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 And Presented February 14, 1893 
 
 IN nEHORY OF , 
 JUDQE DOUGLASS BOARDMAN , 
 
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LAW DICTIONARY 
 
 USE OF STUDENTS AND THE LEGAL PROFESSION. 
 
 BY 
 
 AKCHIBALD ^OWN, 
 
 OF THE UIDDLE TEMPLE, BABBISTEE AT LAW, M. A. EDIH. AND OXON., 
 
 AND B.C. L. OXON. ; 
 
 AUTHOR OF "THE RULE OF THE LAW OF FIXTUIIES,** AND "AN EPITOME AND ANALYSIS 
 
 OF SATIGNT'S TREATISE ON OBLIGATIONS IN ROMAN LAW." 
 
 WITH 
 
 NUMEROUS ADDITIONS AND COKRECTIONS 
 
 APPENDIX OF LEGAL MAXIMS AND OF ABBREVIATIONS USED IN 
 REFERENCE TO LAW BOOKS. 
 
 Br 
 
 A. P. SPKAGUE, 
 
 COnNSSLOB AT LAW. 
 
 ALBANY: 
 JOHN D. PARSONS, Jr., LAW PUBLISHER. 
 
 1875. 
 
Entered, according to act of Congress, in tlie year eighteen hundred and seventy-five. 
 By JOHN D. parsons, Jr., 
 In the office of the Librarian of Congress, at Washington. 
 
 WEED, PARSONS AND COMPANY, 
 PRINTERS AND STEREO TY PEBS, 
 ALBANY, N. Y. 
 
PREFACE TO THE AMERICAN EDITION. 
 
 The need of an Abridged Law Dictionary, which should contain the 
 substance of the unabridged dictionaries, is conceded on all sides. Mr. 
 Brown's English Law Dictionary seemed to supply this want in Great 
 Britain ; but some changes were required to adapt it to American law, 
 and some additions were found desirable to render it complete. The 
 American editor has, therefore, made occasional changes in the text, and, 
 while in some instances considerable matter has been stricken out as 
 being without usefulness or interest to the American law studeut, yet 
 many new titles have been added, and several definitions have been 
 entirely rewritten. The new titles are indicated by an asterisk ; other 
 modifications it has been found impracticable to indicate. It has not 
 been the design to entirely Americanize the work, but only to conform 
 it to the common law as existing in this country. The statutory law of 
 the different States and of the United States could not be embraced 
 within the limits of this work, even if that were appropriate in a law 
 dictionary. It is believed that the law student will find every thing 
 of value in this little work which can be found in either Bouvier's or 
 Burrill's large dictionaries. And there are some features which are of 
 unusual interest, such as the accounts of the English Courts and legal 
 iastitutions, which Mr. Brown has furnished in a way unparalleled in 
 any other dictionary. 
 
 The tables of law reports and their abbreviations, and the list of 
 legal maxims which are appended to the work by the American editor, 
 will be found of great service. Although the work remaias substan- 
 tially an English law dictionary, the American editor is confident that it 
 wiU be entirely satisfactory to the professicfn in this country, besides 
 possessing the superior merit of illustrating the principle of multum in 
 fo/iroo. 
 
 Octoler 1, 1876. 
 
PREFACE. 
 
 It appeared to the author that a new Dictionary of the Law would 
 be useful, if it succeeded in presenting a complete Institute of the 
 whole Law of England, expressing briefly, but without inaccuracy or 
 meagemess, the rules and principles of the Common Law, of Chancery 
 Law, of Real Property or Conveyancing Law, of Mercantile Law, of 
 Constitutional Law, and of Public or General, *. e., International Law, 
 arranging these rules and principles, whether of doctrine, evidence 
 or procedure, in lexicographical order, and'while giving prominence to 
 what is modern, not ignoring what is ancient in the law, wherever the 
 ancient principles or phrases were either valuable in themselves or serv- 
 iceable in explaining the modern principles or phrases which are in 
 numerous instances their equivalents. This scheme involving the 
 observance of a double method, has not been very easy to carry through, 
 but unsparing endeavors have been used towards accomplishing it. In 
 the first place, it was manifest that if the dimensions of the dictionary 
 were to be convenient (and they were strictly limited to such conven- 
 ience as was compatible with usefulness), much that was old and totally 
 disused would have to be excluded altogether, and much more that 
 was also old but not totally disused would have to be most succinctly 
 expressed ; and in the second place, it was manifest that the vast details 
 of the modem law would have to be compressed to the maximum 
 degree in order to admit of being comprised within the limits of the 
 dictionary. Then, in the third place, the iteration of matter, which was 
 in danger of creeping in thi'ough the combination of institute and diction- 
 aiy, had to be watchfully excluded, and this want of iteration compen- 
 sated by proper references, neither too numerous to be puzzling, nor 
 too scanty to be imperfect. Lastly, all that part of the modem law 
 which could point to an historical origin deserved to keep the merit of its 
 lineage or pedigree, and some pains have been taken to be just in this 
 respect. 
 
 How far the author may be found to have accomplished the pur- 
 poses (as hereinbefore expressed) of this compilation, he must leave to 
 the judgment of others ; but without craving the indulgence of the 
 public, whose servant he is, and to whom, therefore, if he serve up any 
 
VI PREFACE. 
 
 thing he should in all conscience serve up a proper dish, he is reluctant 
 to acknowledge that an unaccustomed feeling of diffidence has once or 
 twice assailed him, lest his work should not prove so absolutely fault- 
 less or so generally useful as it has been his wish to make it. But of 
 one thing he is courageous, namely, of the service which his work will 
 render to students preparing for the bar or for the lower branch of the 
 profession. Of all persons who have to labor in the early hours of Hfe, 
 students of the law are probably the most deserving of compassion — 
 a compassion which should increase with each increasing year, inasmuch 
 as Parliament is annually adding to the burdens of their already over- 
 burdened shoulders. Surely, therefore, an institute of the character 
 that is here attempted should prove a welcome manual to such. The 
 student's eye will also be materially assisted by the style in which the 
 work is printed. 
 
 A. BKOWK 
 89 Ohaijoeet Laite, W. G. 
 October, 1874. 
 
A NEW LAW DICTIONARY. 
 
 = A ATER ET TENEE. To have and Abandonment of Legal Proceedings. — 
 
 to hold. Litt., §§ 523, 534. {Continued.) 
 
 *A CANCELLIS. A chancellor; so- 
 called from the canceUi within which he 
 performed his office. Cassiodorus Variar, 
 lib. n, form 6. 
 
 * A CONSILIIS. A counselor. The 
 phrase "of counsel" is derived therefrom. 
 
 * AB ACTIS* A notary ; a reporter. 
 
 * AB INITIO. From the beginning. 
 .Plowd. 6 a, 16 a; 1 Bl. Com. 440. 
 
 ♦ABACTOR. A stealer of cattle in 
 herds. CoweU, Paulus Sentent6, 5, tit. 
 20. Abigeui was also used in this sense. 
 
 - ABANDONMENT. A word of very 
 general application, and bears in every 
 instance of its use its natural or popular 
 meaning. Thus, the abandonment of 
 children, or their desertion and exposure, 
 for the law as to which see R. v. Falking- 
 hrnn, L. R. 1 C. C. R. 222 ; also, the aban- 
 donment of a distress or of an execution ; 
 also, the abandonment of the excess of a 
 claim in order to give jurisdiction to a 
 lower court; also abandonment by hus- 
 band or wife. Abandonment of insured 
 property to the insurers, «e« Mabinb In- 
 
 STJEANCE . 
 
 * ABANDONMENT FOR TORTS. 
 
 Civil law. The transfer of an animal or 
 slave who had injured a person, in dis- 
 charge of the owner's liability. 
 
 ABANDONMENT OP LEGAL PRO- 
 CEEDINGS. Such abandonment may 
 either be wlunta/ry, where the plaintiff 
 does it of his own accord, or compul- 
 sory, where the defendant compels him 
 either to abandon or to continue his ac- 
 tion. The plaintifE may not voluntarily 
 abandon his action, even although ad- 
 
 verse, without first satisf3rtngthe defend- 
 ant his costs. Pugh v. Kerr, 5 M. & W. 
 164. Under the C. L. P. Act, 1854, the 
 appUcation of the defendant to compel an 
 abandonment is to be made on summons, 
 § 92. In case the plaintiff voluntarily 
 abandons his action, he should give 
 prompt notice thereof to the defendant, 
 in order to save further costs. See Ptigh 
 V. Kerr, supra. 
 
 *ABARNARE. To discover and dis- 
 close a crime. Leg. Canuti C. 104. 
 
 ABATEMENT OF ACTIONS AND 
 
 SUITS. As applied to actions or suits, 
 this word denotes that for some cause or 
 other the suit is become defective, and 
 can no longer be proceeded with until 
 such defect is removed. 
 
 * ABATEMENT IN CONTRACTS. A 
 
 reduction of a debt for prompt payment. 
 Weskett Ins. 7. 
 
 * ABATEMENT OF FREEHOLD. The 
 
 unlawful entry of a stranger upon lands, 
 after the death of the ^wner, and before 
 the entry of the person entitled. 3 Bl. 
 Com. 168; Co. Litt. 277 a; Cruise Dig. 
 B. 1 60. 
 
 ♦ABATEMENT OF LEGACIES. A 
 
 proportional reduction of legacies when 
 the estate is insufficient to pay the debts 
 and legacies in fuU. 2 Bl. Com. 513, 
 513; 1 Story Eq. Jur., § 655; 2 Brown 
 Ch. 19. 
 
 ♦ABATEMENT IN MERCANTILE 
 LAW. A reduction of duties on account 
 of damage to imported goods. Act of 
 Congress, Mar. 3, 1799, § 52 ; 1 Story U. 
 S. Laws. 617. 
 
ABATEMENT OP NUISANCE. — ABATEMENT, PLEAS IN. 
 
 ABATEMENT OP NUISANCE. In 
 
 the case of a public nuisance the party 
 abating same must have sustained some 
 particular or special damage from it ; i. «. , 
 some damage other than and besides the 
 general inconvenience sustained by the 
 public at large {Mayor of Colchester Y.Brooh, 
 7 Q. B. 339) ; but in the case of a private 
 nuisance the party prejudiced may at 
 once abate same. Lonsdale (Ewrl) v. Nelson, 
 3 B. & C. 302. However, the abate- 
 ment must be made without any breach 
 of the peace, and also without doing any 
 unnecessary damage. Roberts v. Base, 4 
 H. L. 0. 163. Under the statute 18 & 
 19 Vict. c. 131, and the other acts rela- 
 tive to the preservation of the public 
 health, local authorities and their officers 
 may abate nuisances in the manner men- 
 tioned in the acts. 
 
 See, also, title Nuisance. 
 
 ABATEMENT OF POSSESSION: See 
 
 titles Abatement of Peebhold; Dis- 
 seisin; Intrusion. 
 
 ABATEMENT OP RENT. This is an 
 agreement to accept a less sum for rent 
 than that comprised in the original agree- 
 ment. No parol agreement to make such 
 an abatement is binding. Lemnge v. 
 O'Brien, 4 Ir. Jur. 32. 
 
 ABATEMENT OP WRIT. This is the 
 defeat or overthrow of a writ. In 
 Staundf. P. C. 148, it is said that an 
 appeal shall abate and be defeated by 
 reason of covin or deceit. 
 
 ABATEMENT, PLEAS IN. These 
 pleas, which are also called dilatory pleas, 
 because they delay for the time the fur- 
 ther progress of the suit, or action, or 
 prosecution, are pleas of some matter not 
 material to the merits of the proceeding, 
 but technically necessary or proper ; and 
 as such they are onposed to pleas in bar 
 or peremptory pleas. They occur either 
 in civil or in criminal proceedings. 
 
 I. In civil proceedings they are the fol- 
 lowing : 
 
 (1) To the jurisdiction of the Court ; 
 
 (2) To the person of the plaintifE ; 
 
 as that (flj) he is' an outlaw ; 
 or (J) an alien; 
 or (c) an excommunicated 
 
 person ; 
 or (d) an attainted person, 
 
 and such like ; 
 
 (3) To the person of the defendant; 
 
 as that (as) he is privileged ; 
 or (J) misnamed (mis- 
 nomer) ; 
 
 Abatement, Pleas in. — (Contimied.) 
 
 or (c) misdescribed (addi- 
 tion) ; 
 
 (4) To the writ and action, and for- 
 
 merly — 
 
 (5) On account of certain events 
 
 happening, namely: 
 (as) The demise of the sovereign, 
 corrected by 1 Edw. 6, c. 
 7, and other subsequent 
 statutes ; 
 (6) The marriage ( of the ) cor- 
 (c) The death ( parties f rected 
 by C. L. P. Act, 1852, and 
 Chancery Jurisdiction Act, 
 1853. 
 n. In criminal proceedings they are, 
 generally speaking, the same ; but under 
 the statute 7 Geo. 4, c. 64, s. 19, no in- 
 dictment or information is to be abated 
 for misnomer or addition, but the same 
 shall be amended if the court is satisfied 
 by affidavit of the true name or descrip- 
 tion. See Bex v. Bhahspeare, 10 East, 83. 
 Inasmuch as pleas in abatement are 
 odious, they must be certain to every in- 
 tent (3 Wms. Saund. 620), and must go so 
 far as to specify the true mqde of proced- 
 ure (Boans v. Stevens, 4 T. R. 237) ; and 
 the same rule holds good in criminal cases 
 also. O'GonneUY. Beg. (in error), 11 CI. 
 & P. 155. And so a plea in abatement 
 for non-joinder of defendants should 
 mention all the co-defendants who are not 
 joined. Grellin v. Gahert, 14 M. & W. 
 11. Every such plea must also be verified 
 by affidavit (4 & 5 Anne, c. 16, s. 11), 
 otherwise the plaintiff may sign judgment 
 (Poole V. Pembrey, 1 Dowl. 692) ; and such 
 affidavit must be delivered with the plea, 
 unless an extension of time be granted. 
 The time for pleading is also very limited, 
 being four days after declaration. By- 
 land V. Wormwald, 5 Dowl. 581. 
 
 Upon issue joined on a plea in abate- 
 ment, the judgment, when for the plain- 
 tiff, may be of either of two kinds, 
 namely : 
 
 (1) Final, as when the issue is an issue 
 
 of fact ; 
 (3) Respondeat ouster, as when the 
 
 issue is one of law. 
 Large powers of wmendmemt are, how- 
 ever, now given by the C. L. P. Acts, 
 1852 and 1854, in cases of the non-joinder 
 or mis-joinder of parties, for which see 
 titles Mis-joiNDBB and Non-joindbb. 
 
 Pleas generally, whether in bar or in 
 abatement, must be pleaded in the follow 
 1 ing order, which is invariable, namely : 
 
ABBAT. — ABJURATION. 
 
 Abatement; Fleas in. — {UonUnued.) 
 (i) To the jurisdiction; 
 (ii) In abatement, 
 
 (a) To the person (1) of the plaintiff, 
 
 or (3) of the defendant, 
 
 (b) To the count, 
 
 (c) To the writ ; 
 
 (iii) In bar of the action. 
 
 Pleading a plea in any one of these 
 classes is a waiver of the right to plead in 
 any of the preceding classes. 
 
 See, also, title Plea in Bak . 
 
 ABBAT, called also Abbot. A spiritual 
 lord. An aljbacy was the lordship with the 
 revenues thereof and the spiritual duties 
 attaching thereto. In England, abbats 
 were either elective or presentative ; and 
 again some abbats were mitred, having 
 episcopal authority, and not being them- 
 selyes subject to the jurisdiction of any 
 diocesan, but others were unmitred, and 
 were subject to such jurisdiction. The 
 mitred abbats alone were lords of par- 
 liament. It is supposed that there were 
 twenty-seven such parliamentary abbats. 
 All the abbacies are supposed to have been 
 founded between 602 and 1133. An 
 abbat, together with his monks, formed 
 a corment, and were a corporation. By 
 statute 37 Hen. 8, c. 38, the lesser mon- 
 asteries were abolished, and by statute 
 31 Hen. 8, c. 13, the larger ones were 
 dissolved also. 
 
 ABDICATION. A renunciation of 
 office by some magistrate or other person 
 in office before the natural expiration 
 thereof. Such a renunciation differs 
 from a resignation of office, being usually 
 pure and simple, whereas resignation is 
 commonly in favor of some particular 
 successor. James H. was considered to 
 have abdicated the Crown in 1688. 
 
 ABDUCTION. This word is com- 
 monly used of the criminal offense of 
 carrying off females on account of their 
 fortunes. See statute 9 Geo. 4, c. 31; 
 but the law is now comprised in 34 & 35 
 Vict. c. 100, s. 53^. The term is 
 applied also to the unlawful seizure or 
 detention of a female for the purpose of 
 marriage, concubinage or prostitution. 
 iSee 3 N. T. Rev. Stat. 553, §§ 34-36 ; 1 
 Russ. on Crimes, 701 ; 3 Bl. Com. 139- 
 141. 
 
 * ABEKE MURDER. Plain or down- 
 right murder as distinguished from the 
 less heinous crimes of manslaughter and 
 chance-medley. Jacob's Law Diet. ; Leg. 
 Canuti ch. 93 ; Cowel. 
 
 ABETTORS: See title Aiders and 
 Ajbettobs. 
 
 ABEYANCE. This word as applied to 
 real property, whether estates or digni- 
 ties, denotes that the same are in expec- 
 tation, remembrance, or intendment of 
 the law. Abeyance is said to be of two 
 sorts, being either — (1) Abeyance of the 
 fee simple, or (3) Abeyance of the free- 
 hold. The first is where there is an 
 actual estate of freehold in esse, but the 
 right to the fee simple is suspended, and 
 is to revive upon the happening of some 
 event; e. g., in the case of a lease to A 
 for life, remainder to the right heirs of 
 B, who is alive, the fee simple is in 
 abeyance until B dies. Co. Litt. 343 b. 
 Similarly, during the incumbency of each 
 successive incumbent- of a church, he 
 having only a freehold interest therein, 
 the fee simple is in abeyance. Litt. 
 § 644-6. The second species of abey- 
 ance, i. e., an abeyance of the freehold 
 itself, occurs on the death of an incum- 
 bent, and until the appointment of his 
 successor. Litt. § 647. But saving this 
 one case, the freehold is never in abey- 
 ance, and cannot possibly be so. 
 
 It was customary in speaking of a 
 thing in abeyance to say that it was "in 
 nubiSus" (which was rather a profane 
 expression), or ^'■ingremio legis" {Carter 
 V. Barnardiston, 1 P. Wms. 516), the 
 latter phrase denoting that the fee simple 
 or freehold which was in abeyance was 
 meanwhile under the care or protection 
 of the law. 
 
 There is no abeyance either of the fee 
 simple or of the freehold in the case of 
 conveyances operating under the Statute 
 of Uses, for in these what is not given 
 away remains in the grantor until it is so 
 given. As to the law in the United 
 States, see 9 Cranch, 47; 3 Mass. 500; 
 1 Washb. Real Prop. 48 ; 4 Wheat. 691 ; 
 1 Kent's Com. 103. 
 
 * ABIGEUS : See title Abactok. 
 
 *ABJUDICATIO. A removal from 
 court. Calvinus Lex; Co. Litt. 100 b. 
 
 ABJURATION. This is a foreswear- 
 ing or renouncing upon oath. To abjure 
 the realm was to take an oath to quit it 
 forever, and such abjuring persons were 
 and are civilly dead. So also to abjure 
 the Pretender was to take an oath dis- 
 claiming all allegiance or obedience to 
 him. The oath of abjuration is a natural 
 issue from the duty of allegiance, but, 
 apparently, was not devised until after 
 
4 
 
 ABORDAGB. — ABSOLUTION. 
 
 Abjnration. — ( Continued.) 
 the Revolution of 1688, when the 7 & 8 
 Will. 3, c. 37, first imposed it in respect 
 of temporal sovereigns at least. 8ee title 
 Pk^mitnibe, as to spiritual sovereigns. 
 More recently the oath of abjuration has 
 been vn-apped up in the oath of allegi- 
 ance prescribed by the 31 & 33 Vict. c. 
 48, s. 1. An alien on becoming a citizen 
 of the United States abjures all allegi- 
 ance to foreign powers. Rawle Const. 
 98; 3 Story U. S. Laws, 850. 
 
 Formerly, i. e., in the time of Edward 
 the Confessor, and the other succeeding 
 sovereigns, down to the reign of James L, 
 if a person committed a felony he might 
 obtain sanctuary in a church or church- 
 yard; and there on confession of the 
 crime, he might abjure the realm. But 
 this privilege, growing into an abuse, the 
 thing was abolished by 31 Jao. 1, c. 38, 
 since which statute this kind of abjura- 
 tion has ceased. 3 Inst. 639. 
 
 *ABOBDAGE. The collision of vessels. 
 
 ABORTION. Under the statute 34 & 
 35 Vict. c. 100, s. 58, any woman being 
 with child, who with intent to procure 
 her own miscarriage, unlawfully admin- 
 isters to herself any poison, or uses any 
 instrument with the like intent, and any 
 person other than the woman doing for 
 her the like (whether or not thfe woman is 
 with child), is guilty of felony; and by 
 s, 59, the person supplying such poison 
 or instrument with knowledge of the 
 intended unlawful use thereof, is guilty 
 of a misdemeanor. For the complete 
 commission of this ofEense, the earlier 
 statutes of 43 Geo. 3, c. 58, and 9 Geo. 
 4, c. 31, s. 14, had required that the 
 woman should be quick with child ; but 
 that is no longer a requisite. S. v. Cfood- 
 JiaU, 3 0. & K. 393 ; S. v. Isaaes, 9 Cox, 
 G. C. 338; Arch. Grim. PI. and Evid. 
 711 ; 1 Bish. on Grim. Law, 338, 741, 769 ; 
 3 id. 691. 
 
 ABRIDGMENT. An epitome. The 
 principal abridgments of the BngUsh law 
 are the following: 
 
 1516. Fitzherbert's Abridgment, going 
 
 down to 31 Henry VII. 
 1568. Brooke's "Grand Abridgment," 
 going down to Elizabeth. 
 Statham's. Abridgment, going 
 down to Henry VI. 
 1763. Comyns' Digest. 
 1736-51. Bacon's Abridgment. 
 1741-51. Viner's Abridgment. 
 1799-1806, with Supplement. 
 
 Abridgment. — (Continued.) 
 
 1853. Chitty's Equity Index, 3rd Ed. ; 
 
 and 
 1870. Harrison's Digest, by Fisher. 
 
 ♦ABROGATION. The repeal of a 
 law. 
 
 ABSCONDING DEBTOR. Under the 
 Debtor's Act, 1869 (33 & 33 Vict. c. 63), 
 s. 13, a bankrupt or liquidating debtor, 
 who either after or within four months 
 before the commencement of the bank- 
 ruptcy or liquidation, quits England, and 
 wrongfully takes with him property to 
 the amount of £30 or upward, is guilty 
 of felony. And under the statute 33 & 
 34 Vict. c. 76, intituled "The Abscond- 
 ing Debtors Act, 1870," such a debtor 
 may be arrested, notwithstanding the 
 abolition of arrest on mesne process by 
 the Debtors Act, 1869 (33 & 33 Viot..c. 
 63), s. 6. The several States have stat- 
 utes defining the status of an absconding 
 debtor. 
 
 ABSENCE. A presumption of death 
 arises after the absence of a person for 
 seven years without being heard from. 1 
 Stark. 131; 3 Gampb. 113; 4 "Wheat. 
 150; 3 Starlde Ev. 457, 458; Peake Ev. 
 ch. 14, § 1. In French law, where a per- 
 son has absented himself from his resi- 
 dence and domicile for four years, and 
 nothing has meanwhile been heard of 
 him, a declaration of absence may be 
 obtained against him (la dScla/ration 
 d^absenee), one year after the parties have 
 applied for same, failing the success of 
 the inquiries for him that are officially 
 directed upon such application. The 
 effect of such a declaration is to put his 
 next of kin (JiSHOers priionvptifi) into 
 possession of his property, they giving 
 security, and distributing the property 
 according to the will of the absent per- 
 son, or (in the case of intestacy), accord- 
 ing to law. In case the absentee returns 
 home, the next of kin are accountable to 
 him, and return him a fifth part of the 
 income if he returns before fifteen years, 
 and one-tenth part if after fifteen years 
 and before thirty; if after thirty, they 
 return no part at all, and cease to be 
 accountable, their security being dis- 
 charged. The consort of such an 
 absentee may re-marry, and the second 
 marriage is not impeachable excepting 
 by the absentee (personally). 
 
 * ABSOLUTION. In French law, the 
 dismissal of a charge; in civil law, a 
 decree declaring the innocence of the 
 
ABSQUE HOC — ACCEPTANCE. 
 
 Absolution. — ( Continued.) 
 accused; in canon law, a judgment of 
 the clergy that the sins of the penitent 
 are remitted. 
 
 ABSQUE HOC {without tMs). These 
 were fornaal words made use of in the 
 conclusion Of a special traverse, and the 
 traverse itself was thence frequently 
 called a traverse with an absque hoc. 
 These words were not essential to a spe- 
 cial traverse, others of a similar import 
 being sometimes used in their stead; 
 their object was directly to deny some 
 proposition or averment set forth in the 
 plaintiff's declaration. By the C. L. P. 
 Act, 1852, s. 65, it is enacted that spe- 
 cial traverses shall not be necessary in 
 any pleading. 
 
 See Special Tbatebse. 
 
 ♦ABSTRACT OF FINE. An abstract 
 of the writ of covenant and the concord, 
 naming the parties, the parcel of land 
 and the agreement. 2 Bl. Com. 351. 
 
 ABSTRACT OF TITLE. An epitome 
 of the vendor's evidence of ownership. 
 A brief account of all the deeds on 
 which the title rests. Preston on Ab- 
 stracts ; Wharton's Diet. ; Lee on 
 Abstracts. 
 
 In England, when it is necessary (as it 
 almost always is) to show the birth, 
 death, or marriage of any person, the 
 proper certificates of these facts must be 
 produced ; when it is necessary to prove 
 a pedigree, as where a descent occurs in 
 tlie course of the abstract, then the heir- 
 ships must be proved if possible by strict 
 evidence, i. e., by means of certificates 
 of births, deaths, and marriages, and by 
 the wiUs and letters of administration of 
 persons having a possible prior title ; but 
 failing such proof, evidence of deeds, 
 wills of relatives, extracts from parish 
 books, from family Bibles, from tomb- 
 stones, and such like, may be given. It 
 should also be shown that no outstanding 
 interest requires to be got in, such as 
 dower, freebench, courtesy, or any unsat- 
 isfied charge ; also (in the usual case) that 
 legacies charged on the land have been 
 paid ; also (if the property is sold free of 
 land tax), the certificate of such redemp- 
 tion, together with the receipt and mem- 
 orandum of registration, should be pro- 
 duced. In the case of leasehold proper- 
 ties, the abstract should show the original 
 lease and all subsequent . assignments 
 thereof, unless where the original lease is 
 of very ancient date, when some of the 
 
 Abstract of Title. — (Continued.) 
 mesne assignments may be left out. Also, 
 when the lease is less than sixty years 
 old, the lesssor's title must be shown. 
 When land (whether freehold or lease- 
 hold) has devolved upon any one by the 
 death of another since the 19th of May, 
 1853, the payment of succession duty 
 must be shown. It is usual, however, to 
 limit the contents of the abstract of title 
 by special conditions of sale. 
 
 See title Conditions of Sale. 
 
 ABUTTALS (abutter). The buttings 
 and boundings of land, either to the east, 
 west, north, or south, showing on what 
 other lands or places it does abut. But 
 strictly speaking, the sides on the breadth 
 are properly adjacentes, i. e., lying or bor- 
 dering, and only the ends on the length 
 are amttantes, i. «., abutting or bound- 
 ing. CoWel. 
 
 *ACCEDAS AD CURIAM. A writ to 
 remove a cause from an inferior court not 
 of record, to a superior court. It is pe- 
 culiar to replevin suits. 3 Bl. Com. 34 ; 
 1 Tidd's Pract. 38. 
 
 *ACCEDAS AD VICE COMITEM. 
 
 A writ directed to the coroner, command- 
 ing him to deliver a writ to the sheriff 
 requiring him to return a pone which he 
 has suppressed. 
 
 ACCEPTANCE. When a bUl is-^drawn 
 by A B upon C D, and D writes 
 the word ' ' accepted " and his name across 
 the face of the bill, the bill becomes his 
 acceptance. Such an acceptance is usual- 
 ly made by C D when he holds goods 
 consigned to him by A B and not yet 
 paid for, or when he is otherwise in debt 
 to A B. When he accepts it under other 
 circumstances, the acceptance is for the 
 accommodation or honor of the drawer. 
 An acceptance by E F, who is not a 
 party to the bUl, would also be an accept- 
 ance for honor or accommodation, but in 
 this case, for that of the drawee. Every 
 acceptance must since 1 & 2 Geo. 4, c. 
 78, s. 2, be on the bill, — a requisite which 
 by the Mercantile Law Amendment Act, 
 1856 (19 & 20 Vict. c. 97, s. 6), is extend- 
 ed to a foreign bill as well as an inland 
 one. And acceptance may be either gen- 
 eral, as where the word "accepted," 
 either alone or with the words " payable 
 at " a particular place is written on the 
 bill, or it may be special, as where the 
 words " and not elsewhere " are added to 
 the particular place mentioned in the 
 acceptance for payment. For the general 
 
ACCEPTANCE AND RECEIPT. — ACCIDENT. 
 
 Acceptauce. — ( Continued.) 
 
 law as to the liability of an acceptor, ape 
 title Bills of Exchange. Acceptance of 
 rent destroys the effect of a notice to quit 
 for non-payment of such rent. 1 Wash- 
 bume Eeal Prop. 333. 
 
 ACCEPTANCE AND RECEIPT. The 
 
 acceptance which is intended by the 
 Statute of Frauds must either precede or 
 be contemporaneous with the receipt of 
 the goods, and as there can be no receipt 
 without deUvery, it follows that the ac- 
 ceptance must be separated from the 
 receipt by the delivery, thus, — 1, accept- 
 ance; 3, delivery, and 3, receipt. Con- 
 sequently the acceptance signifies a mere 
 expression of one's selection of the particu- 
 lar goods or article. 
 
 Upon the goods being delivered and 
 received, the purchaser, if dissatisfied 
 with those sent, may return them ; conse- 
 quently the acceptance and receipt which 
 the statute speaks of does not preclude 
 subsequent objection. 
 
 ACCESS : See title Bastabd. 
 
 ACCESSAKT. A person guilty of a 
 felonious offense, not by being the actor, 
 or actual perpetrator, of the crime, nor 
 by being present at its performance, but 
 by being some way concerned therein, 
 either before or after its commission. If 
 he has been concerned in it before its 
 commission he is termed an accessary 
 before the fact ; if after, an accessary after 
 the fact. An accessary before the fact is 
 defined to be one who, being absent at 
 the time the crime is committed, yet pro- 
 cures, counsels, or commands another to 
 commit it ; and, in this case, absence is 
 necessary to constitute him an accessary, 
 for if he be present, he is guilty of the 
 crime as principal. Thus if A advises 
 B to kill another, and B does it in the 
 absence of A, in this case B is principal 
 and A accessary to the murder. An ac- 
 cessary after the fact is one who, know- 
 ing a felony to have been committed, 
 receives, reheves, comforts, or assists the 
 felon ; and generally any assistance what- 
 ever given to a felon, to hinder his being 
 apprehended, tried, or suffering punish- 
 ment, makes such assister an accessary, 
 as furnishing him with a horse to escape 
 his pursuers, money or victuals to support 
 him, a house or other shelter to conceal 
 him, or using open force and violence to 
 rescue or protect him. 3 Hawk. P. 0. 
 316, 317, 818. And now by stat. 34 & 
 
 Accessary. — ( Continued.) 
 whoever shall become an accessary iefo7'e 
 the fact to any felony, may be indicted, 
 tried, convicted, and punished in all re- 
 spects as if he were the principal felon. 
 And by sect. 3 of the same statute, it is 
 enacted, that whoever shall become an 
 accessary aft&r the fact to any felony, may 
 be indicted and convicted either as_ an 
 accessary after the fact to the principal 
 felony, together with the principal felon, 
 or after the conviction of the principal 
 felon, or may be indicted and convicted 
 of a substantive felony, whether the prin- 
 cipal felon shall or shall not have been 
 previously convicted, and may thereupon 
 be punished in like manner as any acces- 
 sary after the fact to the same felony, if 
 convicted as an accessary, may be pun- 
 ished. And see generally the last-men- 
 tioned Act, which is intituled "An Act 
 to consolidate and amend the Statute Law 
 of England and Ireland relating to Ac- 
 cessaries to and Abettors of Indictable 
 Offenses." 
 
 To a misdemeanor there are no acces- 
 saries, as neither is there to the offense of 
 high treason. 
 
 See also title Aiders and Abettors. 
 
 ACCESSIO. A term in Roman law 
 used to denote a mode of acquisition 
 of property by natural means; and the 
 like use of the word is not uncommon in 
 Enghsh law. Thus, the maxim " accessio 
 cedit principali" denotes generally that 
 an accessary thing when annexed to (as 
 it naturally is annexed to) a principal 
 thing, becomes part and parcel of the lat- 
 ter, and thereupon and thereby becomes 
 the property of the owner of the principal 
 thing. This mode of acquisition is par- 
 ticularly illustrated by the Law of Fix- 
 tures, as well in English as in Roman law, 
 the maxim of the English law being 
 " Quidquid plantatur solo, soh eedit" and 
 of the Roman law being " Omne quod in- 
 mdificatur solo, sola cedit." See Brown 
 on Fixtures, 3d ed. 1872. But the prin- 
 ciple is of universal application, applying 
 to the incorporation of any substance of 
 minor importance in, or its addition to, 
 another substance of a larger or principal 
 importance. By many civilians it is 
 used as the general term including in it 
 the various more particular natural modes 
 of acquisition, which are designated re- 
 spectively Aliumo, Speeijicatio, Oonfusio, 
 OormmkcUo. See these several titles. 
 
 ACCIDENT. This is any unforeseen 
 
 25 ViQt. c. 94, s. 1, it is enacted, that! event that is not attributable to the con- 
 
ACCIDENTAL DEATH. — ACCOUNT, ACTION OP. 
 
 Accident. — ( Contintied.) 
 trivance or negligence of the party. It 
 is a rule of all systems of jurisprudence 
 that no one is liable for an accident, be- 
 ing purely such ( Wakeman y. Bobinson, 1 
 Bing. aiS; 8 Moore, 63); but it is an 
 equally uniyersal rule, that the slightest 
 negligence will exclude the defense of 
 accident. Kearney v. London, Brighton, 
 dsc., By. Go.^ L. R. 5 Q. B. 411. But 
 this non-liability from accident does not, 
 of course, protect the purchaser of a spe- 
 cific chattel from payment of the price, 
 in case the chattel is either injured or 
 destroyed by accident. Twrling y. Baxter, 
 Tudor's M. C. 596. The courts of equity 
 go further than the courts of law, and 
 attempt even to relieve parties against 
 the consequences of accident, but within 
 a limited group of cases only. Story Eq. 
 Jur. s. 78 ; 1 Spence Eq. Jur. 628, 639. 
 
 ACCIDENTAL DEATH. For the Eng- 
 lish law of compensation in the case of 
 persons killed by railway accidents, see 
 Lord Campbell's Act (9 & 10 Vict. c. 93) ; 
 also the act amending same (37 & 28 Vict, 
 c. 95). By the latter act any of the per- 
 sons beneficially interested in the death 
 may, when no action for compensation is 
 brought within six months from the death 
 by the executor or administrator of the 
 deceased, bring such action; and the 
 defendant is enabled to pay a lump sum of 
 money into court, without specifying the 
 shares into which the same is to be di- 
 vided among the parties interested. 
 
 ACCIDENTS, INSURANCE AGAINST. 
 
 The law of insurance in its general prin- 
 ciples is applicable to this particular 
 species of insurance. Thus, the assuring 
 person must have an interest in the life 
 of the assuree, under the stat. 14 Geo. 8, 
 0. 48, s. 2. Shilling v. Accidental Death 
 Inmranee Oo., 3 H. & N. 43. Also, 
 there must be a full disclosure of aU cir- 
 cumstances material to the exposure to 
 accidents. Shilling's Case, supra. It is 
 usual in such policies to provide that the 
 injury from the accident insured against 
 shall be caused by some outward and vis- 
 ible means, of which satisfactory proof 
 can be furnished to the company ; as to 
 the meaning of such a provision, see 
 Trew y.Bailway Passengers' Inswranee Oom- 
 pany, 5 H. & N. 311 ; on app. 6 H. & N. 
 839. And see generally Fisher's Dig. 
 4936-30 ; Bliss on Life Ins. 702-741. 
 
 ACCOMMODATION i 
 
 OF Exchange. 
 
 See title Bills 
 
 ACCOMPLICE : See title Aidees and 
 Abbttohs. 
 
 ACCORD AND SATISFACTION. A 
 
 defense in law consisting (as the name 
 imports) of two parts, viz., something 
 given or done to the plaintiff by the de- 
 fendant as a satisfaction, and agreed to 
 (or accorded) as such by the plaintiff. 
 Therefore accord without satisfaction is 
 not a good plea {Parher v. Samsbottom, 8 
 B. & C. 357), as neither is satisfaction 
 without accord (Sardmam v. Bellhouse, 9 
 M. & W. 596) ; but accord and satisfac- 
 tion with one of several enures to the 
 benefit of all. Wallace v. Rensall, 7 M. & 
 W. 364 ; Nicholson v. Beoill, 4 A. & E. 
 675. But the satisfaction must be com- 
 plete and executed. Vloeton v. Hall, 16 
 Q. B. 1039. 
 
 In the case of an ascertained sum of 
 money, a less sum is no satisfaction for 
 the debt unless there is some additional 
 consideration (Fitch v. Button, 5 East, 
 230; CwmberY. Wane, 1 Sm. L. C, 6th 
 ed. 301) ; but in other cases the value of 
 the satisfaction is not inquired into (J'in- 
 nePs Case, 5 Rep. 117 a ; Ourlewis v. Ouvrlc, 
 3 Exch. 375) ; excepting so far as to ascer- 
 tain that the chattel given in satisfaction 
 is of some value. Preston v. Ghristmas, -3 
 "Wils. 86 ; Oa/rtm-ight v. Cooh, 3 B. & Ad. 
 701. One security is no satisfaction for 
 another, unless it is of a higher or better 
 quahty than the original security; e. g., 
 by being negotiable. Sibree v. Tripp, 15 
 M. & W. 23. 
 
 After breach, accord and satisfaction 
 is in general a good defense (when spec- 
 ially pleaded) to an action on any con- 
 tract, whether made by parol or by spec- 
 ialty (Blake's Case, 6 Rep. 43 b) ; unless 
 where a sum certain is payable under the 
 specialty (Peyto's Case, 9 Rep. 79 a) ; but 
 before breach it is never a good defense 
 to an action on a specialty ' ' nam, unum- 
 quodque eodem modo quo colligaMi/r dissolvi 
 
 An accord and satisfaction obtained by 
 fraud may be set aside in equity (Stewart 
 V. Great Western By. Co., 2 De G., J. & S. 
 319) ; and a receipt given for money re- 
 ceived as compensation under circum- 
 stances amountmg to imposition, or even 
 undue consideration, will not estop the 
 injured party even at law. Boherts v. 
 Eastern Counties By. Co., 1 F. & F. 460; 
 Zee V. Lancashire & Torlcshire By. Oo., L. 
 R. 6 Ch. App. 537. 
 
 ACCOUNT, ACTION OF. An action 
 which lies against a party to compel him 
 
8 
 
 A.CCOUNTANT TO THE CROWN.— ACCRUER, CLAUSE OF. 
 
 Account, Action of* — {Gontmued.) 
 to render an account to another with 
 whom he has had transactions ; and the 
 writ by which this action was commenced 
 was thence termed a writ of account. F. 
 N. B. 116 to 119 ; Co. Litt. 173 a. From 
 the greater facilities, however, which are 
 afforded by the courts of equity in taking 
 an account of profits or receipts, the ac- 
 tion of account at law is now seldom 
 resorted to, one of the most recent cases 
 in which it was used being Beer v. Beer, 
 12 C. B. 2. The action may still, how- 
 ever, be brought in a proper case ; for, by 
 the common law, it lies against a baiUfi 
 or receiver; also, against one merchant 
 at the suit of another for not rendering a 
 reasonable account of profits ; and by the 
 Stat. 4 Anne, c. 16, s. 2, 7, it is made to 
 lie by one joint-tenant or tenant in com- 
 mon against the other as bailiff (although 
 not expressly so appointed) for receiving 
 more than comes to his just share or pro- 
 portion. This action as between mer- 
 chants and merchants was an exception 
 to the statute of limitations (21 Jac. c. 
 16, B. 3), but since the M. L. A. Act, 
 1856 (19 & 20 Vict. c. 97, s. 9), it is no 
 longer so, the limit for bringing the 
 action being now six years in aU cases. 
 
 The equitable jurisdiction in account 
 applies in the following cases : (1) Where 
 a principal asks for an account against 
 his agent, there existing in this case a 
 fiduciary relation between the parties 
 {Mackenzie v. Johnston, 4 Mad. 373), but 
 not in the converse case of agent against 
 principal. Padwich v. Stanley, 9 Hare, 
 637. (3) Where there are mutual accounts 
 between plaintiff and defendant, i. e., 
 when each of two parties has both received 
 and paid on the other's account. Phillips 
 V. PhMips, 9 Hare, 471. And (3) where 
 the accounts are of a very complicated 
 character, and therefore not admitting 
 of being examined on a trial at Nisi 
 Prius. O'Connor v. Spaight, 1 Sch. & 
 Lef. 305. 
 
 ACCOUNTANT TO THE CROWN. 
 
 One who receives money for the Crown, 
 and is accountable therefor. The Crown 
 has a hen upon the lands (other than the 
 copyhold lands) of the accountant for any 
 moneys he may misapply or become 
 chargeable with, and such hen attaches 
 as from the time he becomes such account- 
 ant, and continues to attach, even as 
 against purchasers of the lands without 
 notice. Goxhead's Case, F. Moore, 136. 
 See title Ckowh Debts. 
 
 ACCOUNTANT-GBNEEAL. An offi- 
 cer of the Court of Chancery, appointed 
 by the statute, 13 Geo. 1, c. 33, out who 
 has since been superseded by an officer 
 called the Paymaster-Greneral of England, 
 under the Chancery Funds Act, 1873 (35 
 & 36 Vict. c. 44), and the Chancery Fund 
 Rules, 1873, which came into operation 
 on the 7th January, 1873. 
 
 See title Patmastbk-Q-enekai. 
 
 ACCOUNTS CURRENT. Running ac- 
 covmts or open accounts. 
 
 ACCOUNT STATED. This is nothing 
 more than the admission of a balance due 
 from one party to another ; and that bal- 
 ance being due there is a debt ; and the 
 statement of the account implies a prom- 
 ise in law to pay the debt shown by the 
 balance. For an account stated, it is 
 requisite that a sum certain should be due 
 in certainty (Hughss v. Thorpe, 5 M. & W. 
 656) ; but the sum need not be payable 
 in presenti. Wheatley v. Williams, 1 M. & 
 W. 533. The account must have been 
 stated to the creditor himself or his agent, 
 and is not sufficient if made to a stranger. 
 Tucker v. Bcurrow, 7 B. & C. 633. The 
 statement may be in vn-iting or by word 
 of mouth (Smgleton v. Ba/rrett, 3 C. & J. 
 368) ; an I. O. U. is evidence of an ac- 
 count stated. Jacobs v. Fisher, 1 0. B. 
 178. But, to revive debts barred by 
 statute, the account stated must be in 
 writing. 9 Geo. 4, c. 14, s. 1. 
 ■ An account stated is not conclusive, 
 but an error therein may be shown 
 {Thomas v. Hawkes, 8 M. & W. 140) ; also 
 that an item therein is not a valid debt 
 for want of consideration. French v. 
 French, 3 M. & G. 644. It is, however, 
 no objection to a debt that it arose upon 
 a contract which was bad for want of 
 writing within the statute of frauds 
 {Ooching v. Wa/rd, 1 C. B. 858), unless 
 the contract has continued executory. 
 Lord Falmouth v. Thomm, 1 C. & M. 89. 
 
 It is a rule of law that an infant cannot 
 state an account {Trueman v. Burst, 1 T. 
 R. 40) ; upon attaining his age of twenty- 
 one years he may, however, ratify such 
 an account. WUlia/ms v. Moor, 11 M. & 
 W. 256. 
 
 * ACCREDIT. To acknowledge ; used 
 in international law of diplomatic agents. 
 
 ACCRETION. A mode of acquisition 
 by natural law. 
 
 See title Accessio. 
 
 ACCRUER, CLAUSE OF. An express 
 clause frequently occurring in the case of 
 
ACCUMULATIONS. — ACKNOWLEDGMENT OF A DEBT. 
 
 9 
 
 Accruer J Clause of. — (Conimued.) 
 gifts by deed or will to persons as tenants 
 in common, providing that, upon the death 
 of one or more of the beneficiaries, his or 
 their shares shall go to the survivors or 
 survivor. It is a rule of lav7 that there 
 is "no survivorship upon survivorship;" 
 i. e., that the clause of accruer extends 
 only to the original, not also to the aor 
 crued, shares, unless in terms it is ex- 
 pressly made to extend to the latter 
 also, which it customarily is made to do. 
 Pain V. Benson, 3 Atk. 80. 
 
 ACCUMULATIONS. The rule which 
 limits the accumulation of the income of 
 property used to be the rule of perpetui- 
 ties, viz., a life or lives in being, twenty- 
 one years, and (where gestation actually 
 existed) the period of gestation (CMeZZ v. 
 Palmer, 1 CI. & F. 373) ; but, in conse- 
 quence of the supposed abuse of that rule 
 in TheUmson v. Woodford, 4 Ves. 113, and 
 by virtue of the so-called Thellusson Act 
 (39 & 40 Geo. 3, c. 98), the period 
 within which such accumulation may at 
 the present day be lawfully directed is 
 one or other severally, and not two or 
 more together, of the following periods, 
 namely: — 
 
 (1) The. life of the grantor ; 
 
 (3) The term of twenty-one years from 
 the death of such grantor, or 
 (but in the case of a will only) 
 from the death of the testator ; 
 
 (3) The minority or minorities of any 
 
 life or lives in being, or in ventre, 
 at the death of sucTi grantor or 
 of such testator (as the case may 
 
 be); ... , 
 
 (4) The minority or minorities of any 
 
 person or persons who, under the 
 deed or will (as the case may 
 be), is entitled to the income, or 
 rather would, if of full age, and 
 but for the direction to accumu- 
 late, be entitled thereto. 
 
 ACCUMUIATITE JUDGMENT. The 
 
 passing distinct sentences for two or more 
 distinct ofienses. By the common law 
 such a judgment could only be given in 
 cases of misdemeanors, and not upon 
 convictions for felony, the party attainted 
 of felony becoming thenceforth dead in 
 law. Latterly, however, by stat. 7 & 8 
 Geo. 4, c. 38, s. 10, the court was empow- 
 ered to pass a second sentence, to com- 
 mence after the expiration of the first, in 
 a case of felony ; and under the criminal 
 statutes at present in force (34 & 35 
 Vict.) such accumulative punishments 
 
 Accumulative Judgment. — (Cont'd.) 
 are in general use, not exceeding three 
 in all. 
 
 See titles Pbkjuby ; Labceny. 
 
 ♦ACCUSATION. A charge against a 
 person for the commission of a crime or 
 misdemeanor. 
 
 ACCUSED. The generic name for the 
 defendant in a criminal case, and is more 
 appropriate than either prisoner or de- 
 fendant. Sex V. M''Naughten, 1 C. & K. 
 181. 
 
 AC ETIAM BILLJE. The ac eUam 
 clause was a form or fiction of law adopted 
 first in the Queen's Bench, and afterward 
 in the Common Pleas, to give jurisdiction 
 to these courts in actions for ordinary 
 debts. The bill of Middlesex in the 
 Queen's Bench being framed only for 
 actions of trespass; and the statute, 13 
 Car. 3, St. 3, c. 3, having required that 
 the true cause of action should be ex- 
 pressed in the writ or process, the Court 
 of Queen's Bench was in danger of losing 
 its entii'e jurisdiction in matters of debt ; 
 to obviate that result, the ac etiam clause 
 was invented. And some few years after- 
 ward, North, C. J., directed that in the 
 Common Pleas the Hke fiction should be 
 added to the usual complaint of breaking 
 the plaintiflE's close. But since the Uni- 
 formity of Process Act (3 Will. 4, c. 39) 
 the necessity for this fiction has ceased. 
 
