, 
 it can only descend to females and female descendants of females 
 (daughters, daughters of daughters, and so on). Accordingly, a man 
 may have an estate in tail male special, that is, descendible only to his. 
 heirs male by a particular wife, or the like. 5 
 
 § 4. Where land is given to two persons and the heirs of their bodies, Gift in tail to 
 then if they can by any possibility marry, either immediately or at a future tw0 P ersons - 
 time, they have an estate in special tail, limited to their own issue. If 
 there is no possibility of their marrying, they have a joint estate for life 
 and several inheritances in tail, that is, the land is divided on the death 
 
 1 McClean v. Hennard, L. R., 9 Ch. 3 See Compl. Clerk, 366, 445. 
 336. i Litt. § 13; Co. Litt. 19 b. 
 
 2 Britton, 270 a. 5 Bl. Comm. ii. 114. 
 
326 
 
 Estate Tail 
 
 LAW DICTIONARY. 
 
 Estate Tail 
 
 Statute De 
 Donis. 
 
 Fines and 
 recoveries. 
 
 Copyholds. 
 
 Equitable 
 entail. 
 
 Quasi entail. 
 
 In equity. 
 
 of the survivor, one-half going to the issue of each tenant for life, and 
 the issue are tenants in common in tail. 1 
 
 § 5. Estates tail in freehold land are derived from the statute of West- 
 minster the Second ( 1 3 Edw. 1 ), called De Donis Conditionalibus. Before 
 this statute, a gift of land to a man and the heirs of his body operated 
 to create an estate in fee conditional on his having issue; as soon as 
 he performed the condition by having issue, his estate practically became 
 an absolute estate in fee simple (see Fee). The statute De Donis enacted 
 that in such cases the land should go to the issue of the donee, or, on 
 failure of his issue, should revert to the donor.' The act only applies to 
 lands and tenements, and, therefore, does not include such hereditaments 
 as annuities, which are neither lands nor tenements. (See Annuity?) 
 
 In course of time modes were invented of barring estates tail by means 
 of fictitious proceedings called fines and common recoveries (see those 
 titles), so that the estate of a tenant in tail might be converted into a fee 
 simple absolute not only against his. issue, but also against the donor or 
 reversioner in tail. By statutes passed in the reigns of Henry VIII. and 
 subsequent sovereigns, estates tail were further assimilated to estates in 
 fee simple, and now by the Fines and Recoveries Act (3 & 4 Will. 4, 
 c. 74), every tenant in tail may, by a disentailing assurance (q. v.), bar the 
 entail as against his own issue, and may, with the consent of the protector 
 of the settlement (if any), bar it as against the reversioner in tail, and 
 thus convert it into an estate in fee simple. (See Enlargement ; Protector.) 
 This act and the Settled Estates Act (q. v.) also contain provisions enabling 
 tenants in tail to grant effectual leases at a rack-rent for certain terms. 
 
 § 6. The entail of copyholds depends upon the custom of each manor. 
 In some manors there is no custom to entail, and in these manors a sur- 
 render of copyholds to the use of A. and the heirs of his body gives him 
 a conditional customary fee, corresponding to a fee simple conditional at 
 the common law (see Fee.) In some manors there is a custom to entail,, 
 so that a surrender to the use of A. and the heirs of his body gives him 
 a customary estate tail, which may be barred by a simple surrender, the 
 consent of the protector, if any, being entered on the Court Rolls. 3 
 
 § 7. An equitable entail is where lands or tenements are vested in 
 trustees in trust for a person as tenant in tail. Such an entail may be 
 barred in the same manner as an ordinary entail. 4 (See Disentailing Deed.) 
 § 8. A quasi entail at law is where an estate pur auter vie is given to 
 a man and the heirs of his body : as if land held during the life of A. is 
 given to B. and the heirs of his body. In such a case, B. may bar the 
 quasi entail by a simple deed of grant; if he dies in the lifetime of A. 
 without having done so, the land descends to the heir of his body as 
 special occupant. 6 (See Occupant.) A customary quasi estate tail in 
 copyholds is similar. 6 
 § 9. A quasi estate tail in equity is where land held on lease for lives 
 
 1 Co. Litt. 20 b; 25 b; Litt. § 283. 
 
 2 Co. Litt. 18 b; Steph. Comm. i. 240. 
 
 3 William on Seisin, 164 ; R. P. 364. 
 
 4 Cooper v. Macdonald, 7 Ch. D. 289 ; 
 Williams, R. P. 165, 381. 
 
 5 Williams on Seisin, 166. 
 « Ibid. 168. 
 
Estate Tail law dictionary. Estoppel ^zi 
 
 with a covenant for perpetual renewal is given to a person and the heirs 
 of his body : it may be barred by deed inter vivos. 1 A customary quasi 
 estate tail in equity in copyholds is similar. 2 
 
 § 10. As an estate tail can now be barred or converted into an estate in Modem use 
 fee simple by the owner, subject to certain restrictions, the Object with ° fenti «ls. 
 which estates tail were invented, namely, " to preserve the inheritance in 
 the blood of them to whom the gift was made," 3 is not completely 
 secured. The principal use of estates tail at the present clay is to keep 
 an estate in a family for two generations : thus, on the marriage of the 
 owner of an estate, it is generally settled on him for life, with remainder 
 in tail to the eldest son of the marriage ; when a son is born, he is tenant 
 in tail, subject to his father's life estate, and when he attains twenty-one, 
 he is able, with the consent of his father as protector (q . v.), to bar the 
 entail : the father usually gives his consent on the terms of the estate 
 being re-settled on the son for life, with remainder in tail to his issue, 
 and so on. 4 (See Settlement ; Frankinarriage ; Formedon; Bar ; Disentail ; 
 Fine; Recovery; Tenant in Tail after Possibility of Issue extinct; Descent; 
 Tenant in Tail ex Provisione Viri.) 
 
 Etymology and History.] — Norman French, fee tailU, tayli ; 5 low Latin, feodum 
 talliatum, from taiUer, tattiare, to cut or "limit to some certaine inheritance."" 
 
 ESTOPPEL is an admission of so conclusive a nature that the party 
 whom it affects is not permitted to aver against it or offer evidence to 
 controvert it. 7 
 
 Estoppels are generally divided into three kinds — by matter of record, 
 by deed, and in pais. 3 
 
 § 2. Estoppel by matter of 'record is based on the principle that a By record, 
 record imports such absolute verity that no person against whom it is 
 producible shall be permitted to aver against it. 9 The most important 
 kind of estoppel by record occurs in the case of judgments (q. v.): thus, 
 where A. wrongfully signed judgment against B., it was held that so long 
 as the judgment stood B. could not dispute it, and that his remedy was to 
 apply to the Court to set it aside. 10 Other instances of estoppel by record 
 occur in the case of letters patent, fines and recoveries, &c. u {Zee Record.) 
 
 § 3. Estoppel by deed or specialty is based on the rule that no man is By deed, 
 allowed to dispute his own solemn deed: 12 hence, as a general rule, if a 
 person executes a deed containing a recital or statement, he cannot after- 
 wards deny the truth of it, or show it to be incorrect. 
 
 § 4. Estoppel by matter in pais occurs in the case of estoppel " by By matter in 
 liverie, by entry, by acceptance of rent, by partition and by acceptance P als- 
 
 1 Williams on Seisin, 167. ° Co. Litt. 260 a; R. v. Carlile, 2 B. & 
 
 2 Ibid. 168. Ad. 262, cited Smith's L. C. ii. 779. 
 
 3 Co. Litt. 19 a. ,0 Hufferv. Allen, L. R., 2 Exch. 15. 
 
 4 Williams, R. P. 51. " Co. Litt. 352 a. As to estoppel by 
 
 5 Britton, 216 b, 89 a. decrees of the old Court of Chancery, see 
 " Litt. § 18. Smith's L. C. ii. 801. 
 
 7 Smith's L. C. ii. 778 (notes to Doe v. '- Goodtitle v. Bailey, Cowp. 601, cited 
 Oliver, 5 M. & R. 202, and The Duchess in Smith's L. C.ii. 845 ; General Finance, 
 of Kingston's Case). dfc. Co. v. Liberator, &°c. Society, 10 Ch. 
 
 8 Co. Litt. 352 a. D. 15. 
 
328 
 
 LAW DICTIONARY. 
 
 Estovers 
 
 Estoppel by 
 misrepresenta- 
 tion and neg- 
 ligence. 
 
 Estoppel by 
 negligence. 
 
 Equitable 
 estoppel. 
 
 Estoppel 
 
 of an estate." l The most important of these instances at the present day 
 is the last, which occurs when a person has accepted a lease from one 
 who has no title whatever to grant it ; in such a case, neither the tenant 
 nor anyone claiming under him can dispute the lessor's title ; the tenant 
 is therefore said to have an estate by estoppel, and the lessor a reversion 
 in fee simple by estoppel, and if the lessor subsequently acquires an 
 interest which, if he had had it before, would have enabled him to grant 
 the lease validly, the interest is said to feed the estoppel, so that the lease 
 is as effectual for all purposes as if the lessor had had a sufficient interest 
 when he granted it. 3 § 5. A licensee of a patent, &c. is similarly estopped 
 from denying the patentee's right to the patent. 3 
 
 § 6. There are also many modern rules which may be referred to the 
 doctrine of estoppel in pais : such are those that the acceptor of a bill 
 of exchange is precluded from denying the drawer's handwriting ; that a 
 bailee cannot question the title of his bailor, &c., 4 the general rule being 
 that where a man by his words or conduct wilfully or by negligence 
 causes another to believe in the existence of a certain state of things, 
 and induces him to act on that belief, so as to alter his own previous 
 position, the former is concluded from denying the existence of that state 
 of facts. 5 Thus, where a person draws a cheque in such a manner 
 that the amount may be altered without difficulty, and it is altered by 
 being increased, he cannot sue his banker for paying the increased 
 amount, because he is estopped by his own negligence. 6 
 
 § 7. Equitable estoppel, or estoppel by acquiescence, occurs where 
 a person by tacitly representing his own position to be more favourable 
 to another person than it really is, has induced that other to alter his 
 position on the faith of the representation being true. Thus, if a 
 stranger begins to build on land, supposing it to be his own, and the 
 real owner, perceiving his mistake, abstains from setting him right, 
 and leaves him to persevere in his error, the Court will not afterwards 
 allow the real owner to assert his title to the land. 7 
 
 § 8. A person who has a public or quasi public status (such as the 
 vicar of a parish) cannot waive or divest himself of the rights incident 
 to his office by conduct which, in the case of a private person, would 
 amount to estoppel. 3 
 
 ESTOVERS.— § 1. Every tenant for life or years of freehold land, 
 unless restrained by agreement, may of common right take upon the 
 land a reasonable quantity of wood for fuel, repairs, &c. This is called 
 estovers, or botes, which are sometimes divided into house-bote, for fuel 
 
 1 Co. Litt. 352 a. 
 
 - Smith's L. C. i. 97, ii. 852 ; Wood- 
 fairs L. & T. 2, 196; Crealock v. Heath, 
 L. R., 10 Ch. 22. 
 
 3 Clark v. Adie, 2 App. Ca. at p. 435. 
 
 i Smith's L. C. ii. 866. 
 
 5 Pickard v. Scars, 6 A. & E. 475 ; 
 Smith, 868 ; Lindley on Partnership, 1303; 
 Car/- v. London and North Western Rail. 
 Co., L. R., 10 C. P. 307 ; Pollock on 
 
 Contract, 403 ; Burkinshaw v. Nicolls, 
 3 App. Ca. at p. 1026. 
 
 Guardians of Halifax v. Wheel- 
 wright, L. R., 10 Ex. 183 ; Arnold v. 
 Cheque Bank, I C. P. D. 578 ; Baxendale 
 v. Bennett, 3 Q. B. D. 525. 
 
 7 Ramsden v. Dyson, L. R., I H. L. 
 . 129 ; Pollock on Contract, 561. 
 
 8 Mac Allister v. Bishop of Rochester, 
 5 C. P. D. 194. 
 
E strays law dictionary. Evidence 329' 
 
 and repairs of the house, plough-bote for making and repairing instru- 
 ments of husbandry, and hay-bote for repairing fences ' (Anglo-Saxon, 
 hegge ; Norman-French, haye," a hedge or enclosure). § 2. Copyholders' 
 rights of estovers are sometimes subject to customary restrictions. 3 
 § 3. As to common of estovers, see Common, § 11. (From the old 
 French, estevoir or estovoir, that which is necessary. 4 ) 
 
 ESTRAYS are such valuable animals as are found wandering in any 
 manor or lordship, and no man knoweth the owner of them ; after they 
 have been prdclaimed and kept for a year and a day without the owner 
 appearing, the law gives them to the crown ; in most cases, however, 
 they belong to the lord of the manor by special grant from the crown. 6 
 (See Prerogative, .) 
 
 ESTREAT. — If the condition of a recognizance is broken, the re- 
 cognizance is forfeited, and, on its being estreated, the cognizors become 
 debtors to the crown for the sums in which they are bound. A recogni- 
 zance is estreated (that is, extracted) by a copy being made from the 
 original and sent to the proper authority to be enforced ; thus, estreated 
 recognizances in the superior Courts and Courts of Assize are sent into 
 the Exchequer, while those before justices of the peace are sent to the 
 sheriff, with writs of execution to enable him to levy the amounts. 6 
 
 EVICTION is a popular term for turning a tenant of land out of 
 possession, either by re-entry or by legal proceedings, such as an action 
 of ejectment. 
 
 EVIDENCE is means employed for the purpose of proving an 
 unknown or disputed fact, and is either judicial or extra-judicial. Judicial Judicial, 
 evidence is that which is used on trials or inquiries before Courts, judges, 
 commissioners, referees, &c, while extra-judicial evidence is that which Extra-judicial, 
 is used to satisfy private persons as to facts requiring proof. § 2. An Conveyancers' 
 important kind of extra-judicial evidence is that known as conveyancers' evldence - 
 evidence, namely, that evidence which by the practice of conveyancers is 
 required in the investigation of the title to property, in proof of facts on 
 which the goodness of the vendor's title depends : such are original 
 title deeds, probates of wills, certificates of births, deaths and marriages, 
 statutory declarations, &c. 7 Evidence by statutory declaration is some- Declaratory, 
 times called declaratory evidence. 
 
 Judicial evidence is of the following kinds : — Judicial 
 
 I. § 3. Evidence is direct where the fact proved by it (the evidentiary EvlDENCE - 
 fact) is the fact in issue, or the fact required to be proved ; 8 as where Direct, 
 
 1 Co. Litt. 41b; Britton, 153. Archbold's Crim. PI. 92 ; Pritchard's Quar. 
 
 2 Britton, 184 a. Sess. 1108. 
 
 3 Elton, Copyh. 209. ' See Coventry, Conv. Evid.', passim. 
 
 4 Loysel, Inst. gl. ; Termes de la Ley. The old writers frequently describe title- 
 
 5 Bl. Comm. i. 297 ; Steph. Comm. ii. deeds as "evidences;" " the evidences are, 
 caS. as it were, the sinewes of the land ;" Co. 
 
 ■ 6 Stats. 3 & 4 Will. 4, s. 99 ; 3 Geo. 4, Litt. 6 a, 213 a; Ducange, s. v. Evidential. 
 c.46; 7 Geo. 4,0.64; 16 & 17 Vict. c. 32; 3 See Best on Evidence, 25. 
 
330 
 
 Evidence 
 
 LAW DICTIONARY. 
 
 Evidence 
 
 indirect. 
 Conclusive, 
 
 circumstantial, 
 or presump- 
 tive. 
 
 Prima facie. 
 Real, 
 
 documentary, 
 
 personal. 
 
 Opinion. 
 
 Oral, 
 written. 
 
 Original, 
 primary, 
 immediate. 
 
 Derivative, 
 
 on a trial for murder a witness deposes that he saw the prisoner kill the 
 deceased. § 4. Indirect evidence is where the existence of the fact in 
 issue is inferred from the evidentiary fact. Such evidence is — (i) con- 
 clusive, when the existence of the fact in issue follows either by a 
 necessary consequence of the laws of nature or from a rule of law (as 
 where an alibi is proved, or the certificate of incorporation of a company 
 is produced) : or (ii) circumstantial or presumptive, where it only rests on 
 a greater or less degree of probability ; as where a person accused of 
 a murder is proved to have in his possession the instrument by which 
 the deceased was killed. 1 Evidence which shifts the burden of proof 
 is called prima, facie evidence. 2 (See Presumption ; Proof!) 
 
 II. § 5. Real evidence is that which is derived from any object belong- 
 ing to the class of things : thus, footsteps in a field are real evidence that 
 some one has been there ; and the production of a mutilated document 
 is real evidence of the mutilation. 3 § 6. Documentary evidence is that 
 derived from conventional symbols (such as letters), by which ideas 
 are represented on material substances. A written contract is docu- 
 mentary evidence. Documents are divided into those which prove 
 themselves (such as the London Gazette, probates of wills, certificates 
 by registrars and other officials, &c. ; 4 and those which require personal 
 evidence to prove them, such as agreements, deeds and other private 
 documents. (See Ancient Documents.') § 7. Personal evidence is that 
 which is afforded by human beings, either by words or by signs intended 
 to convey ideas. It may be personal either as to its source, as where 
 a person deposes to a fact which he has seen {e.g., an assault); or as 
 to its instrument, that is, the means by which it is brought before the 
 tribunal. The former class has some kinds with special names, of which 
 opinion evidence, and its principal variety, expert or scientific evidence, 
 are the most important. 6 § 8. The latter class (evidence personal by 
 reason of its instrument), also called testimony, is either oral or written. 
 Oral evidence is that given by a witness viva voce before the tribunal. 
 Written evidence is given either by affidavit or deposition (q. v.). In 
 actions in the High Court, the evidence on the trial of the action is 
 given orally in Court, unless the parties agree to have it taken by 
 affidavit, and subject to the rule that the Court may order certain 
 witnesses to be examined before an examiner or on a commission, or 
 order a particular fact or facts to be proved by affidavit." 
 
 III. § 9. Original evidence is that which comes from its source 
 without passing through any intermediate channel ; as where a witness 
 deposes to a fact within his own knowledge, or where a thing or an 
 original document is produced to the tribunal. Original documentary 
 evidence is called primary evidence ; original real evidence is sometimes 
 called immediate real evidence. § 10. Derivative, unoriginal, transmitted, 
 
 1 Best, 25. 
 
 2 Ibid. 434. 
 
 3 The classification of real, personal and 
 documentary evidence here given is not 
 that given in the text hooks, where there 
 
 seems to be some confusion between 
 sources and instruments of evidence. 
 
 4 Powell on Evid. 360. 
 
 6 Best, 648. 
 
 6 Rules of Court, xxxvii. 
 
Evidence law dictionary. Evidence 
 
 331 
 
 second-hand or reported evidence, is that which is brought from its 
 source through an intermediate channel, as where a witness offers to prove 
 a fact of the existence of which he has been informed by another person, 
 or describes the condition of a thing or the contents of a document not 
 produced ; so a copy of a document is derivative evidence of the contents 
 of the original. 1 Derivative evidence is called — (i) hearsay or second- hearsay, 
 hand, 2 when a witness makes a statement on the authority of another 
 person (see Declaration, § 5) ; (ii) secondary or parol, when the contents secondary, 
 of a document are brought before the Court either orally or by means ( parol >' 
 of a copy ; and (iii) reported, when the original source is real, as where reported, 
 the appearance of a thing is described by a witness. §11. The distinction 
 between original and derivative evidence is important with reference 
 to the rule that where two kinds of evidence are accessible, the best 
 evidence must be given; 3 hence secondary evidence of the contents 
 of a document is not admissible if the original can be produced.* (See 
 Notice to Produce!) 
 
 IV. § 12. Substantive evidence is that adduced for the purpose of Substantive, 
 proving a fact in issue, as opposed to evidence given for the purpose of discrediting, 
 discrediting a witness (that is, showing that he is unworthy of belief) or corroborative, 
 of corroborating his testimony. 6 (See Discredit.) 
 
 V. § 13. Evidence may be either intrinsic [internal] or extrinsic. Intrinsic. 
 Intrinsic evidence is that which is derived from a document without any- 
 thing to explain it, or, as it is said, "without going beyond the four 
 corners of the document." The terms " intrinsic" and " internal" are not 
 common in practice. § 14. Extrinsic or parol evidence is evidence given Extrinsic 
 to explain, vary or contradict a document, being derived from some other (parol), 
 source than the document itself. 6 It is called (i) explanatory evidence, 
 where it is used for the purpose of ascertaining the meaning of the words 
 actually used in the document, and (ii) evidence to prove intention, where 
 
 the object is to show what was intended to have been, but has not been, 
 written. The principal varieties of explanatory evidence are (a) evidence 
 of usage to show that certain words in the document were employed in a 
 technical sense understood by the parties, 7 and (b) evidence of circum- 
 stances (tautologically, " surrounding" or "collateral" circumstances), as 
 where evidence is given of the state of a testator's family, in order to 
 explain the provisions of his will. 8 Evidence of intention is as a rule 
 only admissible to explain latent ambiguities : thus where a testator 
 
 1 Best, 26. custody of the original ; stat. 14 & 15 Vict. 
 
 2 Roscoe's Crim. Ev. 2J. c. 99. (See Certified Copy ; Copy.) 
 
 3 Best, 115; see, however, as to evi- 5 Best, 803, 246, 773; Roscoe, 65, Evidence in 
 dence of the condition of a chattel, &c, where "evidence in chief" is also used as chief. 
 
 R. v.Francis, L. R., 2 C. C. R. 128; equivalent to "substantive evidence;" 
 Roscoe, 2. "evidence in chief " is more commonly 
 * Where, however, a document is of used in speaking of affidavit evidence, or 
 such a public nature as to- be admissible in of evidence given on an examination in 
 evidence on its mere production from the chief. (See Affidavit ; Examination.) 
 proper custody, a copy of or extract from 6 Wigram, Extrin. Ev. passim ; Wat- 
 it is admissible in evidence if it is either son's Comp. Eq. 1208. 
 proved to have been examined with the 7 Best, 319. 
 
 original, or purport to be certified as a true 8 Charter v. Charter, L. R., 7 H. L. 
 
 copy or extract by the officer having the 364. 
 
332 Ex Parte LAW DICTIONARY. Examination 
 
 gives a legacy to William Smith, evidence is admissible to prove which 
 William Smith he intended. 1 (See Admission ; Confession; Declaration; 
 Estoppel; Examination; Fact; Notice; Presumption; Proof; Res gestce; 
 Voir dire.) 
 
 EX PARTE. — § i. In its primary sense, " ex parte," as applied to 
 an application, in a judicial proceeding, means that it is made by a person 
 who is not a party to the proceeding, but has an interest in the matter 
 which entitles him to make the application. Thus in a bankruptcy 
 proceeding or an administration action, an application by A. B., a 
 creditor or the like, would be described as made " ex parte A. B.," that 
 is, on the part of A. B. § 2. In its more usual sense, ex parte means that 
 an application is made by one party to a proceeding in the absence of the 
 other. Thus an ex parte injunction is one granted without the opposite 
 party having had notice of the application. It would not be called 
 ex parte if he had proper notice of it, and chose not to appear to 
 oppose it. 
 
 EX RELATIONE = from a narrative or information. 
 
 A case decided in a Court of justice is said to be reported ex relatione 
 (or ex rel. amici) when the reporter derives his knowledge of it not from 
 having been present-in Court, but from notes or information communicated 
 to him by some one who heard the case argued and decided. 3 
 
 EXAMINATION is the interrogation of a person on oath, and is 
 either by written interrogatories (q. v.) or viva. voce. § 2. The commonest 
 instance of viva voce examination occurs in obtaining evidence from wit- 
 nesses, who are examined in Court or before an officer of the Court or an 
 examiner {q. v.). §3. When the evidence of the witness is obtained by 
 oral examination, this is called the examination-in-chief ; when a witness 
 has been so examined, or has made an affidavit on behalf of the party 
 calling him, and is then examined on behalf of the opposite party in 
 order to diminish the effect of his evidence, this is called cross-examina- 
 tion, and when he is again examined by the party calling him in order to 
 give him an opportunity of explaining or contradicting any false im- 
 pression produced by the cross-examination, this is called re-examination ; 
 it is necessarily confined to matters arising out of the cross-examination. 3 
 (See Deposition ; Interrogatory ; Testimony; Voir dire!) 
 As to debts. § 4. Sometimes an examination is in the nature of a cross-examination, 
 as in the case of a judgment debtor being examined as to what debts are 
 owing to him, with a view to their being attached. 4 (See Attachment, 
 § 5 ; Garnishee.) 
 
 1 Best, 314. Numerous other classifi- » Best on Evidence, 786; Roscoe, Crim, 
 
 cations of evidence will be found in Best Ev. 140 ; Rules of Court, xxxvii. 2, xxxviii. 
 
 and in Bentham's works on evidence ; but 4. 
 
 they have not been adopted in practice. 4 Rules of Court, xlv. ; Republic of 
 
 - See an instahce mentioned in Shattock Costa Rica v. Strousberg, 16 Ch. D. 8. 
 v. Shattock, L. R., 2 Eq. at p. 191. 
 
Examination law dictionary. Except 333 
 
 § -5. In bankruptcy, every bankrupt must attend the first meeting of Bankrupts, 
 creditors to be examined with reference to his affairs. He must also pass 
 a public examination in Court within an appointed time after the first 
 meeting, and may at any time be summoned by the Court to be examined. 
 The examination is limited to inquiries as to his property and trade 
 dealings (if any). 1 
 
 § 6. Persons desirous of being admitted solicitors of the Supreme Solicitors. 
 Court are as a rule required to pass three examinations ; namely, a 
 preliminary examination in general knowledge (English, Latin, arithmetic, 
 &c.) before being articled ; an intermediate examination in elementary 
 law after half the time under articles has been served, in order to 
 ascertain the progress made by the articled clerk in acquiring the 
 knowledge necessary for a solicitor ; and a final examination to test the 
 fitness of the candidate to transact the business of a solicitor. The 
 examinations are conducted by the Incorporated Law Society. 3 (See 
 Articled Clerk ; Barrister; Inns of Court.) 
 
 EXAMINER is a person appointed by a Court to take the examina- 
 tion of witnesses in. an action, that is, to take down the result of their 
 interrogation by the parties or their counsel either by written interroga- 
 tories or viva. voce. (See Examination.) An examiner is generally 
 appointed where a witness is in a foreign country, or is too ill or infirm 
 to attend before the Court, and is either an officer of the Court, or 
 a person specially appointed for the purpose. (See Commission, § 7 ; 
 Deposition; Master.) 
 
 § 2. There is an examiner attached to the Chancery Division of the Chancery. 
 High Court to take the examination of deponents or witnesses. In 
 cases requiring expedition a special examiner is frequently appointed. 
 Under the practice of the Court of Chancery before the Judicature Acts, 
 the evidence to be used on the hearing of a cause was taken either by 
 affidavit or deposition before the examiner ; persons so giving evidence 
 were subject to cross-examination and re-examination. 3 This practice 
 has been abolished. (See Evidence, § 7.) 
 
 EXCEPT — EXCEPTION. — § 1. In conveyancing, an exception is a Convey- 
 clause in a deed whereby the feoffor, donor, grantor, lessor, &c. excepts ancm S- 
 something out of that which he had granted before by the deed, so that 
 the thing excepted does not pass by the grant. An exception must be 
 part of the thing granted, and must be in esse at the time of the. 
 grant, while a reservation (q. v.) must be of some new thing issuing out 
 Of the thing granted. 4 
 
 § z. In procedure, to except to a thing is to object to or challenge it. Procedure. 
 Thus to except to bail or sureties is to object to their sufficiency (see 
 
 - 1 Robson's Bankruptcy, 539. 3 Hunter's Suit, 72. 
 
 . B See the Solicitors Act, 1877, and the 4 Shepp. Touch. 78 ; Davids. Conv. 
 
 acts recited in the preamble. i. 95- 
 
334 
 
 Except 
 
 LAW DICTIONARY. 
 
 Exchange 
 
 Bail, § io ; Justification) ; l and in Chancery practice, to except to an answer 
 to interrogatories or affidavit of documents is to object to its sufficiency, 
 which is done by applying to the Court or judge on summons or motion 
 to consider the sufficiency of the answer or affidavit. 2 Formerly if a 
 defendant to a Chancery suit put in an . insufficient answer to interroga- 
 tories, the plaintiff filed exceptions, that is, objections, to it, which were 
 set down in the cause-list and argued in Court. 3 
 
 § 3. Where, on the trial of an action by a jury, the judge misdirects the 
 jury as to the law, or admits or rejects evidence wrongly, the party 
 aggrieved enters an exception upon the record, and thereupon makes a 
 motion for a new trial. (See Direction; Trial.) This is a substitute for 
 the old proceeding by bill of exceptions 1 (q. v.). 
 
 Of land. 
 At common 
 law. 
 
 Modern ex- 
 change. 
 
 By Inclosure 
 Commis- 
 sioners. 
 
 EXCHANGE in its widest sense is where A. transfers property to B. 
 in consideration of B. transferring property to A. 
 
 I. Exchanges of Land. § 2. At common law an exchange is the mutual 
 conveyance of equal interests in land or other hereditaments, corporeal or 
 incorporeal ; by equal interests is meant that the quantity of estate given 
 and taken must be equal, e. g., an estate in fee simple in exchange for an 
 estate in fee simple. 5 Before the stat. 8 & 9 Vict. c. 106 an exchange 
 was effected by the mere entry of each party on the land taken by him in 
 exchange, without livery of seisin and without deed, except in the case of 
 hereditaments lying in grant, or of lands situate in different counties ; 
 every exchange also implied a warranty, so that if one party was evicted 
 from his newly-acquired land owing to a defect in the title, he could 
 re-enter on the land originally held by him. But now by the stat. 8 & 9 
 Vict. c. 106, every exchange must be by deed, and the implied warranty 
 has been abolished. 6 § 3. Exchanges at common law have long been 
 practically obsolete, and at the present day an exchange is generally 
 effected by mutual but separate conveyances in the form of ordinary 
 deeds of grant.' § 4. By the act 8 & 9 Vict. c. 118, provision is made for 
 exchanges of land under the direction of the Inclosure Commissioners 
 in cases where they have satisfied themselves by inquiries that the pro- 
 posed exchange will be beneficial to the owners of the respective lands, 
 and that the terms are just and reasonable. They thereupon make an 
 order of exchange, which carries the arrangement of the parties into 
 effect. An application for an exchange can be made by the person in 
 possession of the lands, 8 but it is not necessary that both parties should 
 have estates equal in duration, for the effect of the exchange is simply to 
 substitute one piece of land for another, so that if lands belong to A. for' 
 life, with remainder to B., A. can by obtaining an order of exchange, 
 effect an exchange with C, a tenant of other lands in fee simple ; then 
 
 1 Smith's Action (nth ed.), 235. 
 
 2 Rules of Court, xxxi. 9 ; Daniell, Ch. 
 Pr. 1680. 
 
 3 Hunter's Suit, 52. 
 
 * Rules of Court, lviii. I ; Jud. Act, 
 1875, s. 22. 
 
 5 Co. Litt. 50 a ; Shepp. Touch. 289. 
 " Williams, R. P. 446. 
 
 7 Davids. Conv. (2), 77. 
 
 8 Stats. 8 & 9 Vict. c. 118, ss. 16, 147 ; 
 17 & 18 Vict. c. 97, s. S ; Williams, R. P. 
 326, n. (»j). 
 
Exchange law DICTIONARY. Exchequer 335 
 
 C.'s lands vest in A. for life, with remainder to B. If the lands are not of 
 equal value, the difference in value may be compensated by a perpetual 
 rentcharge on the land which is of lesser value. 1 
 
 II. Goods. § 5. An exchange of goods is a transfer of goods from A. Of goods, 
 to B. in exchange for a transfer of goods from B. to A. Such a trans- 
 action, which hardly differs from a sale (q. v.), is more commonly called 
 barter. 
 
 See Owelty of Exchange. 
 
 EXCHANGE, BILL OF. See Bill of Exchange. 
 
 EXCHEQUER is a public office, and formerly consisted of two 
 divisions — the receipt of the exchequer and the Court of the Exchequer. 
 The former manages the royal revenue, that is, it receives and keeps the 
 public money, and sees that none of it is paid out except on proper 
 authority. (See Treasury?) Accordingly, all the principal revenues [e. g., 
 those arising from the customs, inland revenue, the post office, &c.) are 
 paid into the Bank of England, to the credit of the exchequer; and 
 payments for the public service are made out of the fund thus formed. 
 By a recent act, the audit department (or office for auditing the public 
 accounts) has been consolidated with the exchequer, and the two depart- 
 ments placed under the management of a comptroller and auditor general 
 and subordinate officers. 2 
 
 § 2. The Court of, Exchequer was originally a Court having juris- Court of 
 diction only in matters concerning the public revenue, e. g., in suits by xchec l uer - 
 the crown against its debtors ; but it afterwards acquired (by the use 
 of fictitious pleadings) jurisdiction in ordinary civil actions between 
 subject and subject. It was formerly sub-divided into a Court of Common 
 Law and a Court of Equity ; but by stat. 5 Vict. c. 5, its equitable jurisdic- 
 tion (except in revenue matters 3 ) was transferred to the Court of Chan- 
 cery. And by the Judicature Acts,. 1873, 1875, the jurisdiction of the 
 Court of Exchequer, as a Court of revenue as well as a common law 
 Court, was transferred to the High Court of Justice ; the judges of the 
 Court of Exchequer, and their successors, continued to form a division 
 of the High Court, called the Exchequer Division, to which all causes 
 which would formerly have been within the exclusive cognizance of 
 the Court of Exchequer were assigned, 4 until the three "common law" 
 divisions of the High Court were merged into one. (See High Court of 
 Justice; Baron.) 
 
 Etymology.] — Low Latin : scaccarium, from the chequered cloth, resembling a chess 
 board, which covered the table on which, when certain of the king's accounts were made 
 up, the sums were marked and scored with counters. 6 (See Cheque, etymology.) 
 
 1 Stat. 20 & 21 "Vict. c. 31, s. 6. As to Madox, Exch. ; and Gilbert, Exch. 
 
 the exchange of benefices, see Phill. Eccl. 3 Att.-Gen. v. Hailing, 15 M. &W.687; 
 
 Law, 502. see Corporation of Londony. Att.-Gen., 1 
 
 2 Exchequer and Audit Departments H. L.C. 440; Att.-Gen. v. Metr. D. Rail- 
 Act, 1866. For details see Homersham zooj'Co.,sEx.D.2i8. (See Information.) 
 Cox, Inst. 678 et seq. ; Steph. Comm. ii. * Jud. Act, 1873, ss - l6 > 34- 
 
 528. For the history of the exchequer, see 6 Bl. Comm. iii. 44. 
 
336 Exchequer Bills law dictionary. Excommunication 
 
 EXCHEQUER BILLS are bills issued by government for the 
 purpose of raising temporary loans, generally in anticipation of the 
 supplies granted by parliament, and occasionally for carrying on public 
 works, &c. ; they entitle the bearer (or the person named in each bill, if 
 the blank left for that purpose is filled up) to the sum for which 
 they are issued, to be paid at a time to be fixed by advertisement, with 
 interest in the meantime. 1 They are negotiable instruments. 3 
 
 EXCHEQUER CHAMBER.— The Court of Exchequer Chamber was a Court 
 of Error (that is, a Court of Appeal) from each of the three superior Courts of common 
 law, and consisted of the judges of the two Courts other than that whose decision 
 was being appealed against ; that is, when error was brought from u. judgment of the 
 Queen's Bench, the Exchequer Chamber consisted of the judges of the Common Pleas 
 and Exchequer, and so on. By the Judicature Acts the Exchequer Chamber was abo- 
 lished and its jurisdiction was transferred to the Court of Appeal. 3 
 
 • EXCISE is properly a duty on certain commodities, charged in most 
 cases on the manufacturer ; such are duties on spirits, malt, tobacco, &c. 
 There also duties which, though not properly in the nature of excise, are 
 classed under this head ; such as the licences which are required to be 
 taken out annually by those who manufacture or deal in certain goods, or 
 carry on certain employments ; 4 and also what are more commonly known 
 as assessed taxes, being those payable by persons who use male servants, 
 horses, carriages and armorial bearings. 2 (See Licence.) 
 
 EXCLUSIVE. See Appointment, § 3 ; Jurisdiction ; Power. 
 
 EXCOMMENCEMENT = Excommunication 6 {q. v.). 
 
 EXCOMMUNICATION is an ecclesiastical punishment, being a 
 censure {q. v.), whereby the person against whom it is pronounced is for 
 the time cast out of the communion of the Church.' It is said to be of 
 
 Lesser. two kinds — the lesser and the greater. § 2. The lesser excommunication 
 
 deprives the offender of the use of the sacraments and divine worship : 
 this sentence was formerly passed by judges ecclesiastical, on such 
 persons as were guilty of obstinacy or disobedience in not appearing 
 upon a citation, or not obeying the orders or decrees of the Court ; but 
 
 Greater. j n these cases it is no longer applicable. 8 § 3. The greater excommuni- 
 
 cation is that whereby men are deprived, not only of the sacraments and 
 the benefit of divine offices, but of the society and conversation of the- 
 faithful.' It can only be pronounced as a punishment or censure for an 
 ecclesiastical offence. If the person does not submit within forty days 
 after the' sentence of excommunication, he may be arrested and imprisoned 
 
 1 Horn. Cox, Eng. Gov. 193 ; Johnston Act, 1880. 
 
 on Exch. Bills. 5 Stat. 32 & 33 Vict. c. 14, part v. 
 
 2 Wookey v. Pole, 4 B. & A. I. 6 Co. Litt. 134 a. 
 
 3 Steph. Comm. iii. 333 ; Jud. Act, 7 Phillimore, Eccl. Law, 1400 ; Co. 
 1873, s. 18; Jud. Act, 1875. Litt. 133 b. 
 
 4 Steph. Comm. ii. 565; Inland Revenue 8 Stat. 53 Geo. 3, c. 127, ». 1. 
 
Excommunication LAW DICTIONARY. Execute 337 
 
 for any time not exceeding six months by the writ of de excommunicato 
 capiendo (q. v . and see Significavit)} 
 
 § 4. In some cases the Court has no discretion, but must pass sentence 
 of excommunication if the offender is found guilty ; as where a person 
 in holy orders is found guilty of smiting another in a church. This is 
 sometimes called excommunication ipso facto. 2 (See Brawling?) 
 
 § 5. Excommunication, as a punishment for contempt of the decrees 
 of Ecclesiastical Courts, has been abolished, and that of contumacy (q. v.) 
 substituted. 
 
 EXECUTE— EXECUTED—EXECUTION.— § 1. To execute is 
 to complete or carry into effect ; execution is the act of doing so. Thus, 
 to execute a deed is to sign, seal and deliver it (see, Deed) ; and the 
 Statute of Uses is said to execute a use when a use is carried into effect 
 by being converted into a legal estate. (See Use.) As to executed 
 contracts and trusts, see Contract, §13; Trust. 
 
 § 2. When a person makes an appointment under a power, he is Execution of 
 commonly said to execute it, though the term " exercise " is more P ower - 
 appropriate. In general a power of appointment requires to be exercised Defective 
 with certain formalities, e.g., by deed or by will; when there is an executl0u - 
 intention to exercise a power, but the formalities have not been complied 
 with, the power is said 'to be defectively executed. In certain cases, 
 and in favour of certain persons, the High Court (following the rules 
 of the Court of Chancery) will aid or supply the defective execution 
 of a power ; that is, consider it as having been properly executed, not- 
 withstanding a defect in the formalities, as where there is merely an 
 agreement to execute it, or where it is executed by will instead of by 
 deed ; this is sometimes called an equitable execution. 3 See also stat. 
 7 Will. 4 & 1 Vict. c. 26, as to the exercise of powers by will, and stat. 22 
 & 23 Vict. c. 35, as to the exercise of powers by deed. 
 
 § 3. To execute a judgment or order of a Court is to carry it into Execution of 
 effect or enforce it. In actions in the High Court, judgments are JU gmen ' 
 principally enforced by writs called writs of execution, which direct - 
 the sheriff or other persons either to do what is required to perform the 
 judgment (e.g., to deliver possession of land to a successful plaintiff), 
 or to compel the defendant or other person to do some act which he 
 is required to do. 4 (See the titles Fieri facias ; Elegit; Distringas; 
 Capias; Sequestration; Writ; Return?) In ordinary parlance, "execu- 
 tion " means execution to recover a debt, that being the most important 
 kind, and hence a creditor or debtor, by or against whom execution has 
 been issued, is called an execution creditor or debtor. (See Creditor; 
 Debtor.) 
 
 % 4. Continuing execution is where the process continues until all Continuing 
 T ° execution. 
 
 1 Stat. 53 Geo. 3, c. 127, s. 3. Powers; 530, 549. 
 
 2 Stat. 5 & 6 Edw. 6, c. 4; Phill. 1401. ' Rules of Court, xlii. et seq. ; Co. Litt. 
 
 3 Watson's Comp. Eq. 814 ; Sugden on 289 a. 
 
 S. Z 
 
338 
 
 Execute 
 
 LAW DICTIONARY. 
 
 Executor 
 
 Equitable 
 execution. 
 
 Quasi-execu- 
 tion. 
 
 Railway stock 
 and plant. 
 
 Criminal 
 execution. 
 
 Execution of 
 writ. 
 
 that has been commanded to be levied is levied ; as in the case of a 
 sequestrari facias. 1 
 
 § 5. In some cases a judgment may be enforced by means formerly 
 peculiar to Courts of Equity, and hence called equitable execution. 
 Thus, if a judgment debtor has an equity of redemption in land (an 
 interest which could not be taken in execution at common law), the 
 Court will appoint a receiver of the rents, profits and surplus proceeds of 
 sale of the property for the benefit of the creditor. 3 
 
 § 6. There are also some other kinds of proceedings available to en- 
 force or satisfy a judgment, which are hence usually treated of under 
 the head of execution ; such are charging orders, distringas on stock, 
 attachment of debts, &c. (see those titles). 
 
 § 7. The Railway Companies Act, 1867, enacts that the rolling stock 
 and plant of a railway company shall not be liable to be taken in execu- 
 tion ; but a judgment creditor of the company may obtain the appointment 
 of a receiver or manager of the company's undertaking; and the net 
 income of the company is then applied in payment of its debts. 3 
 
 § 8. In criminal proceedings, judgment against a prisoner is executed 
 by the sheriff, who causes him to be imprisoned, sent to penal servitude, 
 hanged, or otherwise dealt with according to the sentence. The term 
 execution, however, is commonly applied to execution of judgment of 
 death by hanging, which is now effected within the walls of the prison 
 where the offender is confined. 4 
 
 § 9. To execute a writ -is to obey the instructions contained in it: 
 thus, a writ of fi. fa. is executed by seizing and selling the goods of the 
 debtor. (See Return.) Writs are executed either personally, that is, 
 by the persons to whom they are directed, or by a substitute appointed 
 by warrant (q. v.). 
 
 EXECUTOR. — § 1. An executor is the person to whom the execution 
 of a will of personal estate, that is, the duty of carrying its provisions 
 into effect, is confided by the testator. The duties of- an executor are to 
 bury the deceased, to collect the estate, and, if necessary, convert it into 
 ' money ; to pay the debts in their proper order, then to pay the legacies, 
 and distribute the residue among the persons entitled. For these 
 purposes he may bring actions against persons who are indebted to the 
 testator, or are in possession of property belonging to the estate. Some 
 of these things, however, can only be done by him after he has proved 
 the will. (See Probate.) When several executors are appointed, and 
 only some of them prove the will, these are called the proving or acting 
 executors. 5 
 
 § 2. Married women and infants may be appointed and act as executors. 
 
 1 Smith's Action (ttth edit.), 398. 
 
 2 Anglo-Italian Bank v. Davies, 9 Ch. 
 D. 275 ; Ex parte Evans, 13 Ch. D. 252. 
 
 _ 3 As to when this power will be exer- 
 cised, see In re Manchester and Milford 
 Railway Co. 14 Ch. D. 645. 
 
 4 Stats. 31 Vict. c. 24; 24 & 25 Vict, 
 c. 100; Aichbold, Cr. PI. 649; Steph. 
 Comm. iv. 478. 
 
 6 Williams, Exec. 218 ; Bl. Comm. ii. 
 503 ; Browne, Prob. Pr. 207. 
 
Executor law DICTIONARY. Executor 339 
 
 In the case of an infant, however, letters of administration durante minore 
 setate require to be taken out to carry on the administration of the estate 
 until he attains majority. (See Grant.) 
 
 § 3. An executor nominate is one appointed expressly by the word Nominate, 
 " executor ;" an executor according to the tenor of the will is one according to 
 appointed by inference; for if by any words the testator recommends 
 or commits to a person the rights and duties which appertain to the 
 office of executor (as where he says, " I commit all my goods to the 
 disposition of A. B."), it is equivalent to an express appointment. 1 
 
 § 4. An executor de son tort (de son tort demesne, of his own wrong) is De son tort, 
 one who, being neither executor nor administrator, intermeddles with the 
 goods of the deceased, or does any other act characteristic of the office of 
 executor. When a man has so acted, he renders himself liable, not only 
 to an action by the rightful executor or administrator, but also to be sued 
 by a creditor or legatee of the deceased. 3 He has all the liabilities, 
 though none of the privileges, which belong to the character of executor. 3 
 
 § 5. An executor is allowed a year to realize the testator's estate before Executor's 
 being bound to distribute it. Consequently interest does not begin to year " 
 run on legacies until after the expiration of a year from the testator's 
 death, unless the will contains some special directions on the subject. 
 
 As to the payment of debts and distribution of the estate, see Adminis- 
 tration, § 2 ; Assets. Strictly speaking, an executor is bound to satisfy all 
 just claims on the estate before distributing it among the legatees and 
 other beneficiaries, whether he has had notice of such claims or not, and 
 also to provide for all future and contingent liabilities arising out of the 
 testator's estate, such as calls on shares, rents and covenants under leases 
 and the like. These responsibilities, however, have been considerably 
 reduced by the modern statutes referred to, infra, §§ 8 et seq. 
 
 § 6. Where a testator charges his real estate with the payment of his Power to sell 
 debts or legacies, and does not make any express provision for raising ^"^ J^lte 
 them, his executor may do so by sale or mortgage of the lands, unless the and legacies, 
 testator has devised them in such a manner that his whole estate and 
 interest in them has become vested in trustees, in which case they are the 
 persons to exercise the power of sale or mortgage. 4 No such implied or 
 statutory power, nor an express power to sell real estate, can be exercised 
 by an administrator, even if acting under letters of administration with the 
 will annexed. 5 
 
 § 7. If an executor dies before the estate is completely administered, Transmission 
 having by his will appointed an executor, the executor so appointed is ° ° ce " 
 also executor of the original testator. But if an executor dies without 
 having appointed an executor, letters of administration de bonis non must 
 
 ' Williams, 230 ; Browne, 133 ; In the * Stat. 22 & 23 Vict. c. 35, ss. 14— 16 ; 
 
 goods of Bell, 4 P. D. 85. and see Stat. 23 & 24 Vict. c. 145. As to 
 
 2 Williams, 247 et seq. the implied power of executors to sell in- 
 
 3 Ibid. 255. As to the meaning of the dependently of the statute, see Williams, 
 obsolete expressions executor a lege con- R. P. 221 ; Shelford, R. P. Stat. 
 stitutus, and executor ab episcopo constitu- 5 In re Clay and Tetley, 16 Ch. D. 3. 
 tus, or executor dativus, see ibid. 218. 
 
 7,1 
 
34° 
 
 Statutory 
 powers. 
 
 Executor 
 
 LAW DICTIONARY. 
 
 Executor 
 
 Liabilities 
 under leases, 
 &c. 
 
 Petition for 
 opinion of the 
 Court. 
 
 Power to 
 
 compromise, 
 
 &c. 
 
 be taken out. (See Grant.) Frequently the office of trustee is combined 
 with that of executor. (See Trustee.) 
 
 Numerous powers have been conferred on executors by modern acts of 
 parliament, the principal of which are as follows. 
 
 § 8. Under stat. 22 & 23 Vict. c. 35, s. 29, where an executor or 
 administrator has given such or the like notices for creditors and others 
 to send in to him their claims against the estate of the testator, as would 
 have been given by the Chancery Division of the High Court in an action 
 to administer the testator's estate, then the executor may, at the expira- 
 tion of the time named in the notices, distribute the assets without being 
 liable for any claims of which he has not received notice : but this 
 provision does not affect the right of any creditor or claimant to follow 
 the assets into the hands of any person who may have received them 
 {e.g., a legatee). 1 Notices to creditors under this section are given by 
 advertisement in the London Gazette and the principal newspapers 
 circulating in the places where the testator resided and carried on 
 business. 
 
 § 9. Under stat. 22 & 23 Vict. c. 35, s. 27, where an executor or 
 administrator has assigned to a purchaser a lease held by the testator, he 
 is not bound to set aside a fund to answer future claims under the lease, 
 unless it contains a covenant or agreement by the lessee to lay out a fixed 
 sum on the property at some future time, in which case he is bound to set 
 aside a sufficient fund for the purpose. But this provision does not 
 affect the right of the lessor to follow the assets of the deceased into the 
 hands of the persons among whom they have been distributed. 2 
 
 § 10. Under sect. 29 of the same act, an executor, administrator or 
 trustee ma)-, without the institution of an action, apply by petition or 
 summons to a judge of the Chancery Division, for the opinion, advice 
 or direction of the Court on any question respecting the management or 
 administration of the assets, and he is protected from responsibility if he 
 acts upon the opinion, advice or direction thus given, provided it was 
 obtained without misrepresentation or concealment. 3 
 
 § 11. Under stat. 23 & 24 Vict. c. 145, s. 27, executors are empowered 
 to pay debts or claims upon any evidence they think sufficient, and to 
 accept any composition or security for any debts due to the deceased, and 
 to allow time for payment of any debts, and also to compromise, com- 
 pound or submit to arbitration all debts, accounts, claims, &c. relating to 
 the estate of the deceased, without being responsible for any loss occa- 
 sioned thereby. 4 (See Will; Syndic; Renunciation.) 
 
 § 12. If notwithstanding these provisions an executor cannot safely 
 administer an estate without the supervision of the Court, he may 
 institute an action in the Chancery Division for the administration of the 
 estate, in which he will act in accordance with the directions of the 
 Court, and thus escape responsibility. (See Action, § 9, and the titles 
 there referred to, and title Discretion.) 
 
 1 Shelford, 720. 
 
 % Ibid. 718 ; sect. 28 contains a similar 
 provision as to lands held by a testator in 
 
 fee simple subject to rent-charges or the 
 like. 
 
 3 Shelford, 721. * Ibid. 740. 
 
Executory LAW dictionary. Exemplification 341 
 
 EXECUTORY is that which remains to be carried into effect, as 
 opposed to executed (q. v.). (See Bequest, § 3 ; Consideration, § 5 ; 
 Contract, § 13 ; Devise, § 3 ; Executory Interests ; Trust.) 
 
 EXECUTORY INTERESTS.— § 1. The term "executory in- 
 terests" includes all future estates and interests in land or personalty, 
 other than reversions and remainders. 
 
 § 2. As to executory interests in land, they are created either under Inland; 
 the Statute of Uses or by will. Executory interests under the Statute by way of use, 
 of Uses are created by springing or shifting uses, a common instance of 
 which occurs in an ordinary marriage settlement. Thus, supposing 
 
 A. to be the settlor, the lands are conveyed by him to the trustees 
 
 B. and C. and their heirs, to the use of A. and his heirs until the 
 intended marriage shall be solemnized, and immediately after the 
 solemnization thereof to the use of D., the intended husband, for life, 
 and so on. Until the marriage takes place, A. continues to be tenant in 
 fee simple of the land, and D. has an executory interest ; it is not a 
 contingent remainder, for the estate which precedes it, that of A., is 
 an estate in fee simple. As soon as the marriage takes place, the seisin 
 of the land shifts away from A., and vests in D. for his life. 1 
 
 § 3. Executory interests in land created by will are called executory by will, 
 devises. (See Devise, § 3.) 
 
 § 4. Executory interests in personalty are created either by conveyance In person- 
 inter vivos or by will; in the latter case they are sometimes called a y ' 
 executory bequests, 3 formerly executory devises. 3 In the wide sense 
 of the word, " executory interest " includes interests in personal property 
 analogous to remainders and reversions in land ; but such interests are 
 sometimes called remainders and reversions, as if they were estates 
 in land. Thus, if stock is transferred or bequeathed to trustees in trust 
 for A. for life, and after his death to B., the interest of B. might be 
 called either a remainder or an executory interest. 
 
 § 5. Executory interests must not transgress the rule against per- 
 petuities, or the provisions of the Thellusson Act. (See those titles.) 
 
 EXECUTRIX is a female executor. 
 
 EXEMPLARY. See Damages, § 4. 
 
 EXEMPLIFICATION is an official copy of a document made 
 under the seal of a Court or public functionary. Thus, an exemplification 
 of a will or probate is a copy under the seal of the Probate Division of 
 the High Court ; an exemplification of letters-patent, or of a private act 
 of parliament, is under the great seal. An exemplification is admissible 
 evidence to prove the original document. 1 (See Copy; Inspeximus.) 
 
 1 Wins. R. P. 279. 3 Feame, Cont. Rem. 418. 
 
 - Wras. P.' P. 260. i Co. Litt. 98 b, note, 225 b. 
 
342 Exequatur law dictionary. Exoneretur 
 
 EXEQUATUR is a permission by a government to the consul 
 of another State to enter upon the discharge of his functions in the 
 country of the government giving the exequatur. 1 
 
 EXERCISE is to make use of : thus, to exercise a right or power, 
 is to do something which it enables me to do. A power of appointment 
 is exercised by making an appointment under it. (See Enjoyment; 
 Execution, § 2.) 
 
 EXHIBIT.— When it is wished to put a document or moveable thing 
 in evidence by affidavit, a reference to it is made in the affidavit, as 
 being marked in some way for identification, and as having been produced 
 to the deponent at the time of his swearing the affidavit : the document 
 is marked in the way mentioned in the affidavit, generally with some 
 letter of the alphabet ; a memorandum referring to the affidavit is also 
 written on it, and signed by the commissioner or person before whom 
 the affidavit is made. The document is thenceforth called an exhibit, 
 from the Latin exhibere, " to produce or show." 3 It is not filed with the 
 affidavit. 
 
 EXIGENT, or EXIGI FACIAS, is a judicial writ used in obtaining 
 the outlawry of a person ; it requires the sheriff to exact the defendant, 
 i. e., to call on him at five successive sheriff's County Courts (or, in the 
 city of London, at five successive hustings) .to appear and answer the 
 plaintiff; if he makes default after being exacted five times, he is 
 outlawed. 3 (See Outlaw.) 
 
 EXONERATION is where a person or estate is relieved from a 
 liability, by the liability being thrown on another person or estate. The 
 term is chiefly, if not exclusively, used with reference to questions 
 arising in the administration of estates of deceased persons : thus, if 
 a testator directs his debts to be paid primarily out of his real estate, 
 this exonerates his personalty from liability to the debts. 4 So, if a 
 married woman joins in mortgaging her land to secure money raised for 
 the benefit of her husband, she is entitled on his death to be exonerated 
 from the charge by causing the debt to be paid out of her husband's 
 estate. 5 
 
 As to the exoneration of the personal estate of a deceased person 
 from the liability to satisfy a mortgage debt charged on his real estate, 
 see Locke King's Act ; also Contribution ; Marshalling. 
 
 EXONERETUR, in an action in the Mayor's Court, is an entry 
 made on the recognizance of bail, when the action has been withdrawn 
 
 1 Manning's Law of Nations, 113. "Watson's Comp. Equity, 1321 ; Forrestv. 
 
 2 Hunter's Suit, 80. Prescott, L. R., 10 Eq. 545. 
 
 a Chitty, Pr. 1311. 5 Fisher on Mortgage, ii. 682 ; White 
 
 4 Duke of Ancasterv. Mayer, 1 Bro. C. & Tudor's L. C. ii. 919. 
 C. 454 ; White & Tudor's L. C. i. 564 ; 
 
Expatriation LAW DICTIONARY. Express 343 
 
 or settled, 1 and operates as a discharge of the bail from their liability. 
 § 2. In the days when arrest on mesne process existed in ordinary actions 
 in the superior Courts, an exoneretur was entered on the bail-piece or 
 filacer's book, if the defendant was rendered to prison, because the bail 
 were thereby discharged. 3 {Exoneretur = " Let him be discharged.") 
 
 EXPATRIATION takes place when a person loses his nationality, 
 and renounces his allegiance to his native country by becoming the 
 subject of a foreign State. Expatriation by a British subject has been 
 made .possible by the Naturalization Act, 1 870. 3 (See Exuere Patriam ; 
 Naturalization ; Repatriation.') 
 
 EXPECTANT HEIR.— An expectant heir, in the language of 
 equity, is a person who, having a reversionary right or hope of succession 
 to property, but little or no property immediately available, is exposed to 
 the temptation of selling or mortgaging his right or expectation on 
 unreasonable terms (e. g., for much below its value, or at a usurious rate 
 of interest), and is therefore considered as entitled to the protection 
 of the Court against the enforcement of such " catching bargains," as 
 they are called. 4 Thus, where a man twenty-six years of age entitled 
 to a reversion of 600/., but wholly without present means, applied to 
 a money-lender, who advanced him 85/. on a mortgage of the reversion 
 for 100'/., with a provision that if default should be made in payment 
 of the 100/., it should bear interest at 5 per cent, per month ; it was held, 
 that the mortgagor was entitled to a decree for redemption of his 
 reversion on payment of the sum borrowed and simple interest at 5 per 
 cent, per annum. 5 The term " expectant heir " is used, not in its literal 
 meaning, but as including every one who has either a vested remainder 
 or a contingent remainder in a family property, including a remainder in 
 a portion, as well as a remainder in an estate, and everyone who has the 
 hope of succession to the property of an ancestor, either by reason of his 
 being the heir apparent or presumptive, or by reason merely of the 
 expectation of a devise or bequest on account of the supposed or 
 presumed affection of his ancestor or relative. 6 (See Reversionary; 
 Undue Influence ; Fraud, § 8.) 
 
 EXPOSING. See Abandonment, § 3. 
 
 EXPRESS.— An act evidencing intention is said to be express when 
 it is done with the direct object of communicating the intention, as 
 opposed to implication {q. v.). The communication may be effected by 
 speech, writing or gestures : thus a promise in these words, "I promise 
 
 1 Brandon, For. Attach. log. 529; Earl of Aylesford v . Morris, L. R., 
 
 2 Tidd, Pr. 288. 8 Ch. 484; Nevill v. Snelling, 15 Ch. D. 
 
 3 Udny v. Udny, L. R., I Sc. & D. 679. 
 
 App. 441. 6 Eeynon v. Cook, L. R., 10 Ch. 
 
 * EarlofChesterfieUv.Janssen; White 6 Ibid. 391, n. (1). See also O'Rorke 
 
 & Tudor, L. C. i. 483 ; Pollock on Contract, v. Bolingbrohe, 2 App. Ca. 814. 
 
344 
 
 Expropriation 
 
 LAW DICTIONARY. 
 
 Extend 
 
 to pay you 50/., " is express, whether verbal or written ; if A. signifies 
 his assent to a proposal by nodding or other gestures, the communication 
 is still express; therefore the acceptance of a bid by an auctioneer is 
 express when it is evidenced by the fall of his hammer. 1 (See Constructive 
 Implication; Tacit.) 
 
 EXPROPRIATION is compulsorily depriving a person of a right 
 of property belonging to him in return for a compensation. 3 The term 
 has been introduced from its use in foreign countries to denote a 
 compulsory purchase of land, &c. for the purposes of a railway, canal, or 
 the like (" expropriation pour cause d'utilite publique "). 3 
 
 Extent in 
 chief. 
 
 Extent in aid. 
 
 Extent pro 
 formal 
 
 Immediate 
 extent. 
 
 EXTEND — EXTENT. — § 1. To extend is to make a valuation of 
 property by the oath of a jury, pursuant to a writ issued for that purpose. 
 An extent is (1) the valuation thus made, which is embodied in an 
 inquisition by the sheriff or other person executing the writ, — the most 
 usual instance occurs under a writ of elegit (g. v.) ; (2) a writ of 
 execution, sometimes also called a writ of extendi facias ("that you cause 
 to be extended "), directing an extent to be made. Writs of extent are 
 now rare ; they were formerly issued either for the crown or a subject. 4 
 
 I. Extents to recover debts due to the crown are of two kinds, in 
 chief and in aid. 
 
 § 2. An extent in chief is an adverse proceeding by the crown for the 
 recovery of a debt of record due to it. It issues in the first place against 
 the crown's immediate debtor, and directs the sheriff to extend and seize 
 his real and personal property, including debts due to him by other 
 persons, to enforce payment of which an " extent in the second degree " 
 may be issued against them, and so on. 5 
 
 § 3. An extent in aid is one sued out at the instance and for the 
 benefit of a debtor to the crown, for the recovery of a debt due to 
 himself, the crown being merely the nominal plaintiff. To obtain an 
 extent in aid, an extent pro forma is first sued out against the debtor to 
 the crown, and on the sheriff returning that another person is indebted 
 to him, the extent in aid issues against the sub-debtor. 6 
 
 § 4. An immediate extent is one which issues in urgent cases without 
 the usual preliminary of a scire facias {q. v.), on proof that the debt is in 
 danger of being lost. 7 If there is any question as to the existence of the 
 debt, or as to whether the property seized under the writ belongs to the 
 debtor, it is raised by pleading either to the scire facias, or to the return 
 of the writ of extent. 6 (See Plea.) 
 
 1 See generally on the subject, Savigny, 
 Syst. iii. 242 et seq. 
 
 2 St. Bonnet, Diet. ». v. ; Holtz. Encyc. 
 s. v. 
 
 3 Ibid. ; Mayor, &c. of Montreal v. 
 Drummond, 1 App. Cas. 384. 
 
 1 Tidd's Pr. 1045 ; stat. 33 Hen. 8, 
 c. 39 ; 13 Eliz. c. 4 ; Crown Suits Act, 
 1865, s. 48. See a modem instance of an 
 
 extent at the suit of the Postmaster- 
 General, In re Bonham, 10 Ch. D. 595. 
 
 5 Tidd's Pr. 1058. 
 
 6 Ibid. 1063. See stat. 57 Geo. 3, 
 c. 117, restricting the issue of extents in 
 aid. 
 
 1 Tidd's Pr. 1046 ; Crown Suits Act, 
 1865, s. 47. 
 8 Manning's Exch. Pr. 97. 
 
Exterritoriality law dictionary. Extradition 345 
 
 II. § 5 . Extents, or writs in the nature of extents, were formerly Extents on 
 issued as writs of execution for private persons, either (1) to obtain ^ogmzanees, 
 satisfaction of a debt due on a recognizance {e. g., a statute merchant): 
 or (2) to levy execution against lands descended to an heir under a 
 judgment recovered against him on an obligation or bond entered into 
 by his ancestor. 1 (See Diem clausit extremum ; Liberate ; Venditioni 
 exponas ; Amoveas Manns ; Quietus.) 
 
 EXTERRITORIALITY. See Extraterritoriality. 
 
 EXTINGUISHMENT.— A right or obligation is said to be 
 extinguished when it ceases to exist. Thus, a debt is extinguished when 
 it is paid, and an easement may be extinguished in several ways, as by 
 release, abandonment, &c. ; but the term extinguishment is applied 
 especially to the case of an easement ceasing to exist from unity of 
 possession — that is, where the dominant and the servient tenements 
 become united in the same person for an estate in fee simple. 2 Compare 
 Suspension ; Merger. 
 
 EXTORTION is the misdemeanor committed by a public officer, 
 who, under colour of his office, wrongfully takes from any person any 
 money or valuable thing. It is punishable by fine and imprisonment, 
 and removal from office. 3 
 
 As to extortion of money, &c. by threats, see stat. 24 & 25 Vict. c. 96, 
 ss. 44 et seq. 4 - 
 
 See Oppression ; Duress. 
 
 EXTRADITION. — § 1. Where a person, who has committed a 
 crime in one country, takes refuge in another, and is delivered up by the 
 latter to the former for the purpose of being tried and punished, this 
 delivery up or surrender is called extradition. 
 
 § 2. At common law it seems clear that the English Courts had no Common law. 
 jurisdiction over persons who had committed crimes in foreign countries, 
 and that any person arrested on such an accusation was entitled to be 
 discharged under a writ of habeas corpus. To remedy this, various acts 
 have been passed, beginning with 6 & 7 Vict. cc. 75, 76, confirming or 
 authorizing treaties of extradition between Great Britain and foreign 
 countries. Such treaties contain reciprocal obligations on the part of 
 each country to deliver up fugitive criminals. These acts have been Extradition 
 lepealed by the Extradition Act, 1870, and that act, as amended by the Acts ' l8 7°"3- 
 Extradition Act, 1873, contains the existing law on the subject. They 
 provide for the application of the acts to foreign States with which 
 arrangements have been made for the surrender of fugitive criminals, and 
 
 1 Tidd'sPr. 1089. As to extents generally, 3 Russell on Crimes, i. 303, 307; 
 see also Manning's Exchequer; 3 Wms. Stephen's Crim. Dig. 71. 
 
 Saund. ii. 220; "West on Extents, passim. i Stephen, 227. 
 
 2 Gale on Easements, 581. 
 
346 Extradition law dictionary. Exuere Patriam 
 
 define the offences for which they may be surrendered. They also 
 provide that no criminal shall be surrendered for a political offence, or 
 for the purpose of being tried for any other than the "extradition 
 offence," that is, the offence for which he is surrendered. 
 Procedure. § 3. To obtain the extradition of a fugitive criminal in England, a 
 
 requisition is made to a Secretary of State by a diplomatic representative 
 of the State requiring the surrender. The Secretary of State signifies 
 this requisition to a police magistrate, who, after hearing prima facie 
 evidence in support of the application, issues a warrant for the 
 apprehension of the accused. If, on the hearing of the case, sufficient 
 evidence is produced (such evidence, namely, as would justify the 
 committal for trial of an offender against the English law), the 
 magistrate commits the accused to prison. A period of fifteen days is 
 allowed to elapse, to enable the prisoner to apply for a writ of habeas 
 corpus, if he is so advised. If no such application is made, or, if made, 
 is unsuccessful, the Secretary of State makes out a warrant on which the 
 criminal is surrendered to the foreign State. 1 
 
 EXTRATERRITORIALITY.— The fiction of extraterritoriality is 
 that by which the persons and residences of ambassadors and sovereigns, 
 when abroad, are treated as being within their own territory, and outside 
 of [extra) the territory where they actually are. The fiction is not now of 
 much importance except with reference to the exemption of ambassadors 
 from process, &c. 3 
 
 EXTRAJUDICIAL means (1) something which is done without 
 judicial proceedings — as, when we speak of extrajudicial evidence (see 
 Evidence, § 1), or say that a distress is an extrajudicial remedy (see 
 Remedy) ; (z) something which is said by a judge or judicial officer in a 
 judicial proceeding, but beyond its scope. Thus, a dictum {q. v.) is an 
 extrajudicial opinion. 
 
 EXTRAORDINARY. — The writs of mandamus, quo warranto, 
 habeas corpus, and some others, are sometimes called extraordinary 
 remedies, in contradistinction to the ordinary remedy by action. 
 
 As to extraordinary resolutions, see Resolution. As to the extraordinary 
 jurisdiction of the County Courts, see County Court, §§ 2, 5. 
 
 EXTRAYAGANTES. See Canon Law. 
 EXTRINSIC. See Evidence, § 13. 
 
 EXUERE PATRIAM is to cast off one's nationality, to expatriate 
 oneself. 3 (See Expatriation.) 
 
 1 Clarke on Extradition, passim. Intern. Law, § 95. 
 
 3 See Westlake, Priv. Int. Law, 114. 3 Udny v. Udny, L. R., 1 Sc. & D. 
 
 In the new edition of his book, Mr. "West- App. 441 ; Moorhouse v. Lord, 10 H. L. 
 
 lake calls it exterritoriality. Wheaton, C. 272. 
 
Eyre law dictionary. Fact 
 
 EYRE, or EIRE (from the Latin iter, a journey), signified the Court of the justices 
 itinerant or justices in eyre, who were regularly established, if not first appointed, by the 
 parliament of Northampton, 1 1 76, in the twenty-second year of Hemy the Second, with a 
 delegated power from the Icing's great Court Or Aula Regia, being looked upon as mem- 
 bers thereof ; and they made their circuit round the kingdom once in seven years, for the 
 purpose of trying causes. They were afterwards directed by Magna Charta to be sent 
 into every county once a year ; but "as the power of the justices of assize, by many acts 
 of parliament and other commissions increased, so these justices itinerant by little and 
 little vanished away." : (See Assize, § 3.) 
 
 347 
 
 FACT. — § 1 . The existence of every right arid liability depends on 
 two questions: first, whether there is a rule of English law that in 
 certain circumstances that right or liability shall arise ; and secondly, 
 whether those circumstances exist in the particular case under discussion. 
 The former is called a question of law, the latter a question of fact. 
 Thus the right of C. B., the eldest son of A. B., to succeed to the land of 
 his deceased father, depends first on the rule of law that, unless it is subject 
 to a peculiar rule of descent (e.g., gavelkind, borough-English, or the like), 
 the land of an intestate person descends to his eldest son ; and secondly, 
 on various questions of fact, such as whether the land is situated in a 
 district subject to a peculiar rule of descent, whether A. B. died intestate 
 as to that land, and whether C. B. is his eldest legitimate son, which 
 again involves other questions of fact or law, or both. 2 
 
 § 2. Questions of foreign law (including Scotch, Irish, and colonial Foreign law. 
 law) are questions of fact in the English Courts, requiring to be proved 
 by the evidence of persons professionally familiar with the system of law 
 in which the question arises, or by the opinion of a Court administering 
 that law, given on a case submitted to it under the stat. 22 & 23 Vict. 
 c. 63, or 24 Vict. c. 11. (See Case, § 2.) 
 
 § 3. The distinction between questions of fact and law is of im- Pleading. 
 
 portance in the law of pleading, because a party is bound to state the 
 
 material facts upon which he relies (but not the evidence in support of 
 
 them), while questions of law need not and must not be pleaded. 3 
 
 Questions of law may be raised by demurrer, special case, or on 
 
 motion for judgment (see those titles). When a question of law is 
 
 raised at the trial of an action by a jury, it is decided by the judge, and 
 
 the questions of fact are decided by the jury, the rule being that " ad 
 
 qusestionem facti non respondent judices ; ad quasstionem juris non 
 
 respondent juratores." It not unfrequently happens that the pleadings Mixed ques- 
 
 raise a mixed question of law and fact (e. g., whether the defendant has t I0n ° f law 
 H K 6 and fact. 
 
 1 Co. Litt. 293 a; Steph. Comm. hi. Bolton v. London School Board, 7 Ch. D. 
 349. 766. 
 
 2 See perjessel, M..R.., in Eaglesfield v. 3 Rules of Court, xix. ; Stokes v.. Grant, 
 Marquis of Londonderry, 4 Ch. D. 702 ; 4 C. P. D. 25. 
 
348 
 
 Factor 
 
 LAW DICTIONARY. 
 
 Factors Acts 
 
 libelled the plaintiff), and then either the judge directs the jury as to the 
 law, leaving them to give their verdict for one party or the other on the 
 facts as proved, subject to the direction so given, or the jury may bring 
 in a special verdict finding the facts of the case, on which judgment is 
 given by the Court for one party or the other, according to the law 
 applicable to the facts so found. 1 (See Further Consideration, § 3 ; Verdict.) 
 Evidence. § 4. In the law of evidence, facts are sometimes divided into (i) facts in 
 
 issue (also called principal facts, facta probanda), or those facts which are 
 required to be proved, and (ii) evidentiary facts {facta probantia), or 
 those facts which are given in evidence with the view of proving the 
 former. Where the fact given in evidence is the same as the fact in 
 issue, the evidence is said to be direct ; as where a witness on a trial for 
 murder proves that he saw the prisoner kill the deceased. 2 (See Evidence, 
 
 § 3-) 
 Juridical, § 5. In jurisprudence, facts are variously divided into juridical and 
 
 non-juridical, non-juridical, according as they do or do not give rise to or affect legal 
 Investitive, rights and duties ; 3 and, by the Benthamite school, into investitive facts 
 divestitive, (those by means of which a right comes into existence), divestitive facts 
 translative. (those by which it terminates), and translative (those by means of which 
 
 it passes from one person to another). 4 
 
 FACTOR. — § 1. A factor is an agent to whom goods are consigned 
 or delivered for sale by or for a merchant or other person, and who 
 in return for his trouble receives a compensation called factorage or 
 commission. 5 He has a lien for this remuneration on all the goods 
 entrusted to him by his principal. (See Lien.) " Factor " is also 
 sometimes used (especially in the old books) to denote an agent for the 
 purchase of goods ; but at the present day this kind of agent seems 
 to be more commonly called a commission agent or commission mer- 
 chant. (See Agent, § 5.) § 2. The general rule (independently of the 
 Factors Acts, and the doctrine of market overt (q. v.) ) seems to be that 
 a factor is a general agent ; and therefore if goods are entrusted to him 
 as factor, and he sells them, such a sale will bind the principal, whatever 
 his private instructions may have been, unless the purchaser knew of 
 them at the time. 6 (See Agent, § 6.) 
 
 FACTORS ACTS are various statutes 7 passed for the purpose of 
 enabling a person in the possession of goods, or documents of title to 
 goods, to validly sell or pledge the same, notwithstanding they may have 
 been entrusted to him for a different purpose, or may have been already 
 
 1 Best on Evidence, 103; Powell on 
 Evid. 10. 
 
 2 Best on Evidence, 9. 
 
 3 Savigny, Syst. iii. 3 ; Ahrens, Jur. 
 Encycl. i. 345. 
 
 4 Bentham, iii. 189 ; and see the re- 
 marks of Austin and Holland on the sub- 
 ject. Also the various attempts (more or 
 less unsuccessful) which have been made to 
 define and classify facts; e.g., Bentham, 
 
 vi. 214; Steph. Evid. Dig. I; Steph. 
 Indian Evid. Act, 14 ; Holland's Jurisp. 
 71. 
 
 6 Russell's Merc. Agency, 1 ; Chitty on 
 Contracts, 189. 
 
 6 Russell, 64. 
 
 7 Stats. 40 & 41 Vict. c. 39 ; 5 & 6 
 Vict. c. 39 ; 6 Geo. 4, c. 94 ; 4 Geo. 4, 
 c. 83 ; Chitty on Contracts, 199 ; Smith, 
 Merc. Law, 133. 
 
Factories LAW DICTIONARY. False Imprisonment 
 
 sold by him to someone else, or may be subject to a lien in favour of the 
 person from whom he has bought them, or that his agency may have 
 been revoked— the object being to protect persons having bona fide 
 dealings with a factor or agent, without notice of the limitation on his 
 power to deal with the goods. 
 
 FACTORIES. — The Factory and Workshop Act, 1878, contains pro- 
 visions for protecting the health and lives of persons employed in such 
 establishments, for regulating the employment of children, young persons 
 and women, and for the inspection of factories and workshops. (See 
 Fence, § 3.) 
 
 FACTUM PROBANDUM— FACTUM PROBANS. See Fact, 
 §4- 
 
 FACULTY, in ecclesiastical law, is a licence to do some act, granted 
 by the ordinary of the diocese or his deputy. Strictly speaking, a monu- 
 ment cannot be erected in a church or churchyard without a faculty, 
 though it is not in practice often applied for. 1 A notary public is ap- 
 pointed by faculty. 2 
 
 The Archbishop of Canterbury has a Court called the Court of 
 Faculties, and an officer called the Master of the Faculties, who deals 
 with applications for the admission and removal of notaries. 3 The judge 
 of the Provincial Courts of Canterbury and York is now ex officio Master 
 of the Faculties. 4 
 
 FAINT. See Action, §23. 
 
 FAIR. — The right to hold a fair is a franchise (q. v.), 5 and is analogous 
 to the right of holding a market (q. v.). 
 
 FALDAGE is the same as foldage and free-fold (q. v.). e 
 
 FALSE CHARACTER.— Personating the master or mistress of a 
 servant, or any representative of such master or mistress, and giving a 
 false character to the servant, is an offence punishable with a fine of 20/. 7 
 
 FALSE IMPRISONMENT is where a total restraint for some 
 period, however short, is put upon the liberty of a person without 
 sufficient legal authority. Thus, if a constable arrests a man for felony 
 
 1 Phillimore, Eccl. Law, 882. As to 6 Bl. Comm. ii. 38 ; Markets and Fairs 
 faculties for pulling down churches, see the Clauses Act, 1847 ; Fairs Act, 1871, giving 
 Church Building Act, 1845, s - l I stat - 3 2 tne Secretary of State power to abolish 
 & 33 Vict. c. 94, s. 8. fairs. 
 
 2 Ibid. 1232. 6 Elton on Commons, 45, 46; Co. Litt. 
 
 3 Ibid.; Third Inst. 337. 6a, n. (1). 
 
 " Public "Worship Regulation Act, 1874, 7 Stat. 32 Geo. 3, c. 56. 
 s. 7. 
 
 349 
 
350 False Judgment law dictionary. Falsify 
 
 without warrant and without reasonable cause for suspecting him, he is 
 liable to an action of damages for false imprisonment. 1 (See Tort.) 
 
 FALSE JUDGMENT. See Writ of False Judgment. 
 
 FALSE LIGHTS AND SIGNALS.— Exhibiting false lights or 
 signals, with intent to bring any ship into danger, is felony, punishable 
 with penal servitude for life (maximum). 2 
 
 FALSE NEWS. — Spreading false news, whereby discord may grow 
 between the Queen and her people, or the great men of the realm, or 
 which may produce other mischiefs, still seems to be a misdemeanor under 
 stat. 3 Edw. I, c. 34- 3 
 
 FALSE PRETENCE, in criminal law, is a false representation that 
 some fact exists or has existed. Obtaining goods, money, &c. by false 
 pretences with intent to defraud is a misdemeanor, the maximum punish- 
 ment for which is five years' penal servitude. 4 Obtaining credit by false 
 pretences is also a misdemeanor punishable with twelve months' imprison- 
 ment. 5 
 
 FALSE RETURN. — An action of damages lies against a person who 
 makes a false return to a writ, whether a sheriff acting under an ordinary 
 writ of execution, or a person to whom a special writ, such as a mandamus, 
 is directed. A false return may consist in a suppressio veri, as well as an 
 allegatio falsi. 6 
 
 FALSE SWEARING is the misdemeanor committed by a person 
 who swears falsely before any person authorized to administer an oath 
 upon a matter of public concern, under such circumstances that the false 
 swearing would have amounted to perjury if committed in a judicial pro- 
 ceeding ; as where a person makes a false affidavit under the Bills of Sale 
 Acts. 7 
 
 FALSIFY. — § i. Where an account is being investigated in the 
 Chancery Division, and the party at whose instance it is taken shows 
 that an item of payment or discharge contained in it is false or erroneous, 
 he is said to falsify it. 
 
 If an account has been stated or settled between the parties and one of 
 them afterwards impugns it, the Court may either re-open the whole 
 account, or merely give liberty to " surcharge and falsify." In the former 
 case the accounting party has the onus of showing that the account is 
 
 1 Underhill on Torts, 105; Broom, C. C. * Stephen's Crim. Dig. 246 ; stat. 24 & 
 L. 722. As to the protection of justices 25 Vict. c. 96, s. 88. 
 
 of the peace see stat. 11 & 12 Vict. c. 44. '■> Debtors Act, 1869, s. 13. 
 
 2 Stat. 24 & 25 Vict. c. 97, s. 47. « Ho-wden v. Standish, 6 C. B. 504; 
 
 3 Steph. Crim. Dig. § 95. Rexv. Mayor of Lyme Regis, 1 Doug. 149, 
 
 ' Stephen's Crim. Dig. 84. 
 
Fealty law dictionary. Fee 
 
 full and correct, while in the latter case the onus lies on the party 
 impugning the account, and if he objects to any omissions or errors in 
 the account, he must, allege them specifically and substantiate them by 
 evidence. The grounds on which the Court allows a settled account to 
 be re-opened are : fraud in the settlement of the account, want of good 
 faith on the part of a person in a fiduciary relation {e. g., a trustee or 
 solicitor), or the like. Where, however, it is merely a question of mistake 
 and not of fraud, then liberty to surcharge and falsify will alone be given. 1 
 (See Surcharge; Account.) 
 
 § 2. In the old books, falsify is used in the sense of defeating or 
 avoiding, 2 but this sense is obsolete. 
 
 FEALTY is a service which every free tenant (except tenant in frankalmoign) is in 
 theory bound to perform to his feudal lord. 3 It is therefore an incident to every seignory 
 (?. v.), and is due on every change of the tenancy or the seignory ; 4 but it is in practice 
 completely obsolete. 5 The ceremony of fealty consisted in the tenant taking an oath of 
 fidelity to the lord. 6 
 
 § 2. Fealty is also one of the incidents of tenure due from every copyhold tenant to the 
 lord of the manor in respect of his customary tenement. It consists in swearing to be 
 faithful in performing the services of the tenancy, and may be required on every change 
 of the lord or tenant ; but in practice it is always respited. 7 (See Allegiance ; Subtrac- 
 tion ; Service.) 
 
 Etymology.]— Norman French : — From Latin fidelitas, faithfulness. 
 
 FEAR. See Duress. 
 
 FEASANCE means "doing." See Malfeasance ;" Misfeasance ; Non- 
 feasance; Service. 
 
 FEE is applied to property to denote that it has the quality of 
 descending to the heirs of the owner for the time being if he does not 
 dispose of it during his life or by his will, supposing he has power to do 
 so. Thus an office or annuity in fee is one which descends to the heir 
 of the holder for the time being on his death intestate. (See Annuity ; 
 Office.) The term is however chiefly of importance as applied to land, 
 estates of inheritance in land being called estates in fee. 8 
 
 Fees are of two principal classes, fee simple and fee tail. 
 
 § 2. An estate in fee simple is the greatest estate or interest which the Fee simple, 
 law of England allows any person to possess in landed property. 9 The 
 owner of an estate in fee simple is practically absolute owner of the land 
 or other realty; he may put it to any use, lease it, mortgage it, sell it or 
 give it away ; if he dies without having disposed of it during his lifetime 
 or by his will it descends to his heir according to the rules of descent (q. v.). 
 
 § 3. An estate in fee simple is properly created by the words " and his 
 heirs " following the name of the grantee : thus a conveyance of land 
 
 1 Daniell, Ch. Pr. 577. ° See the ceremony described in Litt. 
 
 2 Litt. §§ 149, 688. § 91 : Co. Litt. 68 a. 
 
 3 Co. Litt. 67 b ; Litt. § 131. 7 Elton, Copyh. 178; Litt. § 132. 
 * Litt. §§ 148, 149. 8 Litt. § r. 
 
 6 Williams on Seisin, 12. 9 Hid. § 11. 
 
 351 
 
35^ 
 
 Fee 
 
 LAW DICTIONARY. 
 
 Fee Farm 
 
 Absolute. 
 Determinable. 
 
 Conditional. 
 
 Qualified. 
 Base. 
 
 Fee tail. 
 Knight's fee. 
 
 to " A. and his heirs " gives A. an estate in fee simple. A conveyance to 
 "A." without more, or "to A. for ever," or to "A. and his assigns," or 
 the like, without the word " heirs," gives A. only an estate for life. In 
 a devise by will, however, the word " heirs " is not required, as a gift 
 of land by will to A. without more vests in A. all the estate which the 
 testator had, whether a fee simple or a less estate. 1 In a conveyance to a 
 corporation sole the word " successors " is substituted for " heirs." The 
 word is not required in a conveyance to a corporation aggregate, but it is 
 not uncommonly so used. 
 
 § 4. An estate in fee simple may be either absolute, as where land 
 is given to a man and his heirs, without more, or determinable, where some 
 words are added which may put an end to it on the happening of a 
 certain event. This may be ( 1 ) where a condition is added : thus, if an 
 annuity is granted to a man and the heirs of his body, he has a fee simple 
 conditional on his having issue : 2 if he has issue, the condition is 
 performed, so that he can alien or charge the annuity ; but if he does 
 not alien it, it descends to his eldest son, subject to the same condition : 
 (2) by limitation, as where land is granted to A. to hold to him and his 
 heirs so long as C. has heirs of his body ; this is a fee simple qualified 
 (formerly also called a base fee) : 3 (3) by construction of law, as where a 
 person seised of an estate tail grants the land to A. and his heirs. A. has 
 an estate in fee simple so long as the tenant in tail has heirs of his 
 body, but as soon as those heirs fail, A.'s estate comes to an end. This, 
 though sometimes called a fee simple qualified or determinable, is more 
 properly called a base fee. 1 (See Enlargement?) 
 
 §5. As to estates in fee tail, see Estate Tail. 
 
 II. § 6. Formerly "fee" also signified the land itself. Thus, a 
 " knight's fee " was the quantity of land which " goeth to the livelyhood 
 of a knight," and seems to have consisted of lands worth 20/. a year. 5 
 
 Etymology.] — Norman French, fee, fi,fii; low Latin, feodum; from Gothic, faihu, 
 property (modem German vieh, cattle). Feodum originally meant land granted in con- 
 sideration of services to be rendered, as opposed to allodium, or land held absolutely. 6 
 
 FEE FARM— FEE FARM RENTS.— Fee farms " are lands held 
 in fee by rendering for them yearly the true value, or more or less," 7 
 which rent is called a fee farm rent, or simply a fee farm. 8 A tenant 
 in fee farm owes no service not expressly reserved, except fealty. 9 Fee 
 farm rents granted before the stat. Quia Emptores are rents service ; those 
 granted since are rent charges or rents seek, because since that statute 
 
 1 Wills Act, s. 28; Williams, R. P.216. 
 
 - He has not an estate tail as he would 
 have if the thing granted were freehold 
 land, because an annuity is not a tenement 
 and therefore not within the statute De 
 Donis (?. v.); Preston, Estates, 139; Co. 
 Litt. 19 a; Bl. Comm. ii. 113. Before 
 the statute such an estate in freehold land 
 was called a "fee simple conditional at 
 the common law." As to a customary fee 
 simple conditional, see Estate, § 12. 
 
 3 Sevmor's Case, 10 Co. 97 b ; Co. Litt. 
 
 lb; 341a; Preston, 117, 122, where 
 another sense is given to " qualified fee." 
 
 4 10 Co. 97 b; Co. Litt. lb; 3 & 4 
 Will. 4, c. 74, ss. 1, 19. 
 
 5 Litt. § 95 ; Co. Litt. 69 a. 
 
 6 Littre, Diet. s. v. Fief; Diez. Wortb. 
 s. v. Fio ; Digby's Hist. R. P. 59, 11. (9). 
 
 7 Britton, 164 b. Coke says it must not 
 be less than one-fourth of the value (Co. 
 Litt. 143 b). 
 
 8 Co. Litt. 143 b. 
 
 Britton, 164 b ; Termes de la Ley. 
 
Feed law DICTIONARY. Felony 353 
 
 no one can grant land to be held of himself in fee simple. 1 (See Rent; 
 Quia Emptores; Subinfeudation; Tenure.) It is, however, a question 
 whether the term fee farm rent is properly applicable to rents created 
 since the statute. 
 
 FEED. See Estoppel, § 4. 
 
 FEIGNED ISSUE. — Formerly, in common law actions, when a 
 question was raised on motion, and the Court thought it too important 
 to be disposed of summarily on affidavits, they might order it to be tried 
 before a jury on a feigned issue, that is, in the same way as if the parties 
 had joined issue on the question in their pleadings. Questions arising in 
 the Court of Chancery were also sometimes tried before a jury in a 
 common law Court in this way before stat. 25 & 26 Vict. c. 42. 2 
 
 Feigned issues have long been rare in practice, but they do not seem 
 to have been abolished by the new Rules (see Issue). 
 
 FEINT, or " feint in law." See Action, § 23. 
 
 FELLOW-SERVANTS. See Common Employment. 
 
 FELO DE SE is a person who murders himself. 3 See Murder, 
 §3- 
 
 FELONY. — § 1. At common law, every species of crime, a con- 
 viction for which occasioned the forfeiture of the lands or goods of 
 the oiFender, and to which a punishment might be added according to 
 the degree of guilt, was called felony. 4 Forfeiture for conviction, 
 however, has been abolished 5 (see Forfeiture), and several offences have 
 been made felonies by statute which were not felonies at common law. 
 
 § 2. Felony is punishable in various modes, as by death or penal Punishment, 
 servitude, many felonies having special punishments attached to them 
 (see the titles dealing with the varieties of felony mentioned infra, § 3). 
 Where no punishment is specially provided, felony is punishable by 
 penal servitude for seven years, or imprisonment for two years, with 
 or without hard labour, whipping, and solitary confinement. 6 (See 
 Recognizance^) A felon is also in general incapacitated from holding 
 certain offices. 7 
 
 § 3. " Felony," strictly speaking, includes treason (q. v.), although the Species of 
 terms are generally used as opposed to one another. Instances of felony felon y- 
 in the more usual sense of the word are : piracy, murder, manslaughter, 
 
 1 Co. Litt. 143 b ; Hargrave's note (5) ; 6 Stat. 7 & 8 Geo. 4, c. 28 ; Russell on 
 Steph. Comm. i. 677. Crimes, 65, 186. 
 
 2 Chitty's Pr. 902 ; stat. 8 & 9 Vict. 7 Stat. 33 & 34 Vict. c. 23. As to the 
 c. 109, s. 19. other consequences and peculiarities of 
 
 3 Russell on Crimes, i. 647. felony see Stephen's Crim. Dig. 8 ; Harris, 
 
 4 Bl. Comm. iv. 94 ; Co. Litt. 391 a. Crim. Law, 10. 
 6 Stat. 33 & 34 Vict. c. 23. 
 
 S. A A 
 
354 
 
 Feme Covert 
 
 LAW DICTIONARY. 
 
 Feoffment 
 
 rape, larceny, robbery, burglary, arson, some kinds of assault, and certain 
 acts resembling treason. 1 
 
 See Misdemeanor. 
 
 Etymology.]— Old French, felun, felon, from low Latin, felo, = a vassal guilty of 
 disobedience or breach of fidelity towards his lord ; the ultimate derivation is unknown. 2 
 
 FEME COVERT is a married woman. As to the status and 
 disabilities of a married woman, see Marriage; Coverture; Separate 
 Estate; Engagement. 
 
 FEME SOLE is an unmarried woman, whether a spinster or a 
 widow. 
 
 Fences to 
 land. 
 
 Fencing ma- 
 chinery, and 
 mines, Sec. 
 
 Criminal law. 
 
 FENCE. — § i. The obligation on the owner of land to keep it 
 fenced may exist either at common law, or by virtue of a special 
 obligation, or by statute. At common law a proprietor of land is only 
 bound to keep up fences round his land if they are required to prevent 
 his cattle from trespassing on the land of his neighbours. 3 An owner 
 of land may however be subject to a prescriptive obligation to keep the 
 fence between his and his neighbour's land in repair. 4 (See Quasi- 
 Easement.) 
 
 § 2. A railway company subject to the provisions of the Railways 
 Clauses Act, 1845 (ss. 68 et seq.), is bound to construct and maintain 
 fences between its line and the adjoining lands. 
 
 See further as to fences under titles Boundaries ; Party Wall. 
 
 § 3. Under various Acts of Parliament the duty is cast on owners of 
 mines and machinery to keep them fenced, so as to prevent injury to 
 persons coming near them. The most important provisions as to mines 
 and mining machinery are contained in the Coal Mines Regulation Act, 
 1872, s. 51, §§ 4, 13, 14, 24, and the Metalliferous Mines Regulation 
 Act, 1872, s. 23, §§ 6, 7, 17. The Factory and Workshop Act, 
 1878 (ss. 5 et seq.), contains provisions as to the fencing of machinery in 
 factories, &c. 
 
 § 4. Stealing or maliciously injuring or destroying fences is an offence 
 punishable on summary conviction. 5 
 
 FEOFFMENT— FEOFFOR— FEOFFEE.— § 1. A feoffment is 
 a mode of conveying a freehold estate in possession in land from one 
 person (the feoffor) to another (the feoffee). It was at one time almost 
 the only mode of conveying freehold land in possession, but it isnow 
 practically obsolete, because the same object can, in most cases, be 
 obtained by simpler means. Almost the only case in which a feoffment 
 is now specially required is where an infant tenant of gavelkind land 
 
 1 Stat. 11 Vict. c. 12; Stephen's Crim. 
 Dig. 36. 
 
 2 See the various conjectures in Littrfi, 
 s. v. and Blaclcstone, iv. 95. 
 
 3 Gale on Easements, 515. 
 
 4 Laurence v. Jenkins, L. R., 8 Q. B. 
 274; Gale, 516; see further as to quasi- 
 easements of repair, ibid. pp. 530 et seq. 
 
 6 Stats. 24 & 25 Vict. c. 97, s. 25 ; c. 96, 
 ss. 15, 34- 
 
Fera Naturm law DICTIONARY. Feud 355 
 
 wishes to dispose of his estate : this he can do by feoffment at the age of 
 fifteen. 1 
 
 § 2. Originally a feoffment was merely the overt or public delivery of 
 the possession of land by the owner (the feoffor) to the grantee or 
 purchaser (the feoffee), and consisted of the ceremony called livery of 
 seisin (q. v.). But, for the sake of convenience, it became usual to put 
 the terms of the conveyance in writing, as a record of the transaction : 
 this writing was called the charter or deed of feoffment. The Statute of 
 Frauds (q. v.) made a writing necessary in every case ; and now, by the 
 stat. 8 & 9 Vict. c. 106, every feoffment (except one made under a 
 custom by an infant) is void at law unless made by deed. The livery of 
 seisin is of course still necessary. 2 
 
 § 3. Formerly a feoffment was an assurance of great power, for it not 
 only cleared (that is, destroyed) all disseisins, abatements, intrusions and 
 other wrongful or defeasible estates, where the livery of seisin by the 
 feoffor was lawful, 3 but also operated by wrong, or tortiously, where the 
 feoffor granted a greater estate than he was entitled to, so as to confer 
 on the feoffee the whole -estate purported to be granted. Thus, if a 
 tenant for his own life made a feoffment of the land in fee simple, the 
 feoffee became seised of an estate in fee simple by wrong, which was 
 good against everyone except the reversioner : as regards him, the 
 feoffment, being unauthorized, operated as a forfeiture of the tenant for 
 life's estate, and entitled him to re-enter and take possession of the 
 land. 4 But by the stat. 8 & 9 Vict. c. 106, the tortious operation of a 
 feoffment is abolished. 5 
 
 See Conveyance ; Grant ; Operative Words ; Uses. 
 
 Etymology.]— Norman French: feqffament, 6 from feoffer, to grant a fee or feudal 
 estate.' (See Fee.) 
 
 FER<E NATURAE. See Animals Fern Nature. 
 
 FERRY.— The right to keep a boat for ferrying passengers, to 
 charge tolls for so doing, and to prevent other persons from setting up 
 another ferry so near as to diminish the custom, is a franchise (q. ».). 8 
 
 FEUD, in the middle ages, was a grant of land by a feudal superior or lord, to be 
 held by the grantee (the feudal inferior or tenant) in return for services to be rendered by 
 him. The word is used to signify the interest of the tenant, 9 and also the land itself. 
 (See Fee.) 
 
 Etymology.]— Gothic, faiku; Anglo-Saxon,/^, = property. 10 
 
 1 Williams, R. P. 129. For a form of * Butler's note to Co. Litt. 330b. As 
 
 feoffment for the purpose see Davidson, to the mode in which this operation ot a 
 
 Conv. ii. 244, (77. As to feoffments feoffment was made use of see Bytnewood 
 
 generally see Elphins. Conv. 98 ; Shepp. & Jarman, iv. 44 et seq. 
 
 Touch. 203 ; Bythewood & Jarman, iv. 5 Williams, R. P. 142- 
 
 net seq. " Britton, 209 b. 
 
 8 But if livery be omitted the charter of ' Loysel, Inst, gloss, v. Staffer. 
 
 feoffment will, in ordinary cases, take effect 8 Bl. Comm. ii. 38. 
 
 as a grant under the stat. 8 & 9 Vict. 9 Spelman on Feuds, 2. 
 
 c. 106. 10 Stubbs, Hist. 1. 251, n. (1.) 
 
 3 Co. Litt. 9 a, 49 a. 
 
 A A 2 
 
356 
 
 Feudal System 
 
 LAW DICTIONARY. 
 
 Fiction 
 
 FEUDAL SYSTEM is the name given to certain institutions which prevailed in 
 the principal states of Europe during the Middle Ages, and regulated both the tenure of 
 land and the political and social system in each state. §2. As to the land, the peculi- 
 arity of the feudal system was the division of the ownership. The absolute or nominal 
 ownership [dominium directum) was in one person, the lord or feudal superior ; while 
 the occupation, use and benefit of the land {dominium utile) was in another person, the 
 tenant or feudal inferior. In consideration of having the use of the land the tenant 
 rendered his lord certain services {q. v.), which in the feudal system proper were princi- 
 pally of a military nature, and the lord was further entitled to certain incidents or casual 
 profits. (See Incidents.) \ 3. With regard to the social and political system, the 
 relation of landlord and tenant was a mutually protective one : that is, each was bound 
 to assist and protect the other in case of danger (see Fealty) ■ and it was exclusive, that 
 is, no one had any right to interfere between them, though the lord himself might be 
 tenant to a yet higher superior : thus, A. might be tenant, to B. and B. tenant to C, 
 but C. would have nothing to do with A. Hence, in the pure feudal system, the king 
 or other head of the state was to a great extent merely a feudal lord, having no right to 
 the allegiance of his tenants' tenants : but this was never so in England ; for although 
 since the Norman Conquest, when the feudal system was introduced, all lands in Eng- 
 land "are holden mediately or immediately of the king," 1 yet he has always been the 
 feudal superior not only of his tenants in chief but also of their tenants and tenants' 
 tenants. 2 § 4. It will be seen from the titles Tenures, Incidents, Estate, Seignory, Sub- 
 infeudation, that but few traces of the feudal system now survive, except in the rules of 
 descent, in the operative words required to pass an estate of inheritance by deed (see Fee, 
 § 3 ; Heir), and in the law of copyholds. 
 
 On petition. 
 
 In patent 
 practice. 
 
 For writ of 
 error. 
 
 FIAT, in procedure, is a memorandum written on a document by a 
 judicial officer, giving leave to take some step. (Latin = " Let it be done ".) 
 Thus in Chancery practice, when a petition is presented, the Master of 
 the Rolls' secretary writes a fiat on it, directing all parties to attend on a 
 certain day when the petition will be heard. 3 (See Petition^) So in 
 patent law, the fiat of the Attorney-General or other law officer must be 
 obtained before a disclaimer or memorandum of alteration can be filed. 4 
 
 In criminal procedure, a writ of error cannot be sued out unless the 
 Attorney-General grants his fiat for that purpose. 5 (See also Commis- 
 sioners in Bankruptcy, ,) 
 
 FICTION. A fiction is a rule of law which assumes as true, and will 
 not allow to be disproved, something which is false, but not impossible. 6 
 Formerly the practice and jurisdiction of the Courts rested largely on 
 fictions : thus the Court of King's Bench acquired jurisdiction in actions 
 for debt, &c, by surmising (that is, feigning) that the defendant had been 
 arrested for a trespass which he had never committed, and then allowing 
 
 1 Co. Litt. 1 a. 
 
 2 The oath of allegiance from inferior 
 tenants was not exacted until the Council 
 of Salisbury (1086), but the feudal system 
 does not seem to have been completely 
 introduced until that time; Stubbs, Const. 
 Hist. i. 206. See further as to the feudal 
 system generally, Spelman on Feuds and 
 glossary, v. Feodum ; Butler's note to Co. 
 
 Litt. 191a; Bl. Comm. ii. 44; Hallam, 
 i. 163 ; Fustel de Coulanges, Inst, de 
 l'Ancienne France. 
 
 3 Daniell, Ch. Pr. 1433-5. 
 
 4 Stats, s & 6 Will. 4, c. 83 ; 15 & 16 
 Vict. c. 83, s. 39. 
 
 6 Archbold, Crim. PI. 199. 
 6 Best on Evidence, 419. 
 
357 
 
 Fiduciary LAW DICTIONARY. Fi. fa. 
 
 the plaintiff to proceed against him for debt. 1 Fictions are now of little 
 importance. 2 (See Colour; Colourable.) 
 
 FIDUCIARY. A person is said to stand in a fiduciary relation to 
 another when he has rights and powers which he is bound to exercise for 
 the benefit of that other person. Hence he is not allowed to derive any 
 profit or advantage from the relation between them, except with the know- 
 ledge and consent of the other person. Such is the relation between 
 trustee and cestui qui trust, solicitor and client, principal and agent, and 
 generally wherever from the position of two persons, one of them reposes 
 confidence in the other. 3 Promoters and directors also stand in a fiduciary 
 relation to their companies. 4 
 
 FIELD REEVE is an officer elected by the owners of a regulated 
 pasture (see Pasture) to keep in order the fences, ditches, &c. on the land, 
 to regulate the times during which animals are to be admitted to the 
 pasture, and generally to maintain and manage the pasture subject to the 
 instructions of the owners. 5 
 
 FI. FA.— FIERI FACIAS— FIERI FECI.— § i. A fieri facias or 
 fi'. fa. is a writ of execution to levy a judgment debt. 6 It commands the 
 sheriff or other officer to whom it is directed to levy or cause to'be made of 
 the goods and chattels of the debtor (including his chattels real) the sum 
 recovered by the judgment with interest. In executing the writ, the 
 officer enters upon the premises in which the execution debtor's goods 
 are (if he can do so peaceably, and without breaking open any outer door), 
 and leaves one of his assistants in possession of them. After the seizure, 
 the officer gets an auctioneer to make an inventory of the goods, and to 
 remove and sell them, or to sell them on the premises, if the debtor, or 
 the person on whose premises the goods are, consent to it.' When the 
 writ becomes returnable (see Return), the sheriff returns either fieri feci, 
 i. e., that he has levied the sum named in the writ, or a part of it, which he 
 is ready to pay to the execution creditor; or that he has taken goods 
 which remain unsold for want of buyers (see Venditioni exponas; Dis- 
 tringas nuper Vicecomitem) ; or nulla bona, i.e., that the execution debtor 
 has no goods within his bailiwick. 7 (See Writ ; Levari facias?) 
 
 § 2. Fieri facias de bonis ecclesiasticis. — When the sheriff, to a common De bonis 
 fieri facias, returns nulla bona, and that the defendant is a beneficed clerk eccleslastlcls - 
 not having any lay fee, the plaintiff may sue out a fieri facias de bonis 
 ecclesiasticis, directed to the bishop of the diocese (or to the archbishop, 
 during a vacancy of the bishop's see), commanding him to make of the 
 
 1 Bl. Comm. iii. 43. Ca. 1218 ; 5 Ch. D. 73. 
 
 2 As to importance of fictions in the 3 General Inclosure Act, 1845, 0. 118. 
 history of law, see Maine, Anc. Law, 21 ° See Rules of Court, xliii. 
 
 et seq. ' Smith's Action, 186; Steph. Comm. 
 
 3 Snell's Eq. 403. iii. 583. As to what goods may be taken 
 
 4 Liquidators of Imperial Merc. Credit under a fieri facias, see stats. 8 Anne, c. 14; 
 Ass. v. Coleman, L. R., 6 H. L. 189; 56 Geo. 3, c. 50 ; 1 & 2 Vict. c. no; 14 & 
 Erlanger v. Neio Sombrero Co., 3 App. 15 Vict. c. 25 ; and title Goods. 
 
358 
 
 De bonis 
 ■testatoris ; 
 
 de bonis 
 propriis. 
 
 File 
 
 LAW DICTIONARY. 
 
 Fine 
 
 ecclesiastical goods and chattels belonging to the defendant within his 
 diocese, the sum therein mentioned. This is done by issuing a seques- 
 tration {q.v.) to levy the debt out of the tithes and other profits of the 
 defendant's benefice. 1 
 
 § 3. Fieri facias de bonis testatoris is the writ issued on an ordinary 
 judgment against an executor when sued for a debt due by his testator ; 
 if the sheriff returns to this writ nulla bona, and a devastavit {q.v.), the 
 plaintiff may sue out a fieri facias de bonis propriis, under which the 
 goods of the executor himself are seized. 8 (See Scire fieri Inquiry; 
 Devastavit; Judgment?) 
 
 FILE.— § 1. A file is literally a piece of string or wire passing through 
 papers relating to the same matter, to keep them together. It seems to 
 have been the practice in olden times to fasten together in this way writs 
 and other papers in the offices of the Courts, and it is still done in the 
 London Bankruptcy Court. In the High Court, however, documents 
 which are filed are merely placed in pigeon holes or tied in bundles. 
 Affidavits and other documents requiring filing are handed to the proper 
 officer with the necessary stamps. 
 
 § 2. A document will be ordered to be taken off the file if it is 
 scandalous or an abuse of the forms and proceedings of the Court. 
 
 FINAL. See Interlocutory ; Judgment. 
 
 FINDER OF LOST PROPERTY, like every other possessor of 
 property, is entitled to the possession of it against all persons, except the 
 true owner. 3 (See Possession.') § 2. If a person, when he finds lost 
 property, knows whom it belongs to, or knows that the owner can be 
 found, and appropriates it for himself, he commits larceny. 4 
 
 FINDING. — A finding is a conclusion upon an inquiry of fact. 
 Thus, when the jury in an action return a verdict, they find either gene- 
 rally, i.e., for one of the parties, or specially, i.e., as to certain facts^ 
 (See Fact, § 3 ; Verdict.) Frequently, too, by consent of the parties, 
 questions are drawn up and put to the jury in an action, and their 
 answers are termed findings. Decisions upon questions of fact are also 
 termed findings, when they are come to by substitutes for juries, e.g., 
 a judge sitting without a jury. (See Trial?) 
 
 Criminal. FINE. — I. § 1. In criminal law, a fine is a sum of money ordered to 
 
 be paid to the Queen by an offender, as a punishment for his offence. 
 
 1 Archbold, Pr. 1062 ; Smith's Action 
 (nth edit.), 275, 30. 
 
 2 1 Wins. Saund. 246 ; Smith's Action 
 (nth edit.), 368. 
 
 3 Armory v. Delamirie, I Str. 504 ; 
 Smith, L. C. i. 357. 
 
 4 Steph. Crim. Dig. \ 302 ; R. v. Moore, 
 L. & C. 1 ; R. v. Glyde, L. R., 1 C. C. R. 
 139 ; R. v. Thurborn, 1 Den. 387. 
 
Fine law dictionary. Fine 
 
 359 
 
 A fine is at common law one of the punishments for misdemeanors, 
 and it has been made a punishment for several offences by modern 
 statutes. 1 Thus, when any person has been convicted of an indictable 
 misdemeanor punishable under the Criminal Law Consolidation Acts, 2 
 the Court may, in addition to or in lieu of any punishment authorized 
 by the particular act, inflict a fine upon the offender. 3 
 
 § 2. The superior Courts (see Court, § 3) have a general power of For contempt 
 imposing pecuniary mulcts for disobedience to their orders, not only on of Court, 
 their own officers and on parties to suits depending before them, but also 
 on strangers. 4 (See Amercement!) 
 
 II- § 3- 1° the law of tenure, a fine is a money payment made by Copyhold 
 a feudal tenant to his lord. The only existing fines of any importance fines - 
 occur in copyhold lands, where upon a change in the tenancy a fine is com- 
 monly due to the lord. 5 The most usual fine is that payable on the Fines on ad- 
 admittance of a new tenant, but there are also due in some manors mlttance > &c - 
 fines upon alienation, on a licence to demise the lands, or on the death of 
 the lord, or other events. 6 Fines are of two kinds, arbitrary and certain. 
 § 4. A fine certain may be fixed by the custom at a particular sum for Certain, 
 every admittance, when it is called a " general fine ;" 9 or at so much for General (I.), 
 every acre, or the like ; or it may be ascertained by reference to some 
 other standard, as where the tenant is to pay a year's value for a fine. § 5. 
 The amount of an arbitrary fine is not left to the discretion of the lord, Arbitrary. 
 except in those cases where the grant is purely voluntary, as where a 
 copyhold has come into the ownership of the lord, or where a copyholder 
 for lives, without right of renewal or power of nominating a successor, 
 surrenders his estate for the purpose of putting in more lives. In other 
 cases the fine, though arbitrary, must be reasonable ; and the Court will 
 decide what is reasonable under the particular circumstances. 8 In ordi- 
 nary cases it must not exceed two years' improved value of the land. 9 
 § 6. A " full " fine is the highest amount which the lord can exact on an Full, 
 ordinary admittance, as opposed to a " small " or nominal fine : thus in small. 
 some manors where a person who is already a customary tenant is 
 admitted to other copyholds he pays only a small fine certain, e.g., a 
 penny. 10 § 7. There are also many fines payable under particular customs 
 and having special names : thus in some manors there is a custom for the 
 lord of the manor for the time being to admit each tenant to his estate, 
 which gives him the right to hold it during the joint lives of himself and 
 the admitting lord ; on the death of the lord the tenant pays what is 
 called a "general fine" for admittance to the succeeding lord, which General 
 gives him a new estate during the joint lives of himself and the new lord, ne ( '• 
 
 1 Greaves, Criminal Law, 6 ; Stephen's 4 Steph. iii. 269. 
 
 Crim. Dig. 7 ; Steph. Comm. iv. 444. 5 Co. Litt. 59 b. 
 
 "And it is called finis, because it is an 6 Elton, Copyh. 159. 
 
 end for that offence;" Co. Litt. 126 b; 7 Middleion v . Jackson, 1 Ch. Rep. 33; 
 
 8 Co. 39 a, 59 b. Toth. 164. 
 
 - 24 & 25 Vict. cc. 96, 97, 98, 99, 100. 8 Elton, 162. 
 
 3 Broom & Hadley, Comm. iv. 472, 247 ; 9 Ibid. 165 ; Co. Litt. 59 b. 
 
 Steph. Comm. iv. 444. 10 Elton, 164. 
 
36o 
 
 Fine 
 
 LAW DICTIONARY. 
 
 Fine 
 
 Dropping 
 fine. 
 
 Fines on 
 alienation. 
 
 Fines of land. 
 
 Praecipe. 
 
 Foot or 
 chirograph. 
 
 Sur conusance 
 de droit come 
 ceo, Sec. 
 
 Sur conusance 
 de droit 
 tantum. 
 
 while on the death or alienation of the tenant his heir or devisee pays 
 the lord a " dropping fine " for admittance. 1 
 
 § 8. One of the incidents of tenure in capite by knight service was that 
 a fine was due to the king on every alienation or conveyance of the land 
 by the tenant to another person. Fines of this kind were abolished by 
 stat. 12 Car. 2, c. 24. 2 
 
 III. § 9. Before the Fines and Recoveries Act 3 {q. v.) there existed a fictitious judicial 
 proceeding known as a fine, which was formerly in common use as a mode of conveying 
 land. It was really a compromise of a fictitious suit commenced concerning the lands 
 intended to be conveyed, and the operation (called levying a fine) was thus performed. 
 A praecipe or writ was sued out and the parties appeared in Court ; a composition of 
 the suit was then entered into, with the consent of the judges, whereby the lands in 
 question were declared to be the right of (that is, to belong to) one of the parties. This 
 agreement was reduced into writing, and was enrolled amongst the records of the Court, 
 so that it had the effect of a judgment of the Court. On the completion of the .fine a 
 writ was issued to the sheriff of the county in which the land lay, in the same form as if 
 a judgment had been obtained in a hostile suit, directing the sheriff to deliver seisin and 
 possession to the person who acquired the lands. But if he was already in possession 
 this writ was dispensed with. A fine consisted of five parts : — namely, the original writ, 
 the licence to agree, or licencia concordandi, which was given by the leave of the Court, 
 on payment of a fine to the king, called the king's silver. The third part was the concord 
 or agreement, by which it was agreed that the lands were the right of the person in whose 
 favour the fine was levied. The fourth part was a note of the proceedings, drawn up by 
 an officer called the chirographer ; and the fifth part was the foot or chirograph of the 
 fine, which recited the whole proceedings. This chirograph was delivered to the parties, 
 and was legal evidence of the fine, and was retained by the purchaser as one of his title 
 deeds. 4 The person to whom the land was to be conveyed was called the complainant or 
 conusee, and he by whom it was to be conveyed the deforciant (see Deforcement) or 
 conusor (cognisor), because he acknowledged the right of the complainant. 5 
 
 § 10. The principal use of fines was to put an end to all adverse claims to the land 
 after a certain period. For this purpose a fine required to be levied with proclamations, 
 that is, to be openly and solemnly read in Court in four successive terms. Such a fine 
 barred the claims of all persons unless they took proceedings within five years. 6 
 § 11. Fines were also used by tenants in tail to effect a discontinuance of the entail (see 
 Discontinuance), and to bar their issue in tail (see Recovery) :' and to enable a married 
 woman to join with her husband in making a conveyance of her lands, which she could 
 not otherwise do ; in such a case the wife was examined by the judges apart from her 
 husband in order to ascertain whether she consented freely to the conveyance. 8 
 
 \ 12. Fines were of four kinds. 9 The first and most usual was a fine sur conusance (or 
 cognizance) de droit come ceo quit ad de son done, that is, a fine " on acknowledgment of 
 right as that which he has of his gift." In other words, the fine was founded on an 
 acknowledgment by the conusor that the conusee was entitled to the land in question by 
 virtue of a gift or feoffment to him by the conusor. It was used for the conveyance of 
 an estate in fee simple or freehold in possession. § 13. A fine sur cognizance de droit 
 tantum ("on acknowledgment of right only") was used for passing an estate in reversion 
 
 1 Somerset v. France, I Stra. cited in 
 Elton, Copyh. 160. 
 a Bl. Coram, ii. 71. 
 
 3 Stat. 3 & 4 Will. 4, c. 74. 
 
 4 Williams on Seisin, 106 ; Bl. Comm. 
 ii. 348 ; Steph. Comm. i. 559 ; Shelford's 
 R. P. Stat. 301. 
 
 5 Williams, 108; Bl. Comm. iii. 174. 
 
 6 Williams, 109. A common instance 
 of this being done was when a person had 
 
 acquired a tortious fee simple by a feoff- 
 ment, and wished to bar the owner of the 
 reversion ; he did this by levying a fine. 
 
 7 Williams, 158. 
 
 8 Ibid. 108. For the other operations 
 of a fine see Smith on Fines, 2; Har- 
 grave's note to Co. Litt. 121 a, n. (1). 
 
 9 Williams, 108 et seq. ; Bl. Comm. ii. 
 352 etseq.; Steph. Comm. i. 562 et seq. 
 
Fines and Recoveries law dictionary. Firm 361 
 
 or remainder. § 14. A fine sur concessit (he has granted") was where the conusor, in Sur conccsiit. 
 
 order, as the form ran, to make an end to all disputes, granted to the conusee a new 
 
 estate by way of supposed composition. This kind of fine was principally used for 
 
 granting estates for life or years. \ 15. A fine sur done, grant et render (" on gift, grant Sur done, &c. 
 
 and re-grant") was a double fine. It had the effect of the fine sur cognizance de droit 
 
 come ceo, &c. and of the fine sur concessit combined, that is, the conusee, after the right 
 
 was acknowledged to be in him, rendered or granted back to the conusor or to a stranger 
 
 some other estate in the land. 
 
 § 16. Fines were abolished by the Fines and Recoveries Act (q. v.), which substitutes Abolition, 
 simpler modes in those cases where the operation of fines was beneficial. The Statute of 
 Limitations (3 & 4 Will. 4, c. 27) was passed to provide for the protection of titles to 
 land after the lapse of a certain time, without the necessity of levying a fine. 
 
 See Non-Claim. 
 
 Etymology.] — Fines were so called from the words with which the record of the 
 fine began : Hac est finalis concordia inter, &c. : " this is a final concord or compromise 
 between, &c." ' 
 
 FINES AND RECOVERIES ACT is the stat. 3 & 4 Will. 4, c. 74. 
 Its principal objects were: 1st. To abolish fines and recoveries and to 
 make warranties by a tenant in tail no longer effectual for barring entails ; 
 2ndly. To enable a tenant in tail to bar the entail either wholly or 
 partially by a deed enrolled, instead of by a fine or a recovery ; 3rdly. To 
 enable a married woman, with the concurrence of her husband, to dispose 
 of land by a deed acknowledged by her before a judge or commissioner, 
 instead of by a fine. 2 (See Disentailing Deed ; Acknowledgment, § 2 ; Fine, 
 §11; Recovery ; Warranty. 
 
 FIRE. — The owners of houses in which fires arise accidentally and 
 without negligence are not responsible for damage thereby caused to 
 other persons. 3 
 
 As to policies of insurance against fire, see Insurance. As to fire-bote, 
 see Estovers, § 1. As to incendiary fires, see Arson. 
 
 FIREWORKS. — As to the manufacture, sale, &c. of fireworks and 
 the punishment of persons letting them off in streets or public places, see 
 stat. 38 & 39 Vict. c. 17. 
 
 FIRM denotes I . the style or title under which one or several persons 
 carry on business; and II. the partnership itself, that is, the individual 
 members forming the partnership. The mercantile notion of a firm is 
 that it is a body distinct from the members composing it, and having 
 rights and obligations distinct from those of its members ; in other words, 
 a firm is by laymen considered as a kind of corporation. 4 Although this 
 
 1 Williams, 106 ; Litt. § 441. 3 Stat. 14 Geo. 3, c. 78, s. 86; Steph. 
 
 2 As to the minor provisions of the act, Comm. ii. 236. 
 
 see Shelford's Real P. Statutes, 299 et seq. 4 See Lindley, Partn. 208. 
 
362 
 
 First Fruits 
 
 LAW DICTIONARY. 
 
 Fishery 
 
 Actions by 
 and against 
 firms. 
 
 is not the legal status of a firm, yet in the following respects its quasi- 
 corporate nature is recognized. 
 
 § 2. In procedure, an action may be brought by or against a firm in the 
 name of the firm, 1 and when a firm is so sued the writ may be served at 
 its place of business on the manager of the business ; 2 provision is also 
 made for issuing execution against the members of the firm. 3 
 Bankruptcy. § 3. In bankruptcy, where a firm becomes bankrupt, the assets of the 
 firm (called the joint assets), and the assets of each individual partner 
 (called the several assets), are administered separately. (See Joint.) 
 § 4. Again, when several persons form a firm, and one or more of them 
 (not being all) form another firm, the former is called the major, and the 
 latter the minor, firm. The distinction is of importance, because where 
 one of such firms becomes bankrupt any member of the other may prove 
 against it notwithstanding the general rule that a partner cannot prove 
 against the joint estate in competition with the joint creditors ; and 
 where both become bankrupt a creditor of the two firms may prove 
 against each. 4 
 
 FIRST FRUITS are the whole profits of a spiritual preferment 
 during the first year of its being held by a new incumbent. First fruits 
 and tenths (q. v.) were originally payable to the Church of Rome, until 
 by the stat. 26 Hen. VIII. this revenue was transferred to the crown. 
 Under stat. 7 Eliz. c. 4, and various statutes of Anne, benefices under 
 50/. per annum clear yearly value are discharged of first fruits and tenths ; 
 and in those cases where they afe payable, the payment is spread over a 
 period of two or (in some cases) four years. And by the stat. 2 & 3 Anne, 
 c. 1 1 (or 20), the revenue of first fruits and tenths was converted into the 
 fund commonly called Queen Anne's Bounty {q. v.). 5 
 
 FIRST IMPRESSION.— A case which presents to a Court of law 
 for its decision a question of law which is new, and for which there 
 is consequently no precedent, is said to be a case of first impression. 
 
 FISH ROYAL are whale and sturgeon, which, when either thrown 
 ashore or caught near the coast, are the property of the sovereign. It is 
 said, that in the case of a whale it is divisible between the king and the 
 queen, the head being the king's, and the tail the queen's. 6 (See Preroga- 
 tive.) 
 
 FISHERY.— § 1. A fishery or piscary 
 another man's waters, or his own." 1 
 
 'is a liberty of fishing in 
 
 1 Rules of Court, xvi. 10, 10 a. A per- 
 son carrying on business alone under a firm 
 name must sue in his own name. 
 
 2 Ibid. ix. 6. 
 
 3 Ibid. xlii. 8 ; and see vii. 2, xii. 12. 
 
 * Robson's Bank. 574, 620; Bankruptcy 
 Act, 1869, s. 37; and see Ex parte Honey, 
 
 7 Ch. App. 178. 
 
 5 Steph. Comm. ii. 532. 
 
 6 Ibid. 448, 540. 
 
 7 Termes de la Ley, s. v. Piscary ; 
 Bracton, 208 b ; Britton, 109b. Primarily 
 " fishery" seems to have meant a several 
 fishery; Britton, 158b. 
 
Fishery law dictionary. Fishery 363 
 
 Fisheries are either royal, public or private. 
 
 I. § 2. A royal fishery is the exclusive right of the crown of fishing in Royal. 
 a public river. Such a right cannot be created de novo since Magna 
 Charta. 1 If it has been granted to a subject, it is called a free fishery 
 {infra, § 5). 
 
 II. § 3. A public or common fishery (or public common of fishery) is Public or 
 the right of the public to fish in the sea and in public navigable rivers common - 
 as far as the tide flows. 2 This right cannot exist if the water is subject to 
 
 an exclusive right of fishery in some person or corporation. 
 
 III. Private fisheries are of three kinds. Private. 
 i. § 4. A several fishery or piscary (sometimes called simply a fishery Several. 
 
 or piscary 3 ) is an exclusive right of fishing in a particular water, and 
 vested either in the owner of the soil or in someone claiming under him. 
 Hence if a man grants a several fishery in water belonging to him, the 
 grantee may exclude him from fishing there.* And a several fishery 
 may be confined to a particular' kind of fish. 5 (See Dereliction, §3.) 
 § S . A several fishery in public waters which excludes the public from 
 fishing there, may be either in the crown, in which case it is also called 
 a royal fishery {supra, § 2), or in a private person or body claiming 
 under the crown : but it cannot have been created since Magna Charta. 6 
 § 6. The owner of a several fishery has a privileged property in the fish 
 before they are caught. 7 (See Property.') 
 
 ii. § 7. Common of piscary or fishery is the right of fishing in another Common of 
 man's waters, such as a pond or private river, but in common with, that P lscar y- 
 is, not in exclusion of, the owner of the soil. Common of piscary is 
 a profit a prendre, 8 and may be either appurtenant or in gross, but 
 apparently not appendant. 9 The term seems to be confined to that right 
 of fishing which the tenants of manorial land have of fishing in the waters 
 ofthelord 10 (z>z/hz, § 8). 
 
 iii. § 8. The true nature of a free fishery is a disputed point. According Free fishery, 
 to Coke it is much the same (at all events in the right which it confers) 
 as a common of piscary, 11 while Blackstone says that a free fishery is an 
 exclusive right of fishing in a public river, and is a royal franchise. 12 
 There is no doubt that the term is used in both senses. 13 It may be 
 suggested that " free fishery " originally meant merely a liberty or right 
 of fishing created by express grant from the owner of the soil or water. 
 
 1 Rolle, Abr. Prerogative le Roy, B 2, 4 Ex. 361 ; Bristow v. Cormican, 3 App. 
 \a ic. Ca. 641 ; Saltash v. Goodman, 5 C. P. D. 
 
 2 Elton on Commons, 106 ; Phear on 431. 
 
 "Water, 65. 7 Child v. Greenhill, Cro. Car. 553. 
 
 3 Supra, note (1), and Co. Litt. 4 b. 6 Co. Litt. 122 a; Bl. Comm. ii. 34; 
 
 4 Co. Litt. 122 a. See Shelford, R. P. Hall on Commons, 307. 
 
 Stat. 46. As to whether the ownership 9 Elton on Commons, 105. See, how- 
 
 of the land is presumed to belong to the ever, Coulson & Forbes, 341. 
 
 owner of a several fishery, see Marshall v. 10 See Williams on Commons, 137, 259; 
 
 Ulleswater, &c. Co., 3 B. & S. 732 ; Elton, 105. 
 
 Williams on Commons, 260. " Co. Litt. 122 a, and Hargrave's note. 
 
 6 Phear, 63. 12 Bl. Comm. ii. 39 ; Elton, 107. 
 
 6 Malcolmson v. CDea, 10 H. L. C. 13 Malcolmson v. CDea, 10 H. L. C. 
 
 593; Mayor of Carlisle v. Grakam.L.R., 593. 
 
364 Fishery Laws law dictionary. Fixtures 
 
 Consequently such a right, if granted by the crown, would give the right 
 of fishing in a public river to the exclusion of all private persons (though 
 not necessarily to the exclusion of the crown), while, if granted by the 
 owner of a several fishery, it would give the right of fishing in his water 
 to the exclusion of all persons except himself: in other words, it would 
 create the right of fishing in common with him. 1 The term " common of 
 fishery," having been already appropriated to denote the right of the 
 tenants of a manor to fish in the lord's waters in common with'him {supra, 
 § 7), the term " free fishery " would conveniently be used to denote any 
 other right of fishing in common with the owner of the water ; so that, 
 according to this view, a free fishery and a common of fishery in private 
 waters both confer the right of fishing in common with the owner of the 
 soil, and only differ in their origin. 3 
 
 FISHERY LAWS. — The Fishery Laws are a series of statutes passed 
 for the regulation of fishing, especially to prevent the destruction of fish 
 during the breeding season, and of small fish, spawn, &c, and the employ- 
 ment of improper modes of taking fish. 3 
 
 FITZHERBERT,— Anthony Fitzherbert, the author of the Grand 
 Abridgment, a species of digest of the law (see Digest, § 2, and note (2) ), 
 and of the New Natura Brevium, was a serjeant-at-law, and afterwards a 
 judge of the Common Pleas, during Henry VIII. 's reign. He also wrote 
 a work on justices of the peace. 4 
 
 FIXTURES are personal chattels annexed to land, that is, fastened 
 to or connected with it. 5 The general rule is that if the owner or occu- 
 pier of land annexes anything to the freehold it becomes part of the free- 
 hold, so that the ownership of the chattel passes with the ownership of 
 the freehold. 6 Thus, if A. sets up fixtures on his land, and then mort- 
 
 1 This view is confirmed by Seymour v. to the landlord, or descend to the heir with 
 
 ■Courtenay (5 Burr. 2814), where the three the inheritance, because it is a fixture, 
 
 kinds of fisheries, several fishery, free There is, however, another sense in which 
 
 fishery and common of fishery, are distin- the term fixtures is very frequently used, 
 
 guished. and which it is thought expedient to adopt 
 
 3 Co. Litt. 122 a. in the following treatise, viz., as denoting 
 
 3 Steph. Comm. iii. 165, where the prin- those chattels which have been annexed to 
 cipal acts up to 1873 are enumerated; to land and which may be afterwards severed 
 these may be added the Fisheries (Oyster, and removed by the party who has annexed 
 Crab and Lobster) Act, 1877; Fisheries them, or his personal representative, against 
 (Dynamite) Act, 1877; FreshwaterFisheries the will of the owner of the freehold." 
 Act, 1878; Salmon Fishery Act, 1879. (Amos & Ferard, 1.) This definition has 
 
 4 Reeves; Foss. been judicially approved {Hallen v. Runder, 
 
 5 As to fixtures generally, see Elwes v. 1 C. M. & R. 266) ; but is nevertheless in- 
 Mawe, 3 East, 38 ; Smith's L. C. ii. 162 ; correct (see Smith's L. C. ii. 182). Fix- 
 Horn v. Baker, 9 East, 215 ; Smith, ii. tures are things fixed to land — some are 
 205 ; Amos & Ferard on Fixtures ; Chitty removeable, some not. When we speak 
 on Contracts, 326 et seq. ; WoodfalPs of a chattel passing to the heir because it 
 Landlord & Tenant, 581 et seq. ; Smith's is a fixture we mean that it is an irremove- 
 L. C. ii. 182. "The t'erm fixtures is also able fixture; when we speak of a tenant's 
 sometimes applied to things expressly to fixture we mean that it is removeable. 
 denote that they cannot legally be re- 6 Co. Litt. 53 a ; Chitty, 327 ; Amos & 
 moved. . . . Thus it has been said Ferard, 9. " Whether a machine or other 
 that an article shall fall in with the lease article has been so fixed and attached to 
 
Fleta LAW dictionary. Floor 365 
 
 gages the land to B., and afterwards becomes bankrupt, the fixtures 
 pass with the freehold to B., although all the other chattels belonging 
 to A. (not comprised in a registered bill of sale) pass to his trustee in 
 bankruptcy. 1 For the same reason no fixture can be taken in distress 
 for rent. 2 
 
 § 2. If the rule that fixtures form part of the freehold were invariable, 
 it would have the effect of entitling every heir, devisee and reversioner of 
 land to the fixtures left on the land by the ancestor, testator or tenant for 
 life, instead of their passing to his personal representatives with his other 
 chattels : it would also entitle every freeholder to all the fixtures set up 
 by his tenants ; but it is relaxed in certain cases, especially as between 
 landlord and tenant. § 3. Hence fixtures are divided into two classes ; Landlord's 
 (1) landlord's fixtures, or those which belong to the landlord; and (2) fixtures - 
 tenant's fixtures, or those which belong to and may be removed by the fixtures S 
 tenant at any time during his tenancy. Tenant's fixtures again are 
 divisible according to their nature into (a) trade fixtures, being articles Trade fixtures, 
 erected by the tenant solely for the purposes of trade or manufacture, 
 such as engines, cisterns, plants and trees planted by nurserymen, &c., 3 
 and (b) ornamental fixtures, or articles put up for domestic use or orna- Ornamental, 
 ment, such as bookcases, marble chimney-pieces, &c* 
 
 § 4. Agricultural fixtures, or those erected by a tenant for agricultural Agricultural, 
 purposes, are subject to special rules and statutory provisions, the general 
 rule (in the absence of a special agreement) being that he is entitled to 
 remove such fixtures, on giving notice to his landlord, unless the latter 
 elects to purchase them. 6 
 
 FLETA is the name given to a Commentarius Juris Anglicani, composed 
 by an unknown writer during the reign of Edward I. The title is derived 
 from the book having been written during the author's confinement in the 
 Fleet prison. He appears to have derived his materials from Bracton 
 and Glanville (q.v.). 
 
 FLOATING. See Security. 
 
 FLOOR. The floor of a Court is that part between the judge's bench 
 and the front row of counsel. Litigants appearing in person, in the 
 
 the freehold as to become parcel of it, is a enjoyment and use of it as a chattel." 
 
 question of fact depending on the circum- Woodfall, 584. 
 
 stances of each case, and principally on l Holland v. Hodgson, L. R., 7 C. P. 
 
 two circumstances : first, the mode of 328 ; Horn v. Baker, Smith's L. C. ii. 
 
 annexation to the soil or fabric of the 205. Mortgages of trade machinery must 
 
 house, and the extent to which it is united in all cases be registered as bills of sale ; 
 
 to them; whether it can easily be re- Bills of Sale Act, 1878, s. 4; Pope on 
 
 moved integre, salve et commode, or not. Bills of Sale, 7. 
 
 without injury to itself or the fabric of the z Woodfall, 398. 
 
 building : secondly, on the object and pur- 3 Chitty, 329, 332. 
 
 pose of the annexation, whether it was for 4 Ibid. 329, 331. 
 
 the permanent and substantial improve- 6 Cooke's Agricult. Hold. Act, 99, 141 ; 
 
 ment of the dwelling . . . ., or merely for stat. 14 & 15 Vict. c. 25; Agricultural 
 
 a temporary purpose, or the more complete Holdings Act, 1875 \ Woodfall, 593. 
 
366 Flotsam law dictionary. Foreclose 
 
 High Court or Court of Appeal, are supposed to address the Court 
 from the floor. 
 
 FLOTSAM. See Jetsam, Flotsam and Ligan. 
 
 FOLD AGE is a privilege possessed in some places by the lord of a 
 manor, and consists in the right of having his tenant's sheep to feed on 
 his fields, so as to manure the land, in return for which the lord provides 
 a fold for the sheep. It is a seignorial right (q. ».). 
 
 § 2. The name of foldage is also given in parts of Norfolk to the 
 customary fee paid to the lord for exemption at certain times from this 
 duty. 1 
 
 FOLDCOURSE means (i) in its proper sense, the right which the 
 lords of some manors have of feeding a certain number of sheep on the 
 lands of their tenants during certain times of the year. 2 It seems that 
 such a right is not strictly a right of common, although frequently so 
 called, 3 but a seignorial right reserved by the lord of the manor over his 
 tenant's lands. 4 
 
 "Foldcourse" also means (ii) land subject to a right of foldcourse, or the 
 same thing as a sheepwalk 5 {q. v.) ; and (iii) the right of a tenant of a 
 manor to pasture sheep on the land of the lord ; such a right is a common 
 appurtenant. 6 
 
 See Foldage ; Common. 
 
 FOOT. See Fine, § 9. 
 
 FORCIBLE DETAINER is the offence committed by a person 
 who, having wrongfully entered upon any lands or tenements, detains 
 them with violence or threats, that is, in the same manner as would 
 render an entry upon them for the purpose of taking possession a forcible 
 entry 7 (q. v.). 
 
 FORCIBLE ENTRY is the offence of entering upon any lands or 
 tenements in a violent manner in order to take possession thereof, 
 whether the violence consists in actual force applied to any other person, 
 or in' threats, or in breaking open any house, or in collecting together an 
 unusual number of persons for the purpose of making such entry. 
 
 Forcible entry is a misdemeanor : 8 a summary remedy by justices of the 
 peace is also available. 9 
 
 FORECLOSE— FORECLOSURE.— § 1. When a mortgagor has 
 failed to pay off the mortgage debt within the proper time, the mortgagee 
 is entitled to bring an action in the Chancery Division of the High Court 
 
 1 Elton on Commons, 45, 46. 798. 
 
 2 Ibid. 44. 7 Stephen's Crim. Dig. 47 ; Russell on 
 * "Williams' Saund. ii. 727 ; Spooner v. Crimes, 410. 
 
 Day, Cro. Car. 432. 8 Stephen's Crim. Dig. 46 ; Russell on 
 
 4 Elton, 45. Crimes, i. 404 et seq. ; Lows v. Telford, 
 
 5 Co. Litt. 6 a, n. (1.) 1 App. Ca. 414. 
 
 6 RoUnson s.Duleep Singh, 11 Ch, D. 9 Woodfall, L. & T. 795. 
 
Foreign LAW dictionary! Foreign Attachment 367 
 
 asking that a day may be fixed on which the mortgagor is to pay off the 
 debt, and that in default of payment on that day he (the mortgagor) may 
 be foreclosed of his equity of redemption, that is, deprived or debarred of 
 his right to redeem. The judgment fixes a place and time for payment 
 (generally the Rolls Chapel, Chancery Lane, London), at the expiration 
 of six months from the date of the judgment, 1 and orders that the mortga- 
 gor be foreclosed if the debt is not paid on that day. Upon an affidavit 
 of non-payment at the appointed time and place, the order for foreclosure 
 contained in the original judgment will be made absolute by an order 
 which is obtained, as of course, upon motion. 3 The effect of the fore- 
 closure is to bar the mortgagor's right or equity of redemption, and thus 
 to vest the property absolutely in the mortgagee ; and he cannot subse-j 
 quently sue the mortgagor for any deficiency of value, unless he gives the 
 mortgagor a new right of redemption. 3 § 2. Foreclosure actions are now 
 comparatively rare in practice, as the mortgagee's remedy by sale, under 
 the power of sale usually conferred on him, is in general more speedy and 
 convenient. As to the derivation of the word, compare Forjudge. (See 
 Day to show Cause; Judgment ; Mortgage; Power.) 
 
 FOREIGN, in law, is that which is out of a certain state, country, 
 county, liberty, manor, jurisdiction, &c. 4 Thus in the law of divorce 
 "foreign" means anywhere out of England, and "foreigner" means one 
 who is not a domiciled Englishman. 5 As to foreign law, see Fact, § 2. 
 As to foreign judgments, see Judgment. As to foreign services, see 
 Service. As to foreign bills of exchange, see Bill oj Exchange, § 10. 
 See also Denizen, note (14) ; Foreign Attachment ; Forfeiture, § 5 ; State. 
 
 Etymology.] — Lat. foras, out of; low Latin, foraneus; Norm. Fr. foreynfi 
 " Foreign" is translated forinsecu s by our early law-writers, e.g. servitia forinseca, &c. 7 
 
 FOREIGN ATTACHMENT.— § 1. By the custom of the city of 
 London (and a few other cities 8 ) if an action of debt is brought in the 
 Mayor's Court, and the defendant makes default in appearing to the action, 
 and it appears that he has nothing within the city whereby he may be 
 summoned, the Court may, on the plaintiff alleging that some person 
 within the city has property belonging to the defendant in his possession, 
 attach the property to compel the defendant to appear. The attachment 
 is effected by warning the person in whose possession the property is not 
 to part with it without the further order of the Court. This person is 
 then called the garnishee. If the defendant still makes default in appear- 
 ing, the garnishee is required to show cause why the plaintiff should not 
 
 1 Cox v. Watson, 7 Ch. D. 196. judge as incompetent, because the matter 
 
 2 Fisher on Mortgage, 504, 1038, 1 102. in hand is not within his precincts," that 
 
 3 Ibid. 1057. But even after an order of is, jurisdiction; Kitch. 75 ; Termes de la 
 foreclosure absolute the Court has a dis- Ley, s. v. ; Britt. 22 b. 
 
 cretion to re-open the foreclosure within a 6 Yelverton v. Yelverton, I Sw. & T. 586. 
 
 reasonable time and allow the mortgagor 6 Littre, v. Forain ; Diez. i. 192. 
 
 to redeem ; Campbell v. Holyland, 7 Ch. 7 Bract. 36 a. 
 
 D. j66. " Bristol, Exeter, Lancaster; Brandon, 
 
 4 "Foreign matter triable in another For. Attach. 1. See Termes de la Ley, 
 county," PI. Cor. 154; Kitchen on Courts, s. v. Foreign. 
 
 126; "Foreign plea is a refusal of the 
 
368 Foreign Attachment LAW dictionary. Foreign Attachment 
 
 have execution of the property attached, and in default of cause being 
 shown, the plaintiff obtains execution, first giving security to restore the 
 property to the defendant if he should within a year and a day come into 
 Court and disprove the debt alleged in the action. (See Pledges to restore; 
 Scire facias.) What the plaintiff receives by the execution operates as 
 a satisfaction (wholly or pro tanto) of the debt due to him from the 
 defendant. 
 
 § 2. Where the property attached is money belonging to the defendant, 
 the judgment is final, but in the case of goods the judgment is interlocu- 
 tory, and is called judgment of appraisement, because it directs the goods 
 to be appraised {i.e., valued) by the Serjeant at mace, in order that the 
 defendant may be credited with their value, and when this is done final 
 judgment is signed and execution issued. 1 
 
 § 3. Theoretically the primary object of the process of foreign attach- 
 ment is to compel the defendant to appear, and therefore if the defendant 
 appears according to the custom, as by giving bail, paying money into 
 Court, &c. (see Appearance, § 7), the attachment is dissolved or at an end. 
 In practice, however, the proceeding by foreign attachment is used prin- 
 cipally for the purpose of taking the defendant's property in satisfaction 
 of the debt. Hence it has become usual to make the record in a proceed- 
 ing by foreign attachment recite a number of steps which are purely 
 fictitious, e.g., a return by the sheriff that the defendant has nothing 
 within the city whereby he may be summoned, a "solemn calling" of the 
 defendant, his default, &c, &c. : "all this is recited in the record as 
 occurring at one and the same Court : no specific time is necessary to 
 elapse, but immediately the action is entered and the plaintiff makes a 
 satisfactory affidavit of his debt, he is at liberty to issue the attachment," 2 
 which is a command of the Court to the sheriff to attach the property ; 
 Attachment the sheriff accordingly serves on the garnishee an " attachment paper" or 
 paper. notice not to part with the property ; after the fictitious " solemn calling" 
 
 of the defendant and his four successive defaults (for as the proceedings 
 to obtain execution are founded on the defendant's supposed default in 
 appearing, it is necessary to allege his default although it has not actually 
 taken place), a scire facias is issued to warn the garnishee to appear and 
 show cause why the plaintiff should not have execution of the property 
 attached, and if no cause is shown, or if cause is shown but judgment is 
 given for the plaintiff, he obtains execution of the property. 3 In a recent 
 case, 4 however, where it appeared that the usual practice of inserting 
 fictitious statements in the record had been followed, the Court held that 
 the custom had not been followed, and restrained the proceedings in the 
 Mayor's Court. It seems probable that this decision will considerably 
 diminish the use made of the anomalous proceeding in question. 
 
 See Attachment. 
 
 Etymology and History.] — The citizens of London had a prompt remedy by 
 
 1 Brandon, For. Attach. 91. Saund. 87; Mayor of London v. Cox, L. R., 
 
 2 Ibid. 9. 2 H. L. 239. 
 
 3 See as to the custom generally, Bran- 4 London Joint Stock Bank v. Mayor of 
 don, For. Attach. ; TurbilVs Case, 1 Wins. London, 5 C. P. D. 494. 
 
Foreign Enlistment LAW dictionary. Foreshore 369 
 
 arrest against all persons within the city, whether they were citizens or "foreigners" 
 (" foreigners from the liberties of the city," i. e. persons not citizens) ; but they had no 
 personal control over foreigners out of the city, and it was to compel such persons to 
 appear and find bail that the process of attachment was first used ; hence it was called 
 " attachment of foreigners' goods," or " foreign attachment." ' See Foreign. 
 
 FOREIGN ENLISTMENT ACT, 1870 (repealing stat. 59 Geo. 3, 
 c. 69), makes it an offence, punishable with fine and imprisonment, 
 for any British subject, without the licence of the crown, to accept a 
 commission in the military or naval service of any foreign State at peace 
 with England, or to build or equip any ship for the service of any foreign 
 State at war with a State at peace with England, or to assist in increasing 
 her armament or warlike force. 2 
 
 FORENSIC MEDICINE, or medical jurisprudence, as it is also 
 called, is " that science which teaches the application of every branch of 
 medical knowledge to the purposes of the law : hence its limits are, on the 
 one hand, the requirements of the law, and, on the other, the whole range 
 of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics 
 and botany, lend their aid as necessity arises; and in some cases all these 
 branches of science are required to enable a Court of law to arrive at a 
 proper conclusion on a contested question affecting life or property." 3 
 
 § 2. Forensic medicine is occasionally required in cases of a civil nature, 
 such as questions of lunacy or unsoundness of mind (see Lunacy ; Delu- 
 sions), or cases of nuisances injurious to health. Its most important function 
 however is in criminal trials, where the evidence of a medical expert is 
 frequently required. Thus, in a trial for murder, where the evidence is 
 circumstantial, it is almost invariably necessary to adduce evidence by a 
 medical practitioner as to the appearance of the body and the results of 
 a post-mortem examination. So far as he attempts to account for the 
 symptoms or appearances observed by him, his evidence is merely opinion 
 evidence. 4 
 
 FORESHORE is that part of the land adjacent to the sea which is 
 alternately covered and left dry by the ordinary flow of the tides, that is, 
 by the medium line between the greatest and least range of tide (spring 
 tides and neap tides). It forms part of the adjoining county, the justices 
 of which have cognizance of offences committed there, whether it is or is 
 not at the time covered with water. It also forms part of the adjoining 
 parish. 5 
 
 § 2. The property in the foreshore is prima facie vested in the crown, 
 but a part of it may belong to a subject by an ancient grant from the crown, 
 or by prescription. This ownership of the crown is for the benefit of the 
 
 1 Brandon, 4. et seq. 
 
 1 As to the "Three Rules" established 3 Taylor on Med. Jur. I. 
 
 by the Treaty of Washington, 1871, and l See Best on Evidence, 651 et seq. 
 
 the principles decided by the Geneva Arbi- 5 Coulson & Forbes on Waters, 13 ; 
 
 tration, see Phillimore, Int. Law, iii. 251 stat. 31 & 32 Vict. c. 122, s. 27. 
 
 S. B B 
 
37° 
 
 Forest 
 
 LAW DICTIONARY. 
 
 Forfeiture 
 
 community, and cannot be used in any way so as to derogate from or 
 interfere with the public rights of navigation and fishery. 1 
 See Alluvion ; Dereliction. 
 
 FOREST, in the legal sense of the word, is the exclusive right of 
 keeping and hunting wild beasts and fowls of forest, chase, park, and 
 warren, in a certain territory of " wooddy grounds and fruitfull pastures," 
 with laws and officers of its own, established for the protection of the 
 game. These laws are now obsolete. 2 
 
 § 2. A royal forest is one belonging to the crown (see Demesne, § 5) : a 
 forest in the hands of a subject is a franchise (q. v.). 
 
 § 3. Forests, chases, parks, and warrens have this peculiarity, that they 
 give their owners a qualified property or ownership in the animals confined 
 in them, so that no other person can acquire a property in them either by 
 taking them within the forest, &c, or by chasing them thence and taking 
 them in other ground. 3 
 
 See Chase; Park; Warren; Game; Purlieu; Animals Fera Natures. 
 
 Entry on 
 land. 
 
 Merchandise. 
 
 FORESTALL— FORESTALMENT.— § 1. To forestall a person is 
 to obstruct his way with force and arms. To prevent a person from going 
 on land to demand or distrain for rent in arrear by forestalling him 
 operated as a disseisin of the rent. 4 (See Disseisin.) The term is now 
 obsolete. 
 
 § 2. It was also used to signify the offence of raising the price of certain 
 goods, by buying merchandise on its way to market, or dissuading persons 
 from bringing their goods there, &c: it was abolished by stat. 7 & 8 Vict. 
 c. 24.° (See Engrossing, §3.) 
 
 Lease. 
 
 Relief against 
 forfeiture. 
 
 FORFEITURE is where a person loses some property, right, 
 privilege or benefit in consequence of having done or omitted to do a 
 certain act. 
 
 § 2. Thus where a lease contains a provision enabling the lessor to put 
 an end to the term if the lessee fails to pay the rent, or comply with the 
 covenants, then if the lessee fails to pay his rent or repair, and the lessor 
 puts an end to the term by re-entry, a forfeiture of the lease is said to 
 take place. 
 
 § 3. In some cases the Courts will relieve against a forfeiture, that is, 
 prevent the person entitled to take advantage of it from doing so, the 
 general rule being that the Court will relieve against a forfeiture when 
 its object is to secure the performance of some collateral act, such as 
 the payment of money, and when the Court can give by way of com- 
 pensation all that was expected or desired. Thus the Court will relieve 
 
 1 Coulson & Forbes on Waters, 13; A. 
 G. v. Tomline, 12 Ch. D. 214. 
 
 2 Bl. Comm. ii. 38 ; Steph. Coram, i. 
 665 ; Manwood, Forest ; 4 Inst. 288 ; Co. 
 Litt. 233 a. 
 
 3 Bl. 419. 
 
 4 Litt. I 240; Co. Litt. 161 b. 
 
 6 Steph. Comm. iv. 266, n. {p). 
 
 6 Peachy v. Duke of Somerset, I Stra. 
 447; Sloman v. Walter, 1 Bro. C. C. 418; 
 White & Tudor's L. C. ii. 992. 
 
Forfeiture LAW DICTIONARY. Forge 
 
 37 1 
 
 against the forfeiture of a lease for nonpayment of rent, on the lessee 
 paying what is due. 1 The powers of the Court in this respect have been 
 extended by statute to the case of forfeiture for breach of a covenant to 
 insure against fire. 2 
 
 § 4. A copyhold may be forfeited by a wrongful act to the prejudice of Copyhold, 
 the lord, or by anything which amounts to a determination of the tenancy, 
 e.g., by waste, refusal to perform the customary services, &c. 3 
 
 § 5. If the master or owner of a British ship conceals the British Ship, 
 character of the ship, or assumes a foreign character with intent to deceive 
 any person entitled to inquire into the matter, the ship is forfeited to the 
 Crown. 4 
 
 § 6. Formerly forfeiture was a result of many acts by tenants or owners Estates, 
 of estates on the ground of their being considered by the feudal law as 
 contrary to the duties of the tenants towards their lords. Thus a feoff- 
 ment of land by a tenant for life was a forfeiture of his estate, because it 
 was an attempt to dispose of the reversion ; 6 but this operation of a 
 feoffment has been abolished. 6 
 
 §7. In criminal law, forfeiture now seldom occurs. If a person Criminal law. 
 solemnizes or assists at the marriage of any descendant of king George II., 
 in contravention of the stat. 12 Geo. 3, c. n, his lands and goods are 
 forfeited to the Queen. 7 If a person is outlawed for treason, his lands 
 are forfeited to the crown ; if a person is outlawed for felony, he forfeits 
 to the crown all his goods and chattels, real and personal, and also the 
 profits of his freeholds during his life ; after his death the Queen is 
 further entitled to his freeholds for a year and a day, with the right of 
 committing in them any waste she pleases (called the Queen's year, day, 
 and waste). Formerly conviction for any kind of felony caused a forfei- 
 ture of goods and chattels, both real and personal, but this has been 
 abolished. 8 (See Attainder ; Escheat; Administrator, § 2.) 
 
 FORGE— FORGERY.— § 1. To forge is to do one of the follow- 
 ing things with intent to defraud, namely, (i) to make a document 
 purporting to be what it is not, or (ii) to alter a document without 
 authority in such a manner that if the alteration had been authorized it 
 would have altered the effect of the document, or (iii) to sign a docu- 
 ment : (a) in the name of a person without his authority, whether such 
 name is or is not the same as that of the person signing ; (b) in the name 
 of any fictitious person alleged to exist ; (c) in a name represented as 
 being the name of a different person from that of the person signing it, 
 and intended to be mistaken for the name of the former ; or (d) in the 
 name of a person personated by the person signing the document, if the 
 
 1 Snell's Eq. 274. ° Co. Litt. 251 a, where other instances 
 
 2 22 & 23 Vict. c. 35, s. 14 ; 23 & 24 of forfeiture are given; Bl. Comm. ii. 275. 
 Vict. c. 126, s. 2 ; Williams' R. P. 384 ; G Stat. 8 & 9 Vict. c. 106. See Feoff- 
 Woodfall's L. & T. 297 etseq. ment. 
 
 3 Elton, Copyh. 200. 7 Stephen's Crim. Dig. 39. 
 
 4 Merchant Shipping Act, 1854, s. 103, " Williams' R. P. 126; Bl. Comm. ii. 
 § 2 : The Annandale, 2 P. D. 179, 218. 251 ; stats. 33 & 34 Vict. c. 23 ; 54 Geo. 3, 
 
 c. 145- 
 B B 2 
 
372 Forjudge LAW dictionary. Franchise 
 
 effect of the document depends upon the identity between the person 
 signing the document, and the person who he professes to be. 1 
 
 § 2. At common law, forgery is a misdemeanor •? by various statutes 3 the 
 forgery of certain documents is felony, punishable with penal servitude 
 for years or for life. 4 
 
 The forgery of trade-marks is a misdemeanor. 6 
 
 See Utter. 
 
 FORJUDGE— FORJUDGMENT.- To forjudge is to deprive a person of a 
 thing or right by a judgment. Thus where under the old law a mesne lord was bound 
 to acquit or indemnify his tenant paravail against services demanded of him by the lord 
 paramount, and failed to do so, he was liable to be forjudged or deprived of the services 
 of the tenant paravail. 6 (Norman French, forjuger? from /oris, out, and judicare, to 
 judge.) 
 
 FORM— FORMALITY. See Irregular? also Action, § 22. As to 
 " common forms " in deeds, see Abstract, § 1. 
 
 FORMA PAUPERIS. See In Forma Pauperis. 
 
 FORMEDON.— Writs of formedon (de formd donationis) were brought by persons 
 who claimed land under a gift {donatio) in tail when it was in the possession of a person 
 not entitled to it. A formedon in the descender was brought by the issue in tail, a 
 formedon in the remainder by a person entitled in remainder after the determination of 
 the estate tail, and a formedon in the reverter by the reversioner or donor of the estate 
 tail. 9 They were all abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. (See Discontinuance, 
 
 §2.) 
 
 FORTESCUE.— John Fortescue was chief justice of the King's 
 Bench in the reign of Henry VI. ; he died about 1476. He wrote the 
 well-known treatise De Laudibus Legum Anglice. 
 
 FRANCHISE, in its general sense, is a .liberty or privilege. 
 
 I. § 2. At common law, a franchise is a royal privilege or branch of the 
 crown's prerogative, subsisting in the hands of a subject, either by grant 
 or by prescription. 10 Franchises are of two classes — (1) those which 
 originally formed part of the crown's prerogative, and could therefore be 
 exercised by the king jure coronse before they were granted to a subject : 
 such as the franchises of waifs, estrays, wrecks, royal fish, forests, &c: 
 (2) those which can only be created by granting them to a subject: such 
 as fairs, markets, tolls, parks, warrens, &c. (see the various titles). The 
 distinction is so far of importance that when a franchise of the former 
 class is appendant to a manor or the like, and they both come into the 
 hands of the crown, the appendancy is extinguished, because the fran- 
 chise merges in the prerogative : while in the case of a franchise of the 
 
 1 Stephen's Crim. Dig. 267 et seq. ; 5 Stat. 25 & 26 Vict. c. 88 ; Stephen, 
 Russell on Crimes, ii. 618 et seq. ; Reg. v. 287; Russell, ii. 610. 
 
 Martin, 5 Q. B. D. 34. 6 Co. Litt. 100 a. 
 
 2 Russell, 733. 1 Britton, 20 a. 
 
 3 Especially 24 & 25 Vict. c. 98; Greaves' 8 As to the history of juridical formali- 
 Crim. Acts, 265. ties, see Grimm, Deutsche Rechtsalter- 
 
 1 Russell, 734 et seq.; Stephen, 274 et thinner; Savigny, Syst. iii. .238. 
 seq. 9 Litt. § 595 et seq. 
 
 10 Bl. Comm. ii. 37 ; Co. Litt. 114 a. 
 
Frankalmoign LAW DICTIONARY. Frankmarriage 373 
 
 latter class the appendancy would be preserved. 1 § 3. A franchise is an 
 incorporeal hereditament (see Hereditament) ; it not only authorizes some- 
 thing to be done, but gives the owner the right of preventing all other 
 persons from interfering with its exercise : thus, the owner of a market, 
 ferry or the like, can generally prevent anyone from setting up a new 
 market or ferry so near to his as to diminish his custom. 3 
 
 II. § 4. Franchise also means the locality subject to a franchise. 
 
 III. § 5. In ancient times, among other franchises usually granted by Parliamentary 
 the crown to a new borough on its incorporation, was the right of 
 
 sending burgesses to parliament, and hence franchise now means the 
 right to elect members of parliament, whether in boroughs or counties. 3 
 (See Borough ; Election, § 3 ; Parliament.) 
 Etymology.] — Norman French, fraunchise, from frantic, free : 1 see Liberty. 
 
 FRANKALMOIGN is the tenure by which the lands of the Church 
 are for the most part held. 5 " And such tenure beganne first in old time. 
 When a man in old time was seised of certain lands or tenements in his 
 demesne as of fee, and of the same land infeoffed an abbot and his 
 covent, or prior and his covent, to have and to hold to them and their 
 successours in pure and perpetuall almes or in frankalmoigne, in 
 such case the tenements were holden in frankalmoigne." 6 Tenants in 
 frankalmoigne do no fealty or other temporal service to their lord, but 
 are only bound to celebrate divine service in accordance with the book 
 of Common Prayer ;' and, if they fail to do so, the lord cannot -distrain 
 them, but can only complain to their ordinary or visitor. 8 (See Tenure 
 by Divine Service.) 
 
 Etymology.] — Norman French, fraunche aumoyne, or aumone? =free alms (because 
 the tenant was free from temporal service.) 10 
 
 FRANKBANK. — " In some boroughes, by custome, the wife shall 
 have for her dower all the tenements which were her husband's. And 
 this is called frank banke, francus bancus." 11 (See Dower; Freebench.) 
 
 FRANKMARRIAGE.— When land was given with the words "in frank- 
 marriage" to a man and his wife by the father or some blood relation 12 of the wife, 
 then she and her husband had the land to them and their issue, although no words of 
 inheritance or procreation were used in the gift. They had therefore a kind of estate in 
 tail special, the peculiarity of which was that they and their issue to the fourth degree 
 held the land free of services to the donor, and that they had to bring it into hotchpot 
 before they could take any other land by descent in fee simple from the donor. 13 (See 
 Estate Tail ; Hotchpot.) It is now obsolete. 
 
 Etymology.] — Frankmarriage = free marriage, low Latin liberum maritagium. 
 Maritagium was a dowry or gift to a woman about to marry : it was said to be " free" 
 when it was free from services. 14 
 
 1 Case of the Abbot of Strata Marcella, 9 Britton, 164 b; Loysel, Inst. Cout. 
 9 Co. 24. See In Capite. gloss, s. v. 
 
 2 Steph. Comm. i. 664; see, however, 10 Britton, 164 b. 
 Mayor of Penryn v. Best, 3 Ex. D. 292. " Litt. § 166. 
 
 3 12 Co. 120 ; Hale, Anal. 18 ; Homer- n The Norman word in Littleton (§ 17) 
 sham Cox, Inst. is " cousin," which means a blood relation. 
 
 4 Britton, 29 b. Blackstone translates it by the English 
 
 5 Williams, R. P. 132. word cousin (ii. us)- 
 
 « Litt. \ 133. 13 Co. Litt. 21 b; Digby's Hist. R. P. 
 
 7 Ibid. § 135 ; Co. Litt. 95 b. 75, 157. See also Litt. \\ 266 et sea. 
 
 s Litt. § 136. " Bracton, 77 a, 92 b ; Co, Litt. 21 b. 
 
374 
 
 Frankpledge 
 
 LAW DICTIONARY. 
 
 Fraud 
 
 Actual 
 Fraud. 
 
 By misrepre- 
 sentation or 
 concealment. 
 
 By matter 
 subsequent. 
 
 FRANKPLEDGE (Norman French frantic plege = free pledge) is a mistransla- 
 tion of the Saxon word friborh or frithborh, literally pledge or surety for peace ; it was 
 the name given to those associations of ten persons into which, about the time of the 
 Conquest, all men were bound to combine themselves. They were standing sureties for 
 one another's good behaviour. The " view of frankpledge," or duty of seeing that these 
 associations were kept in perfect order and number, was vested in the local courts, 
 especially the courts leet 1 (q. v.). 
 
 FRANK-TENEMENT is the same as "freehold" (q. v.)} 
 
 FRAUD is used in many senses, but the point common to all of them 
 is pecuniary advantage gained by unfair means. 
 
 I. § 2. Actual fraud is where one person causes pecuniary injury to 
 another by intentionally misrepresenting or concealing a material fact 
 which from their mutual position he was bound to explain or disclose. 3 
 (See Misrepresentation; Concealment.) This kind of fraud is also some- 
 times called "personal" or "moral," as opposed to "legal" or "con- 
 structive" fraud {infra, § 6). § 3. The difficulty in saying whether a 
 particular act amounts to fraud, lies in the necessity of determining what 
 relation gives rise to the obligation to disclose a fact which if disclosed 
 would materially affect the conduct of the defrauded person: and as 
 the variations of human transactions and circumstances are infinite, an 
 exhaustive enumeration of the relations giving occasion for fraud is 
 impossible., Moreover, in many cases, the effect of fraud may be 
 counteracted by the conduct of the defrauded person : as where he does 
 not rely on the representation (see Dolus dans locum contractu!), or where 
 he is guilty of gross negligence. 4 
 
 The following are some of the more important instances of actual fraud. 
 § 4. If a person by intentional misrepresentation or concealment of a 
 material fact peculiarly within his own knowledge induces another person 
 to enter into a contract, conveyance or similar transaction with him, 
 which he would not have entered into had he known the truth, the 
 contract or other transaction is fraudulent : as where a person is. induced 
 to purchase a business by false accounts of its position and profits. 5 
 § 5. Fraud also exists when a person enters into a contract, conveyance 
 or similar transaction, with the intention of afterwards doing some act 
 of such a nature that if the other party had known of his intention he 
 would not have entered into the transaction. 6 Accordingly if A. induces 
 B. to enter into a contract with him with the object of committing an 
 illegal or unlawful act to the injury of B., that is a fraud on B.: thus 
 a separation deed is fraudulent if the wife's real object in entering into 
 it is to enable her to renew a former illicit intercourse which has been 
 concealed from the husband ; 7 so it is a fraud to buy goods with the 
 intention of not paying for them. 8 
 
 1 Stubbs, Const. Hist. i. 87, where the 
 authorities are referred to ; also Britton, 
 72 a, and Nichols's note (g). 
 
 2 Co. Litt. 43 b. 
 
 3 Chitty on Contracts, 630 ; Snell's Eq. 
 360 ; Pollock on Contract, 472 et seq. 
 
 ' i Chitty, 630 ; Central Railway Co. v. 
 Kisch, L. R., 2 H. L. 99 at p. 120. See 
 the observations of Fry, J., in Davies v. 
 
 London & Prov. &c. Co., 8 Ch. D. at 
 
 P- 474- 
 
 5 Rawlins v. Wickham, 3 DeG. &J.304. 
 
 c Pollock, 472. 
 
 7 Evans v. Carringion, 2 De G. F. & J. 
 481. 
 
 8 Ferguson v. Carrington, 9 B. & C. 59 ! 
 Clough v. L. &° N. W. Rail. Co., L. R., 7 
 Exch. 26. 
 
Fraud law dictionary. Fraud 375 
 
 II. § 6. Fraud sometimes exists where no wrongful intention is proved. Construc- 
 In this sense of the word, "fraud," or " constructive" or "legal fraud," tive or legal 
 is nomeri generalissimum, 1 and indicates the cases in which a Court will not 
 enforce or will set aside a contract, instrument or transaction, " in which 
 the Court is of opinion that it is unconscientious for a person to avail 
 himself of the ... . advantage which he has obtained." 2 The 
 principal instances of this kind of fraud are as follows:— § 7. First, the intrinsic 
 fraud "may be apparent from the intrinsic nature and subject of the fraud - 
 bargain itself, such as no man in his senses and not under delusion 
 would accept on the one hand, and as no honest and fair man would accept 
 on the other, which are inequitable and unconscientious bargains : and of 
 such even the common law has taken notice : for which, if it would not 
 look a little ludicrous, might be cited fames v. Morgan, 1 Lev. in." 3 
 § 8. Secondly, the fraud may be presumed from the circumstances and Fraud pre- 
 condition of the parties contracting, by that rule of equity established to ™ u ^ s f |^ es 
 prevent one person from taking surreptitious advantage of the weakness 
 or necessity of another, " which knowingly to do is equally against con- 
 science as to take advantage of his ignorance ; a person is equally unable 
 to judge for himself in one as the other." 4 The principal instances 
 of this kind of fraud occur (1) where there is a confidential or fiduciary Fiduciary 
 relation between the parties ; hence all contracts and conveyances whereby relatlon - 
 benefits are secured by children to their parents or guardians, and between 
 cestui que trusts and their trustees, are always liable to be set aside, unless 
 they are entered into with scrupulous good faith and are reasonable under 
 the circumstances; 5 (2) where one person takes an unfair advantage of "Catching 
 the necessities or inexperience of another : it is on this ground that bar 2 ains - 
 " catching bargains" with heirs, reversioners and expectants, for the sale 
 of their reversions or expectancies, during the life of their parents or 
 ancestors, will in general be relieved against, unless the purchaser can 
 show that a fair price was paid. 6 § 9. Thirdly, a transaction may be 
 fraudulent on the ground of public policy. To this class belong Public policy, 
 marriage brocage contracts (q.v.), and the following kinds of trans- 
 actions. 
 
 § 10. " Fraud on third persons" exists where one enters into an arrange- Fraud on 
 ment with or incurs an obligation to another, and at the same time, or third P ersons 
 afterwards, does an act without his knowledge by which the benefit of the 
 
 1 See Broom's Coram. C. L. 337 ; being 32 nails, the quantity came to 500 
 Thomson v. Eastwood, 2 App. Ca. at quarters of barley. The vendor only re- 
 p. 243. " Legal" of course here does not covered 8/. for the value of the horse, 
 mean "lawful," but something created or 4 Chesterfield v. jfanssen, ubi supra. 
 presumed by law, not actually existent. 5 Snell's Eq. 376. See Fiduciary ; 
 
 2 Torrance v. Bolton, L. R., 8 Ch. at Undue Influence; Voluntary; New Som- 
 p. 124. brero Phosphate Co. v.Erlanger, 5 Ch. D. 
 
 3 Per Lord Hardwicke in Chesterfield v. 73. 
 
 Janssen, 2 Ves. 125 ; I Atk. 352 ; White 6 Snell, 383 ; Chesterfield v. Janssen, 
 
 Sc Tudor's L. C. i. 483. fames v. Morgan ubi supra; O'Rorkev. Bolingbroie, 2 App. 
 
 is the celebrated case in which a man Ca. at p. 833. See Expectant Heir. See 
 
 agreed to buy a horse for a barleycorn for also Hart v. Swaine, 7 Ch. D. 42, where a 
 
 the first nail on the horse's shoes, two sale of copyhold land by a person who 
 
 barleycorns for the second, and so on believed and represented it to be freehold 
 
 double for every succeeding nail. There was set aside on the ground of legal fraud. 
 
376 
 
 Fraud 
 
 LAW DICTIONARY. 
 
 Fraud 
 
 Fraud on 
 creditors. 
 
 Fraud on 
 marital rights, 
 
 Fraud on 
 power. 
 
 Fraud on the 
 public. 
 
 Fraud on 
 statute. 
 
 Statutory 
 Fraud. 
 
 arrangement or obligation is partly or wholly destroyed. The following 
 are instances:— § n. If an insolvent debtor enters into an arrangement 
 with the general body of his creditors by which they accept a proportion 
 of their debts in satisfaction of the whole, and the debtor, or any person 
 on his behalf, in order to procure the consent of some particular creditor 
 secretly promises him an advantage over the others, this agreement is 
 void as being "in fraud of creditors." 1 § 12. If a woman entitled to 
 property enters into a contract for marriage, and during the treaty secretly 
 conveys away the property in such a manner as to defeat the intended 
 husband's marital right and secure to herself the separate use of it, and 
 the concealment continues until the marriage, the conveyance is voidable 
 at the suit of the husband as being a fraud on his marital rights, even if 
 he was ignorant of the existence of the property. 2 
 
 § 13. A person to whom a power of appointment is given must exercise 
 it bona fide for the end designed by the donor, otherwise the appoint- 
 ment will be set aside on the ground that it is what is termed a fraud on 
 the power. 3 Thus, if a parent having a power of appointing an estate 
 to any of his children, appoints it to one upon a previous bargain with 
 that child that he should pay the father a consideration for it, the Court 
 will set aside the appointment. 4 So it seems that if a power is given to 
 a person to appoint by will only, a covenant by him to exercise it in a 
 particular way is void, being a fraud on the power. 5 
 
 § 14. An act may be a fraud on the public : on this principle, an agree- 
 ment to publish a work under a misleading title will not be enforced by 
 the Court. 6 
 
 §15. An act is sometimes said to be a fraud on a statute when it is an 
 evasion of its provisions. For example, A. sold a patent to B. in consi- 
 deration of B. paying him royalties ; B. at the same time lent A. 12,500/., 
 and it was agreed that B. should retain one-half of the royalties as they 
 became payable towards satisfaction of the debt, provided that if A. be- 
 came bankrupt B. might retain the whole of the royalties in satisfaction 
 of the debt: this proviso was held to be a fraud upon the bankruptcy 
 laws and void. 7 
 
 III. § 1 6.1 Certain acts are made frauds by statute. Thus, by the 
 Companies Act, 1867, a prospectus which does not comply with the 
 requirements of the act in specifying all contracts entered into by the 
 company, or the promoters, trustees or directors thereof, before the issue 
 of the prospectus, is to be deemed fraudulent. 8 This is an instance of 
 "legal" fraud, in which proof of fraudulent intention is not required 
 {supra, § 6, and see Fraudulent Conveyances ; Fraudulent Preference). 
 
 1 Chitty, 634; Pollock, 224; Leake, 
 4°3- 
 
 2 White & Tudor's L. C. i. 364 ; Snell, 
 319; Pollock, 231. 
 
 3 Aleyn v. Belchicr, 1 Eden, 132 ; 
 White & Tudor's L. C. i. 339. 
 
 i Ibid.; McQueen v. Farquhar, 1 1 Ves. 
 467. 
 
 6 Palmer v. Locke, 15 Ch. D. 294. 
 6 Post v. Marsh, 16 Ch. D. 395. 
 
 7 Ex parte Mackay, L. R., 8 Ch. 643. 
 " Contra legem facit, qui id facit quod lex 
 prohibet ; in fraudem vero, qui salvis verbis 
 legis sententiam ejus circumvenit." "Fraus 
 enim legi fit, ubi quod fieri noluit, fieri autem 
 non vetuit, id fit." Dig. i. 3, fr. 29, 30. 
 
 8 30 & 31 Vict. 1.. 131, s. 38. As to 
 the remedy of the person defrauded, see 
 Gover's Case, 1 Ch. D. 182. 
 
Fraudtdent Conveyance law dictionary. Free 377 
 
 § 17. The effect of fraud may be said in general to be to entitle the Effect of 
 injured person to avoid the transaction induced by the fraud {e.g., in the fraud - 
 case of a contract, to have it rescinded) or to recover damages for the 
 injury (see Deceit) ; it gives rise to a. defence to any action brought by the 
 fraudulent party to enforce the contract or other transaction, but it does 
 not make it void ab initio. 1 In some cases an act is both a fraud on A. 
 and also wrongful against B., as in the case of the wrongful use of trade, 
 marks and trade names (q. v.). 
 
 § 18. Certain frauds are also dealt with by the criminal law, and Criminal law. 
 constitute misdemeanors. Such are frauds committed by public officers 
 in discharge of their duties and affecting the public, 3 frauds committed by 
 trustees, directors and other officers. 3 
 
 Etymology.] — Latin, fraus, apparently derived, •with/rustra and frustum (a morsel), 
 from a root signifying to break. 1 
 
 FRAUDULENT CONVEYANCE.— § 1. By stat. 13 Eliz. c. 5, Statute of 
 conveyances of landed estates or of goods, made for the purpose of Ellza " eth - 
 delaying, hindering or defrauding creditors, are void as against them 
 unless made ,for valuable consideration and bona fide to a person not 
 having notice of the fraud. 5 (See Voluntary.) 
 
 § 2. By the Bankruptcy Act, 1869, a fraudulent conveyance, gift, Bankruptcy 
 delivery or transfer by a debtor of his property or any part thereof, is an ■ A - Ct - ■ 
 act of bankruptcy 6 {q. v.) : by " fraudulent " is meant that the conveyance 
 is one which tends to defeat or delay the creditors. 7 (See Act of Bank- 
 ruptcy, § 3 ; Fraudulent Preference.) 
 
 FRAUDULENT PREFERENCE.— § 1. The doctrine of fraudulent 
 preference has for its object to prevent a debtor on the eve of bankruptcy 
 from making a voluntary distribution of his property amongst his creditors, 
 so as to defeat the distribution which is contemplated by the bankrupt 
 laws. 9 Accordingly, every conveyance of property or charge thereon 
 made, every payment made, every obligation incurred and every judicial 
 proceeding taken or suffered by an insolvent person in favour of any 
 creditor with a view ef giving that creditor a preference over the others, 
 will, if the insolvent becomes bankrupt within three months after the 
 conveyance, payment, &c. be deemed fraudulent and void as against the 
 trustee in bankruptcy. 9 § 2. The doctrine of fraudulent preference also 
 applies to insolvent companies. 10 
 
 FREE. See Chapel, § 3 ; Fishery, § 8 ; Service ; Socage; Warren. 
 As to free miners, see Gale. 
 
 1 See Chitty, 628 ; Oakes v. Turquand, c. 96, s. 80 et seq. 
 L. R., 2 H. L. 325 ; Broom's Comm. C. i Corssen, i. 150. 
 
 L. 335 et seq.; Urquhart v. Macpherson, 6 Williams' R. P. 76; Watson's Comp. 
 
 3 App. Ca. 831. As to actions to set aside Eq. 270; Twyne's Case, 3 Co. 80; Smith's 
 
 judgments, &c, obtained by fraud, see L. C. i., 1 ; Robson's Bankr. 113. 
 
 Flower v. Lloyd, 6 Ch. D. 297; 10 Ch. Div. ° Sect. 6, § 2. 
 
 327; Daniell's Ch. Pr. 1428; In re Pinto 7 See Robson's Bankr. 116. 
 
 Silver Mining Co., 8 Ch. 273. " Robson's Bankr. 125. 
 
 2 Steph. Crim. Dig. 73. " 9 Bankr. Act, 1869, s. 92. 
 
 3 Ibid. 260 etseq.; stat. 24 & 25 Vict. I0 Companies Act, 1862, s. 164. 
 
378 
 
 Free Entry 
 
 LAW DICTIONARY. 
 
 Freehold 
 
 Man's free- 
 bench. 
 
 FREE ENTRY, EGRESS AND REGRESS is an expression 
 used to denpte that a person has the right to go on land again and again 
 as often as may be reasonably necessary. Thus in the case of a tenant 
 entitled to emblements (q. v.) after the expiration of his tenancy, the law 
 " giveth him a speedy.remedy to enter into the land, and to take and carry 
 [the crop] away, and compelleth not him to take it at one time, or to 
 carry it before it be ready to be carried ; and therefore the law giveth all 
 that is convenient, viz., free entry, egresse and regresse as much as is 
 necessary." l 
 
 FREEBENCH is an estate which by the custom of most manors the 
 widow of a copyholder has in the land of which her husband was tenant. 
 The nature and duration of. the estate, and the quantity of the lands to 
 which it extends, vary according to the particular custom, but in many 
 points freebench closely resembles dower (q. v.). Although the Dower 
 Act does not apply to copyholds, the widow's right to freebench is in most 
 manors subject to any alienations of the land made by the husband 
 whether inter vivos or by will ; it is, however, paramount to his debts. 3 
 
 § z. In some places the widower of a female copyholder has by custom 
 an estate in his wife's lands analogous to an estate by the curtesy in 
 freeholds, and called his " man's freebench " or customary curtesy. 3 (See 
 Curtesy.) 
 
 The right to freebench is enforced by an action similar to an action of 
 dower. 1 (See Dower, § 5.) 
 
 FREE FOLD is said to be the same as foldage or faldage 5 (q. v.), but 
 it would seem to denote the right of the tenant to have his sheep folded 
 by the lord, rather than the right of the lord to have the tenant's sheep 
 on his land. 
 
 Freehold in 
 quality. 
 
 Freehold de- 
 scendible. 
 
 FREEHOLD is applied to interests in land in two senses, either to 
 denote the quality of an estate, or to denote the tenure by which the land 
 is held. 
 
 I. § 2. With reference to the quality of an estate, " every one which 
 hath an estate in any lands or tenements for term of his owne life or 
 another man's life, is called tenant of freehold, and none other of a lesser 
 estate \e. g., a tenant for years] can have a freehold ; but they of a greater 
 estate have a freehold ; for he in fee simple hath a freehold, and tenant 
 in taile hath a freehold, &c." 6 Hence estates of freehold are opposed 
 to estates for years and other chattel interests. 7 (See Estate, §§ 4, 5 ; 
 Interest.) § 3. In the old writers " freehold" is used generally to denote 
 an estate for life as opposed to a reversion. 8 An estate of freehold 
 descendible is an estate given to A. and his heirs or the heirs of his body 
 during the life of B. 9 (See Quasi- Tail ; Occupant!) 
 
 1 Co. Litt. 56 a. For other instances, 
 see Litt. \ 69. 
 8 Williams' R. P. 386. 
 
 3 Elton, Copyh. 146. 
 
 4 C. L. P. Act, i860, s. 26. 
 3 Elton on Commons, 45. 
 
 6 .Litt. § 57. 
 ' Co. Litt. 43 b. 
 8 Litt. § 302. 
 
 " Bl. Comm. ii. 259 ; Steph. Comm. i. 
 450- 
 
Freehold Land Societies law dictionary. Freight 379 
 
 II, § 4. With reference to its tenure, land is said to be freehold when Freehold 
 it is held by socage tenure (or by knight's service or other military tenure m tenure - 
 when those tenures existed), as opposed to land held by villenage or 
 customary tenures, such as copyhold land. 1 (See Service; Tenure!) 
 Where two persons enter into a contract for the purchase and sale of 
 land, whether in fee simple or otherwise, they are presumed to intend 
 freehold land unless the nature of its tenure appears, and therefore if it 
 turns out to be copyhold the purchaser cannot be compelled to carry out 
 the contract, unless the tenure is in reality equivalent to freehold. 3 
 
 See Seisin ; Customary Freehold. 
 
 Etymology.] — § 5. "Freehold" originally meant an estate held by a freeman, as 
 opposed to "villeinage" 3 (q. v.). It seems to have been originally used in much the 
 same sense as seisin (q. v.), that is, the feudal possession of land. Thus in the old books Freehold in 
 a distinction is drawn between freehold in deed and freehold in law. Where a man dies * aw - 
 seised of land so that it descends to his son, then until the son enters on the land he 
 has only a freehold in law, which, however, is sufficient to entitle his wife to dower if he 
 dies before entry. 4 
 
 FREEHOLD LAND SOCIETIES. See Building Societies, § 6. 
 
 FREIGHT. — § 1. Strictly speaking, freight is the reward payable to 
 a carrier by sea for the safe carriage and delivery of goods. 5 Hence in 
 ordinary cases it does not become payable unless the voyage is completed 
 and the goods carried to their destination; 6 but in some cases, where a Freight pro 
 part only of the voyage has been performed, freight is recoverable for rata - 
 that portion pro rata [parte or portioned itineris peracti (proportionally to the 
 portion of the voyage performed) : thus if the consignee voluntarily 
 accepts the goods at a point short of their destination in such a way as to 
 raise a fair inference that the further carriage is intentionally dispensed 
 with, a new contract will be implied to pay freight for that portion of the 
 voyage which has actually been performed. 7 
 
 § 2. When freight is prepaid, its nature differs considerably from that Prepaid 
 of ordinary freight, for it then ceases to be dependent on the safe fr eifhti°n 
 delivery of the goods, 8 and therefore if the goods are lost the shipowner advance, 
 is not liable to refund the prepaid freight. 9 
 
 § 3. In ordinary cases, the shipowner has a right of action against the 
 consignor, or sometimes also against the consignee, for the recovery of 
 the freight, and also has a lien on the goods for the amount, unless he 
 has entered into a contract inconsistent with or expressly waiving his right 
 of lien. 
 
 § 4. Dead freight is money payable by a person who has chartered a Dead freight. 
 
 1 Co. Liitt. 43 b. 8 Maude & Pollock, 269. "It is in 
 
 ''■ Dart, V. & P. 115, 138, 1073. effect money to be paid for taking the 
 
 " Bracton, 224 a ; Britton, 83 b. goods on board and undertaking to carry, 
 
 4 Litt. §§ 681, 448; Co. Litt. 31 a, where not carrying them." Per Blackburn, J., 
 it is called seisin in law. vM supra, p. 220. 
 
 5 Maude & Pollock, Merch. Shipp. 268. 9 See the cases cited in Allisonv. Bristol, 
 -Per Blackburn, J., in Allison v. Bristol, &c. Co., 1 App. C. 209. See further as 
 
 (s'c. Co., 1 App. C. at p. 228. to the nature of freight, Keith v. Burrows, 
 
 6 Maude & Pollock, 269. 2 C. P. D. 163 ; 2 App. Ca. 636. 
 1 Ibid. 272. 
 
38o 
 
 Fresh Suit 
 
 LAW DICTIONARY. 
 
 Friendly Societies 
 
 ship and only partly loaded her, in respect of the loss of freight caused to 
 the shipowner by the deficiency of cargo. 1 
 
 See Affreightment ; Bill of Lading ; Charterparty; Lien. 
 
 Etymology.]— Dutch, vragt or vracht ; Old German, frehti, earning, reward. 3 
 
 FRESH SUIT. — § i. If a person is robbed of goods, and makes 
 fresh suit, that is, immediately follows and apprehends the thief, he shall 
 have his goods again, notwithstanding the thief may have thrown them 
 away, so that if it were not for the fresh suit they would become waifs 3 (q. v.) . 
 
 § z. In the law of distress, if the landlord comes to distrain and sees 
 the tenant's cattle on the land, and the tenant to prevent the distress 
 drives the cattle off the land, then if the lord makes fresh suit he may 
 distrain the cattle, although they are not on the land which the tenant 
 holds of him. 4 
 
 Limit of 
 amount. 
 
 Deposit 
 societies. 
 
 Dividing 
 societies. 
 
 FRIENDLY SOCIETIES are societies established to provide, by the 
 voluntary subscriptions of their members, for the relief or maintenance of 
 the members and their families during sickness or old age, or for the relief 
 or maintenance of the widows and orphan children of deceased members, 
 or similar objects. 5 Such societies have no legal status unless they are 
 registered in pursuance of one of the Friendly Societies Acts. 6 (See Regis- 
 trar.) Every registered society has one or more trustees in whom its pro- 
 perty is vested,' and who in ordinary cases take and defend legal proceedings 
 on its behalf. 8 It must be regulated by rules defining its objects, the mode 
 of holding meetings, the rates of the subscriptions and of the allowances 
 during sickness and on death, the investments in which the funds are to 
 be placed, &c. &c. 9 
 
 § 2. Friendly societies are intended for the encouragement of the frugal 
 and industrious poor, and the legislature has therefore limited the amount 
 to which any person can become entitled by being a member of one or 
 more societies, to 200/. by way of gross sum, and 50/. a year by way of 
 annuity. 10 
 
 § 3. Friendly societies are of numerous varieties, 11 but the only two re- 
 quiring mention are deposit societies and dividing societies. A deposit 
 society combines the functions of a savings bank with those of a friendly 
 society, in a manner too complicated to be here described. 13 A dividing 
 society is one which periodically divides its funds among its members, the 
 simplest plan being for the members to subscribe a fixed sum weekly or 
 monthly, receiving in return certain benefits in case of sickness or death 
 during the current year, at the end of which period the surplus funds are 
 divided among the members. 13 
 
 1 McLean v. Fleming, L. R., 2 Sc. & D. 
 128. 
 
 2 Schmitthenner, D. Wortb. ; Diez. 
 Etym. "Wortb. 
 
 3 Steph. Comm. ii. 547. 
 
 4 Co. Litt. 161 a. 
 
 5 Friendly Soc. Act. 1875, s. 8 ; F. S. 
 Amendment Act, 1876. 
 
 6 For a history of the legislation on the 
 subject see Appendix 1 to the Fourth 
 
 Report of the Friendly Soc. Comm. 
 
 7 Act of 1875, ss. 14, 16. 
 
 8 Sect. 21. 
 
 9 Sect. 13 ; Davis on F. S. 26, and the 
 form of rules, 247. 
 
 10 Davis, 118 ; F. S. Act, 1875, s. 27. 
 
 11 See Fourth Report of the Commis- 
 sioners on F. S. xxiv. 
 
 12 Ibid, lxxxiii. ; Davis, 53. 
 
 13 Davis, 55 ; Fourth Report, lxxii. 
 
Frontage law DICTIONARY. Fund 381 
 
 § 4. A society with branches is one in which the members are divided Societies with 
 into branches or groups, each having a separate fund administered by itself, branches. 
 although they are all under the control of a central body. 1 
 
 See Benevolent Societies; Cattle Insurance Societies; Working Men's Clubs; 
 Building Societies ; Industrial and Provident Societies; Nomination; Dissolu- 
 tion. 
 
 FRONTAGE— FRONTAGER.— A frontager is a person owning 
 or occupying land which abuts on a highway, river, seashore, or the like. 
 The term is generally used with reference to the liability of frontagers on 
 streets to contribute towards the expense of paving, draining, or other 
 works on the highway carried out by a local authority, in proportion to 
 the frontage of their respective tenements. 3 It is also used with reference 
 to rights of access (q. v.). 
 
 FUNCTUS OFFICIO, "having discharged his duty," is an expres- 
 sion applied to an agent or donee of an authority who has performed the 
 act authorized, so that the authority is exhausted and at an end. 3 
 
 FUND. — § 1. In its widest sense, a fund is a sum of money available 
 for the payment or discharge of liabilities. Thus, the assets of a testator 
 form a fund for the payment of his debts. (See Blended Fund.) So the 
 borough fund of a corporation is primarily liable for defraying the ex- 
 penses of the borough. (See Borough, § 4.) 
 
 As to the Chancery funds, see Account, §15. 
 
 § 2. In its narrower and more usual sense, " fund " signifies capital, as 
 opposed to interest or income ; as where we speak of a company funding 
 the arrears of interest due on its debentures, or the like, meaning that 
 the interest is capitalized and made to bear interest in its turn, until it is 
 repaid. 
 
 § 3. The national debt of Great Britain is in part funded, and in part Funded and 
 unfunded, the former being that which is secured to the creditor or holder ™^J nded 
 upon the public funds, the latter that which is not so provided for. 4 The 
 unfunded debt is comparatively but of small amount, and is generally 
 secured by exchequer bills and bonds (q. v.). The funded debt consists 
 of annuities, as they are called, granted to those who originally advanced 
 the money, being the right to receive an annual sum equal to interest at 
 a certain rate on the principal advanced. The principal itself is not re- 
 payable, except at the option of the government. These annuities are 
 
 1 F. S. Act, 1875, s. 4. These are l This is the explanation given in 
 sometimes called affiliated societies (Fourth Stephen's Commentaries (ii. 574) and may 
 Report of Comm. xxv.) be correct as applied to the English 
 
 2 Public Health Act, 1875, s. 150. national debt. The term "fund," however, 
 There is no liability at common law bind- is frequently used to signify the conversion 
 ing a frontager on the sea to maintain a of a temporary or floating debt into one 
 sea-wall on his land ; Hudson v. Tabor, which is either perpetual or comparatively 
 I Q. B. D. 225. permanent. The change, therefore, of 
 
 3 Chitty on Contracts, 192 ; Bedwellv. exchequer bills into government annuities 
 Wood, 2 Q. B. D. 626. would be the change of an unfunded into a 
 
 funded debt. 
 
practice. 
 
 Further Consideration LAW dictionary. Gale 
 
 charged on the consolidated fund (q. v.), and are themselves popularly 
 called the public funds. They are a species of personal property, passing 
 by transfer inter vivos, or on the death of the holder to his personal repre- 
 sentatives. 1 
 
 FURTHER CONSIDERATION.— § i. Where, on motion for judg- 
 ment made in an action, the Court has not before it the materials for finally 
 determining all the questions in dispute and disposing of the action, it 
 may reserve the further consideration of the action, and give directions for 
 obtaining the necessary materials in the meantime. 2 
 
 Chancery g 2 Thus, in an action for the administration of an estate in the Chan- 
 
 cery Division, the judgment commonly directs a number of inquiries and 
 accounts to be made and taken in chambers 3 (see Account, § 6; Inquiry); 
 and when this has been done the action is heard on further consideration, 
 and the rights of the parties are ascertained. If all the questions arising 
 in the action cannot then be disposed of, the further consideration may be 
 
 In chambers, again reserved, and so on. Sometimes the further consideration is taken 
 in chambers, in order to save expense. 4 
 
 Queen's B. D. § 3. In the practice of the Queen's Bench Division, the term " further 
 
 piactice. consideration" is commonly applied to those cases where the judge before 
 
 whom an action is tried (with a jury) thinks that the questions of law in- 
 volved are sufficiently doubtful to require more discussion than can be 
 conveniently held at the trial, and accordingly reserves the case for further 
 consideration, when the questions of law are argued and judgment 
 given. 6 
 
 GALE. — § 1. Under stat. 1 & 2 Vict. c. 43, passed to regulate the 
 peculiar laws and customs of the coal, iron and other mines belonging to 
 the crown in the Forest of Dean and Hundred of St. Briavel's in Glouces- 
 tershire, the "free miners" of the district have the exclusive right of 
 having gales or grants made to them, and of selling, devising or disposing 
 of them to any persons whomsoever. All male persons born and abiding 
 within the Hundred of St. Briavel's, of the age of twenty-one, who have 
 worked a year and a day in a coal or iron mine within the hundred, are 
 free miners. Quarrymen coming under a similar description, are deemed 
 free miners for the purpose of obtaining gales of stone quarries. A person 
 holding a gale is called a galee. 
 
 § 2. A gale is the right to open and work a mine within the Hundred 
 of St. Briavel's, or a stone quarry within the open lands of the Forest of 
 
 1 See the National Debt Act, 1870. * Hid. 1234 ; Gilbert v. Smith, 2 Ch. 
 
 2 Rules of Court, xl. 10 ; compare D. 686. 
 
 xxxiii. 6 See Irvine v. Watson, 5 Q. B. D. 102; 
 
 3 Daniell's Ch. Pr. 1228 et seq. Rules of Court, xxxvi. 22. 
 
Gale LAW dictionary. Game 383 
 
 Dean. The right is a licence or interest in the nature of real estate, 
 conditional on the due payment of rent and observance of the obligations 
 imposed on the galee. It follows the ordinary rules as to the devolution 
 and conveyance of real estate. The galee pays the crown a rent known 
 as a galeage rent, royalty or some similar name, proportionate to the 
 quantity of minerals got from the mine or quarry. Provision is made for 
 fixing the extent of the mine, pit or quarry comprised in each gale. 
 
 § 3. The gaveller (or deputy gaveller) is bound to grant gales to free 
 miners in the order of their applications, which must be made in writing. 
 Until the grant is actually made, the applicant has no interest or title. 
 No free miner is entitled to more than three gales at a time. 1 
 
 Etymology.]— Obviously from gavel, a rent. 2 
 
 GAME consists of certain wild animals, the hunting or taking of 
 which is a recognized sport or pastime. The old writers divide wild 
 animals into beasts of the forest and chase (deer, hares, boars, foxes and 
 wolves), and beasts and fowls of warren (hares, rabbits, pheasants and 
 partridges), 3 but under the statutes regulating the taking of game (com- 
 monly called the Game Laws), " game " consists of hares, pheasants, par- 
 tridges, grouse, heath or moor game, black-game and bustards. 4 Under 
 these acts the right to kill game upon any land is vested in the occupier 
 thereof, unless he holds it under a lease or agreement by which the right is 
 reserved to the landlord. But every person killing, taking or pursuing 
 game (with certain exceptions, including persons entitled to kill game 
 under the Ground Game Act, 1880, infra, § 3), is required to take out a 
 yearly excise licence, and persons who (having no such licence) deal in 
 game, must take out two annual licences for the latter purpose, one a 
 licence by justices of the peace, the other an excise licence. 5 § 2. The 
 Game Laws also contain provisions for the preservation of game and for 
 the prevention of poaching, the contravention of which is punishable 
 with fine or imprisonment {infra, § 4) : in the case of poachers armed 
 with guns, the punishment is penal servitude. 6 
 
 § 3. The Ground Game Act, 1880, provides that every occupier of Ground Game 
 land under a contract of tenancy created since the 7th September, 1880, Act ' l88 ° - 
 shall have the right to kill and take ground game thereon, concurrently 
 with any other person who may be entitled to do so, and that he shall 
 not be able to divest himself of the right. He may also authorize certain 
 persons to kill and take ground game on the land. " Ground game " 
 means hares and rabbits. 
 
 § 4. As regards the property or ownership in game, the common law 
 rules on this subject are founded on the principle of occupancy (q. v.), 
 so that if A. starts game on B.'s land, and kills it on C.'s land, the pro- 
 
 1 Stat. I & 2 Vict. c. 43 ; 24 & 25 Vict. 4 Stat. 1 & 2 Will. 4, c. 32, s. 2; Pater- 
 c. 40 ; 34 & 35 Vict. c. 85 ; James v. The son's Game Laws. 
 
 Queen, 5 Ch. D. 153; Bainbridge on Mines, 5 Stat. 1 & 2 Will. 4, c. 32, s. 18 ; 23 & 
 
 160. 24 Vict. c. 90 ; 24 & 25 Vict. c. 91, s. 17. 
 
 2 See Co. Litt. 142 a. 6 See especially stat. 9 Geo. 4, c. 69 ; 24 
 
 3 Manwood, Forest, 2 b ; Co. Litt. 233 a. & 25 Vict. c. 96 ; 25 & 26 Vict. c. 114; 
 See Forest ; Chase ; Park ; Warren. Russell on Crimes, i. 621; Steph. Crim. 
 
 Dig. 3I3- 
 
384 Gaining LAW dictionary. Garnishee 
 
 perty in it vests in A. : this rule, however, has been so far modified by 
 stat. 1 & 2 Will. 4, c. 32, s. 36, that if the trespasser is found on the 
 land with the game in his possession, and in search or pursuit of other 
 game, C. may take the game from him. A trespasser is of course always 
 liable to an action at law, and by s. 3 1 et seq. of the same statute, trespass- 
 ing in search of game is made an offence punishable by fine on summary 
 conviction. If A. starts game on his own land and kills it on B.'s land, 
 the property remains in A. ; but if, being a trespasser, he starts it on B.'s 
 land and kills it there, the property vests in B. 1 
 
 There are special rules as to game confined in parks, chases, forests and 
 warrens. (See those titles, and Animals Fern Natures.) 
 
 GAMING. See Wagering. 
 
 The principal acts for the punishment of those who keep or frequent 
 common (i.e., public) gaming houses are 8 & 9 Vict. c. 109, 16 & 17 
 Vict. c. 1 19, and 17 & 18 Vict. c. 38 ; gaming in public places is punish- 
 able under stat. 5 Geo. 4, c. 83. 2 (See Disorderly House.) 
 
 GAOL DELIVERY.— The commission of general gaol delivery is 
 one of the commissions given to the judges or commissioners of assize. 
 (See Assize, § 3.) It authorizes them to try, and (if acquitted) to deliver, 
 i.e., discharge from custody, every prisoner who shall be in gaol for some 
 alleged crime when they arrive at the circuit town. Formerly a special 
 writ of gaol delivery was issued for each particular prisoner, but this has 
 long been obsolete. The commission of general gaol delivery is supple- 
 mental to the commission of Oyer and Terminer (q. v.), which only em- 
 powers the judges to try persons indicted before them at the same assizes, 
 while the commission of general gaol delivery authorizes the trial of every 
 prisoner, whensoever and before whomsoever indicted. 3 Persons are 
 considered to be in gaol for this purpose although they may have been 
 liberated on bail. (See Central Criminal Court.) 
 
 GAOLS. See Prison. 
 
 GARNISHEE is a person in whose hands a debt has been attached. 
 (See Attachment, §§ 5, 6; Examination, § 4; Foreign Attachment.) 
 § 2. In the High Court an order for the attachment of debts is called a 
 garnishee order. If the garnishee does not dispute his indebtedness to 
 the judgment debtor, he must pay the money into Court ; if he fails to do 
 so, the Court may direct execution to be issued to levy the amount of the 
 debt. If he disputes his liability, the Court may direct an issue to decide 
 the question. 4 
 
 As to the practice in the Mayor's Court, see Foreign Attachment. 
 
 Etymology.] — Norman French, garnir, to warn, 6 from Teutonic wam&n.* Garnish- 
 ment seems to have originally meant any kind of notice to the opposite party in a 
 proceeding. 7 
 
 1 Steph. Comm. ii. 21. * Rules of Court, xlv. 4, 5. 
 
 8 Ibid. iv. 272. 5 Britton, 50 a. 
 
 3 Ibid. iv. 315 ; Reeves' Hist. i. 157; 6 Littre, Diet. s. v. 
 
 Judicature Act, 1873, ss. 16,37. "Prisoner" ' Marshe's Case, 1 Leon. 325. 
 includes persons liberated on bail. 
 
Gavelet law dictionary. General Meeting 385 
 
 GAVELET is "a remedy or process, peculiar in denomination to Kent and London, 
 by which the lord of the fee, when his tenant is in arrear for rent or service, may force 
 him to pay the arrears and damages by seizing the land and holding it till payment." ' 
 The word seems to have originally meant rent? (See Cessavit.) 
 
 GAVELKIND is the tenure by which all land in the county of Kent 
 is presumed to be held until the contrary is proved. The. tenure also 
 occurs in other parts of England. No land is now gavelkind which can 
 be shown to have originally been held by a tenure higher than socage, 
 such as frankalmoign or a military tenure. 3 
 
 § 2. Its principal incidents are (a) the partibility of the inheritance, 
 that is, the land descends, on the death of the tenant, to all the sons of 
 the tenant equally : in some cases the custom extends to collaterals, e.g., 
 brothers (see Coparcener) ; (b) the right of the widow or widower of a 
 deceased tenant to have half the land for dower or curtesy until a second 
 marriage, the widower taking by the curtesy whether issue has been born 
 of the marriage or not (see Dower; Curtesy) ; (c) the right of an infant 
 tenant to aliene his land by feoffment at the age of fifteen years. (See 
 Feoffment.) Formerly, also, gavelkind lands were peculiar in being 
 exempt from the liability to forfeiture on conviction for murder, but in 
 this respect other lands now stand on the same footing. 4 In many places 
 in Kent the freeholders are subject to customary heriots, fines and other 
 ancient dues, and are compellable under penalty of distress to come for 
 admittance into their tenancies. 
 
 § 3. The most remarkable incident of this tenure being the partibility 
 of the land upon descent, the word gavelkind has come to be applied to 
 many copyholds which only resemble the freehold tenure in this particular; 
 but this use of the word is improper, and apt to lead to mistakes. 5 
 
 See Coparcener; Disgavel; Socage; Tenure. 
 
 Etymology.] — Apparently from gavel, a rent. 6 Compare Gale; Gaveller ; Gavelet. 
 
 GAVELLER is an officer of the crown having the general manage- 
 ment of the mines, pits, and quarries in the Forest of Dean and Hundred 
 of St. Briavel's, subject, in some respects, to the control of the Commis- 
 sioners of Woods and Forests. He grants gales to free miners in their 
 proper order, accepts surrenders of gales, and keeps the registers required 
 by the acts. There is a deputy gaveller, who appears to exercise most of 
 the gaveller's functions. (See Gale!) 
 
 GENERAL AVERAGE. See Average, § 3. 
 
 GENERAL LEGACY. See Legacy. 
 
 GENERAL MEETING. See Meeting. 
 
 1 Hargrave's note to Co. Litt. 142a; II ; Litt. \\ 210, 265; Co. Litt. 140a, 
 Termes de la Ley, s. v. i Williams' R. P. 130. 
 
 2 Co. Litt. 142 a. 6 Elton, Copyh. 10. 
 
 3 Elton, Tenures of Kent ; Elton, Copyh, 6 Co. Litt. 142 a. 
 
 S. G C 
 
386 General Sessions LAW dictionary. Gestation 
 
 GENERAL SESSIONS is a Court of record held by two or more 
 justices of the peace for the execution of the authority given them by the 
 commission of the peace and certain statutes. General sessions held at 
 certain times in the four quarters of the year pursuant to stat. 2 Hen. V. 
 are properly called quarter sessions (q.v.), but intermediate general sessions 
 may also be held. 1 
 
 GENERAL SHIP. — Where the master and owners of a ship engage 
 with separate merchants to convey their goods to the place of her desti- 
 nation, the contract is said to be for conveyance in a general ship, as 
 opposed to a chartered ship, that is, a ship which is let to one or more 
 persons under one contract of affreightment, called a charter-party (q.v.). 
 In the case of a general ship, the contract with each freighter generally 
 takes the form of a. bill of lading (q.v.). 2 
 
 A shipowner who professes to carry the goods of all persons who apply 
 to him, so long as he has room in his ship, is a common carrier 3 (?.».). 
 
 GENERAL WORDS. — In conveyances, mortgages and many other 
 assurances of corporeal hereditaments, numerous words descriptive, not 
 only of every kind of easement, privilege or appurtenance, supposed to be 
 capable of belonging to the property assured, but also of portions of the 
 soil, fixtures and produce of the land (as timber) are added to the parcels 
 or description of the property, and are called the " general words." They 
 are useful when there are any easements or privileges reputed to belong 
 to the property, although not legally appurtenant to it, as they would not 
 pass with the property unless expressly mentioned. But with this excep- 
 tion the "general words" are as a rule unnecessary verbiage. 4 (See 
 All the Estate ; Operative Part; Parcels?) 
 
 GENTILL — Alberico Gentili (Albericus Gentilis) was born the 14th 
 January, 1552, 6 in Ancona, took the degree of doctor at Perugia in 1572, 
 became professor of law at Oxford in 1 587, anddied there in 161 1. He wrote 
 De juris interpretibus dialogi sex, Lond. 1582; De Legationibus, 1583; De 
 jure belli libn III., Lugd. Bat. 1589 ; Comment, secunda de jure belli, 1389; 
 Opera omnia, Neap. i77o. e Professor Holland has recently published a 
 new edition of the De jure belli libri tres (Clarendon Press, 1877). 
 
 GESTATION. — The period of gestation is that time which elapses 
 between the conception and birth of a child. It is usually about nine 
 months of thirty days each ; but may be shorter or longer. 7 The time is 
 added, where necessary, to the period allowed under the rule against 
 perpetuities : for example, if an estate is limited to A. for life, with remainder 
 to his eldest son on attaining twenty-one, and A. dies leaving his widow 
 pregnant with a son, but without any other issue, the remainder to the son 
 takes effect on his birth. 8 (See De Ventre inspiciendo.) 
 
 1 Pritchard, Q. S. 2. lished in the "Academy" for Sept. 8, 1877. 
 
 2 Smith's Merc. Law, ch. ili. sec. 2. 6 Holtz. Encycl. s. v. 
 
 3 Nugent y. Smith, I C. P. D. 19, 423. ' Co. Litt. 123 b and Hargrave's note. 
 
 4 See Davids. Conv. i. 91 et seq. Coke calls it legitimum tempus. 
 6 SeeafragmentfrornGentili'sMSS.pub- s Williams, R. P. 320. 
 
Gift LAW DICTIONARY. Goods 3 87 
 
 GIFT — GIVE — are words of wide signification, and import the 
 transferring of property from one to another, 1 especially when it is done 
 without recompense, as opposed to a sale or barter. A gift by will is 
 either a devise or a bequest (q. v.). Some writers speak of a gift in law, 
 or gift by act of law : thus, when a woman is married to a husband, this 
 operates as a gift in law of all her goods to him, 8 subject to the rules 
 introduced by the Married Women's Property Act (q. v.). 
 
 § 2. As an operative word in conveyancing, "give" is as wide as 
 "grant" (q.v.). 3 It was formerly the technical and proper word in a 
 feoffment (q. v.), and created an implied warranty of title, now abolished. 4 
 
 § 3. " Gift " in the old writers frequently means a conveyance of land Estate tail. 
 in tail. 6 (See De Bonis ; Donee ; Donor.) 
 
 § 4. "Gift" is also applied to benefices or livings. Thus, if an Living, 
 advowson belongs to A., the living is said to be in A.'s gift. 
 
 § 5. In popular language, a voluntary conveyance or assignment is Deed of gift, 
 called a deed of gift. 
 
 GLANYILLE. — The work called Tractatus deLegibus et Consueludini- 
 bus AnglicB is generally attributed to Ranulph de Glanville, who was sheriff, 
 justice itinerant, and afterwards chief justiciary under Henry II. He died 
 at Acre, on an expedition to the Holy Land in 1190. 6 
 
 GLEBE in ecclesiastical law is a portion of land attached to a bene- 
 fice as part of its endowment. 7 
 
 GOODS "includes all chattels, as well reall as personall." 8 In practice, 
 however, the term "goods" is confined to those chattels which are 
 capable of manual delivery, such as furniture and merchandise. Assign- 
 ments of goods, by way of sale or mortgage, are subject to various statu- 
 tory regulations, as to which see Bill of Sale; Statute of Frauds. The 
 two words " goods and chattels " are generally used together, to denote 
 personal property, especially in the old books, and in old forms which 
 have survived : thus, writs of execution against personal property refer to 
 it as the "goods and chattels" of the judgment debtor. In writs of fieri 
 facias, the term " goods and chattels" includes not only furniture, cattle, 
 merchandise, &c, but also money, bank notes, bills of exchange, bonds 
 and other securities for money, 9 and leaseholds or other chattel interests in 
 land: the wearing apparel, bedding and implements of trade of a judg- 
 ment debtor (not exceeding in value 5/.) cannot be seized. 10 (See 
 Chattels; Chose; Execution; Growing Crops ; Personal Property.) 
 
 1 Co. Litt. 3orb; Britton, 87 a. ' Co. Litt. 341a; Phill. Eccl. Law, 
 
 2 Shepp. Touch. 227; Co. Litt. 118b. I459; Steph. Comm. 11. 714. 
 = Co. Litt. 301 b. 8 Co. Litt. 1 18 b. 
 
 4 8 & 9 Vict. c. 106, 8. 3; Williams on 9 Stat. 1 & 2 Vict. c. no; Steph. 
 Seisin, 101. Comm. iii. 584. 
 
 5 Shepp. Touch. 228. 10 Stat. 8 & 9 Vict. c. 127, s. 8. 
 '■ Foss, Biog. Diet. 
 
 C C 2 
 
388 
 
 Goodwill 
 
 LAW DICTIONARY. 
 
 Grand Jury 
 
 GOODWILL.— I. § i. The goodwill of a business is the benefit 
 which arises from its having been carried on for some time in a particular 
 house, or by a particular person or firm, or from the use of a particular 
 trade mark or trade name (q. v.). Its value consists in the probability 
 that the old customers will continue to be customers notwithstanding 
 a change in the firm or place of business. It is personal property. 1 
 
 Personal. § 2. A goodwill is said to be personal when it depends on the personal 
 
 character, that is, the skill or reputation of the person who carries it on. 
 In the case of a public house, baker's shop or the like, the goodwill is 
 not personal, because it consists in the habit which the customers have of 
 resorting to the house. Therefore, if a baker or publican mortgages his 
 house of business without mentioning the goodwill, and the mortgagee 
 sells the house as agoing concern, thus obtaining the benefit of the good- 
 will, the mortgagor is not entitled to that part of the purchase-money 
 which represents the value of the goodwill. 2 
 
 § 3. Questions of goodwill chiefly arise between an assignor and an 
 assignee. An assignment of a goodwill implies a recommendation of the 
 assignee by the assignor to his customers, and an agreement by him to 
 abstain from all competition with the assignee. If A. carries on business 
 under a firm name which is wholly or partially artificial (such as "A. &Z." 
 or "A. & Co. "), and assigns the goodwill of his business to B., then B. 
 becomes entitled to the exclusive use of the firm name as against A., and 
 against all the world, so that A. can neither complain of B.'s use of the 
 name, nor use any name so resembling it, as to be calculated to represent 
 to the world that he (A.) is carrying on the business which he assigned 
 to B. 3 On the same principle A. is not allowed to solicit old customers 
 of the business to deal with him, although he may deal with them, if 
 they come to him without solicitation. 4 
 
 Copyholds. II. § 4. In the law of real property, where copyholds are granted for 
 
 the lives of several persons, the first-named life, or the first taker as he 
 is called (that is, the first-named cestui que vie), is generally, though not 
 invariably, the beneficial owner. By the special customs of a great 
 number of manors, the first taker has the right to surrender his estate, 
 and thereby to bar all the rest. And it is frequently part of the custom 
 that the life in possession, or the first of the lives in possession, shall 
 have a veto upon any fresh creation of tenancies in remainder, without 
 his assent or " goodwill," for the manifesting of which there is frequently 
 a customary ceremony, the object being to preserve to the beneficial 
 owner the power of surrendering to the lord' and taking a new estate for 
 his own benefit. 5 
 
 GRAND JURY. See Jury. 
 
 1 Cruttwett v. Lye, 17 Vesey, 335 ; 
 Churton v. Douglas, Johns. 1 74 ; Sebas- 
 tian on Trade Marks, 180 ; Robson's 
 Bankr. 512. 
 
 2 Ex parte Punnett, 16 Ch. D. 226, 
 following Chissum v. Dewes, 5 Russ. 29 ; 
 KingM. M. R. Co., 17W. R. 113. 
 
 3 Churton v. Douglas, ubi supra\ Levy 
 v. Walker, 10 Ch. D. 436. 
 
 4 Leggott v. Barrett, 15 Ch. D. 306, 
 overruling Ginesi v. Cooper & Co., 14 Ch. 
 D. 596. 
 
 6 Elton, Copyhold, 48. 
 
Grand Serjeanty law dictionary. Grant 389 
 
 GRAND SKRJEANTY. — § I. " Tenure by grand serjeanty is where a man holds 
 his lands or tenements of our sovereign lord the king by such services as he ought to do 
 in his proper person to the king, as to cany the banner of the lung, or Ms lance, or to 
 lead his army, or to be his marshall, or to carry his sword before him at his coronation, 
 or to be his server at his coronation, or his carver, or his butler, or to be one of his 
 chamberlaines at the receipt of his exchequer, or to do other like services, &c. And the 
 cause why this service is called grand serjeanty is for that it is a greater and more worthy 
 service than the service in the tenure of escuage." 1 
 
 v 2. The tenure by grand serjeanty still continues, though it is no longer a tenure by 
 knight's sendee, the stat. 12 Car. 2, c. 24, having converted it into free and common 
 socage, merely preserving the honorary services incident to it. 2 
 
 See Carnage; Knight's Set-vice ; Petty Serjeanty ; Serjeant; Tenure. 
 
 GRANT. — I. § 1. "This word is taken largely where anything is Inconvey- 
 granted or passed from one [the grantor] to another [the grantee]. And ancin S- 
 in this sense it doth comprehend feoffments, bargains and sales, gifts, 
 leases, charges, and the like ; for he that doth give or sell doth grant 
 
 also And so some grants are of the land or soil itself ; and 
 
 some are of some profit to be taken out of or from the soil, as rent, 
 common, &c. And some are of goods and chattels ; and some are of 
 other things, as authorities, elections, &c." 3 § 2. But though "grant" Special uses 
 was always an operative word of the most general effect and extent, 4 it is of the word- 
 especially used in the following cases : — 
 
 (1) It always was and is still the appropriate word for the conveyance, 
 inter vivos, of incorporeal hereditaments (such as commons, easements, 
 &c), remainders, reversions, and generally of freehold estates not lying 
 in livery, and consequently not the subject of livery of seisin and feoff- 
 ment. 5 (See Livery.*) 
 
 (2) By the Act 8 & 9 Vict. c. 106, s. 2, all corporeal hereditaments, as 
 regards the conveyance of the immediate freehold thereof, are deemed to 
 lie in grant as well as in livery, so that "grant" is now not only the suffi- 
 cient, but the proper technical word of conveyance of every freehold estate, 6 
 and a simple deed of grant has superseded the old-fashioned feoffments, 
 leases and releases, &c, which were formerly required to convey freehold 
 estates in possession. (See Conveyance; Feoffment; Lease and Release.') The 
 word " grant," although always used, is not absolutely necessary in a deed 
 of grant, for other words indicating an intention to grant will answer the 
 purpose. 7 
 
 § 3. " Grant" is applied to copyhold lands to signify that the lord ac- Of copyholds, 
 cepts a person as tenant of the land by copy of court roll. An ordinary 
 grant takes place where the lord admits a tenant in pursuance of a sur- 
 render by the preceding tenant, or on his death. A voluntary grant is Voluntary 
 where copyhold land is "in hand," i. e., is in the possession of the lord free S 1 ^ 1 '- 
 from the rights of any tenant, and the lord regrants the land to be held by 
 copy of court roll. 8 (See Demise; Extinguishment.) 
 
 1 Litt. § 153. 6 Ibid. 74, ii. 176. 
 
 2 Co. Litt. 108 a, n. (1). 7 Williams, "R. P. 203, where a form of 
 
 3 Shepp. Touch. 228 ; Perkins, \ 57. the modern deed of grant is given. 
 
 4 Davids. Conv. i. 73. 8 Elton, Copyh. 55 ; Co. Copyh. § 34. 
 
 5 Ibid. 72. 
 
39° 
 
 By the crown. 
 
 Probate and 
 administra- 
 tion. 
 
 General. 
 Limited. 
 
 De bonis non. 
 
 Grant 
 
 LAW DICTIONARY. 
 
 Grant 
 
 Durante 
 viduitate, 
 
 minoritate, 
 &c. 
 
 Cessate. 
 
 Ad litem. 
 
 Ad colli- 
 genda bona. 
 
 Caeterorum. 
 
 " Save and 
 except." 
 
 II. § 4. " Grant" is the term commonly applied to rights created or 
 transferred by the crown, e. g., grants of pensions, patents, charters, fran- 
 chises. 1 
 
 III. § 5. A grant of probate or letters of administration is made when 
 probate or administration is issued from the proper Court. A grant is 
 said to be general when it is unrestricted, and limited when it is confined 
 to a part of the deceased's property, or to a period of time, or to a parti- 
 cular object. 2 § 6. Where a married woman has made a will under a power, 
 or disposing of her separate estate, the Court will grant probate limited to 
 the particular property. 3 § 7. If an executor or administrator dies or be- 
 comes incapable to act before he has administered the estate, the Court 
 will appoint a new representative by granting probate or letters of admi- 
 nistration debonis non [administratis], "of the goods not administered," so 
 that the new representative may complete the administration. Probate de 
 bonis non is only granted where the deceased executor has specially ap- 
 pointed a person to be executor of the original testator's will, and not of 
 his own. 4 
 
 Grants limited in time : — § 8. The commonest instances are — grants of 
 probate limited to the life or widowhood of the executor or executrix; 5 
 grants of administration — (a) " till a will be found," where the will has 
 been lost since the death of the testator; (b) durante minoritate, absentia or 
 dementia, "during the minority," "absence" or "insanity" of the executor 
 or person entitled to a general grant of administration, hence sometimes 
 called "grants for the use and benefit jus habentium," that is, for the benefit 
 of persons "having a right" to a grant 6 (see Guardian, § 13); (c) pendente 
 lite, where a suit touching the validity of the will of the deceased is pend- 
 ing. 7 § 9. When the time of a limited grant has expired, the person 
 entitled may apply for a general and regular grant; this is called a supple- 
 mental or cessate grant. 8 
 
 Grants limited to a particular object : — § 10. The commonest instances 
 are— (a) grants of administration ad litem, limited to the purpose of com- 
 mencing, carrying on, or defending proceedings, involving a certain part 
 of the deceased's estate; (b) grants of administration ad colligenda bona 
 [defunctt], " to collect the goods [of the deceased]," where the estate is 
 of a perishable or precarious nature, and regular probate or administra- 
 tion cannot be granted at once; (c) grants cceterorum [bonorum], "of the 
 rest [of the goods]," where a grant limited to part of the estate, or to a 
 particular purpose, has already been granted : thus, where probate is granted 
 of the will of a married woman, disposing of her separate property {supra, 
 § 6), the husband is entitled to a grant caterorum., that is, to letters of ad- 
 ministration of all her goods, except what she had power to dispose of by 
 will. § 1 1 . A grant " save and except" is the reverse of a cceterorum grant. 
 
 1 Chitty, Prer. 384. 
 
 2 Browne's Probate Practice, 214 et seq. 
 
 3 Ibid. 216. 
 
 4 Ibid. 217. 
 
 6 Coote, 41 et seq. 
 
 6 Ibid. 107, 116. An administrator 
 
 durante minore mtate (and, semble, every 
 other administrator for «i limited period) 
 has all the powers of an ordinary adminis- 
 trator; In re Cope, 16 Ch. D. 49. 
 
 7 Browne, 224. 
 
 6 Ibid. 242. 
 
Great Seal LAW DICTIONARY. Growinq Crops 391 
 
 Thus, in the foregoing example, if the grant were made to the husband 
 first, it would be a grant of administration to all his wife's goods and 
 chattels, "save and except" such as she had power to dispose of, and had 
 disposed of. 1 
 
 GREAT SEAL.— § 1. By the Act of Union (5 Anne, c. 8, art. 24), it 
 is provided that there be one Great Seal for the United Kingdom, to be 
 used for sealing writs to elect and summon the parliament, and for sealing 
 all treaties with foreign states, and all public acts, instruments and orders 
 of state which concern the whole United Kingdom, and in all other matters 
 relating to England, as the Great Seal of England was then used. 
 
 § 2. The Great Seal is affixed to documents in pursuance of a warrant 
 
 is- v-v 
 
 § 3. The office of Lord Chancellor is created by delivery of the Great 
 Seal. (See Chancellor, § 2.) 
 
 § 4. The Great Seal Patent Office is the office in which charters, grants Patent office. 
 of office, pensions and annuities, licences of denization, licences for theatres 
 and certain other licences are prepared and issued. Letters patent for inven- 
 tions were also formerly issued from this office, but they are now issued by 
 the Commissioners of Patents. 3 
 
 See Crown Office in Chancery; Seal. 
 
 GRIEVOUS BODILY HARM, See Malicious Injuries to the 
 Person. 
 
 GROSS. See In Gross. 
 
 GROTIUS. — Hugo de Groot, commonly called Grotius, was born at 
 Delft on the 10th April, 1583, and died in Rostock the 28th August, 1645. 
 He wrote Mare Liberum and De Jure Belli et Pads, two important works 
 on international law ; and various smaller works. 4 
 
 GROUND - RENT. See Rent. 
 
 GROWING CROPS are part of the land, and therefore if A. conveys 
 or devises land to B. the crops pass with it and belong to B. If, how- 
 ever, the owner dies intestate, the crops go to his executors, and not to 
 his heir-at-law, because they are mainly the result of labour incurred at 
 the expense of his personal estate. 5 Tenants for limited terms are some- 
 times entitled to reap crops which have been sown by them, when their 
 estate has determined before the crop is ripe. (See Away-going Crop ; 
 Emblements^) Severed crops are personal estate, and, in the case of hay 
 or corn, may be distrained on for rent. 6 Growing crops are liable to be 
 
 1 Browne, 237 et seq. ; Coote, 135 et abolish the office of Clerk of the Patents. 
 
 seq. See also Great Seal Act, 1880, s. 5. 
 
 3 See Great Seal Acts, 1851 and 1880, 4 Holtz. Encycl. 
 
 and the Crown Office Act, 1877. * Williams' P. P. 19. 
 
 3 Rep. Comm. Fees, 8, 25. By stat. 6 Steph. Comm. iii. 250 ; stat. 2 Will. 
 
 37 & 38 Vict. t. 81, power is given to & Mary, c. 5. 
 
39 2 Growing Crops law dictionary. Guarantee 
 
 taken in execution under a fi. fa., subject to the landlord's right of dis- 
 tress. 1 (See Timber.) 
 Bills of sale. §■ 2. An assignment or charge of growing crops does not require regis- 
 tration under the Bills of Sale Act (a. v.), if by the same instrument any 
 freehold or leasehold interest in the land is conveyed or assigned to the 
 same person. 8 
 
 GUARANTEE - GUARANTIE - GUARANTOR- GUARANTY. 
 
 — § 1 . A guarantee, guarantie, or guaranty, is a collateral promise to answer 
 for the debt, default or miscarriage of another, as distinguished from an 
 original and direct contract for the promisor's own act. 3 It is, therefore 
 of the essence of a guarantee that there should be some one liable as 
 principal : consequently where one person agrees to become responsible 
 for another, but no valid claim ever arises against the latter, no contract 
 of guarantee exists. 4 
 
 § 2. The person who binds himself by the guarantee is called the 
 guarantor or the surety, the person to whom it is made the guarantee, 
 and the person for whom it is made is called the principal. Thus, if A. 
 agrees to supply goods to B. in consideration of C.'s promise to pay him 
 for them if B. fails to do so, this is a contract of guarantee by C, who is 
 the guarantor or surety, A. being the guarantee and B. the principal. 
 
 § 3. Under the Statute of Frauds, every guarantee must be in writing, 
 but the consideration need not be stated. 5 
 Continuing. § 4. A continuing guarantee is one which continues in force until 
 
 recalled by the guarantor, as opposed to a guarantee applying only to a 
 particular act, sum or transaction : thus, a guarantee " for any goods 
 which A. may supply B. with to the amount of 100/.," is a continuing 
 guarantee, and is, therefore, not discharged by one transaction, that is, 
 by a supply of goods to the amount stated and a payment for them. 6 
 § 5. It is sometimes a question whether a continuing guarantee can be 
 determined by the guarantor or not. In the instance above given (§ 4), 
 there seems no doubt that the guarantor could withdraw the guarantee at 
 any time by notifying A. that he would not be liable for any goods sup- 
 plied to B. after that date. Such a guarantee would also probably be 
 determined ipso facto by the guarantor's death. But if the arrangement 
 is of such a nature that the person to whom the guarantee is given can- 
 not put a stop to future transactions, then the guarantee is not determin- 
 able by the guarantor, or on his death. 11 
 
 § 6. A representation in the nature of a guarantie is where A. makes a 
 wilfully false representation to B. as to the credit or solvency of C, 
 whereby B. is induced to trust C. 8 It gives B. a right of action for 
 damages against A., if B. trusts C. and thereby loses money. 
 
 ) Steph. Coram, iii. 584 ; stat. 14 & 15 As to the important distinction between a 
 
 Vict. c. 25. guarantee for part of a debt and a guarantee 
 
 2 Bills of Sale Act, 1878, s. 7. for the whole of a debt with a limitation 
 
 3 Chitty on Contracts, 470. Cf. 29 Car. on the amount for which the surety is to 
 2, c. 3, s. 4 ; Smith's Merc. Law, 460. be liable, see Ellis v. Emmanuel, 1 Ex. D. 
 
 * Chitty, 470. 157. 
 
 - Stat. 19 & 20 Vict. c. 97. 1 Lloyds v. Harper, 16 Ch. D. 290. 
 
 6 Chitty, 490 ; Smith's Merc. Law, 470. s Smith's Merc. Law, 477. 
 
Guardian law dictionary. Guardian 393 
 
 GUARDIAN is a.person having the right and duty of protecting the 
 person, property, or rights of someone who is supposed to be incapable 
 of managing his own affairs, such as an infant or a lunatic. They are of 
 two kinds, guardians of the person or property, and guardians ad litem. 
 (See Guardians of the Poor.) 
 
 I. Guardians of the person or property of infants are of five kinds, Guardians of 
 namely, by the common law, by statute, by custom, guardians by nature P erson or 
 in the modern sense, and by judicial appointment. 
 
 § 2. Guardians by the common law were formerly of five kinds, viz., 
 guardian in chivalry, guardian by nature (in the technical sense), guardian 
 in socage, guardian by nurture, and guardian by election. The first two 
 are completely obsolete, the last three practically so. Guardians in 
 chivalry and in socage are sometimes called guardians by tenure. 
 
 § 3. Before tenure by knight's service was abolished, one of its incidents was guardian- Guardian in 
 ship or wardship in chivalry, " for when such tenant dyeth, and his heire male be within chivalry. 
 the age of 2 1 yeares, the lord shall have the land holden of him untill the age of the heire 
 
 of 21 yeares And also if such heire be not married at the time of the death of 
 
 his ancestor, then the lord shall have the wardship and marriage of him," 1 that is, the 
 wardship of the heir's person as well as of the land. § 4. While the lord had the ward- 
 ship he was said to be guardian in right ; if he assigned the wardship of the land or 
 person of the heir or both to another person, the grantee was called guardian in fact 
 or guardian in deed. 3 § 5. But if land held by knight's service descended to an eldest Guardian by 
 son under age during the lifetime of his father, ' ' in this case the lord shall have the ward- nature (I.) 
 ship of the land, but not of the bodie of the heire, because none shall be in ward of his 
 bodie to any lord, living [2. e., during the life of] his father." 3 This guardianship of the 
 father was called guardianship by nature in the proper sense of the phrase, and it applied 
 only to the custody of an heir apparent. 4 
 
 § 6. According to the old law, if land or any other tenement held in socage descended Guardian in 
 to an heir under the age of fourteen, the next of blood to whom the inheritance could not socage, 
 descend had the wardship of the land and of the heir until he attained fourteen (or, in 
 the case of gavelkind land, fifteen), when he could enter and oust the guardian and 
 occupy the land himself. 5 During the wardship the guardian could grant leases for a 
 term ceasing on the ward attaining fourteen. 6 This was called a guardianship in socage, 
 and, though in theory it may still exist, it is in practice obsolete. 7 Where a child has 
 a testamentary guardian (infra, § 9), the guardian in socage has no authority. 
 
 § 7. Guardianship by nurture only occurs where the infant is without Guardian by 
 any other guardian, and none can have it except the father or mother. nurture - 
 It extends no further than the custody and government of the infant's 
 person, and determines at fourteen in the case both of males and females. 8 
 
 § 8. Guardianship by election is where an infant himself chooses a Guardian by 
 guardian, which he can only do when he would otherwise be wholly electl0IX - 
 without one. This may happen either before fourteen, when the infant 
 has no guardian by tenure and the father is dead without having appointed 
 
 1 Litt. 4 103. became guardian of the new heir, apd was 
 
 2 Ibid. § 116. then called guardian per cause de gard; Guardian per 
 
 * Ibid. Si 14. Co. Litt. 88 b, n. (3). cause de gard. 
 
 * Co. Litt. 84 b, 88 b, and Hargrave's 6 Bl. Comm. 1. 461, n. (5). 
 
 note (12) ; 3 Co. 37 b. " See Bythewood's Conv. iv. 226. 
 
 5 Litt.'§ 123; Co. Litt. 87 b; Steph. 8 Hargrave's note (13) to Co. Litt. 88 b. 
 
 Comm. ii. 310. If the next of blood was See another sense of the term given in 
 
 himself an infant in wardship, his guardian Sheppard's Abr. v. Gard. 
 
394 
 
 Guardian 
 
 LAW DICTIONARY. 
 
 Guardian 
 
 Guardians by 
 statute or 
 testamentary 
 guardians. 
 
 Guardian by 
 custom. 
 
 Guardianship 
 by nature (II.) 
 
 Guardian by 
 judicial ap- 
 pointment. 
 
 a guardian, and there is no mother ; or after fourteen when the infant has 
 been in wardship by socage, which terminates on his attaining fourteen. 1 
 As to guardians by election in probate practice, see infra, § 13. 
 
 § 9. Guardians by statute. The stat. 12 Car. 2, c. 24, enacts that any 
 father may by deed or will from time to time dispose of the custody and 
 tuition of his children during their minority or any less time to any person 
 or persons other than popish recusants, and that such disposition shall be 
 good against all persons claiming the custody of any such child as 
 guardian in socage or otherwise, and that the guardian so appointed shall 
 take into his custody and management the property of the infant for his 
 benefit. 2 A guardian so appointed is called a guardian by statute or testa- 
 mentary guardian. 
 
 § 10. Guardianship by custom is said to occur in the city of London 
 and various other cities and boroughs, where the mayor and aldermen 
 have the guardianship of orphans ; 3 in the county of Kent, when a tenant 
 in gavelkind dies leaving his heir or heirs under fifteeen ; and in certain 
 manors, where the lord has the power of naming or is himself the 
 guardian of an infant copyholder. 4 But these kinds of guardianship are 
 rare. 
 
 §n. Guardianship by nature, in its modern sense, is a term of some- 
 what uncertain scope, but the meaning intended to be conveyed by it 
 seems to be that where a child has some property or rights in respect of 
 which it requires to be represented, then its father, if it has one, is its 
 guardian by nature, and if it has no father or other guardian, then its 
 mother is its guardian by nature. So a mother is called the natural 
 guardian of her illegitimate children, apparently because the full legal 
 relation of parent and child is not recognized in the case of illegitimate 
 children. 5 Some writers, however, use the term " guardianship by 
 nature '' to express the ordinary relation of parent and child, but this is 
 unnecessary and confusing. 
 
 § 12. Guardians of the person or property by judicial appointment. 
 
 1 Co. Litt. 87 b ; Hargrave's note (16) to 
 88 b; Bl. Comm. i. 862, n. (12), where it 
 is said that the office of a guardian by elec- 
 tion seems not to extend beyond giving the 
 consent to marriage required by the Mar- 
 riage Act. 
 
 2 See White & Tudor's L. C. ii. 613 ; 
 notes to Eyre v. Countess of Shaftsbury, 
 2 P. W. 103 ; Snell's Eq. 322 ; Watson's 
 Comp. Eq. 294. The stat. 4 & 5 Ph. & 
 M. c. 8, was passed to prevent the taking 
 away or marrying of any damsel under the 
 age of sixteen years from the custody of her 
 father or mother, or of any person to whom 
 the father by deed or will had assigned her 
 custody. From these provisions it was held 
 that the act had impliedly created a power 
 for the father to assign a guardian to his 
 daughters, and that during his life he, or 
 after his death and in the, absence of an 
 appointment by him, the mother, was their 
 guardian by nature. Ratdiff's Case, 3 Co. 
 37; Co. Litt. 88 b, and Hargrave's note 
 
 (14). The 4 & 5 Ph. & M. was repealed 
 by 9 Geo. 4, c. 31. 
 
 3 This seems to have originally been in 
 respect of burgage tenements held by the 
 orphans ; see Elton, Copyh. 158. 
 
 4 See Bl. Comm. i. 462 and notes ; Co. 
 Litt. 88 b, and Hargrave's note (16), and 
 the authorities cited in both works ; Elton, 
 Copyh. 157 ; Elton, Tenures of Kent, 79. 
 
 5 Bl. Comm. i. 461 and note ; Watson's 
 Comp. Eq. ; Co. Litt. 88 b, n. (12) ; Reg. 
 v. Howes, 30 L. J., M. C. 47, where it was 
 decided that the guardianship (for some 
 purposes) lasts until the age of 16 years; 
 MaUinson v. M., L. R., I P. & D. 221; 
 In re Marquis of Salisbury, 2 Ch. D. 29, 
 where it was held that the word " guardian" 
 in s. 1 of the act 36 & 37 Vict. c. 50, includes 
 guardian by nature in the sense of the 
 father, so as to enable him to bind his in- 
 fant son by joining in a conveyance on his 
 behalf. 
 
Guardian LAW DICTIONARY. Guardians of Poor 395 
 
 ■ The Chancery Division of the High Court, in the exercise of its general 
 jurisdiction over infants, will appoint a suitable guardian to an infant 
 ward of Court where there is no testamentary guardian or guardian in 
 socage, or where the father or guardian is unfit to have charge of the 
 child. Such a guardian can take no steps as to the person or property of 
 the infant without the direction of the Court. 1 
 
 § 13. In probate practice, where a person who would otherwise be Guardian of 
 entitled to a grant of probate or administration is under age and has no J" 111 ? 1 ■. 
 testamentary or judicial guardian, a curator or guardian is appointed for 
 the purpose of taking out letters of administration for his use and benefit 
 during his minority. If he is above the age of seven, but under twenty-one, 
 he is styled a minor, and has the privilege of electing anyone of his next 
 of kin to be his guardian, which he does by signing and filing an 
 instrument to that effect : if he is under seven, he is styled an infant, and 
 is considered incompetent to elect a guardian : one of his next of kin 
 is therefore appointed guardian for him by the Court. 2 (See Grant, § 8.) 
 
 II. Guardians ad litem. 
 
 § 14. A guardian ad litem is a person appointed by a Court to defend Guardian ad 
 an action or other proceeding on behalf of an infant, or a lunatic or idiot litem - 
 not so found, who is defendant or respondent to a proceeding in the 
 Court. 3 If no such guardian is appointed on the application of the infant 
 or lunatic, the plaintiff may apply for the appointment of a solicitor as 
 the guardian. 4 § 15. In divorce practice, an infant elects his guardian 
 ad litem, for the purpose of proceeding on his behalf as petitioner, 
 respondent or intervener. 5 (See Next Friend.) 
 
 GUARDIANS OF THE POOR.— § 1. By stat. 22 Geo. 3, c. 83, 
 explained by stat. 33 Geo. 3, c. 35, any parish is authorized, by the 
 vote of two-thirds in number and value of its owners or occupiers, to 
 nominate three persons, from whom two justices may appoint one (or in 
 some cases two) to act as guardian of the poor for the parish. Such 
 guardians practically act in lieu of overseers in all matters relative to the 
 relief and management of the poor, except the making and collection of 
 rates. (See Overseer.) 
 
 § 2. By stat. 4 & 5 Will. 4, c. 76, where any parishes are formed into 
 a union with the concurrence of the Poor Law Commissioners (now the 
 Local Government Board), its affairs are administered by a board of 
 
 1 Watson's Comp. 295 ; White & 3 Rules of Court, xvi. 8, xviii. ; Daniell, 
 Tudor's L. C. ii. 613; Snell's Eq. 322; Ch. Pr. 146, 158; Smith's Action, 371; 
 Hargrave's note (16) to Co. Litt. 88 b ; Bl. Settled Estates Act, Orders (1878), Orders 
 Comm. i. 463 and note ; Judicature Act, 5 et seq. ; Pope on Lunacy, 308 ; Co. Litt. 
 1873, s. 34. As to guardians appointed by 135 b. It is said that the crown may by 
 the old ecclesiastical Courts see Hargrave's letters patent appoint a guardian to prose- 
 note (16) to Co. Litt. 88 b. The High cute or defend for an infant in suits gene- 
 Court has no power to appoint a guardian rally ; Co. Litt. 88 b, n. (16). 
 of a lunatic ; see Beall v. Smith, L. R., 4 Daniell, 147, 160. 
 9 Ch. 85; In re Bligh, 12 Ch. D. 364, 5 Browne on Divorce, 23 ; Divorce Rules, 
 overruling Vane v. Vane, 2 Ch. D. 124; (1866), 105; see also the meaning given to 
 also In re Brandon's Trust, 13 Ch. D. 773, " guardian" in the Summary Jurisdiction 
 and see Lunacy. Act, 1879, =. 49. 
 
 - Coote's Prob. Pr. 130. 
 
396 Guardian of Spiritualities LAW dictionary. Habeas Corpus 
 
 guardians elected by the ratepayers and owners of property in the 
 respective parishes. All justices of the peace acting for the district are 
 ex officio guardians. And where the Local Government Board direct 
 that the poor law matters of any single parish shall be administered by a 
 board of guardians, they are elected and constituted in the same manner. 
 (See Poor!) 
 
 GUARDIAN OF THE SPIRITUALITIES of a diocese is the 
 person to whom presentations may be made, and by whom institutions, &c. 
 may be given during the absence of a bishop from England, or during 
 the vacancy of the see. Usually the archbishop is the guardian, 1 (See 
 Temporalities.) 
 
 GUILTY. See Plea. 
 
 H. 
 
 HABEAS CORPUS is a writ so called because it is directed to a 
 person who detains another in custody and commands him to produce 
 or "have the body" of that person before the Court for a specified 
 purpose. 
 Ad sub- § 2. The most important species of habeas corpus is that whiph is called 
 
 j urn. jjy wa y Q £ distinction the habeas corpus ad subjiciendum, from its commanding 
 the person to whom it is directed to produce the body of the person 
 detained, with the day and cause of his caption and detention, ad 
 faciendum, subjiciendum et recipiendum — "to do, submit to and receive" 
 whatsoever the Court shall direct. This writ was formerly much used 
 for testing the legality of imprisonment for political reasons, especially 
 during the reigns of the Stuarts ; and the evasions and abuses practised 
 by the judges (at the instance of the crown) to detain state prisoners in 
 prison, gave birth to the Habeas Corpus Act (31 Car. 2, c. 2). This 
 act in effect made the granting of a habeas corpus compulsory in the 
 case of a person imprisoned without a legal cause being assigned in the 
 warrant of committal, and provided for the speedy trial of persons 
 imprisoned for treason or felony. The stat. 56 Geo. 3, c. 100, passed 
 to render the writ more effectual in cases not within the statute of 
 Charles II., provided for the issue and return of a habeas corpus in 
 vacation as well as in term, and for examining into the truth of the 
 facts stated in any return to a habeas corpus. The statute 25 & 26 
 Vict. c. 20, enacts that no habeas corpus shall issue out of England 
 into any colony or foreign dominion of the crown where there is 
 a Court having authority to issue the writ ; subject to this limita- 
 tion the writ of habeas corpus runs into all parts of the dominions 
 of the crown. 2 At the present day the writ is only used to determine 
 
 ' Phill. Eccl. Law, 77. 2 Steph. Coram, iii. 642 ; Hallam's 
 
 Constit. Hist. iii. 12. 
 
Habendum law DICTIONARY. Hanaper 397 
 
 questions of law, e.g., as to the legality of an imprisonment (as where 
 a person is arrested under the Extradition Acts '), or as to the person 
 entitled to the custody of an infant, 2 or the like. The writ of habeas 
 corpus ad subj. is a prerogative writ. (See Writ.) 
 
 § 3. The following kinds of habeas corpus have become practically 
 obsolete since the abolition of arrest on mesne process and of imprison- 
 ment for debt — (1) Habeas corpus ad respondendum, to bring up a prisoner Ad respon- 
 confined by the process of an inferior Court, to charge him with a fresh dendum - 
 action in the Court above : (2) ad satisfaciendum, used with a similar Ad satisfaci- 
 object when judgment had been given in the inferior Court against the endum - 
 prisoner : (3) Habeas corpus cum causa (or ad faciendum et recipiendum), to Cum causa, 
 remove an action in which the defendant had been arrested from an 
 inferior Court to the Court above. 3 § 4. The writ of habeas corpus ad Ad pros. 
 prosequendum, testificandum, deliberandum, &c, was formerly used when 
 a prisoner had to be brought up to bear testimony in any Court, or to be 
 tried in the proper jurisdiction; the provisions of the acts 16 & 17 Vict, 
 c. 30, s. 9 ; 19 & 20 Vict. c. 108, s. 31, and 30 & 31 Vict. c. 35, s. 10, have 
 superseded this writ. 4 
 
 HABENDUM, in a deed of conveyance, is the clause indicating the 
 estate to be taken by the grantee. 5 (See To have and to hold; Deed.) 
 
 HABERE FACIAS POSSESSIONEM was the name for the writ 
 by which the claimant in an action of ejectment (if successful) obtained 
 possession of the land in question. 6 The name is still sometimes applied 
 to the analogous writ of possession now used, which is in the same terms. 1 
 (See Writ of Possession.) 
 
 HABITUAL CRIMINAL. See Police Supervision. 
 
 HABITUAL DRUNKARD. See Drunkenness, § 2. 
 
 HALE. — Sir Matthew Hale was born at Alderley in 1609, became 
 serjeant-at-law, a justice of the Common Pleas in 1654, Chief Baron of 
 the Exchequer in 1660, Lord Chief Justice in 1671, and died in 1676. 
 He wrote a History of the Common Law, an Analysis of the Law, a 
 Treatise on Pleas of the Crown, all of which are works of authority, and 
 some minor works. 8 
 
 HANAPER. — The Hanaper was formerly an office on the common law side of 
 the Court of Chancery, the clerks in which, in the days when every action was com- 
 menced by an original writ issuing from the Chancery, registered the fines that were paid 
 on every writ, and saw that the writs were sealed up in bags, in order to be opened after- 
 wards and issued : s "these writs and the returns to them were, according to the simplicity 
 
 1 Reg. v. Wilson, 3 Q. B. D. 42. 6 Davids. Conv. i. 99 ; Shepp. Touch. 
 
 3 In re Goldswdrthy, 2 Q. B. D. 75 ; 74* 
 Steph. Comm. ii. 313. 6 Chitty, Pr. 1043. 
 
 3 Steph. Comm. iii. (643), n.(c); Chitty's 7 Smith's Action, 175. 
 Pr. 1320 et seg. 8 Foss, Biog. Diet. 
 
 4 Hid. 8 Gilbert, Ch. 10. 
 
398 Handwriting law dictionary. Harriott 
 
 of ancient times, originally kept in a hamper, in hanaperio." 1 It was also the duty of 
 the Clerk of the Hanaper to take an account of all patents, commissions and grants that 
 passed the Great Seal. By the stat. 15 & 16 Vict. c. 87, the duties of the office were 
 transferred to the Clerk of the Crown. 3 (See Chancery ; Petty Bag Office.) 
 
 HANDWRITING. — In the law of evidence, where a document 
 requires attestation for its validity, it is necessary to call the attesting 
 witness or one of them (if more than one) to prove the signature, but in 
 the case of a document which, though not requiring attestation, has been 
 attested, the signature may be proved as if it had not been attested. 3 
 Evidence as to the handwriting of a person may be given (i) by a person 
 who saw him write the document in question ; (ii) by a person who has 
 seen him write other documents and believes the writing in question to 
 be his ; the presumption arising from such evidence is called prasumptio 
 ex visu scriptionis; (iii) by a person who knows his handwriting from 
 having corresponded with him or having had other opportunities of 
 observing writing which there was reasonable ground for believing to be 
 his {p. ex scriptis olim visis) ; (iv) by an expert or other person who has 
 compared the writing in question with a document known to be in the 
 handwriting of the party (p. ex scripto nunc viso)} (See Comparison of 
 Handwriting; Ancient Documents ; Document.) 
 
 HANGING. — § 1. As to the punishment of hanging, see Death, § 2. 
 § 2. In the old books " hanging " is used in the sense of " pending ;'' 
 thus "hanging the process" means " pending the process." 5 
 
 HARBOURS. — § 1. A harbour is a place naturally or artificially made 
 for the safe riding of ships. 6 The term, therefore, includes ports (q. v.). 
 
 § 2. The crown has the prerogative of appointing or constituting ports 
 and havens, and of declaring the limits of existing harbours, where they 
 were not originally fixed. In practice, however, a harbour is now always 
 constituted either by a special act of parliament, or by a provisional order 
 of the Board of Trade, confirmed by act of parliament. 7 The provisions 
 of the Harbours, Docks and Piers Clauses Act, 1847 (which contains 
 clauses usually required in acts authorizing the construction of harbours, 
 docks' and piers), apply to harbours so formed. 
 
 The crown is conservator of all ports and harbours. Its powers and 
 duties in this respect are now chiefly exercised by the Board of Trade. 8 
 Harbour A " harbour authority" is a body of persons, corporate or unincorporate, 
 
 authority. being proprietors of or intrusted with the duty of constructing, improving, 
 managing or lighting any harbour. 9 
 
 HARRIOTT is the old form of heriot (q. v.). w 
 
 1 Bl. Comm. iii. 49. ' Ibid. 45 ; Steph. Comm. ii. 499 etseq.; 
 
 2 Rep. Comm. on Fees, 4, 5. stat. 24 & 25 Vict. c. 45. 
 
 3 Com. L. Proc. Act, 1854, s. 26; stat. 8 Stat. 25 & 26 Vict. c. 69 ; Coulson & 
 28 Vict. c. 18 ; Best on Evidence, 307. Forbes, 45. 
 
 4 Best, 326. » Stat. 24 & 25 Vict. ... 47. 
 6 Co. Litt. 13 a. 10 Williams on Seisin, 203. 
 6 Coulson & Forbes on Waters, 42. 
 
Hay -Bote LAW DICTIONARY. Heir 399 
 
 HAY-BOTE. See Estovers. 
 
 HEARING. — Under the practice in Chancery before the Judicature 
 Acts the hearing of a cause was the argument of it in Court after the 
 conclusion of the pleadings and the close of the evidence. In the case 
 of a suit heard on motion for decree, the original hearing on the motion 
 for decree frequently did not dispose of the suit, but made it necessary 
 to have a subsequent hearing on further consideration (q. v.). Under the 
 present practice the hearing of an action generally takes the form either 
 of a trial or a motion for judgment (q. v.). 
 
 HEARSAY. See Evidence, § 9. 
 
 HEINECCIUS was born at Eisenberg in 1681, became professor in 
 Halle, and died in 174.1. He wrote numerous works on Roman Law, 
 which, though somewhat out of date, are still occasionally referred to. 
 The principal are the Elementa Juris Civilis and the Antiquitatum 
 Syntagma} 
 
 HEIR. — I. § 1. The word " heir," when used to describe or designate 
 a given person, includes three classes, "heirs at law" or "heirs" simply, 
 "heirs apparent " and "heirs presumptive." 
 
 § 2. An heir (or heir at law) is a person who stood in such a degree 
 of relationship to a deceased person (called the ancestor), that the real 
 property of the latter has descended to him, or would have descended to 
 him if the ancestor had died intestate. The mode in which the relation- 
 ship is to be computed is regulated by the canons of descent laid down 
 by the Inheritance Act. (See Descent!) 
 
 § 3. With reference to the rules of descent, by virtue of which they 
 inherit, heirs are of the following kinds : (i) the heir at common law is At common 
 he to whom his ancestor's lands, &c. descend according to the common law- 
 law as modified by the Inheritance Act, as opposed to (ii) a customary Customary, 
 heir or special heir, 2 who inherits by virtue of a custom, such as gavelkind 
 or borough-English ; (iii) an heir general takes by descent as fixed by general, 
 law, as opposed to (iv) an heir special or heir in tail, who claims as issue special, 
 in tail per formamdoni, i. e., according to the nature of the estate tail ; 3 hence 
 heirs special are called ".heirs male of the body," "heirs in special tail," 
 &c, according to the variety of the entail (see Estate Tail). 
 
 § 4. With reference to the nature and degree of the relationship 
 between the ancestor and the heir : (i) Formerly a person was said to be Lineal, 
 lineal heir if he was lineally descended from his ancestor, as son, 
 grandson, &c. ; for, before the Inheritance Act, descent could not be 
 traced lineally upwards, from son to father, but now an heir may be a 
 lineal descendant or a lineal ancestor, (ii) A collateral heir is related to collateral, 
 his ancestor by being descended with him from a common progenitor, as 
 
 1 Holtz. Encycl. 3 8 Co. 166 a. 
 
 s Co. Liu. 376 a, 386 b. 
 
400 
 
 Heir 
 
 LAW DICTIONARY. 
 
 Heir 
 
 Whole blood, 
 half blood. 
 
 Ex parte 
 paterna. 
 
 Ex parte 
 maternS. 
 
 By pro- 
 pinquity, 
 
 by representa- 
 tion. 
 
 By limitation, 
 
 in fact. 
 
 Co-heirs. 
 
 Heir apparent. 
 
 Heir presump- 
 tive. 
 
 in the case of brothers, cousins, nephew and uncle, &c. (iii) An heir 
 of the whole blood is descended from the same pair of progenitors as 
 his ancestor, while (iv) an heir of the half blood and his ancestor have 
 only one common progenitor. Thus A. and B. his wife have two sons, 
 X. and Y. : B. dies, and A. marries C, and they have a son Z : here Y. 
 is heir of the full blood to X., but only heir of the half blood to Z. 
 (v) Heirs of the part of the father are those related by blood to the father 
 of the ancestor {e.g., a paternal uncle), and (vi) heirs of the part of the 
 mother, are those related by blood to the mother of the ancestor, 1 but 
 this distinction is not now of importance. (See Descent, § iz.) (vii) 
 Heir by propinquity is where the heir takes as being the nearest blood 
 relation, as opposed to (viii) heir by representation, where he takes as 
 representing or standing in the place of his ancestor. 2 (See the fourth 
 canon of descent, Descent, § 5.) 3 
 
 § 5. When land is given to "the heir'' of a person, the heir claims not 
 by descent from his ancestor, but by purchase from the donor, the word 
 "heir" being used as a descriptio persona ; and hence he is called heir 
 by limitation, as opposed to the heir in fact, heir in deed (or actual heir). 4 
 If a testator devises land to his own heir at law, the latter takes as 
 devisee and not as heir. 5 
 
 § 6. Co-heirs are two or more persons who take by the same descent. 
 Thus, if a tenant of gavelkind land leaves several sons, they take as co- 
 heirs. So if a tenant of ordinary land leaves no son and several daughters, 
 they take his land as co-heiresses. 6 (See Coparceneiy.) 
 
 § 7. An heir apparent is a person who will be heir to his ancestor if he 
 survives him. He is not heir in the proper sense of the word until after 
 the death of his ancestor, for " nemo est haeres viventis." Formerly 
 "heir apparent " was applied to the nearest living heir, for he would be 
 heir if the ancestor died immediately, while a distinction was taken 
 between an heir apparent who must be heir in any event (" certain and 
 perdurable heir apparent"), and an heir apparent whose claim is liable 
 to be defeated wholly or partially by the birth of a nearer heir or co-heir. 7 
 At the present day, however, " heir apparent " means him who, if. he 
 survives his ancestor, must certainly be his heir, e. g., an eldest son in 
 ordinary cases, while any other heir is called an heir presumptive, because 
 his claim to inherit is liable to be defeated by the birth of a nearer heir. 8 
 
 1 Co. Litt. 12 a. 
 
 8 Ibid. 1 ob. 
 
 3 The following distinctions are not now 
 of practical interest: — "Immediate heir" 
 was formerly used to signify that the heir 
 was heir apparent or presumptive at the 
 death of the ancestor, as opposed to the 
 case where there is an intermediate descent 
 without seisin. (See Descent, § 3 and 
 note (6) ; Viner, Abr. Heir (G. 2).) For- 
 merly a person might be heir and not ab- 
 solutely heir ; as if land descended to an 
 heir presumptive and afterwards a nearer 
 heir was born (Co. Litt. lib); but since the 
 Inheritance Act this is impossible, except 
 in the case of a posthumous heir being born. 
 
 ' Viner, Abr. Heir, G. 3. "Right 
 heir" seems to mean sometimes heir at 
 common law (Brooke, Abr. Discent, 59 ; 
 Done, 42), and sometimes rightful heir, as 
 opposed to a supposititious heir (Co. Litt. 
 8 b). Hares astrarius is used in the old 
 books to denote an heir apparent to whom 
 his ancestor has conveyed the inheritance 
 in his lifetime, and he is so called of astre 
 (modem French dtre), a hearth, used 
 figuratively for a dwelling-house (Co. Litt. 
 8 b). As to mesne heirs, see Seisin. 
 
 Stat. 3 & 4 Will. 4, c. 106, s. 3. 
 
 Litt. §§ 241, 265. 
 
 1 Co. Litt. 8b; 35 b. 
 8 Bl. Comm. ii. 208. 
 
Heiress 
 
 LAW DICTIONARY. 
 
 Hereditament 
 
 401 
 
 § 8. An heir apparent or presumptive is an immediate heir, that is, he Immediate, 
 is the nearest blood relation capable of inheriting to his ancestor. All remote. 
 other blood relations capable of inheriting are called remote heirs : 
 thus A.'s eldest son is his immediate heir, and his younger son is his 
 remote heir. 1 
 
 II. § 9. "Heir" is also used as a word of limitation to denote the 
 quality of an estate of inheritance on its creation. An estate in fee 
 cannot be created by deed without the words "and his heirs" following 
 the name of the grantee. " Tenant in fee simple is he which hath lands 
 or tenements to hold to hi'm and his heirs for ever." 3 If land is conveyed 
 to A. simply, A. merely takes an estate for life. 3 Similarly, an estate tail 
 is properly created by the words "and the heirs of his body" following 
 the name of the grantee. In wills and agreements words of inheritance 
 are not required. (See Fee; Estate Tail; Words of Limitation) 
 
 III. § 10. " Heir" and "heirs" are used in a popular sense, especially 
 by testators, to signify the eldest son, or all the children, or the devisee 
 or the next of kin of a given person. The meaning to be given to the word 
 is a question of construction, on which several rules have been laid down. 4 
 
 See Expectant Heir; Bastard; Monster. 
 Etymology.] — Norman French, heire; from Latin, htzres. 
 
 HEIRESS is a female heir. See Heir. 
 
 HEIRLOOMS are such goods and personal chattels as, contrary to 
 the nature of chattels, go by special custom to the heir or devisee of the 
 owner, along with the inheritance, and not to his executor. It is said 
 that the owner of an heirloom cannot dispose of it by will so as to sever 
 it from the inheritance, although he may dispose of it during his lifetime. 6 
 Heirlooms in the strict sense are rare. When personal property is left 
 by will, or settled so as to descend like a proper heirloom as far as the 
 rules of law allow, it is called an heirloom by devise or settlement, or a 
 quasi-heirloom. (See Chattels.') 
 
 HEIRSHIP is the quality or 'condition of being heir, or the relation 
 between the heir and his ancestor. 
 
 HERBAGE is the same as vesture 8 {q. v.). 
 
 HEREDITAMENT. — § 1. "Whatsoever may be inherited is an 
 hereditament :" 7 in other words, when a right is of such a nature that on 
 the death of its owner intestate it descends to his heir, it is a heredita- 
 ment. The term includes a few rights unconnected with land, but it is 
 generally used as the widest expression for real property of all kinds, and 
 is therefore employed in conveyances after the words " lands " and 
 
 242 b. 
 
 1 Co. Litt. 
 3 Litt. § I. 
 3 Ibid. ; see Co. Litt. 
 
 8 b. 
 
 See Jarman on Wills, ii. 76. 
 
 S. 
 
 5 Bl. Comm. ii. 427 ; Co. Litt. 18 b, 
 185 b; 12 Co. 105. 
 
 6 Co. Litt. 4 b. 
 
 ' Ibid. 6a; Shepp. Touch, 91. 
 
 l> D 
 
402 
 
 Hereditament 
 
 LAW DICTIONARY. 
 
 Hereditament 
 
 Lying in 
 livery, 
 
 or corporeal. 
 
 Lying in 
 grant ; 
 
 incorporeal. 
 
 Real. 
 Personal. 
 
 Mixed. 
 
 Legal, 
 equitable. 
 
 Collateral. 
 
 Entire, 
 several, 
 
 divisible, 
 indivisible. 
 
 " tenements " to include everything of the nature of realty which -they do 
 not cover. 
 
 The principal division of hereditaments is into those which lie in 
 livery and those which lie in grant (see Grant; Livery). § 2. Heredita- 
 ments lying in livery are those whereof livery of seisin can be made, such 
 as lands, houses, &c. : in other words, they are visible and tangible objects, 
 and are hence also called corporeal hereditaments. 1 § 3. Hereditaments 
 lying in 'grant are those whereof no livery of seisin can be made because 
 they are mere rights, but they pass by deed of grant without more. They 
 include (a) reversions, remainders and other executory interests in land ; 
 and (b) incorporeal hereditaments, namely, advowsons, tithes, easements, 
 profits a prender, services, rents, annuities, offices, dignities, franchises, &c. z 
 Some writers include reversions and remainders among incorporeal here- 
 ditaments, and distinguish incorporeal hereditaments in the strict sense 
 by calling them hereditaments purely incorporeal : but the classification is 
 neither correct nor convenient. 3 
 
 § 4. Another division of hereditaments is into real, personal and mixed. 
 Real hereditaments are lands and tenements. A personal hereditament 
 is one which concerns neither lands nor tenements, such as an annuity 
 granted to a man and his heirs. A mixed hereditament is partly real and 
 partly personal, as where "the king created an earl of such a county or 
 other place, to hold that dignity to him and his heires, this dignity is 
 personall, and also concerneth lands and tenements." 4 
 
 § 5. Hereditaments are also either legal, namely, such as descend to 
 the heir by the rules of the common law, as in the preceding examples, 
 or equitable, namely, those rights which exist only by the rules of equity ; 
 thus an equity of redemption (q . v.), and the interest of an heir in money 
 directed to be laid out in the purchase of land, are equitable heredita- 
 ments. 5 (See Conversion.) 
 
 § 6. Coke says that the franchises of chase, warren, and park are 
 collateral hereditaments and not issuing out of the soil like rights of 
 common, " and therefore if a man hath a chase in other men's grounds, 
 and after purchase the grounds, the chase remaineth ; " 6 in other words, 
 it is not extinguished by unity of seisin, being a privilege distinct from 
 the land. 7 
 
 § 7. An entire hereditament is one, the parts of which are connected 
 together, as opposed to several hereditaments, which are unconnected 
 with one another ; as if a man has two estates which are separated from 
 one another by land belonging to other persons. 8 Entire hereditaments, 
 again, are either divisible or indivisible. Thus a piece of land or a rent- 
 charge is divisible, while an advowson or a common sans nombre cannot 
 be divided, the former ffom its nature, the latter because its division 
 
 1 Shepp. 228 ; Co. Litt. 9 a ; Williams' 
 R. P. 10. 
 
 2 Bl. Comm. ii. 21 ; Co. Litt. 47 a, 
 165 a; Shepp. 228. 
 
 3 Williams, 241, 322 ; Steph. Comm. i. 
 647, n. In Co. Litt. 47 a, reversions and 
 remainders are expressly opposed to incor- 
 
 poreal hereditaments. 
 1 Co. Litt. 2 a. 
 6 Burton's Comp. § 1443. 
 6 4 Inst. 318. 
 
 , 7 See Comyns' Dig. Chase D. 
 8 See Co. Litt. 252 b. 
 
Heresy LAW DICTIONARY. Heriots 403 
 
 would increase the charge to the owner of the commonable land. An 
 advowson, however, may in effect be divided between co-parceners, for 
 they may agree to present by turns. 1 
 
 Etymology.] — Hereditament (low Latin hereditamentum? from hereditas, inhe- 
 ritance) seems to be a comparatively modem word in English law : the old word is 
 heritage. 3 
 
 HERESY is an ecclesiastical offence, consisting in the holding of a 
 false opinion repugnant to some point of doctrine clearly revealed in 
 Scripture, and either absolutely essential to the Christian faith, or at least 
 of most high importance. 4 It was formerly punishable by death, but the 
 writ de haretico comburendo was abolished by stat. 29 Car. 2, c. 9, and it is 
 now punishable only by excommunication or other censure 6 (q.v.) ; the 
 maximum punishment is consequently six months' imprisonment. 6 (See 
 Excommunication.) 
 
 HERIOTS are of three kinds, — heriot service, suit heriot, and heriot 
 custom. 
 
 § 1. Heriot service can only exist as incident to a freehold tenure Heriot service, 
 created before the Statute of Quia Emptores. It consists in the right of 
 the lord to the best beast of a tenant dying seised of an estate of inherit- 
 ance, and is recoverable by seizure or distress. Hence it is said to lie 
 both in prender and in render (see those titles). 7 
 
 § 2. Suit heriot is the right to some chattel of a deceased tenant, Suit heriot. 
 reserved on a grant or lease of freehold lands made in modern times. It 
 is not confined to the best beast or to the case of a tenant dying seised of 
 an estate of inheritance. A suit heriot being a species of rent, the lord 
 must either distrain or bring an action for it and cannot seize it. 8 
 
 § 3. Heriot custom is usually found in copyholds, though it also occurs Heriot 
 in freeholds held of a manor in which the freeholders are subject to a set custom - 
 of customary rules. It is not recoverable by distress except by special 
 custom, and is in other respects entirely regulated by local custom ; thus 
 it may be confined to the second-best beast, or to animals of a particular 
 kind, or to " dead goods." A heriot custom may also be due on aliena- 
 tion as well as on death. 9 
 
 See Service; Mortuary. 
 
 Etymology.] — Norman French heriet, w late Latin heriotum, from Anglo-Saxon 
 hergeata, heregeatve, an implement of warfare, because the lord on the death of his 
 tenant was entitled to a certain number of the tenant's horses and arms, varying according 
 to his military rank, 11 or, in the case of a villein, to his best beast. 12 Originally heriot 
 and relief (q. v.) were spoken of as synonymous, but after the Conquest "relief" became 
 appropriated to free tenants and "heriot" to villeins. 13 
 
 1 Co. Litt. 32 a, 164 b. Watkin on Copyholds, ii. 98 ; Co. Copyh. 
 
 2 Ducange, s. v. § 24 ; Kitchen on Courts, 265. 
 
 3 Britton, 186 b. 8 Scriven, 372 ; Elton, 1. c. 
 
 4 Phillimore, Eccl. Law, 1092. 9 Elton, 1. c. 
 
 5 Ibid. 1095. 10 Britton, 178 a. 
 
 6 Stat. S3 Geo. 3, c. 127; Steph. Crim. ll Cnut's Laws, II, { 70. 
 
 Dig. 98. la William I.'s Laws, 20. Compare the 
 
 1 Elton, Copyh. ijgetseo.; Williamson German Hesthaupt, Grimm's R. A. 364. 
 Seisin, 203; Scriven on Copyholds, 369; 13 Britton, 178 a. 
 
 dd2 
 
404 Hide LAW dictionary. High Court of Justice 
 
 HIDE of land is the same as a ploughland or plowland 1 (q. v.). 
 
 HIGH BAILIFF is an officer attached to a County Court; his duties 
 are to attend the Court when sitting, to serve summonses, and to execute 
 orders, warrants, writs, &c. a He also has similar duties under the bank- 
 ruptcy jurisdiction of the County Courts. 3 
 
 HIGH COURT OF ADMIRALTY was a Court of maritime jurisdiction, 
 anciently styled the Court of the Lord High Admiral (see Admiral). It had two juris- 
 dictions, one as an Instance Court, in which originally not only civil but also criminal suits 
 of a maritime nature were decided, and the other as a Prize Court. The same judge pre- 
 sided over both Courts, but by virtue of separate commissions. 4 
 
 As to the matters usually faffing within the cognizance of the Instance Court, see 
 Admiralty; as to the jurisdiction of the Prize Court, see Capture ; Prize Court. 
 
 By the Judicature Acts, 1873-5, tne jurisdiction of the Admiralty Court was trans- 
 ferred to the Probate, Divorce arid Admiralty Division of the High Court (q. v.). 
 
 HIGH COURT OF JUSTICE is that branch of the Supreme Court 
 of Judicature (q. v.) which exercises (i) the original jurisdiction formerly 
 exercised -by the Court of Chancery, the Courts of Queen's Bench, Com- 
 mon Pleas and Exchequer, the Courts of Probate, Divorce and Admiralty, 
 the Court of Common Pleas at Lancaster, the Court of Pleas at Durham, 
 and the Courts of the judges or commissioners of assize, and (ii) the 
 appellate jurisdiction of such of those Courts as heard appeals from 
 inferior Courts 5 {infra, § 5). § 2. It is a Superior Court of Record (see 
 Court), and was originally composed of the Lord Chancellor (who is the 
 president but never sits as a judge in the High Court), the Lord Chief 
 Justice of England, the Master of the Rolls, the Lord Chief Justice of the 
 Common Pleas, the Lord Chief Baron of the Exchequer, the three Vice- 
 Chancellors of the former Court of Chancery, such of the puisne judges 
 of the old common law Courts as have not been transferred to the Court 
 of Appeal, the judge of the former Probate and Divorce Court, the judge 
 of the former Admiralty Court, and the "judges of her Majesty's High 
 Court of Justice " who have been appointed since the Judicature Act 
 came into operation. 6 
 Divisions of § 3. The High Court was also originally divided into five temporary 
 
 the High divisions, corresponding to, and composed of the same judges as, the old 
 
 Courts which it replaced, viz., the Chancery Division, the Queen's Bench 
 Division, the Common Pleas Division, the Exchequer Division, and the 
 Probate, Divorce and Admiralty Division ; 7 and it was enacted that most 
 of the business which before the act was within the exclusive jurisdiction 
 of any one of the old Courts should be assigned to the corresponding 
 Division of the High Court, that is, the action or matter was to be com- 
 menced in that Division : thus actions for the execution of trusts were to 
 be assigned to the Chancery Division, and proceedings relating to the 
 
 1 Co. Litt. 69 a. 5 Judicature Act, 1873, s - '6. 
 
 2 Stat. 9 & 10 Vict. c. 95, s. 33 ; Pol- 6 Ibid. s. 5 ; Act of 1875, s. 3 ; Appel- 
 lor's C. C. Pr. 16. late Jurisdiction Act, 1876, ss. 15, 18; 
 
 3 Bankruptcy Rules (1870), 58. Judicature Act, 1877. 
 
 * Williams & Bruce, Adm. 1. ' Judicature Act, 1873, s. 31. 
 
High Court of Justice LAW DICTIONARY. High Court of Justice 405 
 
 revenue to the Exchequer Division, 1 provision being made for the 
 transfer of business from one Division or judge to another when 
 necessary. 2 
 
 § 4. On the death in 1880 of the Lord Chief Justice of England and 
 the Lord Chief Baron of the Exchequer, who were in office when the 
 Judicature Act came into operation, a council of judges was held, and on 
 the resolution then passed an Order in Council (which came into effect on 
 the 26th February, 1881) was made under the 32nd. section of the 
 Judicature Act, 1873, abolishing the offices of the Lord Chief Justice of 
 the Common Pleas and the Lord Chief Baron, and consolidating the 
 "three common law divisions," that is, the Q. B., C. P. and Ex. Divisions, 
 into one division called the Queen's Bench Division, under the presidency 
 of a Lord Chief Justice. (See Council of Judges ; Queen's Bench Division.) 
 The High Court, therefore, now consists of three divisions, namely, the 
 Chancery Division, the Queen's Bench Division, and the Probate, Divorce 
 and Admiralty Division. The rules as to the distribution of business 
 above mentioned have not been altered, except to this extent. 
 
 § 5. Under the practice of the old common law Courts, almost every Divisional 
 question of law arising in an action, such as demurrers, motions for new 
 trials, for leave to enter verdicts, &c, had to be heard by the full Court, 
 or Court sitting in banc, composed ofat least three judges. To allow of 
 the continuance of this practice, at all events for some time, the 
 Judicature Act provided for the sittings of divisional Courts of the 
 High Court (not to be confounded with the Divisions of the High Court, 
 supra, §§ 3, 4), to be composed of two or three (but not more) judges of 
 the High Court, including, if practicable, one or more judges of the 
 Division to which the business to be heard was assigned. 3 In the 
 Chancery, Probate, Divorce and Admiralty Courts, on the other hand, 
 all the business was transacted before a single judge, each cause or 
 matter in chancery business being marked for a judge by name, who 
 heard all applications and questions in it from its commencement to its 
 end. This practice is continued in the divisions corresponding to those 
 Courts.* With the view of extending this practice to the " common law " 
 divisions of the High Court, the Appellate Jurisdiction Act, 1876, 
 provided that in future every action and proceeding in the High Court 
 and all business arising out of the same, should, so far as is practicable 
 and convenient, be heard and disposed of before a single judge, and that 
 all proceedings in an action subsequent to the trial or hearing, should 
 be taken before the judge before whom the trial or hearing took place. 5 
 The rules of Court made under this section 6 direct that appeals from 
 chambers, and from County Courts, crown and revenue business, and 
 some other matters, shall continue to be heard by divisional Courts. 
 
 § 6. An appeal lies to the Court of Appeal (q. v.) from all judgments 
 and orders of the High Court in its ordinary jurisdiction. 
 
 1 Judicature Act, 1873, s. 34. 4 Ibid. s. 42. 
 
 3 Ibid. s. 36. * Ibid. s. 17. 
 
 3 Ibid. ss. 40, 41. " Rules of December, 1876. 
 
406 High Seas LAW DICTIONARY. Highway 
 
 HIGH SEAS include the whole of the seas or open salt water on the 
 globe, beyond the distance of three miles from the coast of any country. 1 
 
 § 2. The high seas are common to all nations, and no part of them can 
 become the property of any one state. They are, therefore, open to the 
 navigation, fishery and commerce of all the world, and no nation has the 
 right to exercise civil or criminal jurisdiction over the ships of other 
 nations while passing over the high seas. 2 The Courts of a country 
 may however exercise jurisdiction over foreign ships in respect of 
 injuries committed by them on the high seas, if they subsequently come 
 within the territorial waters of that country: and the English Courts have 
 in fact jurisdiction in such cases. 3 As regards the right of fishing on the 
 high seas, where a particular locality is habitually frequented by fishermen 
 of different countries, and a custom is established regulating the mode 
 and time of fishing, and such matters, the custom is binding on all those 
 who frequent the locality. 1 
 
 § 3. The bed of the high sea appears to follow the same general rule, 
 that it is common to all nations. There is, however, this difference, 
 that it is capable of permanent occupation, and it would consequently 
 appear that if any state keeps uninterrupted and exclusive possession of a 
 portion of the bed of the high seas, for a certain length of time, the state 
 thereby acquires a right to it as against all others, by analogy to the 
 doctrine of possession. 5 
 
 See King's Chambers ; Piracy. 
 
 HIGHER AND LOWER SCALE.— In the practice of the 
 Supreme Court of Judicature there are two scales regulating the fees of 
 Court and the fees which solicitors are entitled to charge. The lower 
 scale applies (unless the Court otherwise orders) to the following cases : 
 all causes and matters assigned by the Judicature Acts to the Queen's 
 Bench or the Probate, Divorce and Admiralty Divisions ; all actions of 
 debt, contract or tort ; and in almost all causes and matters assigned 
 by the acts to the Chancery Division in which the amount in litigation 
 is under 1,000/. The higher scale applies in all other causes and 
 matters, and also in actions falling under one of the above classes, but 
 in which the principal relief sought to be obtained is an injunction. 6 
 
 HIGHWAY is a passage which is open to all the king's subjects ; 
 
 1 Perhaps it should be added that the committed there. The rest of the majority, 
 country must be one recognizing the however, considered that the English par- 
 obligations of international law, as the liament had this power. The decision, 
 three-mile limit is an arbitrary creation of therefore, merely went on the ground that 
 international law. • legislation was necessary to give the Eng- 
 
 In the case of Reg. v. Keyn (2 Ex. D. lish Courts jurisdiction, and that no statute 
 
 63), it was decided by a majority of seven having that effect had been passed. In 
 
 against six judges, that the English criminal accordance with this view, the Territorial 
 
 Courts had no jurisdiction to convict a Waters Act, 1878, was shortly afterwards 
 
 foreigner for an offence committed on the passed. (See Territorial Waters.) 
 
 open sea within a distance of three miles 2 Coulson & Forbes on Waters, 2 et seq. 
 
 from the English coast. Two of the 3 Merchant Shipping Act, 1854, s. 527. 
 
 majority were also of opinion that the * Coulson & Forbes, 5, 342. 
 
 English parliament had no power to legis- 6 Ibid. 2. 
 
 late with reference to the portion of the • See Chapman v. M. R. Co., 5 Q. B. D. 
 
 open sea within three miles, so as to give 167, 431 ; Duke of Norfolk v. Arbuthnot, 
 
 the English Courts jurisdiction over offences 6 Q. B. t>. 190; Daniell, Ch. Pr. 1310. 
 
Hilary law dictionary. Holding over 407 
 
 thus public rivers are in law considered as highways. 1 A highway need 
 not necessarily be a thoroughfare. 2 The interest of the public in a 
 highway consists solely in the right of passage over it ; thus a highway over 
 land (which is what is usually meant by a highway), gives the right of 
 walking, driving and riding. 3 The soil and ■ freehold over which that 
 right of way is exercised may be and generally is vested in a private owner, 
 who may maintain an action against persons who infringe his rights therein, 
 as for instance by permitting cattle to depasture there. 4 § 2. A way ceases 
 to be a highway when all access to it has been legally stopped up, 5 and 
 the right to the surface then reverts to the owner of the soil. 6 
 
 § 3. The unlawful stoppage or obstruction of a highway is a public 
 nuisance. 7 
 
 § 4. The Highway Acts ,are various acts from 5 & 6 Will. 4, c. 50, to Highway Acts. 
 25 & 26 Vict. c. 61, 27 & 28 Vict. c. 101 and 41 & 42 Vict. c. 77, relating 
 to highways on land. They provide for the formation of highway districts 
 and highway boards, and the levying of highway rates for the management 
 and repair of highways ; they also contain provisions for stopping up and 
 diverting highways by order of two justices. 3 The Turnpike Acts also 
 contain provisions relating to highways coming within their scope. 
 
 See Dedication ; Ad quod Damnum ; Way ; Navigation ; Nuisance. 
 
 HILARY. See Sittings ; Term. 
 
 HOBBES. — Thomas Hobbes was born at Malmesbury in 1588 and 
 died in 1679. He wrote De Cive, The Leviathan, and numerous other 
 works, in which theoretical questions of law and government are dis- 
 cussed. 
 
 HOLDING is a piece of land held under a lease or similar tenancy 
 for agricultural, pastoral or similar purposes. Under the Agricultural 
 Holdings (England) Act, 1875, "holding" includes all land held by the 
 same tenant of the same landlord for the same term under the same 
 contract of tenancy. 9 
 
 HOLDING OVER is where a tenant under a lease continues in 
 possession of land after the determination of his tenancy. In ordinary 
 cases the effect of holding over is either to make the tenant liable to an 
 action for use and occupation (q. v.), or to continue the tenancy against 
 his wish. 
 
 § 2. By stat. 4 Geo. 2, c. 28, where a tenant for term of life or years Double 
 wilfully holds over the land after the determination of the term and after damages, 
 demand and notice in writing by the landlord for the delivery of the 
 possession, the tenant is liable to pay damages at double the yearly value 
 of the land. 
 
 • 1 Smith, L. C. ii. 142. ° Rolls v. St. George the Martyr, 14 Ch. 
 
 2 Ibid. ii. 141 ; Shelford's R. P. Stat. D. 785. 
 
 62. 7 Shelford, 67. 
 
 3 Co. Litt. 560. s Chitty's Statutes, tit. Highway ; Stone's 
 
 4 Ibid., citing Reg. v. Pratt, 4 E. & B. Justice, 332 ; Smith's L. C. ii. 152 et seq. ; 
 860. Steph. Comm. iii. 128. 
 
 5 Bailey v. Jamieson, I C. P. D. 329. ° 38 & 39 Vict. c. 92, s. 4. 
 
408 
 
 Homage 
 
 LAW DICTIONARY. 
 
 Homicide 
 
 Freeholders. 
 
 Service of. 
 
 Double rent. § 3. By stat. 11 Geo. 2, c. 19, s. 18, a tenant who holds over after 
 giving notice to quit, is liable to pay double rent for the time he continues 
 in possession. 1 
 
 HOMAGE.— I. § 1. Homage signifies the free tenants of a manor 
 assembled in the Court Baron. They are sworn to make their presentments 
 Copyholders, with impartiality, and are hence sometimes called the homage jury. But 
 the attendance of free tenants at the Court Baron has become so unfrequent 
 that the term " homage" is more commonly applied to the copyholders 
 attending at the customary Court. The duty of a homage jury is to make 
 presentments of all things done within the manor to the prejudice of the 
 lord or tenants, and to recommend whatever may appear to be advanta- 
 geous to the lord, and not injurious to the tenants. 2 (See Presentment?) 
 
 II. \ 2. Formerly homage signified "a most honourable and humble service of 
 reverence," which every free tenant for an estate in fee simple or fee tail was bound to 
 perform to his feudal lord ; it was so called because in doing homage in ordinary cases 
 the tenant said to his lord "I become your man [Norman French home] of life and 
 limb." 3 Homage created an obligation of assistance by the tenant to his lord, and of 
 protection by the lord to his tenant. 4 
 
 Homage was of several kinds. § 3. Liege homage was without any saving or excep- 
 tion of the faith due by the tenant to anyone else, as where a tenant did homage to the 
 king. Simple homage, or homagium -non ligeum, was performed by a subject to a subject, 
 as in ordinary cases, where the tenant promised to be faithful to his lord saving the faith 
 he owed to the king. 5 § 4. Homage auncestral [homagium antecessorium) is "where a 
 tenant holdeth his land of his lord by homage, and the same tenant and his ancestors, 
 whose heire he is, have holden the same land of the same lord and of his auncestors, whose 
 heire the lord is, time out of memorie of man, by homage, and have done them homage. 
 And tins is called homage auncestrell, by reason of the continuance which hath beene by 
 title of prescription in the tenancie in the blood of the tenant, and also in the seignorie in 
 the blood of the lord." 6 The peculiarity of homage auncestrel was that it imposed on 
 the lord the duty of warranty (q. v.) and acquittal (q. v. § 2) towards his tenant. 1 
 
 § 5. Homage was abolished by the act 12 Car. 2, c. 24. 
 
 See Fealty. 
 
 Etymology.] — Homage in the sense of service is derived from the Norman French 
 homage, from home, a man, because the tenant became the lord's man. 8 Homage in the 
 sense of the suitors at a Court Baron is said to be of the same derivation, because the 
 suitors were those who had done homage; 9 this derivation is doubtful. 
 
 HOMICIDE is where one human being kills another. 10 
 Felonious. § 2. Homicide is unlawful or felonious, 
 
 (a) When death is caused by an act done with the intention to cause 
 death or bodily harm, or which is commonly known to be likely to cause 
 
 Liege 
 homage, 
 
 non ligeum, 
 auncestral. 
 
 1 Woodfall's L. & T. 697 et seq. 
 
 2 Elton on Copyholds, 268 ; see also 
 Warrick v. Queen's College, L. R., 6 Ch. 
 at p. 727. 
 
 3 Litt. § 85, where the ceremony is 
 described ; Williams on Seisin, 9. As to 
 the form when the tenant was a man of 
 religion or a woman, see Litt. \\ 86 et seq. 
 As to the cases where it was due, see Litt. 
 \\ 148 et seq. 
 
 4 Co. Litt. 64 a. 
 
 6 Ibid. 65 a and n. (3) ; also Litt. § 89. 
 Hale (Pleas of the Crown, 72) also men- 
 tions mixed homage, e. g., that homage 
 
 which is due to a prince who is sovereign 
 in relation to his own subjects, and yet 
 owes a subjection to some other prince. 
 
 6 Litt. § 143 ; see also § 152. The con- 
 tinuance in the blood of the lord was not 
 essential to the tenure, for land might be 
 held of a corporation by homage auncestrel : 
 Litt. § 146; Co. Litt. 102 b. 
 
 7 Litt. §§ 143, 144. 
 
 8 Britton, 174a. 
 
 8 Blount's Law Diet. s. v. ; Williams on 
 Seisin, 36. 
 10 Stephen's Crim. Dig. 138. 
 
Homologation LAW DICTIONARY. Horse 409 
 
 death or bodily harm, and when such act has no legal justification or 
 excuse (see Murder) : 
 
 (b) When death is caused by an omission, amounting to culpable negli- 
 gence, to discharge a duty tending to the preservation of life, whether 
 such omission is or is not accompanied by an intention to cause death or 
 bodily harm (see Murder; Manslaughter) : 
 
 (c) When death is caused accidentally by an unlawful act 1 (see Man- 
 slaughter). 
 
 § 3. Homicide is excusable when the person by whom it is committed Excusable, 
 is not altogether free from blame, though it is not of such a kind as to 
 make him criminally responsible. Excusable homicide is either per infor- 
 tunium, by misadventure, as where a person driving a carriage with due 
 care accidentally kills anyone, 2 or homicide se et sua defendendo, that is, in 
 defence of one's self or property upon some sudden affray considered by 
 the law as in some measure blameable. 3 (See Chance-Medley^) 
 
 § 4. Homicide is justifiable where no blame whatever attaches to the Justifiable, 
 person killing ; as in case of the execution of a malefactor by legal war- 
 rant, or where a constable or other officer in the execution of his duty, in 
 either a civil or criminal case, kills a person who assaults or resists him, 
 or where one person kills another in defending himself or his property 
 against an attempt to commit a felony with force, e. g., murder, robbery.* 
 Formerly a person who committed excusable homicide was liable to be 
 tried and punished, but this liability has been abolished, 5 so that the dis- 
 tinction between excusable and justifiable homicide no longer exists. 
 
 Etymology.] — Latin, homicidium, from homo, a man, and occidere, to kill. Formerly 
 "homicide" meant manslaughter. 6 
 
 HOMOLOGATION is the same thing as estoppel in pais^ (q. v.). 
 
 HONOR means (i) a seignory in capite of which several inferior lord- 
 ships or manors depend; and (ii) the land or district included in the 
 seignory. An honor cannot be created since the Stat. Quia Emptores, 
 except by act of parliament. 8 (See In Capite; Manor; Tenure.) 
 
 HONOUR. — The drawee of a bill of exchange is said to honour it 
 when he accepts it. The acceptor of a bill, or the maker of a note, 
 is said to honour it when he pays it. (See Bill of Exchange.) As to 
 acceptance for honour, see Acceptance, § 5. 
 
 HORSE. — The law as to horses differs from that relating to other chat- 
 tels chiefly in this respect, that by stats. 2 & 3 Ph. & M. c. 7, and 31 Eliz. 
 
 1 Stephen's Crim. Dig. 143. 5 Stat. 24 & 25 Vict. c. 100, s. 7; Arch- 
 
 ' Russell on Crimes, i. 844. bold, Crim. PL 656. 
 
 3 Ibid. ° Co. Litt. 287 b. 
 
 1 Hid. 848 et seq. See also the curious 7 Burkinshaw v. Nicolls, 3 App. Ca. at 
 
 case of one person pushing another off a p. 1026. 
 
 plank at sea in order to save himself; 8 Co. Litt. 108 a ; Spelman, Gl. s. v.; 
 
 Bacon's Elem. c. 5, cited Bl. Comm. iv. Madox, Bar. Angl. passim ; Bl. Comm. ii. 
 
 186. 91; Stephen, Comm. i. 215. 
 
4io Hotchpot LAW DICTIONARY. House of Lords 
 
 c. 12, the sale of a stolen horse in market overt does not pass the property 
 therein, unless the requirements of the acts to ensure publicity are 
 complied with, and unless in addition the owner fails to put in a claim 
 within six months after the horse was stolen ; if he proves his case, and 
 tenders the purchaser the price paid by him, he is entitled to have his 
 horse back again. 1 As to horse races, see Wagers. 
 
 HOTCHPOT. — Where property is settled on the members of a 
 class (e. g., the children of a marriage) subject to a power of appointment 
 among them, and part of it is appointed to one, that one is nevertheless 
 not excluded by law from taking an equal share with the others in the 
 part which remains unappointed, and thus obtaining a larger share than 
 any of the others. This is usually prevented by the insertion of a clause 
 called a hotchpot clause, which declares that no appointee shall take any 
 share in the unappointed part without bringing his appointed share into 
 hotchpot : that is, without adding it for the purpose of computation 
 to the unappointed part, when the whole is divided equally. Of course 
 an appointee is not bound to do this, and only does it when his appointed 
 share is less than what he would obtain if no appointment had been 
 made. 2 
 
 The Statute of Distribution contains a similar provision applying to 
 advancement. (See Advancement, § 3 ; Frankmarriage.) 
 
 Etymology. — "It seemeth that this word hotchpot is in English a pudding." 3 It is 
 derived from the Dutch hutspot, from hutsen, to shake up, and pot : French, hochepot, 
 from hocher, to shake up. 4 
 
 HOUSE OF COMMONS is the third branch of parliament (q. v.), 
 and consists of representatives of the nation at large (exclusive of the 
 peerage), chosen by election. The counties of the United Kingdom are 
 represented by members who are technically called knights of shires, and 
 the cities and boroughs by members who are in like manner called 
 citizens and burgesses. The principal universities also elect repre- 
 sentatives. 5 (See Election, § 3, note ( 6 ) ; Lodger; Occupation, §11; Regis- 
 tration ; Revising Barrister.) 
 
 HOUSES OF CORRECTION were a species of prison, origin- 
 ally designed for the confinement of vagrants and paupers refusing to 
 work. By stat. 5 & 6 Will. 4, c. 38, they were made available for the 
 detention of prisoners committed for trial, 6 and now there is no distinction 
 between them and other prisons (q. v.). 7 
 
 HOUSE OF LORDS is the assembly of lords spiritual and temporal, 
 which forms the second branch of parliament (q. v.). The lords spiritual 
 are the two archbishops and such of the bishops of the Church of 
 
 1 Oliphant's Law of Horses, passim ; 5 Stephen, Comm. ii. 333 ; stats. 2 Will. 
 Steph. Comm. ii. 75. 4, c. 45 ; 30 & 31 "Vict. c. 102 ; 31 & 32 
 
 2 Elphinstone, Conv. 309; Watson's Vict. cc. 48, 49 ; Ballot Act, 1872. 
 Comp. Eq. 583. 6 Steph. Comm. iii. 122. 
 
 3 Litt. \ 267; Co. Litt. 177 a. 7 Prisons Acts, 1863 and 1877. 
 
 4 Littre, Diet. s. v. 
 
House-Bote law dictionary. Hundred 411 
 
 England as have seats in parliament by ancient usage or by statute. 
 § 2. The lords temporal consist of (1) the peers of the United Kingdom ; 
 
 (2) the representative peers of Scotland and Ireland, the Scotch peers 
 having the right to elect for each parliament sixteen representatives from 
 their own body, and the Irish peers twenty-eight for life ; (3) two life peers, 
 or Lords of Appeal in ordinary (see Lords of Appeal). 1 The Lord Chan- 
 cellor is prolocutor and president of the House. (See Chancellor, § 2.) 
 
 § 3. In addition to their functions as part of the legislature, the House 
 of Lords exercise judicial authority (1) in the trial of peers for treason or 
 felony (see Certiorari, § 3 ; Lord High Steward) ; (2) in claims of peerage ; 
 
 (3) in disputed elections of representative peers ; and (4) as a Supreme 
 Court of Appeal from the Court of Appeal in England, and the Superior 
 Courts of Scotland and Ireland. 2 
 
 As to the practice in appeals to the House of Lords, see Appeal, § 4 ; 
 Appendix; Case; Petition.) 
 
 HOUSE-BOTE. See Estovers. 
 
 HOUSEBREAKING is where a person breaks and enters a dwell- 
 ing-house or building occupied therewith, or a school-house, shop, 
 warehouse or counting-house, and commits any felony therein, or where 
 a person commits a felony in any such building, and then breaks out 
 of it. The maximum punishment is fourteen years' penal servitude. 3 (See 
 Burglary.) 
 
 HUE AND CRY " is the old common law process of pursuing, with 
 horn and with voice, all felons, and such as have dangerously wounded 
 another." 4 All those who join in following upon a hue and cry are 
 justified in apprehending the person pursued, even though it should turn 
 out that he is innocent, or that no felony has been committed. To 
 maliciously or wantonly raise a hue and cry is a misdemeanor and an 
 actionable offence. 5 
 
 HUNDRED is a district forming part of a county, and governed by 
 a high constable or bailiff. Hundreds were originally so called because 
 each consisted of a hundred families of freeholders, or ten tithings. 
 Each hundred formerly had its Court (see Hundred Court), but they have 
 fallen into disuse. 6 
 
 As to the Hundred of St. Briavel's, see Gale. 
 
 § 2. The status of a hundredor or freeholder of a hundred is now one 
 of little importance. Under 7 & 8 Geo. 4 (which consolidated the law on 
 the subject), if damage is done to buildings or erections by "persons 
 riotously and tumultuously assembled together" the inhabitants of the 
 
 1 May's Pari. Pr. 6 et seq. 5 Steph. Comm. iv. 351. 
 
 3 lUd. 53. 6 Bl. Comm. i. 116; Steph. Comm. i. 
 
 3 Stat. 24 & 25 Vict. u. 96, ss. 55, 56. 126. 
 
 4 Bl. Comm. iv. 293. 
 
412 Hundred Court law dictionary. Hypothecation 
 
 hundred, or district in the nature of a hundred in which the offence was 
 committed, are liable to yield full compensation to the person damnified. 
 The constable represents the hundred in the proceedings to recover the 
 damages, which resemble those in an ordinary action, except that exe- 
 cution is levied by the sheriff making a warrant on the treasurer of the 
 county, directing him to pay the amount to the plaintiff. A summary 
 mode of proceeding is given for cases where the damage does not exceed 
 
 30/. 1 
 
 § 3. Formerly the jurors in an action were taken from the neighbour- 
 hood of the vill or place where the cause of action was laid in the 
 declaration, and some of them were obliged to be returned from the 
 hundred in which the vill lay ; if none were returned, the array might be 
 challenged for defect of hundredors ; 2 this rule was abolished by stats. 
 24 Geo. 2, c. 16, s. 13, and 6 Geo. 4, c. 50, s. 13. 
 
 See Challenge ; Wapentake. 
 
 HUNDRED COURT is only a larger Court Baron (q. v.), being 
 held for all the inhabitants of a particular hundred (q. v.) instead of a 
 manor. 3 Hundred Courts are now seldom held. (See Salford Hundred 
 Court of Record.) 
 
 HUSBAND AND WIFE.— The law of husband and wife deals 
 with the following matters : — 
 
 (1.) The pre-requisites and formalities of marriage, as to which see 
 Affinity ; Consanguinity ; Domicile ; Licence ; Marriage. 
 
 (2.) The effect of the marriage on the rights and duties of the parties, 
 as to which see Curtesy; Dower; Fraud, §12; Freebench; Marriage ; 
 Necessaries. 
 
 (3.) Marriage settlements : see Settlement ; Equity to a Settlement. 
 
 (4.) Protection orders and separation deeds (q. v.). 
 
 (5.) Restitution of conjugal rights, judicial separation, and divorce 
 
 Ship. HYPOTHECATION. — § 1. In its proper sense, hypothecation is 
 
 where a ship, or her freight or cargo, or all three, are made liable for the 
 payment of money borrowed by the master. It is of two kinds, — bottomry 
 and respondentia {q. ».). 4 
 
 Property. § 2. In modern times attempts have been made to introduce "hypothe- 
 
 cation " from the Roman law, as a general term equivalent to " charge," 
 the proper English term. In this use of the word, to hypothecate pro- 
 perty is to charge it with the payment of a sum df money or the perform- 
 ance of an obligation, giving the person in whose favour it exists neither 
 the right to the possession of the property, nor the right to sell it, but 
 
 1 Smith's Action, 346. 4 Fisher on Mortgage, 7, 77 et seq. ; 
 
 3 Bl. Comm. iii. 359 ; Co. Litt. 157 a. Maude & Pollock, Merch. Shipp. 433; 
 
 3 2 Inst. 71; Steph. Comm. iii. 281; Williams & Bruce's Admiralty, 31. 
 County Courts Act, 1867, s. 28. 
 
I- O. U. LAW DICTIONARY. Idiocy 4 *3 
 
 merely the right of realization by judicial process, in case of nonpayment 
 or nonperformance at the proper time. 1 
 See Pledge. 
 
 Etymology.] — Latin, kypotkeca ; Greek, imf)r,xa, from im, under; Tifliyti, to place. 
 For a history of the Latin hypotheca, see Markby's Elements of Law, § 507 ; Kuntze, 
 Cursus, § 555. 
 
 I. 
 
 I. O. U. — An I. 0. U. is an acknowledgment of a debt in this form: — 
 
 London, 1st January, 1878. 
 Mr. William Smith. 
 
 I. 0. U. one hundred pounds. 
 £*<*>• John Aikin. 
 
 It need not however be addressed to the creditor by name. If an I. O. U. 
 contains an agreement to pay, it becomes either an agreement or a pro- 
 missory note, and must be stamped accordingly. 2 
 
 IDENTIFICATION— IDENTITY.— To identify a person or thing 
 is to show that he or it is the person or thing in question. Thus, on an 
 inquest or trial for murder, the first thing is to identify the deceased, that 
 is, prove who he was. So in investigating the title of land, the purchaser, 
 in the absence of a stipulation to the contrary, is entitled to proof of the 
 identity of the land described in the title deeds, with that which he has 
 contracted to purchase. 3 
 
 IDIOCY— IDIOT.— According to the old lawyers, an idiot or fool 
 natural is a person who from his birth, by a perpetual or incurable 
 infirmity, is of unsound mind. 1 By the Statute De Prerogative Regis (17 
 Edw. z, c. 9), the king shall have the custody of the land of natural fools, 
 taking the profits of them without waste or destruction, and shall find 
 them their necessaries ; and after their death he shall render the lands to 
 their right heirs. This prerogative was never favoured at law, 6 and is now 
 never exercised, the procedure by inquiry in lunacy having made it unne- 
 cessary. At the present day idiocy is considered as a species of insanity 
 or lunacy. (See Insanity; Lunacy; Mute; Non Compos Mentis.) 
 
 1 Fisher, 1. c, where the term is also on Personation. 
 
 made to include equitable assignments of 4 Co. Litt. 247 a ; 4 Co. 124 b; Pope on 
 
 debts, &c. Lunacy, 12 ; Maudsley on Mental Disease, 
 
 2 Byles on Bills, 28. 66. 
 
 3 As to identity generally, see Moriarty 5 Pope on Lunacy, 25. 
 
414 Ignoramus LAW dictionary. Immorality 
 
 IGNORAMUS, "We know nothing of it," was the indorsement for- 
 merly made on a bill of indictment by a grand jury when they thought the 
 charge not sustained by the evidence. They now indorse "Not a true bill," 
 or "Not found." 1 (See Indictment!) 
 
 IGNORE.— A grand jury are said to ignore a bill of indictment when 
 they think the charge not sustained by the evidence. (See Indictment ; 
 Jury!) 
 
 IGNORANCE OF FACT OR LAW. See Mistake. 
 
 ILLEGAL. — § i. An act is illegal when it is one which the law di- 
 rectly forbids, as to commit a murder, to obstruct a highway, to sell a loaf 
 otherwise than by weight. 2 The illegality of an act is not only of impor- 
 tance as subjecting the doer to the penalties imposed for disobedience of 
 the law, but also because the act is not recognized by law as capable of 
 creating any right, except as a remedy for any injury caused by it. Thus, 
 if A. agrees with B. to pay him 50/. for the publication of a libel, or the 
 like, the contract is void. 3 But an act is not illegal in the strict sense 
 simply because it is not recognized by the law as capable of giving rise to 
 rights. Thus a contract made ultra vires is void, but not illegal. 4 
 
 § 2. Illegal is also used (1) in the same sense as unlawful 5 (q.v.); (2) in 
 the same sense as void; 6 but it is convenient to keep the ideas distinct. 
 
 See Condition, § 10; Consideration, § 8; Immorality. 
 
 ILLEGITIMACY. See Bastard; Child, § 2; Legitimacy. 
 ILLUSORY. See Appointment, % 4. 
 
 IMMORALITY 7 is of importance in law, because no party to a trans- 
 action founded on immorality can invoke the assistance of a Court of law 
 in enforcing, nor (except in a few cases) in setting it aside. Thus, a con- 
 tract for an immoral purpose or for an immoral consideration is void ; but 
 a party to an immoral contract or conveyance cannot, as a general rule, 
 have it set aside. 8 
 
 § 2. Almost the only kind of immorality having this vitiating effect is 
 that consisting in illicit cohabitation. Thus an agreement providing for 
 or tending to illicit cohabitation is void." 
 
 See also Indecency; Policy. 
 
 1 Sfeph. Comm. iv. 367. it is ethically wrong, as that, according 
 
 2 Pollock on Contract, 218; Collins v. to the common understanding of reasonable 
 Blantern, Smith, L. C. i. 369. men, it would be a scandal for a Court of 
 
 3 Ibid. 250 ; StocMale v. Onwhyn, 5 B. justice to treat it as lawful or indifferent, 
 
 6 C. 173. See In re South Wales, &c. though the transaction may not come 
 Co., 2 Ch. D. 763. within any positive prohibition or penalty." 
 
 4 Ashbury, &*c. Co. v. Riche, L. R., Pollock on Contract, 242. 
 
 7 H. L. at p. 672. 8 Ayerst v. Jenkins, L. R., 16 Eq. 275 ; 
 
 5 See Chitty on Contracts, 607 et seq. Batty v. Chester, 5 Beav. 103, cited in 
 
 6 S. C, L. R. 9 Ex. 262, corrected by Pollock on Contract, 244. 
 
 Lord Cairns, L. R., 7 H. L. at p. 673. ° Pollock, 243 et seq. ; Chitty on Con- 
 
 7 "When we call a thing immoral in a tracts, 611 et seq. 
 legal sense, we do not mean so much that 
 
Impanel LAW DICTIONARY. Implication 415 
 
 IMPANEL. — A jury is said to be impanelled when the sheriff has 
 entered their names in the panel 1 (q. v.). 
 
 IMPEACHMENT is a complaint or accusation against a person for 
 a great public offence, especially against a minister of the crown for 
 malversation or treason. The House of Commons first find the crime, 
 and then as prosecutors support their charge before the House of Lords, 
 who try and adjudicate upon it. The charge is contained in articles of 
 impeachment, to which the accused makes answers, and so on ; the 
 commons appoint managers to conduct the proceeding on their behalf. 2 
 (See Lord High Steward.) 
 
 IMPEACHMENT OF WASTE.— Where an estate for life is given 
 to a person " without impeachment of waste," he may cut down trees on 
 the land and convert them to his own use, 3 and open mines, &c. ; but he 
 may not pull down the family mansion, or fell ornamental timber, 
 or commit any other acts of the kind known as equitable waste. 4 (See 
 Waste.) 
 
 IMPERATIVE. See Directory/ 
 
 IMPERTINENCE.— Under the old rules of chancery pleading, 
 impertinence consisted in the introduction of long and unnecessary or 
 immaterial allegations into a bill. The plaintiff was liable to pay the 
 costs occasioned thereby. A similar rule still prevails. 6 (See Scandal.) 
 
 IMPLICATION— IMPLIED.— I. § 1. An intention, or an act 
 evidencing intention (such as a promise, request, devise, gift, offer, &c), 
 is said to be implied when it does not really exist, but is presumed to 
 exist ; that is, the same legal effect is produced as if did exist. Thus, 
 when a person goes to an inn with goods, and is taken in by the inn- 
 keeper, the law implies a promise by the innkeeper to keep his guest's 
 goods safely, subject to certain exceptions, although the innkeeper may 
 have had no such intention. 7 Such a promise is sometimes said to be 
 " implied in law " (or to exist in implication of law) in order to dis- 
 tinguish it from implication in the wider sense of the word {infra, § z). 
 
 II, § 2. Implication is also used in the sense of inference, that is, 
 where the existence of an intention is inferred from acts not done for the 
 sole purpose of communicating it, but for some other purpose. 8 (See 
 Express.) Thus, if a person orders goods to be sent to him, he impliedly 
 promises to pay for them. Such a promise is more correctly called a 
 tacit promise, to distinguish it from an express promise. So where a Estate by 
 testator gives property to one person in such terms as to show that he lm P hcatl0n - 
 meant to give some interest in it to another, the latter takes an interest 
 
 1 Co. Litt. 158 b. 5 Daniell's Ch. Pr. 291. 
 
 2 May, Pari. Pr. 55, 680; Homersham 6 Rules of Court, xix. 2. 
 Cox, Inst. 470 ; Steph. Comm. iv. 299. 7 Pollock on Contract, 28. 
 
 3 Co. Litt. 220 a. 8 Savigny, Syst. iii. 242. 
 1 "Williams, R. P. 25. 
 
4i6 
 
 Implication 
 
 LAW DICTIONARY. 
 
 Impossibility 
 
 Physical : 
 
 absolute, 
 
 relative, or in 
 fact, 
 
 practical. 
 
 Legal or 
 
 juridical. 
 
 Logical. 
 
 Original. 
 
 Subsequent. 
 
 Whether 
 created by 
 promisor, 
 promisee, &c. 
 
 by implication. Thus, if a testator gives personal property to A. after 
 the death of B., without giving anything to B. expressly, then B. takes a 
 life interest in the property by implication. 1 
 
 § 3. "Implied" is sometimes applied in both the above senses to the 
 same subject-matter. See Contract; Covenant; Trust; Warranty; also 
 Constructive; Express; Tacit; Quasi-Contract. 
 
 IMPOSSIBILITY.— § 1. The question whether an act is possible is 
 of importance in law with reference to the performance of conditions and 
 agreements. (See Performance!) 
 
 I. With reference to the nature of the act required, an impossibility is 
 either physical, legal or logical. 
 
 § 2. An act is physically impossible when it is contrary to the course of 
 nature. Such an impossibility may be either absolute, that is, impos- 
 sible in any case {e. g., for A. to reach the moon), or relative (sometimes 
 called impossibility in fact), that is, arising from the circumstances of the 
 case, e.g., for A. to rhake a payment to B., he being a deceased person. 3 
 § 3. To the latter class belongs what is sometimes called practical im- 
 possibility, which exists when the act can be done, but only at an excessive 
 or unreasonable cost. Thus, when a ship is so injured that it is not worth 
 while repairing her, the same effect with respect to the liability of the in- 
 surer is produced as if it were physically as well as practically impossible 
 to repair her. 3 (See Loss.) 
 
 § 4. An act is legally or juridically impossible when a rule of law makes 
 it impossible to do it, e.g., for A. to make a valid will before his majority. 
 This class of acts must not be confounded with those which are possible, 
 although forbidden by law, as to commit a theft.* (See Illegal; Un- 
 lawful.) 
 
 § 5. An act is logically impossible when it is contrary to the nature of 
 the transaction, as where A. gives property to B. expressly for his own 
 benefit, on condition that he transfers it to C. 5 (See Repugnancy.) 
 
 II. § 6. With reference to the time when the impossibility first exists, 
 the act may be either originally impossible (ab initio), or become impos- 
 sible by matter subsequent (ex postfacto). Thus, if A. contracts with B. 
 to pay money into the hands of C, and C. was dead at the time the 
 contract was entered into, then the payment was originally impossible ; 
 if C. was alive at the time, but dies before the payment, it becomes 
 impossible by matter subsequent. § 7. The latter class are again divisible 
 according as the performance of the act required is rendered impossible 
 by the person creating the requirement, by the person for whose benefit 
 the act was to be done, by the person required to do it, by a stranger, 
 such as the Queen's enemies (q. v.), by the act of God (q. v.), by a change 
 in the law, &c 6 
 
 1 Watson's Comp. Equity, 1271. See 
 Sweeting v. Prideaux, 2 Ch. D. 413. 
 
 2 Savigny, Syst. iii. 157, 164; Pollock 
 on Contract, 330. 
 
 3 Leake on Contracts (2nd edit.) 682; 
 Pollock on Contract, 326 ; Jones v. St. 
 
 John's College, L. R., 6 Q. B. 115. 
 
 4 Savigny, iii. 169. 
 
 6 Ibid. 159 ; Pollock, 322, 326. 
 
 6 Leake, 692 et seq. ; Pollock, 330 et 
 seq. ; Baily v. De Crespigny, L. R., 4 Q. 
 B. 180, and the cases there cited. 
 
Impound LAW DICTIONARY. Imprest-Money 417 
 
 § 8. These divisions are important with reference to the effect of non- Effect of im- 
 performance of the impossible act. Thus a contract for the performance possl * : y " 
 of an act which every reasonable person must know to be impossible (as 
 to make a flying machine and fly to the moon with it) is void, 1 and an 
 impossible consideration is no consideration. 3 On the other hand, if a 
 person contracts to do an act which is only impossible from circumstances 
 (as to build a house in a week, all the workmen in the building- trade 
 being on strike, or to pay money when he has none), the impossibility 
 does not excuse his non-performance except in special cases. {ante, § $)? 
 Again, if the act becomes impossible by the act or default of the promisor, 
 not only does this not excuse him, but it operates as a breach of his 
 contract, although the time for performance may not have arrived ; 4 while 
 if it becomes impossible by the act of the person for whose benefit it 
 was to be done, the promisor is discharged from performance. All these 
 rules, however, are subject to the intention appearing from the whole 
 transaction. 5 (See Condition, §§ 8, 10.) 
 
 IMPOUND. — In its literal sense, to impound is to put distrained 
 cattle or other goods in a pound (q. v.), and as this is done to keep them 
 as security, the term is also applied to cases where a document, money or 
 other property is set apart to be kept in safety until some condition is 
 fulfilled or some question is decided. 6 
 
 IMPRESSMENT is a power possessed by the crown of taking 
 persons or property to aid in the defence of the country with or without 
 the consent of the persons concerned. It is usually exercised to obtain 
 hands for the Queen's ships in time of war by taking seamen engaged in 
 merchant vessels, 7 but in former times impressment of merchant ships 
 was also practised. 3 The Admiralty issues protections against impress- 
 ment in certain cases, either under statutes passed in favour of certain 
 callings {e. g., persons employed in the Greenland fisheries) or voluntarily. 9 
 
 § 2. Under the Army Discipline Act, 1 879, power is given of impressing 
 carriages, animals and drivers required for moving military baggage and 
 stores. 
 
 IMPREST-MONEY is money imprested or advanced by the crown 
 for the purpose of being employed for its use. 10 The term is not wholly 
 obsolete. 11 
 
 1 See Leake, 686 ; Clifford v. Watts, 6 See In re Westbourne Grove Drapery 
 
 L. R., 5 C. P. 577 ; Pollock, 324; Savigny, Co., 5 Ch. D. 248. 
 
 iii_ j6 2 . 7 Bl. Comm. i. 420 ; Maude & Pollock, 
 
 * Chitty on Contracts, 44. Merch. Shipp. 123. 
 
 3 Thorn v. Mayor of London, L. R., s Maude & Pollock, Merch. Shipp. 123, 
 
 9 Ex. 163, 10 Ex. 112; 1 App. Ca. 120; note(r). 
 
 Thomborow v. Whitacre, 2 Ld. Raym. 9 Ibid. 124, 125. 
 
 1 164; Pollock, 330. 10 Manning's Exchequer, if; 13 Eliz. 
 
 * Pollock, 345. c. 4 ; 1 Mad. Exch. c. 10, Z. 13, p. 387 ; 
 6 See also Savigny, Oblig. i. 381 et seq. 6 Price, 424 a. 
 
 and with reference to legacies, &c, "Wat- " See the Public Revenues Acts of New 
 
 son's Equity, 1233. Zealand, 1872, 1873. 
 
 s. £E 
 
4i8 
 
 Imprisonment 
 
 -LAW DICTIONARY. 
 
 Improvement 
 
 Criminal law. IMPRISONMENT, as a punishment, consists in the detention of 
 an offender in prison and in his subjection to the discipline appointed 
 for prisoners during the period expressed in the sentence. It is of three 
 kinds, imprisonment with hard labour, imprisonment without hard labour 
 (in either case with or without solitary confinement), and imprisonment 
 " as a misdemeanant of the first division." In the latter case the offender 
 is not deemed to be a criminal prisoner ; he is permitted to procure or 
 receive food, wine, clothing, &c, and to follow his trade or profession, 
 subject to certain restrictions. 1 (See Penal Servitude.) 
 
 For debt. § 2. Imprisonment is also in some rare cases a mode of executing a 
 
 judgment for payment of a sum of money exceeding 20/. For this pur- 
 pose the plaintiff issues a writ of capias ad satisfaciendum (q. v.). When 
 the defendant is once arrested the judgment cannot be enforced against 
 the defendant's property, and when he is discharged the debt is satisfied. 
 (See Del tors Act.) 
 
 Disability. § 3. Formerly imprisonment was a disability, in certain cases, which 
 
 prevented the Statutes of Limitation from running against the person 
 imprisoned, but this is no longer so. 3 
 
 IMPROPRIATION — IMPROPRIATOR. — Impropriation is 
 where a rectory or tithes belong to a lay person called the impropriator. 
 In the case of a rectory, the impropriator or lay rector is bound to provide 
 for the cure of souls by appointing either a vicar or a perpetual curate. 3 
 (See Appropriation, § 7.) 
 
 Etymology.] — Said to be derived from the Latin in j>roprietatem, because the living 
 is held as a lay property. 4 
 
 IMPROVEMENT OF LAND ACTS.— By the Improvement of 
 Land Act, 1864, any person in the possession or receipt of the rents or 
 profits of land (not being a tenant under an unrenewable lease for life or 
 years) may, with the sanction of the Enclosure Commissioners, borrow or 
 advance money for the execution of certain improvements on the land, 
 and obtain an order charging the amount, with interest, on the inheritance 
 or fee of the land. The amount constitutes a rent-charge payable half- 
 yearly over the period of years fixed by the order, in respect of principal 
 and interest combined. The improvements authorized by the act include 
 works of drainage, irrigation, embankment, reclamation, clearing and 
 planting of land, and the construction of roads, farm and agricultural 
 buildings, jetties, &c. The Limited Owners Residences Acts, 1870 and 
 1871, added to this list of improvements the erection of a mansion-house, 
 with the usual and necessary outbuildings, &c, and the Limited Owners 
 Reservoirs and Water Supply Further Facilities Act, 1877, added to it the 
 construction or erection of reservoirs or other permanent works for the 
 supply of water. 
 
 1 Stephen, Crim. Dig. 2 et seq. ; Russell 
 on Crimes, i. 78 et seq. ; stat. 28 & 29 Vict. 
 c. 126. 
 
 2 Stat. 19 & 20 Vict. c. 97, s. 10 ; Shel- 
 
 ford, R. P. Stat. 187, 293. 
 
 3 Bl. Comm. i. 386; Phillimore, Eccl. 
 Law, 276. 
 
 4 Phillimore, Eccl. Law, 275. 
 
In Camerd LAW DICTIONARY. In Forma Pauperis 419 
 
 IN CAMERA. — A case is said to be heard in camera when the judge 
 either hears it in his private room, or causes the doors of the Court to be 
 closed, and all persons, except those concerned in the case, to be ex- 
 cluded. This is done where it is in the public interest that the facts of 
 the case should not be published, especially in divorce cases, but it is not 
 clear whether the Court can do so as a matter of course in any case. 1 
 
 IN CAPITE, IN CHIEF, or EN CHEF, originally meant " directly," 
 " immediately," sine medio, sans mesne? Hence "tenure in capite" primarily means 
 the tenure of very lord and very tenant (q. v.), or the relation between a tenant and his 
 immediate feudal superior, as opposed to a mesne tenure 3 (see Mesne) ; but the phrase 
 was always applied especially to land held directly of the crown, 4 and at the present day 
 it is used exclusively in that sense. (See Tenure.) § 2. Tenure in capite, however, even 
 when confined to the crown, is an ambiguous expression. Formerly land might be 
 held directly of the king in three manners. First, it might have been originally granted 
 to the tenant by the king in his capacity of king or lord paramount ; this was called 
 tenure ut de corona; secondly, an honor, castle or manor held by a private person 
 might come into the hands of the crown (e.g. by escheat), so that the persons holding 
 lands of the honor became tenants of the king in his capacity of lord of the honor: this 
 was called tenure ut de honore; thirdly, if A. held land of B., a private person, in gross, 
 and B.'s seignory escheated to the crown, then A. became tenant of the king, not in his 
 capacity of king, but as if he were an ordinary mesne lord : this was called tenure ut de 
 personS. These distinctions were formerly important, for tenure ut de corona 1 involved 
 many burthensome incidents which tenants of the king by tenure ut de honore and ut de 
 person^ were free from, because they did not become tenants of the long by their own 
 free will. (See Livery.) Originally each of these tenures was called a tenure in capite, 
 but about Henry VIII. 's reign the term in capite ceased to be applied to tenure ut de 
 honore and ut de person^, 5 and became appropriated to tenure in capite ut de coronS, 
 and it is this tenure to which the act 12 Car. 2 refers when it abolishes tenure in capite. 
 At the present day, therefore, there is no distinction between tenures of the crown. 6 
 
 IN FORMA PAUPERIS.— Under the statutes n Hen. 7, c. 12, 
 and 23 Hen. 8, c. 15, s. 3, every poor person desirous of bringing an 
 action who can swear that he has not property worth 5/., except his wear- 
 ing apparel and the subject-matter of the intended action, is to be 
 allowed to bring his action without payment of the Court fees, and is to 
 have an attorney and counsel assigned to him who act for him without 
 payment. 7 The practice of the Common Law Courts, under these acts, 
 was adopted by the Courts of Equity, and was extended by them to the 
 case of defendants. 8 It would, therefore, appear that the rule as thus 
 extended is the practice of the High Court. (See Dispauper; Dives.) 
 
 1 See Nagle Gillman v. Christopher, 4 e See Co. Litt. 77 a, 108 a, and Har- 
 
 Ch. D. 173. grave's notes. Mr. Madox's remarks on 
 
 s Madox, Bar. Ang. 164. this subject are singularly narrow-minded. 
 
 3 Britton, 100 a. 7 Smith's Action, 96; Chitty'sPr. 1289. 
 
 * Co. Litt. 108 a; Wright's Tenures, 161. As to the mode of obtaining leave, see 
 
 6 So where the king was lord of an ancient Coe's Pr. 170. 
 
 borough, the tenants in burgage were not _ 9 Daniell's Ch. Pr. 38. As to the prac- 
 
 called tenants in socage in capite (Co. Litt. tice in divorce cases,'see Browne on Divorce, 
 
 77 al. 249, and in criminal cases, Archbold Cr. 
 
 PI. 150. 
 
 33 E 2 
 
420 In Gross LAW dictionary. In Personam 
 
 IN GROSS, as applied to a right, means that it is not appendant, 
 appurtenant, or otherwise annexed to land. Thus, if A. grants to B. the 
 right of feeding a certain number of cattle on his (A.'s) lands, B. has a 
 common of pasture in gross. 1 (See Common, § 9 ; Easement, % 1, note (4); 
 Profit) 
 
 § 2. In the old books, money payable by a mortgagor of land is said to be 
 in gross, as opposed to a rent issuing out of the land : and hence a mort- 
 gagor must tender the money to the person of the mortgagee, while it is 
 sufficient to tender rent on the land itself. 3 
 
 As to powers in gross, see Power. 
 
 IN LOCO PARENTIS.— § 1. A person is said to be in loco parentis 
 towards an infant when he assumes towards the latter the moral obligation 
 of making such a provision for him as his father would in duty be bound 
 to make. The assumption of the character may be, and generally is, 
 implied from the acts of the person putting himself in loco parentis, as 
 where he pays for the maintenance and education of the infant or esta- 
 blishes him in life. 3 The fact that the father of the child is living does 
 not prevent another person putting himself in loco parentis, but if the 
 child resides with the father and is maintained by him it affords an infer- 
 ence, though not a conclusive one, against the assumption of the character 
 by another person. 4 
 
 § 2. A person in loco parentis is for many purposes treated as if he 
 were the parent of the infant. Therefore the presumption in favour of 
 advancement (as to which see Advancement, § 4), and the presumption 
 in favour of maintenance out of a contingent or deferred portion, apply 
 to such persons. 5 
 
 IN PAIS, as applied to a legal transaction, primarily means that it 
 has taken place without legal proceedings. Thus a widow was said to 
 make a request in pais for her dower when she simply applied to the heir 
 without issuing a writ. 6 So conveyances are divided into those by matter of 
 record and those by matter in pais (see Conveyances)? § 2. In some cases, 
 however, " matters in pais" are opposed not only to " matters of record," 
 but also to "matters in writing," that is, deeds, as where estoppel by deed 
 is distinguished from estoppel by matter in pais. 8 (See Estoppel, §§ 3, 4.) 
 
 Etymology.] — Pais means "country." It is not clear whether the phrase originally 
 signified that the transaction in question took place on the spot, as in the case of a 
 feoffment, which required livery of seisin on the land itself, or whether it denoted any 
 place not being a Court. See Country. 
 
 Roman law. IN PERSONAM— IN REM.— I. § 1. In the Roman law, from 
 which they are taken, the expressions in rem and in personam were always 
 
 1 Elton, Common, 76; Co. Lift. 122 a. 5 Simpson, 176, 246. 
 
 3 Co. Litt. 210 a; Lilt. § 341. « Co. Litt. 32 b. 
 
 J Powysv. Mansfield, 3 My. & C. 359; ' See also a similar distinction between 
 
 Simpson on Infants, 250. forfeitures in Co. Litt. 251 a. 
 
 4 Simpson, 252. 8 Ibid. 352 a. 
 
In Personam law dictionary. In Ventre sa Mere 421 
 
 opposed to one another, an act or proceeding in personam being one done 
 or directed against or with reference to a specific person, while an act or 
 proceeding in rem was one done or directed with reference to no specific 
 person, and consequently against or with reference to all whom it might 
 concern, or "all the world." 1 The phrases were especially applied to 
 actions, an actio in personam being the remedy where a claim against a 
 specific person arose out of an obligation, whether ex contractu or ex / 
 maleficio, while an actio in rem was one brought for the assertion of a 
 right of property, easement, status, &c, against one who denied or 
 infringed it. 3 r 
 
 II. § 2. From this use of the terms they have come to be applied to Rights, 
 signify the antithesis of "available against a particular person" and 
 
 " available against the world at large." Thus, Jura in personam are rights 
 primarily available against specific persons, jura in rem rights ,only 
 available against the world at large. (See Right.) § 3. So a judgment Judgments. 
 or decree is said to be in rem when it binds third persons ; such is the 
 sentence of a Court of Admiralty on a question of prize, or a decree of 
 nullity or dissolution of marriage 3 {see Judgment), or a decree of a Court 
 in a foreign country as to the status of a person domiciled there. 4 
 
 III. § 4. Lastly, the terms are sometimes used to signify that a judicial Proceedings, 
 proceeding operates on a thing or a person. Thus it used to be said of 
 
 the Court of Chancery that it acted in personam and not in rem, meaning 
 that its decrees operated by compelling defendants to do what they were 
 ordered to do, and not by producing the effect directly. Hence the 
 Court had (and therefore the High Court now has) jurisdiction to deal 
 with a question affecting land situate in a foreign country, if the question 
 can be settled by enforcing the decree or order against a person within 
 the jurisdiction. 5 § 5. It is in this sense that admiralty actions are Admiralty- 
 divided into actions in rem and in personam, an action in rem being one actlons - 
 in which the ship or other property out of which the cause of action 
 arises (the res) is arrested as security for the performance of an obligation, 
 while in an action in personam the performance of the obligation can 
 only be enforced against the defendant personally. 6 (See Action, § 11 ; 
 Information, §11.) 
 
 IN VENTRE SA MERE. 7 — § 1. An unborn child, or infant eh Civil law. 
 ventre sa mere, is for many purposes supposed to be born. It may take 
 property by will or grant, and may have a guardian assigned ; and if an 
 
 1 Savigny, Syst. v. 24, n. (a), citing has gone so far as to foreclose a mort- 
 
 Dig. ii. 14, fr. 7, § 8, fr. 57, § 1 ; xxxix. 1, gagor's equity of redemption in land situate 
 
 fr. 10 ; iv. 2, fr. 9, § I. abroad ; Paget v. Ede, L. R., 18 Eq. 118. 
 
 3 Just. Inst. iv. 6, § I ; Gaius, iv. I ; See also Brinsmead v. Harrison (L. R., 6 
 
 Savigny, v. 13 et sea.; Vangerow, Pand. C. P. at p. 588), deciding that an action of 
 
 § 113. trover is not a proceeding in rem. 
 
 3 Smith's L. C. ii. 699 ; Castrique v. 6 See The Ckarkieh, L. R., 4 A. & E. 
 Imrie, L. R., 4 H. L. 414. 59- 
 
 4 Doglioni v. Crispin, L. R., 1 H. L. ' The proper term is en -ventre sa mere 
 301. (Co. Litt. 390 a), but the title was over- 
 
 5 Penn v. Lord Baltimore, I Ves. 444 ; looked in its proper place, at page 310, 
 White & Tudor's L. C. ii. 837. The Court until after that page was in type. 
 
42: 
 
 Inadequacy 
 
 LAW DICTIONARY. 
 
 Inclosure * 
 
 Criminal law. 
 
 estate is limited to A. for life and after his death to his eldest son, and A. 
 dies leaving his wife enceinte of a son, the posthumous son will take the 
 estate, notwithstanding the rules as to contingent remainders. 1 (See also 
 Gestation!) 
 
 § 2. If means be used to kill a child in the womb, and the child is 
 born alive and afterwards dies by reason of the means so used, this is 
 murder. 3 As to procuring abortion, see Miscarriage. 
 
 INADEQUACY of consideration for a contract, conveyance, or the 
 like, does not affect the validity of the transaction, except as supporting 
 a charge of fraud, undue influence or the like. (See Consideration, § i ; 
 Expectant Heir ; Fraud; Reversion.) 
 
 INCAPABLE — INCAPACITY.— Incapacity is the opposite of 
 " capacity" (q. v.), and therefore equivalent to disability (q. v.). 
 
 INCENDIARISM. See Arson. 
 
 Tenure. 
 
 INCIDENT is "a thing appertaining to or following another." 3 
 Thus, fealty is incident to every tenure, and cannot be separated from it ; 
 so a rent may "be incident to a reversion, though it may be separated 
 from it, that is, the one may be conveyed without the other. Hence 
 incidents are divisible into separable and inseparable. 4 
 
 § 2. Formerly, every tenure had one or more of the following incidents, 
 most of which no longer exist ; namely, fealty, homage and other ser- 
 vices, aids, reliefs, primer seisin, wardship, marriage, fines, escheat, for- 
 feiture, and heriots (see the various titles). 
 
 INCIPITUR, in the old common law practice, was a copy on plain paper of the 
 first words of a proceeding in an action. Thus, in entering a judgment for the purpose 
 of issuing execution, it was sufficient to enter an incipitur, that is, the commencement of 
 the proceedings, instead of the whole. 5 
 
 INCITE— INCITEMENT.— Every one who incites any person to 
 commit a crime is guilty of a misdemeanor, whether the crime is com- 
 mitted or not. 6 
 
 INCLOSURE— INCLOSURE COMMISSIONERS.— § i. In- 
 closure is the act of freeing land from rights of common, commonable 
 rights, and generally all rights which obstruct cultivation and the pro- 
 ductive employment of labour on the soil, 7 by vesting it in some person 
 as absolute owner. 
 
 1 Steph. Comm.i. 139; Williams' R. P. 
 272. 
 
 2 Steph. Comm. i. 140. 
 s Co. Litt. 151 b. 
 
 1 Ibid. 93 a. 
 
 5 Common Law Proc. Act, 1852, s. 206. 
 
 6 Stephen, Crim. Dig. 29. 
 
 ' See General Inclosure Act, 1845, 
 preamble ; Cooke, Incl. 162, n. ; Elton, 
 Comm. 27 ; Steph. Comm. i. 655 ; and see 
 Common ; Commonable. 
 
Acts. 
 
 Income Tax law dictionary. Inconsistency 423 
 
 § 2. Inclosure may be effected in three manners : — 
 
 (1) In the case of manorial wastes (a) by the lord of the manor alone Approve- 
 under his right of approvement {q. v.) ; (b) by the lord under a special ment- 
 custom enabling him, with the consent of the homage, to grant parcels of Customary 
 the waste, to be held of him by copy of court-roll; 1 (c) by the tenants 
 themselves under various special customs 2 (see Intakes) ; (d) by encroach- 
 ments, or unauthorized inclosures legalized by lapse of time. 3 
 
 (2) By agreement between the commoners and the owner of the soil. By agreement. 
 
 (3) By act of parliament. § 3. Formerly every statutory inclosure was By act of 
 effected by a private act appointing a commissioner and authorizing him P aruament - 
 to parcel out the land among the persons interested (the commoners and 
 
 the owners of the soil); but since the passing of the General Inclosure Act, General 
 1 845, inclosures are now generally effected by permanent commissioners 
 called the Inclosure Commissioners, who inquire into the expediency of 
 proposed inclosures ; if they approve of a proposed inclosure, they make 
 a provisional order setting forth the manner in which it is to be carried 
 out, and, if parliament thinks fit, a general act authorizing the inclosures 
 so recommended, or some of them, is passed ; 4 each inclosure is then 
 carried out by a valuer. 4 (See Allot, § 2.) 
 
 §4. By the Commons Acts, 1876 and 1879, the powers of the Inclo- Commons 
 sure Commissioners are extended to cases where it is desirable to regu- 
 late, improve, stint and otherwise deal with commons, without wholly 
 enclosing and allotting them in severalty ; thus they may provide for the 
 drainage or levelling of a common, the planting of trees on it, and its 
 general management. 
 
 II. § 5. Formerly whenever a person entitled to a rent was prevented by gates or 
 other erections from coming on the land to demand or distrain for it, this was called 
 enclosure, and operated as a disseisin of the rent. 6 (See Disseisin.) The term is now 
 obsolete. 
 
 INCOME TAX is a tax on the yearly profits arising from property, 
 professions, trades, and offices. 7 In the case of land, the tenant or occu- 
 pier is primarily liable to pay the tax, but he is entitled to deduct a pro- 
 portionate part from his rent, and he cannot by any agreement with his 
 landlord deprive himself of this right. 8 
 
 INCOMPETENCY— INCOMPETENT. See Competence; Capa- 
 city; Disability. 
 
 INCONSISTENCY. — § 1. In construing deeds and wills, the first 
 rule is that every part of the instrument may, if possible, take effect, and 
 none be rejected. If, however, this cannot be done on account of an, 
 inconsistency, then the rules differ according as the instrument is a deed 
 or a will. In a deed, if two clauses or parts be repugnant, the first part 
 
 1 Elton, 255. 5 Cooke, Incl. Ch. vii. 
 
 2 Ibid. 277. 6 Litt. §§ 237—239; Co. Litt. 161 a. 
 * Cooke, 89. 7 Steph. Comm. ii. 573. 
 4 Of late years no general inclosure acts 8 Stat. 5 & 6 Vict. c. 35, s. 73. 
 
 have been passed. 
 
424 
 
 Incorporation 
 
 LAW DICTIONARY. 
 
 Indemnify 
 
 Corporations. 
 
 Documents. 
 
 shall be received and the latter rejected, except there be some special 
 reason to the contrary. 1 In a will, on the other hand, the rule is that the 
 latter of two inconsistent provisions prevails ; therefore if a testator in 
 one part of his will gives a person an estate of inheritance, and in a 
 subsequent part refers to it as an estate for life, the prior gift is restricted 
 accordingly. 2 
 
 § z. Inconsistency in pleading is forbidden. 3 (See Departure?) 
 
 INCORPORATION.— I. § i. As applied to corporations, incor- 
 poration is the process of forming a corporation (q. v.). 
 
 II. § 2. As applied to acts of parliament, wills, agreements, and other 
 documents, incorporation means that one document is made to form part 
 of another by being referred to in the latter. 4 Thus almost every act of 
 parliament for the construction of a railway or other public work incor- 
 porates the provisions of the Railways Clauses Consolidation Act, or other 
 Clauses Consolidation Act (see Act of Parliament, § 5). So where a testa- 
 tor expressly refers to any deed, letter, or other document as carrying out 
 or containing his own testamentary dispositions, the document (if it 
 exists) is considered as incorporated in or forming part of the will, and is 
 included in the grant of probate accordingly. 5 
 
 INCORPOREAL HEREDITAMENTS. See Hereditaments, § 3. 
 
 INCUMBENT. See Induction. 
 
 INCUMBRANCE. See Encumbrance. 
 
 INDECENCY. — It is a misdemeanor to do any grossly indecent act 
 in any open or public place. 6 As to indecent assaults, see stats. 24 & 25 
 Vict. c. 100, ss. 52, 62 ; 43 & 44 Vict. c. 45. (See Obscenity?) 
 
 INDEMNIFY— INDEMNIFICATION.— § 1. To indemnify is to 
 make good a loss which one person has suffered in consequence of the 
 act or default of another, 7 and the operation of making good the loss is 
 called indemnification. 8 Thus, if A. fails to pay a debt which he owes to 
 B., and a surety, C, pays it, he is said to indemnify B., and B. is said to 
 obtain indemnification. So, if A. wrongfully causes a loss to B., A. is 
 liable to indemnify B. for the loss which he has sustained. 9 § 2. A pro- 
 mise to indemnify is the same thing as an indemnity or guarantie (q. v.), 
 and hence "to indemnify" sometimes signifies "to give an indemnity," 
 that is, "to promise to indemnify:" thus, a person to whom an indemnity 
 is given is said to be indemnified. (See Damnify.) 
 
 Etymology.] — Latin, in, in the sense of taking away, and damnum, loss. 
 
 1 Shepp. Touch. 87, 88 ; Bl. Comm. ii. 
 381 ; Co. Litt. 112b; Burchell v. Clark, 
 2 C. P. D. 88. 
 
 2 Jarman on Wills, ch. xv. ; Greenwood 
 v. Greenwood, 5 Ch. D. 954. 
 
 3 See Hawkesley y.Bradshaw, 5 Q. B. D. 
 302. 
 
 4 This is sometimes called "incorpora- 
 tion by reference," to distinguish it from 
 the case of one document being set out in 
 
 full in the other, which is actual incorpora- 
 tion. 
 
 5 Coote's Probate Pr. 60 ; Browne's 
 Probate Pr. 104. 
 
 6 Stephen's Clim. Dig. 104. 
 
 7 See Ferguson v. Gibson, L. R., 14 Eq. 
 
 379- 
 
 8 See 19 & 20 Vict. c. 97, s. 5. 
 
 9 Heritage v. Paine, 2 Ch. D. 594. 
 
Indemnity law dictionary. Indictment 425 
 
 INDEMNITY. — § 1. An indemnity is a collateral contract or security 
 to prevent a person from being damnified by an act or forbearance which 
 he does at the request of the indemnor. Thus, if A. agrees not to sue B. 
 for a debt during a certain period in consideration of a promise by C. to 
 repay him any loss which he may suffer from not suing B. at once, C.'s 
 promise constitutes an indemnity. 
 
 § 2. Settlements and wills usually contain a provision that the trustees Indemnity 
 shall not be liable for the acts or defaults of their co-trustees, or of any clause - 
 agent, banker, &c, but shall only be liable for what they actually receive, 
 and for their own acts and neglects. Such a clause now forms part of 
 every instrument creating a trust. 1 (See Indemnify ; Guarantee; Express; 
 Implied. 
 
 INDENT— INDENTURE.— § 1. To indent a document is to cut the 
 top of the first page or sheet in a toothed or waving line. The most usual 
 instance of this is in the case of a deed indented or indenture {infra, §2), 
 but it is also done in other cases: thus the inquisition under an elegit {q.v.) 
 is indented. 
 
 § 2. An indenture is a deed made between two or more parties, e.g., an 
 ordinary conveyance, lease, mortgage, settlement, &c. Formerly it was 
 usual when a deed was made between two parties to write two copies of it 
 on one piece of parchment or paper, and then to cut it in two in- an 
 indented or toothed line, so that each copy of the deed fitted the other 
 and could thus be identified. 2 Now a deed purporting to be an indenture 
 has the effect of an indenture, although not actually indented. 3 
 
 Indentures were formerly called bipartite, tripartite, quadripartite, &c, 
 according as they were made in two, three, or four parts : all the parts of 
 an indenture are but one deed in law. 4 
 
 See Deed ; Counterpart ; Covenant. 
 
 INDICTMENT is a written accusation of one or more persons of a 
 crime, presented on oath by a grand jury. The indictment is preferred 
 (that is, laid before) the grand jury under the technical name of a bill ; 
 the witnesses in support of the charge are then examined, and if the 
 offence appears to a majority of the jury (consisting of twelve at least) to 
 be sufficiently proved to put the offender on his trial, they indorse on the 
 indictment " true bill"; the indictment is then said to be found, and the 
 offender stands indicted and must be arraigned {q.v.). If the majority 
 think that the offence has not been sufficiently proved, they indorse " No 
 true bill" on the indictment, and the accused person is then discharged. 
 Strictly speaking, the indictment is not so called until it has been found 
 a true bill. 5 (See Presentment; Information; Inquest; fu?y; Venice; 
 Ignoramus.') 
 
 1 Stat. 22 & 23 Vict. u. 35, a. 31. are counterparts ; this, however, in practice 
 
 2 Britton, 99 a. is rarely said except of a lease {q.v. § 10). 
 
 3 Stat. 8 & 9 Vict. c. 106, s. 5. '•> Archbold, Crim. PI. 78. As to the 
 
 4 Litt. § 370; Co. Litt. 229 a; Shepp. form of the indictment, see ibid. 25; 
 Touch. 50. Blackstone (Comm. ii. 296) Pritchard, Q. S. 143 ; stat. 14 & 15 Vict, 
 says that the part which is executed by the c. 100, s. 24. As to indictments in the 
 grantor is called the original, and the rest Queen's Bench, see Grady & Scotland, 43. 
 
426 
 
 Indorse 
 
 LAW DICTIONARY. 
 
 Induction 
 
 Bills of 
 exchange. 
 
 In blank. 
 
 Special. 
 
 INDORSE— INDORSEMENT.— § i. To indorse is to write some- 
 thing on the back of an instrument. " Indorsement" signifies either the 
 act of indorsing, or the writing itself. 
 Deed. § 2 _ when a deed to be executed has reference to a transaction already 
 
 embodied in a deed between the same parties, or some of them, or their 
 predecessors in title, it frequently saves the repetition of many recitals and 
 provisions to make the terms of the new deed refer to those of the former 
 one, and to indorse it on that instrument: thus, the reconveyance of 
 mortgaged property is frequently indorsed on the mortgage, and an ap- 
 pointment of new trustees on the settlement or other instrument creating 
 the trust. 
 
 § 3. Indorsement is also an important mode of transferring bills 
 of exchange, cheques, bills of lading, and similar documents, and is 
 effected by the person to whose order the document is payable, 
 writing his name on the back and delivering it to the transferee. 1 
 An indorsement consisting merely of the indorser's name, is called an 
 indorsement in blank: when it specifies the name of the person (the 
 indorsee) to whom the document is transferred or indorsed, it is called a 
 special indorsement, or an indorsement in full. 3 An indorsement in blank 
 makes the instrument payable to bearer : a special indorsement makes it 
 payable to the order of the person named in the indorsement. As to the 
 liability of an indorser, see Bill of Exchange, § 4. 
 
 The following kinds of indorsement seem, in practice, to be peculiar to 
 bills of exchange and promissory notes. 
 Sans recours. § 4. An indorsement without recourse (sans recours) is where an in- 
 dorser declares that he shall not be liable if the bill, &c. is dishonoured 
 Conditional, by the antecedent parties. 3 A conditional indorsement is one made before 
 acceptance, in such a form as to impose on the drawee accepting the bill 
 Restrictive. a liability not to pay the bill except in a particular event. 4 A restrictive 
 indorsement is where the bill is expressed to be indorsed to a person for 
 a particular purpose {e.g., "Pay to A. B. for my account"), and prevents 
 him from negotiating it. 5 
 As to indorsements on writs of summons, see that title. 
 
 Etymology.] — Low Latin, indorsare, from Latin, dorsum, the back. 6 s 
 
 INDUCTION, in ecclesiastical law, is the ceremony by which an in- 
 cumbent who has been instituted to a benefice is vested with full posses- 
 sion of all the profits belonging to the church, so that he becomes seised 
 of the temporalities of the church and is then complete incumbent. It 
 is performed by virtue of a mandate of induction directed by the bishop 
 to the archdeacon, who either performs it in person, or directs his precept 
 to one or more other clergymen to do it. 7 (See Institution ; Collation.) 
 
 1 Smith's Merc. Law, 233 ; Byles on 
 Bills, 1, 151. 
 
 2 Byles, 149. 
 s Ibid. 152. 
 
 * Ibid. 153. 
 
 5 Ibid. 157. 
 
 6 Ducange, s. v. 
 
 7 Phillimore, Eccl. Law, 477, where the 
 ceremony is described ; Bl. Coram, i. 391. 
 
Industrial law dictionary. Infant 427 
 
 INDUSTRIAL AND PROVIDENT SOCIETIES are societies 
 formed for carrying on any labour, trade or handicraft, whether whole- 
 sale or retail, including the buying and selling of land and also (but 
 subject to certain restrictions) the business of banking. 1 Such a society 
 (which must consist of seven persons at least) when registered under the 
 act becomes a body corporate with limited liability, and with the word 
 limited as the last word in its name, 3 and is regulated by rules, providing 
 for the amount of the shares, the holding of meetings, the mode in which 
 the profits are to be applied, &c. 3 
 
 § 2. Industrial and provident societies originated in the adoption of Objects of. 
 the principle of co-operation by working men for the ,piirpose of buying 
 goods for their own consumption at wholesale prices and dividing them 
 among themselves at a price sufficient to pay the expenses and realize a 
 small profit. Many such societies also offer inducements for saving, by 
 having the capital divided into shares of a small amount payable by weekly 
 or monthly instalments. 4 Sometimes part of the profits is applied in 
 paying interest at a certain rate on the shares, and the balance for any 
 purpose authorized by the Friendly Societies Acts. 5 Sometimes also the 
 shares are not transferable, but the investment of each member is accu- 
 mulated for the benefit of his family. 6 No member can hold more than 
 200/. in the society.' 
 
 See Building Societies; Friendly Societies ; Dissolution; Nomination. 
 
 INFANT is a- person under the age of twenty-one years. 
 
 Infants are subject to various disabilities imposed on them for their 
 protection : thus an infant cannot, as a rule, aliene his lands, or make a 
 deed or contract binding on him, and he cannot make a valid. will under 
 any circumstances. He may, however, contract for necessaries (q. v.). 
 Formerly the contracts of an infant not binding on him were voidable 
 only, and therefore capable of being ratified by him after attaining 
 majority: but this is no longer so, the Infant Relief Act, 1874, having 
 made such contracts absolutely void. 8 So an infant under the age of 
 seven years cannot be guilty of felony ; and between the ages of seven 
 and fourteen he is presumed to be doli incapax (incapable of discerning 
 between good and evil) until the contrary is shown. 9 An infant of 
 
 1 1, and P. Soc. Act, 1876, s. 6. fants, shall be absolutely void ; and (sect. 2) 
 
 2 Xbid. ss. 7, II. no ac ti° n shall be brought to charge any 
 
 3 Hid. a . 9. person upon any promise made after full 
 
 4 Davis on Industrial and Provident So- age to pay any debt contracted during in- 
 cieties, 3 ; Friendly Societies Act, 1850 ; fancy, or upon any ratification made after 
 I. & P. Soc. Acts, 1852, 1854, 1856, 1862, full age of any promise or contract made 
 1867, all now repealed. during infancy, whether there shall or shall 
 
 5 See the form of rules in Davis, 95. not be any new consideration for such 
 
 6 Hid. 97. promise or ratification after full age. As 
 
 7 I. and P. Soc. Act, 1876, s. 6. to the construction of these somewhat in- 
 
 8 Bl. Comm. i. 463 et seq. ; Steph. consistent provisions, see Coxhead v. Mul- 
 Comtn.' ii. 303 ; Infants Relief Act, 1874. lis, 3 C. P. D. 439 ; Northcote v. Doughty, 
 This act provides that all contracts after 4 C. P. D. 385 ; Ditcham v. Worrall, 5 
 the 7th August, 1874, entered into by in- C. P. D. 410 ; Reg. v. Wilson, 5 Q. B. D. 
 fants for the repayment of money lent or 28. 
 
 for goods supplied (other than contracts for 9 Steph. Comm. iv. 24. 
 necessaries), and all accounts stated by in- 
 
428 
 
 Infant 
 
 LAW DICTIONARY. 
 
 Information 
 
 Civil. 
 
 Chancery. 
 
 Relator. 
 
 Information 
 and bill. 
 
 Ex officio. 
 
 fourteen years, if a male, and of twelve years, if a female, may give the 
 consent required (among other things) to make a valid marriage : but 
 a promise to marry at a future time is not binding on an infant under 
 twenty-one. 1 
 
 § 2. An infant may in some cases act in a representative capacity or in 
 auter droit, in the same manner as a person sui juris. Thus an infant 
 may act as an agent or as an attorney under a power, and it seems that 
 an infant may also exercise a power of appointment over personal estate, 
 although not over real. 3 (See Executor; Grant, § 8; Guardian, § 13; 
 Trustee?) 
 
 § 3. In probate practice an infant is a person under the age of seven 
 years, as opposed to a minor, who is a person between the age of seven 
 and twenty-one years. (See Guardian, § 13.) 
 
 See Ward of Court; Settlement ; Necessaries ; Feoffment, § 1 ; Guardian; 
 Habeas Corpus. 
 
 INFORMATION. — § 1. An information is in the nature of a pleading. 
 It is the step by which several civil and criminal proceedings are com- 
 menced. 
 
 I. Civil proceedings by information were formerly brought either in 
 Chancery or in the Court of Exchequer, according to the nature of the 
 remedy sought. 
 
 A. As to informations in Chancery. § 2. When a suit in Chancery 
 was instituted on behalf of the crown or of persons partaking of its pre- 
 rogative or under its particular protection {e.g., a charity), the matter of 
 complaint was offered to the Court by a document called an information, 
 which was a statement of facts by the Attorney-General or other proper 
 officer (the informant), resembling a bill of complaint (a. v.), except that 
 it was not in the form of a petition. § 3. If the suit did not immediately 
 concern the rights of the crown, its officers depended on the relation of 
 some person whose name was inserted in the information, and who was 
 termed the relator (q.v.). § 4. It sometimes happened that this person 
 had an interest in the matter in dispute, of the injury to which interest he 
 had a right to complain. In this case his personal complaint was incor- 
 porated with the information given to the Court by the officer of the 
 crown ; under the old practice they formed together an information and 
 bill, and were so termed. 3 § 5. When an information was filed by the 
 Attorney-General upon his own authority it was sometimes called an in- 
 formation ex officio, as opposed to an information at the relation of a 
 private individual. 4 
 
 § 6. At the present day proceedings by information in the Chancery 
 Division assume the form of an action by the Attorney-General, either 
 ex officio or at the relation of some person or corporation. 6 
 
 1 Steph. ii. 244. 
 
 8 In re D' Angibau, 15 Ch. D. at p. 246 ; 
 Stokes on Powers of Attorney, 10. 
 
 3 Mitford on PI. 22, 99; Daniell, Ch. 
 Pr. 8. 
 
 4 A.-G. v. Cockermouth Local Board, 
 L. R., 18 Eq. at p. 176. 
 
 5 Rules of Court, i. 1 ; A.-G. v. Shrews- 
 bury Bridge Co., W. N. (1880) 23 ; A.-G. 
 v. Gas Light and Coke Co., J Ch. D. 217 ; 
 A.-G. v. Mayor of Brecon, 10 Ch. D. 207; 
 A.-G. v. Great Eastern Rail. Co., 11 Ch. 
 D. 449. 
 
Information LAW DICTIONARY. Information 429 
 
 § 7. There was also a proceeding called an English information in the English 
 Exchequer Division, under the equitable jurisdiction of the Court of m > omiatlon - 
 Exchequer, so called because it was in the nature of a bill of complaint in 
 equity, which was formerly called an English bill. 1 
 
 B. As to informations at common law: — § 8. The prerogative process Exchequer, 
 of information was in the nature of a civil action at the suit of the 
 crown, and was instituted for the purpose of obtaining satisfaction in 
 damages for some injury to crown possessions, or to recover money 
 due to or .goods claimed by the crown. The information was not 
 founded on any writ, but merely on the intimation of the Attorney- 
 General, who " gave the Court to understand and be informed of" 
 the matter in question. The party was then put to answer by plea, 
 which the crown might traverse or demur to, &c, and trial was had as in 
 suits between subject and subject. Informations were of three princi- 
 pal kinds : — § 9. An information of intrusion was in the nature of an Intrusion, 
 action of trespass quare clausum fregit, and was brought for any trespass 
 committed on the lands of the crown. § 10. An information of debt (or Debt (inper- 
 information in personam) was brought upon any contract for moneys due sonam J - 
 to the crown (though process by extent was more usual in such cases), or 
 for any forfeiture due to the crown upon the breach of a penal statute, 
 especially when the revenue was concerned. § 11. An information in In rem. 
 rem, or real information, lay where any goods were supposed to become 
 the property of the crown as derelict, and no man appeared to claim 
 them, or where • goods were forfeited for non-payment of excise duties, 
 &c. 2 § 12. An information of devenerunt lay to recover goods belonging Devenerunt. 
 to the crown which " have come into the hands " of a subject ; it was in 
 the nature of an action of detinue, and was either wholly or partly in rem. 3 
 Under the new practice it would seem that informations of the kinds 
 mentioned above (§§ 7 et seq.) should be assigned to the Queen's Bench 
 Division. (See High Court offustice.) 
 
 II. In criminal procedure, informations are of three kinds : Criminat. 
 
 A. §.13. Those brought partly at the suit of the crown and partly at For penalties, 
 that of a subject, to enforce a penalty or forfeiture under a penal statute ; 
 
 these are a sort of qui tarn actions, only carried on by a criminal instead . 
 of a civil process. 4 {See Action, § 8.) 
 
 B. Informations brought in the Queen's Bench Division in the name Queen's 
 of the crown alone ; these are of two kinds. § 14. Informations by the enc " 
 crown, filed ex officio by the Attorney-General, are employed in the case Ex officio. 
 of crimes which peculiarly tend to disturb or endanger her government, 
 
 or to molest or affront her in the regular discharge of her royal functions. 
 
 § 15. Informations filed by the Master of the Crown Office upon the Ex relatione. 
 
 complaint or relation of a private subject, are applicable for the punish- 
 
 1 Crown Suits Act, 1865, ss. 6 et seq.; 1865, ss. 31 et seq. 
 
 see Bill of Complaint, § 7 ; A.-G. v. 3 Manning, 165. For an instance of an 
 
 Hailing, 15 M. & W. 687 ; Corporation information and protest in an Admiralty 
 
 of London v. A.-G., 1 H. L. C. 440. action, see The Parlement Beige, 4 P. D. 
 
 2 3 Bl. 261 ; Chitty, Prer. 332 ; Man- p. 130. 
 
 ning's Exchequer, 142 ; Crown Suits Act, l Bl. Comm. iv. 308; stat. 31 Eliz. c. 5. 
 
430 
 
 Justices of 
 the peace. 
 
 Informer 
 
 LAW DICTIONARY. 
 
 Inheritable 
 
 ment of any gross and notorious misdemeanors, such as riots, batteries, 
 libels, bribery, misconduct by magistrates, &c. The defendant pleads or 
 demurs to the information, and the trial and subsequent proceedings 
 resemble those on an ordinary prosecution by indictment in the Queen's 
 Bench Division, except that the preliminary inquiry by a grand jury is 
 absent. 1 (See Pleading ; Trial; Queen's Bench ; Quo Warranto.) 
 
 C . § 1 6. Proceedings before justices of the peace in matters of a criminal 
 nature are commenced by an information, which is a statement of the 
 facts of the case made by the informant or prosecutor, sometimes verbally, 
 sometimes in writing, and either with or without an oath ; in the latter 
 case the information is said to be exhibited. 2 (See Complaint.) 
 
 INFORMER is a person who brings an action or takes some other 
 proceeding for the recovery of a penalty of which the whole or part goes 
 Common. to him. § 2. A common informer is a person who sues for a penalty 
 which is given to any person who will sue for it, as opposed to a penalty 
 which is only given to a person specially aggrieved by the act complained 
 of. 3 (See Penalty ; Action, § 8.) 
 
 INFRINGEMENT. — When a person does an act which he has no 
 right to do, and thereby interferes with the right of another person, he is 
 said to infringe that right. Thus, when a person manufactures an article 
 protected by a patent, or prints a book protected by copyright, or makes 
 use of a trade mark without having the right to do so, he is said to 
 infringe the patent, copyright, or trade mark. The remedy is an injunc- 
 tion to restrain future infringements, and recovery of the damages caused 
 or profits made by the past infringements. 4 
 
 INHABITANT. See Custom, § 4; Court Leet; Easement (p. 303, note); 
 Hundred, § 2 ; Poor ; Recreation ; Residence. . 
 
 INHABITED HOUSE DUTY is an assessed tax on inhabited 
 dwelling-houses, according to their annual value, 6 and is payable by the 
 occupier, the landlord being deemed the occupier where the house is let 
 to several persons. 6 Houses occupied solely for business purposes are 
 exempt from duty, although a caretaker may dwell therein, and houses 
 partially occupied for business purposes are to that extent exempt. 7 
 
 INHERITABLE is that which is capable of inheriting, that is, of 
 taking land by descent. 8 Thus, " blood inheritable," in the old books, 
 
 1 Bl. Comm. iv. 308 ; Grady & Scot- 
 land's Crown Side Pr. passim; Archb. 
 Crim. PI. 112 et seq. 
 
 - Stone's Justice of the Peace, 75. 
 
 3 Bl. Comm. iii. 161 ; Guardians of St. 
 Leonard's v. Franklin, 3 C. P. D. 377 ; 
 Girdlestone v. Brighton Aquarium Co., 3 
 Exch. D. 137. 
 
 i Steph. Comm. ii. 32 ; but not both 
 damages and profits : Neilson v. Belts, L. 
 R., s H. L. 1. 
 
 5 Stats. 14 & 15 Vict. c. 36 ; 32 & 33 
 Vict. c. 14, s. 11. 
 
 6 Stat. 48 Geo. 3, c. 55, schedule B. 
 
 7 Customs and Inland Revenue Act, 
 I878, s. 13. 
 
 8 Co. Litt. 10 a. 
 
Inheritance LAW DICTIONARY. Inhibition 431 
 
 means a capacity of inheriting by reason of consanguinity. 1 (See Blood?) 
 "Inheritable" is applied to the person, ''descendible" to the estate or 
 property. (See Freehold, § 3.) 
 
 INHERITANCE is that which descends to the heir of the owner on 
 his death intestate. 2 The term is not often used except in the expression 
 " estate of inheritance" (see Estate), and in the following phrases: — 
 
 § 2. "No man can institute a new kind of inheritance not allowed by 
 the law." 3 (See Descent.) 
 
 §3. " If a man buy divers fishes .... and put them in his pond, 
 and dyeth, in this case the heire shall have them, and not the executors, 
 but they shall goe with the inheritance." 4 
 
 §4. "Inheritance" is also used in the old books where "hereditament" "Inheritance" 
 is now commonly employed ; thus, Coke divides inheritances into cor- ~ ent f, re 1 a " 
 poreal and incorporeal, 5 into real, personal and mixed, 6 and into entire 
 and several; 1 as to these divisions, see Hereditament. § 5. The phrase Several 
 " several inheritance," however, seems to be used in three senses : (i) in 
 the sense explained under Hereditament, § 7 ; (ii) in the sense of a sole 
 estate, as opposed to an estate of coparcenery or other joint estate : thus, 
 " if a partition be made betweene two coparceners of one and the selfe- 
 same land, that the one shall have the land from Easter untill Lammas to 
 her and her heires, and the other shall have it from Lammas till Easter to 
 her and her heires, or the one shall have it the first yeare, and the other the 
 second yeare, alternis vicibus, &c, there it is one selfe-same land wherein 
 two persons have severall inheritances at severall times ;" 8 (iii) to denote 
 an estate free from the incident of survivorship, as opposed to joint 
 tenancy : thus, " if lands be given to two men and to the heires of their 
 two bodies begotten, in this case, the donees have a joint estate for term 
 of their two lives, and yet they have severall inheritances." 9 As to the 
 meaning of this, see Estate Tail, § 4. 
 
 INHERITANCE ACT. See Descent, § 5. 
 
 INHERETRIX is the old term for " heiress." 10 
 
 INHIBITION.— § 1. Under the Land Transfer Act, 1875, regulating Land 
 the registration of land, an inhibition is an order or entry on the register Registry, 
 inhibiting or forbidding for a given time, or until further order, any deal- 
 ing with lands or charges registered under the act. 11 It resembles an 
 injunction. 12 (See Caution; Restriction?) 
 
 % 2. In ecclesiastical law, an inhibition is (1) a writ forbidding a judge Ecclesiastical 
 
 law. 
 
 1 Co. Litt. 12 a. ° Ibid. 1 b. 
 
 2 Fee simple " is called in Latin feodum *' Ibid. 164 b. 
 simplex, for feodum is the same that in- 8 Ibid. 4 a. 
 heritance is." Litt. 6 I : see also § 9, and 9 Litt. § 283. 
 Fee. 10 Co. Litt. 13 a. 
 
 s Co. Litt. 13 a. u Sect. 57. 
 
 4 Ibid. 8 a. 12 Charley's Real P. Acts, 216. 
 
 6 Ibid. 47 a. 
 
432 
 
 Inhibition 
 
 LAW DICTIONARY. 
 
 Injunction 
 
 Inhibition and 
 citation. 
 
 Restrictive : 
 mandatory. 
 
 Provisional 
 (interlocu- 
 tory). 
 
 Perpetual. 
 
 Interim order. 
 
 from further proceeding in a case depending before him, as where an 
 appeal is brought against a sentence pronounced by him; 1 (2) an order 
 inhibiting or forbidding an incumbent to perform any service of the 
 church or otherwise exercise the cure of souls for a certain period or 
 until he obeys a certain monition or order. 2 
 
 \ 3. Under the former practice of the Privy Council in admiralty appeals, as soon as the 
 petition of appeal had been lodged, an inhibition and citation might be issued prohibiting 
 the Court below and the respondent from proceeding in the cause pending the appeal, 
 and citing the respondent to enter an appearance to the appeal. 3 Relaxation of the 
 inhibition was a land of writ dissolving the inhibition in cases where the appeal, had not 
 been prosecuted with due diligence. 4 Admiralty appeals now lie to the Court of Ap- 
 peal, 5 and this practice is therefore obsolete. 
 
 INJUNCTION is an order or judgment by which a party to an action 
 is required to do, or refrain from doing, a particular thing. 6 
 
 § 2. Injunctions are either restrictive (preventive) or mandatory. 
 Thus, an injunction restraining a defendant from causing nuisance, or 
 disturbing an easement, or committing waste, or infringing a patent, is a 
 restrictive injunction, while an injunction ordering a defendant to take 
 down or remove a wall or other obstruction is a mandatory injunction, or 
 mandatory order, or more accurately a mandamus. 7 
 
 § 3. Injunctions are either interim, provisional (interlocutory) or per- 
 petual. Provisional injunctions are such as are granted on interlocutory 
 applications, and continue until a certain period, e.g., until the trial of the 
 action. The object of an interlocutory injunction is to preserve the pro- 
 perty in dispute with the least injury to all parties, until their rights can 
 be finally determined. Perpetual injunctions are such as form part of the 
 judgment or order made at the trial or hearing of the action, and, as their 
 name denotes, are not restricted as to time. 
 
 § 4. Formerly, in cases of great urgency, an injunction might be 
 obtained ex parte, but this is not now usually done, the practice in such 
 cases being to grant what is called an interim order or injunction, by which 
 the defendant is restrained until after a particular day named, liberty being 
 given to the plaintiff to serve notice for an injunction for the day before 
 the day so named. 8 
 
 § 5. Formerly, if a person was sued at law under circumstances which 
 gave him a defence sustainable only in a court of equity, the Court of 
 Chancery would give effect to this defence by granting an injunction 
 restraining the plaintiff from continuing his action. This mode of pro- 
 ceeding was abolished by the Judicature Act, the provisions of that act 
 
 1 Phillimore, Eccl. Law, 1274. In ap- 
 peals to the Privy Council the inhibition 
 and monition for process (see Process) issue 
 simultaneously ; Macpherson, Privy C. Pr. 
 
 175- 
 
 2 Public "Worship Regulation Act, 1874, 
 , s. 13 ; Order in Council (28th June, 1875), 
 
 form 25. 
 
 3 Williams and Brace's Admiralty, 314. 
 
 4 Hid. 318. 
 
 5 Judicature Act, 1873, s. 18 ; Jud. Act, 
 
 1875, s-4- 
 
 6 Rules of Court, Hi. 8, abolishing writs 
 of injunction. 
 
 7 Judicature Act, 1873, s. 25, § 8 ; Krehl 
 v. Burrell, 7 Ch. 0.551; Beddoe y. Beddoe, 
 9 Ch. D. 89 ; Costa Rica v. Strousberg, 
 1 1 Ch. D. 323 ; Aslatt v. Corf, of South- 
 ampton, 16 Ch. D. 143. As to the old 
 rule, see Darnell's Ch. Pr. 1462 ; Haynes's 
 Eq. 259; Snell'sEq. 451. 
 
 B Daniell, 1518; Hunter's Suit, 140. 
 
Injuria LAW DICTIONARY. Innocent 
 
 relating to equitable defences having rendered it inapplicable 1 (see 
 Equity, § 7). 
 
 See Undertaking; Restraining Order ; Mandamus; Copyright; Easement; 
 Patent; Infringement; Specific Performance ; Cairns' Act. 
 
 INJURIA— INJURY.— § i. In the technical sense of the word an 
 injury is where a right has been infringed. Hence " injury" is opposed 
 to " damage," because aright may be infringed without causing pecuniary 
 loss {injuria sine damno) : thus " the pollution of a clear stream is to a 
 riparian proprietor below both injury and damage, whilst the pollution 
 of a stream already made foul and useless by other pollutions is an injury 
 without damage, which would however at once become both injury and 
 damage on the cessation of the other pollutions." 2 (See Damnum absque 
 Injuria.) 
 
 § 2. Injuries are either legal or equitable. Legal injuries, or those Legal and 
 formerly cognizable by the common law, are divided into breaches of e( l uitable - 
 contracts and torts (see those titles). Equitable injuries, or those for- 
 merly cognizable only Jay Courts of Equity, include breaches of trust, 
 equitable waste, and certain kinds of fraud. 3 
 
 INLAND. See Bill of Exchange, § 10 ; Commissioners of Inland 
 Revenue. 
 
 INNKEEPER. — § i. A common innkeeper — including the keeper 
 of every tavern or coffeehouse in which lodging is provided — is bound to 
 receive and entertain every traveller who presents himself for that purpose 
 and is ready to pay his expenses, provided there be sufficient room in the 
 inn, and no impropriety of conduct in the traveller himself. § 2. He is 
 also responsible for the goods and chattels brought by any traveller to 
 his inn, unless they are stolen from the traveller's own person, or by his 
 own servant, or are lost by his own negligence. By the stat. 26 & 27 
 Vict. c. 41, no innkeeper is liable for the loss or injury of any goods (not 
 being a horse or carriage) to a greater amount than 30/., except they are 
 stolen, lost or injured through the wilful act, default or neglect of himself 
 or his servant, or unless they have been deposited with him expressly for 
 safe custody. A copy of the act must be conspicuously exhibited in the 
 inn. 4 (See Bailment ; Carrier; Carriers Act.) 
 
 § 3. An innkeeper has a lien on his guest's goods for payment of 
 charges incurred by him, and he may sell them in satisfaction if they are 
 left for six weeks without the charges being paid, provided he advertises 
 notice of the intended sale. 5 (See Lien.) 
 
 INNOCENT, as applied to conveyances, is the opposite of tortious 
 (q. v.). 
 
 1 Jud. Act, 1873, s. 24. formerly equitable remedies for legal 
 
 2 Pennington v. Brinsop Hall Coal injuries, while damages were the ordinary 
 Company, 5 Ch. D. p. 772. legal remedy. 
 
 s Equitable injuries must be distin- 4 Steph. Comm. ii. 84. 
 
 guished from equitable remedies : thus 6 Innkeepers Act, 1878. 
 
 specific performance and injunction were 
 
 S. FF 
 
 433 
 
434 Innotescimus law dictionary. Inquest of Office 
 
 INNOTESGIMUS. See Inspeximus. 
 
 INNS OF CHANCERY are the buildings known as Clifford's Inn, Clement's 
 Inn, New Inn, Staples' Inn, and Barnard's Inn. They were formerly a sort of collegiate 
 houses, in which law students learnt the elements of law before being admitted into the 
 inns of court (q. v.), but they have long ceased to occupy that position. 1 
 
 INNS OF COURT are certain private unincorporated associations 
 in the nature of collegiate houses, having the exclusive privilege of calling 
 to the bar, that is, conferring the rank or degree of barrister (q. v.). They 
 are :— the Inner Temple, the Middle Temple, Lincoln's Inn, and Gray's 
 Inn. They have a Common Council of Legal Education for giving 
 lectures and holding examinations. 2 (See Bencher; Moot; Inns of 
 Chancery.') 
 
 INNUENDO is that part of an indictment in a criminal proceeding 
 for libel, or of a pleading in an action for libel, which connects the 
 alleged libel with its subject, or explains the meaning of words which are 
 not on the face of them libellous. Thus if the libel complained of con- 
 sisted of these words in a circular, "A. B. is a fit person to be a member 
 of a certain society," and it was proved that the person who sent round 
 the circular was the secretary of a society for the protection of tradesmen 
 against swindlers, and that when he wrote to warn his correspondents 
 against any person, he said, " He is a fit person to be a member of our 
 society," it would be necessary in the declaration or statement of claim, 
 after setting out the words " A. B. is a fit person to be a member of a 
 certain society," to add, "meaning thereby 'He is a swindler:'" these 
 words form the innuendo. 3 
 Etymology.] — Latin, innuere, to nod to, hint, intimate. 
 
 INQUEST originally meant the same as inquisition 4 (q. v.), but at the 
 present day it is almost exclusively used to signify an inquiry held by a 
 jury before a coroner as to the death of a person who has been slain, or 
 has died suddenly, or in prison, 5 or under suspicious circumstances. It is 
 held super visum corporis, that is, after the jury have viewed the body of the 
 deceased, and the evidence is given on oath. If the jury by their verdict 
 or inquisition find a person guilty of murder or other homicide, such an 
 inquisition is in all respects equivalent to an indictment 6 {q. v.). 
 
 Etymology.] — Norman French, enqueste, from enquere, to inquire into. 7 
 
 INQUEST OF OFFICE, or simply " office," as it is termed in the 
 old books, is a prerogative remedy for the benefit of the crown, which 
 was formerly much in use. It is an inquiry made by a jury before a 
 
 1 Stephen's Comm. i. 16 et seq. ; For- 4 Littleton (§ 368) also uses it in the 
 tescue, ch. xlix. sense of " jury." 
 
 2 Stephen's Comm. i. 19 et seq. 6 See Prison Act, 1877, s. 44. 
 
 3 Shortt on Copyright and Libel, 515, 6 Steph. Comm. ii. 637 ; iv. 360; Arch- 
 547; Crafty. Boite, 1 Wms. Saund. 246b. bold, Crim. PI. 121. 
 
 7 Britton, 3 b. 
 
Inquest of Office LAW DICTIONARY. Inquiry 435 
 
 sheriff, coroner, escheator, or other officer of the crown, or by commis- 
 sioners specially appointed, concerning any matter that entitles the 
 crown to the possession of lands or tenements, goods or chattels, e.g., by 
 reason of an escheat, forfeiture, idiocy, &c. (See Inquisitio post Mortem ; 
 Inquisition.) These offices are of two sorts, either of entitling, or of 
 instruction. § 2. An office of entitling (which formerly issued out of Office of 
 Chancery) is used where the crown does not become entitled to the enl 
 property until after an office has been taken ; l thus, if the crown claims 
 the land of an idiot, the person must first be found an idiot by office. 2 
 § 3. The office of . instruction (which formerly issued out of the Ex- Office of 
 chequer) is used in cases where an office is not necessary to entitle the mstructl0n - 
 crown, but merely for the better instruction of the officer before seizure, 
 and to prevent hasty measures being adopted against the subject. 3 
 
 § 4. As to the remedy of any person aggrieved by an office found, see 
 Traverse; Monsirans de Droit ; and Crown Suits Act, 1865, s. 52. 
 
 INQUIRY. — I. § 1. In actions in the High Court it frequently 
 happens that certain facts subsidiary to the main question in issue can 
 be conveniently ascertained out of Court by a person appointed or 
 directed to inquire into them. By the Judicature Acts general power is 
 given to the Court to refer any question in a cause to a referee for 
 inquiry and report 4 (see Referee), and this power is sometimes exercised 
 by referring technical questions to architects, engineers, &c. But in the 
 cases where an inquiry is usually directed, the practice differs according 
 as the action is in the Chancery or the Queen's Bench Division. 
 § 2. In the Chancery Division an inquiry is usually directed in every Inquiries in 
 action in which, after the Court has pronounced an" order, judgment or act ^ 1 n : ^ ry 
 decree, it becomes necessary to ascertain in detail the facts of the case 
 or the rights of persons interested. In such a case the order, decree, &c. 
 directs an inquiry on those points to be taken in chambers. Thus, in an 
 action for the administration of the estate of an intestate, the administra- 
 tion order almost invariably directs inquiries as to the heir at law, next of 
 kin, real and personal estate, debts, &c. of the deceased ; and in an action 
 to restrain the continuance of an injury {e.g., the infringement of a 
 patent), there is commonly an inquiry either as to the amount of damages 
 sustained by the plaintiff, or as to the amount of profits made by the 
 defendant in consequence of the acts complained of. The inquiries are 
 taken before the Chief Clerk, who investigates the evidence adduced by 
 the parties, and embodies the result in his certificate (q. v., and see 
 Account, §§ s et seq.). 5 § 3. In the Queen's Bench Division the procedure Inquiries in 
 by inquiry is used in cases where the plaintiff has obtained judgment by Q- B - DlvlsI0n - 
 
 1 Chitty, Prer. 246. right of re-entry), the crown could not ob- 
 
 2 Ibid. 250; Staunf. 55. Formerly in tain possession without an inquest of office, 
 cases where the crown became entitled to This, however, is no longer necessary. 
 the possession of land under such circum- (Stat. 22 & 23 Vict. c. 21, s. 25.) 
 stances that a common person could not 3 Chitty, Prer. 247. 
 
 have obtained possession without making i Jud. Act, 1873, s. 56; Rules of 
 
 an entry on the land (as where a tenant Court, xxix. 4. 
 committed a forfeiture giving the lord a 5 See Hunter's Suit, no. 
 
 FF2 
 
Trade. 
 
 436 Inquisitio LAW DICTIONARY. Inquisition 
 
 default against the defendant for an unliquidated claim {e.g., for 
 damages), so that it is necessary to ascertain what is due to him ; if the 
 amount is substantially a matter of calculation (as in an action for the 
 arrears of an annuity), an inquiry as to the amount is directed to be 
 taken by a master of the Court j 1 in other cases, a writ of inquiry (q. v.) 
 must issue. 3 
 Inquiries in H. § 4. I n lunacy practice an inquiry is the proceeding in which the 
 
 lunacy. unsoundness of mind of an alleged lunatic and his incapacity to manage 
 
 his affairs are investigated by the evidence of witnesses and the personal 
 inspection of the alleged lunatic. The inquiry, which resembles the trial 
 of an action (see Trial), is held before a Master in Lunacy (with a jury 
 if the alleged lunatic demands one), by virtue of the Lord Chancellor's 
 order for inquiry, which is now issued in each case of alleged lunacy in 
 lieu of a special commission. § 5. But the Lord Chancellor may, under 
 the Lunacy Regulation Act, 1862, s. 4, direct an issue whether the alleged 
 lunatic is of unsound mind, &c. to be tried in one of the superior Courts 
 of common law (now in the High Court) and the verdict of the jury has 
 the same force as an inquisition. 3 (See Commission, § 8; Inquisition, § 3; 
 Traverse.) 
 Board of § 5. There are many cases in which the Board of Trade holds inquiries. 
 
 Thus when any persons have been killed or injured by any wrongful act, 
 neglect or default in the management of a ship, the Board of Trade may 
 institute an inquiry before a sheriff and jury, in which the Board is plaintiff 
 and the shipowners defendants. The Board distributes the damages 
 recovered by the inquiry in such manner (not exceeding 30/. for each 
 person killed or injured) as it thinks fit. Any person dissatisfied with the 
 amount recovered by him may repay it and commence an action against 
 the shipowner. (See Limitation of Liability!) 
 
 § 6. As to inquiries under the Lands Clauses Act, 1845, see Inquisition, 
 
 §*■ 
 
 INQUISITIO POST MORTEM was an inquest of office (q. v.) held upon the 
 death of a tenant of the crown to inquire of what lands he died seised, who was his heir, 
 and of what age, in order to entitle the crown to his marriage, wardship, livery, primer 
 seisin, Sec. After the abolition of the feudal tenures the inquisitiones post mortem were 
 held to inquire into cases of escheat, forfeiture, &c. of crown lands, 4 but they have now 
 fallen into disuse, principally owing to the abolition of forfeiture (q. v.). 
 
 INQUISITION means (i) an inquiry by a jury, held before an officer 
 or commissioner of the crown ; and (ii) a formal document recording the 
 result of the inquiry. § 2. The commonest instances of extrajudicial 
 inquisitions at the present day are coroner's inquests and inquisitions to 
 assess the value of land taken by a railway or other company under 
 compulsory powers : these latter are held before the sheriff (or in some 
 cases the coroner) of the county in which the lands are situated. 5 
 
 1 Day's C. L. P. Acts, 121. * Chitty, Prer. 247; Bl. Comm. ii. 68. 
 
 3 Smith's Action (12), 144. 6 Lands Clauses Consolidation Act, 1845, 
 
 a Pope on Lunacy, 44, 64. ss. 39 etseq.; Hodges on Railways, 271. 
 
Inrolment LAW DICTIONARY. Insolvent , 437 
 
 § 3. Inquisitions are also held in the course of judicial proceedings, e.g., 
 under writs of elegit and extent (q. v.), and in lunacy. In lunacy, "in- 
 quisition " sometimes means the same as " inquiry " (q. v.), but more 
 generally it denotes the formal statement and finding, under the hands 
 and seals of the master and jury (if there was one) before whom the 
 inquiry was held, giving the result of it, e.g., stating that the alleged 
 lunatic is of unsound mind, and "not sufficient for the government of 
 himself, his manors, messuages, lands, tenements, goods and chattels," 
 and the lunatic is then called a " lunatic by inquisition." 1 
 
 See Inquest; Inquest of Office ; Inquisitio post Mortem ; Traverse. 
 
 INROLMENT. See Enrolment. 
 
 INSANITY is not strictly speaking a legal term, but it is commonly 
 used to denote that state of mind which prevents a person from knowing 
 right from wrong, and therefore from being responsible for acts which in 
 a sane person would be criminal. 8 Insanity may be total, or partial 
 (where it is confined to certain subjects), or intermittent (where the 
 attacks are separated by lucid intervals), and the question of responsibility 
 depends upon whether the act was done under the influence of insanity 
 or not. 3 § 2. The term is also sometimes used with reference to the 
 question whether a person has the mental capacity for entering into a 
 contract, making a will, or the like. (See Delusions ; lunatic.) 
 
 § 3. " Insane person," within the meaning of the acts relating to the 
 Commissioners in Lunacy, is a person who is either " a lunatic, an idiot 
 or a person of unsound mind and a proper person to be taken charge of 
 and detained under care and treatment " in a house, hospital or other 
 place for the reception of such persons. 4 
 
 See Lunatic ; Commissioners in Lunacy. 
 
 INSOLVENT— INSOLVENCY.— § 1. A person is said to be 
 insolvent when he is unable to pay all his debts in full ; insolvency is the 
 condition of such a person. Generally it results in bankruptcy, liquida- 
 tion, or composition proceedings, or if the person dies before they are 
 taken, his estate may be administered in an action in the Chancery 
 
 Division. 6 
 
 § 2. Formerly when none but traders were included in the bankruptcy law, occasional Insolvency 
 acts of parliament, called Acts of Insolvency, or Insolvent Acts, were frequently passed, Acts. 
 " whereby all persons whatsoever, who are either in too low a way of dealing to become 
 bankrupts, or not being in a mercantile state of life are not included within the laws of 
 bankruptcy, are discharged from all suits and imprisonments, upon delivering up all their 
 estate and effects to their creditors upon oath, at the sessions or assizes." 6 Subsequently 
 various statutes were passed, providing for the discharge of persons imprisoned for debts, 
 on their making a cessio bonorum for the benefit of their creditors, and by the act 
 
 1 Elmer, Pr. in Lunacy, 20; Pope on i See 16 & 17 Vict. t. 96, schedules; 
 Lunacy, 66. Pope on Lunacy, 19. 
 
 2 Pope on Lunacy, 6, 19, 356. 5 See In re Yglesias, L. R., 10 Ch. 635. 
 
 3 Ibid. 15; Maudsley on Mental Disease, 6 Bl. Comm. ii. 484. 
 passim. 
 
438 
 
 Inspection 
 
 LAW DICTIONARY. 
 
 Instance Court 
 
 Insolvent 
 
 Debtors 
 
 Court. 
 
 53 Geo. 3, t. 102, and subsequent acts, the principle was made into a system, admi- 
 nistered by a court of record called the Court for the Relief of Insolvent Debtors. The 
 first step was a petition by the prisoner for his discharge, or a petition by a creditor for 
 the administration of the debtor's property ; in either case a vesting order was made, by 
 which all the debtor's property was vested in one or more assignees (see Assignee, \ 2), 
 and in due time the prisoner obtained his discharge. 1 (See Protection.) The Court for 
 the Relief of Insolvent Debtors was abolished and its jurisdiction transferred to the Court 
 of Bankruptcy by the Bankruptcy Act, 1861, which made non- traders subject to the 
 bankruptcy law. (See Bankruptcy, § 10.) It seems that the estates of some insolvent 
 debtors are still in process of being wound up. 2 
 
 Documents. INSPECTION. — § 1. Inspection of documents. When a party to 
 an action, or other proceeding in the High Court, has by his pleadings 
 or by an affidavit of documents admitted that he has in his possession 
 any documents relating to the matters in question between the parties, 
 any other party to the proceeding may give him notice to produce them 
 for inspection. If he fails to comply with the notice, the party requiring 
 production may apply to the judge for an order for inspection. 3 (See 
 Affidavit, § 3 ; Confidential Communications ; Discovery ; Privilege ; Seal- 
 ing up.) 
 
 Property. § 2. Inspection of property. The Court may make an order for the 
 
 detention, preservation, or inspection of any property being the subject of 
 an action, and for that purpose may authorize any person to enter on or 
 into any land or building. 4 (See Trial ; View.) 
 
 § 3. As to the inspection of mines, see Boundaries, § 4; Bounds. 
 
 INSPECTOR. — When the members of a partnership have been 
 adjudicated bankrupt, although the separate creditors of each partner 
 have no voice in the choice of a trustee under the joint adjudication, still 
 they may apply to the Court for the appointment of an inspector to 
 protect their interests, e. g., by getting in the separate effects, inspecting 
 books and papers relating to the separate estates, &c. 5 (See Joint; 
 Separate?) 
 
 INSPECTORS— INSPECTORSHIP DEEDS. See Letter of 
 
 Licence. 
 
 INSPEXIMUS is the name given in the old books to an exemplification of letters 
 patent or other record, because it begins with » recital in the name of the crown that 
 " We have inspected the enrolment of certain letters patent," and then sets it out 
 verbatim. A Constat was a somewhat similar kind of exemplification, beginning with 
 the words " Constat nobis," but was only granted where the party made affidavit that 
 the original was lost. An Innotescimus or "Vidimus was a copy of a charter of feoffment 
 or other instrument not of record granted by the crown. 6 (See Exemplification?) 
 
 INSTANCE COURT. See High Court of Admiralty ; Prize Court. 
 
 1 Bl. Coram, ii. 488, note (6). 
 
 2 32 & 33 Vict. c. 83 ; Second Report 
 of Legal Dep. Coram. 76. 
 
 3 Rules of Court, xxxi. II etseq. 
 
 4 Ibid. lii. 3. See also the Common 
 
 Law Procedure Act, 1854, s. 58, the Mer- 
 chandise Marks Act, 1862, s. 21 ; Ludlow 
 & Jenkins on Trade Marks, 39. 
 
 6 Robson's Bankruptcy, 614. 
 
 6 Page's Case, 5 Rep. 53 b. 
 
Institution LAW DICTIONARY. Insurance 439 
 
 INSTITUTION, in ecclesiastical law, is the ceremony by which the 
 bishop of a diocese, when a clerk has been presented to him, commits to 
 his charge the care of the souls of the parish : it is a kind of investiture 
 of the spiritual part of the benefice. 1 (See Induction; Collation; 
 Presentation?) 
 
 INSTRUMENT OF APPEAL is the document by which an appeal 
 is brought in a matrimonial cause from the President of the Probate, 
 Divorce, and Admiralty Division to the full Court. It is analogous to a 
 petition. 2 
 
 INSUFFICIENT. — When a person is required to make an answer or 
 affidavit, and makes one which does not in form comply with the re- 
 quirement, it is said to be insufficient. Affidavits of documents and 
 answers to interrogatories are frequently insufficient by reason of their 
 not containing a proper traverse (q. v.). Insufficiency differs from in- 
 completeness, for a party may make an affidavit of documents which is in 
 form sufficient and is nevertheless incomplete by the omission of docu- 
 ments which ought to have been included, and vice versa. 
 
 Where an affidavit is insufficient, the opposite party may obtain an order 
 requiring the deponent to make a further one. 3 
 
 INSURANCE is an agreement between two persons (the insurer and 
 the assured) that in consideration of a comparatively small payment 
 (called the premium) by the assured, the insurer will, on a certain event Premium, 
 happening during a given time, pay to the assured either an agreed sum 
 or the amount of the loss caused to the assured by the event. (See 
 Interest, § 7.) The amount of the premium is calculated with reference 
 to the risk incurred by the insurer (see Risk). The instrument by which Policy, 
 the contract is entered into is called a policy (q. v.). Insurance is a 
 contract uberrima fidei {q. v.). 
 
 Contracts of insurance are of two kinds, viz., those which are, and 
 those which are not, in the nature of contracts of indemnity. 4 
 
 I. To the first class belong fire and marine (or maritime) insurances. Fire insur- 
 § 2. By a fire insurance the insurer, in consideration of a certain premium, ance- 
 paid either in gross {i. e., once for all) or at stated intervals, undertakes 
 to indemnify the assured against damage to his property by fire during a 
 limited portion of time. 5 Fire insurances are sometimes divided into 
 "common," "hazardous," "double hazardous," and insurances of 
 " extraordinary risk," according to the nature of the property insured 
 and the purposes for which it is used. 6 § 3. Marine insurance is a Marine insur- 
 contract of indemnity against certain perils or sea risks to which the ship, 
 freight or cargo, and the interests connected therewith, may be exposed 
 
 1 Bl. Comm. i. 390 ; PhiU. Eccl. Law, L. C. ii. 260 ; Dalby v. India, &c. Ass. 
 471. Co., 15 C. B. 365, and reporter's note; 
 
 2 Browne on Divorce, 322. Smith's L. C. ii. 271. 
 
 3 Rules of Court, xxxi. 10. s Smith, Merc. Law, 411. 
 1 Godsallv. Boldero, 9 East, 72; Smith's " Ellis, Insur. n. 
 
 ance. 
 
44° 
 
 Insurance 
 
 LAW DICTIONARY. 
 
 Insurance 
 
 Nature of 
 indemnity. 
 
 Double insur- 
 ance. 
 
 Over-insur- 
 ance. 
 
 Life insur- 
 ance. 
 
 during a particular voyage, or a fixed period of time. 1 The insurer in 
 marine insurances is usually either an underwriter {q. v.) or an insurance 
 company. As to the varieties of marine insurances, see Policy. 
 
 § 4. Insurances of this class being contracts of indemnity, the assured 
 is only entitled to be paid once, and if he obtains payment of his loss 
 from any other source, he is not entitled to claim against his insurer. 
 Moreover, the insurer, upon paying the loss, is entitled to be put in the 
 place of the assured; therefore if, the assured had a claim which he 
 might have enforced in respect of the property {e. g., against a person 
 whose negligence or wrongful act caused the loss), the insurer will thence- 
 forth be entitled to enforce that claim for his own benefit ; or if after 
 the insurer paid the assured's claim, the latter receives compensation 
 from other sources, the insurer is entitled to recover from the assured 
 any sum which he may have received in excess of his actual loss. 2 (See 
 Subrogation.') 
 
 § 5. Double insurance takes place when the same interest and the same 
 risk are insured twice ; a second insurance being often necessary where 
 the precise value of the interest is not at first known. But if it appears, 
 when the value of the interest becomes known, that there has been- an 
 over-insurance, that is to say, that the sum of the two or more insurances 
 exceeds the interest of the assured, the excess cannot be recovered. 3 And 
 if the same person insures the same property with two insurers, and it 
 turns out that there has been an over-insurance, then the insurers are 
 entitled to make one another contribute rateably, so that they may all bear 
 the loss in proportion to the amounts for which they have respectively 
 insured the property, instead of the loss being thrown on one. 
 
 § 6. In addition to fire and marine insurances there are several varieties 
 of insurance belonging to the same class, whose names explain them- 
 selves, such as plate-glass and cattle insurance (see Cattle Insurance 
 Societies) and insurance against damage by hail. 
 
 II. To the second class belong life and accident insurances. 
 
 § 7. Insurance upon a life is a contract by which the insurer, in considera- 
 tion of a certain premium, either in a gross sum or by annual payments, 
 undertakes to pay to the person for whose benefit the insurance is made, 
 a certain sum of money or annuity on the death of the person whose life 
 is insured; the latter is sometimes called the cestui que vie or "the life." 
 If the insurance be for tfie whole life, the insurer undertakes to make the 
 payment whenever the death happens ; if otherwise, he undertakes to make 
 it in case the death should happen within a certain period, for which 
 period the insurance is said to be made. The utility of this contract is 
 obvious. A creditor is enabled thereby to secure his debt; an annuitant, 
 the continuance of his income after the grantor's decease ; a father, a pro- 
 vision for his family, available in case of his own death. 4 Policies may 
 also form the subject of settlements and mortgages. 
 
 1 Maude & Pollock, Merch. Sh. 330; 
 Smith, Merc. Law, 336. It is not a per- 
 fect indemnity, but only approximate : see 
 Aitchison v. Lohre, 4 App. Ca. 755- 
 
 2 North British Co. v. London, L. &* 
 G. Co., 5 Ch. D. 569 ; Darrell v. Tihbetts, 
 5 Q. B. D. S 6o. 
 
 3 Maude & Pollock, 346. 
 
 4 Smith, Merc. Law, 403. 
 
In-takes law dictionary. Interest 441 
 
 insurance. 
 
 § 8. An accident insurance is a contract to pay a fixed sum on death Accident 
 resulting from accident, either generally, or limited to accidents of a 
 particular kind, e.g., railway accidents. Some policies also provide for 
 payment of a fixed weekly sum during incapacity caused by an accidental 
 injury. 
 
 See Risk ; Reinsurance ; Salvage ; Suing and Labouring ; Warranty ; 
 Uberrivice Fidei. 
 
 IN-TAKES are temporary inclosures made by customary tenants of a 
 manor under a special custom authorizing them to inclose part of the 
 waste until one or more crops have been raised on it. 1 
 
 INTENDMENT.— " Intendment of the law," in the old books, 
 signifies a presumption, and " common intendment" signifies a rule of law 
 or praesumptio juris et de jure.' (See Presumption!) 
 
 INTENTION. — § 1. In civil or private law, the general rule is that Civil. 
 a person is responsible for the consequences of his acts, whether he 
 intended them or not. Hence if A. in defending himself against B. 
 unintentionally strikes C, he is liable to an action of battery by C. (See 
 Battery.) ' In such actions, however, the question of intention is generally 
 taken into consideration by the jury in assessing the damages (see 
 Damages, § 4). As to actions of libel, see Apology. 
 
 § 2. In criminal law, intention is an essential part of every crime or Criminal, 
 offence. 
 
 See Delusions ; Duress; Fraud; Insanity; Lunacy; Malice; Negligence; 
 Overt Act; Remote ; Undue Influence. 
 
 INTERCOMMON. See Common, § 8. 
 
 INTERESSE TERMINI ("interest of a term") is the interest 
 which a lessee under a lease at common law has before he enters or takes 
 possession of the land demised. 3 But a term limited to commence imme- 
 diately by a bargain and sale or other conveyance operating under the 
 Statute of Uses passes an estate without the necessity of entry. 4 
 
 An interesse termini is merely the right to an estate, and therefore can 
 neither prevent nor be the subject of merger. 5 
 
 INTEREST. — I. § 1. In the most general sense of the word, a Interest in 
 person is said to have an interest in a thing when he has rights, advan- Property - 
 tages, duties, liabilities, losses or the like, connected with it, whether 
 present or future, ascertained or potential : provided that the connection, 
 and in the case of potential rights and duties, the possibility, is not too 
 remote. The question of remoteness depends upon the purpose which 
 the interest is to serve. 
 
 § 2. Interest also signifies, par excellence, an advantageous or beneficial 
 
 1 Elton, Comm. 277. * Williams, R. P. 396. 
 
 2 Co. Litt. 78b; as to "intent," see 5 See Hyde v. Warden, 3 Ex. D. 72; 
 Co. Litt. 303 a. Co. Litt. 338 a. 
 
 3 Litt. § 459; Co. Litt. 270 a. 
 
442 
 
 Interest 
 
 LAW DICTIONARY. 
 
 Interest 
 
 Property. 
 
 Insurable 
 interest. 
 
 interest : thus declarations by deceased persons against their own interest 
 are receivable in evidence in proceedings between third persons, by 
 exception to the general rule against hearsay evidence. 1 
 
 Interests may be considered from the following aspects : — 
 
 § 3. Interest as applied to property is used in a wide sense to include 
 estates (legal and equitable), charges, easements, profits a prender, licences, 
 equities of redemption, and generally every right in respect of property 
 which entitles or may in future entitle the holder to make use of it in 
 some way, as opposed to bare powers, uses, authorities, possibilities, 
 expectations, rights of presentation and the like. 2 Hence " interest" is 
 used in conveyances, &c. to denote every beneficial right in the property 
 conveyed. 3 § 4. In a narrower sense, interest is used as opposed to 
 estate, and therefore denotes rights in property not being estates ; e. g., 
 an interesse termini (y.w.): 4 the quasi-reversion of a lord which entitles 
 him to the land on an escheat or forfeiture : 5 the interest which the lord 
 of a manor has in copyhold land between a surrender by the old tenant 
 and the admittance of the new: 6 the interest of executors under a devise 
 of land for the payment of debts : 7 interests resembling estates but not 
 recognized as such by the common law, e.g., executory interests in land 
 (see Executory Interest) and interests in personalty ; these interests in 
 personalty so closely resemble estates that they are frequently called 
 estates; and the terms "absolute," "limited," " vested," " contingent," 
 " sole," "joint," &c. are applied to interests in the same senses in which 
 they are applied to estates. (See Estate ; Tenant.) 
 
 § 5. "Interest" is used by real property lawyers in several technical 
 senses : thus at one time it may denote certain rights intimately connected 
 with the soil of land, such as commons and other profits a prender, 
 licences for profit certain, &c. as opposed to " matters of easement and 
 discharge," such as a right of way or a mere authority to enter upon land ; 8 
 while in another sense " interest" is used to denote an exclusive right to 
 land, namely, that arising from ownership, as opposed to rights in alieno 
 solo, such as cpmmons. § 6. " Interest" is also opposed to "possession," 
 as when we say that an estate in vested in interest, meaning that the right 
 has accrued, but that the possession is deferred : thus a vested remainder 
 is an estate vested in interest. (See Estate, § 10.) 
 
 § 7. In the law of insurance a person is considered to be interested in 
 property or in the life of a person, when the destruction or injury of the pro- 
 perty, or the death of the person, would expose him to pecuniary loss: 10 this 
 
 1 Best on Evidence, 635. See Declara- 
 tion, § 5. 
 
 2 Co. Litt. 265 b; s Rep. 19 a; Viner's 
 Abr. Interest; Rolle, Abr. Graunt. 
 
 3 Interest " extendeth to estates, rights 
 and titles, that a man hath of, in, to or out 
 of lands ; for he is truly said to have an 
 interest in them ; and by the grant of totum 
 interesse suum [all his interest] in such 
 lands, as well reversions as possessions in 
 fee simple, shall passe." Co. Litt. 345 b. 
 
 * Co. Litt. 345 b. 
 
 5 Watkins, Descents, 2. 
 
 6 Minton v. Kirwood, L. R., 1 Eq. 455. 
 
 7 Co. Litt. 42 a. 
 
 8 Potter v. North, Ventris, 383 ; Godley 
 v. Firth, Yelv. 159; Weekly v. Wildman, 
 1 Ld. Raym. 407; Web v. Paternoster, 
 Palmer, 71. 
 
 9 Burton's Comp. §§ 1158 etsej. 
 
 10 Halford v. Kymer, 10 B. & C. 725 ; 
 Reed v. Royal Exchange Ass. Co., Peake, 
 Add. Ca. 70 ; Smith's L. C. ii. 290. 
 
Interest law dictionary. Interest 443 
 
 is an " insurable interest." Thus a creditor has an insurable interest in the 
 
 life of his debtor, because if the debtor died his money might be lost ; 
 
 and a shipowner has an insurable interest in the goods on board his ship 
 
 to the extent of his freight, because if the goods were lost the freight 
 
 would not be paid : a fortiori of course the owner of the goods has an 
 
 insurable interest in them. 1 § 8. When a person insures for an amount Short interest. 
 
 exceeding the value of his interest (as where part only of an insured 
 
 cargo is put on board) the excess is called short interest, and part of the 
 
 premium proportionate to the excess is returnable by the underwriter. 3 
 
 (See Risk.) 
 
 § 9. It is a rule of equity that a person cannot maintain a suit or action Suit, 
 unless he has an " interest" in the subject of it, that is to say, unless he 
 stands in a sufficiently close relation to it as to give him a right which 
 requires protection or has been infringed, and for the protection or 
 infringement of which he brings the action ; and " want of interest " is a 
 ground of demurrer : 3 thus, if a testator bequeaths property in trust for 
 his daughters and their issue, and on their death without issue, in trust 
 for his next of kin, during the daughters' lives the next of kin have only 
 an expectation and not an interest, and cannot maintain an action for 
 the administration of the estate. 4 
 
 § 10. So in the law of probate and administration, a person has an Probate, 
 interest for the purpose of obtaining a grant of probate when he is the 
 executor of the deceased, and for the purpose of obtaining a grant of 
 letters of administration when he is a relation, legatee, or creditor 
 of the deceased ; for the purpose of opposing a grant of probate or 
 administration any person has an interest whose rights will or may be 
 affected by the proposed grant. 5 When a person has such an interest 
 as to entitle him to a grant in priority to another person, the former 
 is said to have a superior, the latter an inferior interest." § n. An interest suit. 
 interest action (or cause) is one in which the legal interest of a person in 
 the estate of the deceased is disputed : thus, where a person applying for 
 a grant of probate or administration is stopped by a caveat, he issues a 
 writ of summons against the caveator to have the question whether he is 
 entitled to the grant determined.' 
 
 § iz. One person may have an interest in another independently of the In persons. 
 question of property. Thus a husband has an interest in his wife (see 
 Consortium), a guardian in his ward, a master in his servant, and so on. 
 (See Right.) The interest which a guardian in socage has in his ward 
 has been called an interest of honour, as opposed to an interest of profit. 8 
 Similarly the interest which an executor has in the property vested in him Interest ot 
 is sometimes called an interest of office. 9 (See Right; Estate; Possibility; office- 
 Possession; Estoppel.) 
 
 II. § 13. Interest also signifies a sum payable in respect of the use of Interest on 
 _______________ Money. 
 
 1 Maude & Pollock, Merch. Shipp. 332 6 Coote's Probate Pr. 192, 199. 
 
 et seq., ^efietseq. 7 Browne, 287; Rules of Court, i. i; 
 
 2 Ibid. 430; Smith's Merc. Law, 398. Forms, App. A. Part ii. sect. v. 4, App. 
 
 3 Mitford, PI. 154. C. 17. 
 
 4 . Clowes v. Hilliard, 4 Ch. D. 413. * Shaftsbury v. Shaftsbury, Gilb. Eq. 
 
 5 Browne's Probate Pr. 153 et seq., 265 Rep. 172. 
 et seq., 277. 3 Williams on Executors, 244. 
 
444 
 
 Interest 
 
 LAW DICTIONARY. 
 
 Interest 
 
 Agreed 
 interest. 
 
 Interest as 
 damages. 
 
 Simple and 
 compound. 
 
 Maritime 
 interest. 
 
 another sum of money, called the principal. Interest is calculated at. 
 a rate proportionate to the amount of the principal and to the time during 
 which the nonpayment continues ; this rate is generally expressed as so 
 much for every hundred pounds 1 ("per centum") during a year 2 ("per 
 annum"). Thus a contract to pay five per cent, per annum on 1,500/. 
 entitles the lender to 75/. for every year, 61. $s. for every month, and so 
 on while the loan continues. Interest is considered as accruing from day 
 to day (see Apportionment), although it is generally payable periodically, 
 e.g., at half-yearly intervals. 
 
 § 14. Interest is of two kinds, namely, that which is agreed to be paid 
 on a loan, and that payable as damages for the nonpayment of a debt or 
 other sum of money on the proper day. 3 Formerly the common law only 
 allowed interest by way of damages where the debt was secured by a bill 
 of exchange, or where a promise to pay interest was implied from a usage 
 of trade or the like. But by stat. 3 & 4 Will. 4, c. 42, interest is recover- 
 able on all debts payable by virtue of any written instrument. If no time 
 of payment is fixed, the creditor must give the debtor notice before he 
 can become entitled to claim interest. In equity interest seems to be 
 allowed as damages in all cases where there has been a wrongful deten- 
 tion of money which ought to have been paid. 4 (See Account, § 9.) 
 A judgment debt bears interest at four per cent, from the date on which 
 the judgment is entered until it is paid. 5 If a person contracted to pay 
 100/. on the 1st January, 1877, with interest at five per cent, per annum 
 in the meantime, and he failed to repay the 100/. on the day, the same 
 rate of interest would generally be adopted by a Court or jury as the 
 measure of damages for the delay in payment. If, however, the agreed 
 rate were excessive and extraordinary, such as five per cent, per month, 
 it would not be adopted, and only a reasonable rate, say four or five per 
 cent, per annum, would be allowed as damages. 6 (See Penalty.) 
 
 § 15. Interest is also either simple or compound. Compound interest 
 is where each periodical amount of interest as it becomes payable is 
 added to the principal, so that the next instalment of interest is calculated 
 not only on the principal but also on the interest already accrued. 7 (See 
 Account, § 9 ; Accumulation.) 
 
 § 16. In the case of loans made on the security of bottomry bonds, &c, 
 the lender, in consideration of the risk incurred, has always been allowed 
 to stipulate for an extraordinary rate of interest called maritime interest, 
 as an exception from the laws against usury; and this still applies in foreign 
 countries. 8 (See Usury!) 
 
 Etymology and History.]— § 17. Interest, in Latin = (1) "it concerns,'' (2) "it 
 
 1 " To them that lend money my caveat 
 is, that neither directly nor indirectly, by 
 art or cunning invention, they take above 
 ten in the hundred." Co. Litt. 3 b. 
 
 2 Interest on exchequer bills is at so 
 much per centum per diem. 
 
 3 Cf. Dig. xix. 1, fr. 13, § 20. 
 
 4 See Hyde v. Price, 1 C. P. Cooper, 193 
 and reporter's note ; Lowndes v. Collens, 
 17 Ves. 27 ; Webster v. British Empire 
 Ass. Co., 15 Ch. D. 169. 
 
 B Williams, P. P. 126. 
 
 6 Cook v. Fowler, L. R., 7 E. & I. App. 
 27; Gorditto v. Weguelin, 5 Ch. D. 287 ; 
 Howa?-d v. Harris, i Vem. 190. As to 
 interest generally, see Chitty on Contracts, 
 595 et seq. ; Leake, 584 ; Williams, P. P. 139. 
 
 7 A covenant to capitalize arrears of in- 
 terest so as to make it bear interest is law- 
 ful ; Clarkson v. Henderson, 14 Ch. D. 348. 
 
 8 Williams & Bruce's Admiralty, 48 ; 
 Dig. xxii. 2 ; Steph. Comm. ii. 93. 
 
Interlocutory LAW dictionary. International Law 445 
 
 concerns beneficially," "is of advantage" (Dig. ii. n. fr. 14; x. 4, fr. 19); hence its 
 primary meaning of " right." The word acquired its second meaning {supra, § 13) thus— 
 In Roman law when a person brought an action against his debtor for non-payment of a 
 sum of money he claimed, in addition to the debt, id quod interest creditoris solutum esse, 
 that is, the benefit which he lost by the non-payment (Dig. xix. I, fr. I), and this was 
 computed by calculating what profit he could have made by lending the money with a 
 stipulation for the payment of a periodical sum for the use of it (usurce, fanus). Thus 
 the damages for the wrongful detention of money (interest, interesse) became equivalent 
 to the agreed payment for a loan (usurce, fcenus). The word "interest" seems to have 
 been introduced into England as a substitute for " usury" (q. v.) when that word had ac- 
 quired its dyslogistic meaning. 
 
 INTERLOCUTORY. — § 1. A proceeding in an action is said to be 
 interlocutory when it is incidental to the principal object of the action, 
 namely, the judgment. Thus, interlocutory applications in an action in- 
 clude all steps taken for the purpose of assisting either party in the pro- 
 secution of his case, whether before or after final judgment ; or of protect- 
 ing or otherwise dealing with the subject-matter of the action before the 
 rights of the parties are finally determined; or of executing the judgment 
 when obtained. Such are applications for time to take a step (e. g., to 
 deliver a pleading), for discovery, for an interim injunction, for the ap- 
 pointment of a receiver, for obtaining a garnishee order, &c. So an order 
 giving a plaintiff leave to sign judgment is interlocutory, because he must 
 sign judgment before he can issue execution. 1 The question whether an 
 order is interlocutory is of importance with reference to the time during 
 which it may be appealed against, three weeks being allowed for appeals 
 from interlocutory orders, and one year for all other appeals. 2 
 
 § 2. As to interlocutory judgment, see Judgment, § 5 ; Decree, § 5. 
 
 INTERNATIONAL COPYRIGHT. See Copyright, § 6. 
 
 INTERNATIONAL LAW is of two kinds, public and private. 
 
 § 1. Public international law is the body of rules which control the Public, 
 conduct of independent States in their relations with each other. It is 
 therefore altogether different in its nature from law in the narrower sense 
 of the word, namely, law capable of judicial enforcement, for that implies 
 a force superior to both the litigants or disputants ; and as independent 
 States have no recognized common superior, the rules by which their 
 conduct is governed are incapable of enforcement except by war. 3 
 
 § z. With reference to its sources, public international law is sometimes Natural and 
 divided into natural and positive, — the natural consisting of those rules P 0Sltlve - 
 which are (or are supposed to be) derived from the law of nature, and the 
 positive consisting of rules based on usage or custom (customary inter- 
 national law), and on agreement (conventional international law).* 
 
 See Blockade; Confiscation; Contraband ; Embargo; Municipal ; Postlimi- 
 nium; Pre-Emption ; Privateers; Prize Courts; Reprisals; Retorsion; Search; 
 Territorial. 
 
 1 Smith's Action, 88 ; Standard Dis- 3 Manning's Law of Nations, 5 ; Austin, 
 count Co. v. La Grange, 3 C. P. D. 67 ; Jur. 89. 
 
 Smith v. Cowell, 6 Q. B. D. 75. * Manning, 66—89. 
 
 2 Rules of Court, lviii. 15. 
 
446 
 
 Private. 
 
 Interpleader 
 
 LAW DICTIONARY. 
 
 Interrogatories 
 
 Bill of inter- 
 pleader. 
 
 Interpleader 
 Act. 
 
 Sheriffs. 
 
 § 3. Private international law is that branch of municipal law which de- 
 termines before the Courts of what nation a particular action or suit should 
 be brought, and by the law of what nation it should be determined; in other 
 words, it regulates private rights as dependent on a diversity of municipal 
 laws and jurisdictions applicable to the persons, facts, or things in dis- 
 pute, and the subject of it is hence sometimes called " The Conflict of 
 Laws." 1 
 
 Thus, questions whether a given person owes allegiance to a particular 
 State where he is domiciled, whether his status, property, rights and duties 
 are governed by the lex situs, the lex loci, the lex fori, or the lex domicilii, 
 are questions with which private international law has to deal. 
 
 INTERPLEADER. — § 1. When a person is in possession of pro- 
 perty in which he claims no interest, but to which two or more other 
 persons lay claim, and he, not knowing to whom he may safely give it up, 
 is sued by one or both, he can compel them to interplead, i. e., to take 
 proceedings between themselves to determine who is entitled to it. 
 Thus, where a seller of goods attempts to stop them in transitu, and the 
 buyer or his assignees contend that he has no right to do so, the 
 wharfinger in whose hands the goods are is liable to an action by each 
 for their delivery. Before the Interpleader Act 2 he must either have 
 defended both actions, or filed a bill in equity (called a bill of inter- 
 pleader) to compel them to interplead, 3 but under that act (extended by 
 the C. L. P. Act, 1 860) as soon as either of them commences an action 
 against him he may apply to the Court or a judge, and if there is really a 
 question between the claimants, an order will be made directing it to be 
 tried either by substituting the second claimant as defendant to the action 
 in lieu of the stakeholder, or by a feigned issue or by a special case. In 
 some cases the question may be disposed of summarily. 
 
 § 2. The Interpleader Act also contains provisions for the relief of 
 sheriffs against conflicting claim to goods taken in execution. 4 
 'ollusion, § 2. 
 
 J0C, 
 
 INTERROGATORIES are written questions to be answered on oath. 
 Sometimes the answers are given verbally and taken down in writing, as 
 when a person is examined by interrogatories before an examiner orxom- 
 missioner, 6 but more generally the term is used to denote interrogatories 
 delivered by one party to an action for the examination of the opposite 
 party, who is compellable to answer them by affidavit." By this means a 
 plaintiff is enabled in many cases to ascertain whether he has a good 
 cause of action, or obtain admissions in support of his case. (See Answer; 
 Discovery.) 
 
 The practice of administering interrogatories is derived from the old 
 practice in Chancery.'' 
 
 l , "Westlake's Priv. Int. Law, I et seq. ; 
 Savigny, Syst.v.iii.^a,wz>B; Story's Conflict 
 of Laws. 
 
 2 1 Will. 4, c. 58 ; Rules- of Court, i. 2. 
 
 3 Snell's Eq. 478. 
 
 4 Smith's Action (I2thed.), 167; Broom, 
 Comm. 238 ; Day's C. L. P. Acts, 353 ; 
 
 Chitty, Pr. 1391 ; Coe's Practice, 152. As 
 to the County Court practice of interpleader 
 for the relief of the high bailiff, see Pol- 
 lock's C. C. Pr. 206 et seq. 
 
 6 Rules of Court, xxxvii. I. 
 
 8 Ibid. xxxi. I — 10, 20. 
 
 1 Daniell, Ch. Pr. 404 ; Day, C. L. P. Acts. 
 
Interruption law dictionary. Intervene 447 
 
 INTERRUPTION.— § i. In the law relating to easements, profits a 
 prender, franchises and similar rights, interruption is where the continuity 
 of enjoyment of a right is broken. Interruption of the possession is 
 where the right is not enjoyed or exercised continuously ; interruption in 
 the right is where the person having or claiming the right ceases the 
 exercise of it in such a manner as to show that he does not claim to be 
 entitled to exercise it. Thus if a person who has for some time used a 
 right of way simply ceases to use it, this is an interruption to the 
 possession : if he asks the permission of the owner of the land before 
 continuing to use the right, this is an interruption in the right, even if he 
 then makes use of the way, because he does so not in exercise of his 
 original right, but by virtue of the permission granted to him by the 
 owner. 1 
 
 § 2. Interruption in the right may arise either from the act of the 
 person having or claiming the right, or from the act of the servient 
 owner, or other person, as where an adverse obstruction is erected to 
 prevent the exercise of the right. 2 
 
 § 3. Interruption of the possession has no legal effect except as 
 evidence of an interruption in the right. 3 Interruption in the right may 
 prevent the acquisition of a right by prescription, or may cause the 
 acquisition of a qualified right, or may destroy a right which has been 
 acquired.* By the Prescription Act (q. v.) no act or other matter shall 
 be deemed to be an interruption so as to prevent the acquisition of a 
 right under the act unless it shall have been submitted to or acquiesced 
 in for one year after notice. 6 
 
 See Enjoyment ; Disturbance. 
 
 INTERVENE— INTERVENER.— § 1. An intervener is a person 
 who voluntarily interposes in an action or other proceeding with the 
 leave of the Court. Therefore a person who is cited (q. v.) is not an 
 intervener, although sometimes so called." 
 
 § 2. In divorce practice any person can intervene in a suit for i^ttiy In divorce 
 or dissolution by showing cause against a decree nisi (see Decree, ^vftJ™* 5 ' 
 and at any time during the progress of such a suit and before the decree *H|kii» 
 is made absolute, if the Queen's Proctor suspects that any parties to the Pl TB|H' cr " 
 suit are or have been acting in collusion for the purpose of obtaining a ^^^ 
 divorce, he may by leave of the Court intervene in the suit, alleging the 
 collusion, and retain counsel and subpoena witnesses to prove it.' (See 
 Collusion.) 
 
 1 Gale on Easements, 153, n. (m). was contentious: Gale, 176, citing Eaton 
 
 3 /aid. 154; Shelford, R. P. Stat. 20, v. Swansea Waterworks Co., 17 Q. B. 267; 
 
 and the cases there cited. See further as 15 Jur. 675; 20 L. J., Q. B. 482. 
 to interruption, Co. Litt. 245 b ; Shelford, * Kennaway v. K., 1 P. D. p. 150. 
 
 180. 7 23 & 24 Vict. c. 144, s. 7; 36 Vict. 
 
 3 See Gale, 209; Shelford, 20; Co. Litt. c. 31, s. 1 ; Matrimonial Causes Act, 1878, 
 
 114 b. s. 2 ; Browne on Divorce, 298. See also 
 
 * Co. Litt. 113 b, 114b; Gale and Shel- as to intervention on the custody, &c. of 
 
 ford, 1. c. infants affected by a divorce suit, 20 & 21 
 
 5 Sect. 4. But an interruption for less Vict. c. 85, s. 35, and 22 & 23 Vict. c. 61, 
 
 than a year may prevent the acquisition of s. 4 ; Browne, 308. 
 the right by snowing that the enjoyment 
 
448 
 
 Intestate 
 
 LAW DICTIONARY. 
 
 Intruder 
 
 Probate and 
 Admiralty. 
 
 By appear- 
 ance. 
 
 § 3. In probate actions, and in admiralty actions in rem, any person 
 may intervene who can show that he has l an interest in the matter in 
 dispute. 1 
 
 § 4. The term " intervene" is sometimes applied to those cases where 
 a person may, by leave of the Court, make himself a defendant in an 
 action by entering an appearance : as in an action for the recovery ofland. 3 
 (See Appearance, §2.) 
 
 INTESTATE. — In the strict sense of the word, a person is said to 
 die intestate when he leaves no will : but he is also said to die intestate, 
 wholly or partially, if he leaves a will which does not dispose of his 
 property at all, or only disposes of part of it, so that the whole or a part of 
 it devolves on his heir at law or next of kin according to the rules govern- 
 ing the devolution of intestates' estates : as to which see Descent ; 
 Distribution. 
 
 INTIMIDATION. — Every person commits a misdemeanor, punish- 
 able with a fine of 20/. or imprisonment for three months (maximum), 
 who wrongfully uses violence to, or intimidates, any other person, or his 
 wife or children, with a view to compel him to abstain from doing, or to 
 do, any act which he has a legal right to do or abstain from doing. 3 
 This enactment is chiefly directed against outrages by trades-unions {a. v.). 
 
 INTRA VIRES.— An act is said to be intra' vires ("within the 
 power") of a person or corporation when it is within the scope of his 
 or its powers or authority. It is the opposite of ultra vires {q. v.). 
 
 INTRODUCTION.— The introduction of a deerj consists of the 
 words with which it begins. In an indenture the introduction consists 
 of the words "This Indenture," followed by the word "witnesseth " after 
 the date and parties and the recitals (if any). In a deed poll containing 
 recitals the introduction is " To all to whom these presents shall come, 
 A. B. of, &c. sends greeting :" followed by the recitals ; when a deed poll 
 contains no recitals it begins with the words " Know all men by these 
 presents that I A. B. of &c." 4 (See Deed ; Premises.) 
 
 On heir. 
 
 On crown. 
 
 INTRUDER— INTRUSION.— Intrusion, in the law of real pro- 
 perty, occurs in the following cases : — 
 
 § 1. Where a person (A.) dies seised of an estate of inheritance 
 expectant upon an estate for life, and then the tenant for life dies, and 
 before A.'s heir enters on the land a stranger enters or " intrudes :" 5 A.'s 
 heir has an action to recover possession of the land. 
 
 § 2. " He that entreth upon any of the king's demesnes and taketh the 
 profits, is said to intrude upon the king's possession." 5 Similarly, if a 
 tenant of crown land continues in possession after his estate has 
 
 1 Coote'sProbatePr. ; Browne's Probate 
 Pr. 250; Probate Rules (1862, C. B.), 6; 
 Rules of Court, xii. 16, 17. 
 
 2 Rules of Court, xii. 18 et seq. 
 
 3 Stat. 38 & 39 Vict. c. 86, s. 7. 
 
 4 Davids. Conv. i. 33. 
 6 Co. Litt. 277 a. 
 
Inventions LAW dictionary. Irregular 449 
 
 determined, he is an intruder on the crown, and not a tenant at suffer- 
 ance (q. v.), " because there is no laches imputed to the king for not . 
 entring." 1 (See Information, § 8.) 
 
 § 3. Formerly when an heir in wardship of chivalry ousted his lord p n guardian 
 by entering on the land during his minority, or if, after attaining ™" - 
 
 majority, he entered on the land without making satisfaction for his 
 lord's right of marriage (q. v.), he was said to intrude into the land. 8 
 
 § 4. In ecclesiastical law, intrusion is where a person without ecclesi- On benefice, 
 astical authority takes possession of a benefice while it is full. Several 
 ancient constitutions are directed against this offence. 3 
 
 INVENTIONS. Set Patent; Specification. 
 
 INVESTITURE, in feudal law, was the delivery of corporal posses- Land, 
 sion of land granted by a lord to his tenant. It answered to the more 
 modern livery of seisin 4 {q. v., and see Dignity). ' 
 
 § 2. In ecclesiastical law, investiture is one of the formalities by which Bishop. 
 the election of a bishop is confirmed by the archbishop. 6 
 
 INVESTMENT. — The securities upon which trustees may invest 
 trust funds are usually enumerated in the settlement or will creating the 
 trust. Independently of such an express power, they have a statutory 
 power of investing on "real securities in any part of the United Kingdom, 
 or in stock of the Bank of England, or in East India Stock, unless 
 expressly forbidden by the instrument creating the trust. 6 And trustees 
 who are authorized to invest on government or parliamentary securities 
 may invest .in Bank Stock, East India Stock, Exchequer Bills, 2 J per 
 cent, annuities, and mortgage of freehold and copyhold estates in 
 England and Wales.' Under the latter act, the power of investing 
 on the securities mentioned is not taken away, although the trust 
 instrument forbids such investments. 8 
 
 IRREBUTTABLE. See Presumption. 
 
 IRREGULAR— IRREGULARITY.— When a proceeding (judicial 
 or extra-judicial) is done in the wrong manner, or without the proper 
 formalities, it is said to be irregular or an irregularity — as opposed to a 
 proceeding which is illegal or ultra vires. An irregularity may be waived 
 by the consent or acquiescence of the opposite party or (in the case 
 of judicial proceedings) will generally be allowed by the Court to be set 
 right on payment of the costs occasioned by it ; while a proceeding 
 which is illegal or ultra vires is, as a rule, wholly null and void. 9 
 
 1 Co. Litt. 57 b. 7 Stat. 23 & 24 Vict. c. 38 ; General 
 
 3 Fitz. N. B. 141. Order of the Court of Chancery, 1st Feb. 
 
 3 Phillimore, Eccl. Law, 507 et seq. 1861 ; Watson's Comp. Eq. 897. 
 
 4 Steph. Comm. i. 505. 8 Wedderburn's Trusts, 9 Ch. D..II2. 
 
 6 See PhiU. Eccl. Law, 42 et seq. 9 Archbold's Pr. 1192 ; Rules of Court, 
 
 6 Stats. 22 & 23 Vict. c. 35, a. 32; lix; Smith & Soden, L. & T. 220 (irre- 
 
 23 & 24 Vict. c. 38, s. 12. - gular distress) ; Lindley on Part. 261. 
 
 S. GG 
 
45° Irremovability LAW dictionary. Issue 
 
 IRREMOVABILITY is the status of a pauper who cannot be 
 legally removed from the parish or union in which he is receiving relief, 
 notwithstanding that he has not acquired a settlement there ; thus, 
 a pauper who has resided in a parish during the whole of the preceding 
 year is irremovable. 1 (See Poor Law ; Settlement; Removal ; Residence.) 
 
 IRREPLEVIABLE— IRREPLEVISABLE. See Replevin. 
 
 ISSUABLE in pleading signifies— I. That which is put in issue by 
 the pleadings, e. g., "a matter of fact issuable " 2 — this sense is now rare ; 
 II. A pleading is said to be issuable when it raises a substantial question 
 of fact or law, a judgment or verdict on which would determine the action 
 on its merits. 3 (See Issue.) 
 
 Of person. ISSUE. — I. § i. The issue of a person consists of his children, 
 
 grandchildren, and all other lineal descendants. The word is, however, 
 sometimes used by testators in the sense of " children." 4 (See Heir.) 
 Issues of land. II. § 2. "Issues" is the technical name for the profits of land taken 
 
 in execution under a writ of distringas. 5 (See Rent.) 
 Issues in an III. § 3. When the parties to an action have answered one another's 
 
 action. pleadings in such a manner that they have arrived at some material point 
 
 or matter affirmed on one side and denied on the other, and the party 
 whose turn it is to plead adds nothing to his previous pleadings, the 
 parties are said to be " at issue ;" the last pleading is called a joinder in 
 issue (q. v.), and the question thus raised is called the issue, or one of the 
 issues, in the action. 6 Frequently issue is joined on one question in the 
 case, and the pleadings continue as to the other questions ; where 
 the defendant sets up a counter-claim, issue is generally joined on the 
 original claim before it is joined on the counter-claim. 
 Preparation of § 4. If the pleadings do not succeed in sufficiently defining the issues 
 issues. j n dispute between the parties, the judge may direct the parties to prepare 
 
 issues, that is, to agree upon a written statement containing the questions 
 between them, and, if they differ, the issues are settled by the judge. 7 
 § 5. The next step is the trial {q. v., and see Action). 
 Common law § 6. Under the old common law practice issues were either of fact or of law, the latter 
 practice. being where there was a joinder in demurrer. Under the new practice no joinder in 
 
 demurrer is required, and the term "issue in law" is not now used. 8 (See Questions of 
 Law.) 
 
 § 7. A general issue was a peculiar land of plea used in cases where the defendant 
 wished to deny all the allegations in the declaration or the principal fact on which it was 
 founded ; thus, if an action was brought in respect of a contract or promise, the defen- 
 
 1 Stat. 28 & 29 Vict. c. 79, s. 8; Steph. 4 Jarman on Wills, ii. 101; Ralph v. Car- 
 Comm. iii. 60. rick, II Ch. D. 873. 
 
 2 Co. Litt. 125 a. 6 Finch, Law, 352 et seq. ; 3 Bl. 280 ; 
 
 3 See Smith's Action at Law (nth ed.), Rules of Court (April, 1880), form F. 12. 
 101. A mere dilatory plea, or a plea not 6 Co. Litt. 126 a. 
 
 going to the merits of the action, as a plea 7 Rules of Court, xxvi. ; for a specimen 
 
 in abatement, or of "alien enemy," was of issues settled by the judge, see West v. 
 considered a non-issuable plea under the old White, 4 Ch. D. p. 636. As to issues in 
 practice at common law; Chitty's Pr. 247. divorce cases, see Browne on Divorce, 231. 
 
 8 Rules of Court, xxxiv. 
 
Itinerant LAW dictionary. Jeofail 451 
 
 dant might plead " that he did not promise as alleged," or to an action for a tort " that 
 he is not guilty"; most of these general issues had short Latin or Norman names: 
 e.g., "Non assumpsit." 
 
 § 8. AVhen issue in fact had been joined, all the proceedings in the action from the 
 writ to the award of a jury were set out in a document called the issue, which was de- 
 livered by the plaintiff to the defendant, generally endorsed with notice of trial. 1 
 
 § 9. In equity, joining issue was the mode of bringing on a suit for hearing on repli- Chancery 
 cation, 2 as opposed to motion for decree (q.v.). practice. 
 
 § 10. In criminal procedure a prisoner is said to plead the general issue Criminal 
 when he pleads " Not guilty" to the indictment. This is done when he P ractice - 
 intends either to deny or justify the charge in the indictment f the general 
 issue, therefore, includes defences in the nature of confession and avoid- 
 ance (q. v. and see Plea.) 
 
 *^- — § ii- A writ, subpoena, or similar document, is said to be issued Issue of 
 when it is delivered by the proper officer of the Court to the party at writs ' &c- 
 whose instance it is sued out, after having been sealed or otherwise marked 
 to denote its official character. 1 
 
 See PrcEcipe. 
 
 Etymology.]— Norman-French, issu, issue; Lathi, exitus, from exire, to go forth. As 
 used in pleading, the phrase " occurs at the very commencement of the Year-Books, 
 viz., 1 Edw. II. . . . In some instances the expression isser d 'ampler occurs, which may 
 be translated to get out of, or finish the pleading, and clearly marks the meaning and 
 derivation of the word issue. In the reign of Edw. IV. we find the Latin term thus 
 regularly denned :— 'Exitus idem est quod finis, sive determinatio placid.' Year-Book, 
 21 Edw. IV. 35." 5 
 
 ITINERANT. See Eyre. 
 
 JACTITATION OF MARRIAGE is where a person boasts or 
 gives out that he or she is married to someone, whereby a common 
 reputation of their marriage may ensue;" in such a case the person 
 aggrieved may present a petition in the Probate, Divorce and Matri- 
 monial Division praying a decree of perpetual silence against the 
 jactitator. These suits are of rare occurrence. 7 
 
 JEOFAIL. — In the days of oral pleading, when a pleader perceived any slip in the 
 form of his allegation, he acknowledged his error by the expression j'ay faille, and there- 
 upon obtained liberty to amend. The statutes passed to prevent formal objections being 
 taken after a certain stage in the proceedings were hence called the Statutes of Amend- 
 ment and Jeofail. (See Aid, $ 3; Arrest of Judgment ; Demurrer, § 13.) 
 
 1 Smith's Action (I ithed.), 129; Chitty, 3 Steph. Comm. iv. 405; Archb. Crim. 
 
 Pr. 306. As to pleading the "general issue PI. 144. 
 
 by statute," see Not guilty. This seems * See Rules of Court, v. 6. 
 
 to be the only kind of " general issue by 6 Stephen, PI. (5), App. n. (10). 
 
 statute" which can now be pleaded. " Bl. Comm. iii. 93. 
 
 * Hunter's Suit, 63. ' Browne on Divorce, 85. 
 
 G G 2 
 
452 
 
 Jetsam 
 
 LAW DICTIONARY. 
 
 Joinder 
 
 JETSAM, FLOTSAM AND LIGAN.— Jetsam is where goods 
 are cast into the sea and there sink and remain under water ; flotsam is 
 where they continue swimming on the surface of the waves ; ligan (or 
 lagan) is where they are sunk in the sea, fastened to a cork or buoy,, in 
 order to be found again. In each of these cases the goods belong to the 
 crown, unless the owner appears to claim them. § 2. Jetsam, flotsam 
 and ligan do not fall within the original or common law meaning of 
 "wreck," and therefore do not pass by a royal grant of wreck; but for 
 the purposes of the Merchant Shipping Acts " wreck " includes them. 1 
 (See Wreck.) 
 
 JETTISON is the throwing overboard of goods from necessity to 
 lighten the vessel in a storm, or to prevent capture, or for any other 
 sufficient cause. 2 Jettison is the simplest and oldest instance of general 
 average. (See Average, § 3.) 
 
 JEWS. — Practically the only disabilities to which Jews are now 
 subject are, incompetence to fill certain high offices in the State {e.g., that 
 of lord chancellor), and inability to present to an ecclesiastical benefice 
 attached to an office in her Majesty's gift. 3 
 
 Causes of 
 action. 
 
 Parties. 
 
 Joinder of 
 issue. 
 
 Joinder of 
 error. 
 
 JOINDER. — § 1. Joinder of causes of action. The general rule in 
 actions in the High Court is that the plaintiff may unite in the same action 
 several causes of action, subject to separate trials being ordered where 
 they cannot conveniently be tried together. No cause of action can 
 (unless by leave) be joined with an action for the recovery of land, except 
 claims for mesne profits or arrears of rent, or breach of contract in respect 
 of the same property. Claims in autre droit cannot as a rule be joined 
 with personal claims. 4 
 
 § 2. Joinder of parties. All persons may be joined as plaintiffs in 
 whom the right to any relief claimed is alleged to exist, whether jointly, 
 severally, or in the alternative; and the same rule applies to the de- 
 fendants. 5 (See Misjoinder; Non-joinder; Party.) 
 
 § 3- Joinder of issue is where one of the parties joins issue upon the 
 previous pleading, or upon certain parts of it ; that is to say, where the 
 party whose turn it is to plead denies every material allegation of fact in 
 the previous pleading, or in a specified part of it, without alleging any 
 new facts in support of his case, and thus puts an end to the pleadings, 
 wholly or to a certain extent. In ordinary cases the reply (q. v.) is a 
 simple joinder of issue on the statement of defence. 6 (See Action ; Issue, 
 § 3 ; Pleadings; as to joinder in demurrer, see Issue, § 6.) 
 
 § 4. In proceedings on a writ of error in criminal cases, the joinder of 
 
 1 Bl. Comm. i. 292 ; Steph. Comm. ii. 
 542 ; Constable's Case, 5 Rep. 106. 
 
 2 Maude & Pollock, Merch. Shipp. 116, 
 320, 369. 
 
 3 Steph. Comm. iii. 710. 
 
 4 Rules of Court, xvii. The general 
 rule as to joinder must, it would seem, be 
 
 treated as subject to the direction that 
 certain actions can only be brought in cer- 
 tain divisions of the High Court. (See 
 High Court of Justice.) 
 
 5 Rules of Court, xvi. 
 
 6 Ibid. xix. 21, App. C, Form No. 23. 
 
Joinder law dictionary. Joint 453 
 
 error is a written denial of the' errors alleged in the assignment of errors, 
 and is in the name of the Attorney-General or the Queen's Coroner and 
 Attorney. 1 It answers to a joinder of issue in an action. (See Error.) 
 
 JOINT, — I. § 1. As applied to property (other than choses in action), Property, 
 "joint" signifies that it belongs to two or more persons in such a way 
 that on the death of one of them without having disposed of his interest 
 inter vivos, it passes to the survivors, and so on until they have all died 
 but one, who then takes the whole by survivorship. This quality dis- 
 tinguishes a joint ownership from an ownership in common, and also, 
 in the case of land, from the form of ownership known as copar- 
 cenary {q. v.). As to the rules relating to joint ownership and ownership 
 in common, see Joint Tenancy ; Tenancy in Common. 
 
 II. § 2. In the case of bonds, covenants, contracts and other choses in Joint owner- 
 action, when the right of action is vested in two or more persons, so that S ^ c °( ^° SeS 
 they must all join in suing upon it, then the bond, covenant, &c. is said 
 to be joint, as opposed to one which is several, namely, where each of the 
 obligees has a separate interest, and may therefore sue alone. Whether 
 a bond, covenant or the like is joint or several depends much more upon 
 the subject-matter than upon the words employed, for if each of the 
 obligees has a separate interest, the right of action will be several, 
 although expressed to be joint and several. A bond, covenant, or the like, 
 entered into with several obligees, cannot be joint or several at their 
 election, but must be either one or the other. 2 § 3 . If one obligee releases 
 the obligor, this is sufficient to bar all the obligees ; and if one of several 
 joint obligees dies, his interest passes to the survivors. In the case of 
 partners in trade, however, the share of a deceased partner devolves in 
 equity on his personal representatives, and the surviving partners become 
 trustees for them of his share. 3 The same rule applies where two or 
 more persons advance money and take the security to themselves jointly. 
 § 4. A joint ownership of a chose in action cannot be severed at law by 
 either or both of the obligees, but the parties may make a severance 
 which will be binding in equity. 4 (See Tenancy in Common!) 
 
 § 5. Two or more persons may be jointly liable to the same debt or Joint liability 
 demand, and though each is liable for the whole debt, yet they are all on choses in 
 considered as together forming one person ; they must therefore all be 
 sued together, and a voluntary release to one will discharge them all. 
 (See Release.) On the other hand, if one of them is compelled to pay the 
 whole debt, he is entitled to contribution from the others to the extent 
 of their shares. 5 (See Contribution.) On the death of one, his liability 
 passes to the survivors, except in the case of partners, for on the death 
 of a partner his estate remains liable in equity for all partnership debts 
 then existing. 6 Hence it is sometimes said that though a partnership 
 debt is joint at law, in equity it is joint and several : but the rule is only 
 
 1 Archbold, Crim. PI. 204. -1 Ibid. 358. 
 
 2 Williams, P. P. 356. s Ba.ta.rd v. Hawes, 2 Ell. & Bl. 287. 
 
 3 Ibid. 354, 357. 6 Williams, P. P, 360, 364. 
 
454 Joint law dictionary. Joint Stock Company 
 
 Joint and true to the extent above mentioned. 1 § 6. A liability may, however, be 
 several. both j oint and severa i ; so t ij at the creditor may sue one or more of the 
 
 debtors separately, or all of them jointly at his option. 2 And if one of 
 them is compelled to pay the whole debt or more than his proportion, 
 he is entitled to contribution from the others. (See Contribution.') If 
 one of them dies, his estate remains liable in the same way that he was. 3 
 As to the release of such a liability, see Release. 
 In bank- ni. § 7. In the law of bankruptcy, when several persons are partners 
 
 mp cy ' together, and all become insolvent, the petition and adjudication 
 
 of bankruptcy against them may be either joint, that is, embracing 
 all the members of the firm, or separate, that is, confined to each 
 member individually. 4 When all the members of a firm, qua. partners, 
 are adjudged bankrupt, the property of the members which vests 
 in the trustee is divided into two parts, namely, the joint estate, or 
 that of the firm, such as the capital, stock in trade, &c, and the separate 
 estates consisting of the private property of each partner ; and distinct 
 accounts are also kept of the joint or partnership debts, and of the 
 separate debts. This is necessary, because it is a rule that joint creditors 
 (that is, creditors against the firm) are entitled to have their debts paid 
 in ' full out of the joint estate before the separate creditors (that is, the 
 creditors of each member) can receive anything from the joint estate, 
 while the separate creditors of each partner are entitled to a similar 
 priority of payment out of his separate estate as against the joint 
 creditors. 5 § 8. A joint and several creditor is one for whose debt the 
 firm is jointly, and all or some or one of its members are or is also 
 separately liable. 6 Thus, if A. and B. are trading in partnership under 
 'the firm of A. and Company, and a bill of exchange is accepted by A. and 
 Company, and indorsed by A., the holder of the bill would in the event 
 of A. and B.'s bankruptcy be a joint and several creditor, and therefore 
 entitled to prove against both the joint estate of the firm, and the separate 
 estate of A. 7 (See Conversion, § 8 ; Proof.) 
 Land Transfer IV. § 9. In the case of land registered under the Land Transfer Act, 
 1 875, "joint proprietors" mean any two or more persons who are 
 registered as being together entitled to land, whether concurrently (e. g., 
 as joint tenants, tenants in common, &c.) or successively (e. g., tenant for 
 life and remainderman). 8 
 
 JOINT STOCK COMPANY is a term which was originally applied 
 to those unincorporated companies or large partnerships with transferable 
 shares formed at the beginning of the last century (joint stock companies 
 under the common law), and as to the legality of which doubts were 
 
 1 Kendall V.Hamilton, 4 App. Ca. at "W. 500; Lindley, 1145 et seq. ; Ready. 
 p. S l 1- Bailey, 3 App. Ca. 94. 
 
 2 Dicey on Parties, 230 et seq. 6 Robson, 616. 
 " Williams, P. P. 363. ' Ex parte Honey, L. R., 7 Ch. App. 
 
 Act 
 
 * Robson's Bankr. 572. 178. 
 
 6 Ibid. 583, 609 j Ex parte Cook, 2 P. » Sect. 69. 
 
Joint Stock Company law dictionary. Joint Tenancy 455 
 
 and are entertained. 1 By various acts from 1825 to 1857, the principal 
 of which were those of 1844, 1855, 1856 and 1857, the formation of joint 
 stock companies was legalized and facilitated. 2 As to the acts now in 
 force, see Companies Acts ; Dissolution, § 3. 
 
 JOINT TENANCY.— § 1. An estate in joint tenancy, in the strict 
 sense of the phrase, is created where land or any other tenement is 
 conveyed or given to two or more persons to hold in fee, for life, or other 
 estate. Persons may also be joint tenants by wrong, as where two or more 
 disseise another of any lands or tenements to their own use. 3 (See Title.) 
 § 2. The term joint tenancy is also applied to personal property,* e. g., 
 stock in the funds, although it is not the subject of tenure ; hence it is 
 more correct to say that two persons are jointly entitled to stock, or that 
 they have a joint ownership of it. As to choses in actions, see Joint, 
 §§ 2 et seq. 
 
 § 3. When two or more persons are joint tenants of property, they 
 have, with respect to all other persons than themselves, the properties of 
 a single owner. The principal incidents of joint tenancy are as follows : 
 
 § 4. Every joint tenant is seised or possessed of the joint property 
 per my et per tout, that is, by every part and by the whole f by this is 
 meant that the possession of each is indivisible, and that each has an 
 equal right, so that no one can claim the exclusive possession of any 
 particular part of the property, though each is entitled to his proportion 
 of the rents or other income. 6 It also follows that one joint tenant 
 cannot convey his interest to his co-tenants in the same way that one 
 stranger conveys to another, and therefore the proper mode of conveyance 
 from one joint tenant to another is by release, operating as an extinguish- 
 ment of the interest conveyed. 7 (See Release.) §5. Every joint tenancy 
 is created by one and the same title (that is, the same devise or the same 
 conveyance), and at one and the same time ; hence if land is limited to A. for 
 life, and after his death to the heirs of B. and C, and B. dies in A.'s lifetime, 
 and afterwards C. dies also in A.'s lifetime, here B. and C.'s heirs are 
 not joint tenants, because the remainder in one moiety of the land vested 
 in B.'s heirs, while the remainder in the other was still contingent. 8 
 But under the Statute of Uses, or by a gift by will, two persons may 
 be joint tenants, although they come to their estates at different times. 9 
 § 6. All the joint tenants must be owners in the same interest and in the 
 same capacity ; and, therefore, if land is given to two persons, to the one 
 for life, and the other for years, they are not joint tenants (see Estate 
 Tail, § 4). So if land is given to the king and to a subject, they are not 
 joint tenants, because the king is seised in his royal or politic capacity in 
 jure corona, while the subject is seised in his natural capacity. 10 § 7. But 
 
 1 See the Bubble Act of 1719 (6 Geo. I, Latin medius, half or part (French mi). 
 c. 18), passed to discourage these associa- The latter seems the more probable. See 
 
 tions; Lindley on Partnership, 189 et set?. Littre, Diet. ». w. ; Diez. v. 
 
 3 Ibid. 7. « Williams, R. P. 134. 
 
 3 Litt. §§ 277, 278. 7 Ibid. 137. 
 
 1 Co. Litt. 182 a. 8 Co. Litt, 188 a. 
 
 5 Litt. § 288. It is not quite clear 9 Ibid, and note (13); Williams, R. P. 
 
 whether my or mie comes from the Latin 137; Williams, P. P. 355. 
 mica, a little bit (French mie), or from the lu Co. Litt. 188 a, 190 a. 
 
456 Joint Tenancy law dictionary. Jointure 
 
 the most important quality of a joint tenancy is that of survivorship ; 
 " as if three joyntenants be in fee simple, and the one hath issue and 
 dieth, yet they which survive shall have the whole tenements, and 
 the issue shall have nothing. And if the second joyntenant hath issue, 
 and dye, yet the third which surviveth shall have the whole tenements to 
 him and to his heires for ever." 1 But any joint tenant may by disposing 
 of his share during his lifetime (though not by will) to a stranger, sever 
 the joint tenancy, so far as that share is concerned, so that it will, 
 henceforth be held by the stranger as tenant in common with the remaining 
 tenant or tenants, who will continue to be joint tenants as between 
 themselves. 2 Joint tenants may also make partition (q. v.). 3 
 
 § 8. An exception to the right of survivorship between joint owners 
 occurs in the case of partners in trade, for in this case the law vests in 
 the executors or administrators of a deceased partner the share of the 
 deceased in all personal chattels in possession (such as merchandise or 
 ships) belonging to the partnership. But this rule does not apply to real 
 estate or choses in action, which by law go by survivorship to the surviving 
 partners. In equity, however, the share of the deceased partner in the 
 real estate and choses in action of the partnership devolves on his execu- 
 tor or administrators, and the surviving partners are therefore trustees of 
 it for his executors or administrators. (See also Joint, § 3.) 
 
 § 9. The incident of survivorship being inconvenient where persons are 
 beneficially entitled to property, joint tenancy seldom occurs except in the 
 case of trustees ; here the incident is useful, for on the decease of one of 
 the trustees the property vests in the survivors by mere operation of law, 
 without devolving on the representatives of the deceased trustee, and with- 
 out being affected by any testamentary disposition by him. 4 
 
 See Estate, §11; Joint. 
 
 JOINTRESS is a woman entitled to a jointure (q. v.). 
 
 JOINTURE, — I. § 1. In the ordinary sense of the word, jointure is 
 a provision made by a husband for the support of his wife after his death. 
 It is either legal or equitable. 
 Legaljointure. § 2. A legal jointure is (or rather was, for it has long been practically 
 obsolete) " a competent livelihood of freehold for the wife of lands or 
 tenements, &c, to take effect presently in possession or profit after the 
 decease of her husband for the life of the wife at the least," 5 and was 
 given to her either — (1) at common law, in which case it did not bar 
 the wife's dower ; or (2) by way of use before the Statute of Uses ; or 
 (3) under the provisions of the Statute of Uses — in which case, if the 
 jointure was made in compliance with the act, it operated so as to bar the 
 wife's dower, or to put her to her election whether she would take the 
 
 1 Litt. § 280. 1 "Williams, R.P. 139; Watson's Comp. 
 
 2 Ibid. \\ 287, 294. Eq. 452. 
 
 3 /bid. § 290; Co. Litt. 187 a; Williams, 5 Vernon's Case. 4 Rep. 2b ; Co. Litt. 
 R.P. 138. 36 b. 
 
Judge law dictionary. Judge Advocate 457 
 
 jointure or the dower, according as the jointure was made before or after 
 the marriage. 1 
 
 § 3. An equitable jointure generally consists of a rent-charge or annuity Equitable 
 payable by the trustees of a marriage settlement to the wife for her life if jointure- 
 she should survive her husband, the rent-charge or annuity being generally 
 secured by powers of distress and entry, and by the limitation of the settled 
 lands to trustees for a long term of years. 2 If the settlement is made by Power of 
 a tenant in tail after attaining twenty-one, and during his father's lifetime, J 0lntunn g- 
 the land is disentailed and resettled on the father and son successively for 
 life, with remainder in tail to the son's issue, with power for the son to 
 charge a jointure rent-charge secured by powers of distress and entry in 
 favour of any wife whom he may marry, and to limit a term for securing 
 it. By a separate deed the son exercises these powers in favour of the 
 lady whom he is about to marry. 3 
 
 § 4. The acceptance of an equitable jointure by a wife always operated 
 as a bar to her dower. 4 Since the Dower Act, the doctrine of a jointure 
 (legal or equitable), operating as a bar to dower, is of no practical impor- 
 tance. 5 (See Dower.') 
 
 II. § 5. Jointure is the old term for joint tenancy. 6 
 
 Etymology and History.] — The derivation of jointure in the sense of joint tenancy 
 is obvious. The word acquired its meaning of a provision for a wife after her husband's 
 death from the practice of making a provision for a wife by limiting a "jointure" or 
 estate in joint tenancy to her and her husband before marriage, so that the estate would 
 pass to the survivor. 7 
 
 JUDGE is an officer of the crown who sits to administer justice 
 according to law. Judges are divided into judges of record, not of 
 record, superior and inferior judges, &c. in the same way as the Courts of 
 which they are members. (See Court ; Chambers ; Justice!) 
 
 § z. No action will lie against a judge of record for any act done by 
 him in the exercise of his judicial functions ; and even inferior justices, 
 and those not of record, cannot be called in question for an error in 
 judgment, so long as they act within the bounds of their jurisdiction." 
 If, however, a judge not of record exceeds his jurisdiction, he is liable to 
 an action by the injured party. 9 (See Coram non Judice.) 
 
 § 3. As to the removal of judges, see Dum bene se gesserit. 
 
 JUDGE ADVOCATE GENERAL is the adviser of the crown in 
 reference to courts martial and other matters of military law. 10 He is 
 generally a member of the House of Commons and of the government 
 for the time being. 
 
 1 Ibid. ; "Watson's Comp. 580. 8 Garnett v.Ferrand, 6 B. & C. 611 ; 
 
 2 Elphinstone, Conv. 322, 332 et seq. Mostyn v. Fabrigas, Smith, L. C, 652 ; 
 
 3 Ibid. 420 et seq. See Resettlement. Scott v. Stansfield, L. R. 3 Ex. 220 ; Willis 
 
 4 Williams, R. P. 226. v. Maclachlan, 1 Ex. D. 376. 
 
 5 Ibid. 227. " See Crepps v. Durden, Smith, L. C. i. 
 
 6 Litt. § 280. 7»- 
 
 7 Co. Litt. 187 b. 10 Steph. Comm. ii. 590, note. 
 
458 
 
 Judge Ordinary 
 
 LAW DICTIONARY. 
 
 Judgment 
 
 JUDGE ORDINARY.— By stat. 20 & 21 Vict. u. 85, s. 9, the judge of the Court 
 of Probate was made judge of the Court for Divorce and Matrimonial Causes created by 
 that act, under the name of the Judge Ordinary ; he was in effect judge of first instance 
 in all matters within the jurisdiction of the Court. By the Judicature Acts, which trans- 
 ferred the jurisdiction of the Court to the High Court of Justice, the Judge Ordinary was 
 made President of the Probate, Divorce and Admiralty Division of the High Court, and 
 is now so called. (See Court for Divorce and Matrimonial Causes.) 
 
 JUDGE'S NOTES. — When evidence is given viva voce on the trial 
 of an action, the judge usually takes notes of the evidence, which are 
 used when it becomes a question what the evidence was, e.g., on a 
 motion for a new trial, or an appeal. 1 The judge is not bound either to 
 take the notes or to allow them to be used, although in practice he does 
 both. 
 
 Spoken judg- 
 ment. 
 
 Civil. 
 
 In rem. 
 
 In personam 
 or inter partes. 
 
 JUDGMENT is the decision or sentence of a Court on the main 
 question 3 in a proceeding, or on one of the questions, if there are several. 
 The judgment so pronounced is entered on the records of the Court 3 
 (see Record ; Enter). The term "judgment," however, is also used to 
 denote the reasons which the Court gives for its decision ; so that where 
 the Court consists of several judges it may and often does happen that 
 each judge gives a separate judgment or statement of his reasons, although 
 there can be only one judgment of the Court in the technical sense of 
 the word. These judgments are reported as precedents in important 
 cases. (See Reports!) 
 
 In civil actions, judgments (in the technical sense) are of the following 
 kinds : — 
 
 § 2. With regard to their conclusive effect, judgments are of two 
 kinds, in rem and in personam (see In Personam). A judgment in rem is 
 an adjudication pronounced upon the status of some particular subject- 
 matter by a tribunal having competent authority for that purpose*. Such 
 an adjudication being a solemn declaration from the proper and accredited 
 quarter that the status of the thing adjudicated upon is as declared, it 
 concludes all persons from saying that the status of the thing or person 
 adjudicated upon was not such as declared by the adjudication. Thus 
 the Court of Exchequer having in certain revenue cases a right to 
 condemn goods, its judgment is conclusive against all the world that the 
 goods so condemed were liable to seizure. 4 So a declaration of legitimacy 
 and (it would seem) a judgment of outlawry are in effect judgments in rem. 
 A judgment of divorce pronounced by a foreign Court is in certain cases 
 recognized by English Courts, and is then a judgment in rem. 5 (See 
 Divorce, § 7.) 
 
 § 3. A judgment in personam is more accurately called a judgment 
 inter partes, for an adjudication upon the status of a particular person (as 
 
 1 Rules of Court, lviii. 11. 
 
 '* The obsolete judgment of respondeat 
 ouster (q. v.) is an exception to this defini- 
 tion ; but as it was not really a judgment, 
 but an interlocutory order, it has not been 
 thought necessary to frame the definition 
 
 so as to include it. 
 
 3 Rules of Court, xli. 1, 1 a; xliA. 
 
 4 Smith's L. C. ii. 785. 
 
 5 Ibid. 784 ; Harvey v. Farnie, 5 P. D. 
 153- 
 
Judgment law dictionary. Judgment 459 
 
 in the cases mentioned above) is as much a judgment in rem as an 
 adjudication on the status of a thing. 1 Judgments in personam are those 
 which bind only those who are parties or privies to them; as in an 
 ordinary action of contract or tort, where a judgment given against A. 
 cannot be binding on B. unless he or some one under whom he claims 
 was party to it. 2 
 
 § 4. A final judgment is one which puts an end to the action by Final, 
 declaring that the plaintiff has or has not entitled himself to the remedy 
 he sued for, so that nothing remains to be done but to execute the 
 judgment. Thus, if the plaintiff in an action for damages obtains judg- 
 ment for 500/. damages and costs, the judgment is final. 
 
 § 5. An interlocutory judgment is one which does not terminate the Interlocutory, 
 action, because it is not complete and definite. Thus, if judgment by 
 default is signed against the defendant in an action for damages, it is an 
 interlocutory one, because the amount of the damages has to be assessed, 
 after which final judgment is signed 3 (see Writ of Inquiry) ; so judgment in a 
 Chancery action for administration or account is in general interlocutory, 
 because the accounts and inquiries remain to be taken and made. (See 
 Further Consideration.') 
 
 § 6. A judgment on the merits 4 is where the case has been argued and Judgment on 
 the Court has decided which party is in the right ; such a judgment is the merits - 
 given on demurrer or after trial (q. v. ; and see Motion for Judgment ; 
 Verdict). 
 
 A judgment is not given on the merits when it is founded on some 
 technical rule of procedure ; the following are the principal instances : — 
 
 § 7. Judgment by default is obtained when one party neglects to take Judgment by 
 a certain step in the action within the proper time, and the judgment so default > 
 obtained is called according to the step which ought to have been taken, 
 e.g., judgment in default of appearance, 6 judgment in default of delivery 
 of defence, 6 &c. § 8. Judgment of nonsuit is where the plaintiff fails to of nonsuit. 
 appear on the trial, or throws up the action (see Nonsuit) ; like a judgment 
 by default, it may be set aside on such terms as the Court thinks fit. 7 
 (See also Discontinuance.) 
 
 § 9. Judgment by judge's order is obtained either by consent, or on Judge's order, 
 failure by the defendant to satisfy the judge that he has a good or prima, 
 facie defence to an action for a liquidated demand. 8 To obtain this latter Judgment 
 kind, commonly called "judgment under Order XIV.," the plaintiff takes Q D j er XIV 
 out a summons supported by an affidavit verifying the cause of action, and 
 stating that he believes the defendant has no defence. If the defendant 
 fails to satisfy the judge that he ought to be allowed to defend the action, 
 the judge either orders judgment to be signed, or allows him to defend on 
 
 1 Smith's L. C. ii. 784 et seq. actions, see Pollock's C. C. Practice, 96 
 
 2 Ibid. 788. et seq. 
 
 3 Rules of Court, xxix. 4 ; Archbold, ' Rules of Court, xxix. 14 ; xli. 6. 
 
 Pr. 802. 6 Ibid. xiv. (Rules of May, 1877); Arch- 
 
 4 See Rules of Court, xli. 6. hold's Pr. 784 ; Thompson v. Marshall, 
 
 5 Rules of Court, xiii. 3. W. N. 1879, 213; Crump v. Cavendish, 
 
 6 Ibid. xxix. 2. As to judgment by con- 5 Ex. D. 21 1. 
 fession and agreement in County Court 
 
460 
 
 Judgment 
 
 LAW DICTIONARY. 
 
 Judgment 
 The writ must be 
 
 By confession ; 
 
 de melioribus 
 damnis. 
 
 Of assets in 
 future. 
 
 Special judg- 
 ment against 
 executor, &c. 
 
 General judg- 
 ment. 
 
 Chancery 
 judgments. 
 
 Personal. 
 
 Married 
 woman. 
 
 Execution of 
 judgments. 
 
 paying the money into Court or giving security, 
 specially indorsed. (See Writ of Summons!) 
 
 The following kinds of judgment are peculiar to the Queen's Bench 
 Division of the High Court ; some of them are rare in practice, if not 
 obsolete : — 
 
 § 10. Judgment by confession is where a defendant gives the plaintiff a 
 cognovit or written confession of the action, by virtue of which the plaintiff 
 signs judgment. (See Cognovit.) § 11. Where in an action against 
 several persons for a joint tort, the jury by mistake sever the damages by 
 giving heavier damages against one defendant than against the others, the 
 plaintiff may cure the defect by taking judgment for the greater damages 
 (de melioribus damnis) against that defendant and entering a nolle pros. 
 (q. v.) against the others. 1 § 12. Judgment of assets in future or quando 
 acciderint (shortly " judgment quando ") ; if an executor is sued for a debt 
 of his testator and pleads plene administravit (q. v.), or if an heir is sued and 
 pleads riens per descent (q. v.), the plaintiff in his reply may confess the truth 
 of the plea and pray judgment of assets in futuro : or if an executor pleads 
 plene adm. prater, the plaintiff may have immediate judgment of the assets 
 acknowledged to be in the hands of the defendant, and of assets in futuro 
 for the residue. A judgment of assets quando acciderint, or in futuro, is one 
 to be levied when assets shall come to the hands of the heir or executor. 2 
 (See Scire facias.) § 13. If an heir or executor pleads any other defence 
 and fails, the judgment is usually special, viz., that the debt be levied of 
 the goods or land of the testator as the case may be ; but if he pleads a 
 defence which is false to his own knowledge {e.g., ne unques executor or 
 riens per descent) then the judgment may be general, viz., that the debt 
 be levied as if the action had been brought against him for his own 
 debt. 3 
 
 § 14. In the Chancery Division judgments are generally known by 
 names indicating their objects. Thus a judgment directing an account 
 to be taken is called a judgment for an account, and a judgment entitling 
 a mortgagor to redeem the mortgaged property is a judgment for 
 redemption. In an action against a mortgagor, the judgment may be 
 both a personal judgment directing the defendant to pay the mortgage 
 debt, and a foreclosure judgment, or judgment of sale, enabling the 
 plaintiff to foreclose or sell the mortgaged property on default in payment 4 
 (see infra, § 20). § 15. Judgment against the separate estate of a 
 married woman on a covenant entered into by her is in a special form. 5 
 (See Engagement.) 
 
 §, 16. A judgment is enforced by execution against the person or pro- 
 perty of the party 6 against whom it is given. 7 (See Execution, § 3.) 
 Formerly a judgment for the payment of money operated as a charge 
 
 1 Archbold, Pr. 406. 
 
 2 Ibid. 1006 et seq.; Smith's Action 
 (nth edit), 363. 
 
 3 Ibid. 
 
 4 Greenough v. Littler, 15 Ch. D. 93. 
 
 5 Pike v. Fitzgibbon, 14 Ch. D. 837. 
 
 6 Not necessarily the defendant, for on 
 a counterclaim judgment may be given 
 against the plaintiff (Rules of Court, xxii. 
 10). 
 
 7 See Birmingham Estates Co. v. Smith, 
 13 C. H. D. 506. 
 
Judgment LAW DICTIONARY. Judgment 461 
 
 upon all the lands, tenements, and hereditaments of the person against 
 whom it was entered up, in the same way as if he had charged them by 
 writing under his hand. Provision was made for registration of such 
 judgments. (See Registration?) Now, however, no judgment entered up 
 after the 29th July, 1864, affects any land until it has been actually 
 delivered in execution ; the writ is registered in the name of the debtor. 1 
 
 § 17. A judgment may in some cases be enforced in other Courts than Removal and 
 that in which it was originally given : thus a judgment of a County f"^^^.™™' ° f 
 Court or other inferior Court may in certain cases be removed into the 
 High Court of Justice, and then execution may be issued as if it had been 
 a judgment of the High Court. 2 § 18. Conversely an inferior Court may, 
 in a proper case, commit a debtor to prison for nonpayment of a sum not 
 exceeding 50/. due under a judgment of the High Court. 3 § 19. By the Registration 
 Judgments Extension Act, 1868, a judgment obtained in a superior Court jnshiude- 311 
 of England, Scotland, or Ireland, may be registered in a superior Court of ments. 
 either of the other two countries, and then has the same effect as if it had 
 been originally obtained in the latter Court. This is done for the pur- 
 pose of issuing execution in England on a judgment obtained in Scotland 
 or Ireland, and vice versa.. 4 
 
 § 20. A judgment may in some cases be transferred from one person Transfer of 
 to another ; thus where in a foreclosure action against the mortgagor of J ud g ment - 
 land, and a person who had purchased the equity of redemption from 
 him, personal judgment for the mortgage debt was given against the 
 mortgagor, and a foreclosure judgment against the mortgagor and his 
 purchaser, it was ordered that in the event of the purchaser redeeming the 
 mortgage, the mortgagee (the plaintiff) should transfer to him the benefit 
 of the personal judgment against the mortgagor, and that he should be 
 at liberty to enforce it in the name of the plaintiff upon indemnifying him 
 against his costs and expenses. 5 As to assigning judgments to sureties, 
 see Surety. 
 
 § 21. In some cases a judgment may give rise to a fresh cause of Action on 
 action. Thus, if it becomes necessary to enforce a judgment against jidg™ 6111 - 
 persons who have succeeded to the liability of the original defendants, 
 an action must be brought for that purpose. 6 So an action may be 
 brought to set aside a judgment obtained by fraud. 7 At common law, 
 every judgment for payment of a sum of money creates a debt on which 
 the successful party may bring an action, and in some cases he could not 
 enforce it in any other way, e. g., if he had allowed a year and a day to 
 
 1 Stats. I & 2 Vict. c. no ; 2 & 3 Vict. of the Central Office of the Supreme Court 
 c. 11 ; 23 & 24 Vict. c. 38 ; 27 & 28 Vict. (Judicature (Officers) Act, 1879). As to 
 c. 112 • Williams, R. P. 84 et seq. ; Dart, the duties of the Registrar of Judgments, 
 V. & P. 456 ; Watson's Comp. Equity, see s. 14 and Rules of Court, Dec. 1879, 
 464; Anglo-Italian Bank v.Davies, 9 Ch. and April, 1880. 
 
 J) 21c.. 5 Greenough v. Littler, 15 Ch. D. 93. 
 
 2 Stats. 1 & 2 Vict. c. no, s. 22 ; 19 & See however Rules of Court, xlii. 19. 
 
 20 Vict. c'. 108, s. 40 ; Williamsv. Bolland, 6 Att.-Gen. v. Corporation of Birming- 
 
 I C. P. D. 227 ; Chitty, Pr. 1332. ham, 15 Ch. D. 423. 
 
 s Debtors Act, 1869, s. 5 ; Washer v. 7 Flower v. Lloyd, 6 Ch. D. 297 ; 10 
 
 Elliott 1 C. P. D. 169. Ch. D. 327 ; Lancaster Banking Co. v. 
 
 4 The Judgments Office now forms part Cooper, 9 Ch. D. 594. 
 
462 Judgment law dictionary. Judicial Committee 
 
 elapse without issuing execution ; but such a proceeding was never 
 favoured if there was another remedy for enforcing the judgment. The 
 stat. 13 Edw. 1, c. 45, enabled a plaintiff to bring a scire facias (?.».) on 
 his judgment after a year and a day. 1 And to discourage unnecessary 
 actions on judgments, the stat. 43 Geo. 3, c. 46, directed that the plaintiff 
 should not be entitled to costs, except by special order of the Court. 
 Under the modern practice execution may be issued as of right within 
 six years from the judgment, and by leave of the Court at any time 
 afterwards, 2 without bringing an action on the judgment, and such actions 
 therefore appear to be practically obsolete. 
 Foreign judg- § 22. A judgment given in personam for an ascertained sum by a 
 ments ' foreign Court of competent jurisdiction is considered in England as prima 
 
 facie evidence of the defendant's liability to pay the amount to the plain- 
 tiff, and may therefore be the subject of an action in the English Courts. 
 So if A. brings proceedings against B. in a foreign country and fails, and 
 then sues B. for the same cause of action in an English Court, B. may 
 defeat the second action by pleading the foreign judgment as res 
 judicata. 3 In the latter case the judgment is conclusive. Where, however, 
 an action is brought here to enforce a foreign judgment, it seems that our 
 Courts will so far examine into it that if the proceedings by which it was 
 obtained, or the law on which it is founded, are " repugnant to natural 
 justice," or contrary to some principle of morality or public policy recog- 
 nized by English law, they will refuse to enforce it. 4 
 Criminal. §23. In criminal proceedings, the judgment is the sentence of the Court 
 
 on the verdict of the petty jury, or on the prisoner pleading guilty to the 
 indictment. 5 Where the jury acquits the prisoner the judgment is that he 
 be discharged of the premises : if he pleads guilty or is convicted the 
 judgment declares the punishment which he has to suffer; e.g., death,, 
 imprisonment, fine, &c. c 
 
 See Appeal; Res judicata; Writ of Error. 
 
 Etymology. — Norman-French, jugement; low Latin, judicamentum, from Latin, 
 judicare. 
 
 JUDGMENT CREDITOR— JUDGMENT DEBTOR— JUDG- 
 MENT DEBTS. See Committal, § 3 ; Debt, § 3 ; Debtors Act, 1869. 
 
 JUDICATURE ACTS. See Central Office ; Court of Appeal ; High 
 Court of fustice ; Supreme Court of fudicature. 
 
 JUDICIAL. See Extrajudicial ; Remedy ; Writ. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL was 
 
 created by stat. 3 & 4 Will. 4, c. 41, for the purpose of hearing all appeals 
 
 1 2 Wms. Saund. notes to Jejfreson v. 4 Westlake, 311. 
 Morton and Underhitt v. Devereux. 5 Arch. Crim. PI. 249. 
 
 2 Common Law Proc. Act, 1852, ss. 128 6 Ibid. 183 ; Steph. Comm. iv. 443. 
 etseq.; Rules of Court, xlii. 18 et seq. Formerly judgment of death might be re- 
 
 3 Westlake's Priv. Int. Law, 2nd edit. corded without being pronounced where it 
 ■ 301 ; In re Boyse, 13 Ch. D. 591 ; Piggott was intended to reprieve the prisoner, but 
 
 on Foreign Judgments ; see 14 & 15 Vict. this has been abolished: stats. 4 Geo. 4, 
 t. 99, s. 7. c. 48 ; 24 & 25 Vict. c. 95. 
 
Judicial Separation LAW dictionary. Jure Mariti 463 
 
 or complaints in the nature of appeals which before the passing of the 
 act could be brought before the king or the king in council, and also 
 certain other appeals, which were previously heard by o,ther tribunals. 
 
 § 2. The Judicial Committee consists of the President of the Privy Council, 
 the Lord Chancellor, and as a general rule all the members of the Court of 
 Appeal constituted by the Judicature Act, 1875, and some other judges, 
 whose attendance is not often required. 1 By the Judicial Committee Act, 
 1 87 1, the crown was empowered to appoint and did appoint four salaried 
 judges of the Judicial Committee ; on their places becoming vacant they 
 will not be filled up, but two additional Lords of Appeal in Ordinary will 
 be appointed. (See House of Lords.) 
 
 § 3. The following are the principal matters in which the Judicial 
 Committee have jurisdiction : 3 — 
 
 i. Appeals from Courts in the colonies or dependencies of the United 
 Kingdom, such as India, Canada, Australia, the Channel Islands, &c. In 
 general the right to appeal is limited to cases involving a certain minimum 
 value, unless special leave to appeal is obtained. (See Appeal, § 5.) 
 
 ii. Complaints of amotion from office. (See Amotion, § 2.) 
 
 iii. Ecclesiastical appeals. (See Ecclesiastical Courts.) 
 
 iv. Appeals from the Lord Chancellor in idiocy and lunacy cases. 
 
 v. Applications for the confirmation and extension of patents. (See 
 Patent.) 
 
 JUDICIAL SEPARATION. A decree of judicial separation may 
 be pronounced by the High Court in the Probate, Divorce and Ad- 
 miralty Division, on the petition of either husband or wife (1) in all cases 
 in which a divorce a mensa. et thoro (g.v.) might have been obtained in 
 the Ecclesiastical Courts, and (2) on the ground of either adultery or 
 cruelty, or desertion without reasonable cause for two years or upwards. 3 
 The decree has the same effect as a divorce a mensi et thoro had, that is 
 to say, it does not affect the marriage, but it puts an end to cohabita- 
 tion, and places the wife in the position of a feme sole as regards her 
 capacity of acquiring property, &c. 4 (See Alimony; Protection Order; 
 Settlement. 
 
 JURAT is a memorandum written at the end of an affidavit, stating 
 the place where, and the date when, the affidavit was sworn, followed by 
 the signature of the commissioner or other person before whom it was 
 sworn and concluding with his description. 5 (See Declarat.) 
 
 JURE CORONA. See Franchise ; Prerogative. 
 
 JURE MARITI. See Jus Mariti. 
 
 1 Stats. 3 & 4 "Will. 4, c. 41 ; 5 Vict. 3 Browne on Divorce, 29 ; Macqueen's 
 c. S ; 6 & 7 Vict. c. 38 ; 14 & 15 Vict. Husb. and Wife, 220; 20 & 21 Vict. t. 85, 
 c. 83; 20 & 21 Vict. c. 77; Macpherson, ss. 7, 16. 
 
 Privy C. Pr. passim. 4 Gibson, Codex, 445, 11. (i). 
 
 2 Macpherson, passim. 6 See Smith's Action, 83; Rules of 
 
 Court, xxxvii. 3 b et seq. (April, 1880). 
 
464 
 
 Juris utrum 
 
 LAW DICTIONARY. 
 
 Jurisdiction 
 
 Exclusive, 
 concurrent. 
 
 General, 
 limited. 
 
 Original, 
 appellate. 
 
 Consultative, 
 judicial. 
 
 Auxiliary. 
 
 JURIS UTRUM was a writ or action by an incumbent to recover possession of 
 land held by him in right of the church, &C. 1 It was so called because it raised the 
 question whether the land was the lay fee of the tenant (defendant) or frankalmoigne 
 belonging to the church. 2 
 
 JURISDICTION. — I. § 1. Jurisdiction is the power of a Court or 
 judge to entertain an action, petition or other proceeding. When a 
 proceeding in respect of a certain subject-matter can only be brought in 
 one Court, that Court is said to have exclusive jurisdiction ; when it can 
 be brought in any one of several Courts, they are said to have concurrent 
 jurisdiction. Thus, as an action for the administration of an estate or trust 
 property amounting in value to 400/. may be brought either in the High 
 Court of Justice or in a County Court, they have concurrent jurisdiction ; 
 but if the value of the property amounts to 1,000/. the action can only be 
 brought in the High Court, which has exclusive jurisdiction. 
 
 § 2. Where the jurisdiction of a Court is limited either by the amount 
 or value of the property in litigation, or with reference to the question 
 where the cause of action arose, it is called a Court of limited jurisdiction, 
 as opposed to a Court of general jurisdiction. 3 
 
 § 3. A Court is said to have original jurisdiction in a particular matter 
 when that matter can be initiated before it ; while a Court is said to have 
 appellate jurisdiction when it can only go into the matter after it has 
 been adjudicated on by a Court of first instance. (See Appeal, Court.') 
 
 § 4. It is said that in some cases one Court may assist another by 
 giving its opinion on a matter pending in the latter Court ; in such a case 
 the former Court is said to act in its consultative jurisdiction, as opposed 
 to its ordinary or judicial jurisdiction. 4 
 
 § 5. While the different jurisdictions of the Common Law and Chancery Courts 
 existed, the Court of Chancery, in addition to its exclusive and concurrent jurisdiction, 
 was said to have an auxiliary or ancillary jurisdiction, by which was meant that it enter- 
 tained suits for relief required to obtain complete justice in another Court ; the principal 
 instances of such suits were bills for discovery, bills for the perpetuation of testimony, 
 and bills of peace 5 (a. v. and De bene esse ; Quia timet). 
 
 As to the jurisdictions of the various Courts, see the respective titles. 
 
 II. § 6. Jurisdiction also signifies the district or geographical limits 
 within which the judgments or orders of a Court can be enforced or 
 executed. This is sometimes called territorial jurisdiction. 6 In the 
 practice of the High Court it is not usual to allow an action to be brought 
 if it is obvious that it cannot be enforced, such as an action to recover 
 land in a foreign country: 7 nor will the Court allow an action to be 
 brought against a person who is out of the jurisdiction, unless the 
 property in question in the action (if any) is situate within the juris- 
 diction, or unless some part of the cause of action arose within the 
 jurisdiction. 8 (See Cause of Action ; In Personam ; Service.) 
 
 1 Litt. §§ 645 et sea. 
 
 2 Britton, 234 b. 
 
 3 Mayor of London v. Cox, L. R., 2 
 H. L. at p. 263. 
 
 4 Overseers of Walsall v. L. &• N. IF. 
 R. Co., 4 App. Ca. 30. 
 
 6 Haynes' Eq. 161. 
 
 6 In re Smith, I P. D. 300. 
 
 7 See notes to Mostyn v. Fabrigas, 
 Smith, L. C. i. 689. 
 
 8 Rules of Court, xi. 
 
Jurisprudence law DICTIONARY. Juror 465 
 
 JURISPRUDENCE. See Addenda. 
 
 JUROR — JURY. — § i. A jury is a number of persons summoned to 
 inquire on oath into a question of fact depending in a judicial proceeding. 
 The members of the jury are called jurors or jurymen. 
 
 I. § 2. In actions in the High Court, when the trial takes place before Civil actions. 
 a jury, the jurors are twelve men possessingthe necessary qualification (g. v.). Hi g h Cour t. 
 Common juries are summoned from the class of tradesmen, clerks, &c. : Common, 
 sj>ecial juries consist of merchants, bankers, independent gentlemen, &c, special. 
 and are only summoned for the trial of important or difficult cases, either 
 
 party to an action being entitled to have the case so tried at the risk of 
 having to bear the extra expense. (See Certificate, § 20.) The jurors are 
 selected by ballot from the panel or list furnished by the summoning 
 officer 1 (see Panel), subject to the right of challenge (g. v.) by the parties. 
 As to the cases in which a trial by jury takes place, and the course which 
 it generally follows, see Trial. As to the discharge of a jury and the 
 withdrawal of a juror, see Discharge, § 6 ; Withdrawal. 
 
 § 3. Juries are also summoned in actions for other purposes than that Writ of in- 
 of trial. Thus a writ of inquiry (g. v.) requires a jury, as does the execu- qu,ry ' e egl ' 
 tion of a writ of elegit (g. v.). 
 
 II. § 4. In County Court actions a jury consists of five persons. 3 County 
 
 III. § 5. As to other kinds of juries in civil matters, see Court Leet ; Courts - 
 Extent, § 1 ; Homage, § 1 ; Inguest of Office ; Inguisition ; Jus Patronatus ; 
 Lunacy. 
 
 IV. In criminal procedure the following kinds of jury exist : Criminal 
 § 6. A grand jury is summoned for every commission of " oyer and ter- cases - 
 
 miner " and " general gaol delivery,'' and at every quarter sessions (see r J ™" 
 those titles), to inquire into, present, and do all those things which shall 
 then and there be commanded them on the part of the Queen. Their 
 principal duty is to inquire into bills of indictment, and to present them, 
 if they think a prima facie case has been made out against the accused. 
 (See Indictment ; Presentment.) A grand jury consists of from twelve to 
 twenty-three freeholders, and every presentment must be by twelve at the 
 least. They sit in private. 3 
 
 § 7. The jury by which criminal suits, (indictments, informations, &c.) Petty jury. 
 are tried, is sometimes called a petty jury, as opposed to the grand jury. 
 It consists of twelve persons, who must be of the county where the indict- 
 ment is found. 4 (See Venue.) They are liable to be challenged. (See 
 Challenge.) 
 
 § 8. In important cases of misdemeanor in the Queen's Bench Division Special jury. 
 
 a special jury may be obtained on the application of either prosecutor or 
 
 defendant. 5 
 
 § 9. Formerly every alien who was tried on a criminal charge in England De medietate 
 J linguae. 
 
 1 Juries Act, 1870 ; Smith's Action, sense seems to be comparatively modern : 
 119- in Britton they are called presenters (fol. 
 
 2 Pollock's C. C. Practice, 104. 10 a). 
 
 3 Steph. Comm, iv. 361 ; stats. 6 Geo. 4, 4 Steph. iv. 418. 
 
 c. 50; s & 6 Will. 4, c. 76, s. 121 ; 19 & P Ibid. 419 ; Arehbold, dim, PI. 155. 
 
 20 Vict. c. 54. The term grand jury in this 
 
 S. H H 
 
matrons. 
 
 466 Jus Accrescendi LAW DICTIONARY. Jus Marih 
 
 was entitled to what was called a jury de medietate linguae, that is, a jury 
 one half of which consisted of aliens. This kind of jury is now abolished, 1 
 but it is said that where an indictment is found against a scholar or other 
 person having the privilege of the University of Oxford, he is entitled to 
 be tried in the University Court by a jury de medietate, half of freeholders, 
 and half of matriculated persons. 2 
 Jury of § 10 . Where, in a criminal prosecution, a female prisoner alleges herself 
 
 or appears to be pregnant, a jury of twelve matrons may be impanelled to 
 try whether she is so or not. They choose one of their number to be fore- 
 matron. 3 
 
 See Reprieve. 
 
 Etymology.] — "Jury," Norman-French /««'« (Britton, 134a), is derived from jurata, 
 which seems to be a contraction for assisa or recognitio jurata, the sworn assise or recog- 
 nition (q. t/.), 4 from the oath taken by the members of the assise, who were called jurors, 
 to try the cause justly. The modern jury, however, is not directly derived from the 
 assise, which was a statutory mode of trial, but from the practice which grew up after the 
 introduction of the assise, of suitors consenting that their actions should be tried by a 
 jurata or jury, in preference to the trial by duel. 5 
 
 JUS ACCRESCENDI is that right of survivorship which is peculiar 
 to joint ownership, joint rights, and joint liabilities. {See. Joint.) Sur- 
 vivorship does not occur in the case of merchants and other partners, the 
 rule being — Jus accrescendi inter inercatores pro leneficio commercii locum non 
 kabet? See, as to this, Joint; Joint Tenancy. 
 
 JUS DISPONENDI, "the right of disposing," is an expression 
 used either generally to signify the right of alienation, as when we speak 
 of depriving a married woman of the jus disponendi over her separate 
 estate, 7 or specially in the law relating to sales of goods, where it is often 
 a question whether the vendor of goods has the intention of reserving to 
 himself the jus disponendi, that is, of preventing the ownership from 
 passing to the purchaser, notwithstanding that he (the vendor) has parted 
 with the possession of the goods. Such a question becomes of great 
 importance when a vendor has despatched goods to a purchaser in a 
 distant place, and the latter becomes insolvent before paying for them, 
 because if the vendor has effectually reserved the jus disponendi he can 
 reclaim the goods. 8 (See Appropriation, § 2 ; Stoppage in Transitu^) 
 
 JUS DUPLICATUM. See Droit. 
 
 JUS GENTIUM. See Law oj Nations. 
 
 JUS IN PERSONAM— IN REM. See In Personam ; Right. 
 
 JUS MARITI.— § 1. The jus mariti (or "right of a husband") is 
 that right to the chattels of a woman which, in the absence of special 
 
 1 Naturalization Act, 1 870, s. 5. « Reeves' Hist. i. 335. 
 
 2 Steph. Comm. iv. 327. e Co. Litt. 182 a. 
 
 3 Archbold, Crim. Pi. 187. 1 Snell's Eq. 291. 
 F. H. B. 165 E. " Quia barones regni B Benjamin on Sales, 288. 
 
 Dostn m assisis juratis," &c. 
 
Jus Patronatus law DICTIONARY. Justice 467 
 
 provisions, her husband acquires on their marriage ; hence a gift to or 
 
 settlement on the wife of property to her separate use is said to exclude 
 
 the jus mariti. § z. If a married woman having personal estate settled J ure marili - 
 
 to her separate use die without disposing of it, the husband will be entitled, 
 
 jure mariti, to so much of it as consists of chattels in possession, that is 
 
 to say, they vest in him as if they had not been settled on the wife; while 
 
 to entitle himself to so much of it as consists of choses in action he must 
 
 take out letters of administration to his wife's estate. 1 
 
 JUS PATRONATUS in ecclesiastical law signifies, I. the right of 
 advowson(y.».), 3 or more commonly, II, a proceeding to try the question 
 who is entitled to a right of presentation which is claimed by different 
 persons. It is an inquest of office, which is tried before the bishop, or 
 commissioners appointed by him, by a jury of clerks and laymen. 3 The 
 result of the trial does not conclude the question, but merely justifies the 
 bishop in admitting the clerk for whose title the verdict is given. 4 (See 
 Disturbance, § 2 ; Quare impedit.) 
 
 JUS TERTII. — When a person who is prima facie liable to A., on 
 being sued by him sets up as a defence that the money or property claimed 
 does not belong to A., but belongs by a paramount title to B., he is said 
 to set up the jus tertii (right of a third person). 
 
 § 2. The general rule is, that a wrongdoer cannot set up the jus tertii. Wrongdoer. 
 Therefore when A. seized goods in the possession of B., and on being 
 sued by B. set up as a defence that B. had no title because the assignment 
 from C. under which he claimed was fraudulent as against A., and that 
 the goods belonged to A. under a valid assignment from C, it was held 
 that A., being guilty of conversion, and therefore a wrongdoer, could not 
 set up the jus tertii against B. 5 § 3. So an agent cannot refuse to account Agent. 
 to his principal or otherwise dispute his title by setting up the jus tertii, 
 unless he does so under the authority of the third person. 
 
 JUST ALLOWANCES. See Allowance; Costs, § 10. 
 
 JUSTICE,— The judges of certain Courts are called justices. Thus, 
 before the Judicature Act, the judges of the Queen's Bench and Common 
 Pleas were called justices of those Courts, the principal judge of each 
 Court being called respectively the Lord Chief Justice of England, and 
 the Lord Chief Justice of the Common Pleas. The latter title has been 
 abolished. (SeeJIigA Court of Justice?) With the exception of the Lord 
 Chancellor, the Lord Chief Justice of the Queen's Bench Division (q. v.), 
 and the Master of the Rolls, 7 all the judges of the High Court appointed 
 since the act came into operation are called justices of the High Court. 8 
 (See Baron.) 
 
 1 Snell's Eq. 285. 5 Ell. & Bl. 802. See Freshney v. Carrick, 
 
 2 Phfflimore, Eccl. Law, 329. 1 H. & N. 653. 
 
 3 Ibid. 447. ° Russell, Merc. Agency, 34, 224. 
 
 4 Ibid. 451. 7 Judicature Act, 1873, ss. 5, 32. 
 
 5 Jefferies v. Great Western Rail. Co. 8 Judicature Act, 1877, s. 5. 
 
 H H 2 
 
468 
 
 Justices of the Peace LAW DICTIONARY. 
 
 Justifiable 
 
 As to the Lords Justices of Appeal, and the justices of the peace, see 
 those titles. As to justices of assize, see Assise, § 3 ; also Eyre. 
 
 Etymology.]— The worA justitia, in the sense of judge, occurs in our oldest books; 
 otherwise one might suppose "justice" to be derived from justiciarius : l 
 
 Ministerial 
 duties. 
 
 Judicial. 
 
 Breaches of 
 the peace. 
 
 Admiralty. 
 
 JUSTICES OF THE PEACE are judges of record appointed by 
 the crown to be justices within a certain district (e.g., a county or borough) 
 for the conservation of the peace, and for the execution of divers things, 
 comprehended within their commission and within divers statutes, com- 
 mitted to their charge. 2 
 
 § 2. Their authority is either ministerial or judicial. They are said to 
 act ministerially in cases of felony or misdemeanor, where they merely 
 initiate the proceedings by issuing a warrant of apprehension, taking the 
 depositions, and committing for trial ; and also in appointing parish officers 
 and allowing parish rates, &c. 
 
 § 3. They act judicially in quarter sessions (q. v.), and in all cases where 
 they have summary jurisdiction, whether criminal, as in cases of common 
 assaults, drunkenness, &c. ; or civil, as where they have to adjudicate be- 
 tween master and servant, or landlord and tenant, and in affiliation cases, 
 &c. 3 (See Petty Sessions.) 
 
 § 4. By virtue of their commission, justices of the peace have jurisdic- 
 tion in all matters relating to the preservation of the public peace ; and in 
 case of an actual or apprehended breach of the peace within their own 
 view, they may commit the offender without warrant or information. Most 
 commonly however their jurisdiction is exercised by binding over persons 
 to keep the peace. 4 (See B-reach of the Peace, § 4.) 
 
 § 5. Justices now have a limited jurisdiction in admiralty matters, namely, 
 in cases of damage, salvage and wages (q. v.), where the amount in question 
 does not exceed a certain sum. 6 
 
 § 6. It will be remembered that the Queen's Bench Division of the High 
 Court on its crown side takes cognizance of breaches of the peace, and 
 that judges of assize sit under a commission of the peace as well as under 
 commissions of nisi prius, &c. (See Assize, § 3.) Consequently the judges 
 of these Courts are justices of the peace. 
 
 As to licensing justices, see Licence ; and as to visiting justices, see Prison. 
 See also Commission, §§ 10, 11; Recorder. 
 
 Torts and 
 crimes. 
 
 JUSTIFIABLE— JUSTIFICATION— JUSTIFY.— I. § 1. In the 
 
 law of torts and crimes, justification is where the defendant in an action 
 or prosecution shows that the act complained of was justifiable, that is, 
 lawful. Thus, a derogatory statement is not defamatory if it is true ; an 
 assault or battery is lawful if committed in self-defence, or in defence of 
 
 1 Stubbs' Charters, 74; Co.'Litt. 71 b; 
 Britton, 8. 
 
 2 Stone's Justice of the Peace, 2, citing 
 Dalton. 
 
 3 Ibid. 4, 240. When Quarter Sessions 
 are held in a borough the recorder is the 
 
 sole judge. (See Quarter Sessions.) 
 
 4 Steph. Comm. iv. 292. As to their 
 qualification, see Pritchard, Q. S. 35. 
 
 5 Roscoe's Adm. 76 ; stat. 10 & II Vict, 
 c. 27 ; Merch. Shipp. Act, 1854, s. 460.; 
 M. S. Am. Act, 1862, ss. 49 et seq. 
 
Juvenile Offenders LAW DICTIONARY. King's Chambers 469 
 
 one's property, or for the purpose of proper correction or discipline, &c l 
 A defendant who sets up such a defence is said to justify. It is obvious 
 that such a defence is inadmissible in a prosecution for an obscene, blas- 
 phemous, or seditious libel ; and even in the case of a prosecution for a 
 defamatory libel, it is only available where it is for the public benefit that 
 the matter complained of should be published. 2 
 
 As to justifiable homicide, see Homicide, § 4. 
 
 II. § 2. In procedure, bail or sureties for the defendant in an action Bailor 
 are said to justify when they satisfy the plaintiff or the Court that they suretles - 
 are sufficient, that is, that they will be able to perform their obligation if 
 the plaintiff is successful. When bail or security is given, the sureties 
 usually make affidavits of justification, stating that they are housekeepers 
 or freeholders, and that they are worth double the amount claimed in the 
 action. If, however, bail are excepted to, and in certain other cases, 
 they have to justify or attend before a judge at chambers and be examined 
 on oath as to their sufficiency. 3 (See Bail; Except!) 
 
 JUVENILE OFFENDERS. See Education Acts. 
 
 K. 
 
 KEEPER OF THE GREAT SEAL. See Lord Keeper; also Privy 
 Seal. 
 
 KEEPING HOUSE is an act of bankruptcy (q. v.). It is confined 
 to traders, and takes place when a debtor denies himself to a creditor who 
 has called for payment, or withdraws into a secret part of the house, or 
 refrains from going to his house of business, or confines himself to the 
 house during the day, for the purpose of avoiding and thus delaying his 
 creditors. 4 (See Act of Bankruptcy, § 2.) 
 
 KIDNAPPING. See Child. 
 
 KING. See Civil List ; Debt, § 7 ; Demesne, § 5 ; Demise; Parlia- 
 ment ; Prerogative. 
 
 KING'S BENCH is the name given to the Queen's Bench {q. v.) 
 when a king is on the throne of England. 
 