 ♦ACKNOWLEDGMENT. The act of 
 
 going before a competent officer and de- 
 claring the execution of a deed. The 
 certificate of the officer that it has been 
 so acknowledged. 
 
 ACKNOWLEDGMENT MONET. A 
 
 sum of money paid by copyhold tenants 
 in some parts of England on the deaths 
 of their landlords as an acknowledgment 
 of their new lords. It is the laudemium, 
 or Icmdativum of Roman law, being so- 
 called a laudando domino. Leominster 
 used to be an instance of it, see Cowel ; 
 but there is no trace of it at Leominster 
 at the present day. The author is not 
 aware of any district in England in which 
 it is now payable. The payment of fines 
 by copyhold tenants is, however, an 
 analogous payment. 
 
 ACKNOWLEDGMENT OF A DEBT. 
 
 This consists in the admission that a debt 
 is owing. Its eflect upon a debt not yet 
 barred by the Statute of Limitations is to 
 cause the statutory period to commence 
 running anew. The acknowledgment 
 
10' AOKNOWLEDaMENT OF MARRIED WOMEN. — ACT OF GOD. 
 
 Acknowledgment of a Debt.— (Coraif'i.) 
 must be in writing under Lord Tenter- 
 den's Act (9 Geo. 4, c. 14), s. 1, and must 
 be addressed to the creditor, or, aembh, 
 his agent {Fuller v. Recknan, 36 Beav. 614) ; 
 it may be signed either by the debtor 
 himself or his agent (19 and 20 Vict., c. 97, 
 s. 13). The acknowledgment, in order to 
 be sufficient, must involve a promise to 
 pay {Tanner v. Smart, 6 B. & 0. 602) ; 
 therefore the effect of a sufficient acknowl- 
 edgment of a debt already actually barred 
 is the same as the acknowledgment of a 
 debt not yet barred, i. e., the time will 
 run afresh from the last acknowledg- 
 ment. 
 
 ACKNOWLEDGMENT OP MARRIED 
 WOMEN: See titles Deed Acknowl- 
 edged ; Fine and Common Reootbbt. 
 
 ACKNOWLEDGMENT OF TITLE. 
 
 Under the stat. 3 & 4 Will. 4, c. 27, s 14, 
 a written acknowledgment of the title of 
 a person entitled to any land, when given 
 to him or his agent, and signed by the 
 party in po.ssession or in receipt of the 
 rents and profits of the lands, has the ef- 
 fect of rendering such possession or re- 
 ceipt that of the person whose title is 
 acknowledged ; and the title of the latter 
 to make an entry or to bring an action 
 for the recovery of the lands shall be 
 deemed to accrue at the date of such ac- 
 knowledgment for the purpose of saving 
 the Statute of Limitations. 
 
 ACQUIESCENCE. Where a person 
 having a full knowledge of the facts 
 (Eamsden v. Dyson, 1 H. L. C. 129) neg- 
 lects to dispute the right of another, he is 
 said to acquiesce in such right. The efEect 
 of such acquiescence is a species of estop- 
 pel hy conduct. See titles Estoppel and 
 Waiver. 
 
 *ACQUIENTANDIS PLEGIIS. A 
 
 writ of justices for a surety against a cred- 
 itor who refuses to release him after the 
 debt has been satisfied. 
 
 ACQUITTAL. This word has two 
 meanings. 1. It signifies to be free from 
 entries and molestations of a superior 
 lord for services issuing out of lands. 3. 
 It signifies a deliverance or setting free 
 of a person from a charge or suspicion 
 of guilt. 
 
 ACQUITTANCE. A discharge in writ- 
 ing of a sum of money or other duty. 
 Such a discharge, unless it is by deed, 
 is not pleadable, neither is it conclusive 
 as evidence, for it may be shown to have 
 
 Acquittance. — ( Continued.) 
 been given through mistake. A duly 
 authorized agent may sign an acquittance 
 so as to bind his principal. 
 
 *ACT IN PAIS. An act done out of 
 court and not a matter of record. See 
 2 BI. Com. 294. 
 
 . ACT OF BANKRUPTCY. This phrase 
 denotes any one of the various grounds 
 upon which a debtor may be adjudicated 
 a bankmpt. Under the English Bank- 
 ruptcy Act, 1869, s. 6, these acts of bank- 
 ruptcy are the following: — 
 
 (1) A general conveyance or assign- 
 
 ment by the debtor in trust for 
 his creditors; ♦ 
 
 (2) A fraudulent conveyance or trans- 
 
 fer by the debtor of the whole 
 or part of his property; 
 
 (3) The debtor's, having done any of 
 
 the f oUovsring things with intent 
 to defeat or delay his creditors, 
 ,namely : 
 
 (a) Departed out of England; 
 
 (b) Remained out of England; 
 
 (c) Being a trader, departed from 
 
 his dwelling-house; 
 
 (d) Begun to keep house; or, 
 
 (e) Suffered himself to be outlawed ; 
 
 (4) The debtor's having filed in court 
 
 a declaration of his inability to 
 pay; 
 
 (5) The levying of an execution for 
 
 not less than 50Z. against the 
 d.ebtor by seizure and sale of his 
 goods ; 
 
 (6) The debtor's having neglected, if 
 
 a trader, for seven days, and if 
 not a trader, for twenty-one 
 days, after service thereof, to 
 pay or to secure or compound 
 for the amount (not being an' 
 amount under 50/.) demanded 
 on the debtor's summons of the 
 petitioning creditor. 
 See United States Bankrupt Act of 
 1867, as amended 1874. 
 
 ACT OF GOD. A pious phrase for 
 an inevitable accident. No one is to be 
 prejudiced by the act of Qod. But when 
 a debtor has agreed to an alternative 
 obligation, and one of the alternatives 
 becomes impossible by the act of God, 
 he is not thereby discharged from doing 
 the other, which remains possible (Barh- 
 worth V. Young, 4 Drew. 1) ; for that is 
 no prejudice to him, and the contrary 
 would be a prejudice to the creditor. 
 See also title Impossibilitt. 
 
ACT OP PARLIAMENT. — ACTION AND SUIT. 
 
 11 
 
 ACT OF PARLIAMENT: See title 
 Statute. 
 
 ACTES. In French law, denotes doc- 
 uments, e. g., les aetes de I' Stat civil — 
 public documents. Compare the use of 
 acta in Roman law, and the phrase Acts 
 of Parliament in English law. 
 
 ACTES DE DECES. In French law, 
 are the certifica,tes of death, which are 
 required to be drawn up before any one 
 may be buried. Aiiaune inhumation ne 
 serafaite sans une autorisation de V offieier 
 de V etat ciml. — Code Nap. i. 2-4. 
 
 ACTES DE MARIAGE. In French 
 law, are the marriage certificates, and 
 contain names, professions, ages, and 
 places of birth and domicile of the two 
 persons marrying, and of their parents ; 
 also the consent of these latter, and the 
 mutual agreements of the intended hus- 
 band and wife to take each the other 
 for better and worse, together with the 
 usual attestations. 
 
 ACTES DE NAISSANCE. In French 
 law, denote the certificates of birth, and 
 must contain the day,^ hour, and place 
 of birth, together witli the sex and in- 
 tended Christian name of the child, and 
 the names of the parents and of the wit- 
 nesses. 
 
 *ACTIO IN PERSONAM. An action 
 against the person founded on personal 
 liability. 
 
 *ACTIO IN REM. An action against 
 a thing out of which satisfaction of a 
 claim is sought. 1 Kent, Com. 373, 367 ; 
 3 id. 196. 
 
 ACTIO NON ACCRETIT INFRA SEX 
 
 ANNOS. In the times of Latin plead- 
 ing, this was the phrase by which a 
 defendant pleaded the statute of limita- 
 tions to an action of assumpsit or on other 
 simple contract, six years being the period 
 limited for bringing the action. 
 
 ACTION AND SUIT. This is defined 
 as the right of recovering in a court of 
 justice what is due or owing to oneself 
 \ms persequendi in judieio quod sibi debe- 
 twr). 
 
 All actions arise either out of contract 
 or out of tort ; if a proceeding originates 
 put of a crime it is not (in English law, 
 at any rate) an action, but a prosecution. 
 The varieties of the several actions are 
 the following: — 
 
 Action and Suit. — (Continued.) 
 I. On contract, — 
 
 (1) Covenant, being on a deed alone ; 
 (3) Assumpsit, — being on a simple 
 contract only ; 
 
 (3) Debt, — being indifferently on a 
 
 deed or a simple contract : 
 
 (4) Scire facias, — being on a judg- 
 
 ment; 
 
 (5) Account; and 
 
 (6) Annuity. 
 n. On tort, — 
 
 (1) Trespass, — being either 
 
 (a) Trespass quare clauswm /regit, 
 
 — to real property; 
 (5) Trespass de lonis asportatis, — 
 to personal property ; 
 
 (2) Case, — 
 (8) Trover,— 
 
 (4) Detinue, — and 
 
 (5) Replevin. 
 
 For a particular explanation of each of 
 these forms of action, see the respective 
 titles. 
 
 There were also a numerous group of 
 actions called real and mixed actions, 
 but all of these, saving ejectment only, 
 have been abolished by the statute 3 & 
 4 Will. 4, c. 37, s. 36, and the C. L. P. 
 Acts, 1852, 1854, and 1860. 
 
 There are certain general principles 
 that are applicable to all actions and suits. 
 Thus, first, it is necesssuy before com- 
 mencing an action to see that the cause 
 of action is complete, and, therefore, in 
 the case of payments due against a cer- 
 tain day to see that the day has arrived 
 and is over, and in the case of payments to 
 become due only upon the performance 
 of some condition to see that such condi- 
 tion has been performed, otherwise, If 
 there was no cause of action at the date 
 of the issuing of the writ of summons 
 whereby the action is commenced, the 
 plaintiff must necessarily fail. Secondly, 
 it is necessary, especially in actions grow- 
 ing out of contracts, to see that the plain- 
 tiff has that privity which is necessary to 
 support the action and as against the par- 
 ticular defendant, otherwise the action 
 will be demurrable. Lumley v. Oye, 2 E. 
 & E. 216. Thirdly, in the case of torts, 
 the ground of action must be what the 
 law regards as an injuria and not a dam^ 
 rattro merely. BteoemonY. Newnham, HG. 
 B. 385; Actm v. Blundell, 13 M. & W. 
 334. Fourthly, that the wrongful act 
 does not amount to a felony. Welloch v. 
 Oonstantine, 3. H. & C. 146. And, fifth- 
 ly, in case of the injuria being the breach 
 of a pubUo duty, private damage must 
 
12 
 
 ACTIONES NOMINATE — ADMINISTRATION. 
 
 Action and Suit. — (Oontimied.) 
 have arisen to the plaintifl from it. 
 Kearns v. Gordwainers Co., 6 C. B. 388. 
 See also following titles, Joindbr of 
 Oausbs ; Consolidation Rule ; 
 Parties ; Ckoss Actions, etc. 
 
 *ACTIONES NOMINATE. Writs for 
 which there were precedents in the Eng- 
 lish Chancery prior to 13 Edw. I, c. 34. 
 
 AD DAMNUM. That part of the dec- 
 laration which commences with the words 
 ''to the damage;" &c., is termed the 
 breach, and is thence sometimes called 
 Vii&'bx&aah. ad damnum. Ch. on Pleading, 
 363, 6th ed. 
 
 ADDITION. This term is used in law 
 to denote the address and profession of 
 the party to, or of any deponent in an 
 action. The greatest accuracy in the 
 addition is often necessary, e. g., in the 
 affidavit which is to accompany the reg- 
 istration of a biU of sale. 
 
 ADELING, otherwise ATHELING. An 
 
 expression which was used to designate 
 among the Saxons their chief nobility, 
 and pre-eminently the eldest son of the 
 king. Spelman. 
 
 ADEMPTION. The taking away. 
 For the application of this word to lega- 
 cies and devises, and for the English and 
 Roman law of ademption of legacies, see 
 title Lkgacibs and Devises. 
 
 AD INQUIRENDUM. A judicial writ 
 commanding inquiry to be made of any 
 thing relating to a cause depending in 
 the King's courts. It is granted upon 
 many occasions for the better execution 
 o'f justice. 
 
 See title Wbit of Inquiry. 
 
 ADJOURNMENT. A putting off until 
 another time or place. Thus, a court may 
 be adjourned; Parliament is adjourned; 
 the further consideration or hearing is 
 adjourned ; and in consequence of such 
 adjournment, the parties and witnesses 
 have permission to forbear their attend- 
 ance during the period of adjournment. 
 See as to Adjournment Days, CTieetlumn, v. 
 SturUvint, 13 M. & W. 615. 
 
 ADJUDICATION. A giving of judg- 
 ment. In Roman Law, the adjudicaUo 
 was the fourth of the four formulae in use 
 during the period of the formulary pro- 
 cedure (177 B. c. till 386 A. D.). It occur- 
 red in three actions only, viz., Finium 
 regwndorwm, Corwmuni dwidundo, and 
 
 *AD JURA REGtIS. A writ brought 
 by the King's clerk, presented to a living, 
 against those who endeavor to eject him, 
 to the prejudice of the King's title. Ja- 
 cob's Diet. ; Reg. of Writs, 61. 
 
 ADJUSTMENT. The ratable distri- 
 bution of a loss which is matter for gen- 
 eral average. See General Average. 
 In an adjustment, the rule now adopted 
 in England differs according as, -:— 
 
 (1) The ship arrives at its port of des- 
 tination, in which case the selling price 
 of the goods is taken; or 
 
 (3) The ship puts back to the port of 
 lading, in which case the invoice price of 
 the goods is taken. 
 
 But in either case the goods sacrificed 
 as well as the goods saved are liable to 
 contribute toward making good the loss, 
 it being obvious that the owners of the 
 goods saciiflced are not to be on a better 
 footing than the owners of the goods 
 saved. Sm. M. Law, 395. 
 
 See title General Average. 
 
 *AD IITEW. For the suit; as a 
 guardian ad litem. 
 
 ADMEASUREMENT. A writ which 
 lay against those who usurped more than 
 their share. It used to lie in two cases, 
 first, for admeasurement of dower, and 
 secondly, for admeasurement of pasture. 
 In the former case, it was brought by the 
 heir against the widow of a deceased, 
 who withheld from such heir, of his 
 guardian, more land in respect of her 
 dower than she was justly entitled to, in 
 which case the heir was to be restored to 
 the overplus. In the second case, it lay 
 between those who had common of pas- 
 ture appendant to their freehold, or com- 
 mon by vicinage, when any one or more 
 surcharged the common with more cattle 
 than he or they ought to have thereon. 
 F. N. B. 125, 148; Les Termes de la 
 Ley. 
 
 ADMINICULUM. An aid or support 
 to something else, whether a right or tJie 
 evidence of one. It is principally used 
 to designate evidence adduced in aid or 
 support of other evidence, which with- 
 out it is imperfect. 
 
 ADMINISTRATION. The discharg- 
 ing of some duty or office, usually that 
 of getting in and distributing the assets 
 of a deceased person. ' 
 
 See titles Administration of Assets; 
 Administrator. 
 
ADMINISTRATION, GRANT OF.— ADMINISTRATION OF ASSETS. 13 
 
 ADMINISTRATION, GRANT OF. 
 
 The administration of the personal estate 
 of a deceased intestate belonged, anciently, 
 to the sovereign as parens patricB, or to 
 certain lords of manors under a general 
 grant from him, and afterward to the 
 ordinary, who by the statute of West- 
 minster 3 (13 Edw. 1), c. 19, was re- 
 quired to pay the debts of the deceased, 
 and who, at a still later period by the 
 Stat. 31 Edw. 3, st. 1, c. 11, was required 
 to depute the administration to the next 
 of kin of the intestate. Thus stood 
 administration until the Court of Probate 
 Act (1857), 30 & 21 Vict. c. 77, whereby 
 the power of granting admitiistration 
 was transferred to that court from the 
 ecclesiastics. 
 
 In the grant of letters of administration, 
 there are certain relations of the deceased 
 who are considered to have a preferable 
 right. Thus, the husband has an abso- 
 lute right to administer to his wife, and 
 the widow has a moral right (which the 
 court generally recognizes) to administer 
 to her husband. When there is no hus- 
 band or widow, the right to administer 
 belongs to the next of Mn according to 
 their proximity in relationship, the right 
 to the beneficial interest under the Stat- 
 ute of Distributions generally regulating 
 the right to the grant of administration ; 
 and in the case of there being several 
 next of kin in equal proximity, he whom 
 the majority shall elect in general admin- 
 isters. A creditor may also administer ; 
 and the court may even appoint to the 
 administration a person entirely without 
 interest, in which latter case the grant is 
 merely ad colligendum. 
 
 There are various species of adminis- 
 tration, namely: 
 
 (1) A general administration — when 
 the deceased is wholly intestate ; 
 
 (3) Administration de bonis' non — as 
 upon the death of a sole executor after 
 probate inte8tate,«or upon the death of a 
 sole administrator ; 
 
 (3) Administration dv/rante minoritate 
 — as where the executor appointed by 
 the will being a sole executor is a minor ; 
 
 (4) Administration pendente lite — as 
 where any suit touching the validity of 
 the will is pending, and generally where- 
 ever the court of chancery would appoint 
 a receiver of the estate ; 
 
 (5) Administration <ZMram<e aJs«re*ifls — 
 as where a sole executor is out of the 
 kingdom, and either (a) by the common 
 law, before probate, or (6) by stat. 38 
 G-eo. 3, c. 87, after probate ; and 
 
 Administration, Grant (ii.—{0(mVd.) 
 
 (6) Administration cum testamento an- 
 nexo — as where either a sole executor 
 dies without having proved the will, or a 
 sole or surviving executor dies intestate. 
 
 There are also various other adminis- 
 trations of a limited or temporary kind, e. 
 g., until the vriU can be proved, or until 
 the executor attains a certain age other 
 than majority, and so forth. 
 
 Under the stat. 30 & 31 Vict. c. 77, 
 s . 46, the district registrars of the court 
 of probate may grant probate ; and under 
 31 & 33 Vict. c. 95, s. 10, the county 
 court may make the grant. 
 
 The duty on administrations is regu- 
 lated by the stats. 55 Geo. 3, c. 184 ; 33 
 Vict. c. 15, and 27 & 38 Vict. c. 56; 
 and the stamp which is payable upon the 
 bond commonly given by an administra- 
 tor is now regulated by the Stamp Act, 
 1870 (33 & 34 Vict. c. 97). 
 
 ADMINISTRATION OF ASSETS. 
 
 The court of chancery after the grant of 
 probate or administration undertakes to 
 apply the assets of the deceased person ia 
 payment of aU. his debts and legacies in 
 their due and proper order. At the pres- 
 ent day property of every kind or sort is 
 available to pay the debts, but there is a 
 certain order observed by the court in its 
 application of the different properties for 
 that purpose, the following being the 
 usual order: 
 
 (1) The general, personal estate not 
 bequeathed at all, or by way of 
 residue only; 
 (3) Real estate devised for the pay- 
 ment of debts ; 
 
 (3) Real estate descended ; 
 
 (4) Specific (including residuary) de- 
 
 vises, and specific and general 
 legacies, all being charged with 
 the payment of debts ; 
 
 (5) General pecuniary legacies and re- 
 
 siduary devises, neither being 
 charged (Sensman v. Fryer, L. 
 R. 3 Ch. App. 430, extending 
 Tombs V. Boeh, 2 Coll. 502) ; 
 
 (6) Specific (not including residuary') 
 
 devises and specific legacies, 
 neither being charged ; and 
 
 (7) Real or personal estate appointed 
 
 by deceased person under a gen- 
 eral power. 
 . In the application of these properties 
 in or toward payment of debts in a due 
 course of administration, the following is 
 the order of priority in which different 
 classes of creditors rank : 
 
14 
 
 ADMIRALTY, COURT -OP.— ADMITTANCE. 
 
 (3) 
 
 (3) 
 
 (4) 
 (5) 
 
 All placed upon 
 a level by virtue 
 or in consequence 
 of the statute 33 & 
 83 Vict. c. 46; 
 
 Administration of Assets. — {OmPd.) 
 (1) Debts due to the Crown by record 
 or specialty ; 
 Legacy and succession duties, and 
 other debts to which particular 
 statutes assign priority ; 
 Judgment debts duly registered; 
 Recognizances and statutes ; 
 Specialty con-' 
 tract debts; 
 simple con- 
 tract debts; 
 unregistered 
 judgments ; 
 arrears of 
 rent-service ; , 
 (6) Voluntary bonds in hands of vol- 
 unteers. 
 Previously to the stat. 33 & 33 Vict, 
 c. 46, specialty contract debts and arrears 
 of rent-service were entitled to priority 
 over simple contract debts and unregis- 
 tered judgments in the distribution of 
 what were termed legal assets, but were 
 never so entitled in the distribution of 
 equitable assets; and the effect of the 
 Stat. 33 & 83 Vict. c. 46, appears to be 
 to abolish altogether the distinction 
 between legal and equitable assets in 
 administrations. 
 
 See titles Lbgai Assets ; Eq-uitablb 
 Assets; and MAKSHALLtNO of 
 Assists. 
 
 ADMIRALTY, COURT OF. For the 
 
 origin of this court, see title Coukts of 
 Justice. The general jurisdiction of the 
 Supreme Court is regulated at the present 
 day by the stats. 34 & 35 Vict. c. 10, 
 and 36 Vict. c. 34; and jurisdiction in 
 Admiralty causes was conferred upon the 
 County Court by the stat. 31 & 33 Vict, 
 c. 71. 
 
 The Court of Admiralty was thrown 
 open to practitioners by the statutes 33 
 & 33 Vict. c. 6; but the modes of 
 practice, together with the efEects of a 
 judgment in that court, are of a peculiar 
 nature, partaking largely of the rules of 
 the civil law; thus an objection to the 
 jurisdiction of the court may be taken at 
 any stage of the proceedings {TTie Mary 
 Arm, 34 L. J. [Adm.] 73), and the party 
 is not prejudiced in taking that objection 
 by appearing {The Mleanor, 33 L. J. 
 [Adm.] 19). The judgments of the court 
 are chiefly in rem, and bind all the world 
 as well as the parties to the action. In 
 the United States, original admiralty 
 jurisdiction is in the United States Dis- 
 trict Court. As to the extent of the 
 
 Admiralty, Court of. — {Omitmued.) 
 jurisdiction, see 3 Pars. Marit. Law, 
 508. 
 
 See titles Collision ; Seamen ; Sal- 
 vage; Pbize; Shipping. 
 
 ADMISSIBILITY OF EVIDENCE. 
 
 This phrase denotes the quality of matters 
 adduced in evidence^ according to which 
 they are or not receivable, i. «., admissi- 
 ble as evidence — a question for the judge 
 or court to determine. It is commonly 
 opposed to the weight of the evidence once 
 it has been admitted, the wjeight being 
 for the jury or for the judge sitting as a 
 jury. 
 
 See title Evidence. 
 
 ADMISSION. This word denotes the 
 ordinary's signification of his approval of 
 the clerk presentee of a living; it some- 
 times includes both approval and institu- 
 tion. Co. Litt. 844 a. 
 
 See also title Attoknet. 
 
 ADMISSION OF DOCUMENTS. Un- 
 der the C. L. P. Act, 1853, s. 117, either 
 party may call on the other by notice to 
 admit any document, saving all just ex- 
 ceptions ; and in case of refusal or neglect 
 to admit, the costs of proving the docu- 
 ment are visited on the party refusing 
 (without just reason), no matter what 
 shall be the result of the action. 
 See also title Notice to Admit. 
 
 ADMISSIONS. In the law of evidence 
 these are either by word of mouth (Male 
 V. Jahle, 3 C. & K. 709), or by conduct 
 (_Pieha/rd v. Sears, 6 A. & E. 469), or by 
 the assumption of a particular office or 
 character (PeaeoeJe v. Sizrris, 10 East, 104), 
 or by writing under hand, unless stated 
 to be "without prejudice" (Paddock v. 
 Forester, 3 Scott, 734), or by deed; as to 
 all which see title Estoppel. 
 
 But the word "admissions" is more 
 commonly used to denote the mutual con- 
 cessions which the parties to an action or 
 suit make in the course of their pleadings, 
 and the effect of which is to narrow the 
 area of facts or allegations requiring to be 
 proved by evidence. These admissions 
 are generally introduced in the answers 
 to bills of complaint by the phrase " we 
 admit," or "we and each of us admit," 
 and then follows a statement in the words 
 of the bill of the matters so intended to 
 be admitted. 
 
 See title Evidence. 
 
 ADMITTANCE : See title Copyhold. 
 
ADOPTION. — ADVANCEMENT. 
 
 15 
 
 ADOPTION. In French law, is per- 
 mitted to persons of either sex, aged fifty 
 years, and being at the least fifteen years 
 older than the persons whom they adopt ; 
 which latter persons being of full age, 
 must be either, (1.), persons to whom the 
 adoptive parent has rendered assistance 
 during minority and for six years at least 
 without interruption ; or, (2.), persons to 
 whom the adoptive parent is indebted for 
 his rescue from fire, shipwreck, or battle. 
 This adoption leaves intact the rights of 
 the child in respect of his natural parents, 
 being in fact the adoption of Roman law, 
 in time of Justinian. In the United 
 States adoption is regulated by the stat- 
 utes of the several States. Bouv. Diet. 
 
 AD QUOD DAMNUM. A writ so 
 called, which ought to have been issued 
 before the King granted certain liberties, 
 as a fair, market, etc., which might hap- 
 pen to be prejudicial to others. The 
 writ directs the sheriff to inquire what 
 ■damage it might do for the King to grant 
 such fair or market. It was also formerly 
 in use for obtaining a right to alter or 
 divert the course of an old road, or to 
 make a new one (F. N. B. 221, et seq.; 
 Les Termes de la Ley) ; but it is the opin- 
 ion of the editor of Wilhams' Saunders' 
 Bep. vol. ii., ed. of 1871, p. 484, n. (d), 
 that this latter use of the writ has been 
 virtually done away with. 
 
 *ADULT. One of full age. In civil 
 law, a male who has reached the ■ age of 
 fourteen ; a female who has reached the 
 age of twelve. In common law, one who 
 has attained the age of twenty-one. 
 
 AD TERMINUM QUI PE^ETEEnT. 
 
 A writ of entry that lay for the lessor 
 and his heirs when a lease had been made 
 of lands or tenements for the term of life 
 or years, and after the term was expired 
 the lands were withheld from the lessor 
 by the tenant or other person possessing 
 "the same. Cunningham, F. N. B. 201. 
 This writ was abolished by the Act 3 & 
 4 Wm. 4, c. 27, s. 38. 
 
 ADULTEEATION. This phrase is 
 commonly applied to the offense of mix- 
 ing up with food or drink intended to be 
 sold, other matters of an inferior quality, 
 -and generally of a more or less deleteri- 
 ous character. The principal statute 
 npon the subject is the 35 & 36 Vict. c. 
 74, which incorporates the 23 & 24 Vict. 
 «. 84, and also (The Pharmacy Act, 
 1868) 31 & 32 Vict. c. 131. 
 
 ADULTEET OE ADVOWTEY {Adul- 
 te/fiami). The sin of incontinence by 
 married persons. The crime of adultery 
 is sometimes distinguished into single and 
 double adultery. Single adultery is the 
 crime of ilhcit intercourse between two 
 persona, one only of whom is married. 
 Double adultery is the crime of illicit 
 intercourse between two persons, both of 
 whom are married (Cowel). This offense 
 is of a tortious and not of a criminal "na- 
 ture (Mordaunt v. Monareiff, 1874). For 
 adultery on the part of a wife, or for 
 adultery combined with desertion or 
 cruelty on the part of a husband, the court 
 of divorce will grant a dissolution of the 
 marriage under the stat. 30 & 21 Vict, 
 c. 87. 
 
 ADVANCEMENT. This is a well- 
 known term, both in conveyancing and 
 in equity law. In marriage settlements, 
 a power of advancement is commonly 
 given to the trustees, that is to say, a 
 power in them to raise some portion (not 
 as a rule to exceed one-half part) of the 
 capital moneys to which each child of the 
 marriage is either actually or contingently 
 entitled under the settlement for his or 
 her advancement in the world ; that is to 
 say, for his or her apprenticeship in a pro- 
 fession or trade, or for his or her bringing 
 out in society, or (if intended for the 
 church) for his education at one of the 
 universities of Oxford or Cambridge. 
 
 In Equity, the term has a similar mean- 
 ing, but a somewhat different application. 
 Thus, it being a rule of Courts of Equity, 
 that where a person purchases an estate 
 or stock, and takes the conveyance or 
 assignment thereof in the name of a third 
 person, such third person is intended to 
 be, and is construed as being, a trustee 
 only for the purchaser. — An exception 
 to that rule is admitted in the case of 
 such third person being a person for whom 
 the purchaser was under an obhgation to 
 provide, and for whom he has not as yet 
 made a provision, and the conveyance or 
 assignment which is made in this latter 
 case is taken to be for the benefit of the 
 grantee or assignee in discharge of the 
 obligation of the purchaser. The pre- 
 sumption of advancement is raised in 
 favor of the following persons : — 
 
 (1) A legitimate child {Sidmowth v. 
 
 Sidmouth, 3 Beav. 447) ; 
 
 (2) An Ulegitimate child {Beckford v. 
 Bechford, Lofft. 390) ; 
 
 (8) A grandchild (father being dead) 
 {mrand v. Bamer, Ch. Ca. 26) ; 
 
16 
 
 AD YENTREM mSPICIENDUM.— ADVOWSON. 
 
 AdTancement. — ( OonUrmed.) 
 
 (4) A wife {Drea y. Mwrtin, 3 H. & 
 M. 130) ; 
 
 (5) A wife's nephew {Ov/rrcmtY. Jago, 
 
 1 CoU. Ch. Oa. 361) ; 
 But the presumption has not hitherto 
 been extended to. the following cases : — 
 (1) An illegitimate grandchild {Tiuiker 
 
 V. Bwrrow, 3 H. & M. 515) ; 
 (3) A kept woman. SidUr v. Kidder, 
 
 10 Ves. 360. 
 In all these cases the presumption of 
 advancement arises or not from a regard 
 purely to the relationship of the parties ; 
 the presumption may be rebutted or cor- 
 roborated by extrinsic or parol evidence. 
 
 AD VENTREM INSPICIENDUM. A 
 
 writ which lies for the heir presumptive 
 to an estate, to examine the woman who 
 says she is with child, and who is sus- 
 pected to feign being so, with the view 
 of producing a supposititious heir to the 
 estate. , Cowel; Reg. Orig. 337. 
 
 ADVERSE CLAIM. Where the sher- 
 iff, in levying an execution upon the goods 
 of a debtor, finds that some third person 
 claims the goods as his own, he may have 
 an interpleader summons requiring the 
 execution creditor and such third person 
 to settle the right to the goods between 
 them; so also, where the seller of goods 
 attempts to stop them in t/rarmtu, and 
 the buyer insists upon having the goods 
 delivered to him, the wharfinger or other 
 person in custody of the goods may have 
 an interpleader summons requiring the 
 two parties to litigate between themselves 
 their adverse claims. 
 
 See title Intbbplbabbr. 
 
 *ADTERSE ENJOYMENT. The pos- 
 session or exercise of an easement under 
 claim of right against the owner of land. 
 3 Wash. Real Prop. 43. 
 
 ADVERSE POSSESSION. The en- 
 joyment of an estate in lands under asser- 
 tion or color of right. The possession of 
 the tenant for life under a settlement is 
 consistent with the right of the remainder- 
 man ; and such tenant may not alter the 
 quality of his possession so as to make the 
 same adverse to the remainderman (Nemo 
 potest Tmita/re causampossessionis suae). On 
 the other hand, the possession of a mort- 
 gagee is adverse to the title of the mort- 
 gagor ; and precisely because it is such, 
 it will mature after twenty years' dura- 
 tion and non-acknowledgment into an 
 absolute and independent legal right. 
 See title Limitations, Statute of. 
 
 ADVERSE WITNESS. This is defined 
 to be a witness whose mind discloses 
 a bias hostile to the party examining him; 
 it is not a witness whose evidence being 
 honestly given, is adverse to the case of 
 the examinant. 
 
 See titles Evidence ; Witnesses. 
 
 ADVERTISEMENTS. Under the stat. 
 24 & 25 Vict. c. 96, s. 103, whosoever 
 shall publicly advertise a reward for the 
 return of any property whatsoever which 
 shall have been lost or stolen, suggesting 
 that no questions will be asked, or ofler- 
 ing to repay to any pawnbroker or other 
 the amount advanced on the security of 
 the property, forfeits the sum of £50 for 
 every such offense, to be recovered by 
 any informant thereof. And the printer 
 and publisher are also liable, but in their 
 case the action is to be commenced within 
 six months, and only after obtaining the 
 sanction of the Attomeiy-General or Solic- 
 itor-General to the institution of the pros- 
 ecution. 
 
 * ADVISEMENT. The consultation or 
 deliberation of a court after argument of 
 a cause and before delivering an opinion. 
 
 ADVOCATES. In the Roman law, 
 and also in those English Courts which 
 have largely moulded themselves upon 
 that law, the persons who imdertake and 
 have the liberty to plead the causes of 
 others are called advocates. Their duties 
 are analogous to those of barristers, and 
 since the recent Acts, which have thrown 
 open to all practitioners the practice in 
 all the various courts, the term "advo- 
 cate" is used interchangeably with, al- 
 though less frequently than, that of bar- 
 rister. In ecclesiastical law, those persons 
 whom we now call patrons of churches, 
 and who reserved to themselves and their 
 heirs a liberty to present to the living on 
 any avoidance, were also called advocati 
 ecclesitB, i. «., defenders of the church 
 (Spelman's AdAioeaPus). So that the orig- 
 inal meaning of advowson was that of a 
 fortress or defense of the church. Pa- 
 trons of churches were also sometimes 
 called advowees or avowees, and the sov- 
 ereign was advowee paramount. 
 
 ADVOWEE : See title Advocates. 
 
 ADVOWSON (ad/Bocatio). The right 
 of presentation to a church or benefice ; 
 and he who has the right to present is 
 called the patron or patronus, sometimes 
 also advocatus, and sometimes defensor. 
 Advowsons are of two kinds : (1) Append- 
 
^STIMATIO CAPITIS. — AFFIDAVIT. 
 
 17 
 
 Ad?owson. — ( Oontinibed.) 
 ant, and (3) in gross. An advowson ap- 
 pendant means an advowson which is, 
 and which from the first has been and 
 ever since continued to be appended or 
 annexed to a manor so that, if the manor 
 were granted to any one the advowson 
 would go with it as incident to the estate. 
 An advowson in gross signifies an advow- 
 son that belongs to a person, but is not 
 annexed to a manor ; so that an advowson 
 appendant may be made an advow- 
 son in gross by severing it by deed 
 of grant from the manor to which it was 
 appendant. Advowsons are also either 
 (1) presentative, (2) coUative, or (3) dona- 
 tive. An advowgon is termed presenta- 
 tive when the patron has the right of 
 presentation to the bishop or ordinary, 
 and also to require of him to institute 
 his clerk, if he finds hiTn qualified. An 
 advowson is termed coUative when the 
 bishop and patron happen to be one and 
 the same person, so that the bishop, not 
 being able to present to himself, performs 
 by one act (which is termed collation) all 
 that is usually done by the separate acts 
 of presentation and institution. An 
 advowson is termed donative when^he 
 king or a subject founds a church or 
 chapel, and does by a siagle donation in 
 writing, place the clerk in possession, 
 without presentation, institution or in- 
 duction (CoVel: Co. Litt. 17 b. & 119 b). 
 Again, advowsons are either advowsons 
 of rectories or advowsons of vicarages; 
 the former having been created in. very 
 early times, almost contemporaneously 
 with the creation of the manor itself : 
 the latter having grown up more gradu- 
 ally, and as a consequence of the monas- 
 teries appropriating to themselves the 
 tithes of the churches, and delegating to 
 a locum tenena (vicar) the duties of the 
 rector. The stipend of the vicar, which 
 was at first precarious and inadequate, 
 was settled at an adequate amount, and 
 also secured to him by the Acts 15 Ric. 3, 
 c. 6, and 4 Hen. 4, c. 12, whence at the 
 present day a vicarage is in general as 
 valuable a living as a rectory is. 
 
 An advowson, being the right of pre- 
 sentation in perpetwwm, as often as a 
 vacancy arises, is considered real estate, 
 while a right of presenting once only, or 
 a single presentation, is considered per- 
 sonal property only. 
 
 .ffiSTIMATIO CAPITIS. This phrase 
 denotes the value or price set upon an 
 individual. In Anglo-Saxon times, when 
 
 Jlstimatio Capitis. — {OontiTmed.) 
 money penalties were the universal pun- 
 ishments of ofienses. King Athelstan, in 
 a parliament held at Exeter, fixed a tari£E 
 of mulcts to be paid pro matimatione capi- 
 Ua, i.e., according to the rank of the 
 party wounded or slain. A like tariff 
 existed in Roman law, "nam, aecundAim 
 gradum dignitatia ntmque Jumeatatim crea- 
 eit aut minuiPwr ceatimaMo injuricB." Just. 
 Inst. iv. 4, 7. 
 
 ETA.T'E PROBANDA. A writ that 
 used formerly to be directed to the sheriff 
 of a county, commanding him to sum- 
 mon twelve men, aa well knights as other 
 honest and lawful men, to be before cer- 
 tain commissioners previously appointed 
 to inquire whether or not the king's 
 tenant, holding in chief by chivalry, was 
 of full age to receive his lands into his 
 own hands. The commission by which 
 the above commissioners were appointed 
 was thence called ' ' The commission pro 
 estate probanda." Cowel; 4 Co. Dig. 139. 
 
 AFFIANCE. To agree to marry, and 
 generally to pledge one's troth or trust. 
 
 AFFIDATIO. A swearing of the 'oath 
 of fidelity or of fealty to one's lord, under 
 whose protection the jmwi-vassal has 
 voluntarily come. 
 
 AFFIDAVIT. A written or printed 
 statement made voluntarily, and verified 
 by oath, for the purpose of being used in 
 a Court of Justice as evidence of facts. 
 In Courts of Law, affidavits are chiefiy 
 used upon summary applications only; 
 but in Courts of Equity, they are used 
 upon all sorts of appUcations, whether 
 formal or summary. 
 
 An affidavit consists of three essential 
 parts: (1) the title, (3) the statement of 
 facts, and (3) the jurat. The affidavit 
 should be entitled in the court in which 
 ft is to be used, and in the cause or mat- 
 ter, or both (as the case may be), in which 
 it is made. The statement of facts should 
 be plain and unequivocal ; the best evi- 
 dence should, as a rule, be adduced, but 
 matters of hearsay, belief or information 
 are not excluded. The affidavit may be 
 sworn either in court or at chambers, or 
 at the office of the Record and Writ Clerks, 
 or before one of the commissioners ap- 
 pointed for that purpose ; and if made in 
 a foreign country, then they may be sworn 
 before the mayor or other magistrate, 
 attested and certified by a notary public. 
 If the affidavit is in a foreign language. 
 
18 
 
 AFFIDAVIT OF MERITS. — AGNATI. 
 
 Affldavit. — ( OonUrmed.) 
 
 it must be accompanied with a verified 
 translation. 
 
 See title Evidence. 
 
 *AFFIDATIT OF MERITS. A sworn 
 statement that the defendant has a good 
 ground of defense to an action, on the 
 merits. 
 
 AFFILIATION: See title Bastabdt. 
 
 AFFINITY. The relationship which 
 marriage occasions between the husband 
 and the blood relations of the wife, and 
 between the wife and the blood relations 
 of the husband. Thus, there is an 
 affinity between the wife and her hus- 
 band's brother, but there is no affinity 
 between the wife's sister and the hus- 
 band's brother, or between the husband's 
 sister and the wife's brother. 
 
 AFFIRMATION. ' This has been sub- 
 stituted for an oath in the case of certaia 
 religionists who object, on grounds of 
 conscience, to take an oath, — e. g., in the 
 case of Quakers, Separatists, and others; 
 and in short, any person objecting to be 
 sworn may make a solemn affirmation 
 instead. (33 & 84 Vict. c. 49 ; 1 Greenl. 
 Ev., § 371). 
 
 See title Evidbnce. 
 
 *ArrORCE THE ASSIZE. Formerly 
 to compel unanimity among jurors who 
 disagree, by confining them without 
 meat and drink, or by adding other 
 jurors to the panel until twelve could be 
 found who would agree. Fleta Bk. 4, c. 
 9, s. 2; Bracton, 185 b, 393 a. 
 
 AFFOREST {afforestwre). To turn 
 ground into a forest (Cowel). When 
 forest ground is turned from forest to 
 other uses, it is said to become disaffor- 
 ested. Tomlins. 
 
 See title Fokbst. 
 
 AFFRAY (from the Fr. effrwyer, to 
 affright). The fighting of two or more 
 persons in some public place to the terror 
 of others; and there must be a stroke 
 given or offered, othei-wise it is no affray, 
 howsoever quarrelsome or threatening 
 the words may be ; and the fighting must 
 also be in public ; for if it be in private, 
 it is no affray, but an assault. The pun- 
 ishment for an affray is fine or imprison- 
 ment, or both. 
 
 * AFFREIGHTMENT. The contract 
 of letting a vessfel. 3 Kent's Com. 301 ; 
 Smith's Merc. Law, 173. 
 
 AGE. Signifies in the law those peri- 
 ods in the lives of persons of both sexes, 
 which enable them to do certain acts 
 which, before they had arrived at those 
 periods, they were prohibited from doing. 
 As for example, a male at the age of 
 twelve years may take the oath of allegi- 
 ance; at fourteen, which is his age of 
 discretion, he may consent to marriage or 
 choose his guardian ; and at twenty-one 
 he may aUen his lands, goods and chattels. 
 A female at nine years of age is dowable ; 
 at twelve may consent to marriage; at 
 fourteen is at years of discretion, and may 
 choose a guardian; and at twenty-one 
 may alien her lands, etc. But the fuU 
 age of either male or female is twenty- 
 one, until which time they are considered 
 as infants (Co. Litt. 78; Cowel). The 
 age of twenty-one years is complete on 
 the first moment of the last day next 
 before the twenty-first anniversary of the 
 birth. 
 
 See title Day. 
 
 * AGE-PRATER. A request in a real 
 action to which an infant is a party, that 
 proceedings may be stayed imtil the 
 infant becomes of age. 3 Bl. Com. 300. 
 
 AGtENT: See title Principal and 
 
 Agent. 
 
 AGENT AND PATIENT. The same 
 person who is the doer of a thing and the 
 party to whom it is done; as when a 
 woman endows herself of part of her 
 husband's possessions, this being the act 
 of herself to herself, makes her agent 
 and patient. Co. Litt. 8, 138 ; Cowel. 
 
 AGGRAVATION (MATTER OF). In 
 the language of pleadings signifies matter 
 which only tends to increase the amount 
 of damage, but which does not concern 
 the right of action itself. Thus, in an 
 action of trespass for chasing sheep, by 
 which the sheep died, the dying of the 
 sheep is matter of aggravation only, and 
 need not be alleged by the plaintiff in his 
 declaration. Steph. on PI. 370, 4th ed. 
 
 AGIST. To take in and feed the cat- 
 tle of strangers for reward ; whence agist- 
 ment is the taking in and feeding of such 
 cattle. 
 
 AGNATI. Sometimes called Adgnati, 
 were those relations of a person, not being 
 of course sui haredea, who connected 
 themselves with him by a male relation- 
 ship all through. They ranked next 
 after the swi haredjes, and next before the 
 Justinian, after numerous ap- 
 
AGREEMENT. — ALIA ENORMIA. 
 
 19 
 
 Aguati* — ( Continued.) 
 proximations, eventually entirely abol- 
 ished all distinctions between agnati and 
 cognati, so that agnati and cognati indiff- 
 erently were the next of kin of a person, 
 or, more properly speaking, his nearest 
 relations. 
 
 See title Next of Kin. 
 
 AGREEMENT : See title Contract. 
 
 AGRICULTURAL CONTRACTS: See 
 
 title Lbasbs. 
 
 AGRICULTURAL FIXTURES: See 
 
 title FrxTDRBS. 
 
 AIDER. This word is commonly used 
 in two senses, 1st, by itself, when it sig- 
 nifies an abettor: See title Aiders and 
 Abettors. 3ndly, in conjunction with 
 the word verdict. Aider by Verdict 
 means curing by verdict. The principle 
 of aider by verdict is thus stated by Mr. 
 Serjeant Williams: " "Where there is any 
 defect, imperfection, or omission in any 
 pleadings, whether in substance or form, 
 which would have been a fatal objection 
 upon demurrer, yet if the issue joined be 
 such as necessarily required on the trial 
 proof of the facts so defectively or imper- 
 fectly stated or omitted, and without 
 which it is not to be presumed that either 
 the judge Would direct the jury to give, 
 or the jury would have given, the verdict, 
 such defect, imperfection or omission is 
 cured by the verdict." See Stennel v. 
 Hogg, 1 Wms. Saund. (ed. 1871), p. 260; 
 Ruikton V. Aspinall, Doug. 679; 1 Sm. 
 L. C. 614. 
 
 AIDERS AND ABETTORS. These 
 are persons who either actually or con- 
 structively are present at the commission 
 of an offense, aiding and abetting or 
 counseling and procuring the same to be 
 done ; they are principals in the second 
 degree. The aider and abettor of high 
 treason is a principal in the first degree, 
 propter odium delicti (3 Inst. 138) ; the 
 aider and abettor of a misdemeanor is 
 also a principal in the first degree, but for 
 a very different reason, namely, the maxim 
 de minimis nan curat lex. Consequently 
 aiders and abettors that are principals in 
 the second degree are only found in the 
 case of felonies, whether at common law 
 or under any statute. The aider and 
 abettor must participate in the felony, in 
 the sense of acting in concert with those 
 committing it ; for, although he be pres- 
 ent, yet if he do not participate, but re- 
 mains merely passive, he is not an abettor 
 
 Aiders and Abettors. — {Continued.) 
 (1 Hale, 439). Moreover, the participa- 
 tion must be with a felonious intent, and 
 not in ignorance of the nature of the act. 
 1 Hale, 446. 
 
 See also title Accessary. 
 
 * AID-PRATER. A petition to call in 
 help from another person who has an in- 
 terest in the matter contested. As a tenant 
 for life or by the curtesy, being implead- 
 ed, may pray aid of him in reversion. 
 Jacob's Diet. ; Oowel. 
 
 AIDS. Grants of money to the sover- 
 eign in support, i. e., aid, of his person 
 and government. They were of 'two 
 kinds, either (1) feudal, of which there 
 were three sub-varieties, or (2) parliamen- 
 tary, being tenths, fifteenths, &c. 
 See title Taxation. 
 
 AIR : See title Easements. 
 
 ALDERMAN. This word was of very 
 frequent occurrence among the Anglo- 
 Saxons. According to Spelman, all 
 princes and rulers of provinces, all earls 
 and barons, were designated aldermen in 
 a general sense ; but the word was ap- 
 plied more particularly to certain chief 
 officers, e. g., "the alderman of all Eng- 
 land," whoever that officer was. In mod- 
 ern times, and for many ages past, the 
 word is used to denote certain officers in 
 municipal corporations who are a kind of 
 assessors to the chief magistrate. 
 
 See title Municipal Corporations. 
 
 ALE AND BEER HOUSES. Every 
 inn is not an ale-houae, nor is every ale- 
 house an inn ; but if an inn uses common 
 selling of ale, it is then also an ale-house ; 
 and if an ale-house lodges and entertains 
 travelers, it is then also an inn. Numer- 
 ous statutes have been passed from time 
 to time for the licensing and regulation 
 of ale-houses, the latest of which are the 
 Licensing Act, 1873(35 & 36 Vict. c. 94), 
 and the Act of 1874, amending same. 
 
 ♦ALEATORY CONTRACT. A contract 
 depending upon a contingent event. 
 
 ALIA ENORMIA (other wrongs). Dec- 
 larations in the action of trespass, after 
 stating or alleging the specific wrongs or 
 injuries complained of, usually conclude 
 with the general words, "and other 
 wrongs to the plaintiff then did, &c." 
 and this conclusion is frequently called in 
 the language of pleading the allegation 
 of alia enormia. 1 Ch. on PI. 397 ; Sow- 
 den V. Goodrich; Peake, 46, per Kenyon. 
 