 KING'S CHAMBERS are those portions of the seas, adjacent to 
 the coasts of Great Britain, which are inclosed within headlands so as to 
 
 1 Underbill on Torts, 121. 3 Smith's Action (nth ed.), 235 ; Chitty, 
 
 2 Shortt on Copyright and Libel, 528, Pr. 727. 
 
 558 ; 6 & 7 Vict. c. 96, s. 6 ; Russell on 4 Robson's Bantor. 107 et seq. 
 Crimes, iii. 179; Stephen's Crim. Dig. 189. 
 
47° Knight law dictionary. Laches 
 
 be cut off from the open sea by imaginary straight lines drawn from one 
 promontory to another. They appear to have always formed part of the 
 territorial waters of the crown. 1 (See High Seas; Territorial Waters.} 
 
 KNIGHT. — § i. The dignity of knighthood ordinarily denotes that 
 of a knight bachelor, which is the lowest title of dignity in this kingdom. 
 (See Dignity.') There are other kinds of knights, such as knights of the 
 garter and of the bath, who are of higher degree. 3 
 
 § 2. " Knights of the shire " is the technical name for those members 
 of parliament who represent the counties, as opposed to the citizens and 
 burgesses, or borough members, who represent the towns. 3 
 
 KNIGHT'S FEE. See Fee, § 6. 
 
 KNIGHT'S SERVICE. — § I. Tenure by knight's service was where a man held 
 land of another person or of the crown by military service, of which the principal varieties 
 were escuage, grand serjeanty, castleward and comage (q. v.). 
 
 Knight's service had five incidents, namely, aids, relief, wardship, marriage and 
 escheat ; the Icing's tenants in capite ut de coronS were further liable to primer seisin 
 and fines for alienation. 4 (See the various titles: also Ousterlemain ; Fealty; Homage; 
 Tenure; Service.") 
 
 Tenure by knight's service was converted into common socage by stat. 12 Car. 2, 
 c. 24. 
 
 L. 
 
 LACHES is negligence or unreasonable delay in asserting or 
 enforcing a right. In the old books the term is chiefly used with refer- 
 ence to rights of entry. Thus, while the doctrine of " descent cast" was 
 in force, if an infant was disseised of land, and the disseisor died in 
 possession, the infant was not deprived of his right of entry, as a person 
 of full age would have been, because no laches could be imputed to an 
 infant in such a case. 5 (See Disability : also Intrusion, § 2, as to laches by 
 the crown.) 
 
 § 2. At the present day " laches" is generally used to denote unreason- 
 able delay in enforcing an equitable right. Thus if a person discovers 
 that he has been induced by fraud to enter into an instrument, and then 
 waits an unnecessary -time before taking proceedings to set it aside, this 
 laches will disentitle him to relief. He is, however, entitled to a reason- 
 able time for the purpose of making inquiries, and obtaining advice, &c. 6 
 Where an equitable right of action is analogous to a legal right of action, 
 
 1 Coulspn& Forbes on Waters, 12, n. (3). » Litt. §§ 402, 726. As to laches of 
 
 2 Steph. Comm. n. 612. suit, laches of pleading,- &c, see Perkins, 
 
 3 Ibid.\. 128. Wn^etseq. 
 
 4 Litt. \\ 95, 103 et seq.; Bl. Comm. 6 See Erlanger v. New Sombrero Co., 3 
 "• 63- App. Ca. 1218. 
 
Lammas Lands LAW DICTIONARY. Land 
 
 and there is a Statute of Limitations fixing a limit of time for bringing 
 actions at law to enforce such claims, a Court of Equity will, by analogy, 
 apply the same limit of time to proceedings taken to enforce the equitable 
 right. 1 
 
 LAMMAS LANDS are open arable and meadow lands, which are held 
 by a number of owners in severalty during a portion of the year, and which 
 after the severalty crop has been removed are commonable not only to the 
 owners in severalty but toother classes of commoners, e.g., inhabitants of 
 the parish, tenants and inhabitants of a manor, freemen or householders 
 of a borough, or the owners or occupiers of ancient tenements within the 
 parish, usually termed tofts. 3 They derive their name from the former 
 practice of keeping them open from Lammas Day (Aug. i), to Lady- 
 Day next ensuing. 3 The date of opening them is now August 12. 4 
 (See Common, §§ 7, 18.) 
 
 LANCASTER. See Duchy of Lancaster. 
 
 LAND. — I. § 1. In its technical sense, as a word of description in 
 conveyancing, pleading, &c, land " comprehendeth any ground, soile or 
 earth whatsoever: asmeadowes, pastures, woods, moores, waters, marishes, 
 furses and heath. It legally includeth also all castles, houses and other 
 buildings: for castles, houses, &c. consist upon two things, viz., land 
 or ground, as the foundation, and 5 [the] structure thereupon, so as passing 
 the land or ground, the structure or building thereupon passeth therewith. 
 Also . . . waters . . . are not by that name demandable in a praecipe 
 [that is, an action for the recovery of land] ; but the land whereupon the 
 water floweth or standeth is demandable ; as for example, viginti acras 
 terra aqua coopertas [twenty acres of land covered with water]. And 
 lastly the earth hath in law a great extent upwards, not only of water, as 
 hath been said, but of ayre [air] and all other things even up to heaven, 
 for cujus est solum ejus est usque ad ccelum." 6 
 
 § 2. Land is divisible both horizontally (see Close) and vertically. 
 Therefore one man may be entitled to the surface of land, and an- 
 other to the minerals under it (see Easement, § 1) ; or one man may have 
 a fee simple in one story of a house, while the rest may belong to another. 
 
 § 3. Land is a tenement and a hereditament, and, therefore, belongs to 
 the class of real property. (See Hereditament ; Tenement; Real Property^) 
 
 § 4. Rights in respect of land are of two kinds — (i) rights of owner- 
 ship, although theoretically land is not the subject of ownership accord- 
 ing to English law (see Estate, § z ; Tenure) ; and (ii) rights in alieno 
 solo, which include easements and profits (q. v.). 
 
 1 Peele v. Gurney, L. R., 6 H. L. p. * Stat. 24 Geo. 2, c. 23. 
 
 384. "In Hargrave's edition ' ' and' ' is wrongly 
 
 2 Cooke, Incl. 47; Elton, Comra. 36. printed "or." 
 
 See also Baylis v. Tyssen-Amhurst, 6 Ch. 6 Co. Litt. 4a; Bl. Comm. ii. 18; Dart, 
 
 D. 500. V. & P. 89. 
 
 3 Elton, 36. 
 
 471 
 
472 
 
 Land Certificate 
 
 LAW DICTIONARY. 
 
 Land Registries 
 
 II. § 5. In the old books, and in fines and the like, "the word 'land' 
 strictly doth signify nothing but arable land ;" • the reason given being 
 that arable land was considered more beneficial to the country than 
 pasture. 3 
 
 See Ejectment; Landlord and Tenant; Possession; Seisin; Vendors and 
 Purchasers, 
 
 LAND CERTIFICATE. See Certificate, § 10. 
 
 Registry of 
 title, 
 
 assurances. 
 
 General. 
 
 LAND REGISTRIES, or registries for officially recording the title 
 to, dealings with and charges on land 3 are managed on two principles, 
 namely, as registries of title and registries of assurances. § z. A registry 
 of title is an authentic and self-explanatory record of the state of the title 
 to the land registered on it ; that is to say, a piece of land appears on the 
 register as belonging to A. B., and if it is subject to a mortgage or charge 
 in favour of C. D., that also would appear. § 3. A registry of assurances 
 or deeds, on the other hand, merely contains a statement of the existence 
 of documents or assurances affecting the title to the land, by giving 
 either a transcript or an epitome of each document (see Memorial), 
 leaving the persons concerned to draw their own conclusions as to the 
 effect of those documents on the title to the land. 
 
 As regards the district over which they extend registries are of two 
 kinds, general and local. 
 
 § 4. A general Land Registry for England and Wales was established by 
 the stat. 25 & 26 Vict. c. 53 ("Lord Westbury's Act"); but owing to the 
 fact that it imposed on persons desirous of making use of it the necessity 
 of showing a marketable title to, and defining the boundaries of, the land 
 to be registered (both expensive and tedious, and in many cases impossible, 
 processes), the act was practically a failure, 4 and is no longer in opera- 
 tion, except as to land already registered under it. 5 § 5. The present act 
 regulating the general registration of land is the Land Transfer Act, 1875, 
 which created an office of Land Registry in London, consisting of a regis- 
 trar, assistant registrars, &c, and, supplemented by the General Rules 
 made under it, provides — ( 1 ) for the voluntary registration in six manners 
 of existing titles to freehold land, and also leasehold land held on terms 
 of a certain length (but not copyholds or customary freeholds) ; also of 
 incorporeal hereditaments of freehold tenure, mines, fee farm grants, &c. ; 
 (2) for the transfer of registered land (see Transfer) ; (3) for the creation 
 and transfer of charges on registered land (see Charge, § 6) ; (4) for 
 the registration of titles, rights and interests to or in registered land 
 acquired in consequence of the death, marriage, bankruptcy, &c. of a 
 registered proprietor; (5) for the registration of notices as to the existence 
 of leases and estates in dower or by the curtesy; and (6) for the protection 
 
 1 Shepp. Touch. 92 ; Co. Litt. 19 b. 
 
 2 Second Inst. 86. 
 
 3 As to the theory of registration gene- 
 rally, see Markby's Elements of Law, 
 5 478- 
 
 4 Report of Land Transfer Commis- 
 sioners, 1869, cited in Charley's Real Prop. 
 Stat. 116. 
 
 5 Land Transfer Act, 1875, s. 125 ; 
 Dart, V. &P. 1 142. 
 
Land Tax law dictionary. Landlord and Tenant 473 
 
 of rights arising from unregistered dealings with registered land (see 
 Caution ; Restriction). The act is not believed to have been put in force 
 to any great extent. 
 
 § 6. Local land registries are for the registration of land within denned Local, 
 districts. 
 
 By the Land Transfer Act, 1875, power is given to the Lord Chancellor 
 to create district registries for the registration (under the act) of land within 
 denned districts. 1 No such district registries have yet been created, 2 but 
 local land registries, on the principle of registration of assurances {supra, 
 § 3), exist in Middlesex, in each of the three ridings of Yorkshire, and in 
 the Bedford Level. As soon as land in any of these districts is registered 
 in the general Land Registry, it becomes exempt from the jurisdiction of 
 the local registry. 3 
 
 LAND TAX is a tax payable annually in respect of the beneficial 
 ownership of land. If land subject to the tax is in lease, the tenant is 
 primarily liable to pay the whole tax, but he is entitled (unless he has 
 expressly agreed to pay it himself) to deduct from the rent so much of 
 the tax as the landlord ought to bear in respect of the rent, so that if the 
 rent is a rack-rent the landlord bears the whole tax. 4 § z. The tax was Assessment, 
 originally levied annually at so much in the pound, but was afterwards 
 imposed in fixed amounts on the various counties, boroughs, cities, towns 
 and liberties in England, and these amounts were distributed or assessed 
 at so much in the pound on the lands, tenements and hereditaments in 
 each county, borough, &c. by commissioners appointed for the purpose. 5 
 § 3. By stat. 38 Geo. 3, c. 60, the land tax was made redeemable; in Redeemable, 
 ordinary cases the redemption is effected by the transfer to the National 
 Debt Commissioners of so much consols or reduced 3 per cent, annuities 
 as will yield a dividend exceeding the amount of the tax by one-tenth 
 part of it. 8 
 
 LAND TRANSFER ACT. See Land Registries, § S . 
 
 LANDLOCKED is an expression sometimes applied to a piece of 
 land belonging to one person and surrounded by land belonging to other 
 persons, so that it cannot be approached except over their land. 7 (See 
 Easement, §§ 9 et seq.) 
 
 LANDLORD AND TENANT.— The relation of landlord and 
 tenant is created by one person (the landlord) allowing another (the tenant) 
 to occupy the landlord's house or land for a consideration termed rent, 
 recoverable by distress. 8 
 
 1 Sect. 118. 5 Stat. 38 Geo. 3, c. 5. 
 
 2 Charley's Real P. Acts, 284. 6 Stats. 42 Geo. 3, c. 116, s. 22 etseq.; 
 
 3 Land Transfer Act, 1875, s. 127. 1 & 2 Vict. c. 58 ; 24 & 25 Vict. c. 91. 
 
 4 See Ward v. Const, 10 Bam. & C. ' Corporation of London v. Riggs, 13 
 635, and other cases cited Stephen, Comm. Ch. D. 798. 
 
 ii. 559, n. (g). 8 Woodfall's Landlord and Tenant, lxvi. 
 
474 
 
 Lands 
 
 LAW DICTIONARY. 
 
 Lapse 
 
 In the absence of express agreement, the landlord impliedly contracts 
 with the tenant to give him possession and guarantee him against eviction 
 by any person having a title paramount to that of the landlord. On the 
 other hand the tenant impliedly contracts with the landlord to pay the 
 rent, not to commit waste, and to give up possession at the end of the 
 tenancy. 1 
 
 Usually, however, the tenancy is regulated by the terms of a document 
 called a lease (q. v.). 
 
 See Distress; Fixtures; Notice to Quit; Rent; Term. 
 
 LANDS CLAUSES CONSOLIDATION ACT is the stat. 8 & 9 
 Vict. c. 18, and is one of those general acts described under Act of Par- 
 liament, § 5 (g. v.). 
 
 LANDS, TENEMENTS AND HEREDITAMENTS is the tech- 
 nical and most comprehensive description of real property, as "goods and 
 chattels" is of personalty. 2 (See Hereditament; Land; Tenement.) 
 
 Gift by will. 
 
 Joint tenants. 
 Gift in tail. 
 
 Testator's 
 issue. 
 
 Benefice. 
 
 Criminal pro- 
 ceedings. 
 
 LAPSE. — § 1. As a general rule, when a person to whom property has 
 been devised or bequeathed dies before the testator, the devise or bequest 
 fails or lapses, and the property goes as if the gift had not been made ; — 
 consequently, if a testator bequeaths 100/. to A. (or to A., " his executors 
 or administrators"), and the residue of his property to B., then, if A. dies 
 during the lifetime of the testator, the legacy lapses and falls into the re- 
 sidue, that is, it goes to B. on the testator's death. 3 There are, however, 
 some exceptions to the rule. Thus if property is given to several persons 
 as joint tenants, on the death of one during the lifetime of the testator the 
 whole goes to the survivors. And if land is given to a person in tail who 
 dies before the testator, leaving issue capable of talcing under the entail, 
 the land goes as if the devisee had died immediately after the testator. 1 
 And if a testator bequeaths (or devises) property to a child or other de- 
 scendant of himself, and the legatee dies leaving issue, who survive the 
 testator, the legacy (or devise) does not lapse, but takes effect as if the 
 legatee had died immediately after the testator. 5 
 
 § 2. In ecclesiastical law, a lapse occurs when a benefice becomes void 
 and the patron neglects to present within six months after the avoidance. 
 In such a case the patronage devolves from the patron to the bishop, and 
 on his neglect to the metropolitan, and on his neglect to the crown. 6 
 
 § 3. In criminal proceedings, " lapse" is used in the same sense as 
 "abate" in ordinary procedure, that is, to signify that the proceedings 
 came to an end by the death of one of the parties, or some other event. 
 The death of the complainant or prosecutor does not cause a lapse.' 
 
 1 "Woodfall's Landlord and Tenant, lxviii. 
 See also Fawcett's L. & T. ; Smith's L. & 
 T. ; Chitty on Contracts, 286 et seq. ; Wat- 
 son's Comp. Equity, 474. 
 
 2 Williams' R. P. 5. 
 
 * Williams on Executors, 1 118; Wat- 
 son's Comp. Eq. 1196. 
 
 4 Stat. 1 Vict. c. 26, s. 32. 
 
 5 Ibid. s. 33. 
 
 B Phillimore, Eccl. Law, 487. 
 
 7 Reg. v. Truelove, 5 Q. B. D. 336. 
 
Larceny law dictionary. Law 475 
 
 LARCENY in criminal law is the wrongful or fraudulent talcing and 
 carrying away, without colour of right, of the personal goods of another 
 from any place, with a felonious intent to convert them to his (the taker's) 
 own use, and make them his own property, without the consent of the 
 owner. 1 This is sometimes called simple larceny, to distinguish it from Simple, 
 larceny in a dwelling-house, larceny from the person (see Robbery), 
 larceny of horses, cattle, &c, and other varieties of larceny, which are 
 subject to special punishments. Simple larceny is punishable with penal 
 servitude for three years, or imprisonment for two years with or without 
 hard labour, solitary confinement and whipping. 2 
 
 § 2. Formerly larceny was distinguished as grand or petty, according as the value of 
 the property did or did not exceed twelve pence. This was abolished by stat. 24 & 25 
 Vict. c. 96, s. 2. 3 
 
 See Animals Fera Natura; Embezzlement. 
 Etymology.] — Norman-French, larcyn ; 4 Latin, latrocinium. 
 
 LATENT. See Ambiguity. 
 
 LATHE is a division or district of a county, consisting of three or four 
 hundreds. They only occur in Kent under this name ; but they also 
 occur in Sussex under the name of rapes. 5 (See County ; Hundred.) 
 
 LAW is used in two principal senses, the idea common to both 
 of them being uniformity of action. In one sense the name "law" 
 is merely the expression for a uniformity of action which has been 
 observed : as when we speak of the laws of gravitation, or say. that 
 crystals are formed according to certain laws : here the law follows from 
 the uniformity. In the other sense, the law produces the uniformity, 
 that is, the law is a rule of action. § z. To this latter class belong Law of 
 the Law of Nature (using that term in the sense of rules imposed on ■ Natul;e - 
 man by his Maker 6 ) and laws of human origin. Human laws again are 
 either (i) social (such as the so-called laws of honour, morality, &c), or 
 (ii) political, the latter being divisible into (a) international law, and 
 (b) law capable of judicial enforcement, or law in the technical sense 
 of the word. As to international law, see that title. 
 
 Law, as the subject of jurisprudence, is used in three senses. 
 
 I. §3. In its widest sense, law is an aggregate of rules enforcible 
 by judicial means in a given country ; thus, we speak of the law of 
 England as opposed to the law of France or the Roman law. This kind Territorial or 
 of law is called territorial or municipal law, to distinguish it from mumcl P al - 
 international law, 7 and is of the following kinds — 
 
 A. § 4. With reference to its origin, law is derived either from judicial 
 precedents, from legislation or from custom. That part of the law of 
 
 > Russell on Crimes, ii. 123. 6 Steph. Comm. i. 127. 
 
 a Stat. 24 & 25 Vict. c. 96, passim; 6 Black. Comm. i. 39. Rightly called by 
 
 Greaves, Crim. Acts, 98 et seq. As to Austin (88) the law of God, to distinguish 
 
 summary convictions for larceny, see Stone's it from those natural laws which apply to 
 
 , Justice of the Peace, 350, 360. animals and things. 
 
 3 Steph. Comm. iv. 119. 7 Black, i. 44; Savigny, Syst. viii. 
 
 4 Britton, 22 a. passim. 
 
476 
 
 Law 
 
 LAW DICTIONARY. 
 
 Law Merchant 
 
 Judicial pre- 
 cedents. 
 
 Statutes. 
 
 Written and 
 unwritten. 
 
 Public, 
 constitutional, 
 
 administra- 
 tive. 
 
 Private or 
 civil. 
 
 Substantive 
 and adjective. 
 
 England which is derived from judicial precedents is called common 
 law, equity, or admiralty, probate or ecclesiastical law, according' to the 
 nature of the Courts by which it was originally enforced (see the respective 
 titles). That part of the law which is derived from legislation is called 
 the statute law: many statutes are classed under one of the divisions 
 above mentioned, because they have merely modified or extended portions 
 of it, while others have created altogether new rules. That part of the 
 law which is derived from custom is sometimes called the customary law, 
 as to which see Custom. 
 
 § 5. The ordinary, but not very useful, division of law into written and 
 unwritten, rests on the same principle. The written law is the statute 
 law, the unwritten law is the common law(^. v.). 1 
 
 B. § 6. With reference to its subject-matter, law is either public or 
 private. Public law is that part of the law which deals with the State, 
 either by itself or in its relations with individuals, and is called ( 1 ) con- 
 stitutional, when it regulates the relations between the various divisions of 
 the sovereign power; and (2) administrative, when it regulates the business 
 which the State has to do ; the most important branches of the latter 
 class are (a) the criminal law and the law for the prevention of crimes ; 
 (b) the law relating to education, public health, the poor, &c. ; (c) eccle- 
 siastical law; and (d) the law of judicial procedure (courts of law, 
 evidence, &c). 
 
 § 7. Private or civil law deals with those relations between individuals 
 with which the State is not directly concerned : as in the relations between 
 husband and wife, parent and child, and in the various kinds of property, 
 contracts, torts, trusts, legacies, the rights recognized by the rules of 
 Admiralty law, &c. (See Common Law; Equity ; Admiralty.) Even here, 
 however, the Courts take cognizance, to a certain extent, of the indirect 
 effects of private conduct on the community in general ; they accordingly 
 refuse to sanction contracts which are immoral, or in restraint of trade or 
 marriage, or are otherwise against public policy. (See Public Policy.) 
 
 G. § 8. Law is also divided by the Benthamite school into substan- 
 tive and adjective. Substantive law is that part of the law which creates 
 rights and obligations, while adjective law provides a method of en- 
 forcing and protecting them. In other words, adjective law is the law 
 of procedure. 2 
 
 II. § 9. In a narrower sense, " law" signifies a rule of law, especially 
 one of statutory origin ; and hence, 
 
 III. § 10. In its narrowest sense, "law" is equivalent to " statute;" as 
 when we speak of the Poor Laws, the Corn Laws, &c.~ 
 
 As to the distinction between law and fact, see Fact. 
 
 Etymology.}— Scandinavian lag, Anglo-Saxon lagu, Norman-French ley. For 
 details as to the history and etymology of the word. " law," see two articles by the writer 
 in the Law Magazine for June and July, 1874. 
 
 LAW MERCHANT. See Custom, § 6. 
 
 1 Steph. Comm. i. 40, following Black- 
 stone. 
 
 2 Holland on Jurisprudence, 61, 238. 
 
Law of Nations LAW DICTIONARY. Lease 477 
 
 LAW OF NATIONS is the old-fashioned equivalent for "Inter- 
 national Law," or, more strictly, " Public International Law" 1 (q.v.). It is 
 a literal translation of the Latin phrase Jus gentium, which, however, did not 
 mean the law governing the conduct of States in their relations with one 
 another, but those rules of law which are common to all civilized nations : 
 " vocaturque jus gentium, quasi quo jure omnes gentes utuntur." 2 
 
 LAW OF NATURE. See Law, § 2 and note ( 6 ). 
 
 LAY DAYS (or laying days), in the law of merchant shipping, are the 
 days which are allowed by a charter-party for loading and unloading the 
 ship. If the vessel is detained beyond the period allowed, demurrage 
 {q.v.) becomes payable. 3 (See Charter-party.) 
 
 LEAD. See Conveyance, p. 205, note (*). 
 
 LEADING CASE is a judicial decision or precedent settling the 
 principles of a branch of law. Thus Coggs v. Bernard is the leading case , 
 on the law of bailments {q. v.). Mr. J. W. Smith published an excellent 
 selection of leading cases, principally illustrating rules of the common 
 law. His example has been followed by Messrs. White and Tudor in 
 their Leading Cases in Equity, and by Mr. Tudor in his Leading Cases in 
 Conveyancing and Mercantile Law. Some excellent versions of the 
 principal leading cases have been published anonymously under the title 
 of " Leading Cases done into English." 
 
 LEADING QUESTIONS, on the examination of a witness, are 
 questions which directly or indirectly suggest to him the answer he is to 
 give. The general rule is that leading questions are allowed in cross- 
 examination, but not in examination in chief. 4 
 
 LEASE. — § 1. A lease is in effect a conveyance or grant of the pos- 
 session of property (generally but not necessarily land or buildings) to last 
 during the life of a person, or for a term of years or other fixed period, or at 
 will, and usually with the reservation of a rent. Leases for a life or lives are 
 comparatively rare, and when a lease is spoken of, prima, facie a lease for 
 years is meant. The person who grants the lease is called the lessor, the 
 person to whom it is granted being the lessee ; until he accepts the estate 
 he has merely an interesse termini (q. v), unless the lease takes effect 
 under the Statute of Uses. It is essential to a lease that it should be for 
 a less estate or term than the lessor has in the property, for if it comprises 
 his whole interest it is a conveyance or assignment and not a lease. 5 
 Again if the intention of the parties is that the grantee is not to be 
 entitled to exclusive possession of the property, the grant is a licence and 
 not a lease. 6 
 
 1 See Manning's Law of Nations, 2. 6 Shepp. Touch. 266; Woodfall's Land- 
 
 2 Just. Inst. I. ii. lord and Tenant, 73, 113, 236. 
 
 3 Steph. Comm. ii. 141. 6 Smith & Soden's Landlord & Tenant, 
 
 4 Best on Evidence, 799. 68; Woodfall, 113. 
 
478 
 
 Lease 
 
 LAW DICTIONARY. 
 
 Lease 
 
 Underlease. 
 
 Concurrent 
 lease or lease 
 of a reversion. 
 
 Lease in re- 
 version and 
 reversionary 
 lease. 
 
 By virtue of 
 estate. 
 
 Under power 
 of appoint- 
 ment. 
 
 Under statu- 
 tory power. 
 
 Under 
 custom. 
 Under com- 
 mon law 
 power. 
 
 Estoppel. 
 
 Forms of 
 leases. 
 
 By deed. 
 
 § z. A lease for years or at will is a chattel interest (see Chattel; 
 Estate, § 5 ; Leaseholds). 
 
 § 3. Where a person who is himself a lessee grants a lease of the same 
 property to another person for a shorter term, it is properly called an 
 underlease or sublease or a derivative lease. 1 
 
 § 4. A concurrent lease, or lease of a reversion, is one granted for a 
 term which is to commence before the determination of a previous lease 
 of the same land to another person. If under seal, it operates as an 
 assignment of the reversion during the continuance of the previous lease, 
 so that the new lessee is entitled to the rent and covenants under the 
 previous lease; and after the expiration of that lease, it (the concurrent 
 lease) operates as a lease in possession. 3 
 
 § 5. A lease in reversion is a lease which is not to take effect in 
 possession immediately, and the term "reversionary lease" is sometimes 
 used in the same sense : but strictly speaking a reversionary lease is one 
 to take effect from the expiration or determination of a previous lease. It 
 only creates an interesse termini. 3 
 
 § 6. With reference to the right or authority under which they are 
 granted, leases are made either (1) under a right or power incident to the 
 lessor's estate ; thus a tenant in fee has power to grant leases for any 
 term : or (2) under a power of appointment or limitation to uses ; as 
 where land is limited to A. and his heirs, to such uses as B. shall by 
 demise appoint 4 (see Power) : or (3) under a statutory power, e.g., under 
 the Settled Estates Act (q. v.) : or (4) by virtue of a custom ; thus an 
 infant seised of land holden in socage may, by the custom of some 
 places, make binding leases at the age of 15 : 5 or (5) by virtue of an 
 authority given by the common law ; thus a guardian in socage or by 
 election may in some cases grant leases of the infant's lands. 6 
 
 As to leases by estoppel, see Estoppel, § 4. 
 
 § 7. Leases are made either by deed: or by writing not under seal 
 (called by the old writers "leases parol"):' or without writing. 8 The 
 only leases of land or other corporeal hereditaments which need not 
 be made by deed are leases at will, or for a term not exceeding three 
 years under the Statute of Frauds (q. v.), 9 and in practice the term lease 
 commonly denotes a lease by deed. 
 
 § 8. A lease by deed in the ordinary form consists of the following 
 parts : the premises, the habendum, the reddendum, the lessee's cove- 
 nants, the proviso for re-entry, and the lessor's covenants 10 (see those 
 titles). The covenants in a lease are generally much more important than 
 those in a conveyance ; they vary according to the nature of the lease, but 
 ordinarily they include covenants by the lessee for payment of the rent, 
 
 1 See Camberwett, &c. Building Society 
 v. Holloway, 13 Ch. D. 754. 
 
 2 Woodfall, 194. 
 
 3 Ibid. ; Hyde v. Warden, 3 Ex. D. 
 72. 
 
 1 Bythewood & Jarman, v. 560. 
 6 Co. Litt. 45 b. 
 
 6 Bythewood & Jarman, iv. 226. 
 
 7 Shepp. Touch. 267. 
 
 8 "Woodfall, 116; Smith & Soden, 42; 
 Fawcett, 67. 
 
 9 29 Car. 2, c. 3. 
 
 10 Woodfall, 127 ; Fawcett, 72 ; Elphin- 
 stone's Conv. 231. 
 
Lease and Release law dictionary. Leaseholds 479 
 
 and if the lease is one of a building, to repair and insure it, or if it is one 
 of a farm or mine, to manage it in a proper manner ; there is also 
 generally a covenant by the lessee not to underlet or assign the lease 
 without the lessor's consent, and not to carry on certain trades or occu- 
 pations, and a covenant by the lessor for the quiet enjoyment and 
 possession of the property by the lessee. 1 
 
 § 9. The rent and covenants are always binding on the original lessee Liability of 
 and his representatives, notwithstanding- any assignment which he may assi S nee - 
 make. On assigning leaseholds, therefore, the assignee is bound to enter 
 into a covenant with the assignor to indemnify him against this liability. 
 The assignee is himself also liable for rent unpaid or covenants broken 
 during his tenancy (provided the covenants run with the land, as to 
 which see Covenant, § 5) ; but when he assigns to another, his liability 
 ceases so far as regards future rent or breaches of covenant. 2 As to the 
 statutory provisions enabling executors and trustees in bankruptcy to get 
 rid of liabilities under leases vested in them, see Disclaimer, § 3 ; Executor, 
 
 §9- 
 
 § 10. Leases are generally prepared in two parts, known as the lease Lease and 
 and the counterpart : the lease is executed by the lessor alone, and is coun erpar ' 
 kept by the lessee ; the counterpart is executed by the lessee alone, and 
 is kept by the lessor. 3 
 
 § 11. Leases are in some cases subject to statutory provisions ; such 
 are leases at a rack-rent by tenants for life (as to which see Emblements), 
 and leases subject to the Agricultural Holdings Act (q. v.). 
 
 See Attornment; Demise; Distress; Game; Rent; Term; Use and 
 Occupation. 
 
 LEASE AND RELEASE is a mode of conveying freehold land which was in 
 common use down to the year 1841. It was invented to evade the act 27 Hen. 8, u. 16, 
 passed to prevent land from being conveyed secretly by bargain and sale. The act 
 only required bargains and sales of estates of inheritance or freehold to be enrolled, and 
 therefore it soon became the practice on a sale of land for the vendor to execute a lease to 
 the purchaser for a year by way of bargain and sale, which under the Statute of Uses 
 gave him seisin of the land without entry or enrolment, and then the vendor released his 
 reversion to the purchaser by ordinary deed of grant, thus vesting in him the fee simple 
 in possession without entry or livery of seisin. In 1841 a release was made effectual 
 without the preliminary lease for a year, and in 1845 a deed of grant was made sufficient 
 for the conveyance of all corporeal hereditaments. 4 (See Bargain and Sale, § 3 ; Con- 
 veyance, §§ 7, 8 ; Grant, § 2.) 
 
 LEASEHOLDS are lands held under a lease for years. They are 
 personal estate, being chattels real, and therefore they pass to the 
 personal representative of the lessee or tenant on his death intestate. 
 But for the purposes of the Succession Duty Act (q. v.), Locke King's 
 Act (q. v.), and the stat. 27 Eliz. c. 4 (see Voluntary), leaseholds are on 
 
 1 Smith & Soden, 11$ etseg.; Elphin- * Williams, R. P. 180; Williams on 
 stone, 240. Seisin, 14b. Conveyance by a release fol- 
 
 2 Williams, R. P. 397. lowing on an ordinary lease perfected by 
 
 3 Fawcett, 102. entry is said tq have been formerly em- 
 
 ployed; Steph. Comm. i. 527. 
 
48o 
 
 Leave to move 
 
 LAW DICTIONARY. 
 
 Legacy 
 
 the same footing as real estate. And by the Wills Act, a general devise 
 of land, or lands and tenements, or the like, will include the testator's 
 leasehold estates, unless a contrary intention appears. 1 
 
 LEAVE TO MOVE to set aside or vary a judgment might formerly 
 be given by the judge at the trial of an action, when some point of 
 law was raised, the decision of which affected the fate of the action ; the 
 motion was heard by a Divisional Court. 2 This practice seems to have 
 been abolished. 3 (See Motion for Judgment ; Trial.) 
 
 LEET. See Court Leet. 
 
 Specific. 
 
 Demonstra- 
 tive. 
 
 General. 
 
 LEGACY — LEGATEE. — § i. A legacy is a gift of personal property 
 by will. The person to whom the property is given is called the legatee, 
 and the gift or property is called a bequest (q. v.). The legatee's title to 
 the legacy is not complete until the executor has assented to it. (See 
 Assent.) 
 
 Legacies are of three kinds, specific, demonstrative and general. 
 § z. A specific legacy is a bequest of a specific part of the testator's 
 personal estate. Thus, a bequest of "the service of plate which was 
 presented to me on such an occasion," is specific, and so also is a bequest 
 of" ioo/. consols standing in my name at the Bank of England." A 
 specific legacy must be paid or retained by the executor in preference to 
 the general legacies, and must not be sold for the payment of debts until 
 the general assets of the testator are exhausted. 4 (See Administration, 
 § 2.) On the other hand, a specific legacy is liable to ademption (q. v.), 
 unless it is given in such a way as to refer to the state of the property 
 at the testator's death; thus, a bequest of "the black horses which 
 I shall be possessed of at my death," is specific ; but it takes effect if the 
 testator leaves property answering the description, although he may 
 have sold the black horses which he had at the date of his will. 5 § 3. A 
 demonstrative legacy is a gift of a certain sum directed to be paid out 
 of a specific fund ; thus, " I bequeath to A. B. the sum of 50/. to be paid 
 out of the 100/. consols in my name," is a demonstrative legacy. Such 
 a legacy is not adeemed by the testator selling or disposing of the fund 
 in his lifetime, while it also has the advantage of being paid in priority 
 to the general legacies if the fund is sufficient. 6 § 4. A general legacy 
 is one payable only out of the general assets of the testator: as where 
 he bequeaths to A. 100/. sterling, or 100/. consols, without referring 
 to any particular stock, although he may have 100/. consols standing 
 in his name. So a legacy of a mourning ring of the value of 10/. merely 
 amounts to a general legacy of 10/., with a direction to the executor 
 to purchase a ring. A general legacy is liable to abatement or total 
 
 1 Williams, R. P. 404. 
 
 2 Smith's Action, 140 ; Rules of Court, 
 xxxvi. 22, xl. 2. 
 
 3 Appellate Jurisdiction Act, 1876, s. 17; 
 Rules of Court, xxxvi. 22 a. 
 
 4 Williams, P. P. 401 ; White & Tudor, 
 L. C. ii. 252; Watson's Comp. Eq. 1232. 
 6 Botkamley v. Sherson, L. R., 20 Eq. 
 
 3°9- 
 
 Williams, 401. 
 
Legacy Duty LAW DICTIONARY. Legitimacy ■ 481 
 
 failure, if the residuary estate is not sufficient to pay the testator's debts 
 and other^ legacies (see Abatement, § 3), unless it is given for valuable 
 consideration, e.g.,\.o a wife in consideration of her releasing her dower. 1 
 
 § 5. Where personal property is bequeathed to trustees to be held Trust, 
 upon trust, e.g., to pay the income to A. B. for life— this is called a trust 
 legacy. 
 
 § 6. Where a legacy is given to an infant or person beyond the Infant, 
 seas, ^ the executor may pay the amount into Court in the Chancery 
 Division, and when the legatee comes of age, or returns, he may have it 
 paid out to him on making an application by petition or motion. 3 (See 
 Payment into Court!) 
 
 See further as to legacies, titles Cumulative; Executor; Lapse; Marshal- 
 ling; Mortmain; Satisfaction; Will. 
 
 LEGACY DUTY.— Every legacy (except legacies to the husband, 
 wife or descendants of the testator) is liable to a duty at so much per 
 cent., varying according to the degree of relationship which the legatee 
 bore to the testator (see Addenda). The exemption from duty formerly 
 enjoyed by legacies under 20/. has been abolished. The residue of the 
 personal estate of a testator or intestate is liable to the same duties. 3 (See 
 Leaseholds; Probate; Succession Duty.) 
 
 LEGAL is opposed (i) to that which is illegal or unlawful (see those 
 titles) ; (ii) to that which is equitable (q. v.). As to legal memory, see 
 Memory. 
 
 LEGALIZE — LEGALIZATION.— § 1. When an act which is Nuisance, &c. 
 prima facie illegal becomes legal, it is said to be legalized : thus many 
 acts done upon a man's own property, which are injurious to the adjoining 
 land and consequently actionable as nuisances, may be legalized by 
 prescription, and thus form easements 4 (q. v. § 12). 
 
 § 2. When the execution of a document is attested by a notary, consul, Document, 
 magistrate, or the like, it is sometimes said to be legalized. This expres- 
 sion is borrowed from the French ; 6 it can hardly be said to be a technical 
 term of law. 
 
 LEGITIMACY— LEGITIMATE.— § 1. "Legitimate" signifies 
 " lawful." The word is applied especially to children to signify that they 
 have been born in lawful wedlock. 6 
 
 § 2. Under the stat. 21 & 22 Vict. c. 93, a natural-born subject of Great Legitimacy 
 Britain may apply to the High Court, in the Probate, Divorce and Jcf T^" 
 Matrimonial Division, for a declaration that he is legitimate, or that his 
 parents or grandparents were validly married, or that he himself is validly 
 married, or that he is a natural-born subject of the Queen. A judgment 
 made on such a petition is in rem, that is, binding on all the world. 
 
 See Bastard; Child; Mulier. 
 
 1 Williams, P. P. 402. toms and Inland Rev. Act, 1881. 
 
 2 Williams, 399; Darnell's Ch. Pr. 1911. i Gale on Easements, 482. 
 
 3 Williams, 398 ; Williams on Execu- 6 Saint Bonnet, Diet. s. v. Legalisation. 
 tors, 1433; stat. 55 Geo. 3, c. 184; Cus- ° Co. Litt. 244 a. 
 
 S. I I 
 
•482 Leibnitz LAW DICTIONARY. Letter of Credit 
 
 LEIBNITZ.— Gottfried Wilhelm Leibnitz was born on the 3rd July, 
 1646, in Leipzig, and died at Hanover on the 14th November, 1716. He 
 wrote Methodus nova jurisprudential, Codex juris gentium diplomatics, 
 Ohervationes de principiis juris, and numerous miscellaneous works. 1 
 
 LESSEE— LESSOR.— In the most general sense of the words, 
 "where a man letteth to another lands or tenements for terme of life, or 
 for terme of years, or to hold at will, he which maketh the lease is called 
 lessor, and he to whom the lease is made is called lessee." 2 
 
 In practice, however, the terms lessor and lessee are only used in the 
 case of a lease for years, for occupation, building or mining purposes, or 
 the like. 
 
 See Lease; Term; Tenant for Life ; Tenant for Years. 
 
 LETTER. — With regard to contracts or agreements entered into by 
 letter, the leading rule is, that a person who makes a proposal to another 
 by letter is considered in law as making it during the whole time that the 
 letter is travelling, and that as soon as the acceptor despatches his accept- 
 ance, he may treat the contract as complete. In other words, an accept- 
 ance by letter is complete as against the proposer from the date of 
 posting the acceptance, if it arrives within the proper time. What is a 
 "proper time" depends on whether the proposer has prescribed a mode 
 and time of communicating the acceptance ; if he has not, it depends on 
 the .nature of the business in hand. If, however, the communication of 
 the acceptance is delayed by the fault of the proposer, or by accident, the 
 the delay is not to be reckoned against the acceptor. The true principle 
 also is, that the acceptor is at liberty to revoke his acceptance at any time 
 before it reaches the proposer {e.g., by telegraph), but this principle does 
 not yet seem to have been established by any decision. The result is 
 that if a person makes a proposal by post and does not receive an answer 
 as soon as he expected, he cannot assume that the proposal has been 
 rejected, except at his own risk. 3 
 
 LETTER OF CREDIT,— § 1. A letter of credit is an authority by 
 one person (A.) to another (B.) to draw cheques or bills of exchange 
 (with or without a limit as to amount) upon him (A) with an undertaking 
 by A. to honour the drafts on presentation. An ordinary letter of credit 
 also contains the name of the person (A.'s correspondent) by whom the 
 drafts are to be negotiated or cashed : when it does not do so it is called 
 Open letter, an open letter of credit. 
 
 § 2. A letter of credit is in fact a proposal or request to the person 
 named therein, or (in the case of an open letter) to persons generally, to 
 advance money on the faith of it, and the advance constitutes an accept- 
 ance of the proposal, thus making a contract between the giver of the 
 
 1 Holtz, Encycl. s. v. 681 ; Dunlop v. Higgins, 1 H. L. C. 381 ; 
 
 2 Litt. § 57. British &■> A. T. Co. v. Colson, L. R., 
 
 3 See Adams v. Linsell, I B. & Aid. 6 Ex. 108 ; Pollock on Contract, 13. 
 
Letter of Licence LAW DICTIONARY. Letters of Admn. 483 
 
 letter of credit and the person cashing or negotiating the draft, by which 
 the former is bound to honour the draft. 1 (See Agreement.) 
 
 § 3. Letters of credit are sometimes used in conjunction with circular Circular notes. 
 notes, in which case the letter of credit is called a letter of indication. 2 
 Circular notes are forms of drafts, generally for some specific amount, 
 given with the letter and requiring to be signed by the be'arer. Circular 
 notes are chiefly used by persons travelling abroad, and may be obtained 
 from almost any banker. 
 
 LETTER OF LICENCE is an agreement between a debtor and 
 his creditors that the latter shall for a specified time suspend their claims, 
 and allow the debtor to carry on his business at his own discretion. It 
 is, however, usually accompanied by a provision that the business shall 
 be carried on under the inspection and control of persons nominated by 
 the creditors, who are called inspectors, and the agreement then becomes, 
 and is termed, a deed of inspectorship. 3 
 
 The object of these instruments is to avoid bankruptcy proceedings. 
 
 See Composition ; Bankruptcy. 
 
 LETTER MISSIVE, in ecclesiastical law, is a document sent with 
 the cong6 d'etre to the dean and chapter, containing the name of the 
 person whom they are to elect. 4 (See Congi d'elire.) 
 
 § 2. Under the practice of the Court of Chancery, before a peer was served with the 
 bill in a suit, he was entitled to be informed by a communication from the lord chan- 
 cellor, termed a letter missive, of the fact of the bill having been filed. 5 This is now 
 obsolete. (See Bill of Complaint) . 
 
 LETTERS OF ADMINISTRATION.— § 1. Where a person pos- 
 sessed of personal property dies intestate, or without an executor, the Court 
 having jurisdiction in such matters 8 will grant to a proper person an autho- 
 rity under the seal of the Court, called letters of administration, by which 
 the grantee, the administrator, becomes clothed with powers and duties 
 similar to those of an executor 7 (q. v.). In addition to the oaths taken 
 by the administrator, which are similar to those taken by an executor 
 (see Probate), he enters into a bond. (See Administrator.) 
 
 § 2. If the deceased died wholly intestate, simple letters of administra- 
 tion are granted to one of the next of kin {e. g., the widow or children of 
 the deceased), or, if they renounce, to a creditor or other person, 
 according to certain rules. 8 § 3. If a will of the deceased exists, 
 but no executor has been appointed, or the executor appointed pre- 
 deceases the testator, or refuses or becomes incapable to act, the Court 
 will grant (as a general rule, to the person having the greatest interest 
 under the will, e. g., the residuary legatee) letters of administration with 
 
 1 Pollock on Contract, 181; Byles on 6 Daniell's Ch. Pr. 366. 
 
 Bills, 96 ; Ex parte Asiatic Banking Cor- 6 Formerly the Court of Probate, now 
 
 poration, L. R., 2 Ch. 391. the High Court of Justice in the Probate, 
 
 2 Byles on Bills, 95. Divorce and Admiralty Division (q. v.). 
 
 3 Davids. Conv. v. (2), 519. 7 Browne's Probate Practice, 206. 
 1 Phill. Eccl. Law, 42. « Ibid. 163 et sea. 
 
 I I z 
 
484 Letters Close LAW dictionary. Levant and Couchant 
 
 the will annexed (cum testamento annexo), a grant which is similar to 
 probate of the will. 1 
 
 As to limited grants of letters of administration, see Grant, §§ 5 et seq. 
 
 Letters of administration are liable to the same stamp duty as probates. 
 
 LETTERS CLOSE are letters or missives in the name of the 
 sovereign, and sealed with the great seal, being directed to particular 
 persons for particular purposes ; they are closed up and sealed on the 
 outside, whence their name. 2 (See Letters Patent!) 
 
 LETTERS OF MARQUE are extraordinary commissions issued, 
 either in time of open war or in time of peace, after all attempts to 
 procure legal redress have failed, by the Lords of the Admiralty, or the 
 vice-admirals of a distant province, to the commanders of merchant 
 ships, authorizing reprisals for reparation of the damages sustained by 
 them through enemies at sea. They were formerly either special, to make 
 reparation to individuals, or general, when issued by the government 
 of one state against all the subjects of another ; 3 the latter kind seems to 
 be the same thing as privateering (q. v.), and therefore no longer 
 allowed. 4 (See Reprisals.) 
 
 LETTERS PATENT are grants by the crown of lands, franchises, 
 offices, &c. contained in charters or instruments not sealed up but 
 exposed to open view with the great seal pendant at the bottom, and 
 usually addressed to all the subjects of the realm. 6 
 
 As to letters-patent for inventions, see Patent : see also Grant, § 4, 
 Great Seal; Letters Close; Warrant. 
 
 LETTERS OF REQUEST.— § 1. In ecclesiastical practice, where 
 a diocesan Court (q. v.) has jurisdiction in a case, but the plaintiff wishes 
 the cause to be instituted in the Provincial Court {q. v.), he may apply to 
 the judge of the former Court for letters of request ; and when the judge 
 has signed them, and they have been accepted by the judge of the 
 Provincial Court, a decree issues under his seal, calling upon the defendant 
 to answer to the plaintiff in the suit. 6 
 
 § 2. Letters of request are sometimes issued for other purposes, 
 e. g., they are sent from one judge to another to request him to examine 
 witnesses out of the jurisdiction of the former but in that of the latter : to 
 enforce a monition, &c. 7 
 
 Common of LEVANT AND COUCHANT.— § 1. When land to which a right 
 pasture. f common f pasture is annexed can maintain during the winter by its 
 
 1 Browne, 150; Coote's Probate Pr. 49. * Manning's Law of Nations, 147. 
 
 2 Bl. Comm. ii. 346 ; Steph. Comm. i. 6 Bl. Comm. ii. 346 ; Stepn. Comm. i. 
 619. 618. 
 
 3 Maude & Pollock, Merch. Shipping, e Phillimore, Eccl. Law, 1278. 
 
 41 note, citing Beawes, Lex Merc. 311 5 7 Ibid. 1279; see also stat. 3 & 4 Vict. 
 
 1 Bl. Comm. 258 ; HaUam's Middle Ages, t. 86 ; Phill. 1314 et seq. 
 ii. q6. 
 
Levari facias LAW DICTIONARY. Lex Loci 485 
 
 produce, or requires to plough and compester it, a certain number of 
 cattle, those cattle are said to be levant and couchant on the land. The 
 origin of this double definition of levancy and couchancy probably was, 
 that the number requisite to plough and compester was the limit to 
 common appendant, and the capacity of wintering was the limit to 
 common appurtenant. It appears that the Courts have adopted the latter 
 admeasurement as the most liberal in both cases, but they have never 
 denied the right of common appendant to be admeasured by its original 
 standard. 1 It is therefore commonly said that cattle levant and couchant 
 are such as the produce of the land will maintain during the winter, 
 without reference to their being required for its tillage. 2 § 2. Levancy 
 and couchancy is one of the standards for ascertaining the number of 
 cattle which each commoner may put on the common. (See Common, 
 §§S, 10.) 
 
 § 3. If cattle escape from A.'s land into B.'s land by default of B. (as Distress, 
 for want of his keeping a sufficient fence), they cannot be distrained for 
 rent by B.'s landlord until they have been levant and couchant on the 
 land, that is, until they have been at least one night there. If they 
 escape by default of A., they may be distrained immediately. 3 
 
 LEVARI FACIAS is a writ of execution which commands the sheriff 
 to levy a judgment debt on the lands and goods of the debtor by seizing 
 and selling the latter, and receiving the rents and profits of the lands 
 until the debt is satisfied. This writ has been practically superseded by 
 the writ of elegit {q. v.). The writ of sequestrari facias (q. v.) is in the 
 nature of a levari facias, and is hence sometimes called a levari facias de 
 bonis ecclesiasticis. 1 
 
 LEVY. — To levy is to raise a sum of money, e.g., by a writ of execu- 
 tion against the property of a judgment debtor. (See Execution, §§ 3 
 elseq.; Fieri facias.) 
 
 LEX DOMICILII is the law of the country where a person has his 
 domicile 5 (q. v.). 
 
 LEX LOCI is late law- Latin for " the law of the place." It is chiefly 
 used in the following phrases : the lex loci \celebratf\ contractus is the law 
 of the place where a contract was made ; lex loci solutionis is the law of the 
 place of payment, that is, of the place where, by the terms of the con- 
 tract, payment is to be made: lex loci actus is the law of the place where a 
 transfer of property or some similar formal act has been performed : lex loci 
 rei sites is the same as lex situs (q. v.) : lex loci delicti is the law of the place 
 
 1 Cooke, Incl. 10. 3 Hargrave's note to Co. Litt. 47 b ; see 
 
 " Elton, Comm. 56, citing Whiteloch v. Steph. Comm. iii. 249. 
 
 Hutchinson, 2 M. & Rob. 205. In the 4 Chitty, Pr. 693 ; Smith's Action (nth 
 
 French feudal law the term was applied to edit.), 397. 
 
 villeins domiciled in a seignory (Loysel, 5 Savigny, Syst. viii. ; and Westlake's 
 
 Inst. Cout. gl. v. Hommes Couchants et Priv. Int. Law, passim. 
 Levants). 
 
436 
 
 Lex Situs 
 
 LAW DICTIONARY. 
 
 Libei 
 
 where a tort or wrong has been committed: lex fori is the law of the 
 place where judicial proceedings have been taken to enforce an obliga- 
 tion, &C 1 - (See International Law ; Jurisdiction ; Locus regit Actum.) 
 
 LEX SITUS is modern law- Latin for "the law of the place where 
 property is situated." The general rule is, that lands and other immove- 
 ables are governed by the lex situs, that is, by the law of the country in 
 which they are situated. 2 (See Lex Loci.) 
 
 LIABILITY is the condition of being actually or potentially subject 
 to an obligation, and is used either generally, as including every kind of 
 obligation, or, in a more special sense, to denote inchoate, future, 
 unascertained or imperfect obligations, as opposed to debts, the essence 
 of which is that they are ascertained and certain. (See Debt.) Thus 
 when a person becomes surety for another, he makes himself liable, 
 though in what obligation or debt the liability may ultimately result is 
 unascertained : and when a person becomes a member of a company he 
 makes himself liable for the debts of the company, to be ascertained 
 when it is wound up. 3 (See Limitation of 'Liability .) 
 
 LIBEL. — I. § i. In the widest sense of the word, a libel is a 
 published writing, picture, or similar production, of such a nature as to 
 immediately tend to occasion mischief to the public, or to injure the cha- 
 racter of an individual. 4 Hence libels are of two kinds, public and private. 
 Public. § 2. A public libel is one which tends to produce evil consequences to 
 
 society, because it is either blasphemous 5 (see Blasphemy), or obscene 6 
 (q.v.), or seditious 7 (q. v.). The publication of such a libel is a misde- 
 meanor. To this class also belong libels on the Houses of Parliament, 
 which are contempts or breaches of privilege : libels on Courts of justice, 
 or on persons concerned in proceedings before Courts, which are con- 
 tempts of Court {q. v.) : 8 and libels on foreign rulers, ambassadors, &c.° 
 Private. Private libels are of two kinds. § 3. A defamatory libel, or a libel on 
 
 Defamatory. j- ne character of an individual, is a false and malicious writing, picture, or 
 the like, published concerning a certain person, and which either brings 
 him within the danger of the law by accusing him of a crime, or has a 
 tendency to injure him in his profession or calling, or by holding him up 
 to scorn, ridicule, hatred or execration, impairs him in the enjoyment of 
 general society, 10 or by blackening the memory of one who is dead, tends 
 to provoke a breach of the peace. 11 A defamatory libel is a civil injury, 
 
 1 SeeWestlake's Priv.Int.Law,/<u.rz#z, - 
 Savigny, Syst. viii. passim. 
 
 2 Westlake, Priv. Int. Law, 62. 
 
 3 In Williams v. Harding (L. R., I H. 
 L. 9), the House of Lords decided that the 
 liability of a shareholder of a solvent com- 
 pany was a " debt" within the meaning of 
 the Bankruptcy Act, 1861 ; the reasons 
 given for this decision are somewhat 
 technical. 
 
 I Starkie's Law of Slander and Libel, 
 cited in Shortt on Copyright, 297, u. (a) ; 
 Bradlaugh v. Reg., 3 Q. B. D. at p. 627. 
 
 6 Shortt, 297 ; Stephen, Crim. Dig. 97. 
 
 6 Shortt, 311. 
 
 7 Shortt, 319 ; Steph. 55. 
 
 8 Shortt, 344, 357. 
 
 9 Shortt, 379 ; Stephen, 59. 
 1° Shortt, 384, 39!. 
 
 II Ibid. 419 ; Russeil on Crimes, iii. 178, 
 205 ; Steph. Crim. Dig. 184. 
 
Liberate law dictionary. Licence 487 
 
 giving rise to a right of action for damages by the person defamed. It is 
 also a misdemeanor, and makes the offender punishable criminally by fine 
 and imprisonment. 1 The question whether a publication is libellous or 
 not is one of mixed fact and law, and rests with the jury, subject to the 
 judge's direction as to the law. 2 (See Fact, § 3.) 
 
 § 4. A libel may be injurious to a person's property or trade. Thus, if Libel to 
 a person falsely and maliciously publishes statements calculated to injure P ro P ert y- 
 the property (e.g., the business) of another, this is a libel, and not only 
 gives rise to a right of action for damages, but may also be restrained by 
 injunction. 3 
 
 See Innuendo; Justification; Malice; Privilege; Publication; Slander. 
 
 II. § 5. In the Ecclesiastical Courts, the first plea in a plenary cause Ecclesiastical 
 (not being a criminal cause) is termed the libel, and runs in the name of P ractlce - 
 the party or his proctor, who alleges and propounds the facts on which 
 his demand is based. 4 (See Plea.) 
 
 LIBERATE, — When execution has been issued on a statute staple by a writ in the 
 nature of an extent, the lands, tenements and chattels of the conusor or debtor are not 
 delivered to the conusee or creditor, but are seized by the sheriff " into the king's 
 hands," and in order to get possession of them the conusee must sue out a writ called a 
 liberate, which commands the sheriff to deliver them into his hands. 5 (See Extent.) 
 
 LIBERTY. — I. § 1. In its general sense, a liberty is an authority to 
 do something which would otherwise be wrongful or illegal. Thus, if a 
 man grants to another trees growing on land, that implies a liberty to cut 
 them and carry them away. 6 (See Free Entry, Egress and Regress.) Such 
 a liberty may be either personal to the grantee, or it may be inherent or 
 annexed to property so as to pass with it on an assignment. (See Licence.) 
 
 II. §2. "Liberty" is also used as equivalent to " franchise" (q.v.), 
 both as denoting a right and as denoting the place where the right is 
 exercisable. Thus, the Liberty of the Savoy is a place subject to a fran- 
 chise. 7 As to writs of execution, see Non omittas. 
 
 LICENCE. — I. § 1. In its general sense, a licence is an authority to 
 do something which would otherwise be inoperative, wrongful or illegal. 
 (See Authority ; Liberty!) Thus, a lease frequently contains a covenant 
 by the lessee not to assign the term without the lessor's licence. 
 
 II. § 2. In the law of real property, a licence is generally an authority Land, 
 to do an act which would otherwise be a trespass. A licence passes no 
 interest, 8 and therefore' if A. grants to B. the right to fasten barges to 
 moorings in a river, this does not amount to a demise, nor give the 
 licensee an exclusive right to the use of the moorings, nor render him 
 
 1 Shortt, 499;, Stephen's Crim. Dig. " Phillimore, Eccl. Law, 1254,1289. 
 184^^2'. * 6 Lidd's Pr. 1087; Williams' Saund. 
 
 2 Fox's Act (32 Geo. 3, c. 60) made this ii. 221. 
 
 rule applicable to criminal prosecutions for 6 Rolle, Abr. Graunt, Z. 16. 
 
 libel. See Thomas v. Williams, 14 Ch. D. ' Viner, Abr. Franchise, B. 8. 
 
 864. 8 Gale on Easements, 15 ; Shelford, 
 
 3 Saxby v. Easterbrook, 3 C. P. D. 339. R. P. Stat. 59. 
 
488 
 
 Licence 
 
 LAW DICTIONARY. 
 
 Licence 
 
 Revocable, 
 irrevocable. 
 
 Marriage 
 licence. 
 
 Special. 
 Ordinary. 
 
 Registrar's. 
 
 Intoxicating 
 liquors, &c. 
 
 Justices' 
 licence. 
 
 Exciselicence 
 founded on 
 magistrates' 
 licence. 
 
 liable to be rated as the occupier of part of the bed of the river. 1 Hence, 
 also, if a person by deed grants an exclusive licence for the use of land, 
 this may amount to a lease, or to the grant of an incorporeal heredita- 
 ment 3 (see Lease, § i). § 3. A mere licence is always revocable, but when 
 a licence comprises, or is connected with, a grant of an interest, it is 
 generally irrevocable : thus a licence by A. to hunt in his park is revo- 
 cable ; but a licence to hunt and take away the deer when killed, is in 
 truth a grant of the deer with a licence annexed to come on the land, 
 and if the grant is good the licence is irrevocable. 4 So a licence may be 
 irrevocable if granted for valuable consideration. 5 
 
 III. § 4. A marriage licence is an authority enabling two persons to be 
 married. Such licences are of three kinds. A special licence is granted 
 by the Archbishop of Canterbury, and enables the parties to be married 
 in any church or chapel or other meet and convenient place. 5 An 
 ordinary licence is granted by any archbishop or bishop for the marriage 
 of persons within his diocese in a church or chapel in which banns may 
 lawfully be published, 6 A superintendent registrar's licence is one granted 
 by the superintendent registrar of the district in which the parties, or one 
 of them, reside, authorizing the solemnization of a marriage between 
 them according to the rites of the Church of England, or the usages of 
 the Quakers or Jews, &c, or such form as they think fit to adopt. 7 (See 
 Marriage; Marriage Acts.) 
 
 IV. Licences for the manufacture and sale of intoxicating liquors and 
 refreshments are of three kinds, according to the authorities by whom 
 they are granted. § 5. A magistrate's or justice's licence is granted as a 
 kind of certificate that the applicant is a proper person to be intrusted 
 with the sale of intoxicating liq'uors, and that the "premises'' which he 
 occupies are fit for the purpose. § 6. In counties, new licences are 
 granted by the justices present at the meeting held by them every year, and 
 called " the general annual licensing meeting," and must be confirmed 
 (except in the case of outdoor licences) by a standing committee, appointed 
 every year from among themselves by the justices at quarter sessions, and 
 called "the county licensing committee." 8 In boroughs, licences are 
 granted by "the borough licensing committee," appointed every year 
 from among themselves by the borough justices, and confirmed by the 
 whole body of borough justices, or if the borough has not ten justices, 
 licences are granted by the borough justices, and confirmed by a "joint 
 committee" composed of six borough and county justices. 9 
 
 § 7. The magistrate's licence entitles the holder to take out the cor- 
 responding excise licence, which is granted by the Commissioners of 
 Inland Revenue, and is a mode of levying a tax on the sale of liquors and 
 refreshments. 
 
 1 Watiins v. Overseers, <5r»c, L. R., 3 
 Q. B. 350. 
 
 2 Hooperv. Clark, 8 B. & S. 150; L. R., 
 2 Q. B. 200. 
 
 3 Wood v. Leadbitter, 13 M. & W. 838 : 
 Gale, 61. 
 
 4 Shelford, 60, 
 
 5 Browne on Divorce, 56. 
 
 6 Ibid. 56, 68. 
 ' Ibid. 65. 
 
 8 Act of 1828, s. 1 ; Act of 1872, s. 37 ; 
 Act of 1874, s - 3 2 - 
 
 9 Act of 1872, s. 38. 
 
Licence LAW DICTIONARY. Lien 489 
 
 § 8. Both magistrates' and excise licences require to be renewed every Varieties of 
 year, and are of various descriptions, according to the number and kind llcences - 
 of liquors authorized to be sold under them (the public-house licence, 
 the beer licence; &c), and to the question whether the liquor is to be 
 consumed on or off the premises (indoor and out-door licences, shop- 
 keepers' wine licence, Sec), and to the time during which they authorize 
 the consumption (the six-day licence, i. e., excluding Sundays : the early 
 closing licence, &C.) 1 A provisional licence may also be granted in 
 respect of premises about to be constructed or in course of construction. 2 
 An additional licence is one granted to the holder of a " strong beer 
 dealer's wholesale excise licence," and authorizes him to sell beer by 
 retail for consumption off the premises. 3 
 
 § 9. There are also excise licences granted without the necessity of a Excise licences 
 magistrate's licence, e.g., the refreshment house licence, 4 which does not not founded 
 authorize the sale of intoxicating liquors, 5 and the licences to brewers, trates' licen- 
 wholesale beer dealers, maltsters, distillers, dealers in foreign wines, ces - 
 manufacturers of and dealers in tobacco, &c. 6 
 
 § 10. Among miscellaneous licences, or licences not granted in the Miscellaneous 
 usual way by justices or the excise authorities, may be mentioned the llcences - 
 "occasional licence" in the strict sense of the word, namely, a licence 
 granted by the excise authorities, on the written consent of a justice, to a 
 person already licensed to sell liquors to be consumed on the premises, 
 authorizing the sale of them at some other place between certain hours 
 and on a special occasion (e.g., a fair, race, ball, &c.) specified in the licence. 7 
 The term " occasional licence" is also applied to an exemption granted 
 by the commissioners of police or other " local authority" 8 of the district, 
 exempting the person to whom it is granted from the rules relating to the 
 closing of premises on a special occasion (e. g., a fete or ball) and during 
 certain hours specified in the licence." 
 
 V. § 11. There are also numerous other varieties of licence, such as 
 game licences (see Game), licences for making and selling gunpowder, 
 fireworks, &c, licences for race-courses in the suburbs of London, 10 for 
 the reception of lunatics, for retreats for habitual drunkards, &c. u (See 
 Drunkenness, § 2.) 
 
 LIEGE. See Homage, § 3. 
 
 LIEN 13 is a right by which a person is entitled to obtain satisfaction 
 of a debt by means of property belonging to the person indebted to him. 
 
 1 For an enumeration of the various " 25 Vict. c. 22, s. 13 ; 26 & 27 Vict, 
 licences see Lely & Foulkes's Licensing c. 33, ss. 19, 20; 27 Vict. c. 18, s. 5. 
 Acts, 7. 8 Act of 1872, s. 26. 
 
 2 Act of 1874, s. 22. 9 Act of 1872, s. 29. See form : Lely 
 
 3 Stats. 26 & 27 Vict. c. 33, s. 1 ; 43 & Foulkes, 192. As to the hours of 
 Vict. c. 6. closing, see Act of 1874, s. 3. 
 
 * 23 Vict. c. 27, s. 6. 10 Stat. 42 & 43 Vict. c. 18, 
 
 5 Lely & Foulkes, 10. ll Ibid. c. 19. 
 
 6 Stat. 6 Geo. 4, c. 81, and the other 12 As to liens generally, see Smith's 
 acts mentioned in the index to the statutes, Merc. Law, 558 et seq. ; Stokes's Lien of 
 title " Brewer." Attorneys ; Fisher on Mortgage, 102 et 
 
 seq. 
 
49o 
 
 Lien 
 
 LAW DICTIONARY. 
 
 Lien 
 
 Liens by 
 operation of 
 law. 
 
 Legal, equit- 
 able and statu 
 tory liens. 
 
 Conventional 
 liens. 
 
 A lien is therefore a species of security (see Security; Right), but differs 
 from a mortgage, charge or the like in this respect, that in the case of 
 a mortgage or charge the origin of the debt is immaterial {e.g., it may 
 be a loan, a debt for goods sold, &c), while a lien is always a security 
 on property which is or has been the subject of a transaction between 
 the parties; 1 thus, if A. sells lands or goods to B., A. has a lien on 
 them for the unpaid purchase-money, unless he expressly or impliedly 
 waives his right. 3 
 
 I. With reference to their origin, liens arise either by operation of law 
 or by agreement between the parties. § 2. Liens arising by operation 
 of law (liens by implication, implied liens) are those which arise from 
 the relation of the parties, without express or tacit stipulation, and either 
 by the rules of the common law (as in the case of the vendor's lien for 
 purchase-money mentioned above), by the rules of equity (equitable 
 liens), or under the provisions of a statute (statutory liens), of which two 
 latter classes examples will be found below. § 3. Liens by agreement 
 between the parties (conventional liens) are those created intentionally 
 in cases where the relation between the parties is not such as to give rise 
 to a lien by operation of law, as where a carrier stipulates for a general 
 lien {infra, § 4) on goods sent him for transmission. 3 The intention to 
 create the lien may be express, or it may be implied, e. g., from a previous 
 course of dealings between the parties.* (See Implied, § 2.) 
 
 II. With reference to the nature of the right which they confer on the 
 creditor, liens are of two kinds. 
 
 Retaining or § 4. A retaining (or possessory) lien is the right of the creditor to 
 retain possession of his debtor's property until his debt has been satisfied ; 5 
 thus, if a person takes a watch to a watchmaker to be repaired, the 
 watchmaker has a lien on the watch for his remuneration, i.e., has the 
 right of retaining it until his reasonable charges are paid. In this instance 
 the lien is a particular lien, because it exists only as a security for the 
 particular debt incurred in respect of the watch itself, while a general 
 lien is available as a security for all debts arising out of similar trans- 
 actions between the parties ; thus, if a solicitor has possession of title 
 deeds belonging to his client, he has a general lien on them, that is, he 
 is entitled to retain them until he is paid not only his charges in respect 
 of the deeds themselves, but also the whole amount owing to him from 
 the client for professional services up to that time." (See also Charge, 
 §5.) General liens exist only in pursuance of a usage to that effect in 
 the particular trade or business, the principal instances being in the case 
 of solicitors, bankers, innkeepers, 7 wharfingers and factors. 8 
 
 possessory 
 lien. 
 
 Particular 
 lien. 
 
 General lien 
 
 1 Hence the civilians call the debt giving 
 rise to a lien a debitum connexum : Thibaut, 
 Pand. § 224. 
 
 2 Dart, V. & P. 729 ; Benjamin on 
 Sales, 656. 
 
 3 Wiltshire Iron Co. v. G. W. R. Co. 
 L. R., 6Q. B. 101, 776. 
 
 4 Smith's Merc. Law, 561. 
 
 5 As to the difference between a lien 
 
 and a pledge, see Donald v. Suckling, L. 
 R., 1 Q. B. p. 604. 
 
 G Daniell, Ch. Pr. 1715. A solicitor's 
 lien on a. fund recovered in an action or 
 suit extends only to the costs of that par- 
 ticular action or suit, and can be actively 
 enforced. Ibid. 1729. 
 
 7 Mulliner v. Florence, 3 Q. B. D. 484. 
 
 8 Smith, Merc. Law, 562. 
 
Life LAW DICTIONARY. Light 491 
 
 § 5. A charging lien is the right to charge property in another's Charging lien, 
 possession with the payment of a debt or the performance of a duty : an 
 instance of this is the equitable lien of a vendor of land for the unpaid 
 purchase-money. 1 A charging lien can be enforced by bringing an 
 action (formerly by filing a bill in equity) for a sale of the property. 2 The 
 important distinction between a possessory and a charging lien is that in 
 the case of the former, if the creditor gives up possession of the property, 
 he loses his lien, while it follows from the nature of a charging lien that 
 the property need not be in the creditor's possession. 
 
 § 6. There are also various forms of maritime lien, or lien on a ship, Maritime 
 freight, &c., 3 some of which are possessory, and some charging ; thus, a llens - 
 shipowner has, independently of contract, a possessory lien on goods 
 carried in his ship for the freight due in respect of them. 4 If a ship is 
 injured in a collision by the negligence of the other ship, the owners of 
 the former have a maritime (charging) lien on the latter for the damage ; 5 
 so the master of a ship has a maritime (charging) lien on the ship and 
 freight for his wages and disbursements ; 6 this is an instance of a statu- 
 tory lien, or lien created by statute. A maritime charging lien can be 
 enforced by proceedings in the Admiralty Division, in which distress and 
 sale of the ship may be ordered. 7 
 
 See Charge. 
 
 Etymology and History.] — French, lien ; Latin, ligamen, from ligare, to bind. 
 Formerly it denoted ohligatio generally. " Lien is a word of two significations — Per- 
 sonal lien, as a bond, covenant, or contract ; and real lien, a judgment, statute, recogni- 
 zance, or an original against an heir, which oblige and affect the land," 8 or a warranty. 
 This sense is now obsolete. 
 
 LIFE. See Death; Insurance, § 7; Tenant for Life. 
 
 LIGEANCE is the old-fashioned equivalent for " allegiance" (q.v.). 10 
 
 LIGHT. — § 1. Where the owner of a building with windows, skylights, 
 &c, has enjoyed the access of light to it for twenty years as of right 
 without interruption, he acquires the right of preventing the owners of 
 adjoining land from building or otherwise doing anything on their land 
 to injuriously obstruct the access of light to his windows. (See Enjoy- 
 ment!) This right is a negative easement. 11 It is also called the right of 
 
 1 Wms. R. P. 414; White & Tudor's 6 Merchant Shipping Act, [854, s. 191; 
 L. C. i. 263 ; Dart, V. & P. 729. As to Maude & Pollock, Merch. Shipp. 91. See 
 liens of partners, see Lindley, 679. also Kingston v. Wendt, 1 Q. B. D. 367. 
 
 2 Walker v. Ware, &c. Rail. Co., L. ' Maude & Pollock, 189; Merch. Shipp. 
 R., 1 Eq. 195. Act, 1854, s. 523. 
 
 s Fisher, 168 et seq. 8 Termes de la Ley, s. v. 
 
 « Maude & Pollock, Merch. Shipp. 294. 3 Co. Litt. 376 b. 
 
 As to the preservation of the shipowner's 10 Ibid. 129 a. 
 
 lien when he has landed and warehoused » Prescription Act, 1832, s. 3; Shel- 
 
 the goods, see Merch. Shipp. Act, 1862, ford's R. P. Stat. 120; Gale on Easements, 
 
 ss. 67 et seq. ; Maude & Pollock, 299. 319 ; Homersham Cox on Ancient Lights; 
 
 6 The Charles Amelia, L. R., 2 A. & Latham on Window Lights. 
 E. 33°- 
 
492 
 
 Light 
 
 LAW DICTIONARY. 
 
 Limit 
 
 ancient lights, and the right of light and air ; but the latter name is in- 
 accurate, as the right to air stands on a different footing. (See Air.) The 
 easement may also be acquired by express grant like any other easement. 
 § 2. The right of ancient lights is not lost by the mere fact of the 
 building on the dominant tenement having been pulled down for the pur- 
 pose of erecting a new building in its place : for the easement attaches to 
 windows in the new building occupying the same position as those of the 
 old building, and it continues to exist while the land is vacant, if the 
 right has not been abandoned. 1 The easement is also not lost where the 
 windows in the building are enlarged or opened in a different situation ; 
 in such a case the adjoining owner may obstruct the additional or new 
 window, but in so doing he must not obstruct the old windows. 2 (See 
 Encroachment, § 2.) 
 
 Limitation 
 of Estates. 
 
 Conditional 
 
 Conditional 
 (II.) 
 
 LIMIT— LIMITATION.— I. § 1. To limit an estate is to mark out 
 the extreme period during which it is to continue, and the clause by 
 which this is done in a conveyance, will, &c, is called a limitation. 
 Thus, if I grant land to A. for life, and after his death to B. and his heirs, 
 this is a limitation of a life estate to A., and of the remainder in fee to 
 B. 3 (See Words of Limitation.) Hence a limitation is opposed to a 
 condition or defeazance, which may put an end to an estate before 
 the time fixed for its extreme duration, though the difference is sometimes 
 one of form only ; thus, if A. devises land to his widow for life, on 
 condition that she does not marry again, the same result is produced as 
 if he devised it to her during widowhood, which is a collateral limitation 
 {infra, § 4).* 
 
 § 2. A conditional limitation (in the generic sense of the term) is 
 where one estate is limited to end and another to commence on the doing 
 of some act or the happening of some event. Thus, if I grant land to A. 
 until B. returns from Rome, and on that event to C. in fee ; or if I grant 
 land to A., provided that when B. returns from Rome it shall immediately 
 vest in C. in fee, in either case the limitation to C. is a conditional 
 limitation. § 3. But in the specific and more accurate use of the term, 
 a conditional limitation is where an estate is limited to commence in 
 defeasance of a preceding estate, as opposed to a contingent remainder, 
 which awaits the regular determination of the preceding estate; conditional 
 limitations (in this sense) derive their name from their mixed nature : "they 
 so far partake of the nature of conditions as they abridge or defeat the 
 estates previously limited, and they are so far limitations as, upon the con- 
 tingency taking place, the estate passes to a stranger." 5 The latter of the 
 two example given in § 2 is a conditional limitation in this sense, the former 
 being an instance of a collateral limitation {infra, § 4), or a determinable 
 estate followed by a contingent remainder. 6 (See Remainder.) 
 
 1 Eccl. Comm. v. Kino, 14 Cli. D. 213. 
 
 2 Tabling \. Jones, II H. L. C. 290; 
 Gale, 60b. 
 
 3 See Williams, R. P. 139 ; Preston on 
 Estates, 14. 
 
 1 Fearne, Cont. Rem. 10 (note by 
 
 Butler). Littleton (§ 380) calls conditional 
 and collateral limitations ' ' conditions in 
 law." 
 
 5 Butler's note to Co. Litt. 203 b. 
 
 6 Feame, 5, 9, 14 ; Smith on Exec. Int. 
 §§ 148 et seq. 
 
Limit LAW DICTIONARY. Limit 493 
 
 § 4. A collateral limitation is one which marks the extreme duration of Collateral, 
 an estate, and at the same time indicates an uncertain event, the happen- 
 ing of which will put an end to it before the expiration of that period. 
 Thus, a limitation to a woman during widowhood, is a collateral limita- 
 tion, because it gives her an estate for life, but makes it determinable on 
 her marrying again. 1 § 5. At common law, no estate could be limited 
 in expectancy on the determination of an estate in fee simple, however 
 limited or conditional it might be (see Reverter; Right of Entry) ; but 
 under the Statutes of Uses and Wills, such limitations may validly be 
 created. A conditional or collateral limitation by way of use is sometimes 
 called a shifting or springing use (see Use) ; when created by will it is 
 called an executory devise. 2 (See Executory Interests.) 
 
 II. § 6. Limitation, as a measure of time, is a certain period prescribed Limitation 
 by statute within which proceedings to enforce a right must be taken. 3 action &c. 
 This is of two kinds, namely ( 1 ) where on the expiration of the time the ■ 
 
 right itself is barred, as in the case of a person who has been out of pos- 
 session of land for twelve years, 4 although he may be ignorant of the fact 
 that another is in possession; 5 and (2) where on the expiration of the time 
 the remedy is barred, but not the right ; thus, in the case of a debt which 
 has remained unpaid and unacknowledged for six years, the creditor's 
 right to bring an action to recover it is gone, but the debt exists for other 
 purposes : hence he can exercise a right of lien to recover it, 6 but not a 
 set-off or counter-claim, because that is in the nature of a cross-action, 
 
 § 7. The period allowed in each case runs from the time when the right 
 of action accrued. (See Accrue.) In certain cases, however, persons under Disabilities, 
 disability have an extended time allowed them, calculated from the time 
 the disability ceased, provided the whole time allowed does not exceed a 
 certain maximum period. The disabilities recognized for this purpose 
 are — infancy, coverture, and unsoundness of mind. As to the absence 
 abroad of a plaintiff or defendant, see Absence beyond Seas. 
 
 § 8. If the person liable to be sued gives the claimant an acknowledg- Acknowledg- 
 ment of his title, this has the effect of extending the period of limitation, ment- 
 so that it only runs from the acknowledgment, or the last acknowledg- 
 ment, if there were several. (See Acknowledgment, § 1.) 
 
 § 9. The Statutes of Limitation do not apply to trusts, except trusts Trusts, &c. 
 created merely for the purpose of securing debts or legacies ; nor to the 
 engagements of a married woman ; 7 nor to the crown (see Nullum 
 Tempus occurrit Regi). And in the case of concealed fraud, the right Fraud, 
 of a person to bring an action to recover land or rents is deemed to 
 have accrued at the time he discovered, or might have discovered, the 
 fraud. The statutes do not interfere with the equitable doctrines of 
 laches and acquiescence {q. v.). 
 
 1 As to the accuracy of the expression, 4 3 & 4 Will. 4, c. 27, ss. 2, 34. 
 
 see Butler's note (h) to Fearne, 10 ; Smith, 6 Rains v. Buxton, 14 Ch. D. 537. 
 
 § 36. ° Shelford, R. P. Stat. 267; stats. 21 
 
 z Butler's note to Fearne, 381. Jac. 1, c. 16, s. 3 ; 9 Geo. 4, c. 14. 
 
 8 See Co. Litt. 114 b. 7 Hodgson v. Williamson, 15 Ch. D. 87. 
 
494 
 
 Limit 
 
 LAW DICTIONARY. 
 
 Limitation 
 
 The following are the periods allowed by the principal Statutes of 
 Limitation : — 
 
 Statute. 
 
 3 & 4 Will. 4, c. 27 ) 
 37 & 38 Vict. c. 57 / 
 
 Same, and 7 Will. 4 
 & 1 Vict. c. 28. 
 
 3 & 4 Will. 4, c. 27 1 
 37 & 38 Vict. c. 57 I 
 
 Same. 
 
 23 & 24 Vict. c. 38. 
 
 3 &4 Will. 4, c. 27. 
 
 Same. 
 
 Same, and 6 & 7 Vict. 
 c 54- 
 
 3 & 4 Will. 4, c. 42. 
 
 Same. 
 
 21 Jac. I, c. 16, and 
 9 Geo. 4, c. 14. 
 
 21 Jac. 1, c. 16. 
 Same. 
 
 Subject Matter. 
 
 Lands and rents. 
 
 Redemption of mortgage 
 where mortgagee in pos- 
 session. 
 
 Moneys charged on land. 
 
 Legacies. 
 
 Claims to estates of intes- 
 tates. 
 
 Arrears of dower or rent, or 
 of money charged on land, 
 or of interest on legacies. 
 
 Land or rent belonging to an 
 ecclesiastical or eleemo- 
 synary corporation sole. 
 
 Advowsons. 
 
 Bonds, covenants, recogni- 
 zances, &c. 
 
 Penalties under statute. 
 
 Simple contracts, torts to 
 property, and actions on 
 the case, except those 
 mentioned below. 
 
 Assaults and other torts to 
 the person. 
 
 Slander. 
 
 Ordinary Limitation, 
 
 Twelve years. 
 Twelve years. 
 
 Twelve years. 
 
 Twelve years. 
 Twenty years. 
 
 Six years. 
 
 Two incumbencies 
 and six years, or 
 sixty years, which- 
 ever is longer- 
 Three incumben- 
 cies or sixty years. 
 
 Twenty years. 
 
 Two years. 
 Six years. 
 
 Four years. 
 Two years. 
 
 Extended Time 
 for Persons 
 
 under 
 Disability. 
 
 Six years. 
 None. 1 
 
 None. 
 
 None. 
 None. 
 
 None. 
 None. 
 
 None. 
 
 Full period 
 after remo- 
 val of disa- 
 bility. 
 
 Same. 
 
 Same. 
 
 Same. 
 Same. 
 
 Maximum 
 Period. 
 
 Thirty years. 
 
 One hundred 
 years. 
 
 Companies. LIMITATION OF LIABILITY.— § 1 . As to companies with limited 
 liability, see Company, § 4 et seq.; Contributory. 
 
 Shipowners. § 2. A shipowner is not liable at all for loss of or damage to goods on the 
 ship in certain cases (e. g. when caused by fire), 2 and is not liable for loss 
 of life or injury to persons or things caused by or on board the ship in 
 other cases beyond a certain amount for each ton of the ship's tonnage, 
 namely, 15/. per ton in respect of loss of life or personal injury, and 8/. 
 
 1 Kinsman v. Rouse, 17 Ch, D. 104; 
 Forster V.Patterson, ibid. 132. 
 
 2 Merch. Shipp. Act, 1854, s. 503. 
 
Limited LAW DICTIONARY. Liquidation 495 
 
 per ton for loss or damage to goods. If the damages actually sustained 
 exceed the amount thus arrived at, it is paid into Court, and distributed 
 among the claimants in proportion to their claims. The claimants are 
 said to prove against the fund in Court just as creditors prove against an 
 insolvent estate. (See Proof!) These limitations of liability only apply to 
 cases where the loss or injury has not been caused by the shipowner's 
 actual fault or privity. 1 
 
 § 3. Where two vessels are injured by collision, and both are to blame, Where 
 so that the rule as to halving the damage applies (as to which see Colli- halved. 6 IS 
 sioti), and one of them obtains a limitation of his liability under the M. S. 
 Act, 1862 {supra, § 2), no set-off is allowed between the amounts of the 
 respective damages. Thus, suppose the ships A. and B. come in colli- 
 sion, and both are to blame, and the half-damage payable by A. is 14,000/., 
 and that payable by B. is 2,000/., then if there were no limitation of liability, 
 A. would be liable to B. in the difference, namely, 12,000/. But if ship 
 
 A. obtains a judgment limiting its liability to 5,000/., the question arises, 
 whether ship B. should be entitled to set off the 2,000/. against the 14,000/., 
 and prove against the 5,000/. for the balance of 12,000/., or whether ship 
 
 B. is bound to pay the 2,000/. in full to ship A., and proveforthe 14,000/. 
 against the 5,000/. It has been decided that the latter is the correct 
 principle. 2 
 
 LIMITED. — As to limited companies, see Company, §§4^/^. As 
 to limited grants of administration and probate, see Grant, §§ 5 et seq. 
 
 LINEAL. See Consanguinity ; Descent, § 10 ; Warranty. 
 
 LIQUIDATED. — A sum is said to be liquidated when it is fixed or 
 ascertained. The term is usually employed with reference to damages 
 (q. v. § 2). See also Writ of Summons. 
 
 LIQUIDATION.— I. § 1. Under the Bankruptcy Act, 1869, a debtor Insolvent 
 unable to pay his debts may present a petition stating that he is insol- ebtor - 
 vent, and thereupon summon a general meeting of his creditors. If the 
 meeting passes a special resolution declaring that the affairs of the debtor 
 are to be liquidated by arrangement, and not in bankruptcy, the creditors 
 appoint a trustee, with or without a committee of inspection, and the pro- 
 perty of the debtor vests in the trustee and becomes divisible among his 
 creditors, in the same way as if he had been made bankrupt. The sub- 
 sequent proceedings generally follow the same course as those in an 
 ordinary bankruptcy (see Bankruptcy, §§ 5 et seq.), except that the close of 
 the liquidation and the discharge of the trustee are fixed by the creditors. 3 
 The theory of the proceeding is that the affairs of the estate are brought 
 under the immediate control of the creditors, without the delays and 
 
 1 Merch. Shipp. Amendment Act, 1862, 2 Chapman v.- Royal Netherlands Co., 
 
 s. 54 ; Maude & Pollock, Merch. Shipp. 4 P. D. 157. 
 
 51 ; Williams & Bruce's Admiralty, 68. 3 Bankruptcy Act, 1869, s. 125 ; Bank- 
 
 ruptcy Rules, 1870, rr. 252 et seq. 
 
496 
 
 Liquidator 
 
 LAW DICTIONARY. 
 
 Lis mota 
 
 expenses caused by the supervision of the Court as in bankruptcy, but it 
 cannot be said that this object is always attained. (See Committee of 
 Inspection ; Composition, § 4 ; Discharge, § 4.) 
 Companies. II. § 2. As to the liquidation of companies, see Winding-up. 
 
 LIQUIDATOR is a person appointed to carry out the winding-up of 
 a company (see Winding-up). § 2. In the case of a voluntary winding-up 
 with or without supervision, liquidators are appointed by the company -, 1 
 but where a company is being wound up subject to supervision, the Court 
 
 Provisional. may appoint additional liquidators. 3 § 3. In the case of a compulsory 
 winding-up, a provisional liquidator may be appointed by the Court as 
 soon as a petition for winding-up has been presented : he resembles a 
 
 Official. receiver (q. v.)? After the winding-up order is made, official liquidators 
 
 are appointed for the purpose of conducting the proceedings in the wind- 
 ing-up, subject to the directions of the Court. 4 
 
 § 4. The duties of a liquidator are to get in and realize the property of 
 the company, to pay its debts, and to distribute the surplus (if any) among 
 the members. The chief difference between an official liquidator and a 
 liquidator appointed in a voluntary winding-up is, that the former cannot 
 as a rule take any important step in the winding-up without the sanction 
 of the Court, while the latter is not so restricted ; he also does various 
 things which, in a compulsory winding-up, are done by the Court, 
 e.g., settling the list of contributories and making calls. 
 
 LIS ALIBI PENDENS = " a suit pending elsewhere." The fact 
 that proceedings are pending between a plaintiff and defendant in one 
 Court in respect to a given matter is frequently a ground for preventing 
 the plaintiff from taking proceedings in another Court against the same 
 defendant for the same object and arising out of the same cause of 
 action. As a general rule, the plaintiff is put to his election which suit 
 he will pursue, and the other is either dismissed, .or the proceedings in it 
 are suspended until the other is decided. 5 
 
 LIS MOTA is existing or anticipated litigation. The phrase is used 
 chiefly with reference to declarations or statements made under such 
 circumstances that they are admissible in evidence notwithstanding the 
 rule against hearsay evidence ; thus a pedigree drawn up by a member of 
 a family is admissible after his death as evidence of the facts stated in it, 
 unless it can be shown that it was drawn up post litem motam. 6 The 
 phrase is also used in questions of privileged communications. (See 
 Confidential Communications ; Privilege.) 
 
 1 Companies Act, 1862, s. 133 ; Lind- 
 ley, 1413 ; Thring on Companies, 187. 
 
 2 Companies Act, 1862, s. 150. 
 
 3 Ibid. s. 85; Lindley, 1270; Thringj 
 181. 
 
 4 Companies Act, 1862,. s. 92; Lindley, 
 1271 ; Thring, 183. 
 
 6 Walsh v. Bishop of Lincoln, L. R., 
 A. & E. 242 ; The Catterina Chiazzare, 
 
 I P. D. 368 ; Westlake's Priv. Int. Law. 
 
 6 Per Lord Mansfield, Berkeley Peerage 
 Case,\ Camp, at p. 415; Best onEvidence, 
 633. "Prove that it[the pedigree]was made 
 post litem motam, not meaning thereby a 
 suit actually pending, but a controversy 
 existing, and that the person making or 
 concocting the declaration took part in the 
 controversy. Shew me even that there 
 
Lis pendens law dictionary. Livery of Seisin 497 
 
 LIS PENDENS is a pending suit, action, petition for winding up a 
 company, 1 or the like. The old doctrine of lis pendens was that if 
 property was in question in a suit or action, it could not be alienated 
 during the pendency of the suit or action, even to a purchaser or mort- 
 gagee without notice. 8 But by stat. 2 & 3 Vict. c. 11, no lis pendens 
 binds a purchaser or mortgagee without express notice thereof, unless a 
 memorandum giving a description of the person whose estate is intended 
 to be affected thereby, and particulars of the suit, is registered in the 
 Common Pleas Registry Office, 3 now the Central Office (q. v.). The regis- 
 tration of a lis pendens does not create an incumbrance on the property, but 
 merely gives intending purchasers or mortgagees notice of the litigation. 4 
 
 Provision is made by stat. 30 & 31 Vict. c. 47 for vacating a lis pendens 
 if the litigation is not prosecuted bona fide. 
 
 LITIGIOUS. — In ecclesiastical law, a church or benefice is said to 
 be litigious when two patrons present to it by several titles, because then 
 the bishop knows not under which presentation to admit, even if they 
 both present the same clerk. 5 (See Jus Patronatus ; Quare impedit.) 
 
 LITIS CONTESTATIO. See Contestation of Suit. 
 
 LITTLETON. — Thomas Littleton seems to have been born about 
 the beginning of the fifteenth century ; was called to the bar at the Inner 
 Temple, made serjeant-at-law 1453, judge of the Common Pleas 1466, 
 knighted 1475, and died 23rd August, 148 1. He wrote the celebrated 
 " Treatise on Tenures," still quoted as an authority on the law of real 
 property, and made valuable by the equally celebrated Commentary of 
 Sir E. Coke. 6 There is also a commentary on it by an unknown writer, 
 which is pronounced ^by Mr. Hargrave to be " a very methodical and 
 instructive work." 7 
 
 LIVERY. — Formerly when an infant heir of land had been in ward to the king by 
 reason of a tenure in capite ut de corona, he was obliged on attaining twenty-one to sue 
 livery, that is, to obtain delivery of the possession of the land, for which (in the case of 
 a general livery) he paid half-a-year's profit of the land. LiverV was either general, that 
 is, in the ordinary form, which had several disadvantages, or special, that is, granted by 
 the king as a matter of grace, by which those disadvantages were avoided and for which 
 the heir had to pay more. 8 As to the mode by which a tenant\in capite ut de honore 
 obtained his lands, see Ousterlemain. (See Guardian; Knight 's\Service ; In Capite.) 
 
 LIVERY OF SEISIN is a public solemnity, or "Vert ceremony," 
 which was formerly necessary to convey an immediate estate of freehold 
 
 was a contemplation of legal proceedings, 2 Fisher on Mortgage, 582. 
 
 with a view to which the pedigree was 3 Ibid. 129. 
 
 manufactured, and I shall then hold that it 4 See an article on the subject in the 
 
 comes within the rule which rejects evi- Jurist, 1865 (part ii.) 383; Sullv.Hutchins, 
 
 dence fabricated for a purpose, by a man 32 Beav. 615 ; 9 Jur., N. S. 954. 
 
 who has an interest of his own to serve." 6 Phillimore, Eccl. Law, 445; Co. Litt. 
 
 Per Lord Brougham in Monliton v. Att.- 243 a. 
 
 Gen., 2 Russ. & M. at p. 161 ; see also " Foss's Biog. Diet. ; Coke's Preface to 
 
 Slaney v. Wade, 1 Myl. & C. 338. the First Institute. 
 
 1 Companies Act, 1862, s. 114; see In 7 Cary's Comm. on Littleton, vii. 
 
 re Bamed's Banking Co., Ex parte 8 Co. Litt. 77 a - 
 Thornton, 2 Ch. 171. 
 
 S. K K 
 
498 Living law dictionary. Local Boards 
 
 in lands or tenements : that is, an estate of freehold in possession, or an 
 estate of freehold only kept out of possession by a chattel interest {i.e., a 
 term of years) preceding it. 1 Thus, if before the Statute of Uses a tenant 
 in fee wished to convey his estate to another, he could only do so by a 
 feoffment, which operates by livery of seisin. 2 (See Feoffment.) At the 
 present day simpler means of conveyance are usually available, and livery 
 of seisin is practically obsolete. 
 
 § 2. Livery of seisin is a transfer of the feudal possession of land, and 
 it is therefore essential that it should be made either in the absence or 
 with the assent of all persons having a right to the possession as against 
 the feoffor, such as lessees for years. 2 
 
 § 3. There are two kinds of livery of seisin, viz., a livery in deed and a 
 
 Liveiy in livery in law. A livery in deed is where the feoffor is on the land to be 
 
 conveyed, and verbally requests or invites the feoffee to enter, or formally 
 
 hands to him any object, such as the ring or hasp of the door of the 
 
 house, or a branch or twig of a tree, or a turf of the land, and declares 
 
 that he delivers it to him by way of seisin of all the lands and tenements 
 
 Livery in law, contained in the deed of feoffment. 3 § 4. "A livery in law [or livery 
 
 view. within the view] is when the feoffor saith to the feoffee, being in view of 
 
 the house or land, ' I give you yonder land to you and your heires, and 
 
 go enter into the same, and take possession thereof accordingly,' and the 
 
 feoffee doth accordingly in the life of the feoffor enter, this is a good 
 
 feoffment." 4 (See Hereditament, § 2.) 
 
 LIVING. See Benefice. As to living memory, see Memory. 
 
 LLOYD'S BONDS are instruments of modern origin, being the 
 invention of the eminent counsel whose name they bear. They are 
 intended to assist railway companies in carrying out their schemes, by 
 indirectly enlarging their borrowing powers, which are limited by the acts 
 creating them, and by the stats. 7 & 8 Vict. c. 85, s. 19, and 8 & 9 Vict, 
 c. 16. A Lloyd's bond is merely an admission under seal of a debt due 
 from some railway company to the party in whose favour it is executed, 
 with a covenant to pay the debt with interest. 5 The obligee is thus 
 enabled to go into the market and obtain cash upon the faith of these 
 instruments. 6 They are generally used (and can only legally be used) for 
 paying contractors and others who have done work or supplied materials, 
 &c. for the company, and cannot be given for a mere loan of money to 
 the company.' 
 
 LOCAL BOARDS OF HEALTH are (i) authorities formed under, 
 the Local Government Acts {q. v.) for carrying out in their respective 
 districts the provisions of those acts ; (ii) authorities formed by order of 
 
 1 Co. Litt. 48 a; Shepp. Touch. 209 et 5 "An account stated under seal, with 
 set/. ; Burton's Comp. 7. a covenant to pay:" per Blackburn, J., 
 
 2 Co. Litt. 48 b; Jarman & Bythewood, Chambers v. Manchester and Milford Rail- 
 iv. 40; Williams on Seisin, 100. -way Co., 33 L. J., N. S., Q. B. 268; 5 Best 
 
 3 Co. Litt. 48 a. & Smith, 588. 
 
 4 Ibid. 48 b. « Tarrant on Lloyd's Bonds, 7, 8. 
 
 7 See Hodges on Railways, 129 et seq. 
 
Local Government Acts LAW DICTIONARY. Locus regit Actum 499 
 
 the Local Government Board under the Public Health Act, 1875, which 
 repealed the Local Government Acts. Both kinds of local boards are 
 urban sanitary authorities for the execution of the provisions of the Public 
 Health Act, 1875. (See Sanitary Authorities?) 
 
 LOCAL GOVERNMENT ACTS are various statutes from 21 & 22 
 Vict. c. 98, to 26 & 27 Vict. c. 17, the first of which gave certain districts 
 the power of adopting and carrying into effect the Public Health Act, 
 1848 (as amended by the L. G. A. 1858) without the necessity of a 
 provisional order of the (then) General Board of Health confirmed by act 
 of parliament. The acts deal with various subjects, including sanitary 
 matters ; but they have now been repealed and their provisions incor- 
 porated in the Public Health Act, 1875. This act, however, distinguishes 
 its "sanitary provisions" from its "local government provisions;" the 
 latter being those which deal with the powers of local authorities in 
 respect to the construction, maintenance, repair and regulation of the 
 highways, streets and buildings within their respective districts. (See 
 Provisional Order ; Sanitary Authorities!) 
 
 LOCAL GOVERNMENT BOARD is a board established by the 
 stat. 34 & 35 Vict. c. 70, for the purpose of concentrating in one depart- 
 ment of the government the supervision of the laws relating to the public 
 health, the relief of the poor, and local government. The Board may be 
 said to have the control of the various local authorities entrusted with the 
 execution of these laws in their respective districts (see Sanitary Autho- 
 rities ; Poor; Local Government), and its sanction is necessary for many 
 purposes, e. g., the borrowing of money by sanitary authorities under the 
 Public Health Acts. 1 
 
 LOCKE KING'S ACT, so called from the member of parliament 
 by whom the bill was introduced, is the statute 17 & 18 Vict. c. 113. It 
 provides that when any person dies entitled to any estate or interest in 
 land which is charged at the time of his death with the payment of 
 money by way of mortgage, and he does not signify a contrary intention, 
 his heir or devisee shall not be entitled to have the mortgage debt dis- 
 charged out of his personal estate (as was the old rule), but shall take 
 the land subject to the debt. 2 The rule has been extended to equitable 
 charges and liens for unpaid purchase-money, and has been made appli- 
 cable to leaseholds. 3 (See Marshalling; Exoneration.) 
 
 LOCUS REGIT ACTUM, in private international law, is the rule that 
 when a legal transaction complies with the formalities required by the law 
 of the country where it is done, it is also valid in the country where it is 
 to be given effect to, although by the law of that country other formali- 
 ties are required. 4 There are many exceptions to the rule, the principal 
 
 1 The Board has the same powers and 3 Williams R. P. 438; Fisher on Mort- 
 
 duties as those formerly vested in the Poor gage, 681, 696. 
 
 Law Board, the General Board of Health 3 Stats. 30 & 31 Vict. c. 69; 40 & 41 
 
 and some other authorities. Steph. Comm. Vict. c. 34. 
 
 hi. 49, 176. 4 Savigny, Syst. viii. § 381 ; Westlake, 
 
 Priv. Int. Law, 159. 
 
 K K 2 
 
5oo 
 
 Locus Standi 
 
 LAW DICTIONARY. 
 
 Lord 
 
 Exemption 
 from distress. 
 
 Franchise. 
 
 Common 
 
 lodging 
 
 houses. 
 
 being with reference to land and other immoveables. The will of a 
 British subject is valid in England, so far as regards personal estate, if 
 made according to the forms required either by the law of the place 
 where it was made, or by the law of his domicile. 1 (See Lex Loci; 
 Domicile!) 
 
 LOCUS STANDI is the right of a person to be heard on a judicial or 
 quasi-judicial proceeding. The phrase is chiefly used in parliamentary 
 practice with reference to the question whether a person who objects to 
 a private bill has the right to appear by counsel and summon witnesses 
 to support his objection before the select committee. 2 (See Referee!) 
 
 LODGER— LODGINGS.— § i. A lodger is a person who occupies 
 rooms in a house of which the general possession remains in the land- 
 lord, as shown by the fact that he retains control over the street or outer 
 door. If, therefore, a house is divided into sets of rooms, each of which 
 has an outer door opening on to a common staircase, while the entrance 
 to that staircase either has no street-door, or has a door under the 
 control of a porter acting as the servant of the collective tenants, then 
 each set of rooms is not a lodging, but a separate hereditament, and 
 each tenant has a rateable occupation. 3 (See Rateable!) ' 
 
 § 2. Goods belonging to a lodger are exempt from distress for rent 
 owing by the lodger's landlord to the superior landlord. To entitle 
 himself to this exemption, the lodger must serve on the superior landlord 
 a declaration, with an inventory of the goods distrained on, stating if any 
 rent is due to his immediate landlord, and that the goods are his, and 
 must tender the amount to the superior landlord.* 
 
 § 3. In every parliamentary borough, a person who has occupied 
 lodgings, being of the yearly value of 10/., for twelve months preceding 
 the last day of July in any year, is entitled to be registered as a voter at 
 parliamentary elections. 5 
 
 § 4. The acts relating to the public health contain provisions for the 
 registration, inspection and regulation of common lodging houses. 6 
 
 LOPWOOD is a right in the inhabitants of a parish within a manor 
 to lop for fuel at certain periods of the year the branches of trees growing 
 upon the waste lands of the manor. The true nature of the right is not 
 quite clear, and it seems that it can only be created by crown grant or act 
 of parliament. 7 (See Profit aprender; Prescription!) 
 
 LORD— LORDSHIP,— § 1. In the law of real property, a lord is a 
 person of whom land is held by another as his tenant. The relation 
 between the lord and the tenant is called tenure (q. v.), and the right or 
 
 1 Stat. 24 & 25 Vict. c. 114. 
 
 2 May, Pari. Pr. 761. 
 
 3 Castle on Rating, 83 ; L. R., 7 Q. B. 
 96. 
 
 4 Stat. 34 & 35 Vict. c. 79. 
 
 5 Stats. 30 & 31 Vict. c. 102; 41 & 42 
 Vict. u. 26, ss. 5 et seq. 
 
 6 Public Health Act, 1875, ss - 7^ et seq. 
 The acts relating to the Metropolis are the 
 Common Lodging Houses Acts, 1851, 1853, 
 and the Sanitary Acts, 1866 — 1874. 
 
 7 Wittingale v. Maitland, L. R., 3 Eq. 
 103 ; Chilton v. Corporation of London, 
 7 Ch. D. 735. 
 
Lord Chancellor law dictionary. Lord Lieutenant 501 
 
 interest which the lord has in the services of his tenant is called a 
 lordship or seignory (q. v.). 1 
 
 § 2. If before the Statute of Quia Emptores (q. v.), A. conveyed land to 
 B. to hold of himself (A.), and B. conveyed it to C. to hold of himself 
 (B.), A. would be called lord paramount, B. mesne lord, or "mesne," 
 and C. tenant paravail (see Mesne). The Statute of Quia Emptores 
 having abolished subinfeudation, no person can now create a lordship 
 (see Subinfeudation). The only lords of any importance at the preseut 
 day are lords of manors (see Manor). But the crown is sovereign lord, 
 or lord paramount, of all the land in England, 2 and in that character 
 sometimes becomes entitled to land by escheat {q. v.). 
 
 See House 0/ Lords. 
 
 LORD CHANCELLOR. See Chancellor, § 2. 
 
 LORD CHIEF JUSTICE. See Justice. 
 
 LORD HIGH STEWARD.— § 1. When a person is impeached, 
 or when a peer is tried on indictment for treason or felony before the 
 House of Lords, one of the lords is appointed Lord High Steward, and 
 acts as speaker pro tempore (see Impeachment ; Certiorari, § 3). § 2. If 
 a peer is indicted for treason or felony while the House of Lords is not 
 sitting, the indictment is removed into the Court of the Lord High 
 Steward, which is a Court instituted by commission from the crown, 
 summoning all the peers of parliament ; in it the Lord High Steward is 
 sole judge on points of law, and the peers summoned are triers and 
 judges of fact only. 3 
 
 LORD KEEPER, or Keeper of the Great Seal, was originally 
 another name for the Lord Chancellor. (See Chancellor, § 2.) After 
 Henry II. 's reign they were sometimes divided, but now there cannot be 
 a lord chancellor and lord keeper at the same time, for by the stat. 
 5 Eliz. c. 1 8 they are declared to be the same office. 4 
 
 LORD LIEUTENANT.— The office of " lieutenants of counties " 
 was created about the reign of Henry VIII. , or one of his children (some 
 say in that of Edward VI.), for the purpose of having a representative of 
 the crown in each county, to keep it in military order. For this purpose 
 they have the power of raising militia. Formerly, they had the command 
 of the militia and other auxiliary forces, and appointed their officers, 5 but 
 by the stat. 34 & 35 Vict. c. 86, the jurisdiction of lieutenants of counties 
 in these respects has been transferred to the crown. They have, how- 
 
 1 Williams on Seisin, 9. by stat. 9 Geo. 4, c. 31 ; Steph. Comm. iv. 
 
 2 Co. Litt. 1 a, 65 a. ' 325. 
 
 3 Horn. Cox, Inst. 473; Steph. Comm. * Comyns' Dig. Chancery, B. 1. 
 
 302. This Court is not to be confounded 5 Steph. Comm. ii. 585 ; Broom & 
 
 with that of the Lord Steward of the Hadley, Comm. i. 496. 
 King's Household, practically abolished 
 
502 Lord Mayor 's Court law dictionary. Loss 
 
 ever, the power of recommending persons for certain commissions, to 
 which recommendations the crown is bound to give effect. 
 
 LORD MAYOR'S COURT. See Mayor's Court of London. 
 
 LORDS OF APPEAL are those members of the House of Lords 
 of whom at least three must be present for the hearing and determination of 
 appeals. They are the Lord Chancellor, the Lords of Appeal in Ordinary 
 {infra, § 2), and such peers of parliament as hold or have held high judi- 
 cial offices— such as ex-chancellors and judges of the superior Courts in 
 In ordinary. Great Britain and Ireland. 1 § 2. Lords of Appeal in Ordinary are persons 
 appointed by the Queen for the purpose of aiding the House of Lords in 
 the hearing and determination of appeals ; they must have held some high 
 judicial office for two years, or have been practising barristers or advocates 
 for at least fifteen years. They are barons for life, and are entitled to sit 
 and vote in the House of Lords during their tenure of office. 2 
 
 LORDS JUSTICES OF APPEAL are at present of three classes, 
 namely, (1) the Lords Justices of Appeal in Chancery, who were in office 
 when the Judicature Acts came into operation, and who by those acts were 
 made members of the new Court of Appeal {g.v.) ; (2) the Lords Justices 
 appointed under the Judicature Act, 1875 ; and (3) those appointed under 
 the Appellate Jurisdiction Act, 1876. § 2. The two Lords Justices of the 
 Court of Appeal in Chancery were appointed under the stat. 14 & 1 5 Vict, 
 c. 83, to assist the Lord Chancellor in disposing of appeals from the 
 Master of the Rolls, the Vice-Chancellors, and the Bankruptcy Court, 
 and in disposing of business in lunacy. 3 (See Court of Appeal in Chancery.) 
 § 3. The Lords Justices of Appeal under the Judicature Act are the 
 ordinary members of the Court of Appeal : three of them (including the 
 successors to the L.JJ. of A. in Chancery) are appointed under the 
 Judicature Act, 1875, s. 4, and three under the Appellate Jurisdiction 
 Act, 1876, s. 15 ; the latter L.JJ. differ from the three former in being 
 under the obligation to go circuit, and to act on commissions of assize. 
 (See Court of Appeal ; House of Lords.) 
 
 Total. 
 
 Partial. 
 
 Actual total 
 loss. 
 
 LOSS. — § 1. In the law of marine insurance, "the losses which arise 
 from the various perils insured against may be either total or partial; they 
 are total when the subject-matter of the insurance is wholly destroyed, or 
 injured to such an extent as to justify the owner in abandoning to the 
 insurer, and partial when the thing insured is only partially damaged, or 
 where, in the case of an insurance on goods, the owner of them is called 
 upon to contribute to a general average. § 2. Total losses may again be 
 divided into actual and constructive total losses. Actual total losses arise 
 where the ship or cargo is totally destroyed or annihilated, or where they 
 are placed by any of the perils insured against in such a position that it is 
 
 1 Appellate Jurisdiction Act, 1876, ss. 
 S> 25- 
 
 2 Ibid. s. 6. 
 
 3 Haynes's Equity, 32. 
 
Lost Grant law dictionary. Lost or not Lost 503 
 
 wholly out of the power of the assured to procure their arrival. Thus, 
 where by means of a peril insured against, a ship founders at sea, or is 
 actually destroyed, or even where she is so much injured that she ceases 
 to retain the character of a ship, and becomes a wreck or a mere con- 
 geries of planks, the loss is total and actual, although the form of the ship 
 may still remain ; and in these cases the assured may recover, for a total 
 loss without abandonment." l §3. " Losses are constructively total when Constructive 
 
 tot r il losses 
 
 the subject-matter of the insurance, although still in existence, is either 
 actually lost to the owners or beneficially lost to them, and notice of 
 abandonment has been given to the underwriters. Thus, where the ship, 
 although existing as a ship, is captured or laid under an embargo, and has 
 not been recaptured or restored before action brought, so that she is lost 
 to the owners ; or where she is so damaged by a peril insured against as 
 to be innavigable, and is so situated that either she cannot be repaired 
 at the place in which she is, or cannot be repaired without incurring an 
 expense greater than her value when repaired, the assured may abandon 
 and treat the loss as total." 2 
 
 See Abandonment ; Insurance ; Policy. 
 
 As to loss of instruments, see Accident. 
 
 LOST GRANT. — Before the Prescription Act (q. v.), a claim to an 
 easement could in theory only be supported either where it had been en- 
 joyed from time immemorial, or where the claimant could prove that it 
 had been created by a deed of grant. But after the statute 21 Jac. 1, c. 16, 
 had limited the time for bringing possessory actions for land to twenty 
 years, the Courts adopted the same period as sufficient to give rise to an 
 easement, on the presumption that it had been created by a deed of grant 
 which had been lost, "and juries were directed so to find in cases in which 
 no one had the faintest belief that any grant had ever existed, and where 
 the presumption was known to be a mere fiction." 3 This presumption of 
 a lost grant has been deprived of its importance in the case of most ease- 
 ments by the Prescription Act, but it is not altogether obsolete. (See 
 Support). 
 
 LOST OR NOT LOST are words inserted in a maritime policy of 
 insurance to prevent the operation of the rule that if a ship is lost at the 
 time of insurance, the policy is void, although the assured did not know 
 of the loss. The words operate to make the underwriter liable, even 
 where the subject-matter of insurance had not vested in the assured at 
 the time of the occurrence of the loss; for instance, if a merchant, having 
 bought goods at sea, were to insure them " lost or not lost," the policy 
 would entitle him to recover from the underwriter in respect of a loss sus- 
 tained during the voyage, but before the purchase. 4 (See Insurance; Policy; 
 Loss.) 
 
 1 Maude & Pollock, Merch. Shipp. 402. 3 Angus v. Dalton, 3 Q. B. D. at p. 105. 
 
 2 Ibid. 404 ; Smiths Merc. Law, 382 4 Smith's Merc. Law, 354. 
 et seq. ; Aitchison v. Lohre, 4 App. Ca. 755 . 
 
504 
 
 Lot 
 
 LAW DICTIONARY. 
 
 Ltinacy 
 
 LOT— LOT MEAD.— § i. A lot is the same thing as a dole (q. v.). 
 
 § 2. A lot mead or lot meadow is an open field divided into lots or doles. 1 
 (See Dole; Open Fields.) 
 
 These lot meads seem to have originated in certain manors where a 
 piece of meadow land was periodically allotted to the freehold tenants of 
 the arable land in the manor. 2 
 
 See Inheritance, § 5 ; Severalty. 
 
 LUCID INTERVAL is an interval of sanity separating two attacks 
 of insanity. Perfect sanity is not required to constitute a lucid interval in 
 the sense in which the phrase is now used ; it is sufficient that the lunatic 
 knows what he is doing, and that his act is not affected by a delusion 
 (q. v.). An act done during a lucid interval is as valid, and involves the 
 same liabilities and responsibilities, as the act of a sane man. 3 (See 
 Lunatic.) 
 
 Proceedings 
 in lunacy by 
 inquisition. 
 
 LUNACY means either 
 
 I. The condition or status of a lunatic {q. v.), or 
 
 II. Judicial proceedings taken before the Lord Chancellor or other 
 person "intrusted by virtue of the Queen's sign manual with the care and 
 commitment of the custody of the persons and estates of persons found 
 idiot, lunatic, or of unsound mind," 4 for the purpose of making inquiry 
 into the state of mind of persons alleged to be lunatics, of taking charge 
 of them and their property if they are found to be lunatics, and for re- 
 moving the restraint on their restoration to sanity. The proceedings 
 generally consist of (1) a petition presented to the Lord Chancellor 
 alleging the insanity, and supported by affidavits of medical men and a 
 relative of the alleged lunatic, and praying for an inquiry ; (2) an order by 
 the Lord Chancellor directing the inquiry to be taken; (3) the inquiry 
 before a Master in Lunacy with or without a jury, at which witnesses are 
 examined and the alleged lunatic inspected; the "finding" or result of 
 the inquiry is stated in a document called the inquisition, which consists 
 of the verdict of the jury or (if there was no jury) of the master's certi- 
 ficate ; (4) if the person has thus been found a lunatic, a statement called 
 a state of facts and proposal, setting forth the result of the inquiry, and 
 showing who are the heir-at-law and next-of-kin of the lunatic, his 
 position in life, age, property, &c, the persons proposed as committees 
 of his person and estate, and what sum should be allowed for his main- 
 tenance, is laid before the master ; (5) evidence having been produced on 
 these points, the master makes his report, giving the result of the 
 inquiries and his recommendations as to the appointment of committees, 
 management of property, maintenance, &c. (called consequential direc- 
 tions, because they are to be carried out on the confirmation of the 
 
 1 Elton, Coram. 27. 
 
 2 Williams, R. P. 501. 
 
 3 Pope on Lunacy, 17, 18. 
 
 4 Lunacy Reg. Act, 1853, s. 2. While 
 the office existed, the Lords Justices of 
 Appeal of the Court of Chancery were also 
 
 entrusted by warrant with this " care and 
 commitment." Under the Judicature Acts, 
 any judge of the High Court or the Court 
 of Appeal may be so entrusted. Pope on 
 Lunacy, 27. 
 
Lunatic LAW DICTIONARY. Lunatic 505 
 
 report); and (6) the report is submitted to the Lord Chancellor for con- 
 firmation, with or without a petition ; in the former case the confirmation 
 is by order, in the latter by fiat ; (7) the custody of the lunatic's person 
 and estate is then granted to the committees, and provision is made for 
 his maintenance, &c. (see. Committee, § 1) ; (8) if the lunatic recovers his 
 sound mind, he may obtain his release from restraint by presenting a 
 petition for a supersedeas, and on the order being made a writ of super- 
 sedeas issues, by which the fiat, inquisition and other proceedings are 
 superseded, determined, annulled and discharged; or the inquisition may 
 be suspended for a time to test the effect of the removal of restraint. 
 
 § 2. Where the property of a lunatic does not exceed 1,000/. in value, Proceedings 
 or 50/. a year, the Lord Chancellor has by the Lunacy Regulation Act, under Act of 
 1862, s. 12, power to make such order as he may consider expedient 
 for the purpose of rendering the lunatic's property available for his 
 maintenance, or for carrying on his business, without directing an inquiry 
 as in ordinary cases ; thus the income of the property may be ordered to 
 be paid to some person to be applied for the maintenance of the lunatic. 1 
 
 § 3. The High Court also has jurisdiction to authorize the income of Chancery pro- 
 the property of a person of unsound mind to be applied for his mainte- ceedings. 
 nance ; this is done in an action for the administration of the property, 
 instituted in the Chancery Division. 2 (See Maintenance, .) 
 
 As to lunatic trustees, see Trustee Act. 
 
 LUNATIC is used in law in three senses : to denote (1) a person who 
 has attacks of intermittent insanity separated by lucid intervals, 3 or suffers 
 from delusions (q. v.) ; (2) a person who from unsoundness of mind 
 is incapable of managing himself or his affairs, and has been found or 
 adjudged to be so by inquisition ; and (3) a person detained in an 
 asylum on account of unsoundness of mind. 
 
 § 2. The word is used in the first sense when it is a question whether 
 a person was insane or not when he entered into a contract, made his 
 will, .or did some other civil act; the general rule being that a contract or 
 conveyance, &c. by a lunatic is voidable unless it was entered into by the 
 other party without notice of his state of mind, bona fide, and for valuable 
 consideration, and has been executed so that there cannot be a restitutio 
 in integrum; but the principle is not satisfactorily settled. 4 (See Delusion.) 
 A petition for divorce may be presented by the committee of a lunatic. 5 
 The term " lunacy" is not now often used with reference to criminal 
 responsibility, having been superseded by the term " insanity" 6 (q. v.). 
 
 1 Pope on Lunacy, 212; Elmer on v. Goodfellow, L. R., 5 Q. B.549; Smee 
 Lunacy. v - Smee, 5 P. D. 84. Lunacy revokes an 
 
 2 In re Bligh, 12 Ch. D. 364; In re authority given by the lunatic while sane, 
 X , 15 Ch. D. 78. but he continues to be liable for Ms agent's 
 
 3 " Lunaticus qui gaudet lucidis inter- acts so far as concerns persons having no 
 ■vallis, and sometimes is of good and sound notice of his insanity. Drew v. Nunn, 4 
 memory [1. e. mind], and sometimes non Q. B. D. 661. 
 
 compos mentis." 4 Co. 124 b ; Co. Litt. 5 Baker v. Baker, 5 P. D. 142 ; 6 P. D. 
 
 247 a. I2 - 
 
 1 Pope on Lunacy, 234 ; as to the wills 6 See Pope on Lunacy, 6, 14 et seq. 
 of lunatics, see Hid. 327 et seq. and Banks 
 
506 Magistrate law dictionary. Magna Charta 
 
 § 3. In its second sense "lunatic" includes not only insane persons 
 and idiots, but also persons imbecile from age or infirmity, so that they 
 are incapable of managing themselves or their affairs. (See Lunacy?) 
 
 § 4. In its third sense the word means a " proper person to be taken 
 charge of and detained under care and treatment." l Such lunatics are 
 divided into (i) pauper lunatics and criminal lunatics, who are confined 
 and maintained at the public expense ; and (ii) other lunatics, who are 
 maintained either in private houses or in charitable institutions. Pro- 
 vision has been made by numerous acts of parliament for the licensing 
 and regulation of lunatic asylums and for the visitation of lunatics so 
 confined. 3 (See Visitor.) 
 
 M. 
 
 MAGISTRATE. — § 1. The term "magistrate'' is sometimes used in 
 a wide sense to denote a person charged with duties of government, and 
 being either supreme, namely, the sovereign, or subordinate, namely, 
 those officers who are appointed by or are subject to the sovereign. 3 In 
 practice, however, "magistrate" means a judicial officer having a summary 
 jurisdiction in matters of a criminal or quasi-criminal nature. 
 
 § 2. In this sense of the word magistrates are of two kinds, honorary 
 and stipendiary. The former class consists of justices of the peace (q. v.), 
 the latter class includes the magistrates appointed to act in certain 
 populous places (such as the metropolis) in lieu of the ordinary justices. 
 These magistrates, who are also called police magistrates, generally have 
 wider powers than ordinary justices. 4 To this class also belong the 
 recorders in boroughs, and the recorder and common Serjeant in the 
 city of London. (See those titles.) 
 
 § 3. As to the jurisdiction of magistrates generally, see Justice of the 
 Peace. As to their liability for acts committed by them, see Coram non 
 Judice; Judge, § 2. 
 
 MAGNA CHARTA is the name usually given to the charter 
 originally granted by King John, and afterwards re-enacted and con- 
 firmed by parliament (more than thirty times, according to Coke), in the 
 reigns of Henry III. and Edward I. 6 The charter now in force is the 
 
 1 Stat. 16 & 17 Vict. c. 96, schedules. Act, 1879); 11 & 12 Vict. cc. 42, 43; 17 
 
 2 For an enumeration of the statutes, & 18 Vict. c. 20; 18 & 19 Vict. c. 126; 
 &c. relating to this subject, see Pope on 21 & 22 Vict. c. 73 ; 26 & 27 Vict. u. 97 ; 
 Lunacy, 496 etse q. ; Steph. Coram, hi. 112 32 & 33 Vict. c. 34; parts of these acts 
 et seq. are repealed by the Summary Jurisdiction 
 
 3 Steph. Coram, ii. 318, 619, following Act, 1879. 
 
 Blackstone. 6 "It is called Magna Charta, not for 
 
 1 As to metropolitan police magistrates, the length or largeness of it, (for it is but 
 
 see stats. 2 & 3 Vict. c. 71 ; 10 & 11 Vict. short in respect to the charters granted of 
 
 v. 82 (repealed by Summary Jurisdiction private things to private persons now a 
 
Mainpernor law dictionary. Maintenance 507 
 
 statute 9 Henry III., with which our statute book commences. In 
 addition to provisions respecting the feudal tenures, now of no practical 
 importance, the charter contained provisions to protect the subject from 
 abuse of the royal prerogative in . the matter of arbitrary arrest and 
 imprisonment, and from amercements, purveyance and other extortions. 
 It also provided for the proper administration of justice, for the 
 uniformity of weights and measures, and the protection of foreign 
 merchants. 1 
 
 MAINPERNOR— MAINPRISE.— Mainprise literally means a taking into the 
 hand, and is used in the old books to signify the process of delivering a person to sureties 
 or pledges (mainpernors) who undertook to produce him again at a future time. The 
 term, therefore, included bail {q. v.), but it also had a wider signification, for bail only 
 applied to cases where a man was arrested or imprisoned, while a man could be main- 
 pemed who had not been arrested or imprisoned, e. g., in an appeal of felony and other 
 obsolete proceedings. 2 The term has quite fallen into disuse. 
 
 MAINTENANCE.— I. § 1. In civil law, maintenance is the supply Civil, 
 of necessaries, such as food, lodging, clothing, &c. 
 
 § 2. Where property is being administered in an action or other By Court, 
 proceeding in the Chancery Division, and the persons absolutely or 
 presumptively entitled to it are incompetent to support themselves (as 
 where they are infants or lunatics), the Court will direct a proper portion 
 of the income to be expended for their maintenance. 3 Such an order 
 may also be obtained, in the case of infants, on a summons issued in a 
 summary way, without the institution of an action. 
 
 § 3. A maintenance clause in a marriage settlement or will, by which Under settle- 
 property is given to infants on their attaining majority, or the like, is one ment- 
 which authorizes the trustees to expend the income of the property in 
 maintaining and educating the infants during their minority. Now, by 
 stat. 23 & 24 Vict. c. 145, this power is given to the trustees of all settled 
 property. 4 (See Accumulation ; Lunacy, § 3.) 
 
 II. § 4. In criminal law, maintenance "signifieth in law a taking in Criminal, 
 hand, bearing up or upholding of quarrels and sides, to the disturbance 
 or hindrance of common right . . . and it is twofold, one in the 
 countrey and another in the court." 5 An instance of maintenance in the 
 country occurs where one person assists another in his pretensions to 
 certain lands, by taking or holding the possession of them for him by 
 force or subtilty. 6 - This kind of maintenance is said to be punishable 
 only at the suit of the king. 7 § 5. Maintenance in the courts includes 
 champarty and embracery (q. v.), and is also used generally to denote 
 the offence committed by a person who, having no interest in a suit, 
 
 dayes being [elephantinoe chartce)), but it * Watson's Comp. £q. 594; Pope on 
 
 is called the great charter in respect of the Lunacy, 137, 218; Vane v. Vane, 2 Ch. 
 
 great weightinesse and weightie greatnesse D. 124. 
 
 of the matter contained in it in few words, i Elphinstone, Conv. 311 ; Watson, 585; 
 
 being the fountaine of all the fundamental! Wilkins v. Jodrett, 13 Ch. D. 564. 
 
 lawes of the realme." Co. Litt. 81 a. 6 Co. Litt. 368 b. 
 
 1 Steph. Comm. iv. 499. 6 Litt. § 701 ; Hawkins, P. C. i. 249. 
 
 2 Fourth Inst. 179. 7 Co. Litt. 368 b. 
 
508 
 
 Mala Fides 
 
 LAW DICTIONARY. 
 
 Malice 
 
 , maintains or assists either party, with money or otherwise, to prosecute 
 or defend it. 1 The punishment at common law is fine and imprisonment ; 
 it is also prohibited by several statutes. 3 (See Barretry.) 
 
 Etymology.]— Norman-French, meyntenir? to support ; from manus, a hand, and 
 tenere, to hold. 
 
 MALA FIDES ("bad faith") is the opposite of "bona fides" (?.».). 
 
 MALA IN SE— MALA PROHIBITA.— Mala in se are acts which 
 are wrong in themselves, such as murder, as opposed to mala prohibita 
 (mala quia prohibita), or those acts which are only wrong because they are 
 prohibited by law, such as smuggling. The distinction was formerly of 
 importance with reference to the exemption of ambassadors, which, 
 according to the earlier writers, only extended to mala prohibita ; but this 
 is no longer the case. 4 (See Ambassador.) 
 
 MALA PRAXIS is where a medical practitioner injures his patient 
 by neglect, want of skill, or for experiment. Ordinary cases of mala praxis 
 give rise to a right of action for damages. (See Tort.) In some cases of 
 gross misconduct the party may be indicted. 5 (See also Miscarriage.) 
 
 MALFEASANCE is the doing of an unlawful act, e.g. a trespass. 6 
 Norman-French, mau or mal, wrongly, and fere, to do. (See Misfeasance; 
 Nonfeasance; Tort.) 
 
 Maliceinlaw. MALICE— MALICIOUS.— § i. "Malice, in the legal acceptation 
 of the word, is not confined to personal spite against individuals, but con- 
 sists in a conscious violation of the law to the prejudice of another." 7 
 " Malice, in common acceptation, means ill-will against a person ; but in 
 its legal sense, it means a wrongful act done intentionally without just 
 cause or excuse. If I give a perfect stranger a blow likely to produce 
 death, I do it of malice, because I do it intentionally, and without just 
 cause or excuse. . . . If I am arraigned of felony, and wilfully stand 
 mute, I am said to do it of malice, because it is intentional, and without 
 
 Malice in fact, just cause or excuse." 8 § 2. Personal spite or ill-will is sometimes called 
 
 actual malice, express malice, or malice in fact, to distinguish it from 
 
 malice in law. 9 As to the effect of actual malice in questions of libel and 
 
 slander, see Privilege. 
 
 Malice afore- 8 3. In the definition of murder, malice aforethought exists where the 
 thought. 
 
 1 Hawkins, 249 ; Steph. Crim. Dig. 86; 
 Russell on Crimes, i. 354. 
 
 3 Hawkins, 255 et sea.; stat. 32 Hen. 8, 
 c. 9. 
 
 3 Britton, 37 b. 
 
 4 Steph. Comm. ii. 486, 
 
 5 Ibid. hi. 376. 
 
 K Britton, 72 a ; Cro. Jac. 266 ; Steph. 
 Comm. iii. 363. 
 
 7 Per Lord Campbell in Ferguson v. 
 Earl of Kinnoul, 9 CI. & F. 321, cited 
 
 Shortt on Copyright and Libel, 389. 
 
 8 Per Bayley, J., in Bromage v. Prosser, 
 4 B. & C. 255, cited ibid. See Steph. 
 Crim. Dig. 144. 
 
 See Toogood v. Spyring, I Cr. M. & 
 R. 193 ; Wright v. TVoodgate, 2 Cr. M. & 
 R. 577, cited Shortt, 428; per Brett, L. J., 
 in Clark v.Molyneux, 3 Q. B. D. at p. 247; 
 Capital and Counties Bank v. Henty, 5 C. 
 P. B. 514. 
 
Malicious Arrest LAW DICTIONARY. Manager 509 
 
 person doing the act which causes death has an intention to cause death 
 or grievous bodily harm to any person (whether the person is actually 
 killed or not), or to commit any felony whatever, or has the knowledge 
 that the act will probably cause the death of or grievous bodily harm to 
 some person, although he does not desire it,- or even wishes that it may 
 not be caused. 1 
 
 See Homicide; Manslaughter ; Murder. 
 
 Etymology.] — Latin, malitia, fraud, dishonesty, evil intention ; from malus, bad. 2 
 
 MALICIOUS ARREST is where a person maliciously and without 
 reasonable cause procures another to be arrested. He thereby makes 
 himself liable to an action for damages. The term is practically confined 
 to cases of arrest in civil cases (i. e., for debt, &c.) which have now 
 become rare. 3 (See Debtors Act ; Malice; Tort.) 
 
 MALICIOUS INJURIES TO THE PERSON.— Everyone who 
 unlawfully and maliciously wounds or causes any grievous bodily harm to 
 any person, or shoots or attempts to shoot him with the intent in any 
 such case to maim, disfigure, disable or do some grievous bodily harm to 
 him, is guilty of felony, and liable to penal servitude for life. 4 
 
 MALICIOUS INJURIES TO PROPERTY— by which is meant 
 those injuries to property which proceed rather from malicious or wanton 
 motives than from any proposed gain to the offender — are in many cases 
 criminal acts. They include arson (q. v.), causing injuries to buildings, 
 &c. by gunpowder, destroying trees, cattle, &c, exhibiting false signals, 
 removing buoys, &c, causing injuries to machinery, goods in process of 
 manufacture, canals, telegraphs, ships, &c. Actual malice against the 
 owner of the property is not essential. 5 
 
 MALICIOUS PROSECUTION is where a person maliciously 
 institutes criminal proceedings against another without probable cause, 
 that is, believing that he is innocent. For the damage thereby caused to 
 the accused he can sustain an action against the wrongdoer. 6 (See 
 Malice; Tort.) 
 
 MANAGER, — § 1 . In Chancery practice, when a receiver (q. v.) is Chancery 
 required for the purpose not only of receiving rents and profits, or of P ractice - 
 getting in outstanding property, but of carrying on or superintending a 
 trade or business, he is usually denominated a " manager," or a " receiver 
 and manager." The most usual cases in which managers are appointed 
 are those in which partnership trades are to be carried on, or which 
 
 1 Steph. Crim. Dig. 144; Russell on * Stat. 24&2S Vict. c. 100, ss. \%etseq.; 
 
 Crimes, i. 641. " Steph. Crim. Dig. 156. 
 
 3 Dirksen, Man. Lat. 6 Stat. 24 & 25 Vict. c. 97; Russell on 
 
 3 TJnderhill on Torts, 738; Broom, C. C. Crimes, ii. 892. 
 L. 738. 6 Broom. C. C. L. 741 ; TJnderhill on 
 
 Torts, 99. 
 
5io 
 
 LAW DICTIONARY. 
 
 Mandamus 
 
 Bankruptcy. 
 
 Parliamen- 
 tary. 
 
 Managing Owner 
 
 relate to mines or collieries. 1 (See Administration, § i.) §2. If the trade 
 or property is abroad, or in one of the colonies, and the manager must 
 necessarily be resident there, it is usual to add to the order directing the 
 appointment of a manager an order for the appointment of one or more 
 consignee or consignees resident in this country, to whom the produce of 
 the .property in question may be remitted, and by whom it may be dis- 
 posed of. s 
 
 As to the appointment of a manager by way of execution of a judgment, 
 see. Execution, §7. 
 
 § 3. In bankruptcy, a manager of the business of the debtor may be 
 appointed by the Court at any time after the presentation of the petition 
 for adjudication or arrangement by liquidation or composition. A 
 manager may also be appointed by the creditors themselves in an 
 arrangement by liquidation or composition. 3 
 
 § 4. In parliamentary practice, where the two houses of parliament 
 have a conference (e. g., to settle amendments to a bill as to which there 
 is a difference between the two houses), each house appoints managers 
 to represent it, and the conference is held between the managers. 4 As 
 to managers on an impeachment see that title. 
 
 MANAGING OWNER OF SHIP.— § 1. The managing owner 
 of a ship is one of several co-owners, to whom the others, or those of 
 them who join in the adventure, have delegated the management of the 
 ship. He has authority to do all things usual and necessary in the 
 management of the ship and the delivery of the cargo, to enable her to 
 prosecute her voyage and earn freight, with the right to appoint an agent 
 for the purpose. It seems that it is a question to be decided in each 
 case, whether a managing owner has been appointed by all his co-owners 
 or only by some of them, and consequently whether he has power to bind 
 all of them or only some of them : " he binds those whose agent he is ; 
 he binds nobody besides." 5 
 Registration. § 2. Under the Merchant Shipping Act, 1876, s. 36, the name and 
 address of the managing owner for the time being of every registered 
 British ship must be registered, or if there is no managing owner, the 
 ship's husband or, other person to whom the management of the ship is 
 entrusted, must be registered. 
 
 MANDAMUS is a writ issued in certain cases to compel the per- 
 formance of a duty. It is directed to the person who is subject to the 
 duty, and not to a sheriff or similar officer. Writs of mandamus are of 
 two kinds. 
 
 I. § 2. The prerogative writ of mandamus issues in the Queen's name 
 from the High Court of Justice on application to the Queen's Bench 
 Division " in some cases where the injured party [the prosecutor] has 
 
 Prerogative 
 writ of 
 mandamus. 
 
 1 Daniell, Ch. Pr. 161 7. 
 
 2 Ibid. 
 
 3 Bankr. Act, 1869, s. 13 ; Bankr. Rules 
 (1870), 260; Robson's Bankr. 335, 653. 
 
 4 May's Pari. Pr. 454. 
 
 5 Per Bowen, J., in Frazer v. Cuthhert- 
 son, 6 Q. B. D. 93 ; see Coulthurst v. 
 Sweet, L. R., I C. P. 649; Merchant Shipp. 
 Act, 1854, s. 18; M. S. Act, 1873, s. 22. 
 
Mandamus LAW dictionary. Mandamus 511 
 
 also another more tedious method of redress, as in the case of admission 
 or restitution to an office ; but it issues in all cases where the party hath 
 a right to have anything done, and hath no other specific means of 
 compelling its performance," 1 especially where the obligation arises out 
 of the official status of the respondent and is hence of a public or quasi- 
 public character. Thus the writ is used to compel the election of 
 corporate officers, to compel public officers to perform duties imposed 
 upon them by common law or by statute [e. g., to make a rate), to compel 
 inferior Courts to proceed in matters within their jurisdiction 2 (cf. Proce- 
 dendo ; Prohibition), to compel the lord of a manor to admit a person as 
 tenant of copyholds (see Admittance) ; it is also applicable in certain 
 cases where a duty is imposed by act of parliament for the benefit of an 
 individual : thus it lies to compel a railway company to comply with the 
 provisions of its act for the benefit of private persons {e.g., to build a 
 bridge, open a road, &c.) ; 3 but in many such cases it has been superseded 
 by the statutory writ of mandamus [infra, § 4). The writ recites the facts 
 giving rise to the obligation, and commands the defendant to do the act 
 or show cause why he does not ; he may excuse himself by showing that 
 the prosecutor on his own showing is not entitled to the writ, or by 
 traversing some material fact alleged in the writ, or by alleging fresh 
 matter as an answer to the prosecutor's case ; if the return is insufficient 
 or false the prosecutor may move to quash it, or may traverse, plead or 
 demur to it, or may bring an action to recover damages for a false return 
 (see Return). In any case if the prosecutor is successful the Court Peremptory 
 
 , , , . , ,, mandamus. 
 
 awards a peremptory mandamus, to which no excuse or other return 
 except performance of the act required is allowed. 4 By the Common Law 
 Procedure Act, 1854, s. 77, the provisions of that act and of the Common 
 Law Procedure Act, 1852, so far as they are applicable, are extended to 
 the pleadings and proceedings upon the prerogative writ of mandamus. 
 
 § 3. When witnesses whose evidence is required in a cause pending in Mandamus for 
 the High Court in this country are resident in India or other parts of the tio e n e of wl " la ~ 
 Queen's dominions abroad, a writ in the nature of a mandamus may be nesses. 
 issued requiring the judges of the principal Court in the colony to examine 
 the witnesses and send over the depositions to be used at the trial. 6 (See 
 Commission, § 7.) 
 
 § 4. By the C. L. P. Act, 1854 (ss. 68 — 74), the plaintiff in any action Action of 
 in any of the superior Courts (except replevin and ejectment) might man amus- 
 claim a writ of mandamus, commanding the defendant to fulfil any duty 
 in the fulfilment of which the plaintiff was personally interested. The 
 construction put upon this section limited it to cases where the duty is of 
 a public or quasi-public nature [e.g., to compel a railway company to carry 
 out a compulsory purchase), and not merely personal, such as that arising 
 
 1 Bl. Comm. iii. no; Steph. Comm. iii. i Ibid. 41 ; 3 Bl. Ill ; Tapping, 7, 400 
 
 630. - et seq. An appeal may be brought from 
 
 'Second Rep. C. L. P. Comm. 40; the granting of a peremptory mandamus; 
 
 Phillimore, Eccl. Law, 1453. See an in- Reg. v. All Saints, Wigan, 1 App. Ca. 
 
 stance of a mandamus to the Postmaster- 611. 
 
 General and the return thereto, 1 Q. B. D. 5 Chitty's Pr. 345 ; Smith's Action, 95. 
 
 6cg. <• Fotherby v. Met. Rati. Co., L. R., 2 
 
 'Second Rep., C. L. P. Comm. 40. C. P. 188. 
 
512 Mandate LAW dictionary. Manor 
 
 out of a contract. 1 If the plaintiff recovered judgment the Court might, 
 besides issuing execution in the ordinary way for the costs and damages, 
 issue a peremptory writ of mandamus directed to the defendant and 
 commanding him forthwith to perform the duty to be enforced. 2 The 
 Judicature Acts contemplate actions of mandamus, 3 but contain no pro- 
 visions on the subject; the provisions of the C. L. P. Act, 1854, therefore 
 appear to remain in force, subject to the interpretation above mentioned. 
 Interlocutory § 5- By the Judicature Act, 1873, an interlocutory mandamus may be 
 mandamus. granted in any case in which it shall appear to the Court to be just or 
 convenient. 4 (See Injunction^) 
 
 § 6. There are also statutory writs of mandamus under stats. 9 Ann. 
 c. zo, 5 11 Geo. 1, c. 4, and 7 Will. 4 & 1 Vict. c. 78, in many cases 
 relating to corporations. 6 
 
 Etymology and History.] — The writ of mandamus is so called from the words 
 "voids mandamus, "we command you," with which, when the writ was in Latin, the 
 mandatory part commenced. 7 Originally " mandamus" was the generic name for a class 
 of writs varying in their form and object, 8 but totally different from the modem pre- 
 rogative writ, which, for the sake of distinction, was called a special mandamus. 9 In 
 the 14th and the beginning of the 15th century the writ was in form a mere letter-missive 
 from the sovereign ; during the latter half of the 15th century the writ was directed to 
 issue on a petition to parliament for redress ; it thus became in form a parliamentary 
 writ, and, being then chiefly used to enforce restitution to public offices, was commonly 
 known as the "writ of restitution;" finally it became an original writ, issuable by the 
 Court of King's Bench in all cases where there was a legal right, but no other specific 
 remedy. 10 
 
 MANDATE is a direction or request. Thus a cheque is a mandate 
 by the drawer to his banker to pay the amount to the transferee or holder 
 of the cheque. 11 
 
 MANDATORY. See Injunction, § z. The mandatory part of a writ 
 is that part by which the person to whom it is directed is commanded to 
 do the act required of him. 
 
 MANDATUM. See Bailment, § 7. 
 
 MANOR. — § 1. Properly speaking a manor is a district of land of 
 which the freehold is vested in a person called the lord of the manor, of 
 whom two or more persons, called freeholders of the manor, hold other 
 land in respect of which they owe him certain free services, rents or other 
 duties. 12 Hence every manor must be at least as old as the Statute of 
 
 1 Benson v. Paul, 6 E. & B. 273 ; 25 438, and 11 Co., 93 a (Bagg 's Case). 
 
 L. J., Q. B. 274. 8 For examples see Termes de la Ley ; 
 
 2 Day, C. L. P. Acts, 319 etseq. ; Repub- Tapping, I, n. (a). 
 
 lie of Costa Rica v. Strousberg, II Ch. D. 9 R. v. Gower, 3 Salk. 230. 
 
 323- 10 Tapping, 3. 
 
 3 Jud. Act, 1875, App. A., Part II., ll Smith v. Union Bank, 1 Q. B. D. 
 sect. iv. p. 33. 
 
 4 Sect. 25, \ 8 ; Rules of Court, lii. 4 ; la Strictly speaking, the land vested in 
 In re Paris Skating Rink Co., 6 Ch. D. the freeholders does not form parcel of the 
 731. manor; Williams on Seisin, 30. On the 
 
 5 C. 25 in the Revised Statutes. contrary, it is often said to be held of 
 
 6 Bl. Comra. iii. 264; Steph. Comm. the manor, .which is here personified so 
 iii. 631. as to represent the lord. See Ancient 
 
 7 See the forms given in Tapping, 437, Demesne. 
 
Manor LAW DICTIONARY. Manor 513 
 
 Quia Emptores (q. v.) ; indeed, immemorial existence is essential to a 
 manor. 1 The land which is vested in the lord is called the demesnes (q.v.), 
 and comprises (1) the land of which the lord is seised, and which may 
 be wholly in his own occupation or in that of his lessees for years, but in 
 most manors is to a great extent in the occupation of the copyhold and 
 customary tenants of the manor (though copyholders are not essential to 
 a manor); 2 and (2) the waste lands of the manor, usually subject to the 
 tenants' customary rights of common. (See Common.) A Court Baron for 
 the freeholders, and a Customary Court for the copyholders (if any), are 
 necessary incidents to every manor, and the principal manor in a parish 
 usually has an advowson appendant to the demesnes. 3 There are also 
 in general either annexed or appurtenant to the manor a variety of fran- 
 chises (q. v.) exercisable by the lord, such as the right to have a Court 
 Leet, the right to waifs and strays, treasure trove, wreck, the liberties of 
 holding fairs and markets, of taking tolls and the like. Accordingly, a 
 manor proper is shortly defined as consisting of demesne lands, jurisdic- 
 tion in a Court Baron, and services of free tenants in fee, who are liable 
 to escheat (q. v.) and owe attendance at the Court ; or more shortly still 
 as consisting of demesnes and services. (See Demesne, § 4 ; Service.) 
 
 § 2. If the number of free tenants is reduced below two, the Court Baron Manor by 
 cannot be held, and the manor ceases to exist, but may survive as a manor re P utatlon - 
 by reputation for the purpose of making a title to franchises or for holding 
 copyholders' Courts. § 3. If all the demesnes are alienated, the manor is Extinguish- 
 extinguished, and becomes merely a" lordship in gross ;" while a tempo- j^io^o/" 3 ' 
 rary severance of all the demesnes, as by a lease for years, causes a manor, 
 suspension of the manor. 4 
 
 § 4. If a copyhold tenement has by immemorial custom been treated Customary 
 by the tenant as if it were itself a manor, e.g., by holding Courts, granting mallor - 
 part of it to be held of himself as copyhold, &c, this forms a customary 
 or copyhold manor, and the tenant is called a customary lord, although, 
 as far as regards the principal manor, he is himself merely a copyholder of 
 that manor, and pays fines, &c. like the other tenants. 5 
 
 § 5. " Manor" may mean the district actually or formerly comprised in 
 a manor in the strict sense, although the land may have been separated 
 from it by enfranchisement. 6 
 
 Etymology and History.] — § 6. Manor is derived from the Norman-French, 
 manoir, maners (Latin, manerium, from manere, to remain or dwell), a dwelling or 
 habitation, originally applied to the mansion of the lord. 7 It is now generally supposed 
 that manors were not a creation of the Norman conquest, but an adaptation to the 
 Norman rules of tenure of the institutions known as village communities which existed 
 among the Saxons. 8 
 
 1 Co. Copyh. § 31. " Elton, 15, citing Delacherois v. De- 
 
 2 See an instance of a manor without lacherois, 11 H. L. C. 62. 
 copyholders in Warrick v. Queen's College, 7 Dupin et Lab. gloss, s. v. ; 2 Bl. 
 L. R., 6 Ch. 716. Comm. go, n. (13) ; Perkins, § 670. 
 
 3 Elton, Copy. 14. 8 Williams, R. P., App. C. ; Williams 
 
 4 Ibid. 11; Burton, Comp. § 1026; Cruise, on Seisin, 13; Maine's Early Inst. 6; 
 Dig. Copyhold, 2; Davids. Conv. i. 89; Co. Digby, Hist. R. P. 11, 34, and the works 
 Litt. 5 a. there referred to, especially Stubbs. 
 
 5 Co.Litt. 58b; Neville's Case, 11 Co. 17. 
 
 L L. 
 
5H Manslaughter law dictionary. Market 
 
 MANSLAUGHTER is the crime of unlawful homicide, without 
 malice aforethought. The most frequent instances occur (a) where 
 death is caused accidentally by an unlawful act, as where A. strikes at B. 
 with a small stick, not intending either to kill him or to do him grievous 
 bodily harm, and the blow kills him; (b) where death is caused by 
 culpable negligence, as where A., whose duty it is to put a stage at the 
 mouth of a colliery shaft, omits to do so from mere negligence, in 
 consequence of which B. is killed ; (c) where death is caused by an act 
 done in the heat of passion, caused by provocation, as in the case of an 
 aggravated assault, or a fight, or unlawful imprisonment. 
 
 Manslaughter is felony, punishable by penal servitude for life, or 
 a fine. 1 
 
 MANUMISSION was the act of freeing or enfranchising a villein. 2 The term is 
 taken from the Roman law. 3 
 
 MARCHET was a fine which some tenants had to pay to their lord for liberty to 
 give away their daughters in marriage. According to the old writers, no free man could 
 be liable to pay such a fine, but only villeins, 4 and therefore it could not be claimed by 
 custom against all the tenants of a manor. 5 But in later times a free man could take 
 lands to hold by the service of marchet, if he liked to do so. 6 The tenure by marchet 
 seems to have been long obsolete. 
 
 Etymology.] — Norman-French, marche? marchette, 6 from Latin, mercatus, a buying 
 and selling. 
 
 MARINE INSURANCE. See Insurance, § 3. 
 
 MARITAL RIGHTS are the rights of a husband. The expression 
 is chiefly used to denote the right of a husband to property which his 
 wife was entitled to during the treaty of marriage. If, after the engage- 
 ment to marry, she makes a voluntary conveyance of any part of that pro- 
 perty without notice to the intended husband, it is considered a fraud on 
 his marital rights, and therefore liable to be set aside, although he may 
 not have known that she was entitled to the property. 9 (See Jus Mdriti.) 
 
 MARITIME LAW. See Admiralty; Affreightment; Bill of Lading; 
 Charter-party ; Insurance, § 3; Lien, § 6; Merchant Shipping; Underwriter. 
 
 MARK. See Marksman; Merchandise Marks Act ; Trade-Mark. 
 
 MARKET. — The right to hold a market, including the right to 
 charge tolls for its use by persons selling goods therein, and the right to 
 prevent others from setting up a new market so near as to diminish the 
 custom of the old one, is a franchise 10 (q. v.). 
 
 1 Stephen's Crim. Dig. 144 et seq. ; it "redemption of blood, "or "redemption 
 
 Russell on Crimes, i. 810 et seq.; stat. 24 of flesh and blood," 78 a; see Spelman, 
 
 & 25 Vict. c. 100. s. v. Grimm, D. R. A. 383. 
 
 ' 2 Litt. § 204 et seq. » Loysel, Inst. Cout. gloss. 
 
 3 Just. Inst. i. 5. » Snell's Eq. 319; Williams, Pers. P. 
 
 * Bracton, 208 b, 26. a. 446. 
 
 6 Litt. § 209. 10 Steph. Comm. i. 662 et seq.; see 
 
 6 Ibid. § 194. Mayor of Penryn v. Best, 3 Exch. D. 292 ; 
 
 7 Britton, 97 b. This author also calls Markets and Fairs Clauses Act, 1847. 
 
Market Overt law dictionary. Marriage 5 '5 
 
 MARKET OVERT means " open market." Market overt in ordinary 
 
 market towns is only held on the special days provided for particular 
 
 towns, by charter or prescription, but in the city of London every day, 
 
 except Sunday, is market day. The market place, or spot of ground set 
 
 apart by custom for the sale of particular goods, is also in ordinary towns 
 
 the only market overt, but in the city of London every shop in which 
 
 goods are exposed publicly for sale is market overt, though only for such 
 
 things as the owner professes to trade in. 1 
 
 § 2. The doctrine of market overt is that all sales of goods made Sale in market 
 
 overt 
 therein are not only binding on the parties, but also on all other persons : 
 
 so that if stolen goods are sold in market overt, the purchaser, if acting 
 in good faith, acquires a valid title to them against the true owner, unless 
 the latter has prosecuted the thief to conviction, in which case the goods 
 re-vest in the true owner, and the buyer is left to obtain compensation out 
 of any money which may have been taken from the thief on his apprehen- 
 sion. 2 
 
 § 3. The doctrine of market overt does not apply to goods belonging 
 to the crown, and in the case of horses it is subject to statutory restric- 
 tions. 3 (See Horses.) 
 
 MARKSMAN. — Where a person who cannot write is desirous of 
 subscribing his name to a document, another person writes it for him, and 
 he identifies it as his signature by inscribing over it, or near it, a mark, 
 usually a cross. He is hence called a marksman. It seems that if there 
 is any peculiarity about the mark, evidence ex visu scriptionis is admissible 
 to prove it as the handwriting of the marksman, but not otherwise. 4 (See 
 Handwriting. ) 
 
 MARQUE. See Letters of Marque. 
 
 MARRIAGE. — I. § 1. Marriage is the voluntary union for life of 
 one man and one woman to the exclusion of all others, for the purpose of 
 living together and procreating children, entered into in accordance with 
 the rules as to the consanguinity (q. v.) or affinity (q. v.) of the parties, 
 and their capacity to enter into and perform the duties of matrimony, pre- 
 vailing in the place of domicile of the parties, and in accordance with the 
 rites or formalities required either by the law of England or the place 
 where the marriage takes place: 5 as to which see Marriage Acts. A 
 marriage must not contravene the fundamental principles of Christianity, 
 and hence a polygamous marriage, although valid according to the lex 
 loci, is no marriage according to English law. 6 
 
 1 Steph. Comm. ii. 73. That part of 3 Steph. 73 et seq. 
 London not within the city does not seem * Best on Evidence, 329. 
 
 to have the privilege of market overt : 5 Britton, 246 b ; Macqueen's Husband 
 
 Williams, P. P..461. and Wife, 1 ; Browne on Divorce, 53 ; 
 
 2 £tat. 30 & 31 Vict. c. 35, s. 9. As to Stephen's Comm. ii. 238 ; Phill. Eccl. 
 negotiable instruments and other valuable Law, 705 ; Hyde v. Hyde, L. R., I P. & 
 securities, see stat. 24 & 25 Vict. c. 96, D. 130. 
 
 s. 100 ; Williams, P. P. 462. 6 Browne, 53. 
 
 L L 2 
 
5" 
 
 Marriage 
 
 LAW DICTIONARY. 
 
 Marriage 
 
 Effect on pro- 
 perty. 
 
 Husband's' 
 liability for 
 debts. 
 
 Marriage of 
 ward by 
 tenure. 
 
 § 2. It is sometimes said that marriage is a contract, but this is incor- 
 rect ; the agreement of the parties is essential to a valid marriage (see 
 Agreement, § i) ; but when it has been solemnized marriage is a personal 
 relation of a very special kind, 1 somewhat resembling a natural relation- 
 ship. 
 
 § 3. Marriage affects the property as well as the person. 2 For many 
 purposes the husband and wife are one person in law, and hence the 
 husband cannot at common law give or grant property to his wife inter 
 vivos, 3 though he can under the Statute of Uses ; 4 and a grant of land to 
 the husband and wife by a third person gives them an estate by entireties 
 (q.v.). The general rule is that the husband becomes by the marriage 
 entitled absolutely to all the choses in possession belonging to his wife in 
 her own right (see Reduction into Possession), and to the whole of the rents 
 and profits of her land during the continuance of the coverture, 5 and to 
 her chattels real if he survives her (see Survivorship) ; but this rule has had 
 many exceptions engrafted on it ; first, by the doctrines of equity, which 
 allow a wife to hold separate estate {q.v.), and, secondly, by the Married 
 Women's Property Acts {q.v.). Moreover, these rights of the husband do 
 not extend to property held by the wife in auter droit, e.g., as executrix. 
 § 4. Another rule is, that if the husband survives the wife he has an 
 interest in her lands and tenements during his life (see Curtesy), and vice 
 versa (in certain cases) if she survives him (see Dower) ; but these interests 
 are not now of frequent occurrence, other provisions being generally 
 made by a settlement executed on the marriage. 6 (See Settlement.) 
 
 § 5. On the other hand, a husband was formerly liable for all the debts 
 and liabilities of his wife contracted before the marriage, but this rule has 
 been altered by the Married Women's Property Acts, which provide in 
 effect that in the case of marriages taking place after 30th July, 1874, the 
 husband shall be liable for his wife's debts and liabilities to the extent of 
 •the property belonging to the wife which he shall have acquired by the 
 marriage, or which he might have acquired. 7 (See Assets, § 1.) 
 
 § 6. A wife is not criminally liable for an offence committed by her 
 under the coercion of her husband, except in the case of treason or 
 murder and other heinous crimes. 8 
 
 II. § 7. Marriage formerly signified not only the union of man and 
 wife, but also the right of a guardian by tenure to bestow his ward in 
 marriage, " which the law gave to the lord, not for his benefit onely, but 
 that he should match him [the ward] vertuously and in a good family 
 without disparagement." 9 If an infant tenant by knight's service refused 
 such a marriage, the lord was entitled to the value of the marriage, that 
 is, to the amount which he would have received for giving his ward in 
 
 1 Hyde v. Hyde, L. R., I P. & D. p. 
 133 ; Sottomayer v. De Barros, 5 P. D. at 
 p. 101. 
 
 2 See Watson's Corap. Eq. 316 et sea. 
 > Litt. § 168. 
 
 4 Williams, R. P. 218. 
 6 Macqueen, 17; Williams, R. P. 214. 
 He may also grant leases for twenty-one 
 
 years of any land of whieh she is seised in 
 fee under the Settled Estates Act, 1877, 
 s. 46. (See Settled Estates Act.) 
 
 6 Williams, R. P. 220. 
 
 7 Wilhams, P. P. 443. 
 
 8 Roscoe, Crim. Ev. 990. 
 
 9 Co. Litt. 76 a. 
 
Marriage Acts law dictionary. Married Women 5 J 7 
 
 marriage, 1 but a guardian in socage could make no profit by the marriage 
 of his ward. 2 
 
 See Bigamy; Disparagement; Divorce; Husband and Wife; Marital 
 Rights; Necessaries; Settlement; Survivorship. 
 
 MARRIAGE ACTS.— § i . The principal Marriage Acts are the stats. Marriage by 
 4 Geo. 4, c. 76 and 6 & 7 Will. 4, c. 85. The former act provides for {£j£j! e ° r 
 the publication of banns on three successive Sundays before the celebration 
 of a marriage, unless it takes place by ecclesiastical licence (see Licence, 
 § 4), and requires that it shall be solemnized by a person in holy orders and 
 before two credible witnesses at least. It also provides for the case of one 
 of the parties being under age, and for the consent of his or her parent 
 or guardian being given. In certain cases marriages not solemnized in 
 accordance with the provisions of the act are made void, and where a mar- 
 riage is solemnized between persons, one of whom is under age, by 
 means of the false oath or fraudulent procurement of one of the parties, 
 the person so offending is liable to forfeit all property which would other- 
 wise accrue to him or her from the marriage. 
 
 § 2. The stat. 6 & 7 Will. 4, c. 85 (amended by stats. 7 Will. 4 & 1 Marriage by 
 Vict. c. 22 ; 3 & 4 Vict. c. 72 ; 19 & 20 Vict. c. 1 19 ; and 23 Vict. c. 18), ^fj^ate 
 introduced two new modes of celebrating marriages, by a certificate of 
 the superintendent registrar of marriages with or without licence. To 
 obtain the certificate without licence, public notice of the intended mar- 
 riage must be given for twenty-one days : the certificate with licence only 
 requires one day's notice. Under a registrar's certificate, marriages may 
 be solemnized in any religious building registered for the purpose 
 (except that under a certificate with licence a marriage may not be 
 solemnized in a church or chapel of the Church of England), or it may 
 be solemnized at the registrar's office. 3 
 
 § 3. Stats. 4 Geo. 4, c. 91, and 12 & 13 Vict. c. 68, provide for the Foreign and 
 marriage of British subjects abroad ; and 28 & 29 Vict. c. 64, make c . olonial mar - 
 colonial marriages valid everywhere, subject to certain restrictions. (See 
 also Domicile, § 2.) 
 
 § 4. Under stat. 12 Geo. 3, c. 11, no descendant of King George II. Royal mar- 
 other than the issue of princesses married into foreign families, may, ria S es - 
 except in certain cases, contract matrimony without the previous consent 
 of the sovereign. 4 
 
 MARRIAGE -BROCAGE. — A marriage brocage contract is an 
 undertaking for reward to procure a marriage between two persons. Such 
 a contract is void. 5 (See Policy.) 
 
 MARRIED WOMEN'S PROPERTY ACTS are the statutes 
 33 & 34 Vict. c. 93, and 37 & 38 Vict. c. 50. They provide in effect that 
 (i) the earnings of a married woman derived from her own exertions ; 
 (ii) personal property coming to her during marriage, either (a) under 
 
 1 Litt. § 1 10. Comm. ii. 246. 
 
 2 Ibid. § 123. 4 Steph. Comm. ii. 454. 
 
 3 Browne on Divorce, 55 et seq. ; Steph. ° Chitty on Contracts, 618, 
 
5i8 
 
 Marshal 
 
 LAW DICTIONARY. 
 
 Marshalling 
 
 Judge's 
 marshal. 
 
 Admiralty 
 marshal. 
 
 Charities. 
 
 an intestacy, or (b) under any deed or will (not exceeding in the 
 
 latter case 200/.) ; and 
 (iii) the rents and profits of real estate descending upon her during 
 
 marriage, 
 shall belong to her, to her separate use ; but in the case of property 
 coming under (ii) and (iii) the rule only applies to women married after 
 9th August, 1870. Provision is also made for the registration of shares, 
 stock, &c. in the name of a married woman so as to make them her 
 separate property, and for actions being brought in her own name in 
 respect of her separate property ; " and as to the liability of her husband 
 for her debts, &c, as to which see Marriage, § 5. (See Separate Use.) 
 
 MARSHAL. — § 1. In the practice of the Queen's Bench Division of 
 the High Court, a marshal is an officer who attends each judge on 
 circuit. He is the personal officer of the judge, as an aide-de-camp is of 
 a general, and he performs the duties of secretary. He is not a per- 
 manent officer, neither is he continuously employed. He has to swear 
 the grand jury, and to make an abstract or note for the judge of the 
 nature of the actions tried before him. 2 
 
 § 2. The marshal of the Probate, Divorce and Admiralty Division in 
 Admiralty matters is entrusted with the following duties : Execution of 
 all warrants issued by the Court ; appraisement and sale of- condemned 
 ships and cargoes ; removal of ships, sub judice, from port to port on 
 removal being ordered; receipt and subsequent payment into Court of all 
 money arising out of execution of process ; ascertaining the sufficiency 
 or otherwise of bail ; and the custody of embargoed ships. 3 (See Action, 
 §§ iz et sea. and the titles there referred to.) 
 
 MARSHALLING. — § 1. In the distribution of assets, marshalling 
 takes place where there are two claimants, A. and B., and two funds, X. 
 and Y., both of which are available to satisfy A.'s claim, but only Y. is 
 available for that of B., and A. is compelled to have recourse to the X. 
 fund in order that the Y. fund may be left for B. Or, what is the same 
 thing, if A. has been paid out of the Y. fund, B. is allowed to have 
 recourse to the X. fund, against which he had originally no claim. 4 Thus, 
 if a legacy is given to A. charged on real estate, and another not so 
 charged is given to B., the personal estate not being sufficient to pay 
 both, A. will be compelled to satisfy his legacy wholly or partially out 
 of the real estate, so that B.'s legacy may be paid in full out of the 
 personalty. 6 
 
 § 2. A testator is said to " marshal his own assets" in favour of a 
 charity when he directs a legacy to a charity to be paid out of his pure 
 personal estate, for the law does not marshal assets in favour of charities, 
 and, therefore, without such a direction, the legacy would abate in the 
 
 1 Griffiths, Married "Women's Property 
 Act ; In re Voss, 13 Ch. D. 504. 
 
 2 Second Report of Legal Dep. Comm. 
 (1874), 21. 
 
 3 Ibid. (1874), 89. 
 
 4 Watson, Comp. Eq. 36; White & 
 Tudor's L. C. ii. 66 ; Snell's Eq. 231. 
 
 5 Bligh v. Earl of Darnley, 2 P. W. 
 619. 
 
Marshalsea law dictionary. Master and Servant 5 1 9 
 
 proportion of the impure to the pure personalty. 1 (See Abatement, § 4 ; 
 Mortmain!) 
 
 § 3. The doctrine of marshalling also applies to mortgages. Thus, if Mortgages. 
 the owner of two estates mortgages them both to one person, A., and 
 then one of them to another, B., without B. having notice of A.'s mort- 
 gage, B. may insist that A.'s debt shall be satisfied out of the other estate 
 (the one not mortgaged to B.) so far as it will extend. 3 
 
 MARSHALSEA. — The Court of the Marshalsea had jurisdiction in actions of debt 
 or torts the cause of which arose within the verge of the royal court. It was abolished 
 by stat. 12 & 13 Vict. c. ioi. 3 
 
 MASTER AND SERVANT.— § 1. The relation of master and 
 servant exists where one person, for pay or other valuable consideration, 
 enters into the service of another and devotes to him his personal labour 
 for an agreed period. 4 The test of such a service seems to be, first, that 
 the servant is bound to obey the reasonable commands of his master to 
 do all acts falling within the scope of his employment, and, secondly, 
 that the master has the power of dismissing the servant on his neglecting 
 his duty, or for incompetence or gross misconduct, or on giving notice of 
 dismissal in accordance with the express or implied terms of the contract. 
 
 It would also seem that a material difference in social position is 
 essential to the relation of master and servant, for tutors, clerks, gover- 
 nesses, opera singers, and' the like, are not servants ; and that the service 
 must be exclusive, i. e., that the servant cannot work for any one else, 
 without his master's permission, unless his service is limited to certain 
 times or otherwise. 5 
 
 § z. Servants are generally divided into menial or domestic servants, 
 labourers and workmen, and apprentices. The rules of law as to the 
 respective rights and duties of the master and servant in the absence of 1 
 express agreement vary to some extent according to the nature of the 
 employment. 
 
 § 3. As regards strangers, the relation of master and servant affects Rights and 
 them chiefly in the following respects : — The master may bring an action duties of 
 against any person for beating or maiming his servant, if he thus loses 
 the services of his servant, and thereby suffers actual damages (see Seduc- 
 tion ; Service; Tort), and the master has an action against any person 
 who knowingly entices away a servant, or harbours and detains him after . 
 having been apprised of the former contract. 6 On the other hand, the 
 servant is frequently the agent of his master for certain purposes, and 
 accordingly has power to bind him by his acts 7 (see Agent) ; and if the 
 
 1 Robinson v. Geldert, 3 Mac. & G. 735; Smith on Master and Servant, 106 ; Lum- 
 Watson, 55. ley. v. Gye, 2 E. & B. 216 ; Bowen v. Hall, 
 
 2 Fisher on Mortgage, ii. 704. 6 Q. B. D. 333. 
 
 3 Steph. Comra. iv. 317, n. (d). 6 Smith, 124; Underhill on Torts, 152. 
 
 4 Hid. ii. 226. This principle also applies to contracts of 
 
 5 The relationship between a master and service where the relation of master and 
 a servant creates superiority and power on servant does not strictly exist ; Bowen v. 
 the one hand, and duty, subjection, and, as Hall, 6 Q. B. D. 333. 
 
 it were, allegiance on the other; Bacon's ' Smith, 219. 
 
 Abr. tit. Master and Servant; see also 
 
520 
 
 Master of the Faculties LAW dictionary. 
 
 Masters 
 
 Master and 
 " Servant Acts. 
 
 Of Supreme 
 Court. 
 
 servant in the course of his employment tortiously causes injury to any 
 person, the master is liable. Therefore, if a servant in driving his 
 master's carriage on his master's business injures a person by negligent 
 driving, the master is liable in damages to that person, even although the 
 servant may have gone out of his proper course for his own business or 
 amusement ; but if the servant takes the carriage out without his master's 
 orders and for his own business or amusement, then the master is not 
 liable for his negligence. 1 
 
 § 4. Under the stats. 20 Geo. z, c. 1956 Geo. 3, c. 25 ; 4 Geo. 4, c. 34; 
 the Master and Servant Act, 1867; and the Employers and Workmen 
 Act, 1875, justices of the peace have jurisdiction in many cases where 
 questions arise as to the rights or liabilities of either party to a contract 
 of service, and, under the last-mentioned act, County Courts also have 
 jurisdiction in some of those matters. 2 
 
 See Council of Conciliation ; Embezzlement; Factories ; False Character. 
 
 MASTER OF THE FACULTIES. See Faculty. 
 
 MASTER OF THE ROLLS.— The office of Master of the Rolls 
 is one of great antiquity and high rank. He was originally keeper of the 
 records, and acted as assistant to the Lord Chancellor, like the other 
 master's in Chancery (see Masters, § 3). Subsequently, in the reign of Ed- 
 ward I., he acquired judicial authority in matters within the jurisdiction 
 of the Court of Chancery, and in the reign of Henry VI. bills for relief 
 were addressed to him as well as to the Lord Chancellor. In more 
 modern times, any suit, petition, &c. could be heard in the first instance 
 by the Master of the Rolls, as well as by the Vice-Chancellors. 3 By the 
 Judicature Act, 1873, the Master of the Rolls was made a member of the 
 High Court of Justice, 4 and an ex officio member of the Court of Appeal 5 
 (see those titles), but he still retains his non-judicial duties as custodian 
 of the records. He is the head of the Petty Bag Office, and admits 
 solicitors of the Supreme Court. 6 
 
 MASTERS are officers attached to the principal Courts of justice. 
 § 1 . The Masters of the Supreme Court perform the duties formerly per- 
 formed by the masters and associates of the Queen's Bench, Common Pleas, 
 and Exchequer Divisions, the Queen's Coroner and Attorney, the Master 
 of the Crown Office, and the Record and Writ Clerks. 7 The duties of 
 the Masters of the Q. B., C. P., and Ex. Divisions, and of the Crown 
 Office, were to attend in rotation the sittings of the Divisions to which 
 they were attached, hear summonses and applications in Chambers, tax 
 bills of costs, examine witnesses before trial, and report upon matters 
 referred to them by the Court. 8 As to the duties of the Associates, 
 
 1 Joel v. Morrison, 6 C. & P. 501 ; 
 Smith, 271. 
 
 2 Smith, 446 ; see also stats. 7 & 8 Vict, 
 c. 101 ; 14 & 15 Vict. c. II, and 24 & 25 
 Vict. c. 100, s. 26, relating to apprentices. 
 
 3 Spence's Equity, 357 ; Hunter's Suit, 
 7 ; Haynes's Eq. 47. 
 
 1 Sect. 4. 
 5 Sect. 6. 
 
 Sect. 87. 
 
 1 Judicature (Officers) Act, 1879. 
 
 9 Smith's Action, 17 ; Second Rep. 
 Legal Dep. Comm. 15. 
 
Masters in Lunacy LAW DICTIONARY. Matrimonial Causes 521 
 
 Queen's Coroner, and Record and Writ Clerks, see those titles. As to 
 the distribution of business, see Central Office. 
 
 § 2. In the Chancery Division of the High Court the Masters tax bills Masters of the 
 of costs 1 (see Taxation); the duties which, in the Queen's Bench Divi- D i^°"nf 
 sion, are performed by the Masters, are, in the Chancery Division, per- 
 formed by the Chief Clerks and Registrars (q. v.). § 3. Originally the 
 Masters in Chancery acted as assessors and assistants of the Chancellor, 
 who delegated to them many of his judicial duties : the most important 
 being that of taking accounts and inquiries in suits, and reporting the 
 result to the Chancellor. 2 The Master of the Rolls, who was one of them, 
 afterwards acquired jurisdiction as a judge of first instance ; , the other 
 Masters were abolished in 1852, and their duties transferred to a new 
 class of officers — the Chief Clerks (q. v.). 3 
 
 MASTERS IN LUNACY are officers of the Lord Chancellor, as 
 guardian of lunatics. Their duties are of two kinds : first, to hold com- 
 missions or inquiries to find whether persons alleged to be insane are 
 incapable of managing themselves and their affairs ; secondly, to inquire 
 as to the property, relations, &c. of persons found lunatic, and to super- 
 intend the management and employment of the property for the benefit 
 of the lunatic. 4 (See Lunacy ; Report.) 
 
 MATERIAL— MATERIALITY.— The question whether an un- 
 true representation or a concealment avoids a contract to the subject- 
 matter of which it relates, or whether an erasure or alteration avoids a 
 written instrument, depends in general upon whether the misrepresenta- 
 tion, concealment, erasure or alteration is material ; and the question 
 whether it is material depends partly on the facts of the case and 
 partly on the nature of the transaction. Thus, altering the date of 
 a cheque is a material alteration. 5 (See Alteration.) So if during the 
 negotiation of a marine insurance, a statement is made which has no real 
 bearing- on the risk, but which, nevertheless, influences the mind of the 
 underwriter, as, for instance, an assertion that previous insurances have 
 been obtained on the same ship at a low premium, the misrepresentation 
 will avoid the policy. 6 (See Uberrima Fidei.) 
 
 MATERNAL. See Descent. 
 
 MATRIMONIAL CAUSES include suits for divorce, nullity of 
 marriage, judicial separation, damages for adultery, restitution of conjugal 
 rights, and suits of jactitation of marriage. (See the various titles : also 
 Alimony ; Probate, Divorce and Admiralty Division.) 
 
 1 Second Rep. Legal Dep. Comra. 54. 6 Vance v. Lowther, 1 Ex. D. 176; Leake 
 
 2 Spence's Equity, 359 etseq.; Haynes's on Contracts, 426; Suffell v. Bank of 
 Eq. 47. England, 7 Q. B. D. 270. 
 
 3 Rep. L. D. Comm. 58. 6 Maude & Pollock, Merch. Shipp. 397, 
 
 4 Ibid. 60 ; Pope on Lunacy, 30 ; 16 & 401. 
 17 Vict. c. 70, ss. 6 et seq. 
 
522 Matrons law dictionary. Mayor's Court 
 
 MATRONS. See fury-, § 10. 
 
 MAYHEM consists in violently depriving another of the use of a 
 member proper for his defence in fight, such as an arm, a leg, an eye, 
 &c l It was originally both a civil injury and a criminal offence, but by 
 modern statutes the law relating to felonious maiming and wounding has 
 been amended, so that there is no legal difference between depriving 
 a person of a member proper for his defence in fight and causing him 
 any other grievous bodily harm 2 (see Malicious Injuries to the Person), 
 except that every one has a right to consent to the infliction upon himself 
 of any bodily harm not amounting to a mayhem. 3 
 
 § 2. Mayhem, as a civil injury, seems still to exist, but the use of the 
 word is rare. See Appeal, § 7. 
 
 MAYOR. See Municipal Corporation. 
 
 MAYOR'S COURT OF LONDON is an inferior Court having 
 jurisdiction in civil cases where the whole cause of action arises within 
 the city of London ; if, however, the debt or damage claimed in an 
 action does not exceed 50/., the Court has jurisdiction, provided that the 
 defendant dwelt or carried on business within the city at the time 
 the action was brought, or within six months previously, or that part of 
 the cause of action arose within the city. 4 Actions of ejectment, and 
 actions under the Bills of Exchange Act, may be brought in the Court, 
 and also certain proceedings peculiar to the city. 5 
 
 § 2. The Court has two " sides " or divisions — a legal and an equitable 
 — but of late years the equitable jurisdiction has almost fallen into 
 disuse. 6 
 
 § 3. An ordinary action is commenced by the plaintiff entering at the 
 office of the registrar of the Court what is called an action, which is in 
 the nature of a precipe (q. v.), giving the names of the parties and the 
 nature of the claim ; a copy of this action, together with a notice to the 
 defendant to appear to the action, and particulars of the claim, is then 
 issued and served on the defendant : this document is sometimes called 
 a " copy action and notice," but more commonly a plaint. 7 The subse- 
 quent proceedings are similar to those in actions at law before the 
 Judicature Acts, 1873 and 1875, as to which, see Pleadings; Concessit 
 solvere; Record ; Postea. § 4. Suits on the equitable side of the Court 
 follow the practice of the Court of Chancery; 8 as to which, see Pleading; 
 Decree, § 5. As to the procedure in foreign attachment, see that title. 
 
 The judge of the Court is the recorder, or, in his absence, the common 
 Serjeant. 9 
 
 See City of London Court. 
 
 1 Bl. Comm. iii. 121 ; Co. Litt. 126 a, 239 ; Hawes v. Pavely, 1 C. P. D. 418. 
 288 a. 5 Candy's Mayor's Court Pr. 69, 121; 
 
 2 Stat. 24 & 25 Vict. c. 100, ss. 18 Yeatman's Mayor's Court. Pr. xxxix. iii. 
 et seq. 6 Yeatman, ii. 
 
 3 Steph. Crim. Dig. 129. ' See Candy, 71 ; Yeatman, 66. 
 
 4 Stat. 20 & 21 Vict. c. clvii, s. 12 ; 8 Yeatman, xix. 
 Mayor of London v. Cox, L. R., 2 H. L. 9 Sect. 43 of the act. 
 
Mease law dictionary. Memorandum 523 
 
 MEASE or MESE is Norman-French for a house. 1 
 MEASURE OF DAMAGES. See Damages. 
 MEDICAL JURISPRUDENCE. See Forensic Medicine. 
 MEDIETAS LINGUA. See Jury, § 9. 
 
 MEETING. — § i. In the law of bankruptcy (including proceedings Bankruptcy: 
 for liquidation and composition), the most important kind of meeting is first rae eting, 
 the first meeting of creditors, which is described under the titles Bank- 
 ruptcy, § 6 ; Composition, § 4 ; Liquidation. The trustee in a bankruptcy subsequent 
 or liquidation is bound to follow the directions of the creditors in admi- meetings. 
 nistering the estate, and he may from time to time summon general 
 meetings of the creditors for the purpose of ascertaining their wishes ; in 
 certain cases he is required to do so. 2 A member of the committee of 
 inspection or the registrar of the Court may also summon a general 
 meeting, e.g., for the purpose of removing the trustee or appointing a 
 new trustee. 3 
 
 § 2. In the law of companies meetings are of two kinds, ordinary and Companies, 
 extraordinary, or, as they are also called, general and special. Ordinary Ordinary, 
 or general meetings are usually held at stated times and for the trans- 
 action of business generally. Extraordinary or special meetings are held Extraor- 
 as occasion may require for the transaction of some particular business, dmarv - 
 which ought to be specified in the notice convening the meeting. One 
 meeting may be both ordinary and extraordinary. 4 Every company 
 formed under the Companies Act, 1862, is bound to hold a general 
 meeting within four months after its registration, 5 and once at least in 
 every year thereafter. 6 § 3. It has been decided that a single person 
 cannot constitute a meeting. 7 
 
 See Resolution. 
 
 MELIORATING WASTE. See Waste. 
 
 MELIUS INQUIRENDUM.— If an office or other inquisition is 
 found against the crown, a melius inquirendum, that is, a further (literally 
 " better") inquiry under the former commission may be awarded for the 
 crown. But no melius inquirendum is usually awarded in such case unless 
 some prima facie ground is shown for supposing the inquisition to be 
 wrong. A melius inquirendum may also be awarded if the former inquisi- 
 tion is on the face of it incomplete or uncertain. 8 (See Inquest of Office ; 
 Inquisition.) 
 
 MEMORANDUM. — In a policy of marine insurance the memo- 
 randum is a clause inserted to prevent the underwriters from being liable 
 
 1 Litt. §§ 74, 251. 4 Lindley on Companies, 572. 
 
 3 Robson's Bankruptcy, 519; Bankr. 6 Companies Act, 1867, s. 39. 
 
 Act, 1869, s. 20. 6 Companies Act, 1862, s. 49. 
 
 3 B. Act, 1869, s. 21 ; B. Rules, 1870, ' Sharp v. Dawes, 2 Q. B. D. 26. 
 
 r. 120 8 Chitty, Prer. 258 ; Co. Litt. 77 b. 
 
524 Memorandum law dictionary. Memory 
 
 for injury to goods of a peculiarly perishable nature and for minor 
 damages. It begins as follows : " N.B.— Corn, fish, salt, fruit, flour and 
 seed are warranted free from average, unless general or the ship be 
 stranded ;" meaning that the underwriters are not to be liable for damage 
 to these articles caused by sea- water or the like. 1 (See Average; Policy of 
 Assurance.) 
 
 MEMORANDUM OF ALTERATION.— Formerly where a patent 
 was granted for two inventions, one of which was not new or not useful, 
 the whole patent was bad, and the same rule applied when a material 
 part of a patent for a single invention had either of those defects. To 
 remedy this the statute 5 & 6 Will. 4, c. 83, empowers a patentee (with 
 the fiat of the Attorney-General) to enter a disclaimer (q. v.), or a memo- 
 randum of an alteration in the title or specification of the patent, not being 
 of such a nature as to extend the exclusive right granted by the patent, 
 and thereupon the memorandum is deemed to be part of the letters 
 patent or the specification. 2 
 
 MEMORANDUM OF ASSOCIATION is a document by the 
 registration of which a company is formed under the Companies Act, 
 1862. It specifies the name of the proposed company, the part of the 
 United Kingdom in which the registered office of the company is to be, 
 and the objects for which the company is established. 3 If the company 
 is to be limited by shares, the memorandum must also contain the amount 
 of the capital and the number of shares. 4 The memorandum must be 
 signed by seven persons at least, 6 who are called the subscribers. It 
 cannot be altered, except that a company limited by shares may increase 
 its capital or alter the division of its capital into shares, &c. (See Articles 
 of Association; Companies Acts ; Reduction of Capital.) 
 
 Land regis- MEMORIAL. — § 1. In the Land Registries of Middlesex, York, &c, 
 
 tries - which are registries of deeds and not of titles, the registration of a deed 
 
 or other document is effected by leaving it at the registry together with 
 a memorial under the hand and seal of one of the parties to the deed. 
 The memorial is an abstract of the material parts of the deed, with the 
 parcels (q. v.) at full length, and concludes with a statement that the 
 party desires the deed to be registered. The execution of the deed and 
 memorial is proved by the oath of an attesting witness. (See Land 
 Registry.) 
 Petition. §2. "Memorial" also signifies a petition or statement submitted to a 
 
 person or body. 
 
 MEMORY. — In the old books, when a person alleges in legal pro- 
 ceedings, that a custom or prescription has existed from time whereof the 
 memory of man runneth not to the contrary, that is as much as to say 
 
 1 Maude & Pollock, Merch. Shjpp. 371. 4 Sect. 8. As to companies limited by 
 
 2 Johnson 011 Patents, 151 ; stat. 15 & guarantee, see s. 9. 
 16 Vict. u. 83, s. 39. 6 Sects. 6, 11. 
 
 3 Companies Act, 1862, s. 10. 
 
Mercantile Law law dictionary. Merger 525 
 
 that no man then alive hath heard any proof of the contrary. This is 
 also called time of living memory, as opposed to time of legal memory, 
 which runs from the reign of Richard I., because the Statute of West- 
 minster I. (3 Edw. 1, c. 8) fixed that period as the time of limitation for 
 bringing certain real actions. 1 (See Limitation, § 6.) As to the practical 
 importance of the distinction, see Ancient Messuages ; Custom, § 5 ; Lost 
 Grant ; Prescription. 
 
 MERCANTILE LAW includes the law relating to bills of exchange, 
 contracts of affreightment, marine insurance, &c. 
 
 MERCHANDISE MARKS ACT, 1862, is the statute 25 & 26 
 Vict. c. 88. Its object is to prevent the fraudulent marking of mer- 
 chandise and the fraudulent sale of merchandise falsely marked. Its 
 principal provisions are to make forging or falsely applying any trade- 
 mark a misdemeanor, and to impose penalties for wrongfully selling 
 goods with forged or false trademarks, or for marking false indications of 
 quantity on articles for sale, or selling articles so marked. There are 
 also various provisions as to procedure, &c. 2 (See Trademark.) 
 
 MERCHANT SHIPPING.— The law relating to the ownership, 
 registration and transfer of British merchant ships, to the qualifications 
 and control of masters, mates, pilots, engineers, &c, and to the protection 
 and relief of ordinary seamen, is contained in the Merchant Shipping 
 Act, 1854, and the various acts amending it down to the Merchant 
 Shipping Act, 1876, for the prevention of casualties by unseaworthy 
 ships and overloading, the Merchant Shipping Acts, 1880, and the 
 Merchant Shipping (Carriage of Grain) Act, 1880, for enforcing pre- 
 cautions to prevent grain cargoes from shifting. The law of merchant 
 shipping also deals with affreightment, marine insurance, hypothecation, 
 salvage and wreck (q..v.). 3 
 
 MERGER is that operation of law which extinguishes a right by 
 reason of its coinciding with another right, of greater legal worth, in the 
 same person. By " operation of law" is meant that it may take place 
 independently of the wishes or intention of the parties ; and by " greater 
 legal worth" is meant that one right in estimation of law, though not 
 necessarily in fact, is of higher value than the other. 
 
 I. § 2. In the law relating to rights of action, when a person takes or Rights of 
 acquires a remedy or security of a higher nature in legal estimation than action, 
 the one which he already possesses for the same right, then his remedies 
 in respect of the minor right or security merge in those attaching to the 
 higher one. 4 Thus, if a bond is taken for a simple contract debt, the 
 remedy upon the simple contract is extinguished, and therefore an action 
 
 1 Litt. § 170. ping; Smith's Merc. Law, 176; Steph. 
 
 2 See Ludlow & Jenkyns on Trade- Comm. iii. 148. 
 
 marks, 19 et seq. i Leake on Contracts, 506 ; Price v. 
 
 3 Maude & Pollock's Merchant Ship- Moulton, 10 C. B. 561. 
 
526 Merger law dictionary. Merger 
 
 for the debt must be brought on the bond ; again, if judgment is recovered 
 in such an action, the right of action on the bond is merged in the judg- 
 ment, and therefore no second action can be brought on the bond. 1 
 
 II. In the law of property, merger takes place either according to the 
 rules of law or according to those of equity. 
 
 Estates at § 3- At law, when a greater and a less estate meet in the same person 
 
 aw- without any intermediate estate, the less estate is merged in the greater, 
 
 so as to cease to exist. The greater estate is thus accelerated, but not 
 enlarged. 2 (See Enlargement. .) Thus, if A. is tenant for life of land, and 
 the reversion in fee afterwards descends to or is otherwise acquired 
 by him, his estate for life merges in the fee, and he thus becomes tenant 
 in fee in possession. But if a person has two estates in different rights, 
 as where he has one in his own right, and the other in right of his wife, 
 or as executor, there will in general be no merger. An estate for life 
 being, in the estimation of the law, greater than any term of years how- 
 ever long, it follows that when a person holding a term for iooo years 
 becomes entitled to the land for an estate for life, the term merges in the 
 life estate. 3 Merger or its consequences are in some instances prevented 
 by statute; "thus an estate tail does not merge in the freehold 1 (see En- 
 largement) ; and now by the Judicature Act, 1873, there can be no merger, 
 by operation of law only, of any estate the beneficial interest in which 
 would not be deemed to be merged or extinguished in equity. 6 This 
 enactment is apparently meant to recognize the rule which prevailed in 
 equity before the act, namely, that where the estate of a trustee accidentally 
 merges, the cestui que trust shall not thereby be injured. 6 
 
 In equity. § 4. In equity, where a legal and an equitable estate, equal and co- 
 
 extensive, unite in the same person, the latter merges in the former. 1 
 Where an estate of inheritance in land and the right to a charge upon it 
 become vested in the same person absolutely (as where a person entitled 
 to have a portion raised out of land becomes entitled to the land in fee 
 simple), the charge will merge unless kept alive, or unless it is io the 
 owner's interest that it should not merge. 8 There is a general leaning 
 against merger in Courts of Equity, except in those cases where merger is 
 convenient and beneficial to all parties. 
 
 Crown grants. III. § 5. In the law relating to grants by the crown, it is the rule that 
 when a right belonging to the crown by virtue of its prerogative (such as 
 the right to wreck) is granted to a subject as an appendancy to land, then 
 if the land comes into the hands of the crown the right merges in the jus 
 corona, and does not pass by a grant of the land, but must be created 
 
 1 In re European Central Rail. Co., 8 & 9 Vict. c. 106, s. 9 ; Williams, R. P. 
 4 Ch. D. 33. 251. 
 
 2 Preston's Conveyancing, iii. 7. 5 Sect. 25, § 4. 
 
 3 Bl. Comm. ii. 177 and notes ; Burton's s Williams, R. P. 415. 
 
 Comp. \\ 747, 896; Jarman & Byth. 7 Watson's Comp. Eq. 619; Spence's 
 
 Conv. viii. t, n. (a). Eq. 879 ; Burton, § 1388. 
 
 1 Stat. 13 Edw. 1, u. 1 (De Donis). See s Watson, 621 ; Burton, § 1513; Spence, 
 
 as to the preservation of the rights incident 346, 424, citing Gilbert's Lex Prsetoria, 
 
 to a reversionary term which has merged, 264. 
 
Meritorious law dictionary. Mesne 527 
 
 again. Rights vested in the crown otherwise than jure corona (such as 
 warrens, fairs, &c.) do not merge. 1 
 
 As to the merger of tithes, see that title ; also Extinguishment. 
 
 Etymology.]— Norman-French, to drown. 2 
 
 MERITORIOUS. See Cause of Action, § 2. 
 
 MERITS. — A person is said to have a good cause of action or defence 
 on the merits when his claim or defence is based on the real matters in 
 question, and not on any technical ground. Thus before the Judicature 
 Acts a defence based on the misjoinder or nonjoinder of parties by the 
 plaintiff would not have been a defence on the merits. If a defendant 
 inadvertently allows judgment to go by default, the Court will not, as a 
 rule, set the judgment aside and allow him to defend unless he makes an 
 affidavit of merits, that is, an affidavit showing that he has a substantial 
 ground of defence to the action. 
 
 MESNE signifies middle, intervening or intermediate. Thus in Assignments. 
 framing an assignment of a lease which has already passed through 
 several hands since it was originally granted, it is usual to refer to all the 
 assignments before the last as "mesne assignments." So if property Incum- 
 is mortgaged first to A. and then to B., and is subsequently mortgaged to rances - 
 A. a second time, B. is said to be a mesne incumbrancer, or to have 
 a mesne incumbrance, because his mortgage stands between the two 
 mortgages to A. (See Priority ; Tacking.) 
 
 § 2. When a person is wrongfully in possession of land, and the Profits, 
 rightful owner brings an action to recover possession, he usually sets up 
 in addition, either in the same or a separate action, a claim for " mesne 
 profits :" that is, for the benefit which the defendant has derived from his 
 wrongful occupation of the land between the time when he acquired 
 wrongful possession and the time when the possession was taken from 
 him. 3 (See Joinder, § 1 : also Double Rent ; Double Value?) 
 
 As to the meaning of "mesne lord," see Lord; Mesnalty; of "mesne 
 process," see Process; of " mesne tenure," see Tenure. In the old books 
 " mesne " often denotes " mesne lord." 4 
 
 § 3. The writ of mesne was a writ which a tenant paravail had to Writ of 
 compel his immediate lord (the mesne) to protect or acquit him against mesne - 
 the lord paramount. 6 (See Acquit, § 2.) It was abolished by stat. 3 & 4 
 Will. 4, c. 27. 
 
 Etymology.] — Norman-French, meen ; modem French, moyen, from late Latin, 
 mediamis, from medius, middle. 6 
 
 1 Case of the Abbot of Strata Marcetta, fits, being a species of the action of trespass 
 9 Co. 24 ; Heddy v. Wheelhouse, Cro. vi et armis (see Trespass) ; Adams on Eject- 
 Eliz. 591 ; Duke of Northumberland v. ment, 379. 
 
 Houghton, L. R., 5 Ex. 127. 4 Co. Litt. 152 b. 
 
 2 Co. Litt. 338 b. 6 Litt. § 142. 
 
 3 Steph. Comm, i. 294. It was formerly c Britton, 58 a ; Diez. Etym. Wortb. i. 
 called an action of trespass for mesne pro- 276. 
 
528 Mesnalty LAW dictionary. Minerals 
 
 MESNALTY is the tenure or seignory of a mesne lord. " If there 
 be lord [paramount], mesne [lord], and tenant [paravail], and ... if 
 the lord paramount purchase the tenancie [of the tenant paravail] in fee, 
 then . . . the seignorie of the mesnalty is extinct." 1 
 
 MESSUAGE is a house. As a word of conveyance, " messuage " 
 includes not only the buildings but also the curtilage, orchard and 
 garden belonging thereto. 3 A " capital messuage " is the chief mansion 
 house of an estate. 3 
 Etymology.] — Norman-French, message, a house. 1 
 
 METES AND BOUNDS. — In ordinary cases where a widow is 
 entitled to dower of land, her share is ascertained and set apart to 
 be held by her in severalty, and she is then said to hold it "by metes and 
 bounds," that is, by measurement and boundaries. 5 (See Admeasurement.') 
 
 METROPOLITAN BOARD OF WORKS is an authority created 
 by the Metropolis Local Management Act, 1855 (amended by the acts of 
 1856, 1862, 1871, 1875, 1876, 1877, 1878, 1879 and 1880). The general 
 scheme of these acts is to provide for the formation of District Boards of 
 Works by the union of the smaller parishes of the metropolis into groups, 
 and for the formation of a corporation called the Metropolitan Board of 
 Works, representing the whole metropolis. The Metropolitan Board has 
 jurisdiction in matters affecting the metropolis at large (e. g., the main 
 sewers, the naming and numbering of streets, executing public improve- 
 ments, &c), while the vestries of the large parishes, and the District Boards 
 formed as above mentioned, have jurisdiction in matters affecting their 
 respective districts (e. g., the local sewers and drains, new buildings, paving, 
 lighting and cleansing streets, removing nuisances, &c). The powers 
 and authorities exercisable in other places by local boards and other 
 sanitary authorities (q. v.) are thus in London divided between the Metro- 
 politan Board on the one hand, and the parishes and District Boards on 
 the other. (See Police ; Rate.) 
 
 MILITARY. — The various tenures by knight-service, grand-ser- 
 jeanty, cornage, &c, are frequently called military tenures, from the 
 nature of the services which they involved. 6 (See Service ; Tenure.) 
 
 MINERALS— MINES.— § 1. In the most general sense of the term, 
 minerals are those parts of the earth which are capable of being got from 
 underneath the surface for the purpose of profit. The term therefore in- 
 cludes coal, metal ores of all kind, clay, stone, slate, and coprolites. 7 
 
 1 Litt. § 231. » "Surface" means that part of the 
 
 2 Co. Litt. 5 b, 56 b. land which is capable of being used for 
 
 3 Davids. Conv. i. 89. agricultural purposes ; Midland Rail. Co. 
 
 4 Liber Albus, 201 a. v. Checkley, L. R., 4 Eq. 19 ; Heat v. Gill, 
 9 Litt. \\ 36, 44 ; Co. Litt. 32 a, b. 7 Ch. 669 ; Att.-Gen. v. Tomline, 5 Ch. D. 
 Steph. Comm. i. 204. at p. 762. 
 
Minerals law dictionary. Ministerial 
 
 529 
 
 A mine is a work for the excavation of minerals by means of pits, shafts, 
 levels, tunnels, &c, as opposed to a quarry, where the whole excavation 
 is open. While unsevered, minerals form part of the land, and as such 
 are real estate. When severed, they become personal chattels. 1 § 2. Royal Royal mines. 
 mines are mines of gold or silver, and belong to the crown, in whosoever 
 land they may be found. 2 § 3. In other cases, mines and minerals belong 
 prima facie to the owner of the surface of the land, though they may be, 
 and frequently are, held by different persons. It follows from the nature 
 of copyhold tenure that the minerals under copyhold land belong to the 
 lord, though he cannot work them without the tenant's consent, except 
 by a local custom. (See Copyhold, § 3.) In many places, customs or pre- 
 scriptions exist, by virtue of which persons are entitled to work mines in 
 land, the freehold of which is vested in another person. (See Gale; Stan- 
 naries; Tin-bounding.) 3 
 
 § 4. In consequence of a judicial decision, 4 that the ordinary power of Confirmation 
 sale contained in settlements does not authorize the trustees to sell the °g 6 S 2 ales Act ' 
 settled lands without the minerals, or the minerals without the lands, the 
 Confirmation of Sales Act, 1862, 5 was passed to confirm all such sales 
 theretofore made, and to authorize such sales to be made in future with 
 the sanction of the Chancery Division. 6 
 
 § 5. As to the rights of adjoining owners in respect of minerals, see 
 Barrier; Boundaries, § 4; Bounds; Easement, § 1; Support. 
 
 § 6. By modern statutes, numerous obligations have been imposed on 
 mine owners for the protection of the public, and of persons employed in 
 mines. The principal acts now in force are the Coal Mines Regulation 
 Act, 1872, and the Metalliferous Mines Regulation Acts, 1872 and 1875. 
 (See Fence, § 3.) The right to work minerals under railways, canals, water- 
 works and highways is restricted by the acts relating to those matters. 
 
 MINISTERIAL is opposed to judicial or discretionary. Thus, a 
 ministerial office or duty is one which merely involves the following of 
 instructions; in other words, one which can be performed without the 
 exercise of more than ordinary skill, prudence, or discretion, e. g., the pay- 
 ment or receipt of money, the execution of a deed, or the like ; 7 while a 
 judicial or discretionary office or duty involves the exercise of judgment 
 or discretion (q. v.). As to the ministerial office of a coroner, see Coroner, 
 § 1 . The phrase is often used in speaking of a delegation of authority ; 
 the general rule being that an executor, trustee, agent, &c. can delegate 
 his authority so far as to empower another person to do a merely minis- 
 terial act for him, but not to empower another person to exercise a dis- 
 cretion vested in him (the executor, trustee, agent, &c). Thus, an exe- 
 cutor cannot (it is conceived) authorize another person to dispose of his 
 testator's estate, or compromise claims by creditors ; but if he has entered 
 into an agreement for the sale of the property, or for the compromise of 
 
 1 Bainbridge on Mines, 1. 3 Bainbridge, 543 et seq. 
 
 2 Bl. Comm. i. 295. As to mines of 4 Buckley v. Howell, 29 Beav. 546. 
 lead, &c. containing also gold or silver, see 6 Stat. 25 & 26 Vict. c. 168. 
 stats. 4 W. & M. st. 1, c. 30, and 5 W. & 6 Williams, R. P. 311. 
 
 M. c. 6. i See Lewin on Trusts, 18. 
 
 S. MM 
 
53° 
 
 Minor 
 
 LAW DICTIONARY. 
 
 Misdemeanor 
 
 Agreed 
 minutes of 
 order, &c. 
 
 Registrar's 
 minutes. 
 
 a claim, he may appoint another person to carry out the agreement by 
 receiving or paying the money. 1 (See Agent) 
 As to ministerial trusts, see Trust. 
 
 MINOR. See Guardian, §§ 2 etseq.; Infant, § 3. 
 
 MINUTES are notes or records of a transaction. Thus, the record 
 of the proceedings at a meeting of directors or shareholders of a company 
 is called the minutes. 
 
 § 2. When the parties to an action, petition, or other proceeding in the 
 Chancery Division, are agreed as to the order or judgment which should 
 be made on an application to the Court, they usually (especially if the 
 matter is complicated) draw up beforehand minutes of the order or judg- 
 ment (formerly called "minutes of decree"), containing in outline all the 
 provisions which are thought necessary. The minutes are afterwards put 
 into the form of an order by the registrar. (See Pass; Settle.) 
 
 § 3. Formerly, in Chancery suits, when an order or decree had been 
 made, the registrar did not draw it up in full in the first instance, but 
 framed an outline giving the substance of the order, copies of which were 
 delivered to the parties, to be settled by them in his presence, if neces- 
 sary. For some time past the practice has been to draw up the order or 
 decree complete in the first instance, and copies of the draft are delivered 
 to the parties. In practice these copies are still called "minutes;" and 
 when any dispute arises on the form of the order which has to be referred 
 to the Court, the cause is put into the paper " to be spoken to on the 
 minutes." 2 
 
 See Enter; Pass; Settle. 
 
 MISAPPROPRIATION is not a technical term of law, but it is 
 sometimes applied to the misdemeanor which is committed by a banker, 
 factor, agent, trustee, &c, who fraudulently deals with money, goods, 
 securities, &c. entrusted to him, or by a director or public officer of a 
 corporation or company who fraudulently misapplies any of its property. 3 
 (See Fraud, § 18 ; Public Officer) 
 
 MISCARRIAGE.— A woman who, being with child, unlawfully ad- 
 ministers to herself any drug, or uses any other means to procure her own 
 miscarriage, is guilty of felony punishable with penal servitude for life, as 
 is also any person who administers any drug or uses any other means to 
 procure the miscarriage of a woman, whether she be with child or not. 1 
 
 MISDEMEANOR is any crime or indictable offence not amounting 
 to felony : such as perjury, battery, libel, conspiracy, and public nuisances. 
 § 2. At common law, misdemeanors are generally punishable by fine and 
 
 1 See Lewin on Trusts, 18. 24 & 25 Vict. c. 96, ss. 75 etseq. 
 
 2 Hunter's Suit, 86. * Stat. 24 & 25 Vict. c. 100, s. 58 ; 
 
 3 Stephen's Crim. Dig, 257 et seq.', stat. Steph. Comm. iv. 83. 
 
Misdescription LAW DICTIONARY. Misjoinder 531 
 
 imprisonment without hard labour. 1 In many cases special punishments 
 have been attached to misdemeanors by statute. 
 
 § 3. Under the stat. 5 & 6 Vict. c. 5 1, whoever shoots or strikes at the High misde- 
 Queen, or does certain other acts with intent to alarm her Majesty, is mcanor - 
 guilty of a high misdemeanor, and is liable to be sentenced to seven 
 years penal servitude, or three years' imprisonment, with or without 
 whipping. 
 
 MISDESCRIPTION.— § 1. In certain cases, when a contract con- 
 tains a material misdescription, that is, when the description of the sub- 
 ject-matter of the contract is incorrect or misleading in a material and 
 substantial point, the contract is voidable at the option of the party 
 misled, independently of fraud, concealment, or misrepresentation (q. v.). 
 Thus, in a contract of fire insurance, if the building is so described by 
 the assured as to make the risk appear less than it really is, the insurer is 
 entitled to avoid the contract. 2 So, in a sale of land, a misdescription 
 materially affecting the value, title, or character of the property sold, will 
 make the contract voidable at the purchaser's option. 3 The test of 
 materiality seems to be whether, if the subject-matter had been correctly 
 described, the party misled would have entered into the contract. 4 
 
 § 2. A wrong description does not affect the validity of the transaction 
 if there is no mistake as to the identity of the person or thing intended to 
 be described, as where a person is called by a wrong name, according to 
 the maxim falsa demonstratio non nocet. 
 
 MISE, in the obsolete writ of right (g. v.), was the same thing as the issue in an 
 ordinary action, and was so called because the tenant put himself upon the grand assise, 
 that is, chose it as the mode of trial. 5 
 
 MISFEASANCE— MISFEASOR.— § 1 . Misfeasance is either the 
 doing of a wrongful act or the improper performance of a lawful act : as 
 where a person is guilty of negligence in performing a contract. Mis- 
 feasor is a person who does a misfeasance. § 2. In the old books mis- 
 feasance was used especially to signify trespasses and other offences in 
 parks, forests, &c. 6 At the present day it is chiefly used to signify negli- 
 gence. 7 
 
 See Malfeasance ; Nonfeasance ; Tort. 
 
 Etymology.]— Norman-French, mis, wrongly, and fere, to do. 
 
 MISJOINDER is where persons are wrongly joined as plaintiffs or 
 defendants in an action : in other words, where persons are made parties 
 who ought not to be. The rule before the Judicature Acts was that in 
 
 1 Russell on Crimes, 187, 197; Stephen's 6 See stat. "West. 1, c.xix. ; 2 Inst. 198. 
 Crim. Dig. 14. 7 Underhill on Torts, 27 ; Stephen's 
 
 2 In re Universal, &c. Co., L. R., 19 Comm. iii. 363. As to misfeasance by an 
 Eq. 485 ; Lacklan v. Reynolds, Kay, 52. officer of a company under sect. 165 of the 
 
 3 Flight v. Booth, 1 Bing. N. C. 370 ; Companies Act, 1862, see McKay's Case, 
 Pollock on Contract, 454. 2 Ch. D. I ; Coventry and Dixon's Case, 
 
 *■ Ibid. 14 Ch. D. 660. 
 5 Co. Litt. 294 b ; Britton, 266 b. 
 
 M M 2 
 
53^ 
 
 Of treason. 
 
 Of felony. 
 
 Misprision 
 
 LAW dictionary. Misrepresentation 
 
 an action of contract a misjoinder of plaintiffs led only to increased 
 costs, while a misjoinder of defendants was fatal ; and that in an action 
 of tort a misjoinder of plaintiffs or defendants led only to increased 
 costs. 1 No action can now be defeated by a misjoinder. 2 (See Joinder, 
 
 §*■) 
 
 MISPRISION, "in its larger sense, is used to signify every con- 
 siderable misdemeanor which has not a certain name given to it by 
 the law ; and it is said that a misprision is contained in every treason or 
 felony whatsoever, and that one who is guilty of felony or treason may 
 be proceeded against for a misprision only." 3 The term is, however, 
 rarely if ever used in this sense, it being now practically confined to the 
 two phrases, misprision of treason and misprision of felony. 
 
 § 2. Misprision of treason is where a person who knows that some 
 other person has committed high treason does not within a reasonable 
 time give information thereof to a judge of assize or justice of the peace. 
 The punishment is imprisonment for life and forfeiture of the offender's 
 goods, &c. 4 
 
 § 3. Misprision of felony is where a person who knows that some other 
 person has committed felony conceals or procures the concealment 
 thereof. In ordinary cases the offence is a misdemeanor ; if the offender 
 is a sheriff or coroner, or the bailiff of either officer, a special punishment 
 is inflicted. 6 
 
 Etymology.] — Old French, mes-, wrongly, and prender, to take : to commit an 
 
 False or 
 fraudulent. 
 
 Negligent. 
 
 Innocent. 
 
 Consequences 
 of. 
 
 MISREPRESENTATION is where one of the parties to an in- 
 tended contract conveys to the other a false impression as to some matter 
 relating to the contract, whether by an express statement (active) or by 
 silence (passive). 
 
 § 2. False or fraudulent misrepresentation is a representation contrary 
 to the fact, made by a person with knowledge of its falsehood, and being 
 the cause of the other party's entering into the contract. 7 (See Dolus 
 dans Locum Contractui; Fraud.) 
 
 § 3. Negligent misrepresentation is a false representation made by 
 a person who has no reasonable grounds for believing it to be true, though 
 he does not know that it is untrue, or even believes it to be true. 8 
 
 § 4. Innocent misrepresentation is where the person making the 
 representation had reasonable grounds for believing it to be true. 9 
 
 § 5. When a person has been induced to enter into a contract by 
 fraudulent or negligent misrepresentation, he may in general either 
 (i) affirm the contract and insist on the misrepresentation being made 
 
 1 Dicey on Parties, 502 et sea. 
 1 Rules of Court, xvi. 13. 
 
 3 Russell on Crimes, i. 187 ; see Staunf. 
 
 PI- 37- 
 
 4 Stephen's Crim. Dig. 93. 
 
 6 Steph. 93 ; stat. 3 Edw. 1, c. 9. 
 
 6 Littrd, s. v. Meprendre ; Shaks. 
 Henry IV. (1st part), i. 3. 
 
 7 Attwood v. Small, 6 CI. & F. 232. 
 
 8 Reese River Silver Mining Co. v. 
 Smith, L. R., 4 H. L. 79. 
 
 9 Kennedy v. Panama &c. Co., L. R., 
 2 Q. B. 580. 
 
Misrepresentation LAW dictionary. Mistake 533 
 
 good, if that is possible, so as to be put in the same position as if it had 
 been originally true, or (ii) rescind the contract (see Rescission), or 
 (iii) bring an action for damages, 1 or (iv) rely upon the misrepresentation 
 as a defence to an action on the contract. 2 § 6. An innocent misrepre- 
 sentation has no effect on the contract unless it produces mistake ex- 
 cluding true consent 3 (error in substantia, as to which see Mistake, § 10); 
 or unless it amounts to a warranty or condition, or unless the contract is 
 one in which good faith is especially required, such as contracts of 
 insurance and family settlements. 4 
 
 MISTAKE. — § 1. Although mistake and ignorance are strictly speak- 
 ing not identical, the one being positive and the other negative, they 
 are commonly used as convertible terms in law, their effects being 
 identical. 5 Mistake then may be defined as a misapprehension as to the 
 existence of a thing, arising either from ignorance in the strict sense, 
 that is, absence of knowledge on the subject, or from mistake in the 
 strict sense, that is, a false belief on the point. § z. Where, however, Mistake per 
 mistake produces a legal effect, not of itself, but because it coincides se- 
 with some other fact, the effect is not attributed to the mistake, but to 
 the whole transaction. Thus, mistake is essential to the idea of fraud, 
 because no one can be defrauded unless he is misled, and to many cases 
 where negligence or bona fides is of importance ; but no one would 
 treat these subjects as instances of mistake. In practice, therefore, the 
 term mistake is limited to cases where the effect produced is attributed to 
 it alone. 6 
 
 Mistake is either of law or of fact. 
 
 I. § 3. Mistake of law (error or ignorantia juris) is a mistake as to Mistake of 
 a general rule of law : as where a testator thinks that to disinherit his law - 
 
 heir it is necessary to give him a nominal bequest, or where a person 
 does not know that a contract not to be performed within a year must be 
 in writing. The general rule is that such a mistake does not affect the 
 transaction, whether in civil or in criminal law. 7 Thus, in the first of the 
 above cases the executor could not refuse to pay the bequest, and, in the 
 second, the contract would be void for want of the formality of writing. 
 
 II. § 4. Mistake of fact (error or ignorantia facti) is either as to the Mistake of 
 existence of a fact or as to the existence of a right depending on questions 
 
 of mixed law and fact. 8 Thus, where A., believing that under a deed of 
 grant he had merely a right of rabbit warren over certain land, entered 
 into an agreement for an exchange of properties with a neighbouring 
 
 1 Pollock on Contract, 482. ford's remarks in Beauchamp v. Winn, 
 
 2 Hirschfeld v. L. B. & S. C. Rail. Co., L. R., 6 H. L. p. 230. 
 2 Q. B. D. 1. « Savigny, 340. 
 
 3 Kennedy v. Panama, &c. Co. ; Man- " Snell's Eq. 345 ; BI. Comm. iv. 26 ; 
 son v. Thacker, 7 Ch. T>. 620. Pollock on Contract, 368 ; for exceptions, 
 
 4 Fane v. Fane, L. R., 20 Eq. 698 ; see ibid. 301. 
 
 Pollock on Contract (2nd edit.), 462. 8 Savigny, iii.327, 338; Cooper v. Phibbs, 
 
 6 Savigny, Syst. iii. 326 ; Ahrens, Jurist. L. R., 2 H. L. 149. 
 Encyc. 618. See, 'however, Lord Chelms- 
 
534 
 
 Mistake 
 
 LAW DICTIONARY. 
 
 Mistake 
 
 Fundamental 
 mistake. 
 
 Unilateral. 
 
 Bilateral. 
 
 Collateral 
 mistake. 
 
 Unilateral. 
 
 Mutual mis- 
 take. 
 
 Error in sub- 
 stantia. 
 
 Mistake in 
 expression. 
 
 proprietor, who was also under the belief that A. was only entitled to the 
 right of warren, but it was afterwards discovered that under the deed 
 of grant A. was entitled to the land itself : it was held that the mistake 
 was one of fact, and that, therefore (under the rule stated infra, § 10), A. 
 was entitled to have the agreement rescinded, although it had been 
 partially carried out. 1 Questions of foreign law being questions of fact, 
 a mistake as to foreign law is a mistake of fact. (See Fact!) 
 
 Mistake of fact is of two kinds, fundamental and collateral. 
 
 § 5. A mistake is fundamental when it prevents an act from producing 
 its legal effect, because it excludes the necessary intention. Such a 
 mistake may be either unilateral or bilateral. § 6. Instances of unilateral 
 mistake excluding intention occur both in civil and criminal law. Thus, 
 if A. signs a document by mistake, thinking it to be another document, 
 his signature is ineffectual, because he did not intend to sign it. 2 So if 
 
 A. takes away a thing belonging to B., believing it to be his own, he 
 does not commit a theft, because the necessary criminal intention is 
 absent. 3 § 7. Bilateral mistake excluding intention, occurs only in civil 
 law. Thus, if A. and B. enter into a contract of sale for an estate called 
 Dale, there being in fact two estates called Dale, A. meaning one and 
 
 B. the other, the consent or common intention necessary to constitute a 
 contract is absent, and there, therefore, is no contract (error in corpore). 4 
 
 § 8. Collateral mistake is where the necessary intention is present, but 
 it is induced or accompanied by a mistake. The mistake may be either 
 unilateral or mutual. § 9. As a general rule unilateral mistake has no 
 legal effect at all. 5 Thus if A. purchases property from B. under a mis- 
 taken belief as to its qualities, he cannot set aside the sale or recover 
 damages from B. on the ground of his mistake, unless there was misre- 
 presentation or a guarantee on the part of B. 6 The principal exception to the 
 rule is that if money is paid under a mistake of fact it may be recovered 
 back. 7 § 10. Mutual mistake is where the parties have a common intention, 
 but it is induced by a common or mutual mistake. The most important 
 instance of this kind is where there is a common mistake as to the sub- 
 stance of the thing (error in substantia). Thus if A. and B. enter into 
 a contract of sale for a vessel, each believing it to be of gold, while it is 
 in fact of brass, either may rescind the contract. 8 §11. Again, if a mis- 
 take occurs in expressing the terms of an agreement, it will, as a general 
 rule, be corrected, either when proceedings are taken to enforce it or by 
 substantive proceedings taken for the purpose. (See Rectification!) The 
 
 1 Beauchamp v. Winn, L. R., 6 H. L. 
 223. See also Daniett v. Sinclair (6 App. 
 Ca. 181), where the Court remarked that 
 "in equity the line between mistakes in 
 law and mistakes hi fact has not been so 
 clearly and sharply drawn" as at common 
 law. 
 
 a Fosters. Maciinnon,L.'R., 4 C.P. 704. 
 
 3 Bl. Comm. iv. 232. 
 
 4 Raffles v. Wichelhouse, 2 H. & C. 906; 
 Savigny, iii. 272. 
 
 5 Savigny, 341 ; Pollock, 358. For ex- 
 ceptions to the rule, see Pollock, 359. 
 
 6 Pollock (2nd edit.), 420. 
 
 7 Ibid. 397. As to collateral mistake 
 in criminal law, see Reg. v. Prince, L. R., 
 2 C. C. R. 154. 
 
 8 Gompertz v. Bartlett, 2 E. & B. 849 ; 
 Cox v. Prentice, 3 M. & S. 344; Kennedy 
 v. Panama, &>c. Mail Co., £. R., 2 Q. B. 
 580; Savigny, iii. 276 et seq. For another 
 example see above, § 4. 
 
Mitigation . law dictionary. Moiety 
 
 most obvious example is that of clerical errors made in reducing a 
 contract to writing. 1 
 
 MITIGATION. — Where a defendant or prisoner whose responsibility 
 or guilt is not in dispute proves facts tending to reduce the damages or 
 punishment to be awarded against him, he is said to show facts in 
 mitigation of damages, or of sentence, as the case may be. Thus the 
 defendant in an action of seduction may prove the bad character of the 
 woman in mitigation of damages. 2 
 
 MITTER LE DROIT— MITTER L'ESTATE. See Release, 
 
 MITTIMUS (= "we send") is a writ used in sending a record or its 
 tenor from one Court to another. Thus where nul Hel record is pleaded 
 in one Court to the record of another Court of equal or superior jurisdic- 
 tion, the tenor of the record is brought into Chancery by a certiorari (q . v.), 
 and thence sent by mittimus into the Court where the action is. 3 It is 
 apprehended that since the Judicature Acts this writ will not be much 
 used. 
 
 MIXED. — "Mixed personalty" is the same as " impure personalty." 1 
 (See Personally; Charily; Abatement, § 4.) As to what is meant by a 
 "mixed fund," see Blended Fund ; as to mixed questions of law and fact, 
 see Fact, § 3; and as to mixed actions, see Action, §22. 
 
 MODUS, or MODUS DECIMANDI, is where there exists by 
 custom a particular manner of tithing, that is, of paying tithes, different 
 from the general rule. This is sometimes a pecuniary compensation, 
 such as twopence an acre for the tithe of land ; sometimes it is a com- 
 pensation in work and labour, as that the parson shall have only the 
 twelfth cock of hay, and not the tenth, in consideration of the owner's 
 making it for him, or the like. 6 Moduses are within the Tithe Com- 
 muation Acts, and have probably been commuted in most if not in all 
 cases. (See Tithes ; De non Decimando ; Composition, § 5.) 
 
 MOIETY is used in the old books in the sense of " half." " If a 
 joynt estate be made of land to a husband and wife, and to a third person, 
 in this case the husband and wife have in law in their right but the moity, 
 and the third person shall have as much as the husband and wife, viz. the 
 other moity. And the cause is, for that the husband and wife are but one 
 person in law." 6 The word is, however, frequently used to signify any 
 equal part — such as a third, fourth, &c. 
 
 1 Pollock, 406. 5 Bl. Comm. ii. 29 ; Phill. Eccl. Law, 
 
 3 Underhill on Torts, 157. 1502 ; stat. 2 & 3 "Will. 4, u. 100, fixing 
 
 3 Tidd's Pr. 745. the time for claiming a modus by prescrip- 
 
 4 In re Hill's Trusts, 16 Ch. D. 173. tion. 
 
 6 Litt. § 291. 
 
 535 
 
536 
 
 Molestation 
 
 LAW DICTIONARY. 
 
 Monopoly 
 
 MOLESTATION.— Molesting a person by following him in a per- 
 sistent or disorderly manner, or by hiding his property, or by besetting 
 his place of work or residence, with the view of compelling him to do, or 
 abstain from doing, an act, is forbidden by stat. 38 & 39 Vict. c. 86, 
 repealing stat. 34 & 35 Vict. c. 32. The term "molestation" was used 
 in the latter act, but is omitted from the former. (See Intimidation; 
 Trades Unions.) 
 
 MOLLITER MANUS IMPOSUIT is the compendious name for 
 the defence set up to an action for battery, where the defendant alleges 
 that the battery complained of was lawful, and that " he laid hands on the 
 defendant gently ;" that is, used no more force than was necessary : as 
 where a churchwarden turns a man out of church to prevent him from 
 disturbing the congregation. 1 {See Justification.) 
 
 Admiralty. 
 
 Monition for 
 process. 
 
 Ecclesiastical 
 law. 
 
 MONEY. See Earmark ; Goods. 
 
 MONEY HAD AND RECEIVED— MONEY PAID. See Con- 
 tract, §§ 6, 8 ; Quasi Contract. 
 
 MONITION.— § 1. In admiralty practice, a monition is a formal 
 order of the Court commanding something to be done by the person to 
 whom it is directed, 3 and who is called the person monished. Thus, when 
 money is decreed to be paid, a monition may be obtained commanding 
 its payment. 3 A monition is granted either on motion or on application 
 in chambers, and, if not obeyed, may be enforced by attachment 4 {q. v.). 
 
 § 2. In ecclesiastical appeals to the Privy Council (and formerly also in 
 admiralty appeals), as soon as the petition of appeal is lodged, a "moni- 
 tion for process" issues, calling upon the judge and officers of the Court 
 below to transmit the proceedings in the cause to the registry of the 
 Court of Appeal. 5 (See Process.) 
 
 § 3. Monitions in divorce practice are now disused, orders having taken 
 their place. 6 
 
 § 4. In ecclesiastical procedure, a monition is an order monishing or 
 warning the party complained against to do or not to do a certain act 
 "under pain of the law and contempt thereof." Thus, there may be 
 a monition for personal answers (see Answer, § 4), for payment of costs, 
 requiring a clergyman to reside, &c. 7 A monition may also be appended 
 to a sentence inflicting a punishment for a past offence : in that case the 
 monition forbids the repetition of the offence. 8 
 
 See Admonition. 
 
 MONOPOLY is a licence or privilege allowed by the sovereign for 
 the sole buying and selling, making, working, or using of anything 
 
 1 Steph. Coram, iii. 375. 
 
 3 Williams & Brace's Admiralty, 297. 
 
 3 Ibid. 
 
 4 Ibid. 298. 
 
 5 Ibid. 314; Macph. Privy C. Pr. 175. 
 
 6 Browne on Divorce, 254. 
 
 7 Phill. Eccl. Law, 1257. 
 
 8 See Martin v. Mackonochie, 3 O. B. 
 D - 73° ; 4 Q- B. D. 697. 
 
Monster law dictionary. Mortgage 
 
 whatsoever. Monoplies were made illegal by stat. 21 Jac. 1, c. 3, except 
 in the case of patents for new inventions and a few other instances. 1 (See 
 Patent.') 
 
 MONSTER, in the technical sense, is a child " which hath not the 
 shape of mankind." 3 It cannot inherit or purchase land ; 3 and, therefore, 
 the birth of a monster does not entitle a husband to curtesy. 4 
 
 MONSTRANS DE DROIT is the remedy which a subject has 
 when the crown is in possession of property belonging to him, and title 
 of the crown appears from facts set forth upon record. In such a case the 
 claimant may present a monstrans de droit ("manifestation of right"), 
 either showing that upon the facts as recorded he is entitled to the 
 property, or setting forth new facts showing that he is entitled. Thus if 
 A. disseises B. of land and then dies without heirs, whereupon the land 
 is adjudged to the crown by inquest of office (q. v.), here the crown's title 
 appears upon record, and B.'s remedy is therefore by monstrans de droit, 
 setting forth his disseisin by A. 5 (See Ousterlemain ; Petition of Right; 
 Traverse!) 
 
 MONTESQUIEU.— Charles de S6condat, Baron de la Brede et de 
 Montesquieu, was born 1st January, 1689, and died 10th February, 1755. 
 He wrote L' Esprit des Lois, and various historical and other works. 6 
 
 MONTHS are either lunar, consisting of twenty-eight days, and of 
 which thirteen make a year : or calendar, which are of unequal lengths 
 according to the almanac or common calendar, and of which twelve make 
 a year. By the common law, a " month" means in matters temporal a 
 lunar month : in matters ecclesiastical, a calendar month ; 7 but in acts of 
 parliament, "month" means calendar month. 8 
 
 MOOTS are exercises in pleading, and in arguing doubtful cases and 
 questions, by the students of a inn of Court (q. v.) before the benchers of 
 the inn. 9 
 
 MORT D 'ANCESTOR. See Assise of Mort d 'Ancestor. 
 
 MORTGAGE. 10 — § 1. A mortgage is where one person (the mort- 
 gagor) secures to another (the mortgagee) the payment of money (whether 
 already owing, or advanced at the time, or to be advanced subsequently), 
 by vesting in him some property or interest in property, subject to the 
 mortgagor's right to redeem or buy it back by paying the m.oney within a 
 
 1 Steph. Comm. 266. Pr. Exch. 86 ; stat. 36 Edw. 3, c. 13. 
 
 3 Co. Litt. 7b; "non humanae figurae, 6 Holtz. Encycl. 
 
 sed alterius, magis animalis quam hominis. " ' Stephen, Comm. i. 283. 
 
 Dig. L. 16, fr. 135. 8 Stat. 13 & 14 Vict. c. 21, s. 4; see 
 
 3 Co. Litt. 7 b, 3 b. Migotti v. Colville, 4 C. P. D. 233. 
 
 1 Ibid. 29 b. As to the rules of the lJ See Manning's Serviens ad Legem, 
 
 Roman law, see Dig. I. 5, fr. 14 ; L. 16, fr. 262 ; Reeves, 247. 
 
 135 ; Savigny, Syst. ii. 9. 10 As to mortgages generally, see Fisher 
 
 5 Steph. Comm. iii. 656 ; Manning's on Mortgage ; Watson's Comp. Eq. 625. 
 
 537 
 
538 
 
 Mortgage 
 
 LAW DICTIONARY. 
 
 Mortgage 
 
 Mortgage 
 debt. 
 
 Mortgage of 
 stock. 
 
 Stock-mort- 
 
 Legal. 
 
 By convey- 
 ance, 
 
 by demise, 
 
 by assign- 
 ment and by 
 underlease. 
 
 (i) Upon 
 condition. 
 
 certain time, while the mortgagee has the right, after the lapse of a certain 
 time, of enforcing his security, or making it available in obtaining pay- 
 ment of the money advanced. The sum secured by the mortgage is called 
 the mortgage debt, although there is not necessarily any personal liability 
 on the part of the mortgagor (as, for instance, in the case of a mortgage 
 by trustees for raising portions.) The term mortgage debt is also used to 
 signify the security of the mortgagee, 1 that is, his interest in the property 
 mortgaged, and his other rights and remedies for obtaining satisfaction of 
 the debt. 
 
 § 2. The term mortgage is most commonly used as applied to land or 
 other realty and leaseholds, 2 but personalty may also be mortgaged, al- 
 though the transaction is not generally called a mortgage, except in the 
 case of ships 3 and choses in action {e. g., policies of assurance, copyrights, 
 &c). A mortgage of chattels in possession, such as furniture, is called a 
 bill of sale (q. v., § 5). § 3. A mortgage of stock in the funds, or of a 
 public company, &c, may be made. 4 Such a mortgage must be distin- 
 guished from what is technically called a stock mortgage, which is where 
 A. has sold a sum of stock [e. g., consols), and advanced the proceeds to 
 B., who covenants to replace the stock (that is, to purchase and transfer 
 to A. a like amount of stock) at a future time, and executes a mortgage of 
 land or other property to A. as security for the covenant. The object of 
 such a mortgage generally is that the mortgagee may obtain a higher rate 
 of interest than that paid on the stock, and that he may be protected from 
 the risk of the stock rising in price before the mortgage debt is repaid. 5 
 
 Mortgages are of three kinds, legal, equitable, and statutory. 
 
 I. § 4. A legal mortgage (so called because it was formerly the only 
 one recognized at common law) is where A. conveys property to B. by 
 deed, as a security for the repayment of money. If the property mort- 
 gaged consists of the fee simple of land, the deed contains a conveyance 
 in the ordinary form. If the mortgagor is 'the owner of the fee simple, 
 and grants a term of years as the mortgage security (formerly a common 
 mode of mortgaging land), it is called a mortgage by demise. If the 
 owner of a term or lease wishes to mortgage it, he may do so either by 
 an assignment or by underlease. If the terms of the lease are onerous, 
 the mortgagee generally prefers the latter mode, as he thus escapes lia- 
 bility to the original lessor. 6 A legal mortgage may take one of five 
 forms : ' — 
 
 (0 §5- The old form was a conveyance, with a condition that it should 
 be void on payment of the debt on a fixed day. In such a case the mort- 
 gagee had at common law an estate upon condition, and was called 
 "tenant in mortgage." 8 The condition'was sometimes called a defeasance 
 (q. v.). When the time for payment expired, the estate of the mortgagee 
 
 1 Williams, R. P. 422. 
 
 '' Davids. Conv. ii. 549 et seq. 
 
 3 As to which see Williams & Brace's 
 Admiralty, 27, and infra, § 17. 
 
 * Langton v. Waite, L. R., 2 Eq. 165 ; 
 4 Ch. 402. 
 
 5 See Blyth v. Carpenter, L. R., 2 Eq. 
 501 ; Whitney v. Smith, 4 Ch. 513. 
 
 6 Davidson, ubi supra. 
 
 7 See Hayes' Conv. ii. 119. 
 
 8 Litt - W 332. 333- 
 
Mortgage law dictionary. Mortgage 539 
 
 became absolute at law, but remained redeemable in equity, whence the Equity of 
 mortgagor was said to have an equity of redemption (q. v.). This form of redem P tion - 
 mortgage has long been obsolete in all cases except mortgages of copy- 
 holds (see Surrender) ; and as the rules of equity now prevail, it seems that 
 a conditional conveyance by way of mortgage cannot become absolute 
 until foreclosure. 
 
 (2) § 6. At the present day, a mortgage is, in ordinary cases, effected (2) With 
 by an absolute conveyance, followed by a proviso or agreement (express redlSptbn. 
 or implied), called the proviso for redemption, by which the mortgagee 
 
 agrees to reconvey the property to the mortgagor on payment of the debt 
 and interest by a certain date. Formerly, if the money was not repaid on 
 the day, the mortgage became irredeemable at common law, but the mort- 
 gagor had an equity of redemption until foreclosure or sale. 1 The common 
 law rule no longer exists. 2 § 7. Incident to both these kinds of mortgage Foreclosure, 
 is the right of foreclosure, a right which entitles the mortgagee to compel 
 the mortgagor either to pay off the debt within a reasonable time, or to 
 lose his equity of redemption. (See Foreclosure.) § 8. In addition to the 
 rights thus created by operation of law, a legal mortgage generally con- 
 tains elaborate stipulations and provisions, especially in the interest of the 
 mortgagee. The principal of these are the power of sale, which enables Power of sale. 
 the mortgagee to take possession of and sell the property, if default is 
 made in payment of the principal or interest beyond a certain period : 3 and 
 the various powers of leasing and managing the property, and appointing 
 a receiver, which are necessary for the proper management of a landed 
 estate. 4 (See Mortgagee in Possession.) 
 
 (3) § 9. A mortgage may also take the form of a conveyance by the (3) With 
 borrower to the lender (or his nominee), upon trust to sell it, and, after trust or sa e ' 
 satisfying the debt and expenses, &c, to pay the surplus proceeds (if any) 
 
 to the mortgagor. Such a mortgage does not give the right of foreclosure, 5 
 but in all other respects it seems to be similar to an ordinary mortgage ; 
 and hence, if the mortgagee remains in possession for more than twelve 
 years, without giving a written acknowledgment of the mortgagor's title, 
 the mortgagor's right to redeem is gone. 
 
 (4) § 10. A Welsh mortgage is said to be a mortgage under which the (4) Welsh 
 mortgagee is let into possession of the mortgaged land until the rents and mort S a S e - 
 profits repay the principal and interest, the property being redeemable at 
 
 any time on payment of the amount remaining due. 7 But this is some- 
 times described as " a mortgage in the nature of a Welsh mortgage," — 
 a genuine Welsh mortgage being defined as (5) the conveyance of an estate 
 redeemable at any time on payment of the debt, without payment of in- 
 terest by the borrower, or account of the rents and profits by the lender, 
 
 1 Williams, R. P. 424 ; White & Tudor's contains no such power. 
 
 L. C. ii. 919. 4 See also Judicature Act, 1873, s - 2 5> 
 
 2 Judicature Act, 1873, s. 25, § 11. § 5. 
 
 3 As to the frame of mortgage deeds, see 3 Hayes' Conv. ii. 119, n. 
 
 Davids, ii. 560 et seq. ; Elphins. 141 ; and 6 Stats. 3 & 4 Will. 4,'c. 27 ; 37 & 38 
 
 see stat. 23 & 24 Vict. c. 145, which confers Vict. u. 57, a. 7; Re Alison, 11 Ch. D. 
 
 a statutory power of sale on every mort- 284. 
 
 gagee of land, &c, where the mortgage 7 Watson's Comp. Equity. 
 
54Q Mortgage law dictionary. Mortgage 
 
 who is let into possession from the beginning, and takes the rents in lieu 
 of interest. 1 A Welsh mortgage does not admit of foreclosure, as the 
 mortgagee does not stipulate for redemption. 2 
 Sub-mort- § u. A sub-mortgage is a mortgage by a mortgagee of his mortgage 
 
 debt (§ i) with a transfer of the mortgage security; the original mort- 
 gagee is then called sub-mortgagor in respect of the sub-mortgage. 
 Further § 12. A further charge is an agreement that a subsisting mortgage shall 
 
 ^"f 6- be a security for a further advance by the mortgagee. § 13. A further 
 
 security. security is a mortgage of some additional property, or a grant of additional 
 
 remedies to secure a subsisting mortgage debt. 
 
 Equitable n. § 14. An equitable mortgage is one which passes only an equitable 
 
 estate or interest, either (1) because the form of transfer or conveyance 
 
 used is an equitable one, that is, operates only as between the parties to 
 
 it, and those who have notice of it, or (2) because the mortgagor's estate 
 
 or interest is equitable, that is, consists merely of the right to obtain a 
 
 conveyance of the legal estate. § 15. Of the former class, the principal 
 
 —by agree- kinds are 3 (a) an agreement to execute a legal mortgage : (b) a deposit 
 
 m ™ ' . of title deeds, share certificates, land certificates, or other documents 
 
 Memorandum °^ t ' t ^ e ' e ' tner w i tn or without a memorandum of deposit, that is, a 
 
 of deposit. statement in writing that the documents are deposited by way of security. 4 
 
 § 16. An equitable mortgage of the second class occurs in the case 
 
 of a mortgage of an equity of redemption; thus, if A. mortgages his estate 
 
 to B., and then mortgages it again to C, though in terms professing 
 
 to convey the legal estate, C. has an equitable mortgage, because it is in 
 
 effect only a charge on A.'s equity of redemption. 
 
 Statutory jjj § z y_ ^ statutory mortgage is one which, by virtue of the provisions 
 
 of a statute, produces almost the same effect as an ordinary mortgage, 
 
 —of land, without operating as a transfer or conveyance of the property. Thus, 
 
 a mortgage of land registered under the Land Transfer Act, 1875, is 
 
 effected by an " instrument of charge " executed by the mortgagor 
 
 — of ship. anc j entered on the register. 5 So a "mortgage" of a ship under the 
 
 Merchant Shipping Act, 1854, does not operate as a conveyance, but 
 
 merely gives the mortgagee a charge with a power of sale. 6 
 
 See Charge; Consolidation of Securities ; Pawn; Pledge; Receiver; Re- 
 conveyance; Tacking. 
 
 Etymology.] — Norman-French, mort, dead, gage, a pledge, from low Latin, vadium, 
 which in its turn comes from either Latin, vas, vadis, a surety, or Germanic, wetti, ved, 
 a bond, or from a combination of the two. 7 Notwithstanding the authority of Littleton, 
 who says that a mortgage is so called because if the feoffor does not pay on the 
 appointed day the land is dead to him, and if he does pay then it is dead to the feoffee, 8 
 it seems quite clear that " mortgage" originally denoted a pledge of land under which 
 the creditor took the rents and profits for himself, so that it was dead or profitless to the 
 
 1 5 Bythewood's Conv. 96. s Sect. 22 et seq. ; General Rules, 20 
 
 2 Fisher on Mortgage, 5, 11. et seq., Form 20. 
 
 3 Ibid. 33. 6 Sect. 66 et seq. ; Maude & Pollock, 
 i Russel v. Russel, I Bro. C. C. 269; Merch. Shipping, 33 et seq. 
 
 White & Tudor's L. C. i. 603. As to the ' Littre, Diet. v. Gage. 
 
 difference between a mortgage by deposit s Sect. 332. 
 
 and a lien, see Davids. Conv. ii. 86, u. 
 
Mortgagor LAW dictionary. Mortmain 541 
 
 debtor, as opposed to a pledge under which the rents and profits went in reduction of 
 the debt (vif gage, vivum vadium). 1 For another instance of mort in the sense of 
 profitless see Mortmain. For the history of pignus in Roman law, which strikingly 
 resembles that of our own law of mortgage, see Kuntze, Cursus, \\ 549 et seq., and for 
 the theory of mortgage in general see Vangerow, Pandecten, i. 797. 
 
 MORTGAGOR AND MORTGAGEE IN POSSESSION.— Mortgagor. 
 § i. A mortgagor in possession is in the same position as an ordinary 
 landowner, except that he must not prejudice the security by committing 
 waste. He is entitled to collect rents under leases granted before the 
 mortgage, until the mortgagee gives the tenants notice of the mortgage ; 
 and, under sect. 25 of the Judicature Act, 1873, he may bring actions in 
 his own name in respect of the possession or rents of the land. A limited 
 power of leasing is sometimes given to the mortgagor by the mortgage. 
 
 § 2. A mortgagee in possession is bound to account to the mortgagor Mortgagee. 
 for the rents and profits which he has received, or ought with proper 
 management to have received (see Account, §§ 7 et seq.), and is liable for 
 waste. 3 Powers of leasing and management, and of appointing a receiver, 
 are frequently given by the mortgage deed. (See Mortgage, § 8.) 
 
 MORTMAIN. — The term mortmain is applied to two classes of 
 statutes. 
 
 I. § 1 . The statutes prohibiting alienation in mortmain, in the strict Statutes of 
 sense of the word, that is, alienation of land to corporations, are Magna Mortmain. 
 Charta, the stat. De Viris Religiosis (7 Edw. 1), stat. Westminster II. 
 (13 Edw. 1, c. 32), and 15 Rich. 2. These statutes prohibited not only direct 
 grants of land to corporations, whether sole or aggregate, but also several 
 contrivances by which the religious houses, against which the statutes 
 were especially directed, attempted to elude their provisions. (See Use.) 
 Their effect was, that if land was granted to a corporation without a licence Licence in 
 from the crown, and from the feudal lords of whom it was mediately mortmain. 
 or immediately holden, then within a certain time the immediate lord 
 might enter on or take possession of the land, which thus became 
 forfeited to him ; or, if he failed to do so, each lord paramount had the Forfeiture, 
 right to enter in his turn, and in default of all of them the crown. In 
 modern times, however, the rights of intermediate lords became unim- 
 portant, and by the stat. 7 & 8 Will. 3, c. 37, it was enacted that the crown 
 for the future may grant licences to aliene or take land in mortmain, of 
 whomsoever it may be holden. Many corporations are exempt from the 
 operation of the Statutes of Mortmain : such are the universities and 
 colleges of Oxford and Cambridge, associations formed under the Com- 
 panies Acts, the Building Societies, Friendly Societies, and Industrial and 
 Provident Societies Acts, &c. 3 
 
 1 See Glanvil, x. 6, 8; Loysel, Inst. 3 Britton, 90 a; Co. Litt. 2 b, 98 b; Bl. 
 Cout. 483 ; Fisher, 2, n. (e). Comm. ii. 267 ; Steph. Comm. i. 454 ; 
 
 2 Watson, Comp. Equity, 670. As to Tudor, Char. Trusts, 36 ; Digby's Hist. R. 
 the effect of the ordinary attornment clause P. 98, 150, 256, 325. See also the acts of 
 in a mortgage in making the mortgagee a 18 & 19 Vict. c. 124, and 33 & 34 Vict, 
 mortgagee in possession without any act on c. 34, enabling charities, &c. to invest 
 his part, see Re Stockton Iron Co., 10 Ch. D. money in real securities. 
 
 335, 356; Ex parte Punnett, 16 Ch. D. 226. 
 
542 
 
 Mortuaries 
 
 LAW DICTIONARY. 
 
 Motion 
 
 Charitable 
 Uses or 
 Mortmain 
 Act. 
 
 II. § 2. In the popular use of the word, the Mortmain Act is the act 
 of 9 Geo. 2, c. 36 (more accurately called the Charitable Uses Act), which 
 prohibits gifts of land or of money to be laid out in the purchase of land 
 for any charitable purposes, except by absolute and immediate conveyance 
 by deed, executed and enrolled with certain formalities, the object being 
 to prevent improvident alienations or dispositions of land by languishing 
 or dying persons to the disherison of their lawful heirs. Therefore, all 
 gifts by will of land and of money arising out of or connected with land, 
 for charitable purposes, are void. 1 The act was passed to supplement the 
 provisions of the Statutes of Mortmain {supra, § 1 ), and of the act against 
 superstitious uses (q. v.) ; because, although charities are not generally 
 corporations, yet gifts to them are practically in perpetuity, and are there- 
 fore contrary to the policy of the law, which favours free dealing in land. 
 The Charitable Uses Act is, however, quite distinct from the Statutes of 
 Mortmain ; and, therefore, a corporation which has power to hold land in 
 mortmain cannot take land by a gift contravening the provisions of the 
 Charitable Uses Act. 2 
 
 Etymology.] — Norman-French, morte meyn? low Latin, mortua manus, a dead 
 hand, because " the lands were said to come to dead hands as to the lords, for that by 
 alienation in mortmaine they lost wholly their escheats, and in effect their knights-services 
 for the defence of the realme ; wards, marriages, reliefes, and the like ; and therefore 
 was called a dead hand, for that a dead hand yeeldeth no service." 4 
 
 Publichealth. MORTUARIES.— § i. In the modern sense of the word, a mortuary 
 is a place for the reception of dead bodies before interment. Under the 
 Public Health Act, 1875, ss. 141, 142, every local sanitary authority 
 is empowered to provide a mortuary, and to cause dead bodies to be 
 removed to it in cases where their retention in dwelling-houses might be 
 prejudicial to the health of the inmates. 
 
 Church law. § 2. In church law, mortuaries are a sort of ecclesiastical heriots, 
 
 being a customary gift claimed by and due to the minister in very many 
 parishes on the death of one of his parishioners. The nature of the gift 
 formerly varied according to the custom of the place, being frequently the 
 next best chattel of the deceased, after the lord's heriot. But by stat. 
 21 Hen. 8, c. 6, mortuaries were fixed at certain sums, in no case exceed- 
 ing IOJ. 5 
 
 MOTION. — § 1. A motion is an application to a Court or a judge. 
 Some motions are made summarily, without reference to any pending 
 action, as where application is made for a writ of habeas corpus (q. v.). 
 Other motions are employed to obtain a judgment on the main question 
 
 1 See Tudor's Char. Trusts, 39 et seq. ; 
 Williams, R. P. 69 et seq., where the acts 
 relaxing some of the stringent provisions of 
 the stat. 9 Geo. 2 are referred to. As to 
 what kinds of property (debentures, &c.) 
 are within the act, and the effect of a be- 
 quest to a charity out of a fund partly 
 arising from land, see Watson's Comp. Eq. 
 Abatement, § 4, and Debenture, § 11; 
 
 Attreey.Hawe, 9 Ch. D. 337; Ashworth 
 v. Munn, 15 Ch. D. 363. 
 
 2 Luckraft v. Pridham, 6 Ch. D. 205. 
 
 3 Britton, 32 b; Loysel, Inst. Cout. 
 gloss. 
 
 4 Co. Litt. 2 b. 
 
 6 Bl. Comm. ii. 425 ; Phill. Eccl. Law, 
 873 ; and see stats. 13 Ann. c. 6, and 28 
 Geo. 2, c. 6. 
 
Motion for Decree LAW DICTIONARY. Alotionfor Judgment 543 
 
 in an action (see Motion for Judgment) ; but these are not motions in the 
 sense in which the word is commonly used, namely, to denote an 
 interlocutory application in an action. In admiralty practice, motions 
 may be made either in Court or in chambers ; but, as a general rule, 
 a motion is an oral application made by counsel in open Court, as opposed 
 to a petition, which is a written application, and to a summons, which is 
 made in chambers. 1 
 
 §2. Ordinarily a motion is only made after notice has been given On notice; 
 to the other side : sometimes, however, a motion is made ex parte. In ex parte. 
 common law practice, too, a motion is sometimes for a rule to show 
 cause : in such a case the applicant moves ex parte for a rule calling 
 upon the other side to show cause to the Court on a day named why the 
 order asked for should not be made upon him. (SeeJZule; Order.) 
 
 § 3. A motion of course is a motion which is granted by the Court as a of course, 
 matter of course : for an instance, see Foreclosure. 
 
 § 4. In chancery practice, if counsel is unable to make a motion on the Saving 
 day for which notice has' been given, he is entitled/ as a matter of right, motlon - 
 "to save the motion," that is, to adjourn it to the next motion day by 
 mentioning it to the Court, without the consent of the other side. 2 
 
 § 5- If counsel does not either bring on or save his motion on the Abandoned 
 day for which notice has been given (provided of course he has had 
 an opportunity of being heard), the motion is said to be abandoned, and 
 the other side is entitled to his costs of it. 
 
 § 6. As to motions by way of appeal, see Appeal. 
 
 MOTION FOR DECREE.— Under the practice of the Court of Chancery the 
 most usual mode of bringing on a suit for hearing when the defendant had answered was 
 by motion for decree. To do this the plaintiff served on the defendant a month's notice 
 of his intention to move for a decree. 3 (See Decree, § 5; Further Consideration?) 
 
 MOTION FOR DIRECTIONS. — Formerly, in divorce and probate practice, 
 after the pleadings had been concluded, it was necessary to make a motion to obtain the 
 directions of the Court as to the manner in which the questions of fact raised by the 
 pleadings were to be tried. 4 This practice has recently been abolished, and a cause at 
 issue is now set down for trial in accordance with a general order of the Court. 5 
 
 MOTION FOR JUDGMENT is the mode of obtaining the judg- 
 ment of the High Court in an action in all cases where no other mode of 
 obtaining it is prescribed. 6 Thus, if at the trial of an action the judge does 
 not direct any judgment to be entered, the proper course is for the party 
 who thinks the result of the trial in his favour to move for judgment on 
 the verdict or findings at the trial.' So, if the defendant makes default in 
 delivering his defence, the plaintiff must set down the action on motion 
 
 1 Daniell, Ch. Pr. 1437 ; Steph. Comm. xxxvi. 5. ,.,.,„, 
 
 iii. 627 ■ Williams & Brace's Adm. 302. 5 Probate, Divorce and Admiralty Rules, 
 
 a Daniell, 1444. s. 205 (10th August, 1880). 
 
 3 Hunter's Suit, 59; Darnell's Ch. Pr. ° Rules of Court, xl. 1 ; Smith's Action, 
 722. 146- 
 
 4 Browne on Divorce, 229 ; Browne's 7 See Rules of Court, xl. 3. 
 Probate Pr. 290. See Rules of Court, 
 
544 Motion for New Trial law dictionary. Municipal Corporation 
 
 for judgment, unless it is of such a nature that he may enter judgment for 
 his claim at once {e.g. where it is for a debt, damages, recovery of land, or 
 the like). 1 
 
 § 2. A motion for judgment requires to be set down in the cause list, 
 and notice of it is given to the other side. 
 
 MOTION FOR NEW TRIAL. See Trial. 
 
 MOTION IN ARREST OF JUDGMENT. See Arrest of Judg- 
 ment. 
 
 MOTION TO SET ASIDE JUDGMENT is a step taken by a 
 party in an action in the High Court who is dissatisfied with the judgment 
 directed to be entered at the trial of the action, on the ground either that 
 the finding of the jury has been wrongly entered, or that the judgment 
 itself is wrong. The motion is made to the Court of Appeal. 2 
 
 MULIER in the old books is applied to a son, daughter, brother, sister, &c. to 
 signify one born in lawful wedlock, or legitimate, as opposed to a bastard. (Norman- 
 French, muliere ; from Latin, mulier, a wife. 3 ) The expression was formerly of import- 
 ance in what was called the case of " bastard eigne and mulier puisne" (" eldest son a 
 bastard and younger son legitimate"), which occurred where a man had a bastard son, 
 and afterwards married the mother and by her had a legitimate son. If the father died 
 and the bastard entered on his land and died seised of it, so that it descended to his 
 issue, the mulier puisne was barred of his right to the land. 4 The doctrine seems to 
 have been abolished by 3 & 4 Will. 4, c. 27, s. 39. 5 (See Bastard.) 
 
 MULTIFARIOUSNESS. — Under the practice of the Court of 
 Chancery, a bill of complaint was open to a demurrer for multifariousness 
 when it attempted to embrace too many objects or causes of suit. 6 
 Under the new practice, a plaintiff may include as many causes of action 
 as he pleases in one writ, except in the case of actions for the recovery 
 of land, actions by executors and trustees in bankruptcy, &c, and in the 
 case of one action being brought for several claims which cannot be 
 conveniently disposed of together. 7 {See Joinder, § 1.) 
 
 MULTIPLY, — When a thing is divided into several parts, 'and 
 something which was dependent on or annexed to it thenceforward 
 becomes dependent on or annexed to each part of it, the accessary is said 
 to be multiplied. Thus, if a copyhold tenement for which a heriot is due 
 to the lord on the death of each successive tenant, is divided into 
 parcels and conveyed to different persons, the heriot will be multiplied, 
 i. e., a heriot will be due for each parcel. 8 (See Apportionment ; Entire.) 
 
 MUNICIPAL CORPORATION is a corporation consisting of all 
 or part of the inhabitants of a town, and having the power and duty 
 
 1 Rules of Court, xxix. 10. B Darnell's Ch. Pr. 283. 
 
 3 Ibid. xl. 4. 7 Rules of Court, xvii. 
 
 3 Britton, 203 b ; Co. Litt. 243 b. 8 Elton, Copyh. 183, citing Attree v. 
 
 4 Litt. §§ 399 et sea. Scutt, 6 East, 481. 
 6 Bl. Comm. ii. 248, n. (14). 
 
545 
 
 Municipal Law law dictionary. Mate 
 
 of enforcing the good rule and government of the place, including the 
 lighting, cleansing, paving and improving of the streets, the prevention of 
 nuisances, &C 1 Most municipal corporations (London being the princi- 
 pal exception) are regulated by the Municipal Corporations Act, 1835,* 
 which fixes the qualification for the burgesses or members of the cor- 
 poration, and provides for the election in each borough of a mayor, 
 aldermen and council: for the appointment of a watch committee 
 to regulate the police of the borough, and for the payment of the 
 expenses of the borough out of the borough fund and rate. Most 
 municipal corporations are also the authorities for carrying out the 
 provisions of the Public Health Act, 1875, the Artizans' Dwellings Act, 
 1875, and similar acts, in their respective districts. 
 
 § 2.. Corporations regulated by the M. C. Act, 1835, are trustees of the 
 corporate property for the benefit of their respective boroughs. 3 
 
 See Borough; Justice of the Peace; Metropolitan Board of Works; Re- 
 corder. 
 
 MUNICIPAL LAW. See Law, § 3. 
 
 MUNIMENTS.— Title deeds and other documents relating to the 
 title to land are sometimes called muniments, from the Latin word munio, 
 which signifies to defend or fortify, because they enable the owner to 
 defend his estate. 4 
 
 MURDER is the crime of unlawful homicide with malice aforethought 
 (see Homicide ; Malice) ; as where death is caused by an act done with the 
 intention to cause death or bodily harm, or which is commonly known to 
 be likely to cause death or bodily harm. Thus, if A. finds B. asleep 
 on some straw and lights the straw, whether he means to kill B., or 
 whether he means to do B. serious injury without killing him, in either 
 case if B. is burnt to death, A. is guilty of murder. So if A. shoots at B., 
 intending to kill him, and kills C. instead, A. is guilty of murder. 
 
 § 2. Murder is punishable by death (q. v.) ; attempts to murder are 
 punishable by penal servitude for life. 5 
 
 § 3. A person who kills himself in a manner which, in the case Self-murder. 
 of another person, would amount to murder, is guilty of self-murder or 
 suicide (q. v. and see Felo de se). 
 
 MUSIC. See Copyright ; Right of Representation and Performance. 
 
 MUTE. — A prisoner is said to stand mute when, being arraigned for 
 treason or felony, he either makes no answer at all, or answers foreign to 
 the purpose, or with such matter as is not allowable, and will not answer 
 
 'Grant on Corporations, 16; Steph. Brecon, 10 Ch. D. 204. 
 
 Comm. iii. 31 et seq. 4 Termes de la Ley. 
 
 * See the Municipal Corporations (New 5 Stephen's Crim. Dig. 144 et seq. ; 
 
 Charters) Act, 1877. Russell on Crimes, i. 641 et seq. ; stat. 24 
 
 3 Grant, 108 ; Att.-Gen. v. Mayor of & 25 Vict. c. 100. 
 
 S. N N 
 
546 Mutiny Act law dictionary. Mutual Promises 
 
 otherwise. In the first case, a jury must be sworn to try whether the 
 prisoner stands mute of malice [i. e., obstinately) or by visitation of God 
 (e.g., being deaf or dumb). If he is found mute by visitation of God, the 
 trial proceeds as if he had pleaded not guilty ; if he is found mute 
 of malice, or if he will not answer directly to the indictment, the Court 
 may order a plea of not guilty to be entered, and the trial proceeds 
 accordingly. 1 
 
 MUTINY ACT.— The Bill of Rights (stat. i W. & M. (2), c. 2) de- 
 clares that the raising or keeping a standing army within the kingdom in 
 time of peace, unless it be with consent of parliament, is against law. 
 Therefore, to enable the army to be kept up, an act of parliament is 
 annually passed authorizing this to be done. Formerly this annual act 
 contained elaborate provisions for the enlistment, payment and billeting 
 of soldiers, for the punishment of mutiny and desertion, and generally for 
 the government of the army, 2 and was hence called the Mutiny Act ; but 
 these provisions have recently been consolidated in one act, called the 
 Army Discipline and Regulation Act, 1879; and, therefore, in the annual 
 act it is sufficient to provide that the Army Discipline and Regulation Act, 
 1879, shall remain in force for one year. 
 
 MUTUAL CREDITS-MUTUAL DEALINGS.-§ 1. The phrase 
 " mutual credits " used in the Bankruptcy Acts denotes such dealings be- 
 tween two persons as must in their nature terminate, or have a tendency 
 to terminate, in debts. 3 The "mutual credit clauses" in the acts provide 
 that where there have been mutual credits, mutual debts, or other mutual 
 dealings between the bankrupt and one of his creditors, an account shall 
 be taken of what is due from the one party to the other in respect of such 
 mutual dealings, and the sum due from the one party shall be set off 
 against any sum due from the other party, and the balance of such ac- 
 count, and no more, shall be claimed or paid on either side respectively. 4 
 The effect produced by the mutual credit clause is, therefore, a species of 
 set-off (q. v.), but differs from the ordinary set-off between solvent persons 
 in having for its object, not to prevent cross actions, but to avoid the in- 
 justice, which would otherwise arise, of compelling a creditor to pay the 
 trustee in bankruptcy the full amount of the' debt due from him to the 
 bankrupt, while the creditor would perhaps only receive a small dividend 
 under the bankruptcy on the debt due from the bankrupt to him. 5 
 
 MUTUAL PROMISES. See Consideration, § 5 ; Promise. 
 
 1 Steph. Comm. iv. 391 ; stat. 7 & 8 tracts, 785 ; Rose v. Hart, 8 Taunt. 449 ; 
 Geo. 4, c. 28. In Reg. v. Berry (I Q. B. Smith's L. C. ii. 296. 
 
 D. 447) a plea of "not guilty" was ordered 4 Bankruptcy Act, 1869, s. 39. See 
 
 to be entered for a prisoner who stood B. A. 1849, s. 171. 
 
 mute by visitation of God. 6 Robson's Banlcr. 308, 3 14. SeeAstley 
 
 2 Steph. Comm. ii. 589. v. Gurney, L. R., 4 C. P. 714; In re 
 
 3 Robson's Bankr. 312 ; Chitty on Con- Winter, 8 Ch. D. 225. 
 
Mutuality LAW DICTIONARY. Nationality 547 
 
 MUTUALITY. — § 1. In every agreement the parties must, as Mutuality of 
 regards the principal or essential part of the transaction, intend the same assent 
 thing ; that is, each must know what the other is to do : this is called 
 mutuality of assent. 1 
 
 § 2. In a simple contract arising from agreement, it is sometimes Mutuality of 
 the essence of the transaction that each party should be bound to do obli £ atl011 - 
 something under it: this requirement is called mutuality; thus,, an 
 agreement by A. to refer a question between him and B. to arbitration 
 ,is not enforceable, unless B. also agrees to be bound by the award ; and 
 an agreement by C. with D. to learn a trade is not binding unless there is 
 also an undertaking by D. to teach him. 2 This may be called mutuality 
 of obligation. 
 
 § 3. Mutuality of remedy is where each party can enforce the contract Mutuality of 
 against the other; thus, a vendor of land can enforce specific perfor- leme y " 
 mance of the contract by the purchaser, becSuse the purchaser could 
 have done the same to him; on the other hand, mutuality of remedy 
 does not exist where one of the parties to a contract is under disability, 
 or where it is required by the Statute of Frauds to be in writing, and he 
 has not signed it, because, though he can enforce it, the other party 
 cannot. 3 
 
 N. 
 
 NAME AND ARMS CLAUSE is the popular name for the clause, 
 sometimes inserted in a will or settlement by which property is given to 
 a person, for the purpose of imposing on him the condition that he shall 
 assume the surname and arms of the testator or settlor, with a direction 
 that if he neglects to assume or discontinues the use of them, the estate 
 shall devolve on the next person in remainder, and a provision for 
 preserving contingent remainders. 4 
 
 NATIONAL DEBT. See Fund, § 3. 
 
 NATIONALITY is that quality or character which arises from the 
 fact of a person's belonging to a nation or state. Nationality determines 
 the political status of the individual, especially with reference to 
 allegiance {q. v.), while domicile determines his civil status. Nationality 
 arises either by birth or by naturalization (q. ».). 6 
 
 1 Chitty on Contracts, 13. "territoriality" {q. v.) for the purpose of 
 
 2 Ibid. 14. distinguishing the case of a nation having 
 1 Ibid. 13. no national territory, e.g. the Jews) ; "West- 
 4 Davidson, Conv. iii. 277. lake, Priv. Int. Law, 5 ; Udny v. Udny, 
 6 See Savigny, Syst. viii. § 346 (where L. R., 1 H. L. (Sc.) 441. 
 
 "nationality" is also used as opposed to 
 
 N N 2 
 
548 Natural-bom Subject LAW dictionary. Naval Courts 
 
 NATURAL-BORN SUBJECT. See Allegiance; Nationality; 
 Naturalization, § 3. 
 
 NATURAL RIGHTS are those rights which supplement the direct 
 rights of ownership {q. v.), by imposing duties on other persons. Thus 
 every owner of land has prima facie the right to prevent his neighbours 
 from polluting the air passing over his land, and from disturbing, 
 diminishing or polluting the water flowing through his land ; he is also 
 entitled to so much support from his neighbour's land as is necessary to 
 keep his own land at its natural level. These are called natural rights, as 
 opposed to acquired rights, such as easements, profits a prendre, fran- 
 chises, &c l (See the various titles : also Access; Air; Navigation ; Support; 
 Water.) 
 
 NATURALIZATION takes place when a person becomes the subject 
 of a state to which he was before an alien. The effect of naturalization 
 is that the naturalized subject thereby acquires all political and other 
 rights, powers and privileges, and becomes subject to all obligations 
 to which natural-born members of the state are entitled and subject, 
 except that he cannot divest himself of his obligations towards the state 
 of which he was formerly a subject, without the consent of that state. 
 (See Expatriation.) 
 
 § 2. An alien becomes a naturalized British subject by obtaining 
 a certificate of naturalization from a Secretary of State in accordance with 
 the provisions of the Naturalization Act, 1870, which enlarges the 
 powers given by 7 & 8 Vict. c. 66 ; a special certificate of naturalization 
 may be obtained for the purpose of quieting doubts as to the right 
 of a person to be a British subject (s. 7). 2 Since the passing of the 
 above-mentioned acts, naturalization by private act of parliament, which 
 was formerly the only method of becoming naturalized, 3 has become 
 unusual save in exceptional cases. 4 
 
 §3. The term "naturalization" is also sometimes applied to that 
 operation of law by which the children and grandchildren born abroad 
 of English natural-born subjects are themselves natural-born subjects "to 
 all intents, constructions and purposes." 6 (See Allegiance, § 5 ; Denizen ; 
 Expatriation ; Nationality.) 
 
 NAVAL COURTS are held abroad in certain cases to inquire into 
 
 . complaints by the master or seamen of a British ship, or as to the 
 
 wreck or abandonment of a British ship. A Naval Court consists 
 
 of three, four or five members, being officers in her Majesty's navy, 
 
 consular officers, masters of British merchant-ships or British merchants. 
 
 1 Some writers use the term "natural Holtz. Encycl. 
 rights" to include all rights arising from 3 1 Bl. 374. 
 ownership (Phear on Water, 7) ; but this is 4 Rep. on Natur. App. 8. 
 inconvenient and unnecessary. See Pro- 5 Stats. 7 Ann, c. 5 ; 13 Geo. 3, t. 21 ; 
 frietary Rights. as to the proper construction of the acts, 
 
 2 Cutler on Naturalization; Block, Diet.; see Westlake, Priv. Int. Law, n. 
 
Navigable LAW dictionary." Navigation Acts 
 
 It has power to supersede the master of the ship with reference to which 
 the inquiry is held, to discharge any of the seamen, to decide questions 
 as to wages, send home offenders for trial, 1 or try certain offences in a 
 summary manner. 2 
 
 NAVIGABLE— NAVIGATION.— § i. The right of navigation is 
 the right of the public to use an arm of the sea, a river, or other piece of 
 water, as a highway for shipping, boating, &c, including the right to 
 anchor in it. 3 It is a right of way and not a right of property, and 
 therefore the owner of the bed of a river over which the public have by 
 user acquired a right of navigation may make any erection on it which 
 does not interfere with the navigation warranted by that user* (see High- 
 way). In the case of estuaries and navigable tidal rivers, however, the 
 beds of which are prima facie vested in the crown, the ownership of the 
 soil is wholly subject to the public right of navigation, and no part of it 
 can be used so as to derogate from or interfere with that right. 6 A river 
 which is subject to a right of navigation is said to be " navigable." 
 
 As to navigation on the sea, see High Seas. 
 
 § 2. The question whether a river is navigable or not seems to depend 
 partly on its size and the formation of its bed, and partly on the use to 
 which it has been put ; if a river will admit ships and it has been used 
 for shipping purposes by the public it is a navigable river, whether it be 
 tidal or non-tidal, and whether it flow through or over private land or land 
 belonging to the crown. 6 As a rule, however, an arm of the sea or a tidal 
 river with a broad and deep channel is navigable. 7 
 
 § 3. Where the public have acquired the right of navigation on a 
 private or non-tidal river, the original exclusive right of the riparian 
 owners to fish in it is not thereby affected. 8 (See Fishery.) 
 
 § 4. Obstructing the navigation of a navigable water is a public nuisance. 9 
 (See Nuisance?) 
 
 NAVIGATION ACTS were various statutes (especially 12 Car. 2, 
 c. 18) passed for the encouragement and protection of British shipping 
 by excluding foreign ships from trading with British colonies and even 
 with Great Britain. They have now been almost wholly repealed, the 
 principal exceptions being certain provisions designed to enforce re- 
 ciprocity in commerce between British and foreign countries, that is, to 
 prevent British shipping from being placed at a disadvantage in foreign 
 countries ; for this purpose the Privy Council has power to impose 
 retaliatory restrictions and duties on foreign shipping. 10 
 
 1 Merch. Shipp. Act, 1854, ss. 260 et 6 See Hale, De Jur. Mar. part i. c. 3 ; 
 seq. ; Maude & Pollock, 163. Lyon v. Fishmongers' Co., I App. Ca. 662; 
 
 2 M. S. Act, 1855, s. 28. Original Hartlepool Colleries Co. v. Gibb, 
 
 3 Gann v. Free Fishers of Whitstable, 5 Ch. D. 713. 
 
 11 H. L. C. 192; Coulson & Forbes on 7 Coulson & Forbes, 413. 
 
 Waters, 39b. 8 Ibid. 59. 
 
 * Orr Swing v. Colquhoun, 2 App. Ca. '■> Ibid. 421. 
 
 839; Phear on Water, 53. '° Steph. Comm. iii. 143 ; stat. 16 & 17 
 
 5 Coulson & Forbes, 413. Vict. ss. 324 et seq. ; Customs Consolida- 
 
 tion Act, 1876. 
 
 549 
 
55° Ne exeat Regno law dictionary. Necessaries 
 
 NE EXEAT REGNO is a writ which issues from the High Court of 
 Justice (in the Chancery Division) to restrain a person from going out 
 of the kingdom without the Queen's licence or the leave of the Court. 
 It is a high prerogative writ, which was originally applicable to purposes 
 of state only, but was afterwards extended to private transactions. 1 It is 
 employed when a person, against whom another has an equitable claim for 
 a sum of money actually due, is about to leave the country for the purpose 
 of evading payment, and the absence of the defendant would materially 
 prejudice the plaintiff in the prosecution of his action. 3 
 
 NE UNQUES EXECUTOR (= "never executor") is the plea by 
 which, under the old common law practice, a person sued as executor of 
 a deceased person denied that he filled that office : similarly with the plea 
 ne unques administrator? 
 
 Infant. NECESSARIES.— § i. Notwithstanding the general rule that an 
 
 infant is incapable of binding himself by a contract, he may make a 
 contract for necessaries : and the word necessaries is not confined in its 
 strict sense to such articles as are necessary to the support of life, but 
 extends to articles fit to maintain the particular person in the state, 
 degree, and station of life in which he is. 1 (See Infant.) 
 
 Lunatic. g 2 -phe same doctrine applies to lunatics. 5 
 
 Married § 3. As a general rule every wife has an implied authority to contract 
 
 with tradesmen for necessaries suitable to the degree and estate of her 
 husband, so as to make him liable to the tradesmen, unless he has 
 sufficiently supplied her with articles of the kind in question, or unless 
 she has a separate income. If the husband and wife are living together, 
 this authority is implied, in the case of ordinary household necessaries, 
 from the usual practice of persons in the particular class of life, 
 according to which a wife has the management of such matters : if, 
 therefore, the husband wishes to put an end to this authority, he must 
 give notice to the tradesmen that it is withdrawn. But this principle ■ 
 does not apply to such things as dresses, jewellery, &c. ; and, therefore, 
 the husband need not give notice to the tradesmen -that his wife has no 
 authority to pledge his credit for such things, unless, by his previous 
 conduct (as by habitually allowing his wife to purchase such things on 
 credit and by paying for them), he has given her an implied authority to 
 do so. Where, however, the husband turns the wife out of doors, or so 
 conducts himself that she is obliged to leave him, he is under a legal 
 duty to maintain her ; and if he does not do so, she has power to provide 
 for herself at his expense by pledging his credit for necessaries, such as 
 
 1 Daniell, Ch. Pr. 1548; Hunter's Suit, 4 Co. Litt. 172 a; Chitty on Contracts, 
 145 ; Sobey v. Sobey, L. R., 15 Eq. 200 ; 138 ; Pollock on Contract, 46 ; Peters v. 
 Beames on Ne Exeat ; Rules of Court Fleming, 6 M. & W. at p. 46 ; Ryder v. 
 (August, 1875), r - I0 - Womhwell, L. R., 4 Exch. 32. 
 
 2 Drover v. Beyer, 13 Ch. D. 242. See 6 Pope on Lunacy, 239 ; Pollock, 74 ; 
 Debtors Act, 1869, s. 2. Baxters. Earl of Portsmouth, 5 B. & C. 
 
 3 Williams, Ex. 1794. 170; 7 D. & R. 614. 
 
 woman. 
 
Negative Pregnant law dictionary. Negligence 551 
 
 food, apparel, lodging, &c. And as this authority is conferred on her by 
 the law, and not by the husband, he cannot revoke or destroy it. 1 
 
 § 4. In the case of ships, the term " necessaries " means such things Merchant 
 as are fit and proper for the service in which the ship is engaged, and s 'PP 1 "^ 
 such as the owner, being a prudent man, would have ordered if present ; 
 e.g., anchors, rigging, repairs, victuals. 3 The master may hypothecate 
 the ship for necessaries supplied abroad so as to bind the owner. 3 (See 
 Action, §§ 11 et seq.) 
 
 § 5. In criminal law, the wilful neglect to provide necessaries for Criminal law. 
 children or apprentices is a misdemeanor. 4 
 
 NEGATIVE PREGNANT, in pleading, is where a person gives an 
 evasive answer to an allegation of his opponent by answering it literally, 
 without answering the substance of it. Thus, if it is alleged that A. 
 received a certain sum of money, and he denies that particular amount, 
 this is a negative pregnant, because the substance of the allegation is 
 the receipt of some money, and not the particular amount received. A. 
 should, therefore, answer either that he did not receive any money at all, 
 or state how much he received. Similarly, when something is alleged to 
 have happened under certain circumstances, it is not sufficient to deny that 
 it happened under those particular circumstances ; but the party must state 
 whether it happened at all. 5 
 
 NEGLIGENCE is want of proper care, and may consist in doing 
 something which ought not to be done, or in not doing something which 
 ought to be done. 6 The legal effect of negligence is either civil or 
 criminal. 
 
 I. In civil law, negligence may operate either to create or to defeat a Civil law. 
 right of action. 
 
 (1) § 2. Negligence which creates a right of action is a species of tort 
 or injury giving rise to a right to damages, and may exist either (a) where 
 the parties are strangers, or (b) where they stand in a special relation to 
 one another, (a) To the first class belong those cases where one person Towards 
 by want of care in the use of his own property, or in the pursuit of his s lan 2 ers 
 own private advantage or pleasure, causes injury to some one else; 7 
 thus, a person who keeps his buildings in a bad state of repair, is liable 
 for any injury caused thereby to a person having a right to be in or 
 near them. 8 So where a man's land is subject to an easement for the 
 
 1 Debenhani v. Mellon, 5 Q. B. D. at p. 5 Rules of Court, xix. 22. 
 
 398 ; S: C, 6 App. Ca. 24. The older 6 See Smith v. L. &> S. W. Rail. Co., 
 
 authorities {Manly v. Scott, Montague v. L. R., 5 C. P. at p. 102 ; Underhill on 
 
 Benedict, Jolly v. Rees, &c), will be found Torts, 135. Mr. Campbell (Law of Negh- 
 
 fully discussed in Smith's L. C. ii. 429. gence, passim) follows Austin m defining 
 
 2 Maude & Pollock, Merch. Shipp. 71, negligence as the state of mind of the doer 
 113. or omitter ; but in ordinary parlance negli- 
 
 3 Ibid. 68. gence means both the state of mind and 
 1 Stats. 24 & 25 Vict. c. 100, a . 26 ; 31 the act or omission, and there is no reason 
 
 & 32 Vict. c. 122, s. 37. See also the why it should not. One without the other 
 
 statutes passed to- prevent parents from would give no right of action. 
 
 allowing their children to become charge- 7 Campbell, 25. 
 
 able to the parish: Steph. Comm. ii. 290 8 Terry v : Ashton, 1 Q. B. D. 314. See 
 
 et seq. also Mersey Docks Trustees v. Gibbs, L. R. , 
 
55= 
 
 Negligence 
 
 LAW DICTIONARY. 
 
 Negligence 
 
 Negligence in 
 law and in 
 act. 
 
 Arising from 
 contract. 
 
 Slight, ordi- 
 nary and 
 gross. 
 
 Gross negli- 
 gence in con- 
 crete) : 
 
 in abstracto. 
 
 Negligence 
 by estoppel 
 and contri- 
 butory neg- 
 ligence. 
 
 support of the buildings on his neighbour's land, and he excavates 
 his land, so that the buildings are injured, he is liable to an action, 
 no matter how carefully he may have done it ; hence this kind of negli- 
 gence (meaning the invasion of a jus in rem) is sometimes called 
 negligence in law, to distinguish it from negligence in fact. 1 (b) § 3. To 
 the latter class belong those cases in which a person by entering into 
 a contract with another puts himself under an obligation to exhibit a 
 certain degree of care, and fails to do so, whether the obligation is 
 created by the contract itself, or is imposed by law. It is with reference 
 to these cases that the division of negligence into slight, ordinary, and 
 gross, becomes important : thus, the general rule in the law of bail- 
 ments {q. v.) is that when a bailment is made for the sole benefit of the 
 bailee, he is liable for slight negligence ; when it is made for the benefit 
 of both, he is liable for ordinary negligence; and when it is made for the 
 sole benefit of the bailor, the bailee is only liable for gross negligence. 3 
 Ordinary negligence is the want of that care which a reasonable man, 
 guided by those considerations which ordinarily regulate the conduct 
 of human affairs, would presumably have exercised under the circum- 
 stances of the particular case ; 3 and slight negligence is the want of 
 a greater degree of care. § 4. The term gross negligence is chiefly 
 used to mean, not that the person accused of it has used less care 
 than a reasonable man would have used, but that he has used less care 
 than he himself would presumably have used if he had been acting 
 in his own affairs, so that what would be gross negligence in a prudent 
 man may not be so in a reckless one. Thus, if a man for his own 
 convenience places goods for safe keeping without reward with a man 
 who " is an idle, careless, drunken fellow, and comes home drunk, 
 and leaves all his doors open, and by reason thereof the goods happen 
 to be stolen and his own, yet he shall not be charged, because it is the 
 bailor's own folly to trust such an idle fellow." 4 §5. It is, however, 
 also used to signify the want of that skill and care which persons 
 exercising certain employments are bound to exhibit, even when they 
 act gratuitously, as in the case of physicians, solicitors, &c. ; it is, 
 therefore, ordinary negligence committed by a gratuitous agent or 
 bailee; the term "gross" seems to have been applied to these cases 
 in order not to disturb the symmetry of the rule that a gratuitous agent is 
 only liable for gross negligence. 5 
 
 (2) § 6. Negligence operating to defeat a right of action is either 
 
 (a) negligence amounting to estoppel (as to which see Estoppel, § 6), or 
 
 (b) contributory negligence, which occurs where the injury complained 
 
 I H. L. 93 ; Rylands v. Fletcher, L. R., 
 3 H. L. 330 (negligent use of property) ; 
 Worth v. Gelling, L. R., 2 C. P. 1 (negli- 
 gent keeping of a ferocious dog) ; Gautret 
 v. Egerton, L. R., 2 C. P. 371 (distinction 
 between invitation to use dangerous pro- 
 perty and mere licence or permission). 
 
 1 Gale on Easements, 394. 
 
 2 Coggs v. Bernard, Smith's L. C. i. 14". 
 
 3 Smith v. L. &S. W. Rail. Co., L. R., 
 
 5 C. P. at p. 102. 
 
 4 Coggs v. Bernard, Smith's L. C. i. 
 155. The modem civilians distinguish 
 negligence with reference to the individual 
 and negligence with reference to the 
 diligens paterfamilias as culpa in concreto 
 and in abstracto (Kuntze, Cursus des R. R. 
 481). 
 
 6 See Campbell on Negligence, 15; 
 Smith, L. C. i. 615. 
 
Negligence law dictionary. Negotiable 553 
 
 of has been caused partly by the negligence of the plaintiff and partly by 
 that of the defendant : thus, if A. and B. are both driving negligently, and 
 their carriages come into collision, so that A. is injured, he cannot sue B. 
 if his own negligence contributed to the accident, that is, if he could by 
 ordinary care have avoided the consequence of the other's negligence. 1 
 
 II. § 7. As to the effect of negligence in criminal law, see Homicide. Criminal law. 
 
 See Scienter ; Act of God. 
 
 NEGOTIABLE. — I. § 1. An instrument is said to be negotiable 
 when any person who has acquired it in good faith and for value can 
 enforce the contract or right of property of which it is evidence against 
 the person originally liable on it, although the person from whom he 
 acquired it may have had a defective title or none at all. In the first 
 of these respects, negotiable instruments were always an exception to the 
 rule that choses in actions are not assignable (a rule which can now be 
 hardly said to exist) ; and, in the latter respect, they are an exception to 
 the rule which denies to the transferee of property a title superior to that 
 of the person from whom he receives it. 2 Moreover, the benefit of the 
 contract or other right is attached to the possession of the document, 
 which, according to ordinary rules, would be only evidence of the right. 3 
 Negotiable instruments are, therefore, altogether anomalous institutions. 
 They exist primarily for the convenience of commerce. 4 
 
 Negotiability is either absolute or qualified. § 2. When an instrument Absolute, 
 is transferable so as to give the transferee all the rights originally 
 created by it without affecting him with any equities between prior 
 holders, its negotiability is said to be absolute ; an ordinary bill of 
 exchange, promissory note or cheque is an instance. Thus, if A. being 
 indebted to B., gives him a promissory note on the condition that it is to 
 be regarded as a security only, and not to be negotiated before a certain 
 time, B. may nevertheless transfer it to C. for value ; and if C. has no 
 notice of the arrangement between A. and B., he may enforce payment 
 of it against A. 5 So if B. steals a bill and transfers it to C. for value, and 
 without notice of the theft, C. may enforce it against the parties liable on 
 it, although B. had in fact no title to transfer. § 3. When an instrument Qualified, 
 is transferable only to certain persons, or in a certain manner, or so as to 
 make the transferee take it subject to equities affecting it in the hands of 
 prior holders, while preserving the other incidents of negotiability, its 
 negotiability is said to be qualified or restrained. Thus, in the first 
 instance given above, if the promissory note were transferred after its due 
 date, the transferee would take subject to the arrangement between A. and 
 B. 6 (See Equity, §§ 9 et seq.; Cheque, §§ 3 et seq.) 
 
 1 Dicey, 412; Oppenheim v. White Lion v. Monies, L. R., 3 C. P. at p. 276. 
 Hotel Co., L. R., 6 C. P. 515 ; Smith, L. 3 Pollock on Contract, 206. 
 
 C. i. 298; Campbell, 179. 4 Goodwin v.Robarts, L. R., 10 Exch. 
 
 2 Solicitors' Journal, 10th July, 1875, 76, 337 ; 1 App. Cas. 476 ; Rumball v. 
 p. 687 ; Smith's Merc. Law, 199; Miller Metropolitan Bank, 2 Q. B. D. 194. 
 
 v. Race, I Burr. 452 ; Smith, L. C. i. 538 ; 5 Ex parte Swan, L. R., 6 Eq. 344. 
 
 Crouch v. Credit Fonder of England, L. 6 Ibid.; Solicitors' Journal, Dec. 1 8th, 
 
 R., 8 Q. B. 374; Re Agra and Master- 1875, P- x 34- 
 man's J3ank,L.i<., 2CI1. at p. 397; Fuentes 
 
554 Negotiate LAW dictionary. Next of Kin 
 
 Quasi-nego- II. § 4. "Negotiable" is also used in a wide sense to denote an 
 
 tiable - instrument transferable from one person to another by indorsement or 
 
 delivery, but wanting in the essential of giving the transferee a good title 
 notwithstanding any defect of title in his transferor. This quality is also 
 called quasi-negotiability, to distinguish it from negotiability in the true 
 sense. {See Debenture, § 10; Exchequer Bills ; Scrip.) 
 
 NEGOTIATE.— To negotiate a bill of exchange, promissory note, 
 cheque or other negotiable instrument for the payment of money is to 
 transfer it for value by delivery or indorsement. 1 
 
 NEIFE is the technical name for a female villein. 8 Originally, however, the word 
 signified a villein of either sex, and " nayfte " meant the status of a villein. It is derived 
 from the Latin nativus, there having been apparently at one time a distinction between 
 villeins by birth and freemen who had become villeins, e.g., by confession in a Court of 
 Record. 3 (See Confession, note (9)). 
 
 NEMO EST ELERES YIVENTIS. See Heir, § 7. 
 NEUTRALITY. See Foreign Enlistment Act. 
 
 NEW ASSIGNMENT, — Under the former common law practice, where the 
 declaration in an action was ambiguous and the defendant pleaded facts which were 
 literally an answer to it, but not to the real claim set up by the plaintiff, the plaintiffs 
 course was to reply by way of new assignment, that is, allege that he brought his action 
 not for the cause supposed by the defendant, but for some other cause to which the plea 
 had no application. 4 Under the new practice, a plaintiff in such a case would amend 
 his statement of claim. 5 
 
 NEW TRIAL. See Trial. 
 
 NEXT FRIEND. — § 1. An infant who desires to bring an action 
 must, as a rule, do so through the intervention of a person called a next 
 friend, generally a relation. The same rule applies where a married 
 woman sues without her husband, or an action requires to be brought by 
 a person of unsound mind who has no committee or has a committee 
 whose interest is adverse to his own. 6 § 2. Every next friend is responsible 
 for the propriety of the proceedings taken in his name. 7 (See Guardian, 
 § 14O 
 
 Next in NEXT OF KIN.— I. § 1. In the strict sense of the term, the next 
 
 dcpTcc of 
 
 kindred. °f kin of a deceased person are those who aire next in degree of kindred 
 
 1 See Sharpies v. Rickard, 2 H. & N. 6 Rules of Court, xvi. 8, xviii. ; Pope on 
 
 57 ; Griffin v. Weathersby, L. R., 3 Q. Lunacy, 298. 
 
 B. 753. 7 Daniell, Ch. Pr. 67. According to 
 
 8 Litt. § 186. Coke, the phrase "next friend," as applied 
 
 3 Britton, 77 b, and note in Nichols's to an infant heir in socage, meant next of 
 edition (p. 195) ; Loysel, Inst. Cout. gloss. blood, and this is borne out by the way in 
 v. Naif. which the phrase is used by Littleton 
 
 4 Steph. Coram, iii. 507. (§ 123 ; Co. Litt. 88 a). 
 
 5 Rules of Court, xix. 14. 
 
Next of Kin law dictionary. Next Presentation 555 
 
 to him, that is, are most closely related to him in the same degree. The 
 degrees of kindred are reckoned according to the Roman law, both 
 upwards to the ancestor and downwards to the issue, each generation 
 counting for a degree. Thus, from father to son is one degree, from 
 grandfather to grandson or vice versa is two degrees, and from brother to 
 brother is two degrees, namely, one upwards to the father and one down- 
 wards to the other son : so from uncle to nephew, or vice versa, is three 
 degrees. In tracing the degrees of kindred in the distribution of an' 
 intestate's personal estate {infra, § 2), no preference is given to males 
 over females, nor to the paternal over the maternal line, nor to the whole 
 over the half blood, nor do the issue of a deceased person stand in his 
 place, as in the case of descent of real estate. 1 (See Descent!) 
 
 II. § 2. More commonly, the "next of kin " of a person who has died Under 
 intestate signifies those persons who are entitled to his personal property, ?. ta ! u - t 1 f s t ° f 
 after payment of his debts, under the Statutes of Distribution (22 & 23 
 Car. 2, c. 10 ; 1 Jac. 2, c. 17, s. 7; see Distribution). If the intestate 
 leaves a widow and any child or children or descendant of any child, the 
 widow takes a third and the issue take two-thirds per stirpes {q. v.), ' 
 subject to the rule as to advancement {q. v., §3). If he leaves no widow, 
 his issue take the whole in the same manner. If he leaves a widow but 
 no issue, the widow takes a half, and the other half, or if there is no 
 widow, the whole, goes as follows : first to the father, if living ; then to 
 the mother, brothers and sisters, or such of them as shall be living, in 
 equal shares, the children of any deceased brother or sister standing in 
 their parent's place, provided the mother or any brother or sister of the 
 deceased is living; and if there is neither mother, brother nor sister 
 living, then to those who are next of kindred to the deceased in the same 
 degree {supra, § 1 ). The husband of a woman dying intestate takes the 
 whole of her personal property. 2 
 
 § 3. When a testator gives his property to the "next of kin" of himself In wills, 
 or an6ther, the expression is construed to mean "next of kin" in the 
 strict sense of the word {supra, § 1); and, therefore, does not include 
 persons claiming by representation {e.g., children of a deceased brother), 
 unless there is an express or implied reference to the Statutes of Distribu- 
 tion. 3 Even then " next of kin " does not include the husband or wife of 
 the deceased. 4 
 
 NEXT PRESENTATION.— § 1. In the law of advowsons, the right 
 of next presentation is the right to present to the first vacancy of a 
 benefice. When an advowson is sold during an existing incumbency, the 
 right of next presentation passes to the grantee, unless the owner reserves 
 it or has already sold it to some one else, as he may do. But when a 
 vacancy has actually occurred, the right of presenting to it is considered 
 to be of such a personal nature that it cannot be sold ; if, therefore, 
 the owner sells the advowson at such a time, the next presentation will 
 
 1 "Williams, P. P. 421. 3 Jarman oa Wills (4th edit.), ii. 108. 
 
 2 Ibid. 419. i /bid. 125. 
 
556 
 
 Night 
 
 LAW DICTIONARY. 
 
 Nominating 
 
 not pass to the grantee ; and if the owner of the advowson dies intestate 
 during a vacancy, the next presentation goes to his executor, while the 
 advowson goes to his heir. 
 
 § z. A next presentation, when granted separately from the advowson, 
 is personal estate. 1 
 
 See Simony. 
 
 NIGHT. See Day. 
 
 NISI. — A decree, order, rule, declaration, or other adjudication of a 
 Court is said to be made nisi when it is not to take effect unless the person 
 affected by it fails to show cause against it within a certain time, that is, 
 unless he appears before the Court, and gives some reason why it should 
 not take effect. (See Absolute; Decree, § z ; Rule.) 
 
 NISI PRIUS.— § i. In the practice of the High Court, a trial at nisi 
 prius is where an action is tried by a jury before a single judge, either at 
 the sittings held for that purpose in London and Middlesex, or at the 
 assizes (q. v., §3). Formerly all common law actions were tried at bar, 
 that is, before the full Court, consisting of several judges ; and, therefore, 
 the writ for summoning the jury commanded the sheriff to bring the jurors 
 from the county where the cause of action arose to the Court at West- 
 minster. But when the statute 1 3 Edw. 1 directed the justices of assize 
 to try issues in the county where they arose, the sheriff was thenceforth 
 commanded to bring the jurors to Westminster on a certain day, " unless 
 before that day " {nisi prius) the justices of assize came into the county. 2 
 (See Banc; Trial.) 
 
 § 2. A Chancery action which is to be tried by a jury must be tried at 
 nisi prius, and not before a judge sitting in the Chancery Division. 3 
 
 Q. B. Divi- 
 sion. 
 
 Criminal 
 practice. 
 
 NOLLE PROSEQUI, in the practice of the Queen's Bench Division 
 of the High Court, is an acknowledgment or undertaking entered on record 
 by the plaintiff in an action, to forbear to proceed in the action, either 
 wholly or partially. It has been superseded in most cases by the modern 
 practice of discontinuance and withdrawal {q. v.), but it seems to be still 
 applicable in some cases. 4 § 2. In criminal prosecutions by indictment or 
 information, a nolle prosequi to stay proceedings may be entered by leave 
 of the Attorney-General at any time before judgment. 5 
 
 NOMINAL. See Damages, § 3. 
 
 NOMINATING AND REDUCING is a mode of obtaining a panel 
 of special jurors, from which to select the jury to try a particular action. 
 
 1 Williams, R. P. 346 ; Stepli. Comm. 
 ii. 717. 
 
 2 Smith's Action (nth edit.), 134. 
 
 3 Warner v. Murdoch, 4 Ch. D. 750. 
 
 See West v. White, ibid. 631 ; Wood and 
 Ivery v. Haniblet, 6 Ch. D. 113. 
 
 4 Archbold's Pr. 1 201. 
 
 6 Arch. Crim. PI. 109. 
 
Nomination LAW DICTIONARY. Noil omittas 557 
 
 The proceeding takes place before the under-sheriff or secondary, and in 
 the presence of the parties' solicitors. Numbers denoting the persons on 
 the sheriff's list are put into a box and drawn until forty-eight unchal- 
 lenged persons have been nominated. Each party strikes off twelve, and 
 the remaining twenty-four are returned as the panel (q. v.). This 
 practice is now only employed by order of the Court or judge. 1 
 
 NOMINATION. — § 1. A member of a friendly society, or an indus- Friendly 
 trial or provident society, may by writing under his hand, delivered at or S0Cletles - 
 sent to the registered office of the society, nominate any person to whom 
 his share or interest in the society is to belong at his death. Such a nomi- 
 nation may be revoked or varied by the nominator, and must not dispose 
 of a share or interest exceeding so/. 2 It is in the nature of a testamentary 
 disposition, and seems to be allowed in this form because members of the 
 working classes do not generally leave wills. 3 
 
 § 2. In ecclesiastical law, the owner of an advowson may grant the right Benefice, 
 of nomination to another, and then the grantor is bound to present for 
 institution any clerk whom the grantee shall name. 4 (See Presentation.) 
 
 NON ASSUMPSIT, in the old action of assumpsit (q. v.), was the name for the 
 plea by which the defendant averred that "he did not promise" as alleged, and thus 
 raised the general issue. (See Issue, § 7.) 
 
 NON COMPOS MENTIS (not sound in mind) is properly a generic 
 term, in which are included four species : — " 1. Ideota [an idiot], which 
 from his nativitie, by a perpetuall infirmitie, is non compos mentis. 2. Hee 
 that by sicknesse, griefe, or other accident, wholly loseth his memory and 
 understanding. 3. A lunatique that hath sometime his understanding and 
 sometime not, aliquando gaudet lucidis intervallis, and therefore he is called 
 non compos mentis so long as he hath not understanding. [4] Lastly, hee 
 that by his owne vitious act for a time depriveth himselfe of his memorie 
 and understanding, as he that is drunken. But that kind of non compos 
 mentis shall give no privilege or benefit to him or to his heires." 5 (See 
 Drunkenness ; Insanity; Lunacy.) 
 
 NON CONSTAT, " it is not clear," "It does not follow." 
 
 NON DECIMANDO. See De non decimando. 
 
 NON EST INVENTUS is the name of the return made by a sheriff 
 or other officer to a writ directing him to arrest a person, when he is 
 unable to find him. (See Attachment ; Capias ad satisfaciendum; Return.) 
 
 NON OMITTAS is a clause usually inserted in writs of execution, 
 directing the sheriff " not to omit " to execute the writ by reason of any 
 
 1 Smith's Action, 130; Juries Act, 1870, 3 Compare the subsections following 
 
 s. 17. those above cited. 
 
 3 Friendly Soc. Act, 1875, s. 15, § 3 ; 4 Phffl. Eccl. Law, 348. 
 
 F. S. Act, 1876, s. 10; Industrial and P. 6 Co. Litt. 247 a; 4 Co. 124 b; Pope 
 
 Soc. Act, 1876, s. n, § 5. on Lunacy, 18. 
 
558 Non- Access law dictionary. Non-Residence 
 
 liberty, because there are many liberties or districts in which the sheriff 
 has no power to execute process unless he has special authority. 1 
 
 NON-ACCESS, in the law of husband and wife, is the absence of 
 access (q. v. § 2). If non-access for above nine months is proved, by 
 showing that the husband and wife were separated from one another, 
 any children conceived and born of the wife during that period are 
 bastards. 2 
 
 NONAGE is the period of infancy, that is, the age of a person under 
 twenty-one years. 3 (See Age.) 
 
 NON-CLAIM.— § 1. At common law, the levying of a fme(?.z<. § 9) barred the 
 right of all persons, whether parties, privies or strangers, unless they put in their claim 
 within a year and a day.' 1 This was called being barred by non-claim. Alterations were 
 afterward made hi the time allowed for claiming, 5 but the subject is now of no practical 
 importance, fines having been abolished. 6 
 
 \ 2. There was also a non-claim in a writ of right. 7 
 
 NON-EXISTING GRANT. See Lost Grant. 
 
 NONFEASANCE is the neglect or failure of a person to do some 
 act which he ought to do. The term is not generally used to denote 
 a breach of contract, but rather the failure to perform a duty towards the 
 public whereby some individual sustains special damage, as where a 
 sheriff fails to execute a writ. 8 (See Malfeasance ; Tort.) 
 
 NON- JOINDER is where a person who ought to be made party to 
 an action is omitted. The general rule is that in an action on a contract 
 all the parties to it who are entitled or liable jointly should be joined as 
 plaintiffs and defendants, and that in an action of tort persons who have 
 a joint interest ought to sue jointly for an injury to it : persons who have 
 a separate interest, but sustain a joint injur}', may sue either jointly or 
 separately. Joint wrongdoers may be sued either jointly or separately. 9 
 (See Joint ; Misjoinder.) 
 
 Non-joinder is cured by making an application to the Court to add the 
 necessary parties. 10 
 
 NON-RESIDENCE, in ecclesiastical law, is where a spiritual person 
 holding a benefice does not keep residence on it. It is in ordinary cases 
 an offence, and is punishable by monition and sequestration of the 
 benefice, by forfeiture of part of the income of the benefice, and by the 
 compulsory appointment of a curate. Licences for non-residence may be 
 granted by the bishop in certain cases. 11 
 
 1 Steph. Com. ii. 630. . 8 Bl. Coram, iii. 165; Broom's C. C. L. 
 
 2 Ibid. ii. 285. 655; Borough of Batkurstv.MacPherson, 
 ' Litt. § 258. 4 App. Ca. 256. 
 
 4 Ibid. § 441 ; Bl. Comm. ii. 354. 9 Dicey on Parties, n and. passim. 
 
 5 Stats. 34Edw. 3, c. 16; 4Hen. 7,0.24. 10 Rules of Court, xvi. 13 et seq. 
 
 6 Stat. 3 & 4 Will. 4, c. 74, s. 2. " Phil. Eccl. Law, 1 149; stat. I & 2 Vict. 
 
 7 Co. Litt. 262 a. c. 106. 
 
Non-Resident law dictionary. Not Guilty 559 
 
 NON-RESIDENT, as applied to a trading corporation, signifies that 
 it has no place of business in England. The question is of importance 
 with reference to the liability of such a corporation to be sued in this 
 country, and to the manner in which it should be served with process. 1 
 (See Jurisdiction ; Domicile, § 3.) 
 
 NONSUIT is where the plaintiff in an action abandons his case at 
 the trial before the jury have given their verdict, whereupon judgment of 
 nonsuit is given against him. (See Judgment, § 8.) Formerly the advan- 
 tage of this practice (which was peculiar to the common law Courts) was 
 that the plaintiff could bring another action against the defendant for the 
 same cause of action; but under the new practice any judgment of 
 nonsuit, unless the Court otherwise directs, has the same effect as a 
 judgment on the merits, that is, it bars the plaintiff from bringing another 
 action for the same cause : but in case of mistake, surprise or accident, 
 a judgment of nonsuit may be set aside by the Court. 2 
 
 Etymology. — Norman-French, nonsue, = "he does not prosecute his action." 3 
 
 NON-USER is where a person ceases to exercise a right. The term 
 is principally used with reference to easements, profits a prender, and 
 similar rights, which may be extinguished by non-user for a certain 
 number of years, which apparently must be not less than twenty ; but the 
 non-user must be of such a nature as to show an intention to abandon 
 the right, as where it amounts to acquiescence in an unlawful interruption. 4 
 (See Interruption?) A public office is liable to forfeiture for non-user or 
 neglect to perform the duties. 6 
 
 NOT GUILTY is the appropriate plea to an indictment where the Criminal law. 
 prisoner wishes to raise the general issue. (See Issue, § 10; Plea.) §2. It Civil actions, 
 was also a plea used in common law actions of tort under the old practice, 
 when the defendant simply denied that he had committed the wrong 
 complained of. (See Issue, § 7.) Under the present system of pleading 
 a defendant must deal specifically with all allegations made - by the 
 plaintiff which he does not admit, and therefore a plea of " not guilty " is Not guilty 
 no longer, as a general rule, permissible. There are, however, certain acts bv statute - 
 of parliament which provide (principally for the protection of constables, 
 inspectors, and other public officers) that in all actions for anything done 
 in pursuance of the act or in execution of the powers and authorities 
 thereof, the defendant may plead "not guilty," which entitles him to give 
 the special matter in evidence at the trial ; that is, he may prove the facts 
 of the case and show that he acted in pursuance of the statute, so that 
 such a plea has the same effect as if he had pleaded the facts and his 
 defence specifically. 6 This is called pleading " not guilty by statute," 
 
 1 Westman v. Aktiebolaget, &c, I Ex. D. * Gale on Easements, 619 et seq. 
 237. 6 Co. Litt. 233a. 
 
 2 Rules of Court, xli. 6; Singer, &C. Co. 6 See for instance, stats. 5 & 6 Will. 4, 
 v. Wilson, 2 Ch. D. 438. c. 76, s. 76; 5 & 6 Will. 4, c. 63, s. 39. 
 
 3 See Co. Litt. 138b. See also stat. 5 & 6 Vict. u. 97, s. 3. 
 
56o 
 
 Notary Public 
 
 LAW DICTIONARY. 
 
 Notice 
 
 Judicial. 
 
 Express. 
 
 Constructive. 
 
 and may still be done under the new practice, but the defendant cannot 
 plead any other defence without leave; 1 and he must insert in the margin 
 of the plea the words "By Statute," together with the year, chapter, and 
 section of the act or acts on which he relies, and specify whether they 
 are public or private. 2 
 
 NOTARY PUBLIC is a person who attests the execution of any 
 deeds or writings, or makes certified copies of them in order to render the 
 same authentic, especially for use abroad (see Legalization). He is 
 appointed to his office by the Archbishop of Canterbury. 3 An important 
 branch of his duties is the protesting of bills of exchange (see Protest). 
 He also makes a record of the proceedings in an ecclesiastical cause. 4 
 
 NOTATION, in probate practice, is the act of making a memorandum 
 of some special circumstance on a probate or letters of administration : 
 thus where a grant is made for the whole personal estate of the deceased 
 within the United Kingdom, which can only be done in the case of a 
 person dying domiciled in England, the fact of his having been so domi- 
 ciled is noted on the grant. 6 
 
 NOTICE, — § i. Primarily "notice" means knowledge or cogni- 
 zance : and, therefore, when we speak of a Court taking judicial notice 
 of a fact we mean that the Court recognizes the fact without evidence to 
 prove it. Thus the Courts notice the political constitution of our own 
 government, the existence and title of every state and sovereign recog- 
 nized by the sovereign of England, the dates of the calendar, &c.° 
 
 § 2. To give notice of a fact to a person is to bring it to his know- 
 ledge : when the circumstances are such that he is either actually aware 
 of the fact, or might or ought to be aware of it, he is said to have notice 
 of it. 
 
 Notice is either actual (express) or constructive. § 3. Actual or express 
 notice is that given in plain words from one person to another, either 
 verbally or in writing. When a written notice purports on the face of it 
 to be a notice it is called a " formal notice." 
 
 § 4. Constructive notice is where knowledge of the fact is presumed 
 from the circumstances of the case : thus where a person has actual 
 notice of a charge or incumbrance on certain property, he is held to have 
 constructive notice of facts to a knowledge of which he would have been 
 led by an inquiry into the charge or incumbrance, whether his abstention 
 from inquiry was fraudulent or merely negligent. 7 So notice to an agent, 
 solicitor, &c. is constructive notice to the principal or client, 8 on the pre- 
 sumption that the agent did his duty by communicating the notice to his 
 principal ; therefore that presumption may be rebutted if it appears that 
 
 1 Rules of Court, xix. 16. 
 » Reg. Gen. T. T. 1853 ; I El. & B. 
 lxxxii. 
 
 3 Phil. Ecc. Law, 1232; stats. 41 Geo. 3, 
 c. 79 ; 6 & 7 Vict. c. go. 
 
 4 Ibid. 1243. 
 
 5 Coote's Probate Pr. 36. 
 
 6 Best on Evidence, 354. 
 
 7 Janes v. Smith, I Hare, 55 ; White & 
 Tudor's L. C. ii. 55 ; Dart, V. &P. 861. 
 
 8 Le Neve v. Le Neve, Amb. 436 ; 
 White & Tudor, ii. 43 ; Dart, V. & P. 858. 
 
Notice of Action LAW DICTIONARY. Notice of Decree 561 
 
 the agent was a party to a fraud, or otherwise acted in such a way as to 
 raise a presumption that he would not communicate the notice to his 
 principal. 1 
 
 § 5. The doctrine of notice (formerly "an equitable doctrine) is that a 
 person who purchases an estate, although for valuable consideration, 
 after notice of a prior equitable right, makes himself a mala fide pur- 
 chaser, and will not be enabled, by getting in the legal estate, to defeat 
 that right, but will be held a trustee for the benefit of the person whose 
 right he sought to defeat. 3 Thus if a vendor contract with two different 
 persons, for the sale to each of them of the same estate, and if the person 
 with whom the second contract is made acquires notice of the first con- 
 tract, and then procures a conveyance of the legal estate in pursuance of 
 his own contract, the Court will order him to convey the property to the 
 first purchaser. 3 
 
 § 6. As to notice of the assignment of a chose in action, see Chose in 
 Action, § 4. 
 
 See Lis pendens ; Priority; Registration; Tacking. 
 
 NOTICE OF ACTION.— When a statute imposes public or quasi- 
 public duties on a person, such as a magistrate, constable, surveyor of 
 highways, or the like, it frequently provides that before any action is 
 brought against him for acts done in execution of his office, one month's 
 notice of the intended action shall be served on him. 4 (See also Amends ; 
 Not Guilty.) 
 
 NOTICE OF ADMISSION. See Admission, § 2. 
 
 NOTICE OF BREACHES. See Particulars of Breaches and Ob- 
 jections. 
 
 NOTICE OF CLAIM. See Citation, § 2. 
 
 NOTICE OF DECREE OR ORDER.— In the Chancery Division, 
 when an action is instituted for the administration of the estate of a 
 deceased person, or for the execution of the trusts of an instrument, by 
 or against one member of a class of persons (e. g., one of the executors, 
 administrators, residuary legatees, next of kin, trustees or cestuis que 
 trust), it is not necessary to join the other members of the class as plain- 
 tiffs or defendants in the action, provided they are served with notice of 
 the decree or order directing the administration of the estate or execu- 
 tion of the trusts. After being so served they will be bound by the 
 proceedings in the action in the same manner as if they had been 
 originally made parties. 5 Thus if an administration action is commenced 
 
 !• Cave v. Cave, 15 Ch. D. 639 ; Patman 3 Potter v. Saunders, 6 Hare, I. As to 
 
 v. Harland, 17 Ch. D. 353; Williams v. the doctrine of notice generally, Markby's 
 
 Williams, ibid. 437. Elements of Law, § 487. 
 
 3 Basset v. Nosworthy, Rep. t. Finch, * Chitty's Pr. 1303 et seq. 
 
 102 : White& Tudor's L. C. ii. 1. 6 Stat. 15 & 16 Vict. c. 86 ; Daniell's 
 
 Ch. Pr. 358. 
 
 s. O O 
 
562 Notice of Dishonour LAW dictionary. Notice to admit 
 
 by an executor against one of the residuary legatees, the other residuary 
 legatees must be served with notice of the decree or order. If a person 
 so served wishes to see that the action is properly conducted, he should 
 obtain an order for leave to attend the proceedings, 1 on which he is 
 entitled to be heard as if he were a party. 
 
 NOTICE OF DISHONOUR. See Bill of 'Exchange, § 6. 
 
 NOTICE OF OBJECTIONS. See Particulars of Breaches and 
 Objections. 
 
 NOTICE OF TRIAL.— In the practice of the High Court, as soon 
 as the pleadings in an action are closed, the plaintiff may give the 
 defendant notice of trial of the action, and thereby specify the mode in 
 which he desires the action to be tried ; if the plaintiff fails to give 
 such a notice within a certain time, the defendant may give notice of 
 trial, or move to dismiss the action for want of prosecution. Ordinary 
 notice of trial is a ten days' notice : short notice of trial, which is suffi- 
 cient when the party to whom it is given has consented to take it, is a 
 four days' notice. The action will be tried in the manner mentioned in 
 the notice, unless it is a case in which the party to whom it is given is 
 entitled to have the action tried before a jury and gives a counternotice 
 to that effect, or unless the Court orders it to be tried in a particular way. 2 
 (See Action ; Trial.) 
 
 Service on NOTICE OF WRIT OF SUMMONS.— § 1. In an action in the 
 
 "'' ' " High Court, when the defendant is a foreigner, and is out of the juris- 
 
 diction, and the plaintiff has obtained leave to serve him out of the 
 jurisdiction, the defendant is served with a notice giving the substance 
 of the writ of summons, and stating what will be the result of his not 
 entering an appearance within the time allowed. 3 This is done in lieu 
 of serving the defendant with the writ of summons itself, because it is 
 considered inappropriate to serve the subject of a foreign state with a 
 mandate in the Queen's name. 
 Substituted § 2 . When a defendant is suspected of keeping out of the way to avoid 
 
 service, the Court sometimes allows substituted service to be effected by 
 notice of the writ being given to the defendant, 4 e. g., by advertisement. 
 (See Service.) 
 
 NOTICE TO ADMIT.— In the practice of the High Court, either 
 party to an action may call on the other party by notice to admit the 
 existence and execution of any document, in order to save the expense of 
 proving it at the trial ; and the party refusing to admit must bear the costs 
 of proving it, unless the judge certifies that the refusal to admit was 
 
 1 Darnell's Cli. Pr. 363. s R u i es f Court, xi. ; Forms (A) I. 3 ; 
 
 s Rules of Court, xxxvi. J,et seq.; Metro- Westman v. A. E. M. Snickarefdbrik, I 
 
 politan I. C. Rail. Co. v. M. Rail. Co., Ex D. 237 ; In re Howard, ioCh. D. 550. 
 
 5 Ex. D. 196. i Rules of Court, ix. 2 ; x. 
 
Notice to produce LAW DICTIONARY. Notice to treat 563 
 
 reasonable. No costs of proving a document will in general be allowed, 
 unless such a notice is given. 1 
 
 *5 
 1 
 
 NOTICE TO PRODUCE.— § 1. If one of the parties to an action At trial, 
 is in possession of any document which would be evidence for the other 
 party if produced, the latter may give him notice to produce it at the trial, 
 and, in default of production, may give secondary evidence of it. 3 
 
 § z. At any time before the trial of an action, any party to an action or Interlocutory, 
 other proceeding may give any other party notice to produce for his 
 inspection any document referred to in the pleadings or affidavits v 
 of the party to whom the notice is given. If he refuses to produce 
 them without good cause, an order for inspection may be obtained 
 from the Court. 3 
 
 See Inspection ; Production. 
 
 NOTICE TO QUIT. — Where there is a tenancy of land from year 
 to year, or from two years to two years, or other like indefinite period, a 
 notice to quit is required, to enable either the landlord or the tenant to 
 determine the tenancy without the consent of the other. As a general 
 rule, no particular form is required, but the notice is usually in writing 
 and formal. 
 
 § 2. In some cases the length of notice required is fixed by special 
 agreement between the lessor and lessee, in other cases it is fixed by 
 a local custom, and in other cases by the general law of the land. 
 Where a tenancy from year to year exists without a special agreement 
 or local custom as to its determination, half a year's notice, expiring 
 at the end of the first or some other year of the tenancy, must be given ; 
 thus, if the tenancy commenced on the 25th March, notice to quit must 
 be given on or before the 28th September, expiring on the 25th March 
 following. § 3. In the case of land subject to the Agricultural Holdings 
 Act, 1875, a year's notice to quit is required instead of half a year. 4 
 
 NOTICE TO THIRD PARTY. See Citation, § 2. 
 
 NOTICE TO TREAT is the notice which a railway company or other 
 public body having compulsory powers for the purchase of land is bound 
 to give to the persons interested in any land which it is empowered 
 and desires to purchase. The notice demands particulars of the estate 
 and interest of the persons to whom it is given, and states that the, 
 company is willing to treat for the purchase of the land. When a person 
 receives such a notice, he may send a notice of claim to the company, 
 stating his interest in the land, and the compensation he claims, and 
 requiring the amount to be settled by arbitration in case of dispute. In 
 other cases the compensation is fixed by a jury. 5 
 
 1 Rules of Court, xxxii. 2. * Woodfall's Landlord & Tenant, 300 
 
 2 Best on Evidence, 611 ; Common Law et seq. ; Gritty on Contracts, 314. 
 
 Proc. Act, 1852, s. 119. 5 Lands Clauses Act, 1845, as. iSetseq.; 
 
 1 3 Rules of Court, xxxi. 14 et seq. Hodges on Railways, 170 et seq. 
 
 o o 2 
 
564 Noting LAW DICTIONARY. Nuisance 
 
 NOTING, in the law of bills of exchange, is a minute or memorandum 
 made by a notary on a bill which he has presented, and which has been 
 dishonoured. It consists of his initials and charges, and the date, and, 
 in the case of foreign bills, is considered as preparatory to a formal 
 protest (q. v.). 1 
 
 NOTORIOUS.— In the law of evidence, matters deemed notorious 
 do not require to be proved. There does not seem to be any recognized 
 rule as to what matters are deemed notorious ; cases have occurred in 
 which the state of society or public feeling has been treated as notorious, 
 e. g., during times of sedition. 2 
 
 NOVATION is where the promisee in a contract agrees to accept 
 another person as the person to be bound in lieu of the original promisor. 
 The term is practically confined to cases where a company or partnership 
 transfers its liabilities to another company or partnership, in which case 
 the question frequently arises whether there has been a novation, that 
 is, whether the creditors or promisees have agreed to accept the 
 liability of the new company or partnership in discharge of the old 
 company or partnership. 3 
 
 The term is borrowed from the Roman law. 4 
 
 NOVEL DISSEISIN. See, Assise of Novel Disseisin. 
 NOVELLA. See Corpus Juris Civilis. 
 
 NOVELTY.— An objection to a patent on the ground that the inven- 
 tion is not new or original, is called an objection for want of novelty. It 
 is a fatal objection, even if it only applies to part of the invention, unless 
 the patentee has filed a disclaimer. (See Disclaimer, § 2 ; Patent Right.) 
 
 NOVITER PERVENTA, or NOVITER AD NOTITIAM 
 PERVENTA, in ecclesiastical procedure, are facts "newly come" to 
 the knowledge of a party to a cause. Leave to plead facts noviter 
 perventa is generally given, in a proper case, even after the pleadings are 
 closed, 6 or on appeal. 
 
 NUISANCE is either public (common) or private. 
 Public or § 1 . A public or common nuisance is an act which interferes with the 
 
 enjoyment of a right which all members of the community are entitled to, 
 such as the right to fresh air, to travel on the highways, not to be exposed 
 to danger to health from infectious diseases, unwholesome food, &c. 
 Hence, if a person carries on a manufacture\ from which noxious fumes 
 are emitted, or exposes for sale unwholesome food, or stops up or ob- 
 
 1 Byles on Bills, 257. 4 Hunter's Roman Law, 445 et seq. 
 
 2 Best on Evidence, 354. 6 Phill. Eccl. Law, 1257 ; Rogers' Eccl. 
 
 3 Lindley on Part. i. 450; Wilson v. Law, 723. 
 
 Lloyd, L. R., 16 Eq. 60; Bilborough v. ° Macpherson, Privy C. Pr. 213. 
 
 Holmes, 5 Ch. D. 255. 
 
Nul tiel Record law dictionary. Nullity of Marriage 565 
 
 structs a highway, or allows buildings belonging to him near a highway 
 to become ruinous, he commits a public nuisance. The remedy for a 
 public nuisance (which is a misdemeanor) is by indictment or informa- 
 tion, 1 and in certain cases by abatement (q. v.) ; and if special damage is 
 caused to an individual, he has an action for damages or injunction against 
 the wrongdoer. 2 Modern legislation has also provided a summary mode 
 of dealing with nuisances. Thus, under the Public Health Acts, local 
 sanitary authorities are required to ascertain by inspection what nuisances 
 exist within their districts, and the local magistrates are empowered to 
 deal summarily with such as are found to exist. 3 
 
 § 2. A private nuisance is such a continuous infringement of a natural Private 
 right of property as would in process of time give the wrong-doer an nulsances - ' 
 easement or prescriptive right to do an act which was originally tortious. 4 
 Thus, if a man builds a house so close to mine that his roof overhangs 
 mine, and the water flows off his roof upon mine, this is a nuisance, for 
 which an action will lie. Similarly, if my neighbour carries on a noisy or 
 offensive trade, or if anyone injuriously interferes with my watercourse, 
 market, ferry, or the like. The remedy for a nuisance is either by abate- 
 ment (q. v., § 1), or by action for damages, injunction, or mandamus. 5 
 (See Prescription ; Tort; Disturbance.) 
 
 NUL TIEL RECORD is the name given to that plea or defence 
 which a defendant sets up to an action brought against him on some 
 matter of record, when he avers that "no such record" as that alleged by 
 the plaintiff exists. 6 (See Contract, § 10; Judgment; Mittimus; Record; 
 Trial:) 
 
 NULLA BONA (" no goods") is the name given to the return made 
 by a sheriff, sequestrator, or other officer, to a writ or warrant authorizing 
 him to seize the chattels of a person, when he has been unable to find 
 any to seize. It is a not unfrequent return to a writ of fi. fa. (q. v.). 
 
 NULLITY OF MARRIAGE.— Where a marriage is void, on the 
 ground that it was to the knowledge of both parties celebrated without 
 the proper formalities, or that one of them was not single at the time, or 
 that they are within the prohibited degrees of consanguinity or affinity, 
 or that one or both of them were not consenting to the marriage, or are 
 unable to perform the duties of matrimony, then either of them, unless 
 the default or defect invalidating the marriage lies in him or her only, 
 may present a petition to the High Court in the Probate, Divorce and 
 Admiralty Division, and obtain a decree declaring the nullity of the 
 marriage.'' (See Decree, § 2 ; Divorce?) 
 
 1 Steph. Crim. Dig. 108 et seq. ; Steph. mentioned in the fifth schedule to that act. 
 Coram, iv. 270 : where a number of statu- 4 Gale on Easements, 482, 502 ; the in- 
 tory nuisances (many of which are now fringement of an acquired right (e.g., an 
 rarely met with) are referred to. easement) is properly called a disturbance 
 
 2 Broom, C. C. L. 718, 914; Hill v. , [q.v.). 
 
 Metropolitan Asylums Board, 4 Q. B. D. 5 Steph. Comm. 111. $02etseq. SeeVernon 
 
 433; 6 App. Ca. 193. . v. Vestry of St. James, 16 Ch. D. 449. 
 
 * See the Public Health Act, 1875, ss- 91 6 Bl. Comm. iii. 330. 
 
 et seq. ; as to the Metropolis, see the acts 1 Browne on Divorce, 52 et seq. 
 
566 
 
 Nullum Temfius 
 
 LAW DICTIONARY. 
 
 Oaths 
 
 NULLUM TEMPUS OCCURRIT REGI : "Time never runs 
 against the crown," is a maxim grounded on the principle that no laches 
 can be imputed to the sovereign, whose time and attention are supposed 
 to be occupied by the cares of government; 1 and therefore the ordinary 
 Statutes of Limitations do not bind the crown. But by the Nullum 
 Tempus Act (9 Geo. 3, c. 16), and stat. 24 & 25 Vict. c. 62, the common 
 law rule has been altered, and the crown is barred by lapse of time in 
 cases within those acts. The stats. 7 & 8 Vict. c. 106; 23 & 24 Vict. c. 53. 
 and 24 & 25 Vict. c. 62, apply to the lands of the Duchy of Cornwall. 3 
 
 NUNC PRO TUNC. — In procedure, the Court, sometimes directs a 
 proceeding to be dated of an earlier date than that on which it was ac- 
 tually taken, or directs that the same effect shall be produced as if it had 
 been taken at an earlier date. Thus it will direct a judgment to be ante- 
 dated if the entry of it has been delayed by the act of the Court, or if the 
 plaintiff has died between the hearing and the date when the judgment 
 was delivered. 3 This is called entering a judgment nunc pro tunc (= "now 
 for then"). 
 
 NUNCUPATIVE. See Will. 
 
 NUPER VICECOMES, an ex-sheriff. See Distringas, § 3. 
 
 NURTURE. See Guardian, § 7. 
 
 O. 
 
 Evidentiary 
 oaths. 
 
 Judicial, 
 
 extrajudicial 
 or voluntary. 
 
 OATHS are of two kinds, according as they relate to the truth of a 
 statement as to past events, or to an intention to do something at a future 
 time. The latter are called promissory oaths. 
 
 § 2. An oath verifying a statement as to past events is a religious asseve- 
 ration by which the party calls his God to witness that what he says is the 
 truth ; consequently, an oath may be administered to a person who believes 
 in a God, although he is not a Christian ; while it cannot, in the case of 
 atheists or very young children who have no religious belief. 4 (See Affirm, 
 § 3.) Such an oath is called "judicial" when given in a matter pending 
 before a tribunal, and "extrajudicial" or "voluntary" in other cases. De- 
 clarations (q. v., § 6) have been substituted for extrajudicial oaths in most 
 cases. 5 As to the punishment for making a false oath, see Peijury; False 
 Swearing. See also Affidavit; Deposition. 
 
 1 Chitty, Prer. 379. 
 
 3 Brown on Limitation, 239 et scq. 
 
 3 See Turner v. L. &* S. W. Rail. Co., 
 
 L. R., 17 Eq. 561. 
 
 4 Best on Evidence, 62, 228. 
 
 5 Stat, s & 6 Will. 4, c. 62. 
 
Obiter Dictum law dictionary. Obligation 567 
 
 § 3. Promissory oaths include the oath of allegiance (see Allegiance; Promissory 
 Naturalization),— the official oath, taken by certain high officers of the oaths - 
 crown on accepting office, — the parliamentary oath, taken by members of 
 parliament before taking their seats, and the judicial oath, taken by the 
 principal judges and justices of the peace on accepting office. 1 Jurors, 
 executors, administrators, and some other persons, are also required to 
 take an oath for the due performance of their duties. 
 
 OBITER DICTUM. See Dictum. 
 
 OBJECTION. See Exception. 
 
 OBLATIONS, or obventions, are offerings or customary payments 
 made to the minister of a church, including fees on marriages, burials, 
 mortuaries, &c. {q. v.), and Easter offerings. 2 They may be commuted by 
 agreement. 3 
 
 OBLIGATION. — I. § 1. In its most general sense, especially in juris- "Obligation" 
 prudence, obligation signifies the relation between two persons, one of ^<j ^ufy." 
 whom can take judicial proceedings or other legal steps to compel the 
 other to do or abstain from doing a certain act. 4 Although it includes 
 both the right of the one and the duty of the other, the term is more 
 frequently used to denote the latter. 
 
 § 2. With reference to the origin and nature of obligations, see Right. 
 
 With reference to their remedies, obligations are either perfect or 
 imperfect. § 3. A perfect obligation is one which can be directly Perfect, 
 enforced by legal proceedings in the ordinary way : thus, if A. contracts 
 to pay B. 50/., B. can enforce the obligation by bringing an action 
 against A. (See Remedy.) § 4. An imperfect obligation is one which Imperfect. 
 cannot be directly enforced, but still has some legal effects. 5 Imperfect 
 obligations may be divided into two classes: 5 (1) An obligation may 
 have been originally perfect, but have become imperfect from the remedy 
 having been taken away : thus, if an action on a simple contract is 
 not brought within the time prescribed by the Statutes of Limitations, 
 the remedy by action is gone, although the right still exists, and may 
 become available in certain cases ; for instance, if a debt is barred by 
 the statute, the debtor may nevertheless, if he has the chance, obtain pay- 
 ment of it by a lien or by appropriation of payment, or the remedy may be 
 revived by an acknowledgment by the debtor (see the various titles). 
 (2) An obligation is imperfect if no proceedings can be taken on it, 
 because it does not satisfy the requirements of the law in regard to form 
 or otherwise : thus, no action can be brought on a contract under the 
 4th section of the Statute of Frauds (e. g., for the sale of land), so long 
 
 1 Promissory Oaths Acts, 1868 and 3 Stat. 2 & 3 Vict. u. 62, s. 9. 
 
 1871. As to the coronation oath, see * See the definitions of obligation col- 
 
 Steph. Comm. ii. 398. lected in Holland's Jurisprudence, 162. 
 
 2 Steph. Comm. ii. 740 ; Phill. Eccl. 5 Pollock on Contract <2nd edit.), 568. 
 Law, 1596'. 
 
568 
 
 Obscene 
 
 LAW DICTIONARY. 
 
 Occupancy 
 
 "Obligation" 
 = "bond." 
 
 Chattels. 
 
 General (or 
 common) 
 occupancy of 
 land. 
 
 Special occu- 
 pancy. 
 
 as the contract is not in writing signed by the party to be charged ; but 
 the contract nevertheless exists for other purposes, and, therefore, money 
 paid under it cannot be recovered back merely on the ground of its 
 not being enforceable by action. So solicitors, medical practitioners, 
 &c, cannot recover remuneration for their services unless they have 
 complied with the acts requiring them to take out certificates {q. v.). 1 
 
 II. § 5. In the technical sense of the term, an obligation is the same 
 thing as a bond. In the case of a conditional bond, the operative part is 
 sometimes called the obligation, to distinguish it from the condition. 
 (See Bond.) 
 
 OBSCENE— OBSCENITY.— A publication is said to be obscene 
 when its tendency is to deprave and corrupt those whose minds are open 
 to such immoral influences, and into whose hands it is likely to fall. 2 
 Obscene publications or libels are punishable with fine or imprisonment, 
 being misdemeanors. Several statutes have been passed making obscene 
 exhibitions indictable offences, and giving magistrates power to issue 
 warrants for searching houses for obscene books, pictures, &c, and 
 to have them destroyed. 3 (See Indecency.) 
 
 OBVENTION. See Oblation. 
 
 OCCUPANCY— OCCUPANT.— § 1. Occupancy is where a person 
 takes possession of an ownerless thing. 
 
 § 2. Occupancy, as a mode of acquiring title to personal property, is 
 of comparatively little importance in English law, being principally con- 
 fined to the case of goods unclaimed or thrown away (see Derelict; 
 Estrays; Waifs), and game or animals ferae naturae {e.g., fish in the sea 
 or a river) when taken by the finder or pursuer. 4 (See Game, § 4.) 
 
 § 3. As regards land, the doctrine of occupancy was formerly of some 
 importance. If A. granted land to B. during the life of C, and B. died 
 before C, then there was no one entitled to the land, because A. had 
 parted with his right during C.'s life, and B.'s estate had determined with 
 his own death ; therefore any one might enter on the land and retain 
 possession during the remainder of C.'s life. A person so entering was 
 called an occupant ("because his title is by his first occupation" 5 ), or, 
 more commonly, a general occupant, because any one might enter in this 
 manner. 6 This doctrine of general or common occupancy was abolished 
 by the Statute of Frauds, 7 under which, and subsequent statutes, 8 a tenant 
 pur auter vie may dispose of his interest by will, and in default of such 
 disposition it forms part of his personal estate. 
 
 § 4. If A. grants land to B. and his heirs during the life of C, and 
 
 1 Pollock, 578. 
 
 2 See Reg. v. Hicklin, L. R., 3 Q. B. 
 371 ; cited Shortt on Copyright, 312. 
 
 3 Shortt, 312 ; Steph. Crim. Dig. 105 ; 
 stats. 14 & 15 Vict. c. 100, s. 79; 20 & 21 
 Vict. c. 83. 
 
 4 Bl. Comm. ii. 402. The doctrine has, 
 however, served as the foundation for a 
 theory of the origin of ownership, now 
 
 somewhat discredited; see Markby's Ele- 
 ments of Law, §§ 464 et seq. 
 
 5 Co. Litt. 41 b. 
 
 6 As to general occupancy in copyholds, 
 see Elton, Copyh. 40. 
 
 7 Stat. 29 Car. 2, c. 3, a. 12. 
 
 8 Stats. 14 Geo. 2, c. 20, s. 9 ; and 1 Vict, 
 c. 26, ss. 3, 6. 
 
Occupation law dictionary. Of Course 569 
 
 B. dies before C, B.'s heir may enter and hold possession, and in such 
 case he is called a special occupant, having a special right of occupation 
 by the terms of the grant 1 (and see Estate Tail, § 8; Freehold, § 3). 
 
 OCCUPATION— OCCUPIER.— I. § 1. In its usual sense, occu- 
 pation is where a person exercises physical control over land. Thus, the 
 lessee of a house is in occupation of it so long as he has the power of 
 entering into and staying there at pleasure and of excluding all other 
 persons (or all except one or more specified persons) from the use of it. 
 Occupation is therefore the same thing as actual possession. 2 (See 
 Possession; Use and Occupation.) 
 
 § 2. Permissive occupation is where the occupier has merely a licence Permissive, 
 or permission from the person entitled to the occupation. 3 
 
 § 3. In the law of rating, occupation signifies actual use and enjoy- Rateable 
 ment, as distinguished from mere possession. Thus a freeholder is in occu P atlon - 
 the possession of the minerals beneath the surface of his land, and of 
 a house which is to let, whether empty or in the custody of a caretaker, 
 but he is not in occupation of them for the purpose of rating. To 
 constitute a rateable occupation, it must be exclusive as well as beneficial ; 
 therefore lodgers {q. v.), licensees {supra, § 2), and servants are not 
 rateable occupiers. 4 
 
 § 4. In the law of parliamentary and municipal elections, the occupa- Voting, 
 tion of a dwelling-house, lands, or lodgings, is one kind of qualification 
 for being registered as a voter. 6 
 
 II. § 5. In a technical sense, "occupation is a word of art, and signi- Occupatio 
 fieth a putting out of a man's freehold in time of warre : and it is all one e ca ' 
 with a disseisin in time of peace." 6 Such an occupation, however, did 
 not produce a descent cast as a disseisin formerly did. 7 (See Descent cast.) 
 And in civilized warfare at the present day, occupation of an enemy's 
 territory is only temporary, and does not interfere with the rights of 
 private owners, even if the territory is permanently annexed by the con- 
 querors. 8 As to moveables, see Capture; Prize. 
 
 Etymology.] — Latin, occupatio, from capere, to take or seize. In Roman law, 
 occupatio signified "occupancy." 9 
 
 OF COURSE. — A step in an action or other proceeding is said to be 
 of course when the Court or its officers have no discretion to refuse it, 
 
 1 Bl. Comm. ii. 258 ; Steph. Comm. i. Maiden, L. R., 4 Q. B. 326 ; L. &1V. W. 
 448 ; Wms. R. P. 20. Blackstone in- Rail. Co. v. Buckmaster, L. R., 10 Q. B. 
 eludes rights of water, air, &c, emble- 1o,\^;WatHnsv.Milton-next-Gravesend, 
 ments, copyright and patents among L. R., 3 Q. B. 350; Cory v. Bristow, 2 
 things which are acquired by occupancy App.Ca. 262; Hare v. Overseers of Putney, 
 (Comm. ii. 402 et sea.) ; see the respective 7 Q. B. D. 223. 
 
 titles. b See stats. 2 Will. 4, c. 45 ; 30 & 31 
 
 2 See Hadley v. Taylor, L. R., 1 C. P. Vict. c. 102 ; 41 & 42 Vict. c. 26 ; Durant 
 53 ; Robinson v. Briggs, L. R., 6 Ex. 1 . v. Carter, L. R., 9 C. P. 261 ; Robinson v. 
 Coke also speaks of the occupation of Briggs, L. R., 6 Ex. I. 
 
 goods (Co. Litt. 172 a), but this use of the 6 Co. Litt. 249 b. 
 
 word is not common. 7 Litt. $ 412. 
 
 3 See Parker v. Leach, L. R., 1 P. C. s Holtz. Encycl. i. 811. 
 
 312. 9 Just. Inst. ii. 1, 12 ; Hunter's Roman 
 
 1 Castle on Rating, 26, 82; Reg. v. Law, 109. 
 
57o 
 
 Offence 
 
 LAW DICTIONARY. 
 
 Office 
 
 provided the proper formalities have been observed. In this sense the 
 issue of a writ of summons is a matter of course. (See Writ.) The term 
 is most commonly applied to those orders which are obtained by petition 
 of course at the Rolls Office in the Chancery Division of the High Court, 
 e.g., an order appointing a guardian ad litem for an infant defendant or 
 respondent, orders for leave to attend proceedings (as to which see Notice 
 of Decree), and certain orders for amendment and revivor. An order of 
 course improperly obtained may be set aside. 1 
 
 OFFENCE. — The word "offence" has no technical meaning in 
 English law, but it is commonly used to signify any public wrong, 
 including, therefore, not only crimes or indictable offences, but also 
 offences punishable on summary conviction. 
 
 OFFER. — Every agreement in substance consists of an offer made 
 by one party and its unconditional acceptance by the other. An accept- 
 ance, with conditions or new terms added, is in effect a new offer, and 
 does not operate as an acceptance of the original offer. An offer may be 
 withdrawn at any time before it has been unconditionally accepted : and 
 if the person to whom an offer is made refuses it, or neglects to accept it 
 within a reasonable time, it is deemed to be at an end, and he cannot 
 afterwards revive it by purporting to accept it. 2 (See Acceptance ; Agree- 
 ment; Letter.) 
 
 Public. 
 
 Of trust. 
 
 Ministerial. 
 
 Inquest of 
 office. 
 
 OFFICE. — I. § i. In the usual sense of the word, an office is the 
 right and duty to exercise an employment: thus, we speak of the office' 
 of a trustee, executor, guardian, director, sheriff, judge, &c. Offices are 
 either public or private : a public office being one which entitles a man 
 to act in the affairs of others without their appointment or permission. 3 
 Public offices are granted either for life or during good behaviour (dum 
 bene se gesserit), or during the pleasure of the appointor (durante bene 
 placito), and some offices are capable of being granted to a man and his 
 heirs (in which case they are incorporeal hereditaments), or of being 
 entailed (in which case they are also tenements). 4 § 2. Public offices, 
 are either offices of trust, which cannot be performed by deputy (including 
 offices of judges, justices of the peace and other judicial offices), or 
 ministerial offices, which may be performed by deputy. 5 (See Oath, § 3.) 
 
 As to private offices, see Executor; Guardian; Trustee; and the other 
 titles dealing with them. 
 
 II. § 3. "Office" is frequently used in the old books as an abbrevia- 
 tion for "inquest of office" (a. v.); when the jury on inquest of office 
 had found the facts to be inquired into, and the verdict or inquest had 
 been returned, the office was said to be found and returned. There are 
 
 1 Daniell, Ch. Pr. 1435; Rules of Court, 
 
 1.4. 
 
 2 Chitty on Contracts ; Pollock on Con- 
 tract, passim. 
 
 6 Steph. Comm. ii. 620; Co. Litt. 233 a. 
 
 4 Co. Litt. 20 a; Bl. Comm. ii. 36. 
 
 5 Steph. 621. As to offices of honour, 
 see Co. Litt. 165a; stats. 5 & 6 Edw. 6, 
 c. 16, and 49 Geo. 3, c. 126, prohibit the 
 buying and selling of public offices. 
 
Office Copy law dictionary. Official Trustee 571 
 
 two sorts of offices, the one, called the office of intituling, vests the estate 
 and possession of the land in the king, where he had only right or title 
 before : the other, called the office of instruction, is where the estate 
 is already in the king, but the particularity of the land does not appear of 
 record. 1 
 
 OFFICE COPY. See Copy, § 1. 
 
 OFFICE OF THE JUDGE.— In ecclesiastical law, " the office of 
 the judge is promoted" when criminal proceedings are taken. The 
 meaning of the expression is, that inasmuch as all spiritual criminal 
 jurisdiction is in the hands of the bishop or ordinary {judex ordinarius), 
 his office or function is set in motion whenever such proceedings are 
 instituted. 2 
 
 OFFICIAL, in ecclesiastical law, is the judge of an archdeacon's 
 Court. 3 (See Diocesan Courts!) 
 
 OFFICIAL ASSIGNEE— OFFICIAL LIQUIDATOR. See 
 
 Assignee, § 2 ; Liquidator, § 3. 
 
 OFFICIAL PRINCIPAL is an ecclesiastical officer whose duty it is 
 to hear causes between party and party as the delegate of the bishop or 
 archbishop by whom he is appointed. He generally also holds the office 
 of vicar general (q. v.) and (if appointed by a bishop) that of chancellor 
 (q. v., § 4). The Official Principal of the province of Canterbury is called 
 the Dean of Arches 4 (q. v., and see Court of Arches). 
 
 OFFICIAL REFEREE. See Referee. 
 
 OFFICIAL SOLICITOR TO THE COURT OF CHAN- 
 CERY is on officer whose functions are to protect the Suitors' Fund (q.v.), 
 and to administer, under the direction of the Court, so much of it as now 
 comes under the spending power of the Court. He acts for persons 
 suing or defending in forma, pauperis, when so directed by the judge, 
 and for those who, through ignorance or forgetfulness, have been guilty 
 of contempt of Court by not obeying process. He also acts generally as 
 solicitor in all cases in which the Chancery Division requires such 
 services. 6 The office is transferred to the High Court by the Judicature 
 Acts, 6 but no alteration in its name appears to have been made. 
 
 OFFICIAL TRUSTEE OF CHARITY LANDS is the secretary 
 of the Charity Commissioners. He is a corporation sole for the purpose 
 of taking and holding real property and leaseholds upon trust for an 
 
 1 Tidd's Pr. 1057, n. (e); 10 Co. 115 a; i Ibid. 1203 et seq. 
 
 Gilb, Exch. 109. 5 Second Rep. Legal Dep. Comm. 
 
 > Phillimore, Eccl. Law, 1087. (1874), 40. 
 
 3 Ibid. 243, 1215. 6 jud. Act, 1873, s. 77. 
 
57? 
 
 Official Trustees 
 
 LAW DICTIONARY. 
 
 Open 
 
 endowed charity in cases where it appears to the Court desirable to vest 
 them in him. He is a bare trustee, the possession and management of the 
 land remaining in the persons acting in the administration of the charity. 1 
 
 OFFICIAL TRUSTEES OF CHARITABLE FUNDS are 
 
 persons in whom the money, stocks or investments of any endowed charity 
 may be vested (either voluntarily or by order of the Court) for the purpose 
 of security or convenient administration. They are appointed by the Lord 
 Chancellor, jointly with the secretary to the Charity Commissioners, and 
 form a corporation. 2 
 
 OMNIA PRffiSUMUNTUR CONTRA SPOLIATOREM : 
 
 "Everything is presumed against a wrongdoer," is a maxim signifying 
 " that if a man by his own tortious act withhold the evidence by which 
 the nature of his case would be manifested, every presumption to his 
 disadvantage will be adopted. Thus, if a man withholds an agreement 
 under which he is chargeable, it is presumed to have been properly 
 stamped ;" 3 so where A. detained some jewels of unknown value belonging 
 to B., and B. brought an action to recover damages for the detention, 
 their value was calculated as being that of the finest jewels of the same 
 size. 4 
 
 OMNIS RATIHABITIO RETROTRAHITUR ET MAN- 
 DATO PRIORI ^EQUIPARATUR : "Every ratification relates 
 back and is equivalent to a prior authority." 5 Therefore, if A. professes 
 to enter into a contract on my behalf without my authority, and I 
 afterwards ratify it, my ratification relates back, so as to have the same 
 effect as if I had authorized A. to enter into the contract. (See Ratifica- 
 tion!) 
 
 ONEROUS. — A contract, lease, share or other right, is said to be 
 onerous when the obligations attaching to it counterbalance or exceed 
 the advantage to be derived from it, either absolutely or with reference 
 to the particular possessor. 
 
 As to disclaimer of onerous property by a trustee in bankruptcy, see 
 Disclaimer, § 3. 
 
 ONUS PROBANDI. See Proof. 
 
 Accounts, OPEN. — § 1. As to open accounts, see Account, § 4. As tore-opening 
 
 foreclosure. accounts, see Falsify. As to re-opening a foreclosure, see supra, p. 367, 
 
 note (3). 
 At trial of § 2. The trial or hearing of an action at nisi prius is commenced by 
 
 action. tne j un j or counse i f or the plaintiff " opening the pleadings," that is, 
 
 1 Stats. 16 & 1 7 Vict. c. 137, ss. 47 etseq.; 
 18 & 19 Vict. c. 124, s. 15. 
 
 2 Stats. 16 & 17 Vict. c. 137, ss. 51 etseq.; 
 18 & 19 Vict. c. 124, s. 17. 
 
 3 Smith's L. C. i. 367. 
 
 4 Armory v. Delamirie, 1 Str. 504. 
 
 5 Chitty on Contracts, 196. 
 
Open Fields law dictionary. Opinion Evidence 573 
 
 stating shortly the substance of them to the jury, after which the senior 
 counsel for the plaintiff addresses the jury on the whole case. 1 § 3. In 
 the Chancery Division, the trial or hearing of an action commences with 
 the speech of the plaintiff's senior counsel, which is called the opening. 
 (See Reply.) 
 
 § 4. Formerly where an estate had been sold under the order of the Opening 
 Court of Chancery, the Court was in the habit of " opening the biddings," blddin e s - 
 that is, of allowing a person to offer a larger price than the estate was 
 originally sold for, and of directing a resale accordingly. But this practice 
 has been abolished, except in the case of fraud or improper management 
 of the sale. 2 
 
 OPEN FIELDS or MEADOWS are fields which are undivided, 
 but belong to separate owners ; the part of each owner is marked off by 
 boundaries until the crop has been carried, when the pasture is shared 
 promiscuously by the joint herd of all the owners. 3 (See Dole, § 2 ; Lot 
 Meadows). 
 
 OPERATIVE PART.— In a conveyance, lease, mortgage or other 
 formal instrument, the operative part is that which carries out the 
 main object of the instrument. Thus, in a conveyance or lease, the 
 operative part consists of the operative words of conveyance or demise 
 and the parcels; sometimes everything which follows the recitals {q. v.) is 
 called the operative part, for the term has no fixed meaning. 4 In a 
 mortgage, the operative part consists of (1) the covenant for payment of 
 the mortgage debt ; (2) the conveyance of the mortgaged property ; and 
 (3) the proviso for reconveyance. 1 
 
 . 5 
 
 OPERATIVE WORDS.— In the original sense of the phrase, opera- 
 tive words are words which have an operation or effect in the creation or 
 transfer of an estate. Thus, in a gift of land to A. and B. and the heirs 
 of the body of A., the word " heirs " is an operative word, because it 
 creates an estate of inheritance in A. ; and the words " of the body '' are 
 operative words, because they limit an estate tail. 6 (See Heir, § 9.) More 
 often, however, such words are called words of limitation (g. v.), and the 
 term " operative words " is applied to those words which pass an estate. 
 Thus, the words "enfeoff," "grant," "bargain and sell," "demise," "alien," 
 " release," and " confirm," are used in conveyances of freehold land as 
 operative words, that is, for the purpose of effecting an alienation of the 
 land from the grantor to the grantee. 7 (See the various titles.) 
 
 OPINION EVIDENCE. See Evidence, § 6. 
 
 1 Chitty, Pr. 383. 4 See Davids. Conv. i. 44. 
 
 2 Stat. 30 & 31 Vict. c. 48; Williams, 5 Ibid. ii. 508 et seq. 
 R. P. 170; Daniell, Ch. Pr. 1183. See Co. Litt. 26 a. 
 
 3 Elton, Comm. 31. Davidson, Conv. i. 72 et seq. 
 
574 Oppression LAW dictionary. Order 
 
 OPPRESSION is the misdemeanor committed by a public officer, 
 who, under colour of his office, wrongfully inflicts upon any person any 
 bodily harm, imprisonment, or other injury. 1 See Extortion. 
 
 To purchase. OPTION.— § i. A lease of lands or houses may contain a provision 
 that the lessee shall have the option of purchasing the property within a 
 certain period, upon giving the lessor notice of his intention to exercise 
 it. Such a notice constitutes a contract of purchase, the specific perform- 
 ance of which may be compelled. 2 § 2. The exercise of an option relates 
 back to the date of the lease or other instrument by which it was given, 
 so as to operate a constructive conversion of the property from that date. 
 If, therefore, the lessor (being a freeholder) should die intestate before the 
 option is exercised, the reversion will pass to his heir; but when the option 
 is exercised, the reversion will become personal property, and pass away 
 from the heir to the next of kin of the deceased. 3 (See Election!) 
 
 Of archbishop. § 3. In ecclesiastical law, an archbishop, when a bishop was consecrated 
 by him, had a customary prerogative to name a clerk or chaplain of his 
 own, to be provided for by such suffragan bishop. In lieu of this right, 
 it was usual for the bishop to make over by deed to the archbishop the 
 next presentation of such dignity or benefice within the bishop's see and 
 disposal, as the archbishop should choose : hence, this was called his 
 option. 3 This privilege was incidentally abolished by stat. 3 & 4 Vict. 
 c. 113, s. 42, which forbids a spiritual person to assign any patronage or 
 presentation belonging to him by virtue of his office. 3 
 
 ORATOR— ORATRIX (from Latin, orare, to pray) were the names for a male and 
 female plaintiff in a Chancery suit before the stat. 15 & 16 Vict. c. 86. 
 
 Bill of ORDER. — § i . In its simplest sense, an order is a mandate or direc- 
 
 ang , . ft on ^ Th US; bills of exchange, cheques, &c, are said to be drawn to order 
 
 when the payee is entitled to transfer the right to claim payment to any 
 
 person whom he may direct. (See Bill of Exchange, § 3 ; Bearer; Delivery 
 
 Order ; Negotiable!) 
 
 Judicial. § 2 . More commonly, however, order signifies a direction or command 
 
 by a court of judicature. As a general rule, "order" is opposed to "judg- 
 ment;" and therefore denotes (i) orders made in summary proceedings on 
 petition or summons (see Summary), and (ii) orders made in actions on 
 interlocutory applications, whether before or after final judgment (see 
 Interlocutory). Such are the ordinary orders for discovery and production of 
 documents, orders for time, &c. made in the course of almost every action. 
 § 3. In the practice of the Queen's Bench Division, an order to show 
 cause is an order obtained by one party on an ex parte application, and 
 calls on the other party to show cause within a certain time why a certain 
 order should not be made ; and then the order is either discharged or 
 
 1 Russell on Crimes, i. 297 ; Stephen's 3 Steph. Comm. ii. 669 ; Hull. Eccl. 
 Crim. Dig. 71. Law, 93, 1140. 
 
 2 Watson's Comp. Eq. 101. 
 
Order and Disposition LAW DICTIONARY. Ordinary 575 
 
 made absolute. The order to show cause is not granted unless the appli- 
 cant has a prima facie case. On a motion for a new trial, the order is an 
 order to show cause. (See Rule.) In some cases an order is made ex 
 parte absolute in the first instance. 1 
 
 As to orders of course, see Of Course. 
 
 § 4. .Orders are also issued by subordinate legislative authorities. Such Orders in 
 are Orders in Council, or orders issued by the Privy Council in the name 
 of the Queen, either in exercise of the royal prerogative or in pursuance 
 of an act of parliament. 2 The Rules of Court under the Judicature Act Rules of 
 are grouped together in the form of orders, each order dealing with a om ' 
 particular subject-matter. (See Rule.) 
 
 ORDER AND DISPOSITION.— The "order and disposition 
 clause" of the Bankruptcy Acts 3 is that on which the doctrine of reputed 
 ownership rests. It is so called from its containing the provision that all 
 goods and chattels being at the commencement of the bankruptcy in the 
 possession, order or disposition [that is, in the possession or apparent 
 control] of the bankrupt, being a trader, by the consent and permission 
 of the true owner, of which goods and chattels the bankrupt is reputed 
 owner, or of which he has taken upon himself the sale or disposition as 
 owner, shall pass to the trustee as if they belonged to the bankrupt. (See 
 Bankruptcy ; Reputed Ownership ; Possession.) 
 
 ORDER OF REFERENCE.— In the practice of the Queen's 
 Bench Division, when an interlocutory judgment {e.g., by default) is 
 obtained in an action brought for a sum which, though unascertained, is 
 " substantially a matter of calculation " {e. g., for principal and interest), 
 the Court or a judge may refer it to a master to be ascertained ; this is 
 called an order of reference. 4 (See Reference.) 
 
 ORDINANCE. — According to Coke, " the difference between an act of parliament 
 and an ordinance in parliament, is, for that the ordinance wanteth the threefold consent 
 [of lords, commons, and crown], and is ordained by one or two of them." 5 According 
 to other writers, an ordinance was in the nature of a declaration by the crown in answer 
 to a petition by the commons, on a question as to the law applicable to a given case, 
 while a statute was an enactment of new law. 6 
 
 ORDINARY is the bishop of a diocese when exercising the eccle- 
 siastical jurisdiction annexed to his office, he being judex ordinarius 
 Within his diocese. 7 (See Bishop, §3.) 
 
 1 Archbold, Pr. 1257; Rules of Court, registered bill of sale remain, in the order 
 
 liii. and disposition of the grantor. 
 
 s Homersham Cox, Inst. 27. * Smith's Action, 188. 
 
 3 Bankr. Act, 1869, s. 15, § 5; In re 6 Fourth Inst. 25; Co. Litt. 159 b. 
 
 Blanshard, 8 Ch. D. 601 ; 21 Jac. 1, c. 19, " Reeves' Hist. ch. xvi. ; Bacon's Abr. 
 
 s. 11 ; 6 Geo. 4, c. 16, s. 72 ; Bankr. Act, Statute (A.) 
 
 1849, s. 125 ; see Robson's Bankr. 412, n. ' Hale, Hist. C. L. 35 ; Co. Litt. 96 a, 
 
 The Bills of Sale Act, 1 878, s. 20, abolished 344 a. 
 the doctrine that goods comprised in a 
 
57° Ordination law dictionary. Outlawry 
 
 ORDINATION is the ceremony by which a bishop confers on a 
 person the privileges and powers necessary for the execution of sacer- 
 dotal functions in the church. 1 He thereby becomes a clerk in holy 
 orders, and capable of being presented and admitted to a benefice. (See 
 Admission, § i ; Benefice; Rector ; Vicar.) 
 
 ORE TENUS means orally. See Demurrer, § 4. 
 
 ORIGINAL. See Conveyance, % 4 ; Evidence, § 8 ; Title; Writ. 
 
 OUST— OUSTER.— To oust a person from land is to take the pos- 
 session from'him so as to deprive him of the freehold. 2 An ouster may be 
 either rightful or wrongful. 3 A wrongful ouster is a disseisin (q. z>.). 4 
 
 Blackstone divides ouster into abatement, intrusion, disseisin, dis- 
 continuance and deforcement, and also applies the term to chattels real ; 5 
 but this use of the word does not seem to be warranted by the old writers. 
 (See Deforcement.) 
 
 OUSTERLEMAIN is a writ directing the seisin or possession of land to be de- 
 livered out of the hands of the crown into those of a person entitled to it. 6 It was the 
 mode by which an heir in ward of land held of the crown ut de honore obtained posses- 
 sion of it on attaining majority. 7 (See Wardship ; Livery.) § 2. Ousterlemain also 
 meant a judgment on a monstrans de droit, deciding that the crown had no title to a 
 thing which it had seized. 8 (See Amoveas Manus ; In Capite.) 
 
 OUTLAW is a person who is put out of the protection of the law by 
 judgment of outlawry (q. v.). See Waived. 
 
 Etymology and History.] — Anglo-Saxon, 4tZaga, titlah, — out of the law. 9 (See 
 Utlawry.) " In the reign of king Alfred, and until a good while after the Conquest, no 
 man could have been outlawed but for felonie, the punishment whereof was death. . . . 
 But in the beginning of the raigne of king Edward the third, it was resolved by the 
 judges, for avoyding of inhumanity and of effusion of Christian blood, that it should not 
 be lawfull for any man, but the sherife onely (having lawfull warrant therefore) to put to 
 death any man outlawed, though it were for felonie." 10 
 
 OUTLAWRY. — § 1. Where an indictment has been found against a 
 person and summary process (see Process) proves ineffectual to compel 
 him to appear, process of outlawry may be issued, though in practice this 
 is rarely or never done. The preliminary process of issuing successively 
 writs of venire facias ad resp., distringas and capias ad resp. (see those 
 titles), is first gone through ; and if the defendant still eludes justice, a 
 writ of exigent is awarded, by which the sheriff is required to proclaim 
 the defendant and call him on five County Court 11 days one after another 
 
 1 Phill. Eccl. Law, no. 8 Staunforde, Prer. 77 b. 
 
 3 Co. Litt. 181 a. 9 Co. Litt. 122 b; Schmid, Ges. der 
 
 3 Litt. \ 401. ♦ Angl. Gloss. 
 
 « Ibid. § 279; Co. Litt. 153 b. 10 Co. Litt. 128 b. 
 
 Bl. Comm. iii. 167. u This means the sheriff's County Court: 
 6 Termes de la Ley, s. v. see County Court, § 8. 
 
 1 Co. Litt. 77 a. 
 
Outstanding LAW DICTIONARY. Overreaching Clause 577 
 
 upon pain of outlawry: a writ of proclamation is also issued and executed. 
 If the defendant still fails to appear, judgment of outlawry is pronounced 
 by one of the coroners for the county : judgment may also be signed in 
 the Crown Office, and a capias utlagatum (q. v.) issued. 1 
 
 § 2. The effect of outlawry seems to be that the outlaw becomes liable 
 to imprisonment, forfeits his property to the crown (his goods imme- 
 diately and his chattels real and the profits of his land upon office found) 
 (see Office), is incapacitated from maintaining civil proceedings, and 
 becomes subject to other disabilities. 2 (See Attainder.) 
 
 § 3. Formerly there were also two kinds of outlawry in civil proceedings, one (called Civil pro- 
 outlawry on mesne process) which was used to compel a defendant to appear in an ceedings. 
 action, the other (called outlawry after judgment) which was a, means of execution to 
 enforce a judgment. 3 The former was abolished by the Common Law Proc. Act, 1852, 
 s. 24 ; the latter by the Civil Procedure Acts Repeal Act, 1879. 
 
 OUTSTANDING. — Where land is vested in a trustee or mortgagee, 
 the cestui que trust or mortgagor can only deal with the beneficial or equit- 
 able interest, the legal estate in the land being, as it is said, outstanding in 
 the trustee or mortgagee. If the trust or mortgage is satisfied without 
 the legal estate being re-vested in the cestui que trust or mortgagor, and 
 he contracts to sell the land, 'the purchaser may require him to get in the 
 legal estate, that is, to obtain a re-conveyance of it from the trustee or 
 mortgagee. 4 
 
 As to outstanding terms, more often called attendant terms, see Term. 
 
 OVER. — In conveyancing, the word " over" is used to denote a con- 
 tingent limitation intended to take effect on the failure of a prior estate. 
 
 Thus, in what is commonly called the " name and arms clause " (q. v.) 
 in a will or settlement, there is generally a proviso that if the devisee 
 fails to comply with the condition the estate is to go to some one else ; 
 this is a limitation or gift over. 6 
 
 OVERDUE. — § 1. A bill of exchange is overdue when the time fixed Bill of 
 for its payment is passed. Such a bill is subject to the peculiar rule, that exc ange " 
 any one taking it takes it subject to the equities of prior holders. 6 (See • 
 
 Bill of Exchange, § 7 ; Equity, § 10.) 
 
 § 2. An overdue ship is one of which news has not been received for Ship, 
 such a time as to give rise to the presumption or probability that she has 
 been lost. 7 
 
 OVERREACHING CLAUSE, in a resettlement, is a clause which 
 saves the powers of sale and leasing annexed to the estate for life created 
 
 1 Archbold, Crim. PI. 86. * Dart, V. & P. 281, 501. 
 
 2 Bl. Comm. iii. 284; First Rep. Com. « Watson's Eq. 11 10. 
 
 Law Comm. (1851), 5; Daniell's Ch. Pr. 6 Ex parte Swan, L. R., 6 Eq. 344; 
 
 52. Ex parte Oriental Commercial Bank, L. 
 
 3 Ibid.; Chitty, Pr. 1309; Comyns, R., 5 Ch. 358. 
 
 Dig. Utlagary ; Co. Litt. 259 b ; Cro. 7 See Stubley v. Imperial Marine Ins. 
 
 Jac. 577. Co., 1 Q. B. D. 507. 
 
 S. P P 
 
578 
 
 Of the poor. 
 
 Of a will. 
 
 Overseers 
 
 LAW DICTIONARY. 
 
 Owe 
 
 by the original settlement, when it is desired to give the tenant for life 
 the same estate and powers under the resettlement. The clause is so 
 called because it provides that the resettlement shall be overreached by 
 the exercise of the old powers. If the resettlement were executed 
 without a provision to this effect, the estate of the tenant for life and the 
 annexed powers would be subject to any charge's for portions, &c. created 
 under the original settlement. 1 (See Resettlement.) 
 
 OVERSEERS.— § i. Overseers of the poor are persons whose duty 
 it is to levy rates for the relief of the poor in a parish, and also, in some 
 cases, to. administer the rates so levied, that is, to see to the relief and 
 management of the poor. Originally the two duties were always com- 
 bined, but under modern statutes guardians of the poor have, in many 
 parishes, been substituted for overseers in all matters relating to the relief 
 and management of the poor, so that the overseers merely levy the rates, 
 while in some other parishes the overseers are bound to conform to the 
 orders of a select vestry (see Guardians of the Poor ; Rate ; Vestry). The 
 overseers in each parish consist of the churchwardens and two, three or 
 four householders appointed yearly by two justices. 2 
 
 § 2. Other duties have been imposed on overseers by modern statutes. 
 Thus they have the duty of making out lists of voters for parliamentary 
 and municipal elections. 3 (See Revising Barrister.) 
 
 § 3. Formerly it seems to have been common for a testator after 
 appointing an executor to appoint an overseer, who had no power to 
 intermeddle with the administration, but only to counsel, persuade and 
 advise the executor. 4 This is now obsolete. 
 
 Treason. OVERT ACT is an open act, or one consisting of something 
 
 stronger than mere words, and evidencing a deliberate intention in the 
 mind of the person doing it. The phrase is chiefly used in the law of 
 treason, it being a rule that a treasonable intention is not punishable 
 unless it is evidenced by some overt act. Thus, to provide weapons or 
 ammunition for the purpose of killing the king, or to assemble and 
 consult on the means of doing so, is an overt act of treason : but the 
 mere speaking of words is not an overt act. 5 
 
 Conspiracy. § 2. The term is also used in the law of criminal conspiracy to signify 
 
 any act done by conspirators in pursuance' of their intention ; the un- 
 lawful agreement of which the conspiracy consists constitutes. an overt 
 act. 
 
 OWE — OWING. — To owe a sum of money is to be under an obli- 
 gation to pay it either at once or at some future time, and such a debt is 
 said to be " owing " as opposed to " payable.'" (See Due.) 
 
 1 Davidson, Conv. Hi. 489. 
 
 2 Steph. Comm. iii. 43 et seq. 
 
 3 See the Parliamentary and Municipal 
 Registration Act, 1878, and the acts there 
 referred to. 
 
 1 Williams on Executors, 233. 
 
 " Bl. Comm. iv. 79. 
 
 6 Archbold, Crim. Pr. 982 ; R. v. 
 Mulcahy, L. R., 3 H. L. 306. 
 
 7 In re Stockton, &C. Co., 2 Ch. D. p. 
 103. 
 
Owelty LAW dictionary. Ownership , 579 
 
 OWELTY. — § 1 . Where an exchange of two pieces of land of Owelty of 
 unequal value is made, and a sum of money or some other compensation excllall g e - 
 is given by the owner of the less valuable land to the owner of the other 
 land, this compensation is said to be given for owelty of exchange, that ' 
 is, to equalize the value. § 2. So, where a partition is made of property Owelty of 
 which cannot be divided into shares of equal value (as where two houses par ' 10n " 
 descend to coparceners, one being worth ten shillings,, the other twenty 
 shillings per annum 1 ), the partition may be made on the terms of the 
 person to whom the property of greater value is allotted giving some- 
 thing by way of owelty of partition to the other : 2 as in the case supposed, 
 by the parcener to whom the house worth twenty shillings per annum is 
 allotted granting a rent-charge of five shillings per annum to the other, 3 
 or paying him a lump sum. 4 
 
 Etymology.] — Norman-French, ouwele, equal ; from Latin, equalisfi 
 
 OWNERSHIP is the most extensive right allowed by law to a person, 
 of dealing with a thing to the exclusion of all other persons, or of all 
 except one or more specified persons. It is therefore a right in rem. 
 (See Right.) Ownership is essentially indefinite in its nature, but in its 
 most absolute form it involves the right to possess and use or enjoy the 
 thing, the right to its produce and accessions, and the right to destroy, 
 encumber, or aliene it : or, as the civilians express it, ownership gives the 
 jus utendi, fruendi, et abutendi ; but the exercise of these rights may be 
 restricted in various manners, and the owner may part with them or limit 
 them in favour of other persons ; so long, however, as the grantees have 
 only definite rights of user over the thing, and the original owner retains 
 an indefinite right, he is still owner; but if he parts with the inde- 
 finite right and retains only a definite one [e. g., a right of way, in the ■ 
 case of land), he ceases to be owner. § 2. Ownership may exist either in Subjects of 
 corporeal or incorporeal things. Thus, a man may be owner of an ownership, 
 annuity, patent, or copyright, as well as of land or furniture. 
 
 I. With reference to the right of user and alienation, ownership is 
 either absolute {dominium plenum), or not (minus plenum). 
 
 § 3. Ownership is said to be absolute when it is subject only to those Absolute, 
 restrictions which are imposed by law on all owners, and are therefore 
 implied in the idea of ownership. These restrictions may arise from the 
 duties of the owner of the thing towards his neighbours and the world 
 at large, which forbid him to make it hurtful or dangerous to those who 
 happen lawfully to come in contact with it. (See Natural Rights; 
 Nuisance?) Restrictions on alienation exist in the case of persons under 
 disability, and are also imposed by the rule against perpetuities and the 
 Mortmain Acts (q. v.). In English law absolute ownership can only exist 
 
 1 Litt. § 251. 5 Britton, 187 b. 
 
 2 Co. Litt. 169 b. 6 As to ownership generally, see Austin's 
 
 3 Litt. § 251. Jurisprudence ; Markby's Elements of 
 
 4 Watson's Comp. Eq. 460 ; White & Law ; Holland's Jurisprudence. 
 Tudor's L. C. ii. 432. 
 
 P P 2 
 
5 8o 
 
 Restricted. 
 
 Ownership 
 
 LAW DICTIONARY. 
 
 Ownership 
 
 Modes of 
 ownership. 
 
 Unlimited. 
 Limited. 
 
 Present, 
 deferred. 
 
 Sole. 
 
 Co-ownership, 
 
 Nominal and 
 
 beneficial 
 
 ownership. 
 
 in chattels, as all land is subject theoretically to the obligations of tenure ; 
 but practically the fee-simple in land gives absolute ownership. (See 
 Estate, § z ; Fee, § 2; Tenure.) 
 
 § 4. Restricted ownership occurs where either concurrent or successive 
 rights of user are vested in other persons than the owner ; thus land may 
 be subject to easements or rights of common (q. v.), or the right of user 
 possessed by the owner for the time being may be restricted by the fact 
 that he has only a limited interest in it, as in the case of a joint tenant, 
 tenant for life, or lessee. (See Waste.) 
 
 II. § 5. Ownership may be divided among several persons in various 
 manners, so that each is owner to a limited extent, either successively, 
 i. e., one after another, or concurrently, i. e., at the same time. These 
 divisions are called modes of ownership. Hence we obtain the following 
 classes of owners. § 6. As to its duration, ownership may be ( 1 ) absolute 
 or unlimited {dominium perpetuum), as in the case of an estate in fee- 
 simple, or (2) limited [d. temporale), that is, liable to determine at a 
 certain time or on the happening of a given event, as in the case of a 
 lessee or tenant for life. § 7. As to the time of enjoyment, ownership 
 may be present, as in the case of an estate in possession, or deferred, as 
 in the case of an estate in reversion or remainder. (See Estate, § 9.) 
 § 8. Ownership is called sole or several, where one person only is 
 entitled to the thing at the same time. Concurrent ownership, where 
 several persons are entitled to the thing at the same thing, takes the 
 form either (1) of co-ownership, or (2) of nominal and beneficial owner- 
 ship. § 9. Co-ownership occurs where several persons are entitled to the 
 possession, user and benefit of one thing, pro indiviso, no one being 
 entitled to any specific part of it, and the right of user of each being 
 subject to a similar right in the others ; as in the case of joint tenancy, 
 coparcenary and tenancy in common (j. ».). § 10. Nominal and bene- 
 ficial ownership occurs where two persons are owners in respect of one 
 thing, although one of them either cannot derive any benefit from it 
 at all, or has only exactly defined rights over it, while the other has the 
 real benefit of the thing. Each is considered owner for certain purposes. 
 Thus, a person (A.) may be owner of a thing as against all the world, 
 except another person (B.), while with regard to that person he may have 
 no rights of ownership at all, being bound, by virtue of a personal 
 relation between them, to allow him to have the use and profits of the 
 property, or even to deal with the property as he may direct. As the 
 rules of the common law only recognize A.'s rights to the property and 
 ignore those of B., A. is called the legal owner, while B. is called the 
 equitable owner, because his rights are only recognized by virtue of the 
 doctrines of equity. The legal owner is the nominal owner, the equitable 
 the beneficial owner. (See Equity; Mortgage; Trust.) So, if the owner 
 of land grants a lease of it for 1,000 years, his ownership becomes prac- 
 tically nominal, while the lessee acquires the beneficial ownership. 
 
 § ii. As to general and special, ordinary and privileged ownership, see 
 Property. 
 
 See further as to ownership, Estate ; Interest; Right; Title. 
 
Oyer LAW DICTIONARY. Panel 581 
 
 OYER, — In the old common law practice, a defendant was said to demand or crave 
 oyer of a deed pleaded by the plaintiff when he asked that it should be read to him, the 
 generality of defendants in early times being incapable of reading themselves ; the record 
 then generally went on to set out the deed in full as having been read to the defendant. 
 This copy or setting out of the deed was also called the oyer. 1 (See Profert.) 
 
 OYER AND TERMINER.— The commission of oyer and terminer 
 is the commission which is issued to certain judges of the High Court 
 and other persons as their authority to "inquire, hear, and determine" 
 all treasons, felonies, and misdemeanors committed within the county 
 into which they are sent. This commission only authorizes them to 
 proceed upon an indictment found at the same assizes, for they must first 
 "inquire" by means of the grand jury, before they can "hear and deter- 
 mine " by the help of the petty jury. (See Jury.) Their power to try other 
 prisoners is conferred by the commission of gaol delivery 3 (q. v.). (See 
 Assize, §3; Central Criminal Court.) "Oyer and terminer" is old 
 French for " hear and determine." 3 
 
 PAINTINGS. See Copyright, § 3. 
 
 PAIS. See In Pais. 
 
 PALATINE COURTS formerly were the Court of Common Pleas 
 at Lancaster, the Chancery Court of Lancaster, and the Court of Pleas at 
 Durham, the second of which alone now exists. (Seethe respective titles.) 
 The Courts of the County Palatine of Chester were abolished by stat. 1 1 
 Geo. 4 & 1 Will. 4, c. 70. 4 Palatine Courts were formerly exempt from 
 the control and process of the Courts at Westminster. (See County Pala- 
 tine; Court, § 3, n. (4).) 
 
 PANDECTS is another name for the Digest of Justinian. See Corpus 
 Juris Civilis; Digest. 
 
 PANEL generally means the printed list, made up by the sheriff, of 
 the persons who have been summoned to serve as jurors for the trial of 
 all actions at a particular sittings ; 5 but the term is also applied to the 
 list of special jurors returned by the sheriff for the trial of a particular 
 
 1 Litt. § 365 ; Co. Litt. 35 b, 121 b ; Bl. 3 Britton, 10 a. 
 
 Comm. iii. 299. 4 Bl. Comm. iii. 77 etseq., notes (6) and 
 
 2 Steph. Comm. iv. 313; Jud. Act, (7); Steph. Comm. 347. 
 1873, ss. 16, 37. 6 Smith's Action, 121. 
 
582 Pannage law dictionary. Paramount 
 
 action after the process of nominating and reducing (q. v.). (See Impanel; 
 Jury.) 
 
 Etymology.] — " Pannell is an English word, and signifieth a little part ; for a pane 
 is a part, and a pannell is a little part, as a pannell of wainscot, a pannell of a saddle, 
 and a pannell of parchment wherein the jurors' names be written and annexed to the 
 writ." 1 
 
 PANNAGE.— A common of pannage is the right of feeding swine 
 on mast and acorns at certain seasons in a commonable wood or forest. 2 
 It does not prevent the owner of the wood from lopping and cutting 
 down the trees in the ordinary course of management. 3 
 
 PAPER. — § 1. It is the practice to exhibit in each Court a "paper" 
 or list of the business to be transacted, to enable the parties to know 
 when their presence will be required. A solicitor is bound to attend in 
 Court (personally or by a clerk) when a case in which he is concerned is 
 in the paper, and he is entitled to charge a fee for so doing. 4 
 
 § 2. In the Queen's Bench Division there are numerous varieties of 
 papers, the chief of which are — the crown paper, or list of cases on 
 the crown side of the Court ; — the new trial paper, or list of cases in which 
 rules nisi for new trials have been granted ; — the special paper, or list of 
 demurrers, special cases, appeals from inferior Courts, &c. ;-^and the per- 
 emptory paper, or list of cases ordered to stand over to a particular day in 
 the next sittings. All these papers contain business to be heard by divi- 
 sional Courts, and hence the days on which such business is transacted 
 were formerly called paper days. The days on which the Courts will sit 
 at nisi prius are given in the sittings paper, while the list of actions for 
 trial is called the cause list. 5 
 
 PAPER BOOKS, in proceedings on a writ of error in a criminal 
 case, are copies of the proceedings with a note of the points intended to 
 be argued, delivered to the judges by the parties two days before the 
 argument. 6 
 
 Title. PARAMOUNT means superior. Thus, "title paramount" means a 
 
 superior title: 7 for 'instance, if A. purports to convey to B. land which 
 really belongs to C, and C. ejects B. from the land, B. is said to be 
 evicted by title paramount, meaning a title superior to that granted to him 
 by A. 
 
 Seignory. § 2. In the law of tenure, if A. holds land in fee of B., and B. holds 
 
 the same land in fee of C, then C. is the lord paramount, and he has the 
 seignory paramount, as opposed to A. the tenant paravail, and B. the 
 mesne, whose seignory is called the mesnalty (q. v.). B 
 For the etymology of the word, see Paravail. 
 
 1 Co. Litt. 158 b. " Rules of Court (Costs), August, 1875. 
 
 3 Elton on Commons, 25 ; Williams on s See Archbold, Pr. 171, 350; Tidd, 
 
 Commons, 168. Pr. 505. 
 
 3 Chilton v. Corporation of London, 7 6 Archbold, Crim. PI. 205. 
 
 Ch. D. 562. 1 Co. Litt. 173 b. 
 
 8 Litt. § 583. 
 
Paraphernalia LAW DICTIONARY. Pardon 583 
 
 PARAPHERNALIA are such apparel and ornaments given to a 
 married woman as are suitable to her condition in life, and are expressly 
 given to her to be worn as ornaments of her person only. 1 They differ 
 from property held by the wife for her separate use in that the husband 
 may dispose of them during his life and that they are liable for his debts, 
 while they differ from her ordinary chattels in that the husband has no 
 power to dispose of them by will, so that if she survives him she is 
 entitled to them, subject to his debts. a 
 
 Etymology.] — Greek, •rajapEfra,, those things which a bride brings (Qefu*) over and 
 above (naya) her dower, 3 hence botia paraphernalia.* 
 
 PARAVAIL means inferior or subordinate. Thus, where A. is 
 indebted to B., and B. is indebted to C, B. is the primary debtor and 
 A. is the sub-debtor or debtor paravail. 5 
 
 § 2. The term is chiefly used with reference to the tenure of estates in 
 land, a tenant paravail being a tenant who holds land in fee of another and 
 has no tenant who holds of him, as opposed to a mesne lord and a lord 
 paramount (q. v.). 
 
 Etymology.] — Notwithstanding Coke, who says that "the tenant of the land is 
 called tenant per availe, because it is presumed that he hath availe and profit by the 
 land,"" it seems clear that paravail is compounded of par and the French aval = 
 below, and paramount oipar and amont = above. 7 
 
 PARCEL, in the law of real property, signifies a part or portion of 
 land. Thus, every piece of copyhold land forms parcel of the manor to 
 which it belongs : that is to say, so far as the freehold is concerned, the 
 copyholds belong to the lord, and form part of his lands, although 
 his beneficial interest in them is comparatively small, being subject to 
 the customary estates of the tenants. (See Copyhold; Demesne; Manor.) 
 
 PARCELS. — In a conveyance, lease or other deed dealing with pro- 
 perty, that part which follows the operative words is called the parcels. 
 It contains the description, either expressly or by reference, of the pro- 
 perty dealt with, and in the case of lands generally begins with some 
 such words as "All that piece or parcel of land," &c. Sometimes the 
 full description is contained in a recital or in a schedule to the deed, with 
 a reference to a map drawn on the deed. 8 (See Abstract ; Abuttals; Deed ; 
 Operative Part ; Premises?) 
 
 PARCENER is the old-fashioned equivalent for coparcener (q. v.)J> 
 
 PARDON is where the crown releases a person from the punishment 
 which he has incurred for some offence. A pardon may be granted either 
 
 1 Snell's Eq. 297. 6 Manning's Exchequer, 8, n. (0), citing 
 
 '- Williams, P. P. 432; Macqueen, Husb. Keilway, 187. 
 and Wife, 157. 6 Second Inst. 296. 
 
 3 Just. Cod. V. 14, I. 8. 7 Littre, Diet. s. w. Amont and Aval. 
 
 * Tipping v. Tipping, I P. W. 729. 8 Davids. Conv. i. 79, 85. 
 
 9 Litt. § 241. 
 
584 Parent and Child law dictionary. Parish 
 
 (1) before or during a prosecution, in which case it may be pleaded in 
 bar, or (z) after conviction, in which case it may be pleaded in arrest of 
 judgment or in bar of execution, so that the offender is discharged from 
 punishment. Some offences, however, cannot be pardoned, e.g., a 
 common nuisance while it remains unredressed: and a pardon cannot 
 be pleaded to a parliamentary impeachment, § 2. A pardon is granted 
 by warrant under the great seal or under the sign manual. It may be 
 either free or conditional, that is, the crown may annex to it a condition 
 on the performance of which the operation of the pardon will depend. 1 
 
 PARENT AND CHILD.— § 1. The relation of parent and child is 
 not one which is much interfered with by the law, almost the only duties 
 arising from it which are capable of legal enforcement being those of 
 maintenance and education. Every parent is bound to provide necessaries 
 for his children if he is able to do so and they are unable to support 
 themselves ; 2 and is bound to send them to school. 3 On the other hand, 
 the children of a poor person not able to work are bound to maintain 
 him or her if they are able to do so. 4 These reciprocal obligations of 
 maintenance are only enforceable as public duties, and not by the person 
 liable to be maintained. (See Maintenance ; Poor.) 
 
 § 2. As regards third persons, the relation gives the parent the right 
 of protecting the person and property of his child, and vice versa., 6 while 
 in some cases the child is by a fiction considered as the servant of the 
 parent. (See Seduction.) 
 
 See Bastard ; Guardian ; Infant. 
 
 PARISH is that district which is committed to the charge of one 
 parson or vicar, or other minister of the Church of England, having cure 
 of souls therein. A parish is, however, a division for civil as well as for 
 ecclesiastical purposes : thus the collection and application of the poor- 
 rate is parochial. 6 By modern statutes provision is made for the sub- 
 division of parishes into districts or parishes for ecclesiastical, poor law 
 and taxation purposes, and for the amalgamation of detached portions of 
 parishes. 7 (See Chapel ;' Ecclesiastical Commissioners ; Overseers ; Perambu- 
 lation; Poor Law.) 
 
 § 2. A place not included in a parish is called extra-parochial. Such 
 places are, however, now in substantially the same position for civil 
 purposes as if they were parishes, that is, so far as regards the collection 
 and application of rates, the registration of voters, &c. 8 (See Tithes.) 
 
 1 Steph. Comm. iv. 468, 404. ' Stephen, i. 22, ii. 751 ; Phillimore, 
 
 2 Ibid. ii. 288, citing stats. 43 Eliz. c. 2; Eccl. Law, 2167 ; the principal acts are 
 5 Geo. 1, c. 8 ; 59 Geo. 3, c. 12 ; 5 Geo. 4, 58 Geo. 3, c. 45 ; 6 & 7 Vict. c. 37 ; 7 & 
 c. 83 ; 4 & 5 Will. 4, c. 76; 7 & 8 Vict. 8 Vict. c. 94, and 19 & 20 Vict. c. 104 ; 
 c. 101 ; 11 & 12 Vict. c. no; 31 & 32 39 & 40 Vict. c. 61 ; Foster v. Medwin, 
 Vict. c. 122, s. 37. 5 C. P. D. 87; Taxes Management Act, 
 
 3 Stat. 33 & 34 Vict. c. 75. 1880, ss. 36 etseq. 
 
 * Steph. 111. 56. a Steph. i. 119, 11. iii. 44, n. ; stats. 20 
 
 5 Ibid. ii. 292, 296. Vict. c. 19; 25 & 26 Vict. c. 61. 
 
 6 Ibid. i. 117. 
 
Park law dictionary. Parson 5S5 
 
 PARK, in the technical sense of the word, is the same as a chase (17. v.) 
 except that it is enclosed, while a chase is always open. 1 A park in the 
 popular sense of the word, namely, one erected without lawful warrant, is 
 sometimes called a nominative park. 3 The parks forming part of the 
 demesnes of the crown are called royal parks. 3 (See Demesne, § 5.) 
 
 PARLIAMENT.— The parliament of the United Kingdom of Great 
 Britain and Ireland is composed of the king or queen and the three 
 estates of the realm, viz., the lords spiritual, the lords temporal, and 
 the commons. These several powers collectively make laws that are 
 binding upon the subjects of the British empire, and also separately 
 enjoy privileges and exercise functions peculiar to each. 4 For details see 
 House of Lords ; House of Commons ; Prerogative: also Act of Parliament ; 
 Borough; Contempt of Parliament ; Impeachment; Knight. 
 
 PARLIAMENTARY AGENTS are persons (usually solicitors) who 
 transact the technical business involved in passing private bills through 
 the Houses of Parliament. They are required to sign a declaration and 
 give security for compliance with the rules of the House of Commons. 5 
 
 PAROL, in its technical sense, as applied to a legal transaction, 
 means that it has been effected without the solemnity of a deed. There- 
 fore an assignment of chattels, or a contract, or a lease, which is either 
 verbal or reduced into a writing not under seal, is called a parol assign- 
 ment, contract or lease (see Contract, § 1). Similarly in the law of 
 evidence, where the contents of a document are brought before the Court 
 either orally or by means of a copy, this is called adducing parol evidence 
 of its contents. 6 Parol evidence also sometimes means extrinsic evidence. 
 (See Evidence, §§ 9, 13.) 
 
 As to demurrer of the parol, see Demur, § 2. 
 
 Etymology.] — "Parol" literally means verbal or oral. In early times few persons 
 could write, and therefore when a document was required to record a transaction the 
 parties put their seals to it and made it a deed. Transactions of less importance were 
 testified by word of mouth or by parol, and this use of" parol," to signify the absence of 
 a deed, remained after simple writing without sealing had come into use. 7 
 
 PARSON, "persona ecclesice, is one that hath full possession of all the 
 rights of a parochial church." 8 He is called parson, persona, because he 
 personates or represents the church. He is a corporation sole. 9 (See 
 Corporation, §2.) 
 
 § 2. " Persona impersonata, parson impersonee, is the rector that is in 
 possession of the church parochiall, be it presentative or impropriate, 
 
 1 Manwood, Forest, 7 ; Co. Litt. 233 a. i. 146 ; Stephen, Comm. ii. 318. 
 
 2 2 Inst. 199. 6 May, Pari. Pr. 725. 
 
 3 Stat. 35 & 36 Vict. c. 15. See also 6 Best on Evidence, 311. 
 the Public Parks, Schools and Museums ' "Williams, R. P. 149. 
 Act, 1871. 8 Bl. Comm. i. 384. 
 
 4 May's Parliamentary Practice, 2; Horn. 9 Ibid. ; Co. Litt. 300 a. 
 Cox, Inst. 8 ; Co. Litt. 109 b ; Bl. Comm. 
 
586 
 
 Parson 
 
 LAW DICTIONARY. 
 
 Part 
 
 and of whom the church is full." 1 In other words, the rector of a 
 presentative advowson is not complete parson until he has been in- 
 ducted* (q. v.), while in the case of an impropriate advowson the rector 
 is perpetual parson. 3 
 
 See Advowson ; Rector; Vicar. 
 
 Instrument. 
 
 Legal pro- 
 ceedings. 
 
 Action. 
 
 PART — PARTY. — § i. A person who takes part in a legal trans- 
 action or proceeding is said to be a party to it. Thus, if an agreement, 
 conveyance, lease, or the like, is entered into between A. and B., they are 
 said to be parties to it ; and the same expression is often, though not very 
 correctly, applied to the persons named as the grantors or releasors in a 
 deed poll {q. v.). 4, 
 
 § 2. Parties to formal instruments are divided into classes or parts 
 according to their estates or interests in the subject-matter of the trans- 
 action ; thus, if A. mortgages land to B., C. and D., and they all agree 
 to sell it to E. and F., the conveyance would be made between B., C. and D. 
 of the first part, (because the legal estate, which is part of the title to the 
 land, is vested in them jointly), A. of the second part, (because he has the 
 equity of redemption, which is .the remainder of the title to the land), and 
 E. and F. of the third part, because the whole title is to be conveyed to 
 them. As to the distinction between parties and privies, see Privy. 
 
 §3. In a legal proceedirtg, the parties are the persons whose names 
 appear on the record. In chancery practice, those persons who merely 
 have the right of attending the proceedings are sometimes called quasi- 
 parties, to distinguish them from the parties in the strict sense, namely, 
 the plaintiffs and defendants. (See Notice of Decree.) § 4. In an 
 action, the parties are divided into plaintiffs and defendants, and, if 
 necessary, they are distinguished according to the manner in which 
 they were introduced into it. Thus, if R. W. brings an action against 
 O. S. and J. B., and the defendant O. S. in his defence raises a 
 counter-claim against the plaintiff R. W. and also against the defendant 
 J. B. and a third person J. W., the parties to the action are divided 
 thus: 5 
 
 Between R. W Plaintiff, 
 
 and 
 O. S. and J. B. . . . . Defendants. 
 (By original action.) 
 
 And between the said O. S. . . . Plaintiff, 
 and 
 The said R. W. and J. B. and J. W. . Defendants. 
 (By counter-claim.) 
 
 As to who should be made parties to an action, see Joinder; Misjoinder; 
 Nonjoinder. 
 
 1 Co. Litt. 300 b. 
 
 2 Ibid. 119 b. 
 
 3 Steph. Comm. ii. 678. 
 
 4 Davids. Conv. i. 37. 
 8 Jud. Act, 1875, App. (C), Form 
 No. 14. 
 
Part Payment law dictionary. Particulars 587 
 
 § 5. In the case of a petition, the parties consist of the petitioners and Matter, 
 the respondents. In the case of a summons, the persons at whose instance 
 it is issued are called the applicants, and the persons to whom it is 
 addressed the respondents. 
 
 § 6. Parties to a proceeding are also divided into necessary and proper. Necessary 
 Necessary parties are those who are interested in the subject-matter of P art y- 
 the proceedings, and in whose absence, therefore, it could not be fairly 
 dealt with : proper parties are those who, though not interested in the Proper party, 
 proceedings, are made parties for some good reason ; thus, where an 
 action is brought to rescind a contract, any person is a proper party to it 
 who was active or concurring in the matters which gave the right to 
 rescind. 1 
 
 § 7. As to the parties to a bill of exchange, see Bill of Exchange, § 3 ; Bill of 
 and as to the parts of a bill of exchange, see § 10. exchange. 
 
 PART PAYMENT, as the phrase implies, is payment of part of a 
 debt. Such a payment (independently of its effect in satisfying the debt 
 pro tanto) has a legal effect (1) in dispensing with the necessity of writing 
 in contracts for the sale of goods under the Statute of Frauds (q. v.) ; 2 and 
 (2) in reviving a debt (or rather the balance of a debt) which would 
 otherwise be barred by the Statute of Limitations, payment of part being 
 evidence of a fresh promise to pay. 3 Part payment by one joint debtor 
 does not revive the debt against the others. 4 
 
 PART PERFORMANCE. See Performance. 
 PARTIBILITY. See Gavelkind. 
 PARTICULAR ESTATE. See Estate, § 9. 
 
 PARTICULARITY, in a pleading, affidavit, or the like, is the allega- 
 tion of particulars or details. An excess or deficiency of particularity in 
 a pleading is equally a defect ; the latter entitles the opposite party 
 either to an order for particulars (q. v.), or to an order requiring the other 
 party to amend his pleading. (See Amendment.) 
 
 PARTICULARS OF BREACHES AND OBJECTIONS.— In 
 
 an action for the infringement of letters patent, the plaintiff is bound to 
 deliver with his declaration (now with his statement of claim) particulars 
 (that is, details) of the breaches which he complains of. 5 And the defen- 
 dant in an action for infringement, and the prosecutor in any proceedings 
 by scire facias to repeal letters patent, are bound to deliver with the plea 
 (now statement of defence) or declaration (as the case may be) particulars 
 of any objections to the validity of the patent on which they mean to rely 
 at the trial." 
 
 1 Bagnallv. Carlton, 6 Ch. D. at p. 401. 4 Stat. 19 & 20 Vict. c. 97, s. 14; 
 
 3 Chitty on Contracts, 373. Williams, P. P. 364. 
 
 3 Ibid. 764. 6 15 & 16 Vict. c. 83, s. 41. 
 
 6 Ibid. ; Chitty, Pr. 1465. 
 
588 
 
 Particulars 
 
 LAW DICTIONARY. 
 
 Partition 
 
 Q : B. 
 
 Division. 
 
 Chancery 
 Division. 
 
 County Court. 
 
 Bankruptcy. 
 
 PARTICULARS OF DEMAND OR SET-OFF.— § i. In an 
 
 action in the Queen's Bench Division (following the practice of the old 
 common law Courts), where the pleadings of either party contain a general 
 statement on some material subject, the opposite party is frequently 
 entitled to particulars, i. e., a detailed statement of the matters intended 
 to be covered by his opponent's pleading, so that he may be acquainted 
 with the precise nature of the allegation, and enabled to prepare his 
 answer to it. There is another reason for obtaining particulars, namely, 
 that they tie up the party in his proof, and prevent him from taking 
 advantage, as he otherwise might, of very general and comprehensive 
 statements in his pleading. 1 Particulars are generally obtained by 
 summons. 2 
 
 § 2. In actions in the Chancery Division there is no fixed practice as 
 to particulars, and they are rarely asked for. Some of the judges have 
 laid down the rule that particulars will only be ordered in " common law 
 actions," that is, in such actions as, before the Judicature Act, could only 
 have been brought in a common law Court. 3 
 
 § 3. In every County Court action (unless it is for the recovery of a sum 
 not exceeding forty shillings) the plaintiff must, on entering the plaint, file 
 particulars showing the nature of his demand or cause of action, and the 
 nature of the relief claimed : a copy is served with the summons. 4 (See 
 Action, § 20.) 
 
 § 4. In bankruptcy, before a creditor can issue a debtor's summons 
 (g. v.), he must file an affidavit stating (inter alia) that an account in 
 writing of the particulars of his demand has been sent to the debtor : 
 another copy of the particulars of demand is served with the debtor's 
 summons. 5 
 
 Voluntary. 
 
 PARTICULARS OF SALE.— When property such as land, 
 houses, shares, reversions, &c, is "to be sold by auction, it is usually 
 described in a document called the particulars, copies of which are 
 distributed among intending bidders. They should fairly and accurately 
 describe the property. 6 (See Conditions of Sale.) 
 
 PARTITION is where land belonging to two or more joint tenants, 
 tenants in common, coparceners or heirs in gavelkind is divided among 
 them in severalty, each taking a distinct part. Partition is either volun- 
 tary, that is, by agreement between the parties, or compulsory. 
 
 § 2. At the present day a voluntary partition is effected either by a 
 deed, which varies according to the nature of the property and the tenancy, 
 or by obtaining an order of exchange from the Inclosure Commissioners, 
 which takes effect without any further conveyance. 7 
 
 1 Smith's Action at Law, 105. 
 
 2 Day, C. L. P. Acts, 417. 
 
 3 Augustinusv.Nerinckx, i6_Ch. D. 13. 
 
 4 County Court Rules, 1875, Vii. 1. 
 
 5 Robson's Bankr. 140, 141 ; Bankr. 
 Rules (1870), 18, 19, 20, Forms 2, 3. 
 
 Dart's Vendors and Purchasers, 113; 
 
 Davids. Conv. i. 511. 
 
 7 Davids. Conv. v. (2), 1 ; Williams, R. 
 P. 140; White & Tudor's L. C. ii. 407. 
 For the old ways of malting partition, see 
 Litt. §§ 243 et seq.; Co. Litt. 167 a. Coke 
 also uses partition in the sense of severance 
 of the unity of title, as where he says that 
 
Partition law dictionary. Partner 539 
 
 § 3. Compulsory partition is effected by an action for partition in the Compulsory. 
 Chancery Division of the High Court, 1 in which case the details are 
 generally settled by a scheme in chambers. (See Scheme.) The Partition 
 Act, 1868 (amended by the Partition Act, 1876), empowers the Court to 
 make an order for the sale of property liable to partition, and the distri- 
 bution of the proceeds among the persons interested, in cases where that 
 course is more convenient than an actual division of the property itself. 2 
 (See Owelty.) 
 
 PARTNER— PARTNERSHIP.— Partnerships are of two kinds: 
 (i) true partnerships, and (ii) quasi-partnerships, or partnerships as regards 
 third persons. 
 
 I. § 1 . A true partnership is a voluntary unincorporated association of True partner- 
 persons, formed, mainly from personal knowledge of one another, for the s up ' 
 purpose of carrying out a joint operation or undertaking with the object 
 of making a profit to be shared among them. 3 Although these are the 
 essential ingredients in a partnership, its legal nature cannot be under- 
 stood unless the following principles are borne in mind : — 
 
 (1) Every partner is entitled and bound to take part in the conduct of 
 the business, unless it is otherwise agreed between them. 
 
 (2) Every partner is liable for the debts of the partnership to the whole 
 extent of his property. As between the partners, each partner is bound 
 to contribute to the debts in proportion to his share of the profits. (See 
 Contribution.) 
 
 (3) As regards third persons, the act of every partner, within the 
 ordinary scope of the business, binds his co-partners, whether they have 
 sanctioned it or not. 
 
 (4) The relation between the partners being personal, no one of them 
 can put a stranger in his place without the consent of the others. 
 
 (5) One partner cannot sue another (i) if any matter of partnership 
 account is involved in the dispute ; or (ii) if the damages, when recovered, 
 will belong to the firm ; but one partner may sue another for breach of 
 an agreement to contribute capital. 4 
 
 As to the analogy between a partnership and a corporation, see Firm. 
 As to unincorporated partnerships with transferable shares, see Association; 
 Company, § 3 ad finem. As to the distinction between partners and part- 
 owners, see Part-owners. 
 
 § 2. Where no time for the duration of the partnership is fixed, it is At will, 
 called a partnership at will, and may be dissolved at the pleasure of any 
 partner at a moment's notice. 5 As to other modes of dissolving a partner- 
 ship, see Dissolution, § 2 ; Account, § 5. 
 
 the conveyance by a coparcener of her part Watson's Comp. Eq. 705 ; Pooley v. Driver, 
 
 operates as a partition in law ; Co. Litt. 5 Ch. D. 458 ; Ex parte Tennant, 6 Ch. 
 
 167 b, Hargrave's note (2) ; Litt. § 309. D. 303 ; Smith's L. C. i. 922. 
 
 1 Jud. Act, 1873, s. 34. 4 Lindley, 908. 
 
 2 Williams, 141 ; Watson, Comp. Eq. 5 Smith, M. L. 26. As to the frame of 
 461. partnership deeds, see Davids. Conv. v. (2) 
 
 3 See Lindley on Partnership ; Dixon on 303. 
 Partn., passim ; Turing on Companies, 2 ; 
 
59° 
 
 Partner 
 
 LAW DICTIONARY. 
 
 Partner 
 
 Retiring and 
 
 continuing 
 
 partners. 
 
 General 
 partnership. 
 
 Particular, 
 limited or 
 special. 
 
 Sub-partner- 
 ship. 
 
 Quasi- 
 partnerships. 
 
 § 3. When a partner dies or retires, and the partnership agreement 
 provides that the partnership shall not thereby be dissolved, the remaining 
 partners are called the continuing partners. A retiring partner (and the 
 estate of a deceased partner) is not liable for the partnership debts con- 
 tracted after his connection ceased, provided, in the case of a retiring 
 partner, that notice of the fact is given. No notice is required in the case 
 of a dormant partner. 1 As to the bankruptcy of partners, see Joint, § 7 ; 
 Conversion, § 8 ; Firm, §§ 3, 4. 
 
 True partnerships are of two kinds. § 4. A general partnership is 
 where the business includes all transactions of a particular class, as where 
 
 A. and B. agree to carry on the business of bankers, grocers, &c. § 5. 
 A particular (limited or special) partnership is where the parties agree to 
 share the profits of one particular transaction : as where A. and B. agree 
 to join in selling a particular cargo of goods, or in working a particular 
 patent. 2 
 
 § 6. A sub-partnership is where a partner in a firm makes a stranger a 
 partner with him in his share of the profits of that firm. Thus, if A. and 
 
 B. carry on business as A., B. & Co. ; and B. agrees with C. to give him 
 a share of the profits received from the business of A., B. & Co. ; C. is a 
 sub-partner with B., but not a partner in the firm of A., B. & Co. 3 (See 
 Firm, § 4.) 
 
 II. § 7. A quasi-partnership, or partnership as regards third persons, is 
 where one person is liable for the debts of another as if he were his 
 partner, although no true partnership exists. The cases in which this 
 occurs are referable to one of two principles. § 8. The first is, that where 
 a person carries on business as agent for another, the latter is liable to 
 third persons for the debts of the business. If the business is not carried 
 on in his name, he is called a dormant or undisclosed partner. 4 Formerly, 
 the doctrine was carried much further, so as to make every person who 
 received a share of the profits of a business liable for its debts ; 5 but the 
 better opinion now is, that an agreement entitling one person to share the 
 profits made by another gives rise to nothing more than a presumption 
 that the relation of principal and agent exists between them, 6 and the 
 passing of the Partnership Act, 1865 {q.v.), has deprived the question of 
 much of its importance. By the operation of this act, a person who 
 merely lends money to a firm, in consideration of receiving a share of the 
 profits, is not a partner even as regards third persons, but in popular 
 
 1 Lindley, 418 et seq. 
 
 2 Ibid. 56. It is sometimes said that 
 there is a third land of partnership, called 
 a universal partnership ; but this seems to 
 be inaccurate. It is true that in Roman 
 law there was a societcis omnium bonorum 
 (Dig. xvii. 2, fr. 1, § 1 ; fr. 3, § 1, fr. 5, 
 fr. 73) ; but societas is a very different thing 
 from "partnership," for a societas might 
 be entered into for charitable purposes, 
 mutual improvement, &c, and it is said 
 that in reality a societas omnium bonorum 
 only occurred between married persons. 
 Holtz. Encycl. s. v. Societas. 
 
 3 Lindley, 55 ; Watson, 709. 
 
 4 Cox v. Hickman, 8 H. L. C. 268. 
 
 5 See Waugh v. Carver, 2 H. Bl. 235 ; 
 Smith's L. C. i. 922. 
 
 6 Lindley, 33 etseq.; Watson,7ld; Mollwo, 
 March <5r= Co. v. Court of Wards, L. R., 4 
 P. C.419. As to whether holders of partici- 
 pating policies in insurance companies are 
 liable for its debts, see In re Albion Life 
 Ass. Co., 16 Ch. D. 83. Holders of poli- 
 cies in a mutual insurance company are not 
 liable for its debts, unless they are members 
 of the company. See Winston&'s Case, 12 
 Ch. D. 239, Re Albion Society, 16 Ch. D. 83 ; 
 In re Great Britain, &c. Society, 16 Ch. D. 
 2S3- 
 
Partnership Act law dictionary. Party -wall 591 
 
 language he is sometimes called a dormant partner, 1 or commanditaire 
 (q. v.). § 9. The second principle by which a person may be subjected Ostensible 
 to the liabilities of a partner is, that where a person holds himself out to P artner - 
 third persons as a partner in the firm, he is liable to those persons for 
 debts contracted by the firm : such a person is called an ostensible 
 partner. 2 Generally, the " holding out" consists in his allowing his name Nominal 
 to appear in the firm as if he were a partner, and he is then sometimes P artner - 
 called a nominal partner. 3 
 
 PARTNERSHIP ACT, 1865 (also called Bovill's Act), is the 
 statute 28 & 29 Vict. c. 86. Its object was to abolish the common law 
 rule that ^a person who shares in the profits of a firm is prima facie 
 so far a partner as to be liable for the business debts of the firm. 4 And 
 it, therefore, provides that no one of the following facts shall of itself 
 make the person concerned a partner in the firm: — (1) An advance of 
 money to the firm in consideration of a periodical payment out of or 
 varying with the profits ; (2) remuneration of the services of a servant 
 or agent by a share of profits ; (3) the receipt of an annuity out' of the 
 profits by the widow or child of a deceased partner ; (4) the receipt of a 
 share of profits in consideration of the sale of the goodwill. If the firm 
 becomes bankrupt, the persons who have advanced money or sold the 
 goodwill to it in consideration of a share of the profits, are npt to recover 
 anything until the other creditors have been paid in full. 4 
 
 PART-OWNERS are persons who are entitled to property either 
 jointly, in common, or in coparcenary. § 2. Part-owners differ from 
 partners in several respects, the principal of which are: — (1) that a partner 
 is the agent of his co-partners within the ordinary scope of the business, 
 so that he has power to bind them towards third persons even against 
 their will, while a part-owner, in the absence of a special agreement, 
 has no such power, and can only deal with his own interest in the 
 property; 5 (2) that a part-owner can transfer his interest to a stranger, 
 while a partner cannot without the consent of his co-partners. § 3. The Ship, 
 term " part-owners " in this relation chiefly occurs in the law of merchant 
 shipping. Part-owners of a ship are tenants in common. Difficult 
 questions" often arise as to whether the co-owners of a vessel are partners 
 in respect of her, either generally or for a particular voyage. (See also 
 Managing Owner.) 
 
 PARTY. See Part. 
 
 PARTY-WALL. — In the primary and most ordinary meaning of 
 the term, a party- wall is — (1) a wall of which the two .adjoining owners 
 are tenants in common. But it may also mean — (2) a wall divided 
 
 1 Thring, 4; Smith's Merc. Law, 20. 3 Lindley, 489; Smith's L. C. i. 947, 
 
 2 Lindley, 47 et seq. ; Watson, 711; 951. 
 
 Thring, 6; Smith, M. L. 23. The term * See Lmdley on Partnership, 35; Wat- 
 
 seems also to be used to denote a real son's Comp. Eq. 710. 
 
 5 Lindley on Partn. 58. 
 
 Foard on Merch. Shipping, 31 et seq. 
 
 partner whose name appears, as opposed to 
 a secret partner; Smith's L. C. i. 947. 
 
59-- 
 
 Pass 
 
 LAW DICTIONARY. 
 
 Pasturage 
 
 longitudinally into two strips, one belonging to each of the neighbouring 
 owners; (3) a wall which belongs entirely to one of the adjoining 
 owners, but is subject to an easement or right in the other to have 
 it maintained as a dividing wall between the two tenements ; the term is 
 so used in some of the Building Acts ; or (4) a wall divided longitudinally 
 into two moieties, each moiety being subject to a cross easement in favour 
 of the owner of the other moiety. 1 
 
 Party- walls in London are subject to the provisions of the stat. 1 8 & 1 9 
 Vict. c. 122. 
 
 Convey- 
 ancing. 
 
 Chancery 
 practice. 
 
 PASS. — I. § 1. In conveyancing, to pass is to transfer or be trans- 
 ferred. Thus, we may either say that a conveyance by a person entitled 
 to make it passes the estate limited by it (see Operative Words), or that the 
 estate passes by the conveyance. 
 
 II. § 2. In the practice of the Chancery Division, when the draft 
 (or "minutes ") of an order or judgment has been settled by the registrar 
 in the presence of the parties, it is left for engrossment, and when it has 
 been engrossed, the parties again attend to examine the engrossment 
 . with the draft ; if it is correct they sign it, and this is generally called 
 "passing" the order, but strictly speaking the passing is performed 
 by the registrar, who places his initials at the end : after which the order 
 is entered (q. v., and see Minutes, § 2). 2 § 3. When an account has been 
 brought into chambers and vouched, the chief clerk is said to have 
 passed or allowed it, with or without disallowances or surcharges. The 
 term "pass" is also applied to the accounting party who brings in the 
 account. (See Account, §§ 5, 6.) 
 
 PASSAGE is the easement of passing over 'a piece of private water, 
 analogous to a right of way over land. 3 (See Easement ; Way.) 
 
 PASSAGE COURT. See Court of Passage. 
 
 Several. 
 
 PASTURAGE— PASTURE.— § 1. " Pasture " means both (i) land 
 employed for the pasturage of cattle, &c, and (ii) the right of pasture. 4 
 
 § 2. A right of pasture is the right of feeding animals on the grass and 
 other wild herbage, and the leaves, mast, acorns, &c. of trees growing on 
 land belonging to another person. Rights of pasture are of three kinds, 
 several, common, and seignorial. 
 
 § 3. A several pasture is one which entitles the person having the 
 right to exclude the owner of the land from feeding his beasts on it. s 
 Such a right may be created by grant or prescription. 6 Sheepheaves (q. v.) 
 seem to be several rights of pasture. 
 
 1 Watson v. Gray, 14 Ch. D. 192. 
 
 2 Hunter's Suit, 87 ; Darnell's Ch. Pr. 
 876. 
 
 3 Alhan v. Brounsatt,, Yelv. 1 63; Tailor 
 v. Markham, I Brownl. 215. 
 
 4 " If a man doth grant all his pastures, 
 
 pasturas, the land itselfe imployed to the 
 feeding of beasts doth passe, and also such 
 pastures or feedings as he hath in another 
 man's soile." Co. Litt. 4 b. 
 
 Co. Litt. 122 a. 
 
 Williams on Common, 9. 
 
Patent Bill Office law dictionary. Patent Right 593 
 
 § 4. A common of pasture is where the person having the right can Common, 
 only exercise it in common with the owner of the soil. As to the 
 varieties of common of pasture, see Common, §§ 4 et seq. 
 
 § 5. A seignorial right of pasture occurs in the case of a fold- Seignorial. 
 course (q. v.). , 
 
 § 6. By the 113th section of the General Inclosure Act, 1845, any Regulated 
 land directed to be inclosed under that act may be set apart to be stocked P asture - 
 and depastured in common by the persons interested therein. The 
 valuer acting in the matter is to ascertain and allot the stints or rights of 
 pasturage of the persons interested, the numbers and kinds of animals to 
 be admitted to the pasture, the times during which the animals may 
 be kept on the pasture, &c. Such a pasture is called a regulated 
 pasture. (See Field Reeve?) 
 
 PATENT. See Ambiguity; Letters Patent; Patent Right. 
 
 PATENT BILL OFFICE.— The Attorney-General's Patent Bill 
 Office is the office in which were formerly prepared the drafts of all 
 letters patent other than those for inventions. The draft patent was 
 called a bill (q. v., §5), and the officer who prepared it was called the 
 Clerk of the Patents to her Majesty's Attorney and Solicitor General. 
 By the Great Seal Act, 1851, warrants were substituted for bills, and by 
 the G. S. Act, 1880, the duty of preparing such warrants was transferred 
 to the Clerk of the Crown in Chancery (q. v., and see Privy Seal). 
 
 PATENT OFFICE.— § 1. There are two patent offices, namely, 
 the office of the Commissioners of Patents for Inventions, and the Great 
 Seal Patent Office. 
 
 § 2. The office of the Commissioners of Patents is where the business Patents for 
 relating to the granting of letters patent for inventions is carried on. mventlons - 
 (See Commissioners of Patents ; Patent Right.) 
 
 § 3. As to the Great Seal Patent Office, see Great Seal, § 4. The Great Seal 
 chief of the office is called the Clerk of the Patents. By the Great Seal Patent ° ffice 
 (Offices) Act, 1874, power is given to abolish the office of Clerk of the 
 Patents, and to transfer the duties to the Clerk of the Crown in Chan- 
 cery (q. v.). 
 
 PATENT RIGHT is a privilege granted by the crown to the first 
 inventor of a new and useful mode of manufacture, that he alone shall be 
 entitled, during a limited period, to use and make a profit by it. It is so 
 called because the privilege is granted by letters patent (q. v.). A patent 
 cannot be granted in the first instance for longer than fourteen years, but 
 where an extension is necessary to remunerate the patentee for his expense 
 and labour in perfecting the invention, the term may be extended by the 
 Privy Council for another fourteen years. 1 
 
 1 Stats. 21 Jac. 1, c. 3 ; 5 & 6 Will. 4, Stephen's Comm. ii. 25 et seq. ; In re 
 c. 83 ; 7 & 8 Vict. c. 69 ; 16 & 1; Vict. Bering's Patent, 13 Ch. D. 393. 
 cc. 5 and 115; Williams, P. P. 279;, 
 
 S. QQ 
 
594 Patron law dictionary. Paymaster-General 
 
 As to the mode of obtaining a patent, see Specification ; Commissioners of 
 Patents. 
 
 § 2. A patentee may grant licences (which must be registered) for the 
 use of his invention, or may assign the patent by a registered instrument. 1 
 
 § 3. A patent is incorporeal personal property. (See Personal Pro- 
 perty, § 6.) 
 
 § 4. The remedy for the infringement of a patent is by action for 
 damages or injunction, or both. (See Account, § 6 ; Inquiry, § 2.) 
 
 See further as to patents under titles Novelty ; Particulars of Breaches 
 and Objections ; Scire facias, 
 
 PATRON of a living or benefice is the owner of the advowson (q. v.). 
 
 PAUPER means (i) a person in receipt of relief under the poor laws ; 
 (ii) a person suing or defending an action in forma pauperis. As to the 
 former, see Poor Law; Guardians of the Poor; Overseer; Parish; Settle- 
 ment ; as to the latter, see In Forma Pauperis ; Dispauper; Dives. 
 
 PAWN— PAWNBROKER.— Pawn is sometimes used (especially 
 by the older writers) in the same sense as pledge (q. v.), 2 but more 
 usually at the present day it signifies a pledge to a pawnbroker or person 
 who keeps a shop for the purchase or sale of goods, and takes goods by 
 way of security for money advanced thereon. Statutory regulations have 
 been made for preventing frauds and overcharges by pawnbrokers : thus 
 every pawnbroker taking a pledge for a loan not exceeding 10/. is bound 
 to give the pawner a pawn ticket, specifying the charges for interest, &c, 
 which he is allowed by the statute to make, the period within which the 
 pledge may be redeemed, &c. ; he is also bound to keep account books 
 showing all sales of pledges by him. 3 He has a statutory power of 
 sale by auction. 1 In other respects he is^ a bailee, like an ordinary 
 pledgee. (See Bailment) 
 
 PAYABLE. — A sum of money is said to be payable when a person 
 is under an obligation to pay it. "Payable" may therefore signify an 
 obligation to pay at a future time, but when used without qualification 
 "payable" means that the debt is payable at once, as opposed to 
 
 " owing" (q. v.). 5 
 
 PAYEE. See Bill of Exchange, § 1 ; Cheque, § 1. 
 
 PAYMASTER- GENERAL is the officer who makes the various 
 payments out of the public money required for the different departments 
 of the State, by issuing drafts on the Bank of England. 6 
 
 busines? r § *' Bj thS Stat " 3S & 36 ViGt - a 44 ' the duties of the A^ountant- 
 General of the Court of Chancery were transferred to the Paymaster- 
 General. (See Accountant-General) The Paymaster- General carries out 
 
 * Patent Law Am. Act, 1852, s. 35. « Fisher, 503. 
 
 » P»nL ™fj,i T c t.- , c For the history of the office, see Return 
 
 M01S -n ' 7 ' F,She1 ' °" as t0 Public Income ' &c "' l86 9> P art "■ 
 
 Mortgage, /0 . 33 g . Homersham Cox, Inst. 697. 
 
Payment LAW DICTIONARY. Payment into Court 595 
 
 the duties so transferred to him at the " Office of the Paymaster-General 
 for Chancery Business " in the Royal Courts of Justice, London. The 
 business transacted there includes the issuing of directions for the pay- 
 ment and transfer into Court of the moneys and securities belonging to 
 the suitors : the payment by drafts on the Bank of England of sums 
 payable out of Court, and of the interest on funds in Court : the 
 keeping of the necessary accounts, and the issuing of certificates and 
 transcripts of the accounts. 
 
 See Account, §§ 13 et seq. ; Certificate, §§ 12, 13, 14, 18; Direction, § 2 ; 
 Payment into Court. 
 
 PAYMENT is a transfer of money from one person (the payor) to 
 another (the payee). When made in pursuance of a debt or obligation it 
 is sometimes called payment in satisfaction. 
 
 § 2. Payment in fact is an actual payment from the payor to the payee ; in fact, 
 payment in law is a transaction equivalent to actual payment : thus, in law. 
 payment in fact by a debtor to one of two or more joint creditors is 
 payment in law to all ; and retainer, set-off, allowance in account, accept- 
 ance of security, goods or other means of obtaining actual payment, and 
 payment into Court {q. v.), are said to be equivalent to payment, because 
 they produce a satisfaction of the debt. 
 
 § 3. Payment in satisfaction is said to be absolute when the debt is Absolute, 
 completely discharged, as by payment of cash without stipulation ; con- conditional, 
 ditional payment is where the debt may afterwards revive if the mode of 
 payment does not result in actual payment, as where a creditor is paid by 
 a cheque or bill which is afterwards dishonoured ; whether the acceptance, 
 by the creditor of a negotiable security operates as conditional or absolute 
 payment is a question of fact in each case. 
 
 As to general and appropriated payments, see Appropriation, § 5. 
 
 As to the effect of part payment, see Part Payment. 
 
 §4. In the law of bills of exchange, payment for honour is where a Payment for 
 person pays a dishonoured bill for the honour of some one of the parties. 
 The payor has the rights of a holder against the person for whose honour 
 he has paid, and against all antecedent parties, but the subsequent parties 
 are discharged. 1 (See Acceptance, § 5 ; Honour.) 
 
 PAYMENT INTO COURT is the deposit of money with an official 
 or banker of a Court of justice for the purposes of proceedings pending in 
 the Court. 
 
 Payment into Court may be made with one of three objects. 
 
 I. § 2. Where the defendant in an action for debt or damages admits In satisfac- 
 the plaintiffs claim to a certain amount, he may pay that amount into 10n " 
 Court by way of satisfaction or amends, and plead the payment in as a 
 defence. The plaintiff (unless otherwise ordered) is entitled to receive 
 the amount paid in, and if he accepts it in satisfaction of his entire claim 
 the defendant must pay him his costs of the action. 3 
 
 Byles on Bills, 266. 2 Rules of Court, xxx. ; Hawlisley v. 
 
 Bradshasf, 5 Q. B. D. 22, 302. 
 
 Q Q2 
 
596 
 
 Peace 
 
 LAW DICTIONARY. 
 
 Penal Servitude 
 
 To abide the 
 event. 
 
 Under Trustee 
 Relief Act, 
 &c. 
 
 Law of 
 evidence. 
 
 Chancery 
 practice. 
 
 II. § 3. Money maybe paid into Court to remain there pending litiga- 
 tion. Thus, where a prima facie liability is established against a de- 
 fendant, the Court may order him to pay the amount in question into 
 Court to remain there until the rights of the parties have been deter- 
 mined, or, in the language of common law, "to abide the event" of the 
 litigation i 1 so where a defendant is a trustee or stakeholder of a fund he 
 maybe ordered to pay it into Court. 3 Payment into Court is also a mode 
 of giving security, e. g., for the costs of an appeal. 
 
 III. § 4. In the Chancery Division of the High Court, payment into 
 Court is also a mode by which a person may relieve himself from the 
 responsibility of distributing or administering a fund in his hands. (See 
 Trustee Relief Act ; Lands Clauses Consolidation Act.) 
 
 See Deposit, § z ; Paymaster-General ; Transfer. 
 
 PEACE.— In municipal (as opposed to international) law, " peace " 
 or the " king's peace" is used to signify the law relating to public order. 
 Hence, an indictment usually concludes with a charge that the offence 
 complained of was committed " against the peace of our lady the Queen," 
 although the omission of the words is no defect. 3 (See Articles of the Peace ; 
 Bill of Peace ; Breaches of the Peace ; Commission,^ 10; Justice of the Peace.) 
 
 PECULIARS, in ecclesiastical law, are districts exempt from the jurisdiction of the 
 ordinary of the diocese. Royal peculiars are the king's free chapels. 4 Formerly the 
 peculiar jurisdictions in England amounted to nearly three hundred ; but they have been 
 practically abolished by recent legislation. 5 (See Court of Peculiars ; Ordinary.) 
 
 PEDIGREE. — § 1. In proceedings with reference to the devolution 
 of a deceased person's property, questions as to the relationship of the 
 claimants are called questions of pedigree. They are subject to peculiar 
 rules of evidence. Thus, declarations by deceased persons (see Declara- 
 tion, § 5 ; Lis mold) ; the general reputation of a family, proved by a 
 surviving member of it; entries contained in family Bibles or other 
 books, produced from the proper custody ; inscriptions on tombstones ; 
 and charts of pedigrees, made or adopted by deceased members of 
 the family, are admissible as evidence on questions of pedigree, by way 
 of exception to the general rule against derivative evidence. 6 (See 
 Evidence, § 9 ; Reputation!) 
 
 § 2. In Chancery practice, when a question of pedigree arises (e.g., on 
 an inquiry as to the next-of-kin or heir-at-law of a deceased person), the 
 party having the carriage of the inquiry draws up a pedigree for the use 
 of the Chief Clerk. 
 
 PENAL ACTION is an action for a statutory penalty. (See Action, §8.) 
 
 PENAL SERVITUDE, in criminal law, is a punishment which 
 consists in keeping an offender in confinement and compelling him to 
 
 1 Rules of Court, Hi. 1 ; xiv. 3. 
 
 2 See Daniell's Ch. Pr. 1619 et seq.; 
 Report of Ch. Funds Comm. 5. 
 
 3 Stat. 14 & 15 Vict. c. 100, s. 12. 
 
 4 Rogers' Eccl. Law, 709. 
 
 5 Phill. Eccl. Law, 1203. 
 
 6 Best on Evidence, 633. 
 
Penal Sum LAW DICTIONARY. Penance 597 
 
 labour. 1 The only distinction between penal servitude and " imprison- 
 ment with hard labour" {q. v.) seems to be that the latter is carried out 
 within the walls of a gaol, and cannot be inflicted for more than a 
 comparatively short term of years, while penal servitude is carried out in 
 any place appointed for the purpose by the proper authority, and may be 
 for life or any period not less than five years. 2 (See Transportation; 
 Imprisonment?) 
 
 PENAL SUM— PENALTY.— § 1. A penalty or penal sum is a sum 
 of money payable as an equivalent or punishment for an injury. 
 
 § 2. Some penalties are imposed by law ; thus, many statutes creating Statutory, 
 duties of a public nature contain provisions for the recovery of penalties 
 against persons neglecting those duties. Some of these may be enforced 
 by information {q. v.), 3 others by an ordinary action. 1 (See Action, § 9 ; 
 Informer?) 
 
 § 3. The damages recovered in certain actions for tort are in the nature Penal 
 of penalties. (See Damages, § 4.) amages. 
 
 § 4. Penalties may also be agreed on by the parties. 5 Thus, in a bond Conventional 
 with a condition, the penalty or penal sum is a nominal sum {e.g., double P enaltles - 
 the amount to be secured) which the obligor binds himself to pay if the 
 condition is not complied with. When the obligee sues on it he only Bonds, 
 recovers what is due to him under the terms of the condition. 6 (See Bond.) 
 
 § 5. Where the parties to a contract agree that, in the event of a breach For breach of 
 of its provisions, the one shall pay to the other a specified sum of money, 
 and it appears on the true construction of the instrument, apart from the 
 form of words used, that the sum so specified does not represent the 
 amount of damage caused by a breach of the contract, but is merely a 
 nominal sum, as in the case of a bond {supra, § 4), then the sum so 
 specified is called a penalty; and if the person injured sues on the 
 contract, he cannot recover the penalty, but only damages for the injury 
 which he has actually sustained.' For examples, see Damages, § 2. 
 
 § 6. Formerly the Court of Chancery granted relief against penalties 
 in many cases where the Courts of common law allowed them to be 
 enforced. But this distinction has now been abolished. (See Equity, 
 
 §7-) 
 
 PENANCE is an ecclesiastical punishment affecting the body of the 
 penitent, by which he is obliged to give public satisfaction to the Church 
 for the scandal which he has given by his evil example ; an open con- 
 fession generally forms part of the penance, while in some cases the 
 penance may be commuted for a sum of money to be applied for pious 
 
 1 Stephen Crim. Dig. 2. * For an instance see Girdlestone v. 
 
 2 Reg. v. 'Mount, L. R., 6 P. C. at p. Brighton Aquarium. Co., 3 Ex. D. 137. 
 201 : Russell on Crimes, i. 72 ! stats. 16 & 5 Leake on Contracts, 573. 
 
 17 Vict. u. 99 ; 20 & 21 Vict. c. 3 ; 27 & 6 As to a bond for a sum payable by in- 
 
 28 Vict c 47 ■ Prevention of Crime Act, stalments, see Protector Loan Co. v. Grice, 
 
 1879. SQ-B. D. 592. 
 
 3 See stat. 11 & 12 Vict. c. 43 ; Steph. 7 Chitty on Contracts, 807; Leake on 
 Coram. 330. Contracts, 573, 
 
598 Pendency law dictionary. Per my etfer tout 
 
 uses. But in modern times this punishment is rarely enforced. 1 (See 
 Censure!) 
 
 PENDENCY-PENDENT-PENDENTE LITE. — An action, 
 arbitration or other proceeding is said to be pendent after it has been 
 commenced and before the final judgment or award has been given. 
 Pendency is the state of being pendent. " Pendente lite" means dining 
 the pendency of a suit. (See Alimony; Allowance, § 2 ; Grant, § 8 ; Lis 
 pendens; Lis alibi pendens.) 
 
 PENSION.— When a pension is granted by the crown to one, who 
 though not for the time engaged in any active duties is still liable to be 
 called to active service, and is therefore to be considered in the service 
 of the crown, as in the case of an officer on half-pay, the pension cannot 
 be assigned, attached or otherwise made liable to his debts. But a pension 
 granted entirely as a compensation for past services may be assigned by 
 the grantee, or it may be taken in execution by his creditors. 3 
 
 PEPPERCORN RENT. See Rent. 
 
 PER. As to actions in the per, see Writ of Entry. 
 
 PER AUTER YIE. See Tenant for Life. 
 
 PER CAPITA— PER STIRPES.— When property is given to the 
 descendants or relations of two or more persons, the question frequently 
 arises whether the donees are to take per stirpes, that is, as representatives 
 of their respective ancestors or relations ; or per capita, that is, whether 
 they together form one class, each member of which is to take an equal 
 share. The question chiefly arises in gifts to descendants. If a testator 
 leaves property to his issue and dies leaving children who are living and 
 grandchildren who are the issue of deceased children, then the property 
 is divided per capita, that is, each child and grandchild takes an equal 
 share of the whole. 3 But if there is a gift to two or more persons, with 
 a substitutional gift to the children of such of them as shall die before 
 the gift takes effect, then the distribution takes place per stirpes. 4 Thus, 
 if there were three original donees, A., B. and C, and B. has died leaving 
 three children, and C. has died leaving two children, the property is 
 divided into three parts, one going to A., another to B.'s three children, 
 and the third to C.'s two children. The expressions per capita and per 
 stirpes are also used in the law of descent and distribution with reference 
 to the rule of representation. (See Descent ; Distribution; Next of Kin; 
 Representation . ) 
 
 PER MY ET PER TOUT. See foint Tenancy. 
 
 1 Phill. Eccl. Law, 1367, where instances and the cases there cited, 
 are given. 3 Jarman on Wills, ii. 101, 194. 
 
 "- Willcock v. Terrell, 3 Exch. Div. 323, 4 Ibid. 195. 
 
Per qua Servitia LAW DICTIONARY. Perfecting Bail 599 
 
 PER QTJ-<S3 SERVITIA was a real action by which the grantee of a seignory 
 could compel the tenants of the grantor to attorn to himself. 1 '* It was abolished by stat. 
 3 & 4 Will. 4, c. 27, s. 35. (See Attornment.) 
 
 PER QUOD = whereby. In the old common law system of pleading 
 the per quod was that part of the declaration in which the plaintiff stated 
 the special damage which the wrongful act of the defendant had caused 
 him, as in an .action for slander. (See 'Damage, § 3.) Per quod servitium 
 amisit ("whereby he has lost the benefit of his service"), and per quod con- 
 sortium amisit (" whereby he has lost the benefit of her society"), 2 were 
 allegations used in actions against persons for injuring a man's servant or 
 wife. (See Husband and Wife; Service.) 
 
 PERAMBULATION is the act of walking over the boundaries of a 
 district or piece of land, either for the purpose of determining them or of 
 preserving evidence of them. Thus in many parishes it is the custom for 
 the parishioners to perambulate the boundaries of the parish in Rogation 
 Week in every year. Such a custom entitles them to enter any man's 
 land and abate nuisances in their way. 3 (See Purlieu.) 
 
 PERDURABLE, as applied to an estate, signifies lasting long or for 
 ever: thus, a disseisor or tenant in fee upon condition has as high and great 
 an estate as the rightful owner or tenant in fee simple absolute, but not 
 so perdurable. The term is chiefly used with reference to the extinguish- 
 ment of rights by unity of seisin, which does not take place unless both 
 the right and the land out of which it issues are held for equally high and 
 perdurable estates. 4 
 
 Etymology.] — Old French, perdurable, eternal ; from Latin, per (intensive), and 
 durabilis, lasting. 5 
 
 PEREMPT. — In ecclesiastical procedure an appeal is said to be 
 perempted when the appellant has by his own act waived or barred his 
 right of appeal : as where he partially complies with or acquiesces in the 
 sentence of the Court. 6 
 
 PEREMPTORY. — An order, writ or other judicial command, is 
 said to be peremptory when no excuse for non-compliance with it is 
 admitted. Thus, in an action in the High Court, a peremptory order for 
 time is final, and the party must either take the step within the time 
 fixed by it, or incur the consequences of not doing so. 
 
 As to peremptory challenges, see Challenge, § 3. As to a peremptory 
 mandamus, see Mandamus, § 2. As to the peremptory paper, see Paper. 
 As to peremptory pleas, see Plea, § 4.. 
 
 PERFECTING BAIL. See Bail, § 10. 
 
 1 Shepp. Touch. 254. 4 Co. Litt. 313 a, b; Gale on Easements, 
 
 2 Steph. Coram, iii. 378, 439, 442. 582. 
 
 s Phill.Eccl. Law, 1867; Hunt's Bound. '- Littre, Diet. s. v. 
 
 103. See also Britton, 124b ; 4 Inst. 302. 6 Phillimore, Eccl. Law, 1275 ; Rogers' 
 
 Eccl. Law, 47; Macpherson, Priv. C. Pr. 202. 
 
6oo 
 
 Performance 
 
 LAW DICTIONARY. 
 
 Perjury 
 
 Partial per- 
 formance. 
 
 Part per- 
 formance. 
 
 In equity. 
 
 PERFORMANCE, with reference to a contract or condition, is the 
 act of doing that which is required by the contract or condition. The 
 effect of performance, in the case of a contract, is to discharge the 
 person bound to do the act from liability, and, in the case of a condition, 
 to create or establish the right dependent on the condition. Thus, 
 where A. contracts to supply goods to B., he is not only bound to supply 
 them, but he cannot claim their price until he has done so (condition 
 precedent) ; if he performs the contract by supplying them, he discharges 
 his liability, and at the same time entitles himself to claim their price. 
 
 § 2. Partial performance is where the contract, &c. is not fully per- 
 formed ; it is only in a few instances that this gives rise to any rights by 
 the performing person. 1 
 
 § 3. Part performance is where the contract has been partly carried 
 into effect ; what is called the doctrine of part performance is the rule 
 that where a contract is not enforceable for want of some formality, 
 {e.g., by reason of not being in writing, as required by the Statute of 
 Frauds), and it has been partly carried into effect by one of the parties, 
 the other cannot set up the informality as a defence : as where posses- 
 sion has been taken under a parol contract for the sale of land. 2 (See 
 Part Payment.) 
 
 § 4. In equity, the doctrine of performance is applied to cases where 
 A. has covenanted to purchase and settle or leave by will property 
 in favour of B., and B. has obtained the benefit stipulated for, although 
 the covenant has not been strictly performed. Thus, where A. covenanted 
 to purchase lands of 200/. a year, and settle them on his wife and the 
 children of the marriage, and purchased lands of that value, but did not 
 settle them, it was held that this was a performance of his covenant, and 
 that the eldest son was therefore not entitled to have both the benefit 
 of the lands which had descended to him as heir-at-law and to have the 
 covenant performed by the purchase of other land. 3 
 
 See Discharge ; Essence of the Contract ; Payment ; Satisfaction. 
 
 PERIL. See Insurance, § 3 ; Risk. 
 
 PERJURY is an assertion, upon an oath or affirmation duly admi- 
 nistered in a judicial proceeding pending before a competent Court, of 
 the truth of some matter of fact material to the question depending in 
 that proceeding, which assertion the person making it does not believe 
 to be true, or on which he knows himself to be ignorant. 4 In some 
 cases a false oath amounts to perjury, although not taken in a judicial 
 proceeding. 5 
 
 § 2. The evidence of two witnesses at least is required to support a 
 conviction for perjury. 6 
 
 1 Chitty on Contracts, 666. See Ap- 
 portionment ; Freight ; Quantum meruit ; 
 
 Quantum valebant. 
 
 2 Chitty on Contracts, 278 ; Pollock on 
 Contract, 557. As to performance gene- 
 rally, see Leake on Contracts, 435. 
 
 3 Haynes's Eq. 346; Snell's Eq. iS 
 White & Tudor's L. C. ii. 379. 
 
 4 Stephen's Crim. Dig. 82. 
 
 5 See Archbold, Crim. Pr. 851, 864. 
 
 6 Steph. Comm. iv. 427. 
 
Permissive Waste law dictionary. Perpetuity 60 1 
 
 § 3. Perjury is a misdemeanor, punishable in ordinary cases by penal 
 servitude, or imprisonment for seven years. 1 
 
 See Affirm, § 3 ; Declaration, §6; False Swearing ; Oath; Subornation of 
 Perjury. 
 
 PERMISSIVE WASTE. See Waste. 
 
 PERNANCY— PERNOR.— Pernancy is the act of taking or receiving rents or 
 other profits of land : the person who takes them is called the pernor. 2 The terms are 
 now antiquated. (From Norman-French, pernour; 3 from prendre ; Latin, prendere, to 
 seize.) 
 
 PERPETUAL CURATE. See Curate. 
 
 PERPETUATION OF TESTIMONY.— By the stat. 5 & 6 Vict. 
 c. 69, any person who would, under circumstances alleged by him to exist, 
 become entitled, upon the happening of any future event, to any honour, 
 title, dignity or office, or to any estate or interest in any property, real or 
 personal, the right or claim to which he cannot bring to trial before the 
 happening of that event, might file a bill in chancery to perpetuate 
 any testimony material for establishing his claim. In a proper case, 
 the Court made an order that the witnesses whose testimony was required 
 should be examined, cross-examined and re-examined in the usual way : 
 and, when this had been done, the cause was at an end. 1 This jurisdiction 
 has been transferred to the High Court of Justice in the Chancery Division. 6 
 Bills to perpetuate testimony as to legitimacy were formerly of not un- 
 frequent occurrence ; but now the same object may be attained under the 
 Legitimacy Declaration Act. 6 (See De bene esse; Legitimacy, § 2.) 
 
 PERPETUITY. — § 1 . Perpetuity properly signifies a disposition of 
 property by which its absolute vesting is postponed for ever ; as, for 
 instance, if property were conveyed to trustees upon trust to pay the 
 income to A. for life, and after his death to his eldest son for life, and 
 after his death to his eldest son, and so on. Such dispositions are con- 
 trary to the policy of the law, because they " tie up" property and prevent 
 its free alienation. Accordingly, it has long been a rule in the law relating to 
 contingent remainders, that an estate cannot be given to an unborn person 
 for life, followed by any estate to any child of such unborn person.' But 
 the rule which is commonly known as the rule against perpetuities is that 
 applicable to executory interests {q. v.) : it forbids any disposition by which 
 the absolute vesting of property is or may be postponed beyond the 
 period of the life or lives of any number of persons living at the date of 
 the disposition, and the further period of twenty-one years after the death 
 of the survivor. 8 Thus, property may be given upon trust for A. for life, 
 
 1 Stat. 2 Geo. 2, c. 25 ; Russell on 4 Daniell's Ch. Pr. 1419 ; Haynes' Eq. 
 Crimes, iii. 23 et seq, where the provisions 174; Snell's Eq. 490. 
 
 of the other statutes are referred to. 6 Judicature Act, 1873, s. 16. 
 
 2 Co. Litt. 323 b, 351 a. " Daniell. 
 
 3 Britton, 36 b. 7 "Williams, R. P. 276. 
 
 s Ibid. 320 ; Watson's Comp. Eq. 748. 
 
602 
 
 Person 
 
 LAW DICTIONARY. 
 
 Personal 
 
 and after his death for such of his children as attain twenty-one. 
 § z. Hence "perpetuity" has come to mean any disposition which is 
 void, because it infringes this " rule against perpetuities ;" such as a gift to 
 A. for life, and after his death to such of his children as shall attain 
 twenty-five. 1 
 
 § 3. The principal exceptions.to the rule are estates tail and limitations 
 following estates tail (q.v.), charitable dispositions, and grants of property 
 to particular families for public services. 2 (See Accumulation, § 3 ; Ap- 
 pointment, § 2 ; Mortmain ; Remoteness.) 
 
 PERSON.— § 1 . In jurisprudence, a person is the object of rights and 
 duties, that is, capable of having rights and of being liable to duties, 
 while a thing is the subject of rights and duties. 3 
 Natural. § 2. Persons are of two kinds, natural and artificial. A natural person 
 
 Artificial. is a human being (see Monster). Artificial persons include (i) a collection 
 or succession of natural persons forming a corporation (q. v.); (ii) a col- 
 lection of property to which the law attributes the capacity of having 
 rights and duties. The latter class of artificial persons is only recognized 
 to a limited extent in English law : examples are — the estate of a bankrupt 
 or deceased person, and the assets of a company or partnership. 1 (See 
 Personalty; Status.) 
 
 PERSONA DESIGNATA is a person pointed out or described as 
 an individual, as opposed to a person ascertained as a member of a class, 
 or as filling a particular character. Thus, if a testator bequeaths pro- 
 perty to his children as a class, only those who fill that character at his 
 death, that is, the survivors, can participate in the gift, while if he bequeaths 
 it to them as personse designatse, the children of such of them as have 
 died in his lifetime will take their parents' shares under the 33rd sect, of 
 the Wills Act (see Lapse, § 1 ). 5 So property may be given to an illegitimate 
 child as persona designata, but not as a child simply (see Child, § 2). 
 
 PERSONAL is that which has reference to the person of an in- 
 dividual, as in the case of a personal contract 6 (see Contract, §11). A 
 personal injury is an injury to the person of an individual, such as an 
 assault, as opposed to an injury to his property, such as a. trespass. (See 
 Actio personalis moritur cum Persona!) 
 
 Actions. § 2. In the division of actions, a personal action originally meant one 
 
 which was brought to enforce a remedy against a specific person, while in 
 a real action the remedy was against a thing. Thus, an action on a con- 
 tract or tort was a personal action, while an action to recover land was a 
 real action, because the land itself could always be recovered. (See 
 
 Property. Action, § 22 ; Pi Personam ; In Rem.) Hence also arose the distinction 
 
 between real and personal property, as to which see the respective titles.' 
 
 1 Lealte v. Robinson, 2 Mer. 363. 
 - Watson, 748. 
 
 3 See Holland's Jurisp. 64. 
 
 4 As to the Roman law on the subject, 
 see Hunter's Roman Law, 169, 559 ; 
 
 Holtz. Encycl. i. 274. 
 
 5 In re Stansfield, 15 Ch. D. 84. 
 
 6 British Waggon Co. v. Lea, 5 Q. B. 
 D. 149. 
 
 7 Williams, R. P. 6. 
 
Personal law dictionary. Personal Property 603 
 
 § 3. A system of law is said to be personal when its operation is Law. 
 limited to one of several races inhabiting a state, as in the case of India. 
 See also Act of Parliament, § 3 ; Service. 
 
 PERSONAL PROPERTY or PERSONALTY may be said 
 generally to include (i) everything the subject of ownership not being 
 land, or an interest in land, and also (ii) a few exceptional interests in 
 land which from historical reasons are nevertheless personalty. 
 
 -§ 2. Personal property differs from realty chiefly in the following re- Difference 
 spects: — (1) Realty is in theory only capable of being held for an estate between 
 (q. v.), while personalty is essentially the subject of absolute ownership. reaTty^ Y ^ 
 A chattel is accordingly incapable of being entailed. But limited and Estates and 
 reversionary interests in chattels, analogous to certain estates in land, may interest. 
 be created under the doctrines of equity : thus, a personal property may 
 be vested in trustees in trust for A. for life, and after his death for B. ; 
 but the rules governing contingent remainders in land do not apply to 
 personal property. Chattels may also be made the subject of joint owner- 
 ship and ownership in common (see Joint ; Joint Tenancy ; Tenancy in 
 Common), and of appointment under a power (see Power)} (2) On the Devolution on 
 death of its owner, personalty (with few exceptions) passes to the executor deatn - 
 or administrator of the deceased ; and if he died intestate, it is divisible 
 among his next-of-kin according to the Statutes of Distribution, while 
 realty passes to the devisee of its owner if he has disposed of it by will, 
 or descends to his heir if he has died intestate, subject in either case to 
 his debts. 3 (See Animals Ferce Natures, § 2 ; Descent; Donatio Mortis Causa ; 
 Fixture; Goods; Growing Crops; Heir ; Heirloom ; Next-of-Kin; Title Deeds}) 
 As to the administration of the real and personal property of a deceased 
 person, see Administration, § 2; Executor.) (3) Personal property is Transfer inter 
 capable of being transferred or conveyed by modes inapplicable to real "" vos - 
 property. (See Assignment, §§ 3 etseq.) 
 
 Personal property is subject to several divisions. 
 
 § 3. As to the distinction between chattels real and chattels personal, 
 see Chattel. Chattels personal are further divisible into choses in posses- 
 sion and choses in action. (See Chose). 
 
 § 4. Mixed or impure personalty consists of leaseholds, terms of years, Mixed or 
 estates at will, land directed to be converted into money (see Conversion), impure- 
 and money secured on land, e.g. by mortgage. The term impure per- 
 sonalty is generally used, with reference to the Mortmain Act, to denote 
 property which, though personalty, is not allowed to be given to charitable 
 uses by will, &c. (See Charitable Trusts Act ; Debenture, §11; Mortmain, 
 § 2.) § 5. Pure personalty comprises all personal property not connected Pure. 
 with land in such a manner as to fall within the Mortmain Act. 
 
 § 6. Personal property is also divisible into (i) corporeal personal pro- Corporeal, 
 perty, which includes moveable and tangible things, such as animals, 
 ships, furniture, merchandise, &c. ; and (ii) incorporeal personal property, incorporeal, 
 which consists of such rights as personal annuities, stocks, shares, patents 
 and copyrights. 
 
 1 Williams, P. P. 306 et seq. 2 Ibid. 381, 415. 
 
604 
 
 Personation 
 
 LAW DICTIONARY. 
 
 Petition 
 
 Chancery. 
 In a cause. 
 
 Summary and 
 
 statutory 
 
 petitions. 
 
 Divorce. 
 
 PERSONATION is the act of representing oneself to be someone 
 else, whether living or dead, real or fictitious. At common law persona- 
 tion for the purpose of fraud is a misdemeanor. 1 By various statutes 2 
 personation for the purpose of obtaining property, dividends, wages, &c, 
 or of giving votes at elections, is made felony. 
 
 PETITION is a written statement addressed to a Court or public 
 officer setting forth facts on which the petitioner bases a prayer for remedy 
 or relief. With the exception of Petitions of Right (q. v.), petitions are 
 merely a peculiar mode of applying to a Court, and do not necessarily 
 indicate that the right sought to be maintained is different in its nature 
 from ordinary rights. 3 (See Action; Motion; Summons.) 
 
 The person by whom a petition is presented is called the petitioner, 
 and the persons on whom it is served, in order that they may appear at 
 the hearing and oppose or consent to the granting of the prayer, are 
 called the respondents. 
 
 I. § 2. Petitions in the High Court of Justice are practically confined 
 to the Chancery and Probate, Divorce and Admiralty Divisions, although 
 they were not unknown in the old Common Law Courts. 4 
 
 Petitions in the Chancery Division are of two kinds, those presented in 
 a pending action or suit, and summary or statutory petitions. § 3. Petitions 
 presented in pending actions are of various kinds according to the nature 
 of the application : thus, if an administration action has been heard and 
 the further consideration has not been reserved, the only way by which, 
 while the action is still pending, a party can afterwards apply to the Court 
 to do anything not directed by the order or judgment, is by presenting 
 a petition. As to petitions of course, see Of Course. 
 
 § 4. Sometimes a petition may be presented without the institution of 
 an action, e.g., for the maintenance of an infant. (See Maintenance, .) 
 Usually these petitions are of statutory origin, having been introduced to 
 save the expense of a regular action in simple cases. The examples of 
 most 'usual occurrence are petitions under the Trustee Acts, the Trustee 
 Relief Acts, the Settled Estate Acts, the Lands Clauses Consolidation 
 Acts, and winding-up petitions under the Companies Acts. (See those 
 titles.) As to petitions by trustees, executors, &c, for the opinion or 
 direction of the Court, see Executor, § 10. 
 
 § 5. In the Probate, Divorce and Admiralty Division every matrimonial 
 suit is commenced by a petition praying the relief sought, e. g., a decree 
 of nullity or dissolution of marriage, &c. 5 In addition to these original 
 petitions, subsidiary or incidental petitions of various kinds are sometimes 
 required to be presented in a suit, e.g., to claim the custody of children, 
 for alimony, &c. 6 
 
 1 Russell on Crimes, ii. 886. 
 
 2 Especially 24 & 25 Vict. c. 98 ; the 
 Ballot Act, 1872 ; and the False Person- 
 ation Act, 1874; Stephen, Crim. Dig. 290. 
 
 3 See Darnell's Ch. Pr. 1434. 
 
 4 See Tidd's Pr. index v. Petition. At 
 
 the present day almost the only land of 
 petition used in the Queen's Bench Division 
 seems to be that for admission to sue in 
 formS pauperis (q. v.) ; Archbold, P. 1070. 
 
 6 Browne on Divorce, 195. 
 
 6 Ibid. 1, 157, 202. 
 
Petition of Right LAW DICTIONARY. Petty Bag Office 605 
 
 § 6. Formerly the pleadings in Admiralty actions commenced with a Admiralty. 
 petition by the plaintiff in the nature of a declaration at common law. 1 
 (See now Statement of Claim; Protest.) 
 
 II. § 7. In Bankruptcy, a petition is the mode by which proceedings Bankruptcy. 
 to administer an insolvent's estate are commenced. It may be a petition 
 
 for adjudication presented by a creditor, or a petition for composition 
 or liquidation, presented by the insolvent. (See Adjudication; Bank- 
 ruptcy, § 3 ; Composition, § 4 ; Declaration, § 4 ; Liquidation, § 1.) 
 
 III. § 8. In the House of Lords and Privy Council, every appeal is com- Petition of 
 menced by a petition of appeal praying that the judgment appealed from a PP ea ■ 
 may be reversed or varied. Interlocutory petitions are also sometimes 
 required, e. g., to extend the time for lodging the printed cases. 2 (See 
 Appeal, §§ 4 et seq.) 
 
 IV. § 9. Proceedings in lunacy are instituted by a petition for an Lunacy, 
 inquiry, and after inquisition every matter requiring to be brought before 
 
 the Court forms the subject of a petition. 3 (See Lunacy.) 
 
 PETITION OF RIGHT is the mode by which a subject can claim 
 relief from the crown for certain kinds of injury arising from the acts of 
 the crown or its servants, e.g., an illegal seizure of goods, wrongful 
 possession of land, or a money claim consisting of a debt or damages for 
 breach of contract. 4 The petition itself is a document in which the 
 petitioner set out his right, legal or equitable, to that which is demanded 
 by him, and prays the Queen to do him right and justice, and, upon a due 
 and lawful trial of his right and title, to make him restitution. 5 The 
 petitioner is called the suppliant, and the persons against whom relief is 
 prayed (for any person in enjoyment of the property or right claimed is 
 made a party) are called the respondents. The petition may be pre- 
 sented in any of the divisions of the High Court on the Home Secretary 
 granting his fiat for that purpose. The act regulating the proceeding by 
 petition of right 6 provides that, if the petition is presented in Chancery, 
 the subsequent proceedings up to judgment are to follow those in a suit 
 in equity ; and if in one of the common law Courts, they follow those in 
 an action at law. As petitions of right are not affected by the Judica- 
 ture Act, the rules of the former common law and equity practice are still 
 applicable to them. 7 (See Amoveas Manus, § 2; Monstrans de Droit; 
 Traverse!) 
 
 PETTY BAG OFFICE is the principal office on what was formerly 
 the common law side of the Court of Chancery, and is under the manage- 
 ment of an officer called the Clerk of the Petty Bag. It is now an office 
 of the High Court of Justice. Out of it issue all original writs, certain 
 kinds of writs of error and certiorari, commissions of charitable uses, 
 idiocy, and lunacy, commissions to seize escheated and forfeited lands, 
 
 1 "Williams & Bruce, Admiralty, 246. B. 31. 
 
 2 Macpherson, Privy C. Pr. 81, 87. 6 Daniell, Ch. Pr. 121. 
 
 3 See Elmer on Lunacy and Pope on 6 23 & 24 Vict. c. 34. 
 
 Lunacy, passim. 7 Rustomjee v. The Queen, I Q. B. D. 
 
 * Thomas v. The Queen, L. R., 10 Q. 487 ; 2 Q. B. D. 69. 
 
606 Petty Jury law dictionary. Pew 
 
 &c, writs of dedimus potestatem, conge, d'elire, scire facias to repeal 
 letters patent and enforce recognizances, &c, and writs on the calling of 
 a new parliament. In it are filed traverses of inquisitions and returns 
 to various commissions, including commissions for production of a 
 cestui que vie. (See the various titles.) In it is also transacted the 
 business connected with the admission of solicitors. 1 The practice of 
 the office is regulated by the Petty Bag Office and Enrolment in Chan- 
 cery Amendment Act, 1849, and the general orders. 2 § 2. By the 
 Judicature (Officers) Act, 1879, s. 14, the office of Clerk of the Petty 
 Bag will be abolished on the occurrence of the next vacancy. 
 
 Etymology and History.]— The Petty Bag Office was so called because in it the 
 proceedings in which the crown was concerned were preserved in a little sack or bag, in 
 farvA bagd, instead of being enrolled on rolls as in the case of other proceedings. (See 
 Chancery, § 4; Hanaper.) 3 
 
 PETTY JURY— PETTY LARCENY. See Jury, § 7 ; Larceny. 
 
 PETTY SERJEANTY.— " Tenure by petite serjeanty is where a man 
 holds his land of our soveraigne lord the king, to yield to him yearly a 
 bow, or a sword, or a dagger, or a knife, or a lance, or a paire of gloves 
 of maile, or a pair of gilt spurs, or an arrow, or divers arrowes, or to 
 yield such other small things belonging to warre." 4 "And such service 
 is but socage in effect." 5 
 
 The act 1 2 Car. 2, c. 24, took away from this tenure the incidents of 
 livery and primer seisin, but does not seem to have affected it in other 
 respects. (See Grand Serjeanty ; Socage; Tenure.) 
 
 PETTY SESSIONS is an occasional meeting of two or more 
 justices of the peace arranged between themselves for the transaction of 
 business for which the presence of more than one justice is either 
 necessary or desirable. Petty sessions are commonly held weekly .' In 
 cities, boroughs, and towns corporate having a separate commission of 
 the peace, every sitting of justices of the peace or of a stipendiary 
 magistrate is deemed a petty sessions of the peace. 8 (See Special 
 Sessions.) 
 
 PEW. — § 1. An exclusive title to pews and seats in the body of an 
 ordinary parish church may be maintained in virtue of a faculty, or by 
 prescription. All other pews and seats in the body of the church are the 
 property of the parish ; and the churchwardens, as the officers of the 
 ordinary, and subject to his control, have authority to place the parish- 
 
 1 See Report, Coram, on Fees, 8 ; Second 3 Bl. Coram, iii. 49; 4 Inst. 80. 
 Rep. Legal Depart. Comm. 124; 4 Inst. i Litt. § 159. 
 
 80; Bl. Comm. iii. 49; Daniell, Ch. Pr. ii. 5 Ibid. § 160. 
 
 1910 ; Castro v. Murray, L. R., 10 Ex. 6 Co. Litt. 108 b, 2 (1). 
 
 213 ; Archbold, Pr. 63. See also Solicitors ' Stone's Justice of the Peace, 51. 
 
 Act, 1877, s. 9. 8 Stat. 12 & 13 Vict. c. 18, s. 1 ; Pritch- 
 
 2 12 & 13 Vict. c. 109 ; Daniell, Ch. Pr. aid's Quarter Sessions, 2. 
 ii. 1606 ; Dale's Case, 6 Q. B. D. 376. 
 
Picketing LAW DICTIONARY. Piracy 607 
 
 ioners therein. § 2. A pew annexed by prescription to an ancient 
 messuage cannot be severed from it. 1 
 
 As to the chief pew in the chancel, see Chancel. 
 
 § 3. In the case of churches erected under the Church Building Acts, Church 
 the distribution of the pews and seats is vested in the Ecclesiastical Com- Buildln g Acts - 
 missioners and the bishop of the diocese, and they have power to fix rents 
 for pews, subject to the provisions of the acts. 2 
 
 PICKETING by members of a trade union on strike consists in 
 posting members at all the approaches to the works struck against, for 
 the purpose of observing and reporting the workmen going to or coming 
 from the works, and of using such influence as may be in their power to 
 prevent the workmen from accepting work there. 3 It having been found 
 that picketing led to molestation, threats and even violence, the Conspiracy 
 and Protection of Property Act, 1875,* makes picketing an offence punish- 
 able by fine or imprisonment. (See Molestation ; Trade Unions.) 
 
 PIERS. See stats. 46 Geo. 3, c. 153 ; 10 & 11 Vict. c. 27 ; 24 & 25 
 Vict. c. 45 ; 25 & 26 Vict. c. 69 ; and titles Harbour ; Port. 
 
 PILOTAGE— PILOTS.— § 1. A pilot is a person who, in conse- 
 quence of his special knowledge of a particular water, is taken on board 
 a vessel to superintend the steering where the navigation is difficult and 
 dangerous. A "qualified pilot" is a person duly licensed by a " pilotage Qualified or 
 authority,'' that is, a body or person authorized to exercise jurisdiction in llcensed - 
 respect of pilotage, the most important of which is the Trinity House, auihontv 
 § 2. Compulsory pilotage is where every ship, navigating within a certain Compulsory 
 district (and not coming within the exemptions in favour of small ships, pilotage, 
 regular coasting vessels, &c), is bound to employ a qualified pilot if he 
 offers his services. In such a case the owner of the ship is not respon- 
 sible for the negligence of the pilot. 5 § 3. A pilotage certificate may be 
 granted to the master or mate of a ship, authorizing him to pilot his ship 
 (or any other ship belonging to the same owner) within certain limits. 6 
 
 PIN MONEY is a yearly allowance settled upon a married woman, 
 before the marriage, for the purchase of dress or ornaments, or otherwise 
 for her separate and private expenditure. 7 
 
 PIRACY. — I. § 1. In private or civil law, piracy is the infringement Copyright, 
 of copyright ; in other words, where a person reproduces the whole or 
 part of a work which is the subject of copyright, so as to interfere with 
 
 1 Shelford, R. P. Stat. 115. Tedcastle, 6 App. Ca. 217. 
 
 2 Phffl. Eccl. Law, 2160. 6 Maude & Pollock, Merchant Shipp. 
 
 3 Davis on Friendly Societies, 212. 194 et seq. ; M. S. Act, 1854, part v.; 
 
 4 Stat. 38- & 39 Vict. t. 86 ; repealing Steph. Comm. iii. 156. 
 
 34 & 35 Vict. c. 32, containing similar ' Snell's Eq. 295, citing Howard v. 
 
 provisions. Digby, 8 Bligh, N. R. 265 ; Elphinstone's 
 
 5 The Calabar, L.R., 2 P. C. 238. See Conv. 330; Macqueen, Husb. & Wife, 
 The Sinquasi, 5 P. D. 241 ; Spaight v. 355. 
 
6o8 
 
 Piscary 
 
 LAW DICTIONARY. 
 
 Plea 
 
 Law of 
 
 nations. 
 
 Statutory. 
 
 Plaint note. 
 
 Customary 
 plaints. 
 
 the profit of the owner, he commits a piracy, unless the new work is a 
 bona fide abridgment of the other. 1 The importation of pirated copies 
 from abroad is an infringement of copyright. The remedy for a threatened 
 piracy or continued infringement, is by injunction ; for a past infringement 
 the remedy is damages, or in certain cases a penalty is imposed by 
 statute. 2 
 
 II. In criminal law, piracy is of two kinds. § 2. Piracy by the law of 
 nations is the offence of taking a ship on the high seas or within the 
 jurisdiction of the Lord High Admiral from the possession or control 
 of those who are lawfully entitled to it, and carrying away the ship or 
 any of its goods, tackle, &c, under circumstances which would have 
 amounted to robbery if the act had been done within the body of an 
 English county. 3 § 3. Piracy is punishable with penal servitude for life, 
 unless it is accompanied by attempted murder, or violence dangerous 
 to life, in which case the punishment is death. 4 § 4. Several offences 
 have been made piracy, and punishable with penal servitude for life, by 
 various statutes. 5 (See Slave Trading.) 
 
 PISCARY. See Fishery. 
 
 PLAINT. — § 1. Every action in a County Court is commenced by 
 the registrar entering, in a book kept for the purpose, at the request of 
 the intended plaintiff, a " plaint in writing," stating the names and the 
 addresses of the parties, and the substance of the action : on this a 
 summons is issued. 6 (See Summons.) The registrar gives the plaintiff a 
 note called a plaint note, containing the date of the entry, the day fixed 
 for the trial, and some notices for the guidance of the plaintiff. 7 (See 
 Particulars of Demand, §3.) 
 
 § 2. Before the abolition of real actions a copyholder could only plead and be im- 
 pleaded in respect of his copyhold land in the Court of the manor, by what were called 
 customary plaints, which were analogous to the common law writs in real actions, and 
 called after them, e. g., plaints in the nature of writs of entry, plaints in the nature of 
 writs of right, &c. 8 
 
 PLAINTIFF is a person who brings an action. (See Part, § 4.) 
 
 To writ, &c. PLEA. — I. § 1. A plea is a mode of putting forward a defence to 
 certain proceedings. Thus, if a writ of scire facias, prohibition or the 
 like is issued against a person, and he wishes to put forward facts in 
 answer to the writ, he does so by plea : or, if a return is made to such 
 a writ, and the person at whose instance the writ was issued wishes 
 to contest it, he puts in a plea to the return. 9 (See Traverse.) 
 
 1 Shortt on Copyright, 168 et seq. 
 
 2 Ibid. 216. 
 
 3 Stephen's Crim. Dig. 64 ; Co. Litt. 
 391 a ; Manning's Law of Nations, 120, 
 159 ; Russell on Crimes, i. 253. 
 
 * Stat. 1 Vict. c. 88. 
 6 Stats. 8 Geo. 1, c. 24; 18 Geo. 2, 
 t. 30 ; 11 & 12 Will. 3, c. 7 ; 1 Vict. t. 88. 
 
 6 County Courts Act, 1846, s. 59 : Pol- 
 lock's C. C. Pr. 77. 
 
 7 See County Court Forms, 1875, num- 
 bers 7 et seq.; Pollock, 593. 
 
 s Scriven, Copyh. 562. 
 
 9 Lee v. Bude, &c. Railway Co., L. R., 
 6 C. P. 576. See an instance of a plea to 
 the return to a mandamus, The Queen v. 
 Postmaster-General, I Q. B. D. 658. 
 
Plea LAW DICTIONARY. Plea 609 
 
 § 2. In a criminal prosecution, the prisoner has to plead to the indict- To indict- 
 ment, which he may do either — (1) by pleading to the jurisdiction, that ment - 
 is, alleging that the Court has no jurisdiction to try him; or (2) by 
 demurring (see Demurrer, § 13) ; or (3) by pleading in abatement, that is, 
 showing some defect in the indictment in point of form ; or (4) by 
 pleading some plea in bar, namely, either a general plea " guilty," or 
 " not guilty," or a special plea, such as " auterfois acquit," " auterfois 
 convict," or " pardon." 1 (See the various titles.) As formal defects are 
 now almost always capable of amendment, pleas in abatement are practi- 
 cally obsolete. 3 
 
 § 3. In the ecclesiastical Courts, all the pleadings are called pleas. Ecclesiastical 
 The first plea is either articles or a libel, and every subsequent plea is an P ractlce - 
 allegation. 3 (See those titles.) 
 
 § 4. Formerly a plea was the principal mode of putting forward a. defence to a civil Common 
 action or suit. In an action at common law, the plea was similar to the statement of " w practice. 
 defence under the present practice in so far that it stated facts as an answer to the 
 declaration, as opposed to a demurrer (q. v.) ; but differed from a statement of defence 
 in stating the facts vaguely and in a peculiar form. Pleas were of two kinds, dilatory 
 and peremptory. The first class included pleas to the jurisdiction, that is, pleas denying 
 the jurisdiction of the Court, and pleas in abatement ; the second class consisted of pleas 
 in bar. 4 § 5. A plea in abatement did not give an answer to the plaintiff's case, but 
 showed that he had committed some informality, e. g., that he had not joined the proper 
 parties to the action. 5 § 6. A flea in iar showed a substantial defence to the action, 
 either by traverse or by confession and avoidance (q. v.). $ 7- Formerly pleas were dis- 
 tinguished as general issues, in which the defendant simply traversed the plaintiff's 
 allegations, and special pleas, in which the defendant stated the grounds of his defence ; 
 from the latter term arose the expression special pleading. 6 (See Pleader ; Issue, \ 7.) 
 § 8. A plea puis darrein continuance ("after the last continuance") was a plea setting 
 up a ground of defence which had arisen after the defendant had pleaded in the ordinary 
 course : thus if, after the defendant had delivered his plea, the plaintiff gave him a 
 release, the defendant could'set up the release by plea puis darrein continuance.' (See 
 Continuance.) 
 
 § 9. In equity, pleas were very rare in practice, and were only used in cases where the Chancery 
 defendant was in a position to state one or more facts, which if inserted in the bill would practice, 
 make it demurrable ; in such a case the defendant by filing a plea (which generally had 
 to be sworn to by him) might avoid putting in an answer, and bring the suit to an end at 
 once. Pleas were of various kinds, of which pleas to the jurisdiction and pleas in bar 
 were the principal. 9 
 
 II. § 10. In its original sense, "plea "meant any legal proceeding, pleas of the 
 " Pleas of the crown " were criminal proceedings, while civil actions were crown - 
 called " common pleas," or " pleas," simply. 9 The Court of Queen's Bench Plea side, 
 was formerly said to have a crown side and a plea side, the former being 
 its jurisdiction in crown business, and the latter its jurisdiction in ordinary 
 actions: so the jurisdiction of the Court of Exchequer in ordinary 
 
 1 Broom's Common Law, 992, 993, abolished; Rules of Court, xix. 13. 
 
 n. (p) ; Roscoe's Crim. Ev. 202 ; Steph. 6 Stephen, PI. (5), 189. 
 
 Comm. iv. 397; Archbold, Crim. PI. 128. ' Smith's Action (11), 103 ; Chitty, Pr. 
 
 * Archbold, 130. 919. 
 
 s Phill. Eccl. Law, 1254. " Hunter's Suit, 36; Mitford, PI. 218; 
 
 1 See Smith's Action (11), 85 et seq.; Daniell's Ch. Pr. 520. As to pleas in 
 
 Steph. PI. (5), 50 et seq. ; Fisher's Digest, Probate causes, see Browne's Practice, 
 
 Pleading, v., vi. 285. 
 
 6 Pleas and defences in abatement are <J Co. Litt. 287 a. 
 
 s. R R 
 
6io 
 
 Plead 
 
 LAW DICTIONARY. 
 
 Pleading 
 
 actions was called its plea side, as opposed to its jurisdiction in revenue 
 matters. 1 (See Pleading.) 
 
 PLEAD.— I. •§ i. In its general sense, to plead is to answer the pre- 
 vious pleading of the opposite party in an action or other proceeding by 
 denying the facts therein stated, or by alleging some fresh facts ; pleading 
 is opposed to demurring : the former raises a question of fact, the latter 
 a question of law. Thus, if a plaintiff delivers a statement of claim which 
 is not only demurrable but also fails in stating the facts correctly, the 
 defendant may apply for leave to plead and demur, 2 and, if he obtains 
 leave to do so, he delivers a statement of defence and a demurrer. 
 
 II. § 2. To plead also signifies to plead a plea; thus, in a criminal 
 
 prosecution the prisoner pleads guilty or not guilty, &c. ; and under the 
 
 old common law practice, a defendant was said to plead to the jurisdiction, 
 
 Pleading to plead in bar, &c, according to the nature of his plea. To plead 
 
 issuably. issuably, was to demur or plead some substantial defence to the action, so 
 
 that it might be determined on its merits. 3 
 Pleading over. § 3. In criminal practice, a prisoner charged with treason or felony is 
 said to plead over when in addition to, or after, pleading in abatement or 
 specially, he pleads "not guilty." 4 
 See Plea, § 2 ; Respondeat Ouster. 
 
 PLEADER is a person whose business it is to draw pleadings. 
 Formerly, when pleading at common law was a highly technical and . 
 difficult art, there was a class of men known as " special pleaders not at 
 the bar," who held a position intermediate between counsel and attorneys. 
 The class is now almost extinct, and the term "pleaders" is generally 
 applied to junior members of the common law bar. 
 
 Action in 
 High Court. 
 
 PLEADING. — § 1. The pleadings in an action in the High Court 
 are written or printed statements delivered alternatively by the parties 
 to one another, until the questions of fact and law to be decided in the 
 action have been ascertained. They begin after the defendant has 
 appeared. (See Action, § 2.) § 2. Each pleading commences with the 
 title of the action, and states concisely the material facts 5 on which the 
 party pleading relies, but not the evidence by which they are to be 
 proved. § 3. The first pleading is the plaintiff's statement of claim 
 (q. v.), unless the indorsements on the writ of summons are so full that 
 either the plaintiff or the defendant considers a statement of claim 
 unnecessary. § 4. The next pleading is delivered by the defendant, and 
 is either a demurrer, a statement of defence, a statement of defence and 
 counter-claim (q. v.), or a combination of these. § 5. The next pleading 
 is either a demurrer or a reply {q. v.), or a combination of both. 7 § 6. If 
 
 1 Steph. Comm. iii. 332, 340. 
 
 2 Rules of Court, xxviii. 5. 
 
 3 Smith's Action (11), 101 ; Chitty, Pr. 
 247. 
 
 i Archb. Crim. PI. 128, 139; Roscoe, 
 
 Crira. Ev. 205. 
 
 5 As to what are material facts, 
 Itlillington v. Loving, 6 Q. B. D. [90. 
 
 G Rules of Court, xix. 4. 
 
 7 Ibid . xix. , xxi. et seq. 
 
Pleading law dictionary. Pledge 611 
 
 the reply is not merely a joinder of issue {q. v.), the next pleading 
 is delivered by the defendant. This and the subsequent pleadings, if 
 any, follow the names of the old pleadings at common law, viz., rejoinder, 
 surrejoinder, rebutter and surrebutter (q. v.) ; but the rule that no plead- 
 ing subsequent to reply, other than a joinder of issue, shall be pleaded 
 without leave of the Court or a judge, 1 coupled with the power of the 
 judge to order issues to be settled (see Issue, § 4), and the power of 
 amendment (q. v.), will in general prevent the pleadings from going so 
 far. § 8. In any case, however, unless either party demurs simply, or Close of 
 makes default, or unless issues are settled, the ultimate result must be P 1 ^™ | s f by 
 that one party joins issue upon the preceding pleading of his adversary, issue. 
 and then the pleadings are said to be closed. 2 § 9. If the plaintiff does Close of 
 not deliver a reply or demurrer, or any party does not deliver any default ^ by 
 subsequent pleading within the proper time, the pleadings are then 
 deemed to be closed, and the statements of fact in the pleading last 
 delivered are deemed to be admitted. 3 The next step is the notice of 
 trial (q. v.). As to judgment by default in other cases, see Judgment, § 7. 
 
 § 10. There are some miscellaneous proceedings in which the pleadings Miscellaneous 
 are different from those in an action, e.g., petitions of right {q.v.), in P rocee m S s - 
 which the pleadings after the petition itself follow the same course as 
 those in an action at law or suit in equity under the old practice {infra, 
 §§ ir, 12): and proceedings by scire facias, extent, traverse of office or 
 inquisition, and criminal proceedings, as to which see Indictment ; In- 
 formation, §§ 8 et seq.; Plea. 
 
 § 11. Formerly different systems of pleadings, except as to demurrers, prevailed in the Common law. 
 common law and equity Courts. In a common law action the pleadings consisted of 
 (1) the declaration, (2) plea, (3) replication, (4) rejoinder, (5) surrejoinder, (6) rebutter, 
 (7) surrebutter. 4 § 12. In a suit in equity the pleadings consisted of (1) the bill of com- Chancery, 
 plaint ; (2) either (a) a demurrer, (b) a plea, (c) an answer, (d) a disclaimer, or (e) a com- 
 bination of these ; and (3) replication. 5 Formerly rejoinders were also used in Chancery 
 pleadings, 6 but they had been disused long before the Judicature Act. According to 
 modem practice, if the plaintiff required to state fresh facts after the defendant had filed 
 his answer or plea, he amended his bill. 
 
 Etymology and History.]— Norman-French, pU, plee, an action or suit ;' from 
 Latin, placitum, which meant (1) a constitution or statute, 8 and later (2) meetings of 
 legislative and judicial bodies for passing laws and deciding litigation, and hence (3) the 
 suits themselves. 9 In the early ages of the common law the pleadings were oral state- 
 ments, or arguments by the parties or their counsel, made alternately until the question 
 in dispute was ascertained. 10 
 
 PLEDGE. — § 1. A pledge is where the owner of a chattel agrees 
 with another person that it shall be held by the latter (the pledgee) as 
 security for the payment of a debt or performance of an obligation. This 
 
 1 Rules of Court, xxiv. 2. c Mitford, 323. 
 
 2 Ibid. xxv. , ' Britton, 23 a. 
 
 3 Ibid. xxix. 12. 8 Dirkson, Man. Lat. w. Placerc ; 
 
 4 Co. Litt. 303 b ; Smith's Action at Placitum. 
 
 Law (11), 77 et seq.; Stephen on Plead- ,J Diez. Etym.Wortb. v. Piato; Stephen 
 
 ing, passim. on Pleading, App. n. (1). 
 
 8 Hunter's Suit, 12 et seq. ; Mitford on 10 Smith's Action at Law (n), 77 ; (12), 
 
 Pleading, passim. 58; Stephen, 23. 
 
 R K. Z 
 
6l2 
 
 Pledges to restore 
 
 LAW DICTIONARY. 
 
 Pluralities 
 
 Confession. 
 Cause. 
 
 entitles the pledgee to hold the chattel until payment or performance, 
 and, upon failure of payment or performance at the proper time, to sell • 
 it ; but until he does so, the pledgor may redeem it by payment or per- 
 formance. 1 
 
 § z. Specific appropriation is sometimes called an equitable pledge. 3 
 (See Appropriation, § 3.) 
 
 See Bailment; Charge; Mortgage; Paivn. 
 
 PLEDGES TO RESTORE.— Before the plaintiff in foreign attach- 
 ment can issue execution against the property in the hands of the 
 garnishee, he must find " pledges to restore," consisting of two house- 
 holders, who enter into a recognizance for the restoration of the property, 
 as a security for the protection of the defendant ; for, as the plaintiffs 
 debt is not proved in any stage of the proceedings, the Court guards the 
 rights of the absent defendant by taking security on his behalf, so that if 
 he should afterwards disprove the plaintiff's claim he may obtain restitu- 
 tion of the property attached. 3 (See Foreign Attachment^) 
 
 PLENARTY. — Under the old practice, when a defendant in an 
 action of quare impedit pleaded that the church was full (that is, that a 
 clerk had been previously presented and instituted), he was said to plead 
 plenarty. 4 (See Vacation?) 
 
 PLENARY. — § 1. An admission or confession, whether in civil or 
 in criminal law, is said to be plenary when it is, if believed, conclusive 
 against the person making it. 5 § 2. As to plenary causes in ecclesiastical 
 practice, see Cause, § 2. 
 
 PLENE ADMINISTRAYIT is the name given to the defence set 
 up by an executor or administrator when sued upon a debt of his testator 
 which he has no assets to satisfy : if he has some assets, but not enough 
 to satisfy the debt, his defence is called a plea of plene administravit 
 prater? (See Judgment, § 12.) 
 
 PLOUGHBOTE. See Estovers. 
 
 PLOUGHXAND, or PLOWLAND, is a quantity of land "not of any certain 
 content, but as much as a plow can by course of husbandry plough in a year." ' 
 
 PLURALITIES. — By several modern statutes no spiritual person 
 can hold any two benefices at the same time except in certain cases, in 
 some of which a licence or dispensation by the bishop is required. These 
 are acts forbidding pluralities, that is, the holding of benefices in plu- 
 rality. 8 (See Cession, § 2.) 
 
 1 Fisher on Mortgage, 7, 485. 
 
 2 Ranken v. Alfaro, 5 Ch. D. 786. 
 * Brandon, For. Attach. 93. 
 
 4 2 Inst. 360. 
 
 " Best on Evidence, 664 ; Roscoe, Crim. 
 Ev. 39. 
 
 6 Williams, Ex. 1803 et seq. 
 
 1 Co. Litt. 69 a. 
 
 s Stats. 1 Si 2 Vict. c. 106 ; 13 & 14 
 Vict. c. 98; 4 & s Vict. c. 39; Philli- 
 raore's Eccl. Law, 11 70. 
 
Pluries LAW DICTIONARY. Policy of Assurance 613 
 
 PLURIES. — When an original and alias writ have been issued and 
 proved ineffectual, a third writ, called a pluries -writ, may frequently be 
 issued ; it is to the same effect as the two former, except that it contains 
 the words "as we have often commanded you" (" 'skirt pluries prcccepimus") 
 after the usual commencement " we command you." ' (See Alias, § 1.) 
 
 POACHING is the popular name for the offence of unlawfully taking 
 or destroying game (q. v.). 
 
 POLICE. See Constable. 
 
 POLICE SUPERVISION.— Subjection to police supervision is 
 where a criminal offender is subjected to the obligation of notifying the 
 place of his residence and every change of his residence to the chief 
 officer of police of the district, and of reporting himself once a month to 
 the chief officer or his substitute. 2 Offenders subject to police supervision 
 are popularly called habitual criminals. 
 
 POLICY, as applied to a statute, regulation, rule of law, course of 
 action, or the like, refers to its probable effect, tendency or object, con- 
 sidered with reference to the social or political well-being of the state. 
 § 2. Thus certain classes of acts are said to be against public policy when Public policy, 
 the law refuses to enforce or recognize them on the ground that they 
 have a mischievous tendency so as to be injurious to the interests of the 
 state, 3 apart from illegality (q.v.) or immorality (q. v.). Thus, trading 
 with an enemy without licence from the crown, 4 marriage brokage con- 
 tracts, 5 and agreements in general restraint of marriage or trade (q. v.), 6 
 are instances of acts against public policy. § 3. The "policy of the law" Policy of the 
 seems to be the same thing as public policy. 
 
 § 4. The "policy of a statute," or " of the legislature," as applied to a Policy of a 
 penal or prohibitive statute, means the intention of discouraging conduct statule - 
 of a mischievous tendency. 7 (See Mala in se.) 
 
 Etymology.] — Greek, mXiriTx, from vixis, a city or state ; mediaeval Latin, fiolitia = 
 government of a state. 8 
 
 POLICY OF ASSURANCE.— § 1. A policy is an instrument con- 
 taining a contract of insurance, and is called a maritime (or marine), fire, 
 life or accident policy, according to the nature of the insurance. 
 
 § 2. Maritime policies are either open or valued. An open policy is ■ Maritime : 
 where the value of the thing insured is not stated in the policy, and open— 
 
 1 Bl. Comm. iii. 283 ; Archbokl, Pr. 6 Mitchel v. Reynolds, Smith, L. C. i. 
 
 585. 356; "White & Tudor's L. C. ii. 125; 
 
 * Stat. 34 & 35 Vict. c. 112 ; Preven- Egertonv. Brounlow, 4 H. L. C. 1. For 
 lion of Crime Act, 1879. ; Stephen, Crim. further details see Chitty, ubi supra ; Pol- 
 Dig. 5 ; Russell on Crimes, i. 68, 78. lock on Contract, 251 et seq. 
 
 '■' Chitty on Contracts, 613 ; Chesterfield '• See Barton v. Aluir, L. R., 6 P. C. 
 
 v. Janssen, "White & Tudor's L. C. i. 134; Bensleyv. Bignold, 5 B. & Aid. 335; 
 
 483. Pollock, 235. 
 
 4 Potts v. Bell, 8 T. R. 548. 8 Diez. Etym. "Wbrtb. v. Polhia. 
 
 5 Cole v. Gibson, 1 Ves. 503. 
 
614 
 
 valued — 
 voyage — 
 time — 
 
 mixed. 
 
 "Interest or 
 no interest" 
 or wager 
 policies. 
 
 Life : 
 whole life 
 policies. 
 
 Fire : 
 time — 
 floating 
 
 Poll 
 
 LAW DICTIONARY. 
 
 Poor Law 
 
 must therefore be proved if a loss happen. A valued policy is where the 
 value of the thing is settled by agreement between the parties and inserted 
 in the policy. 1 § 3. An insurance may be effected either for a voyage or 
 for a number of voyages, in either of which cases the policy is called 
 a voyage policy ; or the insurance may be for a particular period, irre- 
 spective of the voyage or voyages upon which the vessel may be engaged 
 during that period, and the policy is then called a time policy. § 4. In 
 addition to the two last-mentioned kinds of policy, there is a third, which 
 is usually called a mixed policy, as, for instance, where a ship is insured 
 " from A. to B. for a year." This is in effect a time policy with the 
 voyage specified. 2 
 
 § 5. Before the acts forbidding insurances by persons having no interest 
 in the subject-matter of insurance, it was sometimes provided in the policy 
 that it should be valid whether the insurer had any interest or not, 
 in order to dispense with proof of interest in case of loss ; these were 
 called "interest or no interest policies" or "wager policies." 3 (See 
 Interest, § 7.) 
 
 § 6. Life policies for the whole life of the cestui que vie, i.e. payable 
 whenever the death happens, are called whole life policies ; a policy for 
 a term of years gives no right to the sum insured, unless the life drops 
 within the period. 
 
 § 7. When a fire insurance is made for a limited period {e.g. a year) it is 
 called a time policy. 1 When it is made to insure not any specific goods, 
 but the goods which may at the time of the fire be in a certain building, 
 it is called a floating policy. 5 
 
 §8. As to the assignment of life and marine policies, see Assignment, § 4. 
 
 See Lost or not Lost ; Memorandum ; Underwriter. 
 
 Etymology.] — Italian, pilizza, an instrument under seal ; from Latin, pollex, in its 
 secondary sense of " seal." 6 
 
 POLL. See Deed, § 2 ; Challenge, § 3. 
 
 POOR LAW is that part of the law which relates to the public or 
 compulsory relief of the indigent poor. The subject is regulated by a 
 series of acts of parliament from 27 Hen. 8, c. 25, to the present time. 1 
 By stat. 43 Eliz. c. 2, overseers of the poor were appointed in every parish, 
 to provide for the relief of paupers settled in their parish (see Settle), the 
 necessary funds being produced by a poor-rate levied on property within 
 the parish. (See Rate.) The system of overseers being unsatisfactory, the 
 stat. 22 Geo. 3, c. 83, authorized any parish to appoint guardians in lieu of 
 overseers, and also to enter into a voluntary union with one or more other 
 parishes for the more convenient accommodation, maintenance and em- 
 
 1 Smith's Merc. Law, 344 ; Maude & 
 Pollock, Merch. Shipp. 343. 
 
 2 Maude & Pollock, 345. 
 
 3 Ibid. 333. 
 
 * Isaacs v. Royal Insurance Co., L. R., 
 5 Exch. 296. 
 
 5 A'orih British, &fc. Co. v. London, 
 &*c. Co., 5 Ch. D. 569. 
 
 6 Diez. Etym. Wiirtb. v. Polizza. 
 
 7 See the Index to the Statutes, tit. 
 Poor, and the notes to Steph. Coram, iii. 
 42 ct seq. 
 
Popular Actions LAW DICTIONARY. Portions 615 
 
 ployment of their paupers in common. (See Guardians of the Poor; Over- 
 seer; Vestry.) In 1833, the general management of the poor, and of the 
 funds for their relief, was placed under the superintendence and control 
 of a body called the Poor Law 'Commissioners, whose functions were in 
 1847 transferred to a new authority called the Poor Law Board, and in 
 1 87 1 to the Local Government Board {q. v.), who have the power of 
 making general poor law rules (subject to the approval of the Privy 
 Council), and of compulsorily consolidating any two or more parishes into 
 one union for the relief and management of their paupers, 1 or for con- 
 stituting separate parishes or amalgamating parts of parishes with other 
 parishes." 
 
 § 2. All those who stand in need of relief are entitled to be relieved in 
 the parish (or union) in which they happen to be, whether they are 
 "settled" or "casual" poor. (See Settlement ; Removal; Irremovability.) 
 But in many cases there is a person bound to maintain a pauper in 
 exoneration of the guardians : as where the pauper has a wife, husband, 
 child, parent or grandparent, able to maintain him. There are also 
 numerous statutes imposing penalties and punishments on persons who 
 refuse or neglect to work to maintain their families, or desert them, 
 leaving them chargeable to the parish. 3 
 
 POPULAR ACTIONS. See Action, § 8. 
 
 PORT. — § 1. A port is a harbour where customs officers are esta- 
 blished, and where goods are either imported or exported to foreign 
 countries, as distinguished from a mere harbour or haven, which is simply 
 a place, natural or artificial, for the safe riding of ships. It is said that 
 every port comprehends a city or borough (sometimes called caput portus), 
 with a market and accommodation for sailors. No person may land 
 customable goods on his own land or elsewhere than at a port. The 
 privilege of erecting ports' and taking dues and tolls as incident thereto 
 is part of the royal prerogative, and can only belong to a subject as a 
 franchise by grant or prescription from the crown, or by act of parlia- 
 ment. The owner of the port is bound to keep it in repair. 4 (See Toll.) 
 
 § 2. In other respects a port is the same thing as a harbour (q. v.). 
 
 See Sanitary Authority. 
 
 PORTION.— § 1. When land is settled in strict settlement, that is to 
 say, on the husband for life, with remainder in tail to the eldest son, it is 
 usual to provide for the payment to the "younger children" (that is, all 
 except the one who takes the estate) of gross sums of money, on their 
 attaining twenty-one, or, in the case of daughters, marrying. To enable 
 
 1 Stats. 34 & 35 "Vict. c. 70; 28 & 29 4 Coulson& Forbes on Waters, 42. Un- 
 Vict. c. 79. der the Customs Laws Consolidation Act, 
 
 2 Stat. 39 & 40 Vict. c. 61 ; Poor Law 1878 (s. n), the Commissioners of the 
 Act, 1879. Treasury may for the purposes of the cus- 
 ■ 3 Steph. Comm. iii. 56 et seq. , 39 & 40 toms laws appoint ports and quays, and 
 Vict. c. 61, s. 19. alter or annul any existing port. 
 
616 Posse Comitates law dictionary. Possession 
 
 these portions to be raised, the land is generally limited to trustees for 
 a long term of years with power to mortgage it. 1 (See Settlement ; Term.) 
 § 2. As to the operation of the rule against double portions, by which 
 a child is prevented from taking both a sum paid to him as a portion and 
 a legacy bequeathed to him as a portion, see Satisfaction. 
 
 POSSE COMITATUS (literally "the power of the county") is an 
 assemblage of the able-bodied male inhabitants of a county, except peers 
 and clergymen. The sheriff of the county may summon the posse comi- 
 tatus either to defend the county against the king's enemies, or to keep 
 the peace, or to pursue felons. Persons failing to obey the summons are 
 liable to fine and imprisonment. 2 
 
 POSSESSIO FRATRIS.— Under the old law of descent, where A. had a son arid 
 a daughter by one marriage, and another son by a subsequent marriage, and died intes- 
 tate seised of land in fee simple, then if the eldest son entered on the land and died 
 without issue, the daughter took the land, because the descent was traced from the person 
 last seised ; and in this case the younger son, being of the half-blood to his brother, could 
 not inherit to him. This was called a possessio fratris ; the rule being possess io fratris de 
 feodo simplici facit sororem esse hmredem (the possession of the brother makes the sister 
 heir) . 3 Now descent is traced from the purchaser and not from the person last seised, so 
 that the possessio fratris has been abolished. 4 
 
 POSSESSION. — I. § i. In its primary sense, possession is the 
 visible possibility of exercising physical control over a thing, coupled 
 with the intention of doing so, either against all the world, or against all the 
 world except certain persons. There are, therefore, three requisites of 
 possession. First, there must be actual or potential physical control. 5 
 Secondly, physical control is not possession, unless accompanied by 
 intention ; hence, if a thing is put into the hand of a sleeping person, he 
 has not possession of it. G Thirdly, the possibility and intention must be 
 visible or evidenced by external signs, for if the thing shows no signs of 
 Vacant being under the control of anyone, it is not possessed ; hence, if a piece 
 
 possession. of j ant j ; g deserted and left without fences or other signs of occupation, 
 it is not in the possession of anyone, and the possession is said to be 
 vacant. The question whether possession of land is vacant is of import- 
 
 1 Elphinstone, Conv. 335 ; Watson's thing which lies before him has just as 
 
 Comp. Eq. 586. much uncontrollable dominion over it as if 
 
 "- Stepli. Comm. ii. 628, iv. 254 ; stat. he had in fact taken it up." Savigny on 
 
 13 Hen. 4, c. 7. Possession, § 15. See further as to pos- 
 
 3 Litt. § 8 ; Co. Litt. 14 b. session, Brans (Das Recht des Besitzes im 
 
 4 Williams on Seisin, 76. Mittelalter), Holtz. Encycl. i. 292 ; Ben- 
 
 5 " Whoever holds a piece of gold in his tham's Works, i. 327; iii. 188; Austin, 
 hand is the possessor of it, of this there is Jurisp. 53 ; Hunter's Roman Law, 199 et 
 no doubt ; and from this and similar cases seq., where a new theory of the doctrine of 
 the idea of actual bodily contact has been possession in Roman law is developed, and 
 abstracted, and thus is made the essential the whole subject discussed with much 
 in every acquisition of possession. But in learning. 
 
 the above case something else exists, which c " Furiosus, et pupillus sine auctoritate, 
 
 is not necessarily connected with any bodily non potest incipere possidere, quia affec- 
 
 contact, viz. the physical power of dealing tionem tenendi non habent, licet maxime 
 
 with the subject immediately and of ex- corpore suo rem contingant, sicuti si quis 
 
 eluding any foreign agency. . . . Whoever dormienti aliquid in manu ponat." Dig. 
 
 at any moment is able to take up some- xli. 2, fr. 1, § 3. 
 
Possession LAW DICTIONARY. Possession 617 
 
 ance in actions for recovering possession, as in such cases service of the 
 writ is effected by posting a copy of it on part of the land. 1 (See Service.) 
 
 § 2. Possession does not necessarily imply use or enjoyment; thus a "Possession" 
 warehouseman has possession of the goods entrusted to him, without jf opposed to 
 having the use of them. But inasmuch as the use of property cannot be 
 had without possession, the term " possession " is frequently used as 
 implying use and enjoyment, and in this sense is opposed to "reversion," to "rever- 
 " remainder," " expectancy," " action," &c. ; thus a tenant for life in slon '" &c - 
 possession is one who has the immediate benefit of the property (e. g., by 
 occupation, receipt of the rents or income, &c), as opposed to a tenant 
 in remainder, whose right to the enjoyment of the property is deferred 
 (see Estate, §§ 9 et seq.) : a chose in possession is a chattel which can be 
 immediately used, such as a book, while a chose in action is merely 
 the right to obtain possession of a chattel, as in the case of a debt. 2 (See 
 Chose ; Reduction into Possession.") 
 
 § 3. Possession gives rise to peculiar rights and consequences. The Right of 
 principal is that a possessor is presumed to be absolute owner until the P° ssessi °n. 
 contrary is shown, 3 and is protected by law in his possession against all 
 who cannot show a better title to the possession than he has. Thus, if 
 a person takes possession of a piece of deserted land no one can eject 
 him from it except the rightful owner, 4 and even he only by taking legal 
 proceedings to prove his title. 5 This is called the right of possession. 6 
 Ordinarily, possession (unless combined with other elements) does not 
 affect the question of ownership ; and therefore if A., being wrongfully in 
 possession of a thing, conveys it to B., B. cannot retain it against the true 
 owner, even though he may have believed A. to be the true owner and paid 
 him the value of the thing. But in a few cases possession is sufficient to 
 enable a person without title to give a perfect title to a bona fide acquirer : 
 thus if A. steals money or a negotiable instrument from B. and transfers it 
 for value to C, who has no notice of the theft, B. cannot claim it from 
 C. 7 (See Earmark ; Negotiable ; Market Overt!) So under the Factors 
 Acts {q. v.) a person in possession of goods belonging to another may, in 
 certain cases, sell or pledge them, so as to give a good title to the purchaser 
 or pledgee. As to long-continued adverse possession, see infra, § 10. 
 
 § 4. In criminal law, possession frequently gives rise to a presumption Criminal law. 
 against the possessor, so as to shift the burden of proof on him. Thus 
 the possession of stolen goods, where recent and exclusive, is, in many 
 cases, sufficient to raise a presumption of larceny against the possessor, 
 which he must rebut by showing that he came honestly by them. 8 
 
 1 Rules of Court, ix. 8. G It is hardly necessary to point out the 
 
 2 2 Bl. Comm. 396. distinction between the right of possession 
 
 3 "Williams on Seisin, 7 ; Best on Evi- and the right to possession {supra, § 2, and 
 dence, 477. infra, § 5). The latter is one of the rights 
 
 1 Similarly in the case of a chattel: of ownership (q.v.). 
 
 Ai-mory v. Delamiiie, 1 Strange, 504; ' Miller v . Race, 1 Burr. 452; Smith's 
 
 Smith, L. C. i. 357. L. C. i. 538. 
 
 5 As to the reason for this protection, 8 Best on Evidence, 293. 
 see Savigny, § 6; Holland, Jurisp. 129. 
 
6i8 
 
 Possession 
 
 LAW DICTIONARY. 
 
 Possession 
 
 Rightful 
 possession. 
 
 Right to 
 possession. 
 
 Derivative 
 possession. 
 
 Wrongful 
 possession. 
 
 Adverse 
 possession. 
 
 Adverse ab 
 initio, or by 
 matter sub- 
 sequent. 
 
 I. With reference to its origin, possession is either with or without 
 
 right. 
 
 i. § 5. Rightful possession is where a person has the right to the posses- 
 sion of (that is, the right to possess) property, and is in the possession 
 of it with the intention of exercising his right. This kind of possession 
 necessarily varies with the nature of the right from which it arises ; a 
 person may be in possession of a thing by virtue of his right of owner- 
 ship, or as lessee, bailee, &c. ; or his possession may be merely per- 
 missive, as in the case of a licensee ; or it may be a possession coupled 
 with an interest, as in the case of an auctioneer. 1 So the right may 
 be absolute, that is, good against all persons : or relative, that is, good 
 against all with certain exceptions ; thus a carrier or borrower of 
 goods has a right to their possession against all the world except the 
 owner. 
 