20 
 
 ALIAS WBIT.— ALLEGIANCE. 
 
 ALIAS WRIT. This was a second 
 writ issued after a former one had proved 
 inefiectual. If the aliaa also failed, a 
 third writ might have been sued out, 
 which was called a plwries. These writs 
 derived their respective names from the 
 words occurring in their respective forms, 
 viz., ^' Sicut alias prcedpiTmis," ^' Sicut 
 pluries prampvnms." Both forms of writ 
 were abolished by the C. L. P. Act, 1853, 
 s. 10, and what are called "concurrent" 
 writs substituted. 
 
 ALIBI (elsewhere). This word signifles 
 that mode of defense in a criminal prose- 
 cution which the accused party resorts to 
 in order to prove that he could not have 
 committed the crime with which he is 
 charged, because he was in a different 
 place at the time of the alleged commis- 
 sion. 
 
 ALIEN: See titles Naturalization; 
 Allemance. 
 
 * ALIEN AMY. In international law, 
 an alien friend ; one who is the subject or 
 citizen of a friendly power. 
 
 * ALIEN ENEMY. In international 
 law, one who owes allegiance to the ad- 
 verse belligerent. 
 
 ALIEN PRIORIES. These were cells 
 of religious persons in England belonging 
 to foreign monasteries. Most of them 
 were dissolved by Act of Parliament in 
 the reign of Henry IV., and some were 
 converted into domestic priories. 
 
 ALIENATION. This is the power of 
 the owner or tenant to dispose of his in- 
 terest in real or personal property. With 
 reference to personal property, the power 
 appears to have always existed, subject 
 only to certain difiSculties in the mode of 
 the alienation ; but with reference to real 
 property, the power was only slowly and 
 gradually acquired. 
 
 ALIMONY {almumm). That allowance 
 which is made to a woman for her sup- 
 port out of her husband's estate when she 
 is under the necessity of living apart 
 from him. This provision is allowed the 
 wife during the pendency of a suit be- 
 tween her and her husband, as well to 
 provide the wife with the means to ob- 
 tain justice as for her ordinary subsistence. 
 When there has been a sentence of 
 divorce on the ground of the adul- 
 tery and cruelty of the husband, the al- 
 lowance for alimony becomes a permanent 
 allowance, and is continued during the 
 
 period of their separation. Upon an ap- 
 plication for alimony, the court requires 
 on the part of the husband a statement 
 both of his casual and of his certain in- 
 come to be set forth. See Hakewill v. 
 Hakmill, 30 L. J. (M. & P.) 254; Mar- 
 getson v. Margetson, 36 L. J. (M. & P.) 
 80; Bishop Marr. & Div. 600-619. 
 
 * ALLEGATION. A statement or dec- 
 laration of a party to an action. 
 
 ALLEGIANCE. Otherwise called li- 
 geamee, is the obligation or Ue existing 
 between the sovereign and the subjects 
 of any given state, and may be described 
 as the lawful and faithful obedience and 
 duty which the subjects of every state 
 owe to the head of that state in return 
 for the protection which the state afiEords 
 to them. The learning on this subject 
 will be found in Oahin^s Case {Gakm-7. 
 Smith, 7 Rep. 1) 6 Jac. 1, and in the 
 notes to that case in Broom's Const. Law. 
 It is there said that allegiance is of four 
 kinds, namely: 
 
 (1) Natural allegiance — that which 
 arises by nature and birth ; 
 
 (3) Acquired allegiance — that arising 
 
 through some circumstance or 
 act other than birth, e. g. by den- 
 ization or naturalization ; 
 (8) Local allegiance — that arising from 
 residence simply within , the 
 counti-y, for however short a 
 time; and 
 
 (4) Legal allegiance — that arising from 
 
 oath taken usually at the town 
 or leet ; for by the Common Law 
 the oath of allegiance might be 
 tendered to every one upon at- 
 taining the age of twelve years. 
 In OdUMs Case the point decided was 
 that Calvin, although bom in Scotland 
 after the union of the crowns of Scotland 
 and England in the person of James I., 
 in 1603, was nevertheless a subject of the 
 king of England, and as such capable of 
 holding or of acquiring by descent lands 
 in England, this decision, involving the 
 further more general principle that alle- 
 giance to a sovereign is personal and not 
 territorial, and that the maxim, gwmdo 
 duo jv/ra (imo duo regno) concurrunt in 
 und personA, cequum est ac si essent in 
 dimersis, was inapplicable. That maxim 
 does, however, apply in determining to 
 what loMS a person is to be subject. 
 
 According to the law of England, and 
 also that of America, locality of birth de- 
 termines the primary allegiance — a prin- 
 ciple which is still adhered to in the 
 
ALLIANCE. —ALTARAGE. 
 
 21 
 
 Allegiance. — (Continued.) 
 Naturalization Act, 1870 ; but according 
 to the laws of most continental countries, 
 the parentage of the parties determines 
 their primary allegiance. However, by a 
 series of statutes special provision has 
 been made for the following classes of 
 persons born abroad, all of whom are 
 to be esteemed natural-born subjects, 
 namely ; 
 
 (1) Children inheritors of British par- 
 ents, not merely for the purposes 
 of inheritance (35 Edw. 3, st. 2), 
 but for all other purposes also 
 ( Doe d. Duroure v. Jones, 4 T. 
 R 308; 7 Anne, c. 5; and 10 
 Anne, c. 5) ; 
 (3) Children of British fathers (4 Geo. 
 3, c. 31); 
 
 (3) Grandchildren, being the children 
 
 of such latter children (18 Geo. 
 3, c. 21); and 
 
 (4) Children of British mothers (7 & 8 
 
 Vict. c. 66), but apparently 
 only as to the estates in England 
 (real or personal) of such 
 mothers. 
 Aliens becoming permanently subjects 
 of another country may become so either 
 by denization in virtue of the king's let- 
 ters-patent, or by naturalization in virtue 
 of a particular Act of the Legislature, or in 
 virtue of proceedings taken in pursuance 
 of the general Act or Acts. 
 See titles Natxteamzation ; Denizen. 
 
 * ALLIANCE. In International Law, a 
 treaty or league between states or powers 
 for the purposes of offense or defense. 
 
 * ALLISON. The running of one ves- 
 sel againt another, distinguished from 
 collision, which signifies the running of 
 two vessels against each other. 
 
 ALLOCATUR (it is allowed). After an 
 attorney's bill has been examined or taxed 
 by one of the masters, and the items 
 which he disallows have been deducted, 
 the remaining sum, certified by the mas- 
 ter to be the proper amount to be allowed, 
 is termed -the alloeatv/r. The allocatur is 
 conclusive as to the amount of costs. 6 
 & 7 Vict. c. 73, s. 43 ; 23 & 24 Vict. c. 
 137. 
 
 ALLODIAL LAND. Land not held of 
 any lord or superior, in which, therefore, 
 the tenant has an absolute property and 
 not an estate merely. The lands of the 
 Anglo-Saxons were allod, but under the 
 oatii taken at Salisbury in 1087, all the 
 
 Allodial Land. — (OonUnued.) 
 
 lands in England became feudal, i. e., held 
 
 of some superior lord, and for an estate 
 
 only. 
 
 See title Fbitdal Tbnurbs. 
 
 * ALLONGE. In French law a piece 
 of paper attached to a bill or note on 
 which to make further indorsements, 
 there being no room on the instrument 
 itself. Story Prom. Not., §§ 131, 151. 
 
 ALLOTMENT: See title Common, In- 
 
 CLOSTIRB OP. 
 
 ALLOTMENT, LETTERS OF: See 
 
 title Company Law. 
 
 ALLUTip. This is deflifed to be a 
 latent increase (latens incrementwm), 
 whereby something goes on adding itself, 
 but it is impossible to say how much at 
 any one moment is added. It is one of 
 the natural modes of acquisition whereby 
 property accrueth to one who is already 
 the owner of the principal thing to which 
 the accrual belongs. See AngeU, Water- 
 courses, § 53, et seq. 
 
 See title Accessio. 
 
 ALMANAC. The almanac annexed 
 to the Book of Common Prayer, subject 
 to the alterations made in the calendar by 
 the 24 Geo. 3, c. 33,- is taken judicial 
 notice of by the Courts of Justice. 
 Brough v. Perhins, 6 Mod. 81. And the 
 court will generally, to refresh its mem- 
 ory, refer to any almanac of received 
 credit. Page v. Faucet, Cro. Eliz. 237. 
 
 ALNAGE DUTIES. These were duties 
 payable on woollen cloths at so much per 
 ell ( Fr. aidne) ; and the officer whose 
 business it was to examine into the assize 
 of woollen cloths was called the alnager. 
 All such duties were abolished by 11 & 
 12 WilL 3, c. 20, s. 2. 
 
 See also title Taxation generally. 
 
 ALTARAGE (altaragium). This word 
 comprehends not only the offerings made 
 upon the altar, but also aU the profit 
 which accrues to the priest by reason of 
 the altar. When the altarage in part or 
 in the whole was allotted to the vicar or 
 chaplain, it meant only the customary and 
 voluntary offerings at the altar for some 
 divine office or service of the priest, and 
 not any- share of the standiag tithes, 
 whether predial or mixed. In the case of 
 Franhlyn v. The Master and, Brethren of 
 St. Cross, 1731, Bunb. 78, it was decreed 
 that where aZto-og'iMOTi is mentioned in old 
 endowments, and supported by usage, it 
 
22 ALTERATIONS IN WRITTEN INSTRUMENTS.— AMENDMENT. 
 
 Altarage. — ( Continued.) 
 will extend to small tithes, but not other- 
 wise. See also Spehn. Gloss. 38; Cro. 
 Eliz. 578. 
 
 ALTERATIONS IN WRITTEN IN- 
 STRUMENTS. The eSect of such alter- 
 ations in a deed (Pigofs Oaae, 11 Rep. 
 36 b), bill of exchange (Master r. Miller, 4 
 T. R. 320), or promissory note ( Warrington 
 V. SJarlt/, 2 E. & B. 763), is this ; 
 
 (1) If the alteration is material, then 
 whether (a) it is made by a party 
 or (J) it is made by a stranger, 
 the alteration vitiates the instru- 
 ment; and 
 (3) If tl^e alteration is immaterial — 
 then if (a) it is made by a party, 
 the alteration vitiates the in- 
 strument. Aldoiia V. OornweU, 
 Law Rep. 3 Q. B. 578, must be 
 distinguished, as the case of an 
 immaterial alteration by some 
 unhrwwn person; 
 But if (J) it is made by a stranger, the 
 alteration has no effect at all in 
 vitiating the instrument. 
 
 ALTERNATIVE OBLIGATIONS. 
 
 With reference to these obligations, Lord 
 Cote has said that in case an election be 
 given of two several things, always he 
 who is the first agent shall have the elec- 
 tion (Co. Litt. 145 a). And it has been 
 laid down as a general rule that the per- 
 son who has to perform one of two things 
 in the alternative has the right to elect 
 (Laytonr.Pearce^l'Doug. 15). The Roman 
 law agrees generally with the English 
 law in these respects. Brown's Savigny, 
 68-69. 
 
 An election once made is binding, and 
 the promise is thenceforth single to per- 
 form the alternative chosen : Quod semel 
 placuit in electionibus, ampUus displicere 
 Tum potest (Co. Litt. 146 a). Where the 
 one of two alternatives becomes impossi- 
 ble, or is so from the first, the promise is 
 absolute to perform the other (JDa Costa 
 V. Davis, 1 B. & P. 243), unless, in the 
 case of an impossibility subsequently aris- 
 ing, the construction of the contract or 
 the circumstances under which it was 
 entered into exclude the ordinary rule. 
 (Leake, Contracts, 371-875.) It seems 
 that no difference is made, whether the 
 alternative which is impossible; is so for 
 natv/ral or for legal reasons. Brown's 
 Sav. 67. 
 
 AMALGAMATE. Two companies 
 cannot amalgamate with each other, unless 
 
 Amalgamate. — {CdrMnued.) 
 such a transaction is authorized by the 
 constitution of both companies, or unless 
 all the shareholders in both consent to 
 the amalgamation. And where there is 
 a power to amalgamate, that power must 
 be strictly pursued (3 Lindl. Pner. 637). 
 Speaking generally, corporations cannot 
 Brice on Ultra Vires, 431. 
 
 AMBASSADOR. The commissioner 
 who represents one country in the seat of 
 Government of another; and as such 
 representative, he is exempt, together 
 with his family, secretaries and servants, 
 from the local jurisdiction, not only in 
 civil, but also in criminal cases. In 
 England, his exemption depends princi- 
 pally on the stat. 7 Anne, c. 13. Where 
 such an ambassador involves himself in 
 commercial relations, much inconvenience 
 arises, the better opinion being that even 
 in that case he is exempt from the local 
 jurisdiction. But an ambassador may 
 waive his privilege in all these respects, 
 and submit himself to the jurisdiction. 
 Such an ambassador is, however, amenable 
 in his own country to the national juris- 
 diction thereof ; and in fact, it is because 
 he carries with him into the foreign 
 country the territory of his own country 
 that he is exempted from the local juris- 
 diction. {See title Extba-tebkitoki- 
 ALiTT.) Whether the exemption operates 
 to deprive a creditor of his real (as 
 opposed to a mere personal) right, is a 
 disputed question {see case of the United 
 States Ambassador to Prussia, Wheaton, 
 pp. 307-318). An ambassador is a public 
 minister, which in the usual case a con- 
 sul is not. 
 
 AMBIGUITY: See title Exteinsic 
 Evidknob. 
 
 * AMENABLE. Subject to answer in 
 a court of justice. 
 
 * AMENDE HONORABLE. A penalty 
 imposed by way of disgrace or infamy ; 
 as compelling the offender to walk into 
 church in a white sheet with a rope about 
 his neck and a torch in his hand, and to 
 beg pardon of God, or the king, or an 
 individual, for the ofiense. 
 
 AMENDMENT. The correction of 
 some error or omission or the curing of 
 some defect, in judicial proceedings. 
 First, in eiml cases. Here amendments 
 are eithei; at common law or by statute. 
 In the times of oral pleading, the parties 
 were allowed to correct and adjust their 
 
AMENDMENT. — AMICABLE ACTION. 
 
 23 
 
 Amendment. — ( Continued.) 
 pleadings at any time during the oral 
 altercation, and were not held to the form 
 of statement which they might first have 
 advanced. And so at the present day, 
 until judgment is signed, either party may 
 even at Common Law amend his pleading 
 until judgment is signed, subject to the 
 discretion of the court or judge, who will 
 not allow amendments which appear un- 
 reasonable, or whereby the opposite party 
 may be prejudiced. But no amendments 
 will be allowed iu pleas in abatement, 
 because such pleas are disfavored. And 
 even after judgment has been signed, the 
 courts have a power, even at Common Law, 
 of amending, it being considered that 
 during the term wherein any judicial act 
 is done, the record remains in the breast 
 of the judges (Co. Litt. 360 a). This power 
 of amendment at Common Law has been 
 largely supplemented by various acts of 
 Parliament called the Statutes of Amend- 
 ment, which are commonly classed with 
 the Statutes of Jeofails, and by which 
 almost all errors in pleading, being errors 
 in form only, are amendable, and certain 
 objections to defective pleadings, being 
 defective as to form only, are obviated 
 after certain stages have been reached in 
 a cause. The so-called Statutes of Amend- 
 ments were the 14 Edw. 3, c. 6, st. 1 ; 9 
 Hen. 5, c. 4, st. 1 ; 4 id. 6, c. 3 ; and 
 8 id. 6, cc. 13, 15 ; the so-called Statutes 
 of Jeofails were the 32 Hen. 8, c. 30; 
 18 Eliz. c. 14; 34 Jac. 1, c. 13; 16 & 
 17 Car. 3, c. 8; 4 & 5 Anne, c. 16; 
 and 5 Geo. 1, c. 18. And see generally 
 as to both the case of Stennel v. JBbgg, 1 
 Wm. Saund. 360, ed. 1871. 
 
 But under recent statutes, being chiefly 
 the C. L. P. Acts, 1853, 1854, and 1860, 
 much larger powers of amendment are 
 conferred, not only in cases of the mis- 
 joinder and non-joinder of party plain- 
 tiffs or defendants, but also and princi- 
 pally where a variance appears between 
 the pleadings and the evidence. As to 
 such, see the several titles Mis-joindbr ; 
 NoN-joDTDER ; and Variances. 
 
 Secondly, in criminal cases. It was the 
 opinion of Lord Holt and of the other 
 judges in B. v. Tueher (1 Salk. 51), that 
 whatever was amendable at Common Law 
 in civil cases was also amendable at Com- 
 mon Law in criminal cases. The statutes, 
 however, mentioned above, allowing 
 amendments and curing defects in civil 
 cases, did not in general extend to crimi- 
 •nal cases at all, except perhaps to cases of 
 misdemeanor. But by the 7 Geo. 4, c. 
 
 Amendment. — (Continued.) 
 64, s. 19, if an accused person pleaded a 
 misnomer, the indictment was to be 
 amended by inserting the correct orthog- 
 raphy. And by the more recent statutes 
 (11 & 12 Vict. c. 46, s. 4), as to the 
 amendment of va/riances, and 14 & 15 
 Vict. c. 100, as to errors in the names 
 of counties, cities, etc., and in the alle- 
 gations of the ownership of property, 
 very large powers of amendment are 
 committed to the judge in criminal trials, 
 where he is of opinion that the defend- 
 ant cannot be prejudiced thereby in his 
 defense on the merits. 
 
 AMENDS, TENDER OF. Under the 
 statute 11 & 12 Vict. c. 44, s. 11, relative 
 to proceedings against justices, the justice 
 may, after the required notice of action 
 has been given, tender such sum of money 
 as he may think fit as amends for the 
 injury complained of in such notice, and 
 he may thereupon pay into court the 
 money tendered, and may afterward give 
 in evidence the same ; in which case, if 
 the jury assess the injury at no larger 
 amount, judgment shall be given for the 
 defendant, who shall be entitled to deduct 
 his costs out of the money so paid in. A 
 like tender of amends may also be made 
 by revenue officers and by special con- 
 stables, and also in cases of involuntary 
 trespasses, and for wrongful proceedings 
 under Railway Acts. See Arch. Pr. 1373, 
 1174 and 1273. 
 
 AMERCIAMENT. A pecuniary pun- 
 ishment for some fault or misconduct, 
 differing (in theory at least) from a flue in 
 being less out of leniency (merci) than the 
 fault or misconduct deserved. Magna 
 Charta, c. 34, requires a freeman to be 
 amerced only for- a great fault, and in 
 proportion only to its greatness. See 
 ~ ■ ' ■ " !, 8 Co. 38 a. 
 
 AMEUBLISSEMENT. In French law, 
 under the regime commiunaute (see that 
 title), when that is of the conventional 
 kind, if the husband or wife, or either of 
 them, make their or either of their pres- 
 ent or future immovable property come 
 into the community either in whole or in 
 part, this is called a,na/meublissement,'w\iiQh 
 may be either determinate or indeter- 
 minate. 
 
 ♦AMICABLE ACTION. An action 
 between friendly parties for the purpose 
 of obtaining the judgment of the court 
 in a matter requiring it. 
 
24 
 
 AMICUS CURLS.— ANCIENT LIGHTS. 
 
 AMICUS CUBI2E. "When a Court of 
 Justice is in doubt or in error in a matter 
 of law, any of the counsel present may 
 inform the court upon it, out of a regard 
 for the court merely. 
 
 AMNESTY. An act of pardon or 
 oblivion, such as that of 1660 (Restora- 
 tion of Charles II). 
 
 AMORTIZE. To alien in mortmain. 
 
 *AMOREAS MANUS. The judgment 
 against the crown on a monstrans de droit, 
 which establishes the superior light of 
 the petitioner to property, so-called from 
 the language of the judgment: Quod 
 manus domini regis a/irumeaMtw. 3 Bl. 
 Com. "257. 
 
 AMPLIARE. ' '■Est loni judicis ampli- 
 axe jurisdictionem suam," i. «., to endeavor 
 to find some ground for assuming juris- 
 diction in a proper case, not to exceed his 
 admitted jurisdiction. 
 
 ANCESTOR. The distinction made 
 between an ancestor and a predecessor in 
 law, is, that the former is applied to an 
 individual in his natural capacity, as J. 
 S. and his ancestors, and the latter to a 
 company, body politic, or corporation, as 
 a bishop and his predecessors. Cowel; 
 Co. Litt. 78 b. ; Britton, 169. However, ' 
 this distinction is not attended to in the 
 Succession Duty Act, 1853 (16 & 17 Vict, 
 c. 58). 
 
 ANCESTRAL. Relating to one's an- 
 cestors. Homage ancestral was where a 
 tenant and his ancestors had time out of 
 mind held by homage of the lord and his 
 ancestors. Also, real actions were either 
 y, i. e., of a man's own seizin, or 
 i. e., of. the seizin of his ances- 
 tors. 
 
 ANCIENT DEMESNE OB DOMAIN 
 
 (vetus patrvmormt/m domini). A tenure 
 whereby all manors belonging to the crown 
 in the days of Edward the Confessor and 
 "William the Conqueror were held; the 
 numbers and names of which manors, as of 
 all others belonging to common persons, 
 "William the Conqueror caused to be set 
 down in a book called Domesday; and 
 those which appear by that book to have 
 belonged to the Crown, and are there de- 
 nominated terras regis, are called ancient 
 demesne. There are three Hnds^of ten- 
 ants in ancient demesne: First, those 
 whose lands are held freely by grant of 
 the king; secondly, those who do not 
 
 Ancient Demesne or Domain. — {Gont.) 
 hold at the will of the lord, but yet hold 
 of a manor which is ancient demesne, 
 and whose estates pass by surrender, or 
 deed, and admittance, and who are styled 
 customary freeholders ; thirdly, those who 
 hold of a manor which is ancient demesne, 
 by copy of court roll, at the will of the 
 lord, and are styled copyholders of base 
 tenure (Cowel; Scriven on Copyholds, 
 p. 435 ; Cruise, Dig. 44). "Whether lands 
 are ancient demesne or not must be tried 
 by Domesday Book, F. N. B. 16 D., the 
 authority of which is conclusive (4 Inst. 
 269) ; but the question whether lands are 
 parcel of a particular manor which is an- 
 cient demesne may be tried by a jury. 
 Hunt V. Bum, 1 Salk. 57. 
 
 Tenants in ancient demesne used to 
 enjoy certain privileges, e. g., that of 
 being impleaded in the courts of their own 
 manors only, and of being exempted from 
 serving on the juries of the county ; but 
 those privileges have mostly ceased, and 
 provision is made by the stat. 4 & 5 Vict, 
 c. 35, and the Acts amending same, for 
 the general enfranchisement of ancient 
 demesne lands. 
 
 See title Copyholds. 
 
 ANCIENT DOCUMENTS. These are 
 received in evidence for certain purposes, 
 and subject to certain restrictions. But 
 ancient grants are not to be received in 
 evidence unless they can be accounted 
 for as coming, e. g., from the hands of 
 some one connected with the estate {Surinr 
 nerton v. Stafford [Ma/rquisi, 3 Taunt. 
 91) ; or from a reasonably probable custo- 
 dian of them (^Oroitghton v. Blake, 12 M. 
 & "W. 205). Ancient surveys have in 
 many instances been held inadmissible to 
 prove the extent or rights of a manor 
 XEoans v. Taylor, 7 A. & E. 617; Daniel 
 V. Wilkin, 7 Exch. 429). But when an- 
 cient documents evidence an act of own- 
 ership, then they are admissible as evi- 
 dence of title (Doe d. William the Fourth 
 V. BdberU, 13 M. & "W. 520) ; as they also 
 are where they are in the nature of an 
 inquisition in a public matter. Ga/rr v. 
 Mostyn, 5 Exch. 69. 
 
 ♦ANCIENT LIGHTS. Windows 
 which have been used uninterruptedly 
 for twenty years or more. By the doc- 
 trine of " ancient lights " these windows 
 cannot be obstructed by the adjoining 
 ovmer. This doctrine prevails in several 
 of the United States, but not in all. 
 Washburn's Easements, 583-590, 614. 
 
ANGAKIA. — ANNUITY. 
 
 25 
 
 * ANGrABIA, A troublesome duty or 
 service which tenants were personally 
 obliged to pay their lords. Jacob 
 Diet. 
 
 ANIMALS. There may be property 
 in wild animals when reclaimed, e. g. in a 
 cat ; and in the case of unreclaimed ani- 
 mals, the property in them, according to 
 the law of England, is said to be in the 
 owner of the land upon which they are 
 started and captured (Blades v. Biggs, 13 
 C. B. [N. S.] 501), although by the laws 
 of most countries it is in the captor. See 
 title OccupATio. The owner of animals 
 with a mischievous propensity is liable 
 for the damages they occasion, provided 
 he knows their mischievous propensity 
 (Jones V. Perry, 2 Esp. 483 ; SUles v. Car- 
 diff Steam mmgation Go., 13 "W. K. 1080). 
 The Stat. 38 & 39 Vict. c. 60, provides 
 for dogs doing damage to cattle or sheep. 
 The stats. 5 & 6 "Will. 4, c. 59 (since 
 repealed), 13 & 13 Vict. c. 93, and 17 & 
 18 Vict. c. 60, punish cruelty to animals ; 
 and the stat. 2 & 3 Vict. c. 47, prohibits 
 bear-baiting and cock-fighting. And as 
 to bequests of personal property to a dog- 
 charity, see University of London v. Ja/rrow, 
 38 Beav. 159. 
 
 ANNATES. These were first fruits, 
 and were so called because one year's 
 value of profit is taken as their rate. 
 
 ANNUITY. This is a yearly payment 
 of a certain sum of money granted to an- 
 other in fee, or for life, or for a term of 
 years, and charging the person of the 
 grantor, although it may also be made to 
 charge his real estate, in which latter case 
 it is most commonly called a rent-charge. 
 The remedy was either by writ of annuity 
 or by distress, according as the person or 
 the lands of the grantor were sought to be 
 affected. The Apportionment Act (4 & 5 
 WUl. 4, c. 33) first made annuities ap- 
 portionable. Under the Annuity Act (53 
 Geo. 3, c. 141), annuities for lives granted 
 by way of the repayment of money lent, 
 required to be enrolled in Chancery ; but 
 now, under the stat. 18 & 19 Vict. c. 15, 
 they now require to be merely registered 
 in the Court of Common Pleas. Annuities 
 may also be regarded as legacies payable, 
 not in mass at one time, but by install- 
 ments every year or aliquot part of a 
 year ; therefore the word legacies in gen- 
 eral comprises the word annuities. Bolton 
 iDuke) V. WiUiams, 4 Bro. C. C. 361; 
 MuUins V. Smith, 1 Dr. & Sm. 204. 
 
 If an annuity is given simpliaiter, it is 
 
 4 
 
 Annuity. — ( Oontimted.) 
 an annuity for the life only of the annui- 
 tant (Kerr v. Middlesex Hospital, 2 DeG., 
 M. & G. 583) ; or, in the case of joint an- 
 nuitants, for the life of the longest liver 
 of them (Wilson v. Maddison, 3 Y. & C. 
 C. C. 372) ; and the law is the same since 
 1 Vict. c. 36 (Nichols v. HawTces, 10 
 Hare, 343). Where, however, an annuity 
 is given to A. in general terms, and the 
 gift is accompanied with a direction to 
 provide for the same out of the proceeds 
 of property, that is a perpetual annuity 
 (K&rr V. Middlesex Hospital ,supra), unless 
 the direction is mere surplusage, e. g., 
 merely directs payment out of the " gen- 
 eral effects " of the testator (Innes v. 
 MitcheU, 6 Ves. 464) ; and, of course, the 
 testator may, by express words, give a 
 perpetual annuity. Stakes v. Heron, 12 CI. 
 & F. 161. 
 
 Sometimes an annuity is payable only 
 out of income (Foster v. Smith, 1 Ph. 
 629), and sometimes it is a charge on the 
 corpus itself of the estate ( Wright v. CoJ- 
 lender, 3 DeG., M. & G. 653), in which 
 latter case the annuitant may, if the in- 
 come is insufficient, require a sale of a 
 sufficient part of the corpus (May v. Ben- 
 nett, 1 Russ. 370), and will even be enti-, 
 tied to a prospective order for the neces- 
 sary successive future sales (Hodge v. 
 Lewin, 1 Beav. 431). An indefinite trust 
 to receive rents for payments of an an- 
 nuity is a charge of the annuity upon the 
 corpus (PhiUips v. Chitteridge, 11 W. R. 
 13) ; and a direction to purchase an an- 
 nuity for A. entitles A. to have the pur- 
 chase-money paid over to him or her 
 (ford V. Batley, 17 Beav. 303; Re Brown's 
 Will, 37 Beav. 324); although the testa- 
 tor may have directed the contrary 
 (Stolces V. Oheeh, 28 Beav. 620) ; and if the 
 intended annuitant is dead his personal 
 representatives will be entitled to the 
 purchase-money (Day v. Day, 1 Dr. 569), 
 although the purchase-money is to consist 
 of the proceeds of land sold. Bayley v. 
 Bishop, 9 Ves. 6. 
 
 An annuity will abate with general 
 legacies (Garr v. Ingleby, 1 De G. & Sm. 
 362), unless the annuity is given as a spe- 
 cific interest in land, when it will only 
 abate with the other specific legacies. 
 Greed v. Greed, 11 01. & F. 491. 
 
 When an annuity is given by will, the 
 first payment thereof is to be made, in the 
 absence of express directions otherwise 
 directing payment, one year after the tes- 
 tator's death (Gibson y. Bott, 7 Ves. 96), 
 or if successive interests for Ufe and in 
 
26 
 
 ANSWER. — APPEAL. 
 
 Annuity. — ( Oontmued.) 
 
 remainder are given by way of annuity 
 
 out of a sum of money directed to be 
 
 placed out to answer it, then two years 
 
 from the testator's death. CHbson v. Bott, 
 
 supra. 
 
 ANSWER. This is the most usual 
 mode of raising defenses to a bill of com- 
 plaint in the Court of Chancery, being 
 more common than either plea or demur- 
 rer. By the Judicature Act, 1873, this 
 form of pleading is extended to the courts 
 of Common Law. 
 
 See title Pleadings. 
 
 *ANTE JURAMENTUM. The oath 
 formerly required of an accuser that he 
 would prosecute the accused, and of the 
 accused that he was innocent. Jacob 
 Diet. 
 
 ANTE - NUPTIAL SETTLEMENT : 
 
 See title Mabbiage Settlements. 
 
 ANTICIPATION. This word is com- 
 monly used in Courts of Equity as signify- 
 ing the alienation of married women. It 
 is a rule of the Common Law that the ab- 
 solute property given to any one cannot 
 be fettered with any restraints or condi- 
 tions against alienating (Tud. L. C. Conv. 
 858 ; Bradley v. Peboot^ ; but Courts of 
 Equity in the case of property given to 
 the separate use of a married woman al- 
 low the restraint as tending to render the 
 separate use more perfect and assured 
 {TullettY. ArmsProng, 1 Beav. 31). Whence 
 the clause against anticipation is common 
 in gifts of property to females to their 
 separate use. 
 
 See title Separate Estate. 
 
 ANTICHRESE: See title Nantissb- 
 
 MENT. 
 
 * APEX JURIS. A rule of law of ex- 
 treme refinement. 3 Parsons's Notes & 
 BiUs, ch. 35, § 11. 
 
 APOLOGY. In the case of a libel 
 being published in a newspaper or other 
 like public •syriting, the 6 & 7 Vict. c. 
 91, provides that the defendant may plead 
 the inadvertent insertion of same without 
 malice or gross negligence, and the 
 prompt insertion in the same publication 
 of an apology for same ; and he may pay 
 into court at the same time a reasonable 
 sum of money by way of amends. A like 
 provision is made in the case of defend- 
 ants being private individuals (s. 1), and 
 such apology shall go in mitigation of 
 damages. 
 
 APOSTASY. This offense differs from 
 heresy in this, that apostasy is a total re- 
 nunciation of a religious belief once pos- 
 sessed, while heresy consists in denying 
 some one particular doctrine only. At 
 the present day apostasy is punishable 
 under the stat. 9 & 10 Will. 3, c. 33 
 CRevd. Stats. 9 Will. 2, c, 35), by inca- 
 pacity for or deprivation of offices of 
 trust or emolument, and by imprisonment 
 for three years without bail. The infor- 
 mation must be laid within four days after 
 the outward profession of apostasy, and 
 be followed up within three months, 
 otherwise the accusation falls through. 
 The penalty is also remitted upon an. open 
 retraction, in court, of the offense. 
 
 APOTHECARY: S«e title Medicine. 
 
 *APPARATOR. In England the 
 sheriff was formerly called cuppwrator conur 
 itatus, as having charge of certain county 
 expenditures and affairs. Cowel. 
 
 APPARITOR. A messenger of the 
 spiritual courts, whose duty was to serve 
 the process thereof. 
 
 APPEAL (from the Fr. wppeler). This 
 word has two significations : it sig^iifiesin 
 one sense a complaint or an appeal to a 
 superior court, when justice is supposed 
 not to have Ijeen done by an inferior 
 court. It also signifies, when spoken in 
 reference to a ciiminal prosecution, an 
 accusation by one subject against another 
 for a heinous crime, demanding punish- 
 ment for the injury sustained by himself, 
 rather than for the offense committed 
 against the public. Criminal appeals 
 were, however, abolished by 59 Geo. 8, c. 
 46. The principal kinds of them while 
 they existed were the following: 1. Ap- 
 peal of arson. 3. Appeal of death. 3. 
 Appeal of mayhem. 4. Appeal of rape ; 
 and 5. Appeal of robbery (59 Geo. 8, c. 
 46). Of these appeals all were capital, 
 except that of mayhem. The latest in- 
 stance of an appeal was Ashford v. Thorny 
 ton, 1 B. & A. 405 (one of rape followed 
 by mv/rder), and probably in consequence 
 of that case the above-mentioned statute 
 was passed forbidding such appeals for 
 the future. Where the verdict in an ap- 
 peal was in favor of the appellor, he 
 might insist upon what terms he pleased 
 as the ransom of the appellee's life. It 
 has been suggested that, although ap- 
 peals are abolished, some rights of action 
 for pecuniary compensation should be 
 permitted in the cases in which appeals 
 formerly lay. 
 
APPEARANCE. — APPOESTTMENT, POWERS OP. 
 
 27 
 
 Appeal. — ( Continued.) 
 
 The right of appeal in certain cases has 
 been extended by various recent statutes, 
 thus : 
 
 (1) An appeal from a decision of the 
 
 Court on a rule to enter a verdict, 
 or a nonsuit, or for a new trial 
 under C. L. P. Act, 1854; 
 
 (2) An appeal in Crown Cases Re- 
 
 served, under 11 & 13 Vict. c. 
 78; 
 
 (3) An appeal froni a decision of jus- 
 
 tices in summary proceedings, 
 under 30 & 21 Vict. c. 43 ; 
 
 (4) An appeal from an order giving re- 
 
 lief in ejectment against forfeit- 
 ure, under C. L. P. Act, 1860 ; 
 and 
 
 (5) An appeal from a revising barrister 
 
 in election matters, under 28 & 
 39 Vict. c. 86. 
 See also County Cottrt, for appeals 
 therefrom; and Quaetek Ses- 
 sions, for appeals therefrom and 
 thereto. 
 
 APPEARANCE. In an action at law, 
 when a defendant is served with a writ of 
 summons, which is a judicial mandate 
 issuing out of and under the authority of 
 the Court in which the defendant is sued, 
 he is bound by the command which is 
 contained in that writ to enter an ap- 
 pearance thereto within eight days ; this 
 appearance is a memorandum in writing 
 according to a prescribed form, signify- 
 ing that the defendant has appeared, ac- 
 cording to the command of the writ, and 
 such memorandum is delivered to the 
 proper officer of the Court, and by him is 
 entered in a book kept for that purpose; 
 and this is what is technically called en- 
 tering an appearance (Arch. Prac. ; Tidd). 
 The word is also applicable to proceedings 
 in other Courts besides those of the Com- 
 mon Law ; and it has a veiy similar mean- 
 ing as used in the proceedings in a suit in 
 Equity. The practice was first intro- 
 duced into Courts of Equity by the Or- 
 ders of 8th May, 1845. 
 
 In the case of infants and married 
 women, they are to appear, the former by 
 his or her guardian, and the latter in per- 
 son, in an action at Law (3 Arch. Pr. 
 1352) ; and the former by his or her guar- 
 dian ad litem, and the latter either in per- 
 son or by her next friend, in a suit in 
 Equity (1 Dan. Ch. P. 460; Morg. Ch. 
 Acts, 691). The effect of entering an 
 appearance is to waive any irregularity in 
 the process (Forbes v. Smith, 34 L. J. 
 
 Appearance. — ( Continued.) 
 [Ex.] 167); but in the Courts of Equity 
 a conditional appearance may be entered 
 which shall not have that effect. 1 Dan. 
 Ch. Pr. Ch. xiii. 
 
 For neglect to appear, or, in default of 
 appearance, in an action at Law, if the 
 writ of summons is specially indorsed, 
 the plaintiff may, under certain circum- 
 stances, sign final judgment at once (C. 
 L. P. Act, 1853, s. 37), and if the writ of 
 summons is not specially indorsed, he 
 may, with leave, proceed to file Ms dec- 
 laration with short notice to plead, and 
 in that way arrive at judgment (s. 38). 
 In a suit in Equity, the plaintiff may enter 
 an appearance for a defendant. 
 
 APPENDANT. This word ia its gen- 
 eral sense denotes any thing annexed in 
 whatever manner to any other. But as 
 applied to incorporated hereditaments in 
 the law of real property, it denotes some- 
 thing annexed as an incident to some 
 other and corporated hereditament, and 
 the annexation of which thereto is of a 
 necessary character, and has therefore ex- 
 isted from the very beginning of time. 
 See, further, titles Apptjktenant, In 
 Gboss; and Incorporeal Heredita- 
 ments.. 
 
 ♦APPLICATION. In insurance the 
 preliminary statement of the person ap- 
 plying for an insurance. The appropria- 
 tion of payments. 
 
 APPOINTMENT TO OFFICES. 
 
 Where a person acts in a public capacity, 
 his so acting is primd facie evidence of 
 the validity of his appointment (iZ. v. 
 Winnifred, 1 Leach, C. C. 515) ; and this 
 presumption is adopted in the Criminal 
 Law Consolidation Acts of 1861. 
 
 APPOINTMENT, POWERS OF. 
 
 These are either general or special ; the 
 former enabling the donee of the power 
 to appoint to any one he pleases, and even 
 to himself (for which reason the property 
 which is subject to a general power of 
 appointment is liable in case of his bank- 
 ruptcy: Bankruptcy Act, 1869, s. 15, 
 sub-s. 4) ; the latter enabling him to ap- 
 point among particular individuals only, 
 or not at all. There is also the following 
 distinction between these two kinds of 
 powers, viz., that the general power, when 
 exercised, dates from the exercise thereof, 
 and not earUer ; while the special power, 
 when exercised, dates from the creation 
 
28 
 
 APPORTIONMENT. — APPROPRIATION. 
 
 Appointment, Powers of. — (^Oonfd.) 
 thereof, which is necessarily an earlier 
 period than that of the exercise. 
 
 See, further, titles Convbtanobs ; 
 
 POWBKS. 
 
 APPORTIONMENT. This word ap- 
 plies to rents, annuities and common. 
 First, as applied to rents, it denotes a di- 
 vision of the rent in certain proportions ; 
 and as to rents-service, these (although 
 originally and in their own nature indi- 
 visible) have been divisible since the stat. 
 Quia .Shrvptores, 18 Edw. 1 (Statute of 
 Westminster the Third), c. 1, and as to 
 rents-seek, rents-charge, &c., these have 
 been made apportionable by the stat. 4 
 Geo. 3, c. 38 ; and now also by Lord St. 
 Leonards' Act, 23 & 33 Vict. c. 35, the 
 release of part of land subject to a rent- 
 charge does not release the other part, 
 which the intention was should remain 
 unreleased. By the stat. 11 Geo. 3, c. 19, 
 rents secured on leases are made appor- 
 tionable between a landlord (tenant for 
 life) deceased and the succeeding re- 
 mainderman or reversioner — an appor- 
 tionment which has been made universal 
 by the stats. 4 & 5 Will. 4, c. 33, and the 
 Apportionment Act, 1870 (33 & 84 Vict, 
 c. 35). Secondly as applied to annuities, 
 these were made apportionable by the 
 stat. 4 & 5 Will. 4, c. 33, a provision 
 which has been extended by the stat. 33 
 & 34 Vict. c. 35, the 3nd section of 
 which enacts as follows: "From and after 
 the passing of this Act [Aug. 1, 1870], all 
 rents, annuities, dividends, and, other pe- 
 riodical payments in the nature of in- 
 come (whether reserved or made payable 
 under an instrument in writing or other- 
 wise) shall, like interest on money lent, 
 be considered as accruing from day to 
 day, and shall be apportionable in respect 
 of time accordingly." Thirdly, as ap7 
 plied to ccmmum, upon a purchase by the 
 commoner of part of the land over which 
 his right of common exists, the right may 
 be apportioned (Co. Litt. 149 a); and it 
 makes no difference, semble, that the right 
 of common is that to common saTis nombre. 
 Wild's Case, 8 Rep . 79 ; Bennett v. Beeve, 
 Willes, 333. 
 
 See, also, titles Rent ; AmsroiTiBS ; Divi- 
 dends; and Common. 
 
 *APPOSEE. An officer of the ex- 
 chequer, whose duty was to examine the 
 sheriff's accounts. 
 
 APPRAISE. To set or affix the true 
 price or value of goods. 
 
 APPREHENSION OF OFFENDERS : 
 
 Bee title Constable. 
 
 APPRENTICE. A person in_ the 
 course of learning any profession is so 
 called in law ; but the name is now com- 
 monly limited to a person bound by in- 
 denture to a tradesman, who thereby 
 undertakes, for certain consideration, to 
 teach him his trade. See the duties of 
 the master explained in Gouchman v. Sil- 
 l&r (33 L. T. 480) : and those of the ap- 
 prentice in Cooper v. Si/m/monds (7 H. & 
 N. 707). Where, as usually happens, the 
 apprentice is an infant, no action lies 
 against him on his covenant (GyTbert v. 
 PUtcher, Oro. Car. 179), unless by special 
 custom {Whittingham v. Mill, Cro. Jac. 
 494) ; therefore, usually the parents cove- 
 nants for him, but the infant must exe- 
 cute the indenture (B. v. Amesley, 3 B. 
 & A. 585). Under the Stamp Act, 1870, 
 the indenture must be stamped with a 
 5«. stamp for every £5, or fraction of £5, 
 of premium, and with a 3s. Qd. stamp 
 where there is no premium. 
 
 Regarding parish apprentices, see 3 & 
 4 Will. 4, c. 63, and 7 & 8 Vict. c. 101 ; 
 and for the jurisdiction of justices of the 
 peace regarding such, see the same stat- 
 utes, and also Beg. v. Prownd, Law Rep. 
 1 C. 0. 71. 
 
 * APPROBATE AND REPROBATE. 
 
 To approve and reject. A party cannot 
 a^prohate and reprobate the same deed. 
 1 BeU. Com. 146. 
 
 APPROPRIATION. This word is 
 commonly used in two senses, viz. : (1) 
 the appropriation of benefices, and (3) 
 the appropriation of payments. 
 
 (1) An appropriation of a benefice. — 
 Tins is the annexing of a benefice to the 
 use of some religious house, or spiritual 
 corporation, whether sole or aggregate, 
 to enjoy forever ; just as an impropriation 
 is the annexing a benefice to the use of a 
 lay person or corporation. Bee, also, title 
 Impropriation. 
 
 (3) Appropriation of a payment. — ' 
 This means the application of a payment 
 to the discharge of a particular debt. 
 Thus, if a creditor has two distinct debts 
 due to him from his debtor, and the latter 
 makes a general payment on account 
 without specifying at the time to which 
 debt he intends the payment to apply, it 
 is optional for the creditor to appropriate 
 {i, «., to apply) the payment to either of 
 the two debts he pleases. The leading 
 case upon the subject is Ola/ytmCs Case in 
 
APPROPRIATION. — APPURTENANT. 
 
 29 
 
 Appropriation. — (GmUmied.) 
 Devaynes v. 2fobk (1 Mer. 585 ; Tud. Merc. 
 Ca. 1) ; from which case and the notes 
 thereto, the following rules may be 
 gathered : 
 
 (1) The first option to appropriate 
 belongs to the debtor at the time of pay- 
 ment. The appropriation in this case 
 may be either express {Ex pwrte Imbert, 1 
 De G. & J. 152), or implied {Shcm y. 
 Picton, 4 B. & 0. 715), or presumed 
 {Toung v. English, 7 Beav. 10). In the 
 case of several debts, some of which are 
 barred by the Statute of Limitation and 
 some not, the presumption is, that the 
 payment is made on account of the debt 
 or debts not barred. Nash v. Hodgson, 6 
 De G. M. & G. 474, reversing the decis- 
 ion of Wood, V. C, Kay, 650. 
 
 (3) The second option to appropriate 
 belongs to the creditor (Dig. 46, 3, l),and 
 this appropriation need not be made at 
 the time of payment, but at any time 
 afterward until the matter comes to trial 
 {Simson v. Inghmn, 2 B. & C. 65) ; appro- 
 priation can only be made once, at least 
 • after notice of the first appropriation has 
 been given to the debtor. But it is com- 
 petent for a debtor and his creditor to 
 make a new contract varying the appro- 
 priation of past payments {Merriman v. 
 Ward, IJ. & H. 371). Where one of two 
 or more debts is barred by the Statute of 
 Limitations, and the other, or others, are 
 not barred, the creditor may appropriate 
 the payment to the debt or debts which 
 are barred, and afterward pursue his 
 remedy for the recovery of the other or 
 others (Milh v. JFotcJces, 5 Bing. [N. C] 
 455) ; and similarly in the analogous cases 
 mentioned in Orv/ihahanks v. Base, 1 Moo. 
 & Rob. 100 (sale of spirits on credit), and 
 ArTwld V. Poole {Mayor), 4 M. & G. 860 
 (solicitor to corporation). Secus, if the 
 debt is absolutely unlawful, e.g., a, gamb- 
 ling debt. And, apparently, the two 
 debts must be of ascertained amount. 
 Goddard v. Hodges, 1 C. & M. 38 (unset- 
 tled partnership accounts); Qodda/rd v. 
 Cox, 3 Str. 1194 (assets in administra- 
 tion). 
 
 (3) Failing any appropriation by the 
 creditor, the law appropriates the pay- 
 ment to the various debts in the order of 
 their respective dates, beginning with the 
 earliest (C/toj/fore's Case, sttpra). Of course, 
 however, one man's money will not be 
 appropriated by the law toward payment 
 of another man's debt, e. g., partnership 
 moneys in payment of a single partner's 
 debt {Thompson v. Brown, 1 Mood. & 
 
 Appropriation. — {Oontimied.) 
 Malk. 40). The appropriation by the law 
 is first to interest, and only secondly to 
 piincipal {Chase v. Box, Hov. Freem. 
 381 ; Bower v. Morris, 1 Cr. & Ph. 351 ; 
 Code 8, 53, 1 ; Dig. 46, 3, 5, § 3.) But 
 the law will not in the last-mentioned 
 case appropriate any part of the money 
 paid to interest barred by the statute {In 
 re Fitzmav/rice's Minors, 15 Ir. Oh. Rep. 
 445) ; nor will the law appropriate a pay- 
 ment to money illegally due. Wright v. 
 Laing, 3 B. & 0. 165. 
 
 Appropriation of payments must be 
 distinguished from apportionment of 
 same between debts having equal rights 
 to be paid. ^<menc v. Bennett, 11 East, 
 36 ; Dig. 46, 3, 8. 
 
 APPROPRIATION OF SECURI- 
 TIES. Where a security has been depos- 
 ited with a creditor generally, and the 
 debtor afterward becomes bankrupt, ow- 
 ing two or more debts, one or some of 
 which are provable, and the other or 
 others not provable, the creditor may 
 appropriate the security to the debt or 
 debts which are not provable. Ex paa-te 
 Hunter, 6 Ves. 94. 
 
 APPROTEMENT. This word has sev- 
 eral meanings. It signifies much the same 
 as improvement; thus, approvement of 
 common means the inclosing a part of a 
 common by the lord of the manor for the 
 purpose of cultivating the same, leaving 
 suflBcient nevertheless for the commoners. 
 Secondly, it is also said to signify the 
 profits of a farm (Cowel). Thirdly, it 
 signifies the act of an approver, who, 
 when indicted of treason or felony, and 
 arraigned for the same, confesses the fact 
 before plea pleaded, and accuses others, his 
 accomplices, of the same crime in order 
 to obtain his own pardon. 3 Cruise, 89 ; 
 Cowel; 3T. R. 891. 
 