 § 6. In jurisprudence, the possession of a lessee, bailee, licensee, &c, is 
 called derivative possession, while in English law the possessory interest 
 of such a person, considered with reference to his rights against third 
 persons who interfere with his possession, is usually called a special 
 or qualified property, meaning a limited right of ownership. 2 (See 
 Property!) 
 
 2.'§ 7. Possession without right is called wrongful or adverse accord- 
 ing as the rights of the owner or those of the possessor are considered. 
 Wrongful or naked possession is where a person takes possession of 
 property to which he is not entitled, so that the possession and the right 
 of possession are in one person, and the right to possession in another. 
 Where an owner is wrongfully dispossessed he has a right of action 
 to recover it, or, if he has an opportunity, he can exercise the remedy 
 of recaption in the case of goods, or of entry in the case of land 
 (see Recaption; Entry, § 3). Formerly the doctrine of wrongful posses- 
 sion was of more importance than now, owing to, the peculiar rules 
 applicable to disseisin, intrusion, feoffments, &c. 3 
 
 § 8. Adverse possession^ a possession inconsistent with the right of 
 the true owner ; in other words, where a person possesses property in a 
 manner in which he is not entitled to possess it, and without anything to 
 show that he possesses it otherwise than as owner, that is, with the 
 intention of excluding all persons from it, including the rightful owner, 
 he is in adverse possession of it. Thus, if A. is in possession of a field of 
 B.'s, he is in adverse possession of it, unless there is something to show 
 that his possession is consistent with a recognition of B.'s title. 4 
 
 § 9. Adverse possession is of two kinds, according as it was adverse 
 from the beginning, or has become so by matter subsequent. Thus, if a 
 mere trespasser takes possession of A.'s property, and retains it against 
 him, his possession is adverse ab initio. But if A. grants a' lease of land 
 
 1 Williams v. Millinglon, 1 I-I. Bl. 81 ; 
 cited in Woolfe v. Home, 2 Q. B. D. 
 
 P- 358- 
 
 '' Holland, 1 2 7 irf seq . 
 
 3 See the subject discussed in Taylor v. 
 Horde, 1 Burr. 60 ; Smith's L. C. ii. 681. 
 
 4 Ward v. Carttar, L. R., 1 Eq. 29. 
 
Possession law dictionary. Possession 619 
 
 to B., or B. obtains possession of the land as A.'s bailiff, or guardian, or 
 trustee, his possession can only become adverse by some change in his 
 position. In the case of a lessee, his possession becomes adverse (i) if 
 he discontinues payment of rent, 1 or (ii) if he pays rent to a person 
 claiming the land adversely to the rightful owner, and does not afterwards 
 pay any rent to the rightful owner; in the latter case the rule only applies 
 if the rent amounts to 20s. or upwards. 3 In the case of persons other 
 than lessees, the rule seems to be that possession is never considered 
 adverse if it can be referred to a lawful title, and that where a person 
 obtains possession by a permissive or fiduciary title, or by his own agree- 
 ment, or by judgment of law {e.g., under an elegit), he and all claiming 
 under him are presumed to hold possession according to that right. 3 
 
 § 10. Adverse possession not only entitles the adverse possessor, like Effects of 
 every other possessor, to be protected in his possession against all who possession 
 cannot show a better title {supra, § 3), but also, if the adverse possessor 
 remains in possession for a certain period of time, produces the effect 
 either of barring the right of the true owner, 4 and thus converting the 
 possessor into the owner, or of depriving the true owner of his right of 
 action to recover his property 6 (see Limitation, § 6 ; Prescription) ; and this 
 although the true owner is ignorant of the adverse possessor being in 
 occupation. 6 
 
 II. With reference to the mode of its exercise, possession is of several 
 kinds. 
 
 1. § n. A person has actual possession (de facto possession, possession Actual, or in 
 in fact) of a thing when he exercises physical control over it. Thus a ac ' 
 person who holds a thing in his hand has actual possession of it, and the 
 
 lessee of a house is in actual possession of it while he occupies it. 7 
 
 2. § 12. A person has constructive possession (or possession in law) Constructive, 
 ,,, .... , . .,,,.' or in law. 
 (1) when someone representing him has actual possession of the thing. 
 
 Thus if A., the owner of the land, leases it to B., A. has constructive 
 possession by B., and if A. dies intestate leaving C. his heir, C. is imme- 
 diately in constructive possession of the land by B., although he has never 
 had actual possession ; (2) a person may have constructive possession of 
 one thing because he has actual possession of another ; thus if a person 
 is in legal possession of a house he is ordinarily in constructive possession 
 
 1 Stat. 3 & 4 Will. 4, c. 27, s. 3. This ousted the seisin of the true owner, e.g.,hy 
 section abolished the contrary rule which disseisin, abatement, &c, as opposed to 
 formerly prevailed, and it is hence some- non-adverse possession, which existed 
 times said that the statute abolished the when a person was in the actual enjoyment 
 old rule of non-adverse possession. of land without having technically disseised 
 
 2 Sect. 9. the owner, so that during that time the 
 
 3 Thomas v. Tliomas, 2 K. & J. 83 ; period of limitation under the stat. 21 
 Pelly v . Bascomb , 4 Giff. 394 ; Saunders v. Jac. I, c. 16, did not run. This doctrine 
 Annealey, 2 Sch. & L. 73 ; Nepean v. Doe, was abolished by stat. 3 & 4 Will. 4, c. 27 
 Smith, L. C. ii. 584, and the cases referred (2 Bl. Comm. 266, note). 
 
 to in Shclford, R. P. Stat. 148. 6 Rains v. Buxton, 14 Ch. D. 537. 
 
 4 The Land Transfer Act, 1875, provides 7 For instances of actual possession, see 
 (s. 21) that as against a registered pro- Lows v. Telford, I App. Cas. 414 ; Cover- 
 prietor under the act there is to be no dale v ■. Charlton, 4 Q. B. D. 118. As to 
 acquisition of title by adverse possession. what is "actual possession" within the 
 
 5 Smith's L. C. ii. 681 et seq. Formerly meaning of the Reform Act, see Williams 
 the term adverse possession was used to on Settlements, 14 ; Haa 'field's Case, L. 
 signify the possession of a person who had R., 8 C. P. 306. 
 
620 
 
 Possession 
 
 LAW DICTIONARY. 
 
 Possession 
 
 Joint or 
 concurrent. 
 
 "Apparent" 
 and "formal 1 
 possession. 
 
 Criminal law. 
 
 " Possession' 
 = "seisin." 
 
 "Possession" 
 and "seisin." 
 
 of the goods in it, or if he is in legal possession of a portion of an estate or 
 farm he is in constructive possession of the whole of it. 1 
 
 3. § 13. Joint or concurrent possession is where two or more persons 
 have possession of the same thing at the same time. 2 
 
 4. § 14. Under the Bills of Sale Act 3 the validity of an unregistered bill 
 of sale frequently depends upon whether the owner of the goods remains 
 in "apparent possession'' of them, having merely given "formal posses- 
 sion" to the creditor. Thus where the holder of an unregistered bill of 
 sale of furniture put a man into the house, but did not interfere with the 
 furniture in such- a manner as to show that it had been taken out of the 
 debtor's control, it was held that the possession so taken was merely 
 formal, and that the goods remained in the apparent possession of the 
 debtor. 4 (See Bill of Sale, § 5.) 
 
 5. As to possession in the law of bankruptcy, see Order and Disposition; 
 Reputed Ownership. 
 
 6. § 15. In criminal law, possession is sometimes distinguished from 
 custody. Thus if the owner of a chattel gives it to his servant to keep for 
 him for a specific purpose or until he requires it again, the chattel is in the 
 custody of the servant and in the possession of the master ; if, however, 
 the servant receives anything for his master from a third person (not being 
 a fellow-servant), e.g., a tradesman, he has the possession and not merely 
 the custody of it until he places it in his master's possession by putting it 
 into a place or thing belonging to his master, or by some similar act. 
 The importance of the distinction is with reference to the difference 
 between larceny and embezzlement 5 {q. v., and see Custody). 
 
 II. § 16. Possession is sometimes used in the old books in the technical 
 sense of seisin or feudal possession of land. " It is to be knowne that 
 there is & jus proprietatis, a right of ownership, jus possessions, a right of 
 seisin or possession, and jus proprietatis et possessionis, a right both of 
 property and possession ; and this is antiently called jus duplicalum, or 
 droit droit. For example, if a man be disseised of an acre of land, the 
 disseisee hath jus proprietatis, the disseisor hath jus possessionis ; 6 and if 
 the disseisee release to the disseisor, hee hath jus proprietatis et possessionis." 1 
 (See Seisin; Droit; Possessio Fratris.) 
 
 III. § 17. Possession is also sometimes opposed to seisin. "The 
 difference between possession and seisin is : lessee for years is possessed, 
 and yet the lessor is still seised ; and therefore the terms of law are, that 
 of chattels a man is possessed, whereas in feoffments, gifts in tail, and 
 leases for life, he is described as seised." 8 
 
 See Enjoyment ; Quasi-possession. 
 
 1 The doctrine of constructive possession 
 does not apply to a wrongdoer or person 
 without title ; Ex parte Fletcher, 5 Ch.D. 
 809 ; Bristma v. Cormican, 3 App. Ca. at 
 p. 661 ; Coverdale v. Charlton, 4 Q. B. D. 
 104. See also Kinsman v. Rouse, 17 Ch. 
 D. 104. 
 
 2 In re Fells, 4 Ch. D. 509. 
 
 3 Stat. 41 & 42 Vict. c. 31 ; Robson's 
 Bankruptcy, 459. 
 
 4 Ex parte Lewis, L. R., 6 Ch. 626. 
 
 See ss. 4 and 8 of the act. As to posses- 
 sion excluding the doctrine of reputed 
 ownership, see Ex parte National Ass. 
 Co., 10 Ch. D. 408. 
 
 5 Steph. Crim. Dig. 195, 376. 
 
 c But see 2 Bl. Comm. 195. 
 
 7 Co. Litt. 266 a. 
 
 8 Noy's Maxims, 64. See Savigny, § 8 
 (p. 67) ; and for a classification of *' pos- 
 sessions," see Bentham's Woiks, i. 451 
 et sea. 
 
Possession Money LAW DICTIONARY. Post Litem mo tarn 621 
 
 POSSESSION MONEY is the fee to which a sheriff's officer is 
 entitled for keeping possession of property under a writ of execution. 1 
 (See Poundage.) 
 
 POSSESSORY is that which arises out of or is concerned with pos- 
 session. Thus a possessory action, in the days of real actions, was an 
 action to recover the possession of land (see Droit). An action of pos- 
 session is a different thing (see Action, § 16). As to possessory liens, see 
 Lien, § 4. 
 
 POSSIBILITY is a future event, the happening of which is uncer- 
 tain. In the law of real property, the term also signifies an interest in 
 land which depends on the happening of such an event. In this sense a 
 possibility is said to be either bare or coupled with an interest. Thus, Bare : 
 the expectation of an eldest son of succeeding to his father's land is a 
 bare possibility, which is not recognized by law as being capable of 
 transfer, though it may form the subject of a covenant to settle after- 
 acquired property. If land is conveyed to A. for life, and if C. should be coupled with 
 living at his death, then to B. in fee, B.'s contingent remainder is a pos- au interest - 
 sibility coupled with an interest : such a possibility may be devised by 
 will or conveyed by deed. 3 
 
 § 2. In the old books a distinction is drawn between (i) a common or Common or 
 near possibility, and (ii) a double or remote possibility, or possibility on a „ remote ■ 
 possibility. Thus, the chance that a man and a woman, both married to possibility on 
 different persons, shall themselves marry one another, is a common pos- P ossibmt y- 
 sibility, and therefore a gift to two such persons, and the heirs of their 
 two bodies, gives them an estate tail ; but " if land is given to a man and 
 two women and the heires of their bodies begotten, in this case they have 
 a joynt estate for life and every of them a severall inheritance, because 
 they cannot have one issue of their bodies, neither shall there be by any 
 construction a possibility upon a possibility, viz. that he shall marry the 
 one first and then the other." 3 (See further as to the effect of a gift of 
 this kind, under titles Estate Tail, § 4; Inheritance, § 5.) 
 
 § 3. Formerly, also, there was a rule that a contingent remainder could 
 not be created to take effect on the happening of a double possibility. 
 But this is now obsolete. 1 
 
 See Tenant in Tail after Possibility of Issue extinct. 
 
 POST. — As to contracts entered into through the post, see Letter. 
 As to actions in the post, see Writ of Entry. 
 
 POST LITEM MOTAM. See Lis mo'ta. 
 
 1 Sneary v. Abdy, I Ex. D. 299. has what is called a possibility of reverter, 
 
 2 Steph. Comm. i. 229 ; Williams, R. as to which see Reverter. 
 
 P. 279; stat. 8 & 9 Vict. c. 106, s. 6. 3 Co. Litt. 25 b, 184 a; Williams, R. P. 
 
 When an estate in fee simple conditional 275 ; Williams on Seisin, 124. 
 
 at the common law is created, the donor 4 Williams, R. P. 275. 
 
622 Post-nati LAW DICTIONARY. Potmd 
 
 POST-NATI. See Calvin's Case. 
 
 POSTEA, in the former common law practice, was a formal statement, indorsed on 
 the nisi prius .record, which gave an account of the proceedings at the trial of the action. ' 
 Under the new practice, the associate malces an entry of the findings of the jury, and of 
 the directions and certificates given by the judge at the trial, in a book kept for that pur- 
 pose, 3 (See Certificate, § 2.) 
 
 POSTHUMOUS, See In Ventre sa Mere. 
 
 POSTLIMINIUM is the name given to the rule of international 
 law by which, in certain cases, persons or property captured by an 
 enemy revert to their original owner, when recaptured from the enemy by 
 individuals belonging to the nation from which they were captured. To 
 what cases the rule is applicable depends to a great extent on the practice 
 of each particular nation : for it properly belongs to private international 
 law, though the term postliminium is also said to apply to those cases 
 where captured property has come into the hands of neutrals, and is 
 reclaimed by the belligerent from whom it was taken. 3 As to the English 
 law on the subject, see Recapture. 
 
 POST-MAN. — "In the Court of Exchequer, two banisters, called the post-man 
 and the tub-man (from the places in which they sit), have a precedence in motions." (See 
 R. v. Bishop of Exeter, 7 Mee. & W. 188.) 4 This right of pre-audience would seem not 
 to have been abolished by the merger of the Court of Exchequer into the Queen's Bench 
 Division of the High Court (g. v.), the judges having intimated that whenever a divisional 
 Court might be sitting in the old Court of Exchequer, the tub-man would be permitted 
 to retain his right of precedence. 5 
 
 POTHIER. — Robert Joseph Pothier was born on the 9th January, 
 1699, at Orleans, where he afterwards became professor: he died on the 
 2nd March, 1772. He wrote Pandectaz JustinianecE in novum orditiem 
 digestce : and treatises on many important branches of private law : they 
 enjoy considerable reputation. Complete editions of his works were 
 published in 1820-22, 1825, 1845 and 1861. 6 
 
 POUND. — § 1. A pound is a building or piece of land where goods 
 
 which have been seized as distress are placed by the distrainor ; as soon 
 
 as this has been done the goods are in the custody of the law. 7 (See 
 
 Rescue; Pound-breach.) 
 
 Overt. § 2. A pound is either overt (open) or covert (close). A pound overt 
 
 Common. is practically only used for cattle, and may be either a common pound overt, 
 
 which is a pinfold or structure of wood made for such purposes on a 
 
 Special. public piece of land : 8 or a special pound overt, which is where the cattle 
 
 are impounded on the land where the distress was made, 3 or on that of 
 
 the distrainor, or of some other person by his consent, in which two latter 
 
 1 Smith's Action, 167. 6 Solicitors' Journal, nth June, 18S1. 
 
 2 Rules of Court, xxxvi. 23. 6 Holtz. Encycl. 
 
 3 Manning's Law of Nations, 190; 7 Co. Litt. 47 b. 
 
 Naval Prize Act, 1864. "Dictum est 8 Generally on the waste of a manor, and 
 
 autem postliminium a limine et post . . . hence formerly called the lord's pound : 
 
 quia eodem limine revertebatur, quo amissus Blount, Law Diet. s. v. 
 erat." Just. Inst. 1, xii. $ 5; Dig. xlix. 15. » Made lawful by staf. 11 Geo. 2, c. 19, 
 
 4 Steph. Comm. iii. 274, note. ». 10. 
 
Poundage law DICTIONARY. Power 623 
 
 cases the distrainor must give notice to the owner of the cattle, because 
 where cattle are impounded in a pound overt their owner is bound to 
 supply them with food and drink. A pound overt is so called, either 
 because it is open overhead 1 (which seems to be the true reason), or 
 because the owner of the cattle may go to it wherever it is, without being 
 liable for a trespass. 2 § 3. A pound covert or close is where the distrainor Covert or 
 impounds the cattle or goods in some part of a house {e.g. a stable), and close- 
 then he is bound to supply the cattle with food and drink. Goods which 
 are liable to be damaged by the weather or stolen must always be 
 impounded in a pound covert. 3 
 
 § 4. Formerly a distrainor could not impound the distress on the land 
 of the tenant, but had to remove it. Now however the distrainor may 
 convert any part of the premises, upon which a distress is taken, into a 
 pound pro hac vice. 4 
 
 Etymology.]— Old English, pond-fold, fynfold ; from Anglo-Saxon, fyndan, to 
 shut in. 5 (See Pound-breach.) 
 
 POUNDAGE is a fee payable to an officer of a Court, or to the 
 public revenue, in respect of services performed by him : it is so called 
 because it is calculated at so much for every pound sterling of the amount 
 with which he has to deal. Thus a sheriff, on executing a fi. fa., is 
 entitled to a poundage of one shilling in the pound if the sum levied does 
 not exceed 100/., and sixpence in the pound above that sum. 6 
 
 POUND-BREACH is the act of taking goods out of a pound before 
 the distrainor's claim has been satisfied, and that whether the distress was 
 lawfully made or not, because impounded goods are in the custody of the 
 law. The distrainor's remedy is either by action for treble damages, 
 or by proceedings for a penalty before justices.' (See Double Damages ; 
 Rescue.) 
 
 Etymology.] — Anglo-Saxon, " pundbreche, i. e. infractura parci." 8 
 
 POWER is sometimes used in the same sense as " right," as when we 
 speak of the powers of user and disposition which the owner of property 
 has over it, but strictly speaking a power is that which creates a special 
 or exceptional right, or enables a person to do something which he could 
 not otherwise do. Powers are either public or private. 
 
 I. § 2. Public powers are those conferred by the crown, by the legis- Public 
 lature (parliamentary powers), or by a delegate of the crown or legis- P owers - 
 lature, such as the Privy Council or Board of Trade, for a public purpose; 
 
 1 Bl. Comm. iii. 12. Co., 3 Ex. D. 174. 
 
 2 Co. Litt, 47 b. 7 Co. Litt. 47 b ; Bl. Comm. iii. 12, 146 ; 
 
 3 Ibid. stats. 2 W. & M. (sess. 1), c. 5 ; 5 & 7 
 1 Stat. 11 Geo. 2, c. 19. Vict. u. 30. 
 
 5 Miiller's Etym. "Wortb. w. Pinfold, 8 Leges Henrici Primi, c. 40 ; Schmid, 
 Pound. Ges. der Ang. glossary, from which it 
 
 6 Stat. 28Eliz. t. 4; Archbold, Pr. 54L seems that this is the only instance of the 
 This is in addition to his fees on the war- word occurring in Anglo-Saxon records, 
 rant, &c. {ibid. 1483) ; Mortimer v. Cragg, It occurs in Britton (72 a) under the form 
 3 C. P. D. 216 ; fiissicis v. Bath Colliery of pountbreche. 
 
624 
 
 Power 
 
 LAW DICTIONARY. 
 
 Power 
 
 Compulsory. 
 
 Private. 
 
 Mere powers. 
 
 Powers in the 
 nature of 
 trusts. 
 
 General. 
 
 Special. 
 
 Powers of 
 creating 
 estates, &c. 
 
 Legal : 
 by use, 
 
 by will, 
 
 e.g., the construction of a railway. When a parliamentary power authorizes 
 acts by which the rights of private persons may be affected against their 
 will, it is called a compulsory power; such are the powers given to 
 railway companies for the compulsory purchase of land required for their 
 undertakings. (See Act of Parliament, § 5.) 
 
 II. § 3. Private powers are those conferred on private persons. Some 
 are created by the parties themselves, in which case the person conferring 
 the power is called the donor, and the person to whom it is given the 
 donee ; others are statutory, that is, conferred by statute. 
 
 § 4. Powers must be distinguished from trusts : " powers are never, 
 imperative — they leave the act to be done at the will of the party to whom 
 they are given. Trusts are always imperative." 1 Powers are, however, 
 sometimes divided into (i) mere, bare or naked powers (or powers 
 in the proper sense of the word), and (ii) powers coupled with a trust, 
 or powers in the nature of trusts, which the donees are bound to 
 exercise ; they are, therefore, really trusts and powers only in form. 2 
 
 § 5. Powers are of two principal kinds, viz. (1) those which are by law 
 incident to an office (sometimes called general powers), such as the 
 ordinary powers of directors, solicitors, guardians, executors, trustees, &c. ; 
 and (2) those conferred specially (special powers), such as a power of 
 sale or leasing, or an authority conferred by a power of attorney, procura- 
 tion, warrant, &c. 3 Special powers are of infinite variety, but for practical 
 purposes they may be divided into those which enable the donees to 
 create or modify estates or interests in property (called in conveyancing 
 " powers " par excellence), and those conferred for other purposes. 
 
 A. § 6. Powers which enable the donees to create or modify estates or 
 interests in property " confer the right of alienation as opposed to that 
 of enjoyment ;" 4 that is, the power enables the donee to declare in whom 
 and in what manner the property is to vest, but gives him (qua. donee) no 
 right of ownership over it. Such a power is said to be legal when it 
 operates upon or passes the legal estate in the property, and equitable 
 when it only operates on or passes a beneficial or equitable estate or 
 interest. 5 
 
 (a) § 7. Legal powers (which are confined to land) operate either under 
 the Statute of Uses, under the Statute of Wills, or by custom. Powers 
 under the Statute of Uses operate in the following manner : if land is 
 conveyed to A. and his heirs 6 to such uses as B. shall appoint, and B. 
 appoints or declares the uses to C. for life, and after C.'s death to himselt 
 in fee, then the legal estate passes to C. for his life with remainder to B., as 
 if the estates had been originally so conveyed to them. (See Appointment, 
 § 2 ; Use.) § 8. Powers operating under the Statute of Wills are similar 
 to those operating by way of use, except that they can be created and 
 take effect with greater freedom : thus, if a testator directs his executors 
 to sell his land, without devising it to them, a sale by them operates as 
 
 1 Att.-Gen. v. Lady Downing, Wilm. 23. 
 
 s Brown v. Higgs, 8 Ves. 570, cited in 
 Lewin on Trusts, 428; Sugden on Powers, 
 588; Co. Litt. 236 a. 
 
 3 Lewin on Tresis, 414. 
 
 1 Burton, Comp. $ 173. 
 
 3 Sugden, 45. 
 
 6 A. is sometimes called (especially in 
 the case of settlements) the " trustee of the 
 power," Elphinstone, Conv. 328. 
 
Power law dictionary. Power 625 
 
 the execution of a power to dispose of the land, although they have no 
 ownership in it, and the purchaser takes as devisee under the will. 1 (See 
 Executory Interest.) § 9. Powers operating by virtue of a custom (e.g., a by custom. 
 custom applicable to copyholds) resemble those under the Statute of 
 Uses in their effect, but they are less flexible in their application. 2 
 
 § 10. Legal powers are («) appendant or appurtenant when the donee has Appendant or 
 an estate in the land and the power is to take effect wholly or in part out a PP urtenant : 
 of that estate, as in the case of a tenant for life having a power of leasing, 
 or a mortgagee having a power of sale ; (<3) in gross or collateral, either in gross or 
 (i) where the donee has an estate in the land, but the power does not collateral ; 
 take effect out of it, as where a tenant for life has power to appoint an 
 estate to commence after his death, or (ii) where the donee has no 
 present estate, but may exercise the power for his own benefit ; ( 7 ) merely merely 
 collateral or naked, where the donee neither has an estate nor can exercise £^«ri eral ° r 
 the power for his own benefit, as in the case of executors having a mere 
 power of sale. If lands are devised to an executor with a trust or power 
 of sale, this is sometimes called a power coupled with an interest, to dis- 
 tinguish it from a bare or naked power. 3 This classification of powers is 
 of importance with reference to the ability of the donee to release, 
 suspend or extinguish the power. Thus, executors who have a merely 
 collateral power to sell land cannot release or extinguish it. 4 
 
 (b) § ii. Equitable powers are analogous to legal powers. Thus, if Equitable, 
 land or stock is vested in trustees upon such trusts as B. shall appoint, 
 and B. appoints it to C, the legal ownership of the land or stock remains 
 in the trustees, but the equitable ownership passes to C, and he can 
 compel the trustees to convey the land or transfer the stock to him. 5 
 
 § 12. Powers are also divisible into (a) powers of revocation, which Revocation or 
 give only the right of revoking existing estates, and (b) powers of appointment, 
 appointment, which enable the donees to create or appoint new estates. 
 When a power of appointment is not preceded by an existing estate, Primary or 
 it is sometimes called a primary power; when it is preceded by an subsidiary. 
 existing estate which the donee may revoke, it is called a power of 
 revocation and new appointment, or a subsidiary power. 6 As to the 
 operation of appointments with reference to the rule against perpetuities, 
 see Appointment, § 2. 
 
 § 13. Powers are either general [absolute] or limited. A general General, 
 power enables the donee to appoint the property to any person or 
 persons (including himself), for any estates, and on any conditions, and 
 is therefore equivalent to ownership. 7 If he dies having exercised it by 
 will in favour of a volunteer, or if he becomes bankrupt, the power forms 
 part of his assets for payment of his debts. 8 (See Administration,, § 2.) 
 
 1 Williams, R. P. 314. 6 Watson, Comp. 759; Leake, P. L. 
 
 2 Chance on Powers, 3, 27. 374. 
 
 8 Co. Litt. 113 a. 7 Sugden, 394. 
 
 4 Sugden, 46 et seq., 906 ; Co. Litt. 8 Williams on Settlement, 40. In the 
 265 b, 237 a ; Watson, Comp. Eq. 758. case of a person dying after having exer- 
 
 5 Williams, P. P. 319. cised a general power by his will, the doc- 
 
 S. S S 
 
626 
 
 Power 
 
 law dictionary. Power of Attorney 
 
 Limited : 
 special, 
 
 particular. 
 
 Distributive. 
 
 Exclusive. 
 Mixed. 
 
 Miscellaneous 
 powers. 
 
 § 14. A limited power is either special or particular. A special power is 
 one which is restricted as to the nature or duration of the estates or 
 interests to be created under it, as in the case of the power to grant 
 leases by appointment for certain terms frequently given to the tenant 
 for life under a settlement. § 15. A particular power is one which is 
 restricted as to its objects or the persons in whose favour it may be 
 exercised, as in the case of a power to appoint property among a certain 
 class only (e. g., the children of the donee) ; but the terms "special" and 
 " particular " are frequently used as synonymous. 1 § 16. When a power 
 of appointment among a class requires that each shall have a share, it is 
 called a distributive or non-exclusive power ; when it authorizes, but does 
 not direct, a selection of one or more to the exclusion of the others, it 
 is called an exclusive power, and is also distributive ; when it gives the 
 power of appointing to a certain number of the class, but not to all, it is 
 exclusive only, and not distributive. 2 A power authorizing the donee 
 either to give the whole to one of a class, or to give it equally amongst 
 such of them as he may select (but not to give one a larger share than 
 the others), is called a mixed power. 3 Formerly, if the donee of a non- 
 exclusive power excluded one of the objects from his appointment, or 
 only gave him an illusory share, the appointment was held void ; but this 
 rule has been abolished. (See Appointment, § 4.) As to frauds- on 
 powers, see Fraud, §13. 
 
 B. § 17. Powers not given for the purpose of creating or modifying 
 estates or interests in property are of great variety. In most cases their 
 names explain themselves. Thus, a power of appointing new trustees is 
 incident to every modern settlement created by will or deed, either by 
 express provision, or by statutory enactment. So a power of distress and 
 entry may be inserted in a deed to enable the donee to eiiter and distrain 
 on certain land of the donor, to enforce the performance of some 
 covenant, e. g., the payment of an annuity. (See Distress, § 8.) For 
 other examples of powers, see Power of Attorney. 
 
 POWER OF ATTORNEY is a formal instrument by which one 
 person empowers another to represent him, or act in his stead for certain 
 purposes. A power of attorney is usually a special instrument in the 
 form of a deed poll, but it may form part of a deed containing other 
 matter ; thus a deed of dissolution of partnership often contains a power 
 of attorney from the retiring to the continuing partner, to enable the 
 
 trine is, that by exercising it he is in ordinary- 
 cases presumed to have meant to take the 
 property out of the instrument creating the 
 power for all purposes, so as to make it 
 form part of his estate ; and therefore if the 
 appointment fails (e.g., by the appointee 
 dying in the appointor's lifetime), the pro- 
 perty results to the appointor's estate, and 
 not to that of the donor of the power. If, 
 however, the donee only exercises the 
 power partially, so that he does not appear 
 
 to have intended to make the property 
 part of his estate for all purposes, then if 
 the appointment fails the property results 
 to the donor of the power (see In re Van 
 Hagen, 16 Ch. D. 18). An analogous 
 rule prevails in cases of conversion : see 
 that title, § 5. 
 
 1 Williams, R. P. 306 et seq. ; Sugden, 
 
 394- 
 
 2 Leake, 389. 
 
 3 Sugden, 448. 
 
Practice law dictionary. Prtzcipe 627 
 
 latter to wind up the business, and collect the assets. A power which 
 authorizes the execution of a deed must itself be conferred by deed. 1 
 
 § 2. The donor of the power is called the principal or constituent ; the 
 donee is called the attorney. 
 
 § 3. A power of attorney which authorizes the attorney to do all acts General, 
 of a certain class from time to time, such as to carry on a business, collect s P eclal - 
 debts, &c, is sometimes called a general power, as opposed to a special 
 or particular power, or one which is confined to a specified act or acts. " 
 A limited power is one containing precise instructions as to the mode of Limited, 
 executing it, while an unlimited power leaves this to the discretion of the unlimited - 
 attorney. 2 
 
 § 4. As to the persons who can empower others to act for them by 
 power of attorney, see Agent; Authority; Delegatus non potest delegare; 
 Ministerial. As to the cases in which a power of attorney is revocable, 
 see Authority, §4; Revocation. By stat. 22 & 23 Vict. c. 35, a trustee, Protection of 
 executor or administrator making any payment or doing any act bona fide trustees ' &c - 
 in pursuance of a power of attorney, in ignorance of the death of the 
 person who gave the power, or of his having done some act to avoid it, 
 is not liable for the money so paid, or the act so done. 
 
 PRACTICE. — The law of practice or procedure is that which regulates 
 the formal steps in an action or other judicial proceeding. It therefore 
 deals with writs of summons, pleadings, affidavits, notices, summonses, 
 motions, petitions, orders, trial, judgment, appeals, costs and execution. 
 In jurisprudence it forms part of adjective law. (See Law, § 8.) 
 
 PRAECIPE, in the practice of the High Court, is a slip of paper on 
 which a party to a proceeding writes the particulars of a document which 
 he wishes to have prepared or issued ; he then hands it it to the officer 
 of the Court whose duty it is to prepare or issue the document. Thus, 
 when a party wishes to issue a writ of execution, he must file a praecipe 
 containing the title of the action, the reference to the record, the date of 
 the judgment, and the name of the party against whom the execution is 
 to be issued. 3 
 
 § 2. In admiralty actions praecipes are longer and more important than 
 in other actions. 4 
 
 § 3. Formerly a praecipe was a species of original writ, so called because it required 
 the sheriff to command the defendant either to do a certain thing or to show cause why 
 he had not done it ; 5 e. g., the praecipe quod reddat, commanding the defendant to give 
 up land to the demandant, 6 which was the writ by which a common recovery was com- 
 menced against the tenant of the freehold. In order to have a recovery with double Tenant to the 
 voucher to bar an entail it was usual for the tenant in tail to convey an estate of freehold praecipe. 
 to a friend against whom the praecipe was brought ; this was called making a tenant to 
 the praecipe. 7 (See Recovery ; Voucher.) 
 
 1 Stokes on Powers of Attorney; Davids. 4 See the forms : Roscoe's Admiralty, 
 Conv. i. 475, n. clxxix. et seq. ; Williams & Bruce, 1 86, 
 
 2 Ibid. xlvii. 
 
 3 Rules of Court, xlii. 10 (rule 17 of '■> Bl. Comm. iii. 274. 
 June, 1876). 6 Co. Litt. 101 a. 
 
 Steph. Comm. i. 569. 
 
 S S 2 
 
628 
 
 Prcemunire 
 
 LAW DICTIONARY. 
 
 Precept 
 
 Judicial. 
 
 Convey- 
 ancing. 
 
 The instructions for issuing an original writ consisted of a copy of the writ required, 
 and therefore began with the word " praecipe ;"* hence probably the use of the word in 
 its. modern sense. 
 
 PRAEMUNIRE is the offence of directly or indirectly asserting the 
 supremacy of the pope over the crown of England, as by procuring 
 excommunications or bulls from Rome. The punishment is for the 
 offender to be put out of the king's protection, to forfeit his lands and 
 goods to the king, and to be imprisoned. The mandatory part of the 
 writ used to enforce the provisions of the acts against praemunire began 
 prcemunire facias, "that you cause [the accused] to be forewarned ;" hence 
 the name. It is now quite obsolete. 2 
 
 PREAMBLE of a bill in parliament is that part which contains the 
 recitals showing the necessity for the bill. When a private bill is 
 referred to a select committee, and is opposed on the question of its 
 general expediency, the promoters have to adduce arguments and 
 evidence in support of it ; this is called proving the preamble. If it is 
 not proved, the bill is generally rejected by the house. 3 
 
 PRE-AUDIENCE.— The right of pre-audience in a Court of 
 law is the right which one person has of being heard before another, in 
 business which is not set down to be heard in a particular order, e. g., 
 motions. Thus the Attorney-General has precedence of other counsel in 
 most matters, the Queen's counsel over junior barristers, &c* (See 
 Postman.) 
 
 PRECATORY. See Trust. 
 
 PRECEDENT. — § i. A judicial precedent is a judgment or decision 
 of a Court of law cited as an authority for deciding a similar state of facts 
 in the same manner, or on the same principle, or by analogy. The 
 original rules of common law and equity are contained in precedents 
 established by the Courts, that is, they have to be arrived at by ascer- 
 taining the principle on which those cases were decided. (See Law, § 4; 
 Report.) 
 
 § 2. In conveyancing, a precedent is a copy of an instrument, used as 
 a guide in preparing another instrument of a similar description. 
 
 As to precedent as applied to conditions, see Condition, § 6. 
 
 PRECEPT. — § 1. A precept is an order or direction given by one 
 official person or body to another, and requiring him to do some act 
 within his province. 
 
 § 2. Thus rates levied by school boards, sanitary authorities, and the 
 
 1 Tidd's Pr. 105 ; Lee's Pr. Diet. 980. 
 
 2 Stats. 35 Edw. I ; 16 Ric. 2, c. 5 ; 27 
 Eliz. c. 2, and many others, cited in Bl. 
 Comm. iv. 103 et seq. ; Steph. Comm. iv. 
 168 et seq. ; Co. Litt. 129 b, 391 a and 
 
 Butler's note. 
 
 3 See May, Pari. Pr. 799 et seq. 
 
 4 A table showing the order of pre- 
 audience is given in Steph. Comm. iii. 
 274, note. 
 
Predecessor LAW dictionary. Prejudice 629 
 
 like, are collected by the overseers of the respective parishes in accord- 
 ance with precepts issued to them, 1 because they, as the collectors of the 
 poor rate, have the materials and machinery available for the collection of 
 other rates. § 3. So jurors for the trial of actions in the High Court are 
 summoned by the sheriff under precepts directed to him by the judges. 2 
 
 PREDECESSOR, — § 1. When a person who is a corporation sole, Corporation 
 such as a bishop or parson, dies, and the land held by him in his cor- sole- 
 porate capacity passes to his successor, the person so dying is called 
 the predecessor, just as a natural person from whom land descends to 
 his heir is called the ancestor. 3 (See Successor.) 
 
 § 2. As to the meaning of "predecessor" in the Succession Duty Act, Succession 
 vee Succession. Duty Act. 
 
 PRE-EMPTION.— § 1. The right of pre-emption is the right of Land, 
 purchasing property before or in preference to other persons. § 2. By 
 the Lands Clauses Consolidation Act, 1845, where a company under its 
 compulsory powers has purchased land which is not required for the 
 purposes of its undertaking, and is not situate in a town, or used for 
 building purposes, the company must first offer it for sale to the person 
 owning the lands from which it was originally severed. This is com- 
 monly called the right of pre-emption. 4 
 
 § 3. Pre-emption was formerly part of the royal prerogative, and Prerogative 
 consisted in the right of buying up provisions and other necessaries for 
 the use of the royal household, at an appraised value, in preference to all 
 others, and without the consent of the owner. This right was surrendered 
 by Charles II. at his restoration. 5 
 
 § 4. In international law pre-emption is the right of a government to International 
 purchase, for its own use, the property of the subjects of another power in aw " 
 transitu, instead of allowing it to reach its destination. Formerly the 
 right appears to have been exercised in times of peace on any cargoes 
 which entered the port of the purchasing state, but this practice has 
 long fallen into disuse, and at the present day pre-emption is confined to 
 time of war, and to cases where the goods are of such a description that 
 their transport to the enemy of the pre-empting state would be manifestly 
 to the disadvantage of the latter, while on the other hand the law of 
 contraband does not justify their confiscation. 6 
 
 PREFERENCE— PREFERENTIAL. See Fraudulent Preference. 
 As to preferential debts, see Debt, § 12. 
 
 PREGNANCY. See De Ventre inspiciendo ; Jury, § 10. 
 
 PREJUDICE means injury. An offer which is made " without 
 prejudice " cannot be construed as an admission of liability, or given in 
 
 1 Public Health Act, 1872, s. 18; 1875, 3 c °- Litt - 7 8b - 
 
 s . 222. * Dart's Vendors & Purchasers, 76L 
 
 - Smith's Action, 121; Juries Act, 1870, 5 Steph. Comm. ii. 537. 
 
 s. 16. 6 Manning's Law of Nations, 395. 
 
63O Preliminary Act law dictionary. Premium 
 
 evidence at all, 1 except for a wholly collateral purpose, e. g., to account 
 for delay in asserting or prosecuting a claim. 
 
 PRELIMINARY ACT.— In actions for damage by collision 
 between vessels, unless the Court otherwise orders, the solicitor for each 
 party, before any pleading is delivered, must file a sealed-up document, 
 called a Preliminary Act, which is not opened until ordered by the 
 Court. It contains a statement as to the names of the vessels and their 
 masters, the time and place of the collision, the state of the wind, 
 weather and tide, the course, speed and lights of each vessel, and other 
 particulars tending to show how the collision happened. If both solici- 
 tors consent, the Court may order the preliminary acts to be opened and 
 the evidence to be taken thereon without any pleadings being delivered.' 
 " The object of the rule requiring preliminary acts is to obtain a state- 
 ment recenti facto of the leading circumstances, and to prevent either party 
 varying his version of facts, so as to meet the allegations of his opponent. 
 The Court will never allow a party to contradict his own preliminary act 
 at the hearing." 3 
 
 PREMISES.— § i. In the primary sense of the word, "premises'* 
 signifies that which has been before mentioned. Thus, after a recital of 
 various facts in a deed, it frequently proceeds to recite that in considera- 
 tion of the premises, meaning the facts recited, the parties have agreed 
 to the transaction embodied in the deed. 4 (See Agreement, § i.) 
 
 § z. In a conveyance, when the property to be dealt with has been 
 fully described, it is generally referred to in the subsequent parts of the 
 deed, as " the premises hereinbefore described and intended to be hereby 
 assured," or similar words. 5 § 3. From this use of the word, "pre- 
 mises " has gradually acquired the popular sense of land or buildings. 
 Originally, it was only used in this sense by laymen, and it is never so 
 used in well-drawn instruments, but it is frequent in badly-drawn agree- 
 ments and in acts of parliament. 6 
 
 § 4. In its technical sense, the " premises " is that part of a deed 
 which precedes the habendum, and therefore includes — the introduction, 
 and (in indentures) the date — the parties, or (in deed polls) the name of 
 the grantor, &c. — the recitals — the consideration — and the grant, release 
 or other operative part. 7 (See the various titles.) 
 
 PREMIUM. — In granting a lease, part of the rent is sometimes 
 capitalized and paid in a lump sum at the time the lease is granted. 
 This is called a premium. A limited owner, such as a tenant for life, 
 cannot as a rule take a premium on granting a lease under a power, as 
 the power generally forbids him to do so. (See Settled Estates Act.) 
 
 As to premiums of insurance, see Insurance, § 1 . 
 
 1 Best on Evidence, 670. 6 B. g., the Licensing Act, 1872, where 
 
 2 Rules of Court, xix. 30. "licensed premises" means premises in 
 
 3 Williams & Brace's Admiralty, 253. respect of which a licence has been granted 
 
 4 Williams, P. P. 14. and is in force. 
 
 6 Davids. Conv. i. 80. ' Co. Litt. 6 a ; Shepp, Touch. 74 ; 
 
 Davids. Conv. i. 32. 
 
Prerogative law dictionary. Prescribe 631 
 
 PREROGATIVE means those exceptional powers, pre-eminences 
 and privileges which the law gives to the crown. 1 They are either 
 direct or by way of exception. 2 Those by way of exception are such By way of 
 as exempt the crown from some general rules binding on the rest of the etcep lon ' 
 community, as that lapse of time is no bar to a claim by the crown, 
 though this rule has been modified by statute. 3 (See Nullum Tempus 
 occurrit Regi; Regalia.) 
 
 § 2. The direct prerogatives may be divided into three kinds: as they Direct, 
 regard the royal character, the royal authority and the royal income. 
 To the first class is generally referred the rule that the king can do 
 no wrong : in other words, that he is not liable to be sued or punished 
 for any act or default. (See Petition of Right.) The second class includes 
 the right of sending and receiving ambassadors, making treaties, de- 
 claring war and peace, assembling, proroguing and dissolving parliament, 
 raising and regulating fleets and armies (see Mutiny Act), appointing 
 ports and harbours (q. v.), appointing judges and magistrates, creating 
 titles and offices, and coining money. 4 The third class, or fiscal pre- 
 rogatives, are the sources of the royal revenue : these, however, though 
 nominally belonging to the crown, have for long past been surrendered 
 to the public use, and now form part of the public income known as the 
 Consolidated Fund {q. v.), out of which the crown receives an annual sum, 
 called the Civil List {q. v.), for the expenses of the royal household and 
 establishment. 5 The ancient fiscal prerogatives included the profits of 
 the demesne lands of the crown, the right to royal fish, wrecks, treasure- 
 trove, waifs and estrays, escheats, &c. The rest of the public income 
 consists chiefly of taxes, duties and other imposts voted by parliament. 6 
 
 § 3. The crown also has certain protective prerogatives, such as its Protective, 
 prerogatives in connection with charities, idiots and lunatics, and the 
 foreshore of lands adjoining the sea. 7 
 
 PREROGATIVE COURTS.— Before the Probate Court {q. v.) was established 
 there was an ecclesiastical Court held in each province, before a judge appointed by the 
 archbishop, for granting probates and administrations in cases where the deceased left 
 bona notabilia (q. v.) in different dioceses. It was called a Prerogative Court because 
 the archbishop claimed the jurisdiction by way of special prerogative. 8 
 
 PREROGATIVE WRITS. See Writ. 
 
 PRESCRIBE. — § 1. To prescribe is to claim a right by prescription. 
 As to the meaning of the expression "to prescribe in a que estate,'' see 
 Prescription, § 5. 
 
 § 2. In modern acts of parliament relating to matters of an administra- 
 tive nature, such as procedure, registration, &c, it is usual to indicate in 
 
 1 Co. Litt. 90 b ; Bl. Comm. i. 239 ; 4 Bl. i. 252 et seq. ; Stephen, ii. 484 et 
 Horn. Cox, Instit. 592 ; Chitty on the Pre- seq. ; May, Pari. Pr. 42 et seq. 
 rogative. The term seems formerly to have ° Bl. 334; Stephen, 578. 
 
 been applied to other persons, e.g. arch- ° Bl. 282 et seq. ; Stephen, $21) et seq. 
 
 bishops. See Prerogative Court. 7 Att.-Gen. v. Tomline, 12 Ch. D. 214; 
 
 2 Stephen, Comm. ii. 475. 14 Ch. D. 58. 
 
 * Co. Litt. 90 b; Brown on Limitation, 8 Steph. Comm. iii. 305, note. 
 
 239- 
 
63; 
 
 Prescribe 
 
 LAW DICTIONARY. 
 
 Prescription 
 
 general terms the nature of the proceedings to be adopted, and to leave 
 the details to be " prescribed" or regulated by rules or orders to be made 
 for that purpose in pursuance of an authority contained in the act. (See 
 Order; Rule.) 
 
 Corporation. 
 
 Incorporeal 
 heredita- 
 ments. 
 
 At common 
 law. 
 
 PRESCRIPTION is where a right, immunity or obligation exists 
 by reason of lapse of time (infra, § 3). 1 Thus, where a number of 
 persons in succession have acted and been treated as a corporation from 
 time immemorial without being able to show any express creation, they 
 constitute a corporation by prescription. 2 § 2. More commonly, however, 
 prescription is applied to incorporeal hereditaments and rights or obliga- 
 tions connected with the user of land, to signify that they have been 
 enjoyed as of right, 3 and without interruption for a certain period. Thus, 
 prescription is one of the principal modes by which easements, profits a 
 prender, franchises and other incorporeal hereditaments are created or 
 evidenced. So, also, a privilege or exemption may be prescriptive, e.g., 
 a modus decimandi, a de non decimando, and an exemption from toll or 
 stallage* (q. v.). § 3. Prescription differs from custom in being personal: 
 that is, when a person claims a right by prescription, he must allege that 
 it has been enjoyed by him and his ancestors or predecessors in title. 5 
 (See Custom.) Prescription differs from limitation in being applicable 
 only to incorporeal hereditaments and similar rights, 6 and not to land or 
 other corporeal hereditaments. 7 
 
 I. With reference to the length of time required, prescription is either 
 at common law or by statute. § 4. At the common law, a title by 
 prescription is where a right has been enjoyed from time immemorial, 
 or time out of mind. By analogy to the old Statutes of Limitation, 
 "time out of mind" was held to mean the first year of Richard I.'s reign; 8 
 but when this period became inconveniently long, it was held to be 
 sufficient if evidence of the enjoyment of the right was carried back 
 as far as living memory would go. And when the statute 21 Jac. 1, c. 16, 
 limited the time for bringing a possessory action to twenty years, the 
 Courts held by analogy that if a right had been enjoyed for twenty years, 
 it should be presumed to have been enjoyed from time immemorial : 
 the presumption being based, according to some, on the fiction of a lost 
 grant (see Lost Grant) ; according to others, on the analogy between 
 prescription and limitation. 9 According to some of the older writers, 
 
 1 Co. Litt. 113 a. 
 
 2 Mellor v. Sfiateman, 1 Wms. Saund. 
 339. So persons may be tenants in com- 
 mon of land by prescription; Litt. § 310. 
 
 3 See Enjoyment. 
 
 4 Shelford, R. P. Stat. 35 ; see also 
 Lawrence v. Jenkins, L. R., 8 Q. B. 274. 
 
 5 Co. Litt. 113b; Austin v.Amhurst, 
 7 Ch. D. 689. 
 
 6 Co. Litt. 114 a. 
 
 7 Shelford, 36. This, however, does 
 not seem to have been always the case, for 
 Britton (1 a, 29 a) uses prescription in the 
 sense both of limitation and particular cus- 
 
 tom. Villenage could also exist by pre- 
 scription (Litt. § 175), and Littleton says 
 that two persons may be tenants in com- 
 mon of land by title of prescription (§310); 
 and from Coke's remarks on the point it 
 seems that this is still law ; Co. Litt. 195b ; 
 Williams on Commons, 18. 
 
 8 Litt. § 170. 
 
 9 Gale on Easements, 159. See on this 
 point and also on the question whether the 
 presumption was rebuttable or not by proof 
 of the modern origin of the right, Angus 
 v. Pfflfon, 3 Q. B. D. 85. 
 
Prescription law dictionary. Prescription Act 633 
 
 however, the real common law prescription was when a right had been 
 enjoyed "from time whereof the memory of man runneth not to the 
 contrary, that is as much as to say, when such a matter is pleaded, that 
 no man then alive hath heard any proofe of the contrary, nor hath no 
 knowledge to the contrary;" 1 but subsequently the two expressions 
 "time out of mind," and " time whereof the memory of man runneth not 
 to the contrary," became synonymous. 2 (See Memory?) 
 
 As to the statutory periods of prescription, see Prescription Act. Statutory. 
 
 II- § 5- With reference to the manner in which a prescriptive right is 
 claimed, prescription is of three kinds, namely:— (1) where the person 
 claiming the right proves that it has been enjoyed by him and his 
 ancestors during the time required by law ; as in the case of an advowson 
 or common in gross ; (2) where the members of a corporation and their 
 predecessors have enjoyed the right for the period required by law f and 
 (3) where the person claiming the right proves that it has been enjoyed Que estate, 
 by him and his predecessors in title; or, as the old writers say, he 
 must claim that the right is en luy et en ceux que estate il ad? that is, 
 " in him and in those whose estate he hath :" 6 hence this is called pre- 
 scribing in a que estate. 6 A prescription in a que estate is simply a right 
 annexed to and going along with certain lands, as where a man claims a 
 right of advowson as appendant to a manor belonging to him.' § 6. The 
 rule of common law pleading used to be that a prescription in a que estate 
 could only be claimed by a tenant in fee, and that if a tenant for a less 
 estate wished to claim such a right, he was obliged to allege it as belong- 
 ing to the tenant in fee. The most important practical result of this 
 rule was that copyholders, being in theory mere tenants at will, 
 were obliged to prescribe in the name of the lord of the manor, in 
 whom the fee is vested; hence they were allowed to claim rights of 
 common against the lord by custom instead of prescription. 8 (See Custom, 
 § 1.) The rule of pleading above referred to was abolished by the 
 Prescription Act : and now a tenant for any estate may prescribe in his 
 own name. 
 
 See Possession ; Interruption ; Enjoyment. 
 
 Etymology.] — In Roman law the prascriptio was a clause placed at the head of the 
 pleadings [pres, before, and scribere, to write), in order to raise a kind of preliminary objec- 
 tion or reservation. One of the cases in which a defendant could make use of a 
 prascriptio was where he wanted to raise the defence that the plaintiff's claim was barred 
 by a Statute of Limitations : 9 hence the modem use of the word. 
 
 PRESCRIPTION ACT is the statute 2 & 3 Will. 4, c. 71, passed to 
 limit the period of prescription in certain cases. § 2. In the case of 
 rights of common and other profits a prender, the period of enjoyment 
 as of right required to establish the claim is thirty years, subject to an 
 
 1 Litt. § 1 70. 6 As to the manner in which a prescrip- 
 
 2 See Co. Litt. 114 b. tion is pleaded, see 2 & 3 Will. 4, c. 71 
 
 3 Co. Litt. 113 b; Mellorv.Spateman, s. 5 ; Shelford, R. P. Stat. 21. ' 
 Wms. Saund. i. 339. 1 Bl. Comm. ii. 266. 
 
 4 Litt. § 183. " Williams on Commons, 16. 
 6 Co. Litt. I2i a. 9 Ortolan, Inst. iii. 532. 
 
634 
 
 Present 
 
 LAW DICTIONARY. 
 
 Presumption 
 
 Bill of 
 exchange. 
 
 Presentation 
 to benefice. 
 
 Customary 
 Court. 
 
 JUT- 
 
 extension in case the person against whom it is claimed was under 
 disability during part of that period ; but in any case enjoyment for sixty 
 years establishes an absolute and indefeasible right. § 3. In the case of 
 rights of way, watercourses and other affirmative easements, the terms are 
 respectively twenty and forty years ; in the case of lights, enjoyment for 
 twenty years gives an absolute and indefeasible right. As to what is 
 " enjoyment as of right," see Enjoyment; and as to the effect of interrup- 
 tion, see that title. The act does not apply to any negative easements 
 except that of lights. 1 
 
 PRESENT— PRESENTATION.— § 1. Primarily, to present is to 
 tender or offer. Thus, to present a bill of exchange for acceptance or 
 payment is to exhibit it to the drawee or acceptor (or his authorized 
 agent), with an express or implied demand for acceptance or payment. 2 
 (See Bill of Exchange, § 5 ; Honour.) 
 
 § 2. In ecclesiastical law, presentation is where the patron or owner 
 of an advowson offers a clerk in holy orders to the bishop of the diocese 
 to be instituted as parson or vicar of the living. 3 
 
 See Advowson ; Institution; Next Presentation ; Simony. 
 
 PRESENT— PRESENTMENT.— § 1. A presentment is a kind of 
 report by a jury or other body of men. Thus, formerly, at every Cus- 
 tomary Court of a manor, all events relating to the alienation of the 
 copyhold lands of the manor were presented by the homage for the 
 information of the lord. But by a modern statute a presentment is made 
 unnecessary for the alienation of copyholds. 4 
 
 § 2. Most commonly, however, presentment signifies one made by a jury 
 acting in a judicial capacity; and, in its general sense, it includes inqui- 
 sitions of office (q-v.), and indictments by a grand jury. But in the 
 narrower sense of the word a presentment is the notice taken by a grand 
 jury of any matter or offence from their own knowledge or observation, 
 without any bill of indictment laid before them at the suit of the crown : 
 such as the presentment by them of a nuisance, a libel, or the like, upon 
 which the officer of the Court must afterwards frame an indictment. 6 
 This procedure is practically obsolete. 6 
 
 PRESENTATION OFFICE is the office of the Lord Chancellor's 
 official, the Secretary of Presentations, who conducts all correspondence 
 having reference to the twelve canonries and 650 livings in the gift of 
 the Lord" Chancellor, and draws and issues the fiats of appointment. 7 
 
 PRESUMPTION. — § 1. In the law of evidence, a presumption is a 
 conclusion or inference as to the truth of some fact in question, drawn 
 from some other fact judicially noticed, or proved or admitted to be true. 
 
 1 See Shelford, R. P. Stat. 1 ; Gale on 
 Easements, 164 et seq. ; Angus v. Dalton, 
 3 Q. B. D. 85. 
 
 2 Byles on Bills, 183, 201. 
 
 a Bl. Comm. i. 388 ; Phill. Eccl. Law, 
 348 ; Co. Litt. 1 20 a. 
 
 4 Williams on Seisin, 36 ; 4 & 5 Vict, 
 c. 35. See Phillips v. Salmon, 3 C. P. D. 
 97 ; Britton, q&et seq. 
 
 6 Bl. Comm. iv. 301. 
 
 " Pritchard, Q. S. 172. 
 . ' Second Rep. Leg. Bep. Comm. 34 ; 
 Rep. Comm. on Fees, 10. 
 
Previous Conviction LAW dictionary. Primage 635 
 
 Presumptions are of three kinds. § 2. Irrebuttable or conclusive pre- irrebuttable 
 sumptions (prsesumptiones juris et de jure) are absolute inferences or conclusive, 
 established by law : they are called irrebuttable because evidence is not 
 admissible to contradict them. Thus an infant under the age of seven years 
 is presumed to be incapable of committing a felony, and the presumption 
 cannot be rebutted by the clearest evidence of a felonious intention. 1 
 Irrebuttable presumptions are more properly called rules of law or fictions 
 of law, according as the fact presumed is probably true, or is known 
 to be false. (See Fiction.) 
 
 § 3. Inconclusive or rebuttable presumptions of law (przesumptiones Rebuttable, 
 juris tantum) are inferences which the law requires to be drawn from 
 given facts, and which are conclusive until disproved by evidence to the 
 contrary ; thus an infant between seven and fourteen is presumed to be 
 incapable of committing a felony, but evidence may be given to prove a 
 felonious intention. 3 
 
 § 4. Presumptions of fact (prsesumptiones hominis vel facti) are of fact, 
 inferences which the tribunal (e. g. a jury) is at liberty, but not compelled, 
 to draw from the facts before it : if the tribunal thinks that the facts do 
 not support the inference suggested, the presumption fails from its own 
 weakness. This class is divisible into strong presumptions, or those 
 which shift the burden of proof, and slight presumptions, which do not. 
 Thus, possession is a strong presumption or prima facie evidence of 
 property, while the presumption of guilt arising from the fact of a person 
 having a pecuniary interest in the death of a murdered person is too slight 
 to put him on his defence. 3 (See Possession, § 3.) § 5. Mixed pre- Mixed, 
 sumptions, or presumptions of facts recognized by law, or presumptions 
 of mixed law and fact, are certain presumptive inferences, which from 
 their strength, importance, or frequent occurrence, attract as it were the 
 observation of the law. The presumption of a " lost grant " (q . v.) falls 
 within this class. 1 
 
 As to presumptive evidence, see Evidence, § 4. 
 
 PREVIOUS CONVICTION.— Under stats. 7 & 8 Geo. 4, c. 28, 
 s. 11 ; 24 & 25 Vict. c. 96, s. 7, and 27 & 28 Vict. c. 47, s. 2, persons 
 convicted of certain offences, after a previous conviction for felony, are 
 liable to severer sentences than they would otherwise be. And where a 
 person is convicted of felony or of certain misdemeanors, and a previous 
 conviction for a like offence is proved against him, he may in addition 
 to the ordinary punishment for the offence, be subjected to police super- 
 vision {q. v). 5 
 
 PRIMAGE is a small payment made by the owner or consignee of 
 goods to the master of the vessel in which they are shipped for his care 
 and trouble, and varies in amount according to the particular trade in 
 
 1 Best on Evidence, 418 ; Co. Litt. 373 a. * Best, 436. 
 
 2 Best, 425. 6 Stat. 34 & 35 Vict. c. 112; Steph. 
 
 3 Ibid. 431. • For other divisions,, see Crim. Dig. § 19. 
 ibid. 428 ; Co. Litt. 6 b. 
 
6 3 6 
 
 Primary 
 
 LAW DICTIONARY. 
 
 Principal 
 
 which the ship is engaged. The payment of this sum is generally 
 stipulated for in the bill of lading (q. v.)} (See Average, note (6).) 
 
 PRIMARY. See Conveyance, § 4; Evidence, § 8. 
 
 PRIMATE is an archbishop. The Archbishop of Canterbury is 
 styled primate of all England : the Archbishop of York is primate of 
 England simply. 3 Primacy is the office or authority of a primate. ' 
 
 PRIMER SEISIN was a payment due by a tenant of land held of the crown in 
 capite ut de corona if he succeeded to it by descent when of full age. The payment 
 consisted of one year's profits of the land if it was in possession, and half a year's profits 
 if it was in reversion. 3 Primer seisin was abolished by stat. 12 Car. 2, c. 24. (See In 
 Capite; Livery; Ousterlemain.) {Primer = first, seisin = possession.) 
 
 PRIMOGENITURE (from primo-genitus, first-born) is the rule of 
 inheritance according to which the eldest of two or more males in the 
 same degree succeeds to the ancestor's land to the exclusion of the 
 others. It was a matter of far greater consequence in ancient times, 
 before alienation by will was permitted, than it is at present, and from it 
 has arisen the modern English custom of settling the family estates on the 
 eldest son. 4 (See Descent, § 5 ; Estate Tail, § 10 ; Settlement.') 
 
 Principal and 
 agent. 
 
 Undisclosed. 
 
 Principal and 
 surety. 
 
 Principal and 
 accessory. 
 
 PRINCIPAL.- — § 1. A person who authorizes another to act on his 
 behalf is called the principal, and the person so authorized is called the 
 agent. The law of principal and agent deals both with the rights and 
 duties of the principal and agent inter se, and with those of each of them 
 toward third persons. 5 (See Agent; Authority; Power of Attorney.') 
 § 2. When an authorized agent does an act in his own name and 
 professedly on his own behalf, though really on behalf of his principal, 
 the latter is said to be undisclosed : the general rule, is that an agent 
 contracting for an undisclosed principal is himself personally liable to the 
 person contracting with him, and that the latter also has the option of 
 suing the principal as soon as he discovers his existence, unless in the 
 meantime the principal has bona fide paid his agent, in which case he is 
 discharged from liability. 6 
 
 § 3. A person who owes a debt for which another person is liable in 
 case of his default in paying it, is called the principal or principal debtor, 
 the other being his surety (q. v.). 1 (See Guarantie ; Indemnity.) 
 
 § 4. In criminal law, whoever actually commits, or takes part in the 
 actual commission of a crime, is a principal in the first degree ; whoever 
 aids or abets the actual commission of a crime is a principal in the 
 
 1 Maude & Pollock, Merdi. Shipp. 88 ; 
 Smith's Merc. Law, 319. 
 
 2 Phillimore, Eccl. Law, 36, 1203. 
 
 3 Co. Litt. 77 a; Staunf. Prer. 1 1 a. 
 
 4 Wms. R. P. 99, 49. 
 
 5 As to the law of principal and agent 
 generally, see Smith's Merc. Law, 109 
 et seq. ; Chitty on Contracts, 189 et seq. 
 
 6 Smith, Merc. Law, 163 ; Chitty, 205 ; 
 Irvine v. Watson, 5 Q. B. D. 102, which 
 was the case of an agent contracting on 
 behalf of a disclosed but unnamed princi- 
 pal. Such a principal cannot discharge 
 himself by merely paying his agent. 
 
 7 Chitty on Contracts, 470. 
 
Prior Petens law dictionary. Prisage 637 
 
 second degree ; both being opposed to accessories (q. v.). Thus, if A., 
 B., C. and D. go out with a common design to rob : A. commits the 
 robbery, B. stands by ready to help, and C. is stationed some way off to 
 keep watch ; here A. is a principal in the first degree, and B. and C. are 
 principals in the second degree. 1 The distinction is not of itself of much 
 importance, as all the principals to a crime are, as a rule, liable to the 
 same punishment. 2 
 
 PRIOR PETENS (" the person first applying ") \ —In pro- 
 
 PRIORI PETENTI ("to the person first applying"). . j bate prac- 
 tice, where there are several persons equally entitled to a grant of 
 administration {e.g., next-of-kin of the same degree), the rule of the 
 Court is to make the grant priori pelenti, to the first applicant. 3 
 
 PRIORITY. — § 1. When two persons have similar rights in respect 
 of the same subject-matter, but one is entitled to exercise his right to the 
 exclusion of the other, he is said to have priority. § 2. The question is 
 chiefly of importance with reference to securities on property ; thus, if A. 
 mortgages his land first to B. by a deposit of title-deeds, then to C. by a 
 formal deed of mortgage, and then to D. by an agreement of charge, the 
 question arises who is entitled to realize his security in priority to the 
 others. The general rule is that he who has the first mortgage and has 
 the legal estate has priority over all other incumbrancers, and that where 
 there is a prior equitable mortgage, a subsequent incumbrancer who 
 obtains the legal estate without notice of the equitable mortgage, is 
 entitled to priority over it. In the case supposed, therefore, C. would 
 have priority over B. unless he had notice of B.'s charge, or was 
 guilty of gross negligence, e. g., in omitting to inquire as to the deeds. 4 
 (See also Consolidation of Securities ; Tacking.) Priority is of various 
 kinds according as it arises by the doctrines of tacking {q. v.), of consoli- 
 dation (q. v.), or of salvage (q. v.), — by simple priority in point of time or 
 date, — or by a statutory provision (statutory priority), as under the various 
 registration acts, which usually make instruments take effect in the order 
 of date in which they are registered. § 3. Important questions as to 
 priority also arise in administering estates and assets, where the contend- 
 ing claims of creditors, legatees, &c. have to be considered. (See 
 Administration, § 2 ; Legacy!) 
 
 PRISAGE was an ancient hereditary revenue of the crown, consisting in the right to 
 take a certain quantity from cargoes of wine imported into England. In Edward I. 's 
 reign it was converted into a pecuniary duty called butlerage. 6 The present duties on 
 wines are regulated by the Customs Acts. (See Civil List; Consolidated Fund ; 
 Customs.) 
 
 1 Stephen, Crim. Dig. 22. 4 Hewitt v. Loosemore, 9 Hare, 449 ; 
 
 2 Criminal Law Acts of 1861 ; Russell Hopgood v. Ernest, 3 D. G. J. & S. 116 ; 
 on Crimes, i. 81 ; Stephen, 27. Fisher on Mortgage, 593, 869. 
 
 8 Browne's Probate Pr. 174; Coote's 5 Steph. Comm. ii. 561. 
 Probate Pr. 173, 180. 
 
638 Prison-Breach law dictionary. Privilege 
 
 PRISON-BREACH, or prison-breaking, is where a person, being 
 lawfully detained on a charge of or under sentence for an offence, breaks 
 out of the place where he is detained, that is, escapes with force. The 
 degree of the offence and its punishment varies with that of the offence 
 for which he was detained. 1 
 
 PRISONS are places in which persons are kept either for safe custody 
 until they have been tried for an offence of which they stand charged, or 
 for punishment after being tried and convicted. The general administra- 
 tion of prisons is vested in the Home Secretary, assisted by Prison Com- 
 missioners appointed by the crown, and each prison is further under the 
 more immediate jurisdiction of a visiting committee of the justices of the 
 peace or magistrates in the district. 2 (See Imprisonment; Habeas Corpus; 
 Penal Servitude?) 
 
 PRIVATE. See Act of Parliament, § 3; Bill, § 2; Chapel, § 4; 
 
 Committee, §§ 2 et seq. ; Law, § 6. 
 
 PRIVATEERS are ships commissioned by letters of marque (q. v.) to 
 exercise general reprisals (see Reprisals). Privateering was practically 
 abolished as between European nations by the Declaration of Paris in 
 1856. 3 
 
 PRIVILEGE, — § 1. A privilege is an exceptional or extraordinary 
 right, immunity or exemption. It may exist in respect of a person, or in 
 respect of a thing. 
 
 Personal. !• § 2. With reference to the persons who enjoy them, personal privi- 
 
 leges are of various kinds : the principal are those belonging to the royal 
 family, the Houses of Parliament, 4 peers, ambassadors, banisters, solicitors 
 and clergymen. § 3. With reference to the nature of the right or exemp- 
 tion, the principal privileges are — the freedom from arrest enjoyed by 
 ambassadors (q. v.) and peers ; s the exemption from serving on juries 
 enjoyed by peers, members of parliament, ministers, barristers, solicitors, 
 medical practitioners, &c. ; the privileges exempting solicitors and 
 barristers from giving discovery or evidence of matters communicated 
 to them by their clients in professional confidence, 6 &c. (see Confidential 
 Communications). § 4. With reference to their duration, privileges are 
 either permanent or temporary : thus, a member of parliament is privi- 
 leged from arrest on civil process during the sitting of the house, and for 
 forty days before and after a prorogation : a barrister has a similar privilege 
 while he is on circuit. 7 
 
 R ea l_ II. Privileges in respect of things. § 5. Some chattels are privileged 
 
 from distress (q. v.), and some from being taken in execution (q. v., and 
 
 1 Stephen's Crim. Dig. 91 ; Russell on * May, Pari. Pr. 64. 
 Crimes, 577. 5 Smith's Action, 105. 
 
 2 Steph. Comm. iii. 121 ; Prisons Act, " Darnell's Ch. Pr. 488. 
 
 1865 ; Prisons Act, 1877. ' Smith's Action, 107 ; Steph. Comm. 
 
 3 Manning's Law of Nations, 156. ii. 341. 
 
Privilege law dictionary. Privity 639 
 
 see Goods). § 6. A document is privileged from production when its 
 production cannot be compelled under the ordinary order for production 
 in an action (see Production) : the principal instances of privileged docu- 
 ments are documents of title and confidential communications (q. v.). 1 
 
 § 7. A statement is said to be privileged when it is made under such Privileged 
 circumstances that it does not render the person making it liable to statement, 
 proceedings for slander or libel, although it would have that effect 
 in the absence of those circumstances. The principal instances of 
 privileged statements are those made between a solicitor or counsel and 
 the client ; by a witness in the course of his examination, 2 or a counsel in 
 his speech; those made where it is the duty of the person making it to do 
 so, e. g., where a master is giving the character of a servant, or where the 
 matter is of public interest ; this last is sometimes called privilege by reason 
 of the occasion : thus, statements made in the course of legal proceedings 
 and parliamentary debates are privileged, as are also fair reports or 
 comments on such proceedings, 3 and fair criticisms on literary publica- 
 tions and works of art. 1 The privilege is said to be absolute where Absolute. 
 the intention of the speaker or writer is immaterial (as in the case of 
 judges, members of parliament, &c), or qualified, when it does not Qualified, 
 excuse malice in fact, as in the case of statements made by persons 
 in the discharge of some public or private duty, or in the conduct of his 
 own affairs. 5 (See Malice, § 2.) 
 
 PRIVITY— PRIVY.— I. § 1. Originally "privy" signified a friend 
 or acquaintance, as opposed to a stranger; 6 and hence privity means 
 knowledge : thus, the rule is that " when any deed is altered in a point 
 material by the plaintiff himself, or by any stranger without the privity 
 of the obligee. . . . the deed thereby becomes void." 7 (See Alteration.) 
 
 II. § 2. In its secondary sense, privity denotes a peculiar relation 
 in which a person stands, either to a transaction or to some other 
 person. The persons standing in such a relation are called privies. 
 Thus, in the law of fines, the heirs and successors of the parties to a fine 
 were said to be privies to it, and were bound by it as if they had been 
 parties, as opposed to strangers, that is, persons who were neither parties 
 nor privies. 8 (See Fine, § 9.) The principal kinds of privity of practical 
 interest are as follows : — 
 
 § 3. Privity of contract is the relation which exists between the Contract, 
 immediate parties to a contract, as where A. agrees with B. to pay him 
 
 1 Bustros v. White, I Q. B. D. 423; D. 514. 
 
 Webb v. East, 5 Ex. D. 108. 6 Thus in the Grand Coutumier the form 
 
 '''Seaman v. Netherclift, 1 C. P. D. of oath for bailiffs is, ''qu'ils feront et ren- 
 
 540. . dront dvoict a toutes personnes grans et 
 
 3 Purcett v. Towler, 2 C. P. D. 215; petits, frives ou estrangiers, sans acception 
 Milissich v. Lloyd's, Week. N. (1877), 36 ; de personne " (p. 160). 
 
 Webb v. East, 5 Ex. D. 108. ' Pigots Case, 1 1 Co. 27. In the special 
 
 4 Underhill on Torts, 97. verdict in this case it is said that the altera- 
 
 5 Shortt on Copyright and Libel, 427 et tion was made " sine notitid, Anglici the 
 sea. ; Clark v. Molyneux, 3 Q. B. D. 237 ; privity," of the plaintiff. 
 
 Stevens v. Sampson, 5 Exch. D. 53 ; Caj>i- 8 Watkins' Conv. 316; 2 Inst. 516; 
 
 tal and Counties Bank v. Henty, 5 C. P. Shepp. Touch. 21. See Co. Litt. 219 b. 
 
640 
 
 Privity 
 
 LAW DICTIONARY. 
 
 Privy Council 
 
 Estate. 
 
 Blood. 
 
 Representa- 
 tion and 
 succession. 
 
 Tenure. 
 Person. 
 
 Possession. 
 
 In deed, 
 in law. 
 
 1 00/. Privity of contract is necessary to enable one person to sue another 
 on a contract. Thus, if A. agrees with B. that he will pay C. 100/., C. 
 cannot bring an action against A. on the contract for want of privity 
 between them. 1 
 
 § 4. Privity of estate is that which exists between lessor and lessee, 
 tenant for life and remainderman or reversioner, &c, and their respective 
 assignees, and between joint-tenants and co-parceners. Privity of estate 
 is required for a release by enlargement. Thus, if A. grants land to B. 
 for life, and B. grants a lease to C, and then A. executes a release to C, 
 this is void as a release, because there is no privity between A. and C. 2 
 Its more important consequence is to make the assignee of a lease liable 
 to the rent and covenants contained in it, although there is no privity of 
 contract between him and the lessor. 3 
 
 § 5. Privity of blood exists between an heir and his ancestor (privity in 
 blood inheritable), and between coparceners. This privity was formerly 
 of importance in the law of descent cast {q. v.). 4, 
 
 § 6. Privity in representation exists between a testator and his executors, 
 and privity in succession between a predecessor and a successor, in the 
 case of a corporation sole. Either kind is also called privity in right. 5 
 
 § 7. Privity in tenure is that which exists between a lord and a tenant 
 who holds of him by a service. 6 (See Tenure.) 
 
 § 8. In the old books, privity of person is said to exist (i) between 
 trustee and cestui que trust; 7 (ii) between husband and wife; 8 (iii) between 
 coparceners. 9 
 
 § 9. Privity of possession exists between joint-tenants, tenants in com- 
 mon and coparceners. The last, therefore, have a three-fold privity, 
 and the first a two-fold privity 10 {supra, §§ 4, 8). 
 
 § 10. Privity in deed is a privity created by the act or consent of the 
 party, as opposed to privity in law, which is one created by the law. 11 
 
 PRIVY COUNCIL is the principal council of the crown, consisting 
 of such persons as are nominated by the crown to the office. Nominally 
 the council is supposed to advise the crown on affairs of state, but practi- 
 cally that duty is fulfilled by a select body called the cabinet, who are 
 members of either House of Parliament and hold the principal offices of 
 state. Those members of the Privy Council (other than the cabinet) who 
 perform active duties are subdivided into committees, of which the 
 principal are the Board of Trade (q. v.), the Education Committee and 
 the Judicial Committee (q. v.). 12 In the case of a large number of Privy 
 
 1 Moore v. Bushett, 27 L. J., Ex. 3. 
 
 1 Co. Litt. 272b. But (semble) such a 
 release might operate as a grant by A. to 
 C. if the intention were clear. See Grant, 
 §2. 
 
 3 "Williams, R. P. 398 ; Webby. Russell, 
 3 T. R. 394- 
 
 4 Co. Litt. 271a, 242a; 2 Inst. 51b; 
 8 Co. 42 b. 
 
 5 Termes de la Ley ; Perkins, Prof. 
 Book, § 833 et seq. ; Co. Litt. 271 a; 
 214b. 
 
 6 Termes de la Ley; Co. Litt. 271 a. 
 
 7 Fearne, C. R. 291, n. (k) ; Watkins, 
 Conv. 214. See also the case discussed by 
 Littleton, §§ 462 et seq. 
 
 8 Co. Litt. 354 b. 
 Ibid. 169 a. 
 
 10 Ibid. 
 
 11 Co. Litt. 90 b, 172 a, 209 a; Perkins, 
 §§ 831, 832. For other points connected 
 with privity, see Termes de la Ley; Co. 
 Litt. 46b; 3 Co. 1, 23 ; 8 Co. 42 b; 
 Staunf. 25 a. 
 
 13 Horn. Cox, Inst. 258; Steph. Comm. 
 "• 457- 
 
Privy Seal law dictionary. Probate 64 1 
 
 Councillors the office is purely nominal : it confers the title of "Right 
 Honourable." 
 
 PRIVY SEAL is a seal employed by the crown, chiefly as an 
 authority to the Lord Chancellor to affix the Great Seal to certain docu- 
 ments, e. g., letters-patent. The Privy Seal is affixed either to the bill or 
 draft of the letters-patent (see Bill, §5), or to a warrant which sets them 
 forth and directs the Lord Chancellor to have them passed under the 
 Great Seal (q. v.). 1 
 
 PRIZE— PRIZE COURTS.— "Prize" is property captured from 
 an enemy at sea. (See Capture, § 4.) Prize Courts are Courts specially 
 constituted for the purpose of deciding questions of maritime capture in 
 time of war according to international law. In this country the jurisdic- 
 tion in such questions formerly belonged to the Court of Admiralty 
 sitting as a Prize Court, 2 and is now vested in the High Court of Justice. 3 
 (See In Rem, § 3.) 
 
 PRO CONFESSO — Under the old practice in Chancery, when it appeared that a 
 defendant in a suit had absconded to avoid being served with the bill, or absconded after 
 being served and without putting in an answer, the Court might order the bill to be taken 
 pro confesso (as if the defendant had confessed or admitted the truth of it), either imme- 
 diately or at some future time. The cause was accordingly set down for hearing and 
 such decree made as the Court thought just. 4 
 
 PRO INTERESSE SUO„— Where sequestrators acting under a 
 writ of sequestration have seized property apparently belonging to the 
 party in default, any person claiming that it belongs to him must make 
 an application to the Court for an inquiry as to the nature of his interest 
 therein. This is called an inquiry pro interesse suo. In the Chancery 
 Division the inquiry is conducted in the usual way before the Chief 
 Clerk, and he makes his certificate of the result. If it is in favour of the 
 claimant, the Court directs the sequestrators to deliver up the property to 
 him. 5 The same rule applies where property is taken possession of by a 
 receiver. 6 (See Certificate, § 4; Inquiry, § 2.) 
 
 PRO RATA = in proportion : see Freight, § 1 . 
 
 PROBATE is a certificate granted by the Probate Division of the 
 High Court of Justice to the effect that the will of a certain person has 
 been proved and registered in the Court and that administration of his 
 effects has been granted to the executor proving the will, he having first 
 sworn faithfully to administer them and to exhibit a true inventory and 
 render a just account when called on. This certificate is on a piece of 
 parchment annexed to a copy of the will and codicils or other tes- 
 
 1 Steph. Comm. i. 619. 3 Judicature Act, 1873, s. 16. 
 
 2 Manning's Law of Nations, 472; Naval * Stat. 11 Geo. 4 & 1 Will. 4, c. 36, 
 Prize Act, 1864. As to the practice in s. 3; Daniell, Ch. Pr. 381, 449. » 
 prize cases, see ibid, and Phillimore's In- 6 Daniell, Ch. Pr. 1057. * 
 temational Law, vol. iii. 6 Ibid. 1744. 
 
 s. T T 
 
(>4 2 
 
 Probate 
 
 LAW DICTIONARY. 
 
 Probate 
 
 Probate act. 
 
 Probate duty. 
 
 In solemn 
 form. 
 
 Probate copy, tamentary papers, if any, engrossed on parchment. 1 The whole is 
 commonly referred to as the probate, but inaccurately, the certificate 
 being the probate, and the copy of the will being the " probate copy." 
 § 2. When a grant of probate has been made, the Clerk of the Seat (q. v.) 
 makes an entry or memorandum of the fact; this (or a copy of it) is called 
 the probate act. 2 
 
 § 3. A probate granted in respect of an estate above the value of 100/. 
 is liable to a stamp duty varying with the value of the estate. 3 As to these 
 duties, see Addenda. 
 
 Probate may be granted either in solemn form or in common form. 
 § 4. Probate in solemn form is only employed when there is or is likely 
 to be a dispute as to the validity of the will, and in such a case the 
 person who wishes its validity to be established commences an action 
 against the person who disputes it. The action proceeds as to pleadings, 
 trial, &c. in the same way as an ordinary action ; 4 if the plaintiff makes 
 out his case, the Court pronounces for the validity of the will and the 
 executor may then take probate of it as if it had not been disputed. 6 
 As a general rule probate in solemn form is conclusive on all who are 
 parties to the proceedings or cognizant of them." (See Establishment 
 of Wilts.) 
 
 § 5. Probate in common form is that "form which is slight and 
 summary for ordinary and undisputed cases."' It is granted in ordinary 
 cases as a matter of course on the executor swearing and filing (1) an 
 affidavit called the oath of executor or oath of office, by which he swears 
 that the will annexed to the affidavit is " the true and original last will 
 and testament " of the testator, 8 and that he will faithfully administer the 
 estate ; and (2) an affidavit for Inland Revenue ; before the new Probate 
 Duty Act came, into operation, this affidavit was to the effect that the gross 
 value of the testator's property did not exceed a certain sum, the stamp 
 on the probate being regulated by this. 9 As to the practice introduced 
 by the new act, see Addenda. 
 
 § 6. Where several persons are named as executors it is not necessary 
 for all to prove together ; one may prove, power being reserved to the 
 others to prove subsequently. If they do, another . probate, called a 
 double probate, must issue. 10 
 As to limited grants of probate, see Grant, §§ 5 et seq. 
 § 7. " Probate business " is used as a general term to include all 
 business relating to the granting and revoking of probates and letters of 
 administration both in contested and uncontested cases (see Action, § 10). 
 The non-contentious business is transacted in the registries of the 
 
 In common 
 form. 
 
 Probate with 
 
 power 
 
 reserved. 
 
 Double 
 probate. 
 
 Probate 
 business 
 
 1 Browne's Probate Pr. 142; Williams 
 on Executors, 277 et seq. 
 
 1 Coote's Probate Pr. (6th edit.), 219. 
 
 3 Stats. 44 Vict. c. 12; 43 Vict. c. 14, 
 repealing 27 & 28 Vict. c. 56 ; Williams, 
 P. P. 389. 
 
 1 See the forms Jud. Act, 1875, schedule, 
 App. A, Part II. sect. v. App. C. form 23. 
 
 6 Coote's Probate Pr. 250, 308. 
 
 Browne's Probate Practice, 101. 
 
 Sir W. Scott in Duke of Portland v. 
 _" im, 1 Hag. Con. R. 158, cited 
 Browne, 101. 
 
 6 As to granting probate of a lost will of 
 which no copy or draft is in existence, see 
 Sugden v. Lord St. Leonards, I P. D. 154. 
 As to fac-simile probates, ' see Browne, 
 126. 
 3 Browne, 143; Coote, 31 et seq. 
 10 Browne, 148. 
 
Probate law dictionary. Procedure 643 
 
 Probate, Divorce and Admiralty Division of the High Court (q. v.) : the 
 contentious business is, as a rule, transacted in the same Division, 1 or, 
 where the estate is below a certain value, in the County Court of the 
 district where the deceased had his fixed place of abode. 3 
 Etymology.]— Latin, prolare, to prove. 
 
 PROBATE, DIVORCE AND ADMIRALTY DIVISION is 
 
 that Division of the High Court of Justice which exercises jurisdiction in 
 matters formerly within the exclusive cognizance of the Court of Probate, 
 the Court for Divorce and Matrimonial Causes, and the High Court of 
 Admiralty 3 (see those titles). It consists of two judges, one of whom is 
 called the President, 4 and of a number of registrars (q. v.). 
 
 § 2. The jurisdiction in probate matters is of two kinds, contentious Probate, 
 and non-contentious. As to the contentious business, see Action, § 10. 
 The non-contentious business comprises all " common form business," 
 that is, the business of obtaining probate and administration (q. v.) where 
 there is no contention as to the right thereto, including the passing of 
 probates and administrations in contentious cases when the contest is 
 terminated, and also the business of lodging caveats. 5 (See Caveat, § 2 ; 
 Warning.) 
 
 § 3. The jurisdiction in divorce and matrimonial matters is exercised Divorce, 
 in pronouncing decrees of nullity or dissolution of marriage, judicial 
 separation, restitution of conjugal rights and jactitation of marriage (q. v.), 
 and in dealing with subsidiary matters arising in suits for the above 
 purposes 6 (see Alimony; Settlement). In these matters the former practice 
 of the Divorce Court is retained, so that the President still hears most 
 matters in the first instance, and an appeal from him has in many cases 
 still to be brought to the " full Court " and not to the Court of Appeal.' 
 
 § 4. The jurisdiction in Admiralty matters is exercised in questions as Admiralty, 
 to the possession, mortgage, damage, salvage and towage of ships and 
 claims in respect of necessaries and wages (see those titles, and Action, 
 §§ ii— 18). 
 
 PROCEDENDO is a prerogative writ which issues (1) when the 
 judge of an inferior Court delays the parties to a proceeding before him, 
 by not giving judgment for one side or the other, when he ought to do 
 so ; or (2) when a cause has been removed from an inferior Court to a 
 superior Court improperly or on insufficient grounds, and the superior 
 Court thinks fit to remit or remove it back to the inferior Court. In the 
 former class of cases the writ of mandamus (q. v.) is more frequently 
 used. 8 (See Writ.) 
 
 PROCEDURE. See Practice. 
 
 1 See Pinner v. Hunt, Week. N. (1877), and the judge of the old Admiralty Court. 
 
 150. 5 Court of Probate Act, 1857, s. 2. 
 
 - a Pollock's County Court Pr. 331 ; e Browne's Divorce Practice, 1. 
 
 Browne's Probate Pr. 321. ' Ibid. 316 ; Westhead v. Westhead, 
 
 3 judicature Act, 1873, s. 34. 2 P. D. 1 ; Wallis v. Wall-is, 2 P. D. 141. 
 
 4 Ibid. s. 31. The existing judges are 8 Steph. Coram, iii. 629; Fisher's Di- 
 the judge of the old Probate and Divorce gest, 4670. 
 
 Courts, who is president of the division, 
 
 T T 2 
 
644 
 
 Process 
 
 LAW DICTIONARY. 
 
 Proclamation 
 
 Foreign at- 
 tachment. 
 
 Privy Council. 
 
 PROCESS is a form of proceeding taken in a Court of justice for the 
 purpose of giving compulsory effect to its jurisdiction. 1 The process of 
 the Supreme Court of Judicature consists of writs (q. v.), and hence the 
 terms " process " and " writ " are used synonymously, as when we speak 
 of service of process. 
 Civil actions. § 2. In civil actions process is of two kinds : (i) Against a defendant, 
 and this again is of two kinds, viz., (a) process to compel him to appear, 
 now consisting of a writ of summons (q. v.) ; and (b) process of execu- 
 tion, by which the judgment, decree, &c. is executed or carried into 
 effect 2 (see Execution, § 3). (ii) Process against persons not parties to 
 the action, e. g., process to summon jurors, witnesses, &c. 3 
 
 § 3. Process in a proceeding in foreign attachment {q. v.) denotes the 
 attachment paper served upon the garnishee. 4 
 
 § 4. In the practice of the Privy Council in ecclesiastical appeals, 
 "process" means an official copy of the whole proceedings and proofs of 
 the Court below, which is transmitted to the registry of the Court of 
 Appeal by the registrar of the Court below in obedience to an order or 
 requisition requiring him so to do, called a monition for process, issued 
 by the Court of Appeal. 6 
 
 § 5. In criminal proceedings, process means those writs which are 
 issued to bring in a person to answer an indictment which has been 
 found against him. Summary process consists of the writs of venire 
 facias, distringas and capias ad respondendum {q. v.), though a justice s 
 warrant is now more commonly used (see Warrant). If summary process 
 is ineffectual, process of outlawry (q. v.) may be issued. 6 
 
 § 6. Formerly process in common law actions was much more complicated and im- 
 portant than now. It was either original or judicial. The former (which was so called 
 because at one time it commenced with the original writ issued out of Chancery) had 
 for its object to compel the defendant to appear (see Writ). Original process against 
 either the person or property of the defendant was called single process ; when it was 
 against both it was called mixed. § 7. Judicial process was that which issued out of the 
 common law Court, either when the original writ was returned or without an original 
 being issued at all. When original writs fell into disuse, an action was commenced by 
 process issued out of the common law Court to compel the defendant's appearance, to 
 compel him to give bail, &c, and this was called mesne process ; the term also included 
 other kinds of process, e. g., jury process, or writs to compel the attendance of jurors. 
 § 8. Writs used to revive an action or remove it into another Court, or the like, were 
 called "judicial process in the nature of new originals." 7 § 9. Process of execution or 
 final process was much the same as at present, except that imprisonment for debt has 
 been abolished in most cases (see Arrest, 6 4). 
 
 Criminal pro 
 ceedings. 
 
 Old practice. 
 
 PROCHEIN AMY. See Next Friend. 
 
 PROCLAMATION.— § 1. The power of issuing proclamations is 
 part of the royal prerogative. Such proclamations have a binding force 
 
 1 Smith's Action. 43. 
 
 2 Co. Litt. 289 a. 
 
 i Finch, Law, 436. 
 
 4 Brandon, For. Att. 78. 
 
 6 Macpherson, Privy C. Pr. 173. 
 
 Steph. Comm. iv. 381 ; Archbold, 
 Crim. PI. 81 et seq. 
 
 1 Finch, Law, 343 et seq. 
 
Proctors law dictionary. Profert 645 
 
 when they are grounded upon and enforce the laws of the realm. 1 (See 
 Order, § 4.) 
 
 § 2. A proclamation is valid in law if published in the London Gazette, 2 
 and a copy of the Gazette is prima facie evidence of the proclamation ; it 
 may also be proved by a certified or Queen's printer's copy. 3 
 
 As to fines with proclamations, see Fine, § 10. 
 
 PROCTORS in the Ecclesiastical and Admiralty Courts discharge 
 duties similar to those of solicitors and attorneys in other Courts. 1 They 
 are, or used to be, empowered to institute or withdraw proceedings by an 
 instrument called a proxy, signed by the ' litigant, attested, and deposited 
 in the registry of the Court. 6 
 
 By stat. 33 & 34 Vict. c. 28, s. 20, attorneys and solicitors were 
 empowered to practise in the Ecclesiastical Courts. 
 
 By the Judicature Act, 1873, s. 87, proctors of the then existing 
 Admiralty Court are to be called solicitors of the Supreme Court. 
 
 PRODUCTION. — § 1. The High Court of Justice has a general Production of 
 power to order a party to an action or other proceeding to produce to the documents - 
 Court any documents in his possession or power relating to the matters 
 in question in the action, and the Court may deal with the documents so 
 produced as it thinks right. 6 It also has power to order a party to 
 produce any documents in his possession for the inspection of any other 
 party, unless they are privileged from production. 7 (See Affidavit, § 3 ; 
 Discovery ; Inspection; Notice to produce, § 2 ; Privilege, § 6.) 
 
 § 2. Where a person is entitled to property in reversion or remainder Production of 
 expectant on the death of another person, and has reason to believe that cestui que vie. 
 that person (called the cestui que vie) is dead, and that his death is 
 concealed, he may apply to the Chancery Division of the High Court for 
 an order directing the person is possession of the property to produce the 
 cestui que vie to persons named by himself, or in case of non-production 
 to them, the cestui que vie is ordered to be produced in open Court or to 
 commissioners appointed by the Court, and on failure of production the 
 applicant may take possession of the property as if the cestui que vie were 
 actually dead, 8 (See Cestui que vie.) 
 
 PROFERT. — Formerly the general rule was that where a party to an action relied 
 in his pleading on a deed under seal, to which he was party or privy, the deed had to be 
 "shown forth" or produced to the Court. 9 Hence the party in his pleading used to 
 allege that he brought the deed into Court, although it was not actually done. This was 
 called "profert in curisl," and entitled the opposite party to " oyer" of the deed l0 (see 
 Oyer). Profert and oyer were abolished by the Common Law Procedure Act, 1852, s. 55. 
 
 1 Steph. Comm. ii. 507. 6 Rules of Court, xxxi. 11. 
 
 3 Crown Office Act, 1877, s. 3. ' Ibid. 18; Bustros v. White, I Q. B. 
 
 3 Documentary Evidence Act, 1868. D. 423. 
 
 * Phillimore, Eccl. Law, 1219. "Pro- 8 Stat. 6 Anne, t. 18 ; Daniell, Ch. Pr. 
 
 curator est qui aliena negotia mandatu 1909. 
 
 domini administrat :" Dig. iii. I. "Item 9 Co. I.itt. 35 b, 225a; Shepp. Touch, 
 
 et ad litem futuram .... dari potest:" 73. 
 
 ibid. 3. 10 Bl. Comm. iii. App. 
 
 s Phill. 1220. 
 
646 
 
 Professed 
 
 LAW DICTIONARY. 
 
 Profit 
 
 PROFESSED— PROFESSION.— § i. Formerly a man was said to 
 be professed" or "entered and professed in religion" when he had 
 entered a religious order, taken the habit of religion and vowed three 
 things, "obedience, willfull poverty, and perpetual chastity." 1 A nun 
 was also said to be professed. Profession operated as a civil death 2 (see 
 Death). Since the Reformation, however, religious profession is not 
 recognized by the law. 3 
 
 § 2. "Professional privilege" is the privilege which exempts barristers 
 and solicitors from disclosing matters confided to them in their professional 
 capacity by clients. (See Confidential Communications ; Privilege!) 
 
 In render. 
 
 In prender. 
 
 PROFIT. — I. § i. In its primary sense, profit signifies advantage or 
 gain in money or in money's worth. Thus, in an action in the Chancery 
 Division for infringement of a patent or copyright, the plaintiff generally 
 has his election whether the defendant shall be ordered to pay him the 
 damages caused to him by the infringement, or the profits which the 
 defendant has made by the wrongful use of the patent or copyright 4 (see 
 Account, § 6 ; Inquiry, § 2 ; Partnership). 
 
 II. § 2. In the law of real property " profit " is used in a special sense 
 to denote a produce or part of the soil of land. Therefore, "if a man seised 
 of lands in fee by his deed granteth to another the profit of those lands, 
 to have and to hold to him and his heires, and maketh livery secundum 
 formam charta, the whole land itselfe doth passe : for what is the land but 
 the profits thereof; for thereby vesture, herbage, trees, mines and all 
 whatsoever parcell of that land doth passe." 5 So, in the old books, an 
 easement is defined to be a privilege, without profit, which one neighbour 
 hath of another. 6 
 
 § 3. Profits in this sense are of three classes, (i) Profits lying in render 
 consist of rents, dues and services rendered to a lord by his tenant. They 
 are so called because it is the duty of the tenant to pay or tender them to 
 the lord, as opposed to (ii) profits a prender, which are rights of taking 
 the produce or part of the soil from the land of another person, and 
 (iii) the casual profits which accrue to a lord from his tenants " by chance 
 and unlooked for," such as escheats. 7 
 
 § 4. Profits a prender consist of rights of common (see Common), and 
 rights of sole or several pasture, vesture and herbage 8 (see Pasture; 
 Vesture). The custom of tin-bounding (q. v.) is also sometimes treated as 
 a profit a prender. 9 The right of taking water from a well or stream on 
 another's land is not a profit a prender, but an easement. 10 A profit a 
 prender may be claimed by grant or prescription, or, in the case of copy- 
 holders, by custom. (See Prescription ; Prescription Act.) 
 
 1 Co. Litt. 132 a. 
 
 2 Ibid. ; Litt. § 200. 
 
 3 Bl. Coram, i. 133. 
 
 4 Neilson v. JSetts, L. R., 5 H. L. I. 
 
 5 Co. Litt. 4 b. 
 
 c Termes de la Ley. 
 
 7 Co. Litt. 92 b; Elton, Commons, 2. 
 'Rent "is sometimes opposed to profit, 
 
 as when it is said that rent issues out of 
 the profits of the land, and that a man 
 cannot reserve as rent part of the annual 
 profits of the land, such as the vesture or 
 herbage; Co. Litt. 141b, 142 a. 
 6 Williams on Commons, 18. 
 " Hall on Profits k Prendre, 223. 
 10 Ibid. ; Race v. Ward, 4 E. & B. 702. 
 
Prohibition law dictionary. Promise 647 
 
 PROHIBITION. — § 1. The writ of prohibition is a writ issuing out 
 of the High Court to restrain an inferior Court within the .limits of its 
 jurisdiction. It is granted in all cases where an inferior Court exceeds 
 its powers, either by acting where it has no jurisdiction, or where, having 
 a primary jurisdiction, it takes upon itself the decision of something not 
 included within its jurisdiction. 1 
 
 § 2. Prohibitions are of three kinds. (1) An absolute prohibition is Absolute, 
 peremptory, and wholly ties up the inferior jurisdiction, but if the superior 
 Court afterwards comes to the conclusion that the matter relied on is not a 
 sufficient ground for prohibition, a writ of consultation may be awarded, by 
 which the cause is remanded to the inferior Court; 2 this latter writ seems 
 in practice to be only awarded in ecclesiastical cases (see Consultation). 
 (2) A temporary prohibition (sometimes called a prohibition quousque) temporary, 
 is operative only until a particular act is done, and is ipso facto dis- 
 charged on the act being done. 3 (3) A limited or partial prohibition limited, 
 (sometimes called a prohibition quoad) extends only to that part of the 
 proceeding which exceeds the jurisdiction of the inferior Court, allowing 
 it to proceed as to the residue. 4 
 
 § 3. The writ is applied for by motion : 5 if the defendant appears and Practice, 
 contests the matter, the Court may, where the question involved is 
 doubtful, order the plaintiff to declare in prohibition, that is, deliver a 
 declaration (q. v.), to which the defendant pleads or demurs, and so on ; 
 the matter is then argued or tried in the same way as an ordinary action, 
 and judgment given for the successful party. 6 
 
 PROLIXITY is the allegation of facts at unnecessary length, either 
 in a pleading or affidavit. The party offending may be ordered to pay 
 the costs thereby occasioned, or, in the case of an affidavit, it may be 
 ordered to be taken off the file. 
 
 PROMISE. — Promises are of two kinds. § 1. A true promise is the 
 expression of an intention to do or forbear from some act, made by one 
 person (the promisor) to another (the promisee). Expressions, in the 
 form of promises, but reserving an option as to their performance, and 
 illusory promises {e.g., a promise by me to pay B. such a sum as I think 
 proper), are not true promises. 1 
 
 § 2. True promises are either express or implied ; thus, if I request A. 
 to lend me 50/., and he does so, a promise by me to repay it is implied. 
 (See Express.) 
 
 § 3. To have legal effect a promise must either be under seal, when it Promise under 
 forms a covenant (q. v.), or must form part of a contract, that is, be made • 
 
 1 Pollock's County Court Practice, 249 ; 6 Steph. Comm. iii. 636 ; Worthington 
 Mayor of London v. Cox, L. R., 2 H. L. v. Jeffries, L. R., 10 C. P. 379 ; South 
 at p. 254. Eastern Rail. Co. v. Railway Comm., 5 Q. 
 
 2 Bl. Comm. iii. 114. B. D. 217. 
 
 3 Pollock, 251. 7 Leake on Contracts, 9; Taylor v. 
 1 Hid. 252 ; Phillimore, Eccl. Law, Brewer, 1 M. & S. 290 ; Pollock on Con- 
 
 1438 ; Rogers, Eccl. Law, 813. tract, 5, 26. 
 
 5 Pollock, 256. 
 
648 
 
 Promissory Note 
 
 LAW DICTIONARY. 
 
 Promoters 
 
 Contractual 
 promise. 
 
 Mutual pro- 
 mises. 
 
 in consideration of something done or to be done in return by the pro- 
 misee (see Consideration; Contract). When that consideration consists 
 of another promise each party is both a promisor and a promisee, and the 
 contract consists of mutual promises ; thus, in an ordinary contract of 
 sale, the vendor's promise to deliver the goods is in consideration of the- 
 Independent, purchaser's promise to pay for them, and vice versa. § 4. Mutual 
 promises are said to be independent where either party may sue the 
 other for the breach of his promise and where it is no excuse for the 
 party sued to allege a breach by the plaintiff of his own promise (see 
 Apportionment, § 3) : dependent, when the performance of one promise 
 depends on the performance of the other, and therefore, until the prior 
 condition is performed, the other party is not liable on his promise ; as 
 where A. promised B. to keep some buildings in repair on condition of 
 their being first put into repair by B. : concurrent, where both promises 
 are mutually dependent ; thus, where A. agrees to sell property to B., 
 neither can sue the other without showing that he has performed or is 
 ready to perform his part of the contract. 1 
 
 § 5. Fictitious promises, sometimes called implied promises, or promises 
 implied in law, occur in the case of those contracts which were invented 
 to enable persons in certain cases to take advantage of the old rules of 
 pleading peculiar to contracts, and which are not now of practical 
 importance. (See Contract, §§ 5 et seq.) 
 
 PROMISSORY NOTE, or note of hand, is an absolute promise in 
 writing, signed but not sealed, to pay a specified sum at a time therein 
 limited, or on demand, or at sight, to a person therein named or de- 
 signated, or to his order, or to the bearer. The person who signs the 
 note is called the maker. Promissory notes are negotiable or transferable 
 in the same manner as bills of exchange (q. v.). % 
 
 The legal effect of making a note is an absolute contract by the maker 
 to pay the note. As to the effect of an indorsement, see Bill of Exchange, 
 § 4. The rules are the same in both cases, the maker of a note being in 
 the same position as the acceptor of a bill. 3 
 
 dependent, 
 
 concurrent. 
 
 Fictitious 
 promises. 
 
 Of company. 
 
 Promoters of 
 undertaking. 
 
 PROMOTERS, — § 1. In the law of joint stock companies, promoters 
 are persons who join together for the purpose of procuring the formation 
 of a company. Who are promoters in a given case depends on the cir- 
 cumstances. The commonest instance of a promoter occurs in the case 
 of a person who causes a company to be formed in order that it may 
 purchase some property, patent, &c, from him. 4 Promoters stand in a 
 fiduciary position towards the company which they form. 5 (See Fiduciary.) 
 
 § 2. In the Lands Clauses Consolidation Acts "promoters" means the 
 company, commissioners or private persons who are empowered to execute 
 
 1 Leake, 344 et seq., citing Jones v. 
 Barkley, 2 Dougl. 684. 
 
 2 Byles on Bills, 5 ; stat. 3 & 4 Anne, u. 9. 
 
 3 Byles, 3. 
 
 4 As to the question of promoter or no 
 promoter, see New Sombrero Phosphate 
 Co. v. Erlanger, 5 Cli. L>. 73 ; 3 App. Ca. 
 
 148 ; Twycross v. Grant, 2 C. P. D. at 
 pp. 5°3> S4 1 ! Emma Silver Mining Co. v. 
 Lewis, 4 C. P. D. at p. 407; Bagnallv. 
 Carlton, 6 Ch. D. 371. As to the liabili- 
 ties of promoters, see Lindley on Partner- 
 ship, 33 ; Thring on Companies, 29, 46. 
 6 Ibid. 
 
Promovent law DICTIONARY. Proof 649 
 
 the works or undertaking authorized by the special act. 1 (See Act of Par- 
 liament, § s ; Statute.) 
 
 § 3. In the practice of the Privy Council in ecclesiastical appeals, a Promoter of 
 promoter is a person who brings an appeal from the judgment of an 
 inferior Court. 2 (See Office of the fudge.) 
 
 ecclesiastical 
 
 PROMOVENT is a plaintiff in a suit of duplex querela (q. v.)? 
 
 PRICKING FOR SHERIFFS.— When the yearly list of persons 
 nominated for the office of sheriff is submitted to the Queen, she takes a 
 pin, and to insure impartiality, as it is said, she lets the point of it fall 
 upon one of the three names nominated for each county, &c, and the 
 person upon whose name it chances to fall is sheriff for the ensuing year. 
 This is called pricking for sheriffs. 1 
 
 PROOF. — I. § 1. In the law of evidence, an allegation of fact is said 
 to be proved when the tribunal is convinced of its truth, and the evidence 
 by which that result 'is produced is called the proof. 5 § 2. Where a Burden of 
 person who makes an allegation is bound to prove it, the burden or onus P roof - 
 of proof (onus probandi) is said to rest on him. The general rule is 
 that the burden of proof lies on the party who asserts the affirmative 
 of the issue or question in dispute. (See Ei incumbit Probatio, &°c.) 
 § 3. Where a person on whom the burden of proof lies, adduces evidence Shifting 
 sufficient to raise a presumption that what he asserts is true, he is said ~~f n 
 to shift the burden of proof: that is, his allegation is taken to be true, 
 unless his opponent adduces evidence to rebut the presumption. (See 
 Evidence, § 4 ; Presumption^) 
 
 II. § 4. When evidence is to be given viva voce, e. g., at the trial of an Proof of 
 action, the solicitor of the party on whose behalf a witness is to be called wltness - 
 usually sees the witness beforehand, and takes down a statement of 
 
 the facts on which he is able to give evidence. This statement is called 
 the "proof" of the witness. A copy of it is furnished to the counsel 
 of the party for his guidance in examining the witness. 
 
 III. § 5. In admiralty practice, "proof" was equivalent to "evidence," Admiralty 
 and was divided into three kinds, — proofs by affidavit, by written deposi- P"" 00 "" 
 tions and by oral examination of witnesses in open Court. 6 The rules as 
 
 to evidence in admiralty actions are now the same as in other actions. 7 
 
 IV. § 6. In bankruptcy, "proof" denotes not only the operation of Bankruptcy, 
 proving the existence of a debt owing from the bankrupt's estate, but also 
 
 the affidavit, declaration, &c, by which debts are usually proved : and 
 hence to "prove against the estate" means to bring forward a claim in 
 that way. An ordinary proof is an affidavit by the creditor to the effect 
 that the bankrupt was at the date of the order of adjudication, and still 
 is, justly and truly indebted to the creditor, stating the amount and the 
 
 1 Stat. 8 & 9 Vict. c. 18, s. 2. 6 See Best on Evidence, 9. 
 
 3 Macpherson, Privy C. Pr. 238. 6 Admiralty Rules, 78 ; Williams & 
 
 3 Willis v. Bishop of Oxford, 2 P. D. Brace's Admiralty, 260. 
 192. 7 Rules of Court, xxxvii. 
 
 4 Atkinson on Sheriffs, r8. 
 
650 
 
 Proof 
 
 LAW DICTIONARY. 
 
 Property 
 
 consideration for the debt, and whether the creditor holds any security 
 for it. 1 (See Creditor, § 3 ; Debt, §11; Security.) 
 
 Double proof. § 7. Formerly there was a rule that if a person was liable in respect of 
 distinct contracts, — either as member of two or more distinct firms, 
 composed in whole or in part of the same individuals ; or as a sole 
 contractor and also as member of a firm, — then the creditors under those 
 contracts could not prove against the estates of the two firms in the one 
 case, or against the several estate of the sole contractor and the joint 
 estate of his firm in the other case, but could only prove against one 
 estate. This rule against double proof was abolished by the Bankruptcy 
 Act, 1869. 2 But if a firm is carrying on business in England and abroad, 
 and its property abroad is divided among its creditors, those of them who 
 prove against the estate in England must give credit for what they have 
 received abroad. 3 
 
 § 8. When a proof has been admitted by the trustee, it may afterwards 
 happen that circumstances are disclosed which, if known at the time 
 of proof, would have excluded the creditor from the right to prove, 
 wholly or in part ; or circumstances may arise after proof so as materially 
 to change the state of the debt: and in these cases it becomes necessary 
 either to expunge the proof, — that is, to reject it retrospectively, as 
 if it had never been made; or to reduce it, — that is, reduce the amount 
 on which the creditor is to receive dividends, as if he had originally proved 
 for the smaller amount. 4 
 
 Proof of will. V. § 9. An executor is said to prove a will when he obtains probate of 
 it, either in common or in solemn form. (See Probate.') 
 
 Expunging 
 and reducing 
 proofs. 
 
 PROPERTY.— I. § 1. In its largest sense "property" signifies 
 things and rights considered as having a money value, especially with 
 reference to transfer or succession, and to their capacity of being in- 
 jured. Property includes not only ownership, estates, and interests in 
 corporeal things, but also rights such as trade-marks, copyrights, patents, 
 and rights in personam capable of transfer or transmission, such as 
 debts. 5 
 
 § 2. Property is of two kinds, real and personal; as to which see those 
 titles. 
 
 II. §3. "Property" also signifies a beneficial right in or to a thing. 
 Sometimes the term is used as equivalent to "ownership;" as where we 
 speak of the right of property as'opposed to the right of possession (q. ».), 6 
 or where we speak of the property in the goods of a deceased person 
 being vested in his executor. 7 The term is chiefly used in this sense with 
 reference to chattels : " the ownership of a chattel personal is termed a 
 propertie." B 
 
 '■ Bankr. Rules (1870), Form 32. 
 
 2 Sect. 37 ; Robson's Bankr. 619 ; Ex 
 parte Honey, L. R., 7 Ch. 178. 
 
 3 Ex parte Banco de Portugal, 1 1 Ch. 
 D. 317 ; 5 App. Ca. 161. 
 
 1 Robson's Bankr. 178, 328. 
 
 6 See Birchall v. Pugin, L. R., 10 C. P. 
 397 ; Austin, ii. 817 et seq. 
 
 6 Co. Litt. 266 a ; Britton, 91 a. 
 
 7 Comyns' Dig. Administration, B. 9. 
 
 8 Finch, Law, 1 76 ; Termes de la Ley, 
 s. v. 
 
Property Tax law dictionary. Proprietary 651 
 
 Property in this sense is divided into general and special or qualified. 
 
 §4. General property is that "which every absolute owner hath." 1 General. 
 (See Ownership.) 
 
 § 5. " Special property" has two meanings. First, it may mean that Special, 
 the subject-matter is incapable of being in the absolute ownership of any 
 person. Thus a man may have a property in deer in a park, hares or 
 rabbits in a warren, fish in a trunk, &c. ; but it is only a special or qualified 
 property, for if at any time they regain their natural liberty his property 
 instantly ceases, unless they have animus revertendi? (See Animals Fera 
 Natures.) § 6. Secondly, a person may have a special property in a thing 
 in the sense that he can only put it to a particular use. Thus, in the case 
 of a bailment (q. v.), the bailee has a special property in the thing bailed, 
 for he is only entitled to deal with it in accordance with the contract of 
 bailment ; but he can maintain an action in respect of it against a wrong- 
 doer.* So possession is said to confer a special property, by which is 
 meant that the possessor of a thing is deemed to be owner as against 
 every one who cannot show a better title. 4 
 
 Etymology.] — Norman-French, propreti ; Latin, proprietas, from proprius, one's 
 own. (See Ownership.) For the history of property or ownership, see Lavaleye de la 
 Propriety ; Maine, Anc. Law, ch. viii. ; Block, Diet, de la Politique, s. v. ; Markby's 
 Elements of Law, §§ 464 et seq. 
 
 PROPERTY TAX is income tax payable is respect of landed pro- 
 perty. (See Income Tax.) 
 
 PROPOUND. — An executor or other person is said to propound a 
 will or other testamentary paper when he institutes an action for obtain- 
 ing probate in solemn form. (See Action, § 10; Probate.) The term is 
 also technically used to denote the allegations in the statement of claim, 
 by which the plaintiff alleges that the testator executed the will with 
 proper formalities, and that he was of sound mind at the time. 5 
 
 PROPRIETARY CHAPELS are chapels erected by and belonging 
 to private persons, and not consecrated for divine service. Such a 
 chapel has no parochial rights, unless acquired by a composition with 
 the patron, incumbent and ordinary of the parish church, nor can public 
 divine service be celebrated in it except with the consent of the in- 
 cumbent and the licence of the bishop. 6 
 
 PROPRIETARY RIGHTS are those rights which an owner of 
 property has by virtue of his ownership. When proprietary rights are 
 
 1 Co. Litt. 89 a, 145 b ; Donald v. * Armory v. Delamirie, Smith, L. C. 
 
 Suckling, L. R., 1 Q. B. at pp. 606, 614; i. 357. 
 
 Coggs v. Bernard, Smith's L. C. i. 188 ; 5 See the forms numbered 23 in the 
 
 Markby's Elements of Law, §§ 529 et seq. Appendix (C) to the Rules of Court, Jud. 
 
 s Bl. Comm. ii. 391. Act, 1875. 
 
 3 Ibid. 395; Steph. Crim. Dig. 198; 6 Phill. Eccl. Law, 1183, 1834; Steph. 
 
 Babcock v. Lawson, 4 Q. B. D. 394; see Comm. ii. 746; Moysey v . Hillcoat, z'R.v.gg. 
 
 also Lewis Bowies' 1 Case, 1 1 Rep. 79 b ; Eccl. 30. 
 Steph. Comm. ii. 10. 
 
652 Proprietor LAW dictionary. Prospectus 
 
 opposed to acquired rights, such as easements, franchises, &c, they are 
 more often called natural rights {q. v.). 1 (See Ownership.) 
 
 PROPRIETOR is almost synonymous with " owner " (q. v.), as in 
 the phrase "riparian proprietor." (See Riparian.) A person entitled to a 
 trade-mark or a design under the acts for the registration of trade-marks 
 and designs (q. v.), is called proprietor of the trade-mark or design. 
 
 PROSECUTION— PROSECUTOR.— § 1. A prosecutor is a person 
 Criminal. who takes proceedings against another in the name of the crown. § 2. The 
 
 commonest instance of a prosecutor is in criminal matters, where the 
 suit is said to be by " Her Majesty the Queen on the prosecution of 
 A. B. against C. D. (the prisoner)." The prosecutor may be a private 
 person, in which case he is generally the person specially injured by the 
 crime. When the crime is of a heinous nature or likely to go unpun- 
 ished for want of a prosecutor, the proceedings are conducted by the 
 Director of Public Prosecutions (q.v.), in the name of the Attorney-General. 
 Scire facias, § 3. A person who sets in motion proceedings by scire facias to repeal 
 
 & c - a crown grant (see Scire Facias), by the prerogative process of informa- 
 
 tion {q.v.), by mandamus, or similar proceedings, is called the prosecutor, 
 as is also a person who institutes proceedings for attachment (q. v., § 4). 
 
 PROSPECTUS is a document published by a company or municipal 
 corporation, or by persons acting as its agents or assignees, setting forth 
 the nature and objects of an issue of shares, debentures or other securities 
 created by the company or corporation, and inviting the public to sub- 
 scribe to the issue. 2 A prospectus is also usually published on the issue, 
 in England, of bonds or other securities by a foreign state or corporation. 
 
 § 2. Prospectuses are of importance from a legal point of view, chiefly 
 because they are not unfrequently made the vehicle of misrepresentations, 
 so that persons induced to subscribe on the faith of the statements 
 contained in them acquire a right of action for damages or rescission of 
 the contract. This right, however, is limited to those who subscribed to 
 the issue, and does not extend to persons who may have bought shares or 
 bonds on the market, after seeing a prospectus inviting subscriptions. 3 
 
 § 3. The Companies Act, 1867, s. 38, enacts that every prospectus 
 inviting persons to subscribe for shares in any joint-stock company shall 
 specify the dates of and parties to any contract entered into by the 
 company, or its promoters, directors or trustees, before the issue of the 
 prospectus ; and that any prospectus not specifying these particulars shall 
 be deemed fraudulent on the part of the promoters, directors and officers 
 of the company knowingly issuing the same, as regards any person 
 taking shares on the faith of the prospectus without notice of the 
 contract. 1 
 
 1 See Orr Ewing v. Colquhoun, 2 App. new company are mentioned. 
 Ca. at p. 854. 3 Peek v. Gurney, L. R., 6 H. L. 377. 
 
 z See Lindley on Partn. 103. Thring on * The cases on this section are referred 
 
 Companies, 28, where, however, only to in Twycross v. Grant, 2 C. P. D. 469 ; 
 
 prospectuses issued on the formation of a Sullivan v. Metcalfe, 5 C. P. D. 455. 
 
Protected Transactions law dictionary. Protector 653 
 
 PROTECTED TRANSACTIONS.— As a general rule, every bank- 
 ruptcy, by the doctrine of relation, is deemed to commence from the 
 first act of bankruptcy committed by the bankrupt within twelve months 
 before the adjudication. The effect of this rule is to invalidate aliena- 
 tions and dispositions of property by the debtor, and judgments against 
 him made or obtained since the act of bankruptcy, and its object is to 
 protect the general creditors against fraudulent and collusive arrange- 
 ments for the benefit of particular creditors. 1 But to prevent the rule 
 from bearing hardly on honest creditors, the bankruptcy law excludes 
 from its operation payments, transfers, contracts, dealings and executions, 
 when made or obtained bona fide by persons not having notice of an act 
 of bankruptcy. These are known as protected transactions. 3 
 
 PROTECTION ORDER.— By stat. 20 & 21 Vict. c. 85, s. 21, a 
 wife who has been deserted by her husband may apply to a magistrate 
 or justices, or the judge ordinary of the Divorce Court (now a judge of 
 the Probate, Divorce and Admiralty Division of the High Court), for an 
 order protecting her earnings and property acquired since the commence- 
 ment of such desertion from her husband, and those claiming under him. 
 On the order being made the earnings and property belong to her as if 
 she were a feme sole ; and as to her property and contracts generally, the 
 order has the effect of a decree of judicial separation (q. v.). 3 
 
 See Writ of Protection. 
 
 PROTECTOR. — § 1. The protector of a settlement 4 is a person 
 without whose consent a tenant in tail cannot bar the entail except as 
 against his own issue, nor a tenant in base fee enlarge his estate into a 
 fee simple. § 2. In the absence of a protector specially appointed by the Owner of 
 settlor, the original owner of the first estate for years determinable on the P rior estate, 
 dropping of a life or lives, or any greater estate, prior to the estate tail, is tector. Pr °* 
 the protector. 5 Thus, if land is limited to B. for life, with remainder to 
 C. in tail, B. is the protector. The act contains special provisions for 
 cases in which co-owners, married women, lunatics, &c. have the first 
 prior estate. 6 The person to whom the prior estate was originally given 
 remains protector, although he may have encumbered or alienated it.' 
 § 3. Every settlor is empowered to appoint by the settlement any number Protector by 
 of persons in esse not exceeding three to be protector of the settlement a PP 0lntmeilt - 
 in lieu of the person who would otherwise have been protector, and to 
 insert in the settlement a power of appointing a protector in the place of 
 any protector dying or relinquishing his office. 8 
 
 § 4. Although the protector fills an office somewhat similar to that of 
 the donee of an ordinary power, he is exempt from the rules applying 
 to dealings between the donee and the object of a power (see Fraud, 
 
 1 Robson's Bankr. 462. ment," "settlor," &c. under the Fines and 
 
 2 Ibid. 463. Recoveries Act, see Settlement. 
 
 " Watson's Comp. Eq. 388 ; Browne on 5 Fines and Recoveries Act, s. 22. 
 
 Divorce, 193 ; Macqueen's Husb. & Wife, 6 Sect. 23 et seq. 
 
 222. 7 Sect. 21. 
 
 4 As to the special meaning of " settle- 8 Sect. 32. 
 
654 
 
 Protest 
 
 LAW DICTIONARY. 
 
 Protestation 
 
 § 13). Thus the consent given by a protector is not invalidated 
 obtaining a pecuniary benefit in consideration of his giving it. 1 
 See Estate Tail ; Disentailing Deed ; Tenant to the Pracipe. 
 
 by his 
 
 Bills of ex- 
 change. 
 
 For better 
 security. 
 
 Appearance 
 under protest. 
 
 PROTEST. — § 1. In its most general sense, a protest is an express 
 declaration by a person doing an act that the act is not to give rise to 
 an implication which it might otherwise cause. 2 Thus, the payment of a 
 sum of money by A. in answer to a demand by B. would in general give 
 rise to the presumption that the money was owing by him to B., and if A. 
 wishes to prevent it from doing so, he pays the money under protest. 3 As 
 a general rule, a protest is not effectual unless the payment or other act 
 takes place under compulsion : thus, if A. wrongfully distrains goods 
 belonging to B., and B. pays the sum claimed for rent under protest in 
 order to regain his goods, he may afterwards sue A. to recover the 
 amount. (See Duress.) 
 
 § 2. In the law of bills of exchange, a protest is a solemn declaration by 
 a notary stating that he has demanded acceptance or payment of a bill, 
 and that it has been refused, with the reasons, if any, given by the 
 drawee or acceptor for the dishonour. 4 The object of a protest is to 
 give satisfactory evidence of the dishonour to the drawer or other ante- 
 cedent party ; but it is not necessary except in the case of a foreign bill 5 
 (see Bill of Exchange, § 10 ; Noting). § 3. Protest for better security is 
 where the acceptor becomes insolvent, or his credit is publicly impeached 
 before the bill falls due. In such a case the holder may cause a notary 
 to demand better security, and on its being refused the bill may be 
 protested, and notice sent to an antecedent party. The only advantage 
 of such a protest seems to be that there may be a second acceptance for 
 honour : for in other cases the rule is that there cannot be two accept- 
 ances on the same bill. 6 
 
 § 4. In the Admiralty Division, a defendant desiring to object to the 
 jurisdiction must enter an appearance under protest, and then make 
 an application by summons or motion to have the action dismissed on the 
 ground of want of jurisdiction. 7 Formerly a question of this kind was 
 raised by " pleadings on protest," commenced by the defendant filing 
 a " petition on protest," to which the plaintiff filed a reply, and so on. 8 
 
 PROTESTATION was a formula once used in pleadings at common law when a 
 party wished to prevent an admission of a fact by him in one action from being after- 
 wards used against him in another action as an estoppel or conclusion of the truth of the 
 fact. 9 The necessity of protestation was abolished in 1834. 10 
 
 1 Sect. 37 ; Shelford, R. P. Stat. 331. 
 3 Savigny, Syst. iii. 246. 
 
 3 See an instance, Hilliard v. Eiffe, L. 
 R., 7 H. L. at p. 40. 
 
 4 Byles on Bills, 257. 
 
 5 Ibid. 255. 
 
 6 Ibid. 257. 
 
 7 The Catterina Chiazzare, 1 P. D. 368 ; 
 The Vivar, 2 P. D. 29. 
 
 8 Williams & Bruce's Admiralty, 202 ; 
 The Pieve Superiore, L. R., 5 P. C. 482. 
 For an instance of a protest filed by the 
 Attorney-General, see The Parlement Beige, 
 4 P. D. at p. 130. As to appearance 
 under protest in the Ecclesiastical Courts, 
 see Phlllimore, 1258 ; and in divorce prac- 
 tice, see Browne on Divorce, 21. 
 
 9 Co. Litt. 124 b. 
 
 " Stephen, PI. ( S ), 249, n. {q.) 
 
Protocols law dictionary. Proviso 655 
 
 PROTOCOLS are the original acts and proceedings in an ecclesi- 
 astical cause taken down by a notary (itqUros koKKv, the things first glued 
 together, i. e., the original drafts). 1 
 
 PROVE. See Proof; Probate. 
 
 PROVINCE is a district subject to an archbishop's jurisdiction. 
 England is divided into two. provinces, those of Canterbury and York, and 
 each province contains divers dioceses. 2 (See Archbishop ; Diocese ; Pro- 
 vincial Courts.) 
 
 PROVINCIAL COURTS are Ecclesiastical Courts within the pro- 
 vinces of the two primates, and are hence also called the Courts of the 
 Primates. They are (1) in the province of Canterbury— (a) the Court of 
 Arches (q. v.) ; (b) the Court of the Vicar-General, wherein bishops of the 
 province are confirmed ; (c) the Court of the Master of the Faculties, 
 wherein cases relating to notaries public are heard (see Faculty) ; (d) the 
 Court of Audience (q. v.) ; and (e) the Court of the Commissary of 
 the Archbishop : (2) in the province of York— (a) the Supreme Court or 
 Chancery Court (see Chancery, § 7); (b) the Consistory Court; and 
 (c) the Court of Audience (q. v.). 3 (See Diocesan Courts.) 
 
 PROVISION — PRO VISORS. — In the law of praemunire (q. v.) a provision was a 
 nomination by the pope to an English benefice before it became void, though the term 
 was afterwards indiscriminately applied to any right of patronage exerted or usurped by 
 the pope. The stat. 35 Edw. I was the first statute against provisions. Persons who 
 attempted to take the benefit of provisions were called provisors.* 
 
 PROVISIONAL ORDER.— Under various acts of parliament, 
 certain public bodies and departments of the government are authorized 
 to inquire into matters which, in the ordinary course, could only be dealt 
 with by a private act of parliament, and to make orders for their regula- 
 tion. These orders have no effect unless they are confirmed by an act of 
 parliament, and are hence called provisional orders. Several orders may 
 be confirmed by one act. The object of this mode of proceeding is to 
 save the trouble and expense of promoting a number of private bills. 
 
 As to provisional orders by the Inclosure Commissioners, see Inclosure, 
 § 3. Provisional orders are also made by the Local Government Board 
 under the Public Health Act. 
 
 PROVISIONAL SPECIFICATION. See Specification. 
 
 PROVISO is a clause in a deed or other instrument beginning " pro- 
 vided always that, &c. ;" in Latin, proviso semper. 6 It operates as a con- 
 dition, limitation, qualification or covenant, according to its tenor." 
 
 1 Phill. Eccl. Law, 1243 ; Just. Nov. 45, * Steph. Comm. iv. 189. 
 de Tabell. 5 Litt. § 329. 
 
 2 Bl. Comm. i. in. 6 Co. Litt. 203b. 
 a PhUlimore, Eccl. Law, 1 201. 
 
656 Proxy LAW dictionary. Public Worship 
 
 A common instance of a proviso is that for re-entry contained in almost 
 every lease (see Right of Entry), and the proviso for redemption contained 
 in an ordinary mortgage {q. v., § 6). 
 
 PROXY denotes (i) a person appointed to represent another at a meet- 
 ing or number of meetings ; (ii) the instrument containing the appointment. 
 It requires a stamp of id. In most companies a shareholder has the power 
 of appointing any other shareholder as his proxy to vote at meetings. 
 
 § 2. In bankruptcy, any creditor may, by a memorandum subscribed to 
 his proof or by a separate instrument in writing, appoint a person to 
 represent him as a proxy in the matter of the bankruptcy ; if in general 
 terms, the proxy operates as an authority for the appointee to vote at all 
 meetings, receive dividends, and generally to act in all matters in the 
 bankruptcy as fully as the creditor himself could act. 1 
 
 PUBLIC. See Act of Parliament, § 2; Company, § 10; Director of 
 
 Public Prosecutions ; Highway ; Navigable ; Policy; River. 
 
 PUBLIC HEALTH. — The law relating to public health is contained 
 (as to England generally) in the Public Health Acts, 1875-9., and (as to 
 London) in the Metropolis Local Management Act, 1855, and other acts. 3 
 (See Sanitary Authorities ; Local Government Board; Nuisance.) 
 
 PUBLIC OFFICER sometimes means the holder of a public office 
 (see Fraud, § 18), but it is more generally used to denote an officer of. a 
 joint-stock company or corporation. Fraudulent appropriation of money, 
 alteration of accounts, destruction of books and papers, &c. by such a 
 public officer are misdemeanors. 3 
 
 § 2. The term " public officer" in the latter sense seems to be derived 
 from the stat. 7 Geo. 4, c. 46, which provided for the appointment of 
 public officers of banking companies, and empowered such companies to 
 sue and be sued in the name of any such officer, although the companies 
 themselves were not incorporated. A similar provision was frequently 
 contained in private acts authorizing the formation of unincorporated 
 companies. Companies formed under the modern acts are always 
 incorporated. 
 
 See Companies Acts. 
 
 PUBLIC WORSHIP REGULATION ACT, 1874, contains 
 provisions designed to prevent unlawful alterations in or additions to the 
 fabric, ornaments or furniture' of any church belonging to the Church of 
 England, to prevent the use of unlawful ornaments, and to enforce the use 
 of prescribed ornaments and vestures, and the observance of the rites 
 ordered by the Book of Common Prayer. 4 (See Ecclesiastical Courts.) 
 
 1 Robson's Bankr. 181 et seq. ; Bankr. Act, 1875 ; Steph. Comm. iii. 168 et seq. 
 Act, 1869, s. 80, ^ 8. 3 Stat. 24 & 25 "Vict. c. 96, ss. 81 et seq. 
 
 2 The principal ones are enumerated in 4 Phill. Eccl. Law, supp. 38 ; ReguUe 
 part i. of sched. v. to the Public Health Generales, February, 1879 (4 P. D. 250). 
 
Publication law DICTIONARY. Pufendorf 657 
 
 PUBLICATION— PUBLISH.— § 1. To publish a libel is to deliver Libel, 
 it, exhibit it, read it or otherwise communicate its purport to any person 
 other than the person libelled. 1 
 
 § 2. A patent for an invention may be invalidated by prior publication Patent. 
 in this country. Thus, if the invention was described in a book accessible 
 and known to the general public in this country, or at least to that 
 portion of the public whose attention is turned to such matters, before 
 being patented, that would invalidate the patent. 2 
 
 § 3. In the old law of wills, publication signified that a will had been Will. 
 recognized by the testator as his operative will ; express publication in the 
 presence of witnesses was recommended, but the fact of a will being in 
 the custody of the testator was a sufficient publication of a will of 
 personalty. 3 Now, by the Wills Act, no publication of a will is required. 1 
 
 ^ PUBLICI JURIS (" of public right "), as applied to a thing or 
 right, means that it is open to or exercisable by all persons. 
 
 § 2. When a thing is common property, so that any one can make use 
 of it who likes, it is said to be publici juris, as in the case of light, air 
 and public water. (See Air; Light; Water; Natural Rights.) § 3. So 
 when a copyright or patent has expired, or a trade-mark or trade-name 
 becomes common property, the book, process, trade-mark, or trade-name 
 is said to be publici juris, that is, any person can print or use it. 6 
 
 § 4. As applied to the case of water flowing through private land, 
 publici juris means that the water flows in such a defined channel as to 
 give the owner of each piece of land through which it passes what are 
 called rights of water in respect of it, as opposed to water which is 
 either confined to one piece of land, as in a pond, or percolates or 
 flows in no defined course. 6 
 
 PUGHTA. — Georg Friedrich Puchta was born 31st August, 1798, 
 became professor at Erlangen, Munich, Marburg, Leipzig and Berlin, 
 and died 8th January, 1846. He wrote numerous works on modern 
 Roman law, especially the Cursus der Institutionen and the Lehrbuch der 
 Pandecten. 1 
 
 PUFENDORF.— Samuel (Freiherr) von Pufendorf was born 8th 
 January, 1632, became professor' in Heidelberg, and died 16th October, 
 1694. He wrote Dejure natum et gentium and other works. 8 
 
 1 Stephen's Crim. Dig. 186. 6 " Flowing water is publici juris, not 
 
 2 Stead v. Williams, 2 Webst. P. R. in the sense that it is a bonum vacans, to 
 126; Stead v. Anderson, ibid. 147; Plimp- which the first occupant may acquire an 
 ton v. Stiller, 6 Ch. D. 412. " exclusive right ; but it is public and com- 
 
 3 Williams on Executors, 81. Whether mon in this sense only, that all may reason- 
 the Statute of Frauds required publication ably use it who have a right of access to 
 of a will of land is doubtful; ibid. 86, it." Embrey v. Owen, 6 Exch. 369, quoted 
 n. (q). in Phear on Water, 22, 33. 
 
 1 1 Vict. c. 26, s. 13. 1 Holtzen. Encycl. 
 
 5 Ford v. Foster, L. R., 7 Ch. 611. 8 Ibid. 
 
 S. U U 
 
658 Puis Darrein Continuance law dictionary. Purlieu 
 
 PUIS DARREIN CONTINUANCE.— Under the old common law system, a 
 plea puis darrein continuance was one in which the defendant pleaded some matter of 
 defence which had arisen "since the last continuance" or adjournment. (See Continu- 
 ance.) After the abolition of continuances, the same name was given to pleas of defences 
 which arose after the defendant has putin his plea. (See Plea, § 8.) Under the new prac- 
 tice, where a ground of defence arises after the delivery of the statement of defence, the 
 defendant may by leave of the Court deliver a further defence setting forth the same. 1 
 
 PUISNE literally means " later born," as in the phrase mulier puisne 
 (see Mulier). As applied to incumbrances, puisne 1 denotes subsequent in 
 point of date. (See Priority, § 2.) 
 
 While the old Common Law Courts existed all the judges of each 
 court, except the chiefs, were called puisne 1 justices or puisne 1 barons, 
 according to the court. The justices of the Queen's Bench Division, 
 other than the Lord Chief Justice, are similarly called puisne 1 justices. 
 
 PUNISHMENT. See Crime; Death; Imprisonment; Penal Ser- 
 vitude ; Penalty ; Police Supervision ; Whipping. 
 
 PUR AUTER VIE. See Tenant for Life. 
 
 PUR CAUSE DE VICINAGE. See Common, § 8. 
 
 PURCHASE is used,, in law not only in the popular sense of buying 
 (see Vendors and Purchasers), but also in a technical sense to denote that 
 a person has acquired land by the lawful act of himself or another, 
 e. g., by conveyance, gift or devise, as opposed to title by act of the law, 
 such as descent, dower, curtesy, &c, and to title by wrong, as in the case 
 of disseisin. 2 As to escheat, see that title, § 3. (See Purchaser; Title?) 
 
 Etymology.] — Norman-French, purchaz, purchacer, more modern pourchas, 
 pourchasser, from pur (intensitive), and chasser, to seek after, acquire 3 (see Chase). 
 Hence the old writers speak of " purchasing" land by accretion, 4 and of purchasing writs, 
 charters of pardon, &c. 6 
 
 PURCHASER means, I. a person who buys property (see Vendor 
 and Purchaser) ; II. a person who acquires land by purchase in the tech- 
 nical sense of the word (see Purchase); III, a person who acquires land 
 otherwise than by descent. It is in the last sense that the term is used 
 in the Inheritance Act. (See Descent, § 3.) 
 
 PURGE. See Contempt, § 4. 
 
 PURLIEU is a certain territory of ground adjoining a forest, bounded 
 with immoveable boundaries known by matter of record only, which 
 
 1 Rules of Court, xx. 1 ; Archbold, Pr. 3 jjttre, s. v. Pourchasser. 
 737- i See Britton, 86 b. 
 
 2 Litt. $ 12 ; Co. LiU. 3 b, 18 b. <* Co. Litt. 128 b. 
 
Purparty LAW DICTIONARY. Qualification 659 
 
 territory was once forest and afterwards disafforested again by the peram- 
 bulations made for the severing of the new forests from the old, in 
 accordance with the Charta de Foresta (18 John). 1 
 See Forest. 
 
 Etymology.] — Norman-French, purale, 2 pourattee, a perambulation ; from Latin 
 perambulatio. 
 
 PURPARTY is an old word for share or portion, 3 so that to hold 
 land in purparty with a person is to hold it jointly with him. 4 
 
 PURPRESTURE is where an erection or enclosure is made on any 
 part of the king's demesnes, or on a highway, or a common street or 
 public water, or the like. The term is derived from the Norman-French 
 purprendre, to encroach or enclose, 5 and is not now much used, the offence 
 being more commonly called a common nuisance (q. v.). (See Usur- 
 pation.) 
 
 PURSUE. — To pursue a warrant or authority, in the old books, is to 
 execute it or carry it out. (See Execute.) 
 
 PURVIEW is that part of a statute which provides or enacts, as 
 opposed to the preamble, which recites the reason or occasion for the 
 statute. 7 Hence a case is said to be within the purview of an act when 
 it falls within its provisions. 
 
 Etymology.] — Norman-French, jrurveu est; Latin, provisum est, used in the en- 
 acting part of old statutes. 8 
 
 Q. 
 
 QUALIFICATION is a quality which makes a person eligible for an 
 office. As a general rule, the term denotes the possession of property of a 
 certain value. Thus every juryman for the trial of actions in the High 
 Court must either (i) be assessed to the poor-rate or inhabited house duty 
 on a value of not less than 30/. in Middlesex, or 20/. in any other county; 
 or (ii) occupy a house containing not less than fifteen windows ; or 
 (iii) possess freehold or leasehold property of a certain yearly value. In' 
 the city of London the qualification is different. A special juror must 
 either be a banker, merchant, or esquire, or occupy a private dwelling- 
 house of a certain value. 8 So a director of a company is generally 
 required to be the holder of a certain number of shares. 10 
 
 1 Manwood, Forest, 127 ; 4 Inst. 303. ' 12 Co. Rep. 20. 
 
 2 Britton, 129 a. s See for example stat. 3 Edw. 1, in the 
 
 3 Ibid. 184 a, 187 a; Litt. § 262. Revised Statutes. 
 
 4 Litt. § 260. 9 Archbold's Pr. 385 ; stat. 6 Geo. 4, 
 6 Co. Litt. 277 b; Britton, 30 b. t. 50; Juries Act, 1870. 
 
 6 Co. Litt. 52 a. 10 Thring on Companies, 43. 
 
 U U 2 
 
660 Qualified Fee law DICTIONARY. Quare impedit 
 
 QUALIFIED FEE. See Fee, § 4. 
 
 QUALITY. See Estate, § 6. 
 
 QUANDO ACCIDERINT. See Judgment, § 12. 
 
 QUANTITY. See Estate, § 4. 
 
 QUANTUM MERUIT = " as much as he has earned." If a person 
 enters into a contract to do services for another, and either the contract 
 is put an end to before they are completed, or they are not rendered in 
 the manner provided by the contract, the contractor is obviously not 
 entitled to be paid his contract price, but in some cases he is entitled to 
 be paid the actual value of his services ; and if he brings an action to 
 recover it, he is said (in the language of common law) to sue on a 
 quantum meruit. Thus, where a party to a contract refuses to perform 
 his part of it, the other has the right to rescind it, and to sue on a 
 quantum meruit for the services which he had done under it previous to 
 the rescission. 1 (See Quantum valebant.') 
 
 QUANTUM VALEBANT = " as much as they were worth." If 
 a person contracts to supply goods of a certain kind, and supplies goods 
 of a different kind, and the other party does not avail himself of the right 
 of rejecting them, the former, although he cannot claim the price payable 
 under the contract (for it has not been performed), can claim the actual 
 value of the goods supplied ; and if he brings an action for it, he is said, 
 in the language of common law, to sue on a quantum valebant. 3 
 
 QUARANTINE is literally a period of forty days. The expression 
 is now chiefly used to denote the period (whether forty days or not) 
 which persons coming from a country or ship in which an infectious 
 disease is prevalent are obliged to wait before they are permitted to land 
 in England. 3 § 2. It also signifies the forty days during which a widow is 
 entitled to remain in her husband's dwelling-house after his death. 4 
 
 QUARE CLAUSUM FREGIT. See Trespass. 
 
 QUARE IMPEDIT. — An action of quare impedit lies to enforce 
 the right to present to a benefice. If, on a vacancy of a living taking 
 place, two persons present clerks to the bishop, the person rightfully 
 entitled to present should commence an action of quare impedit in the 
 High Court against the bishop, the pretended patron, and his clerk, in 
 order to determine the question of right and prevent his opponent's 
 clerk from obtaining (or retaining) the benefice. An action of quare 
 
 1 Cutter v. Powell, 6 T. R. 320 ; Smith, C. ii. 20 et seq. 
 
 L. C.ii. 1 ; Chitty on Contracts, 527. As 3 Stat. 6 Geo. 4, c. 78 ; Steph. Comm. 
 
 to an equitable quantum meruit, see In re iii. 171 ; Bl. Comm. ii. 135, n. (a). 
 
 Empress Engineering Co., 16 Ch. D. 125. * Magna Charta, c. vii. ; Digby's Hist. 
 
 2 Chitty on Contracts, 421 ; Smith, L. R. P. 95, and 2 Inst. 16 ; Co. Lift. 32 b. 
 
Quarter Sessions law dictionary. Quasi-Contract 66 1 
 
 impedit also lies against the bishop if he refuses to admit a clerk on the 
 ground of incapacity or the like. 1 The trial is generally by jury, but in 
 some instances (it is said) by certificate. 3 " Quare impedit " = " Why he 
 obstructs." (See Jus Patronatus.) 
 
 QUARTER SESSIONS is a Court of Record holden before two or 
 more justices of the peace once in every quarter of the yeaf for execution 
 of the authority given them by the commission of the peace and certain 
 statutes. Formerly their jurisdiction, in theory, extended to trying all 
 misdemeanors and felonies, though in practice they sent the more serious 
 cases to the assizes. Now, however, their jurisdiction to try cases of 
 treason, murder, manslaughter, rape, perjury, forgery, frauds by agents, 
 and numerous other serious offences, has been taken away altogether, so 
 that in those cases their jurisdiction ceases as soon as the indictment has 
 been found. 3 
 
 § 2. A separate Court of Quarter Sessions may be granted to a borough, Boroughs, 
 thus excluding the county justices from exercising jurisdiction within it. 
 The Court consists of the Recorder (q. v.) alone. 4 
 
 § 3. Proceedings at quarter sessions consist (1) of the finding of bills 
 or indictments by the grand jury (see Bill, §4); (2) of the removal to the 
 assizes of those indictments which the Court of Quarter Sessions has no 
 jurisdiction to try; (3) of the trial of those indictments which it has juris- 
 diction to try (see Trial) ; (4) of business falling within the original juris- 
 diction of the sessions, chiefly in matters relating to the preservation of the 
 peace and the punishment of rogues and vagabonds ; (5) of business, within 
 the appellate jurisdiction, which includes appeals from petty and special 
 sessions in bastardy, highway, rating, removal of paupers, and licensing 
 cases. 5 
 
 See Justices oj the Peace. 
 
 QUASH is to discharge or set aside. Thus an indictment may be 
 quashed when it is so defective that no judgment can be given on it. 
 
 QUASI-CONTRACT. — § 1. A quasi-contract is an obligation similar 
 to that created by contract, but riot really arising by the consent of the 
 person bound. Thus, in Roman law, if. a person left his property 
 without anyone to look after it, a stranger might undertake the care 
 of it, and had a right of action against the owner for his expenses 
 (actio negoiiorum gestorum); "and this is for the sake of utility, lest the 
 affairs of persons suddenly called away without being able to arrange for 
 their management should be neglected, for no one would look after them 
 if he had not a right of action for his expenses." 7 § 2. The term quasi- 
 
 1 Phill. Eccl. Law, 451 ; Steph. Comm. chard, 29; stat. 7 & 8 Vict. c. 71. See 
 
 iii. 416; Jud. Act, 1875, App. A., part ii. Assistant Judge. 
 
 sect. iv. 4 Stat. 5 & 6 Will. 4, c. 76, ss. 103 et 
 
 3 Stephen ; see Rules of Court, xxxvi. seq.; Pritchard, i^etseq. 
 
 26. See Trial. b See Pritchard, passim. 
 
 3 Pritchard's Q. S. 7, 364 etseq.; stats. 6 Archbold, Crim. PI. 93. As to quash- 
 
 5 & 6 Vict. c. 38 ; 24 & 25 Vict. c. 96, ing an inquisition in lunacy, see Pope on 
 
 s. 87. The sessions in London and Middle- Lunacy, 69. 
 
 sex are subject to special regulations : Prit- ' Just. Inst. iii. 27, \ 1, 
 
662 Quasi-Easement LAW dictionary. Quasi-Possession 
 
 contract is unknown to the English law, although the thing itself exists. 
 Thus if, in the absence of a husband, I incur expense in burying the wife 
 in a manner suitable to the husband's condition, though without his 
 knowledge, I may sue him for my expenses, or, as it is said, the law will 
 imply a promise by him to reimburse me. 1 § 3. Again, every one exer- 
 cising an office or employment who undertakes a duty comprised in it is 
 bound to perform it with integrity, diligence and skill, independently of 
 any special stipulation to that effect with his contractee. Thus a common 
 carrier is bound to carry his goods or passengers safely, and a solicitor, 
 surgeon, engineer, &c, who undertakes a professional duty is bound to 
 discharge it with integrity and skill, and if he does not he is liable for 
 any damages caused by his default or negligence. " But if I employ a 
 person to transact any of these concerns, whose common profession and 
 business it is not, the law implies no such general undertaking, but, in 
 order to charge him with damages, a special agreement is required." 2 
 The best example of a quasi-contract in English law is salvage (q. v.). 
 See Quasi- Tort. 
 
 Etymology.] — The term " quasi-contract " is a modem abbreviation of the ohligatio 
 quasi ex contractu of the Romans. 
 
 QUASI-EASEMENT.— An easement, in the proper sense of the 
 word, can only exist in respect of two adjoining pieces of land occupied 
 by different persons, and can only impose a negative duty on the owner 
 of the servient tenement. Hence an obligation on the owner of land to 
 repair the fence between his and his neighbour's land is not a true ease- 
 ment, but is sometimes called a quasi-easement. 3 
 
 QUASI-ENTAIL. — A quasi-entail or quasi-estate-tail exists when 
 an estate pur autre vie is limited to a person and the heirs of his 
 body. Thus, if land is given to A. and the heirs of his body during the 
 life of B., A. has a quasi-entail. A quasi-entail in possession may be 
 barred by an [ordinary deed of conveyance : if it is in remainder, the 
 concurrence of the tenant for life is required.' 
 
 4 
 
 QUASI-POSSESSION is to a right what possession is to a thing- 
 it is the exercise or enjoyment of the right, not necessarily the continuous 
 exercise, but such an exercise as shows an intention to exercise it at any 
 time when desired. When the right itself is exercised by means of 
 possession of the thing which is the subject of the right, as in the case 
 of ownership, the idea of quasi-possession does not arise, and hence the 
 term is confined to those rights which merely give a limited power of 
 using the thing, as in the case of easements and profits a prender ; it is, 
 
 1 Jenkins v. Tucker, 1 H. Bl. 90 : see 4 Co. Litt. 20 u, n. (5) ; Feame, C. R. 
 also Foster v. Ley, 2 Bing. N. C. 269, cited 495 ; Williams' R. P. 60. As to the effect 
 Leake on Contracts, 41.. of attempting to limit estate tail in chattels, 
 
 2 Bl. Comm. iii. 106; Broom, C. C. L. see Williams' P. P. 315 et sea.; White & 
 67 2 - Tudor, L. C. i. 1. 
 
 3 Gale on Easements, 516. 
 
Quasi- Tori law DICTIONARY. Queen's Bench 663 
 
 however, not much used in English law, the word " enjoyment " (q. v.) 
 being more frequently employed. 1 
 
 QUASI-TORT, though not a recognized term of English law, may 
 be conveniently used in those cases where a man who has not committed 
 a tort is liable as if he had. Thus, a master is liable for wrongful acts 
 done by his servant in the course of his employment. 2 The ground of the 
 liability is sometimes expressed by the rule " qui facit per alium facit per 
 se ;" 3 but this is erroneous, that rule only applying to authorized acts : the 
 true rule is "respondeat superior." 1 (See Quad-Contract?) 
 
 QUE ESTATE. Set Prescription, § 5. 
 
 QUEEN ANNE'S BOUNTY.— By the statute 26 Hen. 8, c. 3, 
 certain duties called first fruits and tenths which had up to that time been 
 paid by the incumbents of ecclesiastical benefices to the Pope, were made 
 part of the revenues of the crown. Queen Anne determined to apply 
 them to the augmentation of the livings of the poorer clergy, and under 
 the provisions of the stat. z & 3 Anne, c. 20, she appointed certain 
 persons to be a corporation to receive and apply for this purpose the first 
 fruits and tenths, and also any gifts and benevolences given to them for 
 the same purpose ; they are called the Governors of the Bounty of Queen 
 Anne for the Augmentation of the Maintenance of the Poor Clergy. 5 (See 
 First Fruits.) 
 
 QUEEN'S ADVOCATE is an advocate (q. v.) who holds, in the 
 Courts in which the rules of the canon and civil law prevail, a similar 
 position to that which the Attorney-General holds in the ordinary Courts: 
 that is, he acts as counsel for the crown in ecclesiastical, admiralty and 
 probate cases, and advises the crown on questions of international law. 
 In order of precedence it seems that he ranks after the Attorney-General. 6 
 
 QUEEN'S BENCH.— § 1. The Court of Queen's Bench was one 
 of the superior Courts of common law, having in ordinary civil actions 
 concurrent jurisdiction with the Courts of Common Pleas and Exchequer ; 
 it was, however, considered superior to them in dignity and power, its 
 principal judge being styled the Lord Chief Justice of England, and 
 taking precedence over the other common law judges. 7 It also had 
 special jurisdiction over inferior Courts, magistrates and civil corporations 
 by the prerogative writ of mandamus, and (concurrently with the two 
 
 1 Gale on Easements, 207. As to quasi- * See Reg. v. Holbrooh, 4 Q. B. D. at 
 possession in Roman law, see Hunter's pp. 46, 51. 
 
 Roman Law ; Bruns, Recht des Besitzes. 5 Phillimore, Eccl. Law, 2069, where 
 
 2 Broom, C. C. L. 690 ; Underhill on the modem statutes relating to the bounty 
 Torts, 29. As to the use of the term are given. 
 
 "quasi-tort" to signify the breach of a 6 Steph. Comm. iii. 275, n. ; Manning's 
 
 quasi-contract, see Tort. Austin rejects Serviens ad Legem, 19, app. iv. 
 
 " quasi-tort" or " quasi-delict" altogether 7 Formerly an appeal lay from the Com- 
 
 (Jurisp. 959). mon Pleas and Exchequer to the Queen's 
 
 3 Underhill, 29. Bench. 
 
664 
 
 Queen's Coroner 
 
 LAW DICTIONARY. 
 
 Queen's Evidence 
 
 Plea and 
 crown sides. 
 
 Queen's 
 Bench Divi- 
 sion. 
 
 other Courts) by prohibition and certiorari (q. v.), and in proceedings 
 by quo warranto and habeas corpus. The Queen's Bench was also the 
 principal Court of criminal jurisdiction in England : informations might 
 be filed and indictments preferred in it in the first instance, and indict- 
 ments from all inferior Courts might be removed into it by certiorari, 
 subject to certain limitations. 1 (See Certiorari; Indictment ; Information?) 
 
 §z. The Queen's Bench accordingly had two "sides" or sets of 
 offices, namely, the "plea side," in which civil business was transacted; and 
 the " crown side," or " Crown Office," in which matters within the criminal 
 and extraordinary jurisdiction of the Court were transacted. (See 
 Crown Office?) 
 
 §3. It is said to have been called the Queen's Bench or King's Bench, 
 both because its records ran in the name of the king (coram' rege), and 
 because kings in former times have often personally sat there. 2 
 
 § 4. By the Judicature Act, 1873, the jurisdiction of the Court of 
 Queen's Bench was transferred to the High Court of Justice. Its judges 
 (namely, the Lord Chief Justice and the five puisne 1 justices) originally 
 formed a separate division of the High Court, called the Queen's Bench 
 Division, and to it was assigned all business, civil and criminal, which 
 "was formerly within the exclusive cognizance of the Court of Queen's 
 Bench. 3 Now, however, the Common Pleas and Exchequer Divisions 
 have been consolidated with it into one division called the Queen's Bench 
 Division. 
 
 See High Court of Justice. 
 
 QUEEN'S CORONER AND ATTORNEY is an officer of the 
 Central Office of the Supreme Court (q. v.). He was an officer in the Crown 
 Office of the Queen's Bench Division before that office was transferred 
 to the Central Office. His duties are similar in kind to those discharged 
 by the other common law masters. 4 (See Masters, § 1.) 
 
 QUEEN'S COUNSEL are barristers who by reason of their superior 
 learning and talent have obtained the appointment of counsel to her' 
 Majesty. They wear silk gowns, sit within the bar, and take precedence 
 in Court over ordinary barristers. 5 They have no active duties to perform 
 to the crown, but they must not be employed in any cause against the 
 crown {e. g., in defending a prisoner) without special licence. 6 § 2. There 
 are also queen's counsel in the County Palatine of Lancaster, who take 
 precedence of other barristers in the palatine Courts.' (See Bar; Barrister; 
 Serjeant-at-Law ; Inns of Court.) 
 
 QUEEN'S EVIDENCE.— When several persons are charged with 
 a crime, and one of them gives evidence against his accomplices, on the 
 
 1 Steph. Comm. in. 331, iv. 307; stat. 
 35 & 36 Vict. c. 52. 
 
 2 Co. Litt. 71 b. 
 
 3 Jud. Act, 1873, ss - lf >, 3 1 et seq. 
 
 4 Second Rep., Legal Dep. Coram. 15 ; 
 
 Judicature (Officers) Act, 1879, s s- 4 et seq. 
 
 5 Manning's Serviens ad Legem, 2C, 
 209. 
 
 6 Steph. Comm. iii. 273. 
 
 7 Judicature Act, 1873, s- 78. 
 
Queen's Remembrancer law dictionary. Quia timet 665 
 
 promise of being granted a pardon, he is said to be admitted Queen's 
 evidence. 1 (See Approve, §2.) 
 
 QUEEN'S REMEMBRANCER is an officer of the Central Office 
 of the Supreme Court. 2 Formerly he was an officer of the Exchequer, 
 and had important duties to perform in protecting the rights of the 
 crown, e. g., by instituting proceedings for the recovery of land by writs 
 of intrusion (q. v.), and for the recovery of legacy and succession duties ; 
 but of late years administrative changes have lessened the duties of the 
 office, 3 and on the next vacancy they will be consolidated with those >of 
 the Senior Master of the Central Office. 4 
 
 QUEM REDDITUM REDDIT was a real action by which the grantee of a 
 rent could compel the tenants of the land out of which the rent issued to attorn to him. 5 
 It was abolished by stat. 3 & 4 Will. 4, u. 27, s. 36. (See Attornment.) 
 
 QUESTIONS OF LAW arising in an action may be stated in the 
 form of a special case {q. v.) for the opinion of the Court, or in such other 
 manner as the Court may deem expedient. See further as to questions 
 of law, Fact, § 3. 
 
 QUI FACIT PER ALIUM FACIT PER SE means that a 
 principal is liable for the acts of his agent within the scope of his 
 authority. (See Agent, § 2 ; Master and Servant, § 3 ; Respondeat 
 Superior.) 
 
 QUI TAM. See Action, § 8. 
 
 QUIA EMPTORES is the name usually given to the Statute 
 18 Edw. 1, passed in the third " notable" parliament holden at Westminster, 
 and therefore also called the Statute of Westminster III. After reciting 
 that purchasers of lands (" quia emptores terrarum") from freeholders of 
 great men and other lords hold their lands of the freeholders and not of 
 the superior lords, whereby the latter lose the feudal fruits of tenure, it 
 enacts that every freeman shall be at liberty to sell his lands, but that the 
 purchaser shall hold them of the chief lord, so as to take the place of the 
 vendor. The statute, therefore, abolished subinfeudation (q. v.), and 
 thus made the future creation of seignories, manors, honours, &c. impos- 
 sible. In the opinion of many writers it also first authorized conveyances 
 of feudal lands, which had hitherto been considered inoperative as against 
 the lord. 7 
 
 QUIA TIMET. See Bill of Complaint, § 5. 
 
 1 Steph. Comm. iv. 395. 4 Jud. Act, 1879, s. 14. 
 
 2 Judicature (Officers) Act, 1879, ss - 4 6 Shepp. Touch. 254. 
 et seq. 6 Rules of Court, xxxiv. 
 
 3 Second Rep. Legal Dep. Comm. I" ; ' Bl. Comm. ii. 91 ; 2 Inst. 500; Wil- 
 stat. 22 & 23 Vict. c. 21. liams on Seisin, 22. 
 
666 Quid Juris clamat law dictionary. Quo Warranto 
 
 QUID JURIS CLAMAT was a real action by which the grantee of a reversion 
 or remainder expectant on an estate for life could compel the tenant for life to attorn to 
 him. 1 It was abolished by stat. 3 & 4 Will. 4, <j. 27, s. 36. (See Attornment.) 
 
 QUID PRO QUO (" something for something") is the old term for 
 consideration (q. v.). " In every contract there must be quid pro quo!' 1, 
 
 QUIET ENJOYMENT. See Covenant, § 8 ; Lease, § 8. 
 
 QUIETUS is a discharge granted by the crown or its officer to a 
 person indebted to the crown, e. g., an accountant. It is a defence to a 
 writ of extent, and may be entered on the register of judgments in 
 discharge of an execution already issued. 3 It seems to have been 
 originally a writ addressed to the barons of the Exchequer, directing that 
 the debtor should be discharged {quietus sit) of all claims. 4 
 
 QUIT CLAIM "is a release or acquitting of a man for any action 
 that he [the releasor] hath or might have against him." 5 " Fleta calleth 
 it charta de quietd clamantid." 6 The expression "quit claim" is used in 
 old-fashioned releases as an operative word equivalent to " release." 
 
 QUIT RENT. See Rent. 
 
 Writ. QUO WARRANTO.— § 1. The writ of quo warranto is a high 
 
 prerogative writ by the crown against one who claims or usurps any 
 office, franchise or liberty, to inquire " by what authority " he supports 
 his claim. It lies also in case of non-user, or mis-user, of a franchise, or 
 where any public trust is executed without authority, though it may be no 
 
 Information, usurpation on a franchise of the crown. 7 § 2. The prerogative writ of 
 quo warranto, however, has long fallen into disuse, having been sup- 
 planted by what is called an information in the nature of a writ of quo 
 warranto, wherein the process is speedier, and the judgment not so 
 inconveniently decisive, as on the ancient writ: it is now the usual 
 remedy in the case of corporation disputes between private persons, 
 without the intervention of the prerogative, by virtue of the stat. 9 Ann. 
 c. 20, which permits an information in the nature of a quo warranto to be 
 brought with leave of the Court, at the relation of any person desiring to 
 prosecute the same (who is then styled the relator) against any person 
 usurping, intruding into, or unlawfully holding any franchise or office in 
 any city, borough or town corporate. 8 (See Ouster?) 
 
 1 Shepp. Touch. 254. ' Termes de la Ley, a. v. 
 
 2 Co. Litt. 47 b. See Pollock on Con- 6 Co. Litt. 264 b. 
 
 tract, 151. 7 Bl. Comm. iii. 262 ; Steph. Comm. iii. 
 
 3 Blount's Law Diet. s. v. 638 ; Chitty, Prer. 336. 
 
 4 Madox, Exch. ii. 220 et seq.; R. v. s Ibid.; stats. 32 Geo. 3, c. 58 ; 7 Will. 
 Wilkinson, Bunb. 315 ; stat. 2 & 3 Vict. 4 & 1 Vict. c. 78 ; 6 & 7 Vict. c. 89. See 
 c. u. Ex parte Richards, 3 Q. B. D. 368. 
 
Quod ei deforceat law dictionary. Railway Commissnrs. 667 
 
 QUOD EI DEFORCEAT was a writ or action which lay for the recovery of land 
 where a tenant for life, in tail, or the like, had lost the right of possession through his 
 default or non-appearance in a possessory action. 1 It was abolished by stat. 3 & 4 
 "Will. 4, c. 27, a. 36. 
 
 QUORUM.— § 1. When a committee, board of directors, meeting of 
 shareholders, or other body of persons, cannot act unless a certain number 
 at least of them are present, that number is called a quorum. Thus, a 
 first meeting of creditors in bankruptcy cannot act for any purpose, 
 except the election of a chairman, the proving of debts and the adjourn- 
 ment of the meeting, unless a quorum of three creditors are present. 2 
 
 § 2. The expression is taken from the form of commission by which 
 justices of the peace are appointed, and which mentions some particular 
 justices of whom one must always be present for the transaction of certain 
 kinds of business {quorum aliquem vestrum A., B., C, D., &c. unum esse 
 volumus), whence the persons so named are or were called justices of the 
 quorum : at the present day the quorum clause is of no importance, all the 
 justices being usually named in it. 3 
 
 QUOUSQUE. See Prohibition, § 2 ; Seizure. 
 
 R. 
 
 RACKRENT. See Rent, § 4. 
 
 RAILWAY. — Railways in England are generally constructed under 
 private acts of parliament, which confer the power of compulsorily pur- 
 chasing the lands required for the line. A railway act also almost 
 invariably incorporates the provisions of the Lands Clauses Consolidation 
 Act (see Act of Parliament, § 5) and the Railways Clauses Acts, 1845 and 
 1863. Railways are further subject to numerous acts of parliament, the 
 chief of which are the Railway Regulation Acts, 1840, 1842, 1868, 1871, 
 1873, and the Railway and Canal Traffic Act, 1854. The provisions of 
 some of these acts are enforced by the Board of Trade, others by the 
 Railway Commissioners. 4 
 
 As to whether a railway company is a carrier, see Carrier, § 2. 
 
 RAILWAY COMMISSIONERS are a body of three commis- 
 sioners appointed under the Regulation of Railways Act, 1873, principally 
 to enforce the provisions of the Railway and Canal Traffic Act, 1854, by 
 compelling railway and canal companies to give reasonable facilities for 
 
 1 Co. Litt. 331 b. 3S4b; Bl. Comm. iii. 3 Bl. Comm. i. 351. 
 
 193. 4 See Hodges on Railways, passim. 
 
 s Bankr. Rules (1870), 93. 
 
668 Rank LAW DICTIONARY. Rate 
 
 traffic, to abstain from giving unreasonable preference to any company or 
 person, and to forward through traffic at through rates. They also have 
 the supervision of working agreements between companies. 1 The dura- 
 tion of their office has been extended to the 31st December, 1882. 2 
 
 RANK. — A claim to a prescriptive payment, such as a modus, is said to 
 be rank when it is excessive, and therefore void. Thus if a modus set up 
 is so large that it exceeds what would have been, in the time of Richard I., 
 the value of the tithes in lieu of which it is claimed, the modus is rank 
 and destroys itself. 3 
 
 RAPE. — I. § 1. In civil law, a rape is a division of a county. (See 
 Lathed) 
 
 II. § z. In criminal law, rape is the act of having carnal knowledge of 
 a woman against her will or without her conscious permission, or where 
 her permission has been extorted by force or fear of immediate bodily 
 harm. Rape is a felony, punishable with penal servitude for life. 4 
 
 RATE — RATEABLE. — § 1. A rate is a sum assessed or made 
 payable by a body having local jurisdiction over the district in which the 
 person on whom the rate is assessed dwells or has property. (See 
 Taxation.') There are also rates, such as water rates, charged by ordinary 
 water-companies, which are modes of charging for the sale of commodities, 
 and therefore do not fall within the ordinary definition of rates. Rates 
 are almost always, if not invariably, assessed in respect of the enjoyment 
 or occupation of real property 5 in proportion to its value {pro rata, whence 
 the term " rate") ; and when a person has such an occupation of property 
 as to be liable to payment of rates, his occupation is said to be rateable. 
 (See Occupation, §3.) The oldest rate appears to be that imposed for the 
 relief of the poor, and the principles on which it is assessed and levied 
 have been followed (with certain modifications) in the case of other rates. 
 Those principles may be shortly stated as follows : — It is only the bene- 
 ficial occupation which is rateable, and therefore, in arriving at the value 
 of it, repairs, insurance and other necessary outgoings are allowed to be 
 deducted. 6 For the same reason unoccupied houses {e.g., a house in the 
 
 1 Hodges on Railways, 437 et seq. See 6 See stat. 5 & 6 Will. 4, c. 96, which 
 Warwick Canal Co. v. Birmingham Canal directs the rateable value of hereditaments 
 Co., 5 Ex. D. 1 ; South Eastern Rail. Co. rated for the relief of the poor to be calar- 
 v. R. C, 5 Q. B. D. 217 ; 6 Q. B. D. 586 ; lated upon an estimate of the rent at which 
 Great Western Rail. Co. v. R. C, 7 Q. B. the same might reasonably be expected to 
 D. 182. let from year to year, free of all usual 
 
 2 Stat. 42 & 43 Vict. c. 56. tenants' rates and taxes and tithe commu- 
 
 3 Steph. Comm. ii. 731. tation rent charge, if any, and deducting 
 
 4 Stephen's Crim. Dig. 171; Russell on therefrom the probable average annual cost 
 Crimes, i. 858 ; stats. 24 & 25 Vict. c. 100, of the repairs, insurance and other ex- 
 a. 48 ; 27 & 28 Vict. c. 47. As to the penses, if any, necessary to maintain them 
 punishment for abuse of children, see the in a state to command such rent : Castle, 
 same statutes. 357. Special provisions as to rating the 
 
 5 Castle on Rating, 120; stat. 3 & 4 owners instead of the occupiers of property 
 Vict. c. 89. As to the rating of planta- in certain cases, and as to rating unoccu- 
 tions, mines and rights of sporting, see the pied property, are contained in the Public 
 Rating Act, 1874. Health Act, 1875, s ' 2I1 - 
 
Rate LAW DICTIONARY. Rate 669 
 
 custody of a care-taker) and unfinished buildings are not rateable. On 
 the other hand, the fact that the occupation of property is in effect un- 
 profitable, because the occupier has a heavy rent or other outgoings to 
 bear, or because the income arising from the occupation is devoted to 
 charitable or public purposes, does not affect his liability to be rated. 1 
 
 § 2. The principal kinds of rates are: 2 (i) borough rates, as to which Borough, 
 see Borough, § 4 ; there are also special rates levied in some boroughs, 
 e. g., watch rates for defraying police expenses ; 3 (ii) county rates, assessed County, 
 by the justices of the peace for the respective counties of England, to 
 defray certain expenses authorized by various acts of parliament from 
 2z Hen. VIII. ; the principal purposes for which the county rate is levied 
 are the repair of bridges and the building and repairing of prisons ; 4 
 (iii) county police rates; 6 (iv) county lunatic asylum rates; 6 (v) poor Poor, 
 rates, as to which see Guardians of the Poor; Overseers; Poor Laws; 
 (vi) highway rates, for the repairing and widening of highways (o. v.) ; Highway, 
 (vii) rates levied by sanitary authorities, of which the chief are — (a) the Sanitary. 
 general district rate, leviable to defray the ordinary expenses of an urban 
 authority in the execution of the Public Health Acts, which the district 
 fund is insufficient to meet ;' (b) private improvement rates, levied on the 
 occupiers of particular premises in respect of works executed by an urban 
 authority for the benefit of such premises ; 8 (c) highway rates, levied by 
 an urban authority as surveyor of highways within their district ;* (d) water 
 rates, levied by an urban or rural authority. 10 (viii) The vestries and dis- Metropolitan 
 trict boards charged with the execution of the Metropolis Management rates - 
 Act, 1855, and the subsequent acts, are authorized to require the overseers 
 of the poor of the respective parishes within the metropolis to levy rates 
 for defraying their expenses, namely, a sewers rate, a lighting rate, and 
 a general rate. 11 The Metropolitan Board of Works are authorized to levy 
 a consolidated rate for defraying their expenses in the execution of the 
 acts, and for paying interest on and redeeming the moneys borrowed by 
 them. The rate is levied by precept on the vestries and local boards, 
 who add the amount to their own expenses. 12 (ix) The expenses of the 
 metropolitan police are defrayed partly out of a police rate, and partly out 
 of grants by the Treasury. 13 (x) The stat. 3 & 4 Will. 4, c. 90, autho- Lighting and 
 rizes the levying of rates for lighting and watching any parish in which watcn i n g- 
 the act is adopted; "watching" means the employment of police or 
 constables, (xi) There are also various rates levied under acts of local Local im- 
 application, such as improvement rates, sewers and drainage rates, levied P rovements - 
 
 1 Castle, 27, 44 ; Jones v. Mersey Docks, 6 Stat. 16 & 17 Vict. c. 97, s. 46. 
 
 11 H. L. 443. 7 Public HealthAct, 1875, ss. 2ojelseq. 
 
 % A full list will be found in the Report 8 Ibid. ss. 213 et seg. ; compare ss. 23, 
 
 of the Select Committee on Local Taxa- 150. 
 
 tion, 1870. 9 Ibid, ss. 144, 216. 
 
 3 Mun. Corp. Act, 1835, s. 92 ; 2 & 3 10 Ibid. s. 56 ; Public Health (Water) 
 Vict, c/28 ; 3 & 4 Vict. c. 28 ; 8 & 9 Vict. Act, 1878. 
 
 c. no. " M. L. M. Act, 1855, ss. 158 et seg. ; 
 
 4 Stats. 12 Geo. 2, c. 29; 15 & 16 Vict. Act of 1862, s. 5. 
 
 c. 81. 12 Metr. B. of Works (Loans) Act, 1869. 
 
 6 Stats. 3 & 4 Vict. c. 88 ; 7 & 8 Vict. 13 Stat. 10 Geo. 4, c. 44 ; Police Rate 
 
 c. 33. Act, 1868 ; Police (Expenses) Act, 1875. 
 
670 Ratification law dictionary. Rattening 
 
 by improvement commissioners and other bodies. 1 (See Towns Improve- 
 ment^) 
 
 § 3. Rates are sometimes divided into (a) rates of primary districts, 
 such as those levied in parishes ; and (b) rates of aggregate* districts, such 
 as counties, boroughs, &c. ; also into (c) rates which are levied and 
 expended by the same authority, such as poor rates ; and (d) rates levied 
 by one authority and expended by another, such as the metropolitan 
 rates mentioned above ; the latter are sometimes called precept rates. 2 
 
 RATIFICATION is where a person adopts a contract or other 
 transaction which is not binding on him, because it was entered into 
 by an unauthorized agent, 3 or the like. Thus, if A. enters into a contract 
 on behalf of B., without having B.'s authority to do so, B. may either 
 repudiate or adopt the contract ; if he adopts it he is said to ratify it, and 
 it then takes effect as if it had been originally made with his authority. 4 
 It is sometimes a question whether a person's act amounts to a ratifi- 
 cation, or is a fresh contract altogether. A fresh contract between the 
 same parties always requires a consideration to support it, while in the 
 case of a ratification there may or may not be a new consideration. 5 As 
 to ratification by infants, see Infant. 
 
 § 2. It follows from the nature of the thing that ratification, in the 
 proper sense of the word, cannot take place where the party who 
 professes to ratify a transaction was not in existence when it took place ; 
 as where a person enters into a contract as promoter or trustee on 
 behalf of a company which is to be subsequently formed, and the 
 company when formed adopts it. This is making a new contract, and 
 not ratifying an existing one. 6 
 Torts. § 3. The doctrine of ratification is also applied to torts: as where a 
 
 person ratifies a trespass. 7 
 
 See Omnis Ratihabitio retrotrahitur, &c; Adoption; Repudiation; 
 Authority; Ultra. Vires. 
 
 RATIONE TENURE = "by reason or in respect of his tenure." 
 Thus, when a person is liable to repair a highway by reason of his having 
 the tenure or occupation of the adjoining lands, his obligation is said to 
 be ratione tenurse. 8 
 
 RATTENING is where the members of a trade union cause the 
 tools, clothes or other property of a workman to betaken away or hidden,- 
 in order to compel him to join the union or cease working. It is an 
 offence punishable by fine or imprisonment.. (See Molestation^) 
 
 1 Towns Improvement Clauses Act, 6 Ditcham v. Worrall, 5 C. P. D. 410. 
 1847, ss. 156 et sea. ; stat. 23 & 24 Vict. 6 Melhado v. Porto Alegro, 6fc. Co., L. 
 c - 3°- R., 9 C. P. 503 ; In re Empress Engineer- 
 
 2 Report on Local Taxation, x. et seq. ing Co., 16 Ch. D. 123. 
 
 3 Leake on Contracts, 268. ' Hull v. Pickersgill, 1 Brod. & B. 282. 
 
 4 Bolton v. Hillersden, 1 Ld. Raym. 8 Smith's L. C. ii. itfetseg. 
 22 4- 9 38 & 39 Vict. c. 86, s. 7. 
 
Ravishment LAW DICTIONARY. Rebutter 671 
 
 RAVISHMENT is the old name for the tortious act of taking away 
 a wife from her husband, or a ward from his guardian; one of the 
 remedies was by writ or action of ravishment, called in the case of a 
 ward, ravishment de gard. 1 
 
 REAL. See Action, § 22; Covenant, % 3; Evidence, §4; Personal; 
 In Personam ; In Rem ; Real Property ; Representative ; Security. 
 
 REAL COMPOSITION is an agreement made between the owner 
 of land and the incumbent of a parish, with the consent of the ordinary 
 and the patron of the living, that the land shall for the future be dis- 
 charged from payment of tithes, by reason of some land or other real 
 recompense given in lieu and satisfaction thereof. But since the stat. 
 13 Eliz. c. 10, no real composition can be made for any longer term than 
 three lives or twenty-one years, and such compositions are now rarely 
 heard of. 2 (See Tithes.) 
 
 REAL PROPERTY is property which, on the death of the owner 
 intestate, passes to his heir. Real property is commonly divided into 
 lands, tenements, and hereditaments. (See those titles.) 
 
 REALTY is the same as real property. In the old books, an "action 
 in the realty" is a real action. 3 
 
 RE-ASSURANCE. See Re-insurance. 
 
 REBATE is a deduction made from a payment. In bankruptcy a 
 creditor who has proved for a debt payable in futuro does not receive the 
 full amount of the dividends with the other creditors, but must deduct 
 from each dividend a rebate of interest at five per cent, in respect of the 
 period from the declaration of the dividend to the time when the debt 
 becomes payable. 4 
 
 REBUT. — § 1. To rebut is to defeat or take away the effect of Presumption, 
 something. Thus, when a plaintiff in an action produces evidence 
 which raises a presumption of the defendant's liability, and the de- 
 fendant adduces evidence which shows that the presumption is ill- 
 founded, he is said to rebut it (see Presumption). § 2. So on a trial Evidence, 
 when a fresh case, that is, a case not merely answering the case of the 
 party who began, is set up by the responding party, and evidence is 
 adduced in support of such fresh case, the party who began may give 
 evidence to rebut it, called rebutting evidence, or proof of a rebutting 
 case. 5 
 
 REBUTTER. — § 1. Under the old practice, both at common law and Pleading. 
 
 1 Co. Litt. 136 b ; Bl. Comm. iii. 139 positions confirmed in a certain manner. 
 etseq. 3 Litt. § 315. 
 
 2 Bl. Comm. ii. 28; see stat. 2 & 3 4 Bankruptcy Rules (1870), 77. 
 Will. 4, c. 100, a. 2, making valid all com- 5 Best on Evidence, 785. 
 
672 
 
 Recaption 
 
 LAW DICTIONARY. 
 
 Receiver 
 
 in chancery, the rebutter was the pleading which followed the surrejoinder. 1 
 It was rare at common law, and had long been obsolete in chancery ; but 
 the name is still applicable to the corresponding pleading under the new 
 system. (See Pleading, § 6.) 
 
 § 2. In the old law of real property to rebut was to repel or bar a claim. Thus when 
 a person was sued for land which had been warranted to him by the plaintiff or 'lis 
 ancestor, and he pleaded the warranty as a defence to the action, this was called a 
 rebutter. 3 
 
 RECAPTION is a species of remedy by act of the party which may 
 be resorted to when a man has deprived another of his goods, or wrong- 
 fully detains his wife, child or servant : then the person injured may 
 lawfully claim and retake them, so it be not in a riotous manner, or 
 attended with a breach of the peace. 3 (See Writ of Recaption!) 
 
 RECAPTURE. — By the doctrine of postliminium (q. v.) property 
 which has been captured by an enemy and recaptured within twenty-four 
 hours or before being taken to a place of safety, reverts to its original 
 owner ; the rule, however, varies with different nations. By the Naval 
 Prize Act, 1864, property captured at sea and recaptured at any time 
 afterwards, is to be restored to the owner on his paying to the recaptor 
 prize-salvage at a rate to be fixed by the Prize Court. 4 
 
 RECEIPT generally means an acknowledgment of the receipt of 
 money paid in discharge of a debt (see Accountable Receipt). A receipt 
 under hand alone is in general only prima, facie evidence, but a receipt 
 under seal amounts to an estoppel, and is conclusive. 6 The forgery of a 
 receipt is felony, punishable with penal servitude for life (maximum). 6 
 
 § 2. Formerly, in certain real and mixed actions, if a man seised of land in right of his 
 wife was sued in respect of the land and made default, the wife might be received or ad- 
 mitted as a feme sole to defend her right. This was called receipt or defensio juris. 7 
 
 Property in 
 litigation. 
 
 Equitable 
 execution. 
 
 RECEIVER. — § 1. In an action in the High Court, a receiver is a 
 person appointed by the Court, on an interlocutory application, to receive 
 the rents and profits of real estate, or to get in and collect personal 
 property affected by the proceedings, where it appears desirable that he 
 should do so in lieu of the person then having the control of the property, 
 or where the latter is incompetent to do so, as in the case of an infant. 
 The object is to protect the property until the rights of the parties have 
 been ascertained ; thus, in an action for the dissolution of a partnership, 
 a receiver is frequently appointed to get in or realize the partnership 
 assets. A receiver is an officer of the Court, and generally has to give 
 security for the due performance of his duties. 8 (See Manager.) 
 
 § 2. A receiver is also sometimes appointed to enforce a judgment 
 when the property of the defendant is such that ordinary execution by 
 fi. fa., elegit, or the like, is inapplicable. As to this, see Execution, § 5. 
 
 1 Steph. PL (s), 64; Mitford, PI. 321. 
 
 2 Co. Litt. 365 a ; Termes de la Ley, s. v. 
 ' Steph. Comm. iii. 242. 
 
 4 Manning's Law of Nations, 190 et seq. 
 
 5 Best on Evidence, 521. 
 
 6 Steph. Crim. Dig. 276 ; stat. 24 & 25 
 Vict. c. 98, s. 23. 
 
 7 Co Litt. 352 b et seq. 
 
 B Daniell, Ch. Pr. 1563, 1575; Jud. Act, 
 1873, »• 25. § 8 ; Rules of Court, lii. 4. 
 
Receivers of Wreck LAW dictionary. Recitals 673 
 
 § 3. In bankruptcy, a receiver of the property of the debtor may be Bankruptcy, 
 appointed by the Court at any time after the presentation of the petition 
 for adjudication, liquidation, or composition. A receiver may also be 
 appointed by the creditors themselves in an arrangement by liquidation or 
 composition. 1 
 
 § 4. A receiver may be appointed in lunacy proceedings. 2 Lunacy. 
 
 § 5. Sometimes provision is made by agreement for the appointment of Agreement of 
 a receiver in an extra-judicial matter : thus, a mortgage deed may con- par les " 
 tain an appointment of, or a power for the mortgagee to appoint, a 
 person to be receiver or receiver and manager of the mortgaged property, 
 in order to secure to the mortgagee the payment of his interest out of the 
 rents and profits. 3 A debenture may contain a similar provision. (See 
 Debenture?) 
 
 RECEIVERS OF WRECK are persons appointed by the Board 
 of Trade. The duties of a receiver of wreck are to take steps for the 
 preservation of any vessel stranded or in distress within his district ; to 
 receive and take possession of all articles washed on shore from the 
 vessel ; to use force for the suppression of plunder and disorder ; to 
 institute an examination on oath with respect to the vessel ; and, if neces- 
 sary, to sell the vessel, cargo or wreck. 4 (See Wreck.) 
 
 RECEIVING STOLEN GOODS is the short name usually given 
 to the offence of receiving any property with the knowledge that it has 
 been feloniously or unlawfully stolen, taken, extorted, obtained, embezzled 
 or disposed of. The crime is a felony or misdemeanor according as the 
 original stealing, &c. was a felony" or misdemeanor, 6 and is punishable 
 with penal servitude or imprisonment for various terms, the maximum 
 being fourteen years.' 
 
 RECENT POSSESSION. See Possession, § 4. 
 
 RECIPROCITY = mutuality (q. v.)} The term is used in inter- 
 national law to denote the relation existing between two states when each 
 of them gives the subjects of the other certain privileges, on condition 
 that its own subjects shall enjoy similar privileges at the hands of the 
 latter state. 
 
 RECITALS in a deed, agreement or other formal instrument are 
 statements introduced to explain or lead up to the operative part of the 
 
 1 Robson's Bankr. 335, 653 ; Bankr. i Merchant Shipping Act, 1854, ss. 439 
 Act, 1869, s. 13; Bankr. Rules (1870), et seq. 
 
 260. 6 Either at common law or under the 
 
 2 Pope on Lunacy, 124. statute 24 & 25 Vict. c. 96. 
 
 3 Fisher on Mortgage, 375 ; Davids. ° Under the same statute. 
 
 Conv. ii. 648 : as to the statutory power, 7 Stat. 24 & 25 Vict. c. 96, ss. 91 et 
 
 see 23 & 24 Vict. t. 145, s. 11. For the seq.; Russell on Crimes, ii. 463; Stephen's 
 
 old senge of receiver as a person bound to Crim. Dig. 264. 
 
 account, see Co. Litt. 172 a. 8 Arnold v. Mayor of Poole, 4 M. & G. 
 
 860. 
 
 S. X X 
 
674 
 
 Narrative : 
 introductory. 
 
 Recognitors 
 
 LAW DICTIONARY. 
 
 Recognizance 
 
 At common 
 law. 
 
 instrument. They are generally divided into narrative recitals, which set 
 forth the facts on which the instrument is based ; and introductory recitals, 
 which explain the motive for the operative part. Thus, in an assignment 
 of leasehold property, the deed commences by reciting the lease, that is, 
 by stating that by an indenture of such a date made between such and 
 such parties the property was demised to the lessee for a certain term : 
 this is a narrative recital ; the deed then recites that the assignee has 
 agreed with the assignor (the original lessee) for the purchase of the 
 property for the residue of the term : this is an introductory recital, being 
 followed immediately by the operative part or assignment. 1 A formal 
 recital always commences with the word " whereas." 
 
 § 2. A recital is evidence as against the parties to the instrument and 
 those claiming under them ; and in an action on the instrument itself 
 (though not on a collateral matter) the recitals operate as an estoppel (q.v.)? 
 By the Vendors and Purchasers Act, 1874, recitals in deeds and other 
 instruments twenty years old are made prima facie evidence of the truth 
 of the facts, matters and descriptions therein recited. 3 
 
 RECOGNITORS of an assise were the jurors in an assise of novel disseisin or the 
 like. 4 (See Assise, § 2.) 
 
 RECOGNIZANCE.— I. § 1. At common law a recognizance is an 
 obligation or bond acknowledged before some court of record or magis- 
 trate duly authorized, or before special commissioners appointed by the 
 Queen, and afterwards entered of record, that is, enrolled in some court 
 of record (q. v.). The person acknowledging it, that is, the person bound 
 by it, is called the conusor (or cognisor), and the person in whose favour 
 it is made, the conusee (or cognisee). The object of a recognizance is 
 to secure the performance of some act by the conusor, such as to appear 
 at the assizes, to keep the peace, to pay a debt, to pay costs, &c. 5 A 
 receiver appointed by the Chancery Division is sometimes ordered to enter 
 into a recognizance with sureties to secure the payment of the moneys 
 received by him, the cognisee generally being the Master of the Rolls ; 
 the recognizance is enrolled. 6 (See Enrolment ; Petty Bag Office ; Vacate.) 
 
 § 2. Formerly, a recognizance bound the lands of the conusor, but this 
 is no longer so. 7 (See Judgment, § 16.) A recognizance, however, if en- 
 rolled, still has priority over the ordinary debts of the conusor on his 
 death 8 (see Administration, § 2) ; and there are cases in which execution may 
 be issued on a recognizance without any preliminary proceeding, namely, if 
 no extrinsic evidence is required to show that the amount is due (e.g., where 
 the recognizance is a simple acknowledgment of a debt). 9 The most usual 
 way of enforcing a recognizance is by scire facias (q.v., and see Estreat). 
 
 1 Davids. Conv. i. 44 et seq.; Shepp. 
 Touch. 76. 
 
 2 Davids. Conv. i. 60 ; Ex parte Morgan, 
 2 Ch. D. 72. 
 
 3 See Bolton v. London School Board, 7 
 Ch. D. 766. 
 
 1 Litt. § 366 ; Co. Litt. 227 b. 
 
 6 Bl. Comm.ii.341; Wms. Sau.nd.ii. 197. 
 
 ■ Daniell, Ch. Pr. ii. 1606; Chitty, Pr. 
 
 1757- 
 
 7 Stat. 27 & 28 Vict. c. 112 ; Williams' 
 R. P. 90. 
 
 8 Watson's Comp. Eq. 36. 
 
 9 Foster, Sci. Fa. 295 ; Wms. Saund. 
 ii. 197. 
 
Reconstruction LAW DICTIONARY. Reconversion 675 
 
 II. § 3. Recognizances by statute are those created under 23 Hen. 8, Statutory. 
 c. 6, and called recognizances in the nature of statute staples, because they 
 
 have the same formalities and effects as statute staples, except that they 
 are acknowledged before judges instead of mayors. 1 They are obsolete. 
 (See Statute Merchant and Staple.) 
 
 III. § 4. In criminal law, a person who has been found guilty of an Criminal pro- 
 offence, may in certain cases be required to enter into a recognizance by ceedm S s - 
 which he binds himself to keep the peace for a certain period. 2 § 5. As 
 
 to recognizances given in Courts of summary jurisdiction, and the mode 
 of their enforcement, see the Summary Jurisdiction Act, 1879, s. 9. 
 
 RECONSTRUCTION OF COMPANY.— A company in volun- 
 tary liquidation may be reconstructed under s. 161 of the Companies Act, 
 1862, by a transfer of its undertaking to another company. A company 
 in liquidation, whether voluntary, compulsory, or under supervision, may 
 be reconstructed by arrangement with its creditors under the Joint Stock 
 Companies Arrangement Act, 1870. 3 
 
 RECONTINUANCE seems to be used to signify that a person has 
 recovered an incorporeal hereditament of which he had been wrongfully 
 deprived. Thus, "A. is disseised of a mannor, whereunto an advowson 
 is appendant, an estranger {i.e., neither A. nor the disseisor,] usurpes to 
 the advowson, if the disseisee [A.] enter into the mannor, the advowson 
 
 is recontinued again, which was severed by the usurpation 
 
 And so note a diversitie between a recontinuance and a remitter ; for a 
 remitter cannot be properly, unlesse there be two titles ; but a recon- 
 tinuance may be where there is but one." 4 (See Remitter; Discon- 
 tinuance?) 
 
 RECONVERSION is that imaginary process by which a prior 
 constructive conversion is annulled .and the converted property restored 
 in contemplation of law to its original state. Thus, if real estate is devised 
 to A., upon trust to sell and to pay the proceeds to B., the realty, by virtue 
 of this absolute trust, is constructively converted into personal estate ; 
 but if B., before the property is sold, elects to take it as land, it is then 
 said to be reconverted, and A. is bound to convey the land to him 
 accordingly. 5 This is called reconversion by act of the party. The right 
 of reconversion cannot be exercised to the prejudice of other persons 
 (e. g., joint owners or remaindermen). Reconversion by operation of law 
 is where the property originally directed to be converted comes into the 
 possession of a person absolutely entitled to dispose of it, and is left 
 by him in its original condition, without any declaration of his intention 
 regarding it. 8 (See Result, § 3.) 
 
 1 Bl. Coram, ii. 342; "Wms. Saund. ii. 3 See Lindley, Partn. 1303: Re Wedg- 
 
 218. -wood Coal and Iron Co., 6 Ch. D. 627. 
 
 s Criminal Consolidation Acts, 1861 ; 4 Co. Litt. 363 b. 
 
 Russell on Crimes, 81. 6 Haynes's Eq. 390 ; Snell's Eq. 160. 
 
 Snell, 166. 
 
 X X 2 
 
676 
 
 Reconveyance 
 
 LAW DICTIONARY. 
 
 Record 
 
 RECONVEYANCE takes place where a mortgage debt is paid off, 
 and the mortgaged property is conveyed again to the mortgagor or his 
 representatives free from the mortgage debt. The operative words used 
 in a reconveyance are the same as those which would be used if it were 
 an ordinary conveyance between the parties, the habendum expressing 
 that the property is discharged from the debt. The reconveyance is 
 usually endorsed on the mortgage. 1 
 
 Stealing, &c. 
 records. 
 
 Nisi prius 
 record. 
 
 RECORD. — I. § 1. Records "are the memorials of the legislature, 
 and of the king's Courts of justice, and are authentic beyond all matter 
 of contradiction." 2 " But legally records are restrained to the rolles of 
 such [courts] only as are courts of record, and not the rolles of in- 
 feriour, nor of any other courts which proceed not secundum legem et 
 consuetudinem Anglice. And the rolles being the records or memorialls of 
 the judges of the courts of record, import in them such incontrollable 
 credit and veritie, as they admit no averment, plea, or proofe to the 
 contrarie. And if such a record be alleaged, and it be pleaded that there 
 is no such record, it shall be tried only by it selfe." 3 (See Nul tiel Record; 
 Res Judicata ; Trial!) 
 
 § 2. Records are of the following principal kinds: — (i) acts of parlia 
 ment, attainders and other parliamentary proceedings ; (ii) judgments, fines, 
 inquisitions, extents, returns to writs of mandamus, habeas corpus, &c, and 
 other proceedings of Courts of Record ; (iii) proceedings on the revenue 
 side of the Exchequer, recognizances, crown grants, letters patent, and 
 other instruments of an extrajudicial nature which have been enrolled. 4 
 
 § 3. Stealing, injuring, forging or falsifying a record is felony, punish- 
 able with imprisonment or penal servitude varying from two to seven 
 years. 5 
 
 II. § 4. Under the old common law practice, the nisi prius record was 
 a copy of the issue {q. v., § 8) as delivered in the action, engrossed 
 on parchment. It was the official statement of the writ and pleadings 
 for the use of the judge at nisi prius ; to it were annexed the particulars 
 of demand and set-off, if any (see Particulars) ; and on it were subse- 
 quently entered the postea (q. v.) and judgment. The record was delivered 
 to the proper officer of the Court (generally the associate), which was 
 commonly called entering the record, and it was retained by him until 
 the case was disposed of, unless the plaintiff was not prepared to proceed 
 with the trial, in which case he could withdraw the record, so as to 
 prevent the trial from going on. 6 Now, in lieu of making up the record, 
 the party entering the action for trial delivers to the officer two copies of 
 the pleadings, one of which is for the use of the judge, 7 and is sometimes 
 referred to as the record. 8 The practice of withdrawing the record has 
 
 1 Davids. Conv. ii. 824. 
 
 2 Gilb. Ev. 5. 
 
 3 Co. Litt. 260 a. See Best on Evidence, 
 735- 
 
 4 See the Report of the Committee on 
 the Cottonian Library, 1732. 
 
 5 Stats. 24 & 25 Vict. cc. 96, 98 ; 1 & 2 
 Vict. c. 94; 14 & 15 Vict. c. 99; Steph. 
 Comm. iv. 223. 
 
 6 Chitty, Pr. 361, 381. 
 
 7 Rules of Court, xxxvi. 17, 17 a. 
 
 8 See Judicature Act, 1875, s - 22> 
 
Record and Writ law dictionary. Recovery 677 
 
 been abolished ; but the Court may order the action to be discontinued, 
 on terms. 1 
 
 RECORD AND WRIT CLERKS were officers of the Court of 
 Chancery and of the Chancery Division of the High Court, having the 
 management of the office where bills and answers (under the old practice), 
 affidavits, &c. were filed and writs issued. 2 The existing Record and 
 Writ Clerks were converted into Masters of the Supreme Court by the 
 Judicature (Officers) Act, 1879, and their office abolished. (See Masters, 
 §'•) 
 
 RECORDARI FACIAS LOQUELAM was » writ formerly used to remove a 
 suit from an inferior court not of record into one of the superior Courts of common law : 
 e.g., a suit of replevin in the sheriff's County Court. 3 It seems to be obsolete. (See 
 Certiorari.) 
 
 RECORDER of a borough is a barrister appointed by the crown 
 under the Municipal Corporations Act to act as a justice of the peace 
 in a borough having a separate Court of Quarter Sessions ; he receives 
 a salary, requires no property qualification, and takes precedence after the 
 mayor. By virtue of his office he is in ordinary cases judge of any Court 
 of Record existing within the borough. 1 {See Borough Courts.) § 2. There 
 are also recorders in cities and boroughs not subject to the Municipal 
 Corporations Acts {e.g., the city of London), whose office has existed 
 from time immemorial, and who are appointed by the respective corpora- 
 tions. 5 (See City of London Court ; Mayor's Court of London; Commission, 
 §§ '°. 11.) 
 
 RECOVERY, in its general sense, is where a person obtains some- 
 thing which has been wrongfully taken or withheld from him, or to which 
 he is otherwise entitled. (See Remedy.) 
 
 I. § 2. Proceedings for the recovery of land from a person wrongfully Recovery of 
 in possession of it, are taken either in the High Court of Justice, or in the and- 
 County Courts, or before justices. 
 
 (i) In the High Court the proceedings are of two kinds. § 3. The In High 
 ordinary action for the recovery of land follows the same course as ( " ourt - 
 any other action, except in some cases as regards service of the writ (see 
 Service) and appearance 6 (q. v., see also foinder, § 1). It is a substitute 
 for the old action of ejectment {q. v.). § 4. An action for the re- 
 covery of land under the Common Law Procedure Act, 1852 (sects. 
 213 ef seq.), may be brought where there is a contract of tenancy 
 in writing, and the tenant holds over after the determination of the 
 tenancy. The chief peculiarity of this action is that the defendant 
 
 1 Rules of Court, xxiii. I ; Archbold, * Pritchard's Q. S. 15 ; stat. 5 & 6 
 Pr. 350. Will. 4, c. 76, ss. 103, 118. 
 
 2 Second Report Legal Dep. Comm. 6 Pulling's Laws of London, 9, 113. 
 43; Darnell's Ch. Pr. 1712. G Rules of Court, ix. 8; xii. 18 et seq.; 
 
 3 Fitz. N. B. 70. xiii. 7; xvii. 2; xlii. 3; xlviii. ; Woodfall's 
 
 L. & T. 750. 
 
678 
 
 In County 
 Courts. 
 
 Before 
 
 ustices. 
 
 Recreation 
 
 LAW DICTIONARY. 
 
 Rectification 
 
 Common 
 recovery. 
 
 may be ordered to give bail by recognizance with two sureties, in default 
 of which judgment is given for the plaintiff. 1 
 
 (ii) § 5. An action may be brought in a County Court by a landlord 
 against his tenant for the recovery of land, the yearly value or rent 
 of which does not exceed 50/., where the tenant holds over, unless there 
 is a dispute as to title. 2 As to ejectment in the County Courts, see 
 Ejectment, §2. 
 
 (iii) § 6. A summary mode of recovering the possession of land held 
 for a term not exceeding seven years, and at a rent not exceeding 20/., 
 where the tenant holds over, is given by the stat. 1 & 2 Vict. c. 74, which 
 empowers justices in petty sessions to grant a warrant for the eviction of 
 the tenant. 3 A similar remedy is given in the case of premises held at a 
 rack rent which have been deserted by the tenant. 4 {See Deserted Premises.) 
 
 II. § 7. A recovery or common recovery was * mode of barring estates tail in use 
 down to the year 1833. It was a judgment in a fictitious suit in the nature of a real 
 action, brought by a friendly plaintiff against the tenant in tail, who, on being sued, 
 vouched (that is, called upon) some person to defend the action, on the ground that he 
 had granted the estate tail to the tenant in tail with warranty of title. (See Warranty ; 
 Vouch.) This person (the vouchee) was accordingly called on, and, being a party to the 
 scheme, admitted the imaginary grant and warranty, and then allowed judgment to go 
 against him by default ; whereupon judgment was given for the plaintiff to recover the 
 lands from the tenant in tail, and the tenant in tail had judgment against the vouchee for 
 lands of equal value. The vouchee being a man of straw (generally the crier of the 
 Court) the tenant in tail recovered no such lands, but his own land went to the plaintiff 
 under the judgment, freed from the estate tail and the remainders and reversions ex- 
 pectant on it, and then the plaintiff conveyed it back to him in fee simple. 5 In some 
 manors estates tail in copyholds were barred by customary recoveries. 5 Recoveries were 
 also used for other purposes besides barring estates tail. 7 They were abolished by the 
 Fines and Recoveries Act (q. v.), which substitutes a simpler disentailing assurance. 
 (Compare Fine.) 
 
 RECREATION. — As to easements of recreation, see Easement, 
 p. 303, note. Provision is made by the Inclosure Acts for the appropria- 
 tion of commons, or parts of commons, for the purposes of exercise and 
 recreation for the inhabitants of the neighbourhood 6 (see Inclosure); and 
 by the Recreation Grounds Act, 1859, stat. 23 & 24 Vict. c. 30; 26 Vict, 
 c. 13, and 35 Vict. c. 13, provision is made for the formation and manage- 
 ment of recreation grounds in and near populous places. 
 
 RECTIFICATION— RECTIFY.— § 1. To rectify is to correct or 
 
 Rectification define something which is erroneous or doubtful. Thus, where the parties 
 
 of instrument. tQ an a g reemen t have determined to embody its terms in the appropriate 
 
 and conclusive form, but the instrument meant to effect this purpose 
 
 1 "Woodfall, 743. 
 
 2 Ibid. 704; Pollock's C. C. Pr. 277; 
 County Courts Act, 1856. 
 
 3 Woodfall, 783, where other summary 
 modes of procedure are referred to. 
 
 4 Stats. 11 Geo. 2, c. 19; 57 Geo. 3, 
 c. 52 ; Woodfall, 789. 
 
 5 Williams, R. P. 45 ; Williams on 
 Seisin, 157 ; Bl. Comm. ii. 357 ; Steph. 
 Coram, i. 568, where the proceedings are 
 described in detail. 
 
 Williams, 362. 
 
 7 Shelford, R. P. Stat. 303. 
 
 8 Inclosure Act, 1875, s. 30 ; Commons 
 Act, 1876. 
 
Rector law dictionary. Reddendum 679 
 
 {e.g., a conveyance, settlement, &c.) is by mutual mistake so framed as 
 not to express the real intention of the parties, an action may be brought 
 in the Chancery Division of the High Court to have it rectified. 1 The 
 rectification is generally effected by endorsing on the instrument a copy 
 of the judgment or order, declaring in what respects the instrument 
 requires to be rectified. 2 (See Mistake; Rescission.) 
 
 § 2. An action to rectify or ascertain the boundaries of two adjoining Rectification 
 pieces of land may be brought in the Chancery Division of the High of b °" lld anes. 
 Court. The Court formerly directed a commission to issue (similar to a 
 commission in a partition suit), 3 but at the present day it would probably 
 direct an inquiry in chambers. (See Inquiry, § 2.) The Inclosure Com- 
 missioners have powers to settle confused boundaries in certain cases; 4 
 
 § 3. The rectification of a register is the process by which a person Rectification 
 whose name is wrongly entered on (or omitted from) a register may of re g lster - 
 compel the keeper of the register to remove (or enter) his name. The 
 person aggrieved applies (generally by summons, motion, or other sum- 
 mary mode) to the Court having jurisdiction, and the Court makes an 
 order directing the rectification of the register. 5 (See Mandamus.) 
 
 RECTOR is an officer of the church, having a benefice with cure of 
 souls, that is, spiritual charge of his parishioners, with the right and duty 
 of celebrating services and sacraments in the church. He obtains his 
 benefice by ordination, presentation, institution, and induction (q. v.). He 
 has an exclusive title to all the emoluments of the living, that is, the 
 parsonage house and glebe, the tithes, &c.° An impropriator {q.v.) is 
 sometimes called a lay rector. (See Advowson ; Benefice; Proprietary 
 Chapel.) 
 
 REDDENDO SINGULA SINGULIS.— A clause in an instrument 
 is said to be read reddendo singula singulis ("giving each to each") when 
 one of two provisions in one sentence is appropriated to one of two 
 objects in another sentence, and the other provision is similarly appro- 
 priated to the other object. Thus, if a testator makes a will in these 
 terms : " I devise and bequeath all my real and personal property to A.," 
 it will be construed reddendo singula singulis by applying "devise" to 
 "real property," and "bequeath" to "personal property." 7 
 
 REDDENDUM (= "that which is to be paid or rendered") is that 
 clause in a lease which specifies the amount of the rent and the time at 
 which it is payable. 8 It begins with the words " yielding and paying." 
 
 1 Pollock on Contract, 421, 427 ; Mac- 4 Inclosure Acts, 1845-6; Hunt on 
 kenzie v. Coulson, L. R., 8 Eq. 386; Snell's Boundaries, 193. 
 
 Eq. 354; White & Tudor's L. C. i. 36 ; 5 See the Companies Act, 1862, s. 35; 
 
 Jud, Act, 1873, s - 34- Lindley on Partn. 171 ; Land Transfer 
 
 2 Seton on Decrees, 1231 ; White v. Act, 1875, s. 96. 
 
 White, L. R., 15 Eq. 247. 6 Bl. Coram, i. 384 et sea. 
 
 3 Spence, Equity, i. 655 ; Daniell, Ch. ' See an example in Thornton v. Thorn- 
 Pr. 1033. ton, L. R., 20 Eq. 599. 
 
 8 Elphinstone, Conv. 236. 
 
680 Redeem law dictionary. Reduction 
 
 REDEEM— REDEMPTION. — Redeeming or redemption is where 
 a person having the right to do so pays off a mortgage debt or charge 
 upon property, and thus buys back (Latin redimit) the property; he 
 thereupon becomes entitled to have it reconveyed to him by the mort- 
 gagee or creditor. An action or suit for redemption is one brought to 
 compel the mortgagee to reconvey the property on payment of the debt 
 and interest. (See Reconveyance.') 
 
 REDUCTION INTO POSSESSION is the act of exercising the 
 right conferred by a chose in action, so as to convert it into a chose in 
 possession ; thus a debt is reduced into possession by payment. 
 By husband. § 2. The term is chiefly used with reference to the exercise by a 
 husband of the right to reduce into possession choses in action belong- 
 ing to his wife; and the question whether he has done so is of importance 
 from the rule that his wife's choses in action do not vest in him, as her 
 other chattels do, unless he has reduced them into possession during the 
 coverture. Thus, if C. owes a debt of 500/. to A., a feme sole, and A. 
 marries B., B. has the right to receive the 500/. from C, or to sue him 
 for it : and if he does so, and obtains payment or judgment against C, he 
 will have reduced the chose in action into possession, and the 500/. 
 belongs to him ; : if, however, B. dies without having enforced his right 
 to the 500/., it survives to A. as if she had never been married. Choses 
 in action falling within this rule include debts, arrears of rent, legacies, 
 residuary personal estate, money in the funds, shares, &c, but not 
 chattels personal which at the time of the marriage were in the posses- 
 sion of third persons. 3 § 3. In order that the act of the husband may 
 operate as a reduction into possession, there must be an intention to 
 that end, coupled with some act giving effect to the intention. 3 As 
 a general rule, any act by which the property is brought into the 
 exclusive control of the husband (in his character of husband, and 
 not as trustee, or executor, &c), is a reduction into possession. 4 Thus, 
 if a debt due to the wife is received by the husband, or he brings 
 an action for the debt in his sole name and recovers judgment, 5 the 
 debt is reduced into possession. And although an assignment by 
 the husband of a debt due to the wife does not defeat her right by 
 survivorship, unless the assignee reduces it into possession during the 
 husband's lifetime, 6 yet if a bill of exchange or promissory note is made 
 or endorsed to a married woman during coverture, and the husband 
 endorses it to a stranger,' or if he causes stock belonging to his wife to 
 be transferred into his sole name, this operates as a reduction into posses- 
 
 1 Leake on Contracts, 633 ; Watson's 6 Williams, Executors, 803. 
 
 Comp. Eq. 329 ; Aitchison v. Dixon, L. 6 Macqueen, 55 ; Prole v. Soady, L. R., 
 
 R., 10 Eq. 589. 3 Ch. 220; Barlow v. Bishop, I East, 432. 
 
 2 Bright on Husband and Wife, 34 ; ' Mason v. Morgan, 2 Ad. & E. 30 ; 
 Macqueen, H. & W. 47. Scarpellini v. Atcheson, 7 Q. B. 864 ; 14 
 
 3 Watson's Comp. Eq. 330 ; Macqueen, L. J., Q. B. 333 ; Bright on Husband and 
 50. Wife, 37. 
 
 1 Spence's Equity, ii. 478. 
 
Reduction of Capital law dictionary. Re-Exchange 68 1 
 
 sion. But if he transfers the stock into the joint names of himself and 
 his wife, this does not operate as a reduction into possession. 1 
 
 REDUCTION OF CAPITAL.— By the Companies Act, 1867, ss.g 
 et seq., any company limited by shares may pass a special resolution 
 to reduce its capital : it must then add the words "and reduced," as the 
 last words of its name. The resolution is inoperative until the company 
 has applied to the Court (e. g., to the High- Court, by petition presented 
 in the Chancery Division) to confirm the reduction ; and the Court, if 
 satisfied that the creditors of the company consent to the reduction, 
 or that their claims have been discharged or secured, may make an order 
 confirming the reduction, and fixing the date until which the company 
 must retain the words " and reduced " as part of its name. 2 The object 
 of the act was to enable a company which had a larger unpaid-up capital 
 than it required, to relieve the shareholders from the liability to calls ; 
 but it was not intended to enable a company to write off a part of its 
 paid-up capital which has been lost, 3 or to return to its shareholders part 
 of its paid-up capital which is not required for its business. But this 
 may now be done under the Companies Act, 1877 ; and under the Com- 
 panies Act, 1880, accumulated profits may be returned to shareholders in 
 reduction of paid-up capital. 
 
 RE-ENTRY. See Right of Entry ; Proviso. 
 
 RE-EXAMINATION. See Examination, § 3. 
 
 RE-EXCHANGE is the damages which the holder of a bill of 
 exchange sustains by its being dishonoured in a foreign country where 
 it was made payable. 4 "The theory of the transaction is this: — A 
 merchant in London indorses a bill for a certain number of Austrian 
 florins, payable at a future date in Vienna. The holder is entitled to 
 receive in Vienna, on the day of the maturity of the bill, a certain number 
 of Austrian florins. Suppose the bill to be dishonoured. The holder 
 is now, by the custom of merchants, entitled to immediate and specific 
 redress — by his own act — in this way. He is entitled, being in Vienna, 
 then and there to raise the exact number of Austrian florins, by drawing 
 and negotiating a cross bill, payable at sight, on his indorser in London, 
 for as much English money as will purchase in Vienna the exact number of 
 Austrian florins, at the rate of exchange on the day of dishonour : and to 
 include in the amount of that bill the interest and necessary expenses of 
 the transaction. This cross bill is called in French the retraite. The 
 amount for which it is drawn is called in low-Latin ricambrium, in 
 Italian, ricambio, and in French and English re-exchange. If the indorser 
 
 1 See Baker v. Hall, 12 Ves. 497 ; - 2 Daniell's Ch. Pr. 1978. 
 
 Wall v. Tomlznson, 16 Ves. 413 ; Nichol- 3 In re Ebbw Vale Co., 4 Ch. D. 827. 
 
 son v. Drury Buildings Estate Co., 7 Ch. 4 Willans v. Ayers, 3 App. Cas. at p. 
 
 D. 48; Widgery v. Tepper, 5 Ch. D. 516; 146. 
 Solicitors' Journal, 19 and 26 January, 1878. 
 
682 Re-Extent law dictionary. Refer 
 
 pay the cross or re-exchange bill, he has fulfilled his engagement of 
 indemnity. If not, the holder of the original bill may sue him on it, and 
 will be entitled to recover in that action the amount of the retraite or 
 cross bill, with the interest and expenses thereon. The amount of the 
 verdict will thus be an exact indemnity for the non-payment of the 
 Austrian florins in Vienna on the day of the maturity of the original 
 bill. 
 
 "According to English practice, the retraite or re-exchange bill is now 
 seldom drawn, but the right of the holder to draw it is settled by the law 
 merchant of all nations : and it is only by a reference to this supposed 
 bill that the re-exchange, in other words, the true damages in an action 
 on the original bill, can be scientifically understood and computed." 1 
 
 RE -EXTENT is a second execution by extent in respect of the same 
 debt. 2 (See Extent?) 
 
 REFER — REFERENCE. — § i. To refer a question is to have it 
 decided by a person nominated for the purpose, in lieu of the ordinary 
 procedure by action, trial or other judicial proceedings. The person to 
 whom the question is referred is sometimes called the referee, and the 
 proceedings before him constitute the reference : these proceedings to a 
 great extent resemble those on an ordinary trial, except that they are 
 private ; witnesses are examined, and the referee is addressed on behalf 
 of each of the parties, and he makes an award or report containing his 
 decision. (See. Award; Report, § i.) 
 Reference to References are of various kinds. § 2. When two persons agree to 
 decide a dispute by a reference without any resort to litigation, or when 
 an action is referred by order of the Court under the provisions of the 
 Common Law Procedure Act, 1854, this is generally termed a reference 
 to arbitration (see Arbitration) : the decision of the arbitrator is on the 
 whole case and is final. 3 § 3. Under the Judicature Acts, when an action 
 has been brought, the Court may refer any question arising in the action 
 to a referee for inquiry and report, and may adopt the referee's report, so 
 as to give it the force of a judgment. 4 (See Inquiry?) § 4. The Court also 
 has power, with the consent of the parties, and in certain cases whether they 
 consent or not (e. g., when complicated accounts are involved), to order any 
 question of fact or issue arising in an action to be tried before a referee, 5 
 and may even allow the whole action to be tried before a special or official 
 referee, unless one of the parties is entitled, and wishes, to have the 
 action tried before a jury. 6 (See Trial.) The difference between references 
 under the Common Law Procedure Act and those under the 56th section 
 of the Judicature Act, 1873, is that in the former the decision of the 
 
 1 Byles on Bills, 412 ; In re General 3 Cruikshank v. Floating Swimming 
 South American Co., 7 Ch. D. 637. As Bath Co., I C. P. D. 260. 
 
 to the legality of a custom to allow a fixed i Jud. Act, 1873, s - S^- 
 
 per-centage in lieu of re-exchange, see 5 Ibid. s. 57. 
 
 Willans v. Ayers, 3 App. Ca. 133. 6 Rules of Court, xxxvi. 2 et sea. 
 
 2 Tidd's Pr. 1087. 
 
Refer law dictionary. Referee 6S3 
 
 arbitrator is final as to the whole question, while in the latter the report 
 of the referee is used by the Court to found its judgment on, but has no 
 conclusive force. 1 Where a trial before a referee is ordered under the 
 57th section or Order XXXVI., his report is conclusive, like the verdict 
 of a jury, unless it is set aside by the Court or a re-trial is ordered. 2 
 
 § 5. In the practice of the Chancery Division, questions of detail arising Reference lo 
 in an action or suit are frequently " referred to chambers," that is, the chamois- 
 judge's Chief Clerk is directed to inquire into them and certify the result to 
 theCourt. (See Certificate, § 4; Inquiry, §2.) Sometimes a petition, instead 
 of being disposed of in Court, is referred to chambers to be dealt with by 
 the judge in private ; e. g., a petition for leave to marry a ward of Court. 3 
 
 § 6. Similarly, in the Queen's Bench Division, when damages have to Reference to 
 be assessed under an interlocutory judgment (see fudgment, § 5), and master - 
 the amount is substantially a matter of calculation, the Court may direct 
 it to be ascertained by one of the masters, who has the same powers as if 
 he were acting under a writ of inquiry (q. v.). Such a reference (which is 
 cheaper and quicker than a writ of inquiry) is generally ordered when the 
 damages consist of interest, calls on shares, a sum of foreign money, &c. 4 
 
 § 7. Under the Lands Clauses Consolidation Act, 1845, the Railways 
 Clauses Consolidation Act, the Agricultural Holdings Act, 1875, and 
 similar acts, questions of compensation are generally settled by a reference 
 as provided by the acts. (See Compensation.) 
 
 § 8. Every appeal to the Privy Council is theoretically supposed to be Privy Council, 
 first submitted to the Queen in council, and then referred by her to the 
 Judicial Committee, who report to her their opinion. But now a general 
 Order in Council is made every year as a matter of course, directing all 
 appeals presented within the next twelve months to be referred to the 
 Judicial Committee. 6 Some matters, however, are not heard by the Judi- 
 cial Committee without a special reference or direction by the Queen in 
 Council: e.g., a question of amotion or suspension from office." (See 
 Amotion, § z.) 
 
 REFEREE is a person to whom a question is referred for his decision 
 or opinion (see Refer). In ordinary cases, the person to whom a question 
 is referred is called an arbitrator, the name "referee" being generally 
 used in cases under the Judicature Act, 1873 (ss. 56, 57), which empowers 
 the Court to refer any question arising in a cause or matter to an official or 
 special referee for inquiry and report. (See liefer, §§ 3 et seq.; Trial.) An Official, 
 official referee is a paid and permanent officer of the Court : the business 
 referred to the official referees is distributed among them in rotation, 
 unless a reference is directed to a particular referee. 7 A special referee Special. 
 
 1 Cruikshank v. Floating Baths Co., 4 Archbold's Pr. 803 ; C. L. P. Act, 
 I C. P. D. 260. As to the difference be- 1852, s. 94. 
 
 tween the various lands of references, see 6 Macpherson, Privy C. Pr. 83. 
 
 Longman v. East, 3 C. P. D. 142. » Ibid. 62, 
 
 2 Jud. Act, 1873, s. 58 ; Rules of Court, 7 Jud. Act, 1873, ss. 83, 56 et seq. ; 
 xxxvi. 34. Rules of Court, xxxvi. 29a et seq. Order 
 
 3 Daniell, Ch. Pr. 1210. as to fees to be paid to official referees. 
 
684 Reference law dictionary. Refreshing 
 
 is one who is agreed on between the parties and remunerated by them, 
 the amount being determined by the Court. 1 
 Private bills. § 2. In parliamentary practice, referees on private bills are persons 
 who were originally appointed by the House of Commons to report on 
 engineering questions arising on private bills, but now they only decide 
 questions of locus standi {q. z>.). 3 
 
 REFERENCE IN CASE OF NEED.— When a person draws or 
 endorses a bill of exchange, he sometimes adds the name of a person to 
 whom it may be presented " in case of need," that is, in case it is dis- 
 honoured by the original drawee or acceptor. 3 (See Acceptance, § 5.) 
 
 REFERENCE TO RECORD. — When an action is commenced, 
 an entry of it is made in the cause-book according to the year, the 
 initial letter of the surname of the first plaintiff, and the place of the 
 action in numerical order among those commenced^ in the same year ; 4 
 e.g., "1876, A. 26 ;'" and all subsequent documents in the action (such as 
 pleadings, and affidavits) bear this mark, which is called the " reference 
 to the record." (See Cause Books ; Record; Title.) 
 
 REFORM. — To reform an instrument is to rectify it. (See Recti- 
 fication.) 
 
 The Reform Act is the stat. 2 Will. 4, c. 45. (See Election, note (6).) 
 
 REFORMATORY. See Education Acts. 
 
 REFRESHER is a fee paid to a counsel on the trial of an action in 
 addition to the fee originally paid to him with his brief. In the practice 
 of the Queen's Bench Division, a refresher is usually paid to each 
 counsel for every day the case lasts beyond the first day. Under the old 
 chancery practice (where the evidence was seldom taken viva, voce), the 
 fee marked on the brief was made proportionate to the time the case was 
 expected to last, and refreshers were therefore not generally required or 
 allowed on taxation. The present practice is somewhat unsettled, but 
 the correct rule seems to be that where the evidence is taken by 
 affidavit or depositions, the fee on the brief should cover the whole time 
 the case is likely to occupy; and where the evidence is to be given viva, 
 voce, the fee should only cover the first day, and be supplemented by 
 refreshers if the case lasts longer. 5 
 
 REFRESHING MEMORY.— A witness is in some cases allowed 
 to refresh his memory while under examination, by referring to a docu- 
 ment which is not itself admissible as evidence. Thus, a witness who 
 has made a memorandum of a transaction may in many cases use it to 
 
 1 Jud. Act, 1873, s. 57. « Rules of Court, v. 8, xix. 7. 
 
 •'■ May, Pari. Pr. 755, 761. 6 See Smith v.Buller, L. R., 19 Eq. 
 
 3 Byles on Bills, 261; In re Leeds Bank- 482; Harrison v. Wearing, n Ch. D. 
 
 ing Company, L. R., 1 Eq. 1 ; stats. 6 & 206. 
 7 Will. 4, u. 58; 34 Vict. c. 17. 
 
Regalia LAW DICTIONARY. Register 685 
 
 refresh his memory. 1 So a tradesman may use his account books to 
 refresh his memory when giving evidence in an action for goods supplied. 2 
 
 REGALIA seems to be an abbreviation of jura regalia, royal rights, 
 or those rights which a king has by virtue of his prerogative. Hence 
 owners of counties palatine were formerly said to have jura regalia in their 
 counties as fully as the king in his palace. 3 (See County Palatine?) 
 § 2. Some writers divide the royal prerogative into majora and minora 
 regalia, the former including the regal dignity and power, the latter the 
 revenue or fiscal prerogatives of the crown. 4 
 
 REGARDANT seems originally to have had the same meaning as appendant. 5 In 
 Littleton's time, however, it was only applied to villeins (q. v.). 6 
 
 REGISTER — REGISTRAR — REGISTRATION — REGIS- 
 TRY. — § 1. A register is a book in which statements or memoranda as 
 to certain facts are entered to serve as memorials or evidence. Some 
 registers are public, and others, such as the registers of shareholders, 
 mortgages, &c, required to be keep by joint-stock companies, are private. 
 The place or office where a public register is kept is called a registry, the 
 act or system of registering is called registration, and the officer who 
 keeps the register is called a registrar. Some registrars, however, do not 
 keep registers under that name ; for instance, the various registrars of the 
 High Court enter the documents under their control in records or rolls, 
 and not in registers. 
 
 The following are the principal public registries and registrars : — 
 
 § 2. The Admiralty Registrar of the Probate, Divorce and Admiralty Admiralty. 
 Division of the High Court performs, in the admiralty business of the 
 division, functions corresponding to those discharged by the Masters 
 of the Queen's Bench Division. (See Masters.) He also hears certain 
 motions, and keeps account of all money paid into and out of Court. 7 
 (See Registrar and Merchants?) 
 
 § 3. The registrars of the London Court of Bankruptcy perform duties Bankruptcy, 
 somewhat similar to those of the Masters of the Queen's Bench Division 
 and the Chancery Chief Clerks ; but the Chief Judge may also delegate 
 to them any of the powers vested in him, except the power to commit for 
 contempt; and the registrars are ex officio trustees in the absence of 
 specially-appointed trustees. (See Trustee.) In the office of the chief 
 or senior registrar all bankruptcy petitions are filed, writs of execution 
 issued, and other administrative business transacted. He also keeps 
 the roll of solicitors practising in the London Bankruptcy Court." The 
 Registrar of Appeals receives notices of appeal, and appeal deposits, &c., 9 
 
 1 Best on Evidence, 313. of the word, Co. Litt. 120 a. 
 
 i Ibid. 638. 7 Second Rep. Legal Dep. Comm. 
 
 a Bl. Comm. i. 117. (1874), 86. 
 
 4 Ibid. 8 Robson's Bankr. ifietseq.; Rep. Legal 
 
 6 Co. Litt. 120 b. Dep. Comm. 72; Bankr. Rules (1870), 
 
 6 Litt. § 184; Britton, 152 a, 183 a. See iogetseg. 
 
 Coke's attempt to explain the etymology 9 Bankr. Rules (1870), 143, 145. 
 
686 
 
 Register 
 
 LAW DICTIONARY. 
 
 Register 
 
 Bills of sale. 
 
 Births, deaths 
 andmarriages. 
 
 and attends the Court of Appeal in bankruptcy. 1 (See Arrangement with 
 Creditors, §3.) 
 
 § 4. Bills of sale under the Bills of Sale Act, 1878, are registered in the 
 Central Office (q.v.), and the Masters of the Supreme Court, acting jointly 
 or severally, are the registrar. 2 
 
 § 5. Under stats. 6 & 7 Will. 4, cc. 85, 86; 7 Will. 4 & 1 Vict, 
 c. 22 ; 21 & 22 Vict. c. 25 ; 37 & 38 Vict. c. 88 ; 42 & 43 Vict. c. 8, 
 every poor law union or parish is divided into registration districts, 
 and whenever a birth or death occurs in England the duty is im- 
 posed on certain persons (namely, the near relatives, the persons 
 present at the birth or death, and the occupier of the house where it 
 occurred) to give particulars of the birth or death to the registrar of the 
 district within a certain time. He also keeps a register of all mar- 
 riages solemnized in the district. (See Marriage Acts, § 2.) Each parish 
 or union has a superintendent registrar. Four times a year copies of 
 the entries in every local register are transmitted to the Registrar-General 
 at Somerset House, where a general register is kept. All these registers 
 are open to public inspection, and certified copies of any entries may be 
 obtained. 3 
 
 § 6. The Registrar of Building, Friendly, Industrial and Provident 
 Societies is an official whose duty it is to register societies which 
 comply with the acts of parliament relating to them, especially with 
 reference to the provisions contained in their rules. He also has power 
 to award the dissolution of a friendly society and the distribution of 
 its funds. 4 
 
 § 7. The duties of a Registrar of the Chancery Division are to attend 
 in Court and take note of the judgments or orders there made, and sub- 
 sequently to draw them up in chambers. 5 (See Minutes ; Pass; Settle.') 
 He also issues certificates of sale and transfer. (See Certificate, § 18.) 
 Conditional appearances are entered with the registrars. (See Appearance, 
 
 %S-) 
 
 § 8. As to the registration of charges under the Land Transfer Act, 
 see Charge, § 6. Rent-charges created under the Improvement of Land 
 Acts (q. v.) are also registered in the Land Registry. 6 
 County Court. § 9. County Court Registrars perform the same duties in County 
 Courts as the masters, registrars and chief clerks discharge in the various 
 divisions of the High Court, as well as some others; they issue sum- 
 monses, &c, attend the sittings of the Courts, tax costs, enter up judg- 
 ments, &c. 7 
 
 § 10. Designs: see Registration of Designs. 
 
 § n. District Registries: see that title. 
 
 § 12. Joint Stock Companies : see Companies Acts. 
 
 Building and 
 
 Friendly 
 
 Societies. 
 
 Chancery. 
 
 Charges. 
 
 Designs. 
 District re- 
 gistries. 
 Joint stock 
 companies. 
 
 1 Bankr. Rules (1870), 212. 
 
 ■' Bills of Sale Act, 1878, s. 13 ; Jud. 
 Act, 1879, s. 12. 
 
 3 Steph. Comm. iii. 231 et seq. See also 
 the Burial Laws Amendment Act, 1880, 
 s. 10. 
 
 4 See Friendly Societies Act, 187?, ss. 
 
 10, 25 ; F. S. Act, 1876. 
 
 6 Rep. Leg. Dep. Comm. 48 ; Haynes's 
 Eq. 54- 
 
 6 Improvement of Land Act, 1864, s. 
 56. 
 
 7 Pollock's County Court Practice, II. 
 
Register law dictionary. Register 63? 
 
 § 13. Formerly a judgment for a sum of money bound the land of the Judgments, 
 defendant, provided the judgment was registered in an office established 
 for that purpose, which now forms part of the Central Office (q. v.). 
 Although no judgment entered up after the 29th July, 1864, affects any 
 land until it has been actually delivered in execution, it is still necessary 
 to register, in the name of the debtor, the writ of execution under which 
 the land is delivered. (See Judgment, § 16. ) J 
 
 § 14. Land registries : see that title. Land re- 
 
 § 15. The Registrar in Lunacy is an officer of the Lord Chancellor and S 115 '" 63 - 
 judges having jurisdiction in lunacy ; all petitions in lunacy (including Ullac y' 
 petitions for inquiry into the state of mind of alleged lunatics) are filed 
 in his office, and he draws up the orders made thereon, whether on 
 affidavits only or in Court. Reports and certificates made by the 
 Masters in Lunacy are also filed in his office, and the application of 
 small properties to the maintenance of lunatics under the Lunacy Regula- 
 tion Act, 1862, is entirely conducted in the registrar's office, and not in 
 the Masters', as in ordinary cases. 2 
 
 § 16. The Privy Council Registrar performs for the Judicial Committee Privy Council, 
 of the Privy Council the same functions as those discharged by the 
 masters of the Queen's Bench Division. 3 (See Masters.) 
 
 § 17. The Registrars of the old Probate and Divorce Courts, now trans- Probate and 
 ferred to the Probate, Divorce and Admiralty Division of the High Court, Dlvorce - 
 are of two kinds — the four Registrars of the Principal Registry, and the 
 District Registrars. The Principal Registry is in London, and forms the Principal Re- 
 office for the transaction of probate business. It consists of four Re- Slstr y- 
 gistrars, of whom one attends the Court or judge when sitting, and takes 
 down the decrees or orders pronounced ; the others attend to the 
 administrative business, that is, the supervision of the Clerks of Seats 
 (q. v.), the taxation of costs, &c. They also act as the Registrars of the 
 Court when sitting in divorce matters. 4 The District Registries are District Re- 
 situated at various places throughout the country : each has a District gls nes " 
 Registrar. The business of these registries consists in granting probate 
 and letters of administration in common form where the testator or 
 intestate had a fixed place of abode within the district. 6 
 
 § 18. A register of all persons who serve in ships subject to the pro- Seamen, 
 visions of the Merchant Shipping Act, 1854, is kept in the port of 
 London, and is made up from the lists and papers transmitted to the 
 registrar by the masters of ships in accordance with the act. 6 
 
 § 19. Every British ship (with certain exceptions) must be registered Ships, 
 either under the Registration or Registry Acts (from 1 2 Car. 2, c. 18 to 
 12 & 13 Vict. c. 29), or under the Merchant Shipping Acts, 1854 — 1862. 
 There are a certain number of ports in the United Kingdom and the 
 British possessions and colonies, at which registries for the registration 
 of ships are kept ; in the United Kingdom, the principal officer of 
 
 1 See Jud. Act, 1879, s. 14. 4 Second Rep. Leg. Dep. Comm. 78. 
 
 2 Second Rep. Legal Dep. Comm. 5 Ibid. 82; Court of Probate Act, 1857, 
 (1874), 66; Pope on Lunacy, 34, 36; Lunacy s. 46. 
 
 Reg. Act, 1853, ss. 10 et seq. " ° Maude & Pollock, Merch. Shipp. 137; 
 
 3 Second Rep. Legal Dep. Comm. 90. M. S. Act, 1854, s. 271. 
 
688 
 
 Solicitors. 
 
 Voters. 
 
 Registrar 
 
 LAW DICTIONARY. 
 
 Regretting 
 
 customs at the port is the registrar. The port at which a ship is regis- 
 tered for the time being is called her port of registry. All changes of 
 ownership in a ship {e.g., by sale, mortgage, death, bankruptcy) are regis- 
 tered. 1 (See Bill of Sale, § 3 ; Managing Owner, § 2 ; Mortgage, § 17.) 
 
 § 20. The Registrar of Solicitors has for his duties to keep an alpha- 
 betical list of solicitors and to issue certificates for practice. The Incor- 
 porated Law Society is the registrar. 2 
 
 §21. As to the registration of voters in parliamentary boroughs, see 
 2 Will. 4, c. 45 ; 6 & 7 Vict. c. 18 ; 28 & 29 Vict. c. 36 ; 30 & 31 Vict, 
 c. ioz ; 41 & 42 Vict. c. 26 ; 3 and Revising Barrister. 
 
 REGISTRAR AND MERCHANTS.— In Admiralty actions, the 
 Court itself does not enter into details relating to the assessment of 
 damages or matters of account, and whenever in the course of a cause 
 it becomes necessary that the Court should be informed upon such 
 questions, it is usual to direct a reference to the registrar, assisted by 
 merchants, 4 usually two in number. After hearing the evidence the 
 registrar draws up his report. If either party objects to it, he must file a 
 notice of objection. The objection is argued either on motion or on 
 " petition in objection ;" if it is sustained or held to be valid the report 
 is overruled : otherwise it is confirmed. 6 
 
 REGISTRATION OF DESIGNS.— By the statutes 5 & 6 Vict, 
 c. 100 ; 6 & 7 Vict. c. 65 ; 13 & 14 Vict. c. 104; 21 & 22 Vict. c. 70, 
 and 24 & 25 Vict. c. 73, provision is made for the registration of designs 
 for the manufacture or ornament of certain articles, such as metal works, 
 paper hangings, textile fabrics, &c. The registry is now under the 
 control of the Commissioners of Patents. 6 Registration gives the right 
 to the exclusive use of the design for a number of years varying with the 
 nature of the article to which it is to be applied. 7 (See Copyright; 
 Trademark.) 
 
 RE- GRANT. — In the law of real property, when, after a person 
 has made a grant, the property granted comes back to him {e.g., by 
 escheat or forfeiture) and he grants it again, he is said to re-grant it. 
 The phrase is chiefly used in the law of copyholds. Thus, before the 
 Fines and Recoveries Act, one mode of barring an entail in copyholds 
 was a preconcerted forfeiture of the lands by the tenant, followed by a 
 regrant from the lord to him in fee-simple 8 (see Estate Tail, § 6). As to 
 re-grants in the sense of voluntary grants, see Grant, § 3. 
 
 REGRATING was the offence of buying corn, &c. in any market and 
 selling it again in the same place, so as to raise the price. It was 
 abolished by stat. 7 & 8 Vict. c. 24. 9 (See Engrossing, § 3 ; Forestall, § 2.) 
 
 ' Smith' s Merc . Law, 1 7 7 <rf seq. ; Maude 
 & Pollock, Merch. Shipping, 2 et seq. 
 
 ! Solicitors Act, 1 843, s. 21; Act of 
 1877, s. 16. 
 
 3 Steph. Comm. ii. 354. 
 
 4 Williams & Brace's Admiralty, 275. 
 
 5 Ibid. 283. 
 
 6 38 & 39 Vict. c. 93. This and the 
 other acts are called the Copyright of 
 Designs Acts ; but the application of the 
 term "copyright" to manufactures is in- 
 accurate. 
 
 7 Shortt on Copyright, 602 et sea. 
 
 8 Williams, R. P. 363. 
 
 Steph. Comm. iv. 266. 
 
Regress law dictionary. Relate 68$ 
 
 REGRESS is used principally in the phrase " free entry, egress and 
 regress " (q. v.), but it is also used to signify the re-entry of a person who 
 has been disseised of land. 1 (See Right of Entry?) 
 
 RE-HEARING is where a cause or matter which has been already 
 adjudicated upon is re-argued and a second judgment pronounced. The 
 term is derived from the practice of the Court of Chancery, in which an 
 appeal from a Vice-Chancellor or the Master of the Rolls to the Lord Chan- 
 cellor was looked upon as a re-hearing, because they were the delegates of 
 the Chancellor and members of the same Court ; the same practice was 
 kept up when the Court of Appeal in Chancery (q. v.) was created. 3 
 
 § 2. By the Judicature Acts every appeal to the Court of Appeal is to be 
 by way of re-hearing. 3 This means that the Court of Appeal is in the 
 same position as if the re-hearing were the original hearing, and hence it 
 may receive further evidence in addition to that before the Court below, 4 
 and it may review the whole case and not merely the points as to which 
 the appeal is brought. 6 (See Appeal, § 2 ; Error.) 
 
 RE-INSURANCE is where an insurer procures the whole or part' 
 of the sum which he has insured (i. e., contracted to pay in case of loss, 
 death, &c.) to be insured again to him by another person. This is 
 commonly done in the case of marine insurance, either when the insurer 
 is a company, because the sum which they have insured is larger than the 
 constitution of the company allows, 6 or for some similar reason ; or, in the 
 case of an underwriter, because subsequent events make the risk greater 
 than he originally intended. 7 
 
 § 2. Formerly, by 19 Geo. 2, c. 37, s. 4, re-insurance was prohibited 
 except in certain cases ; 8 but this provision was repealed by 30 & 31 Vict, 
 c. 23. 9 
 
 See Insurance. 
 
 REJOIN — REJOINDER. — In pleading, the rejoinder is the plead- 
 ing which follows the reply (q. v.). Unless it is a simple joinder of 
 issue [q. v.) a rejoinder cannot be delivered without leave of the Court or 
 a judge. 10 (See Pleading.) 
 
 RELATE— RELATION.— The doctrine of relation is that by which 
 an act is made to produce the same effect as if it had occurred at an 
 earlier time. Thus, an adjudication in bankruptcy relates back to the 
 
 1 Co. Litt. 318 b. D. p. 640. 
 
 2 See Darnell's Ch. Pr. 1339 et seq. 6 Great Western Insurance Co. v. Cun- 
 Under the old Chancery practice the judges life, L. R, 9 ch - 53*> note - 
 
 of first instance could also rehear their own 7 Emerigon, 6. 
 
 decrees and the decrees of their predeces- 8 Maude & Pollock, Merch. Shipp. 346. 
 
 sors. This practice is abolished ; In re St. 9 Mackenzie v. Whitworth, L. R., 10 
 
 Nazaire Co., 12 Ch. D. 88 ; but as to Ex. 142. 
 
 .bankruptcy appeals, see Ex parte Banco 10 Rules of Court, xxiv. 2 ; Shewardv. 
 
 de Portugal, 14 Ch. D. 1. Lord Lonsdale, 5 C. P. D. 47. As to re- 
 
 3 Rules of Court lviii. 2. joinders at common law and in equity under 
 1 Zbid. 5. tne °ld practice, see Smith's Action (nth 
 6 Pur'neU v. Great W. Rail. Co., 1 Q. B. edit.), 92, 101 ; Mitford, PI. 321. 
 
 S. 
 
 Y Y 
 
690 Relation LAW DICTIONARY. Release 
 
 first act of bankruptcy committed by the bankrupt during the preceding 
 twelve months, so as to invalidate all alienations, executions, &c. made or 
 suffered during that period fraudulently or in favour of any person having 
 notice of the act of bankruptcy. 1 So if a person has an authority to enter 
 on land, and after entering he abuses the authority, he becomes a tres- 
 passer ab initio, because his wrongful act relates back to the time of his 
 entry. 2 (See Omnis Ratihabitio, &c.) 
 
 RELATION— RELATOR.— In the practice of the Chancery Divi- 
 sion of the High Court, where an action by way of information {q. v.) is 
 instituted in the name of the crown, but not immediately concerning its 
 rights, the proceedings are taken on the relation, that is, on the narrative 
 or information, of a private person, whose name is inserted in the proceed- 
 ings, and who is called the relator. Thus, in the case of a public 
 nuisance, any one who wishes to prevent it may cause an information to 
 be exhibited by the Attorney-General on his relation. A " relator for the 
 purpose of answering costs" is sometimes introduced in informations 
 directly concerning the rights of the crown, in order to avoid the in- 
 justice arising from the crown's immunity from costs in ordinary suits. 3 
 
 Of claim. RELEASE.— I. § 1. In the most general sense of the word, "a k 
 
 release is the giving or discharging of the right or action which a man 
 hath or may have or claim against another man or that which is his." 4 
 Thus, if A. commits a breach of a contract which he has entered into 
 with B., and B. gives up the right of action which he has thus acquired, 
 he is said to release A. 5 So a person may release property from a charge. 
 (See Discharge.) 
 
 General re- § 2. When two persons have had several dealings, from which demands 
 
 lease. an( j r jgjj ts f ac ti n, whether mutual or not, have arisen or may in future 
 
 arise, a release of all such demands and rights of action is called a general 
 release. When trustees or executors have wound up an estate they usually 
 require a release from the persons beneficially entitled before handing 
 over or dividing it, in order to clear themselves of responsibility. 
 
 By operation § 3. A release sometimes takes place by operation of law. Thus, if A. 
 
 of law. covenants not to sue B. for a debt which he owes him, this operates as a 
 
 release, because otherwise A. might sue B. for the debt, and then B. 
 might sue A. for breach of his covenant, which would cause a circuity of 
 action. But if A. has a right of action against two or more, and covenants 
 with one of them not to sue him, this does not operate as a release of the 
 others, though an express release to him would have that effect (see 
 Joint, § s).° For the same reason, although a bankrupt or liquidating 
 
 1 Bankr. Act, 1869, s. II; Cooper v. 4 Shepp. Touch. 320 ; Litt. § 444. 
 
 Chitty, 1 Burr. 20. 5 As to releases generally, see Chitty on 
 
 1 Six Carpenters' Case, 8 Co. 146 a ; Contracts, 706 et seq. ; Leake on Con- 
 Smith, L. C. i. 133 ; for other instances of tracts, 497 et seq. 
 relation, see Roe v. Griffits, 4 Burr. 1952. G Hutton v. Eyre, 6 Taunt. 289; Crague 
 
 3 Mitford's PI. 23 ; Daniell's Ch. Pr. 13 v. Jones, L. R., 8 Ex. 81 ; Green v. Wynn, 
 
 et seq.; Att.-Gen. v. Mayor of Brecon, 10 4 Ch. App. 204. 
 Ch. D. 204. 
 
Release law dictionary. Relegation 691 
 
 debtor who obtains his discharge, or a debtor who effects a composition 
 with his creditors, is thereby released by operation of law from all his 
 debts, with certain exceptions (see Bankrupt, § 3 ; Discharge, § 4), this 
 does not release persons with whom he is jointly liable for any debt. 1 
 
 II. § 4. In the law of real property a release is where a person having R ea i pro - 
 a right, title or claim in or to land, gives it up to some one else who has P ert y- 
 an interest in the land of such a nature as to qualify him for taking the 
 right so relinquished. 2 (See Conveyance, § 4.) Examples are given below. 
 
 A release may enure (that is, operate or take effect) in four ways. 3 
 § 5. First, by way of mitter Testate, that is, by giving or transferring an Bymitter 
 estate or interest; as where one of three joint tenants releases his interest 1'estate. 
 in the land to one of his co-tenants. 4 § 6. Secondly, by way of mitter le By mitter le 
 droit, that is, by giving or transferring a right of entry or similar right, droit • 
 as where a person who has been disseised of land releases his right of 
 entry to the disseisor, and thus vests the full title to the land in him. 5 
 § 7. Thirdly, by way of extinguishment ; thus, if the owner of a seignory By extinguish- 
 which involves a service due from the tenant in fee releases it to the ment - 
 tenant, this operates by way of extinguishment, because the tenant cannot 
 have a service to receive from himself. This is sometimes called a 
 release by way of extinguishment as against all persons, as opposed to 
 a release by which the right passes to the releasee, and which, therefore, 
 operates by way of extinguishment only so far as the releasor is concerned, 
 and does not otherwise affect the existing interests in the land ; thus, if a 
 man is disseised and the disseisor makes a feoffment to two men in fee, and 
 the disseisee then releases to one of the feoffees, this shall enure to both 
 of them by way of extinguishment. 7 § 8. Fourthly, by way of creation or By creation 
 enlargement of an estate, as where the owner of the fee simple in land or enlarge- 
 grants a lease for years and afterwards releases his estate to the lessee and ment ' 
 his heirs, then the fee simple is vested in the lessee. But the releasee 
 must be in possession or seisin of the land to make such a release 
 effectual : an interesse termini is not sufficient. 8 (See Lease and Release.) 
 