 APPURTENANT. This word denotes 
 annexed or belonging to ; but in law it 
 denotes an annexation which is of con- 
 venience merely and not of necessity, and 
 which may have had its origin at any 
 time, in both which respects it is distin- 
 guished from Appendant {see that title). 
 Li conveyances of lands and houses, it is 
 usual to add to the parcels, or else to the 
 hoibendwm, or to both, the phrase "with 
 the appurtenances," and to make surer, to 
 add "or reputed as appurtenant or 
 belonging thereto." The term is com- 
 monly confined in law to the purely 
 incorporeal hereditaments that are com- 
 
30 
 
 ARBITRATION AND A WARD. — ARCHDEACON. 
 
 Appropriation. — ( Gontinued.) 
 
 monly annexed to lands or to houses, 
 
 and may include as well common, as any 
 
 other right. Idster v. Piekford, 34 Beav. 
 
 576. 
 
 See title Incobpokbal Hbebditaments. 
 
 ARBITRATION AND AWARD. All 
 
 matters in dispute concerning any per- 
 sonal chattel or personal wrong may be 
 referred to the decision of an arbitrator ; 
 and although much jealousy was form- 
 erly, and some jealousy is still, felt in 
 allowing references of questions regard- 
 ing real property, yet references have 
 been made and allowed of the following 
 matters : partition between joint tenants 
 and tenants in common, settlement of dis- 
 puted boundaries, waste between landlord 
 and tenant, title of devisees, and generally 
 upon title. Parties may even agree to 
 refer to arbitration any future differences 
 between them, although none at present 
 may exist. And under various acts of 
 Parliament civil matters are compulsorily 
 referred, in particular matters of account, 
 under the C. L. P. Act, 1854 (17 & 18 
 Vict. c. 135, ss. 3-6), when they cannot 
 be conveniently tried in the ordinary way. 
 But with regard to criminal matters, the 
 old rule was, that matters criminal were 
 not arbitrable ; and it may be said still, 
 that offenses of a public nature are not 
 referable. On the other hand, it has been 
 said that in all cases where the injured 
 party has a remedy by action as well as 
 by indictment, he may refer same, pro- 
 curing the consent of the judge if the 
 indictment has been already commenced, 
 or a conviction upon it obtained. 
 
 The persons who may refer matters to 
 arbitration are of a correspondingly vari- 
 ous character. Firstly, where the refer- 
 ring parties are interested on their own 
 account in the matters referred, it is a 
 general rule that every one capable -of 
 making a disposition or release of his or 
 her right may also make a submission to 
 an award (Com. Dig. Arb. D. 3) ; and 
 conversely, the incapacity to contract 
 involves the incapacity to refer. But as 
 between partners, one partner cannot 
 bind the other by his sole submission; 
 and it matters not whether the partner- 
 ship be general or particular, the submis- 
 sion to an award not being within the 
 scope of the partnership or incident to 
 any matters within such scope ; and all 
 the partners must execute the submission 
 in order that any of them may be bound 
 by the award {Anbram v. Ohase, 15 East, 
 
 Arbitration and ATvard. — ( Continued.) 
 309). Secondly, where the referring 
 parties have no personal interest in the 
 award, but act in the capacity of trustees 
 or agents only, it is a general rulp that 
 the agent referring must have authority 
 so to do, but such authority, where not 
 express, may be implied from the nature 
 of the agency. Thus, the better opinion 
 is, that a solicitor or attorney retained 
 generally has an implied authority to refer 
 {Dowse V. Ooxe, 3 Bing. 30), unless, semble, 
 he is expressly forbidden to make a refer- 
 ence. Pibmer v. Delber, 3 Taunt. 486. 
 
 /S««, further, titles Submission,. Revoca- 
 tion, Umpikb; and for the proceedings 
 incident to a reference, and the form and 
 execution of the award with the remedies 
 thereon, see, generally, Russell on Arbitra- 
 tions. 
 
 ARCHBISHOP. The head or chief of 
 the clergy in a whole province. He has 
 the inspection of the bishops of that prov- 
 ince, as well as of the inferior clergy, 
 and may deprive them on notorious cause. 
 The archbishop has his own diocese 
 wherein he exercises episcopal, as in his 
 province he exercises arehiepiseopal, juris- 
 diction. To him, or to his Court, all 
 appeals are made from inferior jurisdic- 
 tions within his province ; and as an ap- 
 peal Ues or lay from the bishops in person 
 to him in person, so it also lies from the 
 Consistory Courts of each diocese to his 
 Arehiepiseopal Court. 1 Burn's Ec. 
 Law; 3 Roll; Abr. 
 
 See also titles Abchbs, Court of; 
 CoNsisTOBiAi ComaTs; and Ec- 
 clesiastical OotTRTS. 
 
 ARCHDEACON. A dignitary of the 
 church who has ecclesiastical jurisdiction 
 immediately subordinate to that of the 
 bishop, either throughout the whole of 
 his diocese or in some particular part of 
 it. He is nominally appointed by the 
 bishop himself, and has a kind of episco- 
 pal authority originally derived from the 
 bishop, but now, independent and dis- 
 tinct. It was formerly his office to grant 
 letters of administration, but that duty is 
 now discharged by the district Probate 
 Courts. He visits the clergy, and has his 
 separate Court for the punishment of 
 offenders by spiritual censures, and for 
 hearing all other causes of ecclesiastical 
 cognizance. Com. Dig. Ecclesiastical 
 Persons: Burn's Ec. Law; 1 Lev. 193. 
 See titles Abchbishops ; Ecclesias- 
 tical COXJBTS. 
 
ARCHES, COURT OF.— ARREST. 
 
 31 
 
 ARCHES, COURT OF. An ecclesias- 
 tical Court, so-called because originally 
 held in the Church of St. Mary-le-Bow 
 {de Armbus). It was latterly held in the 
 hall belonging to the College of CiviUans, 
 commonly called Doctors' Commons ; but 
 in more recent times, the office of the 
 Court of Arches has become annexed to, 
 and is commonly discharged by, the 
 jiadge of the Court of Admiralty, in his 
 Court at Westminster. 
 
 The Court of Arches is the Court of 
 Appeals of the Archbishop of Canter- 
 bury ; the judge thereof hears all appeals 
 from bishops or their chancellors, or com- 
 missaries, deans and chapters, and arch- 
 deacons ; and from his decision an appeal 
 lies at present to the Judicial Conunittee 
 of the Privy Council, but under the Judi- 
 cature Act, 1873, the appeal is to be to 
 the Court of Appeal constituted by that 
 Act (ss. 18, 21). The Court of Arches 
 has an original jurisdiction over the thir- 
 teen peculiar parishes in London which 
 belong to the Archbishop of Canterbury ; 
 but upon receiving letters of request from 
 amy bishop, he may assume original juris- 
 diction in any ecclesiastical matter arising 
 elsewhere. 
 
 ARCHITES. This word, which is de- 
 rived from (wca, a chest, was originally 
 used to denote a repository for documents, 
 but by a natural transference, has come to 
 denote the documents themselves. 
 
 ARISTOCRACY: See title Constitu- 
 
 TI03Sr. 
 
 ARMIGER: /Sss title EsQuiBB. 
 
 ARMORIAL BEARINGS. For the 
 
 duty on these, see Stamp Act, 1870 (33 
 & 34 Vict. c. 14), Sch. ; see also title 
 Hebald's College. 
 
 ARMOUR OR ARMS. In the meaning 
 of the law are any thing that a man wears 
 for his defense, or takes into his hands 
 for that purpose, or uses in his wrath to 
 cast at another, or to strike him with. 
 So that the appellations, "armour" and 
 "arms," do not in the law simply signify 
 a sword, shield, helmet, or such like ; but 
 extend also to stones and other missiles 
 used for the purposes of defense or war- 
 fare. Cromp. Just. 65; Cowel; Holt- 
 house. 
 
 ARMS : See title Abmouk. 
 
 ARMY. In ancient times, the BngUsh 
 forces were composed of' the following 
 varieties of men-at-arms, viz. : 
 
 Army. — ( Continued. ) 
 
 (1) Persons holding by knight service, 
 and who were required, by virtue of their 
 tenure, to serve forty days annually ; 
 
 (3) Other persons engaged by con- 
 tract. 
 
 (8) Freemen or freeholders generally, 
 in virtue of the mere general duty of 
 allegiance. 
 
 The first and second of these varieties 
 constituted the Army Proper ; the third 
 variety was the Militia. 
 
 ARRAIGN, ARRAIGNMENT {ad ra- 
 
 tionem ponere). To arraign a prisoner is 
 to call him to the bar of the court to an-' 
 swer the matter charged against him in 
 an indictment. 
 
 *ARRAMARE. A word of frequent 
 use by Bracton, applied to the ancient 
 proceedings by assize. It is usually trans- 
 lated "to arraign." 
 
 ARRAY. The ranking or setting forth 
 in order. A challenge to tlie array, as 
 applied to juries and as distinguished 
 from a challenge to the polls, signifies an 
 exception or objection against all the 
 persons arrayed or impaneled on a jury on 
 account of partiahty, or some default of 
 the sherifE or his under officer who arrayed 
 the panel. 
 
 ARREARS. From the French a/rri^re 
 (behind), denotes money remaining un- 
 paid after it is due. Under the stat. 3 & 
 4 Will. 4, c. 37, six years is fixed as the 
 amount of arrears of rent, dower, &c., 
 which may be recovered out of the land, 
 in respect of which the right to payment 
 exists ; but this does not prevent an ac- 
 tion of covenant being brought under the 
 Stat. 8 & 4 Will. 4, c. 42, for twenty 
 years' arrears. Sunter v. Nockolds, 1 Mac. 
 & a. 640. 
 
 ARREST. From the French arreter 
 (to stop), signifies the restraint of a man's 
 person by substituting for his own will 
 the constraints of the law. Arrests may 
 be either in civil or in criminal cases ; for 
 the latter, see title Constable. 
 
 Arrests in civil cases were either by 
 writ of capias or by writ of attachment, 
 the former being the more general, the 
 latter issuiflg only in cases of a contempt 
 of court. Such arrests were also either 
 on mesne process or on final process ; but 
 arrest on mesne process was abolished by 
 the stat. 1 & 3 Vict. c. 110 (with certain 
 exceptions specified in the Act), more 
 latterly arrest on final process for debt 
 
32 
 
 ARREST OF JUDGMENT.— ARTICLED CLERK. 
 
 Arrest. — ( Gdntinued.) 
 
 has been abolished by the stat. 33 & 33 
 Vict. c. 62 (with certain exceptions spe- 
 cified in the Act). 
 
 Certain places, called sanctuaries, e. g., 
 the Mint, the Savoy, etc., conferred a priv- 
 ilege from arrest ; but such privileges were 
 abolished by the stats. 8 & 9 Will. 3, c. 
 27; 9 Geo. 1, c. 28; and 1 Geo. 4, c. 116. 
 
 See also titles Capias ; Attachment. 
 
 ARREST OF JUDGMENT. The with- 
 holding or staying of judgment, notwith- 
 standing a verdict has been given, on the 
 ground that there is some error appearing 
 on the face of the record, which vitiates 
 the proceedings. Steph. on Pleading, 
 106, 6th ed. See example in Soscorla v. 
 Thomas (6 Jur. 929). As a general rule 
 the error must be one of substance, and 
 not merely formal, tbe Statutes of Amend- 
 ments and Jeofails excluding it in respect 
 of the latter. The defendant is of course 
 the party who moves in arrest of judg- 
 ment. 
 
 In criminal cases the accused may at 
 any time between conviction and sen- 
 tence, but not afterward, move an arrest 
 of judgment, and the court will even in 
 certain cases of its own motion arrest 
 the judgment. By the stat. 7 Geo. 4, 
 c. 64, s. SO, many formal defects in an 
 indictment are made demurrable only, 
 and are no longer available as a ground 
 of -motion to arrest. 
 
 ARRESTMENT. The Scotch term for 
 arresting. It is applied either to the 
 person or to the effects. Arrestment of 
 the person takes place in cases in which 
 there is reason to apprehend that the per- 
 son will leave the jurisdiction of the judge, 
 and so deprive the creditor of the means 
 of redress. Arrestment of the effects is 
 that process of the law by which a cred- 
 itor attaches the debt due to him, or 
 the movables belonging to his debtor 
 in the hands of a third party. 
 See title Gaknishmekt. 
 
 ♦ARRETTED. Is when a man is brought 
 before a judge and charged with a crime. 
 Jacob Diet. 
 
 ARRIAGE AND CARRIAGE were 
 indefinite service formerly demandable 
 from tenants, but prohibited by 30 Geo. 
 3, c. 50, ss. 21, 32. 
 
 *ARSER IN LE MAIN gmrning in 
 the hand). The punishment inflicted on 
 those who received benefit of clergy. 
 Jacob's Diet. Termes de Ley. 
 
 ARSON. From the Latin <vrdere (to 
 burn), is the offense of unlawfully or ma- 
 liciously setting property on fire. By the 
 ancient Common Law, the offense was of 
 two degrees, — either, (1) Felony, where 
 the defendant willfully burnt the house of 
 another, or, (2) Misdemeanor, where he 
 willfully burnt his own bouse, with the 
 intention of burning that of another. By 
 statutes passed at various periods, arson 
 of every kind was made a capital felony, 
 but the severity of the statute law was 
 mitigated by the consolidation statutes 7 
 & 8 Geo. 4, c. 30, and 7 Will. 4 & 1 Vict, 
 c. 89, according to which certain arsons 
 were made capital felonies, and the rest 
 felonies not capital. The present law is 
 embodied in the statute 34 & 25 Vict. c. 
 97. See Arch PI. Crim. Cases (17th ed.) 
 pp. 503-520. 
 
 *ART AND PART. In Scotch law, 
 an accessory in the commission of a 
 Clime. 
 
 ♦ARTICLES. A system of rules estab- 
 lished by authority; as a/rticles of war; 
 articles of faith. A written instrument 
 containing a compact or agreement; as 
 a/rticles of agreement ; articles of confed- 
 eration ; articles of partnership. 
 
 ARTICULI CLERI. The name of an 
 ancient statute, 9 Edw. 3, st. 1, concern- 
 ing the liberties and franchises of the 
 clergy. The petitions presented to the 
 Star Chamber by Archbishop Bancroft, 
 in 1605, being thought to present some 
 analogy to the statute of the 9 Edw. 2, 
 were called by Lord Coke by the same 
 name. 1 Hall. Const. Hist. p. 334. 
 
 ARTICULI SUPER CHARTAS. The 
 
 title of the stat. 38 Edw. 1, confirming 
 Magna Charta and the Charta de Foresta, 
 without the saving clauses which were 
 contained in the Confirmatio Chartarum, 
 25 Edw. 1. 
 
 ARTICLED CLERK. Is a clerk under 
 articles (i. e., heads and particulars) of an 
 agreement to serve a solicitor in consider- 
 ation of being initiated into the routine 
 and mystery of the profession. No one 
 solicitor may have more than two articled 
 clerks at any one time (7 & 8 Vict, 
 c. 73), but a firm of, say three, partners 
 may have as many as sis (3 x 2) such clerks 
 among them, viz., two to each partner, 
 provided each is bound separately to one 
 of the partners only, and not generally to 
 all. Where the clerk is (as usually bap- 
 pens) at the date of the articles under 
 
ARTICULATE ADJUDICATION. — ASSIGNMENT OF ERRORS. 
 
 33 
 
 Articled Clerk. — {Oontinued.) 
 
 age, his parent or guardian is usually 
 
 made a party to the articles as well as 
 
 himself. 
 
 See title Attoknbt. 
 
 ♦ARTICULATE ADJUDICATION. In 
 
 Scotch law, a separate adjudication for 
 each of several claims of a creditor. 
 
 ■^ASPORTATION. The carrying away 
 of goods, an act necessary to constitute 
 the oflense of larceny. 4 Bl. Com. 231. 
 
 ASPORTATIS, DE BONIS : See title 
 Trespass. 
 
 *ASSACH. In old Welsh law, an oath 
 made by compurgators. 
 
 ASSASSINATION. Properly means 
 murderaccomplished with premeditation, 
 or lying in wait. This is the definition 
 of it given by the Trench law. Code 
 Penal iii., 3, 1. 
 
 ASSAULT AND BATTERY. Accord- 
 ing to Hawk. P. C. i, c. 62, s. 1, an assault 
 is an attempt or offer to do a corporal 
 hurt to another, • as by striking him, or 
 presenting a gun at him at carrying dis- 
 tance, or pointing a pitchfork at him 
 which might reach him, or holding up 
 one's fist at him, or doing any such like 
 act in an angry threatening manner ; and 
 a battery is any injury whatsoever to the 
 person of a man done in an angry, re- 
 vengeful, rude, or insolent manner. An 
 assault and battery is the combination of 
 both offenses. By the Common Law, an 
 assault or battery is only a misdemeanor ; 
 but by the stat. 9 Geo. 4, c. 31, s. 25, 
 and subsequently by the stat. 24 & 25 
 Vict. c. 100, certain aggravated assaults 
 are made felonies, and certain others, 
 although remaining misdemeanors, are 
 visited with severer punishment. 
 
 Either an action at suit of the injured 
 party, or an indictment at suit of the 
 Crown, or both, may be brought or laid 
 for the oflense, and the police magistrates 
 have also a summary jurisdiction over the 
 oflense. 
 
 *ASSEDATION. In old Scotch law, 
 a term used to signify a feu-right or 
 lease. Bell Diet. 
 
 ASSEMBLY, UNLAWFUL, is defined 
 to be the meeting of three or more per- 
 sons with the intention of doing an unlaw- 
 ful act. 
 
 See also title Riot. 
 
 ASSESS. To fix or settle the amount 
 of a tax or" rate. 
 
 ASSESSED TAXES : See title Taxa- 
 
 TIOK. 
 
 ASSESSMENT OF 
 title Damages. 
 
 DAMAGES: See 
 
 ASSESSOR. A person learned in some 
 particular science or industry, who sits 
 beside the judge or other officer of a 
 court to assist him with his advice in the 
 trial of a case requiring special knowledge. 
 
 ASSETS: 
 OP Assets. 
 
 See title Administration 
 
 ♦ASSEVERATION. An appeal by a 
 witness, to his conscience, that be is tell- 
 ing the truth. 
 
 ASSIGN. This word has several dis- 
 tinct meanings, as to which see the four 
 following titles respectively. 
 
 ASSIGNMENT OF BREACHES. 
 
 Where a contract (whether specialty or 
 simple) is broken, and an action is brought 
 upon it, it is necessary to state that the 
 contract has been broken, and this state- 
 ment of the breach is called the assign- 
 ment of the breach ; or, if the contract 
 has been broken in more respects than 
 one, then the statement of these respects 
 is called the assignment of breaches. 
 Generally this assignment should be made 
 in the words of the covenant or promise, 
 negatively or affirmatively, according as 
 the words of the contract are affirma- 
 tive or negative ; and it is not safe or ex- 
 pedient to descend into details, excepting 
 as examples of the prior general assign- 
 ment. See BuU & Leake, PI., 61-2. 
 
 ♦ASSIGNMENT OF DOWER. The 
 making or laying ofl of a third of a man's 
 lands as his widow's dower. 4 Kent 
 Com. 63, 69. 
 
 ASSIGNMENT OF ERRORS. Upon 
 proceedings in error (see that title), 
 where the error is one oifact, it is neces- 
 sary for the plaintifl in error to specify 
 the particular alleged error or errors; 
 and this is called the assignment of er- 
 rors. The form of doing so is regulated 
 by the 0. L. P. Act, 1852, s. 158, Sch. 
 A., form No. 12, which furnishes a gen- 
 eral form of pleading, and also requires 
 an affidavit in support, particularizing 
 the error or errors. 
 
 See also title Error. 
 
34 ASSIGNMENT OF PERSONAL PROPERTY. — ASSISE DB UTBUM. 
 
 ASSIGNMENT OF PEBSONAl PRO 
 PERTT. The assigning over or trans- 
 ferring to another person the right or 
 interest which one has in sonae matter or 
 thing. 
 
 (1) As applied to leasehold property 
 or chattels real. See title Conybyancbs. 
 It was the rule of the Common Law, that 
 all certain estates and interests in lands 
 and tenements were assignable, but that 
 mere titles, rights of entry, contingent 
 interests, and possibilities, were not as- 
 signable (Co. Litt. 314 a, 266 a). But 
 under the stat. 8 & 9 Vict. c. 106, all 
 such latter interests have become assign- 
 able. 
 
 (3) As applied to personal property, 
 and hereunder {a) In possession. The 
 assignment of that was always permitted 
 by the Common Law, and is effected in 
 the same way as the assignment of lease- 
 holds. 
 
 (b) Not in possession. Personal prop- 
 erty not in possession is ordinarily des- 
 ignated a ehose in action (see that title). 
 By the Common Law, no such chose was 
 assignable (Com. Dig. Assignment, c. 1, 
 3, 3) ; but in Equity every such chose is 
 and always has been assignable, the 
 Court requiring the assignor to perfect 
 what he has done toward an assignment, 
 and holding that an imperfect legal as- 
 signment is at any rate evidence of a 
 contract to assign, which contract, when 
 for value, the Court will enforce. But, 
 as the result of gradual approximations 
 on the part of Law to equitable princi- 
 ples — approximations attributable part- 
 ly (as in the case of bills of exchange) to 
 mercantile usage, partly and chiefly (as 
 in the case of policies of assurance) to 
 statutes, in particular the culminating 
 Stat. 36 & 37 Vict. c. 66 (Judicature Act, 
 1873), s. 35, every chose in action is now 
 become assignable equally in Law as in 
 Equity. 
 
 ASSIGNS OR ASSIGNEES. The trans- 
 ferees under an assignment of personal 
 property (see that title). They may be 
 either (1) general assignees, as in the 
 case of bankruptcy, or (3) particular as- 
 signees, as under a bill of sale (see both 
 these titles). In cases of bankruptcy, 
 they were either official assignees or trade, 
 i. e., creditors', assignees; but under the 
 Bankruptcy Act, 1869, the word trustee 
 is substituted for that of assignee, and 
 the registrar is made the official trustee, 
 and the nominee of the creditors is called 
 simply the trustee. 
 
 Assigns or Assigrnees. — (Oontinued.) 
 
 It is a rule of law that assignees of a 
 chose in action take subject to the equi- 
 ties, and that they do so although partic- 
 ular assignees for value and without 
 notice. As to how far covenants are 
 binding upon or can be made to bind as- 
 signees, see title Covbnauts. 
 
 ASSISE. This word is derived from 
 assideo, to sit together; and is usually 
 taken for the Court, place or time where 
 the judges of the three superior Courts 
 at Westminster try all questions of fact 
 issuing out of those Courts that are ready 
 for trial by jury. These assizes are, in- 
 deed, neither more nor less than the sit- 
 tings of the judges at the various places 
 where they visit on their .circuits, and 
 which they usually make four times in 
 every year in the respective vacations 
 after term. The word assise also some- 
 times denotes a jurt/, and sometimes de- 
 notes a lorit, as to all which, see succeeding 
 titles. 
 
 ASSISA CADIT IN JURATAM. An 
 
 assise was taken either ' 'm modum assises " 
 or 'Hn modum juratce," in which latter 
 case it was said to fall into a jury (cadere 
 injurai/um). The difference between the 
 two forms of assise appears to have been 
 this: 
 
 (1) In nature, the very matter alleged 
 by the plaintiff as his ground of claim was 
 traversed in the asdsa, while in the ju- 
 rata some fresh point was stated which 
 went to destroy that ground of claim; 
 and 
 
 (3) In consequence, — the jury could 
 not be attainted for false verdict in the 
 jurata, whereas in the assisa they might 
 be attainted. 
 
 ASSISA CADIT IN PERAMBULA- 
 TIONEM. The jury declaring their ig- 
 norance of the boundaries in a question of 
 disputed boundaries, the judge would 
 order a perambulation, with a view to 
 ascertain the boundary ; whence this 
 phrase. 
 
 See titles View, Inspection of Pkop- 
 
 BRTT. 
 
 ASSISE DB UTRUM. This writ, which 
 was called also assisa jurum utrwn, lay 
 for a parson against a layman, or for a 
 layman against a parson, for lands or 
 tenements, as to which it was doubtful 
 whether they were lay-fees or free-alms. 
 Cowel. 
 
ASSISA PANIS ET CERE VISIiE.— ATTACHMENT, FOREIGN. 35 
 
 ASSISA PANIS ET CEREVI8IJE. 
 
 This was the power of assising (at the 
 time the judges on circuit assised), the 
 weight of bread and the measure of beer. 
 The Stat. 51 Hen. 3, for fixing the price 
 of bread and ale, was so called. Oowel ; 
 Tomlins. 
 
 ASSISE OF DARREIN PRESENT- 
 MENT. This was a writ which lay when 
 a man or his ancestor had presented a 
 clerk to the church, and after the church 
 had become void .by his death or other- 
 wise a stranger presented his clerk 
 to the church in disturbance of the pa- 
 tron. F. N- B. 31 P. 
 
 ASSISE OF MORT D' ANCESTOR. A 
 
 writ that lay when a man's father, sister, 
 mother, brother, etc., died seized of 
 lands, tenements, rents, etc., that were 
 held in fee, and after their death a stranger 
 caused an abatement. See title Abate- 
 ment. 
 
 ASSISE OF NOTEL DISSEISIN. A 
 
 remedy for the recovery of lands qi tene- 
 ments of which the party himself had 
 been disseised. 
 
 ASSISE OF NUISANCE. A writ 
 which lay against a man to redress or re- 
 move a nusiance which he had created 
 to the freehold of another, which the 
 latter held for life, in tail, or in fee sim- 
 ple. F. N. B. 183, I. 
 
 ASSISE RENTS. Are the certain es- 
 tablished rents of the freeholders and 
 ancient copyholders of a manor, and are 
 so called precisely because they are as- 
 sised or certain. 
 
 ASSISTANCE : 
 
 SISTAHCE. 
 
 See title "Wb.it of As- 
 
 ASSOCIATE JUDGE. Under the stat. 
 15 & 16 Vict. c. 73, ss. 1-6, there is an 
 associate in each of the Common Law 
 Courts, appointed by the respective chiefs 
 of these courts. Each associate appoints 
 two clerks for assisting him in the dis- 
 charge of his duties, such latter appoint- 
 ments being subject to the approval of 
 the chief of the Court. No associate may 
 act as either a barrister, a solicitor, or an 
 attorney. 
 
 ASSUMPSIT. Is a promise (not being 
 under seal) by which one person assumes 
 or takes upon him to do some act or pay 
 something to another. See also next 
 title. 
 
 ASSUMPSIT, ACTION OF. Is the 
 
 form of action given by law to recover 
 damages for the. non-performance of con- 
 tracts, either expressed or implied, and 
 which are neither of record nor under seal. 
 In origin, it was an action on the case for 
 non-performance of an agreement ; and in 
 Slade y. Morley, 4 Rep. 92 b, 44 Elix., it 
 was settled that the assumpsit might even 
 be brought for a sum certain, although 
 debt was the more natural form of action. 
 See, also, titles Action ; Simple Con- 
 tract. 
 
 ASSURANCE. This word is the same 
 as Insurance, which see. 
 
 • * ASTRER. A householder or occu- 
 pant of a house or hearth. Britt. c. 59. 
 
 * ASSTTHEMENT. In Scotch law, 
 damages awarded to. the relative of a 
 murdered person from the murderer, who 
 has not been convicted and punished. 
 Peterson Comp. 26 Scott. Jur. S.C. 156; 
 37 id. 450 ; Bouv. Diet. 
 
 * ASTRIHILTET. In Saxon Law, a 
 penalty for a wrong done by one in the 
 King's peace. Spehnan, Gloss; Bouv. 
 Diet. 
 
 ATTACHMENT (aUachimentum). A 
 taking, apprehending, or seizing by com- 
 mand of a judicial writ, termed a writ of 
 attachment. The process of attachment 
 was frequently resorted to in the Court of 
 Chancery, to enforce the appearance of a 
 party who had been served wtth a sub- 
 poena, and who had taken no notice of it ; 
 and under the present practice, the plain- 
 tiff may (although it is unusual to) exercise 
 the same process against a defendant re- 
 fusing to appear to the bill (1 Dan. Ch. 
 Pr. 384-5). And, generally, an attach- 
 ment may issue in all cases for a contempt 
 of Court, arising from a refusal to obey 
 or to comply with its process. 
 
 ATTACHMENT, FOREIGN. This was 
 a peculiar and ancient remedy open to 
 creditors within the jurisdiction of the 
 city of London, Exeter and some other 
 ancient cities, by which they were en- 
 abled to satisfy their own debts by at- 
 tachinff or seizing the money or goods of 
 their debtor in the hands of a stranger or 
 third person within the jurisdiction of 
 such city. M ' Orath v. Hardy (4 Bing. 
 N. C. 785) contains a very luminous state- 
 ment of the proceedings in foreign at- 
 tachment. The Lord Mayor's Court of 
 the City of London still exercises very 
 extensive powers of this character. 
 See also- next title. 
 
36 
 
 ATTACHMENT OF DEBTS. — ATTORNEY. 
 
 ATTACHMENT OF DEBTS. Under 
 the Stat. 17 & 18 Vict. c. 135, s. 60, a 
 creditor who has obtained a judgment in 
 a superior Court of Law, may apply to 
 the Court or a judge for a rule or order 
 that the judgment debtor should be or- 
 ally examined as to what debts are owing 
 to him, and under s. 61, upon affidavit 
 that the debt or debts are still unsatisfied, 
 and that some third person (to be speci- 
 fied) within the jurisdiction is indebted 
 to the defendants, the judge may order 
 that all debts owing or accruing from 
 such third person (called the garnishee) 
 to the debtor shall be attached to answer 
 the judgment debt. The stat. 33 & 34 
 Vict. c. 30, prohibits the attachment of 
 wages. 
 
 ATTAINDER. The taint, stain or 
 corruption of blood, which the law at- 
 taches to a criminal who is capitally con- 
 demned. He is then called attaint {at- 
 UnePus), stained or blackened, and who is 
 no longer of any credit or reputation, and 
 is considered already dead in law, and 
 incapable of performing the functions of 
 another man. The effect of an attainder 
 used to be a forfeiture of the party's hon- 
 ors and dignities ; he used to become de- 
 graded in the eye of the law, so that his 
 children could not be heirs to him nor to 
 any other ancestor through him, and 
 these consequences could only be re- 
 moved by authority of Parliament (Co. 
 Litt. 391 b, s. 745). But under the For- 
 feiture for Felony Abolition Act, 1870 
 (33 & 34 Vict. c. 33), s. 1, no conviction 
 for any treason or felony is to cause any 
 attainder or corruption of blood, or any 
 forfeiture or escheat. 
 
 ATTEMPT. Is defined in jurispru- 
 dence as that which, if not prevented, 
 would have resulted in the full consum- 
 mation of the act attempted. "Wherefore 
 there can be no attempt to steal a purse 
 from an empty pocket {B. v. Oollins, L. 
 & C. 471) ; but an action of trespass for 
 the assault may lie {see title AssAtrLT), or 
 a count for the misdemeanor may be 
 framed; and generally all attempts to 
 commit a felony, not being murder, 
 which are frustrated, may be treated as 
 misdemeanors. And under the stat. 14 
 & 15 Vict. c. 100, s. 9, it is competent to 
 the court to convict of the attempt u^on 
 an indictment for the felony according 
 to the evidence adduced at the trial. 
 
 ATTENDANCE OF WITNESSES. 
 
 May be enforced by subpmna ad testifican- 
 
 Attendance of Witnesses. — {Continued.) 
 dwn, a refusal to obey which is a con- 
 tempt of court, and may be punished by 
 
 attachment. 
 
 ATTENDANT TERMS. Terms of 
 years created by the owner of the inher- 
 itance by way of mortgage, or otherwise, 
 used when satisfied to become attendant 
 upon the inheritance, either by opera- 
 tion of law, or by express declaration, 
 for the protection of the inheritance. 
 But under the Satisfied Terms Act (8 & 9 
 Vict. c. 113), all such terms are abso- 
 lutely to cease for all, purposes whatso- 
 ever, excepting that terms attendant by 
 express declaration on the 31st of De- 
 cember, 1845, are to protect the inherit- 
 ance as before. 
 
 See title Satisfied Tebms. 
 
 ATTESTATION. The act of witness- 
 ing the execution of an instrument, and 
 subscribing it as a witness. 
 
 See title Evidence. 
 
 ATTESTING WITNESS: See. title 
 
 EVIDBNCB. 
 
 ATTORNEY. One who is put in the 
 place or stead of another to act for him. 
 There are two kinds of attorneys ; one who 
 acts in a private capacity, and is simply 
 called an attorney while his authority to 
 act for such other party is in? existence 
 (see title Attoknet, Powkb of); the 
 other, who acts in a public capacity as 
 an officer in Her Majesty's Courts at 
 Westminster, and who is called an attor- 
 ney-at-law, and whose duty consists in 
 transacting and superinten^ng the legal 
 business of his clients, as in prosecuting 
 and defending actions at law, in furnish- 
 ing his clients with legal advice, and in 
 performing various other important mat- 
 ters connected with the practice of the 
 law. Such latter attorneys are some- 
 times, and indeed more commonly called 
 solicitors (s«e that title). Every attorney 
 must have been an articled clerk (see that 
 title), and must have been admitted by 
 the Master of the Rolls to the office of 
 attorney ; and must also take out annu- 
 ally a certificate to practice, paying the 
 stamp imposed by the Stamp Act, 1870 
 (33 & 34 Vict. c. 97). Under the stat. 
 33 & 24 Vict. c. 37, being in the Law 
 List is primd facie evidence of being duly 
 qualified. Under the stat. 83 & 34 Vict. 
 c. 38, a solicitor or attorney is enabled to 
 make an agreement with respect to future 
 (as he was already able with respect to 
 
ATTOENEY, POWER OP. 
 
 37 
 
 Attorney. — (Continued.') 
 past) costs ; but all such agreements are 
 subject to taxation. 
 
 See, also, titles Lien; Retaiubk; and 
 Taxation of Costs. 
 
 ATTORNEY, POWER OF. This is an 
 instrument by which one person empow- 
 ers another to act in his stead. The 
 donor of the power is called the princi- 
 pal ; the donee is called the attorney, or 
 (when appointed by a corporation aggre- 
 gate to receive administration) the syn- 
 dic A power of attorney which simply 
 authorizes the attorney to vote is called 
 a proxy; one which simply authorizes 
 the attorney to appear in an action and 
 confess the action or suffer judgment to 
 go by default, is called a warrant of at- 
 torney. All other authorities are called 
 simply powers of attorney, the power 
 being special if it is to do one particular 
 act, and general if to do generally all 
 matters connected with a particular em- 
 ployment. And even where the power 
 of attorney is general, a further special 
 power of attorney is occasionally neces- 
 sary, even for a matter comprised in the 
 general power, e. g., in a foreclosure suit 
 to receive the purchase-money (Bourdil- 
 lon V. Soclie, 27 L. J. [Oh.] 681) ; also in 
 an action or suit in which money has 
 been paid into court, to receive that 
 money out of court (Middleton v. Younger, 
 22 L. J. [Ch.] 1005). And, again, a gen- 
 eral power of attorney may be either lim- 
 ited, as when it leaves nothing to the 
 discretion of the attorney ; or unlimited, 
 as when it leaves every thing to his dis- 
 cretion. 
 
 I. Persons capable of making attor- 
 neys. 
 
 An infant cannot execute a power of 
 attorney, unless to do an act wmch is for 
 his own benefit, e. g. , to receive livery of 
 seisin for him (Palfryman v. Grdbic, 1 
 Roll. Abr. 730), not also to make livery 
 for him ( Whittingham's Case, 8 Rep. 45 
 a.), although at the age of fifteen years 
 he may, under a custom, be able to make 
 a feoffment in his own person. The 
 guardian is able to appoint the infant's 
 attorney (Gfraham, v. Maclean, 2 Curt. 
 659), and he may even be ordered to do 
 so (Rueh V. Barworth, 35 L. T. 242). 
 
 A lunatic cannot execute a power of 
 attorney ; but where a person apparently 
 sane at the time executes a general power 
 of attorney, under which his attorney 
 enters into a feir and hand fide contract 
 on his behalf, such contract, after it is 
 
 Attorneyj Power of. — (GonUnmd.) 
 executed, cannot be set aside, although the 
 principal should be afterward found to 
 have been a lunatic at the time of the 
 execution of the power. Ex parte Brad- 
 hiry, 1 Mont. & Ch. 625. 
 
 A married woman cannot execute a 
 power of attorney ; and if she join with 
 her husband in executing one, the power 
 of attorney is that of the husband alone, 
 and therefore ceases with his death (In re 
 Jones, 5 W. R. 336). But so far as she 
 has separate estate, whether existing by 
 creation of equity, or in virtue of the M. 
 W. P. Act, 1870 (33 & 84 Vict. c. 93), 
 she is fully able to execute a power oif 
 attorney ; but, sembU, she has no such car 
 pacity in respect of the separate estate 
 created upon judicial separation by the 
 Act 20 & 21 Vict. c. 85 (Faithorne v. 
 Blaquvre, 6 M. & S. 73) . And where a 
 married woman is an executrix or admin- 
 istratrix, she must join her husband in 
 the execution of a power of attorney 
 (Wms. Bxors, 5th ed. 869). But with 
 reference to a fund in court belonging to 
 a married woman, she may, after being 
 examined, execute a power of attorney 
 directing a payment out of court of the ' 
 fund to her husband. AUatt v. Bailey, 
 1 W. R. 383. 
 
 Generally, also, when an act is intended 
 to be personal to the party, he cannot 
 constitute, by power of attorney or oth- 
 erwise, a deputy to perform it for him, e. 
 g., the doing of fealty (Oombes^ Case, 9 
 Rep. 76 a) ; the duties of trustees (Att.- 
 Gen. V. Scott, 1 Ves. Sen. 413); unless 
 indeed, but only with reference to trus- 
 tees, in a case of moral necessity (Joy v. 
 Cam^heU, 1 Sch. & Lef. 341 ; Stuart v. 
 Norton, 9 W. R. 320 ; Eophinson v. Boe, 
 1 Beav. 180). Similarly, railway com- 
 panies cannot, unless authorized by Par- 
 liament, delegate to another company, or 
 to other companies, the statutory powers 
 conferred on themselves (Winch y. Birch- 
 enhead, &c., By. Co., 16 Jur. 1035; Cheat 
 Northern By. Go. v. Eastern Counties By. 
 Co., 9 Hare, 306). Also, one joint ten- 
 ant or tenant in common cannot appoint 
 rfh attorney for himself and his co-ten- 
 ants ; but one partner may do so for him- 
 self and his co-partners in matters usual 
 in the , partnership (Ex parte Mitchell, 14 
 Ves. 597), but not in matters beyond 
 what are usual. Hambridge v. Be la 
 Crouce, 4 D. & L. 466. 
 
 All other persons are capable of mak- 
 ing attorneys. 
 
 n. Instrument constituting attorney. 
 
38 
 
 ATTOKNEY, POWER OP.— ATTORNMENT, 
 
 Attorney, Power of. — (Continued.) 
 ' An attorney to make or take livery, or 
 to execute a deed, must be constituted 
 by deed ; and so also the attorney for a 
 corporation aggregate in all matters of 
 solemnity {Dumper v. 8yms, Cro. Eliz. 
 816). But an attorney of a corporation 
 sole, and, generally, any private person 
 ■who is capable of appointing an attorney 
 at all, may appoint one by deed, writing 
 not under seal, or parol, as he pleases, 
 according as the greater or less solemnity 
 of the occasion requires. Me parte 
 Can3y, 5 L. J. (N. S.) Oh. 14. 
 
 It is not necessary that the attorney 
 should be a party to the indenture con- 
 stituting him. ifoyle v. Swer, Cro. Eliz. 
 905. 
 
 It is competent to authorize the attor- 
 ney to appoint a sub-attorney, and the 
 substitute, when appointed, has full ca- 
 pacity. Blandy v. Brice, 8 Jarm. Conv. 
 12, n. (».). 
 
 The attestation of the execution of the 
 deed constituting the attorney is gener- 
 ally by two witnesses, the Bank of Eng- 
 land and certain other public bodies in- 
 „ sisting upon that number, inasmuch as 
 if a power of attorney is forged; it is a 
 nullity as regards the misapparent prin- 
 cipal. Damis v. Bank of England, 2 Bing. 
 393; 5B. &C. 185. 
 
 When the power of attorney authorizes 
 the doing of a certain act, it impliedly 
 authorizes the doing also of every thing 
 properly incident to that act (Bayley v. 
 Wilhlns, 7 0. B. 886); e. g., a power to 
 sell goods implies a power to receive 
 payment on the sale {Oapelr. Thornton, 
 3 C. & P. 353), and a power to manage a 
 mine is an implied power to incur debts 
 for wages (Ex parte Chippendale, In re 
 German Mining Company, I De Gr., M. & 
 G-. 19). Nevertheless, the power is to be 
 construed strictly, and therefore the at- 
 torney cannot bind his principal by any 
 act beyond the scope of his authority 
 (Fenn v. Harrison, 3 T. R. 757), e. g., 
 a power to indorse bills remitted to the 
 principal, or to indorse and negotiate 
 such bills, would not authorize the mak- 
 ing of accptances (Attwood v. Munningi^l 
 B. & C. 278, (nor will the general words 
 which are usually thrown in at the end 
 of the power be construed as enlarging 
 the authority beyond matters strictly in- 
 cident to the principal object of the power 
 (EsdaMe v. La Name, 1 V. & C. 394). 
 However, when the attorney merely ex- 
 ceeds his authority, the excess alone is a 
 nullity (Perkins, 189); and where he 
 
 Attorneyj Power of. — {Continued.) 
 varies from the power, the variation, bfe- 
 ing immaterial, will not avoid the act. 
 1 Salk. 96. 
 
 A power of attorney is inherenily re- 
 vocable, and words purporting to make it 
 not so are void for repugnancy ( Vyniors' 
 Case, 8 Rep. 82 a.) ; nevertheless, when 
 the power forms part of a security, or is 
 for value, it is irrevocable {JBromley v. 
 BbUamd, 7 Ves. 28). The revocation may 
 be either express or implied ; and, if ex- 
 press, then by either party or by both and 
 either by deed, writing not under seal, ot 
 word of mouth, no matter in which of these 
 ways it may itself have been created ; and 
 if implied, then by the exhaustion of the 
 power, whether in substance or in time, 
 or by the death of the person constituting 
 the attorney. And with reference to 
 death as an implied revocation, this dis- 
 tinction is taken, that when the power is 
 a power simply, it always revoked both at 
 Law and in Equity ; but when it forms 
 part of a security, then it is revoked at 
 Law (Watson v. King, 4 Camp. 273), but- 
 continues good in Equity (Brasier v. 
 Hudson, 9 Sim. 1) ; and of course it is 
 good both at Law and in Equity as to 
 things already effected under it before 
 the death. And, again, with regard to 
 things effected after the death, but with- 
 out notice of the death, these are good in 
 Equity (Hughes v. Walmsley, 13 Jur. 833) ; 
 and of course, since the Judicature Act, 
 1873, at law also, although formerly they 
 were doubtfully so. Lastly, with regard 
 to things done after the death, and with 
 notice of the death, these are necessarily 
 bad when the power is a power simply, 
 but good when the power forms part of a 
 security (Kiddill v. FarneU, 3 Sm. & Gif. 
 428). And see as to trustees and per- 
 sonal representatives, 22 & 23 Vict. c. 
 35, s. 26. 
 
 In executing a deed pursuant to his 
 power, the attorney ought to seal and 
 deliver, in the case of a simple power, in 
 the name of his principal, e. g., " A. B., 
 by his attorney, C. D ; " and in the case 
 of a power forming part of a security, in 
 his own name. Therefore, leases, sub- 
 missions to an award, and such hke, 
 should be in the principal's name. 
 
 ATTORNEY-ttENERAL. The law 
 
 officer in England and the United States, 
 who represents the government in the 
 courts, 
 
 ATTORNMENT (attornamentum). A 
 tenant's acknowledgment of his new land- 
 
AUCTION. — AUTBRFOIS ACQUIT. 
 
 39 
 
 Attornmenti — ( ConUnued,.') 
 lord on the alienation of lands by the for- 
 mer landlord. It is of feudal origin, for 
 Oy the feudal law the feudatory could not 
 aliene or dispose of the feud without the 
 consent of the lord, nor the lord aliene or 
 transfer his seigniory without the consent 
 of his feudatory (Bract. 41 ; Spelman, verb. 
 Attuma/menMrrC). And generally to the 
 validity of any grant of a seigniory, rever- 
 sion or remainder, the attornment of the 
 tenant was necessary; insomuch that if 
 two successive grants were made of the 
 same seigniory, reversion or remainder, 
 and the tenant attorned to the second 
 grantee, the first grantee was defeated. 
 Nor was there any legal means of compel- 
 Ung the tenant's attornment; but the 
 grant might be made by fine, which dis- 
 pensed with the necessity for attornment. 
 However, by stat. 4 Anne, c. 16, ss. 9, 
 10, the necessity for attornment is dis- 
 pensed with in all cases, although attorn- 
 ment is still permissible; and by the 
 further stat. 11 Geo. 3, c. 19, s. 11, 
 attornments are deprived of any tortious 
 effect, when made to strangers claiming 
 the land as against the rightful landlord. 
 The payment of rent under a mistake as 
 to the claimant's title is held not to 
 amount to an attornment. 
 D(Mge, 3 Bing. 474. 
 
 AUCTION. This consists in the sale 
 of lands or goods in public, as opposed 
 to a saje thereof by private contract. 
 
 The sale of real estate by auction is 
 now regulated by the 30 & 31 Vict. c. 48, 
 the short contents of which Act are as 
 follows : — 
 (1.) No puffer is to be employed, other- 
 wise the sale is void ; 
 (2.) The conditions of sale are to state 
 whether or not the sale is with- 
 out, reserve; also, 
 (3.) Whether or not a right to bid is 
 
 reserved; and 
 (4.) The practice of opening the bid- 
 dings is abolished. 
 See also titles Conditions of Sale ; 
 Rbsbkte. 
 
 AUCTIONEER. Under the stats. 8 & 
 9 Vict. c. 15, and 37 & 38 Vict. c. 56, 
 must have a license. In case he have not 
 himself, but through his clerk only (Bird 
 V. Boulter, 4 B. & Ad. 448), signed the 
 memorandum of agreement, he may sue 
 the buyer {Bdbinaon v. Butter, 4 E. & B. 
 954) ; without prejudice, however, to the 
 purchaser's right to set-ofi any debt due 
 
 Auctioneer. — (ConUnued.) 
 
 from the principal (the vendor). Ooppen 
 
 V. Craig, 7 Taunt. 248. 
 
 ♦AUDIENCE COURT. A court be- 
 longing to the archbishop of Canterbury, 
 having the same authority as the Court 
 of Arches. The Archbishop of York 
 has also his Audience Court. 
 
 AUDITA QUERELA. A writ which 
 Ues for a defendant, against whom judg- 
 ment has been recovered, and who is 
 therefore in danger of having execution 
 issued against him, to relieve or discharge 
 him upon showing some good ground for 
 discharge which has arisen since the 
 recovery of such judgment, e.g., a, release. 
 This remedy is now rarely resorted to, in- 
 asmuch as the Courts may now grant the 
 hke relief in a summary way upon 
 motion. 
 
 The writ audits, querelA is a proceeding 
 of common right and ez debito justitice ; 
 but by the rules of H. T. 1853, r. 79, the 
 writ is not allowed unless by rule of 
 Court or judge's order. 
 
 By the C. L. P. Act, .1854, s. 84, any 
 pleadable matter which arises after the 
 time for pleading may be set up by way 
 of cmditd queireld. 
 
 In an cmditd quereld the rule (if any) 
 which the court grants is absolute in the 
 first instance. (Mleg v. Hutt, 1 Exch. 59. 
 
 * AUDITOR. An officer of the court 
 assigned to state the accounts of parties 
 and exhibit the balance. An officer of 
 the government, whose duty it is to ex- 
 amine the accounts of officers who have 
 received and disbursed public moneys. 
 
 AUGMENTATION, COURT OF. The 
 
 name of a Court erected in 37 Henry 8, 
 for the purpose that the King might be 
 justly dealt with concerning the profits 
 of such religious houses and their lands 
 as were given to him by Act of Parliament 
 in that year. The Court was so called 
 because the revenues of the Crown were 
 so much augmented by the suppression 
 of such of the said religious houses as the 
 King reserved to the Crown. Les Termes 
 de la Ley. 
 
 * AULA REGIA. A Court established 
 by WiUiam the Conqueror, in his hall in 
 England. It was the Court from which 
 the principal Courts of England are 
 derived. 
 
 AUTERFOIS ACQUIT. A plea plead- 
 ed by a criminal, signifying that he has 
 
40 
 
 AUTEEFOIS ATTAINT. — BAIL. 
 
 Anterfois Acquit. — ( OonUnwd. ) 
 been formerly acquitted on an indictment 
 for the same alleged offense, it being a 
 maxim of the Common Law of England, 
 that no man's life is to be put in jeopardy 
 more than once for the same offense. Co. 
 3 Inst. 
 
 Bee, also, next two titles. 
 
 AUTERFOIS ATTAINT. A plea by a 
 criminal that he has been before attainted 
 either for the same or some other offense. 
 For wherever a man is attainted of felony 
 by judgment of death, either upon a ver- 
 dict or on confession, by outlawry, and 
 formerly by abjuration, he may plead 
 such attainder in bar to any subsequent 
 indictment on appeal for the same or any 
 other felony. The reason of this is, that 
 any proceeding on a second prosecution 
 cannot be to any purpose, as the prisoner 
 ■ is dead in law by the first attainder, his 
 blood is already corrupted, and he has 
 forfeited all that he has. 
 
 AUTEEFOIS CONVICT. A plea by a 
 criminal that he has been before con- 
 victed of the same identical crime ; it is 
 similar in its nature to that mentioned in 
 the last title but one. 
 
 *AVAL. The guaranty of a bill of 
 exchange; so called because usually 
 placed at the foot or bottom (aval) of the 
 bill. Burr. Diet. ; Story on Bills, §§ 394, 
 454. 
 
 AVERAGE. The contribution that 
 merchants and others make toward the 
 losses of those who have their goods cast 
 into the sea for the safeguard of the ship 
 or of the other goods and of the lives 
 therein ; it is called an average because it 
 is proportioned after the rate of every 
 man's goods carried. 
 
 Such average is either general or gross 
 on the one hand, or particular and petty 
 on the other; as to the former, se« title 
 General Avbbage ; and as to the latter, 
 it arises when any particular damage is 
 done to the cargo or vessel by accident 
 or otherwise, such as the loss of an anchor 
 or cablesf the starting of a plank or such- 
 like other particular losses which do not 
 endanger the general safety. All such 
 latter losses rest where they fall. 
 
 AVEEIIS CAPTIS IN WITHER 
 NAM. A writ for the taking of cattle to 
 a person's use, who has had his own cat- 
 tle taken by another, and driven out of 
 the county where they were taken, so that 
 
 Areriis Captis in Withernam. — {Oon.) 
 they cannot be replevied. Eeg. Orig. 83 , 
 Cowel. 
 
 AVERMENT. An allegation in plead- 
 ing is so called. 
 
 AVOWRY: See title Replevin. ■ 
 
 ♦AVULSION. The severance of a 
 large piece of a person's land by a stream 
 of water and the deposit thereof on the 
 land of another. The title is not changed 
 until the piece of land has adhered so 
 long as to become a part of the land to 
 which it adheres. 
 
 AWARD : See title Abbitbation. 
 
 BACKING A WARRANT. The war- 
 rant of a justice of the peace cannot be 
 enforced or executed in any other county 
 than that in which he has jurisdiction, 
 unless a justice of such other county 
 wherein it is to be executed indorses. or 
 writes on the back of such warrant an 
 authority for that purpose, which is thence 
 termed backing the warrant. 2 Robin- 
 son's Mag. Assist. 572 ; 24 Geo. 8, c. 55 ; 
 5 Geo. 4, c. 18, s. 6. 
 
 BAIL (balUum). The setting at liberty 
 of a person who is arrested in any action, 
 formerly civil or criminal, but now only 
 criminal, on his finding sureties for his re- 
 appearance. It is, however, usually under- 
 stood for the sureties themselves : as if A. 
 is arrested and puts in bail, this means 
 that he has found persons who have be- 
 come sureties for his re-appearance, and 
 who take upon themselves the responsi- 
 bility of his returning or not returning 
 when required. There are or were several 
 kinds of bail, of which the principal are the 
 following, viz. : (1.) Bail lelow^i Bail to 
 the sheriff; (2.) Bail above, Specml Bail, or 
 Bail to the action; (3.) Bail in error; and 
 (4.) Com/mon Bail. Now, taking each of 
 these four varieties of bail in order: (1.) 
 Bail below, or to the sheriffjwas such as a 
 defendant put in when arrested upon a 
 writ of eapim. This he did by entering 
 into a bond to the sheriff with sufficient 
 sureties conditioned for his appearance 
 within the period required by the writ, 
 and which bond the sheriff was com- 
 pelled by statute to accept, and to dis- 
 charge the defendant out of custody. 
 (3.) Bail above, special bail, or bail to 
 the action, were persons whom the de- 
 fendant procured to become his sureties 
 
BAIL IN CEIMINAL PROCEEDINGS. — BAILMENT. 
 
 41 
 
 Bail. — {Continued.) 
 
 for the ultimate payment of the debt and 
 costs in the action, in the event of judg- 
 ment passing against him, or as an alter- 
 native that he should surrender himself 
 to prison. They were termed bail to the 
 action, because they were responsible for 
 the defendant's abiding by the event 
 of the action, and obeying the judgment 
 of the Court therein, in contradistinction 
 to bail to the sherifl, who only undertook 
 that the defendant should appear accord- 
 ing to the exigency of the writ, and pro- 
 vide bail to the action. The undertak- 
 ing of the sureties, or bail above, was 
 drawn upon a piece of parchment by the 
 defendant's attorney, and was technically 
 termed the bail piece. (3.) Bail in error. 
 These were sureties whom a party prose- 
 cuting a writ of error, commonly called 
 the plaintifi in error, was required to find, 
 and who undertook that the plaintiff in 
 error should prosecute his writ of error 
 with effect, and that in case the plaintiff 
 was non pros-ed, or the judgment in the 
 Court below was affirmed, he should pay 
 all the debt, damages, and costs adjudged 
 upon the former judgment, and all costs 
 and damages to be awarded by reason o^ 
 the delay of execution on such former 
 judgment (3 Jac. 1, c. 8 ; 3 Car. 1, c. 4, 
 s. 4; 19 Geo. 3, c. 70; 6 Geo. 4, c. 96, ss. 
 1, 4). Common bail signified an appear- 
 ance, for an explanation of which »ee that 
 title ; and see, also, next title. 
 
 BAIL IN CKIlffilNAL PROCEBD- 
 
 INGrS. Upon application to the Court 
 of Queen's Bench, or to a judge thereof, 
 the Court or a judge may, as a favor, ad- 
 mit the prisoner to bail, and that even in 
 non-bailable proceedings. But generally, 
 in all cases of misdemeanor, the accused 
 has an absolute right to be discharged 
 from his interim custody upon filing suf- 
 ficient bail. 
 
 BAIL A CHEPTEL ) 
 
 BAIL A FERME > See title Lotjagb. 
 
 BAIL A LOTEK ) 
 
 BAIL COURT. An auxiliary court of 
 the Court of Queen's Bench, at Westmin- 
 ster, wherein points connected more par- 
 ticularly with pleading and practice are 
 argued ahd determined. 
 
 BAILIFF. There are various sorts 
 of bailiffs: as bailiffs of liberties, 
 sheriff's bailiffs,. bailiffs of lords of man- 
 ors, &c., &c. Sheriffs are also called 
 king's bailiffs, anfl the counties wherein 
 
 Bailiff. — ( Oontinued.) 
 
 it is their duty to preserve the rights of 
 the king are frequently called their bail- 
 iwicks, a word introduced by the Norman 
 piincesin imitation of the French, whose 
 territory was divided into bailiwicks, as 
 that of England is into counties. The 
 word "bailiff," however, usually signifies 
 sheriff's officers, who are either, (1.) Bail- 
 iffs of hundreds, or, (2.) Special bailiffs. 
 (1.) Bailiffs of hundreds are officers ap- 
 pointed over those respective districts, by 
 the sheriffs, to collect fines therein, to 
 summon juries, to attend the judges and 
 justices at the assizes or quarter sessions, 
 and also to execute writs and processes 
 in the several hundreds. (2.) Special 
 bailiffs are that lower class of persons 
 employed by the sheriffs for the express 
 purpose of serving writs and making ar- 
 rests and executions, &c. (3.) Those 
 persons also who have the custody of the 
 king's castles are called bailiffs, as the 
 bailiff of Dover Castle. (4.) The chief 
 magistrates of particular jurisdictions 
 are also called bailiffs, as the bailiff of 
 Westminster, for example. (5.) There 
 are also bailiffs of courts baron, bailiffs 
 of the forest, &c. Cowel ; Termes de la 
 Ley. 
 
 BAILMENT. This is the most general 
 word in English law for agency, and 
 comprises the following varieties of 
 agency : 
 
 (1.) Gratuitous bailment — in which 
 case it is settled that a mirfeasance on 
 the part of the bailee, i. e., agent, is ac- 
 tionable {Ooggs V. Bernard, 1 Sm. L. C. 
 177) ; but that a mere non-feasance is not 
 actionable. Ehee v. Qatwa/rd, 5 T. B. 
 143. 
 
 (3.) Bailment for reward — in which 
 case the bailee is of course liable as well 
 for a non-feasance, as for a misfeasance, 
 and cannot recover his recompense until 
 his performance of the duty which he 
 has undertaken. 
 
 Again, bailment comprises the follow- 
 ing varieties of agency : 
 
 (1.) Bailments in which the trust re- 
 posed is exclusively for the benefit of the 
 bailor, and hereunder Mwndatum and 
 Depositvm, as to which, see these two 
 titles. 
 
 (2.) Bailments in which the trust re- 
 posed is exclusively for the benefit of the 
 bailee, and hereunder Gommodatum (or 
 Pret d usage), and (where gratuitous) 
 Mutmwm (or PrU a consommaUon), as to 
 which, see these two titles ; and 
 
42 
 
 BAITING ANIMALS. — BANKRUPTCY. 
 
 Bailment. — (OonUimed.) 
 
 (3.) Bailments which are for the ben- 
 efit of both bailor and bailee, and here- 
 under the following varieties (as to 
 which, see the respective titles), viz. : 
 
 (1.) Pledge or Pawn — Pawnbrokbes. 
 
 (3.) (7«8{o% — Lnhkebpeks; and 
 
 (3.) Carriage — Cabribrs. 
 
 BAITINtt ANIMALS: See Crubltt 
 TO Animals. 
 
 BALLOT, VOTE BT. Under the stat. 
 35 & 36 Vict. c. 33, all parliamentary and 
 municipal elections are required to be 
 made by ballot ; and under the Elemen- 
 tary Education Act, 1870 (33 & 84 Vict. 
 c. 76), the elections are similarly required 
 to be by ballot. 
 
 This mode of voting was one "of the 
 five points advanced by the so-called 
 Chartists, in 1839, as the People's Char- 
 ter ; the four other points being universal 
 BufiErage, annual parliaments, payment of 
 members, and the abolition of the prop- 
 erty qualification for members of parlia- 
 ment. 
 
 See, also, Reprbsbntation. 
 
 BANC, OR BANCO, SITTING IN. 
 
 The sittings which the respective su- 
 perior Courts of Common Law hold 
 during every term, and on certain 
 appointed days after term, for the pur- 
 pose of hearing and determining the 
 various matters of law argued before 
 them, are so called, in contradistinction 
 to the sittings at Nisi Prius, which are 
 held for the purpose of trying issues of 
 FACT. The former are usually held be- 
 fore four of the judges ; at the latter, one 
 judge only presides. 
 
 BANKERS. According to the decision 
 in Fohy v. Mil, (2 H. L. C. 38), the rela- 
 tion between a banker and a customer 
 who pays money into the bank, is the 
 ordinary relation of debtor and creditor, 
 with a supei>added obligation arising out 
 of the custom of bankers to honor the 
 drafts of customers, and that relation is 
 not altered by an agreement by the ban- 
 ker to allow interest on the balances in 
 the bank. The relation does not partake 
 of a fiduciary relation, and, therefore, as 
 a general rule, no bill in equity will lie 
 against a banker for an account . ■ 
 See, also, titles Bills of Exchange; 
 Cheques; Cash Notes; Circular 
 Notes ; and Letters op Credit. 
 
 BANKS, JOINT STOCK. By the 39 
 
 & 40 Q-eo. 3, 0. 38, s. 15, it was forbidden 
 
 Banks, Joint Stock. — (Oantinued.) 
 to establish any corporate bank what- 
 ever, or any bank where the^ numbej of 
 partners exceeded six, so as to borrow, 
 owe, or take up any sum or sums of 
 money on their bills or notes payable on 
 demand, or at any less time than six 
 months, during sueh time as the Bank of 
 England enjoyed the rights conferred by 
 former Acts. But in 1826, the 7 Geo. 4, 
 c. 46, was passed legalizing the formation 
 under deeds of settlement, of banking 
 co-partnerships, consisting of more than 
 six persons, provided they did not carry 
 on business in, or within sixty-five miles 
 of, London. Afterward, in 1845, was 
 passed the 7 & 8 Vict. 113, which for a 
 short time enabled joint-stock banks to 
 be established under letters patent of in- 
 corporation. And latterly, the Joint 
 Stock Banking Companies Act, 1857 (31 
 & 23 Vict c. 49), and Companies Act, 
 1863 (25 & 26 Vict. c. 89),. have afforded 
 every facility for constituting joint stock 
 banks in every part of England, subject 
 to the provisions of these Acts. 
 
 BANK NOTES. These are a legal 
 tender in England for all sums over £5 : 
 ,See title Cash Note, 3 & 4 Will. 4, c. 98, 
 s. 6. In case a bank note is lost, or is 
 stolen, or is otherwise improperly ob- 
 tained, the Bank of England, upon pre- 
 sentment by a iondjide holder, is bound 
 to cash it, although to the prejudice of 
 the true owner. Miller v. .Soee, 1 Sm. L. 
 C. 468. 
 
 BANKRUPTCY. Under the Bank- 
 ruptcy Act, 1869 (32 & 33 Vict, c, 71), 
 which commenced as from the 1st of 
 January, 1870, but which does not ex- 
 tend to Scotland or Ireland, any one, 
 whether a trader or not, and whether a 
 member of parliament or not, maybe ad- 
 judicated a bankrupt (s. 6) upon the pe- 
 tition of his creditor or creditors, upon 
 any one or other of the following six 
 grounds — commonly designated "acts 
 of bankruptcy: " 
 
 (1.) Making a conveyance or assign- 
 ment of all his property for the 
 benefit of his creditors gener- 
 ally; 
 (2.) Making any fraudulent conveyance 
 
 or assignment ; 
 (8.) Doing any act with intent to de- 
 feat or delay his creditors ; 
 (4.) Piling a declaration of insolvency ; 
 (5.) Having execution levied by seiz- 
 ure and sale of his goods for a 
 debt of £50, or upward ; or 
 
BANNERET, OR BANRENT. — BARRISTER. 
 
 43 
 
 Bankruptcy. — {Oontirmed.) 
 (6.) Having, if a trader for seven days, 
 and if a non-trader for twenty- 
 one days, after service of a 
 debtor's summons for a debt of 
 not less than £50, neglected to 
 pay or satisfy same. 
 The petition grounded upon any one 
 of such acts must be prese);ited within six 
 months from the comndssion of the act. 
 The Act constitutes two distinct juris- 
 dictions, viz. : 
 
 (1.) The London district — which com- 
 prises the City of London and 
 its liberties and all places sit- 
 uated within the districts of the 
 metropolitan County Courts ; 
 and 
 (2.) The country district — which com- 
 prises the rest of England. 
 
 The Court of the London Bankruptcy 
 District has all the powers and jurisdic- 
 tions of the superior Courts of Common 
 Law and Equity (In re Anderson, L. R. 5 
 Ch. App. 473); the Judge may also re- 
 verse, vai-y, or affirm any order of a local 
 Bankruptcy Court, in respect of a matter 
 either of law or of fact. 
 
 When a person is adjudicated, a bank- 
 rupt,' all his property, whether real or 
 personal, vests in the trustee or trustees, 
 who have the following powers : — 
 (1.) Receiving and deciding upon proof 
 
 of debts. 
 (2.) Carrying on the business of the 
 
 bankrupt. 
 (3.) Bringing or defending actions. 
 (4.) Selling the property of the bank- 
 rupt, either by public auction or 
 by private contract ; and 
 (5.) Giving effectual receipts for money 
 
 received. 
 Upon the close of the bankruptcy, or 
 (but only with the assent of his creditors), 
 during its continuance, the bankrupt may 
 apply to the Court for an order of du- 
 eha/rge, which he will obtain if he have 
 paid 10s. in the pound, and not unless ; if 
 undischarged, he is protected for three 
 years from the close of the bankruptcy 
 proceedings, and if he should during that 
 ■period have paid up to 10s. in the pound, 
 he then obtains his discharge ; but other- 
 wise, the unpaid balance becomes a judg- 
 ment debt against him, and may be levied 
 against his property, real or personal, in 
 the usual way. 
 
 BANNERET, OR BANRENT. A ban- 
 neret, or banrent, is said to be a knight 
 made in the field, with the ceremony of 
 
 Banneret, or Banrent. — (Oontmued.) 
 cutting off the point of his standard, and 
 so making it like a banner. They are 
 accounted so honorable that they are per- 
 mitted to display their arms in a banner 
 in the field as barons do. See Selden's 
 Tit. of Hon. 
 
 BARGAIN AND SALE : See title Con- 
 
 VBTANCBS. 
 
 BARON AND FEME : See title Hus- 
 band AND WlFB. 
 
 BARRATRY. Any act of the master 
 or of the mariners of a ship which is of a 
 criminal or fraudulent nature, tending to 
 the prejudice of the owners of the ship, 
 without their consent or privity ; as by 
 running away with the ship, sinking her, 
 deserting her, or embezzling the cargo. 
 Park on Ins. 137, 138 ; Knight v. Cam- 
 bridge, 1 Str. 581 ; Vall^o and Another v. 
 Wheeler, Oowp. 143. 
 
 BARRING ESTATE TAXI. Formerly 
 an estate tail could only be barred by 
 levying a fine or suffering a common re- 
 covery (see these titles). At the present 
 day, it can only be barred (1.) in the case 
 of freeholds, by a disentailing deed, and 
 (2.), in the case of copyholds, by sur- 
 render, or (but only if the estate is equi- 
 table) by a disentailing deed executed in 
 accordance with the stat. 3 & 4 Will. 4, 
 c. 74. 
 
 BARRISTER. A counsellor learned 
 in the law who pleads at the bar of the 
 Courts, and takes upon himself the advo- 
 cacy or defense of causes. His profes- 
 sional conduct is under the contrtfljDf the 
 Benchers of his Inn (Hudson v. Stade, 3 
 F. & F. 390). His fees are an hmor- 
 arium, and no action lies to recover them, 
 nor can any security be taken for them 
 (Brcncn v. Kennedy, 13 C. B. 677). But 
 it is otherwise vd.th the fees of convey- 
 ancers or special pleaders below the bar, 
 who may maintain an action, or take such 
 security (Bteadman v. Hockley, 15 M. & 
 W. 553). A barrister is not liable for 
 negligence or non-attendance (Fell v. 
 .Brown., Peake, 96). He enjoys numerous 
 privileges (which, however, he is assumed 
 to exercise only for the benefit of his cli- 
 ent), e. g., he may compromise the case 
 (Smnfm v. Swinfen, 1 0. B. [N. S.] 364; 
 3 De G. & J 381) ; nor is he exposed to 
 any action for Ubel or slander, in conse- 
 quence of words written or spoken by 
 him in the conduct of his case (Hodgson 
 V. Scarlet, 1 B. & A. 333) ; nevertheless 
 
44 
 
 BASE PEE. — BENEFICE C'lNVENTAIBB. 
 
 Barrister. — ( CimUnued.) 
 it seems that he is liable to be punished 
 for contempt of Court even for words 
 professedly spoken in the discharge of 
 his functions as advocate (Ex parte Pat&r, 
 5 B, & S. 299). He is privileged from 
 arrest while attending Court or going cir- 
 cuit. 
 
 BASE FEE. A base or quaUfled fee 
 is an estate which hath some quaUflcation 
 subjoined thereto, and which must cease 
 or be determined whenever such qualifi- 
 cation is at an end. As in the case of a 
 grant to A. and his heirs, tmanU of the 
 manor of Dale ; in this instance, when- 
 ever the heirs of A. cease to be tenants 
 of that manor, the grant is entirely de- 
 feated. So when Henry VI. granted to 
 John Talbot, lord, of the numor of Kings- 
 ton-Lisle, in BerTcs, that he and his heirs, 
 lords of the said numor, should be peers of 
 the realm by the title of Barons of Lisle; 
 here John Talbot had a base or qualified 
 fee in that dignity, and the instant he or 
 his heirs quitted the seigniory of that 
 manor, the dignity was at an end. These 
 estates are fees, because it is possible that 
 they may endure for ever in a man and 
 his heirs; yet as that duration depends 
 on certain collateral circumstances. which 
 qualify and debase the {hirity of the do- 
 nation, it is therefore called a base or 
 quaUfied fee. In a more limited sense, a 
 base fee is used to denote a fee simple de- 
 rived out of a fee tail, which has been 
 barred by one whose power extends only 
 to bar his own issue heirs in tail ; in this 
 case, so long as such heirs in tail or their 
 issue endure, the fee simple endures, but 
 determines when they become extinct. 
 
 BASTARD. A child born out of wed- 
 lock ; also, a child bom during coverture 
 when it was impossible that the husband 
 should have been its father. He is not 
 legitimized by the subsequent marriage 
 of his parents (Doe d. Bvrtwhistle v. Va/r- 
 dell, 6 Bing. N. C. 385). (But in some 
 of the United States marriage legitimates 
 a child bom prior thereto). Upon an order 
 of affiliation, the putative father becomes 
 liable to a limited extent to support his 
 child ; but otherwise the mother must 
 support it. The custody of the chUd be- 
 longs also of right to the mother, not- 
 withstanding the father is able and willing 
 to maintain it better (Ex parte Knge, 1 
 N. E. 148) ; but it seems that the wishes 
 of the child itself vsill be -consulted. In 
 re Lloyd, 3 Man. & Q-. 547. 
 
 BATTEL (from lattaOe). The trial by 
 wager of battle was a species of trial in- 
 troduced into England, among other Nor- 
 man customs, by William the Conqueror, 
 in which the pergon accused fought with 
 his accuser, under the apprehension that 
 Heaven- would give the victory to him 
 who was in the right. 
 
 See title Tkiai by Jukt. 
 
 BATTEET: 
 
 TBBY. 
 
 Assault astd Bat- 
 
 BAWDT-HOUSE ! See Bkothbl. , 
 
 BENCH WARRANT. The process is- 
 sued against a party against whom an in- 
 dictment has been found for the purppse 
 of bringing him into Court to answer the 
 charge preferred against him. When an 
 indictment has been found for a mis- 
 demeanor during the assizes or sessions, 
 it is the practice for the judge attending 
 the assizes, or for two of the justices at- 
 tending the sessions, to issue a bench 
 warrant, signed by him or them, to ap- 
 prehend the defendant. Cowp. 239; Haw. 
 PI. Cr. ; 1 Ch. Crim. Law, 338, 339. 
 
 BENCHER. A dignitary of the Inns of 
 Court is so termed. Each Inn of Court 
 is presided over by a certain number of 
 benchers, who exercise the right of ad- 
 mitting canditates as members of their 
 society, and also of ultimately calling 
 them to the bar. They are usually selected 
 from those of their members who have 
 distinguished themselves in their pro- 
 fession ; and it is the ordinary practice, 
 but subject to a discretion in the body of 
 benchers, for each Inn of Court to select 
 its member a bencher as soon as he has at- 
 tained the rank or degree of Queen's 
 counsel. They also exercise a general 
 supervision over the professional conduct 
 of all counsel that are members of the 
 Inn. 
 
 BENEFICE. Generally taken for any 
 ecclesiastical living, or church prefer- 
 ment, whether a dignity or not ; and it 
 must be given for life, not for years, or 
 at will. 
 
 See title Advowson. 
 
 BENEFICE D'INYENTAIRE. This, 
 in French law corresponds to the Bene- 
 fidvm Inventan-ii of Roman law, and 
 substantially to the English law doctrine, 
 that the executor properly accounting is 
 only liable to the extent of the assets re- 
 ceived by him. 
 
BETTERMENTS. — BILL IN EQUITY OR CHANCERY. 
 
 45 
 
 ♦BETTERMENTS. Improvements 
 made to an estate which render it better 
 than mere repairs. 
 
 BEYOND THE SEAS. No part of the 
 United Kingdom of Great Britain and 
 Ireland, nor the Isle of Man, Guernsey, 
 Jersey, Alderney, orSark, nor any islands 
 adjacent to any of them (being part of 
 the dominions of Her Majesty), are deemed 
 beyoud'the seaS within the meaning of 
 the 3 & 4 Wm. 4, c. 27. And yet for cer- 
 tain purposes either or any of those 
 places other than England may be re- 
 garded in law as being beyond the seas. 
 Thus it appears to have been held that 
 Dublin, or any place in Ireland, was 
 beyond the seas within the meaning of 
 the Statute of Limitations (21 Jac. 1, c. 
 16). King v. Walker, 1 Bl. Rep. 386; 
 Nightengale v. Adams, Show. 91 ; Shel- 
 ford's Real Property Statutes, 181, 4th 
 ed. 
 
 BIGAMY. A criminal ofiense, which 
 consists in going through the ceremony 
 of marriage with another, while a former 
 husband or wife is still alive and not di- 
 vorced, knowing at the time, or reason- 
 ably believing, that such former consort 
 is still alive. The offense amounts to a 
 felony. 
 
 BILL (billa). Has various significa- 
 tions in law proceedings. It is commonly 
 taken for a declaration in writing, express- 
 ing either the wrong the complainant has 
 suffered by the defendant, or else some 
 fault that the party complained of has 
 committed against some law or statute of 
 the realm. Such bills are sometimes ad- 
 dressed or exhibited to the Lord Chan- 
 cellor, especially where the wrongs done 
 to the complainant are matters of con- 
 science ; and sometimes they are addressed 
 and preferred to others having jurisdic- 
 tion in the matter, according as the law 
 whereon they are grounded directs. This 
 bill contains a statement of the fact com- 
 plained of, and of the damages thereby 
 suffered, and a petition that process may 
 issue against the defendant for redress. 
 In criminal matters, when a grand jury, 
 upon any presentment or indictment, con- 
 sider the same to be probably true, they 
 write on it two words, biUa vera, in other 
 words, they are said to find a true Mil, 
 and thereupon the accused party is said 
 to stand indicted of the crime, and is 
 bound to make answer to it ; and if the 
 crime concern the Hf e of the person in- 
 dicted, it is then referred to another 
 
 Bill. — ( Gontimied.) 
 
 inquest, called the jury of life and death, 
 by whom, should he be found guilty, he 
 stands convicted of the crime, and is, by 
 the judge, condemned accordingly. Bill 
 is also a common engagement for money 
 given by one man to another; and is some- 
 times with a penalty, called a penal bill, 
 and sometimes without a penalty, when it 
 is termed a single bill. By a bill was 
 commonly understood a single bond 
 without a condition ; and it was formerly 
 the same as an obligation, save that it 
 was called bill when in English, and an 
 obligation when in Latin. 
 
 See following titles. 
 
 * BILL OF ADYENTURE. A writing 
 signed by a merchant, master or ship- 
 owner to show that goods shipped by a 
 vessel are at the venture of another per- 
 son, he himself being only liable for the 
 produce. Bouv. Diet. 
 
 * BILL OF ADVOCATION. In Scotch 
 law, a bill by which a judgment is brought 
 from an inferior to a superior Court for 
 review. 
 
 * BILL OF CREDIT. A biU issued 
 by a State government, on the credit of 
 the State, designed to circulate as money. 
 
 BILL FOR DISCOTERY: See title 
 Discovert. 
 
 BILL IN EQUITY OR CHANCERY. 
 
 The method of instituting a suit in the 
 Court of Chancery is by addressing a bill, 
 in the nature of a petition to the Lord 
 Chancellor. This bUl is neither more nor 
 less than a statement of all the circum- 
 stances which gave rise to the complaint, 
 and a prayer or petition for particular 
 relief, according to the case made by the 
 bill, or for general relief, according as 
 the nature of the case may require. 
 When this bill is drawn up or prepared, 
 it is left with the proper officer of the 
 Court in order to be filed, and this is 
 what is termed filing a bill in Equity. 
 BiUs in Equity are aU of the same general 
 character, but some of them being of a 
 secondary nature to the principal bill, 
 have acquired names descriptive of that 
 secondary nature, e. g., Cross Bills, Sup- 
 plemental Bills, BiUs of Revivor, Bills for 
 Discovery, etc., all wliich titles see. 
 
 Hitherto a bill has been a method of 
 originating proceedings in Chancery, and 
 indeed in oases where the summary — i. e., 
 statutory — proceeding by petition or 
 
46 
 
 BILL OF EXCEPTIONS. — BILIr OF LADING. 
 
 Bill in Equity or Cliancery. — {Oont.) 
 summons was not available, the bill was 
 the only process, but at the same time a 
 universal process, of initiating proceed- 
 ings. However, now, under the Judica- 
 ture Act, 1873, all actions and suits are 
 to be commenced by a writ of summons ; 
 but the operation of the Act has been 
 postponed. 
 
 BILL Of" EXCEPTIONS. If during 
 a trial a judge, in his direction to the 
 jury, or in his decision, mistakes the law, 
 either through ignorance, inadvertence 
 or design, the counsel on either side may 
 require him publicly to seal a bill of 
 " exceptions, which is a statememt in writ- 
 ing of the point wherein he has commit- 
 ted the error, and which statement, by 
 fixing his seal thereto, he thus acknowl- 
 edges (Smith's Action at Law, p. 82). 
 This statement should be put in writing 
 while the Court is sitting, and in the pres- 
 ence of the judge who tried the cause, 
 and signed by the counsel on each side ; 
 after which it is formally drawn up and 
 tendered to the judge to be sealed. A 
 bill of exceptions is said to be in the 
 nature of an appeal from the judgment 
 or decision of the Court below to a 
 Court of error. {WrigTit v. Sharp, 1 Salk. 
 288; Ga/rdner v. Bmhy, 1 Boss. & P. 32; 
 WrigU v. Tatham, 7 A. & E. 331.) By 
 the Judicature Act, 1878, bills of excep- 
 tion are abolished, and an appeal to the 
 Court of Appeals substituted for them ; 
 but the operation of the Act has been 
 postponed. 
 
 BILL OF EXCHANGE. A bill' of ex- 
 change is defined by Blackstone to be an 
 ' ' open letter of request from one man to 
 another, desiring him to pay a sum 
 named therein to a third person on his 
 account." The person who draws or 
 makes the bill is called the drawer ; the 
 person to whom it is addressed is called 
 the drawee; and when the drawee has 
 undertaken to pay the amount (which 
 undertaking he signifies by writing across 
 the bill of exchange the word " accepted " 
 together with his name, with or without 
 adding the place where the money is to 
 be paid), then he is called the acceptor ; 
 the person to whom the money is ordered 
 to be paid is called the payee ; and if the 
 payee transfers it over to another (which 
 he does by simply .writing his name 
 across the back), he is then called the 
 indorser, and the person to whom he 
 thus transfers it is called the indorsee, 
 
 Bill «f Exchange. — (^Continued.) 
 which latter person may also, if he pleases, 
 in his turn transfer it to another party 
 (by the same process of signing his name 
 on the back, or indorsing it, as it is 
 termed), and thus it may be transferred 
 from one person to another ad infinitum, 
 the party transferring it always being 
 called the indorser, and the party to 
 whom it is transferred the indorsee. To 
 illustrate the subject further, a common 
 form of a bill of exchange is here 
 given : — 
 
 £100. 
 
 London, June 1, 1874. 
 One month after date pay to George 
 Montague, or order, the sum of one hun- 
 dred pounds, and place the same to my 
 account. 
 
 John Smith. 
 To Mr. John Harrison, 
 Merchant, 
 50 Broad Street. 
 
 Now in the above foitri, "John Smith" 
 is the drawer of the bill, "John Harrison" 
 is the drawee, and when he has signified 
 his acceptance of the bill by writing 
 across the face of it 
 Accepted, 
 
 "John Harrison," 
 he is then also termed the acceptor ; and 
 " George Montague " is the payee. When 
 the acceptor of a bill of exchange is a 
 man of substance and of good credit, it 
 renders it easily negotiable, and conse- 
 quently almost as valuable as a bank 
 note. Chitty on Bills of Exchange. 
 
 ,8ee,also, titles AccBPTAifCE ; Inboksb- 
 mbnt; FoBBiaN Bill; Usajstcb; 
 Notice op dishonok ; Pkotbst. 
 
 BILL OF LADING. This is a docu- » 
 ment which is signed and delivered by 
 the ship-owner, or master as his agent, to 
 the shippers in a general ship on the 
 goods being shipped ; or, speaMng more 
 practically, upon the goods being ship- 
 ped, the mate gives the shipper an 
 acknowledgment thereof, which is called 
 the "mate's receipt," and the shipper 
 takes that to the broker or captain of the 
 ship, who exchanges it for the bill of 
 lading. A similar document is used on 
 the carriage of goods by land. 
 
 Form ^ Bill of Lading: — A bill of 
 lading is commonly made out in parts. 
 One or more of these parts are sent by 
 the shipper to the consignee of the goods, 
 one is retained lay the shipper in his own 
 
BILL OF LADING. — BILL OF RiaHTS. 
 
 47 
 
 Bill of Lading. — (OonUrmed.) 
 custody, and another is given to the 
 master, ship-owner or captain. The bill, 
 after mentioning the shipping of the 
 goods in good order and condition, and 
 their destination, undertakes to deliver 
 same in like order and condition to the 
 consignee or his assigns, upon payment 
 by the latter of the agreed freight. 
 
 Incidents of Bill of Lading: — A bill of 
 lading may be indorsed, and thereafter, 
 upon being delivered, it passes to the in- 
 dorsee the property in the goods to which 
 it relates; and since the Act 18 & 19 
 Vict. c. Ill, the indorsee may sue there- 
 on in his own name, and not as hereto- 
 fore, in the name of the indorser only. 
 The actual holder of a bill of lading, 
 although insolvent, may even defeat by a 
 toiia fide indorsement, accompanied with 
 delivery of the bill of lading, the right of 
 the unpaid consignor or vendor to stop 
 the goods in transitu, ; and for this pur- 
 pose it is not material that the indorsee 
 knows that the consignor has not been 
 paid for the goods in money, if he does 
 not know that the consignee is insolvent, 
 or that the bills given in payment are 
 bad {Cumming v. Brown, 9 Bast, 506). 
 No property, however, passes by the in- 
 dorsement if there is fraud in the trans- 
 fer, or if there is notice by the previous 
 indorsement that the earlier transfer is 
 conditional only, or if the indorsee 
 knows of the insolvency of the consignee 
 (Vertme v. Jewell, 4 Camp. 31). Nor can 
 the honafide indorsee for value interfere 
 by virtue of the indorsement to him 
 with the stoppage in i/ra/rmki, if the per- 
 son through whom the bill of lading 
 came to him had no authority from the 
 shipper or consignee to put it in circula- 
 tion {Chrnm/ V. Beh/rend, 3 E. & B. 622), 
 the bill of lading being in this respect 
 like an overdue bill of exchange. And 
 it is expressly provided by the 18 & 19 
 Vict. c. Ill, s. 2, that the extension 
 which that Act gives to the rights and 
 liabilities of the indorsee shall not afEect 
 in any way the right of stoppage m 
 transitu. Where the bill of lading is 
 negotiated by way of pledge, the right 
 to stop in transitu may be gone at Law 
 (and the better opinion seems that it is) ; 
 but it remains in Equity, subject to the 
 pledgee's rights in respect of his specific 
 advance. In re Westzinthus, 5 B. & Ad. 
 817. 
 
 A bill of lading, after indorsement, is 
 countermandable before actual delivery 
 thereof or of the goods to the indorsee ; 
 
 Bill of Lading. — {Uontimied.) 
 but, after an indorsement and delivery of 
 the bill of lading and invoice of the 
 goods as a security against bills which 
 are to be drawn by the indorsers on the 
 indorsees, the indorsers cannot, after 
 having obtained the acceptances, and 
 whilst the balance of accounts is in favor 
 of the indorsees, countermand the de- 
 livery of the goods, and the master of a 
 ship would be liable in trover if he acted 
 under any such order {HaMle v. Smith, 1 
 B. & P. 568). But, semble, it would be 
 otherwise if the balance of accounts were 
 the other way. 
 
 BILL OF MIDDLESEX. A species of 
 process by which actions were formerly 
 commenced in the Court of Queen's Bench. 
 It was a kind of precept directed to the 
 sheriff of the county, commanding him to 
 take the body of the defendant and have 
 it, on a certain day therein-mentioned, 
 in Court, wheresoever the lord the king 
 should be in England (Boote's Suit at 
 Law, 38). This mode of proceeding was 
 abolished by the Uniformity Process Act, 
 2 Will. 4, c. 39. 
 
 BILL OF PEACE. Bills in the nature 
 of bills quia timet (which title see), but 
 which are most commonly brought after 
 the right has been tried at Law. The 
 bill is brought for the purpose of estab- 
 lishing and perpetuating a right claimed 
 by the plaintifE, the right being of a na- 
 ture to be controverted by difEerent per- 
 sons, at different times, and by different 
 actions. The design of the bill is to 
 secure repose from perpetual litigation, 
 or the fear thereof, and is justified by the 
 doctrine of public policy that there 
 should be an end to litigation. Thus, the 
 lord of a manor may bring such a bill 
 against his tenants in regard of an en- 
 croachment ; and see SheffleM, Waterworks 
 do. V. Teomams, L. R. 2 Oh. App. 8, and 
 compare Ean-l of Bath v. Sherwin, Prec. 
 Ch. 26. 
 
 BILL OF BIGHTS. The statute 1 
 Will. & Mary, stat. 2, c. 2, is so termed 
 because it declares the true rights of 
 British subjects. The short contents of 
 it are as follows : After reciting the va- 
 rious unconstitutional and illegal acts of 
 the preceding Stuart reigns, it goes on to 
 enact as follows : 
 
 (1.) The suspending power, when ex- 
 ercised by the Crown without 
 the assent of Parliament is ille- 
 gal; 
 
48 
 
 BILL OF SALE.— BISHOP. 
 
 Bill of 'Rishta. — ^Oontinued.) 
 
 (3.) The dispensing power, as of late 
 exercised, is illegal ; 
 
 (3.) Levying money by prerogative is 
 illegal ; 
 
 (4.) The subjects have a right to peti- 
 tion the Crown, and all commit- 
 ments for so petitioning are 
 illegal ; 
 
 (5.) Raising or maintaining a standing 
 army within the Icingdom in 
 time of peace is illegal, if done 
 without the assent of Parlia- 
 ment ; 
 
 (6.) Freedom of speech in Parliament 
 secured; and 
 
 (7.) Excessive bail, excessive fines, &c., 
 &c., discouraged. 
 
 BILL or SALE. An instrument 
 whereby one person called the assignor 
 assigns, or purports to assign, to another 
 person called the assignee, personal prop- 
 erty or chattels, either conditionally, i. «., 
 by way of mortgage, or absolutely, i. «., 
 by way of sale or gift outright. See titles 
 Assignment of Personal Property; 
 
 CONVBYASrCKB. 
 
 Under the Bills of Sale Act, 1854 (17 
 & 18 Vict. c. 56), every bill of sale re- 
 quires to be registered within twenty-one 
 days from the making thereof, otherwise 
 the same is void as against execution 
 creditors, the trustee in bankruptcy, and 
 others. Under the Amendment Act, 
 1866 (29 & 30 Vict. c. 96), it requires to 
 be re-registered every five years. And 
 even then, without possession taken prior 
 to an act of bankruptcy, it is void as 
 against the trustee in bankruptcy. Badger 
 V. Sham, 2 El. & El. 472, following Stans- 
 Md V. G^iMtt, 27 L. J. (Ch.) 366. 
 
 This strictness of the law is due to the 
 fact that fictitious bills of sale are often 
 given for the purpose of effectuating a 
 fraud. In Edwards v. Harben (3 T. E. 
 587), following Twyne's Case (1 Sm. L. 
 C. 1), the retention of possession by the 
 maker was accepted as an index of fraud. 
 The bill of sale is, however, in all cases 
 good as between the parties. Bessey v. 
 Wmdham, 6 Q. B. 166. 
 
 BILL, PARLIAMENTARY. A par- 
 liamentary bill has been described as the 
 " draft or skeleton of a statute." Bills 
 are divided into two classes, viz., public 
 and private bills. The f onner are such 
 as involve the interests of the public at 
 large, and when passed by all the three 
 branches of the Legislature, become a 
 portion of the public statutes of the 
 
 Bill, ParliamentaiT^. — {OonUmied.) 
 realm ; the latter are such as have refer- 
 ence to the interests of private individ- 
 uals, and are frequently introduced to 
 enable them to undertake works of pub- 
 lic utility at their own risk; such, for 
 instance, are the various bills introduced 
 for the purpose of establishing railway 
 companies ; such also are those of natur- 
 alization, for change of name, for divorce, 
 &c. 
 
 BILL OF PARTICULARS. A bill of 
 particulars, or, as it is frequently termed, 
 a particular of plaintiff's demand, is a 
 statement in writing of what the plaintiff 
 seeks to recover in his action. Its object 
 is to furnish the defendant with a better 
 or more specific statement of the plain- 
 tiff's cause of action than is to be col- 
 lected from the declaration or summons. 
 The bin of particulars " differs from the 
 declaration, inasmuch as the one dis- 
 closes the nature and legal effect of the 
 plaintiff's claim, the other its component 
 ingredients. " Lush's Pr. 374 ; PyUe v. 
 Stevens, 6 Mee. & W. 814, per Curiam. 
 
 BILL OP REVIVOR: See title Keti- 
 
 TOK. 
 
 *BIRRETUM. A cap or coif used 
 formerly by judges and Serjeants at law 
 in England. Spelman Gloss. ; Bouv. 
 Bict. 
 
 BIRTH. By the statute 6 & 7 Will. 
 4, c. 86, it is provided that the certified 
 copies of entries, purporting to be sealed 
 with the seal of the Register-General's 
 office, shall be evidence of the birth 
 [death or marriage] to which the same 
 relates, vpithout any further or other 
 proof of such entry. As affidavit of 
 identity must, however, accompany the 
 extract as proof of the birth [death or 
 marriage]. ParMnson v. FramxAs, 15 Sim. 
 160. 
 
 In criminal law, the concealment of a 
 birth is, under 24 & 25 Vict. c. 100, s. 60, 
 a misdemeanor; and as such is punisha- 
 ble with imprisonment for any term not 
 exceeding two years, with or without 
 hard labor. 
 
 BISHOP. A dignitaiy of the church 
 who has episcopal jurisdiction within Ms 
 diocese, but which jurisdiction he com- 
 monly exercises through his chancellor or 
 commissary. 
 
 See titles Ecolbsiastical Courts ; Arch- 
 bishop. 
 
BLACK ACT. — BONA VACANTIA. 
 
 49 
 
 * BLACK ACT. The act of parliament 
 9 Geo. n., c. 22. 
 
 BLASPHEMY. To revile at or to deny 
 the truth of Christianity as by law estab- 
 lished, is a blasphemy, and as such is 
 punishable by the common law. Under 
 the Stat 9 & 10 Will. 3, c. 32, cited in the 
 Stats. Rev. as 9 Will . 3, c. 35, any pro- 
 fessed Christian who denies the Holy 
 Trinity, or generally the Christian re- 
 ligion, may be indicted for the same, and 
 p. upon conviction is liable to be deprived 
 . y of office and incapacitated for holding 
 ^^ future office; but the prosecution re- 
 qa.res to be commenced within four days 
 of the blasphemy spoken; and is to be 
 desisted from, and all the penalties are 
 to be removed, upon the defendant's re- 
 nunciation of his heretical opinions. 
 
 BLOCKADE. A blockade in law must 
 be an actual or effective blockade, and 
 ' not a paper blockade merely ; in other 
 words, a port is blockaded when a squad- 
 ron is in the vicinity of it for the purpose 
 of preventing ingress into and egress from 
 it, and not when it is merely declared 
 to be under blockade. A violation of 
 blockade requires three things : (1.) That 
 the blockade be efEective ; (2.) That the 
 accused had notice thereof ; and (3.) That 
 he made ingress or egress in disregard of 
 the blockade. 
 
 BOARDING-HOUSE. The keeper of 
 such a house is bound to take ordinary 
 care of the goods of his guests therein, 
 and will be liable for negligence occas- 
 ioning loss (Da/ncey v. Richardson, 2 El. 
 & Bl. 144) ; but his liability is not so ex- 
 treme as that of an innkeeper {Holden v. 
 aouTby, 8 W. R. 438). A contract for 
 board and lodging is not a contract re- 
 garding land within the meaning of the 
 Statute of Frauds. WrigTit v. Btmart, 8 
 W. R. 413. 
 
 BOARD OF HEALTH. Under the 
 stats. 11 & 13 Vict. c. 63 {PvhlM Eealth 
 Act, 1848), 31 & 23 Vict. c. 98 {Local Gov- 
 emmeKt Act, 1858), and other Acts amend- 
 ing same, local boards are constituted for 
 the better securing the public health, and 
 who for that purpose exercise certain 
 powers as to sewers, drains, buildings, 
 slaughter-houses, &c. 
 
 BOABD OF TRADE. One of the ad 
 
 ministrative departments of the Govern- 
 ment, constituted by the Acts 23 Geo. 8, 
 c. 83, and 24 & 35 Vict. cc. 45 & 47, and 
 possessing under various statutes a very 
 
 7 
 
 Board of Trade. — {Oontinued.) 
 general jurisdiction and superintendence 
 over railways, merchant shipping and 
 seamen, harbors, fisheries, &c. 
 
 BOABD OF WORKS.. The name of a 
 board of of&cers appointed for the better 
 local management of the metropolis. 
 They have the care and management of 
 all grounds and gardens dedicated to the 
 use of the inhabitants in the metropolis ; 
 also, the superintendence of the drainage ; 
 also, the regulation of the street traffic, 
 and, generally, of the buildings of the 
 metropolis. 
 
 DOCKLAND (Sax. for bookland). An 
 inheritance or possession held by the evi- 
 dence of written instruments. It was one 
 of the titles by which the English Saxons 
 held their lands, and being always in 
 writing, was hence called bockland, 
 which signifies terram codidllariam, or 
 Mbraria/m, deed land or charter land. It 
 was the same as allodium, being descend- 
 ible according to the common course of 
 nature and nations, and devisable by 
 will. This species of inheritance was 
 usually possessed by the thanes or nobles. 
 Spelman on Feuds. 
 
 BONA NOTABILIA. Such goods as 
 a party dying had in another diocese than 
 that wherein he died, and as amounted 
 at the least to £5, which, whoever had, 
 must have had his will proved before the 
 archbishop of that province, unless, by 
 composition, or custom, other dioceses 
 were authorized to do it, where tona nota- 
 tilia were rated at a greater sum. If, 
 however, a person happened to die in an- 
 other diocese than that wherein he lived, 
 while on a journey, what he had about 
 him of the value of £5 was not hma notor 
 WAa. Book of Canons, 1 Jac. Can. 93, 
 93; Cunningham. But now under the 
 Court of Probate Act, 1857 (30 & 21 Vict, 
 c. 77), ss. 3-4, the distinction of goods as 
 hoTM TwtdbiUa has been abolished. 1 Wms. 
 Exors. 279-280. 
 
 * BONA PERITUBA. Perishable 
 goods. A trustee, executor or adminis- 
 trator is bound to use due diligence in 
 disposing of such goods. Bacon Abr. 
 Exrs. ; Bouv. Diet. 
 
 BONA VACANTli. Goods in which 
 no one claims a property but the king; 
 such as royal fish, shipvrreoks, treasure 
 trove, waifs, strays, &c. Where a person 
 dies possessed of personal property^, intes- 
 tate, and leaving no next of kin, the 
 
50 
 
 BONA "WAVIATA. — BEAWLING. 
 