 III. § 9. In Admiralty actions, when a ship, cargo or other property Admiralty, 
 has been arrested, the owner may obtain its release by giving bail or 
 paying the value of the property into Court ; 9 upon this being done he 
 obtains a release, which is a kind of writ under the seal of the Court, 
 addressed to the marshal, commanding him to release the property. 10 
 
 RELEGATION is said to be where a man is temporarily exiled or 
 banished by special act of parliament. It was never a civil death." (See 
 Abjuration^) 
 
 1 Megratkv. Gray, L. R., 9 C. P. 216. disseisee had entered and then made a 
 
 2 Burton's Comp. \ 45. feoffment to A. . Litt. §'§ 472, 306 ; Co. 
 
 3 Shepp. Touch. 321 ; Co. Litt. 193 b. Litt. 276 a, 278 a. 
 
 4 Litt. § 304. 6 Litt. § 479. 
 
 5 Ibid. §§ 466, 306; Co. Litt. 194 a, ' Ibid. §§ 307, 470, 478; Co. Litt. 
 266 a. "If a man is disseised by A. and B. 280 a. 
 
 and releases his right to A., this vests the 8 Litt. §§ 459, 465 ; Davids. Conv. i. 72. 
 
 title in A. to the exclusion of B. This is 9 Williams & Brace's Admiralty, 209. 
 
 sometimes called a release by way of entry 10 Ibid. 220, Form 30. 
 
 and feoffment, because it produces the ,l Co. Litt. 133 a. 
 same effect (for some purposes) as if the 
 
 Y Y 2 
 
692 Relevancy law dictionary. Relief 
 
 RELEVANCY— RELEVANT,— § i. In the law of evidence, a fact 
 is said to be relevant when it is so connected, directly or indirectly, with 
 a fact in issue in an action or other proceeding, that evidence given 
 respecting it may reasonably be expected to assist in proving or dis- 
 proving the fact in issue. Thus, if A. is tried for the murder of B. by 
 poison, the fact that he had previously been guilty of other crimes would 
 be irrelevant ; but the fact that before B.'s death A. procured poison 
 similar to that by which B. died would be relevant. So if the question in 
 an action is whether A., the owner of land adjoining a river, owns the 
 entire bed of it or only half the bed at a particular spot, the fact that 
 he owns the entire bed a little lower down the river is relevant. 1 
 
 § 2. The question of the relevancy of a fact to a given inquiry is of 
 importance, because evidence is not admissible to prove an irrelevant fact. 3 
 (See Admissible.} 
 
 Etymology.]— Latin, relevare, to lift up or support ; a fact is relevant when it sup- 
 ports the contention of one of the parties. The use Of the word in this sense seems to be 
 modem. 
 
 RELICTA VERIFICATIONE. See Cognovit, note (i). 
 
 Real property. RELIEF. — I. § i. In the law of real property, a relief is a payment 
 which a tenant of full age is bound to pay to the feudal lord on succeed- 
 
 Relief-seivice. ing to the land by descent. By the common law it is an incident to the 
 service of every free tenure, and is hence sometimes called relief-service ; 3 
 but owing to the gradual extinction of seignories in ordinary cases, reliefs 
 are now rarely met with, except where freehold land is held of the lord of 
 a manor at a yearly quit rent of sufficient value to make it worth collect- 
 ing, in which case the relief consists of one year's rent. 1 This is a 
 socage-relief : reliefs incident to knights' service were abolished by stat. 
 12 Car. 2, c. 24. A relief lies in render (q. v.) and may be distrained 
 for. 6 
 
 Relief by § 2. Improper reliefs differ from ordinary reliefs in being derived from 
 
 custom, &c. custom, prescription or express reservation. A prescriptive relief is one 
 which is presumed to have been reserved by a deed which has been lost 
 (see Lost Grant ; Prescription). A customary relief (or relief-custom) is 
 due by the special custom of some manors on every descent, and in some 
 cases on every purchase, of freehold tenements held of the manor, and 
 in some manors the customary fines in respect of copyholds are called 
 reliefs (see Fine, §§ 3 et seq.). Reliefs due by custom and prescription 
 
 1 Jones v. Williams, 2 M. & W. 326. Journal, 30th Sept. 1876. 
 
 2 Best on Evidence, 352; Stephen's s Co. Litt. 83 a; Litt. § 126 ; Co. Copy. 
 Indian Evidence Act, 52 ; Stephen's Evid. §25. 
 
 Dig. 135 ; Mr. F. Pollock in Fortnightly 4 Williams on Seisin, 26 ; Warrick v. 
 
 Review for Sept. 1876. On the peculiar Queen's College, L. R., 6 Ch. 716. 
 
 use of "relevant" as equivalent to "ad- 6 Co. Copyh. § 25; Co. Litt. 83 a, 
 
 missible," by -Sir J. Stephen, see Solicitors 162 b. 
 
Relieve law dictionary. Remainder 693 
 
 are not recoverable by distress unless the custom or prescription 
 •warrants it. 1 
 
 Etymology.] — Norman-French, relef, reliefve, relief; late Latin, relevium, relevatio, 
 because, it is said, the heir paid it to take up (relevare) his inheritance. 3 
 
 II. § 3. Every action (except actions for discovery and a few others) Relief by 
 is instituted for the purpose of obtaining relief, that is, satisfaction for a actlon - 
 past injury, or the prevention of a threatened injury, or the enforcement 
 
 or protection of a right. A plaintiff usually claims not only a particular 
 kind of relief (" specific relief"), but also " general relief," by asking 
 for such further or other relief as the nature of the case may require, and 
 he may ask for "alternative relief:" 3 that is, he may mention two kinds 
 of relief, and ask for one of them, e. g., either specific performance or 
 damages. 
 
 III. § 4. As to the relief of paupers, see Poor Law. Paupers. 
 
 RELIKVE, in feudal law, is to depend : thus the seignory of a tenant in capite re- 
 lieves of the crown, meaning that the tenant holds of the crown. The term is not com- 
 mon in English writers. 1 (From Latin, relevare, to lift up, support ; probably through 
 the French. 5 ) 
 
 RELINQUISHMENT.— When a person admitted to the office of 
 priest or deacon in the Church of England has resigned his office, he 
 may execute a deed of relinquishment, and after a certain period he 
 becomes incapable of acting in any way as a priest or deacon, loses all 
 privileges attached to the office, and is freed from all liabilities and 
 disabilities to which he would otherwise have been subject. 6 (See 
 Resignation.) 
 
 REM. See In Rem. 
 
 REMAINDER. — § 1. A remainder is a "remnant of an estate in 
 lands or tenements, expectant upon a particular estate created together 
 with the same at one time." 7 Thus, if A., a tenant in fee simple, grants 
 land to B. for life, and after B.'s decease to C. and his heirs, C.'s interest 
 is termed a remainder in fee expectant on the decease of B. B 
 
 § 2. As regards its incidents, a remainder chiefly differs from a 
 reversion (q. v.) in this, that between the particular tenant (B.) and the 
 remainderman (C.) no tenure exists, from which it follows that no rent- 
 service can be incident to a remainder. 9 (See Rent, § 2 ; Tenure.) 
 
 § 3. In the above instance the remainder is said to be vested (that is, Vested, 
 vested in interest), because it is ready to come into possession the moment 
 
 1 Elton, Copyh. 190; Co. Litt. 93 a, 3 Rules of Court, xix. 8. 
 
 and Hargrave's note. 4 See an instance in Madox, Bar. Ang. 2. 
 
 i Britton, 177b; Bracton, 86 a; Spel- 5 Littre, Diet. s. v. Relever. 
 
 man on Feuds (Post. "Works, 31); Har- 6 Clerical Disabilities Act, 1870. 
 
 grave's note to Co. Litt. 83 a. See further 7 Co. Litt. 49 a, 143 a. 
 
 Cnut's Laws, ii. 70; Grimm, D. R. A. 8 Wins. Real P. 253. 
 
 .371. ° Ibid. 252. 
 
694 
 
 Remainder 
 
 LAW DICTIONARY. 
 
 Remainder 
 
 Contingent. 
 
 Trustees to 
 preserve con- 
 tingent re- 
 mainders. 
 
 B.'s estate happens to determine; 1 in other words, the existence of B.'s 
 estate is the only thing which prevents C.'s estate from coming into- 
 possession; and, therefore, whenever B. dies, the land passes to C, if 
 he is living, or to his heir or devisee if he. is dead. 
 
 § 4. If, however, A. had limited the land after B.'s estate to the heir 
 of C, a living person, the remainder would not be ready to come into 
 possession at once, because until C. dies there is no one to take the 
 remainder; for nemo est hares viventis, and during C.'s life there is no such 
 person as his heir. 2 So if land is limited to B. for life, and after his 
 death, if C. should then be living, to D., D.'s remainder is not vested, 
 because its coming into possession depends not merely on the determina- 
 tion of B.'s estate, but on its determination during C.'s life : hence such 
 a remainder is termed a contingent remainder, being "a remainder 
 limited so as to depend on an event or condition which may never happen 
 or be performed, or which may not happen or be performed till after 
 the determination of the preceding estate." 3 (See Contingent.) When 
 the uncertainty is removed, the remainder becomes vested. The possi- 
 bility that a remainder may never come into possession at all, does not 
 of itself make the remainder contingent : thus, if land be granted to A. 
 for life, remainder to B. for life, B.'s remainder is vested, although he may 
 die before A.; and consequently never come into possession. 4 
 
 § 5. Every contingent remainder was formerly liable to destruction by the 
 determination of the particular estate before the remainder vested : thus, 
 suppose land to be limited to A., a bachelor, for life, and after his death 
 to his eldest son and the heirs of his body, and in default of such issue to 
 B. and his heirs, then if A., before the birth of a son, forfeited or 
 surrendered his life estate, or merged it by purchasing B.'s remainder in 
 fee, the contingent remainder to his son would have been destroyed. 5 
 To prevent this, the following plan was adopted in settlements and 
 similar instruments giving contingent remainders to the children of a 
 tenant for life. Following the limitation of the estate to the tenant for 
 life, an estate, to commence on the determination of his estate by any 
 means during his life, was given to certain persons and their heirs 
 during his life as trustees to preserve the contingent remainders, for 
 which purpose they were if necessary to enter on the premises, but to 
 permit the tenant for life to receive the rents and profits during the rest 
 of his life. 6 These were called trusts to preserve contingent remainders. 
 But the stat. 8 & 9 Vict. c. 106, s. 8, enacted that contingent remainders 
 should not in future be liable to be destroyed by the forfeiture, surrender 
 or merger of any preceding estate of freehold ; and now by the act 
 40 & 41 Vict. c. 33, no contingent remainder created by any instrument 
 executed after the 2nd August, 1877, can be destroyed by the determina- 
 
 1 Feame's Cont. Rem. 216; Williams' 
 R. P. 255. 
 
 - "Williams, 267. 
 
 3 Fearne, I. 
 
 * Ibid. 216. 
 
 a Williams, 281 et seq. ; Fearne, 316. 
 But if the legal estate was outstanding in a 
 
 mortgagee the remainder would be pre- 
 served: Astley v. Micklethwait, 15 Ch. 
 D. 59. 
 
 6 Williams, R. P. 285 ; Elphinstone, 
 Conv. 323. The original form devised by 
 Sir O. Bridgman is given in Williams on 
 Seisin, 193. 
 
Remainder law dictionary. Remainder 695 
 
 tion of the particular estate before the remainder vests, if the remainder 
 would have been valid as a springing or shifting use, or executory devise, 
 or other limitation, had it not had a sufficient estate to support it as 
 a contingent remainder. Thus, if land is limited to A. for life, with 
 remainder to his eldest son who shall attain twenty-one, and A. dies 
 before any of his sons attains twenty-one, the remainder will nevertheless 
 take effect as soon as a son attains twenty-one. If, however, land is 
 limited to A. for life, with remainder to his eldest son who shall attain 
 twenty-five, the remainder will only take effect if the son attains twenty- 
 five before A.'s death, because such a limitation could not take effect as 
 an executory limitation by way of use or trust, being contrary to the rule 
 against perpetuities. So that the only difference now between a con- 
 tingent remainder and an executory devise is, that the former is not affected 
 by the rule against perpetuities, if it vests before the particular estate 
 determines. 1 But an equitable contingent remainder is void for remoteness 
 if it infringes the rule against perpetuities. 2 
 
 § 6. Contingent remainders are subject to a rule resembling that 
 against perpetuities, for an estate cannot be given to an unborn person for 
 life, followed by any estate to any child of such unborn person ; in such 
 a case the estate given to the child of the unborn person is void. 3 (See 
 Perpetuity.') 
 
 § 7. A remainder may be vested in interest and contingent as to the Vested in 
 property comprised in it. Thus if land is limited to A. for life, remainder S^u™o 
 to the children of B. in common in fee, each child of B. on his birth in amount. 
 A.'s lifetime takes a vested remainder in an undivided share, the amount 
 of which is contingent on the number of children of B. who may be born 
 in A.'s lifetime. If the remainder is to the children of B. now or here- 
 after to be born, whether in the lifetime of A. or not, the time for ascer- 
 taining the persons to take will also be the death of A., unless the remainder 
 is limited by an instrument executed after the passing of the Contingent 
 Remainders Act, 1877 (2nd August), in which case the time will be the 
 death of B. 
 
 § 8. Cross-remainders arise when land is given in undivided shares to Cross-re- 
 two persons, A. and B., for particular estates, in such a manner that upon mainders - 
 the determination of the particular estates in A.'s share, the whole of the 
 land goes to B., and vice versa, the remainderman or reversioner not 
 being let in till the determination of all the particular estates in both 
 shares. 4 Perhaps the commonest instance of cross-remainders occurs in 
 an ordinary settlement of land, (whether by deed or will), where, after 
 limiting an estate tail in the land to each of the sons of the tenant for 
 life in succession, provision is made for the failure of male issue by 
 limiting it to the daughters in equal shares as tenants in common in tail, 
 with a clause that on the death of any daughter without issue, her share 
 (both original and accrued) shall go to the other daughters in tail, so 
 
 1 Williams, R. P. 273 ; Williams on 3 Williams, 276. 
 
 Seisin, 205 ; Charley's R. P. Stat. 4 Co. Litt. 195 (b) ; Butler's note (1). 
 
 2 Abbissv. Burney, 17 Ch. D. 211. 
 
w. 
 
 Remand 
 
 LAW DICTIONARY. 
 
 Remit. 
 
 that if all the daughters but one die without issue, that one takes every- 
 thing, 1 and the remainderman or reversioner in fee takes nothing unless 
 and until they all die without issue. 
 
 REMAND. — To remand a defendant or prisoner in a proceeding 
 before a magistrate or justices of the peace, is to adjourn the hearing for 
 a certain time. 2 
 
 REMANET, in the practice of the Queen's Bench Division, is an 
 action which has been set down for trial at one sittings, but has not come 
 on, so that it stands over to the next sittings. 
 
 REMEDY is the means by which the violation of a right is prevented, 
 redressed, or compensated. Remedies are of four kinds: (i) by act of 
 the party injured, the principal of which are defence, recaption, distress, 
 entry, abatement and seizure ; (2) by operation of law, as in the case of 
 retainer and remitter; (3) by agreement between the parties, e.g., by 
 accord and satisfaction, and arbitration ; and (4) by judicial remedy, e.g., 
 action or suit. (See the various titles.) The last are called judicial remedies, 
 as opposed to the first three classes, which are extra-judicial. As to the 
 distinction between a remedy and a right, see Limitation, § 6 ; and as to 
 the distinction between equitable injuries and equitable remedies, see 
 Injury, note (3). 
 
 REMEMBRANCER. See Queen's Remembrancer. The Remem- 
 brancer of the city of London is parliamentary solicitor to the corpora- 
 tion, and is bound to attend all Courts of aldermen and common council 
 when required. 3 
 
 Remitting 
 cause. 
 
 Remission. 
 
 REMIT— REMISSION.— § 1. As in the majority of cases, a Court of 
 Appeal sits merely to decide questions of law, and has not the machinery 
 to carry its decisions into effect, it is obliged, when it reverses or varies 
 the decision of an inferior tribunal in such a way as to make further steps 
 necessary, to remit or send back the case to the inferior tribunal, so that 
 such steps may be taken there as are necessary to carry the decision into 
 effect. Thus, supposing a Court gives judgment for the defendant in an 
 action in which, if the plaintiff were successful, inquiries would have to be 
 taken, then, if the House of Lords or Privy Council reverses that decision 
 and gives judgment for the plaintiff, it remits the case to the lower Court 
 in order that the inquiries may be taken, or it may remit the case with 
 directions as to the relief to be given to the plaintiff. This is sometimes 
 called remitter. 4 
 
 § 2. In Privy Council practice, on a cause being remitted to the inferior 
 Court, a document called a remission is in some cases (e.g., ecclesiastical 
 
 1 Elphinstone's Conv. 340. As to cross 
 remainders in wills, see "Watson's Comp. 
 Equity, 13 1 6 et seq. 
 
 3 Stone's Justice, 115. 
 
 3 Pulling's Laws of London, 122. 
 
 4 Macpherson, Privy C. Pr. 149. 
 
Remitter law dictionary. Remote 697 
 
 appeals) required to be issued. It is a kind of writ commanding the 
 judge to resume and proceed with the cause. 1 
 
 REMITTER " is where a man hath two titles to lands or tenements, 
 viz. one a more antient title, and another a more latter title ; and if he 
 come to the land by a latter title, yet the law will adjudge him in by force 
 of the elder title, because the elder title is the more sure and more 
 worthie title ;" 2 but the second title must come to him without his own 
 act or default. 3 Thus, if A. disseises B., tenant in fee simple of land, 
 and then makes a lease of the land to him by deed poll for a term of 
 years, and B. enters under the lease, this entry is a remitter to B. ; that 
 is, he regains his original estate in fee simple, and is not considered as 
 entitled to the land by virtue of the lease to him by A. 4 But if B. took 
 an estate from A. by indenture, this would estop him from claiming any 
 estate, except that given him by the deed, and would thus prevent a re- 
 mitter, because a " deed indented is the deed of both parties, and there- 
 fore as well the taker as the giver is concluded." 5 (See Recontinuance.) 
 
 REMITTITUR DAMNA.- When one of the parties to an action 
 in the Queen's Bench Division obtains judgment for damages which he 
 is either not entitled to, or is willing to abandon, he makes an entry on 
 the record called a remittitur damna, by which he gives up or remits 
 those damages. Thus, if the jury give greater damages than the plaintiff 
 has claimed by his pleading, the mistake is rectified by entering a re- 
 mittitur damna as to the excess. So when the defendant, in an action of 
 replevin, obtains judgment by default, he is entitled not only to a return 
 of the goods replevied, but also to damages for being deprived of them, 
 which must be assessed by a writ of inquiry ; but the damages being 
 usually trifling in amount, they are generally remitted, in order to save 
 the expense of a writ of inquiry. 6 
 
 REMOTE. — § 1. Damage is said to be too remote to be actionable Damage, 
 when it is not the legal and natural consequence of the act com- 
 plained of: thus, if a master discharge his servant on account of 
 slanderous words spoken of him, the damage caused by the dismissal 
 is too remote to entitle the servant to damages in respect of it 
 against the person guilty of the slander, because it is not the legal and 
 natural consequence of the slander.' So damage caused by failure to 
 transmit a telegraphic message is too remote. 8 
 
 § 2. As to limitations being void for remoteness under the rule against 
 perpetuity, see Perpetuity; as to remote possibilities, see Possibility, § 2 ; 
 and as to remote heirs, see Heir, § 8. 
 
 1 Macpherson (App.) 129 ; Williams fy 4 Litt. § 695 ; Butler's note to Co. Litt. 
 
 Bruce's Admiralty, 319. Admiralty ap- 347 b. 
 
 peals no longer go to the Privy Council, 5 Co. Litt. 363 b. 
 
 but "remissions" seem to be still used in 6 Archbold, Pr. 805, 1209; Chitty, Pr. 
 
 ecclesiastical appeals. 994, 1093, 1517. 
 
 3 Litt. § 659. ' Vicars v. Willcock, 8 East, 1; Smith's 
 
 3 Co. Litt. 347 b. L. C. ii. 534. 
 
 8 Sanders v. Stuart, 1 C. P. D. 326. 
 
6g8 
 
 Removal 
 
 LAW DICTIONARY. 
 
 Renounce 
 
 Poor law. 
 
 Actions in 
 district regis- 
 tries. 
 
 County 
 Courts. 
 
 Inferior 
 Courts. 
 
 REMOVAL.— § i, The casual poor of a parish (as opposed to its 
 " settled " poor) are only entitled to relief in that parish until they can be 
 removed to their parish of birth or settlement, under an order of removal 
 made by two justices of the peace, unless they have acquired the status of 
 irremovability. 1 (See Poor; Settlement; Irremovability.) 
 
 § 2. An action commenced in the Central Office of the High Court 
 may be removed from London to a district registry for any sufficient 
 reason, 2 and an action proceeding in a district registry may be removed 
 into the Central Office by the defendant as of right at any time between 
 appearance and defence, except where the plaintiff has applied for and 
 obtained judgment under Order XIV. 3 (See Judgment, § 9.) 
 
 § 3. A cause may be removed from a County Court into the High 
 Court by writ of certiorari where the sum claimed exceeds a certain 
 amount, — (i) if the defendant gives security for the amount claimed with 
 costs, or (ii) if a judge of the High Court thinks it a fit case to be tried in 
 the High Court and the applicant gives security for costs. 4 As to the 
 removal of judgments, zee Judgment, § 17. 
 
 § 4. A cause may be in general removed from an inferior Court not of 
 record into the High Court by habeas corpus cum causa or certiorari (q. v.), 
 if the sum claimed exceeds 5/. and the defendant gives security for the 
 amount and costs. 5 
 
 RENDER. — § 1. To render is to yield or pay, as to render a rent. 6 
 So some kinds of heriots are said to lie in render, that is, the tenant is 
 bound to give the heriot to the lord. Hence profits are divided into 
 profits lying in render, or those which the tenant is bound to yield or pay, 
 such as rent, 7 and profits lying in prender, which the person entitled to 
 must take for himself. (See Profit, § 3.) 
 
 § 2. Where a mine, quarry or the like is leased, it is sometimes 
 stipulated that a certain proportion of the minerals gotten shall be 
 delivered to the lessor by way of rent or royalty. This is called a render. 8 
 It is a royalty in kind. (See Royally.) 
 
 RENEWAL. See Writ oj Summons. 
 
 RENOUNCE— RENUNCIATION.— A renunciation is a docu- 
 ment by which a person appointed by a testator as his executor, or a 
 person who is entitled to take out letters of administration to the effects 
 of an intestate in priority to other persons, renounces or gives up his right 
 to take out probate or letters of administration ; the document is filed 
 in the registry. 9 (See Retractation.) 
 
 1 Steph. Coram, iii. 57. 
 
 2 Rules of Court, xxxv. 13. 
 
 3 Ibid. II et seq. 
 
 4 Archbold, Pr. 141 2 ; stat. 19 & 20 
 Vict. c. 108, ss. 38, 39. 
 
 5 Archbold, Pr. 1404, and see Jud. Act. 
 1873, s. 90. 
 
 6 Litt. § 214. 
 
 7 Co. Litt. 142 a. 
 
 8 Elphin. Conv. 264. 
 
 9 Browne's Probate Practice, 138 ; 
 Coote's Probate Pr. 192 ; Williams on 
 Executors, 270 et seq. 
 
Rent law dictionary. Rent 699 
 
 RENT is a periodical payment due by a tenant of land or other 
 corporeal hereditament ; it is usually payable in money, but it may also 
 be reserved in fowls, wheat, spurs or the like. 1 When land is let free of Nominal or 
 rent and the landlord wishes to be able to obtain an acknowledgment of P e PP ercon1, 
 the tenancy when necessary, a nominal rent is frequently reserved, 
 consisting of one peppercorn a year to be paid when demanded. 3 
 
 Rents are of several kinds : — 
 
 (i) § 2. Rent service is always incident to tenure ; in other words, it is Rent service. 
 that which is due when one man holds land of another by fealty (or any 
 other service) and rent ; as where a man holds land of another in fee 
 simple at a rent reserved before the Statute Quia Emptores (see Fee 
 Farms), or where an owner of land in fee at the present day leases it to 
 another for 99 years at a yearly rent. In the latter case the rent is an 
 incident to the reversion of the lessor or reversioner and passes with it if 
 he grants it to another. 3 Payment of a rent service may be enforced by 
 distress (q. v.)} " It is called a rent service because it hath some 
 corporall service annexed unto it, which at least is fealty," 5 but at the 
 present day fealty is never exacted. 6 § 3. If the rent is severed from the 
 reversion (as where either is assigned without the other) it becomes a 
 rent in gross. 7 § 4. A rack rent is a rent of the full annual value of the Rack rent, 
 land, or near it. 8 § 5. When land is leased to a person on condition that Ground rent, 
 he erects certain buildings on it, the rent reserved (which is small in 
 comparison with the rent of the land when built on) is called the ground 
 rent. When the lessee has erected the building, he may sub-let at a rack 
 rent (calculated at an amount sufficient to repay to him with a profit the 
 amount expended in building the house and also to cover the ground 
 rent), or he may take from the sub-lessee a fine amounting to not much 
 less than what he has expended on the house, reserving a rent a little 
 larger than the ground rent ; this is generally called an improved ground 
 rent. 9 § 6. When a mine, quarry, brick-work or similar property is leased, Dead rent. 
 the lessor usually reserves not only a fixed yearly rent but also a royalty or 
 galeage rent, consisting of royalties (q. v.), varying with the quantity of 
 minerals, bricks, &c. produced during each year. In this case the fixed 
 rent is called a dead rent. A footage rent is a rent payable for every Footage rent. 
 acre a foot thick of minerals, and so in proportion for a greater or less 
 thickness. A spoil-bank rent is a sum payable according to the quantity Spoil-bank 
 of rubbish from a mine deposited on land belonging to the lessor. 10 ,l " 
 
 (ii) § 7. A rent charge is where a rent is payable in respect of land to Rent charge. 
 a person who has no reversion in it, and a right to distress is given him 
 by express agreement between the parties : as where a man (since Quia 
 Emptores) conveys land in fee to another, reserving to himself and his 
 
 1 Co. Litt. 142 a ; Woodfall's Landlord 6 Williams, R. P. 245. 
 & Tenant, 338 ; Fawcett, L. & T. 109. ~ Co. Litt. 148 b. 
 
 2 Williams, R. P. 246. " Bl. Comm. ii. 43. 
 
 3 Litt. § 229. 9 Elphinstone, Conv. 245. 
 * Ibid. § 213. 10 ibid. 264. 
 
 3 Co. Litt. 142 a, £7 b. 
 
700 
 
 Repatriation 
 
 LAW DICTIONARY. 
 
 Repleader 
 
 Rent seek. 
 
 Tithe rent 
 charge. 
 
 Fee farm and 
 quit rents. 
 
 Customary, 
 assise, and 
 chief rents. 
 
 heirs a certain rent with the right of distress, or if a man seised of land 
 grants to another a yearly rent issuing out of it with a clause of distress. 1 
 (iii) § 8. Formerly where a rent (not being a rent service) was re- 
 served or created without a clause of distress, the grantee had no remedy 
 by distress, and hence the rent was called a rent seek {redditus siccus, a 
 dry rent). 2 So if the owner of a rent service granted the rent to another, 
 reserving the fealty to himself, the grantee had only a rent seek. 3 But 
 this distinction between rent charges and rent seek was abolished by stat. 
 4 Geo. z, c. z8, s. 5, which gave the owner of every rent seek a right of 
 distress for it : so that every rent created by grant is now in effect a rent 
 charge. 4 
 
 § 9. Under the Tithe Commutation Acts, a rent charge varying with 
 the price of corn has been substituted for the right to take tithes in kind. 
 An extraordinary tithe rent charge is payable in respect of highly pro- 
 ductive land, such as hop-grounds and market gardens. 5 (See Tithes.) 
 
 § 1 o. Before the Statute Quia Emptores, a person could convey land in 
 fee simple to be held of him and his heirs, and reserving a rent service 
 from the grantee. Some instances of rents thus created still exist either 
 under the name of fee farm rents (see Fee Farm) or of quit rents, so called 
 because in consideration of their payment the tenants are quit or 
 discharged of all other services. 6 Such rents are now found almost only 
 in manors, being frequently due both by the freeholders and the copy- 
 holders : they are sometimes called customary rents, being due by 
 custom ;' or rents of assise, from being fixed in amount ; and those of the 
 freeholders are frequently called chief rents. 8 
 
 Every rent, except a rent service incident to a reversion, is an incor- 
 poreal hereditament. It may belong to a man in fee, or in tail, or for 
 any other estate. 9 
 
 See Annuity ; Apportionment. 
 
 Etymology.]— Norman-French, rented from render, to yield ; Latin, reddere. (See 
 Render.) 
 
 REPATRIATION takes place when a person who has been ex- 
 patriated regains his nationality." Under sect. 8 of the Naturalization 
 Act, 1870, a natural -born British subject who has become a statutory 
 alien (that is, expatriated himself) under the act may repatriate himself 
 in the same way as an ordinary alien may obtain a certificate of natura- 
 lization. (See Naturalization.) 
 
 REPLEADER.— In the old common law practice judgment of repleader was given 
 in an action when the pleadings had failed to raise a definite and material issue. (See 
 
 1 Litt. §§ 217, 218. 
 
 3 Ibid. 
 
 3 Ibid. § 225. See, however, Co. Litt. 
 153 a, where a rent seek which may be 
 distrained for is mentioned. 
 
 1 Dodds v. Thompson, L. R., 1 C. P. 
 
 J 33- 
 
 « Stat. 6 & 7 Will. 4, c. 71. 
 6 Bl. Comm. ii. 43. 
 
 7 See Hastings v. Hurley, 16 Ch. D. 
 730. 
 
 8 Bl. 42 ; Williams on Seisin, 26 ; Elton 
 on Copyholds, 190. 
 
 9 Williams, R. P. 331. As to barring 
 an estate tail in a rent, see Butler's note 
 (2) to Co. Litt. 298 a ; Shelford's R. P. 
 Stat. 321. 
 
 10 Britton, 105 b. 
 
 11 Rep. on Natur. App. 5. 
 
Replevin law dictionary. Replevin 701 
 
 Pleading!) Its effect was that the pleadings were begun again at the point where the 
 defect first occurred. 1 
 
 REPLEVIN— REPLEVISOR— REPLEVY.— § 1. Replevin is the 
 remedy which may be adopted by a person in almost all cases in which 
 chattels are unlawfully taken from him ; but it is not often adopted, 
 except in cases of wrongful distress for rent or damage feasant, when it is 
 brought for the purpose of trying the legality of the distress : it may also 
 be used to decide a question of title to land or other hereditaments. (See 
 Distress.) 
 
 § 2. The first step is for the replevisor or distrainee {i. e., the person 
 whose goods have been distrained) to obtain a replevy of the goods, 
 which he does by procuring from the registrar of the County Court 
 of the district a warrant directing the high bailiff to cause the goods Warrant of 
 to be delivered to him : this is granted on the replevisor giving security rep evy " 
 (usually a bond with two sureties) to commence and prosecute an action Replevin 
 for the wrongful taking against the distrainor, either in the County Court bond- 
 or in the High Court, and to return the goods to the distrainor if 
 a return shall be adjudged. 2 Under the old practice, if this action (which Action of 
 is called an action of replevin) was brought in one of the superior Courts re pl evm - 
 of common law, proceedings up to declaration were the same as in an 
 ordinary action, the replevisor being the plaintiff (see Actor) ; but where, 
 as was usually the case, the defendant claimed a return of the goods 
 replevied, the subsequent pleadings were peculiar. If the defendant 
 insisted that they were lawfully taken by him, he either made avowry Avowry. 
 i. e., he avowed taking the distress in his own right, and set forth the 
 reason of it (as for rent in arrear), or he made conusance or cognizance, Conusance. 
 i. e., he acknowledged the taking, but insisted that it was lawful, as he did 
 it by the command of one who had a right to distrain ; 3 the plaintiffs 
 next pleading was called a plea in bar, that of the defendant a replication 
 and so on. 4 Under the present practice, the pleadings in an action 
 of replevin are similar to those in ordinary cases. 5 (See Pleading.) If 
 the plaintiff obtains judgment, he retains the goods and is awarded 
 damages for the unlawful taking ; if the defendant is successful, he obtains 
 judgment for a return of the goods taken, formerly enforceable by a writ 
 called de retorno habendof now by a writ of delivery (q. v.y (See also Writ 
 of Recaption.) 
 
 § 3. Formerly, the only remedy in cases of wrongful distress was the writ of re- 
 writ of replevin (replegiari facias), under which the proceedings were in plevin. 
 the sheriffs County Court; but by 52 Hen. 3, c. 21, the sheriff was 
 authorized to grant replevins without this writ. If the goods had been Capias in 
 eloigned (q. v.), the replevisor might have a writ of capias in wither- withernam, 
 nam (q. v.), under which the sheriff took the distrainor's own goods as a 
 
 1 Chitty, Pr. 1553. 3 Bl. Comm. u. 150. 
 
 1 Smith's Action, 434 ; Chitty, Pr. 108 1 4 Smith's Action, 439 ; Tidd's Pr. 645. 
 
 et sea. ; Pollock's County Court Practice, s Rules of Court, xix. 1 ; Woodfall, 469, 
 
 282 et sea.; Woodfall's Landlord & 471 ; Archbold, Pr. 890. 
 Tenant, 454 et sea.; stat. 19 & 20 Vict. 6 Smith's' Action, 440. 
 
 c. 108. 7 Woodfall, 482. 
 
702 
 
 Replevisable 
 
 LAW DICTIONARY. 
 
 Reply 
 
 Second de- 
 liverance. 
 
 Return irre- 
 plevisable. 
 
 punishment. If the plaintiff in an action of replevin was nonsuited he was 
 allowed a writ of second deliverance, under which the goods were again 
 delivered to him ; but if he was nonsuited in the second action, the 
 defendant obtained a writ of return irreplevisable, which was an absolute 
 bar to the plaintiff's claim. 1 The two latter proceedings are, it would 
 seem, impliedly abolished by the new rule respecting nonsuits." 
 
 Etymology and History.] — Old French, pleige or plege* (law Latin, plegius), a 
 pledge or bail ; plevine,* a giving security, plevir (law Latin, plegiare), to pledge. The 
 most probable etymology is that of Diez, 5 who derives the phrase plevir la fey, 6 to 
 pledge one's word (afterwards shortened into plevir), from prcebere fidem, pleige from 
 prtzbium. Replevin, therefore, is re-gaining possession by giving security (plevine)." 1 
 
 Divorce 
 practice. 
 
 Criminal 
 practice. 
 
 In pleading. 
 
 On trial or 
 argument. 
 
 REPLEVISABLE. — Goods for which replevin proceedings can be 
 taken are said to be replevisable. Where goods are delivered under a 
 contract, they are irreplevisable, because a wrongful taking is essential to 
 replevin proceedings. 8 
 
 REPLICATION* — § i. In matrimonial suits in the Probate, Divorce 
 and Admiralty Division of the High Court, the replication is the plead- 
 ing filed by the petitioner in reply to the answer of the respondent. 9 
 
 § 2. In criminal prosecutions by indictment or information, the repli- 
 cation is the pleading following the plea (q. v.). 10 
 
 § 3. Under the old practice of the Chancery and Common Law Courts, the replication 
 was the pleading filed or delivered by the plaintiff in answer to the defendant's plea or 
 answer. In Chancery, however, the replication had for many years been merely a 
 joinder of issue (q. v.), special replications (which were used where the defendant intro- 
 duced new matter into his plea or answer) having been superseded by the practice of 
 amending the bill. 11 (See Amendment ; Pleading; Reply.) 
 
 REPLY, — § i. In its general sense, a reply is what the plaintiff, 
 petitioner or other person who has instituted a proceeding says in 
 answer to the defendant's case. 
 
 § 2. In an action in the High Court the reply is the pleading delivered 
 in answer to the defendant's Statement of Defence. Usually the reply is 
 delivered by the plaintiff, but if the defendant has set up a counter- 
 claim against any person other than the plaintiff, the answer of that 
 person to the counter-claim is called a reply, 13 although it is rather in the 
 nature of a Statement of Defence. In simple actions the reply is usually 
 a mere joinder of issue (q. v.). 
 
 § 3. When a case is tried or argued in Court, the speech or argument 
 of the plaintiff in answer to that of the defendant is called his reply. In 
 some cases the plaintiff is not entitled to reply. (See Trial; Opening; 
 Right to begin.) 
 
 1 Bl. iii. 147 et seq. ; Chitty, Pr. 1086 ; 
 Woodfall's L. & T. 485. 
 
 2 Rules of Court, xli. 6. 
 
 3 Britton, 55 a. 
 
 4 Ibid. 54 b. 
 
 6 Grimm, ii. 401. 
 
 6 Cf. plevine par sa fey, Britton, 180 a. 
 
 7 Co. Litt. 145 b. 
 
 8 Galloway v. Bird, 4 Bing. 299 ; Men- 
 nie v. Blake, 6 El. & B. 842. 
 
 9 Browne on Divorce, 228. 
 
 10 Archbold, Crim. PI. 135. 
 
 11 Mitford, PI. 321 ; Darnell's Ch. Pr. 
 73 1, et seq. 
 
 13 Rules of Court, xxii. 8. 
 
Report law dictionary. Representation 703 
 
 As to affidavits in reply, see Affidavit, § 2. 
 
 § 4. Under the old practice of the Chancery and Common Law Courts, 
 to reply was to file or deliver replication (q. v.). 
 
 REPORT. — I. § 1. When a question is referred to a referee under Referee, 
 the Judicature Act, 1873, his decision is given in the form of a report to 
 the Court. 1 (See Refer, §§ 3 et seq. ; Referee.) 
 
 § 2. The Masters in Lunacy embody the results of their inquiries as to 
 the estates or persons of lunatics in the form of reports to the Lord 
 Chancellor, which require to be confirmed before they can be carried 
 into effect. 2 (See State of Facts.) As to reports in Admiralty actions, see 
 Registrar and Merchants. 
 
 § 3. Under the old practice in Chancery, when an inquiry was referred Master in 
 to the Master, he gave the result in a report, which was filed in an office, c ancer y - 
 called for that reason the Report Office. 3 In more modern practice, chief Report office, 
 clerks' certificates, petitions, &c. were also filed there 4 (see Certificate, 
 § 4 ; Masters, § 3). After the abolition of the Masters in Chancery, the 
 Report Office was added to that of Records and Writs by stat. 1 8 & 1 9 Vict. 
 c. 134, 6 and has now been amalgamated with the Central Office 6 (q.v.). 
 
 § 4. The judgment of the Judicial Committee of the Privy Council on Report of 
 an appeal or reference is technically a report to the Queen in Council, Judicial Com- 
 giving the opinion of the Court on the question involved in the case. 7 
 (See fudicial Committee ; Refer, § 8.) 
 
 II. § 5. Report also signifies a published account of a legal proceed- Law Reports, 
 ing, giving a statement of the facts, the arguments on both sides, and the 
 reasons the Court gave for its judgment. Reports by barristers published 
 with the reporter's name or otherwise sanctioned by persons of standing 
 in the profession are cited in argument as precedents, 8 and are of more 
 or less authority according to the reputation of the reporter and of the 
 judges whose decisions are reported. (See Year Books.) 
 
 A list of the principal reports will be found in the list of abbreviations 
 at the beginning of the present work. 
 
 REPRESENTATION.— I. § 1. One person is said to represent By agent, 
 another when he takes his place. Thus, an agent represents his princi-* eir ' 
 pal, an heir his ancestor, an executor his testator, and an administrator 
 the intestate whose estate he administers. (See Representative.) As to 
 parliamentary representation, see House of Commons ; House of Lords. 
 
 § 2. In the law of intestacy, the rule of representation is that rule of By descend- 
 law by which the children or other descendants of a deceased person, s " 
 who, if he had lived, would have taken property by virtue of an intestacy, 
 stand in his place, so as to take the property which he would have taken 
 if he had lived. As regards realty, the rule of representation is universal, 
 
 1 Jud. Act, 1873, s. 56; Rules of March, 3 Gilbert, Chanc. 168. 
 
 1879. See an example of a report in Schu- 4 Daniell, Ch. Pr., Index, s. v. 
 
 ster v. Fletcher, 3 Q. B. D. 418 ; for the 5 Second Rep. Legal Dep. Comm. 44. 
 
 form of judgment, see Jud. Act, 1875, 6 Judicature (Officers) Act, 1879, s. 5. 
 
 sched. App. D., No. 6. " ' Macpherson, Privy C. Pr. 148. 
 
 2 Pope on Lunacy, 33. B Bl. Comm. i. 71 ; Co. Litt. 293 a. 
 
704 
 
 Representation 
 
 LAW DICTIONARY. 
 
 Representation 
 
 Contract. 
 
 Insurance. 
 
 Public Wor- 
 ship Act. 
 
 namely, that all lineal descendants represent their ancestor (see the fourth 
 canon of descent, Descent, § 5). 1 In the case of personalty, representation 
 only takes place (i) where the intestate has left children and grand- 
 children by deceased children, in which case the grandchildren stand in 
 their parents' place ; and (ii) where the intestate has left a mother, or a 
 brother, or sister, and also nephews or nieces by a deceased brother or 
 sister, in which case the nephews or nieces take their parent's share. 
 (See Distribution ; Next of Kin ; Per Capita.) 
 
 II. § 3. In the law of contracts, a representation is a statement or 
 assertion made by one party to the other, before or at the time of the 
 contract, of some matter or circumstance relating to it. In ordinary 
 contracts a representation as such has no legal effect, even if untrue, and 
 even if the person making it knew it to be so. Thus if a vendor of goods 
 simply represents them as worth a high price, while in fact they are not, 
 this gives the purchaser no right either to rescind the contract or to bring 
 an action of damages. (See Caveat Emptor.) But a representation may 
 take the form of a warranty or condition, or may amount to fraudulent 
 or negligent misrepresentation, all of which have important legal effects. 2 
 (See the respective titles.) § 4. Contracts of insurance being contracts 
 uberrima fidei {q. v.), representations which relate to material facts con- 
 nected with an insurance must be complied with, but a substantial com- 
 pliance is sufficient. Thus where the assured asserted that his vessel 
 mounted twelve guns and twenty men, and the ship sailed with less than 
 this number of men and guns, but carried in addition a number of boys 
 and swivels, which made her force in fact greater than that stated, it was 
 held that, this being a representation and not a warranty, and having 
 been substantially complied with, the underwriters were liable. 3 
 
 III. § 5. Under the Public Worship Act, 1874, complaints against 
 incumbents, &c. on matters within that act, are made by a document 
 called a representation, containing a statement of the nature of the com- 
 
 1 As to gavelkind land, see Hook v. 
 Hook, 1 H. & M. 43. 
 
 There is also another and, in the opinion 
 of many, an incorrect use of the term re- 
 presentation in the law of descent. If A. 
 acquires land by purchase and dies intestate, 
 leaving two daughters, B. and C, his land 
 descends to them as coparceners. If B. 
 dies intestate, leaving a son D., the ques- 
 tion arises to whom will her share descend ? 
 The Inheritance Act says that in case of a 
 descent, the title to inherit shall be traced 
 from the purchaser, who in this case is A., 
 so that the provisions of the act would 
 seem to be fulfilled by making B.'s share 
 descend to C. and D. in equal shares, D. 
 standing in the place of his deceased mother. 
 (Hayes' Conv. i. 314.) No doubt this result 
 would be absurd, the obvious conclusion 
 being that the legislature did not contem- 
 plate such a case. It has, in fact, been 
 decided that in the case above supposed 
 B.'s share descends to D. (Cooper v. 
 France, 14 Jur. 214; 19 L. J., Ch. 313.) 
 
 No reasons are given for the decision except 
 that the same result would have followed 
 under the old law, and that the act did not 
 intend to make an alteration. In addition 
 to this reason, however, it is argued by 
 Mr. Joshua Williams (R. P. 1 13, and App. 
 B. ; Williams on Seisin, 79) that the case 
 is governed by the rule of representation, 
 D. standing in the place of his deceased 
 mother. It is quite clear that the rule of 
 representation referred to is not the ordinary 
 rule stated in the text, because that only 
 applies to the case of a person pre-deceasing 
 the intestate. It is true that under the old 
 law, in certain cases, if a coparcener died 
 intestate her share descended to her issue, 
 but this was by virtue of a special rule 
 which has never been adequately explained. 
 (Solicitors' Journal, 23rd February, 1878.) 
 
 2 Behn v. Burness, 3 B. & S. 75 1 ; Pol- 
 lock on Contract, 445, 476. 
 
 3 Maude & Pollock, Merch. Shipp. 395, 
 citing Pawson v. Watson, 2 Cowp. 785. 
 
Representative LAW dictionary. Republication 705 
 
 plaint, and signed by the person or persons making it. 1 (See Public 
 Worship Regulation Act.) 
 
 REPRESENTATIVE is a person who represents or takes the place 
 of another. The executor or administrator of a deceased person is called Personal. 
 his personal representative, because he represents him in respect of his 
 personal estate. For a similar reason an heir is sometimes called the Real, 
 real representative of his ancestor. 
 
 As to representative peers, see House of Lords. 
 
 § 2. A representative action or suit is one brought by a member of a Representa- 
 class of persons on behalf of himself and the other members of the class. tiv . e aetion or 
 In the proceedings before judgment the plaintiff is, as a rule, dominus litis 
 (q. v.), and may discontinue or compromise the action as he pleases ; there- 
 fore a member of the class who is dissatisfied with an order obtained by 
 the plaintiff cannot appeal against it ; he may, however, apply to be made 
 a defendant, and, in a proper case, might obtain the conduct of the pro- 
 ceedings. 2 As soon as judgment is given for the plaintiff he ceases to be 
 dominus litis, and all members of the class who are willing to contribute 
 to the expenses of the suit may join in, and take the benefit of, the 
 subsequent proceedings. 3 
 
 REPRIEVE, in criminal procedure, is the withdrawal of a sentence 
 for a time, whereby the execution of it is suspended. It may be granted 
 either by the Court or by the crown. In two cases the Court is bound 
 to grant a reprieve, namely, where a female prisoner under sentence is 
 pregnant, and where a prisoner becomes insane after judgment.' 1 (See 
 Jury, § 10.) 
 
 REPRISAL is the same thing as recaption {q.v.). 
 
 REPRISALS, in international law, include every species of means, Special, 
 short of war, employed by one state to procure redress for an injury 
 committed by another state. The term therefore includes embargo and 
 retorsion (q. v.). Reprisals are negative when a state refuses to fulfil an 
 obligation, and positive when they consist in seizing the subjects or pro- 
 perty of the offending state. 5 § 2. The reprisals above described are General, 
 -sometimes called special, as opposed to general reprisals, which are only 
 used in time of war, and consist in authorizing any individuals whatever, 
 whether suffering from private grievances or not, to act against the 
 subjects of the opposed state. 6 (See Privateers; Letters of Marque!) 
 
 REPUBLICATION of a will is where it is re-executed by the testator. 
 This is generally done when the will has been revoked and the testator 
 wishes to revive it. 7 (See Publication ; Revival.) 
 
 1 Sect. 8. iv. 394. 
 
 a Watson v. Cave, 17 Ch. D. 19. 6 . Manning's Law of Nations, 145. 
 
 s Daniell, Ch. Pr. 215, 694. 6 Ibid. 155. 
 
 * Archbold, Crim. PI. 187; Bl. Comm. 7 Williams on Executors, 198. 
 
 S. Z 7. 
 
o 
 
 706 Repugnant LAW dictionary. Request 
 
 REPUGNANT means contrary to or inconsistent with. Thus, if A. 
 grants land to B. in fee, upon condition that he shall not alien it, this 
 condition is " repugnant to the estate," that is, inconsistent with the 
 nature of a fee simple, and therefore void. 1 
 
 As to repugnant gifts by deed or will, see Inconsistency. 
 
 REPUTATION.— § 1. In the law of evidence, matters of public and 
 general interest, such as the boundaries of counties or parishes, rights of 
 common, claims of highway, &c, are allowed to be proved by general 
 reputation, e. g., by the declarations of deceased persons made ante litem 
 motam, by old documents, &c, notwithstanding the general rule against 
 secondary evidence. 2 § 2. So evidence of the general reputation of a 
 family, as proved by a surviving member of it, is admissible in questions of 
 pedigree. 3 
 
 As to a manor by reputation, see Manor, § 2 . 
 
 As to personal reputation, see Libel ; Character ; Slander. 
 
 REPUTED OWNERSHIP.— The doctrine of reputed ownership 
 was first introduced into the bankrupt laws by the statute 21 Jac. 1, c. 19, 
 s. 11, with the object of protecting the creditors of a trader from the 
 consequences of the false credit which he might acquire by being 
 suffered to have in his possession, as apparent owner, property which does 
 not really belong to him. If the circumstances under which the property 
 is in the trader's possession, order or disposition, are such as to lead to 
 a fair and reasonable inference amongst persons likely to have dealings 
 with him, that he is the owner, and if the real owner is a consenting 
 party, then on the trader becoming bankrupt, that property, is divisible 
 among his creditors. 4 The doctrine does not apply to property comprised 
 in a registered bill of sale, 5 nor does it apply in cases where there is 
 a custom or usage of trade rebutting the presumption of ownership. 6 (See 
 Order and Disposition.) 
 
 REQUEST. — § 1. A request may give rise to an implied or tacit 
 promise. Thus, if I request a workman to do work for me, I tacitly 
 agree to pay him for it. And if I request a person to do something for 
 me which would not of itself give rise to a tacit promise to pay him, and 
 after he has done it I promise to pay him, this promise couples itself with 
 the antecedent request and makes a good contract.' 
 Quasi- § 2. In some cases a request will itself be implied by the law (quasi- 
 
 request. request) : thus, if A. has been compelled to do that which B. is legally 
 
 compellable to do, the law will imply a request by B. to A. to do the act. 8 
 (See Contract, §§ $et seq.; Promise; Quasi-Contract : also Courts of Request ; 
 Letters of Request?) 
 
 1 Co. Litt. 206 b. 5 Baiikr. Act, 1869, s. 15, § 5 ; Bills of 
 
 2 Best on Evidence, 632. Sale Act, 1878, s. 20. 
 
 3 lUd. 634. G Ex parte Lovering, L. R., 9 Ch. 621. 
 
 4 Robson's Bankruptcy, 412, 413; In '< Chitty on Contracts, 49; Pollock on 
 re Blanshard, 8 Ch. D. 601. Contract (2nd edit.), 28. 
 
 8 Chittv, 50. 
 
Requisitions on Title law dictionary. Res infer alios acta 707 
 
 REQUISITIONS ON TITLE.— When a contract for the sale of 
 real property has been entered into, and the vendor has delivered the 
 abstract of title to the purchaser, the latter goes through the abstract, and 
 if there are any defects in or questions as to the vendor's title, he puts his 
 objections into writing and delivers them to the vendor. These are 
 called requisitions, because they require the vendor to remove the defects 
 or doubts pointed out. A formal contract of sale always stipulates that the 
 requisitions shall be made within a certain time after the delivery of the 
 abstract. It also generally stipulates that the title shall commence with 
 a certain document, and that no requisitions shall be made in respect of 
 the earlier title ; not unfrequently it is provided that no requisitions shall 
 be made in respect of some specified defect in the title which the vendor 
 is unable to remove. 1 (See Vendors and Purchasers.') 
 
 RES, in an Admiralty action in rem, is the ship, cargo or other 
 property proceeded against. 2 (See Action, §11; Arrest, § 7 ; Bait, § 4 ; 
 In Personam, §5.) 
 
 RES GESTAE are the facts surrounding or accompanying a transaction 
 which is the subject of legal proceedings. The phrase is chiefly used in 
 the law of evidence, the rule being, that evidence of words used by a 
 person may be admissible (notwithstanding the general rule against 
 derivative evidence), on the ground that they form part of the res gestae, 
 provided that the act which they accompanied is itself admissible in 
 evidence, and that they reflect light upon or qualify that act. 3 Therefore, 
 where a woman went to be examined by a surgeon with a view to effect- 
 ing a policy of insurance on her life, and a few days afterwards stated to 
 a friend that she was ill when she went, and that she was afraid she 
 would not live until the policy was made out, and then her husband 
 could not get the money: evidence of these statements was held 
 admissible in an action on the policy, on the ground that as the 
 woman's previous statements to the surgeon were admissible in evidence, 
 her statements to her friend were also admissible, being part of the res 
 gestae, that is, as following and explaining her previous statements.* 
 Similarly on an indictment for treason in leading on a riotous mob, 
 evidence of the cry of the mob is admissible, because it forms part of the 
 res gestae. 5 
 
 RES INTER ALIOS ACTA. — The rule res inter alios acta alteri 
 nocere non debet means that persons are not to be prejudiced by the acts or 
 words of others, to which they were neither party nor privy, and which 
 they consequently had no power to prevent or control. In other words, 
 a person is not to be affected by what is done behind his back. 6 
 
 1 Greenwood's Conv. (5th edit.), 7, 31 Tatham, 7 A. & E. 313 ; 5 CI. & F. 670. 
 et seq. ; Dart, V. & P. 124 et seq. * Aveson v. Lord Kinnaird, 6 East, 188. 
 
 2 Roscoe's Admiralty, 187. 5 Best on Evid. 630. 
 
 3 Best on Evidence, 663 ; Wright v. 6 /bid. 150, 643. 
 
 7. Z 2 
 
708 Res Judicata LAW DICTIONARY. Rescue 
 
 RES JUDICATA. — Res judicata pro veritate accipitur : a judicial de- 
 cision is conclusive until reversed, and its verity cannot be contradicted. 
 (See Record.) But a judgment inter partes only binds the parties and 
 privies to it ; as regards other persons, it is res inter alios judicata} (See 
 In Personam ; Res inter alios acta.) 
 
 RE -SALE is where a person who has sold goods or other property 
 to a purchaser sells them again to someone else. Sometimes a vendor 
 reserves the right of re-selling if the purchaser commits default in pay- 
 ment of the purchase-money, and in some cases (e. g., on a sale of perish- 
 able articles) the vendor may do so without having reserved the right. 3 
 
 RESCIND— RESCISSION.— § i. Rescission, or the act of re- 
 scinding, is where a contract is put an end to by the parties, or one of 
 them. § 2. Thus, a contract is said to be rescinded where the parties 
 agree that it is to be at an end, 3 or where one of the parties to a con- 
 tract is entitled to avoid it by reason of the act or default of the other 
 party, and elects to do so, either by giving- notice of his election to the 
 other party, by setting up the invalidity of the contract as a defence to 
 proceedings taken by the other party, or by instituting proceedings to 
 have the contract judicially set aside (judicial rescission). 4 (See Res- 
 i titutio in Integrum.) § 3. The most frequent instances of rescission by 
 
 one party occur where there is fraud or mistake {see. Fraud, § 17; Mistake, 
 § 10), and in certain cases where there is a continuing contract, and 
 a failure of performance by one of the parties in an essential part of 
 the contract. Thus, if a person who has contracted to supply a certain 
 quantity of goods every month fails to supply a sufficient quantity the 
 first month, the other party is entitled to rescind the contract. 6 Similarly, 
 if a party to a contract fails to comply with a condition precedent, or by 
 his own act makes the performance of the contract impossible, the other 
 party may in general rescind the contract. (See Affirm.) 
 
 RESCOUS = rescue 7 (q. v.). 
 
 Etymology.] — Old French, rescosse, from rescorre, to release ; late Latin, reexcutere, 
 to shake off again. 3 
 
 Of person: RESCUE. — I. § 1. Rescue is the act of forcibly and knowingly free- 
 
 civil arrest : ing a person from an arrest or imprisonment. 9 In the case of a person 
 arrested in a civil action, the rescuer is liable to an action by the plaintiff 
 for the loss thereby caused to him, and to attachment for contempt of 
 
 1 Best on Evidence, 734. 6 Chitty, 676. 
 
 ~ See Benjamin on Sales, 643 ; Chitty s Ibid. ; Tully v. Howling, 2 Q. B. D. 
 
 on Contracts, 394 ; Maclean v. Dunn, 4 1-82. 
 
 Bing. 722. -> Litt. § 237; Co. Litt. 47 b, 160 b; 
 
 3 Chitty on Contracts, 675 ; Leake on Britton, 108 b. 
 
 Contracts, 413 ; James v. Cotton, 7 Bing. e Diez, Etym. Worth. ^ . Scuotere; Miil- 
 
 266. ler, Etym. Worth, v. Rescue. 
 
 4 Pollock on Contract, 489. s 31. Comm. iv. 131 ; Co. Litt. 160 b. 
 
Reservation laav dictionary. Re-Settlematt 
 
 Court. 1 § 2. In the case of a prisoner arrested in criminal proceedings, criminal 
 the punishment for a rescue varies with the degree of the offence for arrest - 
 which the person rescued was in custody. 3 
 
 II. § 3. Rescue also signifies the act of forcibly taking back goods Of goods, 
 which have been distrained and are being taken to the pound. If the 
 distress was unlawful, the owner may lawfully rescue the goods ; 3 if the 
 distress was lawful, the rescuer is liable to an action by the distrainor. 4 
 (See Double Damages; Pound; Pound-breach, § 4.) A rescue in law is Rescue in 
 where the cattle, &c. come again into the possession of the owner with- law - 
 out his act, and he refuses to deliver them to the distrainor. 5 
 
 Etymology.]— See Rescous. 
 
 RESERVATION " is a clause of a deed whereby the feoffor, donor, 
 lessor, grantor, &c. doth reserve some new thing to himself out of that 
 which he granted before [by the same deed]. And this doth most 
 commonly and properly succeed the tenendum."* (See Deed, § 3.) 
 
 The commonest instance of a reservation is the rent in an ordinary 
 lease. 7 
 
 A reservation, in the proper sense of the word, cannot, it seems, be 
 validly made in favour of a stranger to the deed, 8 but the same effect may 
 be produced by a grant, covenant or condition in favour of the stranger, 
 for he need not now 9 be a party to the deed. And it is said that a reser- 
 vation to a stranger creates an implied covenant in his favour. 10 
 
 As to the difference between a reservation and an exception, see 
 Exception. 
 
 RE-SETTLEMENT.— Where land has been settled on a mar- 
 riage, and the eldest son has attained twenty-one during his father's 
 lifetime, and thus acquired an estate tail in remainder, it is usual for the 
 father as protector (q.v.) to give his consent to the son's estate tail being 
 barred on condition of a re-settlement being made. The terms of such a 
 re-settlement generally are that the estate of the son shall be cut down to 
 an estate for life, with remainder to his children (if he should marry) 
 successively in tail, subject to the usual provisions for his widow and 
 younger children (see Jointure; Portion), while the father on his side 
 charges his life estate with an annuity for the son and a jointure for the 
 son's widow, as a provision for them before the son's estate comes into 
 possession. 11 Such a re-settlement will not, however, be supported in 
 equity, if it appears from the unfairness of its terms or otherwise not to 
 have been understood by the son. 12 (See Disentailing Deed ; Estate Tail, 
 § 10 ; Settlement.) 
 
 1 Bl. iii. 146. 6 Co. Litt. 161 a. 
 
 2 Steph. Crim. Dig. 88 ; Russell on » Shepp. Touch. 80. 
 Crimes, i. 582. 7 Litt. § 215. 
 
 8 Co. Litt. 47 b, 160 b; Woodfall's 8 Co. Litt. 47 a, 213 a. 
 
 Landlord & Tenant, 442; Smith & Soden's 9 Stat. 8 & 9 Vict. c. 106, s. 5. 
 
 L. & T. 225. I0 Bythewood, Conv. iv. 348. 
 
 4 Bl. Comra, iii. 146 ; see also Litt. n Elphinstone, Conv. 420. 
 
 $ 237. " Ibid. ; Watson's Comp. Eq. 62. 
 
 709 
 
7io 
 
 Resiant 
 
 LAW DICTIONARY. 
 
 RESIANT is a resident. 
 manors. 1 (See Court Leet.) 
 
 Residue 
 The term is chiefly used in speaking of 
 
 Effect of 
 residence. 
 
 Bona fide 
 residence. 
 
 Voters. 
 
 Paupers. 
 
 Actual or 
 constructive. 
 
 RESIDENCE is used in law to denote the fact that a person dwells 
 in a given place, or, in the case of a corporation, that its management is 
 carried on there : thus, if a company is formed in England for the pur- 
 pose of carrying on a trade (such as mining or manufacturing) in _ a 
 foreign country, but its business is under the control of a board of 
 directors in England, the company is said to have its residence in Eng- 
 land. 2 In the case of a person, residence connotes the idea of home, or 
 at least of habitation, and need not necessarily be permanent or exclusive. 3 
 
 § 2. Residence is of importance in several ways : first, as an element in 
 ascertaining a person's domicile (q. v.), and, secondly, as determining 
 whether he is subject to the authorities having jurisdiction or powers 
 within the district where he resides. Thus, where a person who was 
 born and had long resided in Ireland came over to England, and shortly 
 afterwards filed a petition for judicial separation in the Court of Divorce, 
 it was held that his residence in England was not bona fide, and was 
 therefore not sufficient to found the jurisdiction of the Court. 4 Resi- 
 dence is, however, chiefly of importance as forming part of some of the 
 qualifications for voting at parliamentary and municipal elections ; and in 
 ascertaining whether a pauper has acquired a settlement or irremovability 
 in a parish. 6 (See Occupation ; Rates.) 
 
 § 3. Sometimes a distinction is drawn between actual and constructive 
 residence, the latter term being used to mean that a person has the liberty 
 of returning, and also the intention of returning, whenever he pleases, to 
 the place at which he usually resides, although he may be actually absent 
 from it for some time." 
 
 As to the residence of clergymen, see Non-Residence. 
 
 RESIDUE— RESIDUARY.— § 1. In administering the personal 
 estate of a testator or intestate, the debts, funeral and testamentary 
 expenses and the costs of the administration are first paid, and what 
 remains is the residue in the sense of the net personal estate ; 7 then, in 
 the case of a testator's estate, the legacies, annuities, &c. are paid, and 
 what remains is the ultimate residue or residuary estate in the ordinary 
 sense of the word. Sometimes there is a residue within a residue, or a 
 particular residue as opposed to a general residue : as where a fund is 
 
 1 See Williams on Commons, 272, 280. 
 
 2 Cessna Sulphur Co. v. Nicholson ; 
 Calcutta Jute Mills Co. v. Same, I Ex. D. 
 428. See also Thring on Companies, 91. 
 
 3 See the cases cited infra. 
 
 4 Manning v. Manning, L. R., 2 P. & 
 D. 223; Jf'estman \. Aktiebolaget, £~V., 
 I Ex. D. 237. 
 
 As to residence under the Registration 
 
 Acts, see Beat v. Ford, 3 C. P. D. 
 
 As 
 
 to residence in questions of the irremova- 
 bility and settlement of paupers, see Reg. v. 
 Whitby, L. R., 5 Q. B. 325 ; Reg. v. 
 Abingdon, ibid. 406, and the cases cited 
 in each. 
 
 See Reg. v. St. Leonard, L. R., 1 O. 
 
 B. 21. 
 
 7 See Trethe-wy v. Helyar, 4 Ch. D. 53 ; 
 Fcnton v. Wills, 7 Ch. D. 33 ; Blann v. 
 Bell, 7 Ch. D. 382. 
 
Resignatio7i law dictionary. Resolution 711 
 
 given to A. subject to the payment thereout of certain legacies, so that if 
 any of those legacies fail, they fall into the particular residue given to A., 1 
 while the general residue of the estate is given to B. 3 
 
 § 2. A residuary bequest, that is, a bequest of the testator's residuary Residuary 
 personal estate, passes all the personalty belonging to the testator at his be q ues '- 
 death and not otherwise disposed of, including lapsed legacies. 3 As to 
 the effect of a residuary devise, see Devise, § 2. Where a testator does 
 not effectually dispose of the residue of his property he dies intestate as 
 to it, and it goes to his heir or next of kin, according to its nature. (See 
 Intestate?) 
 
 RESIGNATION is where a parson, vicar or other beneficed clergy- 
 man voluntarily gives up and surrenders his charge and preferment to 
 those from whom he received the same. It is usually done by an instru- 
 ment attested by a notary. 4 (See Relinquishment.) 
 
 RESIGNATION BONDS.— A resignation bond is a bond given 
 by a presentee to a benefice, binding himself to resign the benefice 
 either within a certain time, or indefinitely, whenever the patron should 
 require it. 5 Such bonds were formerly held legal, and might be either 
 general or in favour of a specified person or persons, but, by two modern 
 cases, 6 it was decided that all resignation bonds were illegal. Shortly 
 afterwards the stat. 9 Geo. 4, c. 94, was passed, making valid, in certain 
 cases, resignation bonds in favour of specified persons related by blood or 
 marriage to the patron. 
 
 RESOLUTION. — § 1. A resolution is an expression of opinion or 
 intention by a meeting {q.v.). 
 
 § 2. Under the Companies Acts, resolutions of the members of a com- Companies, 
 pany are either ordinary, special, or extraordinary. An ordinary resolu- Ordinary, 
 tion is one passed by a simple majority in number at an ordinary meeting. 
 A special resolution requires first to be passed by a majority of three- Special, 
 fourths of the members present at a meeting summoned for the purpose, 
 and then to be confirmed by a simple majority at a meeting held for the 
 purpose pursuant to notice between a fortnight and a month from the first 
 meeting. 7 An extraordinary resolution is a resolution passed by a majority Extraordi- 
 of three-fourths of the members present at a meeting summoned for the nal 7- 
 purpose ; it is, therefore, the same as an unconfirmed special resolution. 8 
 
 § 3. In bankruptcy and liquidation proceedings, an ordinary resolution Bankruptcy, 
 is one decided by a majority in value of the creditors present (personally Ordinary, 
 or by proxy) at the meeting, and voting on the resolution. A special special. 
 
 1 Champney v. Davy, 1 1 Cli. D. 949. 335 ; 3 Bing. 598. 
 
 ' Watson's Comp. Equity, 1258, 1268. 7 Companies Act, 1862, s. $r ; Tilling 
 
 3 Ibid. 1268. onCompanies, 167. The Friendly Societies 
 
 4 Phillimore, Eccl. Law, 517. See also Act, 1875, s ' 2 4> aQ d Tne Industrial and 
 the Incumbents Resignation Act, 1871. Provident Societies Act, 1876, s. 16, con- 
 
 5 Gibson's Codex, 799 ; Phillimore's tain similar provisions. 
 Eccl. Law, 1119. 8 Sect. 129. 
 
 5 Bishop of London v.Ffytche in 1780, ° Bankr. Act, 1869, s. 16, \ 7. 
 
 Phill. 1 12 1 ; Fletcher v. Sondes, 5 B. & A. 
 
7i- 
 
 Respite 
 
 LAW DICTIONARY. 
 
 Respondentia 
 
 Extraordi- 
 naiy. 
 
 Criminal 
 proceedings. 
 
 Civil actions. 
 
 resolution is one passed by a majority in number and three-fourths in 
 value of the creditors present (personally or by proxy) at the meeting, 
 and voting on the resolution. 1 An extraordinary resolution is one passed 
 by a majority in number and three-fourths in value, and confirmed by a 
 majority in number and value at a subsequent meeting ; 2 certain require- 
 ments as to notices, and the interval between the two meetings, have to be 
 observed. 3 Debts amounting to 10/. and under are not taken notice of in 
 computing a majority of value on a resolution for liquidation or com- 
 position (q.v.). A 
 
 RESPITE is to discharge or dispense with. Thus, a lord is said to 
 respite fealty when he does not exact it from his tenant. (See Fealty ; 
 Homage, §2.) 
 
 RESPONDEAT OUSTER, in criminal procedure, is that judgment 
 which is given when a prisoner fails to substantiate a special plea in bar. 
 Thus, if he pleads auterfois acquit and fails to prove it, judgment is given 
 that he "answer over," or plead to the indictment again, in which case 
 he may plead the general issue — not guilty. 5 (See Plea, § 2.) In practice, 
 however, a prisoner always pleads " not guilty,'' in addition to a special 
 plea in bar; and therefore, if he fails to substantiate it, judgment of 
 respondeat ouster is not necessary, but the trial proceeds as if no special 
 plea had been pleaded. 6 
 
 § 2. In ordinary common law actions, judgment of respondeat ouster 
 was formerly given when the defendant pleaded a dilatory plea {e. g., a 
 plea in abatement) and failed, in which case he had to plead in bar. 7 
 Under the present practice, however, pleas in abatement are abolished ;. 
 the Statement of Defence contains all the defendant's objections to the 
 action (unless he demurs), and they are all tried at the same time; judg- 
 ment of respondeat ouster therefore no longer exists ; power, however, 
 is given to decide questions of law before the trial, and to order some 
 questions of fact to be tried before the others. 8 
 
 RESPONDEAT SUPERIOR means that a master is liable in 
 certain cases for the wrongful acts of his servant, and a principal for 
 those of his agent. (See Master and Servant, § 3 ; Quasi-Tort.) 
 
 RESPONDENT is a person against whom a petition is presented, 
 a summons issued, or an appeal brought, just as a defendant is a person 
 against whom an action is brought. (See Co-Respondent; Defendant; 
 Petition.') 
 
 RESPONDENTIA was formerly used to denote the hypothecation 
 of the cargo or goods on board a ship as security for the repayment of a 
 
 1 Bankr. Act, 1869, s. 16, \ 8. 
 
 2 Ibid. s. 126. 
 
 3 Bankr. Rules (1870), 282. 
 
 * Bankr. Act, 1869, ss. 125, 126. 
 
 5 Steph. Coram, iv. 405. 
 
 G Archbold, dim. PI. 140. As to pleaS 
 in abatement, see ibid. 131. 
 
 7 Smith's Action (nth edit.), 187. 
 
 " Rules of Court, xix. 13, 18 ; xxxiv. 2 ; 
 xxxvi. 6. 
 
Responsalis law dictionary. Restraining Orders 7 1 3 
 
 loan, the term bottomry being confined to hypothecations of the ship her- 
 self; but now the term respondentia is seldom used, and the expression 
 bottomry is generally employed whether the vessel or her cargo or both 
 be the security. 1 (See Bottomry ; Hypothecation ; Necessaries, § 4.) 
 
 RESPONSALIS "was he, that was appointed by the tenant or defendant [in an 
 action] in case of extremity and necessitie to alledge the cause of the parties absence, and 
 to certifie the Court upon what tryall he will put himselfe." 2 By the common law a 
 party could not appear by attorney without the king's special warrant ; when this rule 
 was relaxed responsales became obsolete. 3 (See Attorney.) 
 
 Etymology.] — Latin, respoitdere, to answer. 
 
 RESTITUTIO IN INTEGRUM is a phrase borrowed from the 
 Roman law, 4 where it was applied to cases where a person who, accord- 
 ing to strict law, had lost a right, was restored to his original position by 
 the judgment of a Court acting on equitable principles. 5 In English law 
 it is used to denote the equitable relief which is given in rescinding 
 contracts on the ground of fraud, and in similar cases, where both parties 
 can be restored to their original position. 
 
 RESTITUTION. — § 1. In civil actions, where a defendant appeals Civil action, 
 and the judgment is reversed, he is entitled to be restored to all he has 
 lost by the execution of the judgment. In most cases he may obtain redress 
 by application to the Court or a judge, but a writ of restitution may in all 
 cases be issued, while in some cases it appears to be the only remedy. 7 
 
 § 2. In a prosecution for larceny, embezzlement, &c, where the Stolen goods, 
 offender is prosecuted by the owner of the goods and convicted, the 
 property is to be restored to the owner, and the Court may issue a writ 
 of restitution, or make an order for restitution in a summary manner. 8 
 
 RESTITUTION OF CONJUGAL RIGHTS. -Where one of 
 
 two married persons has without lawful cause withdrawn from living 
 with the other, the latter may present a petition to the High Court in 
 the Probate, Divorce and Admiralty Division praying restitution of con- 
 jugal rights, on which the Court will, in a proper case, compel the other 
 to return to cohabitation. 9 
 
 RESTRAINING ORDERS, in the practice of the Chancery Divi- 
 sion of the High Court, are of two kinds. § 1. In the general sense of Injunction, 
 the term, a restraining order is an order of the High Court (under the 
 original jurisdiction of the Court of Chancery) restraining a person from 
 doing an act, e. g., obstructing ancient lights ; such orders are now more 
 
 1 Maude & Pollock, Merch. Shipp. 433 ; G Phosphate Sewage Co. v. Hartmont, 
 
 Smith's Merc. Law, 416. ' 5 Ch. D. at p. 448. 
 
 3 Co. Litt. 128 a. 7 Smith's Action (nth edit.), 229; 
 
 3 Ibid. Archbold's Pr. 549. 
 
 4 See Dig. iii. 3, fr. 39, \ 6 ; iv. 2 fr. 9, 8 Steph. Comm. iv. 437 ; stats. 24 & 25 
 § 3. Vict. c. 96, s. 100; 30 & 31 Vict, c, 35, 
 
 6 Savigny, Syst. vii. 91 etseq.; Thibaut, a. 9. 
 Panel. \ 680. " ° Browne on Divorce, 83. 
 
7H 
 
 Restraint of Marriage law dictionary. Restraint of Trade 
 
 Restraining 
 order under 
 5 Vict. c. 5. 
 
 commonly called injunctions {q.v.). 1 § 2. In its special and more usual 
 sense, a restraining order is an order under stat. 5 Vict. c. 5, s. 4, by which 
 the Bank of England or any other public company maybe restrained from 
 permitting the transfer of stock or shares rn their books or from paying 
 dividends thereon ; the application may be made in a summary way 
 (without the institution of a suit or action) by any person interested in 
 the stock, the object generally being to prevent any dealing with the 
 stock until the rights of the parties have been ascertained by an action 
 instituted in the regular manner. 3 (See Distringas ; Stop Order.) 
 
 RESTRAINT OF MARRIAGE,— § 1. Marriage being an institu- 
 tion encouraged by the state, the general rule is that every contract, the 
 object of which is to restrain a person from marrying at all, is void, 3 and 
 so is an agreement not to marry anyone except a specific person. 4 
 § 2. As to conditions in restraint of marriage, the general rale is that 
 such a condition is valid if it is a condition precedent. 5 As to conditions 
 subsequent, there is some difference in the case of real and personal 
 estate. With regard to real estate, it would seem, on principle, that 
 a condition subsequent is void, if in general restraint of marriage; 
 but is valid if in partial restraint. With regard to personal estate, a 
 condition subsequent in general restraint of marriage is bad, whether 
 there is a gift over or not, while a condition subsequent in partial 
 restraint of marriage is good if there is a gift over, but not otherwise. 
 A condition restraining the second marriage of a man or a woman is 
 valid. 7 § 3. A limitation of property until marriage is good, whether to 
 a widow, a widower, or an unmarried person ; but in the case of an 
 unmarried person, it seems that to make the restriction valid there must 
 be a limitation over in the event of the donee marrying, 8 because such 
 gifts are construed rather as provisions for the donee until marriage, than 
 as restraints on marriage. So that a condition in restraint of marriage 
 may be void, while the same result might be attained by a limitation. 
 
 RESTRAINT OF SHIP. See Action, § 17 ; The Talca, 5 P. D. 169. 
 
 General 
 restraint. 
 
 RESTRAINT OF TRADE.— § 1. The general rule is that a man 
 ought not to be allowed to restrain himself by contract from exercising 
 any lawful trade or business at his own discretion and in his own way, 10 
 the reason being that such a contract tends to deprive the public of the 
 advantage of employing him, and would pro tanto create a monopoly (q.v.). n 
 § 2. A contract in general restraint of trade is one which provides that 
 
 1 Daniell, Ch. Pr. 1462, 1537. 
 
 * Ibid. 1538. 
 
 3 Chitty on Contracts, 619. 
 
 1 Lowe v. Peers, 4 Burr. 2225 ; Wilmot, 
 
 364- 
 
 6 See Scott v. Tyler, 2 Dickens, 712. 
 
 c Jones v. Jones, 1 Q. B. D. 279 ; Jenner 
 \. 1'urtier, 16 Ch. D. 188. In the former 
 case the object of the testator was held to 
 
 be not to restrain marriage, but to provide 
 for the devisee until marriage, and the con- 
 dition was therefore held to be valid. 
 
 7 Pollock on Contract, 307. 
 
 a Watson's Comp. Eq. 1 139. 
 
 3 Morley v. Reynoldson, 2 Ha. 580. 
 
 10 Pollock on Contract, 284. 
 
 11 Mitchel v. Reynolds, 1 P. W. 181 ; 
 Smith's L. C. i. 406. 
 
restraint. 
 
 Restraint on Alienation law dictionary. Result 715 
 
 one of the parties shall not carry on a particular trade at all, or shall cajry 
 it on under the control of another person who has a rival business, or the 
 like; 1 such • contracts are, as a general rule, void. 2 § 3. A contract in Partial 
 restraint of trade may, however, be valid if it is limited to a certain dis- 
 trict or area, and is not unreasonable in its terms ; thus an agreement, for 
 valuable consideration, not to carry on a business for a term of years, or 
 within a certain district, may be valid. 3 Such a stipulation is not unfre- 
 quently inserted in an agreement of partnership, where the partner, who 
 is the owner of the goodwill, wishes to be protected against a rival busi- 
 ness being set up in his neighbourhood by the other partner when the 
 partnership comes to an end. 
 
 RESTRAINT ON ALIENATION is where property is given to 
 a married woman to her separate use without power of alienation. The 
 validity of such a provision is allowed by law as an exception to the 
 general rule that every owner of property is at liberty to alienate it, the 
 object being to prevent a married woman from being induced by her hus- 
 band to alienate her property for his benefit. The restraint only takes 
 effect so long as she is married. 4 
 
 RESTRAINT ON ANTICIPATION. See Anticipation, § 1. 
 
 RESTRICTION.— In the case of land registered under the Land 
 Transfer Act, 1875, a restriction is an entry on the register made on the 
 application of the registered proprietor of the land, the effect of which is 
 to prevent the transfer of the land or the creation of any charge upon it, 
 unless notice of the application for a transfer or charge is sent by post to 
 a certain address, or unless the consent of a certain person or persons to 
 the transfer or charge is obtained, or unless some other thing is done. 5 
 The object of this provision is not very clear ; it has been suggested that 
 it will be employed " by an owner who is fearful of his estate being con- 
 veyed away from him behind his back by means of forgery or persona- 
 tion." (See Caution; Inhibition.') 
 
 RESTS. See Account, §§ 9 et seq. 
 
 RESULT. — § 1. In law, a thing is said to result when, after having 
 been ineffectually or only partially disposed of, it comes back to its 
 former owner or his representatives. § z. Thus, if A. conveys land to B. Resulting uses 
 and his heirs to the use of C. for life, on C.'s death the use results to A., 
 that is, A. or his heirs again become the owners of the land, because no 
 disposition is made beyond C.'s life. 7 This is a resulting use. A resulting 
 trust is similar. (See Trust ; Use.) 
 
 1 Hilton v. Ecliersley, 6 E. & B. 47, 66 ; » Chitty, 615. 
 
 and see Jones v. North, L. R., 19 Eq. * Snell's Eq. 290; White & Tudor, L. 
 
 426. C. i. 468 ; In re Ridley, n Ch. D. 645. 
 
 3 Chitty on Contracts, 614. For in- '' Sects. 58, 59. 
 
 stances of exceptions, see Wallis v. Day, 6 Charley's Real P. Acts, 218. 
 
 2 M. & W. 273; Leather Cloth Co. v. 7 Williams, R. P. 158. 
 Lorsont, L. R., 9 Eq. 345. 
 
 and trusts. 
 
7 1 6 
 
 Re-Surrender 
 
 LAW DICTIONARY. 
 
 Retainer 
 
 Conversion. § 3. When land is directed to be converted into money for a special 
 
 purpose and the object fails, so that either the sale becomes unnecessary, 
 or (if the sale has taken place) the proceeds are not required to be 
 applied for the purpose directed, then the land or the proceeds of sale 
 (as the case may be) result to the settlor, or his heir, residuary devisee, 
 &C. 1 The same rule applies to the converse case of a conversion of money 
 into land. Thus, if a testator directs his real estate to be sold, and the 
 purposes for which he has directed the conversion, or some of them, fail to 
 take effect [e. g. by lapse), then the real estate, if it has not been sold, or 
 the undisposed-of proceeds if it has, result to the heir or residuary devisee 
 as if the conversion had not been directed ; 3 and this is none the less so 
 
 Total failure, where the testator has created a "blended fund " (see that title). In the 
 case of a total failure of the objects for which the conversion is directed, 
 there is no difference whether the instrument is inter vivos or testamen- 
 tary ; that is, the property results to the author of the trust or his repre- 
 sentatives in its original state. Thus, if a testator directs his land to be 
 sold, and the proceeds to be divided between A. and B., and they both 
 predecease the testator, then the land goes to the testator's heir as land. 
 
 Partial failure. But in case of a partial failure of the purposes for which conversion is 
 directed, the general rale is that where the instrument is one inter vivos 
 (e.g. a deed), the property results to the settlor in the condition into which 
 he has directed it to be converted (whether realty or personalty), and 
 therefore devolves as such on his death, unless he has otherwise disposed 
 of it ; 3 while, where the instrument is a will, there is a distinction between 
 a conversion of land into money, and money into land ; for if a testator 
 directs a conversion of land into money, and some of the purposes fail, 
 that part of the proceeds which is undisposed of results to the testator's 
 heir as money, so that on the heir's death it devolves with the rest of his 
 personalty, unless specially disposed of by him; 4 but if a testator directs a 
 conversion of money into land, and some of the purposes fail, the money 
 which is undisposed of results to the next of kin as personalty, and not as 
 land. 5 
 
 See Blended Fund ; Conversion, §§ 3 et seq.; Reconversion. 
 
 RE-SURRENDER,— Where copyhold land has been mortgaged by- 
 Surrender, and the mortgagee has been admitted, then on the mortgage 
 debt being paid off, the mortgagor is entitled to have the land reconveyed 
 to him, by the mortgagee surrendering it to the lord to his use. This is 
 called a re-surrender. (Compare Re-Conveyance.) 
 
 By executor. RETAINER.— I. § 1. The right of retainer is the right which the 
 executor or administrator of a deceased person has to retain out of the 
 assets sufficient to pay any debt due to him from the deceased in priority 
 to the other creditors whose debts are of equal degree. 7 The executor 
 
 1 Ackroyd wSmithson, I Bro. C. C. 503; 
 White & Tudor's L. C. i. 783. 
 3 Watson, Comp. Equity, 109. 
 3 Clarke v. Franklin, 4 K. & J. 257. 
 
 1 Smith v. Claxton, 4 Mad, 484. 
 
 5 Reynolds v. Godlee, 1 Johns. 536. 
 
 6 Davids. Conv. ii. 1332, n. 
 
 7 Steph. Comm. iii, 263. 
 
Retire law dictionary. Retraxit jij 
 
 does not forfeit this right by instituting an administration suit in his 
 character of creditor. 1 (See Action, § 9.) 
 
 II. § 2. A retainer is the engagement of a barrister or solicitor to take Of counsel or 
 or defend proceedings, or to advise or otherwise act for the client. 3 solicitor. 
 
 § 3. Retainers to solicitors (which are not commonly in writing) are of two 
 kinds. A special retainer is an engagement for a particular action or pro- 
 ceeding. A general retainer extends to all business, present and future, 
 until it is determined. 3 § 4. Retainers to counsel (which can only be given 
 by solicitors, not by the client himself, and involve the payment of a fee) 
 are of three kinds. A general retainer is one given on behalf of a client 
 for all future business in which he may require the counsel's services. 
 The better opinion seems to be that such a retainer entitles the counsel 
 to a common retainer {infra, § 5), when the client becomes a party to 
 a proceeding in the Court or on the circuit in which the counsel generally 
 practises. In some cases a restricted general retainer is given. Thus, 
 where a ship has been lost, the insurers may give a retainer to counsel for 
 all actions arising out of the loss. § 5. A common retainer (sometimes 
 called, especially in Chancery practice, a special retainer) is one given 
 in a particular action or proceeding. § 6. A special retainer (in the strict 
 sense) is one given to a counsel to conduct a case on a foreign circuit, 
 that is, a circuit on which he does not usually practise. 
 
 RETIRE, as applied to a bill of exchange, usually means that an 
 indorser has taken it up by paying his immediate or some subsequent 
 indorsee, after which he is in a position to recover from the antecedent 
 parties. But it is sometimes used in the case of an acceptor who has paid 
 and extinguished the bill. 4 
 
 As to the retirement of a trustee, see Trustee. 
 
 RETORSION. — In international law, when a sovereign is not satis- 
 fied with the manner in which his subjects are treated by the laws and 
 customs of another nation, he is at liberty to declare that he will treat the 
 subjects of that nation in the same manner. This is called retorsion. 5 
 (Compare Reprisals ; Embargo?) 
 
 RETRACTATION, in probate practice, is a withdrawal of a renun- 
 ciation (q. v.). A retractation is only allowed in special cases : it would 
 apparently be permitted where the person in whose favour the renunciation 
 was made has not availed himself of it, or has died. 
 
 RETRAXIT, in the old common law practice, was a mode of withdrawing from an 
 action, and took place where a plaintiff or demandant abandoned his action at the trial, 
 and thus lost his right of action altogether. 7 (See Nonsuit.) It has long been practically- 
 obsolete. 8 
 
 1 Ex j>arte Campbell, 16 Ch. D. 198. 5 Manning's Law of Nations, 142. 
 
 See also Crowder v. Stewart, 16 Ch. D. ° Coote's Probate Pr. 221 ; see stat. 20 
 
 368. & 21 Vict. c. 77, s. 79. 
 
 2 Chitty, Pr. 85. 7 Co. Litt. 138 b. 
 
 a In re Snell, 5 Ch. D. 815. 8 Chitty, Pr. 1515. 
 4 Byles on Bills, 222. 
 
7 i8 
 
 To writ. 
 
 Citation. 
 
 Official re- 
 turns. 
 
 In land. 
 
 Retreat law dictionary. 
 
 RETREAT. Sec Drunkenness, § 2. 
 
 Reversion 
 
 RETURN. — § 1. A return is a report by an officer of a Court showing 
 the manner in which he has performed a duty imposed on him. Thus, 
 the sheriff or other officer executing a writ of execution has to return or 
 report to the Court what he has done in pursuance of it, though in most 
 cases it is not usual for a return to be made, unless ulterior proceedings 
 are contemplated. 1 If a return is required, an order calling upon the 
 sheriff to make it (called in the language of common law practice a rule 
 to return) may be obtained. 2 The return is usually written on the back of 
 the writ, which is then filed. Returns to writs are commonly known by the 
 first words of the old returns, which were given in Latin, e. g., " nulla 
 bona," " fieri feci," " non est inventus" (see the various titles). As 
 to the return to a writ of mandamus, 3 see Mandamus, § 2. 
 
 § 2. As to the consequences of a false return, see False Return. 
 
 § 3. In probate practice, a citation {q. v., §4) must be returned into the 
 registry as soon as it has been served. 4 
 
 § 4. Companies and other associations established under acts of parlia- 
 ment are in many cases required to send in periodical returns to a public 
 officer with reference to their condition. Thus every company formed 
 under the Companies Act, 1862, and having a share capital, is bound to 
 send in a yearly return to the Registrar of Joint Stock Companies, giving 
 a list of its shareholders, and showing the position of its capital and the 
 alterations in its register of shareholders since the last return. 5 
 
 RETURN IRREPLEVISABLE. See Replevin, % 3. 
 
 RETURNABLE. — § 1. Writs of execution, writs of mandamus, and 
 many other kinds of writs, are returnable, that is, the person to whom they 
 are directed is bound or may be required to make a return to them. The 
 term is, however, chiefly used with reference to the time when the writ is 
 returnable. Some writs are returnable at a date named in them, while 
 others, such as writs of execution, are returnable as soon as they are 
 executed. 6 § 2. By analogy to this use of the word, a summons is said to 
 be returnable on the day appointed for hearing it. 
 
 REVENUE. See Exchequer. 
 
 REVERSE. — A judgment is said to be reversed when it is set aside 
 by a Court of Appeal. 
 
 REVERSION— REVERSIONER.— § 1. Where a tenant in fee 
 simple grants the land to another, person for a term of years, or for life, 
 
 1 Smith's Action, 203. 
 
 2 Ibid. 204. 
 
 3 See an instance of a return to a man- 
 damus, Queen v. Postmaster-General, I O. 
 B. D. 658. 
 
 4 Browne's Probate Pr. 276. 
 
 6 Sect. 26 ; see stat. 33 & 34 Vict. c. 61, 
 
 as to returns by life assurance companies ; 
 stats. 7 Geo. 4, c. 46, and 7 & 8 Vict. u. 32, 
 as to returns by bankers and banking com- 
 panies. Industrial and Provident Socie- 
 ties and Friendly Societies are also required 
 to make returns. 
 
 6 Archbold, Pr. 532. 
 
Reversion law dictionary. Reversionary Interests 719 
 
 or in tail, the estate so created is called a particular estate, being only a 
 part, or particula, of the estate in fee, and the interest of the tenant in fee 
 simple, which still remains undisposed of, is called his reversion. It is a 
 present or vested estate, by virtue of which he will have the possession of 
 the land again on the determination of the particular estate. Similarly, if 
 a tenant for life grants a lease for years, or if a tenant for years grants an 
 underlease for a shorter term, the estate which remains in him is called a 
 reversion. The owner of a reversion is called the reversioner. 
 
 § 2. The relationship of tenure exists between the owner of the rever- 
 sion and the particular tenant, and therefore fealty {q. v.) is nominally due 
 from the latter to the former. A rent service or other service may also be 
 reserved by the owner of the reversion, and thus made incident to the 
 reversion, so that if the reversion is aliened the rent or service passes 
 with it. The rent may be severed from the reversion, but the fealty 
 cannot; therefore if the owner grants the reversion to another person," he 
 may reserve the rent to himself, but not the fealty 1 (see Attornment ; 
 Rent, § 3.) A condition of re-entry may also be annexed to a reversion, 
 and will pass with it on an assignment. 2 As to the difference between a 
 reversion and a remainder, see Remainder. 
 
 § 3. If A., being a tenant in fee simple, grants a lease to B., and B. Merger of 
 grants an underlease to C, reserving a rent, this rent is incident to B.'s re,ersion - 
 reversion : consequently if A. grants his reversion to B., this causes a 
 merger or destruction of B.'s reversion, and, at common law, C.'s rent, 
 being incident to it, would also be destroyed. B. would be tenant in fee 
 simple in reversion, but his right to the rent would be gone. To prevent 
 this it has been enacted (in effect) that where the reversion expectant on 
 a lease is surrendered or merges, the estate next in reversion or remainder 
 shall, for the purpose of preserving the incidents to the reversion so 
 merged, be deemed to be the reversion expectant on the lease. 3 In the 
 case supposed, therefore, the rent payable by C. would be converted into 
 a rent incident to B.'s reversion in fee simple. 
 
 As to covenants running with the reversion, see Covenant, § 5 . 
 
 § 4. "Reversion" is also used to denote a reversionary interest, e.g., an In personalty, 
 interest in personal property subject to the life interest of some other 
 person. (See Reversionary Interest.) 
 
 As to sales of reversions, see Reversionary Interest, § 4. 
 
 REVERSIONARY INTEREST.— § 1. Any right in property, 
 the enjoyment of which is deferred, is a reversionary interest in the wide 
 sense of the term; but in the ordinary sense of the term, reversionary 
 interests are interests in property which are not reversions or remainders 
 in the strict sense, but are analogous to them. Thus, if personal pro- 
 perty is limited to A. for life, and after his death to B., this gives B. a 
 reversionary interest analogous to a remainder in land. Similarly, if A. 
 
 1 Co. Litt. 142 b et seq. ; Williams, R. 3 Stat. 8 & 9 Vict. c. 106, s. 9 ; Wil- 
 P. 243. Wams, 251. 
 
 2 Stat. 32 Hen. 8, c. 34; Co. Litt. 215a. 
 
720 
 
 Malins's Act. 
 
 Sales of re- 
 versions. 
 
 Revert 
 
 LAW DICTIONARY. 
 
 Reverter 
 
 gives B. a life interest in chattels, A. retains a reversionary interest, 
 analogous to a reversion in land. 
 
 § 2. Reversionary interests were formerly only recognized by the 
 Court of Chancery, being equitable interests. (See Equity.) They are 
 usually created by means of trusts, the legal estate in the property being 
 conveyed to trustees, as in the case of an ordinary marriage settlement 
 of personal property. 1 (See Settlement!) 
 
 § 3. By stat. 20 & 21 Vict. c. 57, every married woman, with the con- 
 currence of her husband, may by deed dispose of every future or rever- 
 sionary interest in personal property, whether vested or contingent, 
 to which she, or her husband in her right, may be entitled under any 
 instrument made after the. 31st December, 1857, or release or extinguish 
 any power or equity to a settlement in regard to such personal property. 
 Every such disposition must be acknowledged by her under the Fines and 
 Recoveries Act. (See Acknowledgment, § 2.) The statute does not 
 apply to marriage settlements, nor to reversionary interests which the 
 married woman is restrained from alienating. 
 
 § 4. Formerly there was a rule in equity, that in the case of the sale of 
 a reversionary interest in real or personal estate, the purchaser was bound 
 to show that he had given the fair market price for it, and if he was 
 unable to do so, the sale was set aside; this rule was abolished by 
 stat. 3 1 Vict. c. 4, 2 but in cases of fraud or unfair dealing equity still 
 interferes. (See Expectant Heir; Inadequacy.) 
 
 REVERT. — To revert is to return : thus when the owner of an estate 
 in land has granted a smaller estate to another person, on the determina- 
 tion of the latter estate the land is said to revert to the grantor. (See 
 Reversion; Reverter.) 
 
 REVERTER.— § 1. In feudal times, on every grant of land "a right 
 remained in the grantor to the services of the grantee during the con- 
 tinuance of his estate, and to a return of the land on its expiration. 
 Whether this right of the grantor depended on an estate for life or in fee, 
 it was of the same nature and indifferently called his reverter or escheat ; 
 but from the remoter probability of the return when the fee was granted, 
 it became customary to call it, after a grant of the fee, his possibility of 
 reverter; by degrees that expression was applied to those cases only 
 where a limited fee had been granted, and the word escheat was applied 
 to those where the grant had conferred an absolute estate in fee simple. 
 A grant to a man and the heirs of his body was at common law a limited 
 fee ; and therefore after such a grant, a possibility of reverter was said to 
 Reverter after remain in the grantor. When the statute De Donis converted such estates 
 into estates tail, the return of the land was secured by it to the donor and 
 was called his reverter. In all these cases, the words reverter and rever- 
 sion are synonymous." 3 A reverter after an estate in fee simple condi- 
 
 Possibility of 
 reverter. 
 
 estate tail. 
 
 1 See Williams, P. P. 310. 
 
 2 Williams, R. P. 464; Pollock on Con- 
 tract, 529 ; Earl of Aylesford v. Morris, 
 
 L. R., 8 Ch. p. 490. 
 
 3 Butler's note to Feame on Cont. Rem. 
 38r. 
 
Review LAW dictionary. Revival 
 
 tional is still called a 'possibility of reverter. (See Formedon ; Possibility, 
 note (3).) 
 
 REVIEW.— When a taxing master has taxed a bill of costs, any 
 party who is dissatisfied with the taxation may, before the certificate or 
 allocatur is signed, deliver to the opposite party and carry in before the 
 taxing master an objection specifying the items of which he complains, 
 and apply to the master to review the taxation accordingly. 1 If any 
 party is dissatisfied with the result of this preliminary review, he may 
 apply to a judge at chambers for an order to review the taxation, and the 
 judge thereupon gives such directions (if any) to the taxing master as he 
 thinks proper. 
 
 As to bills of review, see Bill 0/ Complaint, % 8; as to the Court of 
 Review, see Commissioners in Bankruptcy. 
 
 REVISING BARRISTERS are barristers appointed to revise the 
 lists of voters for parliamentary elections, on which occasion they decide 
 disputed claims to the right of voting. An appeal lies to the High Court 
 in the Common Pleas Division. 3 (See Overseers, § 2.) 
 
 REVIVAL— REVIVOR.— § 1. The term revival is sometimes ap- Will. 
 plied to wills. Thus, where a testator revokes a will, he is said to revive 
 it if he subsequently re-executes it, or executes a will or codicil showing 
 an intention to revive it. 3 
 
 § 2. In the law of divorce, condonation (g. v.) being forgiveness of a Divorce, 
 conjugal offence with an implied condition that the injury shall not be 
 repeated, and that the condoning party shall be treated with conjugal 
 kindness, it follows that on breach of the condition, even by the commis- 
 sion of a slighter offence, the right to a remedy for the former injury is 
 revived : thus cruelty will revive condoned adultery. 4 
 
 § 3. Under the practice of the Court of Chancery, when a suit became Revivor of 
 defective by the death, marriage or bankruptcy of one of the parties, or action, &c. 
 by an assignment of the subject-matter of the suit pendente lite, or 
 by some other change in the interest of some of the parties, it was, 
 necessary to revive it, that is, take steps for carrying on the proceedings : 
 this was generally done by an order of revivor obtained as of course, but 
 in some cases a new bill, called a bill of revivor, had to be filed. 5 Under 
 the new practice, an order of revivor is only required where it is necessary 
 to carry on the proceedings between the continuing parties and some 
 new party: thus, where a defendant becomes bankrupt, an order of ' 
 revivor may be obtained continuing the proceedings against his trustee 
 as if he had originally been a defendant. 6 (See Abatement, § 5.) 
 
 § 4. In the common law Courts, also, if six years elapsed, or if one of Revivor of 
 
 judgment. 
 
 1 Rules of Court (12 Aug. 1875), 30 et 3 Jarman on Wills (4th edit.), 145. 
 
 seq. * Browne on Divorce, 102. 
 
 * Steph. Comm. ii. 355; stat. 6 & 7 5 Darnell's Ch. Pr. 1377 et seq. 
 
 Vict. c. 18 ; 36 & 37 Vict. c. 70, and inter- 6 Rules of Court, 1. ; Chorlton v. Dickie, 
 
 mediate statutes. - 13 Ch. D. [60. 
 
 S. 3 A 
 
 721 
 
722 
 
 Revocable 
 
 LAW DICTIONARY, 
 
 Revocation 
 
 the parties died, after the recovery of a judgment, it became necessary to 
 revive it by writ of revivor, scire facias or suggestion (q. v.)} Under the 
 new practice, when six years have elapsed from the recovery of a judg- 
 ment, or any change has taken place in the parties to the judgment 
 (e. g., by death), an application must be made for leave to issue execution : 
 on that application the Court or judge may either order execution to 
 issue, or may direct any question necessary to determine the rights of 
 the parties to be tried. 2 {See Judgment, § 21.) 
 
 REVOCABLE is that which may be revoked. 
 Will. 
 
 See Revocation; Power; 
 
 By act of the 
 party. 
 
 In law, or 
 constructive. 
 
 Judicial. 
 
 REVOCATION— REVOKE.— § 1. To revoke literally means to 
 recali (Latin, revocare). Thus, to revoke an offer or authority is to 
 withdraw it. Revocation is the operation of revoking. Revocation is of 
 three kinds— by act of the party ; by operation of law ; and by order of a 
 Court of justice (judicial revocation). 
 
 § 2. Revocation by act of the party is an intentional or voluntary 
 revocation. The principal instances occur in the case of authorities and 
 powers of attorney and wills. The two former require no particular 
 form of revocation. 3 A will may be revoked by a subsequent inconsistent 
 will or codicil, or by a writing declaring an intention to revoke, and 
 executed with the same formalities as a will, or by the burning, tearing, 
 or otherwise destroying the same by the testator, or by some person in 
 his presence and by his direction, with the intention of revoking it. 4 As 
 to revocation by marriage, see infra, § 3 ; and as to alterations in wills, see 
 Alteration, § 4. 
 
 § 3. A revocation in law, or constructive revocation, is produced by a 
 rule of law, irrespectively of the intention of the parties. Thus, a power 
 of attorney is in general revoked by the death of the principal. 6 A will is 
 always revoked by the subsequent marriage of the testator, except when 
 made in exercise of a power of appointment under which the property 
 appointed would not, in default Of appointment, pass to the real or per- 
 sonal representatives or next of kin of the testator. 6 As to the effect of 
 insanity in revoking an authority, see Lunacy, § 2, note (4). As to powers 
 of revocation, see Power, § 12. As to the revocation of a guarantee, see 
 Guarantee, § 5. 
 
 § 4. When a grant of probate or letters of administration has been im- 
 properly obtained, it may be revoked by the Court at the instance of a 
 person interested. The grant is then produced at the registry, and can- 
 celled. 1 
 
 1 Smith's Action (nth edit.), 300 et 
 seq.; Steph. Comm. iii. 591. 
 3 Rules of Court, xlii. 19. 
 
 3 Stokes on Powers of Att. ; Pollock on 
 Contract, 10; Smith's Merc. Law, 153. 
 
 4 Stat. I Vict. c. 26, s. 26 ; Williams on 
 Executors, 123. 
 
 5 Stokes. But after the 31st December, 
 1 88 1, acts done under a power of attorney 
 without notice of its revocation will be 
 good (see Addenda : title Power of Attor- 
 ney). 
 
 1 Vict. c. 26, s. 18. 
 
 7 Coote's Probate Pr. 164 et seq. ; 
 Browne's Probate Pr. 244. 
 
Riens tn Arrere law dictionary. Right 723 
 
 RIENS IN ARRERE (— "nothing in arrear") was the name of the plea in bar 
 used by the plaintiff in an action of replevin when he alleged that the rent had been paid 
 or satisfied before the distress was taken. The reply which has taken the place of the 
 plea in bar under the new practice is sometimes called by the same name. 1 (See 
 Replevin,) 
 
 RIENS PER DESCENT was the plea pleaded under the old common law prac- 
 tice by an heir at law sued for a debt of his ancestor when he had no lands by descent, 3 
 (See Judgment, \ 12.) 
 
 RIGHT. — I. § 1. A right, in its most general sense, is either the 
 liberty (protected by law) of acting or abstaining from acting in a 
 certain manner, or the power (enforced by law) of compelling a specific 
 person to do or abstain from doing a particular thing. "We may there- 
 fore define a ' legal right ' as a capacity residing in one man of con- 
 trolling, with the assent and assistance of the state, the actions of others." 3 
 It follows that every right involves ( 1 ) a person invested with the right, 
 or entitled ; (2) a person or persons on whom that right imposes a 
 correlative. duty or obligation; 4 (3) an act or forbearance which is the 
 subject matter of the right. 3 In some cases there is also (4) an object, 
 that is, a person or thing to which the right has reference, as in the case 
 of ownership. 
 
 I. With reference to their ultimate object or purpose, rights and 
 duties are either primary [substantive, original], or secondary [adjective, 
 sanctioning]. 
 
 (i) § 2. Primary rights are those which can be created without refer- Primary, 
 ence to rights already existing. Thus, if A. contracts to pay me 50/., my 
 right to the payment of that sum is a primary right. Primary rights 
 are of two classes : (1) those rights to which every member of the com- 
 munity is prima facie entitled ; they consist of (a) personal (or absolute ) 
 rights, e. g., the right to life, health and liberty of action (see Tort), and 
 (b) public rights, whic'h are those rights by which every member of the 
 community is prima facie entitled to use certain things which either 
 belong to the state, or, if they belong to private persons, are subject to 
 the right of public user; such are the rights of the public in respect of the 
 sea, navigable rivers, highways, public parks, &c. (see the various titles, 
 and Publici Juris) ; (z) those rights which arise from relations other 
 than membership of a community, and include the ordinary rights arising 
 from ownership, contract, marriage, and similar relations. 7 
 
 (ii) § 3. Secondary rights can only arise for the purpose of protecting Secondary. 
 
 1 "Woodfall's Landlord & Tenant, 476. words led to the confusion. 
 
 2 Archbold, Pr. 1013. 6 Mr. John Stuart Mill (3 Dissert, and 
 
 3 Holland's Jurisp. 56. Disc.) suggests that the idea of benefit to 
 
 4 It is sometimes said (e. g. Stephen's the person entitled is involved in the con- 
 Comm. i. 136) that the correlative of ception of a right, but this is erroneous, 
 "right" is "wrong," but this is hardly The question of benefit is one for the legis- 
 correct ; a wrong is a right plus a violation ; lator, not for the jurist. 
 
 in other words, a right may exist without a e Bl. Comm. i. 123. 
 
 wrong. Possibly the ethical use of the 7 Ibid. 
 
 U2 
 
724 
 
 Right 
 
 LAW DICTIONARY. 
 
 Right 
 
 Preventive. 
 
 Remedial. 
 
 or enforcing primary rights. They are either preventive [protective] or 
 remedial [reparative]. 
 
 ( i) § 4. Preventive or protective secondary rights exist in order to prevent 
 the infringement or loss of primary rights. They are judicial when they 
 require the assistance of a Court of law for their enforcement, and extra- 
 judicial when they are capable of being exercised by the party himself. 
 The right to prevent a threatened injury by injunction, the right to take 
 proceedings to obtain a judicial recognition of a right which might be lost 
 by lapse of time or adverse user, the right to institute proceedings for the 
 administration of the estate of a deceased person or the assets of an 
 insolvent person or corporation, and the right to security against the 
 commission of a crime, are instances of judicial preventive rights, and the 
 right of self-defence is an instance of an extrajudicial preventive right. 
 (See also Administration; Be bene esse; Legitimacy; Ne exeat Regno ; 
 Perpetuation of Testimony!) 
 
 (2) § 5. Remedial or reparative secondary rights are also either judicial 
 or extrajudicial. They may further be divided into (a) rights of restitu- 
 tion or restoration, which entitle the person injured to be replaced in his 
 original position ; (b) rights of enforcement, which entitle the person 
 injured to the performance of an act by the person bound ; and (c) rights 
 of satisfaction or compensation. A right of entry or re-entry is an extra- 
 judicial right of restitution, a lien is an extrajudicial right of enforce- 
 ment, a right of distress or retainer is an extrajudicial right of satisfaction, 
 the right of bringing an action of ejectment or detinue is a judicial 
 restitutive right, the right of obtaining an injunction for specific per- 
 formance and the right to compel the payment of a debt are judicial 
 rights of enforcement, and the right of bringing an action of damages for 
 breach of contract or tort is a judicial right of satisfaction. (See Remedy!) 
 
 II. With reference to the nature of the obligation which they impose, 
 rights are either in rem [real rights, general rights, rights against the 
 whole world, jura in rem] or in personam [personal rights, relative rights, 
 rights against determinate persons, jura in personam]. 
 Rights in rem. (1) § 6. A right in rem is one which imposes an obligation on persons 
 generally, that is, either on all the world or on all the world except 
 certain determinate persons. Thus, if I am entitled to exclude all persons 
 from a given piece of land, I have a right in rem in respect of that land ; 
 and if there. are one or more persons, A., B. and C, whom I am not 
 entitled to exclude from it, my right is still a right in rem. So if I am 
 entitled to the services of a servant, I have a right in rem which obliges 
 all other persons not to interfere wrongfully with that relation. (See 
 Master and Servant, § 3 ; Service.) A right in rem is always negative. 
 
 (2) § 7. A right in personam is one which imposes an obligation on a 
 definite person. Thus, if A. agrees to pay me 50/., my right to that sum 
 against A. is a right in personam, belonging to the class of primary 
 rights {supra, § 2). My right to liberty of action, so long as I do not 
 interfere with other persons' rights, is a right in rem ; if B. infringes that 
 right by imprisoning or assaulting me, I acquire a right to recover 
 damages against him, which is a right in personam belonging to the class 
 
 Rights in 
 personam 
 
Right LAW DICTIONARY. Right 72$ 
 
 of secondary rights {supra, § 5). § 8. Primary rights in personam arc 
 either affirmative [positive] or negative, according as they require for 
 their performance an act or a forbearance. Thus, if A. contracts with B. 
 not to carry on business in a certain place, B. has a negative right against 
 A. § 9. Primary rights in personam are also subject to the following 
 divisions : — absolute and conditional, legal and equitable, personal and 
 transmissible, and of perfect and imperfect obligation. 1 (See the various 
 titles, and Contract, § 11; Obligation, § 3.) 
 
 II. § 10. " Right " is used by the old writers on real property law in the "Right" and 
 technical sense of a right which an owner of land has when he has " estate - 
 been disseised, so that he has only the right of recovering possession 
 
 either by entry or action. His estate was then said to be turned to 
 
 a right. 2 If A. was disseised by B., and B. died while in possession, 
 
 so that the land descended to his heir, A. could not recover possession 
 
 by entry, but had to bring a possessory action (see Descent cast) ; if A. 
 
 further suffered a certain time to elapse, or had judgment given against 
 
 him in a possessory action, he could no longer recover by a possessory 
 
 action, but only by an action on the right, meaning the right of ownership 
 
 as opposed to the right to possession. Hence his estate was said to be Mere right. 
 
 turned to a mere, bare or naked right. 3 These distinctions no longer 
 
 exist, real actions having been abolished. 
 
 III. § 11. "Right," like "title" (q. v.), sometimes connotes the idea 
 of a mode of acquisition. Thus, a person is said to hold or own property 
 in his own right, or in right of another (in auter droit). If it descends to 
 him, or he purchases it, he obtains it in his own right ; but if he acquires 
 it as representing another person, he is said to take it in auter droit. 
 The principal mode of taking personal property in auter droit is by 
 executorship or administration, for the executor or administrator holds 
 the goods of the deceased as his representative. So when a man marries 
 a woman seised of land in fee in her own right, he gains an estate of 
 freehold in her right, lasting during the coverture. 4 The difference is of 
 importance with regard to the law of merger (q. v., § 3). 
 
 § 12. In the phrase " of common right," the word "right " seems to be Of common 
 used in a somewhat similar sense. Thus, when it is said that the remedy "S^t. 
 of distress for arrears of a rent-service exists of common right, 5 and that 
 every freehold tenant of a manor has a right of common of pasture 
 appendant of common right, it is meant that the right is created by law, 
 and not by agreement between the parties. 
 
 IV. § 13. "Right" is used in law, as well as in ethics, as opposed to "Right" and 
 " wrong." Thus a person may acquire a title by wrong. ' (See Title.) "wrong. 
 
 ] As to rights generally, see Austin's 2 Co. Litt. 345 a ; Archer's Case, 1 Rep. 
 
 Jurisprudence, Markby's Elements of Law, 67 a. 
 
 and Holland's Jurisprudence, passim. 3 Co. Litt. 266 a, notes to 239 a and 
 
 The divisions of rights into public and 278 b. 
 
 private, and into normal and abnormal, i Ibid. 350 b. 
 
 are not given here, because they are merely 5 Ibid. 142 a; where, however, the phrase 
 
 another way of classifying the law itself. "common right" is said to mean " com- 
 
 (See Law ; Status.) mon law." 
 
 6 Ibid. 122 a, 
 
726 Right of Action law dictionary. Right of Representation 
 
 RIGHT OF ACTION is the right to bring an action. Thus, a person 
 who is wrongfully dispossessed of land has a right of action to recover it. 
 (See Cause of Action; Chose in Action; Actio Personalis moritur cum Persona; 
 Remedy.") 
 
 § 2. In the old writers, "right of action" is commonly used to denote 
 that a person has lost a right of entry {q. v.), and has nothing but a right 
 of action left. 1 (See Right, § 10.) 
 
 RIGHT OF ENTRY is the right of taking or resuming possession 
 
 of land by entering on it in a peaceable manner. (See Rntty.) 
 
 Original or Rights of entry are of two kinds. § 2. An original or mere right of 
 
 mere - entry is a right of entry and nothing more. Thus, where a person has 
 
 been disseised of land, or where an estate has determined, so that he 
 
 becomes entitled to the possession of the land, he has an original right 
 
 of entry. This kind of right was formerly inalienable, but may now be 
 
 disposed of by deed. 3 It is sufficient to support a contingent remainder, 
 
 if the estate of the disseisee was itself sufficient. 3 
 
 On breach of § 3. A right of entry, by the exercise of which an existing estate is de- 
 
 condition, &c f eatec j j ; s a r jght attached to a reversion. It was formerly called a title of 
 
 entry, to distinguish it from an original right of entry, because it could not 
 
 be enforced by action, and was therefore not a right in the technical sense. 4 
 
 It is also sometimes called a right of re-entry. The commonest instance 
 
 of this kind of right occurs in an ordinary lease, in which it is usual to 
 
 reserve to the lessor the right of determining the lease by re-entry, if the 
 
 lessee fails to pay the rent or perform the covenants. 5 This kind of right 
 
 is inalienable by itself, although the benefit of the condition passes on an 
 
 assignment of the reversion, so that the assignee can take advantage of 
 
 any breach of the condition committed after the assignment. 6 
 
 See Continual Claim; Descent cast; Right of Action ; Title. 
 
 RIGHT OF REPRESENTATION AND PERFORMANCE.— 
 
 By the acts 3 & 4 Will. 4, c. 15, and 5 & 6 Vict. c. 45, the author of a 
 play, opera, or musical composition, or his assignee, has the sole right of 
 representing or causing it to be represented in public at any place in the 
 British dominions during the same period as the copyright in the work 
 exists. The right is distinct from the copyright, and requires to be sepa- 
 rately registered. 7 At one time they were distinguished by being called 
 book copyright and stage copyright, 9 but this is inaccurate. 
 
 § 2. The act 7 & 8 Vict. c. 12 provides for the protection, by Order in 
 Council, of the right of representing or performing in this country dramatic 
 
 1 Co. Litt. 363 b. » stat. 32 Hen. 8, c. 34; Huntv. Bishop, 
 
 2 Stat. 8 & 9 Vict. c. 106, s. 6 (see cases 8 Ex. 680 ; Hunt v. Remnant, 9 Ex. 640 ; 
 cited in note (6) as to the construction of Williams on Seisin, 125 ; "Woodfall, L. & 
 this section) ; "Williams on Seisin, 124 ; T. 289. 
 
 Litt. k\ 414 etseq, ' Sliortt on Copyright, 114 et seq. ; 
 
 3 Archer's Case, I Rep. 66 b. Coryton on Stage-Right. 
 
 4 Co. Litt. 240 a, 345 b; Feavne, C. R. 8 Reade v. Conquest, 11 C. B. (N. S.) 
 381, n. 479. (See Stage-Right.) 
 
 5 Litt. § 325. 
 
Right to Begin LAW dictionary. Riparian 727 
 
 pieces or musical compositions first publicly represented or performed in 
 a foreign country. 
 
 RIGHT TO BEGIN, on the hearing or trial of a cause, or the argu- 
 ment of a demurrer, petition, &c, is the right of first addressing the Court 
 or jury. The right to begin is frequently of importance, as the counsel 
 who begins has also the right of replying or having the last word after the 
 counsel on the opposite side has addressed the Court or jury. This rule 
 is subject to the exception that where the second counsel at a trial before 
 a jury does not call witnesses, the counsel who began has no right of 
 reply. 
 
 The general rule is, that the plaintiff has the right to begin if the affir- 
 mative of the issue is on him, or if the onus of proving any one material 
 issue, or of proving the amount of damages, rests on him. Otherwise, if 
 the affirmative of the issue lies on the defendant, he has the right to 
 begin. 1 
 
 RINGS. See Serjeant at Law. 
 
 RIOT. — § 1. A riot is an unlawful assembly which has actually begun 
 to execute the purpose for which it assembled by a breach of the peace, 
 and to the terror of the public. A lawful assembly may become a riot if 
 the persons assembled form and proceed to execute an unlawful purpose, 
 to the terror of the people, although they had not that purpose when they 
 assembled. But a riot cannot take place unless three persons at least are 
 present. Every person convicted of riot is liable to be sentenced to fine 
 and imprisonment with or without hard labour. 3 
 
 § 2. Where twelve or more persons are committing a riot, it is the duty Reading the 
 of the mayor, sheriff, and certain other officers to make a proclamation in 10 
 the Queen's name, commanding them to disperse; 3 and every person who 
 obstructs the making of the proclamation, or continues to riot for one 
 hour afterwards, is guilty of felony, and liable to penal servitude for life, 
 or three years' imprisonment with hard labour. 4 
 
 § 3. The riotous demolition, or attempted demolition, of any building, Riotous 
 machinery, or mining plant, is felony punishable with penal servitude for ln J unei * t0 
 life, or two years' imprisonment with hard labour. Riotous damage or 
 injury to any building, machinery, or mining plant, is a misdemeanor, 
 punishable with seven years' penal servitude, or two years' imprison- 
 ment. 6 
 
 See Unlawful Assembly; Rout; Affray. 
 
 RIPARIAN is that which relates to or is connected with the bank 
 of a river. 6 A riparian proprietor or owner is a person who owns land 
 
 1 Archbold, Pr. 354, 368. l Stat. I Geo. I, st. 2, c. 5 ; Russell, i. 
 
 2 Stephen's Crira. Dig. 41 ; Russell on 374. 
 
 Crimes, i. 364 et seq., 389 ; stat. 3 Geo. 4, 6 Stat. 24 & 25 Vict. c. 97 ; Russell, i. 
 
 c. 114. 368. See also stat. 33 Geo. 3, c. 67. 
 
 3 Commonly called reading the Riot 6 Not the bed of the river : Lyon v. 
 Act. Fishmongers' Co., 1 App. Ca. at p. 683. 
 
728 
 
 Risk 
 
 LAW DICTIONARY. 
 
 Rivers 
 
 Entire. 
 
 Divided. 
 
 Public. 
 
 Private. 
 
 through or past which a river runs ; and riparian rights are those arising 
 from such a property. The riparian owner whose land is nearer the 
 source of the river is called the upper riparian owner as compared with 
 him whose land is more remote from the source. 1 
 As to the rights of riparian owners, see Water. 
 
 RISK, in the law of marine insurance, denotes— I. a danger or peril 
 insured against ; II. the possibility of the loss happening under such cir- 
 cumstances as to make the underwriter liable; 2 when this possibility has 
 arisen {e. g., by the departure of the vessel), the risk is said to commence 
 or attach, 3 and the assured's interest is said to be at risk. 4 § 2. When 
 the insurance is of such a nature that the peril which would make the 
 underwriter liable for a total loss may happen as soon as the risk com- 
 mences, the risk is said to be entire ; if, on the other hand, some circum- 
 stance which would have contributed to the happening of the peril 
 insured against has not taken place, the risk is divided or apportionable. 
 For instance, if the ship deviate, the underwriter is discharged, but inas- 
 much as if she had been lost before the deviation he would have been 
 liable, he has run the whole risk, and it is therefore said to be entire ; 
 but if part of the risk insured against has not been run (as where part of 
 the cargo insured has not been shipped), the risk is divided, and the 
 assured is entitled to a return of that proportion of the premium which 
 covered the risk not run. 5 
 
 RIVERS. — § 1. A public navigable river is one which is actually 
 navigable and in which the tide ebbs and flows ; all other rivers on which 
 navigation is carried on. are private rivers over which the public have 
 acquired a right or easement of navigation. 6 The ownership of the bed 
 of a public navigable river is prima facie in the crown. As to the right 
 of navigation, see Navigable; as to the right of fishing in a public river, 
 see Fishery, §§2, 5. 
 
 § 2. All rivers and streams above the flow and reflow of the tide are 
 prima, facie private, although many have become by immemorial user or 
 by act of parliament subject to public rights of navigation. The right 
 of navigation gives no right of property, or of fishing. § 3. When a 
 private river runs through land belonging to one person, he is prima facie 
 the owner of the bed ; when a private river separates the lands- of two 
 owners, each is prima facie owner of the soil of the bed to the middle of 
 the stream (ad medium filum aquae). 7 As to the effect of alluvion and 
 dereliction, see those titles ; see further as to rivers, and as to the rights 
 of riparian owners, title Water. 
 
 § 4. The pollution of rivers is forbidden by the Rivers Pollution Act, 
 1876. 
 
 1 Swindon Waterworks Co. v. Wilts, &c. 4 Allison v. Bristol, &*c. Co., 1 App. 
 
 Co., L. R., 7 H. L. 697. Ca. 209. 
 
 8 See lonides v. Pender, L. R., 9 Q. B. 5 Maude & Pollock, 429 ; Smith's Merc, 
 
 at p. 538. Law, 398 et seq. 
 
 s Maude & Pollock, Mercli. Shipp. 6 Coulson & Forbes on Waters, 58. 
 
 428. ' Ibid. 92 ct seq. 
 
Robbery LAW DICTIONARY. Rolls 729 
 
 "ROBBERY is where a person, either with violence or with threats of 
 injury, takes and carries away a thing which is on the body, or in the 
 immediate presence of the person from whom it is taken, under such cir- 
 cumstances that in the absence of violence or threats the act committed 
 would be a theft. 1 
 
 The punishment for robbery is imprisonment or penal servitude, vary- 
 ing according to the nature of the violence or threats used. 2 
 
 Etymology.] — Teutonic, roup ; Anglo-Saxon, reaf, the act of violently taking away 
 something from the person of another, especially armour or clothing from a vanquished 
 enemy. 3 
 
 ROGATIO TESTIUM, in making a nuncupative will, is where the 
 testator formally calls upon the persons present to bear witness that he 
 has declared his will. 4 (See Will.) 
 
 ROGUES. See Vagrancy. 
 
 ROLLING STOCK of a railway company cannot be taken in execu- 
 tion 5 (see Execution, § 7) ; and the rolling stock of a railway company, 
 when in use in a manufactory, pier, mine, or similar place belonging to 
 some person or company other than the railway company, cannot be taken 
 in distress for rent payable by the tenant of the manufactory, pier, mine, 
 &c, provided it is conspicuously marked as belonging to the railway 
 company. 6 
 
 ROLLS. — § 1. In ancient times all the principal records were written. 
 on pieces of parchment stitched together so as to form a long continuous 
 piece, which was rolled up when not in use. Hence such records were 
 called " rolls." This practice was followed up till modern times in the 
 Court of Chancery, when decrees were not unfrequently enrolled (see 
 Enrolment, § 3), and seems to be still employed in the case of recog- 
 nizances entered into by receivers, liquidators, &c. appointed by the 
 High Court. In most other cases, however, the practice of writing on 
 rolls has been abandoned for the more convenient method of inscribing 
 in books. 
 
 § 2. The Parliament Rolls are the records of the proceedings of par- Parliamen- 
 liament, especially acts of parliament, and therefore when any misprint tal 7 - 
 appears in a printed copy of a statute, the parliament roll is consulted to 
 correct the error. 7 
 
 § 3. The Patent Rolls contain grants of liberties, privileges, lands, Patent and 
 offices, &c, creations of peers, and other letters patent {q.v.), while the close rolls ' &c " 
 Close Rolls are the records of letters close {q.v.)? There are also 
 
 1 Stephen's Crim. Dig. 208 ; Russell on Rail. Co., 6 Q. B. D. 36. 
 Crimes, ii. 78. 6 Stat. 35 & 36 Vict. c. 50. 
 
 2 Stat. 24 & 25 Vict. c. 96, ss. 40 et seq. ' Formerly there was a distinction be- 
 
 3 Schmitt. Wortb. s. v. Raub. Spelman tween the parliament rolls and the statute 
 and Coke (Co. Litt. 288 a) derive it from rolls (Bl. Com. i. 182); but this seems not 
 roba, while in truth roba comes from roup : to exist at the present day : see In re 
 Littre, s. v. Derober; Robe. Venour's Settled Estates, 2 Ch. D. at p. 
 
 i Williams, Ex. 116; Browne's Probate 523. 
 Pr. 59. 8 Report on Public Records (1837), 67 ; 
 
 5 See Midland Waggon Co. v. Potteries Steph. Comm. i. 618. 
 
730 
 
 Roman 
 
 LAW DICTIONARY. 
 
 Royal Mines 
 
 Court rolls of 
 manor. 
 
 Roll of soli- 
 citors. 
 
 Common law- 
 practice. 
 
 numerous other kinds of rolls of a similar nature, such as the charter 
 rolls, fine rolls, liberate rolls, perambulation rolls, hundred rolls, &C. 1 
 
 The rolls above described form part of the public records of the king- 
 dom, and are kept at the Public Record Office in London. 
 
 § 4. The court rolls of manors were in ancient times long pieces of 
 parchment, rolled up into convenient bundles ; but in modern times what 
 is called the court roll is neither more nor less than a large book. in 
 which the steward enters every transaction relating to the copyhold lands 
 of the manor. 2 (See Copyhold, § 1.) 
 
 § 5. The admission of every solicitor of the Supreme Court requires to 
 be enrolled in a roll or book kept for that purpose by the Clerk of the 
 Petty Bag. 3 A solicitor is said to be struck off the rolls when his name 
 is taken out of this roll, either on his own application, where he wishes 
 to cease practising as a solicitor, or on the application of some one else, 
 when he has been guilty of misconduct. 
 
 \ 6. In the old common law practice the steps in every action were entered on a roll, 
 which was called the plea roll, the issue roll, and the judgment roll, according to the 
 stage which the action had reached. This kind of roll no longer exists, the cause book 
 and judgment book having taken its place. 1 
 
 ROMAN CATHOLICS.— The only disabilities to which Roman 
 Catholics are now subject seem to be inability to present to a benefice, 
 and incapacity to hold certain public offices, especially that of Lord 
 Chancellor, Lord_ Lieutenant of Ireland, or any office in the Church of 
 England or Scotland, or in .the ecclesiastical Courts, or in the universities, 
 colleges or public schools of this kingdom. 5 
 
 ROOT OF DESCENT is the same as "stock of descent." (See 
 Descent, §§ 2 et seq.) 
 
 ROOT OF TITLE. See Title. 
 
 ROUT. — A rout is an unlawful assembly which has made a motion 
 towards the execution of the common purpose of the persons assembled. 6 
 It is, therefore, between an unlawful assembly and a riot {q. v.). 
 
 Taking part in a rout seems to be a misdemeanor at common law. 7 
 
 See Unlawful Assembly. 
 
 ROYAL FISH are whale and sturgeon, and these, when either 
 thrown ashore or caught near the coast, are the property of the king. 8 
 (See Prerogative, § 2.) 
 
 ROYAL MINES. See Minerals, § 2. 
 
 1 Report on Public Records (1837), 67 ; 
 Steph. Comm. i. 618. 
 
 2 Williams on Seisin, 37. 
 
 3 Solicitors Act, 1877 ; Reg. 
 1875 .' Archbold, Pr. 63. 
 
 4 Smith's Action, 59 et seq. 
 
 2, Nov. 
 
 6 Stat. 10 Geo. 4, c. 7 
 ii. 711. 
 
 Stephen, Crim. Dig. 
 Crimes, i. 372. 
 
 7 Russell, 389. 
 
 8 Bl. Comm. i. 290. 
 
 Steph. Comm. 
 41 ; Russell on 
 
Royalty law dictionary. Rule 731 
 
 ROYALTY is a payment reserved by the grantor of a patent, lease 
 of a mine or similar right, and payable proportionately to the use made 
 of the right by the grantee. It is usually a payment of money, but may 
 be a payment in kind, that is, of part of the produce of the exercise of Royalty in 
 the right. 1 (See Rent, § 6.) 
 
 § 2. Royalty, also, sometimes means a payment which is made to an 
 author or composer by an assignee or licensee in respect of each copy of 
 his work which is sold, or to an inventor in respect of each article sold 
 under the patent. 
 
 RULE, — I. § 1. A rule is a regulation made by a Court of justice or 
 public office with reference to the conduct of business therein. Most 
 rules are made under the authority of an act of parliament, and then have 
 the same effect as an enactment of the legislature ; such are the supple- 
 mental rules of Court made by the judges under the Judicature Acts, and 
 the rules issued under the Land Transfer Act. (See Land Registries, §5.) 
 
 II. § 2. "Rule" also signifies an order or direction made by a Court 
 of justice in an action or other proceeding. The term is confined to the 
 Queen's Bench Division of the High Court, being borrowed from the 
 practice of the old common law Courts. 
 
 § 3. A rule is either — (1) absolute in the first instance, or (2) calling Absolute: 
 upon the opposite party to show cause why the rule applied for should c ° u s se ° w 
 not be granted ; a rule of the latter kind is called a rule to show cause, or 
 a rule nisi, because if no sufficient cause is shown, the rule is made abso- 
 lute ; otherwise it is discharged. On a motion for a new trial, the rule is 
 in the first instance a rule nisi only. In certain cases, to save time, the 
 party against whom the rule is applied for agrees, with the permission of 
 the Court, to " show cause in the first instance :'' that is, to argue against 
 the granting of a rule absolute when the application is first made, instead 
 of compelling the opposite party to obtain a rule nisi, and then showing 
 cause or arguing against it. 2 (See Absolute ; Nisi ; Order, § 3.) 
 
 § 4. Rules of the kind above described are obtained on motion by 
 counsel (see Motion) ; but there are some cases in which rules are 
 obtained without any motion. Thus, a rule to make a submission to 
 arbitration a rule of Court is granted upon the mere production of 
 a motion paper signed by counsel. Other rules may be obtained without 
 the assistance of counsel, generally by leaving at the proper office a 
 praecipe or memorandum of the rule required. Formerly many rules Side-bar 
 of this kind were moved for by the attorneys at the side bar in Court, and m es " 
 were hence called side-bar rules. A rule that a sheriff return a writ, is an 
 example of a side-bar rule. There are also certain rules which are 
 obtained upon a judge's fiat. 3 
 
 III. § 5. " Rule" sometimes means a rule of law. Thus we speak of Rule of law. 
 the rule against perpetuities, the rule in Shelley's case, &c. (See Law ; 
 Perpetuity ; Shelley's Case.) 
 
 1 Van Mining Co. v. Overseers of 3 Archbold, Pr. 534, 1268; Angell v. 
 Llanidloes, 1 Ex. D. 310. Baddeley, 3 Ex. D. 49. 
 
 s Archbold, Pr. 1254 et seq. 
 
732 Rule of Court LAW DICTIONARY. Sacrilege. 
 
 RULE OF COURT* generally means a rule of procedure. (See Rule, 
 § i.) Sometimes, however, it means an order made by a Court in a 
 particular action or matter : thus, a submission to arbitration may provide 
 that it may be made a rule of Court, and if so either party may obtain an 
 order of the Court to that effect, the operation of which is that the award 
 becomes enforceable by judicial means. 1 (See Award, § 4; Rule, § 2.) 
 
 RULE OF THE ROAD is the popular name for the regulations 
 governing the navigation of vessels in public waters, with a view to 
 preventing collisions. The regulations applying to the high seas are 
 contained in an Order in Council of the 14th August, 1879, made under 
 the 25th sect, of the Merchant Shipping Act, i86z. 3 Additional regula- 
 tions were made on the 24th March, 1880, 17th September, 1880, and 
 14th December, 1880. 3 The regulations applying to the Thames are 
 contained in the bye-laws made by the Thames Conservancy on the 
 5th February, 1872, 25th November, 1874, 17th March, 1875, nth July, 
 1877, nth November, 1879, and 18th March, 1880. 4 
 
 RUNNING DAYS. — Where a charterparty contains a clause of 
 demurrage, it may be a question whether the days allowed by it (lay days) 
 are meant to be working days, that is, excluding Sundays, or running 
 days, that is, including Sundays. By the custom of London, lay days are 
 taken to mean working days, while, in the absence of custom, they mean 
 running days. 5 (See De?nuirage ; Lay Days.) 
 
 RUNNING WITH THE LAND — RUNNING WITH THE 
 REVERSION. See Covenant, § 5. 
 
 RURAL DEANS are very ancient officers of the Church, but their 
 authority is almost grown out of use. 6 A rural deanery is a sub-division 
 of an archdeaconry. The duties of a rural dean seem to consist in exe- 
 cuting all processes (or writs) directed to him by the bishop, in inspecting 
 and reporting to the bishop on the lives and manners of the clergy and 
 people within his district, 1 and in examining candidates for confirmation. 8 
 (See Dean.) 
 
 SACRILEGE. — A person who breaks into a place of divine worship 
 and commits any felony therein, or who being in a place of divine worship 
 commits any felony therein and breaks out of it, is liable to imprisonment 
 
 1 Common Law Proc. Act, 1854, s. 17 ; 4 Coulson & Forbes, 673. 
 Archbold, Pr. 13 14. 6 Smith's Merc. Law, 293; Brown v. 
 
 2 They are set out in Coulson & Forbes Johnson, 10 M. & "W. 331. 
 on "Waters, 403, and are printed in the * Bl. Coram, i. 383. 
 
 Law Reports, 4 P. D. 241. ' Phillhnore, Eccl. Law, 251 et sea, 
 
 3 5 P. D. 269 et seq. » steph. Comm. ii. 679. 
 
Sacrilege LAW DICTIONARY. Sale 733 
 
 for two years or penal servitude for life (maximum). 1 And any person 
 who unlawfully pulls down, defaces, or breaks any altar, crucifix or cross 
 in any church, chapel or churchyard is liable, on summary conviction, to 
 imprisonment for three months, or until he repents. 2 (See also Arson.) 
 
 SALE. — § 1. A sale is a transmutation of property or of a right from 
 one man to another, in consideration of a sum of money, as opposed to 
 barters, exchanges and gifts (q.v.). 3 Almost any right may be transferred 
 for a price, but the term "sale" is only applied to cases where the whole 
 right of the vendor is transferred, not to cases where he creates a new or 
 limited right in consideration of a money payment : thus a mortgage or 
 lease is not a sale. § 2. Every sale includes (a) the agreement 4 or bargain, 
 (b) the payment of the price, and (c) the delivery or conveyance of the 
 property. Sometimes the three transactions take place simultaneously, as Simple sale, 
 where I go into a shop, select an article, pay the price and take it away, 
 and then the transaction is a simple sale. But either the payment of the 
 price, or the delivery (or conveyance) of the property, or both, may be 
 postponed to a future time, giving rise to a contract or agreement to do 
 something in future. 5 § 3. In the case of chattels, such a postponement Bargain and 
 does not prevent the property or ownership from passing from the vendor sale- 
 to the vendee, provided that the thing sold is existent and ascertained, 
 and that the contract of sale fulfils the legal requisites (see Statute of 
 Frauds), and therefore the " sale " is complete as soon as the contract 
 has been entered into : such a transaction is called a " bargain and sale " 
 (q. v.) or an executed contract of sale, 5 although the contract has not been 
 performed. § 4. But in the case of an agreement for the sale of land or Executory 
 of unascertained goods {e.g., ten sheep to be selected from a given flock), sale- 
 the ownership does not pass, and therefore the sale is not complete until 
 the land has been conveyed, or the goods ascertained : such a transaction 
 is an executory contract of sale. (See Appropriation, § 2.) 
 
 § 5. Ordinarily the person who sells is the owner of the property or his Sale by non- 
 agent, but in some cases a person may sell property which does not 
 belong to him, e.g., a sheriff who has taken goods in execution. So a 
 person may have a power of sale over property without having the owner- 
 ship in it ; as in the case of an ordinary mortgagee of land or a pledgee 
 of chattels. (See Mortgage, § 8; Power, §§ 5, 6.) So when a person has 
 a charge on property, he may take proceedings in the High Court to have 
 it sold in satisfaction of the debt. This is sometimes called a judicial Judicial sale, 
 sale. (See Hypothecation, §2.) 
 
 1 Stat. 24 & 25 Vict. c. 96, s. 50 ; Rus- 5 Benjamin on Sales, 3. When the 
 sell on Crimes, ii. 55. vendor brings an action for the price of 
 
 2 Stat. 1 Mary (sess. 2), u. 3 ; Russell, goods which have been delivered his claim 
 i. 399. is for "goods sold and delivered ;" if the 
 
 3 Chitty on Contracts, 346 ; Smith's goods have not been delivered his claim is 
 Merc. Law, 479 ; Benjamin on Sales, 2. for "goods bargained and sold." See 
 
 1 "Agreement" is here used in its sim- Rules of Court, App. A, part ii. sect. ii. 
 
 plest sense, as denoting the common in- form I. 
 
 tention of two persons, not in the sense of 6 Wms. Pers. P. 44 ; Benjamin, 3, 227. 
 "contract." (See Agreement, § 1.) 
 
 owner. 
 
734 
 
 Compulsory 
 sale. 
 
 Salford Hundred law dictionary. 
 
 Salvage 
 
 § 6. Again, a sale is usually a voluntary act, but in some cases the, 
 owner of property may be compelled to sell it by the order of a Court : 
 thus in an action for partition the Court may order a sale instead of a 
 partition if the nature of the property makes that course preferable, and 
 then even the non-assenting co-owners are ordered to join in the convey- 
 ance, or the conveyance is effected without their concurrence. 1 (See 
 Vesting Order.) Railway and other companies are frequently empowered 
 to purchase land, &c. from the owners against their will. (See Power, § 2.) 
 
 See Bill of Sale; Contract, § 14; Resale; Vendors and Purchasers; 
 Warranty. 
 
 SALFORD HUNDRED COURT OF RECORD is an inferior 
 and local Court of Record having jurisdiction in personal actions where 
 the debt or damage sought to be recovered does not exceed 50/., if the 
 cause of action arise within the Hundred of Salford. 3 (See Hundred.) 
 
 Equitable 
 salvage. 
 
 SALVAGE — SALVORS. — I. § i. Salvage is the compensation al- 
 lowed to persons (salvors) by whose assistance a ship, or boat, or the 
 cargo of a ship, or the lives of the persons belonging to her, are saved 
 from danger or loss, in cases of shipwreck, dereliction, capture, or the 
 like. The assistance must be voluntary, and not under any contract or 
 duty, and must involve skill, enterprise and risk on the part of the salvors. 3 
 Salvors have a retaining lien for their remuneration on the property rescued.* 
 (See Lien, §§ 4, 6.) In the absence of an agreement between the salvors 
 and the owners of the property salved, the Court will assess the amount 
 which ought to be paid to the salvors. In doing so the Court will have 
 regard to the skill, enterprise and risk involved, and to the fact that if 
 their efforts had been unsuccessful, they would not have been paid any- 
 thing. 5 The Court will refuse to enforce an exorbitant salvage agree- 
 ment. 6 (See Towage.) 
 
 § 2. Claims for salvage are usually enforced in Courts having admiralty 
 jurisdiction. 7 (See Action, §§ 11 et seq.; Admiralty.) 
 
 II. § 3. By analogy, the term salvage is also used in cases which have 
 nothing to do with maritime perils, but in which property has been pre- 
 served from loss by the last of several advances by different persons. In 
 such a case, the person making the last advance is frequently entitled to 
 priority over the others, on the ground that, without his advance, the pro- 
 perty would have been lost altogether. This right, which is sometimes 
 called that of equitable salvage, and is in the nature of a lien, is chiefly 
 of importance with reference to payments made to prevent leases or policies 
 of insurance from being forfeited, or to prevent mines and similar under- 
 takings from being stopped or injured. 8 
 
 1 Dart, V. & P.' 1 190 et seq. 
 
 2 Stat. 31 & 32 Vict. u. cxxx; Oram v. 
 Breary, 2 Ex. D. 346. 
 
 3 Maude & Pollock, Merch. Shipp. 477 ; 
 Smith's Merc. Law, 331 ; Merch. Shipp. 
 Act, 1854, part via. ; The Cleopatra, 3 P. 
 D. 145. 
 
 4 Maude & Pollock, 487. 
 
 5 Aitchison v.Lohre, 4 App. Ca. 755, 
 G The Silesia, 5 P. D. 177. 
 
 7 Williams & Bruce's Admiralty, 91 
 et seq. 
 
 8 See Fisher on Mortgage, 149, ii. 620 ; 
 Ex parte Grissell, 3 Ch. D. 411 ; Shear- 
 
Sanction LAW DICTIONARY. Satisfaction 735 
 
 SANCTION. — In the original sense of the word a sanction is a penalty 
 or punishment provided as a means of enforcing obedience to a law. 1 In 
 jurisprudence a law is said to have a sanction when there is a State which 
 will intervene if it is disobeyed or disregarded, 2 Therefore, international 
 law has no legal sanction. 
 
 SANITARY AUTHORITIES are bodies having jurisdiction over 
 their respective districts in regard to sewerage, drainage, scavenging, the 
 supply of water, the prevention of nuisances and offensive trades, &c, all 
 of which come under the head of " sanitary matters " in the special sense 
 of the word. Sanitary authorities also have jurisdiction in matters coming 
 under the head of " local government" (q. v.)? § 2. Urban sanitary au- Urban, 
 thorities have jurisdiction in boroughs, towns, and other places having 
 "known and denned boundaries." 4 Rural sanitary authorities have juris- Rural. . 
 diction in poor law parishes and unions not being within an urban dis- 
 trict. 5 A port sanitary authority is one having jurisdiction over a port. 6 Port. 
 London is subject to special acts called the Metropolis Local Manage- 
 ment Acts.' (See Local Boards of Health ; Metropolitan Board of Works; 
 Nuisance; Rate.) 
 
 SANS NOMBRE,as applied to rights of common, means not a common 
 for innumerable beasts, but for a number not certain, 8 the limit being fixed 
 by some other standard than that of number. § 2. Common of pasture in 
 gross sans nombre is a right to turn on the common so many cattle as the 
 common will maintain beyond the cattle of the lord and those who have 
 common appendant and appurtenant there. 9 § 3 . As applied to common 
 of pasture appurtenant, the term " sans nombre" can mean no more than 
 that the measure of the right is levancy and couchancy (q. v.). w 
 
 SATISFACTION is the exhaustion of an obligation by performance 
 (q. v.), or some act equivalent to performance. Thus, where a debt 
 is due by one person to another, payment by the debtor or retainer 
 by the creditor produces satisfaction of the debt. § 2. A judgment may Judgment, 
 be satisfied by payment or execution, and when this has been done 
 the defendant is entitled to have satisfaction entered ; to do this a Satisfaction 
 satisfaction piece or slip of paper, showing that the judgment has been P lece * 
 satisfied, is produced at the judgment office. 11 
 
 § 3. In equity, the doctrine of satisfaction is chiefly made use of in Satisfaction in 
 cases where satisfaction is implied from the ambiguous acts or language equl y ' 
 of testators or settlors. Thus, if a parent bequeaths a legacy to a child 
 
 man v. British, Empire Insurance Com- ' Especially stat. 18 & 19 Vict. c. 120. 
 
 pany, L. R., 14 Eq. 4; Saunders v. 8 Per Babington, C. J., 11 Hen. 6, 22 B, 
 
 Dunman, 7 Ch. D. 825. cited Cooke, Incl. 26. 
 
 1 Just. Inst. ii. 1, 10. 9 Elton, Comm. 79 ; Cooke, Incl. 27. 
 
 2 Holland, Jurisp. 60. 10 Elton, 193, 67. 
 
 3 Public Health Act, 1875, passim. u Chitty, Pr. 721; Cattlin v. Kernot, 
 
 • * See Reg. v. Northowram, L. R., I Q. 3 C. B., N. S. 796. As to the entry of 
 
 B. no. satisfaction in the case of registered judg- 
 
 5 Public Health Act, 1875, part ii. ments, lites pendentes, &c, see stats. 23 
 
 6 Ibid, ss.287 etseq. & 24 Vict. «.-. 115 ; 30 & 31 Vict. c. 47. 
 
736 Satisfied Term LAW DICTIONARY. Savings Banks 
 
 by way of portion, and afterwards {e.g., upon the marriage of the child) 
 gives him a sum by way of portion, the latter sum operates as a satisfac- 
 tion of the former, either completely or pro tanto ; that is, the child 
 cannot claim the legacy on the death of the parent. So if a testator 
 gives a legacy to his creditor, it operates as a satisfaction of the debt, 
 provided that the legacy is equal to or greater than the debt, and that no 
 Satisfaction contrary intention appears. 1 § 4. Sometimes "satisfaction" is dis- 
 tion ademP " tinguished from "ademption," the former being applied to cases where 
 a person has entered into an agreement or covenant to settle property on 
 another, and afterwards gives that person an equal or greater benefit by 
 his will, in such a manner that he must be presumed to have intended the 
 gift to operate as a satisfaction of his agreement or covenant, and not to 
 be an additional benefit ; while " ademption " is the converse case of a 
 person giving property by will and afterwards giving a similar benefit by 
 deed impliedly in satisfaction of the former gift. The distinction lies in 
 the difference between revocable and irrevocable instruments, and is of 
 importance in this respect, that in cases of satisfaction the persons 
 intended to be benefited by the covenant and the will must be the same, 
 while in cases of ademption they may be different. 2 
 See Cumulative ; Election ; Performance. 
 
 SATISFIED TERM. See Term. 
 
 SAVIGNY. — Friedrich Carl von Savigny, the greatest modern jurist, 
 was born 21st February, 1779, at Frankfort-on-the-Main ; became pro- 
 fessor at Marburg, Landshut and Berlin, where he was made minister for 
 the revision of the statutes; and died 25th October, 1861. He founded 
 the historical school of jurisprudence. His principal works are : — The 
 Right of Possession (translated into English by Sir Erskine Perry) ; The 
 Capacity of our Age for Legislation and Jurisprudence (translated into 
 English by A. Hayward, under the title of " The Vocation of our Age, 
 &c") ; History of Roman Law in the Middle Ages ; System of Modern 
 Roman Law ; and the Law of Obligations. 3 
 
 SAVINGS BANKS. — Provision was made by various statutes from 
 9 Geo. 4, c. 92, to 23 & 24 Vict. c. 137, for the formation and regulation 
 of savings banks. By the stat. 26 & 27 Vict. c. 87, these acts were 
 repealed, and fresh provisions were made on the subject; but it was 
 enacted that no new banks should be formed under the act unless 
 approved by the Commissioners for the Reduction of the National Debt. 
 The moneys of savings banks certified under the act are paid into the 
 Bank of England to the credit of the commissioners, and interest is 
 allowed on them. Purchases of government stocks may be made by 
 depositors in savings banks. 4 Savings Banks have also been established 
 
 1 Haynes's Eq. 323 ; Snell's Eq. 194 ; 2 Lord John Chichester v. Coventry, L. 
 
 "Watson's Comp. Eq. 846; White & R., 2 H. L. 71. 
 Tudor's L. C. ii. 349. 3 Holtz. Encycl. 
 
 4 Stat. 16 & 17 Vict. c. 45. 
 
Scandal LAW DICTIONARY. Scienter 737 
 
 by government in connection with the Post Office under the acts 24 Vict. 
 c. 14, and 26 Vict. c. 14. 1 
 
 SCANDAL— SCANDALOUS.— In pleading, "scandal consists 
 in the allegation of anything which is unbecoming the dignity of the 
 Court to hear, or is contrary to good manners, or which charges some 
 person with a crime not necessary to be shown in the cause : to which 
 may be added, that any unnecessary allegation, bearing cruelly upon the 
 moral character of an individual, is also scandalous." 2 
 
 Scandalous matter in a pleading is liable to be struck out. 3 
 
 • 
 
 SCHEME. — § 1. A scheme is a document containing provisions for 
 regulating the management or distribution of property, or for making an 
 arrangement between persons having conflicting rights. Thus, in the Charity, 
 practice of the Chancery Division, where the execution of a charitable 
 trust in the manner directed by the founder is difficult or impracticable, 
 or requires supervision, a scheme for the management of the charity will 
 be settled by the Court. 4 
 
 § 2. By the Charitable Trusts Acts (q. v.), the Charity Commissioners are 
 empowered to provisionally approve and certify schemes which cannot be 
 carried into effect without the authority of parliament, and report them to 
 parliament to be included in a general act. 5 (See Cy-prh ; Enclosure 
 Commissioners. ) 
 
 § 3. By the Railway Companies Act, 1867, when a company is unable Scheme under 
 to meet its engagements with its creditors, the directors may prepare Railway Com- 
 a scheme of arrangement between the company and the creditors, and 1867. 
 file it in the Chancery Division ; if it is assented to by three-fourths of 
 each class of creditors and a majority of the shareholders, it may be 
 confirmed by the Court and enrolled, and then has the force of an act of 
 parliament. 6 
 
 SCHOOL. See Education. 
 
 SCIENTER is an allegation in a pleading that the defendant or 
 accused person did a thing knowingly. Thus, in an indictment for 
 receiving stolen goods, the allegation that the prisoner knew them to have 
 been stolen is called the scienter. 7 So, where a person keeps an animal 
 of a savage disposition, he is answerable for any injury it may do (even 
 though he has done his best to keep it from doing harm), if reasonable 
 ground can be shown for presuming that its ferocious character was 
 known to him : this knowledge is technically called the scienter? Proof of 
 the scienter is not necessary in actions for injury by dogs to sheep or 
 cattle. 9 (Latin, scienter = knowingly. 10 ) 
 
 1 For the other acts, see Chitty's 6 Stat. 30 & 31 Vict. c. 127, ss. bet sea. ; 
 Statutes, tit. Savings Banks. Daniell, Ch. Pr. 1888. 
 
 2 Daniell's Ch. Pr. 290. 7 Pritchard, Q. S. 325. 
 
 3 Rules of Court, xxvii. 1. s Campbell on Negligence, 53 ; Under- 
 * Tudor's Char. Trusts, 257; Hunter's hill on Torts, 141. 
 
 Suit, 248 ; Darnell's Ch. Pr. 1765. 9 Stat. 28 & 29 Vict. c. 60. 
 
 5 "Watson's Comp. Eq. 58. 10 The form was "Quare quosdam canes 
 
 S. 3 B 
 
7.38 
 
 Scintilla Juris 
 
 LAW DICTIONARY. 
 
 Scire facias 
 
 SCINTILLA JURIS (= "a spark or fragment of right"). If a 
 conveyance of land is made to A. and his heirs to the use of B. and 
 his heirs until the happening of a certain event and then to the use of C. 
 and his heirs, tke use is executed in B. and his heirs, so that A. has no 
 seisin left in him. If then the event happens, who is seised to the use 
 of C. ? Formerly it was supposed that on the happening of the event the 
 original seisin reverted back to B., so that he was seised to the use of C, 
 and that meantime a possibility of seisin, or scintilla juris, remained in 
 him. 1 This doctrine was always discountenanced by the best authorities, 2 
 and was formally abolished by the stat. 23 & 24 Vict. c. 38, s. 7. 
 
 Scire facias to 
 repeal letters 
 patent. 
 
 SCIRE FACIAS.— I. § 1. In proceedings in the High Court of 
 Justice, a scire facias is a writ founded upon some record, such as a 
 judgment, recognizance, letters patent, &c, and directs the sheriff to make 
 known to {scire facias) or warn the person against whom it is brought to 
 show cause why the person bringing it should not have advantage of the 
 record, or (as in the case of a scire facias to repeal letters patent) why the 
 record should not be annulled and vacated. It is in all cases considered 
 in law as an action, because the defendant may plead to it, 3 but in some 
 cases it is an original writ, while in others it is rather a writ of execution. 
 
 § 2. Formerly the writ always issued from the Court in which the 
 record on which it was founded was supposed to remain, 4 so that a scire 
 facias on a judgment in the Queen's Bench would be issued out of the 
 Court of Queen's Bench. At the present day, therefore, it would seem 
 that such a scire facias would be brought in the Queen's Bench Division. 5 
 Similarly a scire facias on a receiver's recognizance is issued out of the 
 Petty Bag Office {q. v.)." 
 
 § 3. If the sheriff executes the writ by warning the defendant, he 
 returns scire feci (" I have caused to be warned"); if he does not warn 
 him, he returns nihil. After the return the plaintiff enters a rule to appear 
 (see Rule, § 2); if the defendant fails to appear, judgment goes against 
 him by default. If, however, he appears, the plaintiff delivers a declara- 
 tion praying execution, and the pleadings proceed as in an action at law 
 under the old practice (see Pleading, §11); every issue of fact on a scire 
 facias is tried in the Queen's Bench Division. 7 
 
 § 4. A scire facias is an original action when it is issued to repeal 
 letters patent : thus, if the Queen by her letters patent has granted 
 one and the selfsame thing to several persons, the first patentee may sue 
 out a scire facias to repeal the subsequent letters patent ; or when the 
 Queen has been deceived or mistaken she may by scire facias repeal her 
 own grant. 8 
 
 ad mordendas oves consuetos apud B. 
 scienter retinuit" (Reg. Brev. nob) ; thus 
 justifying the decision that "every dog was 
 entitled to at least one worry" : Fleming 
 v. Orr, 2 Macq. 14. 
 
 1 Williams, R. P. 295. 
 
 ' Hayes, Conv. i. 61 et seq. ; Sugden on 
 Powers, 19 ; Fleta, 273. 
 
 3 Co. Litt. 290 b; Chitty, Pr. 1140; 
 
 Tidd, Pr. 1090; Foster on Scire Facias, 
 13 ; Wms. Saund. ii. 22, 71. 
 
 4 Archbold, Pr. 935. 
 
 6 Jud. Act, 1873, s. 34. 
 
 6 Daniell, Ch. Pr. 1606. 
 
 1 Ibid. 1069 et seq. 
 
 8 For other instances, see Foster, 12, 
 228, 236. See also Bl. Comm, iii. 260 ; 
 Chitty, Prer. 330. 
 
Scire facias LAW dictionary. Scire facias 739 
 
 § 5. A scire facias is a judicial writ, but in the nature of an original Onrecog- 
 proceeding, when it is issued by the conusee of a recognizance {q. v.) to ^zance. 
 have execution against the conusor for the debt. 1 The scire facias is in 
 lieu of an ordinary action. 
 
 § 6. A scire facias is sometimes a continuation of a former action, 
 being merely an interlocutory proceeding and in the nature of process 
 or execution, as in the case of a scire facias quare executionem non 
 {infra, § 11); sometimes a proceeding after the action has terminated, as 
 in the case of a scire facias ad rehabendam terram (infra, 8 a). 2 8 7. The Against share- 
 
 holders 
 
 most important instance in which a scire facias of this kind is now 
 brought is where it is required to enforce a judgment against the share- 
 holders of a company. By stat. 7 Geo. 4, c. 46 ; 7 Will. 4 & 1 Vict. 
 c. 73 ; 8 & 9 Vict. c. 16, and other acts, if execution has been issued 
 against a company subject to one of those acts {e.g., a railway company), 
 and the property is insufficient, a scire facias may (with certain limitations 
 as to past members, the amount for which each shareholder is liable, 
 obtaining leave of the Court, &c.) be issued against any of the share- 
 holders, requiring them to show cause why execution should not be 
 awarded against their property. 3 
 
 § 8. The other kinds of scire facias in the nature of process or execution are either 
 obsolete or very rare. Thus a simple application to the Court has been substituted for 
 the scire facias formerly required to revive a judgment, or to issue execution on a judg- 
 ment of assets quando acciderint. 4 (See Judgment, § 12 ; Revival, § 4.) The follow- 
 ing are the principal lands of scire facias having distinctive names : — § 9. A scire facias Ad rehaben- 
 ad rehabendam terram lies to enable a judgment debtor to recover back his lands taken dam terrain, 
 under an elegit when the judgment creditor has satisfied or been paid the amount of his 
 judgment. 5 (See Elegit.) A scire facias in the nature of execution is sometimes re- By crown, 
 quired by the crown, e. g., to have execution of a debt secured by recognizance, or to 
 issue execution on an office found (q. v.) ; 6 if it is determined in favour of the crown an 
 extent may be issued. 7 (See Extent.) § 10. Scire facias quare restitutionem non lies Quare restitu- 
 where execution on a judgment has been levied, but the money has not been paid over to tionem non. 
 the plaintiff, and the judgment is afterwards reversed in error or on appeal ; in such a 
 case a scire facias is necessary before a writ of restitution can issue. 8 
 
 § 11. Scire facias ad audiendum errores and quare executionem non were writs used in Ad audien- 
 proceedings in error, the first by the plaintiff, the second by the defendant in error, to dum errores. 
 compel the opposite party to plead : they are both obsolete. 9 £ 
 
 II. Scire facias is sometimes employed in proceedings in the Mayor's 
 Court of London. 
 
 § 12. In proceedings in foreign attachment {q. v.), when a certain Lord Mayor's 
 period has elapsed after the attachment has been served, the plaintiff is our ' 
 at liberty to issue a scire facias, which is a warning to the garnishee to 
 appear to show cause why the plaintiff should not have execution of the 
 
 ! . Foster, 229, 279, 327 ; "Wms. Saund. holders is commenced by writ of summons 
 
 ii. notes to Underbill v.Devereux ; Chitty, in the same way as an ordinary action and 
 
 888, 1096. follows a similar course. This may be 
 
 2 Chitty, 1 140. open to question. 
 
 3 Ibid. 1177— 1196; Hodges on Rail- 4 SeeRules of Court, xlii. 7, 19; Smith's 
 ways, 80 et seq. ; Ilfracombe Rail. Co. v. Action, 177, 202. 
 
 Devon & Somerset Rail. Co., L. R., 2 C. 5 Chitty, 692; Foster, 58. 
 
 P. 15; Portal v.Emmens, I C.P. D. 664; ° Foster, 233. 
 
 Smith'sAction (nthed.), 339; Foster, 106. ' Manning's Exchequer, 136 et seq. 
 
 It is stated in Archbold's Practice (p. 935), 8 Chitty, 582 ; Foster, 64. 
 
 that an action of scire facias against share- 9 Chitty, 1341 et seq. ; Foster, 213. 
 
 3 B 2 
 
74° Scire fieri Inquiry LAW DICTIONARY. Scrip 
 
 money, &c. attached ; the garnishee either appears or suffers judgment to 
 go by default. 1 § 13. If in a suit in the Mayor's Court the defendant's 
 property has been attached and execution issued against the garnishee, 
 the defendant cannot appear to the plaint in the ordinary course, because, 
 the proceedings in attachment are founded on his fictitious default in 
 appearing to the plaint; and therefore, if he wishes to dispute the 
 plaintiff's claim, he must issue a writ of scire facias ad disprobandum 
 debitum : when the plaintiff has appeared to the writ the defendant 
 declares, and the action proceeds as in ordinary cases unless the plaintiff 
 prays stet billa 1 {q. v.). 
 
 SCIRE FIERI INQUIRY is a writ issued against an executor 
 against whom judgment has been obtained for a debt due by his testator 
 when the property of the testator has been found insufficient (technically 
 when the sheriff has returned nulla bona to a fi.fa. de bonis testatoris), and 
 the executor is supposed to have committed a devastavit. It commands 
 the sheriff that in case there shall be no goods of the testator remaining 
 in the hands of the executor, he shall summon a jury to inquire if the 
 defendant has wasted the goods of the testator ; and if a devastavit be 
 found, that he shall warn the defendant to show cause why the plaintiff 
 should not have a fieri facias de bonis propriis against him. The name 
 is compounded of the names of the three proceedings, scire facias, fieri 
 facias, and inquiry, of which the process consists. It is seldom adopted 
 in practice. 3 (See Devastavit ; Fieri facias, § 3 ; Judgment, § 13.) 
 
 SCRIP. — § 1. A scrip certificate (or shortly "scrip") is an acknow- 
 ledgment by the projectors of a company or the issuers of a loan that the 
 person named therein (or more commonly the holder for the time being 
 of the certificate) is entitled to a certain specified number of shares, 
 debentures, bonds, &c. It is usually given in exchange for the letter of 
 allotment, and in its turn is given up for the shares, debentures or bonds 
 which it represents. 4 Scrip is chiefly used in the case of bonds and 
 shares which are payable by instalments, so that they cannot be issued 
 until all the instalments are paid ; therefore as soon as bonds or shares 
 have been allotted to a subscriber or applicant, a scrip certificate, 
 certifying that on due payment of the unpaid instalments the bearer will 
 be entitled to receive bonds or shares to the amount of the certificate, is 
 given to the allottee (see Allot, § 3). Scrip certificates are negotiable 
 instruments. 5 
 Scrip com- § 2. It is said that there are companies (called scrip companies) in 
 
 which the scrip is not required to be exchanged for shares, the scrip- 
 holders being the shareholders. 6 
 
 Etymology.]—" Scrip certificate" seems to be a contraction for "subscription certi- 
 ficate," that is, a certificate of the amount subscribed for by the applicant. 
 
 pames. 
 
 1 Brandon, For. Att. 13. 1870. 
 
 2 Ibid. 113. o Goodwin v.Robarts, L. R., 9 Exch. 
 
 3 Smith's Action (nth edit.), 369; 1 337; 1 App. Cas. 476 ; Rumball v. Metro- 
 Wms. Saund. 248. politan Bank, 2 O. B. D. 194. 
 
 4 Lindley on Partn. 127; Stamp Act, 6 Lindley, 1287 
 
Script LAW DICTIONARY. Seamen 
 
 SCRIPT, in probate practice, is a will, codicil, draft of will or codicil, 
 or written instructions for the same. 1 If the will is destroyed, a copy or 
 any paper embodying its contents becomes a script, even though not 
 made under the direction of the testator. 2 (See Affidavit, § 7.) 
 
 SCULPTURE. See Copyright, § 5 ; Registration of Designs. 
 
 SCUTAGE = escuage (q. v.). 
 
 SE DEFENDENDO. See Homicide, § 3. 
 
 SEA. See High Seas; King's Chambers; Navigation; Territorial 
 Waters. As to the sea-shore, see Foreshore : as to sea-walls, see Frontage, 
 note (2).. 
 
 SEAL. — § 1. The formality of affixing a seal to a document is one of 
 the oldest modes of expressing the intention to be bound by it, derived 
 from the times when few persons could sign their own names. 3 It is still 
 a solemn mode of expressing assent to a written instrument, and when 
 done with that intention makes the instrument a deed : the intention is 
 generally expressed by the additional formality of delivery {q. v. ; and see 
 Deed; Execution; Sign). 
 
 § 2. Every corporation aggregate must have a common seal, for being Corporation, 
 an invisible body it cannot manifest its intention by any personal act 
 or discourse, but only acts and speaks by its common seal, 4 except where 
 it is represented by an officer, agent or attorney, and in a few cases where 
 it would be inconvenient to require the seal, e.g., in every-day matters of 
 business. 5 
 
 As to the seals of the crown, see Great Seal; Privy Seal: also Sign 
 Manual; Signet. 
 
 SEALING UP. — Where a party to an action has been ordered to 
 produce a document, part of which is either irrelevant to the matters in 
 question or is privileged from production, he may, by leave of the Court, 
 seal up that part, if he makes an affidavit stating that it is irrelevant or 
 privileged. 6 The sealing up is generally done by fastening pieces of 
 paper over the part with gum or wafers. 
 
 SEAMEN. — The principal statutory enactments for the protection of 
 seamen are those requiring agreements for service on board ship to con- 
 tain certain particulars, 7 and requiring vessels to carry proper provisions, 
 water, lime or lemon juice, and medicines. 8 The enactments with regard 
 to wages, advance notes, &c, are referred to under title Allot, § 4, and in 
 
 1 Probate Rules, 1862 ; C. B. 31. 5 Pollock, Contract, 130. 
 
 2 Browne's Probate Pr. 280. 6 Daniell's Ch. Pr. 1681. 
 
 3 Williams, R. P. 147. 7 Merchant Shipp. Act, 1854, ss. 149 
 1 Bl. Comm. i. 475 ; Shepp. Touch. 56; et seq. 
 
 Companies Act, 1862, ss. 41, 55. See also 9 Ibid. ss. 221 et seq.; 30 & 31 Vict, 
 
 the Companies Seals Act, 1864. c. 124. 
 
 741 
 
742 Search LAW DICTIONARY. Seaworthiness 
 
 Addenda, titles Advance Note and Allotment ; those with regard to unsea- 
 worthy ships are referred to under title Seaworthiness. As to overloading 
 and defective loading of grain ships, &c, see Merchant Shipping. 
 
 SEARCH.— In international law, the right of search is the right on 
 the part of ships of war to visit and search merchant vessels during war, 
 in order to ascertain whether the ship or cargo is liable to seizure. Resist- 
 ance to visitation and search by a neutral vessel makes the vessel and 
 cargo liable to confiscation. Numerous treaties regulate the manner in 
 which the right of search must be exercised. 1 (See Contraband.) 
 
 SEARCHES.— On a contract for the sale of real estate, it is usual for 
 the purchaser, before the completion of the purchase, to examine certain 
 records and registers for the purpose of seeing whether they contain notice 
 of any fact affecting the title to the property. This is called searching 
 for incumbrances. The searches generally made are for judgments, lites 
 pendentes, and annuities charged on the land ; also a general search in 
 the land registry (if the land is registered), and in the customary court 
 rolls (if the property is copyhold). Sometimes also the lists of bankrupts 
 and insolvents, and the register of bills of sale, are searched, if any doubt 
 exists as to the pecuniary circumstances of the vendor. 2 § 2. Similarly on 
 the sale or mortgage of a ship, the register of ships is searched, to ascer- 
 tain the condition of the title. 3 (See Merchant Shipping.) 
 
 See Annuity; Judgment, § 16; Lis Pendens ; Land Registry ; Register, 
 §§ 3, 4, 8, 13, 19; Vendors and Purchasers. 
 
 SEAWORTHINESS.— § 1. The question whether a ship is or was 
 
 at a given time seaworthy is chiefly of importance with reference to the 
 
 liability of the owner and the underwriters or insurers in the event of her 
 
 loss. In this use of the term, "seaworthiness'' means that the vessel is in 
 
 a fit state, at the time of sailing, 4 as to repairs, equipment, and crew, and 
 
 in all other respects, to encounter the ordinary perils of the voyage in- 
 
 "Warrantof sured. 6 § 2. Where there is no agreement to the contrary, a shipowner 
 
 seaworthiness. wnQ contracts f or tne conveyance of merchandise in his ship, or contracts 
 
 for her insurance, impliedly warrants that she is seaworthy; that is to say, 
 
 if she is lost, and it turns out that she was not seaworthy at the time of 
 
 sailing, in the one case the owner is liable to the owner of the goods for 
 
 their loss, and in the other case the insurers or underwriters are discharged 
 
 from liability under the policy, notwithstanding the bona fides and honesty 
 
 of the shipowner." 
 
 Survey of un- § 3. If it is alleged by one-fourth of the seamen belonging to a ship 
 
 ships? 1 ly that by reason of unseaworthiness, overloading, defective equipment, or 
 
 the like, she is not in a fit condition to go to sea, the Court having 
 
 1 Manning's Law of Nations, 433. * Not merely at the time of loading the 
 
 2 Dart's Vendors & Purchasers, 454. , cargo : Cohn v. Davidson, 2 Q. B. D. 455. 
 
 3 As to official searches by the regis- 5 Maude & Pollock's Merch. Shipp. 387. 
 trars of judgments, bills of sale, &c, see 6 Kofiitoff v. Wilson, 1 Q. B. D. 377 ; 
 Rules of Court, lx. A. 8 (April, 1880). Cohn v. Davidson, 2 Q. B. D. 455; Maude 
 
 & Pollock, 387 ; Smith, Merc. Law, 377. 
 
Seek LAW DICTIONARY. Seda 
 
 cognizance of the case may have the ship surveyed. The Board of Trade 
 may also order a survey if they receive a complaint, or have reason to 
 believe that a ship is unfit to proceed to sea. 1 
 
 §4. Provision is made by the Merchant Shipping Act, 1854, and by the 
 Passengers Acts, 1855, 1863, and 1870, for the proper equipment and 
 survey of ships in the interest of passengers. 
 
 § 5. Every person who sends a ship to sea in an unseaworthy state, so 
 as to endanger the life of any person on board, is guilty of a misde- 
 meanor, unless he proves that he used all reasonable means to make her 
 seaworthy. 2 
 
 SECK is technically applied to certain services and obligations to 
 signify that they create no tenure between the person from whom and the 
 person to whom they are due, as opposed to those services of " homage, 
 fealty, and escuage, which cannot become secke or dry, but make tenure 
 whereunto distresses, escheats and other profits be incident." 3 At the 
 present day the term is hardly ever used except in the phrase rent seek.' 1 
 (See Rent, § 8.) 
 
 SECOND DELIVERANCE. See Replevin, § 3. 
 
 SECONDARY. See Conveyance, § 4 ; Evidence, § 9. 
 
 SECRET TRUSTS. — Where a testator gives property to a person, 
 on a verbal promise by the legatee or devisee that he will hold it in trust 
 for another person, this is called a secret trust. The rule is, that if the 
 secret trust would have been valid as an express trust, it will be enforced 
 against the legatee or devisee, while if it would have been invalid as an 
 express trust, e. g., by contravening the provisions of the Mortmain Act, 
 the gift fails altogether, so that neither the devisee or legatee, nor the 
 object of the trust, takes any benefit by it. 5 
 
 SECRETARY OF PRESENTATIONS. See Presentation Office. 
 
 SKCTA (from the Latin, sequi, to follow) literally means a following. The word is 
 chiefly used to denote a service, due by custom or prescription, which obliges the 
 inhabitants of a particular place to make use of a mill, oven, lain or similar structure 
 (secta ad molendinum, ad fumum, ad torrale, &*c). In such a case the owner of the 
 mill, oven or kiln, may have an action against any inhabitant who " withdraws his suit," 
 that is, goes to another mill, oven or kiln. The theory is that the mill or other structure 
 was erected by the ancestors of the owner for the convenience of the inhabitants, on 
 condition that they should use it to the exclusion of any other. 6 
 
 § 2. In the old common law practice, secta meant the followers or witnesses whom the 
 plaintiff brought into Court with him to prove Iris case. The actual production of the 
 secta has been disused since the reign of Edward III. ; but the declaration in every 
 action contained a fictitious statement on the subject, until comparatively modern times. 7 
 
 1 Stats. 34 & 35 Vict. c. no ; 36 & 37 Hargrave's note (5). 
 
 Vict. c. 85; 39 & 40 Vict. c. 80. 6 Lewin on Trusts, 51 ; Watson's Comp. 
 
 2 Stat. 39 & 40 Vict. c. 80. Eq. 54. 
 
 3 Co. Litt. 151 a. 6 Bl. Com. iii. 235. 
 
 4 See also Co. Litt. 147 b and 151 b, and 7 Ibid. 295, 344. 
 
 743' 
 
744 Secured Creditor LAW DICTIONARY. Security 
 
 SECURED CREDITOR. See Creditor, §§ 2 et seq. 
 SECURED DEBTS. See Debt, § 8. 
 
 SECURITY. — I. § 1. A security is something which makes the en- 
 joyment or enforcement of a right more secure or certain. 
 
 I. With reference to its nature, a security is either a personal security : 
 or a security on property (called in jurisprudence a real security 1 ): or a 
 judicial security. 
 
 Personal. (1) § 2. A personal security consists in a promise or obligation by the 
 
 debtor or another person, in addition to the original liability or obligation 
 intended to be secured. Sometimes the security consists of an instrument 
 which facilitates the enforcement of the original obligation or extends its 
 duration, as in the case of a bond, bill of exchange, promissory note, &c. 
 given by a debtor for an existing debt, the liability on such instruments 
 being easy of proof. When the security consists of a promise or obli- 
 gation entered into by a third person it generally takes the form of a 
 guarantie (q. v.), bond, promissory note, or the like (see Surety). 
 
 (2) § 3. A security on property is where a right over property exists, by 
 virtue of which the enforcement of a liability or promise is facilitated or 
 made more certain. This is of two kinds, active and passive. § 4. An 
 active security is where the creditor (or promisee) has the right of selling 
 the property for the purpose of satisfying his claim, as in the case of a 
 pledge or a mortgage with a power of sale. A mortgage of a freehold 
 interest in land is sometimes called "real security," as opposed to a 
 security on leaseholds or other personalty. 2 (See Investment.) § 5. A 
 
 Passive. passive security is where the creditor has the right of keeping the 
 
 property until his claim is satisfied, but not of selling it ; such are 
 possessory liens. 3 § 6, Between these two classes stand certain rights 
 which entitle the holder to take proceedings to have the property dealt 
 with so as to satisfy his claim ; such are charges in the restricted sense of 
 that word. (See Charge, § 2 ; Hypothecation, § 2.) § 7. The important 
 characteristic of a security on property is that in the event of the debtor 
 being bankrupt, absconding or dying the right can nevertheless be 
 enforced by means of the property. (See Creditor, §§ 2 et seq.) 
 
 Specific. § 8. Securities on property are also either specific or shifting. Thus, 
 
 an ordinary mortgage on land is a security on specific property; the 
 mortgagor can only deal with the land subject to the mortgage, and the 
 mortgagee does not by his mortgage acquire any right to other property 
 
 Security on 
 property. 
 
 Active. 
 
 1 As to the ordinary meaning of "real 
 security," see § 4. 
 
 2 Jones v. Chennett, 8 Ch. D. 492 ; In 
 re Boyd's Settled Estates, 14 Ch. D. 626. 
 
 3 Mr. Justice Markby (Elements of Law, 
 _§§ 501, 510, 534) makes a distinction be- 
 tween a real security and a security con- 
 sisting of a jus in re, the former being de- 
 fined as " the means of getting satisfaction 
 out of a specific thing, independently of 
 the will or ability of the debtor," the 
 essence of it being the power of sale, while 
 
 the latter seems to be a mere possessory 
 lien. I cannot find any authority for this 
 use of the term "real security." It is true 
 that Kuntze (Cursus, \ 549) draws a dis- 
 tinction between a security which operates 
 as an inducement to the debtor to perform 
 his obligation and one which enables the 
 creditor to satisfy the debt independently ; 
 but he calls the latter ' ' eine unabhangige 
 sachliche Gewahr," in order to distinguish 
 it (§556)- 
 
Security law DICTIONARY. Security 745 
 
 belonging to the mortgagor (except in the anomalous case of consolida- 
 tion, q. v.). § 9. A shifting or floating security, on the other hand, is a Shifting or 
 security on all property which shall come under a certain description floatin g- 
 at the time when the rights of the parties have to be ascertained. Thus, 
 a mortgage or bill of sale on fixtures, machinery or the like, in a given 
 building, may be so framed as to cover articles of a like description 
 placed in the building after the date of the security, with or without 
 a clause empowering the mortgagor to take away any articles and replace 
 them by others of equal value. 1 So a debenture may form a charge on 
 the property for the time being of a company, including stock in trade, 
 book debts, &c. ; so that it may sell its stock in trade and buy new stock , 
 in trade, receive book debts and create new ones in such a way that, 
 when the time comes for enforcing the security, the property then subject 
 to it may be quite different from what it was when the security was given. 
 As soon as proceedings are taken which necessitate an enforcement of 
 the security {e.g., if the company goes into liquidation), the security 
 becomes fixed, and no further change is possible. 2 
 -(3) § 10. A judicial security exists where a right is enforceable by Judicial, 
 means of the powers vested in a Court of law. Thus, a judgment is 
 enforceable by execution against the property, and (in some cases) against 
 the person of the defendant ; and, therefore, a judgment creditor who 
 has taken the proper steps to enforce his judgment is a secured creditor. 
 (See Creditor, § 2 ; Judgment, § 16.) To this class may also be referred 
 cognovits, warrants of attorney, garnishee orders, stop orders, charging 
 orders, distringas notices (see the various titles). 
 
 II. § ii. With reference to its origin, a security is either created by Agreement of 
 agreement of the parties or by operation of law ; a mortgage or bond is P artles . or 
 
 an instance of the former class — a retaining lien of the latter. law. 
 
 III. § 12. With reference to the purpose for which they are created, 
 securities may be divided into (1) ordinary securities, namely, those 
 created to secure the payment of a debt or the performance of an obli- 
 gation between private persons ; and (2) securities given in legal pro- 
 ceedings. Securities given in legal proceedings are of various kinds. 
 
 (i) § 13. In ordinary actions, security is in some cases required to 
 be given to secure a right in question in the litigation : to this class 
 belong stop orders, distringases, attachment of debts, payment of money 
 and transfer of stock into Court, deposit of property in Court, and 
 security given under Order XIV. of the Rules of Court. (See Bail, § 2 ; 
 Judgment, § 9.) § 14. In criminal and summary proceedings the defen- 
 dant or prisoner is sometimes allowed to go at large on giving bail or 
 entering into his own recognizance, instead of being detained in custody. 
 (See Bail, § 5.) A person may also be required to give security to keep 
 the peace. (See Articles oj the Peace ; Breach of 'the Peace ; Recognizance, §4.) 
 
 1 Holroydv. Marshall, 10H. L. C. 191 ; 2 See In re Panama, Sfc. Co., L. R., 
 
 Fisher on Mortgage, 25 et sea. ; In re 5 Ch. App. 318 ; and as to debentures 
 
 Colonial Trusts Corporation, 15 Ch. D. charged on the undertaking of a company, 
 
 469. see Debenture, \\ 5 and 11 ; Receiver, \ 5. 
 
746 
 
 Security for Costs 
 
 LAW DICTIONARY. 
 
 Seduction 
 
 Security for 
 costs. 
 
 (ii) § is- Security is sometimes required to be given in relation to the 
 proceedings themselves. Thus, in an ordinary action the plaintiff may, 
 in certain cases (as where he permanently resides abroad), be compelled 
 to give to the defendant security for the costs of the action, 1 generally 
 either by entering into a bond with sureties, or by paying money into 
 Court. 2 An appellant may also be required to give security for the 
 costs of the appeal, e.g., if he appears to be insolvent. 3 As to security 
 on removing causes from inferior Courts, see Removal, §§ 3, 4. In 
 criminal and summary proceedings the complainant or prosecutor is 
 generally required to enter into a recognizance, by which he binds him- 
 self to prosecute the proceedings. 
 
 II. § 16. In a secondary sense, "security" denotes an instrument by 
 which a security is created or evidenced, such as a bond, bill of exchange, 
 debenture, scrip, &c. 
 
 SECURITY FOR COSTS. See Security, § 15. 
 
 SECURITY FOR GOOD BEHAVIOUR. See Articles of the 
 Peace; Breach of the Peace; Recognizance, § 4; Security, § 14. 
 
 SECUS = otherwise. 
 
 Conspiracy. 
 
 SEDITION— SEDITIOUS.— § 1. Sedition is the offence of pub- 
 lishing verbally or otherwise any words or document with the intention of 
 exciting disaffection, hatred, or contempt against the sovereign, or the 
 government and constitution of the kingdom, or either House of Parlia- 
 ment, or the administration of justice, or of exciting her. Majesty's sub- 
 jects to attempt, otherwise than by lawful means, the alteration of any 
 matter in Church or State, or of exciting feelings of ill-will and hostility 
 between different classes of her Majesty's subjects. 
 
 § z. If the matter so published consists of words spoken the offence is 
 called the speaking of seditious words. If it is contained in a document 
 or the like, the offence is called a seditious libel. 
 
 § 3. A seditious conspiracy is where two or more persons agree to do 
 any act for the furtherance of any seditious intention. 
 
 All these offences are misdemeanors. 4 
 
 See Publish. 
 
 SEDUCTION is where a man induces a woman to have connection 
 with him by taking advantage of her affection for him, or by promising her 
 marriage, or by some similar means. On the principle that volenti nonfit 
 injuria, seduction is no actionable wrong to the woman herself, but it is a 
 
 1 Smith's Action, 99 ; Coe's Pr. 129 ; 
 Daniell's Cli. Pr. cli. ii. sect. 4. 
 
 2 Rules of Court, Iv. (Feb. 1876, and 
 April, 1880). As to security in County 
 Court practice, see Pollock's C. C. P. 
 246 et seq. 
 
 3 Rules of Court, xlviii. 15; Wilson v. 
 
 Smith, 2 Ch. D. 67 ; Grant v. Banque 
 Franco-Egyptienne, 2 C. P. D. 430. 
 
 1 Stephen's Crim. Dig. 55 ; Shortt on 
 Copyright, 324. See also stat. 6 Anne, 
 c. 7 (c. 41 in the Statutes of the Realm), 
 which makes it high treason to impugn, by 
 writing or printing, the Act of Settlement. 
 
Seignory law dictionary. Seisin 747 
 
 wrong to her parent or master if it causes him a loss of service (see 
 Service, § 7), and in an action by a parent the jury may give exemplary 
 damages. 1 (See Damages, § 4.) 
 
 SEIGNORY. — I. § 1. A seignory is the relation of a feudal lord to 
 his tenant, and to the land held by him. Thus, if before the statute of 
 Quia Emptores, A., a tenant in fee simple, conveyed his land to B. to 
 hold of A. as his tenant, then A.'s rights against B. in respect of services, 
 fealty, &c, and his interest in the land in the event of an escheat or 
 forfeiture by B. or his successors in title, would constitute a seignory. 
 Since the statute of Quia Emptores no seignory can be created. Owing 
 to the feudal incidents of tenure (fealty, &c.) having now become 
 obsolete, and to the rent services anciently reserved having become almost 
 valueless, seignories in freehold land are seldom of any practical import- 
 ance: in most cases indeed they cannot be traced. (See Mortmain, § 1.) 
 Consequently almost the only seignories now in existence are those of 
 lords of manors, for a manor does not exist unless there are at least two 
 free tenants, that is, tenants of freehold land forming part of the manor 
 who hold of the lord by a service of some kind. 2 Hence a manor is 
 sometimes said to consist of demesnes and seignories. 3 
 
 § 2. A seignory is sometimes distinguished by the services incident to 
 it, e. g., a seignory by fealty and rent-service ; 4 or by the position of the 
 lord, e. g., seignories paramount and mesne seignories. (See Mesne ; 
 Paramount.) A seignory may also be either appendant, that is, attached 
 to a manor ; or in gross, when it has been severed from the manor to 
 which it originally belonged. On the conveyance of a manor the 
 seignories appendant to it pass with it; a seignory in gross must be 
 conveyed by a deed of grant, a seignory being an incorporeal here- 
 ditament. 6 
 
 II. § 3. Seignory sometimes means the land or district over which the 
 rights of the lord extend. (Compare Franchise, § 4 ; Liberty, § 2.) 
 
 Etymology.] — Norman French, seignur ;■ from Latin, senior. 
 
 SEISED IN DEMESNE AS OF FEE. See Demesne, §§, 2, 3. 
 
 SEISIN. — § 1. Seisin is feudal possession; in other words, it is the 
 relation in which a person stands to land or other hereditaments, when 
 he has in them an estate of freehold in possession ; 6 such a person is 
 said to be seised of the land. "Seisin" is opposed (1) to " possession," 
 which, in its technical sense, is only applied to leaseholds and other 
 personal property ; 7 and (2) to "occupation," which signifies actual posses- 
 sion. (See Occupation; Possession, § 17.) 
 
 1 Stephen's Comm. iii. 441 ; Underhill a seignory differed little from a reversion, 
 on Torts, 152. as is shown by the manner in which es- 
 
 2 Williams on Seisin, 9, 13 ; Warrick v. cheated lands descend (see Escheat, § 3) ; 
 Queen's College, L. R., 6 Ch. 716. Burton's Comp. 326. 
 
 3 Burton's Comp. 326; and see Britton, G Williams on Seisin, 2; Butler's note 
 106 a. to Co. Litt. 266 b. 
 
 4 Bevil's Case, 4 Rep. 8 a. ~ Co. Litt. 17 a, 200 b. It is true that 
 s Williams, R. P. 307, 314. Originally Littleton (§ 567) speaks of a tenant for 
 
748 Seisin LAW DICTIONARY. Seisin 
 
 With reference to its nature, seisin is either actual [in deed] or in 
 In deed. law. § 2. Actual seisin, or seisin in deed, is where the freeholder is 
 
 himself in possession or occupation of the land, or where it is occupied 
 by a person claiming under him, and not having an estate of freehold in 
 In law. the land, e. g., a lessee for years. 1 § 3. Seisin in law is that seisin which 
 
 an heir has when his ancestor dies intestate seised of land, and neither 
 the heir nor any other person has taken actual possession of the land. 
 Thus, if a man has two farms, Blackacre and Whiteacre, the former of 
 which he lets to a tenant for years, and the latter he occupies himself, 
 then, on his death intestate, his heir has actual seisin of Blackacre from 
 the moment of his death, because the possession of the tenant is looked 
 upon as the possession of the freeholder; but of Whiteacre the heir has 
 merely a seisin in law until he enters and takes possession, and then he 
 has actual seisin of Whiteacre too. 2 § 4. Actual seisin of incorporeal here- 
 ditaments is obtained by exercising the rights of which they consist, 
 e. g., receiving a rent-charge or presenting to an advowson. 3 
 
 § 5 . With reference to the nature of the property, a tenant in fee simple 
 is said to be seised in his demesne as of fee " of such things whereof 
 a man may have a manuall occupation, possession or receipt, as of lands, 
 tenements, rents and such like. . . But of such things which do not lie 
 in such manuall occupation, &c, as of an advowson of a church and such 
 like, there he shall say that he was seised as of fee and not in his demesne 
 as of fee." 4 The distinction was only of importance under the old 
 system of pleading. (See Demesne, § 3.) 
 
 § 6. Since the abolition of the rules as to descent cast and "seisina 
 facit stipitem" (q. v.), and the introduction of modern forms of con- 
 veyance, which do not require livery of seisin (q. v.), the doctrine of 
 seisin has lost almost all its importance. 5 
 Quasi-seisin. § 7. Quasi-seisin is the possession which a copyholder has of the 
 land to which he has been admitted. The freehold in copyhold lands 
 being in the lord, the copyholder cannot have seisin of them in the 
 proper sense of the word, but he has a customary or quasi-seisin, 
 analogous to that of a freeholder. 6 
 
 years being seised ; but this seems to be 5 See, however, Leach v. Jay, 6 Ch. D. 
 
 with reference to the effect of a grant of 496 ; 9 Ch. D. 42. 
 
 the reversion without livery of seisin, for in Under the old law, when an heir ob- 
 \ 324 he says that "where one will plead a tained seisin of laud on the death of his 
 lease or grant made to him of a chattel ancestor, and then himself died intestate, 
 real or personal, then he shall say by force the land went to his heirs and not to the 
 of which he was possessed, &c." See a heirs of his ancestor. This was called a 
 similar use of the word in Britton, 102b. "mesne seism," because it was inter- 
 However, there is no doubt that at one mediate between the two deaths, and the 
 time seisin and possession were convertible heir was called a "mesne heir" or "mesne 
 terms (Co. Litt. 17 a). person." (Watkin on Descent, 35; and 
 
 1 Co. Litt. 15 a. see Possessio Fratris.) 
 
 "- Williams on Seisin, 5. The term Another kind of seisin is the "simple 
 
 "seisin in law "is sometimes applied to seisin" spoken of by Britton (178 b), 
 
 the interest of a reversioner or remainder- namely, that nominal or formal possession 
 
 man expectant on an estate of freehold, which a lord was entitled to take on the 
 
 but inaccurately, because the seisin is in death of a tenant in fee simple in order to 
 
 the tenant of the estate of freehold. (Wat- assert his right of seignory, as opposed to 
 
 kin on Descent, 35.) the full or beneficial seisin of the tenant's 
 
 3 Litt. \\ 235, 565 ; Co. Litt. 11b, 15 b, heir. This has long been obsolete. 
 315 a ; Bevil's Case, 4 Co. 8. 6 Williams on Seisin, 126. 
 
 * Litt. 4 10. 
 
Seisina facit Stipitem law dictionary. Selden 749 
 
 § 8. Equitable seisin is analogous to legal seisin, that is, it is seisin Equitable 
 of an equitable estate in land. Thus, a mortgagor is said to have selsm - 
 equitable seisin of the land by receipt of the rents. 1 (See Disseisin; 
 Possession.) 
 
 Etymology.] — The most probable derivation is from the old German word bisazjan ; 
 Anglo-Saxon, bisettan, to take possession of; modern English, beset. Hence the old 
 French, saisir;* late Latin, satire or saisire, to take possession of land; 3 Norman 
 French, seisine, possession of land. 4 The late Latin, saisiare, seems to be a still later 
 formation, made when saisir had acquired the popular meaning of seize : it is apparently 
 only applied to moveables. 5 
 
 SEISINA FACIT STIPITEM in the law of descent means " seisin 
 makes the stock of descent.'' The old rule used to be that when a person 
 died intestate as to his land, it descended to the heir of the person who 
 was last seised of it. Now descent is traced from the last purchaser. 6 (See 
 Descent.) 
 
 SEIZURE. — § 1. In the law of copyholds, seizure is where the lord 
 of copyhold lands takes possession of them in default of a tenant. It is 
 either seizure quousque, or absolute seizure. § 2. When a copyhold tenant Seizure 
 dies intestate, his heir is bound to come to the lord for admittance within 1 uous( l ue - 
 a certain time, and pay the fine on admittance; if he does not appear, the 
 lord may seize the land quousque (i. e., " until " he does appear), and enjoy 
 the rents and profits in the meantime. Seizure quousque is rather in the 
 nature of a process for recovering the fine than in the nature of a for- 
 feiture, but in some manors there are customs that, after neglect or 
 refusal to appear within a certain time, the land shall be absolutely 
 forfeited. 7 
 
 § 3. Where the lord seizes land for a forfeiture, escheat, &c, this is an Absolute 
 absolute seizure. 8 § 4. The lord may also take heriots by seizure, and the 
 same remedy is given for things which lie in franchise, as waifs, wreck, 
 estrays, &c. 9 
 
 § 5. In the law of procedure, seizure is sometimes a species of execu- Execution by 
 tion. Thus, a sheriff executes a writ of fi. fa. by taking possession of the 
 chattels of the debtor. 10 (See Fieri facias.) § 6. Seizure also takes place 
 when goods are confiscated as a punishment for smuggling or carrying 
 contraband of war. 
 
 SELDEN. — John Selden was born in 1584, and died in 1654. He 
 wrote Mare Clausum ; Dissertatio historica ad Fletam ; Notes on Fortescue ; 
 and numerous other works on tithes, titles of honour, &c. 
 
 1 Chomleyv. Clinton, 2Mer. 171; 2 Jac. 4 Britton, 101 b. 
 
 &W. 190. "Actual possession clothed with 5 See the extracts in Stubbs, 138, 266. 
 
 the receipt of the rents and profits is the B Williams, R. P. 101. 
 
 highest instance of an equitable seisin:" 7 Elton, Copyh. 140; Doe v. Trueman, 
 
 Casborne v. Scarfe, 1 Atk. 603. 1 B. & A. 736. 
 
 3 Diez, Etym. Wortb. s. v. Sagire. 8 See Doe v. Hellier, 3 T. R. 162. 
 
 3 "Qui . . . terrain alterius saisibat:" 9 Steph. Comm. iii. 258. 
 
 extract from Domesday Book in Stubbs's 10 See Bissiclts v. Bath Colliery Co., 3 
 
 Charters, 84. Exch. D. 174. 
 
 seizure. 
 Heriots. 
 
 seizure. 
 
750 Select Committee LAW DICTIONARY. Separate Estate 
 
 SELECT COMMITTEE. See Committee, § 2. 
 SELF-DEFENCE, See Homicide, § 3. 
 
 SEMBLE = "it appears." Used in quoting a dictum (q. v.), or a case 
 which only indirectly bears on a point. 
 
 Ecclesiastical. SENTENCE, in ecclesiastical procedure, is analogous to judgment 
 (q. v.) in an ordinary action. A definitive sentence is one which puts an 
 end to the suit, and regards the principal matter in question. An inter- 
 locutory sentence determines only some incidental matter in the pro- 
 ceedings. 1 
 
 Criminal. § 2 . "Sentence" is commonly used to signify the judgment in a criminal 
 
 proceeding. (See Judgment, § 23.) 
 See Decree, § 4. 
 
 SEPARATE ESTATE— SEPARATE USE.— § 1. Separate estate, 
 or property belonging to a woman to her separate use, is property which 
 belongs to a married woman as if she were a feme sole. The doctrine of 
 separate estate, which was formerly recognized only in equity, may be 
 described generally as giving a married woman the power of acting with 
 respect to her separate property as if she were a feme sole ; thus she is 
 entitled to the income of it, and may dispose of it by deed or will, and 
 mortgage or charge it without the concurrence or consent of her husband, 
 unless she is restrained from anticipation or alienation. (See Anticipation; 
 Restraint on Alienation?) Her separate estate is liable for all engagements 
 contracted by her with reference to and on the credit of it. s (See 
 Engagement!) 
 
 § 2. Property may become the separate estate of a married woman 
 either by provision of the party or under a statute. It may be settled 
 upon her, or devised, bequeathed or otherwise given to her to her .separate 
 use, whether by a stranger or by her husband, and whether it is given to 
 trustees for her or not, and whether it is given to her absolutely or subject 
 only to a power of appointment by her. Where the legal estate in 
 the property is vested in the husband, he is a trustee for her. Property 
 becomes the separate estate of a married woman by statute (i) under 
 the Married Women's Property Acts; (ii) under a decree of judicial 
 separation (q. v.) ; (iii) under a protection order (q. v.) ; or (iv) under 
 a separation order (q. v.). 
 
 § 3. Where property is given to a married woman to her separate use 
 absolutely (that is, without a limitation over after her death), and she 
 dies without having disposed of it, her husband takes it jure mariti. (See 
 Jus Mariti, § 2.) 
 
 1 Phill. Eccl. Law, 1260. 
 
 2 Hulmev. Tenant, I Bro. C.C. 16 ; Tullett 
 v. Armstrong, I Beav. I ; Shattock v. Shat- 
 tocli, L. R., 2 Eq. 182 ; White & Tudor, L. 
 C. i. 521; Pollock on Contract, 62 ; Mac- 
 queen's Husb. & Wife, 316; Maine's Early 
 
 Inst,; Haynes's Equity, 200 ; Snell's Eq. 
 278 ; London Chartered Bank of Australia 
 v. Lempriere, L. R., 4 P. C. 572; In re 
 Harvey s Estate, 13 Ch. D. 216; Matthew- 
 man's Case, L. R., 3 Eq. 781. 
 
Separation law dictionary. Sequestration 75;i, 
 
 As to the separate estate of partners, see Joint, § 7. 
 See Married Women's Property Act; Protection; Coverture; Engagement; 
 Use; Administration, note (1), p. 28. 
 
 SEPARATION. — § 1. A provision or agreement for the future sepa- 
 ration of a husband and wife is yoid, being in derogation of the marriage 
 contract. (See Derogation, § 2.) 
 
 § 2. An agreement for immediate separation is valid, because it is made 
 to meet a state of things which, however undesirable in itself, has in fact 
 become inevitable. 1 An agreement of this kind generally takes the form 
 of a deed. 
 
 SEPARATION DEEDS.— Owing to the rule that a wife cannot in 
 general contract with her husband, 2 the deed is made between the hus- 
 band and a trustee for the wife, 3 and generally contains provisions for the 
 allowance by the husband of an annuity for the wife, for his indemnifica- 
 tion by the trustee against the wife's debts, for the custody and education 
 of the children, &c. 4 It follows from the nature of a separation deed, 
 that it is avoided by subsequent reconciliation and cohabitation, 4 but while 
 it remains in force, it is a bar to a suit for restitution of conjugal rights. 6 
 
 SEPARATION ORDER.— Where a husband is convicted of an 
 aggravated assault upon his wife, the Court or magistrate may order that 
 the wife shall be no longer bound to cohabit with him ; such an order 
 has the same effect as a decree of judicial separation on the ground of 
 cruelty: it may also provide for the payment of a weekly sum by the 
 husband to the wife and for the custody of the children. 6 
 
 SEQUESTRARI FACIAS is a writ issued for the purpose of en- 
 forcing a judgment against a beneficed clergyman, when a fi. fa. has been 
 issued and returned nulla bona. It commands the bishop of the diocese 
 to enter into the benefice and sequester the rents, tithes, and profits until 
 the debt is satisfied. The bishop executes the writ by issuing a seques- 
 tration 7 {q. v ., § 3 ; see Levari facias ; Writ.) 
 
 SEQUESTRATION— SEQUESTRATOR.— § 1. A sequestration 
 is where, by some judicial or quasi-judicial process, property is tempora- 
 rily placed in the hands of one or more persons called sequestrators, who 
 manage it and receive the rents and profits. 8 
 
 § 2. In the procedure of the High Court of Justice, a sequestration is a writ of se- 
 means of enforcing obedience to a judgment or order requiring a person questration. 
 
 1 Pollock on Contract, 249. s Marshall v. Marshall, 5 P. D. 19. 
 
 2 Macqueen's Husb. & Wife, 367 ; Pol- 6 Matrimonial Causes Act, 1878, s. 4. 
 lock on Contract, 60. : Chitty's Pr. 1284 ; Daniell, Ch. Pr. 
 
 3 Ibid. ; Davidson, Conv. v. (2)668; 927; Smith's Action (nth edit.), 397. 
 Browne on Divorce, xy^etseq.; Hunt v. 8 See In re Australian, Sfc. Co., L. R., 
 Hunt, 4 D. F. & J. 221. 20 Eq. 326. 
 
 4 Chitty on Contracts, 618. 
 
752 
 
 Sequestration 
 
 LAW DICTIONARY. 
 
 Serjeants-at-A rms 
 
 By bishop. 
 
 Mayor's 
 Court. 
 
 Of benefice. 
 
 to do an act (e, g., pay money into Court, deliver up a chattel, &C.). 1 It 
 is a writ or commission directed to certain persons (usually four in number) 
 nominated by the person prosecuting the judgment, and empowers them 
 to enter upon the real estate of the disobedient person, and receive the 
 rents and profits thereof, and take his chattels, and keep them in their 
 hands, until he performs the act required. 2 The sequestrators are officers 
 of the Court, and are bound to account for what they receive. (See Writ 
 of Assistance.') 
 
 § 3. When a fi. fa. de bonis ecclesiasticis or a sequestrari facias (see 
 those titles) is directed to a bishop, he issues a sequestration, which is in 
 the nature of a warrant addressed to the churchwardens, requiring them to 
 levy the debt out of the tithes and other profits of the debtor's benefice. 3 
 
 § 4. In the Mayor's Court of London, "a sequestration is an attachment 
 of the property of a person in a warehouse or other place belonging to 
 and abandoned by him. It has the same object as the ordinary attach- 
 ment, viz. to compel the appearance of the defendant to an action," 4 and 
 in default to satisfy the plaintiff's debt by appraisement and execution. 
 (See Foreign Attachment.) The practice is rarely resorted to. 
 
 § 5. In ecclesiastical law, where a benefice becomes vacant, a sequestra- 
 tion is usually granted by the bishop to the churchwardens, who manage 
 all the profits and expenses of the benefice, plough and sow the glebe, 
 receive tithes, and provide for the necessary cure of souls. They are bound 
 to account for the profits to the new incumbent. 6 Sequestration is also 
 usually granted in a cause of spoliation" (q. v.), or as a punishment (e.g., 
 for non- residence), or as a mode of compelling payment of money for 
 dilapidations, or the like. 7 
 
 SERJEANTS-AT-ARMS are officers of the crown, whose duty is 
 nominally to attend the person of the sovereign, to arrest traitors, to 
 attend the Lord High Steward (q. v.) when sitting in judgment on traitors, 
 and the like. " Two of them, by the king's allowance, do attend on the 
 two Houses of Parliament, whose office in the House of Commons is the 
 keeping of the doors and (as of late it hath been used) the execution of 
 such commands, especially touching the apprehension of any offender, as 
 that House shall enjoyn him. Another of them attends on the Lord 
 Chancellor or Lord Keeper, in the Chancery, and one on the Lord 
 Treasurer of England." 8 § 2. The Serjeant-at-Arms attending on the 
 Lord Chancellor 9 is now an officer of the Supreme Court. 10 ' His principal 
 duty is to arrest persons guilty of contempt of Court in proceedings in 
 the Chancery Division when so ordered : thus, when a writ of attachment 
 
 1 Rules of Court, xlii., xlvii. But not, 
 apparently, of enforcing a simple judgment 
 for a debt or an order for the payment of 
 money : Ex parte Nelson, 14 Ch. D. 41. 
 
 s Daniell's Ch. Pr. 912. As to seques- 
 tration for costs, see Rules of Court, xlvii. 
 2 (April, 1880). 
 
 3 Chitty's Pr. 1283; Smith's Action 
 (nth edit.), 396. 
 
 4 Brandon, For. Attach. 145. 
 
 5 Phillimore, Eccl. Law, 497. 
 
 6 Ibid. 516. 
 
 ''Ibid. 1378; Bankruptcy Act, 1869, 
 s. 88; Sequestration Act, 1871. 
 
 9 Blunt, Law Diet. s. v.; Staunf. PI. 
 Cor. 152 a. 
 
 9 The office is generally held by the same 
 person as the Serjeant-at-Arms of the 
 House of Lords. 
 
 10 Judicature Act, 1873, s - 77- 
 
Serjeants-at-Law LAW dictionary. Service 753 
 
 has been issued against a person for disobedience to an order of the 
 Court, and the sheriff returns non est inventus, the Serjeant-at-Arms may 
 be ordered to arrest the contemnor. 1 
 
 SERJEANTS-AT-LAW are barristers of superior degree, to which 
 they are called by writ under the Great Seal. They form an inn called 
 Serjeants' Inn. 3 Formerly they were supposed to serve the crown (hence 
 their name, Serjeants or servientes ad legem) ; but in more modern times 
 the degree was conferred on eminent counsel as a distinction, without 
 reference to their services to the crown. Serjeants have precedence over 
 junior barristers. They formerly had a right of exclusive audience in the 
 Court of Common Pleas, which was abolished in 1846. 3 When a serjeant 
 was appointed, it was customary for him to present gold rings, bearing a 
 motto, to the other Serjeants ; this was called " giving rings." Of late 
 years the degree of Queen's Counsel (q. v.) has gradually supplanted that 
 of serjeant, and now the abolition of the rule requiring every judge of the 
 superior courts of common law to be a serjeant 4 has made the extinction 
 of the order of Serjeants merely a question of time. 6 
 
 See Inns of Court ; Barrister. 
 
 SERJEANTY (Norman-French, serjantie, from Latin, serviens, a 
 servant) literally means service. See Grand Serjeanty ; Petty Serjeanty. 
 
 SERVICE, — I. § 1. In the law of tenure, a service is a duty due from 
 a tenant to his lord. Services are or were of various kinds. 6 
 
 § z. Divine or spiritual services are services of a religious nature, either Spiritual, 
 certain, as in the case of tenure by divine service (q.v.), or uncertain, as in the 
 case of frankalmoign (q. v.). § 3. Temporal services are services which Temporal. 
 can be performed by a secular person, and were formerly either (1) free, Free, 
 namely such as were not unbecoming the character of a soldier or a 
 freeman to perform, as to serve under his lord in the wars, to pay him 
 rent, &c. (see Rent) ; or (2) base or villein services, namely such as were Base, 
 fit only for peasants or persons of a servile rank, as to plough the lord's 
 land, to make his hedges, &c. § 4. Certain services were such as were Certain, 
 fixed in quantity, as to pay a certain rent, or to plough a field for three 
 days every year ; examples of uncertain services were, to do military Uncertain, 
 service, or to plough the lord's land when called upon. § 5. Accidental 
 or casual services are wardship, relief, heriots and other things, more Casual, 
 commonly called incidents (q. v.). 1 § 5a. In the tenure of knight-service, Foreign, 
 some services due by the tenant were called foreign, servitia forinseca, 
 because they were due to the king and not to the lord : such was the 
 
 1 Daniell, Ch. Pr. 910; Consolidated 5 As to the history of Serjeants, see 
 
 Orders, xxix ; Orders of the Court of Manning's Serviens ad Legem ; Fortescue, 
 
 Chancery made under the Debtors Act, ch. 1. ; Stephen's Comm. i. 17; 111.272. 
 
 1869. 6 See Bl. Comm. ii. 60; Co. Litt. 64 a 
 
 3 The buildings and property of the inn et seq., 95 a. 
 
 have recently been sold and the proceeds 7 4 Rep. 8 ; Co. Copyh. §§ 5, 18 et seq., 
 
 divided among the members. where numerous other divisions of services 
 
 3 Stat. 9 & 10 Vict. c. 54. are given. 
 
 4 Judicature Act, 1873, s> 8- 
 
 30 
 
754 
 
 Customary. 
 
 Service 
 
 LAW DICTIONARY. 
 
 Service 
 
 (See 
 
 Contract of 
 service. 
 
 Service of 
 process, &c. 
 
 Special 
 service. 
 
 military service in the field due by a tenant by knight's service. 1 
 Foreign?) 
 
 § 6. Customary services arise by immemorial custom, as where the 
 inhabitants of a place have from time immemorial been accustomed to 
 grind their corn at a certain mill : such a custom gives rise to the obliga- 
 tion on the part of the mill-owner to maintain the mill and all provisions 
 for grinding (servants, &c), and on the part of the residents to take their 
 corn to be ground there and not elsewhere. 3 (See Secta ; Subtraction?) 
 
 II. § 7. In the law of contract, service is the relation between master 
 and servant. A contract by which one person binds himself to serve 
 another is called a contract of service. As to the rights and duties 
 arising from such a contract, see Master and Servant. 
 
 In order to support claims for damages against seducers and abductors, 
 the definition of "service" has been somewhat strained; thus, if a 
 daughter lives with her father, this is a sufficient service to support an 
 action by the father against a man who seduces her. 3 (See Seduction?) 
 
 III. § 8. In procedure, service is the operation of bringing the contents 
 or effect of a document to the knowledge of the persons concerned. It 
 
 of two kinds. § 9. Writs of summons, orders for disobedience to 
 
 is 
 
 which process of contempt may be issued, and some other judicial 
 
 Direct, documents, require either direct or substituted service. Direct service is 
 
 effected by actually bringing the document to the person or thing to be 
 
 personal. served. In the case of a person such service is called personal. Thus, 
 
 in an ordinary action, personal service of the writ of summons is effected 
 by showing the original writ to the defendant, and tendering him a copy. 4 
 
 Action in rem. § 10. An example of direct service on a thing (which might be called real 
 service) occurs in an ordinary admiralty action in rem against a ship ; 
 here service of the writ of summons is effected by nailing the original 
 writ for a short time to the mast of the vessel, and taking it off, leaving 
 a copy nailed in its place. 5 Analogous to this is the mode of serving a 
 writ for the recovery of land in the case of vacant possession ; here a 
 copy of the writ is posted on some conspicuous part of the property ;° this 
 mode of service also partakes of the nature of substituted service. 
 
 Substituted. §11. The object of substituted service is to provide the best means 
 available under the circumstances for bringing the effect of the document 
 to the knowledge of the party, when he is keeping out of the way, or his 
 whereabouts is not known.' The usual mode of effecting substituted 
 service is by directly serving the document on some person likely to bring 
 it to the knowledge of the party {e. g., his wife, agent, &c), or by advertis- 
 ing notice of it, 5 or by sending a copy by post to the party's address. 8 
 (See Notice ; Notice of Writ.) 
 
 Accepting § 12. Analogous to substituted service is the practice called "accepting 
 
 service. 
 
 1 Co. Litt. 75 b. 
 
 2 Harbin v. Green, Hob. 189; Vraiev. 
 Wigglesworih, Willes, 654; Steph. Comm. 
 iii. 410. 
 
 3 Underhill on Torts, 152 ; Steph. 
 Comm. iii. 442. 
 
 4 Day's C. L. P. Acts, 40; Darnell's Ch. 
 Pr. 367 el seq. ; Rules of Court, ix. 2. 
 
 5 Rules of Court, December, 1875, r. 6. 
 * Rules of Court, ix. 8. 
 
 ' Bland v. Bland, L. R., 3 P. & D. 233. 
 8 Lely & Foulkes' Jud. Acts, 115; 
 Daniell, 370 et seq. 
 
Servient Tenement law dictionary. Set-off 755 
 
 service," which is done by the solicitor for the party to be served giving 
 a personal undertaking (generally written on the original writ) that he will 
 enter an appearance for him, in order to save his client from the annoy- 
 ance of being personally served. 1 
 
 § 13. Certain documents which are merely the foundation for other Ordinary 
 proceedings do not require direct or substituted service, but are left at servlce - 
 the address of the person for whom the document is intended, or of his 
 solicitor, if he is represented by a solicitor. (See Address for Service.) 
 Summonses, notices of motion, petitions, and certain other documents, 
 are served in this manner ; if served after 6 o'clock p.m. on ordinary days 
 (or after 2 p.m. on Saturdays), the service counts from the following day 
 (or Monday). 3 As to pleadings, see Delivery, § 4. 
 
 SERVIENT TENEMENT. See Easement. 
 
 SESSION OF THE PEACE is a sitting of justices of the peace 
 for the exercise of their powers. There are four kinds, petty, special, 
 quarter and general sessions 3 (see those titles). 
 
 SET. See Bill 0/ Exchange, § 10. 
 
 SET-OFF. — § 1. In an action to recover money, a set-off is a cross 
 claim for money by the defendant, for which he might maintain an 
 action against the plaintiff, and which has the effect of extinguishing the 
 plaintiff's claim pro tanto, so that he can only recover against the defen- 
 dant the balance of his claim, after deducting what is due by him to the 
 defendant. 4 Thus, if A. sues B. for 100/., while he owes B. 75/., a set-off 
 would have the effect of reducing A.'s claim to 25/. The object of this 
 is to prevent cross-actions. (See Circuity of Action.) 
 
 § 2. The right of set-off was introduced by stats. 2 Geo. 2, c. 22, and Debts. 
 8 Geo. 2, c. 24 ; but was restricted to mutual debts? Under the Judicature 
 Acts mutual claims of any kind, whether for debts or damages, can be 
 set off against one another; but in practice the term "set-off" is gene- 
 rally applied to mutual debts or claims for liquidated amounts, so that 
 one can be deducted from the other : while cross claims in respect of 
 damages, which are unliquidated, are distinguished as " counter- Damages, 
 claims " (q. v.).° 
 
 As to the limitation of a set-off or counter-claim, see Limitation, § 6. 
 
 § 3. In the practice of the old common law Courts, where there were Judgments. 
 Cross judgments in the same or different actions, in the same or different 
 Courts, between parties substantially thesame, whether fordebt(ordamages) 
 and costs, or for costs alone, either party might set off the amount of his 
 judgment against that of the other by obtaining a rule or Order to enter 
 satisfaction in both actions for the amount of the smaller debt. 7 This 
 
 1 Rules of Court, ix. I, xii. 14. 6 Leake on Contracts, 545. 
 
 2 Rules of Court, lvii. 8 (April, 1880). 6 See Newell v. National, &c. Bank, 
 
 3 Pritchard's Quarter Sessions, 1. 1 C. P. D. 496. 
 
 4 See Chitty on Contracts, 772; Rules 7 Chitty, Pr. 723. 
 of Court, xix. 3. 
 
 302 
 
756 
 
 Settle 
 
 \.PCN DICTIONARY. 
 
 Settlement 
 
 Property. 
 
 Poor. 
 Document. 
 
 practice seems to have been made obsolete by the full powers of set-off 
 given by the Judicature Acts. 
 As to set-off in bankruptcy, see Mutual Credits. 
 
 SETTLE.— I. § i. To settle property is to limit it, or the income of 
 it, to several persons in succession, so that the person for the time being 
 in the possession or enjoyment of it has no power to deprive the others 
 of their right of future enjoyment. (See Settlement, § i.) 
 
 II. § 2. The term " settle " is also applied to paupers. (See Settlement, 
 
 §8.) " 
 
 III. § 3. To settle a document is to make it right in form and in 
 
 substance. Documents of difficulty or complexity, such as mining leases, 
 settlements by will or deed, partnership agreements, &c, are generally 
 settled by counsel. (See Conveyancer.) § 4. In some cases a document 
 requires to be settled by a judge or judicial officer ; thus, when issues are 
 directed to be prepared in an action, and the parties cannot agree on 
 them, they are settled by the judge. 1 In chancery practice every order 
 (except orders for time and a few others) is settled by the registrar in the 
 presence of the parties, unless they agree as to its form, in which case the 
 " settling" consists in their signing the draft as approved. (See Minutes, 
 § 3 ; Pass; Registrar, § 7.) 
 
 SETTLED ACCOUNT. See Account, § 3. 
 
 SETTLED ESTATES ACT, now in force, is the Settled Estates 
 Act, 1877, which repeals the old acts 19 & 20 Vict. c. 120 (The Leases 
 and Sales of Settled Estates Act, 1856); 21 & 22 Vict. c. 77 ; 27 & 28 
 c. 45 ; 37 & 38 Vict. c. 33, and 39 & 40 Vict. c. 30. It enables the tenant 
 for life of settled land (that is, of land limited to or in trust for any per- 
 sons by way of succession 3 ) to grant leases not exceeding twenty-one 
 years (subject to certain restrictions as to the amount of rent, &c), so as 
 to make them binding on the reversioner. 3 It also empowers the 
 Chancery Division of the High Court — (1) to authorize long leases of 
 settled land ; 4 (2) to order sales of settled land, or of timber on settled 
 land, 5 and (3) to direct any part of a settled estate to be laid out for 
 streets, gardens, sewers, &c. 6 Provision is made for giving notice to the 
 persons interested of any application to the Court under the act. 7 
 
 Property. SETTLEMENT.— I. § 1. A settlement is an instrument by which 
 
 property, or the enjoyment of property, is limited to several persons in 
 succession. (See Settle, § 1.) Generally, the word "settlement" implies 
 a deed or an instrument equivalent to a deed (such as articles or agree- 
 
 1 Rules of Court, xxvi. 
 
 2 Sect. 2. 
 
 3 Sects. 46, 47. 
 
 4 Sects. 4 et seq. 
 
 6 Sects. \h et seq. 
 c Sects. 20 et seq. 
 
 7 Sects. 24 el seq. As to the practice, 
 see the Orders under the act (issued Decem- 
 ber, 1878) ; for the practice under the re- 
 pealed acts, see Daniell's Ch. Pr. 1832 
 et seq. ; also Charley's Real Property 
 Statutes, 
 
Settlement law dictionary. Settlement 757 
 
 ment for a settlement) ; but a settlement may be and often is made by 
 will, and occasionally by private act of parliament. 1 
 
 The most important kinds of settlements are : marriage, or ante-nuptial 
 settlements, post-nuptial and voluntary settlements, and family settle- 
 ments, more usually called re-settlements {q. v.). Settlements are also 
 sometimes directed by a Court to be entered into by the parties to a pro- 
 ceeding. 2 
 
 § 2. A marriage, or ante-nuptial settlement, as its name implies, is an Marriage 
 
 settlements 
 instrument executed before a marriage, and wholly or partly in considera- 
 tion of it, for the purpose of regulating the enjoyment and devolution of 
 real or personal property. Such settlements are sometimes distinguished 
 as real and personal settlements, a real settlement being one in which 
 the property is throughout treated as land, so that if a person entitled. 
 under it dies, his share goes to his heir or devisee, while a personal settle- 
 ment is one in which the property is either personalty, or realty directed 
 to be turned into money, and therefore treated as personalty. 3 (See Con- 
 version.) 
 
 § 3. An ordinary settlement of personalty or realty directed to be sold Personal, 
 (the object of which is to make an equal provision for all the children) 
 consists of a conveyance of (or agreement to convey) the property to 
 trustees, to be held by them in trust for the settlor until the marriage 
 takes place (which generally is a few hours after the execution of the 
 settlement) ; followed by a declaration of the trusts on which it is to be 
 held after the marriage, namely, to pay the income to the husband for 
 life (assuming that the property is brought into trust by him), and after 
 his death to the wife for life, and after the death of the survivor to hold 
 the property in trust for the issue of the marriage in such shares as the 
 husband and wife jointly, or the survivor of them, shall have appointed, 
 or in default of and subject to any appointment upon trust for all the issue 
 who attain twenty-one, or (being daughters) marry, in equal shares, with 
 an ultimate trust, by which, if there is no issue of the marriage, the pro- 
 perty reverts to the husband or settlor. 4 If the property is brought into 
 settlement by the wife, the income is first given to the wife for her life for 
 her separate use, generally with a restraint on anticipation {q. v.). In ad- 
 dition to these, the fundamental clauses, there are provisions as to the 
 securities in which the trustees are to be at liberty to invest the settled 
 property; covenants to settle after-acquired property {infra, §5); hotch- 
 pot, maintenance, advancement and accumulation clauses ; and provisions 
 for the appointment of new trustees 6 (see the various titles). 
 
 § 4. A marriage settlement of real property, where the object is to Strict settle- 
 retain the estate in the family (hence sometimes called a family settle- 
 
 1 See the definition of "settlement " in Vict. c. 19, s. 3 ; Browne on Divorce, 185 
 the Fines and Recoveries Act, s. 1. etseg. ; Burton v. Sturgeon, 2 Ch. D. 318. 
 
 2 For instance, by a ward of Court on his 3 Williamson Settlements, 123. As to 
 or her marriage, whether under the act settlements generally, see Davids. Couv. 
 18 & 19 Vict. c. 43,. or not (Daniell, Ch. in. passim. 
 
 Pr. 1206). As to the power of the Court to 4 Williams on Settlements, 124 et seq. 
 
 modify settlements in cases of divorce, see 6 Elphinstone's Conv. 266 et seq.; Wat- 
 
 stats. 22 & 23 Vict. c. 61, s. 5 ; 41 & 42 son's Comp. Eq. 5C7 et seq. 
 
758 
 
 Settlement 
 
 LAW DICTIONARY. 
 
 Settlement 
 
 Covenant to 
 settle after- 
 acquired 
 property. 
 
 Voluntary 
 settlements 
 (post-nuptial, 
 &c). 
 
 Pauper. 
 
 Original : 
 
 merit, 1 or, more commonly, a strict settlement, has, in the most simple 
 case, where the intended husband is seised in fee of the property, the fol- 
 lowing principal objects : — "First, to make provision for the wife : this is 
 effected by securing the payment to her of two annuities; the one, payable 
 during her husband's lifetime, called 'pin-money;' the other, payable 
 after his death, called a 'jointure.' Second, to provide for the payment 
 of gross sums of money, called ' portions,' to such of the younger chil- 
 dren of the marriage as attain majority. Third, to provide that the pro- 
 perty charged with these provisions for the wife and younger children 
 should go as a whole to the eldest son." 2 These objects are effected by 
 limiting a long term to trustees to secure the pin-money, followed by 
 another long term to other trustees to secure the jointure ; followed by 
 another long term to secure the portions ; subject to these terms, the 
 land is limited to the husband for life, with remainder to the sons of the 
 marriage successively in tail ; failing sons and their issue, it is limited to 
 the daughters as tenants in common in tail, and failing daughters and 
 their issue, it is limited to the settlor in fee. Incidental clauses are those 
 giving tenants for life in possession, or the trustees, power of granting 
 leases and of effecting sales and exchanges of the settled land ; and 
 covenants for title by the settlor. 3 
 
 § 5- A settlement often contains a covenant by the husband or wife to 
 settle all property exceeding a certain amount in value which shall be 
 acquired by him or her after the marriage. Such a covenant generally 
 binds the covenantor to settle not only property in which he (or she) has 
 no interest at the time of the marriage, but also interests which were con- 
 tingent, and, in some cases, even vested at the time of the marriage, such 
 as reversions. 4 
 
 § 6. Voluntary settlements are settlements made otherwise than for valu- 
 able consideration. (See Voluntary.) A post-nuptial settlement {i.e., one 
 made by a husband on his wife or family after the marriage without 
 some new consideration) is a voluntary settlement. § 7. A voluntary 
 settlement of land may be defeated by a subsequent conveyance by the 
 settlor to a purchaser for value 5 (see Voluntary) ; and a voluntary settlement 
 of any property made by a trader is void if the settlor becomes bankrupt 
 within two years from its date ; it is also void if he becomes bankrupt 
 within ten years from its date, unless it is proved that at the time of making 
 it he was able to pay all his debts without the aid of the property com- 
 prised in it. 6 A voluntary settlement is also void if it falls within the pur- 
 view of the Stat. 13 Eliz. c. 5 ; as to which see Fraudulent Conveyance, § 1. 
 
 II. § 8. A pauper is said to be settled in a parish (or union) when 
 he has acquired a right to permanent relief there, as opposed to casual 
 and irremovable paupers. 7 (See Poor Law; Irremovability?) A settle- 
 ment is either original or derivative. § 9. An original settlement is one 
 
 1 Williams, 212. 
 
 '■ Elphinstone, 322 ; Watson, 577; Wil- 
 liams, 212. 
 
 3 Elphinstone, 328. 
 
 4 Ibid. 273 ; Watson, 602. As to the 
 effect of bankruptcy on such a covenant 
 
 by a trader, see Bankruptcy Act, 1869, 
 s. 91. 
 
 6 Stat. 27 Eliz. c. 4. 
 
 6 Bankruptcy Act, 1869, s. 91 ; Wil- 
 liams, 354 et seq. 
 
 1 Steph. Comm. iii. 52 et seq. 
 
Sever law dictionary. Several 759 
 
 acquired by the pauper without reference to other persons, and that 
 (a) by birth in the parish, unless he has some other settlement, original by birth '• 
 or derivative ; (b) by renting a tenement of the value of 1 ol. a year at by renting a 
 least for one whole year, and residing in the parish for forty days ; (c) in tenement ; 
 the case of an apprentice, by inhabiting in the parish for forty days ; by inhabiting ^ 
 (d) by having an estate in the parish of any nature or value, and in- by estate; 
 habiting within 10 miles thereof; (e) by paying parochial rates and taxes by rates and 
 in respect of a tenement within the parish of the yearly value of 10/. taKes ! 
 a year at least; (f) by residing in the parish for three years. 1 (See by residence. 
 Residence, § 2.) § 10. A derivative settlement is one derived from some Derivative: 
 other person, and is either (a) by parentage, the rule being that every by parentage; 
 child under the age of sixteen takes the settlement of its father or widowed 
 mother (or, if illegitimate, of its mother) until it acquires the age of 
 sixteen, and retains that settlement until it acquires another, unless its 
 parent had a derivative settlement, in which case the child's settlement is 
 ascertained without reference to the parent ; (b) by marriage, a female by marriage. 
 pauper always taking the settlement of her husband. 3 
 
 SEVER— SEVERABLE— SEVERANCE.— § 1. To sever is to 
 divide, and severable is that which is divisible. Thus a joint tenancy is 
 severed when one of two joint tenants conveys his interest to a stranger, 
 because the other tenant and the stranger are then tenants in common. 3 
 (See Joint Tenancy, § 7.) 
 
 § 2. Again, when a claim is composed of several parts, some of them 
 may be put forward or enforced without the others, the latter are said to 
 be severable, and the act of severing them is called severance ; as where 
 A. having brought an action in an inferior Court for causes which were 
 partly within and partly without the jurisdiction of the Court, he was 
 allowed to sever them by abandoning the latter part of his case, so as to 
 keep the action in the inferior Court. 4 And when two or more defen- 
 dants to an action put in separate defences, instead of joining in one 
 defence, they are said to sever. (See Entire; Apportionment, §§ 3 et seq.; 
 Several; Severalty.) 
 
 § 3. Severance is also the act of removing fixtures, growing crops, or Fixtures, 
 minerals from land. 6 A tenant who is entitled to remove fixtures must cro P s ' &c - 
 sever them during his term, or he loses his right. 5 As to the effect of 
 severance on growing crops and minerals, see those titles. 
 
 SEVERAL is opposed to "joint." Thus tenants in common of land 
 are said to be seised by several titles, so that if they are disseised each 
 has a separate right of action, while joint tenants are seised by a joint 
 title, and therefore if they are disseised they ought to bring one action to 
 recover the land." 
 
 As to a several fishery, see Fishery, § 4 ; as to several hereditaments 
 
 1 Stat. 39 & 40 Vicl. c. 61, s. 34. 200a. 
 
 2 Ibid. s. 35 ; Great Yarmouth v. City * Ellis v. Fleming, I C. P. D. 237. To 
 of London, 3 Q. B. D. 232; Westbury- "sever in action" is to bring several, that 
 on-Severn v. Barrow-in-Furness, 3 Ex. is, separate actions. Co. Litt. 195 b, 
 
 D. 88. ' s chitty on Contracts, 326 et seq. 
 
 3 Co. Litt. 191 a. As to severable here- 6 Litt. § 314. 
 ditaments and chattels, see Co. Litt. 164b, 
 
760 
 
 LAW DICTIONARY. 
 
 Sewer 
 
 Severalty 
 
 and inheritances, see Hereditament, § 7 ; Inheritance, § 5 ; as to a several 
 pasture, see Pasture, § 3. 
 See Severalty. 
 
 Shifting 
 severalties. 
 
 SEVERALTY.— § 1. Property is said to belong to persons in seve- 
 ralty when the share of each is ascertained, so that he can exclude the 
 others from it, as opposed to joint ownership, ownership in common, 
 and coparcenary, where the owners hold in undivided shares 1 (see Es- 
 tate, § n). § 2. Usually when land is held in severalty, it is divided so that 
 each of the owners has a part to himself, but they may agree that one 
 shall have the land for one part of the year, another for another, and so 
 on, and in this case also they are said to hold in severalty 2 (see Inherit- 
 ance, § 5). § 3. The term severalty is especially applied to the case of 
 adjoining meadows undivided from each other, but belonging, either 
 permanently or in what are called shifting severalties {infra, § 4), to 
 separate owners, and held in severalty until the crops have been carried, 
 when the whole is thrown open as pasture for the cattle of all the owners, 
 and in some cases for the cattle of other persons as well : each owner is 
 called a severalty owner, and his rights of pasture are called severalty 
 rights, as opposed to the rights of persons not owners. 3 (See Common, 
 §§ 4, 7 ; Commonable, § 2 ; Dole ; Lammas Lands ; Open Fields ; Shack.) 
 
 § 4. When a number of persons are the owners of land, and an 
 exclusive share is allotted to each for a certain time, at the expiration 
 of which the shares are again distributed, so that the occupation varies 
 or shifts from time to time, they are said to hold by shifting severalties. 4 
 The most usual instance of shifting severalties occurs in the case of 
 open fields and other commonable lands (see Commonable, § 2; Dole; 
 Lot-Mead; Shack), where the severalty holding of each owner varies 
 sometimes by rotation, sometimes by lot, while in some places the choice 
 is awarded to the best runner or wrestler, or determined by other fantastic 
 methods. 6 
 
 Commis- 
 sioners of 
 Sewers. 
 
 SEWER, — I. § i. "Sewer" originally meant an open trench or 
 channel, made for carrying off surplus water from land near the sea or 
 a river, or from marshy ground. Commissioners of Sewers are officials 
 appointed by the crown, formerly by prerogative, but subsequently under 
 various acts of parliament (especially 23 Hen. 8), to survey, repair and 
 keep in order sewers, streams, sluices and embankments within their 
 district ; they form courts of record and have power to make orders and 
 assess rates. 6 
 
 II. § 2. In its modern and more usual sense, a sewer means an 
 underground or covered channel used for the drainage of two or more 
 separate buildings, as opposed to a " drain," which is a channel used for 
 carrying off the drainage of one building or set of buildings in one 
 
 1 Litt. §§ 243 et seq. 
 
 2 Co. Litt. 4 a, 167 a, 180 a. 
 '* Cooke, Incl. 47, 163, 11. 
 
 * See Co. Litt. 4 a. 
 
 296 
 
 5 Elton, Coram. 31 ; Cooke, Incl. 48. 
 
 6 Callis on Sewers ; Steph. Comm. iii. 
 
Shack LAW DICTIONARY. Share 761 
 
 curtilage. 1 (See Drain.) In London the main sewers are vested in the 
 Metropolitan Board of Works, and the local or branch sewers in the 
 local authorities, namely the vestries and district boards. 2 Sewers in the 
 country are, as a rule, vested in the local sanitary authority. 3 
 
 § 3. The Metropolitan Commissioners of Sewers were created by stat. 
 11 & 12 Vict. c. 112 ; they were abolished by stat. 18 & 19 Vict. c. 120," 
 and their functions transferred partly to the metropolitan vestries and 
 district boards, and partly to the Metropolitan Board of Works (q.v.). 
 
 Etymology.] — Old French, essuer, essuier ; Latin, exsuccare, to dry. 4 
 
 SHACK. — It sometimes happens that a number of adjacent fields, 
 though held in severalty, that is, by separate owners, and cultivated sepa- 
 rately, are, after the crop on each parcel has been carried in, thrown open 
 as pasture to the cattle of all the owners. "Arable lands cultivated on 
 this plan are called 'shack fields,' and the right of each owner of a part to 
 feed cattle over the whole during the autumn and winter is known in law 
 as common of shack, a right which is distinct in its nature from common 
 because of vicinage, though sometimes said to be nearly identical with 
 it." 5 It is also known as "shackage" and "common of shacker," 6 and 
 the shack lands are sometimes called " the known lands," to distinguish 
 them from an ordinary common, in which there is no distinction of 
 property, and more frequently " half-year lands," from the period during 
 which they are open to pasture. 7 
 
 Common of pasture in open meadows (q. v.) is of very much the same 
 nature as common of shack. 8 
 
 Etymology.] — " 'Shack,' in the dialect of Norfolk, signifies to ramble or go at large, 
 and the name has been adopted in speaking of half-year lands in other counties, probably 
 because the leading case on the subject (7 Co. 5) was concerned with lands in Norfolk." 10 
 
 SHARE. — § i. In the law of companies, a share is a definite portion 
 of the capital of a company. With very few exceptions, shares in com- 
 panies are personal estate, whatever the nature of the company's property 
 or business may be. 11 The ownership of a share entitles the holder to 
 receive a proportionate part of the profits of the company, and to take 
 part in the management of its business, in accordance with the articles of 
 association or other regulations of the company, which also regulate the 
 mode in which shares may be transferred. (See Meeting; Resolution; 
 Shareholder!) § 2. When the amount of a share has been paid to the Fully paid, 
 company, it is said to be fully paid up. And if the company is a limited 
 one, the liability of the holder of the share is then at an end. (See Com- 
 pany, §§ 4 et seq.) Shares may be issued by a company as fully paid up 
 (e. g., in consideration of services or works rendered to the company by 
 the person to whom they are issued), but in the case of a company formed 
 
 1 Public Health Act, 1875, ss. 4, 19 ; 5 Elton, Comm. 30. 
 
 Metropolis Local Man. Act, 1855, ss. 250, 6 Ibid. 30, n. 
 
 72 ; Swanston v. Twickenham Board, 7 Ibid. 29. 
 
 11 Ch. D. 838. " Ibid. 31. 
 
 a Met. Local Man. Act, 1855, ss. 68, » Marshall's Rur. Ec. s. v. 
 
 135. ln Elton, Comm. 31, n. 
 
 3 Public Health Act, 1875, s - I 3- u Lindley on Partnership, 661 et seq.; 
 
 4 Littre, s. v. Essuyer. Companies Act, 1862, s. 22. 
 
762 
 
 Shareholder 
 
 LAW DICTIONARY. 
 
 Shelley's Case 
 
 Conversion 
 into stock. 
 
 Share-certifi- 
 cate. 
 
 Share- 
 warrant. 
 
 under the Companies Acts, the agreement under which they are so taken 
 must be made in writing and filed with the registrar at or before the issue 
 of the shares. 1 § 3. A company formed under the Companies Acts (q. v.) 
 may at any time convert its fully paid shares into stock {q. v.)? § 4. A 
 share-certificate is an instrument under the seal of the company, certifying 
 that the person therein named is entitled to a certain number of shares : 
 it is prima facie evidence of his title thereto 3 (see Scrip). § 5. A share- 
 warrant to bearer is a warrant or certificate under the seal of the company, 
 stating that the bearer of the warrant is entitled to a certain number or 
 amount of fully paid-up shares or stock ; coupgns for payment of dividends 
 may be annexed to it ; delivery of the share-warrant operates as a transfer 
 of the shares or stock. 4 
 
 As to shares in ships, see Ship. 
 
 SHAREHOLDER. — In the strict sense of the term, a shareholder is 
 a person who has agreed to become a member of a company, and with 
 respect to whom all the required formalities have been gone through 
 (e. g., signing of deed of settlement, registration, or the like). A share- 
 holder by estoppel is a person who has acted and been treated as a share- 
 holder, and consequently has the same liabilities as if he were an ordinary 
 shareholder. 5 Thus, a person who has acted as a shareholder may be 
 liable for the debts of the company, although he has never been registered 
 as a shareholder, and is therefore not a shareholder in the full sense of 
 the word. 6 
 
 SHEEP -HEAVES are small plots of pasture, often in the middle of 
 the waste of a manor, of which the soil may or may not be in the lord, 
 but the pasture is private property and leased or sold as such. They 
 principally occur in the northern counties,' and seem to be corporeal 
 hereditaments, 8 although they are sometimes classed with rights of 
 common, but erroneously, the right being an exclusive right of pasture. 
 (See Pasture, §3.) 
 
 SHEEPWALK. — A right of sheepwalk is the same thing as a fold- 
 course {q. v.). d 
 
 SHELLEY'S CASE.— If land is given to A. for his life, or for any 
 estate of freehold, and by the same gift or conveyance the land is limited 
 either mediately or immediately to his heirs in fee (or in tail), the result 
 
 1 Companies Act, 1867, s. 25. 
 
 » Companies Act, 1862, ss. 12, 28, 29. 
 
 s Ibid. s. 31 ; Lindley, 150, 1187. 
 Share certificates are not negotiable in- 
 struments ; see Shropshire Union Rail. 
 Co. v. Reg., L. R., 7 H. L. 496. 
 
 1 Comp. Act, 1807, ss. 27 etseq. It does 
 not seem to have been decided whether 
 share-warrants are negotiable instruments 
 in the full sense, namely, so as to enable a 
 holder with a defective title to give a good 
 title to a bond fide transferee for value. 
 No doubt they are within the doctrine of 
 
 Goodwin v. Robarts (1 App. Ca. 476), so 
 that if the owner of a warrant allowed it to 
 remain in another person's possession, he 
 could not recover it from anyone who ac- 
 quired it bona fide for value from that 
 person. 
 
 6 Lindley on Part. 130. 
 
 Portal y.Emmens, 1 C. P. D. 201. 
 
 7 Cooke, Incl. 44. 
 
 8 Elton, Comm, 35. 
 
 9 Ibid. 44 ; Cooke, Incl. ; Jones v. 
 Richards, 6 A. & E. 530. 
 
Sheriff law dictionary. Shifting Clause 763 
 
 is that A. takes an estate in fee (or in tail), and not merely the particular 
 estate first limited to him. Thus, if land is given " to A. for his life, and 
 after his death to his heirs," or " to A. for his life, and after his death to 
 B. for his life, and after his death to the heirs of A.," in either of these 
 cases A. takes an estate in fee simple: in the first case an estate in fee 
 simple in possession, and in the second case an estate for life in posses- 
 sion, followed by an estate in fee simple in remainder expectant on the 
 death of B. A.'s heirs take nothing, unless he dies intestate and allows 
 the land to go by descent. In technical language, the word " heirs " is 
 here a word of limitation, and not a word of purchase. This rule is 
 called the rule in Shelley's Case, a case 1 in which the subject was much 
 discussed, although the rule itself is of much more ancient date. 3 
 
 SHERIFF is the chief officer of the crown in every county in England, 
 appointed by the crown every year. He must hold some land within 
 the county. The duties of sheriffs are very various, including the 
 charge of parliamentary elections, the execution of process issuing from 
 the High Court and the Criminal Courts, the summoning of jurors and 
 the seizing of escheated lands. 3 Most of his ordinary duties are per- 
 formed by the under-sheriff and deputy. 4 
 
 § 2. Formerly the sheriff had judicial duties to perform as judge of the 
 Sheriffs County Court ; but these are practically obsolete. (See County 
 Court, § 8 ; Outlawry.') He also held a court of record called the 
 Sheriffs Tourn twice every year, which had the same functions and 
 jurisdiction as the Court Leet (q. v.) : it also has fallen into desuetude. 5 
 
 See Bailiff; Bailiwick ; Pricking for Sheriffs, p. 649. 
 
 SHEW CAUSE. — When an order, rule, decree or the like, has been 
 made nisi, the person who appears before the Court and contends that it 
 should not be allowed to take effect, is said to shew cause against it. 
 (See Absolute ; Decree, § 2 ; Nisi; Rule, § 3.) 
 
 SHEWER. — In the practice of the High Court, when a view by a 
 jury is ordered, persons are named by the Court to shew the property to 
 be viewed, and are hence called shewers. There is usually a shewer on 
 behalf of each party. 6 (See View.) 
 
 SHIFTING CLAUSE, in a settlement, is a clause by which some 
 other mode of devolution is substituted for that primarily prescribed. 
 Examples of shifting clauses are — the ordinary name and arms clause (q. v.) 
 — and the clause of less frequent occurrence by which a settled estate 
 is destined as the foundation of a second family, in the event of the 
 elder branch becoming otherwise enriched. 7 These shifting clauses take 
 effect under the Statute of Uses. (See Use.) 
 
 1 1 Rep. 94. e. 99. 
 
 2 Williams, R. P. 255 ; Jamian on 4 Steph. 632. 
 Wills, ii. 332. 5 Ibid. iv. 321. 
 
 3 Co. Litt. 168a ; Steph. Coram, ii.623; ° Archbold, Pr. 339 et seq. 
 stats. 13 & 14 Car. 2, c. 21 ; 3 & 4 Will. 4, 7 Davids. Conv. iii., 273. 
 
764 Shifting Use LAW DICTIONARY. Shooting 
 
 SHIFTING USE. See Use. 
 
 SHIP. — Under the Merchant Shipping Act, a vessel cannot be re- 
 gistered as a British ship unless she belongs wholly to British subjects, 
 or to a corporation formed under and subject to the laws of, and having 
 its principal place of business in, the British empire. 1 A British ship 
 is personal property, but, so long as she is on the high seas, she is 
 deemed to be part of the soil of England : 2 thus, persons born on board 
 a British ship are natural-born British subjects, and the British Courts 
 have jurisdiction in respect of crimes committed on the high seas on 
 board British vessels. 3 
 
 § 2. The ownership of every registered ship is divided into sixty-four 
 shares, all of which may belong to one person, or they may be divided 
 among several persons ; but not more than thirty-two persons can be 
 registered as part-owners of any one ship. 4 (See Part-Owner.') Any 
 part-owner can transfer or mortgage any or all of the shares held by 
 him ; but to do so he must comply with the statutory provisions on these 
 heads (as to which, see Bill of Sale, § 3 ; Mortgage, § 17), as ships are 
 not within the ordinary rules governing the assignment and hypothecation 
 of chattels. 
 
 As to the hypothecation of ships, see Bottomry ; Hypothecation ; Ne- 
 cessaries, § 4 ; Respondentia. 
 