 Bona Yacantia. — {Oontiimed.) 
 
 Crown becomes entitled upon office 
 found to all such property. This title 
 of the Crown is in virtue of its prerog- 
 ativCj and in this respect differs from 
 the title of the Crown to land by escheat. 
 See Middleton v. Spicer, 1 Bro. C.C. 301 ; 
 I V. W?ieate, 1 Eden, 177. 
 
 *BONA WAVIATA. Goods thrown 
 away by a thief for fear of being appre- 
 hended. Such goods go to the sovereign 
 in England. 
 
 BOND. A contract by specialty to pay 
 a certain sum of money. It is either sin- 
 gle, i. e., simple, in which case the money 
 is absolutely to be paid; or double, i. e., 
 conditional, in which case the money is 
 only conditionally payable, and ceases to 
 be payable, or becomes absolutely payable 
 according to the event which is expressed 
 in the condition. If the condition is 
 entire and unlawful, the bond is void 
 {OolUm V. Blantem, 1 Sm. L. C. 325) ; 
 but if the condition is severable, and part 
 of it is good, the bond is valid to that 
 extent {Tale v. Bex [in error], 6 Bro. P. 
 C. 61). In the case of alternative condi- 
 tions, if one becomes impossible, the other, 
 as a general rule, becomes absolute (Ba 
 Oosta^. Dams, 1 B. & P. 342). The chief 
 varieties of bonds are the foUovring: — 
 Bonds of Indemnity, Post Obit Bonds, 
 Voluntary Bonds, Administration Bonds, 
 Bail Bonds, Bottomry Bonds, Debentures, 
 Guaranties, Replevin Bonds, Bonds in 
 Restraint of Trade, Resignation Bonds, 
 and Lloyd's Bonds, most of which will 
 be found explained under the appropri- 
 ate titles. 
 
 See, also, title OBLiOATioif. 
 
 BOEOUCrH : See title Rbpebsbntation. 
 
 BOBOUGH ENGLISH. The custom 
 which prevails in certain ancient boroughs 
 and copyhold manors, of lands descend- 
 ing to the youngest son instead of to the 
 . eldest. The reason of this custom seems 
 to be, that in these boroughs people 
 chiefly maintain and support themselves 
 by trade and industry; and the elder 
 children being provided for out of their 
 father's goods, and introduced into his 
 trade in his life-time, were able to subsist 
 of themselves without any lajid provis- 
 ion, and therefore the land descended to 
 the youngest son, he being in most dan- 
 ger of being left destitute. It is called 
 borough English, because, as some hold, 
 it first prevailed in England. Unlike 
 Gavelkind, the mode of descent in bor- 
 
 Borongh English. - 
 
 ough English is confined to lineal de- 
 scendants, and does not extend to col- 
 laterals. 
 
 See titles Gatblkini) ; Tendkbs. 
 
 BOTTOMRY. Is in the nature of a 
 mortgage of a ship, when the owner takes 
 up money upon it to enable him to carry 
 on his voyage, and pledges the keel or 
 bottom of the ship (^pa/rtem'pro toto), as a 
 security for the repayment thereof. In 
 which case it is understood, that if the 
 ship be lost, the lender loses also his 
 whole money ; but if it return in safety, 
 then he shall receive back his principal, 
 and also the premium or interest aigieed 
 upon, however it may exceed what was 
 once the l^gal rate of interest. And this 
 is allowed to be a valid contract in all 
 trading nations, for the benefit of com- 
 merce, and by reason of the extraordi- 
 nary hazard run by the lender ; and in 
 this case, the ship and tackle, if brought 
 home, are answerable (as well as the per- 
 son of the borrower) for money lent. 
 Park on Insurance. 
 
 See, also, titles Respokdbntia ; Bhip- 
 prsTG. 
 
 BOUGHT AND SOLD NOTES. These 
 are the notes which a broker of stock or 
 goods sends respectively to the vendor 
 and purchaser for whom he has been en- 
 gaged in the particular sale. They fur- 
 nish the evidence of the contract, and, 
 if they agree, bind the principals, the 
 broker having authority to sign for both. 
 Msmdm v. J&sy, 3 F. & P. 477. 
 
 BOUNDARIES. The boundaries of 
 boroughs are at present regulated by the 
 stats. 2 & 3 Will. 4, c. 64, and 6 & 7 
 WiU. 4, c. 103. Upon a question of 
 boundaries, evidence of reputation, al- 
 though in the nature of hearsay, is re- 
 ceivable. 
 
 See title Hbaesay Evidence. 
 
 BOURSE DE COMMERCE. In French 
 law, is an aggregation sanctioned by 
 Government of merchants, captains of 
 vessels, exchange-agents, and courtiers, 
 the two latter being nominated by the 
 Government in each city which has a 
 
 BRAWLING. Under the 37 Geo. 8, 
 c. 44, any suit for this offense was to be 
 brought in the Ecclesiastical Court within 
 eight months ; but under the stat. 38 & 
 24 Vict. c. 32, the Ecclesiastical Courts 
 were deprived of all their jurisdiction in 
 
BREACH OF PRIVILEGE. — BURGAGE TENURE. 
 
 51 
 
 Brawling. — ( Continued. ) 
 
 the matter in the case of lay persons, and 
 
 the justices of the peace were invested 
 
 with authority to punish the ofEense as a 
 
 misdemeanor. 
 
 BREACH OF PRIVILEGE. A breach 
 of privilege is a contempt of the High 
 Court of Parliament, whether relating to 
 the House of Lords or to the House of 
 Commons. Both branches of the Legis- 
 lature act on the same grounds, both de- 
 clare what are and what are not breaches 
 of their privileges, when the question is 
 raised, and both punish by commitment 
 or otherwise, as the Courts of Law and 
 Equity do for contempt of Court. Re- 
 sistance to the oflBcers of the Houses of 
 Parliament has, in almost all cases, been 
 treated as a breach of the privileges of 
 Parliament. The presence of strangers is 
 a breach of privilege, though permitted 
 on sufferance; and, formerly, to take a 
 note of any of the proceedings was a high 
 act of contempt, although now the rep- 
 resentatives of the newspaper press are 
 not only allowed to be present for that 
 purpose, but have a gallery to themselves 
 in each House, and every accommodation 
 afforded them which the courtesy of the 
 chief officers of both can render. 
 
 See title Privileges of Parliament. 
 
 BREACH OF PROMISE OF MAR- 
 RIAGE. Under the stat. 14 & 15 Vict, 
 c. 99, rendering the parties to a civil ac- 
 tion competent to give evidence, the par- 
 ties to a breach of promise case were 
 expressly left to remain incompetent; 
 but under the stat. 33 & 33 Vict. c. 68, 
 that incompetency has been removed. 
 
 In Sch. B. to C. C. P. Act, 1852, the 
 following simple form of count is given: 
 
 That the plaintiff and defendant agreed 
 to marry one another, and a reasonable 
 time for such marriage has elapsed, and 
 the plaintiff has always been ready and 
 willing to marry the defendant, yet the 
 defendant has neglected and refused to 
 marry the plaintiff. (No. 19.) 
 
 It is a defense to an action of this sort, 
 that the defendant has since his promise 
 discovered the plaintiff to be unchaste 
 (Irving v. Cheenwood, 1 C. & P. 350), or 
 to have had a bastard by some one (Young 
 V. Murphy, 3 Bing. N. C. 54), although 
 ten or more years ago. 
 
 *BREHON LAW. The ancient system 
 of law which prevailed in Ireland: so 
 called from the names of the judges, 
 Brehons. 
 
 BRIBERY. The crime of offering any 
 undue reward or remuneration to any pub- 
 lic officer of the Crown, or other person 
 intnisted with a public duty, with a view 
 to influence his behavior in the discharge 
 of his duty. The taking such reward is 
 as much bribery as the offering it. It 
 also sometimes signifies the taking or giv- 
 ing a reward for public office. The of- 
 fense is not confined, as some have sup- 
 posed, to judicial officers. Bribery at 
 elections vitiates the same. See stat. 31 
 & 32 Vict. c. 125 (ParUamentary Elec- 
 tions Act, 1868). 
 
 BROKERS. These are agents of vari- 
 ous kinds, but principally agents on the 
 Stock Exchange. By the stat. 6 Anne, c. 
 16, a broker on the Stock Exchange is 
 required to be admitted by the Court of 
 the Lord Mayor and Aldermen, and to pay 
 40s. yearly for the use of the City, under 
 a penalty of £25, increased by the stat. 
 57 Geo. 3, c. Ix. (local and personal) to 
 £100. But under the stat. 33 & 34 Vict, 
 c. 60 (London Brokers Relief Act, 1870), 
 the jurisdiction of the Court of Alder- 
 men over brokers has been made to cease, 
 saving existing rights ; and brokers guilty 
 of a fraud are disqualified from acting 
 as brokers. It is the duty of a broker of 
 the City of London to charge his princi- 
 pal only with the cost price of articles 
 purchased by him, in addition to his 
 commission. Procter v. Brain, 2 M. & 
 P. 284. 
 
 See, also, titles Jobber; Factor. 
 
 BROTHEL. A common habitation of 
 prostitutes. The statutes for the repres- 
 sion or regulation of houses of this char- 
 acter are 25 Geo. 2, c. 36; 28 Geo. 3 c. 18; 
 and 58 Geo. 3, c. 70. Any inhabitant of 
 the parish may give any information 
 thereof to the pantfh constable, and the 
 overseers of the parish are to pay to the in- 
 formant upon conviction a reward of £10. 
 
 BUGGERY: <S«e title Sodomy. 
 
 BURGAGE TENURE. Tenure iu bur- 
 gage is described by Glanvil, and is ex- 
 pressly laid down by Littleton, to be but 
 tenure in socage ; and it is where the king 
 or other person is lord of an ancient bor- 
 ough in which the tenements are held by 
 a rent certain. It is, indeed, only a kind 
 of town socage, by which other lands are 
 holden, and is usually of a rural nature. 
 A borough is usually distinguished from 
 other towns by the* right of sending 
 members to Parliament ; and where the 
 right of election is by burgage tenure. 
 
52 
 
 BURGHMOTE. — CAMPBELL'S (LORD) ACT. 
 
 Burgage Tenure. — (OmUnued.) 
 that alone is a proof of the antiquity of 
 the borough. It is, therefore, a tenure 
 proper to boroughs, whereby the inhabit- 
 ants, by ancient custom, hold their lands 
 or tenements of the king or other lord of 
 the borough at a certain yearly rent. 3 
 Bl. 82. 
 
 See, also, title Tenttrbs. 
 
 ♦BURGHMOTE. In Saxon law, a 
 court held in a burg. The bishop or 
 lord held the court. 
 
 BTJRGrLART. A criminal oflEense which 
 consists in entering a dweUing-house 
 with intent to commit any felony therein, 
 or being in such dwelling-house commit- 
 ting any felony therein, and in either case 
 breaking out of the same dwelling-house 
 in the night, i. e., between the hours of 9 
 p. M. and 6 a. m. (24 & 25 Vict. c. 96, 
 ss. 1, 51). 
 
 BURIALS. Burial in the parish 
 churchyard is a Common Law right in- 
 herent in the parishioners, only the mode 
 of burial being of ecclesiastical cogni- 
 zance ; and under the stat. 4 Geo. 4, c. 52, 
 the remains of persons against whom a 
 finding oifelo de se is had, are to be pri- 
 vately interred in the churchyard of the 
 parish, but no Christian rites of burial 
 are to be performed over them. All bur- 
 ials require to be registered, 27 & 28 Vict, 
 c. 97, extending the Act 6 & 7 Will. 4, c. 
 86. Under the stat. 20 & 21 Vict. c. 81, 
 provision is made for the constitution of 
 a burial board in every parish ; and where 
 two parishes, each maintaining its own 
 poor, are united together for ecclesiasti- 
 cal purposes, a burial board for the whole 
 district appointed by the vote of the ves- 
 try, or meeting in the nature of a vestry, 
 is properly constituted (18 & 19 Vict. c. 
 118). No burial fee is due at Common 
 Law, but it may be due by custom {Avr- 
 drews v. Gcmfhom, "Willes, 536), or (as is 
 the usual case) in virtue of particular 
 statutes. 
 
 See, also, title Births, 
 
 * BURLAW COURTS. In Scotch law, 
 courts composed of neighbors who take 
 cognizance of disputes between neighbor 
 and neighbor, the judges being called 
 birlaw-men, or byrlaw-men. Burrill, 
 
 Diet. 
 
 • 
 BTE-LAWS. Private laws or statutes 
 made for the government of any corpo- 
 ration, which are binding upon them- 
 
 Bye-Law s. — ( ConUnibed.) 
 selves, unless contrai-y to the laws of the 
 land, in which latter case they are void. 
 By the stat. 5 & 6 Will. 4, c. 76, s. 1, all 
 laws, statutes, and usages inconsistent 
 with that Act are thereby annulled and 
 repealed in regard to municipal corpora- 
 tions. 
 
 o. 
 
 CALLING THE PLAINTIFF. It is 
 
 usual for a plaintifl, when he or his coun- 
 sel perceives that he has not given evi- 
 dence sufiBcient to maintain his issue, to 
 be voluntarily nonsuited, or to withdraw 
 himself, whereupoia the crier is ordered 
 to call the plaintiff; and if neither he 
 nor anybody for him appears, he is non- 
 suited, the jurors are discharged, the ac- 
 tion is at an end, and the defendant re- 
 covers his costs . The phrase is synony- 
 mous with nonsuiting the plaintifl. See 
 the phrase used in Car. & P. 351 ; 1 Car. 
 & Marsh. 363. 
 
 Bee, also, title Nonsuit. 
 
 CALLS. In American Land law the 
 designations in an entry, patent or grant 
 of lands of visible, natural objects as 
 limits to the boundary. Burr. Diet. 
 See title Compasibs. 
 
 CAMPBELL'S (LORD) ACT. Under 
 this Act (9 & 10 Vict. c. 93), and the Act 
 amending same (37 & 28 Vict. c. 95), 
 provision is made for compensating the 
 families of persons killed by accident . 
 For the purposes of these Acts the death 
 must have resulted from the act, neglect, 
 or default of the defendant or Ms ser- 
 vants, such act, neglect, or default being 
 of a kind which, if death had not ensued, 
 would at Common Law have entitled the 
 injured person to recover damages in re- 
 spect thereof. The action is for the ben- 
 efit of the wife, husband, parent, or child 
 of the deceased person, and may be in- 
 stituted by his or her executor or admin- 
 istrator; but in case the executor or ad- 
 ministrator does not, within six months 
 of the death, institute the necessary 
 action, then any of the persons benefici- 
 ally interested, whether legally, or even 
 morally only, in the result of the action, 
 may institute the same. Under the 31 & 
 33 Vict. c. 119, s. 5, the Board of Trade 
 may appoint an arbitrator in the matter. 
 The damages recoverable are strictly 
 compensatory, and nothing is recoverable 
 as a solatium. 
 
CANCELLATION. — CAPITA (DISTRIBUTION PER). 
 
 53 
 
 CANCELLATION. The rescission of 
 any contract or instrument, -whether ne- 
 gotiable or not. There can be no can- 
 cellation of course without the intention 
 of doing so {De Bema/rdy v. Ha/rding, 8 
 Exch, 833). Bonds and deeds are can- 
 celed by tearing off the seals; but this 
 cancellation does not extend to divesting 
 any estate or interest which has already 
 vested under the deed. Ward v. Lwmley, 
 39 L. J. (Ex.) 323. 
 
 CANON LAW. A body of Roman 
 Ecclesiastical Law compiled from the 
 opinions of the ancient Latin fathers, the 
 decrees of general councils, and the de- 
 cretal epistles and bulls of the Holy See. 
 It was first digested in 1151 by Gratian 
 into the Dearet/wm Oraticmi, or Concordia 
 DUcordantium Canonum; subsequently 
 added to and continued by, or at the re- 
 quest of Gregory IX. in 1330, in the De- 
 cretalia Chregorii Noni ; subsequently still 
 ■further added to by Boniface VIII., in 
 1398, in the Sextua Decretalium; after- 
 ward by Clement V., in 1317, in the 
 Clementine ConstiUtUons ; and completed 
 by John "yXTT in the Extravagantcs, i. e., 
 Riders. In addition to the Canon Law 
 properly so called, there exists also a 
 large compilation of Legatine and Pro- 
 vincial Constitutions, which are roughly 
 considered as forming part of the Canon 
 Law. 
 
 Upon the Reformation of Religion in 
 England in the reign of Henry VQl., the 
 authority of the Pope having been de- 
 stroyed, all those canons which derived 
 their force from that authority, of neces- 
 sity ceased to have any force or efficacy ; 
 but by the stat. 25 Henry 8, c. 19, which 
 was afterward confirmed by the stat. 1 
 Eliz. c. 1, such of the then existing can- 
 ons as were not repugnant to law or 
 morality, or to the King's prerogative, 
 were to continue in force untU new can- 
 ons were devised, which has never yet 
 been done. 
 
 Upon the construction of this statute 
 it has been decided in Gawdrey^s Case (5 
 Rep. 1, 33 Eliz.), that not only the clergy 
 but also the laity were bound by the then 
 existing canons; and in Middleton v. 
 Croft (3 Atk. 669), that the Canons 
 of 1608 (and generally all canons subse- 
 quently made), never having been con- 
 firmed in Parliament, do not proprio vig- 
 ore bind the laity, but the clergy only. 
 
 CANONS OP DESCENT : See title De- 
 scents. 
 
 CAPIAS. Under the Imprisonment 
 for Debt Act, 1869, there cannot be any 
 writ of capm on bailable process. But 
 before that Act, and under the 1 & 3 
 Vict. c. 110, the writ of ea/piaa might have 
 issued after commencement of an action 
 (although not as a means of commencing 
 it), by leave of the judge, in cases where 
 the cause of action amounted to £20, and 
 the defendant was threatening to quit 
 England. 
 
 See, also, following titles. 
 
 CAPIAS AD AUDIENDUM JUDI- 
 CIUM. In case a defendant be found 
 guilty of a misdemeanor (the trial of 
 which may, and usually does, happen in 
 his absence), a writ so called is awarded 
 and issued to bring him to receive his 
 judgment. 
 
 CAPIAS AD SATISFACIENDUM (in 
 
 practice frequently called shortly a Oa. 
 8a.). A writ of execution which a plain- 
 tifE takes out after having recovered judg- 
 ment agqinst the defendant ; it is directed 
 to the sheriff, and commands him to take 
 the defendant and safely keep him, in 
 order that he may have his body at 
 Westminster on a day mentioned in the 
 writ to make the plaintiff satisfaction for 
 his demand. 
 
 See, also, title Execution. 
 
 CAPIAS IN WITHEKNAM. A writ 
 which lies where a distress taken is 
 driven out of the county, so that the 
 sheriff cannot make deliverance in re- 
 plevin, commanding the sheriff to take 
 as many beasts of the distrainer, &c . 
 See, also, titles Retobno Habendo ; Wkit 
 DE Replevin ; and Eloignmbnt. 
 
 CAPIAS UTLAGATUM : See title Out- 
 
 CAPITA (DISTRIBUTION PER). 
 
 In the distribution of the personal estate 
 of a person dying intestate, the claim- 
 ants, or the persons who, by law, are en- 
 titled to such personal estate, are said to 
 take per ca/pita when they claim in their 
 own rights as in equal degree of kindred, 
 in contradistinction to claiming by right 
 of representation, or per stirpes, as it is 
 termed. As if the next of kin be the in- 
 testate's three brothers. A., B., and C, 
 here his effects are divided into three 
 equal portions and distributed per 
 capita, one to each; but if A. (one 
 of these brothers) had been dead 
 and had left three children, and B. (an- 
 other of these brothers) had been dead 
 
54 
 
 CAPITAL. — CASSETUK BREVE. 
 
 Capita (Bistribution Per). — (Cfc»«U) 
 and had left two ; then the distribution 
 ■would have been by representation, or 
 per stirpes, as it is termed, and one-third 
 of the property would have gone to A.'s 
 three children, another third to B.'s two 
 childreUj and the remaining third to 0., 
 the surviving brother. 
 
 CAPITAL The punishment of death 
 is frequently termed capital punishment ; 
 and those offenses are called capital 
 offenses for which death is the penalty 
 allotted by law. The use of the term may 
 probably have arisen from the decapita- 
 tion which, in former times, was a com- 
 mon mode of executing the sentence of 
 death, and which is prescribed in some 
 of the statutes against traitors even now 
 remaining in force. The extreme sen- 
 tence of the law, howeve:^has for many 
 years been carried into effect against all 
 offenders by hanging them by the neck. 
 The offenses which are still capital offen- 
 ses have, by the humane spirit of modern 
 legislation, been recently much dimin- 
 ished, and latterly only included high 
 treason, murder, rape, and unnatural 
 offenses, setting fire to any king's ship or 
 stores, the causing injury to life with in- 
 tent to commit murder, burglary accom- 
 panied with an attempt at murder, rob- 
 bery accompanied with stabbing or 
 wounding, setting fire to a dwelling- 
 house, any person being therein, setting 
 fire to or otherwise destroying ships with 
 intent to murder any person, exhibiting 
 false lights with intent to bring ships 
 into danger, piracy accompanied by stab- 
 bing, and riotous destruction of build- 
 ings. Stew. Bl. 128, n. (h). But at the 
 present day, the only capital offenses 
 punishable with death are treason and 
 murder, all other offenses formerly capi- 
 tal being now punishable with penal ser- 
 vitude for life or years, or some term of 
 imprisonment. 
 
 *CAPITATION. A poll-tax. A tax 
 yearly laid upon each person. U. S. Const. 
 Art. I, § 4. 
 
 CAPTION (capti). This word has sev- 
 eral significations. When used with ref- 
 erence to an indictment, it signifies the 
 style or preamble or commencement 
 of the indictment; when used in refer- 
 ence to a commission, it signifies the cer- 
 tificate to which the commissioners' names 
 are subscribed, declaring when and where 
 it was executed. The act of arresting a 
 man is also termed a caption. Bum's 
 Just. tit. Indictment; Cunningham. 
 
 CAPUT BASONIJ:. The castle or 
 chief seat of a nobleman, which, if there 
 be no son, must not be divided amongst 
 the daughters as in the case of lands, 
 but descends to the eldest daughter. 
 Cowel. 
 
 CARNALIT KNOWING: See titles 
 Abduction; Buggekt; Raph; Sodomy. 
 
 CARRIER. A common carrier is one 
 who undertakes to transport from place 
 .to place for hire the goods of such per- 
 sons as think fit to employ him (Palmer v. 
 Grrnid Junction By. Co., 4 M. &W. 749). 
 Such is a proprietor of wagons, barges, 
 lighters, merchant ships, or other instru- 
 ments for the public conveyance of goods 
 (1 Smith's L. C. in notes to Goggs v. Ber- 
 nwrdi, 101). A person who conveys pas- 
 sengers only is not a common carrier 
 (Astmi V. Beamen, 3 Bsp. 533 ; OJvrisUe v. 
 Griggs, 3 Camp. 79). The liability of 
 carriers is limited by 11 Geo. 4 & 1 Will. 
 
 4, c. 68, provided they have put up no- 
 tices as required by the Act, and such 
 notices have come to the knowledge of 
 their customer. Kerr v. WUlan, 6 M. & 
 
 5. 150. 
 
 See, also, title Bailment. 
 
 CARRYING COSTS. A verdict is said 
 to carry costs when the party for whom 
 the verdict is given becomes entitled to 
 the payment of his costs as incident to 
 such verdict. 
 
 CARTA DE FORESTA. A charter of 
 the forest (confirmed in Parliameat, 9 
 Hen. B), by which many forests unlaw- 
 fully made, or at least any precincts 
 added by unlawful encroachments, were 
 disafforested. 3 HaUam's Mid. Ag. 323 ; 
 Reeves, 354. 
 
 CASE, SPECIAL: See title Special 
 Cask. 
 
 ♦CASSATION, COURT OF. The 
 highest court in Prance; a court of ap- 
 peal in criminal and civil cases. 
 
 CASSETUR BREVE. A judgment is 
 so termed because it commands the plain- 
 tiff's writ to be quashed. An entry of a 
 cmset/wr tyreoe is usually made by the plain- 
 tiff in an action after the defendant has 
 pleaded a plea in abatement which the 
 plaintiff is unable to answer, and there- 
 fore wishes his informal writ to be 
 quashed, in order that he may sue out a 
 better. See Tidd's Forms ; 3 Chit. Plead. 
 1063, 6th ed. 
 
CASTIGATORT. — CEPI CORPUS. 
 
 55 
 
 * CASTIGATOET. An engine used 
 to punish women convicted of being 
 common scolds. A part of the punish- 
 ment consists in being plunged into 
 water. Jacob's Diet. 
 
 CASU CONSIMIII.. A writ of entry 
 granted where a tenant by the curtesy or 
 tenant for life aliens, in fee or in tail, or 
 for another's life. It is brought by the 
 person entitled to the reversion against 
 the party to whom such tenant has so 
 aliened to his prejudice. It derives its 
 name from the circumstance of the clerks 
 in Chancery having by common consent 
 framed it after the likeness of a writ 
 termed casu promso, in pursuance of the 
 authority given them by the statute 13 
 Edw. 1, and which also empowers them 
 to frame new forms of writs (as much 
 like the former as possible) whenever any 
 new case arises in Chancery resembling a 
 previous one, yet not adapted to any of 
 the writs then in existence. Les Termes 
 de la Ley. 
 
 CASUAL EJECTOR. The nominal 
 defendant, Richard Roe, in an action of 
 ejectment is so called, because by a legal 
 fiction he is supposed casually, or by ac- 
 cident, to come upon the land or prem- 
 ises and turn out the lawful possessors. 
 See, also, title Ejectment. 
 
 * CAUSA JACTITATIONIS MARIT- 
 AGrll. A form of action which anciently 
 lay against dne who boasted or gave out 
 that he or she was married to the plain- 
 tiff. 3 Bl. Com. 93. 
 
 * CAUSA MATKIMONII PKAELOC- 
 
 UTI. A writ of entry which formerly 
 lay where a woman gave lands to a man 
 with intent that he should marry her, 
 and he refused to do so. 3 Bl. Com. 188, 
 note. 
 
 CAUTIONE ADMITTENDA. A writ 
 which lies against a bishop for holding 
 an excommunicated person in prison for 
 his contempt, notwithstanding his hav- 
 ing offered sufficient pledges to obey the 
 orders of the holy church for the future. 
 Cowel. 
 
 CAUTIONNEMENT. In French law 
 is the becoming siwrety in English law. 
 Bee title Subbttship. 
 
 CATEAT. A process formerly used in 
 the Spiritual Court and now used in the 
 Court of Probate, to prevent or stay the 
 proving of a will, or the granting of ad- 
 ministration. When a caveat is entered 
 
 Caveat. — {ConUmued.) 
 against proving a wiU, or granting ad- 
 ministration, a suit usually follows to 
 determine either the validity of the testa- 
 ment, or who has a right to administer. 
 This claim or obstruction by the adverse 
 party is an injury to the party entitled, 
 and as such is remedied by the sentence 
 of the Court of Probate either by estab- 
 lishing the will or granting the adminis- 
 tration. A ca/veat may also be lodged in 
 the Court of Chancery against inrolling a 
 decree which it is intended to appeal to 
 the Lords Justices in iFuU Court, inas- 
 much as after inrolment the only appeal ' 
 is to the House of Lords. But since the 
 Judicature Act, 1873, this distinction is 
 probably of less importance. A caveat is 
 filed in the United States patent office to 
 allow the inventor time to perfect his in- 
 vention without the risk. 
 
 CATEAT EMPTOR Qet the Iwyer le- 
 ware). A maxim of law applicable to the 
 sale of goods and chattels. Under or ac- 
 cording to which a vendor is not bound 
 to answer for the goodness of the wares 
 he. sells, unless he expieaalj warrants them 
 to be sound and good, or unless he knows 
 them to be otherwise, and uses any art to 
 disguise them; and this is so, although 
 the price is such as is \isually given for a 
 sound commodity. Every affirmation, 
 however, at the time of sale is a, warranty, 
 if it appears to have been so intended. 
 
 CEMETERIES: SeeBvRiAj.s. 
 
 ♦CENEGILD. In Saxon law, an 
 expiatory mulct paid by one who killed 
 another, to the kindred of the deceased. 
 Jacob's Diet. ; Spelm. 
 
 CENTRAL CRIMINAL COURT. This 
 Court was constituted by the Acts 4 & 5 
 Will. 4, c. 86, and 19 & 20 Vict. c. 16, 
 for the trial of offenses committed in the 
 Metropolis and certain parts of Essex, 
 Kent, and Sussex adjoining thereto, and 
 of such other offenses as the Court of 
 Queen's Bench in term, or a judge thereof 
 in vacation, may direct to be removed 
 thither, although committed out of the 
 proper jurisdiction of the Court. 
 
 CEPI CORPUS. When a writ of 
 aypias was directed to the sheriff to exe- 
 cute it, he was commanded to return it 
 within a certain time, together with the 
 manner in which he had executed it. If 
 the sheriff had taken the defendant, and 
 had him in custody, he returned the writ, 
 together with an indorsement on the back 
 
56 
 
 CEPIT. — CESTUI QUE USE. 
 
 Cepi Corpus. — {OmiMnued.) 
 
 stating that he had taken him, which was 
 
 technically called a return of Oepi Oor- 
 
 'gUi. 
 
 * CEPIT. The emphatic word for- 
 merly used in writs of trespass for taking 
 personal property, and in declarations in 
 replevin and trespass. Burr. Diet. 
 
 CEKTAINTT, IN PLEADIN^. The 
 
 word is used in pleading in the two differ- 
 ent senses of distinction and particularity. 
 When, in pleading, it is said that the 
 issue must be certain, it means that it 
 must be particular or specific, as opposed 
 to undue generality. Steph. PI. 143, 4th 
 ed. See, also, Rm v. Home, Cowp. 683. 
 
 CERTIFICATE, TRIAL BT. This is 
 a mode of trial now little in use ; it is re- 
 sorted to in cases where the fact in issue 
 lies out of the cognizance of the Court, 
 and the judges, in order to determine the 
 question, are obliged to rely upon the 
 solemn averment or information of per- 
 sons in such a station as affords them the 
 clearest and most competent kno^yledge of 
 the truth. Steph. PI. 112, 113 : Co. Litt. 
 74. 
 
 CERTIORARI. An original writ, issu- 
 ing sometimes out of the Court of King's 
 Bench, and sometimes out of Chancery. 
 It is usually resorted to shortly before the 
 trial, to certify and remove any matter or 
 cause,- with aU the proceedings thereon, 
 from some inferior Court into the Court 
 of King's Bench, when it is surmised that 
 a partial or insufficient trial wiU probably 
 be had in the Court below (4 Yin. Abr. 
 329). It lies either for the verification of 
 errors, or for the removal of plaints in re- 
 plevin, or (most generally) for the removal 
 of criminal proceedings. 
 
 CESSAT EXECUTIO. The suspend- 
 ing or stopping of execution. If in an 
 action of trespass against two persons, 
 judgment be given against one, and the 
 plaintiff takes out execution against him, 
 the writ win abate as to the other, because 
 there must be cessai execvMo until it is tried 
 against the other defendant. Toml. 
 
 CESSAVIT. A writ that formerly lay 
 in various cases. It was generally sued 
 out against a person for having neglected 
 for two years to perform such service, or 
 to pay such rent, as he was bound to by 
 his tenure, and at the same time had not 
 upon his premises sufficient goods or cat- 
 tle to be distrained (Cowel). It also 
 
 Cessavit. — ( OoriMnued.) 
 lay where a religious house had lands 
 given to it on condition of performing 
 some certain spiritual service, as reading 
 prayers, giving alms, and which service it 
 had neglected ; and in either of the above 
 cases if the cesser or neglect had con- 
 tinued for two years, the lord or do- 
 nor and his heirs had a writ of cessa- 
 mt to recover the land itself, eo quod. 
 teneriA in faeiendia sermtiis per Mennivm 
 jam cessamt. Somewhat similar to the 
 effect of this writ is the provision in the 
 modern Acts regulating ^ts of lands for 
 popular education and amusement, that 
 when the same lands cease to be so used 
 they shall revert to the donor ; in order 
 to decide the fact of the cessor of their 
 appointed use, a writ of summons in 
 cessamt, or something analogous thereto, 
 would, presumably, have to issue. 
 
 *CESSIOBONORUM: See title Cbs- 
 sioir Dbs BiBIilS. 
 
 CESSION. Ceding or yielding up. By 
 stat. 21 Hen. 8, c. 73, if any one having 
 a benefice of £8 per annum or upwards, 
 according to the then present valuation 
 in the king's books, accept any other, 
 the first shall be adjudged void unless he 
 obtains a dispensation, which no one is 
 entitled to have but the chaplains of the 
 king and others therein mentioned, the 
 brethren and sons of lords and knights, 
 the doctors and batchelors of divinity 
 and law admitted by the universities of 
 this realm ; and a vacancy thus made, for 
 want of a dispensation is called a cession. 
 
 CESSION DESBIENS. This in French 
 Law is the surrender which a debtor 
 makes of all his goods to his creditors, 
 when he finds himself in insolvent cir- 
 cumstances. It is of two kinds, either 
 voluntary or compulsory {jvMoimre) cor- 
 responding very nearly to liquidation by 
 arrangement and bankruptcy in English 
 Law. 
 
 CESTUI QUE TRUST. He for whose 
 use or benefit another is invested or 
 seised of lands or tenements ; or in other 
 words, he who is the real, substantial and 
 beneficial owner of lands which are held 
 in trust. 
 
 See title Trusts. 
 
 CESTUI QUE USE. He for whose 
 use lands or tenements are held by an- 
 other 1 
 See title Uses. 
 
CESTUI QUE VIE. — CHANCELLOR. 
 
 57 
 
 CESTUI QUE VIE. He for whose life 
 lands or tenements are granted. Thus, 
 if A. grants lands to B. during the life 
 of C, here C. is termed the cestui que me. 
 
 CHAIEMAN OF COMMITTEES OF 
 THE WHOLE HOUSE. At the com- 
 mencement of every new Parliament, 
 each of the two Houses respectively 
 selects from its own body a member to 
 preside over its proceedings whilst the 
 House is in committee. The officer so 
 appointed is called "The Chairman of 
 Committees of the whole House," and 
 exercises the same authority in a com- 
 mittee of the whole House as does the 
 Speaker on ordinary occasions. May's 
 Pari. Pr. 
 
 CHALLENGE. An exception taken 
 either against persons or against things — 
 (1.) Against persons, as jurors, either one 
 or more of them ; (3.) Against things, as 
 a declaration, &c. There are two kinds 
 of challenge of jurors — either (1.) to the 
 array, by which is meant the whole jury 
 as it stands arraigned in the panel {see 
 title Panel) ; or (2.) to thepoUs, by which 
 is meant one or more of the several par- 
 ticular persons or heads in the array. A 
 challenge to the array is at once an ex- 
 ception to the whole panel in which the 
 jury are arrayed; and it may be made 
 upon account of partiality, or some de- 
 fault in the sheriff or his under officer, 
 who arrayed the panel; as where the 
 panel was arrayed at the nomination or 
 under the direction of either the plaintiff 
 or defendant in the cause, &c., this 
 would be a good ground for a challenge 
 to the array. Challenges to the polls are 
 exceptions to particular jurors ; and seem 
 to answer to the recusatio judieis in the 
 Civil and Canon Laws. Challenges to 
 the polls of the jury (who are judges of 
 fact) are by Sir Edward Coke reduced to 
 four heads, viz. : propter honoris respec- 
 tnmn; propter defectwm; propter affeetmn; 
 and propter del/icbwm. See, also. Smith's 
 Action at Law, 145, 10th ed. 
 
 CHALLENGE TO FIGHT. Is an in- 
 dictable offense, punishable with fine or 
 imprisonment, or both. It has been de- 
 cided that no words of porvocation how- 
 ever aggravating can justify it. B. v. 
 Rice, 3 East, 581. 
 
 CHAMBERS. Both at Common Law 
 and in Chancery a very large amount of 
 business is transacted in Chambers by 
 the judges, and their subordinate officers, 
 whether masters (as they are called at 
 
 8 
 
 Chambers. — ( Continued.) 
 Common Law), or chief clerks (as they 
 are called in Chancery). The jurisdic- 
 tion of the masters at chambers is defined 
 by the 30 & 81 Vict. c. 68. 
 
 CHAMPARTT, OR CHAMPERTY. 
 
 This species of maintenance consists in 
 the purchasing an interest in the thing 
 in dispute, with the object of maintain- 
 ing and taking part in the litigation (2 
 Inst. 484, 562, 563; Stanley v. Jones, 7 
 Bing. 378; Stevens v. BagweU, 15 Ves. 
 jun. 139). It is not champerty if the 
 parties have a common interest, and a 
 moral interest, as that of a parent in a 
 child, suffices; nor is it champerty to 
 simply mortgage the property in litiga- 
 tion with a view to raising the requisite 
 funds. Oockell v. Ta/ylor, 15 Beav. 103. 
 
 CHANCEL: /See title Chttrch. 
 
 CHANCELLOR. There are many offi- 
 cers bearing this title; those, however, 
 which it will be necessary to mention 
 here, are: 1st. The Lord Chancellor. 
 2ndly, the Chancellor of the Duchy of 
 Lancaster. 3dly, the Chancellor of a 
 Diocese ; and 4thly, the Chancellor of the 
 Exchequer. (1.) 'The Lord Chancellor is 
 the presiding judge in the Court of Chan- 
 cery ; he is created by the 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 prece- 
 dency to every temporal lord. He is a 
 privy councillor by j6is office, and proloc- 
 utor of the House of Lords by prescrip- 
 tion. To him belo*gs the appointment 
 of aU justices of the peace throughout the 
 kingdom. Being formerly usually an ec- 
 clesiastic (for none else was then capable 
 of an office so conversant in writings), and 
 presiding over the royal chapel, he be- 
 came keeper of the king's conscience, 
 visitor in right of the king of all hospitals 
 and colleges of the king's foundation, and 
 patron of all the king's Uvings under the 
 value of twenty marks per annum, in the 
 king's books. He is the general guard- 
 ian of all infants, idiots, and lunatics; 
 and has the general superintendence of 
 all charitable uses in the kingdom. And 
 all this over and above the vast and ex- 
 tensive jurisdiction which he exercises in 
 his judicial capacity in the Court of 
 Chancery. (2.) The Chancellor of the 
 Duchy of Lancaster is the Chief Judge 
 of the Duchy Court, who in difficult 
 
58 
 
 CHANCE-MEDLEY. — CHAPTER. 
 
 Chancellor. — ( Ooniiimied.) 
 points, of law used to be assisted by two 
 judges of the Common Law, to decide the 
 matter in question. This Court used to 
 be held in Westminster Hall, and was, 
 formerly, much used in relation to suits 
 between tenants of Duchy lands, and 
 against accountants and others for the 
 rents and profits of the said lands. It 
 is now held in Manchester and Liverpool, 
 the chief cities of the Duchy, and is pre- 
 sided over by a Vice-Chancellor, who de- 
 cides all judicial questions. (3.) The 
 Chancellor of the diocese, or of a bishop, 
 is an officer appointed to hold the bish- 
 op's Courts for him, and to assist him in 
 matters of • Ecclesiastical Law ; who as 
 well as all other ecclesiastical officers, if 
 lay or married, must be a doctor of the 
 ciyil law, so created in some University. 
 (4.) The Chancellor of the Exchequer is 
 also a high officer of the Crown, who 
 used to sit sometimes in Court, and some- 
 times in the Exchequer Chamber; and, 
 together with the regular judges of the 
 Court, saw that things were conducted to 
 the king's benefit. His principal duties, 
 however, are not of a judicial character, 
 but concern the management of the royal 
 revenue ; and under the Judicature Act, 
 1873, he is deprived altogether of his 
 strictly judicial functions. 
 
 CHANCE-MEDLEY. The accidentally 
 killing a man in self-defense is so termed ; 
 a^ if, in the course of a sudden broil or 
 quarrel, I, in the endeavor to defend my- 
 self from the person who assaults me, ac- 
 cidentally kill him. 
 
 CHANCEKT. The High Court of 
 Chancery is the highest Court of judica- 
 ture in this kingdom next to the Parlia- 
 ment, and is of a very ancient institution. 
 The jurisdiction of this Court is of two 
 kinds: (1.) ordinary, and (3.) extraordi- 
 nary. (1.) The ordinary jurisdiction is 
 that wherein the Lord Chancellor, Lord 
 Keeper, &c., in his proceedings and judg- 
 ments, is bound to observe the order and 
 method of the Common Law; and (3.) 
 the extraordinary jurisdiction is that 
 which the Court exercises in cases of 
 equity, i.e., "of grace." 
 
 The ordinary Court holds plea of recog- 
 nizances acknowledged in the Chancery, 
 writs of scire facias for repeal of letters 
 patent, &c., and also of all personal ac- 
 tions by or against any officer of the 
 Court; and by Acts of Parliament, of 
 several other ofEenses and causes. All 
 
 Chancery. — ( Continued.) 
 original writs, commissions of bank- 
 ruptcy, of charitable uses, and other com- 
 missions, as idiots, lunacy, &e., issue or 
 used to issue out of this Court, for which 
 purposes the Chancery was said to be al- 
 ways open ; and sometimes a supersedeas 
 or writ of privilege hath been here granted 
 to discharge a person out of prison. An 
 habeas corpus prohibition, &c., may be had 
 from this Court in the vacation, and here 
 a swbpoena may be had to force witnesses 
 to appear in other Courts, where these 
 latter Courts have no power to call them. 
 4 Inst. 79; 1 Danv. Abr. 776. 
 
 The extraordinary Court, or Court of 
 Equity, proceeds by the rules of equity 
 and conscience, and moderates the rigor 
 of the Common Law, considering the in- 
 tention rather than the words of the law, 
 Equity being the correction of that 
 wherein the Law, by reason of its univer- 
 salities, is deficient. On this ground, 
 therefore, to maintain a suit in Chancery, 
 it is ordinarily alleged that the plaintiEE 
 is incapable of obtaining relief at Com- 
 mon Law ; and this must be without any 
 fault of his own, as by having lost his 
 bond, &c. Chancery never acting against 
 but in assistance of the Common Law, 
 supplying its deficiencies, not contradict- 
 ing its rules. Under the Judicature Act, 
 1873, the Court of Chancery is to be 
 known as the Chancery Division of the 
 High Court of Justice, and is to retain all 
 its extraordinary jurisdiction as above de- 
 fined (sec. 34), Jbut apparently no part of 
 its ordinary jurisdiction, which is trans- 
 ferred, part of it («. g., Idiocy, Lunacy, 
 Patents, &c.) to the Court of Appeal, and 
 the other part of it to the other divisions 
 of the High Court of Justice, which rep- 
 resent respectively the Courts at present 
 respectively known as the Courts of Com- 
 mon Law. 
 
 CHAPELRT (capellania). The same 
 thing to a chapel as a parish is to a church, 
 i. «., the precincts and limits of it. Les 
 Termes de la Ley ; Cowel; 6 Jur. 608. 
 
 CHAPTER. An assembly of clerks in 
 a church cathedral ; and in another signi- 
 fication, a place wherein the members of 
 that community treat of their common 
 affairs. It may be said that the collegi- 
 ate company is termed chapter metaphori- 
 cally, the word originally implying a 
 little head ; for this company or corpora- 
 tion is, as a head, not only to rule or gov- 
 ern the diocese in the vacation of the 
 
CHARACTER, EVIDENCE AS TO. — CHARITABLE USES. 
 
 59 
 
 Chapter. — ( Continued.) 
 bishopric, but also in many things to ad- 
 vise the bishop, when the see is full. Lea 
 Vermes de la Ley. 
 
 CHARACTER, ETIDENCE AS TO. 
 
 In Anglo-Saxon times, this species of evi- 
 dence, so far as it regarded the parties 
 themselves to an action or suit, was al- 
 most the only evidence regarded (see title 
 Compukgation) ; but with the introduc- 
 tion of the Norman procedure by inquest 
 or recognition, evidence of witnesses as 
 to facts came to be received, and also 
 to be principally attended to, and evi- 
 dence as to the character of the parties 
 gradually sank to the secondary position 
 which it at present occupies. The law as 
 it exists at the present day may be thus 
 stated : — 
 
 (1.) As to parties, — Character evidence, 
 as a general rule, is not receivable at all ; 
 excepting, of course, when the character 
 of the party is directly in issue, and ex- 
 cepting in criminal prosecutions, when 
 the character of the party has some bear- 
 ing upon the offense with which he stands 
 charged. Best on Evidence, pp. 355- 
 357; and, 
 
 (3.) As to witnesses, — Character evi- 
 dence, as a general rule, is always receiv- 
 able, the evidence being, however, of a 
 general character (as distinguished from 
 particular circumstances), and going to 
 affect the credibility of the witness 
 only. 
 
 CHARGING ORDER. Under the stat. 
 1 & 2 Vict. c. 110, ss. 14-16, aided by the 
 stat. 3 & 4 Vict. c. 82, s. 1, when a judg- 
 ment debtor shall have any Government 
 stock, funds or annuities, or any stock or 
 shares of or in any public company in 
 England, a judge at chambers may, on 
 the ex parte application of the creditor, 
 grant an order nisi charging the prop- 
 erty in question with the judgment 
 debt, the order becoming absolute un- 
 less the debtor take proceedings ac- 
 cording to the statute to discharge it, but 
 the realization of the security to be post- 
 poned for six months {Brown v. Bamford, 
 9 M. & W. 42). In case the order is er- 
 roneous, the Court may discharge it {Fow- 
 Ur V. OTmrehUl, 11 M. & W. 57). In the 
 case of a fund in the Court of Chancery, 
 if the charging order is in aid of a judg- 
 ment of a Common Law judge, then the 
 latter judge, and not a judge of the 
 Court of Chancery, is to make the order; 
 but a Vice-Chancellor will grant a stop- 
 order in such a case in aid of the charg- 
 
 Charging Order. — ( Continued.) 
 ing order. On the other hand if the 
 charging order is sought in aid of a de- 
 cree of the Court of Chancery itself, then, 
 whether the fund is in Court or not, the 
 Court will issue it, together with a stop- 
 order, upon the petition of the creditor, 
 who need not have entitled his petition 
 in the Act 1 & 2 Vict. c. 110. 
 See title Stop-okdbk. 
 
 CHARGING PART OF A BILL IN 
 CHANCERY. The plaintiff in a suit in 
 Equity, after setting forth the subject of 
 complaint, adds such circumstances by 
 way of allegation as are calculated to 
 corroborate his statement, or anticipate 
 and controvert the claim of his adversary ; 
 and such allegations are technically called 
 charges, and the part of the bill in which 
 they occur is termed the charging part of 
 the bUl. 
 
 CHARITIES: See titles Chakitablb 
 Trusts Acts ; Chamtablb Uses ; and 
 Mortmain. 
 
 CHARITABLE TRUSTS ACTS. Un- 
 der these Acts, being principally the Act 
 of 1853 (16 & 17 Vict. c. 137), the Act 
 of 1855 (18 & 19 Vict. c. 124), and the 
 Act of 1860 (33 & 24 Vict. c. 186), the 
 management of the properties of chari- 
 ties has been regulated and facilitated. 
 A board, entitled the Charity Commis- 
 sioners, is constituted, having the entire 
 control of the administration of the prop- 
 erties, and notice to whom must be given 
 before any application is made to the 
 Court of Chancery under the Acts touch- 
 ing the affairs of the charities. It seems 
 that such an application may be made 
 after such notice is given, although the 
 Charity Commissioners refuse their sanc- 
 tion to the objects of the application 
 (Watford Burial Board, Ex paHe, 2 Jur. 
 (N. S.) 1045), but not, qum-e, if they dis- 
 approve of the application altogether. 
 It must be remembered, however, that 
 the Court of Chancery has an original 
 jurisdiction in matters of charities, and 
 that it is not ousted thereof by the stat- 
 utes above-mentioned. 
 
 CHARITABLE USES. Those objects 
 and purposes are considered charitable, 
 firstly, which are expressly enumerated 
 in the stat. 43 Eliz. c. 4 ; and, secondly, 
 which by analogy are deemed within its 
 spirit and intendment. The charitable 
 objects enumerated by the stat. of Eliz- 
 abeth are as follows : " Relief of aged. 
 
60 
 
 CHARTBEPARTT. — CHASE. 
 
 Charitable Uses. — ( Gontinued. ) 
 impotent, and poor people ; maintenance 
 of sick and maimed soldiers and mari- 
 ners ; schools of learning, free schools, and 
 scholars in universities ; repair of bridges, 
 ports, havens, causeways, churches, sea- 
 banks and highways ; education and pre- 
 ferment of orphans; relief, stock, or 
 maintenance for houses of correction; 
 marriages of poor maids; supportation, 
 aid, and help of young tradesmen, handi- 
 craftsmen, and persons decayed ; relief or 
 redemption of prisoners or captives ; aid 
 or ease of any poor inhabitants concern- 
 ing payment of fifteens, setting out of 
 soldiers, and other taxes." 
 
 The classes of gifts which have been 
 held to be within the spirit and intend- 
 ment of the statute, although not ex- 
 pressly enumerated therein, are princi- 
 pally the following: — 
 
 Gifts for the advancement of religion, 
 or connected with religious services or 
 places, e. g., bequests for the ornaments 
 of a parish church, for the stipend of a 
 minister or curate, or for the augmenta- 
 tion thereof, for the distribution of bibles, 
 for keeping in repair the church chimes ; 
 also, in assistance of the poor, as of un- 
 successful literary men ; and generally all 
 purposes which are of a public and legal 
 nature. And since the Toleration Act (1 
 W. & M. c. 18), a gift of any of these 
 sorts in favor of dissenters or noncon- 
 formists is equally legal, provided it be 
 not for a purpose deemed supersHtious, 
 as to which see title Supekstitious Uses ; 
 and since the stat. 3 & 3 "Will. 4, c. 115, 
 Roman Catholics have been put upon the 
 same footing as Protestant Dissenters. 
 
 CHAKTERPARTT. This is an agree- 
 ment in writing (not necessarily nor even 
 usually under seal), whereby a shipowner 
 lets an entire ship, or part of a ship, to a 
 merchant for the conveyance of goods, 
 and the merchant in consideration thereof, 
 and of the conveyance of the goods to 
 be thereunder effected, promises to pay 
 the shipowner an agreed sum by way of 
 freight for their carriage. A charter- 
 party is in general efEected through a 
 broker acting for the shipowner. A ship 
 chartered in this manner is opposed to a 
 general ship. 
 
 OonstrucUon of Ohwrterpa/rty. — The 
 agreement is construed liberally, upon the 
 maxim ut res magis vdkat quam pereat; 
 but if the words are clear the Court will 
 not reject or explain away a stipulation, 
 however harsh or oppressive in the event 
 
 Charterparty. — ( Gontinued,^ 
 {Stadhwrd v. Lee, 3 B. & S. 364). Also, 
 usage is admissible to explain mercantile 
 terms and phrases, but not to contradict 
 or vary the written instrimient itself. 
 However, a custom not repugnant to any 
 thing in the writing may be annexed to 
 it. And with reference to what mistakes 
 shall avoid the contract and what stipu- 
 lations amount to conditions precedent, 
 and generally as to all other matters of 
 construction, the rules applicable to other 
 contracts apply to charterparties also. 
 
 Dissolution of Gha/rte/rpa/rty . — The 
 agreement may be dissolved — 
 
 (1.) By consent before breach without 
 any new consideration, and after breach 
 upon terms. If the original agreement 
 is by deed, the agreement for dissolution 
 must be by deed also ; on the other hand, 
 if the original agreement is in writing 
 not under seal, the agreement for disso- 
 lution may be either in like writing or by 
 word of mouth, and that notwithstanding 
 the original contract may require by Stat- 
 ute to be in writing. Taylor v. Hillary, 
 1 Cr. M. & R. 741 ; 
 
 Also (2). By an nnreasonable delay in 
 the commencement of the voyage, at 
 least when a particular day is fixed for 
 the sailing, and time is (as it usually is) 
 of the essence of the contract; 
 
 Also (3). By act of law, rendering the 
 performance impossible, without any fault 
 of the parties; e. g., by the' outbreak of 
 a war or a general interdiction of com 
 merce, but not by a mere embargo, noi 
 even by a blockade, although duly noti 
 fled. 
 
 Remedies on, Chot/rterpa/rty. — The rem- 
 edy, if the contract is under seal, is by 
 action or debt or covenant, but if ir 
 writing not under seal, by action of as 
 sumpsit. "With reference to the parties 
 to sue and be sued, the same rules apply 
 as are applicable to ordinary contracts 
 e.g., to charge the undiscovered princi- 
 pal without discharging the agent ; and 
 if the contract is under seal, the like rules 
 apply. 
 
 CHASE. This word has two significa- 
 tions in the Common Law. First, it sig- 
 nifies a driving of cattle to or from any 
 place, as to chase a distress to a castle oi 
 fortlet. Secondly, it signifies a place for 
 the reception of deer and wild beasts of 
 the chase generally, as the buck, doe, fox, 
 marten and roe, &c. Crompton Jurisdic- 
 tion, 148; Manwood's Forest Laws; 4 
 Inst. 314. 
 
CHASTITY. — CHILD. 
 
 61 
 
 *CHASTITY. Homicide in defense of 
 the chastity of oneself or relations was 
 justifiable by the Koman Law. By the 
 English Law a woman is justified in kill- 
 ing one who attempts to ravish her (1 
 Hawk, P. 0. 71) ; and a husband or father 
 is justified in killing a man who attempts 
 a rape on his wife or daughter ; but not 
 if he takes them in adultery by consent. 
 1 HaL P. C. 485-6 ; Jacob Diet. 
 
 CHATTELS. All things which are 
 usually comprehended under the name of 
 goods, come under the general name of 
 chattels. Chattels are divided into two 
 kinds, real and personal. Chattels real, 
 are such as concern real estates, or landed 
 property, and are so called because they 
 are interests issuing out of such kind of 
 property, as the next presentation to a 
 church, terms for years, estates by statute 
 merchant, statute staple, elegit, etc. Chat- 
 tels personal are generally such as are 
 moveable, and may be carried about the 
 person of the owner wherever he pleases 
 to go ; such as money, jewels, garments, 
 animals, household furniture, and almost 
 every description of property of a move- 
 able nature. Things personal, however, 
 are not confined to moveables; for as 
 things real comprise not only the land it- 
 self, but such incorporeal rights as issue 
 out of it, so things personal include not 
 only those tangible subjects of property 
 which are capable of locomotion, but 
 also the incorporeal rights or interests 
 which may grow out of or be incident to 
 them. This class (to which may be 
 assigned the term of incorporeal chat- 
 tels) comprehends among other species, 
 patent right, or the exclusive privilege of 
 selling and making particular contriv- 
 ances of art ; and copyright, or the ex- 
 clusive privilege of seUing and publishing 
 particular works of literature. 
 
 CHAUD-MEDLEY. The kilUng of a 
 man in an affray in the heat of blood, and 
 while under the influence of passion ; it 
 is thus distinguished from chance medley, 
 which is the killing of a man in a casual 
 affray in self-defense. 
 
 CHAUNTRY. A church or chapel en- 
 dowed with lands or other yearly reve- 
 nues for the maintenance of one or more 
 priests to sing masses daily for the souls 
 of the donors, and such others as they 
 appointed. {Les TermesdelaLey.) Such 
 uses would at the present day be void as 
 superstitious. ( See title Supbestitiotjs 
 Uses.) The chauntries were aboUshed 
 by a statute passed in the last year of the 
 
 Channtry. — ( Oontdnwed.) 
 
 reign of Henry VIII, and the first year of 
 
 that of Edward VI. 
 
 CHEATING. Various forms of cheat- 
 ing are made criminal offenses, chiefly 
 the following : 
 
 (1.) Obtaining goods, etc., by false 
 
 pretenses ; 
 (3.) Selling goods by false scales ; 
 (3.) Various offenses enumerated in 
 the Debtor's Act, 1869 (32 & 38 
 Vict. c. 63), s. 11. 
 The offense is a misdemeanor in each 
 case. 
 
 CHEQUES: See title Bill op Ex- 
 change. 
 
 CHIEF (EXAMINATION OF WIT- 
 NESS IN). Every witness who gives his 
 testimony in a trial at Kisi Prius, is 
 first examined by the counsel of the party 
 on whose behalf he is called; and the 
 first examination is termed his examina- 
 tion in chief. He is then subject to cross- 
 examination by the counsel on the other 
 side ; which cross-examination may be in 
 its turn succeeded by a re-examination 
 by the counsel who originally called him 
 (3 C. & P. 113). In the Court of Chan- 
 cery the examination in chief has hitherto 
 been taken by aflldavit, but under the 
 Judicature Act, 1873, the practice in 
 Chancery is assimilated to that of the 
 Common Law. 
 
 CHIEF RENTS. Those rents which 
 are payable by the freeholders of manors, 
 are frequently so called, and they are 
 also denominated quit-rents, i. e., guieti 
 reditus, because thereby the tenant goes 
 quit and free of all other services. 
 
 CHIEF, TENANT IN. AU the land 
 in the kingdom was supposed to be hold- 
 en mediately or immediately of the king, 
 who was styled the lord paramount or 
 Lord above all ; and those that held im- 
 mediately under him, in right of his 
 crown and dignity, were called his ten- 
 ants in capitis or in chief, which was the 
 most honorable species of tenure, but at 
 the same time subjected the tenant to 
 greater and more burdensome services 
 than inferior tenures did. 
 
 See title Feudal Tenubbs. 
 
 CHILD. In law means a legitimate 
 
 child in the absence of evidence of an 
 
 intention to signify an illegitimate child. 
 
 See titles Ikpastt ; Parent and 
 
 Child ; Abduction ; Abandon 
 
 MENT ; Concealment of Bikth. 
 
62 
 
 CHILTEBN HUNDREDS. — CHOSE. 
 
 CHILTEBN HUNDREDS. The stew- 
 ardship of the Chiltern Hundreds is a 
 nominal office in the gift of the Crown, 
 usually accepted by members of the 
 House of Commons desirous of vacating 
 their seats. "Her Majesty's Chiltern 
 Hundreds " are three in number, name- 
 ly. Stoke, Desborough, and Bonenham, 
 and are distinguished by the use made of 
 them for parliamentary purposes. By law 
 a member once duly elected is compellable 
 to discharge the duties of the trust con- 
 ferred upon him, and is not enabled at 
 will to resign it. But by stat. 6 Anne, c. 
 7, and several subsequent statutes, if any 
 member accepts of any office of profit 
 from the Crown (excepting officers in the 
 army or navy accepting a new commis- 
 sion), his seat is vacated. If, therefore, 
 any member wishes to retire from the 
 representation of the county or borough 
 by which he was sent to Parliament, he 
 applies to the Lords of the Treasury for 
 the stewardship of one of the Chiltern 
 Hundreds, which having received, and 
 thereby accomplished his purpose, he 
 again resigns the office. Rogers on Elec- 
 tions; 3 Hatsell, 41; May's Pari. Pr. 
 576-7. 
 
 CHIMIN. A way, which is of two 
 kinds — (1.) The king's highway ; and, 
 (3.) A private way. (1.) The king's high- 
 way is that by which the king's subjects 
 and all under his protection have free 
 liberty to pass, although the property in 
 the soil on each side, or even in medium 
 fllum mm, may belong to some private 
 person. (3.) A private way is that by 
 which one or more persons have a right or 
 liberty to pass through another person's 
 ground. CoweL 
 
 See, also, title Wat. 
 
 CHIROGRAPH. An instrument of 
 gift or conveyance attested by the sub- 
 scription and crosses of the witnesses, 
 and which was in the Saxon times called 
 CMrograph/wm and which being somewhat 
 changed in form and manner by the Nor- 
 mans, was by them styled charta. An- 
 ciently, when they made a chirograph or 
 deed which required a counterpart, as we 
 call it, they engrossed it twice upon one 
 piece of parchment contraiywise, leav- 
 ing a space between, in which they wrote 
 in great letters the word chirograph, and 
 then cut the parchment in two through 
 the middle of the word, concluding the 
 deed with " In cnjus rei UstMrnmimn 
 utraque pars mutuo seriptis presenHbus fide 
 media sigUI/wm suum fecit appord." This 
 
 Chirograpl. — {OmUnued.) 
 was afterward called dimdenda, because 
 the parchment was so divided or cut. 
 And the first use of these chirographs 
 was in Henry IH.'s time. Chirograph 
 was also of old used for a fine. And this 
 manner of engrossing the fine and cut- 
 ting the parchment in two pieces con- 
 tinued to be observed until the abolition 
 of fines by the stat. 3 & 4 Will. 4, c. 74. 
 Cowel. See, also, next title. 
 
 CHIBOeRAPHER OF FINES. C%*-' 
 rogra/plms flm/wm et concordia/mm (from the 
 Greek x^'^poy P'>'-'P°^ j which is a com- 
 pound of x^^P) ^ hand, and ypcLtpco, I 
 write). It signified in the Law the offi- 
 cer of the Common Pleas who engrossed 
 fines in that Court so as to be acknowl- 
 edged into a perpetual record, after they 
 had been acknowledged and fully passed 
 by those officers by whom they were pre- 
 viously examined. Cowel. 
 
 CHIVALRY (semUzim militare). This 
 word comes from the French chevalier ; 
 and signifies that peculiar species of ten- 
 ure by which lands were formerly held, 
 called tenure by knights' service. It is of 
 a martial and military nature, and obliges 
 the tenant to perform some noble or mili- 
 tary office unto his lord. 
 
 CHOSE (thmg). This word is gener- 
 ally used in combination with others. 
 The most common combinations in which 
 it is found are the following: — (1.) Chose 
 local; (3.) Chose transitory; and (3.) 
 Chose in action. (1.) Chose local is such 
 a thing as is annexed to a place ; thus, a 
 mill is a chose local. (3.) Chose transi- 
 tory means any thing of a movable or 
 transitory nature, which may be taken or 
 carried away from one place to another. 
 (3.) Chose in action (the most ordinary 
 combination), is a phrase which is some- 
 times used to signify a right of bringing 
 an action, and at others the thing itself 
 which forms the subject-matter of that 
 right, or with regard to which that right 
 is exercised ; but it more properly includes 
 the idea both of the thing itself and of, 
 the right of action as annexed to it. 
 Thus, when it is said that a debt is a 
 chose in action, the phrase conveys the 
 idea not only of the thing itself, i. e., the 
 debt, but also of the right of action or 
 of recovery possessed by the person to 
 whom the debt is due. When it is said 
 that a chose in action cannot be assigned, 
 it means that a thing to which a right of 
 action is annexed cannot be transferred 
 
CHEISTIANITY.— CIRCUITY OF ACTION. 
 
 63 
 
 Cho8e> — ( OonUmied^ 
 to another together with such right. 
 Thus if A. owes B. £10, it is obvious that 
 the latter has a debt, and also a right of 
 recovering such debt against A. ; now if 
 B. were to assign or transfer his debt, to- 
 gether with his right of recovery, to C, 
 this would be assigning a chose in action, 
 which the law would not allow for the 
 reasons stated in Co. Litt. 314 a, 266 a ; 
 3 Roll. 45 ; MovlsdakY. BirchaU, Sid. 312. 
 But more recently such assignments came 
 to be allowed in Equity, and latterly 
 crossed in some instances from Equity to 
 Law, until eventually, by the Judicature 
 Act, 1873, a chose in action has been 
 made assignable in every case. 
 
 CHRISTIANITY. To bring this re- 
 ligion into ridicule or contempt is an of- 
 fense against the Common Law of Eng- 
 land, and as such is indictable. Holt, 
 Libel, 69, n. 
 
 CHURCH. A place of worship, to be 
 adjudged a church in English law must 
 have administration of the sacraments and 
 sepulture annexed to it (Cowel). The fab- 
 ric of the church consists of the nave or 
 body of the church, with the aisles, the 
 chancel, and the steeple. 
 
 See, also, titles Advowson ; Burial j 
 Pabish ; Pbws ; and two next ti- 
 tles. 
 
 CHURCH-RATES. These were abol- 
 ished as a compulsory assessment by the 
 Stat. 31 & 33 Vict. c. 109, and the pay- 
 ment of these or of any analogous assess- 
 ment to be collected instead of them was 
 made voluntary. The assessment while 
 it existed was made in a vestry meeting ; 
 it fell generally upon all such property as 
 was rateable to the poor-rate ; it went to 
 support the temporal necessities of the 
 church. 
 
 CHURCHWARDENS. The8e,al- 
 though laymen, are a species of ecclesias- 
 tical ofl5.cers, being sworn in by the arch- 
 deacon or bishop of the diocese. They 
 are intrusted generally with seeing to the 
 repairs, management, and good order of 
 the church, and to decency of conduct 
 therein. 
 
 CHURLE. Among the Anglo-Saxons 
 a tenant at will of free condition, who 
 held land from the thanes on condition 
 of rent or services. They were of two 
 sorts ; (1.), one who hired the lord's out- 
 land or tenementary land, as our farmers 
 do new ; (2.), the other, who tilled and 
 
 Churle. — ( ConUnued.) 
 manured the inland or demesnes (yield- 
 ing work and not rent), and were thence 
 called his sockmen or ploughmen. Spel- 
 man on Feuds ; Cowel. 
 
 CINQUE PORTS (quinqve partma). 
 Five important havens, formerly esteemed 
 the most important in the kingdom. 
 They were Dover, Sandwich, Romney, 
 Hastings, and Hythe; Winchelsea and 
 Rye have since been added to the num- 
 ber. They have similar franchises in 
 many respects with the counties Palatine, 
 and particularly an exclusive jurisdiction 
 (before the mayor jurats of the ports), in 
 which the king's ordinary writ did not 
 run. These ports have a governor called 
 the Lord Warden of the Cinque Ports, 
 who has the authority of an admiral 
 amongst them, and used to send out writs 
 in his own name. But the king's writ 
 now runs to, and is executed in, these 
 ports in like manner as in other parts of 
 the kingdom. See C. L. P. Act, 1853, s. 
 122. 
 
 CIRCUITS. These are the routes taken 
 by the several judges in holding the as- 
 sizes. The Stat. 8 & 4 Will. 4, c. 71, reg- 
 ulates the appointment of convenient 
 places for holding the assizes; and the 
 Stat. 26 & 37 Vict. c. 133, enables the 
 Queen in Council to alter the circuits. 
 As at present constituted, there are eight 
 circuits in England and Wales, viz. Home, 
 Norfolk, Midland, Northern, Oxford, 
 Western, South Wales and North Wales, 
 but a new arrangement is imminent. 
 
 CIRCUITY OF ACTION. Is where a 
 party to an action, by an indirect and 
 circuitous course of legal proceeding, 
 makes two or more actions necessary, in 
 order to obtain that justice between all 
 the parties concerned in the transaction, 
 which by a more direct course might have 
 been gained in a single action. As in an 
 action on a contract, in which the defend- 
 ant, instead of giving in evidence a 
 breach of the warranty in mitigation of 
 damages, allows the plaintifi to recover 
 the full amount of the contract in the 
 first action, and then subsequently com- 
 mences against him a cross action to re- 
 gain the amount to which the considera- 
 tion had failed. (See title Cross Action.) 
 Formerly indeed, he was compelled to 
 bring a cross action, and had no other 
 remedy, but more recently "the cases 
 have established that the breach of the 
 warranty may be given in evidence in 
 
64 
 
 CIRCULAR NOTES. — CIVIL LIST. 
 
 Circuity of Action. — {OonUrmed.) 
 
 mitigation of damages, on the principle, 
 it should seem, of avoiding circuity of 
 action." Per Tenterden, C. J., 2 B. & 
 Ad. 462. 
 
 CIRCULAR NOTES. These are simi- 
 lar instruments to Letters of Credit. 
 (Ssethat title.) They are drawn by bank- 
 ers in this country upon their foreign cor- 
 respondents in favor of persons traveling 
 abroad. The correspondents must be sat- 
 isfied of the identity of the applicant be- 
 fore payment ; and the requisite proof of 
 such identity is usually furnished, upon 
 the applicant's producing a letter with 
 his signature, by a comparison of the sig- 
 natures. 
 
 CIRCUMSPECTE AGATIS. The ti- 
 tle of the statute 13 Edward I, regulating 
 the jurisdiction of the temporal and ec- 
 clesiastical Courts. The date usually as- 
 signed to this statute is 1285 ; but there 
 seems to be reason to believe that it was 
 not in existence at that period. It was, 
 however, cited as early as 19 Edward 3. 
 It originally was not a statute, but a writ 
 supposed to have been issued in pursu- 
 ance of the statute called Artiauli Oleri 
 {see that title), of which, in the form in 
 which it is printed both in the aiuthentic 
 and ordinary edition of the statutes, it is 
 a repetition and abridgement. It was 
 probably a writ of mandate, framed for 
 the purpose of being issued by the king 
 to his judges in behaU of the Spiritual 
 Courts, in or after 1315, and embodying 
 Tvhat' were then supposed to be the legiti- 
 mate objects of the jurisdiction of those 
 latter Courts. Its authority as a statute 
 is, however, no longer questioned. 12 
 Ad. & El. 815. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 That evidence which may be afforded by 
 particular circumstances. It is called cir- 
 cumstantial evidence in contradistinction 
 to that species of evidence which is of a 
 more positive and unequivocal nature. 
 Whence the latter is sometimes called di- 
 rect evidence, and in that case circum- 
 stantial is designated indirect. Some- 
 times, also, it is called the doctrine of 
 presumptions; because when the fact 
 itself cannot be proved it may be pre- 
 sumed, by the proof of such circumstances 
 as either necessarily or usually attend 
 such facts, being in the former case con- 
 clusive, and in the latter more or less 
 cogent only. See Greenl. Ev. 13. 
 See title Pbesumption. 
 
 CIRCUMSTANTIBUS, TALES DE. 
 
 Literally, like persons out of those pres- 
 ent or standing by. This phrase is ap- 
 plied to the m&king up the number of 
 persons on a jury, by taking some of the 
 casual bystanders who happen to be qual- 
 ified for serving on a jury. This takes 
 place when the jurors who are impan- 
 eled, from some cause or other, do not 
 appear, or, if appearing, are challenged 
 by either party, and so disqualified. 
 See title Chailbngb. 
 
 CITATION. The process used in the 
 Ecclesiastical Courts and Court of Pro- 
 bate and Divorce, to call the party — de- 
 fendant or respondent — before them. It 
 is the first step which is taken in the case, 
 and is somewhat analogous to the writ of 
 summons at Common Law. 
 
 CIVIL DEATH. If a man entered 
 into a monastery, or abjured the realm, 
 he was formerly, and if he is attainted of 
 treason or felony he still is dead in law, 
 and therefore if an estate be granted to 
 any one for his life generally it would 
 determine by such civil death. For which 
 reason in conveyances the grant is usu- 
 ually made " for the term of a man's Tiat- 
 waZlife," which can only determine by 
 his natural death. 3 Inst. 213; 3 P. 
 Wms. 37, n. (B) ; 2 Rep. 48 b. 
 
 CIVILITER (eimUy). In a man's civU 
 character or position, or by civil, in oppo- 
 sition to criminal, process; as "sheims 
 who execute processes at their peril' are 
 answerable cisiZiter for what they do upon 
 it," or "a man may, without his own 
 fault, be possessed of a horse which has 
 been stolen, but nevertheless he is answer- 
 able dvUiter to the true owner of it." 1 
 B. & P. 409j per Rooke, J. 
 
 CIVIL LAW. In its general signifi- 
 cation is the established law of every par- 
 ticular nation, commonwealth, or city, 
 and is the same with that which is called 
 Municipal Law. In its particular signifi- 
 cation, however, it usually means the 
 Roman law, as comprised in the Insti- 
 tutes, Code, and Digest of, the Emperor 
 Justinian. 
 
 CIVIL LIST. An annual sum granted 
 by the English parliament at the com- 
 mencement of each reign, for the expenses 
 of the royal household and establishment 
 as distinguished from the general exigen- 
 cies of the state. 
 
CIVIL SIDE. — CLERGY, BENEFIT OP. 
 
 65 
 
 CIVIL SIDE. The legal business of 
 the assizes is arranged according to the 
 natural division of such cases as are 
 D-erely civil, in which the disputes of 
 subjects (citizens) as to property are de- 
 cided, and those of a criminal nature, 
 when men are charged with offenses 
 against the welfare of society at large. 
 In the county hall, or court in which the 
 triiils take place, it is very usual for one 
 side or portion of the building to be ap- 
 propriated to the hearing of cases of the 
 former character, and the other side or 
 portion to the hearing of those of the lat- 
 ter character. And hence the phrase has 
 become common that the judge is either 
 sitting "on the civil side" or "on the 
 criminal side," meaning thereby that he 
 is either presiding at Nisi Prius or tiying 
 a prisoner, as the case may be. It is now 
 customary for two judges to attend cir- 
 cuit together, and then one of them sits 
 on the " civil " the other on the " criminal 
 side." 
 
 CLAIM, CONTINUAL. When a man 
 was entitled to enter into any lands or 
 tenements of which another was seized in 
 fee or in tail, and he who was so entitled 
 made continual claim to the lands or ten- 
 ements before he who was so seized, died 
 seized thereof ; then even in the event of 
 such person dying seized of the same, and 
 the lands or tenements descending to his 
 heir, might he who made such continual 
 claim, or his heir, have entered into the 
 lands or tenements so descended by virtue 
 of his having made such continual claim. 
 So if a man were disseized, and the disseizee 
 made continual claim to the tenements in 
 the life of the disseizor, and the disseizor 
 died seized in fee, and the land descended 
 to his heir, yet notwithstanding its hav- 
 ing so descended, the disseizee might 
 have entered upon the possession of the 
 heir by virtue of such continual claim. 
 Such a claim must always have been made 
 within a year and a day before the death 
 of the person holding the land, and as the 
 claimant could not know when such death 
 would take place, he was therefore obhged 
 continually to be making such claim, i. e., 
 at the expiration of every year and a day, 
 in order that he might be sure of his claim 
 being made within a year and a day of 
 the tenant's death, ^nd hence it was 
 termed conUrmal claim (Litt. 414). But 
 no such continual claim is of any utility 
 at the present day to preserve a right of 
 entry, or distress, or action, 3 & 4 Will. 
 4, c. 27, s. 11. 
 
 9 
 
 * CLARE CONSTANT. In Scotch 
 law, the name of a precept for giving 
 seizin of lands to an heir ; so called from 
 its initial words. Burr. Diet. ; Bell Diet. ; 
 Ersk. Inst. 6, 3, tit. 8, s. 71. 
 
 CLARENDON, CONSTITUTIONS OF. 
 
 In the reign of Henry II., A. d. 1164, 
 Blackstone states that there are four 
 things which peculiarly merit the atten- 
 tion of the legal antiquarian, one of which 
 is the constitutions of the parliament at 
 Olarendon, whereby the king checked the 
 power of the pope and his clergy, and 
 narrowed the exemptions they claimed 
 from the secular jurisdiction. These 
 Constitutions enacted in substance that 
 the king's Courts should try aU contested 
 rights of advowson and presentation ; ec- 
 clesiastics should obey the king's sum- 
 mons ; appeals from the archbishop should 
 be to the king alone ; all disputes regard- 
 ing lands between ecclesiastics and lay- 
 men should be tried by the king's jus- 
 tices ; all pleas of debt, notwithstanding 
 the same may be aflected with a trust, 
 should be determined in the king's Courts, 
 with other provisions of a similar char- 
 acter. 
 
 CLAUSUM FREGIT (he brohe the close). 
 Every unwarrantable entry on another's 
 soil the law entitles a trespass Sy ireahing 
 his close. The words of the writ of tres- 
 pass command the defendant to show 
 cause, qyMre cl/mxu/m querentis /regit. 
 See title Trbspasb. 
 
 * CLEARANCE. The name of the cer- 
 tificate given by the collector of a port 
 from which the vessel sails, describing 
 the vessel, cargo and destination. Burr. 
 Diet. 
 
 CLERGY, BENEFIT OF, or privilege 
 of clergy, formerly signified certain priv- 
 ileges which the clergy alone enjoyed. 
 It had its origin from the pious regard 
 paid by Christian princes to the church in 
 its infant state; and the ill use which was 
 soon made of that pious regard. The ex- 
 emptions which were granted to the church 
 were principally of two kinds: (1.) Ex- 
 emption of places consecrated to religious 
 duties from. criminal arrests, which was 
 the foundation of sanctuaries; (3.) Ex- 
 emption of the persons of clergymen 
 from criminal process before the secular 
 judge in a few particular cases, which 
 was the true original meaning of the 
 phrase "benefit of clergy." It was 
 formerly required that those who claimed 
 benefit of clergy should be able to read ; 
 
66 
 
 CLERK OP THE ASSIZE. — CLERK OF THE PRIVY SEAL. 
 
 Clergy; Benefit of.- 
 
 but by 5 Ann. c. 6, it was enacted that 
 the benefit of clergy should be granted 
 to all those who were entitled to ask it, 
 without requiring them to read by way 
 of conditional merit ; hence persons con- 
 victed of manslaughters, bigamies, and 
 simple or jgrand larcenies, &c., were asked 
 what they had to say why judgment of 
 death should not be pronounced upon 
 them ; and they were then told to kneel 
 down and pray the benefit of the statute. 
 The abuses attending the privilege grew 
 vei-y many, and a better code of criminal 
 law and .procedure in later days tacitly 
 supplanted the plea, which was ultimate- 
 ly abolished altogether by the stat. 7 & 8 
 Geo. 4, c. 28, s. 6. 
 
 CIEKK OF THE ASSIZE. A clerk 
 whose duty it was to record all things 
 judicially done by the justices of assize 
 im their circuits. Cromp. Juris. 337; 
 Cunningham ; abolished by 7 WiU. 4 & 1 
 tict. c. 30. 
 
 GLEBE OF THE COMMONS. An offi- 
 cer whose duty it is to attend to matters 
 connected with the business of the House 
 of Commons. He is assisted by two 
 "clerks assistant," who sit at the table 
 with him ; he signs orders of the House, 
 indorses bills, reads any thing required 
 to be read, and makes short noinutes of 
 the business transacted known as the 
 " Votes and Proceedings." He holds his 
 office for life under the Crown, and is 
 appointed by letters patent. 
 
 CLEBK OF THE CEOWN. This is 
 an officer of the Court of Chancery, 
 appointed under the Royal Sign Manual. 
 He performs the duties of the Clerk of 
 the Hanaper {see next title) ; his office is 
 continued by the Great Seal (Offices) 
 Act, 1874 (37 & 38 Vict. c. 81), which 
 also regulates the fees to be taken in the 
 office. 
 
 CLEBK OF THE HANAPEB, OB 
 HAMPEB. An officer of the Court of 
 Chancery, whose duty it was to receive 
 all the money due to the king for the 
 seals of charters, patents, commissions 
 and writs ; and also, fees due to the offi- 
 cers for enrolling and examining the 
 same. Cowel. 
 
 CLEBK OF THE HOUSE OF COM- 
 MONS. An officer appointed by the 
 Crown, whose duty it is to make a record 
 of the proceedings of the House, which 
 he or his deputies enter upon the jour- 
 
 Clerk of House of Commons.— (Oiwi,) 
 
 nals, to receive and'preserve the petitions 
 presented to the House, and generally to 
 assist the Speaker in the details of his 
 very onerous duties. He is usually a 
 banister-at-law. Similar officers are em- 
 ployed in the House of Lords. By the 
 33 Geo. 3, c. 13, the clerk of Parliament 
 is directed to indorse on every Act, im- 
 mediately after the title thereof, the day, 
 month and year when the same shall 
 have passed, and shall have received the 
 royal assent ; and such indorsement shall 
 be taken to be part of the Act, and shall 
 be the date of its commencement, where 
 no other commencement shall have been 
 provided by the Act. 
 
 CLEBK OF THE PABLIAMENT 
 BOLLS. An officer in the High Court 
 of Parliament, who records all things 
 done therein, and engrosses them fairly 
 on parchment roUs, for their better preser- 
 vation to posterity. There is one of these 
 officers to each House of Parliament. 
 Cowel. 
 
 See, also, title Clbbk of the House 
 OF Commons. 
 
 CLEBK OF THE PABLIAMENTS. 
 
 An officer of the House of Lords, whose 
 duties are similar to those of the chief 
 clerk in the House of Commons. 
 
 See title Clebk of the House of 
 Commons. 
 
 CLEBK OF THE PEACE. An officer 
 belonging to the sessions of the peace, 
 whose duty it is to read indictments, to 
 enrol the Acts, draw the process and per- 
 form various other duties connected with 
 the administration of justice at the ses- 
 sians. 
 
 CLEBK OF THE PETTY BAG. An 
 
 officer of the Court of Chancery, whose 
 duty it used to be to record the return of 
 all inquisitions out of every shire; to 
 make out patents of customers, gangers, 
 controllers and aulnagers; all 'congSs 
 (Pelire for bishops; the summons of the 
 nobility, clergy and burgesses to Parlia- 
 ment, etc. 33 Hen. 8, c. 22 ; Cowel. But 
 most, if nbt all, of these functions have 
 been superseded. 
 
 CLEBK OF THE PEIVT SEAL. 
 
 There are four of these officers, who at- 
 tend the lord privy seal, or, in the absence 
 of a lord privy seal, the principal secre- 
 tary of state. Their duty is to write and 
 make out all things that are sent by war- 
 
CLEKK OF THE SIGNET. — COGNOVIT ACTIONEM. 
 
 67 
 
 Clerk of the Privy Seal. — {Continued.) 
 'rant from the signet to the privy seal, 
 and which are to be passed to the great 
 seal; and also to make out privy seals 
 (as they are termed) upon any special 
 occasion of Ms majesty's affairs, as for 
 the loan of money and such like purposes. 
 27 Hen. 8, c. 11. Cowel. 
 
 CLERK OF THE SIGNET. An offi- 
 cer whose duty it is to attend on his 
 majesty's principal secretary, who always 
 has the custody of the privy signet, as 
 well for the purpose of sealing his majes- 
 ty's private letters, as also grants which 
 pass his majesty's hand by bUl signed ; 
 there are four of these officers. 37 Hen. 
 8, 0. 11; CoweL 
 
 * CLOSE. An interest in the soil. The 
 law incloses a man's land with an imag- 
 inary fence, if not actually fenced, and 
 entitles him to damages for passing 
 through the boundary. Hammond N. P. 
 151 ; Doctor and Stud, dial, 1 c. 8, p. 30 ; 
 Bouv. Diet. 
 
 CLOSE ROLLS AND CLOSE WRITS. 
 
 Certain letters of the king sealed with 
 his great seal and directed to particular 
 persons and for particular purposes, and 
 not being proper for public inspection, 
 are closed up and sealed on the outside, 
 and are thence called writs close (litercB 
 dcmscB), and are recorded in the close roUs 
 in the same manner as others are in the 
 patent roUs (literce patentes), or open let- 
 ters. 
 
 CLUBS. These are companies, but not 
 being for profit are not within the mean- 
 ing of the Winding-up Acts (In re St. 
 James's Glvb, 3 De G. M. & G. 383). They 
 are essentially social, and the exclusion of 
 a member, if not wanton, is without 
 remedy. SopMnson v. Exeter {Marquess)^ 
 L. E. 5 Eq. 63 ; see 5 Albany Law Jour. 
 336. 
 
 CODICIL. A supplement to a will, or 
 an addition made by the testator and 
 annexed to the will, being written for 
 the explanation or alteration or for the 
 purpose of making some addition to, or 
 some subtraction from, the dispositions 
 of the testator as contained in his will. 
 In the Roman Law, a codicil was an in- 
 formal will; but in English Law, the 
 formalities of execution and of attesta- 
 tion are as strict in the case of codicils 
 as in that of wills. 
 
 See title Wills. 
 
 * CO-EMPTIO. In civil law, the cere- 
 mony of celebrating marriage by solem- 
 nities. Bouv. Diet. The parties met and 
 gave each other a small sum of money. 
 The man asked the woman if she would 
 be his mater-famiUas, and she asked him 
 if he would be her pater-famiUas. These 
 questions being answered in the affirma- 
 tive they then joined. These were nup- 
 tials by co-emptio. Boeth. Co-emptio; 
 Calvinus Lex. 
 
 COGNIZANCE or CONUSANCE. This 
 word has several significations. 1st. It 
 signifies an acknowledgment. It is used 
 in this sense when applied to fines, or 
 those fictitious suits, by means of which 
 estates in lands were transferred from one 
 party to another. Thus a fine " sur cog- 
 nizance de droit " signified a fine " upon 
 acknowledgment of the right." 3nd. 'The 
 word is applied to that plea or answer 
 put in by the defendant in an action of 
 replevin, when he acknowledges the tak- 
 ing of the distress in respect of which the 
 action is brought, but insists that such 
 taking was legal, as he acted with the 
 command of another who had a right to 
 distrain. Here, it will be observed, the 
 defendant makes an acknowledgment of 
 the fact charged against him, but ofilers a 
 legal excuse for his conduct. (See Tre- 
 trwian v. Pyne, 1 Salk. 107 ; Ghomhers v. 
 Donaldson., 11 East, 65.) 3rd. It is used 
 in the sense of judicial notice of superin- 
 tendence. Thus cognizance of pleas sig- 
 nifies the right of privilege granted by 
 the Crown to any person or body corpor- 
 ate, not only to hold pleas within a par- 
 ticular jurisdiction, but also to take 
 cognizance of them, i. e., to take judicial 
 notice on superintendence of them, in 
 other words, to have jurisdiction to hear 
 them. 
 
 COGNOVIT ACTIONEM. An instru- 
 ment signed by a defendant in an action, 
 confessing the plaintiff's demand to be 
 just. The defendant who signs this cog- 
 novit thereby empowers the plaintiff to 
 sign judgment against him, in default 
 of his paying the plaintiff the sum due 
 to him within the time mentioned in the 
 cognovit. Under the stat. 1 & 3 Vict. c. 
 110, s. 9, every such cognovit must be at- 
 tested by an attorney, who must also, un- 
 der the stat. 33 & 33 Vict. c. 63, s. 34, 
 have explained to the debtor the nature 
 of the instrument. And under the last- 
 mentioned statute, s. 36, every cognovit 
 must be filed with the clerk of docquets 
 and judgments in the Court of Queen's 
 
68 
 
 COIF. — COLLATION TO A BENEFICE. 
 
 Cognovit Actionem. — (OonUnued.) 
 Bench within twenty-one days next after 
 the execution thereof, otherwise the same 
 is void as being fraudulent against cred- 
 itors. 
 
 See, also, title ATTOKiirBT, Powbb op. 
 
 COIF. Our serjeants-at-law are called 
 Serjeants of the coif, from the circum- 
 stance of the lawn coif which they wear 
 on their head, under their caps, when 
 they are elevated to that rank. It was 
 originally used to cover the crown of the 
 head, which was closely shaved, and a 
 border of hair left round the lower part, 
 which made it look like a crown, and was 
 thence called corona eUricalu, or tonmiram 
 Cowel. 
 
 COLLATERAL {collateralis^ from the 
 Lat. laterale, that which hangs by the side. 
 Its legal signification does not difEerfrom 
 its common acceptation. . Thus a collat- 
 eral assurance signifies an assurance be- 
 side the principal one. So when a man 
 mortgages his estates as security to a 
 party lending him a sum of money, he 
 also may enter into a bond, as an addi- 
 tional or collateral security. A collateral 
 security is, therefore, something in addi- 
 tion to the direct security, and its nature 
 usually subordinate to it ; and it is in the 
 nature of a double security, so that whien 
 one fails, the other may be resorted to. 
 See, also, succeeding titles. 
 
 COLLATERAL CONSANGUINITY, 
 OR COLLATERAL KINDRED. That 
 which exists between persons who are 
 derived from the same stock or ancestors, 
 however remote. Every person who is 
 descended or propagated from the same 
 stem (i. «., from the same male or female 
 lineal ancestor) from which any other 
 particular person is descended or propa- 
 gated, and who is neither the immediate 
 parent or progenitor, nor the progeny of 
 such particular person, is properly and 
 aptl^ denominated or defined to be a 
 collateral relative. And when any per- 
 son is the collateral relative of any other 
 person, aU the descendants from such per- 
 sons, reciprocally and respectively, are 
 collateral relations. 
 
 * COLLATERAL ESTOPPEL. The 
 
 collateral determination of a question by 
 a Court having general jurisdiction of the 
 subject. See 26 Vt. 209. 
 
 COLLATERAL ISSUE. When a pris- 
 oner has been tried and convicted, and he 
 then pleads in bar of execution diversity 
 
 Collateral Issne. — (Omtimued.) 
 of person, i. e.,that he is not the same- 
 person who was attainted, and the like ; 
 this question of fact, whether or not he is 
 the same person, is called a collateral 
 issue, and a jury is then impaneled to 
 try this issue, viz., the identity of his per- 
 son. It is a general rule of evidence, 
 that whatever would raise a collateral 
 issue is to be excluded, unless aemble, the 
 case is one in which the collateral issue 
 should be settled by way of preliminary to 
 the chief issue. 
 
 ♦COLLATERAL LIMITATION. A 
 
 limitation of an estate which gives an in- 
 terest for a specified period, but makes the 
 right of enjoyment depend on some col- 
 lateral event. 4 Kent Com. 128. 
 
 COLLATERAL WARRANTY. In alien- 
 ating property by deedjthere was usually a 
 clause in it called the clause of warranty, 
 whereby the grantor, for himself and his 
 heirs, warranted and secured to the gran- 
 tee the estate so granted. This warranty 
 was either lineal or collateral. Lineal war- 
 ranty was where the heir derived, or might 
 by possibility have derived, his title to 
 the land warranted, either froin or through 
 the ancestor who made the warranty ; as 
 where a father, or an elder son in the hf e 
 of the father, released to the disseizor of 
 either themselves or the grandfather, 
 with warranty, this was lineal to the 
 youngest son. Collateral warranty was 
 where the heir's title to the land neither 
 was nor could have been derived from the 
 warranting ancestor ; as where a younger 
 brother released to his father's disseizor, 
 with warranty, this was collateral to the 
 elder brother. 
 
 See, also, title Wabbantt. 
 
 COLLATION TO A BENEFICE. Ad- 
 
 vowsons are either presentative, collative, 
 or d(fnative. (1.) An advowson presenta- 
 tive is where the patron has a right of 
 presentation to the bishop or ordinary, 
 and moreover to demand of him to insti- 
 tute his clerk, if he finds him canonically 
 qualified, and this is the most usual kind 
 of advowson. (2.) An advowson coUa- 
 ti/ve is where the bishop and patron are 
 one and the same person, in which case 
 the bishop cannot present to himself, but 
 in the one act of collation, or conferring 
 of the benefice, he does all that is usually 
 done in presentative advowsons by both 
 presentation and institution. (3.) Regard- 
 ing the advowson donative, see title Ad- 
 vowson. 
 
COLLIGENDUM BONA DEFUNCTL — COMMEND ATORS. 
 
 69 
 
 COILIOENDUM BONA DEFUNCTI 
 
 (Letters of). When a person dies intes- 
 tate and leaves no representatives or 
 creditors to administer, or leaving such 
 representatives or creditors, they refuse to 
 take out administration, etc., the judge 
 of the Court of Probate may commit ad- 
 ministration to such discreet person as he 
 approves of, or grant him these letters 
 ad colligendum Txma defimcti (to collect 
 the goods of the deceased) . Such a grant 
 is purely official, and does not constitute 
 him executor or administrator, his only 
 Ijusiness being to take care of the goods, 
 and to do other acts for the benefit of those 
 •who are entitled to the property of the 
 cl.eceased. 
 See title Administration, Lbttbbs op. 
 
 COLLISION: 5«« title Shipping. 
 
 COLLUSION. A deceitful agreement 
 or compact between two or more persons 
 for the one party to bring an action 
 against the other for some evil purpose, 
 as to defraud a third party of his right. 
 Bro. tit. Collusion ; Les Termes de la Ley. 
 As a general rule, collusion between the 
 parties to an action is fatal to the success 
 of it, e.g., in proceedings for a divorce; 
 but in particular instances it is not so, as 
 in the old proceedings for suffering a 
 common recovery. 
 
 COLONIES. As a general rule, a col- 
 ony acquired by discovery and occupa- 
 tion is to be ■ governed by the laws of 
 England ; and if acquired by conquest, 
 then by its own laws, so far as they are 
 not contrary to morality, and until the 
 conqueror sees fit to change them. But 
 when the laws of England depend upon 
 circumstances that are pecuUar to Eng- 
 land, and whjch do not apply to the col- 
 onies also, then these particular laws do 
 not hold good in the colonies, e. g., the 
 Law of Mortmain in the Island of Gren- 
 ada. Attorney- Oeneral v. Stewart, 3 Mer. 
 143; and see Mayor of Lyons v. EaM 
 India Co., 1 Moo. P. C. 0. 175, as to 
 India. 
 
 COLOUR. A technical term used in 
 pleading to signify that apparent right of 
 the opposite party, the admission of 
 which is required in all pleadings, by way 
 of ■ confession and avoidance. Of such 
 pleadings it is, as the name imports, of 
 their vei-y essence to confess the truth of 
 the allegation which they propose to an- 
 swer or avoid, which formerly was done 
 by an introductory sentence — '^True it is 
 
 Colour. — ( Oontmued. ) 
 that, etc.," preceding the defense rehed 
 upon in answer. But though this formal 
 admission is now generally abandoned, it 
 is still essential that the confession clear- 
 ly appear on the face of the pleading. 
 See Steph. PL 339, et aeq.; 1 Ch. PI. 504 ; 3 
 Reeves' E. L. 438. 
 
 * COLOR OF OFFICE. A pretense 
 of official right to do an act made by one 
 who has no such right. 9 East, 364 ; Bouv. 
 Diet. 
 
 COMBINATION OF WORKMEN. The 
 
 Stat. 33 Vict. c. 34, enacts in explanation of 
 thestat. 6 Geo. 4, c. 139, that no workman, 
 by reason merely of his combining with 
 other workmen for the purpose of fixing 
 the rate of wages, or for the purpose of 
 peaceably and without threat or intimida- 
 tion dissuading others from working with 
 a view to fixing the rate of wages, shall 
 be deemed or taken to be guilty of the 
 oflense of molestation or obstruction; 
 but the Act is not to authorize a work- 
 man to break his contract. See, also, 
 Trades Unions Act, 1871 (34 & 35 Vict. c. 
 31), and Criminal Law Amendment Act, 
 1871 (34 & 35 Vict. c. 82). 
 
 * COMES. A word used in pleading, 
 which indicates the presence in court of 
 the defendant. 
 
 * COMITY, COURTESY. Courts of 
 justice in one State will, out of comity, 
 sometimes enforce the laws of another 
 State. 
 
 COMMANDITE: -See title Socibtb. 
 
 COMMENDAM (ecelesia commendata). 
 The holding a living or benefice in com- 
 mendam is (where a vacancy occurs) hold- 
 ing such living commended by the Crown 
 until a proper pastor is provided for it. 
 This may be temporary for one, two, or 
 three years ; or perpetual, being a kind of 
 dispensation to avoid the vacancy of the 
 living, and is called a commenda retinm-e. 
 These comrnendams are now seldom granted 
 except to bishops. 
 
 See, also, next title. 
 
 COMMENDATORS. Secular persons 
 on whom benefices or church livings are 
 bestowed. They are so called because 
 the benefices were commended and in- 
 trusted to their oversight; they are not 
 proprietors, but only a kind of trustees. 
 Where the bishop is commendatory, the 
 grant is usually made to him while he 
 
70 
 
 COMMISSAKIA LEX. — COMMISSION OF THE PEACE. 
 
 Commeudatorg. — {GonUn/ued.) 
 continues bishop of the particular dio- 
 cese, and not longer, the intention of the 
 grant being to augment the revenues of 
 the bishopric where it is poor. 
 
 See, also, title PLtraALiTuss. 
 
 * COMMISSAKIA LEX. A principle 
 of the Koman Law relative to the forfeit- 
 ure of contracts. 2 Kent Com. 583. 
 
 COMMISSARY (oommissanus). In the 
 Ecclesiastical Law is a title applied to 
 those who exercise spiritual jurisdiction 
 in those parts of the diocese which are 
 too far distant from the chief city for the 
 chancellor to call the people of the bish- 
 op's principal court without occasioning 
 them great inconvenience. These officers 
 were ordained to supply the bishop's of- 
 fice in the distant places of his diocese, 
 or in such parishes as were peculiar to 
 the bishop, and were exempted from the 
 jurisdiction of the archdeacon (Lynde- 
 wood's Provin. ; Cowel). But in more 
 modem times, the commissary acts gen- 
 erally in relief of the bishop or arch- 
 bishop, and as his officer. 
 