 As to the employment of ships, see Affreightment ; Bill of Lading ; 
 Chatter-Party ; Demurrage; Freight; Insurance, § 3; Lay Days ; Loss; 
 Managing Owner; Merchant Shipping; Pilotage; Policy of Assurance; 
 Running Days; Seamen; Seaworthiness; Ship 's Husband ; Transire. 
 
 For other matters relating to ships, see Action, §§ 11 et seq. ; Admiral; 
 Admiralty; Average; Collision; Limitation of Liability, §§ 2,3; Salvage; 
 Wreck. 
 
 SHIP'S HUSBAND is a person to whom the owner or part owners 
 of a ship delegate the management of her while she is in the home port. 
 He is usually the general agent of the owners in regard to all affairs of 
 the ship in the home port, such as repairs, equipment, hiring officers and 
 crew, affreightment, &c, but not insurance ; sometimes his authority is 
 limited to specific things. 5 (See Agent ; Managing Owner) 
 
 SHOOTING. — I. § 1. The right of shooting over land is a variety 
 of the right of sporting (q. v.). 
 
 II. § 2. In criminal law, shooting, or attempting to shoot, a person 
 with intent to commit murder, or to maim, disfigure, or do grievous 
 bodily harm to him, or to prevent the lawful apprehension or detainer of 
 any person, is felony, punishable with penal servitude for life (maximum). 6 
 Shooting at vessels or boats belonging to the navy or in the service of the 
 
 1 Merchant Shipp. Act, 1854, s. 18. * Ibid. s. 37. 
 
 2 Westlake, Int. Law (2nd edit.), 174. » Foard on Merch. Shipp. 47. 
 
 3 See Regina v. ICeyn, L. R., 2 Ex. " Stat. 24 & 25 Vict. c. 100, ss. 14, 18. 
 
Short Cause law dictionary. Sign 765 
 
 revenue, or at any officer employed in the prevention of smuggling, is 
 felony punishable with penal servitude for any term not less than five 
 years, or imprisonment not exceeding three years. 1 
 
 SHORT CAUSE.— In the Chancery Division, when the hearing of 
 an action (whether on motion for judgment, further consideration, or 
 otherwise) involves no question of difficulty, and is not likely to take up 
 much time in argument, or is such that the subject-matter of it would 
 authorize the Court to make an order as of course, or is one in which 
 all parties consent to the order or judgment, it may, on a certificate by 
 the plaintiff's counsel that it is fit to be heard as a short cause, be marked 
 as " short " in the registrar's cause book, 3 instead of being set down in 
 the ordinary cause list. One day in each week- is appointed for hearing 
 short causes, and as each is disposed of in from five minutes to a quarter 
 of an hour, an action which has been marked " short " may be brought 
 to a hearing with great despatch. 
 
 SHORTHAND -WRITERS' NOTES of the evidence or arguments 
 on the trial or hearing of an action are frequently taken for future use on 
 a motion for new trial or an appeal. As a general rule, the party taking 
 them has to bear the expense himself. 3 But in a special case (as where 
 the evidence is exceptionally voluminous), the costs will be allowed. 4 
 
 SIC UTERE TUO UT ALIENUM NON L^EDAS (" So use 
 
 your own property as not to injure that of other persons ") is a maxim 
 indicating the chief limitation on the enjoyment of an absolute owner, as 
 to which see Ownership, § 3. 
 
 SIDE -BAR RULE. See Rule, § 4. 
 
 SIGN— SIGNATURE.— § 1. In the primary sense of the word, a 
 person signs a document when he writes or marks something on it in 
 token of his intention to be bound by its contents. In the case of an 
 ordinary person, signature is commonly performed by his subscribing his 
 name to the document, and hence " signature " is frequently used as 
 equivalent to " subscription ;" but any mark is sufficient if it shows an inten- 
 tion to be bound by the document : illiterate people commonly sign by 
 making a cross. 1 " (See Marksman.) The provisions of the 17th section 
 of the Statute of Frauds (which requires a contract for the sale of goods 
 in certain cases to be signed by the party to be bound) have been held to 
 be satisfied where the party writes the memorandum forming the contract 
 on a piece of paper on which his name is printed. 6 
 
 § 2. The only signature which a corporation aggregate can make is by its 
 
 1 Customs Laws Consolidation Act, of Westminster Ore Co., 10 Ch. D. 307. 
 1876, s. 193. ' Bigsoy v. Dickenson, 4 Ch. D. 24. 
 
 - a Daniell's Ch. Pr. 836. 6 Baker v. Dening, 8 A. & E. 94. 
 
 3 Kelly v.Byles, 13 Ch. D. 682; Duchess ° Chitty on Contracts, 362. 
 
766 Sign Manual law dictionary. Silk Gown 
 
 seal. 1 In practice ordinary contracts by a trading company are generally 
 signed by an agent or officer of the company on its behalf. 2 (See Seal.) 
 
 Etymology.]— Signare in Roman law meant both to seal and (although more rarely) 
 to subscribe. 3 
 
 SIGN MANUAL is the signature or "royal hand" of the Queen. It 
 is called the " sign manual " because it is the actual signature of the 
 crown, as distinguished from the operation of signing documents by the 
 signet (q.v.y Warrants for passing grants under the Great Seal are 
 signed with the sign manual as an authority to the Secretary of State to 
 affix the Privy Seal to the warrant. 5 (See Great Seal ; Privy Seal ; War- 
 rant.) 
 
 SIGNET is a seal with which certain documents are sealed by the 
 principal Secretary of State on behalf of the Queen. Formerly, every 
 bill for letters patent, after being signed with the sign manual {q. v.), was 
 sealed with the signet, as a warrant or authority to the proper officer to 
 affix the privy seal or great seal (as the case might be) to the grant. But 
 the necessity of affixing the signet in such cases has been abolished, and 
 the use of the signet seems practically to have ceased. Coke says, how- 
 ever, that a writ of ne exeat regno may be issued under the signet, "for 
 this is but a signification of the king's commandment, and nothing 
 passeth from him." 7 
 
 SIGNIFICAYIT is used in two senses: (i) to denote the bishop's 
 certificate on which a writ de excommunicato or contumace capiendo is issued, 
 and (ii) the writ itself. 8 The former seems to be the original and proper 
 use of the word. The certificate is directed to the Queen in Chancery, 
 and specifies the offence for which it is desired to imprison the offender. 9 
 (See De Contumace capietido.) 
 
 SIGNING JUDGMENT.— In the Queen's Bench Division, when 
 judgment is given in an action after the trial, the successful party draws 
 up two forms of judgment in accordance with the certificate of the asso- 
 ciate (see Certificate, § 2), and takes them to the proper officer, who signs 
 one form of judgment and files it ; after stamping the other with the seal 
 of the Court, he returns it to the party. Hence the process is called 
 "signing judgment," though the proper term is "entering." 10 (See 
 Enter.) The process of signing judgment under an order, or on default, 
 is similar. 
 
 SILK GOWN. See Queen's Counsel. 
 
 1 See Gooch v. Goodman, 2 Ad. & E. 6 Stat. 14 & 15 Vict. t. 82. 
 580 ; Re General Estates Co., L. R., 3 Ch. 6 Stat. 14 & 15 Vict. c. 83. 
 758; Re Imperial Land Co., L. R., nEq. 7 Second Inst. 556. 
 
 478 ; Crouch v. Credit Fonder, L. R., 8 Phillimore, Eccl. Law, 1404 ; Hudson 
 
 8 Q. B. 374. v. Tooth, 2 P. D. 125. 
 
 2 Pollock on Contract (2nd edit.), 130 ° See stat. 53 Geo. 3, c. 127. 
 
 etseq.; Companies Act, 1867, s. 37. 10 Rules of Court, xli. ; Archbold, Pr. 
 
 3 Dirksen, Man. Lat. s. v. 462. 
 
 4 Second Inst. 555. 
 
Simoniacal law dictionary. Six Clerks 767 
 
 SIMONIACAL— SIMONY.— "Simony, according to the canonists, 
 is denned to be a deliberate act, or a premeditated will and desire of selling 
 such things as are spiritual, or of anything annexed unto spirituals, by 
 giving something of a temporal nature for the purchase thereof." x Thus 
 it is simony for anyone to purchase the next presentation to a living when 
 it is vacant ; and it is simony for a clergyman to purchase a next presen- 
 tation even when the church is full ; but, with these exceptions, the buying 
 and selling of advowsons and next presentations is not simoniacal. 2 
 
 All simoniacal contracts, presentations, collations, &c, are void ; and 
 the persons guilty of the offence are subject to penalties. 3 
 
 See Next Presentation; Resignation Bonds. 
 
 SIMPLE. See Contract; Homage, § 3; Larceny; Sale, § 2. 
 
 SINECURE. — Informer times the rector of an advowson had power, 
 with the proper consent, to entitle (that is, appoint) a vicar to officiate 
 under him, so that two persons were instituted to the same church. By 
 degrees, the rectors got themselves excused from residence, and devolved 
 the whole spiritual cure upon the vicars. In such a case the rectory 
 became merely nominal, without cure of souls {sine curd), and was hence 
 called a sinecure. 
 
 Provision for the suppression of sinecure rectories is contained in the 
 stat. 3 & 4 Vict. c. 1 13. 4 
 
 SITTINGS. — § 1. A Court is said to sit when its members are present 
 for the transaction of business. In the High Court the sittings are desig- 
 nated either according to the nature of the business, or the period at 
 which the sittings are held. Thus, in the practice of the Queen's Bench 
 Division, we speak of the sittings for trials, or at nisi prius, or in banc, or 
 at the assizes, &c. (see the various titles). 
 
 With reference to the period at which they are held, the sittings of the 
 Supreme Court of Judicature are four in number, namely, the Hilary Sit- 
 tings, from January 1 1 to the Wednesday before Easter ; the Easter Sittings, 
 from the Tuesday after Easter Week to the Friday before Whit Sunday ; 
 the Trinity Sittings, from the Tuesday after Whitsun Week to August 8 ; 
 and the Michaelmas Sittings, from November 2 to December 21. 5 For- 
 merly the sittings of the Courts of Chancery and Common Law were 
 regulated by the terms {q. v.), and hence were distinguished as sittings in 
 and sittings after term. 
 
 SIX CLERKS.— 5 1. " In the time of Richard II., the Master of the Rolls had 
 six clerks to assist him in keeping the records, and in making the requisite entries. They 
 had an office .... called the Six Clerks' Office, in which all bills, answers, and other 
 pleadings and depositions taken by commission, were filed ; and .... all decrees, dis- 
 
 1 Ayliffe, cited Phillimore, Eccl. Law, c. 6 ; I W. & M. c. 16 ; 13 Anne, c. 11. 
 
 1 107. i Phillimore, Eccl. Law, 504; Steph. 
 
 2 Steph. Comm. ii. 721. Comm. ii. 683. 
 
 3 See PhUL 1102 et seq.; stats. 31 Eliz. 5 Rules of Court, lxi. r. 
 
768 
 
 Slander 
 
 LAW DICTIONARY. 
 
 Slave Trading 
 
 missions and other records were there kept." ' Each clerk was called a Six Clerk. The 
 office was practically a sinecure. The Six Clerks were abolished by stat. 5 & 6 Vict. 
 c. 103, and their duties transferred to the Records and Writs Clerks, and Clerk of Enrol- 
 ments 3 (q. v.). 
 
 Slander per 
 se: 
 
 by reason of 
 
 special 
 
 damage. 
 
 Slander of 
 quality of 
 goods. 
 
 Slander of 
 title. 
 
 SLANDER. — § 1 . A false and malicious statement concerning a person 
 made by word of mouth is a slander, giving rise to a right of action for 
 damages : (i) if it imputes to the plaintiff the commission of a crime for 
 which a corporal punishment may be inflicted, or the having some con- 
 tagious disorder which may exclude him from society, or has reference 
 to his trade, office, or profession, and is calculated to injure him therein ; 
 or (ii) if it has caused him special damage. The first kind is called 
 slander per se, and the latter kind is called slander by reason of special 
 damage. Thus, if one man falsely and maliciously says of another that he 
 is a thief or a swindler, or a leper, or that, being a lawyer, he is a rogue, 
 this is slander per se ; if, on the other hand, a man imputes unchastity to 
 a woman, this is not actionable, unless it produces special damage, 
 namely, an injury to the material interests of the person slandered. 
 Mere words of abuse are not actionable. § 2. In the class of slander on 
 a person with reference to his occupation may also be included what 
 is called slander of quality of goods, namely, a false and malicious 
 statement throwing discredit on the commodity in which the party deals ; 
 as where a man said of a trader : " He hath nothing but rotten goods in 
 his shop." 3 
 
 § 3. A statement in itself defamatory is not actionable if it is privileged. 4 
 (See Privilege : also Apology ; Defamation; Justification ; Libel; Malice.) 
 
 § 4. Slander of title is a false and malicious statement, whether by 
 word of mouth or in writing, with reference to a person's title to some 
 right or property belonging to him, as where a person alleges that the 
 plaintiff has a defective title to land, or to a patent. 5 It seems that 
 slander of title is not actionable unless special damage results from it. 6 
 
 A written slander of title is sometimes called a " libel in the nature of 
 slander of title." 7 
 
 SLAUGHTER-HOUSES.— Provisions for the registration, licens- 
 ing and regulation of slaughter-houses are contained in the stats. 7 & 8 
 Vict. c. 87; 12 & 13 Vict. c. 92 ; 25 & 26 Vict. c. 102 (ss. 93, 94), 
 37 & 38 Vict. c. 87 (applying to the metropolis), and the sections of the 
 Towns Improvement Clauses Act, 1847, incorporated in the Public 
 Health Act, 1875. 
 
 SLAVE TRADING is a felony, punishable with penal servitude 
 for fourteen years, or imprisonment with hard labour for five years. 
 
 1 Spence's Equity, 366. 
 
 2 Second Rep. Legal Dep. Comm. 43. 
 
 3 Folkard, 125, citing Cro. Car. 570. 
 
 * Broom's Comm. C. L. 759; Folkard 
 on Slander and Libel ; Flood on Libel and 
 Slander, passim ; Riding v. Smith, 1 Ex. 
 
 D. 91. 
 
 6 Broom, ubi supra; Flood, 224 et seq. 
 
 See Haddan v. Lott, 15 C. B. 411 ; 
 Wren v. Weild, L. R., 4 Q. B. 730. 
 
 1 Hart v. Hall, 2 C. P. D. 146. 
 
Slip LAW DICTIONARY. Socage 769 
 
 § 2. Piratical slave trading is the offence ("piracy, felony and robbery") 
 of carrying away or assisting in carrying away any person from any part 
 of her Majesty's dominions, for the purpose of his being dealt with as a 
 slave. It is punishable with penal servitude for life. 1 
 
 SLIP. — In negociations for a policy of insurance the agreement is in 
 practice concluded between the parties by a memorandum called the 
 slip, containing the terms of the proposed insurance, and initialed by the 
 underwriters. 2 Although by 30 Vict. c. 23, s. 7, which requires every 
 contract of marine insurance to be expressed in a policy, the slip is not 
 itself enforceable, it is for many other purposes of legal effect ; thus, 
 where a slip has been initialed, the assured need not communicate to 
 the insurer facts which afterwards come to his knowledge material to the 
 risk insured against, and the non-disclosure of those facts will not vitiate 
 the policy afterwards executed, although it would do so if there were no 
 slip. 3 
 
 SMUGGLING is the offence of importing or exporting prohibited 
 goods, or of importing or exporting goods without paying the duties 
 imposed on them. Goods so imported are liable to confiscation, and the 
 offenders are liable to forfeit treble the value of the goods, or the penalty 
 of 100/. Persons assembling together for the purpose of smuggling are 
 liable to imprisonment. 4 (See Shooting, § 2.) 
 
 SOCAGE is a kind of tenure, distinguished from the tenure of frank- 
 almoign (q. v.) by its services being certain and of a temporal nature, and 
 from the tenure of knight's service (q. v.), by its services having been 
 originally agricultural. (See Service, §§ 3 et seq. ; Tenure.) 
 
 § 2. Socage was originally of two kinds, free socage and villein socage, Free socage, 
 according as the services were free or base. Thus, where a man held 
 land by fealty and a fixed rent, the tenure was free socage. 5 Free socage 
 was of two kinds, socage in capite and common socage, 6 but the former 
 has been abolished. 7 (See In Capite.) Common free socage is the 
 modern ordinary freehold tenure. (See Freehold, § 4.) It has in theory 
 the incidents of fealty, relief and wardship ; but in practice they rarely 
 occur. (See Incident.) The tenures 'of petty serjeanty, burgage and 
 gavelkind (q. v.) are varieties of free socage. § 3. Villein socage is now Villein socage, 
 represented by tenure in ancient demesne (q. v.). It differed from 
 ordinary villenage in its services being certain. (See Villenage.) 
 
 Etymology.]— Norman-French : socage, from sokeman, a freeman holding land in 
 villenage as part of the ancient demesnes of the crown, with the privilege (Anglo-Saxon, 
 socn) of his services being certain, and of his not being ousted from the land so long as he 
 
 1 Stephen's Crim. Dig. 68 ; Russell on i Steph. Coram, iv. 262 ; Customs Con- 
 Crimes, 338; stat. 5 Geo. 4, c. 113. solidation Act, 1876, ss. 169 et seq.; 
 
 2 A specimen of a slip is given in Fisher Stephen's Crim. Dig. 44. 
 v . Liverpool Marine Insurance Co., L. R., s Litt. § 117. 
 
 9 Q. B. at p. 420. 6 Co. Litt. 77 a. 
 
 3 Cory v. Patton, L. R., 7 Q. B. 304 ; ' Stat. 12 Car. 2, c. 24. 
 9 Q- B - 577 ; Pollock on Contract, 562. 
 
 S. 3 D 
 
77° Solicitor LAW DICTIONARY. Son -Assault Demesne 
 
 performed them; 1 afterwards socage came to mean any tenure with certain services. 2 
 Bracton, Littleton, and other old writers, derive socage from the French soc, a plough- 
 share, because much land was anciently held by the service of ploughing the lord's land 
 for so many days in the year. 3 Some modem writers, on the other hand, incline to the 
 derivation from the Anglo-Saxon soc, or rather stcn, in the sense of "jurisdiction," 
 because tenants in socage were the free suitors of the lord's Courts. 4 
 
 SOLICITOR is a person employed to conduct the prosecution or 
 defence of an action or other legal proceeding on behalf of another, 
 or to advise him on legal questions, or to frame documents intended 
 to have a legal operation, or generally to assist him in matters affecting 
 his legal position. To enable a person to practise as a solicitor, he must 
 serve a term as an articled clerk (g. v.), pass certain examinations (see 
 Examination, § 6), be admitted and enrolled as a solicitor of the Supreme 
 Court of Judicature (see Rolls, § 5), and take out a yearly certificate (granted 
 by the Commissioners of Inland Revenue) authorizing him to practise. 5 
 
 § 2. Solicitors are not only bound to use reasonable diligence and skill 
 in transacting the business of their clients, but they also occupy a fiduciary 
 position towards their clients, so that a dealing (such as a purchase 
 of property) between a solicitor and his client, is always liable to be 
 impugned unless the client was able to protect himself, or had indepen- 
 dent advice. (See Fiduciary ; Fraud, § 8 ; Undue Influence.') On the 
 other hand, a solicitor is entitled to remuneration for his services, which 
 he may recover not only by action (subject to the provisions of the 
 Solicitors Acts, see Taxation, § 8), but also by a lien on the property 
 of his client to the extent of his costs, or by obtaining a declaration of 
 charge on it. (See Charge, § 5; Lien, §4.) § 3. Solicitors are also 
 considered as officers of the Courts in which they practise, and conse- 
 quently the Courts have always exercised summary jurisdiction over them. 
 Thus, if a solicitor is guilty of gross professional misconduct, the Court 
 will order his name to be struck off the roll of practising solicitors ; and if 
 a solicitor institutes frivolous or vexatious proceedings in the name of a 
 client, he may be ordered to pay the costs of them personally. 6 § 4. Soli- 
 citors are subject to special provisions as to the delivery and taxation of 
 their bills of costs against their clients. As to which, see Taxation, § 8. 1 
 
 SOLICITOR-GENERAL is one of the principal counsel of the 
 crown. (See Queen's Counsel!) His functions, however, are political as 
 well as legal, for he is almost invariably a member of the House of 
 Commons, where he acts as the deputy or assistant of the Attorney- 
 General (q.v.). 
 
 SON ASSAULT DEMESNE (= "his own assault") is the name 
 given to that plea or defence by which a person charged with an assault 
 
 1 Britton, 212b compared with 165a; 34 Vict. c. 28; 34 Vict. c. 18 ; 35 & 36 
 Fitz. N. B. 14B; Spelman, Gl. s. v. Soc- Vict. c. 81 ; Solicitors Act, 1875 ; Solici- 
 mannus; Schmid, Ges. gl. s. v. S6cx ; Bl. tors Act, 1877. 
 
 Comm. ii. 80. « Daniell, Ch. Pr. 1713. 
 
 2 Nichols' Britton, ii. 5, note (a). "< Ibid. 1726. As to agreements for 
 
 3 Litt. \ 119; Co. Litt. 86a. future remuneration, see the Attorneys 
 1 Williams on Seisin, 20. and Solicitors Act, 1870, and the Solici- 
 6 Steph. Comm. iii. 215; stats. 6 & 7 tors' Remuneration Act, 1881 ; Ward v. 
 
 Vict. c. 73 ; 23 & 24 Vict. u. 127 ; 33 & Eyre, 15 Ch. D. 130. 
 
Sound LAW DICTIONARY. Specific Performance 771 
 
 justifies himself by saying that the plaintiff or prosecutor assaulted him 
 first, and that the assault complained of was committed in self-defence. 1 
 
 SOUND. — An action which is brought to recover damages is said to 
 " sound in damages," as opposed to an action for debt. 2 
 
 SPECIAL. See Acceptance, § 4 ; Agent, § 6 ; Authority, § 3 ; Bail, 
 § 10; Damage, §§ 3, 4; Defence, § 5; Examiner, § 2; Indorsement, § 3; 
 fudgment, § 13 ; fury, §§ 2, 8 ; Licence, § 4 ; Occupancy, § 4 ; Paper, § 2 ; 
 Plea, § 7 ; Power, § 5 ; Referee ; Resolution ; Verdict ; Writ of Summons. 
 
 SPECIAL ALLOWANCES.— In taxing the costs of an action as 
 between party and party, the master is, in certain cases, empowered to make 
 special allowances, that is, to allow the party costs which the ordinary 
 scale does not warrant. 5 
 
 SPECIAL CASE, in procedure, is a mode of obtaining a judicial 
 decision on a statement of facts submitted to the Court by the parties 
 without the aid of pleadings (q. v.). The parties to an action may, after By consent, 
 the writ of summons has been issued, concur in stating the questions of 
 law arising in the action in the form of a special case for the opinion of 
 the Court.* But independently of the agreement of the parties, if it By order of 
 appears from the pleadings or otherwise in an action that there is a tfte Court - 
 question of law which it would be convenient to have decided before any 
 other proceedings are taken, the Court may direct it to be raised by special 
 case. 5 
 
 As to a verdict subject to a special case, see Verdict. 
 
 A special case is set down for hearing, and argued in Court, after 
 which judgment is given according to the rights of the parties. The 
 Court has power to draw inferences of fact, that is, to assume the 
 existence of facts not expressly stated. 
 
 See Demurrer; Questions of Law. 
 
 SPECIAL SESSIONS is a meeting of two or more justices of the 
 peace held for a special purpose (such as the licensing of ale-houses), 
 either as required by statute, or when specially convoked, and can only be 
 convened after notice to all the other magistrates of the division, to give 
 them an opportunity of attending. (See Petty Sessions ; Quarter Sessions.) 
 
 SPECIFIC PERFORMANCE.— The doctrine of specific perform- 
 ance is that where damages would be an inadequate compensation for the 
 breach of an agreement, the contractor will be compelled to perform 
 
 1 Underhill on Torts, 121 ; Russell on stating special cases without pending 
 Crimes, i. 963. action, under stat. 13 & 14 Vict. c. 35, as 
 
 2 Steph. Coram, iii. 570. to which see Daniell's Ch. Pr. 1701 et seq. 
 
 3 Order in Council as to costs (August, 5 Rules of Court, xxxiv. 2 ; Met. Board 
 1875), schedule. of Works v. New River Co., 1 Q. B. D. 
 
 1 Rules of Court, xxxiv. 1, 7 (Rules of 727 ; 2 Q. B. D. 67. 
 April, 1880), abolishing the practice of 6 Stone's Justice of the Peace, 52, 55. 
 
 3 D 2 
 
77^ 
 
 Specificatio 
 
 LAW DICTIONARY. 
 
 Spoliation 
 
 specifically what he has agreed to do. The principal instances of the 
 jurisdiction occur in contracts for" the sale, purchase or lease of land, or 
 for the recovery of unique chattels, of which the Pusey Horn is a well- 
 known example. 1 In such cases the Court {e.g., the High Court, in an 
 action instituted in the Chancery Division 2 ) will order the defendant to 
 carry out the sale, purchase, or lease, or deliver up the chattel, and will 
 imprison him until he does so. But the Court will not order specific 
 performance of a personal contract, such as a contract to sing, or paint 
 a picture. 3 (See Contract, § u.) 
 See Cairns's Act. 
 
 SPECIFICATIO, in Roman law, was a mode by which one person 
 could acquire property belonging to another by making it into something 
 different ; as where a man made wine out of another's grapes : but the 
 specificator was liable to make compensation to the original owner. 4 
 Specificatio does not exist in our law, although included by Blackstone 
 and others as a variety of accession (q. v., § 2). 
 
 Provisional. SPECIFICATION. — When a person applies for a patent (see Patent 
 
 Right), he must leave with his petition a statement in writing describing 
 the nature of his invention, and called the provisional specification. 
 This is referred to the proper law officer (in England the Attorney- or 
 Solicitor-General), and if he certifies that it describes the nature of the 
 invention, the applicant may use and publish the invention during the 
 next six months without losing his right to obtain letters patent, if on 
 
 Complete. investigation he determines to go on with his application. When the 
 letters patent are granted, the inventor must, within six months from their 
 date, file a complete specification, "particularly describing and ascer- 
 taining the nature of the said invention, and in what manner the same is 
 to be performed," unless he elects to file a complete specification in the 
 first instance, in lieu of a provisional one. 5 Specifications require to be 
 framed with great care, neither covering more than is the proper subject 
 of the patent, nor omitting anything necessary to make the description 
 intelligible. 6 (See Disclaimer, § 2 ; Memorandum of Alteration^) 
 
 SPIRITUAL— SPIRITUALITIES. See Corporation, § 5 ; Guardian 
 of the Spiritualities ; Service, § 2; Temporalities. 
 
 SPOLIATION is a suit in a spiritual Court -by which an incumbent 
 of a benefice suggests that his adversary has wasted {spoliavit) the fruits 
 of the benefice, or received them to his prejudice. Such a suit lies by 
 
 1 Dart, V. & P. 981 ; Snell's Eq. 423 ; 
 Pusey v. Pusey, I Vem. 273 ; "White & 
 Tudor's L. C. i. 735 ; but not for the 
 transfer of ordinary personal property, e. g., 
 South Sea Stock ; Cuddee v. Rutter, 5 Vin. 
 Abr. 538 ; White & Tudor's L. C. i. 709. 
 
 * Judicature Act, 1873, s. 34. 
 
 3 Lumley v. Wagner, 5 De G. & Srn. 
 
 48S. 
 
 1 Just. Inst. ii. 1, 25 ; Hunter's Roman 
 Law, 134. 
 
 6 Patent Law Am. Act, 1852, ss. 6 et 
 seq., 27 et seq. ; Stoner v. Todd, 4 Ch. 
 D. 58. 
 
 Williams, P. P. 283; Stephen's Comm. 
 ii. 30. 
 
Sporting law dictionary. Stamps 773 
 
 one incumbent against another to try which of them is the rightful 
 incumbent where they both claim by one patron, and where the right of 
 patronage does not come in question : e.g., where a patron, erroneously 
 believing his clerk to be dead, presents another ; there the first incum- 
 bent may have a spoliation against the other. 1 
 
 SPORTING.— § 1. As to the right of sporting, that is, of killing and 
 taking game, on a man's own land, see Game. The right of sporting on 
 another man's land is a profit a prender, and, therefore, an incorporeal 
 hereditament; 2 it can only be conveyed by deed of grant. 3 It is generally 
 an exclusive or several right, that is, excluding the owner of the land from 
 its exercise; but it may be a right of common. (See Common, §§ 1, 16.) 
 
 § 2. The Rating Act, 1874, makes the right of sporting, when severed 
 from the occupation of the land, a rateable hereditament. 4 (See Rale.) 
 
 See Chase ; Forest ; Park ; Warren. 
 
 SPRINGING USE. See Use. 
 
 STAGE-RIGHT is a word which it has been attempted to introduce 
 as a substitute for " the right of representation and performance " (q. v.), 
 but it can hardly be said to be an accepted term of English law. 6 
 
 STAKEHOLDER primarily means a person with whom money is 
 deposited pending the decision of a bet or wager (q. v.) ; but it is more 
 often used to mean a person \vho_holds money or property which is claimed 
 by rival claimants, but in which he himself claims no interest. (See Inter- 
 pleader.) 
 
 STALLAGE is a payment due to the owner of a market in respect of 
 the exclusive occupation of a portion of the soil within the market. 6 (See 
 Market.) 
 
 STAMPS. — § 1. Stamps are used for two purposes ; first, as a conve- 
 nient mode of collecting fees payable in Courts of justice (<?. g., on filing 
 documents, issuing writs and summonses, &c.) ; and secondly, as a mode 
 of raising taxes on written instruments, such as receipts, conveyances, 
 leases, &c, by virtue of various enactments known as the Stamp Acts. 7 
 (See Commissioners of Inland Revenue.) § 2. Stamps of the latter kind are Fixed and 
 either fixed in amount, or ad valorem, that is, proportionate to the value s t ^ al ° rem 
 of the property dealt with by the instrument. Thus, the stamp on every 
 receipt, cheque, and power of attorney, is fixed ; while the stamps on bills 
 
 1 Phillimore, Eccl. Law, 515. Mold, 6 Q. B. D. 13. 
 
 2 Williams on Commons, 18. As to the 5 Coryton on Stage-Right; Reade v. 
 reservation of rights of sporting under the Conquest, 11 C. B. (N. S.), p. 485. 
 Inclosure Acts, see ibid, zap ; Musgrave 6 Shelford, R. P. Stat. 35 ; Mayor of 
 v. Forster, L. R., 6 Q. B. 590. Penrvn v. Best, 3 Ex. D. 292. 
 
 3 Williams on Seisin, 122. Such a 7 The existing acts are those of 1870 
 grant does not prevent the owner of the and 1871, varied by stat. 39 Vict. c. 6, and 
 land from cutting down trees, &c. Gearns 44 Vict. c. 12. For a history of the whole 
 v. Baker, 10 Ch. App. 355. subject see Dowell, Stamp Duties ; Steph. 
 
 4 Sect. 3; and see Eyton v. Overseers of Comm. ii. 571. 
 
774 
 
 Stamps 
 
 LAW DICTIONARY. 
 
 Stamps 
 
 Progressive 
 
 duty. 
 
 Adhesive 
 
 stamps. 
 
 Impressed 
 
 stamps. 
 
 Spoiled 
 stamps. 
 
 Appropriated 
 stamps. 
 
 Adjudication 
 stamp. 
 
 Denoting 
 stamp. 
 
 Unstamped 
 instruments. 
 
 of exchange, conveyances, leases, &c, vary with the amount of money or 
 value of property which they deal with. Formerly deeds were liable to a 
 progressive stamp of a fixed sum for every skin of parchment beyond the 
 first, but this no longer exists. § 3. Adhesive stamps are sold separately, 
 and are affixed and cancelled by the person whose duty it is to have the 
 instrument stamped. Others are impressed with a die on the parchment 
 or paper on which the instrument is written. § 4. Provision is made 
 by the Stamp Acts for the allowance (or repayment of the amount) of a 
 stamp which has been " spoiled," that is, where, by some accident or 
 mistake, the stamp itself has been rendered unfit for use, or the instru- 
 ment on which it has been affixed or impressed has become useless before 
 it came into operation ; and in certain other cases. 1 § 5. Appropriated 
 stamps are stamps which can only be used for instruments of a particular 
 description, e. g., bills of lading. 8 § 6. An adjudication stamp is used to 
 signify that the instrument has been submitted to the Commissioners of 
 Inland Revenue, and that they are of opinion (if it is unstamped) that it 
 is not chargeable with duty, or (if it is stamped) that it is duly stamped ; 
 and no question as to the proper stamp can then arise. 3 § 7. Where the 
 stamp duty on an instrument depends upon the stamp on another instru- 
 ment, the fact that the latter stamp duty, has been paid may be evidenced 
 by a stamp impressed for that purpose on the first instrument. This is 
 called a denoting stamp. 4 § 8. No instrument executed in the United 
 Kingdom, or relating to any property situate, or to anything done or to 
 be done^ in the United Kingdom, can be given in evidence or made use 
 of, unless duly stamped. 5 In the case of the following documents — bills 
 of exchange, promissory notes, cheques and other drafts, bills of lading 
 and proxies — they cannot be stamped after execution ; and charterparties, 
 attested copies, receipts, and policies of marine insurance, can only be 
 stamped after execution within a limited time, or on payment of a special 
 penalty. In the case of all other documents, the stamp may be affixed at 
 any time after execution on payment of the unpaid duty, a penalty of 10L, 
 and interest on the duty at five per cent, per annum, so that the interest 
 does not exceed the amount of the duty. But any instrument executed 
 out of the United Kingdom may be stamped within two months from its 
 arrival in this country, without payment of any penalty. The Commis- 
 sioners are also empowered to stamp any instrument, without payment of 
 a penalty, within twelve months after its execution. Under this provision, 
 the practice of the Commissioners is to stamp simple agreements, &c. 
 within a fortnight, and deeds and instruments bearing an ad valorem duty 
 within two months after execution, without penalty, as a matter of course. 
 § 9. Where a document unstamped or insufficiently stamped is produced 
 in a judicial proceeding, it may be received in evidence on payment to 
 the officer of the Court of the unpaid duty, the penalty, and a further sum 
 of i/. 7 
 
 1 Stamp Duties Management Act, 1870, 
 5 . 14. 
 
 2 Stamp Act, 1870, s. 9. For a list of 
 such stamps, see Dowell, 344. 
 
 3 Stamp Act, 1870, s. 18. 
 
 4 Ibid. s. 14. 
 6 Ibid. s. 17. 
 
 6 Stats. 30 Vict. 
 44 Vict. c. 12, s. 44 
 
 7 Stamp Act, 1870, ss. 15, 16. 
 
 23 ; 39 Vict. c. 6 ; 
 
Standing Orders law dictionary. State 775 
 
 STANDING ORDERS are rules and forms regulating the procedure 
 of the two Houses of Parliament, each having its own. They are of equal 
 force in every parliament, except so far as they are altered or suspended 
 from time to time. 1 
 
 STANNARIES are a district which includes all parts of Devon and 
 Cornwall where some tin work is situate and in actual operation. The 
 tin-miners of the stannaries have certain peculiar customs and privileges, 
 some of which are referred to under the head of Tin-bounding. Civil 
 actions in respect of matters arising within the stannaries may be brought 
 in the Stannary Court, which is a court of record held before a judge 
 called the Vice-Warden of the Stannaries : it also has power to wind up 
 cost-book mining companies. 2 Formerly an appeal lay to the Lord 
 Warden of the Stannaries, and from him to the Privy Council, but this 
 jurisdiction has been transferred to the Court of Appeal. 3 
 
 The Stannaries Act, 1869, contains provisions relating to the regulation 
 of mining partnerships working mines in the stannaries. The procedure 
 of the Court is regulated by various statutes from 4 & 5 Will. 4, c. 42, to 
 18 & 19 Vict. c. 32, and by the General Orders of 1876. 4 
 
 STAR-CHAMBER was a Court which originally had jurisdiction 
 " in cases where the ordinary course of justice was so much obstructed by 
 one party, through writs, combination of maintenance or overawing 
 influence, that no inferior Court would find its process obeyed." 5 The 
 Court consisted of the privy council, the common law judges and (it 
 seems) all peers of parliament. In the reigns of Henry VIII. and his 
 successors the jurisdiction of the Court was illegally extended to such a 
 degree (especially in punishing disobedience to the king's arbitrary 
 proclamations) that it became odious to the nation, and was abolished by 
 stat. 16 Car. 1, c. io. 6 
 
 STATE. — I. § 1. A state is a collection of persons occupying a cer- 
 tain territory, and having a legislative and executive organization free 
 from the control of any other human power. The name "state" is 
 sometimes given to bodies which are really only parts of a state, such as 
 the separate organizations which collectively make up the United States 
 of America, or to governments, such as those of Monaco, San Marino and 
 Andorra, which are under the protection or control of other states ; hence 
 a " state," in the ordinary and proper sense of the word, is described as 
 an independent or sovereign state. 7 
 
 § 2. Every state consists of two parts, the sovereign part (which in 
 England is the crown and houses of parliament) and the subject part. 
 
 1 Homersham Cox, Eng. Gov. 136 ; 4 Procedure in the Court of the Vice- 
 May, Pari. Pr. 185. Warden of the Stannaries. 
 
 2 Bainbridge on Mines, 571 ; Steph. 6 Hallam, Const. Hist. i. 51. 
 Comm. iii. 298. ° Hid. ii. 97 ; Steph. Comm. iv. 310. 
 
 3 Judicature Act, 1873, »• l8 - 7 As to the criteria of a state, see 
 
 Fisher's Digest, ii. 4093 <??«■£. 
 
776 State LAW dictionary. State of Facts 
 
 In its external relations or dealings with other states the sovereign part, 
 or a branch of it (in England the crown), represents the state. The 
 relations between independent states are governed by what is called 
 international law (q. v.). In its internal relations, that part of the 
 sovereign government of a state which is entrusted with the executive 
 power enforces the law dealing with the relations between it and the 
 subject members of the state. It is, therefore, considered as representing 
 " State" = the whole state, and hence the term "state" is frequently used in the 
 power." sense of " executive power in a state," as when we say that public law 
 
 deals (among other things) with the relations between the state and the 
 private members of the community. (See Law, § 6.) As the state has 
 the power of enforcing the law, it cannot be subject to legal duties, for 
 otherwise it would have to enforce the law against itself. 1 (See Act of 
 State ; Petition of Right.) 
 Claims against § 3. It has been already mentioned that the relations between inde- 
 oreign states. p enc ] ent states are governed by international law, the nature of which is 
 explained under that title. As one state cannot enforce a claim against 
 another by legal procedure, it follows that no member of any state can 
 enforce a claim against another state by legal proceedings in any Court 
 of justice external to the latter state. Therefore, if a foreign state borrows 
 money from an English subject, or commits what in the case of a private 
 individual would be a tort against an English subject, no proceedings 
 can be taken in the English Courts to enforce the claim thus arising, even 
 although the foreign state may have property within the jurisdiction of 
 the English Courts. 2 This rule is subject to two apparent exceptions : 
 (1) that if proceedings are taken by A. against B. in the English Courts 
 in respect of property in which a foreign state claims or is believed to 
 have an interest, it may be made a party to those proceedings as defen- 
 dant to enable it to come forward and sustain its claim ; here, however, 
 it is obvious that the foreign state, though in form a defendant, is really 
 ■a plaintiff: (2) that if a foreign state takes proceedings in an English 
 Court against a private individual, the defendant can institute a cross- 
 action or set up a set-off or counter-claim against the plaintiff as if the 
 foreign state were a private person. 3 
 '«'«« t a , , f".» = II " §4- "State" in the old books sometimes stands for "estate." 4 
 
 estate.' 1 
 
 STATE OF FACTS AND PROPOSAL.— In lunacy practice, 
 when a person has been found a lunatic, the next step is to submit to the 
 master a scheme, called a " State of Facts and Proposal," showing what 
 is the position in life, property and income of the lunatic, who are his 
 next of kin and heir-at-law, who are proposed as his committees, and 
 what annual sum is proposed to be allowed for his maintenance, &c. 
 From the state of facts and the evidence adduced in support of it, the 
 
 '.As to the subject of states generally, Twycross v. Dreyfus, e Ch. D. 60?. 
 see Austin s and Holland's works on Juris- 3 Vavasseur y.Krupp, 9 Ch. D. «i ; 
 
 prudence, passim. United States of ^f4/ v . WagnerX- 
 
 Vnl > Parlem ' n * f a S*> 5 P- D. 197 ; R., 3 Eq. 724, and the cases therein cited. 
 Vavasseur v. Krupp, 9 Ch. D. 351 ; * Co. LittT 206 b. 
 
Stated Account law DICTIONARY. Statement of Defence 777 
 
 Master frames his report. 1 (See Report, §2.) A similar practice formerly 
 prevailed in Chancery. 
 
 STATED ACCOUNT. See Account, § 2. 
 STATEMENT. See Answer, § 5 ; Bill of Complaint, § 1. 
 
 STATEMENT OF AFFAIRS.— In bankruptcy practice, a bankrupt 
 or debtor who has presented a petition for liquidation or composition 
 must produce at the first meeting of creditors a statement of his affairs, 
 giving a list of his creditors, secured and unsecured, with the value of the 
 securities, a list of bills discounted, and a statement of his property. 2 
 
 Making a material omission in a statement of affairs is a misdemeanor, 
 punishable with imprisonment for two years. 3 
 
 STATEMENT OF CLAIM is a written or printed statement by the 
 plaintiff in an action in the High Court, showing the facts on which he 
 relies to support his claim against the defendant, and the relief which he 
 claims. It is delivered to the defendant or his solicitor. The delivery 
 of the statement of claim is usually the next step after appearance (q. v.), 
 and is the commencement of the pleadings {q. v.). 
 
 The next step in the action is the statement of defence (q. v.). 
 
 § 2. If the writ is specially endorsed, the plaintiff may, in lieu of Notice in 
 
 delivering a statement of claim, deliver a notice to the effect that his lleu ° f ? ta , te .' 
 
 ' ment of claim. 
 
 claim is that which appears by the indorsement; but he may be ordered 
 
 to deliver a further statement. 4 If the defendant in appearing states that 
 
 he does not require the delivery of a statement of claim, the plaintiff 
 
 need not deliver one, but he may if he likes, at his own risk as to 
 
 costs. 5 A statement of claim also becomes unnecessary if the parties 
 
 agree to a special case (q. v.), or if the plaintiff obtains judgment under 
 
 Order XIV. (Seefudgment,§g.) 
 
 § 3. If the defendant does not enter an appearance, and the action is 
 
 one in which the plaintiff cannot sign judgment for default of appearance 
 
 (as where it is an action for an account, redemption or the like), the 
 
 plaintiff must file the statement of claim with the proper officer of the 
 
 Court and set down the action on motion for judgment. (See Action ; 
 
 foinder, § 1; Relief; Writ of Summons?) 
 
 STATEMENT OF DEFENCE.— § 1. In the practice of the High 
 Court, where the defendant in an action does not demur to the whole of 
 the plaintiffs claim, he delivers a pleading called a statement of defence. 
 The statement of defence deals with the allegations contained in the 
 statement of claim (or the indorsement on the writ if there is no state- 
 ment of claim), admitting or denying them, and, if necessary, stating 
 fresh facts in explanation or avoidance of those alleged by the plaintiff. 
 
 1 Elmer, Lunacy Pr. 22; Pope on '' Debtors Act, 1869, s. u. 
 Lunacy, 79. J Rules of Court, xxi. 4. 
 
 2 Bank. Act, 1869, s. 19; Rules of 6 Ibid. xix. 2; xxi. 1. 
 
 1870, rr. 91, 92, 274, form 39. 6 Ibid. xiii. 9 ; xix. 6 ; xxix. 10. 
 
778 
 
 Statement of Particulars LAW dictionary. 
 
 Statute 
 
 Defence and § 2. If the defendant wishes to set up a counter-claim (q. v.), he adds it to 
 counter-claim. nis defence, 1 and the pleading is then called a statement of defence and 
 Defence and counter-claim. If he desires to demur to part of the statement of claim, 
 
 ' " and put in a defence as to the rest, he combines the defence and 
 
 demurrer in one pleading. 3 (See Pleading.) 
 
 STATEMENT OF PARTICULARS.— When the plaintiff in an 
 action claims a debt or liquidated demand, but has not indorsed the 
 writ specially (i. <?., indorsed on it the particulars of his claim under 
 Order III. r. 6), and the defendant fails to appear, the plaintiff may file 
 a statement of the particulars of his claim, and after eight days enter 
 judgment for the amount, as if the writ had been specially indorsed. 3 
 (See Writ of Summons.') 
 
 STATUS. — § i. The status of a person is his legal position or 
 condition ; thus, when we say that the status of a woman after a decree 
 nisi for the dissolution of her marriage with her husband has been made, 
 but before it has been made absolute, is that of a married woman, we 
 mean that she has the same legal rights, liabilities, and disabilities as an 
 ordinary married woman. 4 The term is chiefly applied to persons under 
 disability (q. v.), or persons who have some peculiar condition which 
 prevents the general law from applying to them in the same way as it 
 does to ordinary persons. 
 
 § 2. The question of status is of importance in jurisprudence, because 
 it is generally treated as a basis for the classification of law, according as 
 it applies to ordinary persons (general law, normal law, law of things), or 
 to persons having a status, that is, a disability or peculiar legal condition, 
 such as infants, married women, lunatics, convicts, bankrupts, aliens, 
 public officers, &c. (particular law, abnormal law, law of persons). 5 
 
 § 3. " Status " is sometimes applied by analogy to things, as where we 
 speak of a house having acquired the status of an ancient building. 6 
 
 See Ancient Messuage. 
 
 STATUTABLE or STATUTORY is that which is introduced or 
 governed by statute law, as opposed to the common law or equity. 
 Thus, a Court is said to have statutory jurisdiction when jurisdiction is 
 given to it in certain matters by act of parliament. (See Petition, § 4.) 
 For other examples, see Conveyance, §§ 5, 8 ; Declaration, § 6 ; Mortgage, 
 § 17; 
 
 STATUTE. — I. § 1. A statute is technically the same thing as an 
 
 act of parliament {q. v.), though in practice the term is usually confined 
 
 to public acts. 7 In this sense statutes are of the following kinds : 
 
 Declaratory; § 2 . A statute is said to be declaratory, when it does not profess to 
 
 make any alteration in the existing law, but merely to declare or explain 
 
 6 See Holland's Jurisp. 83 et seq., where 
 the opinions of other writers are referred to 
 and critized. See also Kuntze,-Excurse, 369. 
 
 6 Angus v. Dalton, 3 Q. B. D. at p. 100. 
 
 7 H. Cox, Instit. 19. 
 
 1 Rules of Court, xix. 2, 3 ; xxii. 
 
 2 Ibid, xxviii. 4. 
 
 3 Ibid. xiii. 5. 
 
 4 Norman v. Villars, 2 Exch. D. 359. 
 
Statute LAW DICTIONARY. Statute Merchant 779 
 
 what it-is ; remedial, when it alters the common law; 1 amending, when it remedial; 
 alters the statute law ; consolidating, when it consolidates or throws amending ; 
 together, into one statute, several previous statutes relating to the same consolidating ; 
 subject-matter, with or without alterations of substance ; 2 disabling or disabling ; 
 restraining, when it restrains the alienation of property, and enabling, when enabling; 
 it removes a restriction or disability ; 3 penal, when it imposes a penalty or penal. 
 forfeiture, 4 as in the case of the statutes relating to game, smuggling, the 
 profanation of the Lord's day, &c. (See Action, § 8 ; Informer; Penalty ; 
 Sunday.) 
 
 § 3. Collections of the public general statutes, called the Statutes at Statutes at 
 Large, have been published by various editors, the most well known being Lar § e - 
 that by Ruffhead. An edition of the statutes from Magna Charta to the Statutes of 
 end of Queen Anne's reign has been printed by the Record Commis- the Realm - 
 sioners from the original records, under the title of the Statutes of the 
 Realm ; and an edition of the statutes, prepared by the Statute Law Statutes Re- 
 Committee, with all repealed acts and parts of acts omitted, has been Vlsed> 
 published by government under the title of the Statutes Revised, as a pre- 
 paration towards an authoritative consolidation of the whole statute law. 
 
 As to statute law, see Law, § 4. 
 
 The principal works on statutes and their interpretation are : Coke's 
 Second Inst. ; Barrington on the Statutes ; Dwarris on Statutes ; Max- 
 well on the Interpretation of Statutes ; and Hardcastle on Statutory Law. 
 
 II. § 4. " Statute," also, sometimes means a kind of bond or obligation 
 of record, being an abbreviation for " statute-merchant " or " statute- 
 staple " (q. v.). 
 
 STATUTE MERCHANT— STATUTE STAPLE.— A statute merchant is a 
 bond acknowledged before the chief magistrate of some trading town pursuant to the 
 statute De mercatoribus, 13 Edw. 1 (whence the name). A statute staple is a bond ac- 
 knowledged pursuant to 27 Edw. 3, c. 9, before the mayor of the staple, that is to say, the 
 grand mart for the principal commodities or manufactures of the kingdom, formerly held 
 by act of parliament in certain trading towns. They were both originally intended to 
 encourage trade by providing a speedy remedy for recovering debts. Every statute is 
 required by the act to be sealed with the seal of the debtor and of the king, and en- 
 roled. It is therefore a bond of record (see Record ; Rolls), and the addition of the 
 king's seal made it of so high a nature that on failure of payment by the debtor at the 
 day assigned, execution might be awarded without any preliminary proceedings, whereby 
 not only the body of the debtor might be imprisoned and his goods seized in satisfaction 
 of the debt, but also his lands might be delivered to the creditor till out of the rents and 
 profits the debt was satisfied ; during that time the creditor was called tenant by statute 
 merchant or statute staple, and had a chattel interest in the lands. 5 (See Estate, § 5.) 
 Statutes merchant and statutes staple formerly charged the land of the debtor ; but this 
 privilege has been abolished. 6 (See Judgment, § 16.) It seems that statutes merchant 
 and staple are still payable, on the death of the debtor, in priority to his ordinary debts. 
 (See Administration, § 2 and note (3) ). Statutes merchant and statutes staple are, 
 however, now quite obsolete. 7 (See Recognizance.) 
 
 1 Bl. Comm. i. 86. Steph. Comm. ii. 734 et seq. ; Phill. Eccl. 
 
 ' For an instance, seethe Settled Estates Law, 1645 ; Woodfall, L. & T. 20. 
 
 Act, 1877. 4 Bl. Comm. iii. 161. 
 
 3 These terms are especially applied to 5 See Bl. Comm. ii. 160 ; Wms, Saund. 
 
 the statutes relating to leases by bishops, ii. 216; Shepp. Touch. 353. 
 
 -colleges, vicars, tenants in tail, &c. Co. 6 Stat. 27 & 28 Vict. c. 112. 
 
 Litt. 44 a; Bl. Comm. ii. 318 et seq.; ( ' Williams, P. P. 130; R. P. 90. 
 
780 Statute of Frauds law dictionary. Statute of Frauds 
 
 STATUTE OF FRAUDS is the stat. 29 Car. 2, c. 3, passed " for 
 Leases. the prevention of frauds and perjuries." With this object it enacts (sects. 
 
 1 and 2) that leases of lands, tenements or hereditaments (except leases 
 not exceeding three years, reserving a rent of at least two-thirds the 
 value of the land) shall have the force of leases at will only, unless they 
 Assignments are put in writing and signed by the parties or their agents. Sect. 3 
 of leases, Sec. re q U j res assignments and surrenders of leases and interests in land (not 
 Sect. 4. being copyholds, &c.) to be in writing. Sect. 4 enacts that no action 
 
 shall be brought upon any special promise by an executor or adminis- 
 trator to answer damages out of his own estate, or upon a guarantee, or 
 upon an agreement made in consideration of marriage, or upon any 
 contract or sale of lands, &c., or any interest in or concerning them, or 
 upon any agreement that is not to be performed within a year, unless the 
 agreement is in writing and signed by the party to be charged, or his 
 agent. Sects. 5 and 6, and 19 to 23, as to wills, &c. are no longer in 
 Trusts. force (see Will). Sects. 7 and 9 require declarations or creations of trusts 
 
 of lands, &c. and all assignments of trusts, to be in writing, signed by the 
 party. Sect. 8 exempts trusts arising by implication of law. Sects. 10 
 and 1 1 made the lands of a cestui que trust liable to his judgments and 
 Estates pur obligations. Sect. 12 enacts that estates pur auter vie shall be devisable 
 and liable to the owner's debts, and if not otherwise disposed of shall 
 Execution go to his personal representatives. Sect. 16 enacts that no writ of 
 agains goo s. execU j-j on against goods shall bind the property therein until the writ is 
 Salesof goods, delivered to the sheriff to be executed. Sect. 17 enacts that no contract 
 for the sale of any goods, wares and merchandizes for the price of 10/. or 
 upwards shall be good unless the buyer accept and receive part of the 
 goods so sold, or give something in earnest or part payment, or unless 
 some note or memorandum of the contract be made and signed by the 
 parties to be charged, or their agents. The remaining sections are un- 
 important. 
 Subsequent Sects, i, 2 and 3 must be read in connection with stat. 8 & 9 Vict. 
 
 legislation. , , . , , „ , . , . . , 
 
 c. 106, which enacts that all leases- required to be in writing, and all 
 
 assignments of chattel interests in land (not being copyhold, &c), must be 
 made by deed. Sect. 4 must be read in connection with stat. 19 & 20 
 Vict. c. 97, which makes it unnecessary that the consideration for a 
 guarantee should appear in writing. Sect. 1 2 was supplemented by stat. 
 14 Geo. 2, c. 20, s. 9, and superseded by sects. 3 and 6 of the Wills Act, 
 1837 (see Occupancy, § 3). The 16th section has been modified by stat. 
 19 & 20 Vict. c. 97, so as to protect bona fide purchasers of goods not 
 actually seized under an execution. The 17th sect, has been sup- 
 plemented by Lord Tenterden's Act (9 Geo. 4, c. 14), which declares 
 that its provisions shall extend to all contracts for the sale of goods of 
 the value of 10/. and upwards, notwithstanding the goods are to be 
 delivered, or made, procured and delivered, at a future time. 1 Part of 
 sect. 10, and sect. 18 (17 in the Revised Statutes) have been repealed by 
 the Statute Law Revision Act, 1881. 
 
 1 As to the statute generally, see Agnew sections relating to contracts, see Smith on 
 on the Statute of Frauds. As to the Contracts and Chitty on CovXx&cts, passim. 
 
Statute of Uses law dictionary. Stet Processus 781 
 
 STATUTE OF USES. See Use. 
 
 STATUTES OF DISTRIBUTION. See Advancement, § 3 ; Dis- 
 tribution; Next of Kin, § 2. 
 
 STATUTES OF LIMITATION. See Limitation of Actions. 
 
 STAY. — § 1. A stay of proceedings in an action is a suspension of 
 them: thus, if the plaintiff is ordered to do something and fails to do it, 
 the proceedings may be ordered to be stayed until he complies with the 
 order. 1 So the Court may order execution to be stayed until an appeal Stayofexe- 
 is decided. 2 A stay of proceedings is sometimes produced ipso facto, cutlon - 
 without an express order to that effect, as where a party obtains a rule nisi 
 for a new trial. 3 
 
 § 2. "Stay of proceedings" also sometimes means a total discon- Permanent 
 
 tinuance of the action : thus, if an action in the Queen's Bench is sta y of ,. 
 
 proceedings, 
 compromised, an order staying the proceedings is generally obtained. 
 
 In the Chancery Division the term is also so used, but in strictness it is 
 
 only accurate when a decree or judgment has been given, for in such a 
 
 case the suit or action cannot be dismissed, because the Court has 
 
 adjudicated on it, and therefore all that can be done is to stay proceedings 
 
 under the decree or judgment. Before decree or judgment the proper 
 
 way of disposing of an action is either by discontinuance (q. v.), or by an 
 
 order dismissing the action. 
 
 STEALING. See Larceny ; Embezzlement; Robbery. 
 
 STET BILLA— If the plaintiff in a plaint in the Mayor's Court of 
 London has attached property belonging to the defendant and obtained 
 execution against the garnishee, the defendant, if he wishes to contest the 
 plaintiffs claim, and obtain restoration of his property, must issue a scire 
 facias ad disprobandum debitum(see Scire Facias, § 13); if the only question 
 to be tried is the plaintiff's debt, the plaintiff in appearing to the scire 
 facias prays stet billa, " that his bill original," i. e., his original plaint, 
 " may stand, and that the defendant may plead thereto ;" the action then 
 proceeds in the usual way as if the proceedings in attachment (which 
 are founded on a fictitious default of the defendant in appearing to the 
 plaint) had not taken place. 5 (See Foreign Attachment^) 
 
 STET PROCESSUS, in the practice of the old common law 
 Courts, was an entry on the record in an action whereby it was ordered, 
 with the consent of the parties, that all further proceedings in the action 
 be stayed. It could only be made with the consent of both parties, and 
 
 1 Rules of Court, vii. 4 See Archbold's Pr. I ioo et seq. 
 
 2 Ibid. Iviii. 16. 6 Brandon, For. Attach. 115 and forms. 
 
 3 Ibid, xxxix. 5. 
 
782 
 
 Steward 
 
 LAW DICTIONARY. 
 
 Stmt 
 
 apparently could only be entered as to the whole record. 1 As there is 
 now, under the new practice, no record in an action, it is difficult to see 
 how a stet processus can be entered, though it is believed that orders to 
 that effect have been made since the Judicature Acts ; they would, no 
 doubt, take effect as an ordinary stay of proceedings. 
 
 STEWARD was formerly used to denote an officer of the crown, or 
 of a feudal lord, who acted as keeper of a Court of justice ; 2 as, for 
 example, the Lord High Steward (q. v.). At the present day the only 
 important example of the office occurs in the case of manors, for every 
 manor has a steward, appointed by the lord, who theoretically acts as 
 judge of the Customary Court Baron and the Court Leet, and as 
 registrar of the freeholders' Court Baron. Practically, however, his 
 duties are rather ministerial than judicial, for his chief function is to 
 receive surrenders and grant admittances. to the copyhold lands of the 
 manor, and keep the Court roll. 3 (See Copyhold; Court Baron; Court 
 Leet; Manor.') 
 
 STIFLING A PROSECUTION is agreeing, in consideration of 
 receiving a pecuniary or other advantage, to abstain from prosecuting a 
 person for an offence not giving rise to a civil remedy, e. g., perjury. As 
 a general rule such an agreement invalidates any transaction of which it 
 forms part. 4 (See Compound, § 3 ; Misprision, §§ 2, 3.) 
 
 Stinted com- 
 mon. 
 
 Stinted 
 pasture. 
 
 STINT. — I. § 1. A stint is a limit, and therefore a stinted right of 
 common of pasture is one where the number of beasts allowed to be put 
 on the common by each commoner is limited, as opposed to common 
 sans nombre. (See Sans Nombre.) A right of pasture may also be 
 stinted in respect of time. 5 (See View and Delivery .) 
 
 II. § 2. Stint is also used in a special sense to denote the right of 
 pasture of one of several persons who are tenants in common of land 
 which they use as a common pasture ground for their cattle. Stinted 
 pastures are grazing lands in moors, downs and wastes, which produce no 
 crop, and which are open to each person who has a share in the pasture 
 for a stinted or limited number of cattle. They are usually closed at 
 certain seasons of the year for the better growth of the pasture, but are 
 never held in severalty. The right of each joint owner of the herbage is 
 known as a stint or cattle-gate. 6 
 
 § 3. A stint is not a common, but a corporeal hereditament, and may 
 be held for either freehold or customary estates. 7 (See Common ; Here- 
 ditament, § 2.) 
 
 § 4. Sometimes the lord of a manor has a " stint " or limited right of 
 pasture on the waste, during a certain part of the year. 8 (See Sheepwalk.) 
 
 1 Archbold's Pr. (3rd edit.), 413 ; Quar- 
 rington -v. Arthur, 11 M. & W. 491. 
 
 2 Co. Litt. 61 a ; Co. Copyh. $ 45. 
 
 3 Elton, Copyh. 254. 
 
 4 ICeir v. Leeman, 6 Q. B. 308; Wallace 
 v. Hardacre, I Camp. 45 ; Williams v. 
 
 Bayley, L. R., 1 H. L. 200. 
 6 Wool. Comm. 25. 
 
 6 Elton, Comm. 33 — 35. 
 
 7 Ibid. 35. 
 
 8 Ibid. 40. 
 
Stirpes law dictionary. Stoppage m Transitu 783 
 
 STI RPES . See Per Stirpes. 
 
 STOCK. — I. § 1. " Stock" primarily means a common fund belong- 
 ing to a partnership or trading company, and used to enable it to carry 
 on its business. 1 (See Fund.) Thus what is now generally called the 
 capital of a company was formerly called its "joint-stock," meaning the 
 common or joint fund contributed by the members. (See Joint Stock 
 Company.) The capital of a company is generally divided into shares > 
 (q. v.), so that "shares" and "stock" are in one sense the same thing: 2 
 at the present day, however, " stock " is generally used in its secondary 
 sense (infra, § 2) as opposed to " shares." 
 
 II. §2. In its secondary sense, "stock" signifies a fund or capital 
 which is capable of being divided into and held in any irregular amount. 
 Thus, the ordinary government funds (Consols, New Threes, &c.) are 
 called stocks, because a person can buy them in any amount (such as 
 99/. 19^. nd. as well as 100/.). A share or debenture, on the other hand, 
 is of a fixed amount (such as 10/., 50/., 100/.), and is incapable of sub- 
 division or consolidation. Many companies, however, have the power of 
 converting paid-up shares into stock, 3 and of converting debentures into 
 debenture stock. (See Debenture Stock.) 
 
 STOCK EXCHANGE.— The London Stock Exchange is a private 
 society, and its rules are therefore only binding on its members and per- 
 sons dealing with them subject to those rules. 4 
 
 As to the legality of " time bargains " and " differences," see Wager. 
 
 STOLEN GOODS. See Possession, § 4 ; Receiving Stolen Goods. 
 
 STOP ORDER. — In chancery practice, when a fund (in cash, stock 
 or other securities) is in- Court in a cause or proceeding, ' any person 
 claiming an interest in it may apply to the Court for an order to prevent 
 it from being paid out or otherwise dealt with, without notice to the 
 applicant. The application is generally made by summons, and (if 
 opposed) must be supported by an affidavit showing the applicant's 
 interest in the fund. Stop orders differ from restraining orders and 
 distringas notices (q. v.) in being applicable only to funds in Court. 
 Stop orders are also applicable to documents deposited with an officer of 
 the Court. 5 (See Payment into Court.) 
 
 STOPPAGE IN TRANSITU is the right which an unpaid vendor 
 has to resume the possession of goods sold upon credit, where the 
 vendee has become bankrupt or insolvent before they come into his 
 
 1 See a form of partnership deed in the 4 Ex parte Saffery, 4 Ch. 555 ; 3 App. 
 Compleat Clerk, 845. Ca. 213. See Melsheimer and Lawrence 
 
 2 See Morrice v. Aylmer, L. R., 7 H. L. on the Stock Exchange. 
 
 ?I7 . 5 Daniell, Ch. Pr. 1543 ; Fisher on 
 
 3 Companies Act, 1862, s. 12; Com- Mortgage, 117. 
 panies Clauses Act, 1845, s. 61. 
 
784 Story law dictionary. Stranger 
 
 possession. Thus if A. orders goods of B., and B. despatches them by 
 carrier to A.'s address, but before they have been actually delivered he 
 hears that A. has stopped payment, then B. is allowed to countermand 
 delivery before or at the place of destination, and to resume the possession 
 of the goods, according to that equitable principle in the law of contract, 
 by which one party may withhold performance, on the other becoming 
 unable to fulfil his part of the contract. But it is not an unlimited 
 right; for the vendor cannot exercise it if he has parted with documents 
 sufficient to transfer the property, and the vendee, upon the strength of 
 them, has sold the goods to a bona fide purchaser without notice. 1 The 
 vendor's right ceases as soon as the transitus is determined, whether by 
 the goods arriving at their destination, or by being delivered to a person 
 on behalf of the vendee, or by the carrier agreeing, between himself and 
 the vendee, to hold the goods for him, not as carrier, but as his agent.' 
 
 § 2. There is also a so-called right of stoppage in transitu in cases 
 where there is no transit, as where goods are sold whilst in the possession 
 of a warehouseman, and some act remains to be done for the completion 
 of the sale. 3 (See Delivery Order; Dock Warrant.") 
 
 STORY. — Joseph Story was born in 1779 at Marblehead near Boston, 
 in the United States of America, became member of Congress in 1809, 
 judge of the Supreme Court in 181 1, professor at Harvard in 1829, and 
 died 10 September, 1845. His principal works are: Equity Jurisprudence ; 
 Law of Bailments; Agency; Bills of Exchange; Promissory Notes ; Part- 
 nership ; and the Conflict of Laws. 4 
 
 STRANDING. — Under the memorandum {q. v.) in an ordinary 
 policy of marine insurance, the underwriters are not liable for damage 
 sustained by certain perishable articles, unless in consequence of a 
 general average, or a stranding of the ship. " Stranding" does not occur 
 when a vessel takes the ground in the ordinary and usual course of 
 navigation, in a tideway or harbour, upon the ebbing of the tide or the 
 like, so that she will float again on the flow of the tide; but it occurs if 
 the vessel takes the ground by reason of some unusual or accidental 
 occurrence, e.g., in consequence of an unknown and unusual obstruction 
 in the harbour. 5 
 
 STRANGER.— In law a person is said to be a stranger to a transac- 
 tion when he takes no part in it, or no part producing any legal effect. 
 Thus a person who is not a party to a deed, contract, &c. is said to be a 
 stranger to it. (See Part; Privy.) So when a promise is made to 
 a person, but he has neither taken any trouble or charge upon himself, 
 
 1 Houston on Stoppage in Transitu, 1 ; 2 Ex parte Cooper, 1 1 Ch. D. at 
 
 Lickbarrow v. Mason, 2 T. R. 63 ; I H. p. 78. 
 Bl. 357 ; 6 East, 21 : Smith's L. C. i. 756 ; => Maude & Pollock, 314. 
 
 Smith's Merc. Law, 548 etseq.; Maude & 4 Holtz. Encycl. 
 
 Pollock, Merch. Shipp. 309 et seq. 5 Wells v. Hopwood, 3 B. & Ad. 20 ■ 
 
 Letchford v. Oldham, 5 Q. B. D. 538. 
 
Striking LAW dictionary. Subinfeudation. 785 
 
 nor conferred any benefit on the promisor, but the trouble has been 
 sustained or benefit conferred by another, the promisee is said to be a 
 stranger to the consideration. 1 (See Consideration, § 1.) 
 
 STRIKING. — § 1. Striking a jury is what is more commonly known Jury, 
 as nominating and reducing (q. v.). 2 
 
 § 2. Striking"out a pleading or part of a pleading takes place when the Pleading. 
 Court makes an order to that effect, either for the purpose of amendment 
 (q. v.) or to compel one of the parties to do some act. Thus if a defen- 
 dant fails to comply with an order for discovery, he is liable to have his 
 defence struck out, and to be placed in the same position as if he had not 
 defended the action. 3 
 
 STUFF GOWN is the robe worn in Court by utter barristers. (See 
 Queen's Counsel.) 
 
 SUB-AGENT — SUB-CONTRACTOR. — § 1. When an agent 
 employs a person as his agent, to assist him in transacting the affairs of 
 his principal, the person so employed is called a sub-agent. In the absence 
 of an agreement to the contrary, there is no privity between the principal 
 and the sub-agent ; therefore, the principal is not liable to the sub-agent 
 for his remuneration, and he cannot sue the sub-agent for negligence or 
 misconduct ; he must sue the agent. 4 But if the agent has an express or 
 implied authority to employ a sub-agent, privity of contract arises between 
 the principal and the sub-agent, and the principal may sue the sub-agent 
 for misconduct. 5 
 
 § 2. Similarly, when a contractor makes a contract with a sub-contractor 
 to carry out his contract, or part of it, there is no privity between the 
 principal contractee and the sub-contractor. 
 
 SUBDUCT. — In probate practice, to subduct a caveat is to with- 
 draw it. 7 
 
 SUBINFEUDATION, while it was allowed, was what took place 
 when a tenant in fee simple of land granted the whole or part of it to another 
 person in fee simple, to hold of him as his tenant, so that the relation of 
 tenure, with its incidents of fealty, services, &c, was created between them. 
 The practice of subinfeudation being found to decrease the power and 
 wealth of the great landholders (the barons), it was abolished in Edward 
 the First's reign by the statute known as Quia Emptores (q. v.). s There- 
 fore, at the present day, if A. holds land of B. in fee simple, and wishes 
 to grant it to C, he can only do so on the term that C. shall hold it of B., 
 and not of himself (A.). (See Feudal System ; Seignory; Tenure.) 
 
 1 Chitty on Contracts, 53. contractor and his servants, and between 
 
 2 Lee, Diet. Pr. 887. the latter and the contractor's principal, 
 
 3 Rules of Court, xxxi. 20. see Woolley v. Metr. D. Ry. Co., 2 Ex. D. 
 
 4 See Russell's Merc. Agency, 210. 384 ; Pearson v. Cox, 2 C. P. D. 369. 
 6 De Bussche v. Alt, 8 Ch. D. 287. ' Browne's Probate Pr. 265. 
 
 6 Goslin v. Agricultural Hall Co., 1 C. " Williams on Seisin, 8, 21. 
 
 P. D. 482. As to the relations between a 
 
 S. 3 E 
 
786 Subjacent LAW dictionary. Subrogation 
 
 SUBJACENT. See Support. 
 
 SUB -LEASE. See Lease, § 3. 
 
 SUBMISSION. — A submission to arbitration is an instrument by 
 which a dispute or question is referred to arbitration. (See Arbitration.) 
 When the reference is made by the order of a Court or judge, the order 
 itself is sometimes called a submission ; but, more generally, that word 
 
 General ; denotes an agreement between the parties. Such an agreement may be 
 
 either general (that is, an agreement to refer to arbitration all future dis- 
 
 particular. putes arising out of a specified matter), or a particular submission (that 
 is, an agreement to refer to arbitration a dispute which has already arisen). 
 A general submission is commonly contained in articles of partnership and 
 other agreements extending over a long period. A particular submission 
 may be revoked by either party, unless there is an agreement to make the 
 submission a rule of Court. A general submission cannot be revoked in 
 any case. 1 (See. Rule of Court.) 
 
 SUB - MORTGAGE . See Mortgage, § 1 1 . 
 
 SUBORNATION OF PERJURY is the offence of procuring a 
 person to commit perjury, provided he actually commits it. 2 The offence 
 is a misdemeanor, punishable in the same way as perjury (q. v.). 
 
 Ad test. 
 
 SUBPC5NA is a writ issued in an action or suit requiring the person 
 to whom it is directed to be present at a specified place and time, and for 
 a specified purpose, under a penalty (sub poena) of 100/. The varieties of 
 subpoena now in use are : (i) the subpoena ad testificandum, used for the 
 purpose of compelling a witness to attend and give evidence, either in 
 Duces tecum. Court or before an examiner or referee : and (ii) the subpoena duces 
 tecum, used to compel a witness to attend in Court or before an examiner 
 or referee, to give evidence and also bring with him certain documents in 
 his possession specified in the subpoena. 3 
 
 2. Under the old Chancery practice, every suit was commenced by a writ of subpoena 
 requiring the defendant to appear; hence in the old books "subpcena" is equivalent to 
 " suit in equity" or "bill of complaint." Under the more modem practice the subpcena 
 was endorsed on the bill of complaint. Now every action is commenced by writ of 
 summons. § 3. The subpcena to hear judgment was another kind used in Chancery 
 practice : it was issued by the party setting down a cause for hearing and served on the 
 opposite party. If the party served did not appear at the hearing, the Court might 
 make a decree against him. 4 
 
 Old Chancery 
 practice. 
 
 SUBROGATION in its general sense is the substitution of one 
 person or thing for another, so that the same rights and duties which 
 attached to the original person or thing attach to the substituted one. 
 
 1 Piercy v. Young, 14 Ch. D. 200. 
 
 2 Russell on Crimes, iii. 1 ; Stephen's 
 Crim. Dig. 84. 
 
 3 See the forms, Rules of Court, April, 
 
 1880. 
 
 4 Daniell's Ch. Pr. 831 et seq. As to the 
 subpcena for costs, abolished by Rules of 
 Court, xlvii. 2 ; see ibid. 1 3 19. 
 
Subscribe LAW DICTIONARY. Subtraction 787 
 
 Thus, if a person insures a ship which is lost by a collision caused by the 
 negligence of another ship, he may recover the value of the ship from the 
 underwriters, and then they are subrogated to his rights so as to be able 
 to bring an action against the persons who caused the collision. 1 (See 
 Insurance, § 4.) 
 
 Etymology.] — Latin, subrogare, to choose in place of another. 2 As to the meaning 
 of subrogation in French law, see Dalloz, Diet. s. v. ; Saint-Bonnet, Diet. s. v. ; Pothier 
 de la Communaute, § 197. 
 
 SUBSCRIBE— SUBSCRIPTION.— To subscribe is literally to 
 "write under," and is sometimes opposed to " sign," because a signature 
 is not necessarily placed at the end or bottom of an instrument. (See 
 Sign; Will.) A subscribing witness is the same thing as an attesting 
 witness. 3 (See Attest.) 
 
 SUBSTITUTED SERVICE. See Service, § 11. 
 
 SUBSTITUTION— SUBSTITUTIONAL— SUBSTITU- 
 TIONARY. — Where a will contains a gift of property to a class of 
 persons with a clause providing that on the death of a member of the 
 class before the period of distribution his share is to go to his issue (if 
 any), so as to substitute them for him, the gift to the issue is said to be 
 substitutional or substitutionary. A bequest to such of the children of 
 A. as shall be living at the testator's death, with a direction that the 
 issue of such as shall have died shall take the shares which their parents 
 would have taken, if living at the testator's death, is an example. Under 
 such a gift the issue of children dead at the date of the will cannot take 
 anything. 4 
 
 SUBTRACTION is where a person refuses or neglects to perform a 
 duty. The term is chiefly used in connection with services and tithes. 
 § 2. In the law of real property, subtraction is where a person who owes Of services, 
 any suit, duty, custom or other service to another, withdraws or neglects 
 to perform it ; the principal services which are the subject of subtraction 
 are fealty, suit of court, rent, and customary services. (See Secta.) In 
 the case of fealty, suit of court, and rent, the remedy is by distress ; an 
 action also lies for rent and for subtraction of customary services. 5 (See 
 Service, § 6.) In practice, however, the wrong of subtraction is not of 
 common occurrence. 
 
 § 3. In ecclesiastical law, subtraction is the injury of withholding tithes Of tithes, 
 from the rector or vicar. For this injury, a suit lies in the Ecclesias- 
 tical Courts, unless the tithes only amount to 50/. or under, or unless there 
 is a dispute whether they are payable. But now almost all tithes have 
 
 1 See per Mellish, L.J., North British, "■ "Watson's Comp. Equity, 1260; Jarman 
 &c. Co. v. London, ts°c. Co., 5 Ch. D. at on Wills, ii. 771 et seq. : In re Potter's 
 pp. 583, 584. Trust, L. R., 8 Eq. 52. 
 
 2 Dirksen's Man. Lat., s. v. 5 Steph. Comm. iii. 409 ; Elton, Copyh. 
 
 3 Best on Ev. 306. 178. 
 
 3 E 2 
 
788 
 
 Subtraction 
 
 LAW DICTIONARY. 
 
 Succession 
 
 been commuted into rent-charges, for recovering which a special mode 
 of proceeding by distress has been provided, so that suits of subtraction 
 are now quite obsolete. 1 (See Tithes.) 
 
 Corporation 
 sole. 
 
 Succession by 
 statute. 
 
 Succession of 
 the crown. 
 
 Succession 
 Duty Act. 
 
 SUCCESSION— SUCCESSOR.— I. § i. In the primary meaning 
 of the word, succession is where property passes on the death of a 
 corporation sole to his successor; "for as the heire doth inherit to the 
 ancestor, so the successor doth succeed to the predecessor." 2 Therefore, 
 in a conveyance of land to a bishop, parson, or any other sole corporation, 
 the limitation must be to him " and his successors ;" otherwise he will 
 take an estate for life only. 3 (See Fee, § 3 ; Heir, § 9 ; Words of Limitation?) 
 In some cases a corporation sole can also take personal property by 
 succession. 4 (See Churchwarden ; Corporation.") 
 
 § z. There are also statutory modes of succession : thus, where land is 
 conveyed to trustees for persons associated together for religious, educa- 
 tional, literary, scientific or artistic purposes, it passes to their successors 
 in office without conveyance. 5 
 
 § 3. The succession of the crown (the sovereign being a corporation 
 sole) resembles the descent of land, except (i) that in the case of a 
 sovereign dying and leaving no son but several daughters, the crown 
 descends to the eldest alone; and (ii) that it can only descend to 
 Protestants. (See Demise?) 
 
 II, § 4. A succession takes place, within the meaning of the Succes- 
 sion Duty Act, 1853, where a person becomes beneficially entitled to or 
 interested in property upon the death of another. The person so 
 becoming entitled is called "the successor," and the person from whom 
 he derives his title or interest is called "the predecessor." Thus, if A. 
 by deed settles property on B. for life, and after his death on C, then on 
 B.'s death a succession takes place, C. being the successor and A. the 
 predecessor. So, if A. dies intestate and entitled to land, a succession 
 to his heir-at-law takes place. § 5. Where a person exercises a general 
 power of appointment which he has become entitled to on the death of 
 another person, he is deemed to be entitled to the property so appointed 
 as a succession derived from the donor of the power. If, therefore, he 
 exercises it by will, two successions take place on his death, one from 
 the donor to the donee (appointor), and another from the appointor to 
 the appointee. But where a person exercises a limited power which he 
 has become entitled to on the death of another person, the appointee (and 
 not the appointor) is deemed to take the proprerty as a succession derived 
 from the donor of the power. 7 The object of the act being to impose a 
 duty on all dispositions and devolutions of property not chargeable under 
 the Legacy Duty Acts, the terms "succession," "successor" and "pre- 
 decessor" are in effect applicable only to successions arising from settle- 
 
 1 Steph. Comm. iii. 309. 
 
 2 Co. Litt. 8b; 250 a. 
 
 3 Ibid. 94 b. 
 
 4 Bl. Comm. ii. 430. 
 
 6 Stats. 13 & 14 Vict, c, 28, s. I ; 17 & 
 
 i8Vict. c. 112, s. 12; 32 & 33 Vict. c. 26. 
 
 6 Bl. Comm. i. 191 ; Steph. Comm. ii. 
 
 4I3- 
 
 7 Stat. 16 & 17 Vict. c. 51, s. 4, and see 
 
 s -33- 
 
Succession Duly law dictionary. Sue 789 
 
 ments inter vivos of real and personal property, and from descents or 
 testamentary dispositions of real and leasehold estates. (See Leaseholds.) 
 Where a testator directs real estate to be sold, the proceeds are charge- 
 able with legacy, and not with succession, duty. 1 (See Succession Duty ; 
 Legacy Duty.) 
 
 SUCCESSION DUTY is a tax imposed since the 19th May, 1853, 
 on every " succession," that is, on the beneficial interest in property to 
 which a person becomes entitled on the death of another, unless it is 
 subject to legacy duty. As to the meaning of " successor" and "prede- 
 cessor," see Succession, § 4. 
 
 § 2. The rates of succession duty are as follows : where the successor Rate of duty, 
 is the lineal issue or lineal ancestor of the predecessor, the duty is one 
 per cent, on the value of the succession ; if a brother or sister, or 
 descendant of a brother or sister, three per cent. ; if a brother or sister of 
 the father or mother of the predecessor, or a descendant of such brother 
 or sister, five per cent. ; if a brother or sister of the grandfather or grand- 
 mother of the predecessor, or a descendant of such brother or sister, six 
 per cent. ; in any other case the duty is ten per cent. 2 
 
 § 3. The value of a succession to real property is calculated as that of How assessed 
 an annuity, equal to the annual value of the property, during the sue- an pal " 
 cessor's life, or for any less period during which he may be entitled, in 
 accordance with the tables in the schedule to the act. The duty is paid 
 by eight equal half-yearly instalments, commencing at the end of twelve 
 months after the successor first becomes entitled to the beneficial enjoy- 
 ment of the property. 3 In the case of personal property, if the succession 
 vests the whole beneficial interest immediately in the successor, the duty is 
 chargeable upon the full amount or value of the succession, and is payable 
 at once ; if the succession consists of an annuity, the value of the annuity 
 is calculated, and the duty is paid by four annual instalments. 4 
 
 §4. Succession duty is not payable (i) on an estate under 100/.: Exemptions, 
 (ii) on any succession under 20/.: (iii) on any succession which, if it 
 were a legacy bequeathed by the predecessor to the successor, would be 
 exempt from legacy duty : 5 (iv) any succession on which probate duty has 
 been paid under the Customs and Inland Revenue Act, 1881, is exempt 
 from duty at one per cent. 6 
 
 SUE. — I. § 1. To sue a person is to bring an action, suit, or other 
 civil proceeding against him. 
 
 II. § 2. As to the meaning of "sue" in the suing and labouring 
 clause in a policy of insurance, see Suing and Labouring. 
 
 1 Stat. 45 Geo. 3, c. 28. l Sects. 20, 32, incorporating ss. 8, 10 — 
 
 3 Stat. 16 & 17 Vict. c. 31 ; Williams, 13, and 23 of the Legacy Duty Act, 1796. 
 R. P. 288; Turing's Succ. Duty Act; 6 Sect. 18. 
 
 Hanson's Legacy and Succ. Duty Acts. As 6 Customs and I. R. Act, 1881, s. 41. 
 to the recovery of succession duties, see the The only kind of property to which this ex- 
 Crown Suits Act, 1865. emption can apply seems to be leaseholds. 
 3 Sect. 21. 
 
790 Sufferance law dictionary. Suicide 
 
 SUFFERANCE. See Tenant at Sufferance. 
 
 SUFFRAGAN. See Bishop, §.4. 
 
 SUGGESTIO FALSI is an active misrepresentation, as opposed to 
 a suppressio veri, or passive misrepresentation. (See Misrepresentation.) 
 
 SUGGESTION.— § 1. In the practice of the Queen's Bench Division 
 of the High Court, facts may in certain cases be brought before the Court 
 by entering a suggestion (that is, an allegation) of them on the roll or 
 record of proceedings in an action. Under the practice of the former 
 common law Courts, the roll was made up, and the suggestion entered 
 thereon, and a copy of it delivered to the other side. Under the new 
 practice no roll is made up in an ordinary action (see Rolls, § 6), but 
 it seems that where it is necessary to enter a suggestion, the roll would 
 have to be made up as under the old practice. 1 Probably the only 
 ' instance of importance in which this practice is followed at the present 
 day, is in an action for breaches of a covenant or of the condition of a 
 bond. (See Breach, §5.) Formerly changes of the parties to an action 
 could be entered on the roll by suggestion, 2 but the new practice as to 
 revivor (q. v. §§ 3, 4) seems to have abolished this mode of proceeding. 
 
 Roman law. SUI JURIS. — § 1. In Roman law, persons were divided into two 
 classes, according as they were sui or alieni juris. Persons subject to the 
 potestas of a father, or the manus of a husband, or the mancipium of a 
 , master, were said to be alieni juris ; the class, therefore, included all 
 persons having a father or other ascendant living (unless they had been 
 emancipated or otherwise freed from the patria potestas) ; all married 
 women who had been married with certain formalities ; and all slaves. 
 All other persons were sui juris, so that a child of a few years old, if he 
 had no father or other ascendant living, and had not been adopted by 
 any one, was sui juris, although he was under disability. 3 
 
 English law. § z. In English law, the term " sui juris " (though taken from the 
 Roman law) is used in quite a diiferent sense. A person is said to be 
 sui juris if he is not subject to any general disability. Therefore, infants, 
 married women, lunatics, convicts and a few other persons, are not sui 
 juris, because they cannot enter into contracts or dispose of their property 
 with the same freedom as ordinary persons. (See Disability ; Coverture ; 
 Guardian; Infant ; Next Friend; Curator.) 
 
 SUICIDE is where a person kills himself. Deliberate suicide by a 
 sane person is a felony, formerly punishable by forfeiture of the offender's 
 goods and chattels to the crown, and by an ignominious burial in the 
 highway with a stake driven through his body, and without Christian 
 rites of sepulture ; but now the only consequences are burial in a church- 
 yard or other burying ground between 9 and 12 at night without Christian 
 
 ' Archbold's Pr. 1242 et seq. 3 Hunter's Roman Law, 48. 
 
 2 See Archbold, 926, n. (h), 1245, notes. 
 
Suing LAW DICTIONARY. Suitors 791 
 
 rites. 1 And in practice very slight evidence is sufficient to induce a 
 coroner's jury to return a verdict of temporary insanity, which makes the 
 suicide no crime. (See Inquest ; Felo de se.) 
 
 SUING AND LABOURING CLAUSE is a clause in a policy of 
 marine insurance, generally in the following form : " In case of any loss 
 or misfortune, it shall be lawful to the assured, their factors, servants 
 and assigns, to sue, labour and travel for, in, and about the defence, 
 safeguard and recovery of the" property insured, "without prejudice to 
 this insurance ; to the charges whereof we the assurers will contribute." 3 
 The object of the clause is to encourage the assured to exert themselves 
 in preserving the property from loss. 3 
 
 SUIT is a generic term, and denotes any legal proceeding of a civil 
 kind brought by one person against another. 4 The term is, however, used > 
 
 in opposition to "action." Formerly the most important kinds of suit 
 in this sense were those brought by bill of complaint (q. v.) and informa- 
 tion {q. v.) in the Court of Chancery, now abolished. 5 A proceeding 
 for nullity or dissolution of marriage, &c. in the Probate, Divorce and 
 Admiralty Division of the High Court is called a suit. 
 
 § 2. In the technical sense of the word, a bond or recognizance given 
 to a public officer as security is said to be put in suit when proceedings 
 are taken to enforce it. Thus, in the practice of the Chancery Division a 
 bond which has been entered into in the name of one of the Record and 
 Writ Clerks as security for costs is put in suit by leave of the Court, when the 
 occasion arises, by the person whose costs were intended to be secured. 6 
 
 As to suit in the sense of a service, see Secta ; Suit of Court. 
 
 SUIT OF COURT is a service theoretically due from every tenant 
 of land forming part of, or held of, a manor, and consists in the duty of 
 attending the Courts held by the lord. Free tenants or tenants of 
 freehold land are bound (either personally or by attorney) to attend their 
 lord's Court Baron (q. v.), while copyhold tenants are bound to attend 
 personally at the Customary Court. These Courts are still held in some 
 manors. 7 (See Secta ; Service; Subtraction.) 
 
 SUITORS' DEPOSIT ACCOUNT.— Formerly suitors in the 
 Court of Chancery derived no income from their cash paid into Court, 
 unless it was invested at their request and risk ; now, however, it is pro- 
 vided by the Court of Chancery (Funds) Act, 187Z, that all money paid 
 into Court, and not required by the suitor to be invested, shall be placed 
 
 1 Steph. Comm. iv. 62 ; stats. 4 Geo. 4, c Darnell's Ch. Pr. 36, 1605. 
 
 t - S 2 ; 33 & 34 "Vict. c. 23. ' Elton, Copyh. 178 ; Williams on Seisin, 
 
 2 Maude & Pollock, Mer. Shipp. 335. 15, 36. In addition to the suit mentioned 
 * Booth, v. Gair, 15 C. B. (N. S.) 291 ; in the text (suit service), Reeves describes 
 
 Lohre v. Aitchison, 2 Q. B. D. 501 ; 3 Q. a kind of suit called suit real, due in respect 
 B. D. 558 ; 4 App. Ca. 755. of residence to a leet or touni (Hist. i. 265 ; 
 
 4 Co. Litt. 291 a. Scriven, Copyh. 684). 
 
 5 Rules of Court, i. 1 . 
 
79 2 Suitors' Fee Fund LAW dictionary. Summary 
 
 on deposit and shall bear interest at 2 per cent, per annum for the 
 benefit of the suitor entitled to it. The sum required for the payment 
 of this interest is produced by placing all money in Court not required 
 for meeting current demands in the hands of the Commissioners for 
 the Reduction of the National Debt, who invest it in Government secu- 
 rities. This arrangement is called the "Suitors' Deposit Account." 1 (See 
 Account, §§13 et seq.) 
 
 SUITORS' FEE FUND was a fund arising partly from the fees of the Court of 
 Chancery, and partly from the surplus income of the Suitors' Fund (q . v.). Out of it the 
 salaries and other expenses of the Court of Chancery were paid. By the Courts of Justice 
 (Salaries and Funds) Act, -1869, the Suitors' Fee Fund was transferred to the Commis- 
 sioners for the Reduction of the National Debt, and the salaries and expenses formerly 
 paid out of it were charged on the Consolidated Fund. 2 (See Account, §§ 13, 15.) 
 
 SUITORS' FUND was a fund belonging to the Court of Chancery (see Account, 
 §§ : 3> : 5)> an d consisting of two parts. Fund A. consisted of Government stocks result- 
 ing from the investment of so much of the money in Court belonging to the suitors as was 
 not required for current purposes. Part of the income arising from these investments 
 was employed in paying certain expenses of the Court, and the balance was invested in 
 Government stocks, which formed Fund B. Subsequently the surplus income of both 
 funds was annually added to the Suitors' Fee Fund (q. v.) . By the Courts of Justice, 
 &c. Act, 1869, the Suitors' Fund was transferred to the Commissioners for the Reduc- 
 tion of the National Debt, and the Consolidated Fund was made liable for the due pay- 
 ment of the money which belonged to the suitors and had been invested as above stated. 3 
 (See Paymaster-General.) 
 
 § 2. The Official Solicitor to the Court of Chancery [q. v.) was originally called the 
 Solicitor to the Suitors' Fund, by reason of his duties in connection with that fund. 1 
 
 SUMMARY. — § 1. In procedure, proceedings are said to be summary 
 when they are short and simple in comparison with regular proceedings, 
 that is, in comparison with the proceedings which alone would have been 
 applicable, either in the same or analogous cases, if summary proceedings 
 had not been available. Summary proceedings are sometimes concurrent 
 with regular proceedings, that is, either may be adopted. 
 
 Civil. § 2. Petitions, special cases, motions, and summonses, not being inter- 
 
 locutory proceedings in an action or suit, are instances (chiefly occurring 
 in the Chancery Division, under the statutory jurisdiction of the High 
 Court) of summary proceedings in civil cases, as opposed to suits or 
 actions. 5 For examples see Petition, § 4 ; Summons, § 6. There are also 
 summary modes of putting an end to an action, without carrying it on to 
 trial, e. g., by obtaining judgment where the defendant has no defence 
 (see Judgment, § 9), or by interpleader proceedings. 
 
 Criminal. § 3. In criminal cases, summary proceedings are those which may be 
 
 had and concluded before a magistrate or justices of the peace, as opposed 
 
 1 See the Chancery Funds Consolidated 4 Legal Dep. Commissioners' Second 
 Rules, 1874; Report of the Chancery Report (1874), 40. 
 
 Funds Commissioners (1864), Ivii. s Blackstone remarks that the common 
 
 2 Rep. Chancery Fund Commissioners, law is a stranger to summary proceedings, 
 1864. except in the case of contempt of court 
 
 3 Chancery Funds Commissioners' Re- (Bl. Com. iv. 280). 
 port, 1864. 
 
Summing-up law dictionary. Summons 793 
 
 to regular proceedings by indictment or information and trial by a jury. 
 The Summary Jurisdiction Act, 1879, has much extended the power of 
 magistrates to dispose of cases summarily, provided that the accused, if 
 an adult, consents, and that the offence is one of minor gravity, e.g. larceny. 1 
 (See Complaint ; Justice of the Peace ; Information, § 16; Quarter Sessions.) 
 
 As to summary process, see Process, § 5, and the Summary Jurisdiction 
 (Process) Act, 1881. 
 
 As to summary proceedings in ecclesiastical matters, see Cause, § 2. Ecclesiastical. 
 
 SUMMING-UP, on the trial of an action by a jury, is a recapitula- 
 tion of the evidence adduced, in order to draw the attention of the jury to 
 the salient points. The counsel for each party has the right of summing-up 
 his evidence, if he has adduced any, and the judge finally sums up the 
 whole. 3 (See Reply; Right to begin; Trial.) 
 
 SUMMONS. — § 1. A summons is a document issued from the office 
 of a Court of justice, calling upon the person to whom it is directed to 
 attend before a judge or officer of the Court for a certain purpose. (See 
 Writ of Summons ; Motion; Petition.) 
 
 I. § 2. In the High Court of Justice, a summons is a mode of making High Court. 
 an application to a judge or his deputy in chambers (q. v.). Summonses 
 are therefore only used on applications which are either of subsidiary im- 
 portance, or can be conveniently disposed of in chambers, such as appli- 
 cations for enlarging the time to take certain steps, for discovery and pro- 
 duction of documents, for appointing examiners and receivers, 3 for leave 
 to sign judgment under Ord. XIV. (see Judgment, § 9), for the committal 
 of a judgment debtor, &c, &c. In simple cases, the solicitors of the 
 parties attend on their behalf : in difficult or important cases counsel are 
 instructed. 4 
 
 § 3. In the Queen's Bench Division some summonses must be heard in 
 the first instance by a master, and others by a judge. An appeal lies from 
 a master to a judge in chambers, and from the judge to the Divisional 
 Court. 6 
 
 § 4. In the Chancery Division every summons is heard in the first in- chancery 
 stance before the chief or junior clerk, but either party, if dissatisfied with Division, 
 the decision, is entitled to have the summons heard by the judge in 
 chambers. This is called adjourning the summons to the judge. The 
 judge may also adjourn the summons to be argued in Court ; or if he 
 refuses to do so, the dissatisfied party may either move before the judge 
 in Court to rescind the order made in chambers, or may appeal to the 
 Court of Appeal. (See Appeal, § 3.) 
 
 Summonses in the Chancery Division are of two kinds : — 
 
 (1) § 5. Summonses in pending actions and matters. These are of in- Ordinary 
 finite variety, as already indicated {supra, § 2). An important kind is the summonses. 
 
 1 Paley on Convictions, 15; Steph. 1880); Chitty, Pr. 1598^ seq.; Daniell, Ch. 
 
 Comm. iv. 329 ; Summary Jurisdiction Pr. 1050. 
 
 Act, 1879, and the Rules and Forms, 1880, 4 Some of the Chancery judges do not 
 
 issued thereunder. hear counsel in chambers. 
 
 3 Smith's Action, 157. 6 Rules of Court, liv. 6 (May, 1880), 
 
 3 See generally as to summonses, Rules IviiA. 
 of Court, liv. (especially the Rules of April, 
 
794 Summons law dictionary. Sunday 
 
 summons to proceed. When a judgment or order has been made in Court 
 directing accounts, inquiries, or other steps to be taken in chambers, the 
 matter is brought before the chief clerk by a summons "to proceed under 
 the judgment (or order), dated the, &c." Appointments before the chief 
 and junior clerks are obtained on this summons, from time to time, until 
 the matter is disposed of, and the certificate made. 1 (See Certificate, 
 
 §4-) 
 Originating. ( 2 ) § 6. An originating summons is so called because it is the first step 
 
 taken in the matter, that is, the matter is commenced by the issue of a 
 summons in the same way as an action is commenced by the issue of a 
 writ (see Matter), and the persons served (the defendants) enter an appear- 
 ance in the same way as defendants to an action. The most important 
 instance of this kind of summons formerly was the administration summons 
 under 15 & 16 Vict. c. 86, s. 45, on which an order for the administration 
 of the personal estate of a deceased person might be made on the applica- 
 tion of a creditor, legatee or next of kin without the institution of a 
 regular action or suit. 3 Since the Judicature Acts, however, it has 
 become usual in simple cases to obtain a judgment on a writ of summons, 
 without pleadings, and hence administration summonses are not of such 
 frequent occurrence as formerly. Maintenance orders are sometimes 
 obtained on originating summonses. 
 County Court. II. § 7. In a County Court action as soon as the plaint (q. v.) has been 
 entered, a summons requiring the defendant to appear and answer the 
 plaintiff's claim on a certain day, is issued and served on the defendant ; 
 attached to it are the particulars of demand {jj. v.), if any, and endorsed 
 Successive on it are various notices for the guidance of the defendant. 3 Where it 
 summonses. cannot be served in time, successive summonses may be issued. 4 In certain 
 Default cases the plaintiff may, upon filing an affidavit that the debt sued for is 
 
 summonses. ^ue t j 1 j rrl) obtain a summons for judgment by default, which informs the 
 defendant that unless within sixteen days after service he gives notice of 
 his intention to defend the action, the plaintiff may sign judgment. 6 
 
 § 8. The attendance of witnesses in County Court actions is enforced 
 by summons, with or without a clause requiring the production of books, 
 &c. in their possession. 6 (See Subpoena.) 
 Justices of the HI. § 9. In magisterial practice, a summons is the ordinary way of 
 
 Pg3.CC oCC 
 
 compelling the appearance of a person against whom a complaint, in- 
 formation or other proceeding has been brought. (See Warrant.) 
 
 SUNDAY. — The principal statutes directed against profanation of the 
 Lord's Day by trading, unlawful pastimes, &c. are 27 Hen. 6, c. 5 ; 
 1 Car. 1, c. 1 ; 29 Car. 2, c. 7 ; 21 Geo. 3, c. 49, amended by 38 & 39 
 Vict. c. 80 (as to public entertainments), and the various Factory and 
 Workshop Regulation Acts, and the Licensing Acts (q. ».).' The stat. 
 
 1 See Daniell, 1085. * Pollock, 92 ; C. C. Rules, 1875, viii. 6. 
 
 2 See Hunter's Suit, 240; Daniell, Ch. s Pollock, 93; County Courts Act, 1875, 
 Pr. 1051, 1071. s. I. 
 
 3 See County Court Forms, 1875, No. 1 1; 6 Pollock, 117. 
 
 Pollock's C. C. P. 84 etsej. 7 Steph. Comm. iv. 212. As to Sunday 
 
Superfluous Lands law dictionary. Superstitious Uses 795 
 
 29 Car. 2, c. 7, forbids the exercise by any person of his ordinary calling 
 on the Lord's Day under a penalty of five shillings : it also makes the 
 service or execution of any writ, process, judgment, &c. on the Lord's 
 Day (except in the case of treason, felony or breach of the peace) 
 absolutely void, and makes the person offending liable to an action for 
 damages. No proceedings can be taken under this act except with the 
 consent of the chief officer of police or magistrate of the district. 1 
 Subject to the provisions of these statutes it seems that any act or thing 
 done on Sunday is legal and valid. 2 
 
 SUPERFLUOUS LANDS are lands acquired by a railway company 
 under its statutory powers, and not required for the purposes of its under- 
 taking. The company is bound within a certain time to sell such lands, 
 and if it does not, they vest in and become the property of the owners of 
 the adjoining lands. 3 (See Pre-emption?) 
 
 SUPERINSTITUTION.— Where a church is full by institution, and 
 a second institution is granted to the same church, this is a superinstitu- 
 tion, and necessarily raises the question who is entitled to the benefice. 
 It is said that the party who obtains a superinstitution may try his title by 
 ejectment, but that in consequence of its inconveniences this method is 
 discouraged, and the more usual remedy of a quare impedit adopted. 4 
 
 SUPERSEDEAS is a writ which stays or put an end to a pro- 
 ceeding. Thus, if a certiorari {q. v.) has been wrongly issued, and has Certiorari. 
 been returned, the Court will grant a supersedeas. 6 So, where a person Inquisition, 
 has been irregularly found a lunatic, or has been found a lunatic and 
 afterwards recovers, the inquisition may be superseded or set aside on 
 petition by him to the Lord Chancellor." 
 
 § 2. Formerly the writ of supersedeas was of great importance in the law of bailable Arrest, 
 proceedings, it being the means by which a defendant who had been arrested on mesne 
 process obtained his discharge. A prisoner entitled to the writ was said to be super- 
 sedeable. 7 
 
 § 3. Under the old practice in bankruptcy, when the proceedings were commenced by Bankruptcy, 
 commission, the bankruptcy was put an end to ab initio by superseding the commission 
 which was done by writ of supersedeas. 8 The same effect is now produced by annulling 
 the adjudication. (See Annul.) 
 
 SUPERSTITIOUS USES AND TRUSTS, or dispositions of real 
 or personal estate for propagating religious rites not tolerated by the law, 
 are void ; such is a bequest for masses for the soul of the testator. 9 
 
 trains on railways, see 7 & 8 Vict. c. 85, 607. 
 
 s. 10. As to Jews working in workshops, i Phillimore, Eccl. Law, 476. 
 
 see Stat. 34 Vict. c. 19. 5 Tidd's Pr. 403. 
 
 1 Stat. 34 & 35 Vict. c. 87; Expiring 6 Pope on Lunacy, 190. 
 Laws Continuance Acts, 1880, 1881. ' Lee's Diet. Pr. 1301. 
 
 2 See Benjamin on Sales, 442 ; citing 8 8 Ves. 533 ; 10 Ves. 104. 
 
 Drury v. Defontaine, 1 Taunt. 13L 9 Tudor's Char. Trusts, 18; Watson's 
 
 3 Lands Clauses C. Act, 1845, ss. 127 et Comp. Eq. 39 ; West v. Shuttleworth, 2 
 seq. ; Hodges on Railways, 330 ; In re M. & K. 684. The rule apparently does 
 Metr. Dist. Railway and Cosh, 13 Ch. D. not apply to Ireland. 
 
796 Supervision law dictionary. Support 
 
 § 2. Property given by will to superstitious uses goes to the representatives 
 of the testator (his heir, next of kin, residuary legatee, &c. according to 
 circumstances), unless the uses are charitable as well as superstitious, in 
 which case it goes to the crown to be applied to valid charitable objects. 1 
 (See Charity.) 
 
 SUPERVISION. See Winding-up. 
 
 SUPPLEMENTAL BILL. See Bill of Complaint, § 8. 
 
 SUPPLICAYIT.— When a justice of the peace refuses to compel 
 a person to give security to keep the peace, the person exhibiting the 
 articles (that is, the person making complaint) may apply to the High 
 Court for a supplicavit, which is a mandatory writ compelling the justice 
 to require security. But as the High Court may make an order for 
 security to be given without the intervention of a justice of the peace, 
 this writ is seldom used. 3 (See Articles of the Peace ; Breaches of the 
 Peace.) 
 
 SUPPORT.— The right of support to land is either a natural right or 
 an easement. 
 
 Natural right. I. § i. Every proprietor of land is entitled to so much lateral support 
 from his neighbour's land as is necessary to keep his soil at its natural 
 level, that is, his neighbour must not excavate so close to the boundary 
 as to cause his land to fall or subside. Similarly, if one person is 
 entitled to the surface of land, and the land beneath the surface belongs 
 to another proprietor, the owner of the surface is entitled to vertical 
 support as against him ; that is, the owner of the subjacent land must not 
 cause subsidence of the surface unless he has an easement entitling him 
 to do so. (See Easement.) This natural right to support, whether lateral 
 or vertical, does not extend to the case of land, the weight of which has 
 been increased by buildings, unless it can be shown that the land would 
 have sunk if there had been no buildings on it. 3 
 
 Easement. II. § 2. The right to extraordinary support, that is, to the support of 
 
 land on which buildings have been erected, and which, consequently, 
 requires more support than it did in its natural condition, is an easement. 
 It was formerly considered that such an easement was not within the 
 provisions of the Prescription Act {q. v.), on the grounds that it is a nega- 
 tive easement ; and that the second section of the act only applies to 
 positive easements. 4 Both these propositions have been discredited, if 
 not overruled, by the recent decision of Dalton v. Angus f and it is now 
 established that the easement of support may not only exist by virtue of 
 
 1 Tudor, 29 et seq.; and see stat. 23 & 24 3 Gale on Easements, 358 ; Dart's V. & 
 Vict. c. 134, as to gifts to Roman Catholic P. 368. 
 
 charities. 4 Gale on Easements, 370. 
 
 2 Steph. Coram, iv. 292. 6 Angus v. Dalton, 3 Q. B. D. 85 ; 4 Q. 
 
 B. D. 162 ; 44 L. T. 844. 
 
Suppress™ Vert law dictionary. Surcharge 797 
 
 an express grant, or in the case of an ancient messuage, but may also 
 be acquired by twenty years' uninterrupted enjoyment. 
 
 § 3. The easement of support to a building by a building, or the 
 right of the owner of a building to have it lean against and be supported 
 by a building belonging to his neighbour, seems to stand in the same 
 position. It may also arise by implied grant under a disposition by the 
 owner of two tenements 1 (see Easement, § 10). 
 
 See Easement; Lost Grant; Prescription; Ancient Messuages. 
 
 SUPPRESSIO YERI. See Suggestio Falsi. 
 
 SUPREME COURT OF JUDICATURE is the Court formed 
 by the Judicature Act, 1873 (as modified by the Judicature Act, 1875, 
 the Appellate Jurisdiction Act, 1876, and the Judicature Acts of 1877, 
 1879 and 1 881), in substitution for the various superior Courts of law, 
 equity, admiralty, probate and divorce, existing when the act was passed, 
 including the Court of Appeal in Chancery and Bankruptcy, and the 
 Exchequer Chamber. It consists of two permanent divisions, viz., a 
 Court of original jurisdiction, called the High Court of Justice, and 
 a Court of appellate jurisdiction, called the Court of Appeal (see those 
 titles). 2 Its title of "supreme" is now a misnomer, as the superior 
 appellate jurisdiction of the House of Lords and Privy Council, which 
 was originally intended to be transferred to it, has been allowed to 
 remain. (See Court.) 
 
 SUR— SUR DISCLAIMER— SUR DISSEISIN.—" Sur" = "upon." In 
 the titles of real actions " sur " was used to point out what the writ was founded upon. 
 Thus a real action brought by the owner of a reversion or seignoiy, in certain cases where 
 his tenant repudiated his tenure, was called a writ of right sur disclaimer. 3 So a writ of 
 entry sur disseisin was a real action to recover the possession of land from a disseisor. 4 
 (See also Cui in Vitd ; Cui ante Dvvortium ; Writ of Entry?) 
 
 SURCHARGE, — § 1. To surcharge a common is to put more cattle Commons, 
 thereon than the pasture and herbage will sustain, or than the commoner 
 has a right to do. 5 As to the remedy for this injury, see Admeasurement, 
 § 2. § 2. Where an account is being investigated in the Chancery i n accounts. 
 Division, and the party at whose instance it is taken shows that an item 
 has been omitted for which the accounting party ought to give credit, he 
 is said to surcharge the accounting party. 6 (See Account; Falsify?) 
 § 3. Under the Public Health Acts, where an auditor disallows an item 
 of expenditure by an urban authority as being illegal, he surcharges it 
 on the person who made or authorized it ; in other words, he makes 
 him personally liable for the amount. 7 
 
 Etymology.]— French, sur, over, in addition, in excess, and charge? 
 
 1 Gale, 384 et seq. ; Angus v. Dalton, 7 Local Government Act, 1858, s. 60, 
 supra. § 1, repealed and re-enacted by the Public 
 
 2 Judicature Act, 1873, ss. 3, 4. Health Act, 1875, s - 2 47. § 7- 
 
 3 Bl. Comm. 233. e See, in Harrison v. Carter, 2 C. P. D. 
 
 4 Ibid. 183, note. p. 32, a description of a charity for the 
 " Bl. Comm. iii. 237 ; Co. Litt. 165 a. benefit of poor persons " surcharged by 
 6 Daniell's Ch. Pr. 577. children." 
 
79 8 
 
 Surety 
 
 LAW DICTIONARY. 
 
 Surmise 
 
 Rights of 
 
 surety. 
 
 Discharge of 
 surety. 
 
 SURETY. — § i . A surety is a person who binds himself to satisfy the 
 obligation of another person, if the latter fails to do so : thus, if A. owes 
 B. money, and C, for good consideration, promises B. that he will pay 
 him the money if A. does not, here C. is a surety for A., the principal 
 debtor, and his promise constitutes a contract of suretyship. 1 § 2. In the 
 general sense of the word, therefore, a surety is the same thing as a 
 guarantor (q. v.), but in practice the term is usually restricted to the case 
 of a person who binds himself by a bond : thus, it is frequently necessary 
 for a person who enters upon an office to obtain one or more sureties 
 who bind themselves by a bond to answer for his acts and defaults in the 
 performance of the office, either generally, or to a limited amount or 
 a limited time. 2 A security given in^ a judicial proceeding also generally 
 takes the form of a bond or recognizance with sureties. (See Bail; 
 Recognizance; Security, §§ 2, 13 et seq.) 
 
 §3. If a surety satisfies the obligation for which he has made himself 
 liable, he is entitled to recover the amount from the principal debtor. If 
 one of several sureties is compelled to pay the whole amount or more 
 than his share, he is entitled to contribution from his co-sureties (see 
 Contribution, § 2) ; and if one of them has become insolvent, the solvent 
 sureties may be compelled to contribute toward payment of the whole 
 debt, as if the insolvent surety had never been liable. 3 
 
 § 4. It is also a general rule that a surety is entitled to the benefit of 
 all the securities which the creditor has against the principal ; so that if 
 a debt is secured by a bond with a surety, and also by a mortgage, and the 
 surety pays the debt, he is entitled to stand in the place of the mortgagee 
 and obtain repayment out of the mortgaged property. 4 And by the 
 Mercantile Law Amendment Act, 1856, every surety who pays the debt or 
 performs the duty for which he is liable, is entitled to have assigned, to 
 himself or a trustee, every judgment, specialty or other security held by 
 the creditor, and to use the name of the creditor in any action or other 
 proceeding. 
 
 § 5. If the creditor releases the principal debtor, this will discharge 
 the surety from liability, unless the creditor reserves his rights against 
 the surety ; such a release is then in effect merely a covenant not to sue 
 the principal debtor. 5 (See Release, § 3 ; Joint, § 5.) The surety may 
 also be discharged by a variation of the contract by the creditor, or by 
 the substitution of a new contract before breach of the old one." 
 
 SURFACE. See Land, § 2 ; Minerals ; Support. 
 
 SURMISE is a suggestion or allegation. 
 
 § 2. In ecclesiastical practice, an allegation in a libel (q. v. § 5) is 
 called a surmise. A collateral surmise is a surmise of some fact not 
 appearing in the libel. 7 
 
 1 See Lakeman v. Mountstephen, L. R., 
 7 H. L. at p. 24. 
 
 2 See Chitty on Contracts, 485 et seq. ; 
 Snell's Eq. 389. 
 
 3 White & Tudor, L. C. i., notes to 
 
 Dering v. Earl of Winchelsea. 
 1 Ibid. 
 
 6 Green v. Wynn, 4 Ch. App. 204. 
 
 See De Colyar on Guarantees, ch. vi. 
 
 7 Phill. Eccl. Law, 1445. 
 
Surplusage law dictionary. Surrender 799 
 
 SURPLUSAGE is where there is something over or in excess. In 
 pleading, surplusage is the allegation of unnecessary matter, and is 
 forbidden. 1 
 
 § 2. Where A. holds land of B. in fee at a certain rent (e. g. five shillings), and B. Rent by 
 holds the same land of C. at a less rent (e.g. one shilling), and C. purchases A.'s estate, surplusage. 
 so that B.'s seignory or mesnalty (q. v.) becomes extinct ; here C. is bound to pay to B. 
 a rent equal to the difference between A.'s rent and B.'s rent (i.e. four shillings), and 
 this is called, in the old books, a rent by surplusage. 3 
 
 SURPRISE. — § 1. Where a person enters into a contract, convey- 
 ance, or the like, with excessive haste or want of deliberation, this fact 
 may give rise to the inference that there was no true consent, or that the 
 consent was not free, and that the transaction ought therefore to be set 
 aside on the ground of surprise or improvidence. 3 (See Catching Bar- 
 gains ; Undue Influence.) 
 
 § 2. In procedure, a judgment, nonsuit, or order may be set aside, or a 
 new trial ordered, on the ground of surprise, if the Court thinks that sub- 
 stantial injustice has been done. Thus, if a verdict is obtained by a trick, 
 a new trial will be ordered. 4 
 
 SURREBUTTER, under the former common law practice, was the 
 pleading which followed the rebutter. 5 The same name is generally ap- 
 plied to the corresponding pleading under the new system. (See Pleading, 
 §6.) 
 
 SURREJOINDER, under the old practice both at common law and 
 in chancery, was the pleading which followed the rejoinder. 6 It had long 
 been obsolete in Chancery. The same name is commonly applied to the 
 corresponding pleading under the new system. (See Pleading, § 6.) 
 
 SURRENDER, in the law of real property, "is a yeelding up an estate Freeholdland. 
 for life or yeares to him that hath an immediate estate in reversion or re- 
 mainder, wherein the estate for life or yeares may drowne [i.e. merge] by 
 mutuall agreement betweene them." 7 Thus, if A., being tenant in fee of 
 land, grants a lease for years to B., and B. surrenders the term to A., it 
 ceases to exist, being merged in A.'s reversion. § 2. Surrenders are of two In deed, 
 kinds — in deed and in law. A surrender in deed is one made by express 
 words. It must now, in every case, be effected by a deed. 8 Surrenders in In law. 
 law take effect by implication or operation of law, without express words. 
 Thus, if a lessee accepts a new lease incompatible with his existing lease, 
 this operates as a surrender in law of the latter. 9 (See Merger.) 
 
 § 3. A surrender is the principal mode of aliening copyholds. Every Copyholds, 
 tenancy in copyholds, though practically amounting to more or less abso- 
 
 1 Rules of Court, xix. I, 4 ; Stephen on 4 Archbold's Pr. 1220 ; Rules of Court, 
 
 Pleading (5), 467 ; Co. Litt. 303 b. xli. 6. 
 
 3 Litt. §§ 231, 232 ; Co. Litt. 150b, and 5 Stephen, PI. 64. 
 
 Hargrave's note, 309 b. 8 Ibid. ; Mitford, PI. 321. 
 
 3 Evans v. Llewellyn, 2 Bro. C. C. 150 ; ' Co. Litt. 337 b. 
 
 I Cox, 333 ; Pollock on Contract, 537. 8 Woodfall's L. & T. 270. 
 
 9 Co. Litt. 338 a ; Bl. Comm. ii. 326, n. 
 
8oo 
 
 Surrender 
 
 LAW DICTIONARY. 
 
 Surrender 
 
 Conditional. 
 
 Surrender to 
 uses of -will. 
 
 Dayne Sur- 
 render. 
 
 lute ownership, is in theory merely a tenancy at will, which is, of course, 
 incapable of being transferred as such by the tenant ; for if he attempted 
 to convey his interest by a common law conveyance, he would forfeit his 
 estate. 1 (See Tenant at Will.) Hence, when a copyholder wishes to 
 transfer his interest in the land, he surrenders it into the hands of the 
 lord, in favour of (technically, to the use of) the intended transferee, or 
 surrenderee, as he is called; and the lord thereupon admits the sur- 
 renderee, that is, accepts him as tenant in lieu of the surrenderor. 2 (See 
 Admittance.) "The essential part of a surrender appears to be the giving 
 up of the customary seisin to the lord ; and where this is effectually done, 
 the form of relinquishment is not, as it seems, essential, unless the rights 
 of a third person are injured." 3 § 4. Formal surrenders are made by the 
 surrenderor delivering to the lord, steward, or other person taking the 
 surrender, a rod, 4 straw, glove, or other symbol which represents the seisin 
 of the land. A memorandum of the surrender is entered on the court 
 rolls, and a copy of it, generally on parchment, and signed by the surren- 
 deror and steward, is delivered to the surrenderee. § 5. A mortgage of 
 copyholds is generally effected by a conditional surrender, or surrender 
 made upon condition that, on payment of the mortgage debt on a certain 
 day, the surrender shall be void. If the debt is not paid on the day fixed, 
 the mortgagor still has an equity of redemption in the same way as if the 
 land were freehold. 5 
 
 As to surrenders of copyholds for estates tail, and as disentailing assur- 
 ances, see Estate Tail, § 6. 
 
 § 6. Formerly, copyholds in some manors were not devisable at all, or 
 devisable subject to restrictions, while in many manors they were devis- 
 able by the testator making a surrender to the use of his will, and then 
 devising the land as he wished. This necessity was abolished by stat. 55 
 Geo. 3, c. 192 ; and, by the Wills Act, full provision was made for the 
 devise of copyholds in all cases. It seems, however, that a married woman 
 cannot devise her copyholds without a surrender to the use of her will, 
 made after separate examination by the steward, and with her husband's 
 assent; and that a joint tenant cannot devise his share without a previous 
 surrender. 6 
 
 § 7. Formerly, surrenders were usually made in Court, that is, at a cus- 
 tomary Court Baron (q. v.); and surrenders made "out of Court" (that is, 
 at any other place or time), were in some cases invalid, unless they were 
 afterwards presented in Court by the homage.' Now, however, the entry 
 of the surrender on the rolls of the manor is sufficient. 8 
 
 § 8. "In the extensive district comprised in the manor of Taunton Deane 
 in Somersetshire, there is a peculiar conveyance known as a Dayne Sur- 
 render, which is used when a copyholder alienes his tenement, but desires 
 to retain a part for his own life. The purchaser is admitted to the whole 
 
 1 Litt. § 74. 
 
 2 Ibid. 
 
 3 Elton, Copyh. 62. 
 
 4 See Verge. In practice the rod is 
 generally represented by an office ruler or 
 
 an umbrella. 
 
 6 Williams, R. P. 431. 
 B Elton, 85. 
 
 7 Watkins, Copyh. 79. 
 
 8 Stat. 4 & s Vict. c. 35, 
 
Surrogate law dictionary. Suspension 80 1 
 
 of the land (which is called the Dayne Tenement), and pays a fine of one- 
 third of the amount of an ordinary admittance fine, and further makes 
 himself responsible for the heriot to be paid on the death of the tenant 
 for life. On the death of the surrenderor, the whole land belongs to the 
 Dayne tenant." 1 (See Copyhold; Presentment, § 1 ; Admittance?) 
 
 § 9. A corporation created by charter may give up or surrender its Charter. 
 charter to the crown, unless the charter was granted under an act of par- 
 liament^.^., the Municipal Corporations Act, 1835), imposing indefeasible 
 duties on the bodies to which it applies. 3 
 
 SURROGATE is a person appointed by a bishop or an ecclesiastical 
 judge to act for him, 3 e. g., to grant licences of marriage. 4 
 
 SURVIVORSHIP is where a person becomes entitled to property 
 by reason of his having survived another person who had an interest in 
 it. The most familiar example is in' the case of joint tenants, the rule 
 being that on the death of one of two joint tenants the whole property 
 passes to the survivor. (But see Joint; Jus accrescendi.) Another example 
 is, the right of a wife — (i) to all her leaseholds not disposed of by her 
 husband during his lifetime by conveyance or other act inter vivos : b 
 (ii) to all her choses in action not reduced into possession by him : 
 (iii) to such of her reversionary interests as have not been disposed 
 of by her under Malins's Act 6 (see Chose in Action ; Reduction into 
 Possession; Reversionary Interest, § 3). 
 
 See Commorientes. 
 
 SUSPENSION. — I. § 1. An estate, interest, right or remedy is said Estate, right, 
 to be suspended when it is extinguished for a time, but may afterwards 
 revive: thus, if a copyholder in his own right become seised of the 
 manor in right of his wife, the copyhold interest in his land will be 
 suspended during the coverture ; so if a person holding land in fee by 
 certain rents or services, acquires the seignory during his life, the rents, 
 services, &c. are suspended during his life. 7 (See Unity oj Possession.) 
 
 II. § 2. In ecclesiastical law, suspension is of two kinds. Suspension Ecclesiastical 
 relating only to the clergy is where a clergyman is temporarily deprived : 
 either of his office or his benefice, or both : suspension from office ^ t beneficio ■ 
 prevents him from officiating as a minister; suspension from benefice 
 deprives him of the profits of the living. 8 The other sort of suspension, aD ingressu 
 which extends to the laity as well as the clergy, is suspension ab ingressu ecclesise. 
 ecclesiae, or from the hearing of divine service and receiving the holy 
 sacrament. 9 
 
 1 Elton, Copyh. 81. liams, R. P. 408. 
 
 2 Grant on Corporations, 45. 6 Williams, P. P. 433 etseq. 
 
 3 Phill. Eccl. Law, 1191. 1 Co. Litt. 313 a; Co. Copy. § 62; 
 
 4 Stat. 4 Geo. 4, c. 76, s. 18. Preston's Conv. iii. 9; Gale on Easements, 
 6 In the case of a married woman married 581 etseq. 
 
 since 9th August, 1870, leaseholds coming 8 Phill. Eccl. Law, 1375 ; Martin v. 
 
 to her during coverture under an intestacy Mackonochie, 4 Q. B. D. 697. 
 
 belong to her for her separate use (see 9 Phill. 1375. 
 Married Women's Property Acts) ; Wil- 
 
 S. 3 F 
 
802 Syndic LAW DICTIONARY. Tacking 
 
 SYNDIC. — Where a testator appoints a corporation aggregate to be 
 his executor, administration with the will annexed will be granted to 
 their syndic, that is, a person specially appointed by the corporation for 
 the purpose. 1 
 
 SYNDICATE is a mercantile term which has recently come into use 
 to denote an association of persons for a temporary purpose. Thus, 
 if several persons unite to subscribe for, or guarantee the subscription of, 
 an issue of shares or bonds, with a view to dividing the risk and the 
 profit, they are said to form a syndicate. Sometimes a syndicate is 
 formed, by persons who are individually possessed of property of the 
 same description (generally shares, or the like), and wish to subject it to 
 a common management, with a view to its realization, after which each 
 member takes the profit or loss accruing in respect of his proportion. 
 
 TACIT. — A communication of intention is said to be tacit when 
 it consists of mere silence. 3 
 
 As to the distinction between "tacit" and "constructive," "express" 
 and " implied," see those titles. 
 
 TACKING. — § i. In the law of mortgages, where land is mortgaged 
 by ordinary deeds of mortgage to several persons in succession, each 
 ignorant of the security granted to the other, the general rule is that 
 they rank in order of date. But the first mortgagee, who alone obtains 
 the legal estate, 3 has this advantage over the others, that if he takes 
 a further charge on a subsequent advance to the mortgagor, without 
 notice of any intermediate second mortgage, he will have priority in 
 respect of his subsequent advance over the second mortgagee : in other 
 words, he will be in the same position as if he had made his subsequent 
 advance at the same time that he made his original advance. And if a 
 third mortgagee, who has made his advance without notice of a second 
 mortgage, can procure a transfer to himself of the first mortgage, and 
 thus acquire the legal estate, he may tack or annex his third mortgage to 
 the first mortgage, and so postpone the second mortgagee : in other 
 words, he is in the same position as if he had advanced the amounts 
 of both the first and third mortgages at the date when the first 
 mortgage was made. § 2. The term " tacking," though especially applied 
 to the case of a subsequent mortgagee getting in the legal estate, is also 
 applied to the first case given above, namely, that of a first mortgagee 
 adding a subsequent advance to his first mortgage. The essentials to 
 
 1 Browne's Probate Pr. 129; Williams 3 As to the priorities where the first mort- 
 on Executors, 220. gage is an equitable one, see Priority. 
 
 2 Savigny, Syst. iii. 248. 
 
Tail LAW DICTIONARY. Taxation 803 
 
 the operation of tacking are — (i) possession of the legal estate ; (ii) ab- 
 sence of notice, at the time of making the advance to be tacked, of 
 the existence of the incumbrance which will be postponed. 
 
 § 3. Tacking was abolished from the 7th August, 1874, to the 1st 
 January 1876, by the operation of the Vendor and Purchaser Act, 1874; 
 it was restored as from the latter date by the Land Transfer Act, 1875, 
 without prejudice to anything done in the interval. 1 
 
 See Consolidation of Securities ; Mortgage ; Priority. 
 
 TAIL. See Estate Tail. 
 
 TALES (dissyllabic). — If, when a jury has been summoned, a sufficient 
 number of jurors do not appear, or, if by reason of challenges or 
 exemptions, a sufficient number do not remain to make up the proper 
 number, either party may pray a tales, that is, ask the Court to make up 
 the deficiency. A tales (Latin = such) is a supply of such men as were 
 summoned upon the first panel. For this purpose a writ of decern tales, octo 
 tales, used to be issued to the sheriff; but by stat. 6 Geo. 4, c. 50, s. 37, 
 the judge is empowered to award a tales de circumslantibus, that is, 
 to command the sheriff to return so many other men duly qualified as 
 shall be present or can be found, to be taken first from those summoned 
 on the common jury panel, if the deficiency is of special jurors, and if 
 there are not enough common jurors, then from any persons who are 
 present in Court or can be found. 2 The jurors so added are called 
 talesmen. 
 
 TAXATION — TAXES.— I. § 1. In public law, taxation signifies the 
 system of raising money for public purposes by compelling the payment 
 by individuals of sums of money called taxes. 
 
 § 2. Taxation is of two kinds. Some taxes are imposed on persons Imperial or 
 generally, without reference to locality, to raise money for the public parliamentary; 
 expenses of the United Kingdom ; other taxes are imposed on persons local, 
 residing, or owning or occupying property, within a certain district, to 
 raise money for the public expenses of that district. Taxes of the first 
 class are sometimes called imperial, being required for the imperium 
 or supreme government ; sometimes parliamentary, because their amount 
 is fixed by parliament. Taxes of the second class are called local, 
 parochial, municipal, &c, to denote that they are assessed and levied by 
 local authorities. More often still they are called " rates," and the term 
 "taxes" is confined to imperial taxes. (See Rates.) Tithes (q.v.) are 
 in the nature of local taxes, but are not usually so classified. 
 
 § 3. Imperial or parliamentary taxes include — customs; excise duties ; 
 stamp duties (including probate, legacy and succession duties) ; land tax ; 
 and income tax (see the various titles ; also Consolidated Fund). As to 
 
 1 Williams, R. P. 440 ; Fisher on Mort- old practice of directing a decern or octo 
 g a g e > 599 et seq. ; White & Tudor, L. C. tales to be summoned still applies to trials 
 i. 550. at bar, as the stat. 6 Geo. 4 is confined to 
 
 2 Bl. Comm. Hi. 364 ; Steph. Comm. iii. trials at nisi prius. Archb. Pr. 347. 
 528, iv. 424. It is said, however, that the 
 
 3 F 2 
 
8o4 
 
 Taxation 
 
 LAW DICTIONARY. 
 
 Taxation 
 
 "assessed taxes" (popularly called "queen's taxes," to distinguish them 
 from local taxes or rates), see Excise. 
 
 Of costs. II, §4. In procedure, taxation is the process of going through, and, 
 
 if necessary reducing, the bill of costs of an attorney or solicitor by a 
 judicial officer. In the Queen's Bench Division, this process is performed 
 by the Masters of the Supreme Court (q. v.) ; in the Chancery Division, 
 by the Taxing Masters (see Masters, § 2) ; in the Probate, Divorce and 
 Admiralty Division, and in the Court of Bankruptcy and the County 
 Courts, by the respective registrars. (See Registrar, §§ 2, 3, 9, 17.) 
 
 Taxation is of two kinds, taxation in an action, matter or other judicial 
 proceeding, and taxation under the Attorneys and Solicitors' Act (6 & 7 
 Vict. c. 73). 
 
 In a cause, &c. § 5. Taxation of the former kind takes place where costs are awarded 
 to a party and made payable either — (i) by his opponent, or (ii) out 
 of a trust fund or the estate of a deceased person, &c. In the former 
 case, the taxation is voluntary, that is, the person who is ordered to pay 
 the costs is entitled to have them taxed, but he may pay them without 
 taxation if he likes : in the latter case, the taxation is generally compul- 
 sory, that is, the costs must be taxed for the protection of the persons 
 interested in the fund or estate, unless they are all sui juris and dispense 
 with taxation. Taxation of the latter kind appears to occur only in 
 chancery and probate actions. 
 
 Review of. § 6. When a party has reason to complain of the manner in which the 
 
 master (or other officer) has taxed the costs, he may carry in objections 
 before the master, showing the items objected to, and apply to the master 
 to review his taxation. If the objecting party is dissatisfied with the 
 decision of the master, he may apply to a judge at chambers for an order 
 to review the taxation, and the judge then decides (subject to an appeal) 
 whether the objection is well founded. 1 
 
 § 7. In the Chancery Division, when an interlocutory order directs the 
 payment of costs by one party to another, the latter is entitled to have 
 them taxed and paid at once. In the Queen's Bench Division, there is 
 generally only one taxation of costs in an action, however many interlo- 
 cutory applications there may have been ; but this rule does not apply to 
 orders of the Court of Appeal. 2 
 
 As to taxation between party and party, and between solicitor and 
 client, see Costs, §§ 8 et seq. 
 
 Under statute. § 8. Taxation under the Attorneys and Solicitors' Act is the remedy for 
 a person who is dissatisfied with a bill of costs rendered to him by his 
 solicitor, whether for services in an action, &c, or in non-contentious 
 business, such as conveyancing. The general rule is that a client can 
 only tax an unpaid bill within a year after it has been delivered, unless 
 there are special circumstances, and that he cannot tax it after it has been 
 paid, unless it was paid under pressure or under protest, &c, and in no 
 case after a year from the payment. On the other hand, a solicitor cannot 
 commence an action for the recovery of costs until a month after he has 
 
 1 Rules of Court (Costs), 32. 
 
 Phillies v. Phillips, 5 Q. B. D, 60, 
 
Taxing Officer law DICTIONARY. Tenancy in Common 805 
 
 delivered to the client a signed bill, that is, a bill signed by him or 
 enclosed in or accompanied by a letter signed by him, and if the client 
 applies for taxation the solicitor is restrained from commencing an action 
 for his costs pending the taxation. 1 
 See Higher and Lower Scale. 
 
 TAXING OFFICER. — Each house of parliament has a taxing 
 officer, whose duty it is to tax the costs incurred by the promoters or 
 opponents of private bills. 2 (See Taxation, §§ 4. et seq.). 
 
 TEMPORALITIES of a bishop are all such things as he has by 
 livery from the crown, as castles, manors, lands, tenements, tithes, &c. 3 
 During a vacancy of a bishopric the crown has the custody of the 
 temporalities, and (nominally) the rents and profits thereof. 1 (See 
 Guardian of the Spiritualities.) 
 
 TENANCY is the relation of a tenant to the land which he holds. 
 Hence it signifies (1) the estate of a tenant, as in the expressions "joint 
 tenancy, "tenancy in common ;" (2) the term or interest of a tenant for 
 years or at will, as when we say that a lessee must remove his fixtures 
 during his tenancy. (See Fixtures, § 3.) In old writers, "tenancy" 
 sometimes denotes the land itself: "the tenant may plead that the 
 tenancy is extra feudum of him ; " 5 this use of the word is obsolete. (See 
 Tenant ; Tenure.) 
 
 TENANCY IN COMMON, in the strict sense of the term, is 
 where two or more persons are entitled to land in such a manner that 
 they have an undivided possession but several freeholds : that is, no one 
 of them is entitled to the exclusive possession of any particular part of 
 the land, each being entitled to occupy the whole in common with the 
 others, or to receive his share of the rents and profits ; and on the death 
 of any one of them his share passes, not to the survivors, but to his heir 
 or devisee, who then becomes tenant in common with the survivors. 
 Tenants in common may acquire land by several titles, or in several 
 rights, or at different times, and hence the only characteristic common to 
 joint tenants and tenants in common is that of undivided possession. 6 
 
 § 2. Persons may also be tenants in common of chattels real or 
 personal, so that on the death of one of them his share passes to his 
 personal representatives.' 
 
 See Coparcenary ; Joint Tenancy ; Estate; Partition; Prescription, note (7), 
 p. 632 ; Severalty; Unity of Possession. 
 
 1 As to taxation generally, both in s Phillimore Eccl. Law, 78. 
 causes and under the statute, see Daniell, * Stepli. Comm. ii. 530. 
 Ch. Pr. 1238, 1726; Archbold's Pr. 120, 6 Co. Litt. 1 b. 
 
 430. " Litt. $ 292; Co. Litt. 188 b ; Williams, 
 
 As to taxation of parliamentary costs, R. P. 138; White & Tudor's L. C. i. 160 
 
 see stats. 10 & 11 Vict. c. 69; 42 & 43 et seq. 
 
 Vict. c. 17 ; May Pari. Pr. 842. ' Litt. \\ 319 et seq. 
 
 2 May Pari. Pr. 843. 
 
806 Tenant law dictionary. Tenant at Will 
 
 TENANT. — § i . Strictly speaking, a tenant is a person who holds 
 land ; but the term is also applied by analogy to personalty: thus we speak 
 of a person being tenant for life or tenant in common of stock. 
 
 § 2. In its proper use, "tenant" connotes either estate or tenure. 
 Every person who has an estate in land is a tenant ; thus, a person who 
 has an estate in fee simple is a tenant in fee simple, and a person who 
 has an estate in joint tenancy is a joint tenant (see the following titles). 
 Again, every tenant holds the land by tenure, " because all the lands and 
 tenements in England in the hands of subjects are holden mediately or 
 immediately of the king. . . . And therefore the king in this sense 
 cannot be said to be a tenant, because he hath no superior but God 
 Almighty." 1 In this sense "tenant" is opposed to "lord" (g. v., and see 
 Tenure). 
 
 § 3. In its more popular sense, "tenant" signifies a lessee of land or 
 buildings for occupation, agriculture, &c. (See Lease; Landlord and 
 Tenant; Term, §3.) 
 
 TENANT AT SUFFERANCE is a person who has originally 
 come into possession of land by a lawful title, and holds such possession 
 after his title has determined. " A tenant at sufferance is he that at the 
 first came in by lawfull demise, and after his estate ended continueth in 
 possession and wrongfully holdeth over. As [where] tenant pur terme 
 d'auter vie continueth in possession after the decease of cestui que vie, or 
 [where] tenant for yeares holdeth over his terme." 2 A tenancy at suffer- 
 ance is a chattel interest. (See Chattel ; Estate, § 5.) 
 
 § 2. At common law, a tenant at sufferance is not a trespasser until the 
 lessor or person entitled to the possession enters on the land, because 
 his continuance in possession is imputed to the laches of the lessor in 
 not entering at once; 3 but this doctrine has been modified by statute. 
 (See Holding over.) 
 
 TENANT AT WILL " is where lands or tenements are let by one 
 
 man to another, to have and to hold to him at the will of the lessor, by 
 force of which lease the lessee is in possession. In this case the lessee 
 is called tenant at will, because he hath no certain nor sure estate, for 
 the lessor may put him out at what time it pleaseth him." 4 Similarly the 
 tenant may leave when he likes. He has a right to emblements (q. v.), 
 and to remove his goods, &c, if he is turned out by the landlord. He is 
 liable for voluntary waste. 
 
 § 2. A tenancy at will may be created by parol (if followed by entry) or 
 by deed. It may be determined not only by the will of either party, but 
 also if the tenant should assign his estate to another, or if he should 
 commit waste. 5 As this kind of letting is very inconvenient to both 
 parties, it is scarcely ever adopted ; and in construction of law, a lease at 
 an annual rent, made generally without expressly stating it to be at will, 
 
 1 Co. Litt. 1 a. 4 Li tt- § 68. 
 
 » Ibid. 57 b. 6 Co . ijtt. 57 a. 
 
 3 Ibid. 3 ' 
 
Tenant by Copy law dictionary. Tenant for Years 807 
 
 and without limiting any certain period, is not a lease at will, but a lease 
 from year to year. 1 (See Tenancy from Year to Year.) 
 
 A tenancy at will is a chattel interest in land. 2 (See Chattel; Estate, 
 §5-) 
 
 TENANT BY COPY OF COURT ROLL (shortly, "tenant 
 by copy") is the old-fashioned name for a copyholder. 3 (See Copy- 
 holds!) 
 
 TENANT BY THE CURTESY. See Curtesy. 
 
 TENANTS BY THE VERGE " are in the same nature as tenants 
 by copy of court roll [that is, copyholders]. But the reason why they be 
 called tenants by the verge, is, for that when they will surrender their 
 tenements into the hands of their lord to the use of another they shall 
 have a little rod (by the custome) in their hand, the which they shall 
 deliver to the steward or to the bailife .... and the steward or 
 bailife according to the custome shall deliver to him that taketh the land 
 the same rod, or another rod, in the name of seisin ; and for this cause 
 they are called tenants by the verge, but they have no other evidence 
 [title deed] but by copy of court roll." 1 (See Surrender, § 4.) 
 
 TENANT FOR LIFE is a person who is entitled to land or tene- 
 ments either for the term of .his own life or for that of another person. 
 In the latter case he is called tenant pur auter vie, and the person for 
 whose life the land is holden is called the cestui que vie. 5 (See Occupancy, 
 §§ 3 et seq.) 
 
 § 2. An estate for life may be created by deed of grant or feoffment, or 
 by will. At the present day estates for life are principally created by 
 settlements and wills : as where property is given to a man for his life, 
 and after his death to his children. (See Assignment ; Heir, § 9; Sur- 
 render.) 
 
 § 3. An ordinary tenant for life is not allowed to commit waste, but if 
 his estate is given to him without impeachment of waste he may cut 
 timber and open mines, &c, so long as he does not commit equitable 
 waste. 6 (See Waste.) As to leases by tenants for life, see Settled Estates 
 Act. See also Emblements ; Improvement of Land Acts. 
 
 § 4. Where a person has a life interest in a chattel (e. g., in a sum of Of chattels. 
 stock), he is sometimes called a tenant for life. 
 
 TENANT FOR YEARS.— § 1 . "Tenant for terme of yeares is where 
 
 a man letteth lands or tenements to another for terme of certaine yeares, 
 
 rafter the number of yeares that is accorded between the lessor and the 
 
 lessee. And when the lessee entreth by force of the lease, then is he 
 
 1 Williams, R. P. 373 : Woodfall's L. & « Litt. § 78 ; Co. Litt. 61 a. 
 
 T. 208. 6 Litt. § 56 ; Co. Litt. 41b; Williams, 
 
 2 Williams, R. P. 390. R. P. 16 et seq. 
 
 3 Litt. $ 73. 6 Williams, 25. 
 
808 Tenant from Year, &c. law dictionary. Tenant in Tail, &c. 
 
 tenant for terme of yeares ; and if the lessor in such case reserve to him a 
 yearely rent upon such lease, he may chuse for to distraine for the rent in 
 the tenements letten, or else he may have an action of debt for the arrerages 
 against the lessee." 1 A tenant for years is liable for waste (q. v.). 2 
 
 § 2. The expression "tenant for years" is not much used at the present 
 day. Where a term is created by an ordinary lease, the tenant is called 
 lessee. As to his rights and liabilities, see Lease; Landlord and Tenant; 
 Fixtures; Interesse Termini. If the term is one of those long terms created 
 by settlements and the like, under which no rent, covenants, &c. are re- 
 served, the tenant is called a "trustee of the term." (See Term, § 3.) 
 
 TENANT FROM YEAR TO YEAR is a tenant of land whose 
 tenancy can only be determined by a notice to quit expiring at that period 
 of the year at which it commenced. In the case of ordinary tenancies 
 from year to year a six months' notice to quit is required. 3 Thus, if a 
 house is held on a tenancy from year to year, beginning at Midsummer, 
 and either the landlord or the tenant wishes to determine it, he must, at 
 or before Christmas, give notice to the other to quit at Midsummer fol- 
 lowing. 
 
 § 2. A tenancy from year to year of land subject to the provisions of 
 the Agricultural Holdings Act, 1875 (q. v.), requires a year's notice to 
 quit. 4 
 
 § 3. Whenever one person holds land of another, and there is no express 
 limitation or agreement as to the term for which it is to be held, then, if 
 the rent is payable with reference to divisions of the year (e.g., quarterly), 
 the tenancy is deemed to be a tenancy from year to year. 5 (See Tenant at 
 Will.) 
 
 TENANT IN FEE. See Fee. 
 
 TENANT IN TAIL. See Estate Tail. 
 
 TENANT IN TAIL AFTER POSSIBILITY OF ISSUE 
 EXTINCT "is where tenements are given to a man and his wife in 
 especiall taile. If one of them die without issue, the survivor is tenant in 
 taile after possibility of issue extinct," 6 because there is no possibility of 
 issue being born capable of inheriting the estate. And so if tenements 
 are given to a man and the heirs of his body by his present wife, and the 
 wife dies without issue, then the husband is tenant in tail after possibility 
 of issue extinct, 7 because no issue by another wife could inherit the 
 estate tail. Such a tenant is, in effect, only a tenant for his own life ; for 
 he cannot bar the entail ; 8 and on his death the estate will pass to the 
 person next entitled in remainder or reversion. The tenancy has, how- 
 
 1 Litt. $ 58. 5 Woodfall's Landlord & Tenant, lxvi. 
 
 2 Ibid. § 67. 201, 300. 
 
 3 Williams, R. P. 391. 6 Lj tt . § 32. 
 
 4 Stat. 38 & 39 Vict. c. 92; Woodfall, 7 Ibid. 33. 
 
 302. 8 3 & 4 Will. 4, c. 74, s. 18. 
 
Tenant in Tail, &c. LAW DICTIONARY. Tender 809 
 
 ever, some of the privileges of an estate tail, e. g., the tenant is not 
 punishable for waste. 1 (See Estate Tail.) 
 
 TENANT IN TAIL EX PROVISIONE YIRI.— A woman was said to 
 be tenant in tail ex provisione viri where she had an estate tail, either alone or jointly 
 with her husband, in any lands or hereditaments inherited or purchased by her husband, 
 or given to the husband and herself by any of the ancestors of the husband. Such a 
 tenant in tail could not bar the entail after the death of the husband except with the 
 consent of the issue in tail. 2 This kind of estate no longer exists. 3 
 
 TENANT TO THE PRECIPE.— Before the Fines and Recoveries Act, if 
 land was conveyed to a person for life with remainder to another in tail, the tenant in tail 
 in remainder was unable to bar the entail without the concurrence of the tenant for life, 
 because a common recovery could only be suffered by the person seised of the land. In 
 such a case, if the tenant for life wished to concur in barring the entail, he usually 
 conveyed his life estate to some other person in order that the praecipe in the recoveiy 
 might be issued against the latter, who was therefore called the tenant to the praecipe. 4 
 (See Pracifce, § 3 ; Recovery, \ 7.) 
 
 TENANT-RIGHT.— I. § 1. In agricultural districts, tenant-right Agricultural 
 signifies the right of a tenant to claim a beneficial interest in the land, an s ' 
 notwithstanding the expiration of his lease. In England, different usages 
 have long prevailed in different counties and districts, conferring on an 
 outgoing agricultural tenant a claim to remuneration for various opera- 
 tions of husbandry, from reaping the advantage of which he is prevented 
 by the termination of his tenancy. Thus, by what is called the Lincoln- 
 shire tenant-right custom, if a tenant spreads chalk or bones upon the 
 land, the money expended in this operation is divided by a certain number 
 of years (three to seven) ; and if the tenant quits before the expiration of 
 that period, he receives from the landlord a part of his outlay, propor- 
 tionate to the number of years of the period remaining unexpired. 5 
 
 § 2. A kind of statutory tenant-right has been created in some cases by 
 the Agricultural Holdings Act, 1875 {q . v.). 
 
 II. § 3. Tenant-right estates are a peculiar kind of customary free- Tenant-right 
 holds, found in the north of England. Although they appear to have es a es- 
 many qualities and incidents which do not properly and ordinarily 
 belong to villenage or copyhold tenure : and also to have originally had 
 some which savoured more of military tenure by knight- service : and to 
 want some of the characteristic qualities and circumstances which belong 
 to copyhold tenure (namely, in not being holden at the will of the lord 
 and in not being alienable by surrender and admittance) : it seems to be 
 settled that these customary tenant-right estates are not freehold, but 
 copyhold. 6 (See Customary Freeholds?) 
 
 TENDER.— § 1. A tender is an offer by a debtor to his creditor of 
 the amount of the debt. The offer must be in money, which must be 
 
 1 Co. Litt. 27 b; Litt. § 34. 4 Williams on Seisin, 169. 
 
 2 Stats. 11 Hen. 7, c. 20; 32 Hen. 8, 6 Rep. on Agric. Customs, 16 et seq.; 
 c. 36 ; Co. Litt. 326 b. Cooke's Agric. Holdings Act, 6. 
 
 a 3 & 4 Will. 4, u. 74, s. 16 ; Shelford, 6 Doe v. Huntingdon, 4 East, 271, cited 
 
 R. P. Stat. 322. by Elton, Copyh. 6. 
 
8io 
 
 Tenement 
 
 LAW DICTIONARY. 
 
 Tenendum 
 
 actually produced to the creditor, unless by words or acts he waives 
 production : therefore, a mere statement by the debtor that he has the 
 money in his possession ready for payment is not sufficient, even if the 
 creditor says he will not receive it. 1 But if the debtor brings the money 
 in purses or bags, it is not necessary to show or count it, because that is 
 "the usuall manner to carry money in, and then it is the part of the'party 
 that is to receive it to put it out and tell it." 3 The offer must also be 
 unconditional. If the debtor requires a receipt, he must prepare and 
 stamp it, and ask the creditor to sign it, and if the latter refuses to do so 
 he is liable to a penalty. 3 
 
 Plea of tender. § 2. If a debtor has made a tender, and continues ready to pay, he is 
 exonerated from liability for the non-payment, but the debt is not dis- 
 charged. Therefore if he is sued he should plead the tender, and also 
 allege that he always was and still is ready to pay the debt, and he 
 must pay the money into Court : if he can maintain the defence of tender 
 and readiness to pay, he will be entitled to judgment for his costs. 4 
 
 Legal tender. § 3. Money is said to be legal tender when a creditor cannot refuse to 
 accept it in payment of a debt. Coins issued by the Royal Mint for 
 circulation in the United Kingdom are legal tender ; gold coins up to any 
 amount, silver up to 2/., and bronze coins up to is. Gold coins coined 
 at certain colonial mints are also legal tender in this country. Notes of 
 the Bank of England are legal tender. 6 
 
 Goods. § 4. The term "tender" is also applied to goods when they are 
 
 offered to a person in performance of a contract for their delivery. 
 
 TENEMENT signifies a thing which is the subject of tenure (q. v.). 
 The term " includeth not only all corporate inheritances [t. e., corporeal 
 hereditaments] which are or may be holden, but also all inheritances 
 issuing out of any of those inheritances, or concerning, or annexed to, 
 or exercisible within the same, though they lie not in tenure ... as 
 rents, estovers, commons, or other profits whatsoever granted out of 
 land ; or uses, offices, dignities, which concerne lands or certain places 
 . . . because all these savour of the realtie." 6 But a personal here- 
 ditament, such as an annuity granted to a man and his heirs, is not a 
 tenement. (See Hereditament ; Estate Tail, § 5 ; Land.) 
 
 § 2. In popular language, "tenement" means a house. (See Mes- 
 suage.) 
 
 As to " dominant " and " servient " tenements, see Easement. 
 
 Etymology.] — Norman-French, tenement,'' from Latin, tenere, to hold. 
 
 TENENDUM.— (Latin = " to be held "). In a deed of conveyance 
 of land, the tenendum is the clause which formerly indicated the tenure by 
 which the grantee was to hold the land of the grantor — " tenendum de me et 
 
 1 Leake on Contracts (2nd edit.), 862 ; 
 Thomas v. Evans, 10 East, 101. 
 3 Co. Litt. 208 a. 
 
 3 Leake, 866 ; Laing v. Meader, 1 C. & 
 P. 257. 
 
 4 Leake, 859. 
 
 6 Ibid. 863; Coinage Act, 1870; Colo- 
 nial Branch Mint Act, 1866; stat. 3 & 4 
 Will. 4, c. 98. 
 
 6 Co. Litt. 19b, 6a; Perkins, § 114. 
 
 7 Britton, 163. 
 
Tenor law dictionary. Tenure 8n 
 
 hmredibus meis sibi et hceredibus suis, per servitium," &c. When the statute 
 Quia Emptores abolished subinfeudation, the clause was altered to indicate 
 that the grantee was to hold of the superior lords — " tenendum de capi- 
 talibus dominis ;" but now it simply says that the land is to be held by the 
 grantee, without mentioning of whom. 1 (See Tenure; To have and to 
 hold; Habendum; Quia Emptores.) 
 
 TENOR. — The tenor of a document is its purport and effect, as 
 opposed to the exact words of it. Thus, on a writ of certiorari (q. v.) it 
 is sometimes sufficient to certify the tenor of the record, while in other 
 cases the record itself must be certified. 2 
 
 As to an executor according to the tenor of the will, see Executor, § 3. 
 
 TENTERDEN'S ACT is the statute 9 Geo. 4, c. 14. It is a sup- 
 plement to the Statute of Frauds (q. v.) and requires the following pro- 
 mises and engagements to be in writing: (i) an acknowledgment of a 
 debt barred by the Statute of Limitations ; the act further provides that 
 an acknowledgment by one joint contractor shall not affect the others 
 (see Acknowledgment, § 1 ; Limitation, § 8) : (ii) a promise to pay a debt 
 incurred, or a ratification of a contract made, during infancy (see Infant) : 
 (iii) a representation as to a person's character, ability, &c. made to enable 
 him to obtain money or goods upon credit : 3 (iv) executory contracts for 
 the sale of goods, as to which see Statute 0/ Frauds.* 
 
 TENTHS are the tenth part of the annual profit of an ecclesiastical 
 benefice according to the valuation contained in the Valor Beneficiorum or 
 King's Books, compiled in Henry VIII. 's reign. 5 As to the origin and 
 history of tenths, see First Fruits. § 2. These ecclesiastical tenths must 
 not be confounded with the tax consisting of one-tenth of every man's 
 whole personal property, formerly levied by the crown under the name of 
 tenths. 6 
 
 TENURE. — I. § 1. Tenure in its general sense is a mode of holding Offices, &c. 
 or occupying : thus we speak of the tenure of an office, meaning the 
 manner in which it is held, especially with regard to time (tenure for life, 
 tenure during good behaviour), and of tenure of land in the sense of 
 occupation or tenancy, especially with reference to cultivation and 
 questions of political economy, e. g., tenure by peasant proprietors, 
 cottiers, &c. 7 
 
 II. § 2. In its more technical sense, tenure signifies the mode in Land, 
 which all land in England is theoretically owned and occupied. The rule 
 is that no person except the Queen can be the absolute owner of land in 
 
 1 Sheppard, Touch. 79 ; Williams on 4 Williams P. P. 104 et seq. 
 Seisin, 9. s Steph. Comm. ii. 533. 
 
 2 Gilb. Exec. 143. 6 Ibid. 554. 
 
 3 The words of the statute have been 7 J. S. Mill, Polit. Econ. bk. ii. ch. 9 ; 
 misplaced : it reads " obtain credit, money the Cobden Club Essays on the Tenure of 
 or goods upon." See Williams P. P. 106. Land ; Reports by CodsuIs on Tenures. 
 
8l2 
 
 Tenure 
 
 LAW DICTIONARY. 
 
 Tenure 
 
 Perfect. 
 
 In capite ; 
 
 mesne. 
 In gross. 
 
 Imperfect. 
 
 Lay. 
 Free. 
 
 Base. 
 Customary. 
 
 England, because all ' lands in the hands of subjects are held of some 
 superior, and mediately or immediately of the crown; that is, every 
 person who is possessed of land is theoretically merely a tenant and owes 
 obligations in respect of it either to the crown or to an intermediate lord. 
 The manner of his possession is called tenure, and the extent of his 
 interest is called an estate (q. v.). The rule is a relic of the feudal 
 system, and can only be understood with reference to it ; x in practice it 
 has but little effect except in respect of manors and copyhold land, an 
 ordinary tenant in fee simple of freehold land being to all intents and 
 purposes absolute owner. (See Feudal System; Escheat; Copyhold; 
 Lord; Tenant; Tenement; Fealty; Homage; Service; Manor.) 
 
 I. § 3. With reference to the relation between the lord and the tenant, 
 a tenure is either perfect or imperfect. A perfect tenure is where one 
 person holds land of another, or of the crown, in fee simple, and this is 
 accordingly subdivided into (a) tenure in capite or in chief, which is the 
 tenure existing between the crown and those who hold land of it directly; 2 
 and (b) mesne tenure, which is where one subject holds land of another. 
 (See Mesne.) § 4. When land is held of a private person merely by 
 reason of his having the seignory of that particular land, the tenure is 
 technically called a tenure in gross, as opposed to the case of land being 
 held of a person in his capacity of owner of a manor, county palatine or 
 the like. 3 § 5. Imperfect tenure is that which exists between a tenant of 
 land and a person to whom he has granted a smaller estate than his own, 
 as where a tenant in fee simple creates an estate in tail or for years. 
 § 6. An imperfect tenure may be created by anyone at the present day, 
 while a perfect tenure can now only be created by the crown.* (See 
 Su binfeudation . ) 
 
 II. With reference to the services to which they give rise, tenures are 
 of various kinds. 5 (See Service, § 1.) 
 
 1. § 7. Temporal or lay tenures are those by which land is or used to 
 be held by secular persons. They are of two kinds according as their ser- 
 vices were originally free or base. (A) To the former class (frank or free- 
 hold tenure) belong (a) knight's service with its varieties (grand serjeanty, 
 escuage, castle ward and cornage, which are commonly called feudal 
 tenures par excellence, and have all been abolished by being converted 
 into common socage), and (b) free socage with its varieties (petty serjeanty, 
 burgage tenure, borough-English and gavelkind). (B) Base or villein 
 tenures are (a) pure villenage, which no longer exists, except in the form of 
 copyhold and customary freehold tenures; and (b) the obsolete privileged 
 villenage orvillein socage, from which is derived tenure in ancient demesne. 
 (See the various titles ; also Tenant-Right, § 3). § 8. Copyhold, ancient 
 demesne and customary freehold are sometimes called customary tenures, 
 because they depend on local custom, and not on the general law. 9 
 
 1 Wright on Tenures, passim. 
 
 2 Bl. Comm. ii. 60. As to the proper 
 meaning of the expression, see In Capite. 
 
 3 Co. Litt. 108 a. 
 * Co. Copyh. 48. 
 
 6 Bl. ii. 60; Stephen's Comm. i. 186. 
 
 6 Elton, Copyh. 7. There are some- 
 times customs incident to the tenure of a 
 freehold estate in fee simple, but this does 
 not make the tenure a customaiy one : 
 Williams on Seisin, 1 1 ; Blount's Tenures, 
 passim. 
 
Tenure law dictionary. Term 813 
 
 2. § 9. Ecclesiastical or spiritual tenures are : tenure in frankalmoign, Ecclesiastical 
 and tenure by divine service (q. v.)} or s $ iritual - 
 
 Etymology.]— Norman-French, tenure; from Latin, tenere, to hold. 2 
 
 TENURE BY DIVINE SERVICE is where an ecclesiastical 
 corporation, sole or aggregate, holds land by a certain divine service, 
 as to say prayers on a certain day in every year, " or to distribute in almes 
 to an hundred poore men an hundred pence at such a day." 3 This tenure 
 differs from frankalmoign in the service being certain, in consequence of 
 which the lord may distrain if the service is not performed. Fealty is also 
 due by the tenant. 4 (See Frankalmoign ; Service, § 2 ; Tenure?) 
 
 TERM. — I. § 1. In the law of real property, a term of years is where Term of years. 
 a man lets lands or tenements to another for a certain number of years, 5 
 as in the case of an ordinary lease for seven years ; the word "term" not 
 only signifies the limit of time, but also the estate and interest that pass 
 for that time, so that if a lease is surrendered before the expiration of the 
 time, the term is at an end. 6 A tenant for term of years is called in the Termor, 
 old books a termor. 7 
 
 § 2. A term is personal property (see Chattels; Estate, § 5; Survivorship'), 
 except in the respects mentioned in the title Leaseholds. 
 
 § 3. In practice, the word "term" is seldom applied to a term of years "Term" and 
 granted for the purpose of occupation by the termor, such a term being " lease - ' 
 described as a lease (q. w.), 8 while " term" generally signifies a long term 
 of years granted, not for the purpose of occupation by the grantee, but as 
 security for the performance of an obligation, such as the payment of 
 money. 9 For this purpose it is often more convenient to limit a long 
 term to the person in whose favour the obligation is created, and to allow 
 the ownership of the property, subject to the term, to remain in the person 
 entitled to the enjoyment of it, than to transfer the whole ownership as 
 security, as in the case of a mortgage {q. v.). Thus, when land is settled 
 on the marriage of the owner, it is usual to provide for the payment of a 
 jointure to the wife, and of portions for the younger children, without 
 interfering with the possession of the estate by the husband. This is 
 done by vesting long terms of years (from 99 to 1,000) in trustees, 
 upon trust, out of the rents and profits of the estate, or by sale or mort- 
 gage thereof for the whole or any part of the term, to raise the money 
 required, and upon trust to permit the tenant for life to receive the 
 residue of the rents and profits. In practice, however, the power thus 
 created of receiving the rents directly from the tenants, or of selling or 
 mortgaging the term, is rarely exercised, except for raising gross sums 
 
 1 Co. Litt. 95 a. As to tenure by pri- in free alms (frankalmoign). Britton, 164 b. 
 oritv and posteriority, see 1 Rep. 102b. i Ibid.; Co. Litt. 966. 
 
 note. F ' • Litt. §58. ^ 
 
 2 Britton, 162 b ; Co. Litt. 1 a. As to ° Co. Litt. 45 b. 
 the origin of tenures, see Maine, Early 7 Litt. § 60. 
 
 Inst. 119 et sea. 8 See Belaney v. Belaney, L. R., 2 Ch. 
 
 3 Litt. § 137. It was originally called 138. 
 
 tenure in alms, as distinguished from tenure 3 Williams, R. P..412. 
 
814 
 
 Term 
 
 LAW DICTIONARY. 
 
 Term 
 
 Attendant 
 term. 
 
 (<?. g., portions), as it is to the advantage of the tenant for life to keep 
 down the annuities so that he may not be disturbed in the possession of 
 the land. 1 § 4. Terms created in this manner are called pin-money- 
 terms, jointure-terms, portions-terms, &c. according to the purposes for 
 which they are created. 2 (See Settlement, § 4.) 
 Satisfied term. § 5. When the purpose for which a term has been created is accom- 
 plished, the term is said to be satisfied. (See Cesser?) 
 
 § 6. Formerly, when a term had become satisfied, it was usual in some 
 cases to keep it on foot " in trust to attend the inheritance," as it was 
 expressed. Thus, if property subject to a long term was sold, so that 
 the powers of raising portions, &c. out of the land were no longer 
 exerciseable, the purchaser often preferred to keep the term on foot, 
 because it protected him from any unknown incumbrances on the free- 
 hold created by the former owner since the commencement of the term, 
 such incumbrances being postponed until the expiration of the term. 
 The purchaser, therefore, would have the term assigned to a trustee 
 in trust for him, his heirs and assigns, and to attend the inheritance. 
 Such a term was called an attendant term, while an ordinary term was 
 called a term in gross. 3 Now, by the stat. 8 & 9 Vict. c. 112, every term 
 becoming attendant upon the inheritance of land, immediately ceases 
 and determines ; but the protection afforded by attendant terms existing 
 before the act is preserved. 4 
 
 § 7. By the Conveyancing Act, 1881, where a residue unexpired of 
 not less than 200 years of a term which, as originally created, was for not 
 less than 300 years, is subsisting in land, without any trust or right of 
 redemption affecting the term in favour of the freeholder or reversioner, 
 and without any rent having a money value, then (i) any person bene- 
 ficially entitled, in right of the term, to possession of any land comprised 
 in the term, or (ii) any person who is in receipt of the income" of the 
 land in right of the term, or in whom the term is vested in trust for sale, 
 or (iii) any person in whom the term is vested as personal representative 
 of any deceased person, may by deed declare that the term shall be 
 enlarged into a fee simple. Thereupon the term is enlarged accordingly, 
 and the person in whom the term was vested acquires the fee simple, 
 subject to ,the same trusts, powers, rights, obligations, &c. as the term 
 would have been subject to. 5 " Numerous instances occur in practice in 
 which estates really held merely for the residue of long terms are 
 practically treated as freehold. This section enables such terms, when 
 the residue is not less than 200 years and the original term not less than 
 300 years, to be enlarged into a fee simple." 6 
 
 II. § 8. "Term" also signifies a portion of the year during which, 
 according to the former practice of the Courts, judicial business could 
 
 Term in 
 
 gross. 
 
 Enlargement 
 of terms. 
 
 Law terms. 
 
 1 Williams, 413 ; Elphinstone, Conv. 
 325. 
 
 2 Elphinstone, 328. 
 
 3 As to the rule that the beneficial in- 
 terest in an attendant term did not pass 
 by a general bequest, see Co. Litt. in b ; 
 
 Hargrave's note (3) ; Gunter v. Gunter, 
 23 Beav. 571 ; Belaney v.Belaney, L. R., 
 2 Ch. 138. 
 
 4 Williams, 416 et seq. 
 
 6 Sect. 65. 
 
 Williams's Conveyancing Act, 102. 
 
Term of Years law dictionary. Territorial 815 
 
 alone be transacted. By modern statutes, however, a considerable 
 part of the intervening vacations was made available for the sittings of 
 the Courts and other business; and now by the Judicature Acts, 1873, 
 1875, the division of the year into terms has been abolished, so far as 
 relates to the administration of justice, the year being now divided into 
 sittings and vacations (q. v.) ;' but the terms still exist for some purposes, 2 
 e.g., in computing the period required for a call to the bar by the 
 Inns of Court. The terms for judicial business were — (1) Hilary, 
 from nth to 31st January; (2) Easter, from 15th April to 8th May; 
 (3) Trinity, from 22nd May to 12th June; and (4.) Michaelmas, from 
 2nd to 25th November. 3 
 
 III. § 9. In ecclesiastical procedure, term signifies a period. Thus, a Ecclesiastical 
 term probatory is the time assigned by the Court for the examination of proce ure ' 
 witnesses. 1 
 
 TERM OF YEARS— TERMOR. See Term, § 1. 
 
 TERRE-TENANT or TER-TENANT, which in Norman-French literally 
 means "land-holder," is used in the old books to signify a person who has the seisin of land, 
 as opposed either (i) to the lord of whom he holds it, and who merely has a seignory (q. v.) , 
 or (ii) to a person to whose use he was seised of the land, before the Statute of Uses. 
 Thus, if before the Statute of Uses, A. conveyed land by feoffment to B. and his heirs, to 
 the use of C. and his heirs, B. was called the terre-tenant or feoffee to uses, and C. was 
 called the cestui que use. 5 (See Use.) The word is now obsolete. § 2. In the law of 
 execution a " terre-tenant " is an owner in fee of land which he has acquired from a 
 defendant who has suffered judgment. Formerly every judgment charged the land of. 
 the defendant, and if he died after judgment, execution might be issued against his heirs 
 and terre-tenants. 6 (See Judgment, § 16.) 
 
 TERRITORIAL— TERRITORIALITY.— These terms are used 
 to signify connection with, or limitation with reference to, a particular 
 country or territory. Thus, " territorial law " is the correct expression 
 for the law of a particular country or state 7 {e. g., England), although 
 "municipal law" is more common (see Law, § 3). "Territorial 
 waters " are that part of the sea adjacent to the coast of a given country 
 which is by international law deemed to be within the sovereignty of 
 that country, so that its Courts have jurisdiction over offences committed 
 on those waters, even by a person on board a foreign ship. The ordinary 
 limits of territorial waters are a distance of one marine league from 
 low-water mark. 8 (See High Seas, § i, and note ; King's Chambers.) 
 
 As to territorial jurisdiction, see Jurisdiction, § 6 : see also Extra- 
 Territoriality . 
 
 1 Jud. Act, 1873, ss. 26 et seq. 5 Coi Lite. 271b; Bl. Comm. ii. 91, 
 
 2 College of Christ v. Martin, 3 Q. 328. 
 
 B. D. 16. 6 See Wms. Saunders, ii. 51; Archbold, 
 
 3 Smith's Action (nth edit.), 17 ; Arch. Pr. 928. 
 
 Pr. 162. For the history of terms, see 7 Savigny, Syst. viii. passim. 
 
 Steph. Comm. iii. 482 et seq. 8 Territorial Waters Juris. Act, 1878 
 
 * Pbill. Eccl. Law, 1256. (passed in consequence of the decision in 
 
 Reg. v. Keyn, 2 Ex. D. 63). 
 
Ii6 Testable LAW dictionary. Testatum Writ 
 
 TESTABLE. — A person is said to be testable when he has capacity 
 to make a will ; a man of twenty-one years of age and of sane mind 
 is testable. The capacity to make a will must be distinguished from 
 a special power to dispose of property by will : thus, a power given to a 
 married woman by a settlement to dispose of property by will, does 
 not make her testable. 1 But if property is settled on a married woman 
 for her separate use, she is testable so far as that property is concerned. 
 
 TESTAMENT is, strictly speaking, a will of personal property : a will 
 of land not being called a testament. 2 The word " testament" is now 
 seldom used, except in the heading of a formal will, which usually 
 begins — " This is the last will and testament of me, A. B., &c." 
 
 Etymology.] — Latin, testamentum, from testari, to declare, and not from testatio 
 mentis, as stated by Lord Coke. 3 
 
 TESTAMENTARY. — § i. " Testamentary power " is the power of 
 making a valid will, either generally, or with reference to particular kinds 
 or dispositions of property. "Testamentary capacity" usually refers 
 to the absence of some disability which prevents a person from making 
 a valid will : thus, infants and lunatics have not testamentary capacity. 
 
 § 2. A paper, instrument, document, gift, appointment, &c. is said to 
 be testamentary when it is written or made so as not to take effect until 
 after the death of the person making it, and to be revocable and retain the 
 property under his control during his life, although he may have believed 
 that it would operate as an instrument of a different character. Thus, 
 deeds of gift, marriage settlements, letters, &c. when executed with the 
 formalities of a will, have been admitted to probate as testamentary instru- 
 ments. 4 The term " testamentary documents " of course includes wills 
 and codicils, which are in form as well as in effect testamentary. ' (See 
 Script.) 
 
 As to testamentary guardians, see Guardian, § 9. 
 
 TESTATE. — A person is said to die testate when he leaves a will. 
 (See Iniestate.) 
 
 TESTATOR is a person who makes a will. 
 
 TESTATUM WRIT. — Formerly a writ of execution could not be 
 issued into a county different from that in which the venue in the action 
 was laid, without first issuing a writ into the latter county, and then 
 another writ, which was called a testatum writ, into the former. This 
 was abolished in ordinary cases by the Common Law Procedure Act, 
 1852, s. 1 2 1. 5 A testatum writ seems to be still necessary when a fi. fa. 
 
 1 Willock v. Nolle, L. R., 7 H. L., * Williams on Executors, 100, 373, 1498; 
 p. 593- Watson's Comp. Equity, 1 171. 
 
 2 Williams on Executors, 6, 7. 5 Chitty, Pr. 604. 
 
 3 Just. Inst. ii. 10 ; Co. Litt. 322 b. 
 
Teste LAW DICTIONARY. Threats 817 
 
 de bonis ecclesiasticis has been issued into one diocese, but the entire 
 debt is not levied on it, and the plaintiff wishes to have the residue 
 levied from the defendant's ecclesiastical goods and chattels in another 
 diocese. 1 
 
 TESTE is the concluding part of a writ, giving the date and place of 
 its issue. It is so called because it begins with the words "Witness 
 ourself " (in Latin, Teste meipsd), or similar words. Every writ of summons 
 and other writ issued in the High Court of Justice is tested (that is, the 
 teste runs) in the name of the Lord Chancellor. 3 
 
 TESTIMONY is the evidence of a witness given viva voce in a Court 
 of justice or other tribunal. (See Evidence, § 7.) In the old books 
 "testimony" means "witness." 3 
 
 THAMES CONSERVANCY. See Conservators of Rivers. 
 
 THEFT is larceny {q. v.) or the act of stealing. 
 
 THELLUSSON ACT. See Accumulation, § 3. 
 
 THIBAUT. — Anton F. J. Thibaut was born 4th January, 1772, 
 became professor at Jena and Heidelberg, and died 28th March, 1840. 
 He wrote Juristische Encyclopadie, Theorie der logischen Auslegung des 
 Romischen Rechts, System des Pandectenrechts, and numerous essays, &c. 4 
 He was an opponent of the historical school of jurisprudence, and was 
 considered by his contemporaries as hardly inferior to Savigny, but his 
 writings are now seldom referred to. 
 
 THIRD PARTY.— " Third party" is a colloquial and not very 
 logical phrase, signifying a person who is a stranger to a transaction or 
 proceeding ; in other words, someone who is not a party at all. (See 
 Stranger.) It is chiefly used in the expression "notice to third party," 
 as to which see Citation, § 2. 6 
 
 THIRTY-NINE ARTICLES. See Articles of Religion. 
 
 THREATS. — In criminal law, the sending of a letter threatening to 
 kill or murder a person, or to commit arson, or to injure cattle, is a 
 felony punishable with ten years' penal servitude (maximum) ; and anyone 
 who attempts to extort money, &c. from a person by threatening to accuse 
 him of certain crimes is liable to penal servitude for life ; demanding 
 money, &c. by other threats is punishable with penal servitude for five 
 years (maximum). 6 
 
 1 Chitty.Pr. 1284; Archbold'sPr. 1064. 6 MacAUister v. Bishop of Rochester, 
 
 2 Rules of Court, ii. 8. 5 C. P. D. 194 ; Wye Valley Rail. Co. v. 
 
 3 Co. Litt. 32 b. Hawes, 16 Ch. D. 489. 
 
 * Holtz: Encycl. 6 Stat. 24 & 25 Vict. cc. 96, 100, s. 16 ; 
 
 Steph. Crim. Dig. 154, 227. 
 
 S. 3 G 
 
5i8 Tidal Rivers LAW dictionary. Time Policy 
 
 TIDAL RIVERS. See Navigation ; Rivers. 
 
 TIMBER.— § i. Timber, strictly speaking, includes only oak, ash and 
 elm ; " also in places where timber is scant, and beeches or the like are 
 converted to building for the habitation of man, or the like, they are all 
 accounted timber." 1 
 
 § 2. Timber and other trees form part of the land, and on the death of 
 the owner intestate they pass with it to the heir, therein differing from 
 growing crops. Timber when severed is personal estate. 
 
 § 3. Cutting down timber is a form of waste (q. v.), except so far as it 
 is required for estovers (q. ».). If a tenant without impeachment of 
 waste cuts timber in a husbandlike manner it vests in him : otherwise, if 
 timber is cut or blown down, it belongs to the tenant in fee. 3 Where 
 timber on a settled estate is likely to be injured by standing, the Court 
 will allow it to be cut, provided the money is secured for the persons 
 entitled to the estate. 3 
 
 § 4. Where a person takes by succession land with timber or other 
 trees, not being coppice or underwood, he must pay succession duty 
 on all sums (exceeding 10/. in any one year) from time to time received 
 from any sales of such timber, unless he commutes the duty. 4 
 
 See Succession, § 4; Succession Duty. 
 
 TIME. — As to the meanings of the expressions day, month, year, &c, 
 when used in statutes or legal instruments, see the respective titles. By 
 the act 43 & 44 Vict. c. 9, whenever any expression of time occurs in 
 any act of parliament, deed, or other legal instrument, the time referred 
 to shall, unless otherwise specifically stated, be held in the case of 
 Great Britain to be Greenwich mean time, and in the case of Ireland, 
 Dublin mean time. 
 
 § 2. The Courts take judicial notice of the calendar, as settled by the 
 stat. 24 Geo. 2, c. 23. (See Notice, § 1.) 
 
 As to time being of the essence of a contract, see Essence of the 
 Contract. 
 
 TIME-BARGAINS. See Wager. 
 
 TIME OUT OF MIND. See Memory. 
 
 TIME POLICY. See Policy of Assurance, § 3. 
 
 By stat. 30 & 31 Vict. c. 23, s. 8, no policy of marine insurance may be 
 made for any time exceeding twelve months, and any policy made for a 
 longer period is void. 
 
 Co. Litt. 53 a. to the tenant for life, see stat. 22 & 2-5 
 
 2 Williams, P. P. 19. As to the power Vict. c. 35, ». 13 ; Williams, R. P. 310 
 
 of the Court to give relief to a bond fide 3 Williams, R. P. 25. 
 
 purchaser of settled land where part of the " Succession Duty Act, a. 23. 
 purchase-money has by mistake been paid 
 
Tinbounding LAW DICTIONARY. Tithes 819 
 
 TINBOUNDING is a custom regulating the manner in which tin is 
 obtained from waste land, or land which has formerly been waste land, 
 within certain districts in Cornwall and Devon. 1 The custom is described 
 in the leading case on the subject as follows : — "Any person may enter 
 on the waste land of another, and may mark out by four corner boundaries 
 a certain area ; a written description of the plot of land so marked out 
 with metes and bounds, and the name of the person, is recorded in the 
 local Stannaries Court, and is proclaimed on three successive court-days. 
 If no objection is sustained by any other person, the Court awards a writ 
 to the bailiff to deliver possession of the said ' bounds of tin-work ' to the 
 ' bounder,' who thereupon has the exclusive right to search for, dig, and 
 take for his own use all tin and tin-ore within the enclosed limits, paying 
 as a royalty to the owner of the waste a certain proportion of the produce 
 under the name of toll-tin." 3 The right of tinbounding is not a right 
 of common (see Common), but is an interest in land, and, in Devon- 
 shire, a corporeal hereditament. 3 In Cornwall tin bounds are personal 
 estate. 4 (See Forest of Dean ; Stannaries.) 
 
 TIPSTAFF. — Tipstaves are officers attached to the Lord Chancellor 
 and Master of the Rolls, and to the Queen's Bench Division of the High 
 Court. Since the abolition of imprisonment on mesne process, the 
 functions of these officials have been confined to arresting persons guilty 
 of contempt of Court, except in the Queen's Bench Division, where the 
 tipstaff also has charge of any prisoner brought before the Court, or 
 committed by the Court, in the exercise of its criminal jurisdiction. 5 
 
 TITHES are payments due by the inhabitants of a parish for the 
 support of the parish church, and generally payable to the parson of the 
 parish. In extra-parochial places the king is entitled to the tithes. 6 
 Tithes payable to a rector are called rectorial tithes, those payable 
 to a vicar are vicarial tithes, and those payable to a lay person are lay 
 tithes ; the last belong to the class of incorporeal hereditaments. 1. As to 
 exemptions from tithes, see De non Decimando; Modus; Real Composition 
 
 §2. Originally tithes were paid in kind, and consisted of the tenth Inland, 
 part of all yearly or periodical profits of certain descriptions, tithes being 
 divisible into prsedial, mixed and personal. Prsedial tithes (so called Predial, 
 from Latin pradium, a farm) were profits arising immediately from the 
 soil, e.g., corn, grass, &c. : mixed tithes were those arising from animals mixed, 
 deriving their nutriment from the soil, e.g., tithes of wool, milk, &c: 
 personal tithes are those arising entirely from the personal industry personal, 
 of man ; these last exist only in a few instances, as in the case of fish 
 caught in the sea, or by special custom for fish caught in rivers. Tithes 
 
 1 Bainbridge on Mines, 146 et seq. 6 Second Report Legal Dep. Comm. 
 
 2 Rogers v. Brenton, 10 Q. B. 26, cited (1874), 20 ; Archbold, Pr. 18; stat. 25 & 
 in Elton, Comm. 113. 26 Vict. c. 104. 
 
 3 Elton 114. ° Bl. Comm. 1. 284; Pliillimore, Eccl. 
 
 4 Bainbridge, 150. Law, 1487; Burton, Comp. §§ 1173 et seq. 
 
 r Bl. i. 387, ii. 24., See Impropriation. 
 
 3 G 2 
 
820 
 
 Great. 
 Small. 
 
 Commuta- 
 tion. 
 
 Merger. 
 
 Tithing 
 
 LAW DICTIONARY. 
 
 Title 
 
 payable in respect of corn-mills were personal tithes, but they have been 
 commuted [infra, § 4). Tithes of mineral may also be payable by 
 
 custom. 1 
 
 § 3. Tithes were also divided into (a) great tithes, comprehending the 
 tithes of corn, peas, beans, hay and wood, and (b) small (or privy) tithes, 
 which included all other kinds of tithes. The distinction is important, 
 because vicars are frequently endowed with small tithes only. 2 
 
 § 4. Tithes have now ceased to be paid in kind, except in a very few 
 instances, for by a series of voluntary agreements and compulsory awards 
 made under the Tithe Commutation Acts, 3 a rent-charge varying with the 
 price of corn has been substituted for almost all tithes, whether payable 
 in kind or under a modus or composition. 4 (See Rent, § 9.) Mineral 
 tithes, tithes of fish and other personal tithes (except mill-tithes) are not 
 liable to compulsory commutation. 5 
 
 § 5. Tithe rentcharges do not merge in the lands out of which they are 
 payable by mere unity of ownership ; but the owner may by deed or 
 declaration approved by the Tithe Commissioners cause a merger to take 
 place. 6 
 
 TITHING is a local division or district forming part of a hundred 
 (q.v.), and is so called because every tithing formerly consisted of ten 
 freeholders with their families. 7 (See Frankpledge.) 
 
 Original, 
 
 derivative ; 
 
 by act of the 
 party ; 
 
 by act of the 
 law ; 
 
 by wrong. 
 
 TITLE.— I. § i. In the primary sense of the word, a title is a right. 8 
 Thus a title of presentation is the right to present to a benefice. 9 (See 
 Next Presentation.) This use of the word, however, is comparatively 
 rare, and generally "title" means a right to property considered with 
 reference either to the manner in which it has been acquired, or to 
 its capacity of being effectively transferred. 
 
 In this sense of the word, titles are of the following kinds : — 
 § 2. With reference to the modes by which they are acquired, titles are 
 of two kinds, namely, (1) original, where the person entitled does not 
 take with reference to any predecessor; as in the case of title by 
 occupancy, by capture, by invention (patent, copyright, trade-mark, &c), 
 and by creation (as where the crown grants a peerage 10 ) : and (2) derivative, 
 where the person entitled takes the place of a predecessor ; this latter 
 class is divisible into (a) title by the lawful and voluntary act of one or 
 both of the parties; e.g., title by conveyance, gift, devise, bequest, &c; 
 in the case of realty this is called title by purchase : (b) title by operation 
 or act of the law, including title by descent, intestacy, succession, 
 survivorship, escheat, forfeiture, marriage, dower, curtesy, limitation, 
 prescription, bankruptcy, &c: and (c) title by wrong or tort, which 
 
 1 Bl. ii. 24, n. (9) ; Burton, § 1174. 
 '■ Bl. ii. 24, n. (9) ; Steph. Comm. ii. 726 ; 
 Phill. 1485. 
 
 3 Stats. 6 & 7 Will. 4, c. 71 to 23 & 24 
 Vict. c. 93. 
 
 4 Phill. 1504. 
 
 6 Stats. 6 & 7 Will. 4, s. 90 ; 2 & 3 Vict. 
 C. 62, s. 9. 
 
 6 . Phill. 1552; see the acts above re- 
 ferred to. 
 
 7 Bl. Comm. i. 114. See Maurer ; 
 Freipflege, passim. 
 
 s Co. Litt. 345 b; Viner, Abr. Title, 
 C. 1. 
 
 9 Co. Litt. 120 a. 
 
 10 Ibid. 16 a. 
 
Title LAW DICTIONARY. Title 821 
 
 occurs in the case of wrongful possession, abatement, disseisin, intrusion, 
 deforcement, usurpation, and purpresture. 1 This last kind of title differs 
 from the others in being liable to be defeated by the person rightfully 
 entitled, until the title of the wrongdoer has become absolute by lapse 
 of time (see Limitation, § 6) : subject to this, a title by wrong is always 
 deemed to be the most extensive right which the subject-matter admits of; 
 thus a disseisor of land is seised of an estate in fee simple by wrong. 2 
 
 § 3. With reference to their capacity of being effectually transferred, Title to land, 
 titles to land are of various kinds. Thus, a marketable title is one which marketable, 
 goes back forty years ; that is, the vendor must show a chain or transmis- 
 sion of title, by conveyance, descent or other lawful means, from his pre- 
 decessor or predecessors, commencing at least forty years ago. A safe holding, 
 holding title is one resting on the undisturbed possession of the vendor 
 for twenty years adversely to persons not under disability. 3 Where a person 
 agrees to sell land without making any stipulation as to the title, he must 
 show a marketable title. In almost all cases, however, the contract of sale 
 stipulates that the title shall commence at a more recent date than forty 
 years. In any case, the conveyance or other document with which the Root of title. 
 title commences is called the root of title; 4 and if the vendor shows that 
 he has the title which he is bound to prove, he is said to show a good 
 title. 
 
 § 4. The Vendor and Purchaser Act, 1874, and the Conveyancing Act, 
 1 88 1, contain a number of provisions similar to those usually inserted in 
 ordinary contracts for sale of real property and leaseholds, so that a person 
 who enters into an open contract now runs less risk of failing to show a 
 good title than formerly. But these provisions are obviously inadequate 
 to meet special defects. 
 
 § 5. Under the Land Transfer Act, 1875, a person entitled to land may Registered 
 prove and register either ( 1 ) an absolute title, being a title good against tltle > 
 all the world (except incumbrancers and cestui que trusts, if any) ; or (2) a aDSolut e. 
 qualified title, being a title subject to specified reservations ; or (3) a pos- qualified, 
 sessory title, being a title subject to all estates, rights, and interests exist- possessory. 
 ing at the time of registration. 6 (See Land Registries.) 
 
 § 6. The investigation of titles is one of the principal branches of 
 conveyancing (q. v.) ; and in that practice the word " title " has acquired 
 the sense of "history" rather than of "right." Thus, we speak of an 
 abstract of title (see Abstract), and of investigating' a title, and describe a 
 document as forming part of the title to property. 
 
 II, § 7. "Title" formerly had the technical sense of a right to avoid an estate by 
 "entry, as opposed to the remedy by action^ Thus if A. conveyed land to B. upon condi- 
 tion not to alien it in mortmain, and B. broke the condition, A. was said to have a title 
 
 1 Co. Litt. 3 b, 18 b ; Bl. Coram, ii. 4 Dart's V. & P. 293—296 ; Jarman, 
 200 et sea ' Conv. i. 62. Where the first document is 
 
 2 Williams on Seisin, 7. a will, the root of title seems, strictly 
 
 3 Greenwood's Conv. 15 ; stat. 37 & 38 speaking, to be the fact of the seism of the 
 Vict. c. 78. As to title to advowsons, see testator, because the will does not prove 
 Williams, R. P. 448. that the land belonged to him. Ibid. 
 
 5 Sects. S et sea. 
 
822 
 
 Title 
 
 LAW DICTIONARY. 
 
 Title-Deeds 
 
 Titles of 
 ordination. 
 
 Of honour 
 and dignity 
 
 of entry, or title of mortmain ; but he could not bring an action, and therefore had no 
 right in the technical sense. 1 (See Right of Entry, § 3.) 
 
 III, § 8. In ecclesiastical law "title" signifies (1) a cause for which 
 a person might be ordained. The most common causes of ordination are 
 either a presentation to a vacant benefice or the possession of some source 
 of income. Hence, title signifies (2) a presentation to a benefice, (3) the 
 church or living to which the minister was presented, and (4) a source of 
 income, e. g., a pension. 2 In the Roman Catholic Church, titles or tituli 
 are the churches in and near Rome which are assigned to cardinals. 3 
 
 IV. § 9. "Title" also signifies an appellation or address indicative of 
 honour or dignity. Such titles are to a certain extent dependent on cour- 
 tesy. Thus, no person can compel another to address or describe him by 
 his title; but, so far as their use by the person himself is concerned, titles 
 are matters of right, and, as it were, of property, and therefore, no person 
 who cannot show a legal right to it, is permitted to use a title of dignity 
 or honour on any public occasion. 4 Some titles are hereditary and descend 
 in fee simple or in tail, according to the nature of their creation. 5 (See 
 Dignity.) 
 
 Of action, &c V. § 10. Hence "title" signifies a description. Thus, in procedure, 
 every action, petition or other proceeding, has a title, which consists 
 of the name of the Court in which it is pending, the names of the 
 parties, and (in the High Court of Justice) also the " reference to the 
 record" {q.v.)\ administration actions are further distinguished by the 
 name of the deceased person whose estate is being administered. Every 
 pleading, summons, affidavit, &c, commences with the title. In many 
 cases it is sufficient to give what is called the " short title " of an action, 
 namely, the Court, the reference to the record, and the surnames of the 
 first plaintiff and the first defendant, e.g., "In the High Court of Justice, 
 Chancery Division. 1875. S. 311. Smith v. Jones." 
 
 §11. The title of a patent is the short description of the invention, 
 which is copied in the letters-patent from the inventor's petition, e. g., " a 
 new and improved method of drying and preparing malt." 6 (See Patent; 
 Disclaimer, §2.) 
 
 Etymology.]— Norman-French, title p from Latin, titulus = a label, hence a name, 
 pretext or motive, and then a cause or basis of acquiring a right. 8 The word was chiefly 
 used in Roman law to denote an equitable right to property which was capable of being 
 developed by usucapion into a complete right of ownership. 9 From this is derived the 
 common definition of title as a mode of acquisition, the titulus in Roman law not being 
 considered a right, but only the foundation of a right. 
 
 TITLE-DEEDS, "though moveable articles, are not strictly speak- 
 ing chattels. They have been called the sinews of the land, 10 and are so 
 
 Of a patent. 
 
 1 8 Rep. 153 b ; Co. Litt. 252 b, 345 b. 
 - Gibson, Codex, 140, 1441 et seq. ; 
 Steph. Comm. ii. 661. 
 
 3 Holtz. Encycl. i. 465. 
 
 4 See Keetv. Smith, I P. D. at p. 78, 
 where it was decided that "reverend" is 
 not a title of honour or dignity. 
 
 6 Co. Litt. 16 a; Selden on Titles of 
 Plonour ; Madox, Bar. Ang. ; Bl. Comm. 
 ii. 216. 
 
 6 Johnson on Patents, 90. 
 
 7 Britton, 86 b, 121 a. 
 
 8 Dirksen, Man. Lat. s. v. 
 
 3 Dig. xxix. 4, fr. 30; Savigny, Syst. 
 iii. 372 ; Hunter's Roman Law, 119. As 
 to the exploded doctrine of titulus and 
 modus acquirendi, see Austin, Jur. 995 ; 
 Holtz. ii. 546. 
 
 10 Co. Litt. 6 a. 
 
To have and to hold LAW DICTIONARY. Toll 823 
 
 closely connected with it that they will pass, on a conveyance of the 
 land, without being expressly mentioned: the property in the deeds 
 passes out of the vendor to the purchaser simply by the grant of the 
 land itself. In like manner a devise of lands by will entitles the devisee 
 to the possession of the deeds ; and if a tenant in fee simple should die 
 intestate, the title deeds of his lands will descend along with them to his 
 heir-at-law." 1 § 2. But where a vendor of lands has other lands to which 
 the deeds relate, or retains any legal interest in the lands conveyed, 
 he has a right to keep the deeds. 2 The purchaser, however, is entitled 
 to a covenant for the production of the deeds whenever required in 
 support of his title, if the vendor can give such a covenant. 3 In the 
 case of sales of land after the 31st December, 1881, a purchaser will be 
 entitled to a written acknowledgment of his right to production of the 
 deeds, in lieu of, but with the same effect as, an ordinary covenant for 
 production; and if he requires attested copies of the title deeds retained 
 by the vendor, he will have to bear the expense of making them. 4 
 
 § 3. A tenant for life, or for any greater estate, is entitled to the 
 possession of the title deeds of the land, but he must not injure or part 
 with them. 5 
 
 See Muniments. 
 
 TO HAVE AND TO HOLD are the words in a conveyance which 
 show the estate intended to be conveyed. Thus, in a conveyance of 
 land in fee simple, the grant is to "A. and his heirs to have and to 
 hold the said [land] unto and to the use of the said A., his heirs and 
 assigns for ever." 6 
 
 Strictly speaking, however, the words "to have" denote the estate to 
 be taken, while the words " to hold " signify that it is to be held of some 
 superior lord, that is, by way of tenure {q. v.). The former clause is 
 called the habendum, the latter, the tenendum.' 1 
 
 TOFT. — § 1. "When land is built upon, it is a messuage, and, if the 
 building afterwards fall to decay, yet it shall not have the name of land, 
 although there be nothing in substance left but the land, but it shall 
 be called a toft, which is a name superior to land, and inferior to 
 messuage : and this name it shall have in respect of the dignity which it 
 once bore." 8 § 2. The term "toft" is specially applied to ancient 
 tenements within a parish or other district, the owners or occupiers of 
 which are entitled to rights of common or commonable rights over 
 land situate in the parish. 9 (See Ancient Messuages; Lammas Lands!) 
 
 TOLL— I, § 1. A toll is a payment for passing over or using a 
 bridge, road, ferry, railway, market, port, anchorage, &c. Frequently the 
 
 1 Williams, P. P. 10. 6 See Williams, R. P. 198. 
 
 2 Ibid. See V. & P. Act, 1874, 5 . 2, " Co. Litt. 6 a. 
 
 § 5. 8 Plowd. 170, cited in Broom & Had. 
 
 3 V. & P. Act, 1874, s. 2 ; Williams, Comm. ii. 17, 11. (i). 
 
 R. P. 464. 9 Cooke, Incl. 48 ; General Inclosure 
 
 4 Conveyancing Act, 1881, s. 3, § 6, s. 9. Act, 1845, s. 53. 
 6 Williams, P. P. 12. 
 
824 Tombstones LAW DICTIONARY. Tort 
 
 right to demand tolls forms part of a franchise (q. v.), as in the case of 
 ferries, markets, ports, &c. Turnpike, harbour and railway tolls are 
 generally created by act of parliament. 1 
 Toll traverse. § 2 . Toll traverse is a sum payable for passing over the private soil of 
 Toll thorough. ano ther, or over a private road, bridge, ferry, or the like. § 3. Toll 
 thorough is a sum payable for passing over the public highway: to 
 support a claim for such a toll (which is a franchise) a consideration 
 must be shown, e.g., repairs to the highway by the owner of the 
 franchise. 2 
 
 § 4. A right of distress is incident to every toll, but the distress cannot 
 be sold except in the case of turnpike tolls. 3 
 
 See Rankness ; Prescription ; Stallage. 
 
 II. As to "toll " in the sense of taking away, see Descent Cast. 
 
 TOMBSTONES.— § 1. Tombstones in churchyards, it seems, can 
 only be erected with the consent of the incumbent, and he may refuse to 
 allow objectionable inscriptions on tombs. Tombstones in the body of 
 the church can only be erected by leave of the ordinary, given by a 
 faculty, though it seems that the consent of the incumbent is usually 
 sufficient, or that of the rector, if the stone is to be erected in the chancel. 
 A tombstone, when properly erected, does not vest in the incumbent, 
 although annexed to the church or churchyard, the freehold of which is 
 in him ; therefore the person who set it up, or the heirs of the deceased, 
 have an action of trespass against anyone who defaces or removes 
 it. 4 § 2. Gifts by will for the erection or maintenance of tombstones in 
 churchyards are void, if unlimited in point of time, being contrary to 
 the rule against perpetuities : gifts for the maintenance of tombstones or 
 monuments forming part of the fabric of a church are valid because they 
 are for the public benefit, and are therefore charitable within the equity 
 of the stat. 43 Eliz. c. 4. (See Burial; Charity ; Churchyard.) 
 
 TONNAGE was anciently a duty on imported wines, imposed by parliament, in 
 addition to prisage (q. z>.). 5 The present duties on wines are regulated by the Customs 
 Acts. 
 
 TONNAGE-RENT.— When the rent reserved by a mining lease or 
 the like consists of a royalty on every ton of minerals gotten in the mine, 
 it is often called a tonnage-rent. There is generally a dead rent in 
 addition. (See Rent, § 6.) 
 
 TORT. — I. § 1. In its original and most general sense, " tort " is any 
 wrong — as in the phrase " executor de son tort." (See Executor, § 4.) 
 
 II. § z. More commonly, however, " tort " signifies an act which gives 
 rise to a right of action, being a wrongful act or injury consisting in the 
 
 1 As to railway tolls, see Hodges on 3 Shelford, 36. 
 
 Railways, 456 et seq. 4 Phill. Eccl. Law, 880 et seq. ; Keet v. 
 
 2 Shelford, R. P. Stat. 36 ; Bl. Coram. Smith, 1 P. D. 73. 
 
 ii. 38 ; Co. Litt. 114. 5 Steph. Comm. ii. 561. 
 
Tort LAW DICTIONARY. Tort 825 
 
 infringement of a right created otherwise than by a contract. 1 Torts are 
 divisible into three classes, according as they consist in the infringement 
 of a jus in rem, or the breach of a duty imposed by law on a person, 
 either towards another person or towards the public. 
 
 § 3. The first class includes (a) torts to the body of a person — such as To person, 
 assault, battery, nuisance; or to his reputation — such as libel, slander, 
 malicious prosecution ; or to his liberty — as in the case of false imprison- 
 ment and malicious arrest : (b) torts to real property, such as ouster, To realty, 
 trespass, nuisance, waste, subtraction, disturbance : (c) torts to personal To personalty, 
 property, consisting (i) in the unlawful taking or detaining of or damage 
 to corporeal personal property or chattels (see Replevin ; Detinue ; Trover) ; 
 or (ii) in the infringement of a right to a patent, trade-mark, copyright, 
 &c. (see Infringement ; Piracy, § 1): (d) slander of title: (e) deprivation of 
 service and consortium (see Master and Servant, § 3 ; Per quod). 
 
 § 4. The second class includes deceit and fraud (q. v.), and negligence Fraud and 
 in the discharge of a private duty. Thus, if A., a stage-coach proprietor, negligence, 
 contracts with B. to carry his servant C, and, in performing his contract, 
 is guilty of negligence which causes bodily hurt to C, and consequent 
 damage, by loss of his services, to his master ; then A. may be sued by 
 B. for breach of contract, and by C. for negligence, that is for a tort. 
 So, if a physician is guilty of negligence in treating a patient, he may be 
 sued either for breach of contract or for tort. 2 This kind of tort is called 
 a tort arising out of contract, in opposition to a pure tort (e. g., an 
 assault). 3 
 
 § 5. The third class includes those cases in which special damage is Special 
 caused to an individual by the breach of a duty to the public, whether the p U ™]ff e y 
 breach consist of malfeazance, nonfeazance, or misfeazance. The prin- nuisance, &c. 
 cipal instances of this class of torts fall under the heads of negligence and 
 nuisance. Thus, if a person does something, which is not only a public 
 nuisance, but also causes special damage to an individual, he is liable to 
 that individual for a tort. 4 
 
 § 6. These divisions are of importance with reference to the question 
 whether, on the death of the person injured, or of the tortfeasor, his per- 
 sonal representatives can sue or be sued for the tort ; the general rule 
 being, that the right to sue, and the liability to be sued, for torts to 
 
 1 See Bryant v. Herbert, 3 C. P. D. 189, carried safely, or that the operation shall be 
 389 ; Fleming v. M. &* S. Rail. Co., 4 Q. skilfully performed ; but not only is this 
 
 B. D. 81. As to torts generally, see the never done expressly, but the parties do 
 works of Addison and Underhill ; Broom's not as a rule even think of such a condition 
 
 C. C. L. 651 et sea. As to the place of at the time. The duty on the part of the 
 torts in a scientific system, see Hunter's contractor, therefore, is not created by an 
 Roman Law, xxxvi. ' actual contract, whether express or tacit, 
 
 2 Bl. Comm. iii. 165 ; Broom, 672. At but is created by the law, and the breach 
 first sight it seems incorrect to make what of it is rightly called a tort. The inac- 
 is apparently a breach of contract equiva- ouracy consists in also treating it as a 
 lent to a tort, and the author was at one breach of contract ; but this is explained 
 time disposed to call this kind of injury a by the fact that in English law contracts 
 quasi-tort, as is done by Mr. Underhill and quasi-contracts are not distinguished, 
 (p. 24). It is submitted, however, that the (See Quasi- Contract.) See, however, the 
 old classification is really correct. It is of remarks in Dicey on Parties, 16 et sea. 
 course possible for a person who is about 3 Berringer v. G. E. R., 4 C. P. D. 163. 
 to travel by a stage coach, or to undergo * Broom, 657. 
 
 an operation, to stipulate that he shall be 
 
826 Tortfeasor law dictionary. Town 
 
 property L passes to the personal representatives of the injured person, or of 
 the tortfeasor, but that in other cases it does not, except where the death 
 of the deceased was caused by the tort. 2 (See Actio personalis, &c.) 
 
 § 7. The distinction between tort and contract is important with refe- 
 rence to the limitation of actions {q. v.), and in the law of bankruptcy, 
 claims for damages from torts not being proveable. 3 (See Debt, §11.) 
 
 See Damage ; Damnum sine Injuria ; Injury ; Negligence ; Quasi-Tort. 
 Etymology.]— Norman-French, tort, a wrong ; from Latin, tortus, twisted. 1 
 
 TORTFEASOR is a wrongdoer, or one who commits a tort, espe- 
 cially a trespass. 6 (See Contribution, § 2 ; Omnia prmsumuntur, &c.) 
 Etymology.]— Norman-French, tort, a wrong, and feasor or fesour, a doer. 
 
 TORTIOUS is wrongful. Formerly certain modes of conveyance 
 (e.g., feoffments, fines, &c.) had the effect of passing not merely the 
 estate of the person making the conveyance, but the whole fee simple, to 
 the injury of the person really entitled to the fee, and they were hence 
 called tortious conveyances. 7 But this operation has been taken away. 
 (See Feoffment, § 3 ; Fine, § 9.) 
 
 TOTAL LOSS. See Loss. 
 
 TOUT TEMPS PRIST (= always ready) is the Norman-French name 
 for the plea or defence which a defendant sets up when he is sued on a 
 contract for something which he has always been ready and willing to do, 
 if the plaintiff had asked or allowed him to do it. Its effect, if true, is to 
 deprive the plaintiff of his right to damages for the nonfeasance com- 
 plained of. 8 For an example, see Tender. (See also Uncore prist.) 
 
 TOWAGE. — In admiralty law, a towage service is where one vessel 
 is employed to expedite the voyage of another, when nothing more is 
 required than to accelerate her progress, 9 as opposed to a salvage service, 
 which implies danger or loss. (See Salvage.) A towage service gives a 
 right to remuneration ; but although in many cases where salvage has 
 been claimed the Court has decreed towage remuneration only, there are 
 comparatively few cases in which suits have been instituted for mere 
 towage. 10 Claims for towage remuneration are generally enforced in 
 Courts having admiralty jurisdiction. (See Admiralty ; Action, §§ 1 1 et seq.) 
 
 TOWN, in the technical sense of the word, is a collection of houses, 
 which " hath, or in time past hath had, a church and celebration of 
 
 1 Including fraud; Twycross v. Grant, 7 Litt. § 611; Co. Litt. 271b, 11.(1); 
 4 C. P. D. 40. 330b, n.(i). 
 
 2 See Dicey on Parties, 314, 402, 481 ; 8 See Co. Litt. 33 a ; Leake on Con- 
 stats. 3 & 4 Will. 4, c. 4 ; 9 & 10 Vict. tracts (2nd edit.), 858. 
 
 u. 93. 9 The Princess Alice, 3 W. Rob. 140 ; 
 
 3 Bankruptcy Act, 1869,3.31. cited Williams and Brace's Admiralty, 
 
 4 Co. Litt. 158b. 151. n. (a). 
 
 5 Cro. Jac. 383. 10 Williams Sc Bruce, 152. 
 
 6 Britlon, 32 b. 
 
Towns Improvement law dictionary. Trade-Mark 827 
 
 divine service, sacraments and burials," but " if a towne be decayed so as 
 no houses remaine, yet it is a towne in law." l Some towns are cities or 
 boroughs (q. v., and see Municipal Corporation). In the old books, 
 " upland town " seems to mean a town which is neither a city nor a 
 borough. 2 (See Fill.) 
 
 § 2. In the popular sense of the word, a town is a congregation of 
 houses so near to one another that the inhabitants may fairly be said to 
 dwell together. The word is so used in the pre-emption clause of the 
 Lands Clauses Act. 3 (See Pre-emption.) The name of such a town is 
 a matter of reputation.* 
 
 TOWNS IMPROVEMENT.— The Towns Improvement Clauses 
 Act, 1 847, was passed to consolidate in one act certain provisions usually 
 contained in acts for paving, draining, cleansing, lighting and improving 
 towns. Local acts appointing commissioners for the improvement of 
 towns generally incorporate the provisions of this act, but such acts are now 
 rarely passed, as the provisions of the General Health Acts, the Local 
 Government Acts, the Sanitary Acts, and the Public Health Acts (see the 
 various titles) have practically superseded them. 
 
 TOWNSHIP seems to mean a district of land containing a town, 
 and under the same administration as the town itself. Blackstone says, 
 that when a hamlet or other small collection of houses is adjacent to a 
 town, but governed by separate officers, it is, to some purposes in law, 
 looked upon as a distinct township. 5 
 
 TRADE. See Restraint of Trade ; Trade-Mark ; Trader. As to usages 
 of trade, see Custom, § 8. 
 
 TRADE-MARK. — § 1. In the most general sense of the words, 
 "trade-mark" denotes any means of. showing that a certain trade or 
 occupation is carried on by a particular person or firm, including 
 therefore not only trade-marks in the narrower sense of the word {infra, 
 § 2), but also trade-names (q. v.) and marks which are not in themselves, 
 or in their origin, distinctive, but become known by custom and reputa- 
 tion as showing that goods or implements of trade are made, sold or 
 employed by a particular person or firm. Thus coloured lines in the hem 
 or fringe of cloth may, by the custom of a particular place or trade, be 
 understood to show that the cloth is made by a particular firm. 6 So 
 where A. ran a line of omnibuses between two places, B. was restrained 
 by injunction from running on the same line of route omnibuses having 
 upon them such names, words and devices as to form a colourable imita- 
 tion of the names, words and devices on A.'s omnibuses. 7 (See Use.) 
 
 1 Co. Litt. 115b. 5 Bl. Comm. i. 115. 
 
 3 Hid. nob. 6 Singer, &°c. Co. v. Wilson, 2 Cli. D. 
 
 3 Reg. v. Cottle, 16 Ad. & El., N. S. at p. 441 ; Orr Ewing v. Johnston, 13 Ch. 
 
 412 ; London &° S. W. Rail. Co. v. Black- D. 434. 
 
 more, L. R., 4 H. L. 610. 7 Knotty. Morgan, 2 Keen, 213. 
 
 1 Collier v. Worth, 1 Ex. D. 464. 
 
828 Trade-Mark law dictionary. Trade-Mark 
 
 § z. In the narrower sense of the word, a trade-mark is a distinctive 
 mark or device affixed to or accompanying an article intended for sale 
 for the purpose of indicating that it is manufactured, selected, or sold by 
 a particular person or firm. Thus a representation of a lion enclosed in 
 a ring, or the facsimile of the signature of a person, may be used as 
 trade-marks in connection with a certain kind of goods : but the right to 
 a trade-mark applicable to cloth does not entitle the owner to prevent 
 another trader from applying it to iron or the like. 1 Trade-marks of 
 this kind must be registered under the Trade-Marks Registration Act, 
 1875 (q.v.). 
 Goodwill. § 3- A trade-mark cannot exist in gross, that is, apart from the goodwill 
 
 of the business with which it has been connected. 3 
 
 § 4. The right of the owner of a trade-mark in the narrower sense of 
 the word is clear ; he is entitled to prevent anyone else from applying it, 
 or any device closely resembling it, to goods of the same class as those 
 in connection with which he himself uses it. (As to his remedies, see 
 Infringement.) This right is an absolute one, and does not depend on 
 the state of mind of the infringer : A. may bona fide invent a trade-mark 
 which has already been used by B., but the fact that he never heard of 
 B.'s trade-mark is no defence to proceedings for infringement. 3 Again, 
 where goods are sold under a false trade-mark, " even if the purchaser is 
 told that the goods are the goods of the actual seller, but the imitated 
 mark is upon them, there is ground for interference [by the Court], since 
 the goods may be resold bearing the mark, but without the information 
 necessary to correct the statement thereby made." 4 From its absolute 
 and negative nature, the right to a trade-mark is frequently called a 
 property (q. v.). 5 
 
 § 5. The true nature of a trade-mark in the wide sense of the word, that 
 is, of trade-marks not capable of registration, is not yet settled. It was 
 formerly considered that the right of the owner of a trade-mark of this 
 kind (e.g., a trade-name) was entirely dependent on the question of mis- 
 representation, so that a person who without fraud used a name or mark 
 which had been previously used by another person, could not be made 
 liable for doing so. 6 This doctrine has been recently shaken, but the 
 point is still open. 7 
 
 § 6. There are certain trade-marks which are subject to special statutes, 
 the most important of which are the Hallamshire Acts, regulating marks 
 on cutlery, and the acts regulating marks on hops, gunbarrels and gold 
 and silver plate. 8 
 
 See Goodwill; Merchandize Marks Act ; Publici Juris. 
 
 1 Ludlow & Jenkyns on Trade-Marks, 3; 4 Sebastian on Trade-Marks, 8, citing 
 Orr Ewing v. Registrar of Trade-Marks, Sykes v. Sykes, 3 B. & Cr. 541. 
 
 4 App. Ca. 479. 5 See Ludlow & Jenkyns, 4 ; Maxwell 
 
 2 Sebastian on Trade-Marks, 180. See v. Hogg, L. R., 2 Ch. 307. 
 
 the provisions of the Trade-Marks Regis- 6 Singer, &>c. Co. v. Wilson, 2 Ch. D. 
 
 tration Act, 1875, as to the assignment of 434. 
 
 registered trade-marks. ' See the judgments of Lords Cairns and 
 
 3 Ludlow & Jenkyns, 73 ; Edelsten v. Blackburn, same case, 3 App. Ca. 376. 
 Edelsten, I De G., J. & S. at p. 199.. 8 Ludlow & Jenkyns, 77 ; Trade-Marks 
 
 Registration Act, 1875, ss. 9 etsej. 
 
Trade-Marks Regis. Act LAW DICTIONARY. Trade-Name 829 
 
 TRADE-MARKS REGISTRATION ACT, 1875, is the statute 
 38 & 39 Vict. c. 91, amended by the acts of 1876 and 1877. It provides 
 for the establishment of a register of trade-marks under the superin- 
 tendence of the Commissioners of Patents, and for the registration of 
 trade-marks as belonging to particular classes of goods ;. and for their 
 assignment in connection with the goodwill of the business in which they 
 are used. Registration is substituted for public use as the mode of acquiring 
 the right to a trade-mark, so that now no one can enforce his right to a 
 trade-mark until it is registered. For the purposes of the act, a trade- 
 mark consists (i) of a name of an individual or firm printed, impressed 
 or woven in some particular and distinctive manner ; or (ii) of a written 
 signature or copy of a written signature of an individual or firm ; or 
 (iii) of a distinctive device, mark, heading, label, or ticket. 1 There may 
 be added to any one or more of these essential particulars any letters, 
 words or figures. Certain kinds of marks used as trade-marks before the 
 passing of the act may be registered under the act, although not coming 
 within the statutory definition. 2 
 
 § 2. The act does not provide for the registration of the colour in 
 which a trade-mark is used, and, therefore, the shape of the device alone < 
 
 is considered in deciding whether one trade-mark is like another. 3 
 
 TRADE-NAME. — § r. A trade-name is a name which by user and 
 reputation has acquired the property of indicating that a certain trade or 
 occupation is carried on by a particular person. (See Goodwill.') The 
 name may be that of a person, place or thing, or it may be what is called 
 a fancy name (that is, a name having no sense as applied to the par- 
 ticular trade), or a word invented for the occasion, and having no sense 
 at all. 4 It may be applied to goods, 6 to a magazine, 6 or any other subject 
 of trade. 
 
 § 2. A trade-name gives the person entitled to use it the right of 
 preventing any other person from using it so as to induce purchasers to 
 believe that his goods are the goods sold or manufactured by the original 
 maker, and thus to injure the latter. Thus, where a firm had obtained a 
 reputation for a particular kind of goods distinguished by the word 
 " Glenfield," which was the name of the place where the goods had 
 originally been manufactured, a person who sold the same kind of goods 
 under the name " Glenfield" was restrained by.injunction from so doing, 
 although he had a small manufactory at the place called Glenfield, 
 because it was apparent on the evidence that he used the word to induce 
 the public to believe that in buying his goods they were buying the goods 
 of the plaintiff, the original manufacturer. 7 
 
 As to whether fraud is an essential to make the use of a trade-name 
 actionable, see Trade-Mark, § 5. 
 
 1 See Ex parte Stephens, 3 Ch. D. 659. 5 Ford v. Foster, L. R., 7 Ch. 611. 
 
 2 See generally as to the act, Sebastian 6 Maxwell v. Hogg, L. R, 2 Ch. 307 ; 
 on Trade-Marks ; Orr Ewing v . Registrar and, see Ludlow & Jenkyns, 56 et sea. ; 
 of Trade-Marks, 4App. Ca. 479; Mitchell Levy v. Walker, 10 Ch. D. 436; Massam 
 v. Henry, 15 Ch. D. 181. v. Thorley's Food Co., 14 Ch. D. 748. 
 
 3 Re Worthington, 14 Ch. D. 8. 7 Wotherspoon v. Currie, L. R., 5 H. 
 
 4 Sebastian on Trade-Marks, 37. L. 508. 
 
8 3 o 
 
 Trader 
 
 LAW DICTIONARY.' 
 
 Transfer 
 
 TRADER. — Traders are subject to special provisions of the bank- 
 ruptcy law ; thus, the time allowed for compliance with a debtor's 
 summons (q. v.) is shorter in the case of a trader than in the case of 
 ordinary persons, and the doctrine of reputed ownership {q. v.) is con- 
 fined to traders. "Trader" within the bankruptcy law includes not only 
 persons carrying on trades in the ordinary sense, but also bankers, ship- 
 owners, and many similar classes, enumerated in the ist schedule to the 
 Bankruptcy Act, 1869. 1 
 
 TRADE-UNIONS were originally merely friendly societies con- 
 sisting of artisans, engaged in a particular trade, such as carpenters, 
 bricklayers, &c. ; but in course of time they acquired the character of 
 associations for the protection of the interests of workmen against their 
 employers. The principal objects of such societies at the present day 
 are to increase the rate of wages, reduce the hours of labour, and bring 
 about an equal division of work among a large number of workmen by 
 establishing a uniform minimum rate of wages. They attain these 
 objects principally by the legal means of " strikes," i. e., the stoppage of 
 work by all the members until their demands are complied with, and the 
 illegal means of intimidation, rattening, picketing, &c. (q. v.). The 
 members are supported during strikes by the funds of the society, which 
 are obtained by weekly subscriptions during periods of work. Many 
 trade-unions are also friendly societies. 
 
 § 2. Formerly trade-unions were not recognized by law ; and, as a 
 general rule, their regulations, being in restraint of trade, were illegal, 
 and incapable of being enforced ; 2 but, by the Trade Union Act, 1871, 
 this doctrine was abolished, 3 and provisions (analogous to those applying 
 to friendly societies (q. v.) ) are made for the registration of trade-unions, 
 for the regulations to be contained in their rules, and for the appointment 
 of trustees in whom the property of the union is to vest, &c. But no 
 agreements between the members as to the conditions on which they are 
 to work, or as to the payment of subscriptions or application of the funds, 
 are enforceable in any Court of law. 4 
 
 Account. 
 
 Privy 
 Council. 
 
 Property. 
 
 TRANSCRIPT is an official copy of certain proceedings in a Court. 
 Thus, any person interested in an account in the books of the Paymaster- 
 General for the Chancery Division can obtain a transcript of it. 5 (See 
 Account, § 14.) 
 
 § 2. In the Privy Council, when an appeal is brought, the appellant has 
 to see that a transcript of the proceedings and evidence in the Court below 
 is prepared and transmitted to the Colonial Office by the proper officer. 6 
 (See Appeal, § 5.) 
 
 TRANSFER. — I. § 1. In the law of property, a transfer is where a 
 right passes from one person to another, either (1) by virtue of an act 
 
 1 See In re Cleland, L. R., 2 Ch. 466. 
 
 2 Dam, 187 ; Hornby v. Close, L. R., 
 2 Q. B. 153 ; 36 L. J., M. C. 43. 
 
 3 Sects. 2 and 3. 
 
 4 Sect. 4 ; Rigby v. Connol, 14 Ch. D. 
 482. 
 
 5 Order as to Court Fees, Oct. 1875 C as t 
 item in schedule). 
 
 " Macpherson, Privy C. Pr. 80. 
 

 Transfer LAW DICTIONARY. Transfer 831 
 
 done by the transferor with that intention, as in the case of a conveyance 
 or assignment by way of sale or gift, &c; or (2) by operation of law, as 
 in the case of forfeiture, bankruptcy, descent, or intestacy. 1 A transfer 
 may be absolute or conditional, byway of security, &c. (See Assignment; 
 Bill of Sale; Conveyance.') 
 
 § 2. In practice, "transfer" is used principally in the sense of voluntary Transfer of 
 transfer, and is applied especially to the operation of changing the owner- stock > &c - 
 ship of stock, shares, &c, whether by registering an assignment or other 
 instrument, or by making a simple entry in the register kept for that 
 purpose. The person making the transfer is called the transferor, and 
 the person to whom it is made the transferee. (See Share; Stock.) 
 
 § 3. In chancery and lunacy practice, stocks and other securities stand- Transfer into 
 ing in the names of trustees, lunatics, and other persons, are sometimes Court - 
 ordered to be transferred into the name of the Paymaster-General pending 
 the proceedings, in order that they may be kept in safety until the time 
 comes for them to be transferred out of Court to the parties entitled. (See, 
 Payment into Court; Account, § 14; Ceiiificate, § 18.) 
 
 § 4. Land registered under the Land Transfer Act, 1875, is transferred Transfer of 
 or conveyed by the execution of an instrument of transfer in the statutory land - 
 form, and by the entry of the transfer on the register. 2 The transfer of 
 registered charges is similar. 3 (See Charge, § 6; Land Registries.) 
 
 § 5. A transfer of a mortgage takes place when the mortgaged property Mortgage. 
 and the right to receive the mortgage debt are conveyed by the mort- 
 gagee, either alone or with the concurrence of the mortgagor, to a third 
 person. Formerly it was an advantage to obtain the concurrence of the 
 mortgagor, in order that he might covenant with the transferee for pay- 
 ment of the debt, for otherwise the transferee was obliged to sue for the 
 debt as attorney of the mortgagee ; 4 but now the assignee of a debt can 
 sue in his own name. 5 (See Chose, § 4.) 
 
 As to the transfer of judgments, see fudgment, § 20. Judgments. 
 
 II. § 6. In procedure, "transfer" is applied to an action or other pro- Transfer of 
 seeding, when it is taken from the jurisdiction of one Court or judge and cause - 
 placed under that of another. Any action in the High Court may be 
 transferred from one division to another, or (in the case of an action in 
 the Chancery Division) from one judge to another, by order of the Lord 
 Chancellor ; in the case of a transfer from one division to another, the 
 consent of the president of each division is required. A division may 
 also transfer an action to any other division with the consent of the 
 president of the latter division. 6 In the Chancery Division, a transfer of 
 a cause from one judge to another may be either for all purposes, or for 
 the purpose of trial or hearing only. 1 
 
 1 See Markby's , Elements of Law, veyancing Act, 1881, provides for the use 
 
 \\ 460 et seq. of statutory forms of transfer in the case of 
 
 z Sects. 29, 34 ; General Rules, 23 ; mortgages made in pursuance of the act 
 
 Forms, 23, 24. (s. 27). 
 
 3 Sect.40; Gen. Rules, 21, Fomi2l. 6 Jud. Act, 1873, s.36; Rules of Court, 
 
 i Davids. Conv. ii. 815. li. 1, 2. 
 
 5 Jud. Act, 1873, s. 25, § 6. The Con- 7 Rules of Court, li. la. 
 
832 Transhipment law dictionary. Traverse 
 
 TRANSHIPMENT.— If a ship is in distress in a foreign port, and 
 the master is unable to carry the cargo further, he is generally entitled to 
 tranship it, that is, put it on board another vessel and forward it to its 
 destination, and thus earn the freight. But he is not justified in doing so 
 if it would increase the freight payable by the shipper of the cargo, or 
 cause a loss to the owners of the ship. 1 
 
 TRANSIRE.— In the law of merchant shipping, when a coasting 
 vessel is about to sail from her port of lading, an account giving parti- 
 culars of the ship and her cargo must be delivered in duplicate to the 
 Customs Collector of the port. He returns the original account, dated 
 and signed by him, and this constitutes the "clearance" of the ship, and 
 the "transire" or pass for the cargo; that is, it is an authority to the 
 Custom House officers to let the vessel sail. The transire must be 
 delivered up to the collector at the port of discharge before any of the 
 cargo is unladen. A general transire may be granted to a coasting ship. 2 
 
 TRANSIT— TRANSITUS. See Stoppage in Transitu. 
 
 TRANSIT IN REM JUDICATAM, "It passes into or becomes 
 a res judicata," is a short mode of saying that when a person has 
 obtained a judgment in respect of a given right of action, he cannot 
 bring another action for the same right, but must take proceedings to 
 enforce his judgment. 3 (See Merger, § 2; Res Judicata!) 
 
 TRANSITORY. See Action, § 23. 
 
 TRANSPORTATION.— Under stat. 5 Geo. 4, c. 84, which revised 
 and consolidated the previous acts on the subject, the crown was enabled 
 to appoint places beyond the seas to which offenders might be conveyed 
 and kept to hard labour. During the present reign the punishment of 
 transportation was abolished, and that of penal servitude (q. v.) sub- 
 stituted. 4 
 
 Pleadings, TRAVERSE.— § 1. In the ordinary practice of the High Court, to 
 
 a avi s, &c. t raverse is to deny an allegation of fact. The term is used both in 
 pleadings and in affidavits: thus if a plaintiff replies by simply joining 
 issue on the statement of defence he traverses, that is, denies, all the 
 material allegations in the defence. 5 (See Confession and Avoidance.) 
 § 2. So in an answer to interrogatories, a denial of the allegation impliedly 
 contained in an interrogatory is a traverse, and may be either simple or 
 subject to an explanation or admission previously given. (See Answer, 
 § 1.) In an affidavit of documents, again, the paragraph stating that the 
 
 1 Maude & Pollock, Merch. Shipp. 321; 4 Steph. Comm. iv. 449. 
 
 Kay's Shipmaster, 287. 5 Hull v. Eve, 4 Ch. D. 341. As to 
 
 2 Customs Consolidation Act, 1876, special traverses, traverses de injuria, &c. 
 ss. 145 et seq. under the old common law practice, see 
 
 3 King v. Hoare, 13 M. & W. 494; Stephen, PI. (5), 190, 193. 
 Chitty on Contracts, 721. 
 
Traverse law dictionary. Traversing Answer 833 
 
 deponent has no documents in his possession except those specified in 
 the affidavit is sometimes called the traverse, because the affidavit is 
 in the same form as if it were made in answer to an interrogatory. 1 
 
 § 3. Traverse of office or inquisition is a mode by which a subject can, Office or 
 in certain cases, dispute an office or inquisition finding the crown entitled m 1 UIS1 lon> 
 to property claimed by him. It was formerly a convenient remedy, on 
 account of the difficulty of obtaining redress against the crown by petition 
 of right, but since the amendment and extension of the latter mode of 
 proceeding, traverses of office have fallen into disuse. One of the most 
 usual instances of their use was in resisting extents (see Extent), in which 
 case the defendant or traverser (z - . e., the person claiming the property) 
 entered an appearance and claim, followed by a plea or traverse disputing 
 the debt alleged by the crown, to which the crown replied or demurred, 
 and so on, until issue joined, when the cause was tried by a jury at West- 
 minster. Judgment for the crown on a traverse is, "that the subject take 
 nothing by his traverse;" if for the subject, it is judgment oiamoveas manus 
 — "that the Queen's hands be amoved, &c." 3 
 
 § 4. This procedure by traverse was extended to inquisitions in lunacy Lunacy, 
 by stat. 2 & 3 Edw. 6, c. 8. Under the present practice, where a person 
 has been found lunatic by inquisition, 3 and wishes to vacate it on the 
 ground that he was of sound mind and capable of managing himself and 
 his property when it was returned, he presents a petition for leave to tra- 
 verse the inquisition, which is done by filing in the Petty Bag Office a 
 traverse or plea alleging the insufficiency of the inquisition, to which the 
 prosecutor of the commission replies in the name of the Attorney-General 
 representing the crown. The record is then made up and carried into 
 the Queen's Bench Division for trial, and tried before a jury in the same 
 manner as an ordinary issue. The result is either to affirm or vacate the 
 inquisition. 4 
 
 § 5. Formerly, where a person indicted of a misdemeanor, but not Indictment, 
 actually in custody, traversed the indictment by pleading not guilty, the 
 trial was postponed until the next assizes or sessions, and hence " tra- 
 verse" came to mean "postpone." The stat. 14 & 15 Vict. c. 100, s. 27, 
 provides that no person shall be entitled to traverse, that is, postpone, the 
 trial of any indictment. 5 
 
 Etymology.]— Old French, traverser, to deny ; 6 from Latin, transversus. 
 
 TRAVERSING ANSWER- TRAVERSING NOTE.— In suits under the old 
 practice in Chancery, where the defendant refused or neglected to file an answer to the 
 bill, the plaintiff might file either a traversing answer or a traversing note, which pro- 
 duced the same effect as if the defendant had filed an answer traversing the case made 
 by the bill. 7 (See Pro confesso.) 
 
 1 Noel v. Noel, I De G., J. & S. 461 ; * Elmer, Pr. in Lunacy, ch. ix. ; Staunf. 
 Rochdale Canal Co. v. King, 15 Beav. 11. Pier. c. 20; Pope on Lunacy, 71. 
 
 2 Chitty, Prer: 356 et seq. ; Tidd's Pr. 6 Archbold, Cnm. PI. 97. 
 1076. " Britton, 147 a. 
 
 3 Not by trial under Lunacy Reg. Act, ' Darnell's Ch. Pr. 436. The modern 
 1862, s. 4 (see Inquiry, § 5), for in that practice dispenses with these fictions. See 
 case the inquisition can only be questioned Rules of Court, xxix. passim. 
 
 by new trial or new inquiry. 
 
 S. 3H 
 
834 
 
 Treason 
 
 LAW DICTIONARY. 
 
 Treasure Trove 
 
 High treason. 
 
 Petty treason. 
 
 TREASON, in its most general sense, is a crime committed by one 
 person against another to whom he is bound by some tie of allegiance or 
 subjection. 1 It was formerly of two kinds, high treason and petit treason. 
 The former now alone exists. 
 
 I. § 2. A person commits high treason who does an overt act showing 
 an intention to kill or depose the Queen, or to do her any bodily harm 
 tending to death or destruction, maim or wounding, imprisonment or re- 
 straint ; or to kill the wife of a king regnant ; or to kill the heir-apparent 
 to the throne ; or who levies war against the Queen ; or who attempts by 
 insurrection to intimidate the Queen or the Houses of Parliament ; or who 
 actively assists the Queen's enemies ; or who violates the wife of a king 
 regnant, or the eldest daughter of the sovereign, or the wife of the heir- 
 apparent ; or who kills the Lord Chancellor, or one of certain other high 
 officials of the crown. Endeavouring to deprive or hinder any person 
 from succeeding to the crown under the Act of Settlement, or denying 
 the validity of the Act of Settlement, are also treasons. 3 (See Overt Act.) 
 
 § 3. High treason is punishable by hanging, or, in the case of a man, 
 by beheading, if so directed by the crown. 3 
 
 § 4. The offence is an exception to the ordinary criminal law (i) in being 
 subject to limitation in respect of time (stat.7 Will. 3, c. 3, providing that 
 no person shall be prosecuted for treason but within three years after the 
 offence, except in the case of a designed assassination of the sovereign) ; 4 
 (ii) in two witnesses being required for a conviction, unless the prisoner 
 freely confesses his crime ; 5 and (iii) in the prisoner being entitled to have 
 a copy of the indictment and lists of the witnesses and jurors delivered to 
 him ten days before the trial, unless he is charged with compassing or 
 imagining bodily harm to the sovereign. 8 
 
 II. § 5. Petty treason was where a servant killed his master, a wife her 
 husband, or an ecclesiastical person his superior, such a crime being con- 
 sidered a violation of private allegiance. Petty treason has been abolished 
 by being converted into the crime of murder, from which it only differed 
 in its punishment. 7 
 
 See Accessory. 
 
 Etymology. ]— Norman-French, tresotin, tresun ; 8 Latin, tradere, to deliver up, 
 betray. 
 
 TREASURE TROVE is where any money, coin, gold, silver, plate, 
 or bullion, is found hidden in the earth or other private place. It belongs 
 to the crown, unless the owner appears to claim it. 9 The crown may grant 
 the right to treasure trove found within a certain district to a private 
 person, e. g. the lord of a manor. (See Franchise ; Manor; Prerogative ; 
 Derelict; Wreck.) 
 
 1 Bl. Comm. iv. 75 ; Mirror, ch. 1, § 7. 
 
 2 Ibid.; Steph. Comm. iv. 162; Stephen, 
 Cnm. Dig. 32 et seq. ; stats. 25 Edw. 3, 
 c. 2 ; 1 Anne, s. 2, c. 17 ; 6 Anne, c. 7 ; 
 36 Geo. 3, c. 7. As to what are called 
 treasonable felonies or treason felonies, 
 such as acts showing an intention to depose 
 the Queen, or to intimidate her or the 
 houses of parliament, see 11 & 12 Vict, 
 c. 12. See also Assault, § 4. 
 
 3 Stephen, Crim. Dig. 36; see the 
 Felony Act, 1870, s. 31. 
 
 4 Steph. Comm. iv. 163. 
 6 Ibid. 426. 
 
 6 Ibid. 420. 
 
 7 Steph. Comm. iv. 76; Phill. Eccl. 
 Law, 38 ; stat. 24 & 25 Vict. c. 100, s. 8. 
 
 8 Britton, 16 a. 
 
 Bl. Comm. i. 295 ; Steph. Comm. ii. 
 546. 
 
Treasury law dictionary. Trespass 835 
 
 TREASURY is that fiscal department of the government which con- 
 trols the payments of the public money in accordance with the votes of 
 the House of Commons. For this purpose it issues directions to the 
 Exchequer (q. v.)} 
 
 TREATY. — I. § 1. In private law; treaty signifies the discussion of Agreement. 
 terms which immediately precedes the conclusion of a contract or other 
 transaction. A warranty on the sale of goods, to be valid, must be made 
 during the treaty preceding the sale. 2 
 
 II. § 2. In public and international law, a treaty is an agreement be- Foreign 
 tween the governments of two states. (See State.) Such an agreement states. 
 is, of course, not enforceable by legal proceedings. (See Law, § 2; Inter- 
 national Law.) In England, the power of making treaties with foreign 
 statesis vested in the crown as part of its prerogative. 3 In some cases, 
 however, treaties made by the crown are not valid in the Courts of this 
 country unless concluded under the powers of an act of parliament. For 
 an instance, see Extradition. 
 
 TREBLE COSTS— TREBLE DAMAGES. See Costs, § 7 ; Double 
 Damages. 
 
 TRESPASS is a generic name for various torts, most of them being 
 distinguished by the Latin words formerly used in the appropriate writs. 
 
 § 1. Trespass vi et armis (" with force and arms ") includes injuries to Vi et armis. 
 the person accompanied with actual force or violence, as in the case of 
 battery and imprisonment, 4 and the act of entering on another man's land 
 without lawful authority. This latter kind of trespass (in which the "force" 
 is implied or fictitious) is also called trespass quare clausum /regit, "because Quare cl. fr. 
 he [the defendant] broke or entered into the close " or land of the plain- 
 tiff. 5 Not only entering a man's land, but also the acts of allowing cattle 
 to stray into his land, or driving nails into his wall, or digging the minerals 
 under his land, constitute trespass qu. cl. fr. c To enable a person to bring 
 an action of trespass qu. cl. fr., he must have actual possession of the land. 
 Therefore, an heir of land cannot maintain an action for a trespass com- 
 mitted before he took possession by entry. 7 (See Possession, §§ 11, 12.) 
 § 2. Where a person has by law the right to enter on the lands of another Ab initio. 
 for a certain purpose, and, after entry, he does something which he is not 
 entitled to do, then he is considered a trespasser ab initio, or as if his 
 entry had been unlawful. 8 § 3 . A continuing trespass is one which is per- Continuing. 
 
 1 For details, see Homersham Cox, Inst. fied by the old authorities ; the forms for 
 678 et seq. ; Return to House of Commons trespass qu. cl. fr. in the Register have 
 on Public Income and Expenditure (29th sometimes the words vi et armis, some- 
 July, 1869), pp. 334 et seq. ; Madox, Exch. times not. It is therefore probable that 
 262 and passim. they were originally only inserted where the 
 
 2 Chitty on Contracts, 419. trespass was forcible as well as wrongful. 
 
 3 Steph. Comm. ii. 490. 6 Underbill on Torts, 159. 
 
 4 Broom, C. L. 125. 7 Steph. Comm. iii. 399. 
 
 5 Stephen's Comm. iii. 364, 398. The 8 Six Carpenters'' Case, 8 Rep. 146 b ; 
 fiction of "implied force" in a peaceable Smith's L. C. i. 
 
 though wrongful entry on land is not justi- 
 
 3 H 2 
 
836 Trespass law dictionary. Trial 
 
 manent in its nature ; as, where a person builds on his own land so that 
 part of the building overhangs his neighbour's land. 
 De bonis § 4. Another variety of trespass vi et armis is trespass de bonis asportatis, 
 
 asportatis. for the wron gf u i taking of chattels. 1 Injuries committed to chattels while 
 in the owner's possession (e. g., by poisoning his cattle), are also classed 
 under the head of trespass vi et armis. 2 
 Trespass on § 5. Trespass on the case is a class of torts for which no remedy 
 
 the case. existed at common law until the Statute of Westminster 2 (13 Edw. 1, 
 
 c. 24) directed that whenever a writ existed, and "in a like case" (in 
 consimili casu), falling under the same right, and requiring a like remedy, 
 no form of writ was to be found, then a new writ should be framed. The 
 principal distinction between trespass vi et armis and wrongs for which writs 
 were framed under this statute (hence called writs of trespass on the case, 
 or " case" simply), is that in the former the damage is direct, and in the 
 latter consequential. Thus, if a man throws a log on a highway, and 
 in so doing injures a person, this is trespass ; but if the log lies on the 
 ground, and a person is injured by falling over it, this is case. 3 The 
 principal action for trespass on the case, having a specific name, is 
 trover (?.».)/ but the class also includes a large number of torts having no 
 specific name, especially those arising from negligence, fraud, &c. 5 
 
 § 6. Trespass gives rise to a right of action for damages. (See Tort, 
 
 §*•) 
 
 TRIAL is that step in an action, prosecution or other judicial pro- 
 ceeding, by which the questions of fact in issue are decided. (See Fact ; 
 Issue ; Questions of Law.) 
 
 I. In actions in the High Court, there are five principal modes of 
 trial, viz., trial before a judge and jury, before a judge alone, before 
 a judge with assessors, before a referee alone, and before a referee with 
 assessors. 6 
 Jury. § 2. Trial before a judge and jury (formerly called trial per pais),- 
 
 is a mode of trial which was formerly peculiar to the superior Courts 
 of common law. By the stat. 21 & 22 Vict. c. 27, power was given 
 to the Court of Chancery to summon juries to try questions of fact ; but 
 the power was seldom exercised. Under the Judicature Act, the rule in 
 all the divisions of the High Court is that where the action is of such 
 a nature that either party would have been entitled, before the act, 
 to have it tried by a jury, then either party may insist on its being tried 
 by a jury, unless it is a case coming within the power of compulsory- 
 reference possessed by the Court. 7 (See Notice of Trial ; Reference, § 4.) 
 Therefore either party may require an action for assault to be tried by 
 
 1 Broom, 807. * Assumpsit is also a variety of trespass 
 
 2 Ibid. 809 ; Underbill, 209. on the case; Stephen's PI. 18. 
 
 3 Broom, 125. Hence in actions on the 5 Dicey on Parties, 24. 
 case the words used in the writ were not 6 Rules of Court, xxxvi. 2. 
 
 ■vi et armis, but contra pacem nostram, " Jud. Act, 1873,3.56; Rules of Court, 
 
 " against" our peace;" see Termes de la xxxvi. 3, 4, 5, 26 ; Sugg v. Silber, 1 Q. B. 
 
 Ley, s. v. Trespass. D. 362. 
 
Trial LAW DICTIONARY. Trial 837 
 
 a jury, while no such right exists in the case of an action for specific 
 
 performance, for dissolution of a partnership, or the like. 1 § 3. Where 
 
 an action in the Chancery Division is to be tried by jury, it is not tried 
 
 before the judge to whom it is assigned, but is set down for trial at the 
 
 sittings in London or Middlesex, or at the assizes. § 4. A trial by 
 
 jury consists of the operation of calling and swearing the jury (see Jury ; 
 
 Challenge), of a speech by the counsel for the plaintiff (see Open, § 2), 
 
 the examination, cross-examination and re-examination of his witnesses : 
 
 a speech by the counsel for the defendant, followed by the examination, 
 
 cross-examination and re-examination of his witnesses, and a summing 
 
 up of their evidence by him: the reply or speech by the plaintiff's 
 
 counsel : the summing up of the whole case by the judge for the jury : 
 
 and, lastly, the jury's verdict. 2 (See the various titles; also Right to begin.) 
 
 It sometimes happens, however, that the trial comes to a premature 
 
 end by the non-appearance of one of the parties, or by nonsuit (q. v.), or 
 
 the withdrawal of a juror (q. v.). If the plaintiff does not appear at 
 
 the trial, the action is dismissed ; if the defendant does not appear, the 
 
 plaintiff must prove his case, so far as the burden of proof lies upon him. 
 
 A verdict or judgment so obtained may be set aside by the Court upon 
 
 terms. 3 § 5. Sometimes a trial is ordered to take place before several Trial at bar. 
 
 judges and a jury: 4 this was formerly called a trial at bar (see Bar, § 3), 
 
 as opposed to the ordinary trial, which is sometimes called, by way of 
 
 distinction, " trial at nisi prius.'' (See Nisi Prius.) 
 
 § 6. Where the judge who tried the action has misdirected the jury in New trial, 
 point of law, or admitted evidence which ought to have been refused, or 
 rejected evidence which ought to have been admitted, or where the jury • 
 have found against the weight of the evidence, or given excessive damages, 
 and generally wherever it is clear that a fair trial has not been had, the 
 party aggrieved may obtain an order for a new trial on motion made for 
 that purpose. (See Order, § 3 ; Rule, § 3.) The whole proceedings 
 on the trial are then gone through afresh, and, if the case is again 
 not properly tried, a third trial may be ordered, and so on. 5 
 
 § 7. The other modes of trial are similar to trial before a judge and Trial before 
 jury, except that the calling and swearing of the jury, and the summing l udge '^ e " 
 up by the judge, are necessarily absent. Where the trial is before a 
 judge alone, the evidence is sometimes taken by affidavit. (See Affida- 
 vit, § 2 ; Evidence, § 7.) 
 
 § 8. Admiralty actions involving nautical questions, e.g., actions of Trial with 
 collision, are generally tried before a judge with Trinity Masters sitting as assessors - 
 assessors (q. z>.). 6 
 
 1 See Swindell v. Birmingham Syndi- 2 Smith's Action, 130 et seq. ; Steph. 
 
 cate, 3 Ch. D. 127; Rushton v. Tobin, Comm. iii. 512; Kino v.Rudkin, 6 Ch. 
 
 10 Ch. D. 558. ' If the parties to an action D. 160. 
 
 in the Chancery Division agree to take the 3 Rules of Court, xxxvi. 1 8 et seq. 
 
 evidence by affidavit, neither can insist on * Ibid, xxxvi. 7. 
 
 trial by jury ; Brooke v. TVigg, 8 Ch. D. 6 Smith's Action, 149 et seq. ; Rules of 
 
 cio. Court, xxxix. 
 
 6 Roscoe's Admiralty, 179. 
 
838 
 
 Triers 
 
 LAW DICTIONARY. 
 
 Trinity House 
 
 By the record 
 By certificate. 
 
 County 
 Court. 
 
 Criminal 
 procedure, 
 
 The following kinds of trial are either obsolete or very rare. § 9. Trial 
 by the record is where issue is joined as to the existence of a particular 
 record (q. v.) : such an issue is tried by the Court itself on production of 
 the record. 1 Trial by certificate is where a fact can only be proved by 
 the certificate of a public official: thus, the custom of the city of London 
 in respect of foreign attachment is proved by the oral certificate of the 
 recorder. 2 (See Certificate, § 1, note (3).) 
 
 II. § 10. In County Court actions, the plaintiff appears in Court on the 
 return day of the summons, and the defendant must appear to answer the 
 plaint. On answer being made in Court, the judge proceeds to try 
 the cause in a summary way : 3 in small cases the plaintiff and defendant 
 are sworn and make their statements to the judge, being asked questions 
 by him when necessary; but in cases where counsel or solicitors are 
 employed, and a jury summoned, the course of proceeding resembles that 
 on a trial in the High Court [supra, § 4). 
 
 III. § 11. In criminal cases, the trial of a person accused of a crime 
 usually takes place before a judge and petty jury at the assizes, or at the 
 Central Criminal Court, or at bar, that is, by a jury before three or more 
 judges of the Queen's Bench Division : this last mode of trial is only 
 used in important cases. (See Queen's Bench.) The steps on a criminal 
 trial are substantially the same as those above described {supra, § 4), 
 substituting "prosecutor" for "plaintiff," and "prisoner" for "defen- 
 dant."* (See also Acquittal; Conviction.) The obsolete modes of trial 
 by ordeal, by the corsned, and by battle, will be found described in 
 Blackstone. 6 
 
 Trial by peers. § 12. In cases of treason and felony, a nobleman is entitled to be tried 
 by his peers, that is, by members of the House of Lords. 6 (See Certiorari, 
 § 3 ; Lord High Steward ; House of Lords.) 
 
 Etymology and History.]— Old French, trier ; from late Latin, tritare, to sift, 
 separate, determine ; from Latin, terere, tritum, to thrash corn. 7 
 
 In the old writers " trial" signified not only the trial of questions of fact, but also what 
 we call the argument or hearing of questions of law, e. g. on demurrer. 8 
 
 TRIERS or TRIORS are persons appointed by the Court (when 
 necessary) to decide challenges to jurors, where no jurors have been 
 already sworn on the jury. As soon as two jurors are sworn, they decide 
 all subsequent challenges. Challenges to the array may be tried by the 
 Court itself. 9 (See Challenge ; Elisors.) 
 
 TRINITY HOUSE is the short name usually given to " The master, 
 
 Smith's Action (nth edit.), 126; 
 Archbold's Pr. 750. 
 
 2 Mayor of London v. Cox, L. R., 2 H. 
 L. 239; see Co. Litt. 74a; 9 Co. 30b et 
 seq. ; Bl. Comm. iii. 330, for other obso- 
 lete varieties of trial. 
 
 3 Pollock's County Court Practice, 159. 
 
 i Steph. Comm. iv. 416. 
 
 5 Comm. iv. 342. 
 
 6 Bl. Comm. i. 401. 
 
 ' Diez. "Wortb. ii. 444 ; Littre, s. 
 A form detrier occurs in Britton, 127 a. 
 8 Co. Litt. 124. 
 Archbold, Pr. 392. 
 
■Trinity Masters LAW dictionary. Trust 839 
 
 wardens and assistants of the guild, fraternity or brotherhood of the most 
 glorious and undivided Trinity, and of St. Clement in the parish of 
 Deptford Strond in the county of Kent ; " also called the Corporation 
 of the Trinity House of Deptford Strond. It was incorporated in the 
 reign of Henry VIII., and charged by many successive charters and acts 
 of parliament with numerous duties relating to the marine, especially in 
 relation to pilotage (q. v.) and the erection and maintenance of light- 
 houses, beacons and sea-marks. 1 
 
 TRINITY MASTERS are elder brethren of the Trinity House. If 
 a question arising in an Admiralty action depends upon technical skill 
 and experience in navigation, the judge or Court is usually assisted at 
 the hearing by two Trinity Masters, who sit as assessors and advise the 
 Court on questions of a nautical character. 2 (See Assessor.) 
 
 T,RQVER. — In common law practice, the action of trover (or trover 
 and conversion) was a species of action on the case (see Trespass, § 5), 
 and originally lay for the recovery of damages against a person who had 
 found another's goods and wrongfully converted them to his own use ; 
 subsequently the allegation of the loss of the goods by the plaintiff and 
 , the finding of them by the defendant was merely fictitious, and the action 
 became the remedy for any wrongful interference with or detention of 
 the goods of another. 3 The name "trover" is sometimes applied to an 
 action brought for the same purpose under the Judicature Act, though, 
 at the present day, it is probably more usual in such a case to bring an 
 action claiming delivery of the goods and damages for the wrongful 
 detention. 4 In an action of trover the plaintiff could only recover the 
 value of the goods, not the goods themselves. (See Detinue ; Tort; Writ 
 0/ Delivery.) 
 
 TRUCK ACT is the statute 1 & 2 Will. 4, c. 37, passed to abolish 
 what is commonly called the "truck system," under which employers 
 were in the practice of paying the wages of their workpeople in goods, 
 or of requiring them to purchase goods at certain shops : this led to 
 labourers being compelled to take goods of inferior quality at a high 
 price. The act applies to all artificers, workmen and labourers, except 
 those engaged in certain trades, especially iron and metal works, quarries, 
 cloth, silk and glass manufactories. It does not apply to domestic or 
 agricultural servants. 5 
 
 TRUE BILL. See Indictment. 
 
 TRUST.— I. § 1. A trust, in its simplest form, is a relation between 
 two persons, by virtue of which one of them (the trustee) holds property 
 
 1 Merchant Shipping Act, 1854; Steph. i See the forms of writs in AppendixA. 
 Comm. iii. 156 et seq. part ii. section iv. to the Rules of Court. 
 
 2 Williams & Brace's Admiralty, 271. 6 Smith's Master and Servant, 166; 
 
 3 Stephen's Comm. iii. 425. stat. 23 & 24 Vict. c. 151, s. 28. 
 
840 
 
 Trust 
 
 LAW DICTIONARY. 
 
 Trust' 
 
 Assignments 
 of trusts. 
 
 Devolution of 
 trusts. 
 
 Trusts by 
 act of the 
 party. 
 
 Express. 
 
 for the benefit of the other (the cestui que trust), while as regards the 
 rest of the world he (the trustee) is, for most purposes, absolute owner 
 of it. 1 The right of the cestui que trust to that benefit is enforceable 
 as a personal right only against the trustee and those who have acquired 
 interests in the trust property with notice of the trust. As between the 
 trustee and cestui que trust, and those claiming under them, the cestui 
 que trust is in effect beneficial owner of the trust property, 2 either 
 absolutely or with restrictions according to the nature of the trust. As 
 trusts were formerly enforced only in equity, he is sometimes called 
 equitable owner. 3 (See Ownership, §"'10; Equity, § 7; Estate, § 13.) 
 § 2. This equitable ownership or interest is assignable, except in the case 
 of a restraint on alienation or anticipation (see those titles), or of a 
 discretionary trust {infra, § 14). By the Statute of Frauds (q.v.) all 
 grants and assignments of trusts must be in writing, signed by the grantor 
 or assignor. No particular form of words is required for an assignment 
 of a trusty but it is the custom to employ the same kind of instrument and 
 the same form of words as if the interest were legal instead of equitable. 4 
 
 § 3. The devolution of a trust, that is, of an equitable estate or interest 
 in property, follows the rules of law applicable to a corresponding legal 
 estate or interest : therefore if A. holds land in trust for B. absolutely, 
 and B. dies intestate, his heir (whether heir at law, or heir in gavelkind 
 or borough-English, 6 according to the tenure of the land), becomes cestui 
 que trust, or beneficial owner, of the land ; in the case of personal 
 property, B.'s interest would pass to his executors, and be distributed, 
 afterpayment of his debts, among his next of kin. (See Assets, § 3.) Trust 
 property is liable to be taken in execution (see Elegit, § 2 ; Execution, 
 § s ; Statute of Frauds), and if the cestui que trust becomes bankrupt it 
 vests in the trustee in his bankruptcy. The ownership of the trustee, on 
 the other hand, is not subject to his debts, does not pass to his trustee if 
 he becomes bankrupt v and is not liable to succession duty on his death. 
 
 Trusts arise either bythe act of the party or by operation of law. 
 
 I. § 4. Trusts by act of the party are either express or implied. 
 
 A. § 5. An express trust is one created by clear words : as where A. 
 gives property to B. in trust for C, or otherwise expresses a clear inten- 
 tion that C. shall have the benefit of it. 6 A. is called the author of the 
 trust, or the settlor, testator, &c, according to the instrument by which 
 the trust is created. As to where writing is required for the creation of 
 trusts, see Statute of Frauds ; Declaration, § 2. See also Secret Trusts. 
 
 ( 1 ) § 6. With reference to the completeness with which they are expressed 
 by the author of the trust, trusts are of two classes, viz. (i) those in which 
 the objects of the trust are completely indicated, and (ii) those in which 
 
 1 As to trusts generally, see Lewin on 
 Trusts ; "Watson's Comp. Eq. 839 et seq. 
 As to the origin of trusts, see Butler's 
 note to Co. Litt. 290 b, and title Use. 
 
 2 Burgess- v; Wheate, I Ed. 224 (at 
 p. 250). 
 
 3 Actions for the execution of trusts 
 must be assigned to the Chancery Division 
 
 of the High Court. Judicature Act, 1873, 
 
 s - 34- 
 
 4 Williams, R. P. 169; Lewm on Trusts, 
 
 494- 
 
 6 Williams, R. P. 168. 
 
 6 Provided that it is not cf such a nature 
 as to take effect as a use under the Statute 
 of Uses. (See Use.) 
 
Trust LAW DICTIONARY. Trust 841 
 
 they are not. (i) § 7. Trusts of the former class are again divisible into 
 trusts executed and trusts executory. An executed trust is one in which Executed 
 the limitations of the equitable interest are complete and final ; as if A. trust- 
 conveys property in trust for C. for life, and after his death in trust for 
 D. absolutely. In an executory trust the limitations of the equitable Executory 
 interest are intended to serve merely as minutes or instructions for trust- 
 perfecting the settlement at some future period ; ' thus, a trust in marriage 
 articles to settle land on the intended husband for life, with remainder to 
 the heirs of the body of the husband and wife, is executory, because it 
 contemplates a future settlement in accordance with the intention ex- 
 pressed by the articles, which is that such a limitation may be made as 
 will give the husband a life estate only, with remainder to the eldest and 
 other sons successively in tail ; — the distinction is important, for if the 
 limitations in the articles were treated as final (in other words, as an 
 executed trust) they would, under the rule in Shelley's Case (q. v.), give 
 the husband an estate tail, which would enable him to defeat the interests 
 of the issue. 2 (ii) § 8. A trust in which the objects are not completely Power in the 
 indicated is sometimes called a power in the nature of a trust, or a mixture ^°^ e ° f 
 of a trust and power ; in other words, a trust of which the outline only is 
 sketched by the settlor, while the details are to be filled up by the good 
 sense of the trustees ; 3 as if A. gives property to B. with power (or upon 
 trust) to dispose of it among A.'s relations, then in default of a disposal 
 by B. the property will be divisible among A.'s next of kin. 4 
 
 (2) With reference to their purposes, trusts are either public or private. 
 § 9. "By public must be understood such as are constituted for the Public trusts, 
 benefit either of the public at large or of some considerable portion of it 
 answering a particular description. To this class belong all trusts for charitable 
 charitable purposes, and indeed public trusts and charitable trusts may be trusts - 
 considered in general as synonymous expressions. § 10. In private trusts Private trusts. 
 the beneficial interest is vested absolutely in one or more individuals who 
 are, or within a certain time may be, definitely ascertained, and to whom 
 therefore collectively, unless under some legal disability, it is, or within 
 the allowed limit will be, competent to control, modify or determine the 
 trust'." 5 Public trusts are necessarily administrative (q. v.); private 
 trusts, on the other hand, may be simple [passive] or special [active]. , 
 
 § 1 1. " The simple trust is where property is vested in one person upon simple or 
 trust for another, and the nature of the trust not being prescribed by the P asslve trusts 
 settlor, is left to the construction of law. In this case the cestui que 
 trust has jus habendi, or the right to be put in actual possession of the 
 
 1 Lewin on Trusts, 89 ; White & Tudor' s has thought right to confide it. . . . If 
 L. C. i. 18 ; notes to Glenorchy v. Bosville, there is any person entitled to exercise the 
 Ca. t. Talb. 3. power, the trust will be for those of the 
 
 2 Ibid. relations and kindred whom such person 
 
 3 Lewin, 19. shall select ; if the power is extinct the 
 
 4 Salusbury v. Denton, 3 K. & J. 529 ; trust is for those who answer the descrip- 
 White & Tudor's L. C. ii. 876. " A dis- tion of relations and kindred according to 
 position of this kind contains a mixture of the construction this Court may put upon 
 trust and power. The trust must be exer- these words." Per Sir W. Grant, Cole v. 
 cised for relations and kindred of some Wade, 16 Vesey, at p. 43. 
 
 description or other. The power of selec- 5 Lewin, 20. 
 
 tion belongs to those to \tfhom the testator 
 
842 
 
 Trust 
 
 LAW DICTIONARY. 
 
 Trust 
 
 Special or 
 active trusts. 
 
 Imperative 
 trusts. 
 
 Discretionary 
 trusts. 
 
 Ministerial or 
 administrative 
 trusts. 
 
 Discretionary 
 trusts (sensu 
 lato). 
 
 Implied 
 trusts. 
 
 Precatory. 
 
 property, and jus disponendi, or the right to call upon the trustee to 
 execute conveyances as the cestui que trust directs ;" he is, in short, 
 absolute equitable owner of the property. (See Trustee, § 10.) 
 
 §12." The special trust is where the machinery of a trustee is introduced 
 for the execution of some purpose particularly pointed out, and the trustee 
 is not, as before, a mere passive depositary of the estate, but is called upon 
 to exert himself actively in the execution of the settlor's intention ; as where 
 a conveyance is to trustees upon trust to sell for payment of debts," 1 or to 
 pay the income to a given person during his life. (See Settlement?) With re- 
 ference to the obligations of the trustee, special trusts are divisible into im- 
 perative and discretionary. § 13. An imperative trust is where the trustee 
 is bound to act in the manner directed ; thus, if the property is given upon 
 trust to sell, the trustee is bound to sell. § 14. A discretionary trust is 
 where the performance or exercise of the trust and not merely the mode of 
 its exercise is left to the discretion of the trustee : as if property is given 
 to B. upon trust to apply it for the benefit of C. or his wife and children 
 during his life in such manner and so long as B. in his discretion shall 
 think best ; such trusts are not unfrequently inserted in wills and settle- 
 ments when it is desired to prevent an allowance given to a spendthrift 
 and his family from being assigned by him or 'taken by his creditors on 
 his bankruptcy, because, as the trust cannot be enforced against the 
 trustee, C. has no interest capable of being sold or otherwise dealt with 
 for the benefit of his creditors. 2 § 15. With reference to the mode in 
 which they are to be exercised, special trusts are divisible into ministerial 
 (or instrumental) and discretionary. "Ministerial trusts are such as 
 demand no further exercise of reason or understanding than every 
 intelligent agent must necessarily employ ; such is a trust to convey an 
 estate to a certain person. Discretionary trusts (in the general sense of 
 the word) are such as cannot be duly administered without the appli- 
 cation of a certain degree of prudence and judgment ; 3 as where a fund 
 is vested in trustees upon trust to distribute among such charitable 
 objects as the trustees shall think fit. So a trust for sale must be con- 
 sidered discretionary. (See Discretion.) § 16. To this class belongs what 
 is called a trust with a power annexed, where the trust itself is complete, 
 and the power being but an accessory may be exercised or not as the 
 trustee may deem it expedient ; as where lands are limited to trustees with 
 a power of varying the securities." 4 
 
 B. § 17 . An implied trust is where the intention to create the trust is 
 inferred. Thus, if A. gives property to B., " not doubting," " entreating," 
 or "hoping" that B. will employ it for the benefit of C, a trust is 
 implied in favour of C, the execution of which C. can enforce, although 
 it is given in a precatory form. This is called a precatory trust. 6 
 
 1 Lewin, 18. 
 
 2 Elphin. Conv. 297. 
 
 3 Lewin, 18. A trust may therefore be 
 discretionary either with reference to 
 whether it shall be exercised at all, or with 
 reference to the mode in which it shall be 
 
 exercised. 
 
 4 Lewin, 19. 
 
 6 Ibid. 86, note ; Harding v. Gfyn, 
 1 Atk. 469 ; White & Tudor's L. C. ii. 
 860 ; Willis v. Kymcr, 7 Ch. D. 181. 
 
Trust law DICTIONARY. Trust 843 
 
 § 18. An honorary trust is where A. gives property to B. " relying on Honorary, 
 his honour " (or using equivalent words) that he will employ it for the 
 benefit of C. Such a trust is not legally enforceable. 1 
 
 II. § 19. Trusts by operation of law are such as are not declared by the Trusts by 
 party at all, either directly or indirectly, but result from the effect of °£ eration °f 
 a rule of equity. They are of two kinds, resulting and constructive. 
 
 § 20. A resulting trust arises where a trust is created which does not Resulting 
 dispose of the property. Thus, if an estate is devised to A. and his heirs trusts- 
 upon trust to sell and pay the testator's debts, then the surplus of the 
 beneficial interest constitutes a resulting trust in favour of the testator's 
 heir. (See Result.) As a general rule, where in a conveyance or will the 
 legal estate is given to a person, but no trust is expressed, and an inten- 
 tion can be collected that the grantee or devisee should not take the 
 beneficial interest (as where a person purchases property in the name 
 of another), the interest will result to the grantor, purchaser, &c. ; 
 similarly, if part of the beneficial interest is disposed of, the residue will 
 result. 2 (See Advancement, § 4; Conversion.) §21. Where a private trust Failure of 
 wholly fails, and there are no heir, next of kin or other persons repre- trust ' 
 senting the settlor, then, in the case of real estate, the trustee takes it 
 for his own benefit, 3 while in the case of personal estate it goes to the 
 crown as bonum vacans* As to charitable trusts, see Cy-pres. 
 
 § 22. A constructive trust is one which the Court creates by a construe- Constructive 
 tion put upon certain acts of the parties : thus, when a tenant for life of trusts - 
 leaseholds renews the lease on his own account, the law gives the benefit 
 of the renewed lease to those who were interested in the old lease. 6 
 § 23. As soon as a valid contract for the sale of land has been entered 
 into, the vendor becomes in equity a trustee of the land for the purchaser, 
 to whom the beneficial ownership passes. The vendor has a lien for 
 his purchase-money, and is entitled to retain possession until he is paid ; 
 but he is accountable to the purchaser for the rents and profits, and for 
 any wilful waste or neglect. 6 
 
 II. § 24. "Trust" is used in a peculiar sense to denote a mode of Investment 
 carrying on a business for purposes of profit. Thus a "share invest- ' 
 
 ment trust " is an agreement between a small number of persons (the 
 trustees) and a comparatively large and fluctuating body of persons 
 (generally called subscribers, certificate holders, or the like), that the 
 trustees shall acquire and hold certain shares in companies and receive 
 the income for the benefit of the subscribers, with power to sell any 
 shares and re-invest the proceeds in other shares. Such an arrangement 
 does not constitute the subscribers an association within the meaning of 
 the Companies Act, 1862, and therefore does not require registration, 
 unless the trustees exceed twenty in number. 7 
 
 1 L. R., 18 Eq. 114. ° Lewin, 113 ; Lysaght v. Edwards, 2 
 
 2 Watson, 868 ; White & Tudor,-i. 184. Ch. D. at p. 506. 
 
 3 Williams, R. P. 167. 7 Smith v. Anderson, 15 Ch. D. 247, 
 
 4 Lewin on Trusts, 234. overruling Sykes v. Beadon, 11 Ch. D. 170, 
 6 Ibid. 86, n. ; White & Tudor, i. 40. where the question whether the " trust " 
 
 in that case was a lottery was raised. 
 
84* 
 
 Trustee 
 
 LAW DICTIONARY. 
 
 Trustee 
 
 Private 
 trustees. 
 
 Devolution of 
 office. 
 
 Power of 
 appointing 
 new trustees. 
 
 TRUSTEE.— I. § i. In the strict sense of the word a trustee is a 
 person who holds property upon trust (q. v.). 
 
 I. As to private trustees, or trustees acting under wills, settlements, 
 and similarinstruments. 
 
 § 2. Any person or corporation may hold property as trustee, but as 
 persons under disability (such as infants and married women) are unable 
 to exercise many of the powers annexed to the office, they are rarely 
 appointed trustees. (See Trustee Acts) Corporations, moreover, cannot, 
 as a rule, hold land without the licence of the crown, and therefore are 
 unfit to be trustees of land ; they also cannot be cestui que trusts of land 
 without the licence of the crown. 1 (See Mortmain.) 
 
 § 3. The office of a trustee is a personal one, and does not necessarily 
 devolve or pass with the trust property. If one of several trustees dies, 
 the office devolves on the survivors ; the property also passes to the 
 survivors, trustees being always made joint tenants. 2 (See Joint Tenancy, 
 § 9.) Formerly, when a sole trustee died, the property passed to his heir 
 or devisee if it was realty, or to his personal representatives or legatee if 
 it was personalty. This rule was recently altered as regards bare trustees'; 3 
 and now when any sole trustee or mortgagee of real estate dies after the 
 31st December, 1881, the same shall, notwithstanding any testamentary 
 disposition, devolve to his personal representatives as if it were a chattel 
 real. 11 When a new trustee is appointed in the place of the deceased, his 
 real or personal representatives convey the property to the new trustee by 
 the same modes of conveyance (deed of grant, assignment, &c.) as 
 those used in conveyances by absolute owners : until that is done they 
 hold the property upon trust so to convey it, but they are not clothed 
 with the office of trustee under the instrument creating the trust, unless 
 it so provides, and therefore they cannot exercise any of the powers con- 
 ferred by the trust. § 4. Trusteeship is also different from executorship. 
 Therefore if a testator appoints A. to be executor and trustee of his will, 
 and A. renounces the executorship, he remains trustee unless he executes 
 a disclaimer of the office. (See Disclaim ; Renounce!) 
 
 § 5. Most instruments creating trusts contain a power of appointing 
 new trustees : the power is generally vested either in the beneficiaries 
 (cestui que trusts) or some of them, or in the trustees themselves, in- 
 cluding the last survivor, and his executors or administrators. As 
 regards any instrument executed after 28th August, i860, under which 
 there is no person having a power of appointing new trustees, and 
 able and willing to act, a power of appointing new trustees to supply 
 any vacancy by death, retirement, &c, was, by the Trustees and 
 Mortgagees Clauses Act, 5 vested in the surviving or continuing trustees 
 or trustee or the acting executors or administrators of the last sur- • 
 
 1 Lewin on Trusts, 28, 36. 
 r 2 Williams, R. P. 136. 
 
 3 Stat. 38 & 39 Vict. c. 87, s. 48, re- 
 pealing stat. 37 & 38 Vict. c. 78, s. 4, both 
 repealed by the Conveyancing Act, 1881, 
 s. 30. (See Descent, \ 8.) There is no for- 
 
 feiture or escheat by failure of the heirs or 
 corruption of the. blood of a trustee. Stat. 
 13- & 14- Vict. c. 60, s. 47 ; Williams, 
 R. P. 168. 
 
 4 Conveyancing Act, 1881, s. 30. 
 
 6 Stat. 23 & 24 Vict. 1.. 145. 
 
-trustee LAW DICTIONARY. Trustee 
 
 845 
 
 vrving or continuing, trustee, or the last retiring trustee. 1 These 
 provisions have been extended by the Conveyancing Act, 1881, 
 ss. 31 et seq., which also provides for the vesting of the trust property 
 in the new trustees by a declaration contained in the deed of appoint- 
 ment. § 6. In the case of instruments executed before 28th August, Trustee Acts. 
 i860, and generally whenever it is impossible to appoint new trustees, 
 or to obtain a conveyance of the trust property, recourse must be had 
 to the Court under the provisions of the Trustee Acts (q. v., and see 
 Vesting Order). 
 
 § 7. In addition to the powers given to trustees by the instruments statutory 
 creating the trusts, powers have been conferred on them by statute, powers. 
 especially by the Trustees and Mortgagees Act, i860 (supplemented by 
 the Conveyancing Act, 1881, sect. 35), giving trustees power in relation 
 to the sale of real property, and the renewal of leases, &c. As to their 
 statutory powers of investment, see Investment. The Conveyancing Act, 
 1 88 1, sect. 37, empowers trustees to compound and compromise debts, 
 claims, &c, and gives them extensive powers of managing estates belong- 
 ing to infants, and of applying the income. Lord St. Leonards' Act (stat. 
 22 & 23 Vict.c. 35) gives trustees a statutory indemnity for losses not caused 
 by their own acts or defaults, and a power to reimburse themselves for 
 their expenses. 2 As to the power of trustees of wills to pay debts, see 
 Executor, § 6 ; as to the power of trustees to apply to the Court for advice, 
 see Executor, § 10. 
 
 § 8. If a trustee cannot safely administer a trust, he may institute an Action for 
 action to have it executed by the Court ; or, in a proper case, place the execution of 
 trust fund in the hands of the Court under the Trustee Relief Act (q.v.). If a raS * 
 trustee refuses or neglects to administer the trust, or is guilty of a breach 
 of trust, or the like, any beneficiary may institute an action for the 
 execution of the trust by the Court. (See Administration ; Executor, §12; 
 Discretion.) The powers of trustees are suspended by the institution of a 
 suit for the execution of the trusts, and they can only act with the 
 sanction of the Court. 3 
 
 Trustees are of two kinds, active and passive. 4 
 
 § 9. An active trustee, is one who has to perform administrative duties, Active. 
 such as managing the trust property, receiving income and paying it over- 
 to the cestui que trusts, &c. The duties and liabilities of such trustees 
 are of infinite variety ; but it may be said generally that a trustee is 
 bound to take the same care in acting for his cestui que trust as he 
 would, if a prudent man, in acting for himself: 5 and that he must not 
 derive or attempt to derive any benefit from the trust, 6 unless he is autho- 
 rized to do so by the cestui que trust or the terms of the trust. (See 
 Breach of Trust ; Discretion; Negligence.) 
 
 § 10. A passive trustee is one in whom property is vested simply for Passive, 
 the benefit of another person. In such a case the trustee is bound to 
 
 • 1 "Williams, R. P. 176. § II. 
 
 * See Shelford, R. P. Stat. 724. 6 Lewin on Trusts, 260 ; Watson's 
 
 3 Watson's Comp. Eq. 892. Comp. Eq. 892. 
 
 4 Urlin's Office of Trustee, 3; see Trust, 6 Lewin, 243 ; Watson, 885. 
 
.846 
 
 Trustee 
 
 LAW DICTIONARY. 
 
 ■Trustee 
 
 Bare or dry. 
 
 Public 
 trustees. 
 
 Trustee for 
 company. 
 
 Trustee of 
 loan. 
 
 Trust deed. 
 
 convey the property to the cestui que tmst, or to dispose of it as he may 
 direct, when the time comes for the cestui que trust to deal with it, and in 
 the meantime to hold it on his behalf. 1 
 
 § 11. When the duties of an active trustee have come to an end, or 
 when the time for the cestui que trust to claim possession of the trust 
 property has come, so that in either case the trustee is compellable 
 to convey the property to the cestui que trust, or deal with it according to 
 his directions, then the trustee is called a bare or dry trustee. 2 
 
 II. § 12. As to trustees acting on behalf of the public, or a section of 
 the public, or a large body of persons. Such trustees, if they have 
 any active duties to perform, are usually remunerated for their trouble, 
 while ordinary trustees {supra, § 2) rarely are. An important example 
 of this kind of trustee is the trustee in a bankruptcy or liquidation. (See 
 Trustee in Bankruptcy.} 
 
 § 13. When a company is intended to be formed, it is sometimes found 
 convenient to appoint a person as " trustee on behalf of the intended 
 company" to enter into contracts, &c, on behalf of the company, 
 the trustee having no personal interest in them. The object generally is 
 to enter into such arrangements for the purchase of property as may serve 
 as a basis for the operations of the company, but so as not to be binding 
 until the company is formed and adopts them. 3 (See Fraud, § 16; Pro- 
 moter; Ratification, § 2.) 
 
 § 14. When a loan or issue of debentures, bonds, or the like, is created 
 by a corporation or foreign government, and is intended to be secured by 
 a charge on property, trustees are frequently appointed on behalf of the 
 holders of the bonds or stock to receive and administer the property 
 or the income thereof for their benefit, subject to provisions contained 
 in a document called a trust deed. 1 
 
 As to trustees of charities, see Charitable Trusts Act; Official Trustee of 
 Charity Lands; Official Trustee of Charitable Funds; Succession, § 2. 
 
 II. § 15. Trustee is also used in a wide and, perhaps, inaccurate sense to 
 denote that a person has the duty of carrying out a transaction, in which 
 he and another person are interested, in such manner as will be most 
 for the benefit of the latter, and not in such a way that he himself might 
 be tempted, for the sake of his personal advantage, to neglect the interests 
 of the other. In this sense directors of companies are said to be trustees 
 for the shareholders. 5 The essential difference is, that a trustee owns 
 the trust property and deals with it as principal, subject to his equitable 
 obligation towards his cestui que trust, while a director is rather an agent 
 with a limited authority. 
 
 1 Lewin, 18 ; Urlin, 3 ; Watson, 891. 
 
 2 See Lysaght v. Edwards, 2 Ch. T>. at 
 p. 509; L. R., s H. L. p. 356. As to the 
 meaning of the term as used in the Land 
 Transfer Act, 1875, s - 4 8 > see Christie v. 
 Ovington, I Ch. D. 279 ; Morgan v. 
 Swansea Urban Sanitary Authority, 9 
 Ch. D. 582. The use of the expression 
 "bare trustee" in the Fines and Recoveries 
 Act (3 & 4 Will. 4, c. 74, ss. 27, 31) 
 
 has not been explained. See Official 
 Trustee of Charity Lands. 
 
 3 For an example, see In re Western of 
 Canada Oil, &°c. Co., L. R., 1 Ch. D. 115. 
 
 4 See National Bolivian Navigation Co. 
 v. Wilson, s App. Ca. 176. 
 
 5 Ferguson v. Wilson, 2 Ch. 77 ; Great 
 Eastern Rail. Co. v. Turner, 8 Ch. 149. 
 
 c Smith v. Anderson, 15 Ch. D. 275. 
 
■Trustee Acts law dictionary. Trustee Relief Acts 847 
 
 TRUSTEE ACTS are the statutes 1 3 & 14 Vict. c. 60 and 1 5 & 1 6 Vict. 
 c. 55, passed to enable the Court of Chancery (now the High Court of 
 Justice, on petition presented in the Chancery Division) to appoint new 
 trustees of a settlement, will or other instrument creating a trust, when- 
 ever a trustee's death, lunacy, absence or refusal to act, or other reason, 
 makes it necessary to apply to the Court ; in other words, when the power 
 of appointing new trustees contained in the instrument, or provided by 
 statute, cannot be exercised. (See Trustee, §§ 5, 6.) They also empower 
 the Court where property is held upon trust or mortgage by a lunatic or 
 person of unsound mind, or out of the jurisdiction of the Court, to 
 transfer it by a vesting order (q. v.) to some other person, or to make an 
 order appointing some person to execute a deed in the place of a trustee 
 or mortgagee, so as to give it the same effect as if the trustee or mort- 
 gagee had executed it. 1 (See Petition.) 
 
 TRUSTEE IN BANKRUPTCY.— § 1. A trustee in bankruptcy Trustee in 
 is a person in whom the property of a bankrupt is vested in trust for bankruptcy. 
 the creditors ; 2 his duty is to discover, realize and distribute it among the 
 creditors, and for that purpose to examine the bankrupt's property, 
 accounts, &c, to investigate proofs made by creditors, and to admit, 
 reject, expunge or reduce them according to circumstances. (See Proof, 
 §§ 6 et seq.) He also has to keep various accounts of his dealings with 
 the property, and of the course of the bankruptcy, which are audited by 
 the committee of inspection and the Comptroller in Bankruptcy. 3 
 
 Trustees may be divided into two classes. §2. Until a trustee is Ex officio 
 specially appointed in a bankruptcy, and during any vacancy in the office, trustee. 
 the registrar having jurisdiction in the matter is ex officio trustee. 4 
 
 § 3. The creditors at the first meeting in the bankruptcy (see Bank- Trustee by 
 ruptcy, § 6) have to appoint by resolution some fit person to be trustee, appointment. 
 and fix the security to be given by him ; the appointment is reported to 
 the Court, and the Court upon being satisfied that the requisite security 
 has been entered into, gives a certificate declaring him to be trustee. 5 
 
 § 4. When the creditors of an insolvent debtor resolve that his affairs Trustee under 
 shall be liquidated by arrangement and not in bankruptcy, they appoint liquidation. 
 a trustee, who has in almost all respects the same powers and duties as 
 a trustee in bankruptcy. 6 
 
 TRUSTEE RELIEF ACTS.— If a person has in his hands a 
 sum of money subject to a trust, and he does not know who is bene- 
 ficially entitled to it, he may, instead of incurring the responsibility of 
 paying it to the wrong person, or of instituting an action for the execu- 
 tion of the trust, pay it into Court under the Trustee Relief Acts, 10 & 
 11 Vict. c. 96, and 12 & 13 Vict. c. 74. He must file in the Chancery 
 
 1 Lewin on Trusts ; Shelford's R. P. ibid. 434. 
 
 Stat. 647; DanieU's Ch. Pr. 1798; Pope 3 Robson, 488. 
 
 on Lunacy, 263. i Bankruptcy Act, 1869, s. 17. 
 
 2 Not for the bankrupt; In re Lead- 6 Ibid. ss. 14, 18. 
 bitter, 10 Ch. D. 388; Ex farte Sheffield, ° Ibid. s. 125. 
 
8 4 8 
 
 Tubman 
 
 LAW DICTIONARY. 
 
 Ultra Vires 
 
 Division an affidavit explaining the difficulty, and giving the names of the 
 persons whom he believes to be interested in the money, and must give 
 them notice as soon as it has been paid into Court. Any person claiming 
 to be interested may then present a petition, or issue a summons for 
 payment of the money to him, and the question whom the money belongs 
 to is then decided by the Court. 1 
 
 TUBMAN is (or was) a barrister in the Exchequer Division of the 
 High Court, ranking (apparently) next after the postman (g. v.). 2 
 
 U. 
 
 UBERRIMA FIDEI (Latin = "of the fullest confidence"). A 
 contract is said to be uberrima fidci when the promisee is bound to com- 
 municate to the promisor every fact and circumstance which may influence 
 him in deciding to enter into the contract or not. Thus a policy of 
 marine insurance is a contract uberrima fidei? (See Insurance.} 
 
 Of a corpora- 
 tion itself. 
 
 Of directors, 
 &c. 
 
 ULTRA YIRES, in the law of corporations, is used in two senses. 
 
 I. § i. A contract or similar act is said to be ultra vires of a corpora- 
 tion when it purports to be entered into or done in pursuance of the 
 powers conferred on the corporation, but is really beyond them. Thus, if 
 a company is incorporated for the purpose of constructing a railway, it 
 cannot, under the powers thereby conferred on it, construct a harbour, 
 and any act done in the name of the company with that object is wholly 
 void, even if sanctioned by all the members of the company : a fortiori, 
 therefore, a majority of the shareholders cannot bind a dissentient minority 
 by any such act. 4 But the doctrine does not apply to those things which are 
 fairly incidental to what the company is empowered to do, although they 
 may not be expressly authorized. 3 
 
 II. §2. "Ultra vires" is, also, sometimes applied to an act which, 
 though within the powers of a corporation, is not binding on it because 
 the consent or agreement of the corporation has not been given in the 
 
 1 See Hunter's Suit, 230 et seq.; Daniell's 
 Ch. Pr. 1784; Chanceiy Funds Rules, 
 1874. As to who is a trustee within the 
 meaning of the act, see Matthew v. North- 
 ern Insurance Co., 9 Ch. D. 80. 
 
 3 R. v.Bishof of Exeter, 7 Mee. & W. 
 188. 
 
 3 Goram v. Sweeting, 2 Wms. Saund. 
 200, note (1). 
 
 i Hodges on Railways, 60 et seq. ; Brice 
 on Ultra Vires, 52 et seq. ; Ashbury, &c. 
 Co. v. Riche, L. R., 7 H. L. 653. 
 
 5 Att.-Gen. v. Great Eastern Rail. Co., 
 5 App. Ca. 473. It is said that the term 
 "ultra vires" is used in another sense to 
 signify that a certain act is not void as 
 being beyond the powers of the corpora- 
 tion, but that it is not binding on the 
 
 members who dissent from it because it is 
 contrary to some provision, express or im- 
 plied, for the protection of the shareholders ; 
 on this principle if a company, being pos- 
 sessed of funds appropriated for a certain 
 purpose, applied them to another purpose 
 within their general powers, that appro- 
 priation would be ultra vires and only bind- 
 ing on the shareholders who consented to 
 it. (See Brice, 52 et seq. ; Taylor v. 
 Chichester Rail. Co., L. R., 2 Ex. at p~. 
 378.) Since the decisions in Taylor v. 
 Chichester Rail. Co. (L. R., 4 H. L. 628) 
 and Ashbury Co. v. Riche (L. R., 7 H. L. 
 653, as explained by Att.-Gen. v. Great 
 Eastern Rail. Co., 5 App. Ca. 473) it is 
 doubtful whether this distinction can be 
 maintained. 
 
Umpire LAW DICTIONARY, Underlease 849 
 
 manner required by its constitution. Thus where a company delegates 
 certain powers to its directors, all acts done by the directors beyond the 
 scope of those powers are ultra vires, and not binding on the company, 
 unless it subsequently ratifies them. An act which is ultra vires in the 
 primary sense of the word (§ 1) is incapable of ratification. 
 
 UMPIRE. — In a submission to the arbitration of two or more persons 
 it is usual to provide that if the arbitrators do not agree upon their 
 award before a certain time, another person shall be called in as umpire, 
 by whose award the parties shall be bound. The award of an umpire is 
 sometimes called an umpirage. 1 (See Arbitration ; Refer.) 
 
 UNBORN PERSONS. See In Ventre sa Mere; Perpetuity. 
 
 UNCERTAINTY.— § 1. In the law of wills, the general rule is that Wills, 
 where a testator has so expressed himself that it is impossible to ascertain 
 what his intention was, the gift or provision so made is void for un- 
 certainty. Thus, a will consisting merely of these words, " I leave and 
 bequeath to all my grandchildren, and share and share alike," is too uncer- 
 tain to be operative, although it may be conjectured that the word " all " 
 was meant to precede "to," for words will only be transposed when they 
 are inconsistent with the context, not when they are merely unnecessary. 2 
 
 § 2. In pleading, the general rule is that whatever is alleged must be Pleading. 
 alleged with certainty. 3 An allegation suffering from the defect of 
 uncertainty is apparently liable to be struck out as embarrassing (q. v.).* 
 
 UNCORE PRIST (= "still ready") is the Norman-French name 
 for the plea or defence which a defendant sets up when he is sued on a 
 contract for something which he is " still ready " to do up to the time 
 when he puts in his defence. It generally follows a plea of " tout temps 
 prist " (q. v.). 5 For an instance, see Tender. 
 
 UNDE NIHIL HABET. See Writ of Dower. 
 
 UNDERLEASE— UNDERLESSOR— UNDERLESSEE.— An 
 underlease is a lease granted by a lessee or tenant for years ; in speaking 
 with reference to the underlease he is called the underlessor, and the 
 person to whom the underlease is granted is called the underlessee. 6 
 As the underlessee is not liable to the original lessor on the covenants, 
 &c. of the original lease, a mortgage of leaseholds is generally made by 
 underlease, and not by assignment. (See Mortgage, § 4.) 
 
 Another common instance of an underlease is where land is let on 
 
 1 Bl. Comm. iii. 16; Smith's Action, * Rules of Court, xxvii.i. 
 
 460. 6 Co. Litt. 207 a ; Leake on Contracts 
 
 2 . Jarman on Wills, 356; Mohun v. (2nd edit.), 858. 
 
 Mohun, I Sw. 201. 6 Woodfall's Landlord & Tenant, n, 
 
 3 Steph. PI. (7th edit.), 275. 241. 
 
 S. 3 1 
 
850 Undertaking law dictionary. Underwriter 
 
 building lease, and the lessee grants underleases of the houses erected by 
 him. (See Rent, § 5.) 
 See Assignment ; Lease. 
 
 UNDERTAKING.— I. § 1. In the primary sense of the word, an 
 undertaking is a promise. In the old books "undertaker" means a 
 promisor. 1 
 
 § 2. "Undertaking" is frequently used in the special sense of. a 
 promise given in the course of legal proceedings by a party or his 
 counsel, generally as a condition to obtaining some concession from the 
 Court or the opposite party. Thus, where an interim or ex parte injunc- 
 tion is granted, the Court generally requires the plaintiff to give an 
 undertaking as to damages; that is, he must undertake that if it should 
 subsequently turn out that he was not entitled to the injunction, and that 
 its operation has caused injury to the defendant, he will pay to the 
 defendant damages for the injury so sustained. 
 
 So, if an application is made for an injunction, and the defendant asks 
 that it may be adjourned, he is generally required to give an undertaking 
 not to commit the acts complained of in the meantime ; if it is a question 
 of infringement of a patent or the like, he sometimes undertakes to keep 
 an account of all articles made or sold by him during the period of the 
 adjournment. 2 
 
 An undertaking may be enforced by attachment, or otherwise, in the 
 same manner as an injunction. 3 
 
 § 3. An undertaking to appear in an action is a promise by a solicitor 
 that he will enter an appearance for his client ; such an undertaking is 
 given when a solicitor accepts service of a writ of summons in order to 
 save his client the annoyance of personal service. (See Service, § 12.) It 
 is enforceable by attachment. 4 
 Undertaking H, § 4. In the Lands Clauses Consolidation Act, 1845, the Companies 
 p '" Clauses Act, 1845, and similar acts, applying to companies incorporated 
 for the construction of railways, docks and similar works, "undertaking" 
 means the works or undertaking, of whatever nature, which are authorized 
 by the special act incorporating the particular company. The question 
 what is included in the " undertaking " of a company principally arises in 
 cases where a company has created a mortgage or charge on its under- 
 taking to secure debentures, or the like. It seems that such a charge 
 operates on all the property and revenues of the company, as a going 
 concern, at the time when the security requires to be enforced. 6 (See 
 Debenture, § 5 ; Security, § 9.) 
 
 UNDERWRITER is a person who joins with others in entering into 
 a marine policy of insurance as insurer. Except where an insurance is 
 effected with a company, a policy of marine insurance is generally 
 
 1 Birkmyr v. Darnell, I Salic. 27. * Rules of Court, xii. 14. 
 
 2 Seton on Decrees, 344. « Gardner v. L. C. &* D. Rail. Co., 
 
 3 Ibid. 297. As to enforcing an under- L. R., 2 Ch. 201 ; Hodges on Railways, 
 taking for the safe custody of documents, 125 ; In re Panama, &"<:. Co., L. R., 
 see Conveyancing Act, 1881, s. 9, \ 9. 5 Ch. 318. 
 
Undischarged LAW DICTIONARY. Unity of Interest 851 
 
 entered into by a number of persons, each of whom makes himself liable 
 for a certain sum, so as to divide the risk ; they subscribe or underwrite 
 the policy in lines one under another, and hence to subscribe a policy is 
 sometimes called " taking a line." Policies are usually effected through 
 brokers. 1 (See Insurance ; Policy; Adjustmetit.) 
 
 UNDISCHARGED BANKRUPT OR DEBTOR. See Bank- 
 rupt, § 3 ; Discharge, § 4. 
 
 UNDUE INFLUENCE.— § 1. The equitable doctrine of undue Equity, 
 influence is that where a person enters into an agreement or disposition 
 of property under such circumstances as to show or give rise to the 
 presumption that he has not been allowed to exercise a free and deliberate 
 judgment on the matter, the Court will set it aside. Such a presumption 
 chiefly arises in cases where the parties stand in a relation implying 
 mutual confidence; e.g., parent and child, guardian and ward, trustee 
 and cestui que trust, legal adviser and client ; but it may be rebutted by 
 showing that the transaction was in fact reasonable and entered into in 
 good faith. 2 
 
 § 2. Where a person is induced to execute a will by undue influence, it Will. 
 is liable to be invalidated, or at least so far as the undue influence extends. 
 Such cases chiefly arise where a testator, is in feeble health, bodily or 
 mentally, and therefore liable to be influenced by those near him. 3 
 
 § 3. Undue influence at parliamentary and municipal elections is Parliamentary 
 where anyone interferes with the free exercise of a voter's franchise, by e ectl0ns - 
 violence, intimidation or otherwise. It is a misdemeanor. 4 
 
 UNION. — § 1. In the poor law, a union consists of two or more 
 parishes which have been consolidated for the better administration of 
 the poor law therein. (See Poor law.) 
 
 § 2. In ecclesiastical law, a union consists of two or more benefices 
 which have been united into one benefice. Such a union may be made 
 under the statute 1 & 2 Vict. c. 106, passed "to abridge the holding 
 of benefices in plurality," and amended by stat. 13 & 14 Vict. c. 98 ; and 
 under stat. 23 & 24 Vict. c. 142, passed "to make better provision for the 
 union of contiguous benefices in cities, towns and boroughs " (in substi- 
 tution for stat. 18 & 19 Vict. c. 127), amended by stat. 34 & 35 Vict. 
 c. 90. 
 
 As to the union of parishes, see Parish, § 1. 
 
 UNITY OF INTEREST is applied to joint tenants, to signify that 
 no one of them can have a greater interest in the property than each of 
 the others, while, in the case of tenants in common, one of them may 
 have a larger share than any of the others. 6 (See Unity of Possession, 
 §_^0 
 
 1 Maude & Pollock, Merch. Shipp. 331, 3 See Jarman on Wills, 35 et seq. 
 
 334. * Stats. 17 & 18 Vict. c. 102; 35 & 36 
 
 2 White & Tudor, L.C.ii. 571; Pollock Vict. c. 60; Russell on Climes, i. 321 ; 
 on Contract, 503. Steph. Crim. Dig. 79. 
 
 > Williams, R. P. 134, 139. 
 
 312 
 
852 Unity of Possession LAW DICTIONARY. Unlawful 
 
 Suspension of UNITY OF POSSESSION, in the proper sense of the word, is 
 easements,&c. where a piece of land which is su bject to an easement, profit a prender, 
 rent, or similar right, comes into the possession of the person entitled to 
 the easement or other right. At the present day, " unity of possession" 
 is only applied to cases where the possession is temporary : as where the 
 owner of land subject to an easement takes a lease of the dominant 
 tenement, so that the easement is suspended by unity of possession 
 during the lease ;' or where the owner of a rent disseises the tenant of 
 the land, out of which it issues, so that the rent is suspended by unity of 
 possession. 2 In the old books, "unity of possession" has a wider sense, 
 and includes what is now more commonly called " unity of seisin " {q. v.)? 
 Joint tenants. §2. As applied to joint tenants, tenants in common, &c, "unity 
 of possession " is sometimes used to signify that they have an undivided pos- 
 session. This use of the term seems to have been invented by Blackstone. 4 
 Seefoint Tenancy ; Tenancy in Common; Privity, §§ 4, 8, 9. 
 
 UNITY OF SEISIN is where a person seised of land which is 
 subject to an easement, profit a prender, or similar right, also becomes 
 seised of the land to which the easement or other right is annexed. The 
 term is usually applied to cases where the seisin is that of a tenant in fee 
 simple, and is equally high or " perdurable " in both pieces of land, so 
 that the easement or other right is extinguished by the unity of seisin : as 
 where a tenant in fee simple of land, subject to an easement, acquires an 
 estate in fee simple in the dominant tenement. But if one piece of land 
 is held by a conditional or determinable estate, then the unity of seisin is 
 insufficient to work an extinguishment. 5 (See Unity of Possession.) 
 
 UNITY OF TIME is applied to joint tenants, to signify that the 
 estate of each of them must arise at the same time : that is, one cannot 
 take his share first, and then another come in after him. This rule, 
 however, does not apply to estates created under the Statute of Uses, or 
 by will. 6 (See Unity of Interest ; Unity of Possession, § 2.) 
 
 UNITY OF TITLE is applied to joint tenants, to signify that they 
 hold their property by one and the same title, while tenants in common 
 may take property by several titles. 7 (See Unity of Interest ; Unity of Pos- 
 session, § z.) 
 
 UNIVERSITIES. See Courts of the Universities. 
 
 UNLAWFUL.— " Unlawful" and "illegal" are frequently used as 
 synonymous terms, but in the proper sense of the word, " unlawful," as 
 
 \ Gale on Easements, 581 et seq. * Co. Litt. 313 a, b; Gale on Ease- 
 
 Co. Litt. 188 a. m ent, 582 and notes. 
 
 3 Ibid. 313 a; Tyrringham 's Case, 4 Co, " Williams, R. P. 137. 
 3 I ™ r, * Mid. 134. 
 
 4 Bl. Comm.ii. i8q; Williams,R. P. 134. 
 
Unlawful Assembly law dictionary. Ure 853 
 
 applied to promises, agreements, considerations and the like, denotes 
 that they are ineffectual in law because they involve acts which, although 
 not illegal, that is, positively forbidden, are disapproved of by the law, 
 and are therefore not recognized as the ground of legal rights, either 
 because they are immoral (q. v.), or because they are against public 
 policy. (See Policy.) It is on this ground that contracts in restraint of 
 marriage or of trade are generally void. As a general rule, an unlawful 
 agreement cannot be enforced, or set aside, nor can money paid or pro- 
 perty delivered under it be recovered back : potior est conditio defendentis} 
 
 UNLAWFUL ASSEMBLY is an assembly of three or more per- 
 sons with intent to commit a crime by open force, or with intent to carry 
 out any common purpose, lawful or unlawful, in such a manner as to give 
 firm and courageous persons in the neighbourhood of such assembly 
 reasonable grounds to apprehend a breach of the peace in consequence 
 of it. 
 
 Taking part in an unlawful assembly is a misdemeanor. 2 
 
 See Affray ; Riot; Rout. 
 
 UNLIQUIDATED is that which is not ascertained. (See Damages; 
 Judgment, § 9; Liquidated; Writ of Summons.) 
 
 UNNATURAL CRIMES.— See stat. 24 & 25 Vict. c. 100, ss. 61 
 et seq? 
 
 UNSEAWORTHY. See Seaworthy. 
 
 UNSOUND MIND. — A person of unsound mind is an adult who 
 from infirmity of mind is incapable of managing himself or his affairs. 
 The term, therefore, includes insane persons, idiots and imbeciles. It 
 is generally used (1) in cases where on an inquiry in lunacy the person 
 would be found lunatic, and placed under the care of committees ; and 
 (2) in cases where a trustee has become of unsound mind, so as to neces- 
 sitate an application to the Court under the Trustee Acts (q. v.).* (See 
 Insanity; Lunatic; Non Compos Mentis.) 
 
 URBAN SANITARY AUTHORITIES. See Sanitary Autho- 
 rities. 
 
 URE means operation or effect. To put in ure, therefore, is to put in 
 operation. 5 (Norman-French, from Latin, opera, a work : see Enure.) 
 
 1 Pollock on Contract (3rd edit.), 250, 3 Steph. Crim. Dig. 103, 163 ; Russell 
 348; Chit'ty on Contracts, 609 et seq. See on Crimes, 879. 
 
 Wright on Conspiracies, 65 et seq. ; Reg. 4 Pope on Lunacy, 18 ; stats. 16 & i, 
 
 v. Prince, L. R., 2 C. C. R. 154. Vict. c. 70, s. 4 7 ; 1.3 & '4 Vict. ,.-. 60, s. 2. 
 
 2 Stephen's Crim. Dig. 40; Russell on 6 See stat. 13 Eliz. c. 2, s. 1. 
 Crimes, i. 372. 
 
854 Usage law dictionary. Use 
 
 USAGE is a uniformity of conduct on the part of two or more persons 
 in respect to certain matters of common interest. Hence Coke says, in 
 speaking of custom and prescription, " as for usage, that is the efficient 
 cause or rather the life of both ; for custom and prescription lose their 
 being, if usage fail." 1 (See Custom; Prescription) As to usages of trade, 
 see Custom, §§ 8, 9. 
 
 USANCE signifies the time in which all bills of exchange between 
 this country and a foreign country were formerly payable. The time 
 varied for different countries. Thus, a usance between this country and 
 Venice being three calendar months, a bill drawn on Venice at two 
 usances and dated the 1st January, would fall due on the 1st July, subject 
 to the allowance of days of grace. 2 The practice of drawing bills at 
 usances seems to be quite obsolete, the same result being attained by 
 specifying the time for which the bill is to run, but the term " usance" is 
 still employed to signify the period for which bills on a foreign country 
 are by the practice of merchants almost invariably drawn ; thus the usance 
 of bills on India is six months. 
 
 USE. — There are two words "use" in law, which though spelled 
 
 alike are etymologically and historically distinct. It is of importance to 
 
 distinguish clearly between them. 
 
 "Use"= I. § 1. In law, as in ordinary language, "use" denotes the act of 
 
 " e ™ t pl , oy * employing a thing : thus, to cultivate land, to read a book, to inhabit a 
 
 house, is to use those things. 
 
 § 2. In the case of corporeal things, use is one of the modes of exer- 
 cising ownership. (See Ownership ; Use and Occupation.') In the case of 
 incorporeal things, use is a mode of acquiring and retaining certain 
 rights. (See Enjoyment.) Thus, if A. publicly makes use of his name or 
 of some peculiar word or token (not being a trade-mark in the strict 
 sense) in connection with his trade or occupation, he acquires the right 
 to prevent other persons from using that name, word or token in such a 
 way as to induce the public to believe that their business is carried on by 
 A., and loses that right so soon as he discontinues the use. 3 In the case 
 of trade-marks falling within the Trade-Marks Registration Acts, regis- 
 tration is substituted for public user as a mode of acquiring title. (See 
 Trade-Mark : also Patent Right ; Pubtici Juris.) 
 Etymology.]— From Latin, usus, use. 
 ' £ pe^= II. § 3. In conveyancing, "use" literally means "benefit;" thus, in 
 
 an ordinary assignment of chattels the assignor transfers the property to 
 the assignee for his "absolute use and benefit." 4 In the expressions 
 
 "benefit/ 
 
 2 c°\?? Py ™ * 33 V i She PP- Touch - S QI • Littleton (§ 383) 
 
 ■R-n ™b S rc " aw ' 2 4? > B yks on mentions a case where an executor took the 
 
 ,i ' H; o profits of his testator's lands to his own use, 
 
 Ludlow & Jenkyns on Trade-Marks, instead of applying them to the use of the 
 
 °S> °°- dead (al use le mort) by distributing the 
 
 money for his soul. 
 
Use LAW DICTIONARY. Use 855 
 
 "separate use," "superstitious use," and "charitable use" (q.v.), use has 
 the same meaning. More often, however, "use" has a technical mean- 
 ing which can only be explained historically. 
 
 § 4. Before the year 1536, if one man (A.) conveyed land by feoffment Uses of land 
 (then almost the only mode of conveyance) to another (B.), with the statSe 1 ! 
 intention, express or implied, that B. should not hold it for his own Uses. 
 benefit, but for the benefit of a third person (C.), 1 then B. was said to 
 hold the land " to the use," that is, for the benefit, of C. In the courts 
 of common law the feoffee to uses (B.) was looked upon as the owner of 
 the land for almost all purposes, the seisin or legal estate being in him. 
 In the Court of Chancery, on the other hand, he was looked upon as 
 merely the nominal owner ; he was bound to allow the cestui que use 
 (C.) to have the profits and benefit of the land and to deal with it as he 
 pleased. C. was therefore the equitable or beneficial owner of the land. 
 The "use" or beneficial ownership was treated like an estate, and 
 descended on the intestacy of the cestui que use to his heir in the same 
 way as the land would have done. A use was also devisable by will, 
 although the land was not. 
 
 § 5. The effect of a conveyance to uses was twofold. First, it enabled 
 interests in land to be created and transferred with a flexibility and 
 secrecy unknown to the common law : this effect of uses still exists {infra, 
 §§ 11 et seq.). Secondly, it enabled the owners of land to evade certain 
 inconvenient incidents of common law ownership, especially escheats, 
 forfeitures and other feudal obligations. After several attempts to prevent Statute of 
 these effects by various acts of parliament, the statute known as the Statute Uses> 
 of Uses was passed (27 Hen. 8, c. 10). This statute in effect enacts that 
 where any person is seised of any lands or other hereditaments to the use, 
 confidence or trust of another, the latter shall be in lawful seisin, estate 
 and possession of the lands for the same estate as he had in the use, and 
 that the estate of the feoffee to uses shall be deemed to be in the cestui 
 que use. The effect of this act was to convert uses into possession, or to 
 make the cestui que use legal instead of equitable owner. The result is 
 that if since the passing of this statute land is conveyed to A. and his 
 heirs to the use of B. and his heirs, so that A. acquires the seisin of the 
 land, then the statute is said to execute the use by turning it into a legal 
 estate ; the seisin passes out of A. and vests in B., who thus becomes 
 legal owner of the land in fee simple. (See Scintilla Juris.) 
 
 All estates which before the statute would have been good in equity 
 and to which the statute applies are, since the statute, good estates in 
 law. 
 
 § 6. It will be observed that the statute only applies to cases where Exceptions 
 one person is seised of land or other hereditaments to the use of another. from statute. 
 If, therefore, A. is possessed of a term of years or a chattel, or is in quasi- 
 seisin of copyhold land (all of which are incapable of true seisin), to the 
 use of B., the statute does not execute this use, and the legal estate 
 remains in A. § 7. The statute also does not execute a second use, or a 
 
 1 Or of A. himself; see as to " resulting uses," infra, $ 10. 
 
856 
 
 Use 
 
 LAW DICTIONARY. 
 
 Use 
 
 Uses at com- 
 mon law. 
 
 Under the 
 statute. 
 
 Express, 
 implied, 
 resulting. 
 
 Executed. 
 
 Executory. 
 Springing. 
 
 Shifting. 
 
 " use upon a use," nor does it execute active uses, or uses which impose 
 some active duty on the grantee. If, therefore, land is conveyed to A. to 
 the use of B. to the use of C. (which is a use upon a use), only the first 
 use is executed : B. becomes seised of the land in accordance with the 
 statute, but he holds it to the use of C. as if the statute had never been 
 passed. Again, if land is conveyed to A. to the use (or upon trust) to 
 pay over the rents and profits to B., this use is not executed, and there- 
 fore the legal estate remains in A. 
 
 Hence uses are of two kinds, uses at common law, or those which 
 remain unaffected by the statute, and uses which operate under the 
 statute, 
 
 I. § 8. Uses at common law include (a) all uses of leasehold and copy- 
 hold land and chattels, and (b) uses of freehold land or other heredita- 
 ments which are not executed by the statute because they are either "uses 
 on uses " or active uses. A use at common law is now seldom created 
 under that name, almost the only instance being where a copyhold tenant 
 surrenders his land to the lord to the use of some other person ; here the 
 lord is merely a trustee or instrument for carrying the intended alienation 
 into effect. 1 When lands or chattels are conveyed to a person to be held 
 by him for the benefit of another, the word " trust " is now always used. 2 
 (See Trust?) 
 
 II. § 9. Uses which operate under the statute are those declared of 
 land held by a freehold tenure for an estate of freehold, or of rents, 
 services and most other hereditaments. 3 They are of the following 
 kinds : — 
 
 (1) § 10. Expressed or implied. If A. conveys land to B. and his heirs 
 to the use of C. for life, without more, then the land vests in C. for an 
 estate for life, and the reversion in fee after C.'s estate results or returns 
 to A., because it is not otherwise disposed of. Here the use to B. is an 
 express use, and the use to A. is an implied or resulting use. 
 
 (z) § 11. Executed or executory. An executed use is one which takes 
 effect immediately, as where land is conveyed to A. and his heirs to the 
 use of B. and his heirs. An executory use is one which is to take effect 
 at some future time. Executory uses are of four kinds. (A) § iz. A 
 springing use is one which is limited so as to commence in futuro, 
 independently of any preceding estate; as where land is conveyed to A. and 
 his heirs to the use of B. and his heirs, from to-morrow or on the death of 
 C. Such a use does not take effect in derogation of any estate except 
 that which results to the grantor or remains in him in the meantime. 
 (B) § 13. A shifting or secondary use is one which is limited so as to 
 shift from one person to another on the happening of a given event ; in 
 other words, such a use takes effect in derogation of a preceding use ; 
 as where land is conveyed to A. and his heirs to the use of B. and his 
 heirs, with a proviso that when C. returns from Rome the land shall be 
 to the use of C. and his heirs. (See Executory Interests ; Limitation, § 5.) 
 
 1 Davids. Conv. ii. 201 ; "Watson, Comp. 
 Eq. 923. 
 
 2 "Use" was employed in the sense of 
 "trust" in Shakspear's time (Merchant of 
 
 Venice, iv. 1, line 383). 
 
 3 Except those of which the enjoyment 
 is inseparable from the possession : such as 
 easements and profits k prender. 
 
Use and Occupation LAW DICTIONARY. Usurpation 85 7 
 
 (G) §14. Uses may be limited or declared under powers. (See Power, § 7.) Under 
 (D) § J S- Future or contingent uses are those which are limited to take P owers - 
 effect as remainders : thus, if land is conveyed to A. and his heirs to the contingent, 
 use of B. (a bachelor) for life, and after his death to his eldest son, this 
 is a contingent use. 
 
 § 16. As to deeds to lead and declare uses, and generally as to convey- 
 ances operating under the statute, see Conveyance, §§ 5 et seq. x 
 
 Etymology.] — Norman-French, oes,* from Latin, opus, benefit. 
 
 USE AND OCCUPATION.— A claim for use and occupation 
 arises where a person has used and occupied the land of another with his 
 permission but without any actual lease or agreement for a lease at a 
 fixed rent. 3 It is sometimes said that the claim is one for damages, 4 but 
 this is hardly correct, for permissive occupation is not a wrongful act ; 
 the claim is really based on an implied or tacit contract to pay for the 
 use of the land. The action does not lie against a mere wrongdoer or 
 trespasser. 5 
 
 USER is the same thing as " use " in the ordinary sense of the word. 
 (See Use, § 1.) 
 
 USES TO BAR DOWER.— When a conveyance of land is made to 
 a person who was married to his present wife on or before the 1 st January, 
 1834, and he wishes to prevent her right to dower from attaching to the 
 land, it is conveyed to the following uses: (1) to such uses as the 
 purchaser shall appoint ; (2) in default of appointment to the use of him 
 and his assigns during his life ; (3) in the event of the determination of 
 that estate by forfeiture or otherwise in his lifetime, to the use of a trustee 
 during the life of the purchaser in trust for him, with (4) an ultimate 
 limitation to his heirs and assigns for ever. By this means the purchaser 
 has a full power of alienation without having a greater estate in possession 
 than an estate for life, to which the wife's dower does not attach, and the 
 intermediate estate of the trustee prevents the remainder in fee simple 
 from vesting in the purchaser in possession (and so becoming liable to 
 dower) by any accidental merger of the life estate. 6 (See Dower.) 
 
 USURPATION.— § 1. In the law of real property, usurpation is Offranchise. 
 where a subject uses a royal franchise without lawful warrant. 7 
 
 § 2. In ecclesiastical law, when a stranger who has no right presents to a Of advowson. 
 church, and his clerk is admitted and instituted, he is said to be a usurper, 
 
 1 The law of uses will be found ex- later form, the "p" having been inserted 
 plained in Williams, R. P. 157 et seq. ; to make the word more like "opus." 
 Sand. Uses; Hayes's Conveyancing ; Sug- 3 Stat. 11 Geo. 2, c. 19, s. 14; Wood- 
 den on Powers ; Butler's note to Co. Litt. fall, L. & T. 499 ; Chitty on Contracts, 341. 
 271b. 4 Woodfali, 499. 
 
 2 Britton, 34a, 112a. The form "oeps," 5 Smith & Soden, L. & T. 181. 
 which also occurs ("al oeps de gentz de 6 See Williams, R. P. 305, and app. (D.). 
 religion," stat. 15 Rich. 2, c. 5), is really a 7 Co. Litt. 277 b. 
 
858 Usury LAW DICTIONARY. Utter Barristers 
 
 and the wrongful act which he has done is called a usurpation. To 
 recover his presentment and possession of the advowson, the patron must 
 bring his action within six months from the induction of the usurper's 
 presentee. 1 
 
 USURY. — I. § 1. Originally usury had the same meaning as interest 
 has at the present day, viz., a periodical payment in consideration of a 
 loan. "Purchases, estates and contracts may be avoided ... by 
 certain acts of parliament against usurie above ten in the hundred." 2 
 Many attempts were made to evade these statutes by making the interest 
 payable in the form of rents, annuities, &c., and in such cases the question 
 was whether the stipulated payment was bona fide a rent or annuity, &c, 
 or whether it was usury, and the contract a usurious one within the 
 statute. 3 
 
 II. § 2. Hence "usury" acquired the sense of interest above the rate 
 allowed by those acts of parliament, and the acts making all such usurious 
 contracts void became known as the Usury Laws. They were repealed 
 by stat. 17 & 18 Vict. c. 90. 
 
 'Site. Interest, §§ 13, 17. 
 
 Etymology.] — Latin, usura, a using or enjoyment, from uti, to use, usura, interest 
 paid for the use of money. The division into usura conventionales and usurce punitorice 
 is identical with that of interest in English law, into interest payable by contract and in- 
 terest payable as damages. Thibaut, Pand. § 192. 
 
 UTLARY = outlawry.* (Norman- French, utlagarie, 5 from Anglo- 
 Saxon, utlaga. See Outlaw?) 
 
 UTTER. — § 1. In criminal law, to utter a forged document or seal, 
 &c, or counterfeit coin, is to pass or attempt to pass it off as genuine. 
 In the case of a forged document it is not clear whether it is necessary 
 that the offender should actually part with the document, or whether a 
 mere showing of it can be called an uttering. 6 
 
 § 2. Uttering a forged document (knowing it to be forged) is in general 
 the same offence as that of forging the same document. (See Forgery.} 
 Uttering counterfeit money (knowing it to be counterfeit) is a misde- 
 meanor. 7 
 
 UTTER BARRISTERS. See Barrister. 
 
 1 Phulimore, Eccl. Law, 5 [3. 5 Litt. § 197. 
 
 " Co. Litt. 3 b. This rate was varied 6 R. v. Ion, 2 Den. C. C. 475 ; Russell 
 
 from time to time by subsequent statutes. on Crimes, ii. 721, and Mr. Greaves' n. (/). 
 
 3 S Co. 69 etseq. * Stat. 24 & 25 Vict. c. 99; Stephen's 
 
 4 Co. Litt. 128 a. Crim. Dig. 295. 
 
Vacant Possession law dictionary. Value 859 
 
 V.' 
 
 VACANT POSSESSION. See Possession, § 1 ; Service, § 10. 
 
 VACARIUS, commonly called Magister Vacarius, was a Lombard by 
 birth. He gave lectures on Roman law in Oxford from 1 149 to 1 170. He 
 wrote Liber ex universo enucleato jure exceptus} 
 
 VACATE is to discharge or deprive of legal effect. The term is chiefly 
 applied to recognizances and lites pendentes (q. v.), which are cancelled 
 or vacated when they have served their purpose. 
 
 VACATION. — I. § 1. The vacations are the periods of the year Judicial busi- 
 during which the Courts and chambers of the Supreme Court of Judica- ness- 
 ture are closed for ordinary business. There are, however, certain kinds 
 of business which must be transacted during vacation {e. g., applications 
 for injunctions, for extension of time, &c.) ; and for this purpose, one or 
 two vacation judges and a staff of officials attend in Court periodically 
 during the vacations. 
 
 § 2. The vacations are four, namely, the Easter Vacation, from Good 
 Friday to Easter Tuesday ; the Whitsun Vacation, from the Saturday 
 before Whit Sunday to the Tuesday after ; the Long Vacation, from the 
 10th August to the 24th October ; and the Christmas Vacation, from the 
 24th December to the 6th January. 2 (See Sittings ; Term, § 8.) 
 
 II. § 3. Vacation also signifies, in ecclesiastical law, that a church or Ecclesiastical 
 benefice is vacant ; e. g., on the death or resignation of the incumbent, ,aw * 
 until his successor is appointed. 3 (See Plenarty ; Sequestration, § 5.) 
 
 VAGABONDS— VAGRANCY.— The provisions of the law with 
 respect to vagrancy are directed against (i) "idle and disorderly persons," 
 e. g., persons who refuse to work, unlicensed pedlars, beggars, &c. ; 
 (ii) "rogues and vagabonds," e.g., fortune-tellers, persons lodging in de- 
 serted buildings or the open air without visible means of subsistence, &c. ; 
 (iii) " incorrigible rogues," e. g., persons twice convicted of being rogues 
 and vagabonds, persons who escape from imprisonment as rogues and 
 vagabonds, &c. These offences are punishable with imprisonment, and 
 (in some cases) with whipping. 4 
 
 VALUABLE CONSIDERATION. See Consideration, § 7; Value. 
 
 VALUATION. — As to valuation for rates and taxes, see Assessment, 
 
 § 3 I Ra^ 
 As to valuation of securities in administrative proceedings, see Creditor, 
 
 §§ 3. 4- 
 
 VALUE is often used as an abbreviation for "valuable consideration," 
 especially in the phrases " purchaser for value," " holder for value," &c. 
 
 1 Holtz. Encycl. 4 Stat. 5 Geo. 4, c. 83; Steph. Crim. 
 
 * Rules of Court, Ixi. 2 et seq. ; Smith's Dig. 117; Steph. Comtn. iv. 287, where 
 
 Action, 22. the other statutes are mentioned. 
 » 2 Inst. 359 ; Phill. Eccl. Law, 495. 
 
860 Valued Policy law dictionary. Venire 
 
 The question whether a person acting in good faith has given value for 
 property is often of importance when the person from whom he acquired 
 it had not a perfect title as against some other person. Thus, if a trustee 
 fraudulently sells the trust property to a " bona fide purchaser for value," 
 that is, to a person who had no reason to believe that it was affected with 
 a trust, and gave a fair price for it, the cestui que trust has no claim against 
 the purchaser. 1 (See Bona Fides ; Consideration ; Negotiable.) 
 
 VALUED POLICY. See Policy of Assurance, § 2. 
 
 VAN GEROW.— Karl Adolf von Vangerow was born 5th June, 1808, 
 near Marburg, where he became professor of jurisprudence in 1833. In 
 1840 he succeeded Thibaut at Heidelberg, where he died nth Oct., 1870. 
 His principal work is the Lehrbuch der Pandecten. He also wrote treatises 
 on the Latitii Juniani and the Lex Voconia? 
 
 VARIANCE, in procedure, is a discrepancy between a material state- 
 ment in a pleading and the evidence adduced in support of it at the trial. 
 Power to the Court to amend variances in civil cases is given by the Rules 
 of Court under the Judicature Acts, 3 and in criminal cases by stats. 9 Geo. 4, 
 c. 15, 11 & 12 Vict. c. 46, and 14 & 15 Vict. c. 100. 4 
 
 VATTEL. — Emerich von Vattel was born at Couret, in Switzerland, in 
 1 7 14 and died in 1767. He wrote Droit de Gens and Questions de Droit 
 naturel? 
 
 In aid of fi. fa. VENDITIONI EXPONAS.— § 1. When a writ of fi. fa. has been 
 issued and the sheriff returns that he has taken goods, but that they 
 remain in his hands for want of buyers, a writ of venditioni exponas ("that 
 you expose for sale") may be sued out to compel a sale of the goods for 
 any price they will fetch. 5 (See Distringas, § 3.) 
 
 Extent. § 2. When a writ of extent in chief or in aid has been returned and no 
 
 one appears to claim the goods, &c. mentioned in the inquisition, a 
 venditioni exponas issues directing the sheriff to sell them. 6 
 
 VENDORS AND PURCHASERS.— The law relating to vendors 
 and purchasers of real property includes such subjects as the particulars 
 and conditions of sale, the contract of sale, the abstract of title, requi- 
 sitions, searches, &c, and the preparation and completion of the convey- 
 ance. 7 (See the various titles, including those in the Addenda ; and also 
 Covenant, §§ 8 et seq.; Sale; Specific Performance; Title, §§ 3 et seq. ; 
 Title- Deeds.) 
 
 VENIRE was a writ formerly used in common law practice for the purpose of 
 summoning juries. It was so called because it commanded the sheriff to "cause to 
 come" twelve men to try the cause. 8 
 
 1 Lewin on Trusts, 707 et seq. See also 6 Chitty's Pr. 678; Smith's Action, 
 In re Gomersatt, L. R., I Ch. D. 137. 197; App. of Forms to Jud. Act. 1875. 
 
 2 Holtz. Encyc. « Tidd's Pr. 1068. 
 
 3 Order XXVII. As to the old law on ' Dart's Vendors & Purchasers, passim; 
 the subject, see Smith's Action (nth edit.), "Watson's Comp. of Equity, 931 et seq. 
 82, 159. 8 Smith's Action at Law, 136, u. 
 
 4 Steph. Comm. iv. 371. 
 
Venire de Novo LAW DICTIONARY. Venue 86 1 
 
 VENIRE DE NOVO, in criminal practice, is a writ issued by the 
 Queen's Bench on a writ of error {q. v.) from a verdict given in an inferior 
 Court, vacating the verdict and directing the sheriff to summon jurors 
 anew, whence the name of the writ. It is in fact a mode of directing 
 a new trial. 1 (See Trial, §§ 6, 11.) It was formerly also used in civil 
 actions. 2 
 
 VENIRE FACIAS AD RESPONDENDUM is a writ to summon 
 a person, against whom an indictment for a misdemeanor has been found, 
 to appear and be arraigned for the offence. It may be issued by the 
 Queen's Bench, by a judge of assize, or a Court of quarter sessions. 
 A justice's warrant is now more commonly used. 3 (See Distringas ; Out- 
 lawry; Warrant.} 
 
 VENTER in the old books is equivalent to mother : as when Littleton speaks of a 
 man having issue two sons " by divers venters," that is, by different wives ; or of two 
 brothers " by divers venters," meaning two brothers having different mothers. 4 
 
 Etymology.] — Norman-French, ventre? from Latin venter, the womb. 
 
 VENUE. — § i. In criminal procedure, the venue is a note in the Criminal 
 margin of an indictment, giving the name of the county or district within prac lce " 
 which the Court in which the indictment is preferred has jurisdiction. 
 The common law rule is that the venue must be laid (that is, the indict- 
 ment must be preferred in a Court having jurisdiction in) the county 
 where the offence was committed, but in many cases it may by statute be 
 laid in the county in which the offender was apprehended, or in some 
 cases, in any county. If a man is wounded in one county and dies in 
 another, the venue may be laid in either. 6 
 
 § 2. In the former common law practice, the venue was that part of the declaration in Common law 
 an action which designated the county in which the action was to be tried. It was practice, 
 inserted in the margin of the declaration thus : " Middlesex to wit," " London to wit," 
 &c. Venue was of two kinds : transitory or local. It was transitory when the cause Transitory, 
 of action was of a sort which might have happened anywhere, in which case the plaintiff 
 might adopt any county he pleased as a venue. It was local when the cause of action .Local, 
 could have happened in one county only, and then the venue must have been laid in that 
 county. Thus if the action were trespass for breaking the plaintiff's close, the venue 
 must have been laid in the county where the close was situated ; for such a. trespass 
 could have happened nowhere else. If it were trespass for assaulting the plaintiff, the 
 venue was transitory, for such a cause of action might happen anywhere, and so, in 
 general, in all cases of contract. Under the new rules of pleading venue is expressly 
 abolished, 7 but the plaintiff, if he wish the action tried elsewhere than in Middlesex, 
 must name in his statement of claim a place for its trial, subject to the place being 
 altered by a judge's order. 8 
 
 Etymology.] — Said to be derived from Norman-French, visne, Latin, vicinetum 
 (neighbourhood), because in ancient times the jury was empanelled from the vill or 
 hundred where the cause of action arose. 9 
 
 1 Archbold, Crim. PI. 188 ; Pritchard, 6 Archbold's Crim. PI. 25 <tf sea.; Steph. 
 Q. S. 352. See Reg. v. Murphy, L. R., Comm. iv. 363 ; R. v. Rogers, 3 Q. B. D. 
 2 P. C. S3S and the cases there cited. 28. 
 
 2 Archbold, Pr. (3rd edit.) ii. 27. 7 Rules of Court, xxxvi. 1. 
 
 3 Archbold, Crim. PI. 81. 8 Smith's Action, 65. 
 
 4 Litt. § 6. 9 Lee's Diet. s. v. ; Reeves, iii. 107 ; 
 6 Loysel, Inst. Cout. 56 and glossary. Co. Litt. 125 a; Smith's L. C. i. 692. 
 
86; 
 
 Verdict 
 
 LAW DICTIONARY. 
 
 Verge 
 
 General. 
 
 Special. 
 
 Verdict sub- 
 ject to special 
 case. 
 Partial. 
 
 Judgment 
 after verdict. 
 
 VERDICT.— § i. A verdict is the opinion of a jury (or of a judge 
 sitting as a jury 1 ) on a question of fact in a civil or criminal proceeding. 
 The verdict of a jury must be unanimous. § 2. A general verdict is 
 where the jury find the point in issue generally, as where they find for the 
 plaintiff or defendant, or return a verdict of guilty or not guilty. 2 § 3. A 
 special verdict is where they find the facts of the case specially, that is, 
 they say that certain facts have been proved, leaving to the Court the 
 application of the law to the facts thus found. A special verdict is drawn 
 like a special case (q. v.), settled by the counsel (arid by the judge if 
 necessary), and argued before the Court in the same way as a demurrer. 3 
 § 4. Where a doubtful question of law arises, the jury may, instead of 
 giving a special verdict, find a general verdict for either of the parties, 
 subject to a special case ; the special case is drawn in accordance with 
 the facts proved at the trial, and settled like a special verdict. 4 § 5. A 
 partial verdict in criminal practice is where the jury convict the prisoner 
 on part of the indictment and acquit him as to the residue. 5 § 6. When 
 a coroner's jury find the death of a person without saying how he came 
 by it, this is called an open verdict. (See Inquest.) 
 
 § 7. In an action in the High Court, when the jury have found their 
 verdict, the judge may direct that judgment be entered for any party, or 
 adjourn the case for further consideration, or leave any party to move for 
 judgment. (See Judgment, § 6 ; Further Consideration, § 3 ; Motion for 
 Judgment ; Signing Judgment.) Any party may also move for a new 
 trial (see Trial, § 6), or apply to the Court of Appeal to set aside the 
 judgment, if it has been directed to be entered by the judge before whom 
 the action was tried. 6 
 
 See Action ; Conviction ; Acquittal ; Inquisition ; Finding. 
 
 Etymology.] — Latin, veredictum ; veri, truthfully, dictum, spoken, in accordance 
 with the juror's oath. 
 
 VERGE. — "At common law, the coroner of the county had no juris- 
 diction within the compass of the king's Court, which bounds the juris- 
 diction of the Lord High Steward of the household, and comprehends a 
 circuit of twelve miles round the residence of the Court [wherever held]. 
 This jurisdiction is usually called the verge, within which the coroner 
 of the king's household, or, as commonly called, the Coroner of the Verge, 
 had jurisdiction over all matters within the duty of a coroner, exclusive 
 
 1 See Krehl v. Burrett, 10 Ch. D. 420. 
 
 2 "It does not follow merely because a 
 jury choose to return their verdict only in 
 particular words, instead of saying aye or 
 no, that the verdict is a special one. (See 
 per Patteson, J., in Scales v. Key, 1 1 A. & 
 E. 819.) Accordingly, where upon an 
 issue bringing into question the existence 
 of a custom, the jury found ' that the cus- 
 tom existed to 1689,' it was held that this 
 was a verdict for the defendants, who 
 alleged the custom." Archbold's Pr. 394, 
 note. 
 
 158. 
 Litt. 
 
 3 Smith's Action (nth edit.), 
 Formerly called a verdict at large : 
 § 366. 
 
 1 Chitty,Pr.4S2«;^. ; Smith's Action, 
 (nth edit.), 162. It seems that this mode of 
 deciding questions is still available (Smith's 
 Action (12th edit.), 140), though rarely re- 
 sorted to (Arch. Pr. 394). As to special 
 findings under stat. 3 & 4 Will. 4, c. 42, 
 see Chitty, Pr. 406. 
 
 6 Archbold, Crim. PI. 170. 
 
 6 Rules of Court, xxxvi., xl. 
 
Very Lord, &c. law dictionary. Vest 863 
 
 of the coroner of the county. A jurisdiction so exclusive, particularly as 
 the king's Court was moveable, was found to be attended with many 
 inconveniences . . . and therefore it was found expedient to impart, in 
 some cases, to the coroner of the county, a jurisdiction concurrent with 
 that of the Coroner of the Verge." 1 (See Tenants by the Verge.) 
 
 VERY LORD AND VERY TENANT means an immediate lord 
 and tenant, 3 as where A. holds land of B. without any mesne lord. (See 
 Lord, §2.) 
 
 VEST— VESTED.— § 1. When a person becomes entitled to aright, 
 estate, &c, it is said to vest in him. 
 
 § 2. An estate or interest may vest in one of two manners, namely, in Vested in 
 possession or in interest. An estate is said to be vested in possession P^2J on ' m 
 when it gives a present right to the immediate possession of property ; 
 while an estate which gives a present right to the future possession of 
 property is said to be vested in interest : thus, if land is given to A. for 
 life, and after his death to B. in fee, then A.'s estate is vested in posses- 
 sion, while B.'s estate is vested in interest. If B. dies before his estate 
 vests in possession, it passes to his representatives (his heir or devisee). 
 As a general rule, " vested" means " vested in interest," as opposed to 
 " contingent" {q. v.). Thus, remainders are divided into vested and 
 contingent. (See Remainder.) 
 
 § 3. An estate or interest is said to be "vested subject to being divested" 
 when it is vested, but is defeasible on the happening of a particular 
 event. Thus, where property is given to A., an infant, absolutely, with 
 remainder over to some one else if he dies under twenty-one, he takes 
 a vested interest determinable on his death under age. 3 (See Condition.) 
 
 §4. "Vest" is used especially to denote a transfer by or under an By statute, 
 act of parliament. Thus, by the Bankruptcy Act, 1869, as soon as a 
 person is adjudicated bankrupt, his property vests in the trustee for the 
 time being : 4 that is, the property is transferred to the trustee in the same 
 way as if the bankrupt had executed a conveyance of it. (See Vesting 
 Order.) A statutory transfer of this kind may be either absolute (as in the 
 above example) or limited : thus, where an act of parliament enacts that 
 a street shall vest in an urban sanitary authority, this means that the 
 surface of the land, and so much of the soil as is necessary for its. use as 
 a. street, shall be transferred to the authority. 5 
 
 § 5. Vested is also applied in a semi-popular sense to rights, interests " Vested in- 
 and expectancies with which it is considered the legislature ought not to terests< " 
 interfere without giving compensation. Such are the rights of land- 
 owners, which are interfered with when an act of parliament is passed 
 authorizing the compulsory purchase of their land for the purposes of 
 a railway. 6 The Endowed Schools Act, 1869, enumerates various kinds 
 
 1 Jervis on Coroners, 5, 59 ; stats. 28 3 Watson's Comp. Eq. 1092, 1093. 
 Ed. 1, c. 3 ; 33 Hen. 8, c. 12, s. 3. 4 Sect. 17. 
 
 2 Blount, Diet. s. v., citing Brook, Abr. 6 Coverdale v. Charlton, 4 Q. B. D. 104. 
 tit. Hariot, 23. 6 See Austin, i. 887. 
 
864 Vesting Order LAW dictionary. Vestry 
 
 of " vested interests " for which compensation is to be made, 1 such as the 
 interest of a child on the foundation of an endowed school, by which 
 seems to be meant the child's expectation or hope that it will be kept in 
 the school. Such interests are obviously not of a legal nature. 
 
 VESTING ORDER.— Under the Trustee Acts (q.v.), when a person 
 in whom lands, stock or choses in action are vested upon any trust or by 
 way of mortgage, is a lunatic, so found by inquisition, or of unsound 
 mind, or an infant, or is out of the jurisdiction, or refuses to convey 
 or transfer the property, or has died without leaving any known heir 
 or devisee or personal representative (as the case may be), the Court 
 may make an order vesting the property in such person or persons, in 
 such manner, and for such estate as it may direct, and on that being 
 done, the title to the property vests in him or them accordingly. In 
 cases of lunacy and unsoundness of mind, the order is made by the Lord 
 Chancellor or Lords Justices of Appeal : in other cases by the High Court 
 in the Chancery Division. 2 
 
 When, in an action or suit, a judgment or decree is made directing 
 the sale or conveyance of lands, the Court may make vesting orders for 
 carrying the same into effect. 3 
 
 VESTRY. — A vestry, properly speaking, is the assembly of the whole 
 of a parish, met together in some convenient place, for the despatch of 
 the affairs and business of the parish, especially to make rates for the relief 
 of the poor (see Poor Law), the repair of the church, &c. : and this 
 meeting being formerly commonly holden in the vestry adjoining to 
 or belonging to the church, it thence takes the name of vestry, as the 
 place itself does, from the priest's vestments, which are usually deposited 
 and kept there. 4 Meetings in the vestry room of a church may be 
 forbidden by the Poor Law Commissioners 5 (now the Local Government 
 Board, q. v.). 
 Select § 2. In ordinary cases, the vestry consists of all persons rated for the 
 
 relief of the poor in the parish, but in some parishes there exists a custom 
 by which a certain number of persons (in many cases self-elected) 
 manage the concerns of the parish in lieu of the whole body of 
 parishioners : these are called select vestries. 6 Under stat. 59 Geo. 3, 
 c. 1 2, every parish may establish a select vestry for the concerns of the 
 poor of the parish. (See Overseers, §1.) Vestries in the metropolitan 
 parishes are regulated by special statutes. 7 (See Metropolitan Board of 
 Works.) 
 
 § 3. In modern times, numerous duties have been imposed on vestries 
 by statute: in respect of burial grounds (stats. 15 & 16 Vict. c. 85 ; 18 & 19 
 
 1 See In re Alleyn's College, 1 App. Ch. Pr. 1798 et seq. 
 Cas. 68 ; In re Shaftoe's Charity, 3 App. * PhiUimore, Eccl. Law, 1871 ; stats. 58 
 Ca. 872. Geo. 3, c. 69 ; 59 Geo. 3, c. 85. 
 
 2 As to whether vesting orders can be 5 Stat. 13 & 14 Vict. c. 57. 
 made in chambers, see Frodsham v. Frod- " Phill. 1890. 
 sham, 15 Ch. D. 317. 1 See 18 & 19 "Vict. c. 120, and 19 & 20 
 
 3 As to the acts generally, see Daniell, Vict. c. 112. 
 
 vestries. 
 
Vesture law dictionary. Vicar 865 
 
 Vict. c. 128 ; 20 & 21 Vict. c. 81) ; in lighting and watching parishes 
 (stat. 3 & 4 Will. 4, c. 90 ; see Rate, § 2, x) : under the Public Libraries 
 ^pts, 1855, 1866, 1871 and 1877; and the Baths and Washhouses Acts, 
 1846 and 1878. 
 
 VESTURE. — § 1. If a man, being seised in fee of land, grants the 
 vesture of the land to another man in fee, the land itself will not pass to 
 the grantee, but only a particular right in the land ; " for thereby he shall 
 not have the houses, timber-trees, mines, and other reall things parcell of 
 the inheritance, but he shall have the vesture of the land (that is), the 
 come, grass, underwood, swepage and the like, and he shall have an 
 action of trespasse quare clausum /regit," for any infringement of his right. 1 
 § 2. "A man may prescribe or alledge a custome to have and enjoy solam Sola vestura. 
 vesturam terra from such a day till such a day, and hereby the owner of 
 thesoyle shall be excluded to pasture or feed there;" 2 and it seems that a 
 person may also prescribe for a sole vesture, excluding the owner from 
 year's end to year's end. 3 § 3. A right of prima vestura gives the right of Prima 
 mowing the first crop. 4 vestura ' 
 
 § 4. The right of vesture seems to be an incorporeal hereditament. 5 
 
 VEXATIOUS. — A proceeding is said to be vexatious when the party 
 bringing it is not acting bona fide, and merely wishes to annoy or 
 embarrass his opponent, or when it is not calculated to lead to any 
 practical result. Such a proceeding is often described as " frivolous and 
 vexatious," and the Court may stay it on that ground. 6 If an action fails, 
 and a second action is brought oppressively or vexatiously for the same 
 cause of action, the Court will stay the proceedings until the costs of the 
 former action are paid. 7 So, where a claim or defence is trifling of 
 vexatious, the Court will not grant a new trial. 8 
 
 VI ET ARMIS = "with force and arms." 9 See Trespass, § 1. 
 
 VI LAICA REMOVENDA. See Be Vi laicd removenda. 
 
 VICAR. — § 1 . In the original sense of the word, a vicar is an incumbent 
 appointed to an appropriated church. A vicar is therefore, in effect, a 
 perpetual curate with a standing salary. (See Appropriation, § 7 ; Impro- 
 priation; Rector; Curate; Tithes, § 3.) § 2. Every incumbent of a 
 parish church, not being a rector, who is authorized to solemnize mar- 
 riage, baptisms, &c, and to take for his sole benefit the fees payable 
 thereon, is a vicar for the purpose of style and designation, but not for 
 any other purpose. 10 
 
 1 c . Litt. 4b. 6 Castro v. Murray, 10 Ex. 213. 
 
 2 /j^. 122 a. ' 7 Arehbold, Pr. 1105. As to actions of 
 
 3 Williams' Saunders, notes to Pottery. ejectment, see ibid. 855. 
 North. 8 ItU- ? 222 -, , „, „ 
 
 * Vevesque de Oxford's Case, Palm. 9 Co. Litt. 161 b ; Bl. Comm. 111. 120. 
 
 1 74 10 Bl. Comm. i. 386; Steph. Comm. ii. 
 
 4 Williams on Commons, 19 ; but see 682 ; Williams, R. P. 345 ; Phill. Eccl. 
 Hall on Profits a Prendre, 18; Burton, Law, 2177; stat. 31 & 32 Vict. c. 117. 
 Comp. § 1158. 
 
 s. - 3 K 
 
866 Vicar-General law dictionary. View and Delivery 
 
 VICAR-GENERAL is an ecclesiastical officer appointed by a bishop 
 to act by his authority and under his direction in matters purely spiritual, 
 as visitation, correction of manners, &c, "with a general inspection of 
 men and things, in order to the preserving of discipline and good 
 government in the church." 1 (See Chancellor, § 4 ; Official Principal.) 
 
 VICARIAL TITHES. See Tithes. 
 
 VICE-ADMIRALTY COURTS are Courts having admiralty juris- 
 diction in the British colonies and possessions. 3 
 
 VICE-CHANCELLOR is a judge of the High Court of Justice. 
 The first Vice-Chancellor (styled Vice-Chancellor of England) was 
 appointed in 1813 to relieve the Lord Chancellor of some of his duties as 
 a judge of first instance of the Court of Chancery; in 1841, two more 
 Vice-Chancellors were appointed, partly to take over the equity business 
 of the Court of Exchequer, but the number of three was not made per- 
 manent until 185Z. 3 
 
 § 2. The Vice-Chancellors and the Master of the Rolls (q. v.) were the 
 judges of first instance of the Court of Chancery, and on the formation of 
 the Supreme Court of Judicature they were transferred to the Chancery 
 Division of the High Court of Justice {q. v.). 1 The judges appointed as 
 successors to the present Vice-Chancellors do not bear that title, but are 
 called justices of the High Court. 5 
 
 § 3. One of the Vice-Chancellors (usually the senior Vice-Chancellor) 
 constituted a Court of Appeal in equity business from the County Courts 
 and the Chancery Court of Lancaster. 6 All appeals from inferior Courts 
 are now heard by Divisional Courts of Appeal of the High Court. 7 
 
 VICINAGE, See Common, § 8. 
 
 VIEW. — When an action or other proceeding concerns an immoveable 
 thing, such as land or houses, it is frequently desirable to have it seen 
 and examined by the jury, referee, &c. before the trial. In the Queen's 
 Bench Division an order or rule to view may be obtained for this purpose 
 (the old writ of view having been abolished), and shewers (q.v.) are 
 generally appointed. Only a few of the jury usually "have the view," 
 and these are hence called the "viewers." 8 (See Inspection, § 2.) 
 
 VIEW AND DELIVERY.— When a right of common is exerciseable 
 not over the whole waste, but only in convenient places indicated from 
 
 1 Gibson, Codex, Introd. xxii. ; Philli- reign : Madox's Exchequer, 76 et seq. ; 
 more, Eccl. Law, 1208. Spence's Equity, i. 117. 
 
 2 Roscoe's Admiralty, 84; stats. 26 & 4 Jud. Act. 1873, ss. 5, 31. 
 27 Vict. c. 24 ; 30 & 31 Vict. c. 45. 6 'md. s. 5. 
 
 3 Haynes's Equity, 34. The name Vice- 6 County Courts Act, 1865; Daniell, 
 Chancellor is, however, much older than Ch. Pr. 1975. 
 
 1813 : officers bearing that title, who acted 7 Jud. Act, 1873, s - 45- 
 
 in the chancellor's absence and kept the e Chitty, Pr. 371, 382; Arch. Pr. 339. 
 
 great seal, are mentioned in Henry II. 's 
 
View of Frankpledge uw dictionary. Villenage 867 
 
 time to time by the lord of the manor or his bailiff, it is said to be 
 exerciseable after " view and delivery." 1 (See Common ; Assignment, § 7 ; 
 Stint, § 1.) 
 
 VIEW OF FRANKPLEDGE. See Frankpledge. 
 
 VIIS ET MODIS.— In the Ecclesiastical Courts, service of a decree 
 or citation viis et modis, that is, by all " ways and means " likely to affect 
 the party with knowledge of its contents, is equivalent to substituted 
 service in the temporal Courts, and is opposed to personal service. 2 
 (See Service, § 8.) 
 
 VTLL is in law the same thing as " town" in the technical sense of that word. 3 (See 
 Town, § 1.) A " vill" seems originally to have been used in the same sense as the Latin 
 villa, and to have signified a mere collection of houses in the country, such as buildings 
 on a farm or a manor {villa ruralis)? in opposition to a walled town {villa muralis), 
 namely, a city or borough. (See Villein.) " Villa ruralis " appears to be the same 
 thing as an "upland town." 4 (See Town, \ i.) 
 
 VILLEIN. — § 1. Formerly there existed a class of persons in a position "superior 
 to downright slavery, but inferior to eveiy other condition." 5 They belonged principally 
 to lords of manors, and were either villeins regardant, that is, annexed to the manor or 
 land, or else they were in gross, or at large, that is, annexed to the person of the lord ; 
 thus, where a lord granted a villein regardant by deed to another person, he became a 
 villein in gross. 6 Villeins could not leave their lord without his permission, nor acquire 
 any property, 7 but they could sue any one except their lord, and were protected against 
 atrocious injuries by him. 8 
 
 $ 2. Villenage has never been formally abolished, but it had become rare in Edward 
 the Sixth's reign, and disappeared altogether under the Stuarts. 9 
 
 See Villenage; Neife ; Manumission; Copyhold; Market; Confession, n. (9) ; 
 Prescription, n. (7) ; Service, § 3 ; Tenure. 
 
 Etymology.] — Norman-French, vileyn; 10 low Latin, villanus, from villa, a farm. 11 
 
 VILLEIN SOCAGE. See Socage, § 2. 
 
 VILLEIN TENURE. See Tenure, § 7 ; Service, § 3. 
 
 VILLENAGE signified I. the status of a villein {q. v.), and II. an obsolete tenure, 
 which existed where land was held of a lord of a manor by a villein, or by a free person 
 by villein or base service. It has gradually become either extinct or converted into copy- 
 hold tenure. 12 § 2. There was also a kind of tenure in villenage known as privileged privileged. 
 
 1 Elton, Commons, 233. 6 Litt. § 181. 
 
 2 Phillimore, Eccl. Law, 1258, 1283. 7 See, however, as to choses in action, 
 
 3 Co. Litt. 115b; Bl. Comm. i. 115. &c, Co. Litt. 117 a. 
 
 4 Spelman, Gl. s. \. Villa; Villanus. 8 Bl. ii. ^etseq.; Litt. §$ 189 et sea. 
 "Upland" literally means "in the coun- 3 Bl. ii. 96, n. (24). 
 
 try," "rustic." See -ffilfric's Homilies I0 Britton, 77b. 
 
 (Thorpe's ed.), vol. ii. 302-. " Littre, Diet. s. v. Vilain. 
 
 5 Bl. Comm. ii. 92. See Britton's ac- n Litt. § 172 ; Bl. Comm. ii. 62, 98. 
 count of the origin of villenage (77 b). 
 
 3 K 2 
 
868 
 
 Vis Major 
 
 LAW DICTIONARY. 
 
 Visitation 
 
 villenage or villein-socage, which existed in certain lands of the crown; The tenants of 
 these lands could not be removed from their lands so long as they did their services, 
 which differed from ordinary villein services in being certain. This kind of tenure 
 gradually became converted into tenure in ancient demesne (g. v.). 1 (See Copyhold.) 
 
 VIS MAJOR is such a force as it is practically impossible to resist, 
 e. g., a storm, earthquake, the acts of a large body of men, &c. The 
 doctrine of vis major is, that a person is not liable for damage which he 
 has been instrumental in producing, if it was directly caused by vis major. 2 
 "Vis major" is practically equivalent to "the act of God" (q.v.),the latter 
 term being perhaps more used in the law of contracts. 3 
 
 VISIT AND SEARCH. See Search. 
 
 Ecclesiastical 
 corporations. 
 
 Charities. 
 
 Lunatics . 
 
 Poorhouse. 
 
 Prisons. 
 
 VISITATION— VISITOR.— § i. Ecclesiastical and eleemosynary 
 corporations are visitable, or subject to visitation, that is, the law has 
 appointed proper persons (called visitors) to visit, inquire into and correct 
 all irregularities that arise in them. With regard to ecclesiastical corpo- 
 rations, the crown is the visitor of the archbishops, the archbishops of the 
 bishops within their diocese, and the bishops are the visitors of all subor- 
 dinate corporations, sole and aggregate. 4 Hence, when an archbishop or 
 bishop makes a circuit through his district to inquire into matters of church 
 discipline, this is called a visitation. 5 § 2. As regards lay eleemosynary 
 corporations, and other charities, the visitor is the founder, and his heirs, 
 or a person appointed by him, or, in default of all of them, the crown. 
 The visitors of a charity superintend its internal management, but not (as 
 a rule) the management of its estates and revenue. 6 
 
 § 3. Visitors of Lunatics form a board of five members, whose duties are 
 to visit periodically lunatics so found by inquisition, and to report to the 
 Lord Chancellor on their condition and treatment. Their functions were, 
 by 25 & 26 Vict. c. 86, extended to visiting and making inquiries as to 
 persons alleged to be insane, in such cases as the Lord Chancellor may 
 direct. 7 This provision is intended to apply to the case of lunatics whose 
 property is of small value, and who have therefore not been found lunatic 
 by inquisition. 8 (See Commissioners in Lunacy.') 
 
 § 4. Under stat. 22 Geo. 3, c. 83, the guardians of the poor for any 
 parishes which have been united pursuant to that act, are directed to 
 appoint, with the approbation of two justices, a person to act as visitor of 
 the poorhouse. His duty is to superintend the poorhouse, and settle all 
 questions relating to it. A single parish may also have a visitor. (See 
 Guardians of the Poor ; Overseers!) 
 
 As to visiting justices, see Prisons. 
 
 1 Bl. ii. 98. 
 
 2 Nichols v. Marsland, L. R., 10 Exch. 
 255 ; 2 Ex. D. 1 ; Ry lands v. Fletcher, 
 L.R.,3H.L. 330; Underhill on Torts, 14. 
 
 3 See Pollock on Contract (3rd edit.), 
 381. 
 
 4 Bl. Comm. i. 480; Steph. Comm. iii. 
 
 28 ; Tudor's Char. Trusts, ill et seq. 
 s Rogers, Eccl. Law, 976 ; Phill. 1332. 
 
 6 Comyns' Dig. Visitor ; Phill. 1984, 
 2006; Watson, Comp. Eq. 45. 
 
 7 Second Rep. of Leg. Dep. Comm. 
 (1874), 63. 
 
 8 Pope on Lunacy, 39. 
 
Visne 
 
 LAW DICTIONARY. Void 869 
 
 VISNE is an old name for a jury, because formerly the jurors were taken de vieineto, 
 that is, out of the neighbourhood where the matters in question had taken place.' 
 
 A 
 
 VIVA VOCE. See Examination; Evidence, § 7. 
 
 VIVARY "signifieth fish-ponds or waters wherein fish are kept or 
 nourished." 2 " If a man buy divers fishes, as carps, breames, tenches, 
 &c, and put them in his pond, and dyeth [intestate], in this case the 
 heire shall have them, and not the executors, but they shall goe with the 
 inheritance, because they were at libertie, and could not be gotten with- 
 out industrie, as by nets, and other engines. Otherwise it is, if they were 
 in a trunke or the like ; " 3 for in that case they go to the executors. A 
 man has a qualified property in fish confined in a small pond, tank, or 
 stew, so that they can be caught at pleasure, and they may therefore be 
 the subject of larceny. 4 " Vivary " seems to mean a place of this kind. 6 
 (See Animals Fera Natures ; Fishery.) 
 
 Etymology.]— Old French, viver, vivier ; low Latin, vivarium = a place for keep- 
 ing live animals of any kind. 
 
 VOID. — I. § 1. In the proper sense of the word, an agreement or 
 other act is said to be void when it has no legal effect, or not the legal 
 effect which it was intended to produce. Thus, an agreement which is 
 void on account of its being made for an immoral consideration cannot 
 be enforced. 6 (See Unlawful.) But an instrument which is void may subject 
 the parties to penal consequences. Thus, an agreement amounting to a 
 conspiracy would be admissible as evidence in criminal proceedings. 
 
 § 2. An act may be void either ab initio or ex postfacto. 1 Thus, if a Void ab 
 contract is made without the true consent of the parties, or for an im- initio- 
 moral consideration, or in fraud of third persons, or by an infant (unless 
 for necessaries), it is void ab initio. No person's rights can be affected 
 by it, whether he be a party or a stranger. 8 In the case of a contract 
 which is void for illegality, immorality, or on a similar ground, if money 
 has been paid as the consideration of its performance, the party who has 
 paid it may repudiate the contract and recover it back at any time before 
 performance. But when an unlawful contract has been executed, money 
 paid either in consideration or performance of the contract cannot be 
 recovered back, for in pari delicto melior est conditio possidentis? 
 
 § 3. If a contract or deed is properly entered into, and is afterwards Void ex post- 
 altered in a material point by the fraud or laches of either party, it be- fact0 - 
 comes void ex postfacto as against him, so that he cannot enforce or take 
 advantage of it. ]0 Another example of a transaction becoming void ex 
 postfacto occurs in the case of a transaction which was originally void- 
 able, and has been avoided by the election of the party or otherwise. 
 (See Avoid ; Voidable.) 
 
 1 Co. Litt. 125 a, 158 b. ' Pigofs Case, 11 Co. 27. 
 
 2 2 Inst. 199. 8 Pollock on Contract, 7. 
 
 3 Co. Litt. 8 a. ' Leake, 772. 
 
 4 Coulson & Forbes on Waters, 370. 10 Mastery. Miller, 4 T. R. 320 ; Smith, 
 
 5 Spelman, Gl. s. v. L. C. i. ; Leake, 805. 
 
 6 Leake on Contracts (2nd edit.), 760. 
 
870 Voidable LAW dictionary. Volenti non fit Injuria 
 
 Effect of § 4- A peculiar kind of void transaction is one the validity of which 
 
 estoppel. one of the p ar ties is, as against the other, estopped from denying. Thus, 
 
 if A. by fraud induces B. to sign a contract for the sale of land while he 
 thinks he is signing one for the purchase of goods, the contract is void as 
 against B., but he can nevertheless enforce it against A., because A. is 
 estopped from setting up his own fraud as a defence. 
 
 Such a contract is said to be void as against third persons, and voidable 
 as between the parties. 1 (See Estoppel; Mistake, § 6 ; Voidable, § 2.) 
 "Void" = II. § 5. "Void" is frequently used in the sense of "void ab initio," as 
 
 i'nitio d " ab opposed to "voidable" (?.».). It would be convenient to express 
 "void ab initio" by "void," and "void ex postfacto" by "avoided." 
 
 VOIDABLE.— § 1. An agreement or other act is said to be voidable 
 when either of the parties is entitled to rescind it, while until that happens 
 it has the legal effects which it was intended to have. (See Rescind; 
 Avoid.) It can, however, be disputed only by certain persons and under 
 certain conditions, and the right of rescission may be abandoned by the 
 party entitled to exercise it. (See Adopt ; Ratification.) § 2. If third 
 persons acquire rights under a voidable contract or other transaction 
 without notice and for value, they cannot afterwards be put in a worse 
 position by its being set aside. 2 Herein a voidable contract differs from 
 a void contract, the nullity of which one of the parties is estopped from 
 asserting (see Void, § 4), for in the latter case no third person can acquire 
 rights under the contract unless the party against whom it is void elects 
 to affirm it. 3 
 
 § 3. The principal examples of voidable transactions occur in the case of 
 fraud (q. v.), collateral mistake (see Mistake, §§ 8 et seq.), and lunacy (see 
 Lunatic, § 2). As to the contracts of infants, see Infant. 
 
 VOIRE DIRE, in procedure, is a sort of preliminary examination of 
 a witness by the judge, in which he is required to speak the truth with 
 respect to the questions put to him ; if his incompetency appears from 
 this examination or from extrinsic evidence, e. g., on the ground that he 
 is not of sound mind, he is rejected. 4 ( Voire is Norman-French for "true" 
 or "truly." 5 ) 
 
 VOLENTI NON FIT INJURIA.— An act is not an injury if the 
 party consents to it. For an example, see Seduction. 
 
 VOLUNTARY. — § 1. A conveyance, settlement, gift or similar 
 transaction is said to be voluntary when there is no valuable considera- 
 tion for it. (See Consideration.) 
 
 1 Foster v. Mackinnon, L. R., 4 C. P. 3 Foster v. MacHnnon, L. R., 4 C. P. 
 704 ; Pollock (3rd edit.), 463. 704; Pollock, 463. 
 
 2 Leake on Contracts (2nd edit.), 388; 4 Best on Evidence, 190; Roscoe, Crim. 
 Pollock on Contract (3rd edit.), 7. Ev. 140. 
 
 5 Littre, Diet. v. Voire. 
 
Voluntary law DICTIONARY. Volunteer 871 
 
 § 2. As a general rule a voluntary gift, conveyance or other executed 
 transaction is valid as between the parties, and so is a voluntary contract, 
 if under seal (see Consideration, § 2 ; Contract, § 9); but this rule is subject 
 to exceptions, principally in favour of the creditors of the person bound 
 by the transaction. Thus, in the administration of the estate of a deceased 
 person, his voluntary bonds and covenants are postponed to his other 
 debts and obligations. 1 (See Administration, § 2.) As to voluntary 
 settlements, see Settlement, §§ 6 et seq. The Court will not enforce specific 
 performance of a voluntary covenant. 2 
 
 § 3. By the act 27 Eliz. c. 4, a voluntary conveyance of lands or here- 
 ditaments is void against a subsequent purchaser for good considera- 
 tion, ,even though he has notice of the prior voluntary conveyance. 3 
 (See Fraudulent Conveyances.) § 4. In equity it is a rule that in every case 
 where one person obtains, by voluntary donation (gift, settlement, con- 
 tract, &c), a large pecuniary benefit from another, he is bound to show 
 that the donor understood what he was doing, and that if he cannot the 
 donation may be set aside at the instance of the donor or his representa- 
 tives. 4 (See Rescission.) § 5. It is also a rule of equity that although no 
 consideration is required for the validity of a complete declaration of 
 trust, or a complete transfer of any legal or equitable interest in property, 
 yet an incomplete voluntary gift creates no right which can be enforced. 
 Thus, where a person possessed of a leasehold house and stock in trade 
 purported to make a voluntary gift in favour of his grandson E. by 
 indorsing and signing the following memorandum on the lease, "This 
 deed and all thereto belonging I give to E. from this time forth, with all 
 the stock in trade;" and by delivering the lease to E.'s mother on his 
 behalf; it was held that there was no valid declaration of trust in favour 
 ofE. 5 (See Oaths, § 2; Waste; Winding-up.) 
 
 VOLUNTEER is used in law in two senses : § 1 . A person who gives Contracts and 
 his services without any express or implied promise of remuneration in t0It5, 
 return is called a volunteer, and- is entitled to no remuneration for his 
 services, nor to any compensation for injuries sustained by him in per- 
 forming what he has undertaken. But a person who, though he is not 
 obliged to do an act, yet has an interest in doing it, is not necessarily a 
 volunteer. Thus, where the owner of goods assisted the servants of a 
 railway company with the assent of the company in delivering them, and 
 was injured by the servants' negligence, it was held that he was entitled 
 to damages. 6 
 
 § 2. In the law of settlements and wills, a volunteer is a person who is 
 merely an object of bounty, as opposed to a person who takes an interest 
 
 1 Not so in bankruptcy. See Ex parte White & Tudor, L. C. ii. 580 ; Pollock on 
 Pottinger,%Ch.'D.(>2i. Contract (3rd edit.), 574; Bainbrigge v. 
 
 2 Kekewich v. Manning, 1 De G. M. & Browne, 18 Ch. D. 188. 
 
 G. 176; Pollock, 201. 6 Richards v. Delbridge, L. R., 18 Eq. 
 
 3 Bl. Comm. ii. 296, n. (4); Watson's II; Jefferys v. Jefferys, Cr. & Ph. 138; 
 Comp. Eq. 27s ; White & Tudor's L. C. Pollock, 202. 
 
 i. 223. 6 Wright v. Z. <&* N. W. Rail. Co., I 
 
 4 Hoghton v. Hoghton, 15 Beav. 275 ; Q. B. D. 252. 
 
872 
 
 Vouch 
 
 LAW DICTIONARY, 
 
 Wager 
 
 Settlements 
 and wills. 
 
 for valuable consideration. 1 Thus, an ordinary devisee or legatee is a 
 volunteer ; and if an appointment be made under a general power without 
 consideration the appointee is a volunteer. 2 So, in the case of a settle- 
 ment or conveyance void under the statute 27 Eliz. c. 4, which makes 
 voluntary conveyances of land void as against subsequent purchasers for 
 value, the person on whom the voluntary settlement is made is called a 
 volunteer. 3 (See Voluntary, §3.) 
 
 Voucher 
 warranty 
 
 Double 
 voucher. 
 
 Foreign 
 voucher. 
 
 VOUCH— VOUCHER.— I. § 1. To vouch is to call upon, rely on, 
 or quote as an authority. Thus, in the old writers, to vouch a case or 
 report is to quote it as an authority.* 
 
 § 2. Hence, a "voucher'' is a document which evidences a transaction, 
 especially a receipt for the payment of money. In the practice of the 
 Chancery Division, when an account is being taken in chambers, the 
 accounting party has to produce vouchers for all payments of 2/. or over 
 claimed to have been made by him. This is called "vouching the account." 
 (See Account, § 5.) 
 
 t II. §3. In the old law of real property, voucher (or " voucher to warranty") was where 
 
 a person who was being sued for the recovery of land held by him called into Court the 
 person who had warranted the land to him, and required him either to defend the title 
 against the demandant or to yield him land of equal value ; the person thus called into 
 Court was called the vouchee. Double voucher was where the vouchee vouched the 
 person who had warranted the land to him ; and so with treble voucher, &c. A foreign 
 voucher was where the vouchee was a foreigner, that is, a person out of the jurisdiction 
 of the Court in which the action was brought. 5 In the fictitious proceedings called 
 common recoveries, the vouchee (or ultimate vouchee if there were more than one) was 
 usually the ciier of the Court, who was hence called the common vouchee. 6 (See 
 Recovery, § 7 ; Prcecipe, § 3.) 
 
 § 4. Real actions having been abolished," the proceeding by voucher no longer exists. 
 (See Warranty, §§ 6 et sea. ; Warrantia Chartce.) 
 
 Etymology.] — Norman-French, voucher;" from Latin, vocare, to call. 
 
 VOYAGE POLICY. See Policy 0/ Assurance, § 3. 
 
 W. 
 
 WAGER. — § 1. A wager consists of mutual promises between two 
 persons that one will pay the other a certain sum of money if a certain 
 event happens or is ascertained to have happened. At common law a 
 
 1 Spence, Eq. ii. 285 et sea. 
 
 2 Watson's Comp. Eq. 293. 
 
 3 White & Tudor's L. C. i. 223 ; Price 
 v. Jenkins, 4 Ch. D. 483, overruled on 
 appeal, 5 Ch. D. 619. 
 
 1 Co. Litt. 70 a. 
 
 6 Ibid. 101 b. 
 
 " Bl. Comm. ii. 359. 
 
 7 Stat. 3 & 4 Will. 4, c. 27, s. 36. 
 " Britton, 255 a. 
 
Wager LAW DICTIONARY. Wages 873 
 
 wager constituted a good contract, unless it was contrary to public policy, 
 morality or the like ; l but by stat. 8 & 9 Vict. c. 109, all contracts by way 
 of gaming or wagering are null and void, 2 except so far as concerns sub- 
 scriptions or contributions for prizes or money to be awarded to the 
 winner of any lawful game, sport, pastime or exercise. 3 There is nothing 
 illegal in a wager : it is merely not enforceable. 1 (See Unlawful.) 
 
 § 2. Numerous questions have arisen as to the lawfulness of speculative Gambling in 
 transactions on the Stock Exchange, especially as regards "time- stocks - 
 bargains " and " differences." A time-bargain is in form a contract to Time-bargain, 
 buy or sell shares or other securities, with an agreement (contempo- 
 raneous or subsequent) that the sale shall not be really carried out by 
 delivery of the securities, but that one party shall pay to the other the 
 difference between the market price of the security on the day when the 
 contract was made and the day fixed for its performance. It is, therefore, 
 a wager on the price of the security. The term "difference" is generally "Differ- 
 applied to the case where a person employs a broker to buy or sell stock ences - 
 for him on the understanding that when the day for completing the trans- 
 action arrives, the broker shall re-sell or re-buy the stock, and that the 
 employer shall take the profit or bear the loss. A time-bargain is void as 
 between the parties to it, 5 but if a broker is employed to speculate in 
 stocks, he can recover from his employer brokerage and " differences " in 
 respect of all genuine contracts for buying and selling stock which he 
 enters into with other persons. 6 
 
 § 3. By numerous statutes from 33 Hen. 8 to the present time, especially Betting- 
 stat. 42 Geo. 3, c. 119 ; 8 & 9 Vict. c. 109 ; 16 & 17 Vict. c. 119 ; 17 & houses. 
 18 Vict. c. 38 ; 37 Vict. c. 15, persons who keep gambling- or betting- 
 houses, or otherwise publicly offer facilites for gambling or betting, are 
 made liable to various penalties and punishments. 
 
 As to wager of law, see Bl. Comm. iii. 341 ; Steph. Comm. iii.424. 
 
 "WAGES are money payable by a master to his servant in respect of 
 services. (See Master and Servant ; Service, § 7.) 
 
 § 2. Some wages are preferential debts in bankruptcy (see Debt, § 12), Bankruptcy, 
 and in the liquidation of a mining company under the Stannaries Act, 
 1869.' 
 
 § 3. With reference to seamen's wages, the general rule used to be Seamen's 
 " freight is the mother of wages," so that if no freight was received no wa S es - 
 wages were payable ; but this rule has been abolished by the Merchant 
 Shipping Act, 1854, s. 183. 8 Seamen have a lien on the ship and freight 
 for their wages. Claims to wages may be enforced by action in rem or in 
 personam. (See Action, §§ 11 — 18.) County Courts and justices of the 
 
 1 Chitty on Contracts, 468. "options," "puts," and "calls" is ex- 
 
 a Ibid. 470. plained. 
 
 3 See Diggle v. Higgs, 2 Ex. D. 422 ; ° ThacJter v. Hardy, 4 Q. B. D. 685 ; 
 
 Trimble v. Hill, 5 App. Ca. 342. Ex parte Rogers, 15 Ch. D. 207. 
 
 i Pollock on Contract (3rd edit.), 276. ' Buckley on Companies, 281. 
 
 5 Grisewood v. Blane, 11 C. B. 526, 9 Maude & Pollock, Merch. Shipp. 
 
 538; Melsheimer & Lawrence on the (4th edit.), 219. 
 Stock Exchange, 21, where the nature of 
 
874 Waifs LAW DICTIONARY. Ward 
 
 peace have jurisdiction in claims for wages up to a certain amount, and 
 may enforce them by distress and sale of the vessel. The wages of a 
 master are now on the same footing as those of ordinary seamen. 1 
 
 WAIFS, bona waviata, are stolen goods which are waived or thrown 
 away by the thief in his flight, for fear of being apprehended. They 
 belong to the owner, if he follows and apprehends the thief or prosecutes 
 him to conviction ; otherwise they belong to the crown. 2 (See Preroga- 
 tive ; Franchise, § 2; Addenda, title Fugitives' Goods.) 
 
 WAIVE— WAIVER.— I. § 1. A person is said to waive a benefit 
 when he renounces or disclaims it, and he fs said to waive a tort or injury 
 when he abandons the remedy which the law gives him for it. A waiver 
 may be either express or implied. Thus, if a tenant commits a breach of 
 covenant, and thereby makes the lease liable to forfeiture, the lessor may 
 waive the breach either by promising not to take advantage of it, or by 
 receiving rent after knowing of the breach : the former is an express, the 
 latter an implied, waiver. Formerly, if a lessor waived a right of re-entry 
 for a breach of covenant, or the like, this operated as a waiver in law of 
 all future breaches, so that the right of re-entry was destroyed. This rule 
 was abolished by stat. 22 & 23 Vict. c. 35. (See Apportion, § 4; and 
 Addenda.) 
 
 II. § 2. "A man which is outlawed is called outlawed, and a woman 
 which is outlawed is called waived," 3 "waviata and not utlegata or exlex, 
 for that women are not sworne in leets or tomes, as men which be of 
 the age of twelve yeares or more be : and therefore men may be called 
 utlegati, id est, extra, legem positi, but women are waviatce, id est, derelictce, 
 left out or not regarded, because they were not sworne to the law." 1 
 (See Outlaw.) 
 
 WAPENTAKE in the northern counties is equivalent to a hundred 
 
 { q .v.y 
 
 WARD— WARDSHIP.— § 1. A ward is an infant who is under the 
 care of a guardian (q. v.). Wardship is the condition or status of a ward. 
 Ward of § 2. If an action, suit or other proceeding relative to an infant's estate 
 
 Court - or person, and for his benefit, be instituted in the Chancery Division of 
 
 the High Court, the infant, whether plaintiff or defendant, immediately 
 becomes a ward of Court, although its father or testamentary guardian 
 may be living. Thus, the institution of an action for the administration 
 of property in which an infant is interested, or the payment into Court 
 under the Trustee Relief Act of a fund in which he is interested, makes 
 him a ward of Court. 6 § 3. A ward of Court cannot be taken out of the 
 jurisdiction of the Court, nor can any change be made in his or her 
 
 1 Maude & Pollock, 122, 239 et seq. i Co Litt 122 b 
 
 2 Bl. Comm. i. 297 ; Steph. Comm. ii. 6 B1 . Coram, i. 116. 
 
 S4 3 7 't ;h * rRfi ° SneU ' s E( i- 3 2 $ ' Watson's Comp. 
 
 LltL § l86 - 295 ; Daniell, Ch. Pr. 1 190. F 
 
Warden LAW dictionary. Warning 875 
 
 position in life (as by marriage, adoption of a profession, &c), without 
 leave of the Court, and the details of his or her education and mainten- 
 ance are regulated by the Court, namely, a judge of the Chancery 
 Division sitting in chambers. 1 
 
 § 4. In the law of tenure, wardship is the right to the custody of the Tenure. 
 land, and in some cases also of the person, of an infant heir of land. The 
 right is a chattel real. 2 As to its nature and varieties, see Guardian. 
 
 WARDEN literally means a keeper ; but generally the term is used to 
 denote an officer of the crown. (See Cinque Ports; Stannaries^ 
 
 WARING, EX PARTE.— The case of Ex parte Waring* was as 
 follows : — Bracken & Co. had an account with bankers named Brickwood, 
 drawing upon them by bill, and lodging in their hands from time to time 
 securities against their drafts. Brickwoods became bankrupt on the 7th 
 July, 1 8 10, being then liable on acceptances for Bracken & Co. to the 
 amount of 24,000/., and having in their hands a cash balance of 6,700/., 
 and securities worth a considerable sum. On the 2nd August, 18 10, 
 Bracken & Co. also became bankrupt. Almost all the acceptances were 
 proved against both estates, and the holders received dividends on 
 Brickwoods' estate to the amount of 3,400/. An application was then 
 made by Waring and other holders of Brickwoods' acceptances, that the 
 assignees (or trustees in bankruptcy, as we should say now) of Brick- 
 woods' estate might be ordered to pay to the petitioners and the other 
 holders of the acceptances, the cash balance, less the dividends received 
 by the petitioners (6,700/., less 3,400/. = 3,300/.), and also the proceeds of 
 the securities held by Brickwoods, towards satisfaction of the amount due 
 on the acceptances. An order to this effect was accordingly made, on the 
 ground that the securities were applicable in clearing the estate of Brick- 
 woods from the liability on the acceptances, and that therefore, to avoid 
 circuity, the securities should be given up to the holders of the accept- 
 ances : in other words, the securities held by the banker were made 
 available to the bill holders, not directly, or as having a claim on the 
 securities in respect of the acceptances by them, but through the equity 
 (that is, the equitable rights and obligations) between the banker and 
 the customer. 
 
 The rule in Ex parte Waring only applies — (i) where there is a double 
 insolvency ; i and (ii) where there has been a specific appropriation of 
 securities. 5 
 
 WARNING, under the old practice of the Court of Probate, was a notice given-by 
 a Registrar of the Principal Registry to a person who had entered a caveat (q. v. § 2), 
 warning him, within six days after service, to enter an appearance to the caveat in 
 the Principal Registry and to set forth his interest, concluding with a notice that in 
 default of his doing so the Court would proceed to do all such acts, matters, and things 
 
 1 See Watson, 301 et seq, ; Bl. Comm. 3 19 Vesey, 345. 
 
 i. 463, 11. (13). The jurisdiction is not 4 Hickie's Case, L. R., 4 Eq. 226. 
 
 affected by the lunacy of the infant : In re 5 Ex parte Banner, 2 Ch. D. 278. See 
 
 Edwards, to Ch. D. 605. Fisher on Mortgage, 218. 
 
 3 Litt. § 320; Co. Litt. 200 a. 
 
876 
 
 LAW DICTIONARY. 
 
 Warrant 
 
 Warning 
 
 as should be necessary. 1 By the rules under the Judicature Acts, a writ of summons has 
 been substituted for a warning. 2 (See Appearance.) 
 
 Letters 
 patent. 
 
 Bailiff's 
 warrant. 
 
 Warrant to 
 bring up 
 prisoner as 
 witness. 
 
 Admiralty 
 practice. 
 
 Warrant to 
 answer. 
 
 Warrant to 
 appear on 
 indictment. 
 
 Bench war- 
 rant. 
 
 Warrant of 
 deliverance. 
 
 WARRANT. — § 1. In its primary sense, a warrant is an authority. 3 
 
 I. § 2. Every royal grant under the great seal is sealed by the Lord 
 Chancellor under the authority of a warrant prepared by the Attorney- 
 or Solicitor-General, setting forth the proposed letters-patent, counter- 
 signed by one of the principal Secretaries of State, and sealed with- the 
 privy seal. 4 (See Great Seal; Privy Seal ; Sign Manual.) 
 
 As to warrants for the delivery of goods, see Dock Warrant ; Delivery 
 Order. As to share warrants, see. Share, § 5. See also Warrant of 
 Attorney. 
 
 II. Warrants are used in executing process both in civil and criminal 
 cases. 
 
 (1) § 3. In ordinary actions, when a sheriff does not execute a writ either 
 personally or by his under-sheriff, he must authorize a bailiff to execute it, 
 and this authority is given by a document called a warrant. 5 (See Bailiff.) 
 
 § 4. Stat. 16 & 17 Vict. c. 30, s. 9, enables a Secretary of State, or judge 
 of any of the common law Courts, to issue a warrant for bringing up any 
 prisoner or person committed for trial, to be examined as a witness in any 
 Court. 6 (See Habeas Corpus, § 4.) 
 
 § 5. Under the old practice of the Admiralty Court, a warrant in 
 a cause in rem answered to and was almost in the same words as the 
 writ of summons in an admiralty action in rem under the new practice. 7 
 As to the warrant of arrest in an admiralty action, see Action, § 12.® 
 
 (2) In criminal procedure, warrants authorizing the arrest or apprehen- 
 sion of persons charged with or suspected of having committed indictable 
 offences, are issued in the following cases : — 
 
 § 6. A warrant to apprehend a person accused of an indictable 
 offence may be issued by a justice of the peace, either in the first instance 
 on a sworn information, or after a summons requiring the accused to 
 appear and answer the charge has been served on him and disobeyed. 
 This kind of warrant is sometimes called a warrant to answer. 9 
 
 § 7. A warrant may also be granted by a justice to apprehend a 
 person who has been indicted of an offence, and is at large. 10 (See 
 Backing a Warrant.) 
 
 § 8. A bench warrant is a warrant issued by the Court before which 
 an indictment has been found, to arrest the accused and bring him before 
 the Court to find bail for his appearance at the trial. 11 
 
 § 9. A warrant of deliverance is a warrant to discharge from prison a 
 person who has been bailed. 13 
 
 1 Browne's Probate Pr. 266. 
 
 2 Rules of Court, i. 1 . 
 
 3 See Co. Litt. 52 a. 
 
 4 Stat. 14 & 15 Vict. c. 82; Stephen, 
 Comm. i. 619; stat. 15 & 16 Vict. c. 83, 
 s. 15 ; Johnson on Patents, 283. 
 
 5 Smith's Action, 251. 
 
 6 Coe's Pract. 171. 
 
 7 Williams & Brace's Admiralty, 191. 
 
 8 The reference in note (4) on p. 23 should 
 be to the Rules of February, 1876, r. 4. 
 
 9 Stat. 11 & 12 Vict. c. 42, s. 1 ; Stone's 
 Justice of the Peace, 100. 
 
 10 Stat.n&i2Vict. c.42,s.3; Archbold, 
 Crim. PI. 82; Pritchard, Q. S. 176. 
 
 11 Archbold, Crim. PI. 83; Pritchard's 
 Q. S 178. 
 
 12 Archbold, 90. 
 
Warrant of Attorney LAW dictionary. Warranty 877 
 
 (3) The following kinds of warrants are used in summary proceedings 
 before justices of the peace and other magistrates: — 
 
 § 10. A warrant of distress is a warrant authorizing a penalty or other Warrant of 
 sum of money to be levied by distress and sale of the defendant's goods. 1 lstress - 
 
 § 11. A warrant of commitment authorizes the commitment of the de- Warrant of 
 fendant to prison for a certain time, and is granted either (i) where the comml men ' 
 imprisonment is the punishment for the offence, or (ii) after a return of 
 nulla bona to a warrant of distress, or (iii) in the first instance on default 
 in paying a penalty or other sum of money. 2 
 
 'WARRANT OF ATTORNEY originally meant the same thing as 
 a power or letter of attorney, 3 but at the present day the term is used 
 only to denote a written authority from a person enabling the person to 
 whom it is given (the attorney) to enter an appearance for him in an 
 action, and to allow judgment to be entered for the plaintiff, or to suffer 
 judgment to go by default. 4 Such a warrant is usually given to secure 
 the payment of a sum of money, and is therefore qualified by a condition 
 that it shall only be put in force if the debt is not paid by a certain day ; 
 this condition is expressed in a document called the defeazance, which 
 also usually contains various stipulations designed to facilitate the execu- 
 tion of the judgment when obtained. The defeazance must be written 
 on the same paper or parchment as the warrant, and its execution requires 
 to be attested by a solicitor, who must explain the nature of the docu- 
 ment to the debtor before he signs it. 6 Warrants of attorney are not 
 now of such frequent occurrence as formerly. 
 
 WARRANTIA CHARTS was a real action which lay to enforce a warranty of 
 title to land where the tenant was unable to avail himself of the warranty by voucher ° 
 (?. v.). It was abolished by stat. 3 & 4 Will. 4, c. 27, s. 36. (See Warranty, § 6.) 
 
 "WARRANTY. — § 1. A warranty is an engagement or undertaking 
 forming part of a sale or other transaction. A warranty differs from a 
 representation in giving rise to an absolute liability on the part of the 
 warrantor, whether made in good faith or not, and unless it is strictly and 
 literally performed the contract is avoided, 7 or he becomes liable to an 
 action for breach of warranty, according to the nature of the transaction. 
 (See Representation, §§ 3, 4.) 
 
 I. § 2. In the law relating to sales of goods, a warranty is a collateral On sale of 
 contract by a vendor on a sale of goods, that the goods have a certain s °° s ' 
 quality or property. Warranty of title is an engagement by the vendor Warranty of 
 that he has a good title to the goods which he professes to sell. 8 tltle ' 
 Warranty of quality is an engagement by the vendor that the goods are of quality. 
 
 1 Stone's Justice of the Peace, 193 ; c. 62, s. 24. 
 
 Summary Jurisdiction Act, 1879, ss - 2I > 5 Co. Litt. 52 a. 
 
 •>n 43. 6 Bl. Comra. iii. 300. 
 
 * Stone, 197 et sea.; S. J. Act, 1879, 7 Maude & Pollock, 393 ; Smith's Merc, 
 
 ss. 21, 39. Law, 369, 374 ; Steel v. State Line Sieam- 
 
 3 Co. Litt. 52 a. ship Co., 3 App. Ca. at p. 86. 
 
 4 Chitty, Pr. 950; Archbold, Pr. 762; e Chitty on Contracts, 407; Benjamin 
 Smith's Action, 161 ; stat. 32 & 33 Vict. on Sales, 497. 
 
878 
 
 Warranty 
 
 LAW DICTIONARY. 
 
 Warranty 
 
 Insurance. 
 
 Continuing. 
 
 Land. 
 
 Warranty in 
 deed or 
 express. 
 Lineal. 
 
 Collateral. 
 
 of a good quality and fit for the purpose for which they are wanted, or 
 that they are of a particular description. 1 Such a warranty may be either 
 general or restricted to some particular point. 2 § 3. Such warranties are 
 usually express, that is, created by appropriate words, though no par- 
 ticular form is required. Sometimes a warranty is implied. Thus, on a 
 sale of goods, though the general rule is caveat emptor, a warranty of 
 quality will be implied if the goods are made or supplied to the order of 
 the purchaser, or if they are sold as answering a particular description, or 
 by sample ; or it may arise from a usage of trade. 3 As regards implied 
 warranty of title, the law is not quite settled, but the rule appears to be 
 that " a sale of personal chattels implies an affirmation by the vendor that 
 the chattel is his, and therefore he warrants the title, unless it be shewn 
 by the facts and circumstances of the. sale that the vendor did not intend 
 to assert ownership, but only to -transfer such interest as he might have 
 in the chattel sold." 4 
 
 II. § 4. In the law of insurance, warranty means any assertion or 
 undertaking on the part of the assured, whether expressed in the contract 
 or capable of being annexed to it, on the strict and literal truth or per- 
 formance of which the liability of the underwriter is made to depend. 6 
 The most usual express warranties in time of peace are, that a ship is safe 
 on a given day, and that she will sail or depart on a given day. In time 
 of war it is also usual to warrant that the ship will sail with convoy, and 
 that she and her cargo are neutral property and free from confiscation or 
 seizure in the port of discharge. 6 The most important implied warranty 
 is that the vessel is seaworthy at the commencement of the risk. 7 (See 
 Seaworthy?) Warranty of documentation is a warranty that she has those 
 documents which are required by international law or treaty to establish 
 her national character. 8 § 5. A continuing warranty is one which 
 applies to the whole period during which the contract is in force : thus, 
 an undertaking in a charter-party that a vessel shall continue to be of the 
 same class that she was at the time the charterparty was made is a con- 
 tinuing warranty. 9 
 
 III. \ 6. In the old law of real property, warranty was an obligation by the feoffor or 
 donor of land (or other hereditaments) to defend the feoffee or donee in the possession of 
 the land, and to give him land of equal value if he was evicted from it. A warranty was 
 a real covenant. (See Covenant, § 3.) Warranties were either in deed, that is, ex- 
 pressed ; or in law, that is, implied. 10 
 
 (1) Warranties in deed were of three kinds. § 7. Lineal warranty was where the 
 heir of the warrantor was or might by possibility have been entitled to the land by 
 descent from the warrantor ; u this happened if a man seised of land in fee made a feoff- 
 ment of them by deed and bound himself and his heirs to warranty, and died, so that 
 the warranty descended to his heir, who would otherwise have inherited the land. 18 
 \ 8. Collateral warranty was where the heir of the warrantor could not by any possibility 
 
 1 Chitty, 410; Smith, L. C. i. 173. 
 
 •' Chitty, 417. 
 
 3 Benjamin, 525. 
 
 4 Ibid. 523. 
 
 6 Maude & Pollock, Merch. Shipp. 377. 
 
 6 Ibid. 378. 
 
 7 Ibid. 387. 
 
 8 Smith's Merc. Law, 381. 
 
 9 See French v. Newgass, 3 C. P. D. 
 163. 
 
 10 Williams on Seisin, 156: Shepp. 
 Touch. 181. 
 
 11 Co. Litt. 370 a. 
 
 12 Litt. § 703. 
 
Warren law dictionary. Waste 879 
 
 have been entitled to the land by descent from the warrantor ; thus, if a younger son 
 
 released with warranty to his father's disseisor, this warranty was collateral to his elder 
 
 brother, because by no possibility could the latter in such a case claim the land as heir to 
 
 his younger brother. 1 § 9. Where the conveyance to which the warranty was annexed Commencing 
 
 immediately followed a disseisin, or operated itself as such (as where a father, being ^ disseisin. 
 
 tenant for years with remainder to his son in fee, aliened in fee simple with warranty), 
 
 this was called a warranty commencing by disseisin, and did not bar the heir of the 
 
 warrantor. 2 
 
 § 10. The operation of a warranty as against the heir of a warrantor in case the war- 
 rantee was evicted from the land was to compel him to yield the warrantee other lands in 
 its stead, to the extent of any land which had descended to him from the ancestor ; 3 and 
 if he had no land by descent, then he was barred of all claim to the land warranted. 
 This operation, however, was from time to time restrained by various statutes, 4 and 
 voucher (q. v.) and the writ of warrantia chartse [q. v.) have been abolished, 6 so that a 
 warranty of land seems to be now entirely inoperative. A fictitious warranty was the 
 foundation of the proceeding called a common recovery (q. v.), now also abolished. (See 
 Recovery, § J.) 
 
 (2) j 11. Warranty was implied in certain cases ; thus, the word give in a feoffment Implied 
 created a warranty binding on the feoffor during his life ; and an exchange at common warranty. 
 law created an implied warranty (see Exchange, § 2) ; these and all other implied 
 warranties have been abolished. 1 (See Assets, § 4 ; Rebutter, § 2.) 
 
 WARREN is the privilege of keeping and killing certain kinds of 
 animals (especially hares and rabbits) on a piece of ground. As to what 
 are beasts of warren, see Game. A warren in the hands of a private 
 person (sometimes called a free warren) is a franchise (q. v.) ; it may be 
 claimed either by royal grant or prescription, and may exist either in the 
 lands of the owner of the warren, or in those of another person. 8 
 
 § 2. The owner of a warren has a qualified property in the animals 
 belonging to it, so that no other person can. acquire a property in them 
 either by taking them within the warren, or by chasing them thence and 
 taking them on other ground. (See Animals Ferae Natures; Forest, § 3 ; 
 Game.) 
 
 Etymology.] — Norman-French, garenne ; low Latin, warenna; from Old High 
 German, waron, to take care of, preserve : ("place defendue et garenne." 9 ) 
 
 WASTE. — I. § 1. In the law of real property, waste is, properly Wasteland, 
 speaking, land which has never been cultivated, as opposed to pasture 
 and arable land, &c. The most important kind of waste is manorial 
 waste, or that part of a manor which is subject to the tenants' rights of 
 common, and hence " waste " is sometimes used improperly to denote 
 any land subject to rights of common or similar rights, although under 
 cultivation. 10 (See Common; Commonable; Lammas Lands; Manor; Open 
 
 1 Litt. § 707. Williams on Seisin, 101 ; Co. Litt. 102 a, 
 
 1 Bl. Comm. ii. 302. For an instance of 384 a, b. 
 
 a "warranty paramount," see Deraign, 8 Comyns' Dig. Chase, D. ; Co. Litt. 
 
 5 2 " 233 a. As to whether a conveyance of a 
 
 3 ' Co Litt. 102 a. " warren" passes the soil, see Co. Litt. 
 
 1 Especially 6 Edw. 1, c. 3 ; 11 Hen. 7, 5 b ; Earl Beauchamp v. Winn, L. R., 
 
 c. 20; 4 & S Ann. c. 16; 3 & 4 Will. 4, 6 H - L ; 22 3- D 
 
 c. 27 s. 39 ■ 3 & 4 Will. 4, c. 74, s. 14. 9 Bntton, 83 a ; Littre, s. v. Garenne; 
 
 5 Stat 3 & 4 Will. 4, c. 27, s. 35. Schmidthenner's Diet. s. v. Wahren. 
 
 6 Bl. Comm. ii. 303, n. 13. 10 Elton, Comm. 188 ; Cooke, Incl. 42 ; 
 ' Stat. 8 & 9 Vict. c. 106, s. 3. For Fleta, 265 ; 7 Co. 5. 
 
 other instances of implied warranties, see 
 
880 
 
 Watch 
 
 LAW DICTIONARY. 
 
 Water 
 
 Waste by 
 tenant. 
 
 Voluntary or 
 permissive. 
 
 Impeacha- 
 bility for 
 waste. 
 
 Equitable 
 waste. 
 
 Meliorating 
 waste. 
 
 Public. 
 
 Fields; Shack.) The soil of a manorial waste is vested in the lord of the 
 manor, and he therefore is entitled to pasture his cattle on it. He is also 
 entitled to the minerals under the waste, and may work them so that he 
 do not unduly interfere with the commonable rights of the tenants. 1 As 
 to the inclosure of waste lands, see Approve, § i ; Inclosure. 
 
 II. § 2. In the law of torts, waste is whatever does lasting damage to 
 the freehold or inheritance of land, or anything which alters the nature 
 of the property so as to render the evidence of ownership more difficult, 
 or to destroy or weaken the proof of identity, or diminish the value of the 
 estate, or increase the burden upon it. It is either voluntary or permis- 
 sive — the former being an offence of commission, such as pulling down 
 a house, converting arable land into pasture, opening new mines or 
 quarries, &c. : the latter is one of omission, such as allowing a house to 
 fall for want of necessary repairs, allowing land to remain flooded with 
 water, &c. 2 
 
 § 3. A copyhold tenant may not commit waste upon the lands he holds. 3 
 A freehold tenant in fee simple or fee tail, on the other hand, may commit 
 as much waste as he likes ; but the general rule is, that a tenant for life of 
 freehold land is impeachable for waste, that is, he may not commit waste 
 unless his estate is without impeachment of waste (or sans waste), as 
 where it is expressly so given to him. (See Tenant in Tail after Possibility 
 of Issue extinct.) § 4. But there are certain kinds of waste which Courts 
 of Equity would always prevent, even where the tenant for life was unim- 
 peachable for waste, and which are hence known as equitable waste : cutting 
 down ornamental timber, and pulling down buildings, are instances of equit- 
 able waste : 4 where, however, a tenant for life pulls down a building and 
 erects a new one in such a way as to effect an improvement, the Court will 
 not interfere, this being what is called "meliorating" or "ameliorating 
 waste." 6 
 
 § 4. The remedy for waste is an action for damages or an injunction. 
 Etymology.]— Norman-French, wast ; 6 from Latin, vastare, vastus.'' 
 
 WATCH. See Constable, § 2 ; Rate, § 2 (x). 
 
 WATCH AND WARD.— In the old books, one of the principal 
 duties of constables is described as that of keeping watch and ward ; 
 "ward" being used to signify the duty of apprehending rioters and 
 robbers during the day-time, while " watch " is properly applicable to the 
 night. 8 (See Constable; Rate, § 2 (x). 
 
 WATER is either public or private. Public waters are the sea and 
 its branches, and navigable rivers, the beds 'of which belong prima facie 
 
 1 Williams on Commons, 150 et seq. 
 
 2 Co. Litt. 52 b ; Litt. § 71 ; Woodfall's 
 Landlord & Tenant, 566; Smith & Soden's 
 L. & T. 228 ; Fawcett's L. & T. 198 ; 
 Steph. Comm. hi. 405 et seq. 
 
 3 Williams on Seisin, 40. 
 
 4 Watson's Eq. 1153 et seq.; Steph. 
 Comm. iii. 405; Garth ,\ Cotton, 1 Ves. 
 
 524, 546 ; White & Tudor, L. C. i. 623 ; 
 Baker ^.Sebright, 13 Ch. D. 179; Judica- 
 ture Act, 1873, s - 2 5> § 3- 
 
 5 Doherty v. Allman, 2 App. Ca. 700. 
 
 6 Britton, 168. 
 
 7 Little, s. v. Getter. 
 s Bl. Comm. i. 356. 
 
Water LAW dictionary. Water 88 1 
 
 to the crown. As a rule the soil of estuaries and of rivers (whether 
 navigable or not) in which the tide ebbs and flows is vested in the 
 crown. 1 (See High Seas; King's Chambers; Rivers.) Private waters are Private, 
 rivers, streams, lakes and ponds, &c, the beds of which belong to private 
 persons. Prima facie the soil of non-tidal rivers and lakes belongs to the 
 owners of the adjoining land. § 2. Public waters are, as a rule, subject 
 only to the public right of navigation, and to the right of access possessed 
 by the owners of the adjoining shores or banks. 2 (See Access; Frontage; 
 Navigable; Riparian.) As to the right of fishing in public waters, see 
 Fishery. As to territorial waters, see Territorial. 
 
 Private waters are of three kinds : — 
 
 § 3. Private waters may be subject to a right of navigation by the private 
 public, as in the case of the Severn and other rivers. 3 waters 
 
 The distinction between public waters and private waters subject to public. 6 Y 
 a public right of navigation is that in the case of the latter the owners 
 of the soil may (as against the public) do what they like with the water 
 and its bed so long as they do. not obstruct the navigation. 4 
 
 § 4. Private waters passing through or between the lands of different 
 proprietors may be subject to two kinds of rights, natural and ac- 
 quired. Natural or proprietary rights are those possessed by every Natural rights 
 riparian proprietor, and consist principally in the right to have the water of water, 
 flow in its accustomed manner, without sensible disturbance or diminution 
 by the superior and inferior riparian proprietors, and the right to the 
 reasonable use of the water while it is flowing past his land, including its 
 use for domestic purposes, for turning mills, &c. 6 § 5. Acquired rights Acquired 
 are those easements which entitle a riparian proprietor to interfere with a rights, 
 natural stream of water to an extent not justified by his natural or pro- 
 prietary rights, e. g., by diminishing or obstructing the flow of water, or 
 by polluting it, &c, or which entitle him to the use of an artificial water- 
 course (q. v.). e Acquired rights in respect of water may exist in the 
 inhabitants of a district by virtue of a custom. 7 As to the right of fishing 
 in private waters, see Fishery, §§ 4 et seq. 
 
 § 6. Water covering and surrounded by land belonging to one pro- Land covered 
 prietor is not the subject of any special rights. It is not considered as ^ water. 
 part of the soil, and therefore a right to go on a man's land and take 
 water from it is an easement and not a profit k prender ; 8 and if a man 
 grant to another a piece of water on his land, all that the grantee takes is 
 
 1 Coulson & Forbes on "Waters, 413. Colquhoun, at p. 854 ; Mackenzie v. 
 As to the jurisdiction of the English Crown Bankes, 3 App. Ca. 1324 ; Earl of Sand- 
 over the open seas adjacent to the coast, wick v. G. N. R., 10 Ch. D. 707. As to 
 see Territorial. natural rights in an artificial watercourse, 
 
 2 Orr Ewingy. Colquhoun, 2 App. Ca. see Woody. Waud, 3 Exch. 748, cited by 
 839 ; Bristow v. Cormican, 3 App. Ca. Gale, at p. 308. As to the obligation of 
 641 ; Bell v. Corporation of Quebec, keeping an artificial flow of water within 
 S App. Ca. 84 ; Phear on "Water, passim. bounds, see West Cumberland, &c. Co. v. 
 
 3 Ibid. This seems to be Lord Hale's Kenyan, 11 Ch. D. 782. 
 meaning in the passage quoted in Lyon v. 6 Gale, 270. 
 
 Fishmongers' Co., 1 App. Ca. at p. 673. 7 Shelford, R. P. Stat. 97 ; Harrop v. 
 
 * Orr Ewingv. Colquhoun, ubi supra. Hirst, L. R., 4 Ex. 43. 
 
 ' 5 Phear, 30 ; Gale on Easements, 218 ; s Race v. Ward, 4 E. & B. 702. Britton 
 
 Dart, V. & P. 364 et seq. ; Orr Ewing v. (154 b) describes this as a right of common. 
 
 S. 3 L 
 
882 
 
 Watercourse 
 
 LAW DICTIONARY. 
 
 Way 
 
 Artificial. 
 
 Natural. 
 
 the right of fishing in it. The proper legal description of a pond or the 
 like is " land covered with water." 1 
 
 For other points connected with water, see Accretion ; Alluvion ; Con- 
 servators of Rivers; Dereliction, § 3; Ferry; Foreshore; Frontage; Ship; 
 Water Supply? 
 
 WATERCOURSE.— § 1. In the proper sense of the word, a water- 
 course is an artificial channel (whether above or below ground) by which 
 water is led from or over the land of one person to or over that of 
 another. 3 The right of watercourse, in this sense of the word, is there- 
 fore the right of receiving or discharging water through another person's 
 land, and is an easement, the tenement for the benefit of which the 
 watercourse exists being the dominant tenement. 4 (See Easement?) 
 § 2. In some cases, however, it seems that where a watercourse passes 
 over land for the discharge of water from the dominant tenement, the 
 owner of the servient tenement may be entitled to have the flow of water 
 through the watercourse uninterrupted, so that the dominant owner 
 cannot stop or divert it. 5 In such a case there are correlative easements, 
 each tenement and owner being dominant or servient, according to the 
 easement which is in question : and the watercourse is practically undis- 
 tinguishable from a natural stream. 
 
 § 3. The term "watercourse" is also sometimes applied to natural 
 streams. The rights of receiving and discharging the water of a natural 
 stream over the land of adjoining proprietors are not easements, but 
 natural rights. (See Water, § 4.) 
 
 Public. 
 
 WATER SUPPLY— WATERWORKS.— The principal statutes 
 relating to the supply of water are the Waterworks Clauses Acts, 1 847 and 
 1863, for regulating waterworks constructed under private acts of par- 
 liament: the Metropolis Water Acts, 1852 and 1871, applying only to 
 London : the Gas and Water Facilities Act, to facilitate the construction 
 of gas and waterworks under provisional orders of the Board of Trade 
 (see Provisional Order) : the Public Health Act, 1875, sects. 51 — 70 of 
 which empower urban authorities to construct or acquire waterworks 
 within their districts in certain cases: and stat. 40 &41 Vict. c. 31, as 
 to which see Improvement of Land Acts. 
 
 WAY. — § 1 . A right of way is where a person has the right of passing 
 through or over land not belonging to him. 
 
 § 2. Ways are either public or private. 7 Public ways are more commonly 
 called highways (q. v.). 
 
 1 Co. Litt. 4 b. 
 
 2 As to rights relating to water in 
 Roman lawand in jurisprudence, seeElvers, 
 Recht des "Wasserlaufes ; Championniere, 
 Propriete des Eaux Courantes ; Zeitschrift 
 fur vergl. Rechtswft. i. 26 1 ; Holtz. 
 Encycl. i. 388. 
 
 3 Britton, 153 b. 
 
 4 Gale on Easements, 23 ; Shelford's 
 
 R. P. Stat. 86 ; Phear on Water, 38. As 
 to what is a watercourse within the Pre- 
 scription Act, see Gale, 169, n. (a). 
 
 6 Wood v. Waud, 3 Exch. 748, cited by 
 Gale, 308 ; Singh v. Pattick, 4 App. Ca. 
 121. 
 
 6 Gale, 218; West Cumberland, &-c. 
 Co. v. ICenyon, 11 Ch. D. 782. 
 
 7 Shelford's R. P. Stat. 62. 
 
Wayleave LAW dictionary. Wilful 883 
 
 § 3. Private rights of way are of various kinds. They may be limited Private. 
 (1) as to the intervals at which they may be used, e.g., a way to church 
 or market : (2) as to the actual extent of the user authorized, e. g., a 
 foot-way, horse-way, cart-way, carriage-way, a way for driving cattle, 
 or drift way, a way for carrying coals, &c. : and (3) as to the nature of 
 the tenement to which the way is claimed, e. g., a way to a shed used for 
 storing wood. 1 
 
 As to ways of necessity, see Easement, §§ 9, 10. 
 
 § 4. A private right of way is either an easement (q. v.) or a customary 
 right. 2 
 
 § 5. The obstruction of a private way is a disturbance (q. v.) : the 
 obstruction of a public way is a nuisance (q. v.). 
 
 WAYLEAVE is a right of way over or through land for the carriage 
 of minerals from a mine or quarry. It is an easement (q. v.), being a 
 species of the class called rights of way (see Way), and is generally 
 created by express grant or reservation. A wayleave rent may be a fixed 
 annual sum, or a sum payable according to the quantity of minerals 
 drawn over the way, or a combination of the two. 3 (See Rent, § 6.) 
 
 'WAYWARDENS,— The Highway Acts provide that in every parish 
 forming part of a highway district there shall annually be elected one or 
 more waywardens. The waywardens so electad, and the justices for the 
 county residing within the district, form the highway board for the dis- 
 trict. Each waywarden also represents his parish in regard to the levying 
 of the highway rates, and in questions arising concerning the liability of 
 his parish to repairs, &c. 4 
 
 WEIGHTS AND MEASURES.— The Weights and Measures Act, 
 1878, enacts that the same weights and measures shall be used throughout 
 the United Kingdom. It establishes standards of weights and measures, 
 and provides that all contracts, sales, &c. made in the United Kingdom 
 for any work, goods, &c. by weight or measure, shall be deemed to be 
 made and had according to those weights and measures, and if not so 
 made shall be void. It also imposes penalties on persons using or having 
 in their possession unjust measures or weights. 
 
 WELSH MORTGAGE. See Mortgage, § 10. 
 
 WHIPPING may be inflicted as a punishment for offences under 
 several statutes, especially under the Criminal Law Consolidation Acts of 
 1861 and stat. 26 & 27 Vict. c. 4 4- 5 (See Larceny; Misdemeanor, § 3.) 
 
 WILFUL means intentional or deliberate. Thus if a person accident- 
 ally strikes another, this is a battery g iving rise to a right of action for 
 
 'Co. Litt. 5 6 a; Gale on Easements, » Bainbridge en M« ( 4 ti edit.), «i 
 
 337; Shelford 1 S R.P.Stat. 7 r. et « & W^ C °M A1864, .878. 
 
 « Formerly treated as an easement. See * S» £ ^^ ^ 
 
 Basement, n. (1). CrirrfeVL 80, 946. 
 
 3 T - 2 
 
Wilful 
 
 LAW DICTIONARY. 
 
 Will 
 
 damages, while if he does it intentionally it is a wilful battery, for which 
 the party injured may have an action of damages or a criminal prosecu- 
 tion. (See Battery.) § 2. Similarly a "wilful default" is an act of 
 omission done with intention. Mortgagees and other persons holding 
 securities are liable for losses caused by their wilful default ; hence if a 
 mortgagee of land in possession does not avail himself of an opportunity 
 of beneficially letting the land, he is bound to give credit for what he has 
 thus lost by his wilful default. (See Account, §§ 7 et seq.; Mortgagee in 
 Possession.) Wilful default is a species of contributory negligence. (See 
 Negligence, § 6.) 
 
 "Wills," 
 " testaments, : 
 and "codi- 
 cils." 
 
 Lex loci. 
 
 Lex domicilii. 
 
 Testamentary 
 capacity. 
 
 WILL. — § 1. A will is a disposition or declaration by which the 
 person making it (who is called the testator) provides for the distribution 
 or administration of property after his death. It does not take effect 
 until the testator's death, and is always revocable by him. 
 
 § 2. Formerly "will" signified a testamentary disposition of land, as 
 opposed to a testament {q. v.), but this distinction is now obsolete. 1 In 
 the strict sense of the word, a will includes all testamentary dispositions 
 by the testator in force at the time of his death ; but in practice "will " 
 signifies a testamentary document which is in form complete in itself, 
 while additional or supplementary dispositions are called " codicils." 
 (See Codicil ; Testamentary, § 2.) 
 
 § 3. A will of fixed or immovable property (including leaseholds) is 
 generally governed by the lex loci rei sitas. (See Lex Loci.) Thus, a 
 will made in Holland in the Dutch language must, in order to operate on 
 lands in England, be executed and attested according to English law, 
 and must contain expressions which, being translated into English, would 
 comprise and pass the lands in question. In regard to personal, or rather 
 moveable property, the will is governed by the law of the place where the 
 person was domiciled at the time of his death. But as regards for- 
 malities of execution, this rule is now subject to some exceptions, as to 
 which see Domicile, § z? 
 
 § 4. Infants and lunatics are wholly incapable of making wills while 
 their disability lasts. A married woman may make a will in respect of 
 property settled to her separate use, or, with the assent of her husband, 
 in respect of personal estate not so settled. (See Separate Estate ; Testable.) 
 All other persons have complete testamentary capacity. A person may 
 also have a power of appointment by will over property not belonging to 
 him. (See Power, § 6 ; Testable.) The rule of the High Court (in its 
 probate jurisdiction) as to such wills is that it will grant probate of any 
 instrument of a testamentary character if duly executed, leaving the 
 question whether it is a valid exercise of the power to be decided by the 
 proper tribunal. 3 So that a testamentary document purporting to be 
 made in execution of a power may be proved as a will and yet be invalid, 
 because it has not complied with the power. By the Wills Act, every 
 
 1 Williams on Exec. 6 ; Bl. Comm. ii. 
 373- 
 
 1 Jarman on Wills, I et seq. 
 3 Ibid. 29. 
 
Will LAW DICTIONARY. Will 885. 
 
 will executed in accordance with its provisions {infra, § 7) is declared to 
 be, so far as respects the execution and attestation thereof, a valid exe- 
 cution of a power of appointment by will, although the power may have 
 expressly required that a will made in exercise of it should be executed 
 with some additional or other form of execution or solemnity. 1 (See 
 Appointment, § 2 ; Execute, §2.) 
 
 § 5. A person having testamentary capacity may dispose by will of all Testamentary 
 real and personal estate which he shall be entitled to, either at law or in P ower - 
 equity, at the time of his death, and which, if not so disposed of, would 
 devolve upon his heir, executor or administrator, including estates pur 
 auter vie, and all contingent, executory and future interests in pro- 
 perty, and all rights of entry. 2 (See Occupancy, § 3 ; -Right of Entry, 
 
 §*•) 
 
 As to devises in mortmain, see that title. 
 
 As to the descent of trust and mortgage estates, notwithstanding a testa- 
 mentary disposition, see Addenda, title Descent. 
 
 §6. No particular form of words is required to make a valid will 3 so long 
 as the testator's intention can be ascertained ; otherwise its provisions 
 will fail from uncertainty (q. v.). 
 
 § 7. A will must in ordinary cases be in writing, and signed at the foot Formalities. 
 or end by the testator, or by some one in his presence and by his direc- 
 tion, and the signature must be made or acknowledged by the testator in 
 the presence of two or more witnesses, who must be present together at 
 the same time, and must attest and subscribe the will in the presence of 
 the testator. 1 (See Alteration, § 4.) 
 
 § 8. A devise or bequest to an attesting witness, or to his or her wife 
 or husband, does not affect the validity of the will, but the gift is void. 6 
 
 § 9. A nuncupative will is when the testator without any writing Nuncupative. 
 declares his will before a sufficient number of witnesses. Before the 
 Statute of Frauds, such wills were as valid for disposing of personalty as 
 written wills; but by that statute 6 they were laid under several restrictions, 
 except when made by soldiers or seamen in actual service. And by the 
 Wills Act, nuncupative wills are altogether rendered invalid, except those 
 made by soldiers or seamen in accordance with the old law. 1 
 
 As to the revocation and revival of wills, see those titles. 
 
 § 10. Every will is construed, with reference to the real and personal pro- Operation of 
 perty comprised in it, to speak and take effect as if it had been executed w 
 immediately before the death of the testator, unless a contrary intention 
 shall appear. 8 As to the effect of this rule, see Devise, § 2 ; Lapse, § 1 ; 
 Legacy, §§ 2 et seq. ; Residue. 
 
 § n. Wills are not required to be in any partieular form, but a well- V^g™^ 
 drawn will usually contains the following clauses (or as many of them as wffl _ 
 
 , Sect _ J0 _ * Wills Act (1 Vict. c. 26) ; stat. 15 
 
 1 Wills Act s 3 Vict. c. 24. 
 
 3 Williams, ' 99 ;' Watson's Comp. Eq. 5 Wills Act, s. 15. 
 
886 
 
 Will 
 
 LAW DICTIONARY. 
 
 Winding-up 
 
 Probate of 
 will. 
 
 may be required) in the following order :— (i) commencement (" This is 
 the last will of me, A. B., &c") : (ii) revocation of former wills : (iii) spe- 
 cific legacies : (iv) general legacies : (v) annuities : (vi) specific devises : 
 (vii) residuary gift : (viii) clauses relating to property settled or given in 
 trust (if any) : (ix) devise and bequest of trust and mortgage estates : 
 (x) appointment of executors and guardians : (xi) testimonium. 1 (See 
 the various titles ; and as to settlements made by will, see Settlemetit ; 
 Trust.) 
 
 § 12. As soon as possible after the testator's death, it is the duty of 
 the executor to prove his will, either in common or in solemn form. (See 
 Probate.) If there is no executor, letters of administration with the 
 will annexed are granted. (See Letters of Administration?) Before 
 the probate is obtained, an executor may act as effectually in almost 
 everything as if probate had been granted, and when granted it has 
 relation back to the death of the testator. In the case of an administra- 
 tor, on the other hand, acts done before the grant of administration are, 
 as a general rule, not binding. Both rules are subject to exceptions. 2 
 
 WINDING-UP, as applied to a partnership or company, is the 
 operation of stopping the business, realizing the assets and discharging 
 the liabilities of the concern, settling any questions of account or contri- 
 bution between the members, and dividing the surplus assets (if any) 
 among the members. 3 The term " winding-up " is also sometimes 
 applied to the estates of deceased persons, but " administration " (q. v.) is 
 the more usual expression. 
 
 Partnership. (i) § 2. The winding-up of a partnership is either — (1) voluntary 
 
 (i. c, by agreement between the partners), or (2) by order of a Court made 
 in an action for the dissolution of the partnership. (See Dissolution.) 
 A partnership consisting of more than seven members may be wound up 
 by an order obtained on a petition under the Companies Act, 1862, sect. 
 199, in which case the winding-up is almost the same as if the partnership 
 were a company. 4 
 
 Company. ( 2 ) §3. The winding-up of companies before 1862 was effected under 
 
 the Winding-up Acts of 1848-49, and the Joint Stock Companies Acts, 
 1856-58, which provided a machinery partly in Chancery, and partly in 
 Bankruptcy; 5 but now all companies, except railway companies incor- 
 porated by act of parliament, are wound up under the provisions of the 
 
 Compulsory. Companies Act, 1862, in one of three manners: — (a) § 4. A compulsory 
 winding-up takes place when the Court having jurisdiction in the matter 
 (e.g., the High Court, in the Chancery Division), makes an order to that 
 effect on a petition 6 presented by the company itself, or by a creditor 
 or a contributory. The commonest case of compulsory winding-up 
 occurs where a company cannot pay its debts. Companies not registered 
 
 1 Elphins. Conv. 427. 
 
 2 "Watson's Comp. Equity, 235. 
 
 3 Lindley on Partnership, 1028. 
 
 4 See In re South Wales Atlantic Steam- 
 
 ship Co., 2 Ch. D. 763. 
 
 8 I.indley on Part. 1211. 
 
 6 Ibid. 1 241; Turing on Companies, 
 172 et seq. 
 
Winding-up LAW DICTIONARY. Withdrawal 887 
 
 under the act can only be wound up compulsorily. 1 All the proceedings 
 in a compulsory winding-up are taken under the direction of the Court. 
 
 (b) § 5- A voluntary winding-up takes place when the company passes a Voluntary, 
 resolution to that effect. Such a resolution must, in certain cases, be 
 
 either a special or extraordinary resolution. (See Resolution, § 2.) A volun- 
 tary winding-up is conducted without the intervention of any Court. 2 
 
 (c) § 6. A winding-up may be voluntary, but subject to the supervision of Subject to 
 the Court: that is, the winding-up is determined on by resolution of the su P en ' '"'' 
 company, but an order is subsequently made by the Court that it shall be 
 
 carried out subject to such restrictions as the Court may impose, and 
 with such liberty for persons interested to apply to the Court, and 
 generally in such manner, as the Court thinks just. 3 
 
 § 7. By the doctrine of relation (see Relate) a compulsory winding-up Commence- 
 is deemed to commence at the time of the presentation of the petition, ^ding-up- 
 Voluntary winding-up (whether under supervision or not) commences at 
 the time of the passing of the resolution to wind up, or the passing of the 
 second resolution, if the resolution is a special one. 4 All dispositions of 
 the property of the company, and every transfer of shares or alteration in 
 the status of the members of the company, made after the commencement 
 of the winding-up, are void, except in certain cases. 6 
 
 § 8. The principal effects of a winding-up are: 1st. Nothing can be Effect of 
 done after its commencement, except with a view to realize the company's winding-up. 
 assets, enforce contributions from its members if necessary, and distribute 
 them among its creditors, 6 and then, if there is any surplus, among the 
 members. 2nd. Liquidators must be appointed to carry out these objects. 
 3rd. No legal proceeding giving one creditor an advantage over another, 
 can be taken against the company or the members, except by leave of the 
 Court, in the winding-up. 7 Where a company is being wound up com- 
 pulsorily or subject to supervision in the High Court, the judge before 
 whom it is pending may order any actions by or against the company 
 pending in any other division to be transferred to him. 9 (See Adjudica- 
 tion, § 2; Claim, § 2; Contributory; Dissolution, § 3; Liquidator; and 
 compare Administration ; Bankruptcy.) 
 
 WINDOW. See Light. 
 
 WITHDRAWAL.—! 1. Where the plaintiff in an action does not Claim, 
 wish to proceed with a portion of his claim, he may withdraw that part of 
 his statement of claim either (i) by giving notice to the defendant, if no 
 step subsequent to the delivery of the statement of defence has been taken ; 
 
 1 Sect. 199; Thring, 205. The pro- ' Companies Act i86 2 , s. I3 o; 2W 
 
 2T )- - ai r„™ 7 Companies Act, i86z, s. 85. 
 
 a S y 4 2 o 4I °Se e In re Rochdale, &*. ■ Rules of Court, li. 2 a. 
 Co., 12 Ch. D. 775- 
 
888 
 Defence. 
 
 Cause for 
 trial. 
 
 Withdrawal of a Juror LAW dictionary. 
 
 Witness 
 
 or (ii) at any other time by leave of the Court or a judge. § 2. A defen- 
 dant may also, by similar leave, withdraw the whole or any part of his 
 defence or counterclaim. § 3. When a cause has been entered for trial, 
 it may be withdrawn by consent. 1 (See Discontinuance^) 
 
 WITHDRAWAL OF A JUROR.— At the trial of an action, when 
 neither party feels sufficient confidence to render him anxious to persevere 
 till verdict, or when the judge recommends that the action should not 
 proceed further, the parties may by consent, for it cannot be done other- 
 wise, withdraw a juror ; and as that leaves the jury incomplete, there can 
 be no verdict, and the trial comes to an end. The withdrawal of a juror 
 in this way always puts an end to the cause ; and if the action be after- 
 wards proceeded with, an application may be made to the Court or a judge 
 to stay the proceedings. This practice was peculiar to the common law 
 courts, but does not seem to have been abolished in civil cases by the 
 Judicature Acts ; and it still applies to criminal trials. 2 (See Discharge, 
 § 6.) 
 
 WITHERNAM. See Capias in Withernam. 
 
 "WITHOUT DAY, — Formerly, when a defendant in an action succeeded on a 
 plea, the judgment in certain cases was that he should " go without day,'' or " go quit 
 without day," that is, go free from the action without a continuance to any certain day, 
 in other words, be discharged of further attendance. In some cases {e.g., in case of 
 nonsuit) this disposed of the action altogether, while in other cases it only suspended the 
 action until the plaintiff remedied some defect in his title. 3 
 
 Attesting 
 witness. 
 
 Procedure. 
 
 WITHOUT PREJUDICE. See Prejudice. 
 
 WITNESS. — I. § 1. In the primary sense of the word, a witness is 
 a person who has knowledge of an event. As the most direct mode of 
 acquiring knowledge of an event is by seeing it, "witness" has acquired 
 the sense of a person who is present at and observes a transaction. 
 
 § 2. Hence, when a deed or other instrument is executed in the 
 presence of a person, and he records the fact by signing his name on it, 
 he is said to witness it, or to be an attesting witness. As to the proof 
 of attested documents, see Attest. As to gifts to attesting witnesses in 
 the case of wills, see Will, § 8. 
 
 II. §3. In procedure, a witness is a person who makes a viva voce 
 statement to a judicial tribunal on a question of fact. (See Evidence, 
 § 7 ; Examination ; Fact.) Witnesses require to be sworn before their 
 evidence is given (see Oath, §2), unless they have conscientious 
 objections to taking an oath, or have no religious belief, in which case 
 they make a solemn affirmation. (See Affirm, § 3.) 
 
 § 4- Tne general rule is that all persons are competent to give evidence, 
 
 . ' Rules of Court, xxni. 3 Co. Litt. 134 b, 362 b. See per Bram- 
 
 • Smiths Action, 139; Archbold, Pr. well, L. J., in Poyser v. Minors, 7 O. B D. 
 376 ; Arch. Crim. PI. 175. a t p. 336. V 
 
Witnessing Part law dictionary. Words of Limitation 889 
 
 provided they have sufficient mental understanding, except that a person 
 accused of a crime (and the husband or wife of such a person) is not 
 competent to give evidence respecting it. (See Competency ; Credibility ; 
 Voire dire!) 
 
 § 5. All persons (if competent) are compellable to give evidence, except 
 the sovereign. But every witness has a right to refuse to answer certain 
 questions, such as a question the answer to which would have a tendency 
 to expose the witness to criminal proceedings, or to a forfeiture or penalty. 
 Liability to civil proceedings is not a ground of privilege. 1 See further 
 on this subject, Confidential Communications ; Privilege. 
 
 § 6. As a general rule, every witness ought, in the first instance at Friendly. 
 least, to be presumed to be favourably disposed towards the party by 
 whom he is called, and his examination should be conducted on that 
 theory. Sometimes, however, it happens that a party is obliged to call Adverse or 
 a witness who is unfavourable towards him, or that after a witness has 
 been called and partly examined he develops a state of mind unfavour- 
 able to the party calling him : such a witness is called an adverse or 
 hostile witness, and his examination generally becomes more or less a 
 cross-examination ; as to this see Discredit? § 7. A zealous witness is one Zealous. 
 who endeavours to shape his testimony so as to make it as favourable as 
 possible for one of the parties. One of the most dangerous kinds of 
 witness for the party calling him is a witness who " proves too much." 3 
 
 WITNESSING PART, in a deed or other formal instrument, is that 
 part which comes after the recitals, or where there are no recitals, after 
 the parties. It usually commences with a reference to the agreement or 
 intention to be effectuated, then states or refers to the consideration, 
 and concludes with the operative words and parcels, if any (?. v.). Where 
 a deed effectuates two distinct objects there are two witnessing parts. 
 
 The witnessing part is so called because in indentures it commences 
 with the words "This Indenture Witnesseth," meaning that the instru- 
 ment is intended as a record of the transaction. 
 
 WOODS AND FORESTS. See Commissioners of Woods, &c, 
 
 WORDS OF LIMITATION-WORDS OF PROCREA- Words of 
 TION— WORDS OF PURCHASE.-? 1. In a conveyance or will, 
 words which have the effect of marking the duration of an estate are 
 termed words of limitation. (See Limitation, § ..) Thus in a grant 
 to A. and his heirs, the words "and his heirs" are words of limitation 
 because they show that A. is to take an estate in fee simple, and do not 
 give his heirs anything.* In a deed executed after the j.st December, 
 :88i, it is sufficient, in the limitation of an estate in fee simple, to use 
 the words " in fee simple," without the word » heirs.- § z. To create an 
 
 . Best on Evidence, ,88 - «,. \ *g£ g£ J&* £* 
 
 s Afd 826. "^ e Conveyancing Act, 1 88 1 , s. 5 1 . 
 
890 
 
 Workhouse 
 
 LAW DICTIONARY. 
 
 Wreck 
 
 Words of 
 procreation. 
 
 Words of 
 purchase. 
 
 estate tail by deed, it is necessary that words of procreation should be 
 used in order to confine the estate to the descendants of the first grantee, 
 as in the usual form of limitation — " to A. and the heirs of his body." 
 Hence, a limitation to A. and his heirs male would not create an estate 
 tail, for want of words of procreation. In a deed executed after the 
 31st December, 1881, it is sufficient to use the words "in tail " without 
 the words " heirs of the body." 1 
 
 § 3. Words of purchase are words which denote the person who is to 
 take the estate. Thus, if I grant land to A. for twenty-one years, and 
 after the determination of that term to A.'s heirs, the word " heirs " does 
 not denote, the duration of A.'s estate, but the person who is to take the 
 remainder on the expiration of the term, and is therefore called a word 
 of purchase. 2 Hence, "words of purchase" and "words of limitation" 
 are opposed to one another. (See Shelley's Case ; Purchase.) But there 
 are cases in which words operate partly as words of purchase, and partly 
 as words of limitation ; thus, if an estate is limited to the heirs of the 
 body of A., A. being dead, these words are words of purchase to the 
 extent that they give the estate to the person who fills the character of 
 heir of the body of A. (e. g., his eldest son B.) by purchase and not by 
 descent; but as they also have the effect of giving B. an estate tail, they 
 are to this extent words of limitation. 3 
 
 WORKHOUSE is a building for the accommodation of paupers in 
 a parish or union. (See Poor Law; Vestry.) 
 
 WORKING-MEN'S CLUBS are societies established and regis- 
 tered under the Friendly Societies Act, 187s, 4 for purposes of social 
 intercourse, mutual helpfulness, mental and moral improvement and 
 rational recreation. According to the Fourth Report of the Commis- 
 sioners on Friendly Societies, the members of these clubs " meet and read 
 newspapers, and have lectures and tea and coffee, and sometimes beer." 5 
 (See Friendly Societies.) 
 
 WORKMEN. See Common Employment; Master and Servant; 
 Trade Unions ; Truck Act. 
 
 WORKSHOPS. See Factories. 
 
 WOUNDING AND MAIMING, as civil offences, are merely 
 aggravated forms of battery 6 (q. v., and see Mayhem). 
 
 § 2. As to felonious wounding and maiming, see Malicious Injuries to 
 the Person; Mayhem. 
 
 Common law. WRECK. — § 1 . By the common law, if a ship was lost at sea, and the 
 cargo or a portion of it came to land, the goods saved belonged to 
 
 1 Conveyancing Act, 188 1, s. 51. 
 
 2 Wms. Real P. ; Feame, Con. Rem. 
 76 et seq. 
 
 3 Feame, 80 ; Co. Litt. 26 b. 
 
 4 Sect. 8, J 4. 
 
 5 P. cxlvii. 
 
 6 Underbill on Torts, 120. 
 
Wreck Commissioners law dictionary. Writ 89 1 
 
 the crown under the name of wreck. (See Prerogative, §2.) This 
 privilege was frequently granted to lords of manors. (See Franchise, § 2 ; 
 Manor.) 
 
 The strictness of the prerogative right to wreck was relaxed by early 
 charters and statutes, under which the owners of shipwrecked goods were 
 allowed to reclaim them within a year and a day, if they could identify 
 them. 1 
 
 § 2. At the present day, "wreck" includes not only wreck at common Modem law. 
 law, but also jetsam, flotsam, ligan and derelict {q. v.) ; and statutory 
 provision has been made for the appointment of officers called Receivers 
 of Wreck (q. v.), whose duty it is to preserve wreck until it is claimed by 
 the owner, or, if he does not claim it within a year, then to sell it and pay 
 the proceeds into the exchequer. 2 § 3. Provision has also been made for 
 rewarding those persons by whose labour and enterprise shipwrecked 
 property has been saved, and for holding investigations as to wrecks and 
 casualties. (See Wreck Commissioners.) All these matters are under the 
 general superintendence of the Board of Trade. 3 
 
 § 4. The statutes 24 & 25 Vict. cc. 96, 100, provide for the punishment Criminal law. 
 of offences in respect of wrecks. 
 
 WRECK COMMISSIONERS are persons appointed by the Lord 
 Chancellor under the Merchant Shipping Act, 1876 (sect. 29), to hold 
 investigations at the request of the Board of Trade into losses, abandon- 
 ments, damages and casualties of or to ships on or near the coast of the 
 United Kingdom, whereby loss of life is caused. 
 
 WRIT — § 1 A writ is a document in the Queen's name and under 
 the seal of the crown, a court or an officer of the crown, commanding the 
 person to whom it is addressed to do or forbear from doing some act. 
 As to the issue and service of writs, see Issue, §. 11 ; Service, §§ 8 et seq. 
 
 Writs are of two principal kinds— prerogative and of right. 
 
 I 6 z. Prerogative writs are so called because they are issued by Prerogative 
 virtue of the crown's prerogative, and not as part of the public admmis- «"*• 
 tration of justice; writs belonging to the latter class are called writs 
 of right, because the crown is bound by Magna Charta to issue them, 
 while prerogative writs are granted at the discretion of the Court, 
 and only on a prima facie case being shown. The writs of mandamus, 
 procedendo, prohibition, quo warranto, habeas corpus and certiorari 
 are prerogative writs.* (See the titles.) There are also statutory writs of 
 mandamus {q. p.),which are grantable as a matter of right. 
 
 <. *„ -, t?Avt t 3 Maude & Pollock, Merch. Shipp. 104 
 
 c. 4 fV^ 3> -i ; - 'i|w l'. * *«, ; Merch. Shipp. Act, ,854, s, 4 77 
 
 kottgen, 2 C. P. D. 578- Merchant * ^Bl. Coram, iii. 132; Steph. Coram. 
 
 * Steph. Coram. 11. S44. Merchant Churchwardens of All 
 
 Shipping Acts, 1854 and t862. ^9 .^^ j Appi ^ 6n- 
 
Writs of 
 
 right. 
 
 Original 
 
 writs. 
 
 892 Writ of Asststanee law dictionary. Writ of Attachment 
 
 II. Writs of right are of two kinds— original and judicial. 1 
 § 3. An original writ was anciently the mode of commencing every 
 action at common law. It issued out of the common law side of the 
 Chancery, and was under the great seal. To avoid the expense of 
 original writs, other modes of beginning actions were devised with the 
 connivance of the Courts ; but they were all abolished, and the modern 
 writ of summons introduced by the stat. 2 & 3 Will. 4, c. 39. 2 Original 
 writs, however, continued some time longer to be used as modes of 
 appealing from one Court to another (as in the case of writs of error, 
 writs of false judgments, &c.) ; 3 but the only one now existing appears 
 to be the writ of error used in criminal proceedings. (See Writ of Error.} 
 Judicial writs. § 4. A judicial writ seems to be any writ which is issued by a Court 
 under its own seal, as opposed to an original writ. 1 Judicial writs may 
 be divided into — (1) writs originating actions and other proceedings, 
 of which the ordinary writ of summons (q. v.) is the commonest instance ; 
 (2) interlocutory writs, issued during the course of an action before final 
 judgment, such as writs of inquiry, mandamus and recaption, and writs 
 for enforcing obedience to interlocutory orders by attachment, sequestra- 
 Writs of exe- tion, &c. ; (3) writs of execution. § 5. Writs of execution are of two 
 cution. kinds : some are issued in the first instance (e. g., writs of fieri facias, 
 
 elegit, sequestration, delivery, possession, levari facias, &c): while others 
 "Writs in aid. are only issued in aid of other writs, that is, when a writ of execution 
 has been issued without producing the desired effect : such are writs of 
 venditioni exponas, distringas nuper vicecomitem, fi. fa. de bonis eccle- 
 siasticis, sequestrari fa. de bonis eccl., and the writ of assistance. (See 
 the various titles.) 
 
 § 6. In the old books, " writ " is used as equivalent to " action ;'' 
 hence writs are sometimes divided into real, personal and mixed. (See 
 Action, § 22.) 
 
 As to alias and pluries writs, see those titles. See also Return; Teste ; 
 Detainer; Execution, § 3; Mandatory; Testatum. 
 
 " Writ" = 
 " action." 
 
 Alias and 
 pluries. 
 
 "WRIT OF ASSISTANCE.— Where a writ of sequestration (q. v.) 
 has been issued, and the commissioners are unable to obtain possession 
 of the property to be sequestrated, the Court may order a writ of assistance 
 to issue, commanding the sheriff to put them in possession. 5 
 
 "WRIT OF ATTACHMENT is a writ employed to enforce obedience 
 to an order or judgment of the High Court. It commands the sheriff to 
 attach the disobedient party and to have him before the Court to answer 
 his contempt. 6 It is used not only as a writ of execution (e.g., to enforce 
 
 1 Co. Litt. 73 b. 
 
 3 Steph. Comra. iii. 489. 
 
 3 Archbold, Pr. 478. 
 
 4 Coke says that " writs of execution are 
 called judiciall because they are grounded 
 upon the judgement" (Co. Litt. 289 a). No 
 doubt writs of execution are judicial, but 
 not for the reason stated, which appears to 
 be one of the many cases where Coke's 
 
 etymological guesses have misled him. 
 
 5 Daniell, Ch. Pr. -917, 923. The other 
 kind of writ of assistance (Daniell, 923) 
 seems to have been superseded by the 
 writs of possession and delivery under 
 Orders xlviii, xlix. 
 
 6 Smith's Action, 176; Rules of Court, 
 xlii, xliv. ; Forms, App. F. 9. 
 
Writ of Delivery LAW DICTIONARY. Writ of Error 893 
 
 a judgment for the recovery of chattels, or a judgment requiring any 
 person to do or abstain from doing any specific act), but also to enforce 
 obedience to interlocutory orders, injunctions, &c, and the performance 
 of undertakings (q. v.). 
 
 WRIT OF DELIVERY is a writ of execution employed to enforce 
 a judgment for the delivery of chattels. It commands the sheriff to 
 cause the chattels mentioned in the writ to be returned to the person 
 who has obtained the judgment ; and if the chattels cannot be found, to 
 distrain the person against whom the judgment was given until he returns 
 them. 1 
 
 WRIT OF DOWER.— Under the old practice, when a widow had no dower 
 assigned to her within the proper time, she had a. remedy by " writ of dower unde nihil 
 habet." If she had only part of her dower assigned to her, she had a remedy by " writ 
 of right of dower," which was a general remedy also applicable to the case of no dower 
 being assigned. 2 These forms of real action were abolished by the Common Law Proc. 
 Act, i860, and the ordinary form of action substituted. (See Action, \ 22.) 
 
 WRIT OF ENTRY was a real action to recover the possession of land where the 
 tenant (or owner) had been disseised or otherwise wrongfully dispossessed. If the dis- 
 seisor had aliened the land, or if it had descended to his heir, the writ of entry was said 
 to be in the^r, because it alleged that the defendant (the alienee or heir) obtained pos- 
 session through the original disseisor. If two alienations (or descents) had taken place, 
 the writ was in the per and cut, because it alleged that the defendant (the second alienee) 
 obtained possession through the first alienee, to whom the original disseisor had aliened 
 it. If more than two alienations (or descents) had taken place, the writ was in the post, 
 because it simply alleged that the defendant acquired possession after the original dis- 
 seisin. 3 The writ of entry was abolished, with other real actions, by stat. 3 & 4 Will. 4, 
 c. 27, s. 36. 
 
 WRIT OF ERROR, in criminal cases, is an original writ issuing criminal 
 from the Petty Bag Office in Chancery, and directed to an inferior Court practice.. 
 {e.g., the Central Criminal Court or quarter sessions), requiring them to 
 send the record and proceedings on an indictment in which judgment 
 has been pronounced to a superior Court for review. It lies for every 
 substantial defect appearing on the record for which the indictment 
 might have been quashed, or which would have been fatal on demurrer, 
 or in arrest of judgment, provided such defect is not cured by verdict ; 
 thus it lies on an indictment for perjury in which it does not appear that 
 the alleged false oath was taken in a judicial proceeding (see Aid, § 3 5 
 Arrest of fudgment ; Demurrer; Quash). It also lies to reverse an out- 
 
 TT Writ of error appears to be the mode by which appeals from Appeal, 
 certain inferior Courts of record (proceeding according to the course of 
 the common law) are brought to the High Court of Justice.' (See Error; 
 Writ of False fudgment) 
 
 , l. .,u, a «• ,,r. tihIm of Court 4 Archbold, Crim. PI. 196 «*«?., where 
 
 Smith's Action, 175, £ ul ^ /; L £ p' the formalities are detailed; Pritchard's 
 
 sin. 4, da. ; F°rms, App. F„ 8,UJ- *. ™ Bradlaugh v. Reg., 3 Q. B. D. 
 
 Act, 1854, s. 78. y ™, 
 
 3 ct 1X238 b; 8 Bl. Comn, Hi. 180. ^Archbold, Pr. ,418 ; Judicature Act, 
 
894 Writof False Judgment LAW dictionary. Writ of Sequestration 
 
 WRIT OF FALSE JUDGMENT is a writ which appears to be 
 still in use to bring appeals to the High Court from inferior Courts not 
 of record proceeding according to the course of the common law. 1 (See 
 Error.) 
 
 WRIT OF INQUIRY is one of the modes of assessing damages 
 when interlocutory judgment [e. g., by default or on demurrer) has been 
 obtained by the plaintiff in an action for unliquidated damages. It is 
 usually executed by the sheriff or under-sheriff and a jury of twelve, much 
 in the same manner as an ordinary trial. When the damages have been 
 assessed, the writ, return and inquisition are filed and final judgment 
 signed. 3 (See Judgment ', § 5 ; Reference, § 6.) 
 
 WRIT OF POSSESSION is the writ of execution employed to 
 enforce a judgment to recover the possession of land. It commands the 
 sheriff to enter the land and give possession of it to the person entitled 
 under the judgment. 3 (See Habere facias Possessionem ; Writ of Delivery ; 
 Execution.) 
 
 WRIT OF PROTECTION.— The Queen may, by her writ of 
 protection, privilege any person in her service from arrest in civil 
 proceedings during a year and a day ; but this prerogative is seldom, if 
 ever, exercised. 4 
 
 WRIT OF RECAPTION.— If pending an action of replevin for a 
 distress, the defendant distrains again for the same rent or service, the 
 owner of the goods is not driven to another action of replevin, but is 
 allowed a writ of recaption, by which he recovers the goods and damages 
 for the defendant's contempt of the process of the law in making a 
 second distress while the matter is sub judice. 6 (See Replevin.) 
 
 WRIT OF RESTITUTION. See Restitution. 
 
 WRIT OF RIGHT.— I. §. 1. In the general sense of the term, a 
 writ of right is one which is grantable as a matter of right, as opposed to 
 a prerogative writ, which is issued only as a matter of grace or discretion. 
 (See Writ, § 2.) 
 Real pro- II. $ 2. In the old real property law, a writ of right was a real action which lay to 
 
 perty. recover lands in fee simple, unjustly withheld from the owner. It might be brought in 
 
 any case of disseisin, but was in practice only used where the disseisee had lost his right 
 of entry or right to the possession, as in other cases a possessory action (such as a 
 writ of entry) was more convenient. It was called a writ of right, because it was brought 
 to assert the right of property remaining in the owner, which, as already mentioned, was 
 usually a mere right (see Right, § 10). § 3. There were also writs in the nature of writs 
 of right, such as the writ of right of dower. 6 (See Writ of Dower :) 
 
 WRIT OF SEQUESTRATION. See Sequestration, § 2 ; Writ of 
 Assistance. 
 
 1 Archbold, Pr. 1427. * Archbold, Pr. 687; see Co. Lite. 
 
 2 Ibid. 807. 130 a. 
 
 s Smith's Action, 175 ; Rules of Court, » Woodfall, L. & T. 484. 
 
 xlii. 3, xlviii. ; Forms, App. F., 7. ° Bl. Comm. iii. 193. 
 
Writ of Summons LAW dictionary. Writ of Summons 895 
 
 WRIT OF SUMMONS.— I. In ordinary actions in the High High Court. 
 Court, the writ of summons is a writ issued at the instance of the plaintiff 
 for the purpose of giving the defendant notice of the claim made against 
 him and of compelling him to appear and answer it if he does not admit 
 it. It is the first step in the action. (See Action, § 2.) 
 
 § 2. The writ consists of the body, the memoranda and the endorse- 
 ments. 1 The body contains the "title" (that is, the reference to the Body of writ, 
 record, the name of the Court, division and judge if required, and the 
 names of the parties, see Title, § 10), the mandatory part (by which the 
 defendant is ordered to enter an appearance), and the teste (q. v.). The Memoranda. 
 memoranda specify the time within which the writ must be served and 
 the place where the defendant may enter an appearance. The endorse- Endorse- 
 ments are of four kinds. First, the endorsement of claim, being a brief ments - 
 statement of the nature of the plaintiff's claim. 2 When the plaintiff's 
 claim is for a debt or liquidated demand, the endorsement of claim must 
 state the amount thereof and the amount claimed for costs, and state 
 that upon payment of both within a certain time further proceedings will 
 
 be stayed. 3 Secondly, the special endorsement, which may be employed Special en- 
 
 . , , , l-'jiij jt*. dorsement. 
 
 where the plaintiff's claim consists of a debt or liquidated demand. It 
 
 gives the particulars of the amount, 4 and shows how it is arrived at. 
 Thus, in an action for money lent the special endorsement would give 
 the amount of the loan, the arrears of interest and any repayments made 
 on account, and would claim payment of the balance. The principal 
 object of the special endorsement is to enable the plaintiff to obtain 
 "judgment under Order XIV." (see fudgment, § 9). Thirdly, the endorse- 
 ment of address, giving the name and address of the plaintiff and his 
 solicitor, with an address for service if necessary (see Address for Service). 
 Fourthly, the endorsement of service made by the person who serves the 
 
 writ. 
 
 § 3. In addition to these endorsements there are others used in special Miscellaneous 
 cases : such are the endorsement that the plaintiff sues or that the en orsemen s - 
 defendant is sued in a representative capacity 3 {e.g., as executor) ; that 
 the plaintiff claims to have an account taken in the first instance (that is, 
 immediately after appearance), 6 &c, and in probate actions, the endorse- 
 ment of the character in which the plaintiff claims (e. g., as next of kin, 
 creditor, executor, &c.). 7 
 
 § 4. In Admiralty actions in rem the writ of summons is in a special in Admiralty 
 form; it is addressed to the owners of the ship or other property, actions m rem. 
 authorizes the marshal to arrest the ship, and commands the owners to 
 enter an appearance. (See Action, § 12.) 
 
 § 5. A writ of summons is issued at the Central Office of the Supreme 
 Court. (See Issue, §11; Central Office.) As to its service, see Service, 
 
 §8 8 et seq. 
 
 S 6 A writ remains in force for twelve months from its issue, but if Renewal of 
 
 o * wnt . 
 
 1 SmitV* Action AA 5 Rules of Court ' iiL 4' 
 
 J !™es of Court,' ti, iii. «. J '*«■ *»• f ' Smith ' s Action ' ^ 
 
 Ibid. iii. 7. Ibld - '"• S> 
 
 4 /bid. iii. 6. 
 
8 9 6 
 
 Writing 
 
 LAW DICTIONARY. 
 
 Wrong 
 
 Concurrent 
 writs. 
 
 Probate prac- 
 tice. 
 
 service has not been effected within that time it may (if a judge so orders) 
 be renewed for six months, by being sealed by the proper officer. 1 
 
 § 7. If there are several defendants to be served, or the whereabouts 
 of a defendant is doubtful, or some similar reason exists, one or more 
 concurrent writs (that is, writs to the same effect as the original writ and 
 remaining in force for the same time) may be issued, so as to facilitate 
 service. 2 
 
 II. § 8. The Court of Probate had power to cause questions of fact arising in suits 
 or proceedings to be tried by a jury by means of an issue directed to one of the superior 
 Courts of Law : the issues were contained in a document called a writ of summons. 3 
 This practice seems no longer applicable. 4 
 
 'Written," 
 ' verbal." 
 
 "Written," 
 "printed." 
 
 " Written,' 
 " parol." 
 
 WRITING— WRITTEN.— I. § 1. In the most general sense of the 
 word, " writing " denotes a document, whether manuscript or printed, as 
 opposed to mere spoken words. Writing is essential to the validity of 
 certain contracts and other transactions (as to which see Bill of Exchange ; 
 Contract, § 4 ; Copyright, § 8 ; Patent Right; Statute of Frauds ; Tenterden's 
 Act ; Will), while some legal transactions require the additional formality 
 of a deed (q. v.). As to written and spoken defamation, see Libel ; 
 Slander; Sedition. As to written evidence, see Evidence, § 7. 
 
 II. § 2. Writing is sometimes opposed to printing: thus, in the 
 practice of the High Court, pleadings not exceeding ten folios in length 
 may be written or printed, while those exceeding that length must be 
 printed. 5 
 
 III. § 3. In the old books, "writing" sometimes signifies a "writing 
 sealed," that is, a deed, as opposed to "parol" (q. v.). 6 
 
 WRONG is that which takes place when a right is violated or in- 
 fringed. 
 
 Wrongs are generally divided into private and public. A private 
 wrong is one which confers a remedy or right of redress on an individual : 
 such are breaches of contract, torts, &c. A public wrong is one which 
 renders the wrongdoer responsible to the community : such are crimes 7 
 and other offences (q. v.), and generally all infringements of the rules of 
 public law. (See Law, § 6.) 
 
 As to estates or titles by wrong, see Title, § 2. 
 
 1 Rules of Court, viii. 
 
 2 Ibid. vii. 
 
 3 Browne's Probate Pr. 314; Court of 
 Probate Act, 1857, s. 35. 
 
 4 Rules of Court, xxxvi. 29. 
 
 5 Ibid. xix. 5. 
 
 6 Shepp. Touch. 52 ; Co. Litt. 36 a. 
 
 7 Bl. Comm. i. 122. 
 
Yachts law dictionary. Year -Books 897 
 
 Y. 
 
 YACHTS are vessels navigated solely for purposes of pleasure. The 
 provisions of the Merchant Shipping Acts with regard to discipline, 
 supply of medicine, and some other matters, apply to sea-going yachts. 1 
 Yachts not exceeding fifteen tons do not require to be registered, 2 except 
 for the purpose of taking advantage of the privileges granted by the 
 Admiralty to certain yacht clubs. Yachts belonging to the principal 
 yacht clubs are exempted from the obligation of having their names and 
 other particulars painted on them. 3 
 
 YARD. See Curtilage. 
 
 YARD LAND, or virgata term, is a quantity of land, said by some to 
 be twenty acres, but by Coke to be of uncertain extent. (See Ploughland.) 
 
 YEAR.— A year consists of twelve calendar months; that is, 365 days 
 in ordinary years, and 366 days in leap-year. By the stat. 21 Hen. 3 
 (40 Hen. 3 in the Statutes of the Realm) the increasing day in the 
 leap-year, as well as the preceding day, are accounted for one day only. 
 The 1st January is the first day of the year by stat. 24 Geo. 2, c. 23 ; 
 before that enactment the 25th March was the first day of the year. 1 
 
 See Time. As to leases for years, see Lease ; Tenant for Fears ; Term, 
 
 YEAR AND DAY.— § 1. The owners of estrays (q. v.) must claim 
 them within a year and a day, otherwise they belong to the crown or a 
 grantee from the crown. As to wreck see that title ; see also Continual 
 
 Claim. 
 
 § 2. In order to make killing murder, it is requisite that the party die 
 within a year and a day after the stroke received, or cause of death 
 administered ; in the computation- of which the whole day upon which 
 the hurt was done shall be reckoned the first. 5 
 
 YEAR-BOOKS are the reports of cases in the superior Courts of 
 common law from the reign of Edward II. to that of Henry VIII. They 
 were taken by the prothonotaries or chief scribes of the Court at the 
 expense of the crown, and published annually, whence their name. 
 (See Report, § 5.) 
 
 1 Merchant Shipp. Act, 1854, »■ '«>; ¥' SWpp- Act 1872 ; Maude & Pollock, 
 
 Act of i86 2 , I3 PMaude ft Pollock ( 4 th u. f o no e ,4 ^ .. 
 
 ^•Me^rSp. Act, ,854. - * , \ g^-V W . 
 
 3 Regulations of Board of Trade under Itnd. 1. 7*- 
 
 ' 3 M 
 
898 Year, Day, &c. LAW DICTIONARY. Zealous Witness 
 
 YEAR, DAY AND WASTE, in the law of forfeiture (q. v., § 7), 
 is the right which the crown had to hold the lands of felons for a year 
 and a day, and to pull down the houses, cut down the woods and commit 
 other waste thereon. 1 This right was restricted by stat. 54 Geo. 3, c. 145, 
 and ceased to exist (except on attainder for treason), when forfeiture was 
 abolished. 
 
 YEAR TO YEAR. See Tenant from Year to Year. 
 
 YEOMAN.— "A yeoman is he that hath free land of forty shillings 
 by the year : who was anciently thereby qualified to serve on juries, vote 
 for knights of the shire, and do any other act where the law requires one 
 that is probus et legalis komo.'' Yeomen rank next after gentlemen in 
 order of precedence. 2 
 
 YIELD, in the law of real property, is to perform a service due by a 
 tenant to his lord. 3 Hence the usual form of reservation of a rent in a 
 lease begins with the words "yielding and paying." (See Render.) 
 
 YORKSHIRE LAND REGISTRIES are regulated by stats. 2 & 3 
 Anne, c. 4; 5 Anne, c. 18 (6 Anne, c. 20, in the Statutes of the Realm\ 
 as to the West Riding; 6 Anne, c. 35 (or 6z), as to the East Riding, 
 and 8 Geo. 2, c. 6. (See Land Registries, § 6 ; Memorial, § 1.) 
 
 Z. 
 ZEALOUS WITNESS. See Witness, § 7. 
 
 1 Bl. Comm. iv. 385. 3 gee Mortmain, note on the etymology 
 
 2 Ibid. i. 406. of the word. 
 
ADDENDA. 
 
 ABANDONMENT. See Easement, § 12. 
 
 ACCOUNT (to § s after note (7)). — There are, however, instances in 
 which an agent is entitled to an account from his principal ; such is the 
 case of the steward or bailiff of an estate, because "the nature of his 
 dealing is, that money is paid in confidence, without vouchers, embracing 
 a great variety of accounts with the tenants ; and nine times in ten it is 
 impossible that justice can be done to the steward." 1 (See also Joint 
 Account in these addenda.) 
 
 § iza. By the Customs and Inland Revenue Act, 1880, when an executor 
 or administrator applies for a grant of probate or letters of administration, 
 he must deliver an account of the particulars of the personal estate of the 
 deceased, and of the estimated value of such particulars. § 12B. By the 
 Customs and Inland Revenue Act, 1881, this account must be verified by 
 affidavit. A further account (similarly verified) must be delivered if any 
 understatement is discovered in the original account. 
 
 § 12c. By the same act, accounts of the following kinds of property 
 must be delivered by the person who acquires possession thereof, whether 
 as trustee or beneficiary :— (a) Property taken as a donatio mortis causa, 
 or under a voluntary gift inter vivos, not made bona fide three months 
 before the death of the donor ; (b) Property which the deceased has 
 voluntarily vested in himself and another person jointly, so that on his 
 death the latter takes it by survivorship ; (c) Property passing under a 
 voluntary settlement, whereby the settlor reserves to himself a life interest 
 or a right of revoking the settlement. (See Prolate, % SB, in these addenda.) 
 
 ACKNOWLEDGMENT. See Title Deeds, § 2. 
 
 AD QUOD DAMNUM.— § 3. The writ of ad quod damnum was 
 also anciently employed on applications by persons for liberty to make a 
 park or amortise their lands, that is, convey them in mortmain. The 
 writ directed the king's escheator to inquire whether it would be to the 
 damage of the king or of others, should he grant a licence to make the 
 park or alien the lands in mortmain. 2 The stat. 3+ Edw. 1 made the 
 assent of the mesne lords (if any) necessary to the grant of a licence in 
 mortmain. 3 (See Mortmain for the further history of this subject.) 
 
 1 Per Lord Eldon, Dinwiddie v. Bailey, tatibus perquirendis) j Reeves, Hist. ii. 
 
 6 Ves. p. 141. 2 3?- 
 
 » Stat. 27 Edw. I (Ordinatio de liber- ■ 3 Reeves, 11. 231. 
 
 3 M 2 
 
goo 
 
 Administration addenda. Advance-Note 
 
 ADMINISTRATION (to § 2).— A judgment has no priority against 
 an executor, administrator or heir unless it is registered under stat. 23 & 
 24 Vict. c. 38, and therefore an executor who pays contract debts in 
 priority to an unregistered judgment incurs no liability to the judgment 
 creditor. 1 The effect of the act seems to be to put unregistered judg- 
 ment debts on a level with contract debts/ although it is obvious 
 that the act was only intended for the protection of executors paying 
 contract debts without notice of judgment debts f and that where an 
 executor has notice of a judgment there is on principle no reason why 
 it should not be paid in priority to the other debts, although it is un- 
 registered. 
 
 Judgments obtained against the personal representatives of a deceased 
 debtor do not require registration, 4 and are paid according to their 
 priority in point of time, while judgments obtained against the deceased 
 rank pari passu. 5 
 
 Add to note (3), p. 27, a reference to Smith v. Morgan, 5 C. P. D. 337, 
 deciding that section 10 of the Judicature Act, 1875, does not affect the 
 priority of judgment creditors. 
 
 ' Since that note passed through the press, it has been decided by the 
 Court of Appeal in re Withernsea Brickworks Company (16 Ch. D. 337) that 
 the 10th section of the Judicature Acts does not assimilate the rules of 
 administration in Chancery proceedings to those in bankruptcy, over- 
 ruling In re Printing, &c. Company (8 Ch. D. 535), and thus confirming 
 the construction of the section contended for in the above note. The 
 inconsistent decision of V.-C. Malins in re Association of Land Financiers 
 (16 Ch. D. 373) appears to have been given without the attention of the 
 Court being drawn to In re Withernsea Brickworks Company. 
 
 See also In re Bridges, 17 Ch. D. 342. 
 
 AD VANCE -NOTE. —Formerly it was the practice for the owner or 
 master of a ship to give each searrfan whom he had hired for an intended 
 voyage an advance-note, by which he agreed that, in the event of the 
 seaman sailing in the ship, he would repay a certain sum to any person 
 who should advance it to the seaman; the sum was of course afterwards 
 deducted from the wages earned by the seaman on the voyage. It was 
 supposed that this practice was a commendable one, as it enabled the 
 seaman to procure clothing and other necessaries for the voyage ; 6 but 
 the practical result in the majority of cases was that sailors either con- 
 verted their notes into cash at an exorbitant discount and spent it in 
 riotous living, or were compelled to purchase inferior articles at high 
 prices. The legislature has now adopted this view, and has made the 
 practice illegal. 7 (See Allotment, § 4 ; and Addenda, title Allotment!) 
 
 1 Kemp v. Waddingham, L. R., I Q. B. Smith v. Morgan, 5 C. P. D. 337. 
 
 355 ; Shelford, R. P. Stats. 620. 6 Jennings v. Rigby, supra. 
 
 '' Watson, Comp. Eq. 36. 6 M'Kune v. Joynson, 5 C. B., N. S. 
 
 3 See Jennings v. Rigby, 33 Beav. 198. 218. 
 
 * Re Williams, L. R., 15 Eq. 270; ' Merchant Seamen Act, 1 880. 
 
Affidavit ADDENDA. Attornment 901 
 
 AFFIDAVIT. — § 4A. As to affidavits of increase in the Chancery 
 Division, see Smith v. Day, 16 Ch. D. 726. 
 
 ALL THE ESTATE. — An attempt to abolish the "all the estate 
 clause" has been made by the Conveyancing Act, 1881, which enacts 
 (section 63) that every conveyance and other assurance shall be effectual 
 to pass all the estate, &c, which the conveying parties respectively have 
 in the property conveyed, subject to the terms and provisions contained 
 in the deed. 
 
 ALLOTMENT {add to § 4).— Allotment notes may now be made in 
 favour of savings-banks. 1 
 
 ALTERATION.— § 2 a. See Suffell v. Bank of England, 7 Q. B. D. 
 270. 
 
 ANNUL.— § ia. See Markwick v. Hardingham, 15 Ch. D. 339. 
 
 ANTICIPATION.— § ia. After the 31st December, 1881, the High 
 Court will have power to bind the interest of a married woman in any 
 property, with her consent, notwithstanding that she is restrained from 
 anticipation. 3 
 
 APPEAL.— § 4A. See Judicature Act, 1881, s. 9, limiting time for 
 appeal to the House of Lords from the Court of Appeal. 
 
 APPORTIONMENT.— § 2A. The Conveyancing Act, 1881 (sects. 
 10—12), enacts that rent reserved by a lease, and the benefit and' burden 
 of every covenant contained in a lease, having reference to the subject- 
 matter thereof, and every condition of re-entry, and every other con- 
 dition contained in the lease, shall be annexed and incident to the imme- 
 diate reversion in the land,' notwithstanding any severance of that 
 reversion. 
 
 ASSESSORS.-§ 4A. See The Aid, 6 P. D. 84. § 5- As to assessors 
 of taxes, see the Taxes Management Act, 1880, s. 42. 
 
 ATTACHMENT.— Add to § 5 a reference to In re Cowan's Estate, 
 14. Ch. D. 638, and Chatterlon v. Watney, 17 Ch. D. 259. 
 
 ATTEST.— § 1 a. The Conveyancing Act, 1881 (sect. 8), entitles a 
 purchaser of land to have the execution of the conveyance attested by 
 a person appointed by him. 
 
 ATTORNMENT.— § 4A. It seems that the ordinary attornment 
 clause in a mortgage has the effect of making the mortgagee a mort- 
 gagee in possession from the date of the deed. 3 
 
 x Merchant Seamen Act, 1880, s.3. - 3 Stockton Iron Furnace Co., 10 Ch. D. 
 
 2 Conveyancing Act, 1881, s. 39. 335- 
 
902 Average addenda. Collision 
 
 AVERAGE.— § 3A. See Wright v. Marwood, 7 Q. B. D. 6z. 
 
 BACKING A WARRANT.— See the Summary Jurisdiction (Pro- 
 cess) Act, 1 88 1. 
 
 The Fugitive Offenders Act, 1881, contains provisions as to the backing 
 in one British colony of a warrant issued in another colony. 
 
 BARTER. See Exchange, § 5. 
 
 BILL OF LADING. See Glyn Mills, Currie & Co. v. E. &■ W. 
 I.D. Co., 6 Q. B. D.475. 
 
 BILL OF SALE. See Lyons v. Tucker, 6 Q. B. D. 660. 
 
 CAUSA CAUSANS— CAUSA SINE QUA NON.— When a result 
 is produced by two causes, one of which is the proximate cause, and 
 the other is a concurrent cause, without which the result would not have 
 been produced, the former is called the causa causans, the latter, the 
 causa sine qud non. Thus, where a steamer became a wreck by reason of 
 the explosion of her boiler, which was too thin to resist the pressure 
 of steam, it was held, in an action against the insurers of the vessel, that 
 the explosion was the proximate cause, and the thinness of the boiler the 
 causa sine qua non, and that the explosion, being a peril insured against, 
 the insurers were liable, although the vessel was unseaworthy in respect 
 of her boiler. 1 
 
 CENTRAL CRIMINAL COURT. See C. C. C. Act, 1881. 
 
 CHARITY.— § 3 A. See Royal Society of London and Thompson, 17 
 Ch. D.407. 
 
 CLERGYABLE.— A crime was said to be clergyable when the 
 " benefit of clergy " {q. v.) could be claimed in respect of it. 
 
 COLLATERAL. — Where A. mortgaged to B. freehold land, and 
 also on the same day, and as part of the same transaction, mortgaged to 
 B. leaseholds as "collateral security" for the same advance, it was held 
 that the leasehold security was not "collateral" in the sense of secondary, 
 and that accordingly the debt was payable rateably out of the two 
 securities, and not primarily out of the freeholds. 2 
 
 COLLISION. — As to the duty of the masters of two ships under 
 danger of collision, see Stoomvart Maatschappy Nederland v. P. & 0. 
 Steam Navigation Co., 5 App. Ca. 876. 
 
 See Rule of the Road. 
 
 1 West India, &*c. Co. v. Home &• Campbell on Negligence, 66. 
 Colonial, &>c. Co., 6 Q. B. D. 51. See a Athill v ■. Athill, 16 Ch. D. 211. 
 
Common ADDENDA. Court for Crown Cases 903 
 
 COMMON.— § ia. See Earl de la Warr v. Miles, 17 Ch. D. 535. 
 
 COMMON PLEAS.— The Common Pleas Division has now been 
 consolidated with the Queen's Bench and Exchequer Divisions. (See 
 High Court 0/ Justice, and Queen's Bench Division.) 
 
 CONDITION.— § ioa. See Mackay v. Dick, 6 App. Ca. 251. 
 
 CONSOLIDATION OF SECURITIES.— The Conveyancing Act, 
 1881, abolishes the right of consolidation in many cases, by enacting 
 (sect. 17) that a mortgagor entitled to redeem any one mortgage shall be 
 entitled to do so without paying any money due under any separate 
 mortgage made by him, or by any person through whom he claims, 
 on property other than that comprised in the mortgage which he seeks to 
 redeem. This provision only applies where the mortgages, or one of 
 them, are or is made after the 31st December, 1881, and then only if 
 a contrary intention is not expressed in the mortgage deeds or one of 
 them. "Mortgagor" includes any person deriving title under the 
 original mortgagor, or entitled to redeem the mortgage. 1 
 
 CONTRACT OF SALE.— § 1. The Conveyancing Act, 1881, 
 supplementing the provisions of the Vendor and Purchaser Act, 1874, 
 makes certain conditions incident to contracts for the sale of freehold 
 and leasehold interests in land, unless the parties otherwise agree. 3 
 These conditions consist mainly of provisions which are inserted as a 
 matter of course for the protection of the vendor in an ordinary contract 
 of sale, and make it safer to enter into an "open contract" than was 
 formerly the case. (See Contract, §14; Title, § 4.) 
 
 § 2. The act also provides for the completion of a contract of sale by 
 the personal representatives of the deceased vendor. (See Descent, § 8b, 
 in these addenda.) 
 
 CONVEY is the new operative word for the conveyance of corporeal 
 or incorporeal tenements or hereditaments, used in the statutory forms 
 of conveyance, mortgage and settlement contained in the schedules to 
 the Conveyancing Act, 1881. (See Covenant; Grant, in these addenda.) 
 
 CONVEYANCE.— § 8. The Conveyancing Act, 1881, gives forms 
 of statutory conveyances, embodying the alterations made by the act, as 
 to which see in these addenda, All the Estate; Convey; Covenant; 
 General Words; Grant. 
 
 COUNTER-CLAIM. See Beddall v. Maitland, 17 Ch. D. 174. 
 
 COURT FOR CROWN CASES RESERVED. See Judicature 
 Act, 1881, s. 15. 
 
 j Sect _ 2 , § 6. 3 Conveyancing Act, 1881, s. 3. 
 
904 Court of Appeal addenda. Discharge 
 
 COURT OF APPEAL. See Judicature Act, 1881, and Master of the 
 Rolls, infra. 
 
 COVENANT,— § 7 a. The Conveyancing Act, 1881, contains pro- 
 visions designed to abbreviate the forms of covenant in ordinary use, by 
 enacting that a covenant by A. shall bind A.'s heirs and real estate ; that 
 a covenant with A. relating to land of inheritance shall have effect as if 
 it were made with A., his heirs and assigns; &c. § 10. By the same 
 act, the insertion of the usual covenants for title in a conveyance for 
 valuable consideration (whether by a beneficial owner or by a trustee, 
 mortgagee, or representative) is in many cases made unnecessary, as the 
 act provides that where the grantor is in the deed expressed to convey 
 in a certain capacity (namely as "beneficial owner," "trustee," "mort- 
 gagee," &c), then the deed shall be deemed to include the covenants 
 for title, appropriate to that capacity. (See Covenant, §§ 8, 9.) The 
 capacity in which the grantor conveys is expressed in the operative 
 words ("A. B. as beneficial owner hereby grants (or ' conveys') to C. D.," 
 &c). The appropriate covenants for title are also implied in a mortgage, 
 where* the mortgagor is expressed to convey as " beneficial owner," and 
 in a settlement, where the grantor is expressed to convey as " settlor." 1 
 
 As to the provisions of the act relating to the production of title-deeds, 
 see Title Deeds, § 2 ; see also Apportionment ; Convey, in these addenda. 
 
 DAY.— § 3A. See Clarke v. Bradlangh, 7 Q. B. D. 751. 
 
 DEBENTURE. See British India, &c. Co. v. Comm. Inland Revenue, 
 7Q.B.D. 165. 
 
 DE CONTUMACE CAPIENDO. See Dale's Case, 6 Q. B. D. 376. 
 
 DEDICATION.— § ia. See Vernon v. St. fames, 16 Ch. D. 449. 
 
 DESCENT.— § 8a. By the Conveyancing Act, 1881, s. 30, these 
 provisions are repealed as to persons dying after the 31st December, 
 188 1, and a different provision is made, as to which, see Trustee (§ 3). 
 § 8b. By s. 4 of the same act, where a person dies after the 31st December, 
 1 88 1, leaving an uncompleted contract for the sale of land enforceable 
 against his heir or devisee, his personal representatives have power to 
 convey the land so as to give effect to the contract. 
 
 DISCHARGE. — § 3A. As to the discharge of encumbrances by 
 payment of the amount secured into Court, see Payment into Court in 
 these addenda. As to the discharge of quit-rents, &c, see Rent, § 8b, in 
 these addenda. 
 
 1 Conveyancing Act, 1881, s. 7, and forms in schedule. 
 
Disclaimer ADDENDA. Foreign Attachment 905 
 
 DISCLAIMER. — § ia. As to the disclaimer of a tenancy, see Vivian 
 v. Moat, 16 Ch. D. 730. 
 
 § 3A. See Smalleyv. Hardinge, 6 Q. B. D. 371. 
 
 DISSOLUTION,— § 2A. See Lyon v. Tweddell, 17 Ch. D. 529. 
 
 DISTRICT REGISTRIES. See Judicature Act, 1881', s. 22. 
 
 ELECTION PETITIONS. See Judicature Act, 1881, ss. 13, 14. 
 
 ENGAGEMENT.— § 3. See Robinson v •. Pickering, 16 Ch. D. 660; 
 Pike v. Fitzgibbon, 17 Ch. D. 454. 
 
 ESTOPPEL.— § 6. See McKenzie v. British Linen Co., 6 App. Ca. 82. 
 
 EVICT is used in the old books where a person in possession of 
 land under a title derived from A. is turned out of possession by B., who 
 has a title paramount. 1 (See Exchange, § 2 ; Warranty, §§ 6 et seq.) 
 
 EVIDENCE {add to § 11). — In some cases evidence given in a 
 proceeding by a person who is a party to it, is not sufficient unless 
 corroborated by the evidence of some other person ; e. g., in affiliation pro- 
 ceedings, in actions for breach of promise of marriage, 3 and in orders of 
 removal under stat. 39 & 40 Vict. c. 61, s. 34.' (See also Treason.) 
 
 EX POSTFACTO literally means "from that which happened 
 subsequently."* Thus, a transaction which was originally binding and 
 effective may become void ex postfacto, that is, by matter subsequent : 
 see Fraud, § 5 ; Void, § 3. The term is also applied in a general sense 
 to denote anything which has a retrospective operation ; thus, a statute 
 applying to acts and events which took place before it was enacted is 
 sometimes called ex postfacto legislation. 
 
 EXECUTOR. — § 1 1 a. The Conveyancing Act, 1881, repeals 
 gs< u — 30 of the stat. 23 & 24 Vict. c. 145, and re-enacts them with 
 extended provisions. (In § 11, for "23 & 24 Vict. c. 145, s. 27," 
 read "23 & 24 Vict. c. 145, s. 30.") 
 
 FISHERY. — § 4A. See Corporation of Saltash v. Goodman, 7 Q. B. D. 
 106. 
 
 FOREIGN ATTACHMENT. See Mayor of London v. London 
 foint Stock Bank, 6 App. Ca. 393. 
 
 1 Co. Litt. 173 b. teriti delicti sestimatio." Digest, L. xvii. 
 
 2 Best on Evidence, 773. &• I3 8 > § '• The ordinary way of spelling 
 
 3 Reg. v. Abergavenny, 6 Q. B. D. 31. the phrase in three words— ex post facto— 
 * "Nunquam crescit ex postfacto pre- is, of course, incorrect. 
 
906 Forfeiture addenda. Heir 
 
 FORFEITURE. — § 3A. These provisions have been repealed by the 
 Conveyancing Act, 1881, which enacts (s. 14), that a forfeiture for a 
 breach of any covenant or condition in a lease shall not be enforceable, 
 by action or otherwise, unless and until the lessor serves on the lessee a 
 notice specifying the breach complained of and requiring him to remedy 
 or make compensation for the same, and the lessee fails to comply with the 
 notice within a reasonable time. Where a lessor proceeds to enforce a 
 forfeiture the lessee may apply to the Court for relief, and the Court may 
 grant or refuse relief as it thinks fit. This provision does not affect the 
 law relating to forfeiture for non-payment-of rent (see. Forfeiture, § 3), and 
 it does not extend to certain covenants and conditions (e.g., those against 
 assigning, underletting, &c, or providing for forfeiture on the lessee's 
 bankruptcy and the like), but, with these exceptions, it applies, notwith- 
 standing any stipulation by the parties to the contrary. 
 
 FRAUD. — § 17A. An agreement in fraud of third persons, or one 
 which is a fraud on a statute, or on the public, is void ab initio, and not 
 merely voidable. 1 (See Void ; Voidable.') 
 
 FUGITIVE'S GOODS.— Under the old law, where a man fled for 
 felony and escaped, his own goods were not forfeited as bona fugitivorum 
 until it was found by proceedings of record (e.g., before the coroner, in 
 case of death) that he fled for the felony. 3 (See Waif.) 
 
 FUGITIVE OFFENDERS.— A fugitive offender is a person who, 
 being accused of committing a crime in one part of her Majesty's 
 dominions, has left that part and gone to another. The Fugitive 
 Offenders Act, 1881, contains provisions for the apprehension and return 
 of such persons. (See above, Backing a Warrant.) 
 
 GENERAL WORDS.— By the Conveyancing Act, 1881 (s. 6), it is 
 unnecessary to insert, in any conveyance of lands, buildings, or manors 
 executed after the 31st December, 1881, the "general words" usually 
 contained in such conveyances, as the act declares that they shall be 
 deemed to be included in the conveyance. 
 
 GRANT.— § 2A. The Conveyancing Act, 1881 (s. 49), declares that the 
 use of the word "grant" is not necessary in order to convey tenements or 
 hereditaments, corporeal or incorporeal, in conveyances made before or 
 after the commencement of the act. As mentioned in § 2 of the title 
 Grant, the word was not necessary even before this enactment. The 
 operative word used in the statutory forms given in the act is " convey" 
 (see Convey ; Covenant, in these addenda). 
 
 HEIR. — § 9A. The word " heirs" is not now necessary for the limita- 
 tion of an estate in fee simple, nor " heirs of the body" for that of an 
 estate tail. (See Words of Limitation^) 
 
 1 Leake on Contracts, 766. 2 Foxley's Case, 5 Rep. 109 a. 
 
High Court of Justice ADDENDA. Jurisprudence 
 
 HIGH COURT OF JUSTICE. See Judicature Act, 1881. 
 HUNDRED.— § 2A. See Drake v. Footill, 7 Q. B. D. 201. 
 IN REM.— § 5A. See The City of Mecca, 6 P. D. 106. 
 
 INFANT. — § ia. By the Conveyancing Act, 1881, s. 41, where an 
 infant is entitled to land in his own right in fee simple or for any lease- 
 hold interest at a rent, the land is to be deemed to be a settled estate 
 within the Settled Estates Act, 1877. (See Settled Estates) § ib. By 
 sect. 42 of the same act, where land is held in trust for an infant under an 
 instrument coming into operation after the 31st December, 1881, the 
 trustees may enter into possession of it, cut timber, erect, pull down, 
 rebuild and repair houses, continue the working of mines and quarries, 
 and generally deal with the land in a proper course of management, apply 
 the income, or part of it, for the infant's maintenance and invest the 
 surplus for his benefit. 
 
 See Maintenance in these addenda. 
 
 INHABITED HOUSE DUTY. See Chapman v. Royal Bank of 
 Scotland, 7 Q. B. D. 136, and title Lodger. 
 
 INTEREST.— §§ 14A, rSA. See In re Emmet's Estate, 17 Ch. D. 142 ; 
 Ex parte Furber, ibid. 191. 
 
 JOINT. — § ia. As to a conveyance by a man to himself and another 
 jointly, see Use, § 1 5A, in these addenda. 
 
 JOINT ACCOUNT. — The rule that where two or more persons 
 advance money and take the security to themselves jointly, each is in 
 equity deemed to be separately entitled to his proportion of the money, 
 so that on his death it passes to his personal representatives and not to his 
 surviving co-lenders, made it usual, in cases where money was advanced 
 by trustees, to insert in the mortgage deed or other instrument of security 
 a declaration that the money belonged to the lenders on a joint account 
 in equity as well as at law, and that the receipt of the survivors or sur- 
 vivor, or his personal representatives, should be a full discharge for any 
 moneys due on the security. By the Conveyancing Act, 1881 (s. 61), 
 it is now sufficient to say that the money is advanced by the lenders out 
 of money belonging to them on a joint account, without more, while in 
 cases where the security is made to two or more persons jointly and not 
 in shares, it is (it seems) unnecessary to say even that. The section is, 
 however, somewhat involved and consequently obscure. 
 
 JURISPRUDENCE. — I. § 1. In the proper sense of the word 
 jurisprudence is the science of law, namely, that science which has for 
 its function to ascertain the principles on which legal rules are based,, so 
 as not only to classify those rules in their proper order and show the 
 
 907 
 
go8 Jurisprudence addenda. Legacy Duty 
 
 relation in which they stand to one another, but also to settle the manner in 
 which new or doubtful cases should be brought under the appropriate rules. 
 Jurisprudence is more a formal than a material science ; it has no direct 
 concern with questions of moral or political policy, for they fall under 
 the province of ethics and legislation, but when a new or doubtful case 
 arises to which two different rules seem, when taken literally, to be equally 
 applicable, it may be, and often is, the function of jurisprudence to con- 
 sider the ultimate effect which would be produced if each rule were applied 
 to an indefinite number of similar cases, and to choose that rule which, 
 when so applied, will produce the greatest advantage to the community. 
 
 § 2. Jurisprudence is mainly based on comparative' law, that is, on the 
 comparative study of the legal institutions of various countries, because 
 such a study makes it more easy to separate the essential elements of the 
 science from its historical accidents. 1 
 
 II. § 3. "Jurisprudence" is also used, incorrectly, as synonymous with 
 " law." " The imposing quadrisyllable is constantly introduced into a 
 phrase, solely on grounds of euphony. Thus we have books upon 'Equity 
 Jurisprudence' which are nothing more nor less than treatises upon the 
 law administered by Courts of Equity; and we hear of the Jurisprudence 
 of France or Russia, when nothing else is meant than the law which is in 
 force in those countries respectively." 3 
 
 LEGACY DUTY.— The rates of legacy duty are as follows:— Where 
 the legacy or residue, or share of residue, is given to or devolves on a 
 child of the deceased, or any descendant of a child of the deceased, or 
 the father or mother or any lineal ancestor of the deceased, the duty is 
 one per cent.; if a brother or sister of the deceased, or a descendant of a 
 brother or sister, three per cent.; if a brother or sister of the father or 
 mother of the deceased, or a descendant of such brother or sister, five 
 per cent. ; if a brother or sister of the grandfather or grandmother, or 
 a descendant of such brother or sister, six per cent.; in any other case 
 the duty is ten per cent. 3 
 
 Legacy duty is not payable (i) on any legacy or share of residue coming 
 to the husband or wife of the deceased ; 4 (ii) on legacies of books, 
 pictures, &c, given to scientific bodies and schools, &c. ; 5 (iii) where the 
 whole personal estate of a person dying after the 24th March, 1880, does 
 not amount to the sum of 100/. ; 6 (iv) where probate duty has been paid 
 on the estate, not exceeding 300/., of a person dying on or after the 
 1 st June, 1 88 1, under the Customs and Inland Revenue Act, 1881 ; 7 
 (v) on any legacy or share of residue coming to a child or other descendant 
 of the deceased where probate duty has been paid under the Customs and 
 Inland Revenue Act, 1881. 8 
 
 See Probate Duty in these addenda. 
 
 1 See Holland's Jurisp. 7 ; Austin's 3 Stat. 55 Geo. 3, t . 184, Schedule. 
 
 Jurisp. ; Markby's Elements of Law, * Ibid, 
 
 passim. s Stat. 39 Geo. 3, c. 73, s. 1. 
 
 - Holland, 4, where Austin's division of 6 Stat. 43 Vict. c. 14, s. 13. 
 
 jurisprudence into "general" and "par- ' Sect. 36. 
 
 ticular" is shown to be untenable. s Sect. 41. 
 
9og 
 
 ■LMeZ addenda. Mortgage 
 
 LIBEL. — § 3A. See Newspapers in these addenda. 
 
 MAINTENANCE.— § 3 a. Sect. 26 of stat. 23 & 24 Vict. c. 145, is 
 now repealed by the Conveyancing Act, 1881, which gives trustees a power 
 of applying the income of property held in trust for an infant towards his 
 maintenance, education or benefit, whether it belongs to him absolutely 
 or contingently on his attaining the age of twenty-one, or on the occur- 
 rence of any event before his attaining that age. (Sect. 43.) 
 
 MASTER OF THE ROLLS.— The Judicature Act, 1881, enacts 
 that from the 27th August, 1881, the Master of the Rolls shall cease to be 
 a judge of the High Court of Justice, but shall continue by virtue of his 
 office to be a judge of the Court of Appeal. Every Master of the Rolls 
 appointed after the passing of the act is to be under an obligation to go 
 circuits. The act authorizes the appointment of a puisne judge of the 
 High Court in place of the Master of the Rolls. 
 
 MIDDLESEX.— § 1. The Middlesex Land Registry is a registry of Land Regis- 
 assurances relating to land situate in the county of Middlesex. (See Land try- 
 Registries, §§ 3, 6.) It is regulated by stat. 7 Anne, c. 20, which makes 
 every such deed fraudulent and void against any subsequent purchaser or 
 mortgagee for valuable consideration, unless it has been registered before 
 the purchaser's or mortgagee's deed. 1 A will of lands in the county also 
 requires registration within six months of the testator's death, or before 
 the registration of an assurance to a purchaser or mortgagee from the 
 testator's heir-at-law. 3 
 
 § 2. The sessions of the peace for the county of Middlesex are held Sessions, 
 twice in every month, the first sessions in January, April, July and October 
 being the general quarter sessions. At the hearing of appeals and trials 
 of felonies or misdemeanors, the sessions are presided over by an Assistant 
 Judge appointed by the crown. 3 (See Justices of the Peace; Session of the 
 Peace.) 
 
 MORTGAGE.— § 8a. The Conveyancing Act, 1881, repeals those 
 sections of the Trustees and Mortgagees Clauses Act, i860, which give 
 mortgagees powers of sale, &c, and re-enacts them in an extended form. 
 The provisions of the act only apply to mortgages which are made by 
 deed executed after the 31st December, 1881, and only so far as no 
 contrary intention is expressed in the deed. They confer on the original 
 mortgagee and any person deriving title under him (i) a power to sell the 
 mortgaged property, as soon as the money has become due ; (ii) a power 
 to insure the property against fire, and to add the premiums to the mort- 
 gage debt, unless an insurance is kept up by the mortgagor ; (iii) a 
 power to appoint a receiver as soon as the money has become due (see 
 Receiver, § 5).* The power to sell or appoint a receiver is not exerciseable 
 
 1 Williams, R. P. 196. 3 Stats. 7 & 8 Vict. c. 71 ; 22 & 23 Vict. 
 
 2 Ibid. 223 ; Vendor & Purchaser Act, c. 4 ; Steph. Comra, iv. 320. 
 1874, s. 8. 4 Sect. 19. 
 
gio Mortgagee and Mortgagor addenda. Newspapers 
 
 unless the mortgagor has failed for three months to comply with a notice 
 requiring him to pay off the mortgage debt, or unless interest is in arrear 
 for two months, or there has been a breach of covenant, &c. ; but these 
 restrictions do not affect the title of a purchaser buying under the power 
 of sale. 1 As to the other powers of a mortgagee, see Mortgagee in Posses- 
 sion ; Payment into Court, in these addenda. See also Redeem, ibid. 
 
 § '8b. The same act gives to the Court very wide powers of directing 
 the sale of mortgaged property in any action brought respecting a mort- 
 gage, whether for redemption, foreclosure or otherwise. 2 
 
 § 1 8. A statutory mortgage of freehold or leasehold land, operating by 
 conveyance, may be made under the Conveyancing Act, 1881, s. 26. 
 The act also provides for the transfer and re-conveyance of a statutory 
 mortgage (sects. 27 — 29). 
 
 MORTGAGEE AND MORTGAGOR IN POSSESSION.— 
 
 § 3. By the Conveyancing Act, 1881, a mortgagor or mortgagee of land, 
 while in possession, has a power of making binding leases of the mort- 
 gaged land, subject to certain limitations and restrictions as to the 
 length of the term, the rent, &c. 3 
 
 § 4. By the same act, a mortgagee in possession of land has power to 
 cut and sell timber and other trees ripe for cutting, not being used for 
 shelter or ornament. 4 
 
 § 5. These provisions only apply to mortgages made after the 31st 
 December, 1881, and only so far as a contrary intention is not expressed 
 by the parties. 
 
 MUTINY ACT. — The Army Discipline and Regulation Act, 1879, has 
 been supplemented and amended by various acts, especially the Regula- 
 lation of the Forces Act, 1881, and has now been repealed by the Army 
 Act, 1 88 1, which consolidates its provisions with those of the amending 
 acts. 
 
 NEWSPAPERS.— § 1. The Newspaper Libel and Registration Act, 
 1 88 1, provides for the establishment of a register of proprietors of news- 
 papers, and for annual returns being made by the printers and pro- 
 prietors of every newspaper, giving particulars of its title and its proprietors. 
 The returns are entered in the register, which is open to public inspec- 
 tion. 
 
 § 2. By the same act, any report published in a newspaper of the pro- 
 ceedings of a public meeting is privileged (that is not libellous), if the 
 meeting was lawfully convened for a lawful purpose and open to the 
 public, and if such report was fair and accurate, and published without 
 malice for the public benefit ; but this protection is not available as a 
 defence to any proceeding, if the defendant refused to insert in his 
 newspaper a reasonable explanation or contradiction by the plaintiff. 
 
 1 Sects. 20, 21, 24. - Sect. 25. ' Sect. 18. ' Sect. 19. 
 
Ntent dedire addenda. Power of Attorney 911 
 
 § 3. No criminal prosecution for a libel contained in a newspaper can be 
 commenced without the fiat of the Director of Public Prosecutions 
 (sect. 3). Charges of libels contained in newspapers may be tried 
 summarily (sects. 4, 5). 
 
 NIENT DEDIRE. — In the old common law practice, when a suggestion {q. v.) 
 was entered on the record in an action, and the opposite party did not wish to deny it, 
 he made an entry on the record to that effect, which operated as a confession of the 
 truth of the suggestion, and was called a merit dedire 1 (Norman-French, = "not 
 deny"). 
 
 NUISANCE.— § ia. See the Alkali, &c. Works Regulation Act, 
 1 881. 
 
 PAYMENT INTO COURT.— § 5. Where land subject to any in- 
 cumbrance is sold, whether by the Court or out of Court, the Court may 
 direct or allow payment into Court of a sum sufficient to provide for the 
 incumbrance, and thereupon declare the land to be freed from it. The 
 Court may distribute or apply the fund in Court according to the rights 
 of the parties. 2 
 
 POWER. — § ioa. By sect. 52 of the Conveyancing Act, 1881, a 
 person to whom any power, whether coupled with an interest or not, is 
 given, may by deed release it, or contract not to exercise it. This 
 provision is probably not intended to apply to so-called powers coupled 
 with a trust, as to which see Pmvcr, § 4. 
 
 POWER OF ATTORNEY.— § 5. The Conveyancing Act, 1881, 
 contains the following provisions in regard to powers of attorney. The 
 donee of a power of attorney may act in and with his own name, signature 
 and seal instead of the name, signature and seal of the donor (sect. 46). 
 Any person making or doing any payment or act in good faith, in 
 pursuance of a power of attorney, is not to be liable by reason that the 
 donor of the power had previously died, or become lunatic, or bankrupt, 
 or revoked the power, provided such fact was not known to him at the 
 time (sect. 47). A power of attorney may be deposited in the Central 
 Office of the Supreme Court, on its execution being verified by affidavit 
 or otherwise. The file of powers so deposited may be searched, and an 
 office copy of any power obtained, by any person on payment of the 
 office fees. An office copy is sufficient evidence of the contents of the 
 original instrument (sect. 48)- A married woman, whether an infant 
 or not, is to have power, as if she were unmarried and of full age, to 
 appoint an attorney on her behalf to do anything which she herself 
 might do (sect. 40). 
 
 1 Rex v. Inhabitants of Norwich, I Str. 2 Conveyancing Act, 1881, ss. 5, 21, 
 
 177 ; Barnewall v. Sutherland, 9 C. B. \ 3, 2 § vii. 
 
 380, 
 
gi2 Probate addenda. Redeem 
 
 PROBATE. — § sa. In the case of probates and letters of adminis- 
 tration granted before the ist April, 1880, the rate of duty is regulated 
 by the stat. 55 Geo. 3, c. 184; 5 & 6 Vict. c. 79, s. 23 ; 22 & 23 Vict, 
 c. 36, s. 1 ; and 27 & 28 Vict. c. 36. Under these acts the duty was 
 paid by a stamp on the grant, and was calculated on the whole value 
 of the personal estate, without deducting debts (except in the case of 
 mortgage debts charged on leasehold property), but after payment of the 
 debts, a return could be obtained of a proportionate part of the duty. 
 The rates of duties were altered by the Customs and Inland Revenue 
 Act, 1880, applying to grants made between the ist April, 1880, and the 
 ist June, 1881. 1 Grants made after the latter date are subject to the 
 provisions of the Customs and Inland Revenue Act, 1881, which fixes the 
 rate of duty at il. for every 50/. on estates between 100/. and 500/. ; 
 1/. 5J. for every 50/. on estates between 500/. and 1,000/. ; and 3/. for 
 every 100/. on estates over 1,000/. Estates under 100/. are exempt from 
 duty, as before. In the case of persons dying' on and after the ist June, 
 1 88 1, where the gross value of the estate does not exceed 300/., the duty 
 is 30s., which includes legacy and succession duty. 2 (See Legacy Duty 
 in these addenda, and Succession Duty.) The act further makes an im- 
 portant alteration — (i) by allowing debts (other than voluntary debts) and 
 funeral expenses to be deducted from the value of the estate before 
 payment of the duty; 3 and (ii) in making the duty payable on the affidavit 
 for Inland Revenue instead of on the grant. A certificate is written on 
 the grant to show that the duty has been paid. The affidavit for Inland 
 Revenue verifies an account of the estate (see Account, § 12B, in these 
 addenda), a schedule of debts and funeral expenses, and states the net 
 amount of the estate. 4 
 
 § 5B. Duties at the same rate as probate duties are now payable on 
 property comprised in accounts deliverable under sect. 38 of the Customs 
 and Inland Revenue Act, 1881 ; as to which, see Account, § 12c, in these 
 addenda. 
 
 PROBATE, DIVORCE AND ADMIRALTY DIVISION.— 
 
 § 3A. This rule has been abolished by the Judicature Act, 1881 (sect. 9), 
 which also makes the judgment of the Court of Appeal in matrimonial 
 causes final in many cases. 
 
 PROHIBITION.— § ia. See Mackonochie v. Lord Penzance, 6 App. 
 Ca. 424. 
 
 RECREATION. Seethe Metropolitan Open Spaces Acts, 1877 and 
 
 REDEEM.— § 2. By the Conveyancing Act, 1881 (sect. 15), where 
 a mortgagor is entitled to redeem, he may require the mortgagee, 
 
 1 Williams, P. P. 389 et seq. ' See the forms, Trevor's Taxes on Suc- 
 
 2 Sects. 33 et seq. cession, 12 et seq. 
 
 3 Sect. 28. 
 
Re-Entry ADDENDA. Use 
 
 instead of re-conveying, to assign the mortgage debt and convey the 
 mortgaged property to any third person, as the mortgagor directs. This , 
 provision does not apply where the mortgagor is or has been in posses- 
 sion ; but in all other cases it applies, notwithstanding any stipulation by 
 the parties to the contrary. 
 
 § 3. As to the redemption of quit rents, &c, see Rent, § 8b, in these 
 addenda. 
 
 RE-ENTRY. — § 4. The exercise of a right of re-entry for breach of 
 a covenant or condition contained in a lease is restricted by sect. 14 of 
 the Conveyancing Act, 1881 ; as to which see Forfeiture in these addenda. 
 
 RENT. — § 8a. By sect. 44 of the Conveyancing Act, 1881, where 
 a person is entitled to a rent-charge or other annual sum charged on 
 land, or on the income of land (not being rent incident to a reversion, as 
 to which see Rent, § 2), he has, in the event of the annual sum being in 
 arrear for a certain period, power to raise the arrears by entry and distress 
 on the land, or by entering on and receiving the income of the land, or 
 by demising the land to a trustee for a term of years upon trust to raise 
 the annual sum by mortgage, sale or lease of the land for all or part 
 of the term, or otherwise. This provision applies to instruments coming 
 into operation after the 31st December, 1 881, so far as a contrary intention 
 is not expressed. 
 
 § 8b. Sect. 45 of the same act enables the owner of land, out of which 
 a quit-rent, chief-rent, perpetual rent-charge, or other perpetual annual 
 sum (not being a tithe rent-charge, or a rent reserved on a sale or lease, 
 &c.) is issuing, to redeem the same by application to the Copyhold 
 Commissioners, and by payment to the person entitled to the rent of the 
 amount certified by the commissioners to be the capital value of the 
 rent. 
 
 SUB-AGENT— SUB-CONTRACTOR. See New Zealand and 
 Australian Land Co. v. Watson, 7 Q. B. D. 374. 
 
 TRUSTEE. — § 6a. Sect. 31 of the Conveyancing Act, 1881 (giving a 
 power of appointing new trustees where the instrument creating the trusts 
 contains no sufficient power), applies to trusts created either before or 
 after the 31st December, 1881. It therefore applies to trusts which were 
 not within the provisions of the Trustees and Mortgagees Clauses Act, by 
 reason of their having been created before the 28th August, i860. 
 
 USE. — § 1 5 A. At common law, a person could not make any convey- 
 ance to himself, so that if A. wished to convey property to' himself and B. 
 jointly, he was obliged to make a conveyance to some third person, C, 
 and then C. made a re-conveyance to A. and B. jointly. The Statute of 
 Uses made it possible to evade this rule in the case of freehold estates in 
 land, because if A., the owner of land, conveyed it to C. to the use of A. 
 and B. and their heirs, the statute executed the use, and at once vested 
 
 s. 3 n 
 
 913 
 
914 Use addenda. Use 
 
 the land in A. and B. for a joint estate in fee simple. The same method 
 is available if A. wishes to convey land to B. in fee simple, reserving to 
 himself a life estate, or if A. wishes to convey land to his wife. 1 As the 
 Statute of Uses does not apply to leaseholds or other chattels, it became 
 necessary to pass an act enabling any person to assign personal property 
 to himself jointly with another. 3 § 15B. In conveyances executed after 
 the 31st December, 1881, freehold land, or a thing in action, may be con- 
 veyed by a person to himself jointly with another person, by the like 
 means by which it might be conveyed by him to another person, and may 
 be similarly conveyed by a husband to his wife, and by a wife to her hus- 
 band, alone or jointly with another person. 3 
 Easements, § 15c. Formerly, a thing could not be granted by way of use if the 
 
 pn eges, c. en j y ment f j t was inseparable from the possession, such as annuities, 
 ways, commons and authorities 4 (see page 856, note (3) ). Hence, where 
 land was sold subject to an express reservation or exception of such rights, 
 privileges or easements, the object had to be attained either by a re-grant, 
 or by a declaration that the land should remain to such uses as should 
 give full effect to the reservation or exception, and (subject thereto) to the 
 uses declared to vest the land in the purchaser. 6 In conveyances made 
 after 31st December, 1881, a limitation of freehold land to the use that a 
 person may have an easement, right, liberty, or privilege over the land 
 will operate to vest in possession in that person the easement, &c. so 
 limited to him. 6 
 
 1 Williams, R. P. 191. i Bl. Comm. ii. 330. 
 
 2 Stat. 22 & 23 Vict. c. 35, s. 21 ; 5 Dart, V. & P. 506. 
 Williams, P. P. 477. 6 Conveyancing Act, 1881, s. 62. 
 
 3 Conveyancing Act, 1881, s. 50. 
 
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