 COMMISSION. In our law is much 
 the same as delegaUo with the civilians, 
 and is commonly understood to signify 
 the warrant, authority, or letters patent, 
 which empower men to perform certain 
 acts, or to exercise jurisdiction either or- 
 dinary or extraordinary. In its popular 
 sense it frequently signifies the persons 
 who act by virtue of such an authority. 
 There are various sorts of commissions, 
 which will be found under the following 
 titles. 
 
 COMMISSIONS OP ASSIZE. Com- 
 missions empowering the judges to sit on 
 the circuit, for the purpose of holding 
 the assizes. 
 
 COMMISSION OF BANKRUPT. A 
 
 commission or authority formerly granted 
 by the Lord Chancellor to such discreet 
 persons as he should think proper, to ex- 
 amine the bankrupt in all matters relat- 
 ing to his trade and effects, and to per- 
 form various other important duties con- 
 nected with bankruptcy matters; these 
 persons were thence called cormrmsioners 
 of icmh-upfoy, and had in most respects 
 the powers and privileges of judges in 
 their own Courts. But regularly consti- 
 tuted Courts and judges in bankruptcy 
 cases have now superseded such commis- 
 sions and commissioners. 
 
 See title Bankruptcy. 
 
 COMMISSION OF CHARITABLE 
 
 USES. A commission issuing out of the 
 Court of Chancery to the bishoi and 
 others, when lands which are given to 
 charitable uses have been misemployed, 
 or there is any fraud or dispute concern- 
 ing them, to inquire of and redress the 
 same. 
 
 COMMISSION OF DELEGATES. 
 
 When any sentence was given in any ec- 
 clesiastical cause by the archbishop, this 
 commission under the great seal was di- 
 rected to certain persons, usually lords, 
 bishops, and judges of the law, to sit and 
 hear an appeal of the same to the King in 
 the Court of Chancery. But latterly the 
 Judicial Committee of the Privy Council 
 has supplied the place of this commission ; 
 and the Court of Appeal will take the 
 place of the Judicial Committee, under 
 the Judicature Act, 1878. 
 
 COMMISSION TO EXAMINE WIT- 
 NESSES. When a caiise of action arises 
 in a foreign country, and the witnesses 
 reside there, or in a cause of action aris- 
 ing in England, where the witnesses are 
 abroad or are shortly to leave the king- 
 dom ; or if witnesses residing at home are 
 aged and infirm, and therefore cannot 
 come to Court ; in any of these cases a 
 Court of Equity will grant a commission 
 to certain persons to attend these witnes- 
 ses wherever they may reside, and to ex- 
 amine them and take down their deposi- 
 tions in writing upon the spot, and these 
 depositions are then received in Court as 
 valid evidence in the cause. 
 
 See, also, titles EvroENCB ; Witnes- 
 ses. 
 
 COMMISSION OF LUNACY. A com- 
 mission issuing out of Chancery author- 
 izing certain persons to inquire whether 
 a person represented to be a lunatic is so 
 or not, in order that, if he is a lunatic, 
 the king may have the care of his estate. 
 The masters in lunacy at the present day 
 are permanent officers appointed to dis- 
 charge the duties of these commissions, 
 under the lunacy Regulation Act, 1863 
 (25 & 26 Vict. c. 86). 
 
 COMMISSION OF OYER AND TER- 
 MINER : See title Oyer anb Terminer. 
 
 COMMISSION OF THE PEACE. A 
 
 commission from the king under the 
 great seal, appointing persons therein 
 named jointly and separately justices of 
 the peace. 
 
 ySse, title Justice. 
 
COMMISSIOK TO TAKE ANSWERS IN EQUITY. — COMMON BAR. 71 
 
 COMMISSION TO TAKE ANSWERS 
 IN EQUITY. When a defendant in a 
 suit lived more than twenty miles from 
 London, there might have been a corrnim- 
 sion granted to take his answer in the 
 country, where the commissioners admin- 
 istered to him the usual oath, and then 
 the answer being sealed up, either one of 
 the commissioners carried it up to Court, 
 or it was sent by a messenger, who swore 
 that he received it from one of the commis- 
 sioners, and that the same had not been 
 opened or altered since he received it. 
 But now such an answer may be sworn 
 in the country before any solicitor of the 
 Court who is appointed a commissioner 
 to administer oaths in Chancery. 
 
 COMMITTEE. An assembly of per- 
 sons to whom matters are referred. A 
 committee of the House of Commons is a 
 committee to whom a bill after the second 
 reading is committed, that is, referred; 
 and is either selected by the House in 
 matters of small importance, or else upon 
 a bill of consequence the House resolves 
 itself into a committee of the whole house. 
 A committee of the whole House is formed 
 of every member; and to form it the 
 speaker quits the chair (another member 
 being appointed chairman), and the 
 Speaker may in that case sit and debate 
 as a private member. Intheae committees 
 the biU is debated clause by clause, 
 amendments are made, the blanks are 
 filled up, and sometimes the bill is almost 
 entirely remodeled. After it has gone 
 through this committee, it is again 
 brought before the House for re-consid- 
 eration, after which it is read a third 
 time, and then passed or not passed as 
 the case may be. A committee also signi- 
 fies the person or friend to whom the 
 Lord Chancellor commits the care of an 
 idiot or lunatic. 
 
 * COMMODATUM. A bailment of a 
 thing to be used by the bailee without re- 
 ward. Story Bailm., § 331. 
 
 COMMON, BIGHT OF. Is a right 
 which one person who is not the owner 
 has of taking some part of the produce of 
 land belonging to another. There are 
 four kinds of rights of common, viz. : 
 (1.) Common of Pasture, which may be, 
 either 
 (a.) Appendant (see that title) ; or 
 (&.) Appurtenant (see that title) ; or 
 {a.) Pur cause de vicinage (see that 
 
 title) ; or 
 (d.) In Gross {see that title) ; 
 
 Common, Right of. — {Continued.) 
 
 (3.) Common of Piscary, as to which, 
 see title Fishbbt. 
 
 (8.) Coiomon of Estovers, as to which, 
 see title Estovbbs ; 
 
 (4.) Common of Turbary, as to which, 
 see title Ttjkbart. 
 As a general rule, rights of common are 
 acquired in the same manner as ease- 
 ments {see that title), viz., either 
 
 (1.) By grant; or 
 
 (3.) By prescription, which implies a 
 grant. 
 And the Prescription Act, "3 & 3 Will. 4, 
 c. 71, applies to all varieties of rights of 
 common, for the acquisition of which it 
 appoints thirty years and sixty years, the 
 former conferring a title defeasible other- 
 wise than with reference to time, and the 
 latter a title defeasible by production of 
 written evidence only. 
 
 Similarly, the remedies for disturbance 
 of a right ot common are the same as for 
 the denial or obstruction of an easement, 
 viz. : 
 
 (1.) Case, which is substituted for the 
 old right of admeasurement ; 
 
 (2.) Abatement; and 
 
 (3.) BiU in Equity. 
 Rights of common may be extinguished 
 in one or other of the following ways : 
 
 (1.) By unity of possession; 
 
 (2.) By release ; 
 
 (3.) By severance ; 
 
 (4.) By enfranchisement ; or 
 
 (5.) By inclosure. 
 See, also, titles Approvement; Inclo- 
 
 SUBB. 
 
 COMMON BAR. A plea was so termed 
 which was frequently" pleaded by a de- 
 fendant in an action of trespass, quare 
 clmmum f regit. In this action, if the 
 plaintiff declared against the defendant 
 for breaking his close in a certain parish, 
 without otherwise particularizing or de- 
 scribing the close, and the defendant 
 himself happened to have any freehold 
 land in the same parish, he frequently 
 affected to mistake the close in question 
 for his own, and pleaded what was called 
 the common ha/r, viz., that the close in 
 which the trespass was committed was 
 his own freehold, which compelled the 
 plaintiff to new assign, i. «., to assign his 
 cause of complaint over again, alleging 
 that he brought his action in respect of a 
 trespass committed upon a different close 
 from that claimed by the defendant as his 
 own freehold. Now, however, a defend- 
 ant cannot well afPect ignorance with re- 
 
72 
 
 COMMON BENCH. — COMPOSITION WITH CREDITOBS. 
 
 Common Bar. — (Oontinued.) 
 gard to the real close, as by a rule of 
 Court (HJl. Term. 4 "Will. 4), the plain- 
 tiff is bound to pa/rUoularwe the close or 
 place in the declaration by assigning to 
 it its familiar name or by describing it by 
 its abuttals or other sufBcient descrip- 
 tion. The above-mentioned plea is also 
 called a Iwr at lavge and a lilank bar. 
 Steph. Plead. 350, 4th ed. 
 
 COMMON BENCH. The Court of 
 ■ Common Pleas was formerly so called 
 because the causes of cormnon persons, i. e., 
 causes between subjects only, and in 
 which the Crown had no interest, were 
 tried and determined in that Court. 
 
 COMMON INTENDMENT. The plain 
 common meaning of any writing, as ap- 
 parent on the face of it without straining 
 or distorting the meaning of the writer. 
 Ba/r to common intendment is an ordinary 
 or general bar to the declaration of a 
 plaintiff. Co. Litt. 78; Cowel. 
 
 COMMON INTENT. "Certainty in 
 pleading has been stated by Lord Coke 
 (Co. Litt. 303) to be of three sorts, viz., 
 certainty to a ammwn intent, to a certain 
 intent in general, and to a certain intent 
 in every particular. By a common intent, 
 I understand that when words are used 
 which will bear a natwral sense, and also 
 one, or one to be made by 
 
 argument or inference, the natural sense 
 shall prevail, it is simply a rule of con- 
 struction and not of addition. Qommon 
 intent cannot add to a sentence words 
 which are omitted." Per BuUer, J., Bo- 
 iiaston V. Paym, 2 H. Bl. 537 ; 3 Smith's 
 L. C. 133. 
 
 * COMMON LAW. The system of law 
 which prevails in England and the United 
 States of America, as distinguished from 
 the Roman or civil law. Also the body 
 of rules of law which do not owe their 
 origin to legislative enactment. 
 
 COMMON PLEAS {comm/u/nw, plaoita). 
 One of the superior Courts of Common 
 Law. The proceedings in this Court are 
 the same as those in the other Courts of 
 Common Law. The Court was fixed at 
 Westminster by or in virtue of that pro-^ 
 vision in Magna Carta requiring commwnia 
 placita to be held in some one defnite 
 place (aliquo certo loco teneantur). 
 See, also, title Courts of JtrsTioB. 
 
 COMMON SERJEANT. Is a judicial 
 of&cer attached to the corporation of the 
 
 Common Sergreant. — (Continued.) ■ 
 City of London, who assists the recorder 
 in disposing of the criminal business at 
 the Old Bailey Sessions. 
 
 COMMON TRAVERSE: See title 
 Teavbbse. 
 
 COMMUNE CONCILIUM REGNI 
 ANGrLIJl. The general council of the 
 reahn assembled in Parliament. Cowel. 
 
 See, also, title Couets or Justice. 
 
 COMMUNIA PLACITA NON TEN- 
 ENDA IN SCACCARIO; A writ directed 
 to the treasurer and barons of the Ex- 
 chequer, forbidding them to hold pleas be- 
 tween common persons in that Court ; Reg. 
 of Writs, 187; Cowel. 
 
 COMMUTATION OF TITHES: See 
 
 title Tithes. 
 
 COMPARISON OP HANDWRITING: 
 
 Bee title Handwriting. 
 
 COMPANY: See title Joint Stock 
 Company. 
 
 COMPENSATION. In French Law 
 (as in Roman Law) is the set-off of Eng- 
 lish Law. See that title. - 
 
 COMPENSATION. In EngUsh Law, 
 denotes the pecuniary sum awarde'd under 
 railway and other statutes, in payment 
 and compensation of and for lands and 
 buildings taken campulsorily or by 
 agreement for public purposes. The chief 
 statute upon the matter is the Lands 
 Clauses Consolidation Act, 1845 (8 & 9 
 Vict. c. 18). 
 
 * COMPERUIT AD DIEM. A plea in 
 bar to an action of debt on a bail bond. 
 "He appeared at the day." 3 Ch. PI. 
 537. 
 
 COMPOSITION WITH CREDITORS. 
 
 As well by the Common Law as under the 
 Bankruptcy Act, 1869, it is lawful for a 
 debtor in embarrassed circumstances to 
 come to an arrangment with his creditors 
 to pay them so much in the pound, and 
 to be released or forgiven by them the 
 rest. The agreement is usually canied 
 out by means of a composition deed, but 
 such a deed is not requisite by the Com- 
 mon Law, there being a sufficient consid- 
 eration to support the arrangement as a 
 simple contract merely, in the mutual 
 agreement of all the creditors in consid- 
 eration of the agreements of the others to 
 assent to the composition (Sibree v. Tripp, 
 15 M. & W. 33). It is necessary by the 
 
UOMPOUNDING FELONY, OR THEFTBOTE. — CONDITION. 73 
 
 Composition with Creditors. — {Oont.) 
 Common Law that all the creditors should 
 have assented to the composition; but 
 under the English Bankruptcy Act, 1869, 
 a majority in number and three-fourths 
 in value may bind the minority. See sect. 
 136. 
 See, also, titles Liquidation ; Bank- 
 
 KTJPTCT. 
 
 COMPOUNDING FELONY, OE 
 THEFTBOTE. Where a person has 
 been robbed, and he knows the felon, 
 and receives back from him his goods 
 that were stolen, or some other amends, 
 upon agree&ent not to prosecute, this is 
 a misdemeanor. 
 
 See, also, title Advbbtisembnt. 
 
 COMPROMISE OF SUIT. When a 
 suit is not carried through to verdict, or 
 decree, or judgment, but the parties agree 
 upon certain terms, which include a stay 
 of proceedings, they are said to compro- 
 mise the suit. A mere doubtfulness of 
 right is a sufficient consideration to sup- 
 port a compromise (^Oallisher v. Bischoff- 
 sTieim, L. R. 5 Q. B. 449). Counsel for 
 the parties may also compromise a suit 
 without the authority and even against 
 the wishes of their clients. Thp parties 
 themselves may compromise it, but with- 
 out prejudice to their solicitor's Uen. 
 Wright V. Burrows, 3 C. B. 344. 
 
 COMPURGATORS. Persons who 
 swear they believe the oath of another 
 person made in defense of his own inno- 
 cence. Such was the case with the 
 clergy, who, when accused of any capital 
 crime, were not jonly required to make 
 oath of their own innocence, but also to 
 produce a certain number of persons 
 called compurgators, to swear that they 
 believed the oath of the accused. It is a 
 rude form of evidence, the modem phase 
 of which is chwracter-emdenoe. See that 
 title. 
 
 COMPUTE, RULE TO. In cases 
 
 where the plaintiff had an interlocutory 
 judgment, and the amount of daihages 
 was a simple matter of calculation, and 
 no evidence was required to ascertain the 
 amount, beyond what was apparent on 
 the face of the pleadings, the Court, in- 
 stead of putting the plaintiff to execute 
 a writ of inqidry, would refer it to the 
 master to compute principal and interest. 
 
 •CONCLUSION TO THE COUNTRY. 
 
 When a party m pleading traverses or de- 
 nies a material fact or allegation advanced 
 
 10 
 
 Conclusion to the Country. — (Cont'd.) 
 by his opponent, he usually concludes his 
 pleading with an offer that the issue so 
 raised may be tried by a jury ; this he 
 does by stating that he "puts himself 
 upon the country ; " and a pleading which 
 so concludes is then said to conclude to 
 the country; and the technical phrase 
 itself is termed a "eoncVimon to the 
 country." 
 
 CONCORD (conoordia). An agreement 
 entered into between two or more per- 
 sons, upon a trespass having been com- 
 mitted, by way of amends or satisfaction 
 for the trespass. In that species of con- 
 veyance which was formerly in use, called 
 &fine, the word '■'concord" also occurs; 
 and here it signifies an agreement, called 
 the finis concordim, between the parties, 
 who are levying the fine of lands one to 
 another, how and in what manner the 
 lands shall pass ; this concord is usually 
 an acknowledgment from the deforciants 
 that the lands in question are the right of 
 the complainant ; and from this acknowl- 
 edgment, or recognition of right, the party 
 levying the fine is called the cognizor, and 
 he to whom it is levied the cognizee. 
 
 CONDEMNATION MONEY. The 
 
 party who fails in a suit or action is some- 
 times said to be condemned in the action, 
 whence the damages to which such failure 
 has made him liable, used to be frequently 
 called condemnation money. Thus, in pro- 
 ceedings to enforce a recognizance by 
 writ of scire facias it is laid down that 
 ' ' these persons (the bail) stipulated that 
 if the defendant should be condemned 
 in the action, he should pay the conde/mrm- 
 tion money, or render himself into cus- 
 tody." 
 
 *CONDICTIO. In civil law, a personal 
 action. Inst. 4, 6, 15. 
 
 CONDITION. In French Law, the fol- 
 lowing peculiar distinctions are made : — 
 
 (1.) A condition is casuelle, when it 
 depends on a chance or hazard ; 
 
 (3.) A condition is potestative when it 
 depends on the accomplishment of some- 
 thmg which is in the power of the party 
 to accomplish ; 
 
 (8.) A condition is mixie, when it de- 
 pends partly on the wUl of the party and 
 partly on the will of others ; 
 
 (4.) A condition is suspensive, when it 
 is the future and uncertain event, or pres- 
 ent but unknown event, upon which an 
 obligation takes or fails to take effect ; 
 
74 CONDITONS. — CONDITIONS PRECEDENT AND SUBSEQUENT. 
 
 Condition. — {OonlAnmd.) 
 
 (5.) A condition is resohitoire, when it 
 is the event which undoes an obligation 
 which has already had effect as such. 
 
 CONDITIONS. At the Common Law, 
 a condition, or the benefit of a condition, 
 could only be reserved to the grantor, 
 lessor or assignor, and his real or personal 
 representatives, and not to a stranger; 
 but by the stat. 8 & 9 Vict. c. 106, s. 5, 
 under an indenture executed after the 1st 
 of October, 1845, the benefit of a con- 
 dition respecting any lands or tenements 
 may be taken, although the taker thereof 
 be not named a party to the same in- 
 denture. 
 
 A condition affecting freehold lands 
 must be created, if not by the same deed, 
 at all events by a deed executed and de- 
 livered at the same time as the deed 
 which creates the estate ; but a condition 
 affecting chattels, rents, annuities, and 
 such like, may be created subsequently to 
 the principal deed. 
 
 And with reference to the Irreach of 
 conditions : — 
 
 By the Common Law, no one could 
 take advantage by entry of the breach 
 of a condition, except persons who were 
 parties or privies in right and representa- 
 tion. Therefore, by the Common Law, 
 neither privies in law * (e. g., lords claim- 
 ing by escheat) nor grantees and assignees 
 of the reversion, could have such advant- 
 age of it. But by stat. 32 Hen. 8, c. 34, 
 grantees and assignees now possess this 
 right, whether the grant is of the whole 
 or only of a part of the estate of the 
 reversion, but not so as to appportion the 
 condition ; however, now, by stat. 33 & 
 33 Vict. c. 35, s. 3, such apportionment 
 may be made where the reversion is split 
 up into parts. 
 
 Even when lands are descendible by 
 some rule or custom to a person other 
 than the heir by the Common Law, e. g., 
 in gavelkind lands, none but the heir by 
 the Common Law may enter for the 
 breach, although after such entry, the 
 customary heir or heirs may enter on him, 
 and enjoy along with him, if the custom 
 so direct. But the right of taking advant- 
 age of a breach of condition being merely 
 personal (1 Pres. Shep. T. 150), not even 
 the heir at Common Law may enter for a 
 condition broken in the life-time of his 
 ancestor. 
 
 See, also, succeeding titles. 
 
 * Nevertheless If tbe condition were Implied In law, 
 privies In law might take advantage of the breach. 
 
 CONDITIONS, IMPOSSIBLE. In 
 
 Roman Law, a legacy subject to an im- 
 possible condition was vaUd, and was at 
 once an absolute bequest ; and this is also 
 the rule as to bequests of personal prop- 
 erty in English Law. Again, in Roman 
 Law, a stipulation {i. e., contract) subject 
 to an impossible condition was void alto- 
 gether ; and this is also the rule of the 
 English Law as to such a contract in the 
 general case. But a distinction has been 
 taken, chiefiy upon the words of the con- 
 tract, between a condition which is 
 already impossible, and known to be so to 
 the contracting parties at ih.e time of 
 their contracting (in which case the con- 
 tract is invariably void, as being simply 
 foolish), and a condition which only sub- 
 sequently to the contract becomes void, 
 or the impossibility of which was un- 
 known to the parties at the time of the 
 contract (in which latter case the contract 
 may or may not, according to the lan- 
 guage, be and remain binding). See 
 Leake on Contracts, 3S6. 
 
 CONDITIONS PEjECEDENT AND 
 SUBSEQUENT. These may be either 
 precedent to the vesting of an estate or 
 right of action, or aubsegymtfixBitto, and 
 divesting the estate or right. 
 
 (a.) Conditions precedent and subse- 
 quent with reference to estates. 
 
 In the construction of personal bequests, 
 where the condition is precedent, and 
 there is so limitation over on its non-ful- 
 fillment, it is sufficient if it is perf owned 
 in substance, when from unavoidable cir- 
 cumstances it cannot be fulfilled to the 
 letter; but when there is a limitation 
 over of the legacy on non-fulfillment of the 
 condition, a strict and literal performance 
 is required (1 Wh. Rop. Leg. 769). On 
 the other hand, when the condition is 
 subsequent, then, as being odious, it is 
 construed wtih strictness, and to be of 
 any avail to defeat an estate (whether 
 vested or contingent), it must have been 
 fulfilled to the letter (1 Wh. .Rop. Leg. 
 783) ; for it is only reasonable that before 
 a person is deprived of the benefit con- 
 ferred upon him, the literal event on 
 which the forfeiture is to arise should 
 happen, more especially if the benefit is 
 already vested in enjoyment, and it makes 
 no difference for that matter that the con- 
 dition which is subsequent to the one 
 estate is precedent to another, either in- 
 troducing a fresh conditional Umitation, 
 or accelerating a limitation already in 
 existence in remainder. 
 
CONDITIONS PRECEDENT AND SUBSEQUENT. 
 
 75 
 
 Conditions Precedent, etc. — (C<w*'ci.) 
 These principles may be illustrated by 
 a reference to conditions of consent to 
 marriage. Thus, if in the event of a 
 legatee marrying -without the consent of 
 a trustee or executor, the legacy is to go 
 over to another person, and either the 
 trustee dies before the marriage, and be- 
 fore his consent is obtained, or the ex- 
 ecutor renounces, the interest of the 
 prior legatee becomes absolute, and he 
 or she may marry without consent with- 
 out forfeiting the legacy. This is a con- 
 dition subsequent. Again, if a condition 
 which is precedent to some bequest re- 
 quires the consent of three trustees to the 
 marriage of the legatee, and one of those 
 trustees dies, the approbation of the sur- 
 viving two trustees previously to the 
 marriage wUl be a sufficient compliance 
 with the condition ; and in such a case, 
 if the condition were subsequent, the 
 happening of the like event would dis- 
 charge the condition m toto, inasmuch 
 as the literal performance was become 
 impossible. See 1 Wh. Rop. Leg. 803. 
 
 (6.) Conditions precedent to the vest- 
 ing of a right of action, also conditions 
 subsequent divesting the same. 
 
 The right of action is not complete 
 without the previous performance, or else 
 the remission of all conditions precedent 
 (if any) to the obligation attaching to the 
 defendant ; and, therefore, it is necessary 
 to aver in the declaration a performance 
 of all such conditions, or else a sufficient 
 excuse for the non-performance thereof 
 {Orafton v. Eastern Oountiea Ry. Co., 8 
 Exch. 699). By the C. L. P. Act, 1853, 
 s. 57, it is made lawful for the plaintiflE or 
 defendant in any action to aver perform- 
 ance of conditions precedent generally; 
 but this enactment does not relieve him 
 from the necessity of averring specifically 
 any excuse for a non-performance thereof, 
 and in this specific averment both the 
 conditions excused and the excuses of per- 
 formance must be averred with particu- 
 larity (London Dock Go. v. Sinnott, 8 E. 
 & B. 347); but although the discharge 
 of an obligation under seal can only bft 
 efEected by a deed under seal, the dis- 
 charge need not be so averred in the 
 declaration {Tluunes Haven Dock Co. v. 
 Brymer, 5 Exch. 696). A general aver- 
 ment of readiness and willingness to 
 perform all conditions precedent is not 
 sufficient in the case of a condition pre- 
 cedent which requires either performance 
 or an excuse from performance (Boberts v. 
 Brett, 6 C. B. [N. S.] 611). But where the 
 
 Conditions Precedent, etc. — (OonVd.) 
 acts to be done on the parts of the plain- 
 tifiE and defendant are concwrent, the 
 party who sues the other for non-per- 
 formance of his part need only aver a 
 willingness and readiness to perform 
 {Morton v. La-ni), 7 T. R. 135) ; and the 
 rule is the same with respect to agree- 
 ments under seal {Olazebrooh v. Woodrow, 
 8 T. R. 366). And when the declaration 
 sufficiently shows that the defendant has 
 absolutely incapacitated himself from 
 performing his part of the contract, it is 
 not necessary to aver either the perform- 
 ance of conditions precedent, or a readi- 
 ness and willingness to perform the same 
 {HochsUr V. Be la Tour, 3 E. & B. 678). 
 Bankruptcy has been decided to be such 
 an incapacitation in the case of a con- 
 tract for the sale of goods to be paid for 
 by installments {In re Edwards, Ex pairte 
 Chalmers, 31 W. R. 138), confirmed on 
 appeal to the Lords Justices in Chancery. 
 Conditions precedent or subsequent 
 may be void conditions. 
 
 There is, however, a very great distinc- 
 tion between real property ou the one 
 hand and personal property on the other, 
 with reference to the effect of such con- 
 ditions being void; for real property is 
 governed entirely by the Common Law, 
 whereas personal property is largely sub- 
 ject to rules derived from the Roman 
 Civil Law. Thus, firstly, with reference 
 to real property, if a condition in restraint 
 of marriage is general and therefore void, 
 then, — 
 
 (a.) If the condition is precedent, no 
 estate or interest will arise, because 
 the estate was only to arise upon ^ 
 the fulfillment of the condition, 
 which is impossible, and the Com- 
 mon Law wiU not, to the pr^udice 
 of the hei/r, dispense with the ful- 
 fillment of the condition ; but 
 (J.) If the condition is subsequent, the 
 estate to which it is annexed will 
 become freed from the condition 
 and be absolute. 
 Secondly, with reference to personal 
 estate, if a condition in restraint of mar- 
 riage is general and therefore void, then, 
 (a.) If the condition is precedent, the 
 bequest will take effect as if no 
 condition had been imposed ; and 
 (J.) If the condition is subsequent the 
 
 prior bequest becomes absolute. 
 And by the rules of the Roman Civil 
 Law, and the analogous rules of the Eng- 
 lish Law derived therefrom, restraints on 
 the freedom of marriage are so odious, that 
 
76 
 
 CONDITIONS REPUGNANT. 
 
 Conditions Precedent, etc. — (Omfd.) 
 (a.) If the condition is mbmqv,ent, ex- 
 pressly or impEedly providing for 
 the cesser of the interest in the 
 event of marriage, then, even al- 
 though the restraint is partial 
 only,— 
 
 {aa.) If there is no bequest over 
 in the event of marriage, the 
 prior bequest is absolute ; but 
 (SJ.) If there is a bequest over 
 in the event of marriage, the 
 prior bequest becomes divested 
 in the event of marriage, and 
 the property passes to the sec- 
 ond legatee. 
 On the other hand, 
 
 (5.) If the condition is precedent, then 
 even although the restraint is 
 partial only, — 
 
 \aa.) If there is no bequest over 
 in the event of marriage, the 
 legacy is forfeited {Young v. 
 Ikme, 8 De G. M. & G. 756 ; 
 ied, dubitatur, see 3 Jarm. 
 Wills, and ed. 37) ; and 
 (Ub.) I fthere is a bequest over in 
 the event of marriage, the 
 prior legacy is forfeited, and 
 passes over to the second. 
 
 CONDITIONS BEPUGNANT. It is a 
 
 well-established rule of Law, that condi- 
 tions or restraints inconsistent with, or 
 repugnant to, the estate or interest to 
 which they are annexed, are absolutely 
 void. Numerous illustrations of the rule 
 are furnished in the reported decisions. 
 Thus (1.) The power of alienation being 
 an incident inseparable from an estate in 
 fee simple, it follows that any condition 
 against alienation annexed to a convey- 
 ance or devise to any one in fee simple is 
 absolutely void, whether the condition be 
 ■ general, i.e., forbidding alienation alto- 
 gether (Co. Litt. 206 b, 333 a), or be par- 
 ticular, i. e., forbidding alienation in cer- 
 tain specified modes, e. g., by mortgage ; 
 and it makes no difference if there be a 
 forfeiture or executory devise over in case 
 of an attempt at afienation (Ware v. 
 Oam, 10 B . & C. 433). The rule is the 
 same, in the case of a gift in fee tail with 
 a condition annexed to it not to suffer a 
 common recovery or fine, or execute any 
 other disentailing assurance {Piers, v. 
 Winn, 1 Vent. 331). Also, in BraMey v. 
 Peixoto (3 Ves. 334), in the case of a be- 
 quest to A. for life, and at his decease to 
 his executors and administrators, it was 
 held that A. took an absolute interest in 
 
 Conditions Repugnant. — ( Continued.) 
 the legacy, and that a condition restrain- 
 ing him from disposing of the principal 
 of the legacy, followed by a gift over in 
 case he should attempt to do so, was in- 
 consistent with the previous absolute be- 
 quest, and was therefore altogether void. 
 
 Again (3.) In the case of a devise in 
 fee, with a condition that no wife should 
 have dower or husband curtesy out of the 
 estate devised, the condition would be 
 void for repugnancy. 
 
 Again (3.) In the case of a feoffment 
 in fee, with a condition excluding females 
 from ever taking the inheritance, the con- 
 dition would be void for repugnancy. 
 
 Again (4.) In the case of a gift in fee 
 to A. with a condition that failmg dispo- 
 sition thereof by A. in his life-time {Boss 
 V. Boss, 1 J. & W. 154), or so far as such 
 disposition should not extend {Watkins 
 V. Williams, 3 Mac. & G. 633), the undis- 
 posed-of principal should devolve in 
 a certain specified way, the condition was 
 held void for repugnancy, it being an in- 
 consistent thing to separate the devolu- 
 tion of property from the property itself. 
 
 Again (5.) In the case of an absolute 
 bequest or devise, or other gift to A., 
 with a condition that the property given 
 should not be liable to the debts of A., 
 the condition would be void for repug- 
 nancy. Bockford v. SdcJsman, 9 Hare, 
 475. 
 
 Again (6.) In the case even of a life or 
 other limited interest being given to A., 
 with a condition that he is not to antici- 
 pate the same, the condition would be 
 void for repugnancy {Brandon v. BoMn- 
 son, 18 Ves. 439) ; for property cannot be 
 given for life any more than in fee • sim- 
 ple, without the power of alienation being 
 incident to the gift. And even in the 
 case of a female, a married woman, such 
 a restraint on anticipation is totally void 
 for repugnancy, unless the married 
 woman's interest is her own separate es- 
 tate {see title Sepabatb Estate). Nev- 
 ertheless a proviso deteimining a life in- 
 terest in property upon the bankruptcy of 
 ^he life-tenant, and carrying the property 
 over has been held valid {Loehyer v. Sav- 
 age, 3 Stra. 947) ; a fortiori such a proviso 
 would be valid in case the bankruptcy 
 occurred in the life-time of the testator 
 {Tamold v. Moorkouse, 1 Buss. & My. 
 364), or settlor {Manning v. Ohambers, 1 
 De G. & Sm. 383). 
 
 But while avoiding in that manner all 
 general restraints and all conditions which 
 are contradictory to the inherent essence 
 
CONDITIONS VOID. — CONDITIONAL LIMITATIONS. 
 
 77 
 
 Conditions Repugnant. — ( Omitmued.) 
 of the gift, the law nevertheless, not only 
 permits, but favors, partial or limited re- 
 straints. For example, the following lim- 
 ited restraints on alienation, and others 
 like them, are valid in law : — 
 
 (1.) A condition not to alien in mort- 
 main, or to A. orB. in particular; 
 and 
 
 (2.) A condition not to alien within a 
 limited time. 
 
 On the other hand, a condition not to 
 alien excepting to one specified individual 
 would be void, as being virtually an un- 
 limited or general restraint. Attwater v. 
 AttwaUr, 18 Beav. 330. 
 
 CONDITIONS VOID. Generally all 
 conditions that are repugnant to, or in- 
 consistent with, the nature of the grant, 
 or gift, to which they are annexed are 
 void. See title Conditions Repugnant. 
 
 Similarly, conditions in restraint of the 
 cohabitation of man and wife (Wren v. 
 Bradley, 2 De G-. & Sm. 49), and provis- 
 ions having reference to the future sepa- 
 ration of man and wife {CartwrigM v. 
 Garticright, 3 De G. M. & G. 982; Ooch- 
 sedge v. Oocksedge, 14 Sim. 244), are void 
 as being contrary to public policy ; and 
 so also, and for the Uke reason, are con- 
 ditions in general restraint of trade : See 
 title Contracts in Restkaint oi' Teadb. 
 Similarly repugnant conditions are void, 
 as being contrary to plain common sense, 
 which is the spirit and essence of the 
 Common Law : See title Repugnant Con- 
 ditions. Similarly, conditions for the 
 cesser of an estate or interest in real or 
 personal property upon alienation or bank- 
 ruptcy, are void, unless in exceptional 
 cases : See title Conditions Repugnant. 
 Again, impossible conditions are in gen- 
 eral void : See title Impossible Condi- 
 tions. And with reference to the vaUdity 
 of conditions not to dispute a wiU, see ti- 
 tle Wn-L. 
 
 * CONDITIONAL FEE. A fee which 
 at the Common Law was restrained to 
 some particular heirs, exclusive of others. 
 2 Bl. Com. 110; Bouv. Diet. 
 
 CONDITIONAL LIMITATIONS. 
 
 These consist in the original limitations 
 or definitions of an estate, and not in the 
 determination or destruction by means of 
 a condition of an estate previously limi- 
 ted. They apply both to real estate and 
 to personal estate. 
 
 (1.) With reference to real estate. _ If 
 real estate is given to a woman for wid- 
 
 Conditional Limitations. — {OonVd.) 
 owhood {durante viduitate), such a limita- 
 tion is good, even if.it be not followed by 
 any limitation over on her re-marriage, 
 and d fortiori if it be followed by such 
 latter limitation; and if real estate is 
 given to a woman as long as she shall re- 
 main unmarried (dum aolafuerit), such a 
 limitation is good (Co. Litt. 42 a); al- 
 though, as being (in appearance at least) 
 in general restraint of marriage, it would 
 be void as a condition subsequent whether 
 followed or not by a limitation over. 
 
 (2.) "With reference to personal estate. 
 The authorities are in favor of the valid- 
 ity of such limitations until marriage (see 
 Webb V. Gfrace, 2 Phil. 702; Seath v. 
 Lewis, 2 De G. M. & G. 954 ; Morley v. 
 Bmnoldson, 3 Hare, 579); from which 
 cases it is necessary to distinguish Wren 
 V. Bradlffy (2 De G. & Sm. 49), as not 
 being a case of conditional limitation, 
 but of void condition subsequent. 
 
 Period to which death when mentioned in 
 conditional language is to ie referred. 
 
 (1.) With reference to personal estate. 
 
 (a.) When personal estate is given to 
 A. absolutely or indefinitely, "and in case 
 of his death," or "in the event of his 
 death," to B., the testator, in the absence 
 of evidence of a contrary intent, is taken 
 to have intended death at some pa/rticula/r 
 period (and not death generally), and 
 therefore, 
 
 (aa.) When the interest given to A. is 
 immediate, and there is no other period 
 to which the death can be referred, the 
 death is to be referred to some period in 
 the life-time of the testator (Sehenk v. 
 Agnew, 4 K. & J. 405) ; from which case 
 are to be distinguished. Lord Douglas v. 
 Ghalmer (2 Ves. jun. 500) and cases of 
 that class, in which upon the special cir- 
 cumstances the reference was held to be 
 to death generally. The reference of the 
 period of death to the Hfe-time of the tes- 
 tator is considered to be still more clear, 
 when he uses these words, "and if he 
 should die," or, " and in case he should 
 die." 
 
 (&6.) Where the interest given to A. is 
 preceded by some particular interest given 
 to another, the death is to be referred to 
 some period in the life-time of the latter 
 {i. e., of the prior beneficiary*), and it is 
 immaterial in this case whether or not the 
 death of A. occur antecedently or subse- 
 quently to the death of the testator ; and 
 generally where any period other than the 
 Uf e-time of the testator can be suggested, 
 that period is to be preferred. 
 
78 
 
 COin)ONATION. — OONTESSIOlir. 
 
 Conditional Limitations. — (Oonfd.) 
 
 (S.) When personal estate is given to A. 
 for life only and not absolutely, and "if 
 he should die, " or " in case he should die," 
 or "in the event of his death,"&c., toB., 
 the death is not to be referred to any 
 period in particular, either in the life-time 
 of the testator or not, but is to be taken as 
 referred to generally; and so also if only 
 the interest or income of a fund is given 
 to A. 3 Jarm. Wills, 2nd ed., 633. 
 
 (3.) With reference to real estate. 
 
 (a.) Where by a will executed before 
 the WUls Act, 1 Vict. c. 36, real estate is 
 given to A. , and in case of his death to B. , 
 
 (aa.) If the words of reference to death 
 are to death simply, then the reference is 
 to death generally and not to any particu- 
 lar period either within the life-time of the 
 testator or not. 
 
 (hi.) If the words of reference to death 
 are not to death simply, but to death under 
 certain specified circumstances, then the 
 reference may be to death generally al- 
 though attempts may be legitimately made 
 in certain cases to 'show that the reference 
 is to some particular period suggested by 
 the specified circumstances. 3 Jarm. 
 Wills, 3nd ed., c. 49. 
 
 (b.) Where by a will executed since the 
 Wills Act, 1 Vict. c. 36, real estate is given 
 to A., and in case of his death to B., 
 
 (aa.) If the words of reference to death 
 are to death simply, then the reference is 
 to death within the life-time of the testa- 
 tor, or (if there should be any estate given 
 to another which is prior to A.'s estate), 
 then to death within the period of the 
 life-time of the prior beneficiary*, and it 
 is immaterial in this case whether the 
 death of A. occur antecedently or subse- 
 quently to the death of the testator. 
 
 (bb.) If the words of reference to death 
 are not to death simply, but to death under 
 certain specified circumstances, then the 
 reference may be to death within the life- 
 time of the testator, although attempts 
 may be legitimately made in certain cases 
 to show that the reference is to some par- 
 ticular period suggested by the specified 
 circumstances. 3 Jarm. Wills, 3nd. ed., 
 c. 49. 
 
 CONDONATION. A technical tei-m, for- 
 merly used in the Ecclesiastical Courts, 
 and from them transferred to the Court 
 for Divorce and Matrimonial Causes, to 
 Agniij forgiving by a husband or wife of 
 
 * " Duration of the prior estate " might proba- 
 bly be the more correct expression. 
 
 Condonation. — ( Oontmued.) 
 a breach, on the part of the other, of his 
 or her marital duties. The legal effect of 
 which forgiving, or condonation, is that the 
 party cannot subsequently seek redress for 
 an oflense already forgiven. For instance, 
 if after his knowledge of the wife's adul- 
 tery a husband cohabits with her, such an 
 act of condonation bars him from his remedy 
 of divorce ; and a wife is equally barred 
 who has condoned an act of cruelty on 
 the part of the husband. It is an impor- 
 tant exception, however, to the general 
 doctrine of condonation, which is founded 
 on a willingness to heal the disputes of 
 married life, that a subsequent repetition 
 of the crime revives the former ofEense, 
 and nullifies the iiitermediate act of con- 
 donation by the injured party. 
 
 CONDUCT MONET. Money paid to a 
 witness who has been subpoenaed on a trial, 
 sufficient to pay the reasonable expenses 
 of goingto, staying at, and returning from, 
 the place of trial. These expenses are 
 estimated according to the rank of life of 
 the party, the state of his health at the 
 time, and other similar circumstances. 
 Lush's Pr. 460. 
 
 * CONE AND KEY. A woman at the 
 age of fourteen and or fifteen years might 
 take the charge of her house and receive 
 cone cmd hey. Cone or colne in the Satx., 
 sigiiif ying computus; so that she was then 
 held to be competent to keep the accounts 
 and keys of the house. Jacob Diet. 
 Pract. e. 3, c. 37. 
 
 CONFERENCE. In reference to the 
 proceedings of Parliament, is a meeting of 
 the two Houses for the purpose of con- 
 sidering (or conferring upon) any point or 
 measure on wMch they differ. It is con- 
 ducted by a few members of each House, 
 who are appointed as managers of the con- 
 ference. The managers of both Houses 
 assemble at a time and place appointed by 
 the Lords (whose privilege this is), and 
 usually one manager on each side states 
 and argues the case for his own party. 
 At all conferences the managers for the 
 Upper House are seated, and wear their 
 hats, while the Common's managers stand 
 uncovered. Frequently reasons in writing, 
 in support of their own views, are fur- 
 nished by one set of members to the other. 
 
 CONFESSION. (Confessio.) This 
 word, in the law, retains its usual and 
 popular signification. Thus, when a pris- 
 oner is indicted of treason, and brought 
 
CONFESSION AND AVOIDANCE. — COUNSEIL DE PAMILLE. 
 
 79 
 
 Confession. — {GonUnued.) 
 
 to the bar to be arraigned, and the indict- 
 ment being read to him, and the Court 
 demanding what he can say thereto, he 
 confesses the offense and indictment to be 
 true, or pleads not guilty. The word con- 
 fession is also used in civil matters, as 
 where a defendant confesses the plaintiff's 
 right of action by giving him a cognovit, 
 &c. 
 
 See title Cognovit AcTioiraiM. 
 
 CONFESSION AND AVOIDANCE. 
 
 Pleadings in confession and avoidance are 
 those in which the party pleading admits 
 or confesses,-* to some extent at least, the 
 truth of the allegation he proposes to 
 answer, and then states matter to avoid 
 the legal consequence which the other 
 party has drawn from it. Of pleas of this 
 nature, some are distinguished as pleas in 
 justification or e(ayuse, others as pleas in 
 discharge. The former show some justifi- 
 cation or excuse of the matter charged in 
 the declaration, the latter some discharge 
 or release of that matter. The effect of 
 the former, therefore, is to show that the 
 plaintiff never had any right of action, 
 because the act charged was lawful ; 
 whilst the latter is to show that, though 
 he once had a right of action, it is dis- 
 charged or released by some matter sub- 
 sequent. Of those in justification or ex- 
 cuse, the son aasa/ult demesne, in an action 
 of trespass for assault and battery (where- 
 in the defendant alleges that the assault 
 complained of was committed in self- 
 defense against the attack of the plain- 
 tiff), is an instance ; and a common ex- 
 ample of those in discharge is, in an action 
 of covenant, a plea of release, wherein the 
 defendant sJleges that the plaintiff had, 
 after the breach, released him from all 
 breaches, &c. This division applies to 
 pleas only, and not to replications or sub- 
 sequent pleadings. Stephen on PI. 339. 
 Bee title Colouk. 
 
 * CONFIDENTIAL COMMMUNICA- 
 
 TION. Certain classes of communica- 
 tions not subject to inquiry in courts of 
 justice ; as the communications between 
 husband and wife, attorney and client. 
 Bouv. Diet. 
 
 * CONFISCATION: See title Prize. 
 
 CONFUSIO. In French Law (as in 
 Roman Law), is the extinction of a debt 
 by the merger at the persons of debtor and 
 creditor in one and the same person. 
 See title Mbkgbb. 
 
 ♦CONFUSION OF GOODS. Such a 
 mixture of the goods of two or more per- 
 sons that they cannot be distinguished. 
 Bout. Diet. 
 
 CONJUGAL RIGHTS, RESTITU- 
 TION OF. Under the stat. 30 and 31 
 Vict. c. 85, application for this purpose 
 may be made to the Court by either hus- 
 band or wife upon petition. The adul- 
 tery of the wife is a bar to her obtaining 
 restitution {Eope v. Hope, 1 S. & T. 94; 
 but see Leomeir v. Learner, 3 S. & T. 665, 
 Appx. 11). A deed of separation is no 
 bar to a suit for restitution of conjugal 
 rights {Anguez-v. Anques, L. R. 1 P. & M. 
 176). In case the decree is made, a time 
 is fixed within which it must be complied 
 with, in order that an attachment may 
 issue after that time in case it is not com- 
 plied with. Olieirry v. Oherry, 39 L. J. 
 (Mat. Cas.) 441. 
 
 CONNIVANCE : See title Divobob. 
 
 ♦CONNOISSEMENT. In French Law, 
 an instrument similar to a bill of lading. 
 G-uyot. RSpert, Univ. 
 
 CONSANGUINITY, or KINDRED. 
 
 Relationship by hlood, in contradistinc- 
 tion to affinity, which is relationship by 
 •mairriobge. 
 
 CONSCIENCE, COURTS OF. Courts 
 of conscience, or, as they are otherwise 
 called, Oourts of Request, are Courts con- 
 stituted by Acts of Parliament in the city 
 of London and other commercial districts, 
 for the recovery of small debts. They are 
 constituted of two aldermen and four 
 common councilmen, who sit twice a week 
 to hear all causes of debt not exceeding 
 the value of forty shillings, which they 
 examine in a summary way, by the oath 
 of the parties or other witnesses, and 
 make such order therein as is consonant 
 to equity and good conscience. 
 
 COUNSEIL DE FAMILLE. In French 
 Law, certain acts require the sanction of 
 this body. For example, a guardian can 
 neither accept nor reject an inheritance 
 to which the minor has succeeded with- 
 out its authority (Code Nap. 460); nor 
 can he accept for the child a gift inter 
 vivos without the like authority (Code 
 Nap. 463). So also, in bringing or com- 
 promising a suit on behalf of the child, 
 or generally in compounding claims, and 
 in numerous personal relations, e. g., con- 
 sent to marriages of orphans, the author- 
 ity of this body is necessary. 
 
80 
 
 COUNSEIL JUDICIAIRE. — CONSTABLE. 
 
 COUNSEIL JUDICIAIBE. In French 
 Law, when a person has been subjected 
 to an interdiction on the ground of his 
 insane extravagance, but the interdiction 
 is not absolute, but limited only, the 
 Court of first instance which grants the 
 interdiction, appoints a council, with 
 whose assistance the party may bring or 
 defend actions, or compromise same, 
 alienate his estate, make or incur loans, 
 and the like. 
 
 CONSENT OF THE CROWN. In cases 
 where the proceedings of Parliament may 
 interfere with the rights or prerogatives 
 of the Crown, by the provision of any 
 particular bill introduced into any branch 
 of the Legislature, it is necessary to obtain 
 the consent of the Crown before such bill 
 can pass through any of its stages. 
 
 CONSEQUENTIAL DAMAGES: See 
 
 title Bamages, Special. 
 
 CONSIDERATION. This is one of the 
 three particular requisites, or essentials, 
 to a simple contract. It is not necessary 
 in the case of a contract of record, or by 
 specialty. 
 
 Bee title Contract. 
 
 * CONSIGNATION. In Scotch Law, 
 the payment of money into the hands of 
 a third person, when the creditor refuses 
 to accent it (Bell's Diet.) In French law, 
 a deposit which the debtor makes with a 
 third person, under the authority of the 
 court, it is equivalent to payment of the 
 debt and extinguishes it. Bouv. Diet. 
 
 CONSISTORY (cormstoriim). Nearly 
 the same meaning as prmtorivm, or tribu- 
 nal. The Ocmmtory Oowrt of every dio- 
 cesan bishop is held in their several cathe- 
 drals for the trial of all ecclesiastical 
 causes arising within their respective dio- 
 ceses. The bishop's chancellor or his 
 commissary is -the judge, and from his 
 sentence an appeal lies by virtue of the 
 same statute to the archbishop of each 
 province respectively, or to the Dean of 
 Arches, as his officer. 
 
 Bee title Official Pmncipal. 
 
 ♦CONSOLATE DEL MARE. A code 
 of sea-laws compiled by order of the 
 ancient kings of Arragon. Riddle's His-, 
 tory of Mar. Commerce, 171. 
 
 CONSOLIDATION RULE. If several 
 actions between the same parties (or par- 
 ties having the identical interests) are 
 pending in the same cause (or cause whiah 
 is substantially the same), the Court may 
 
 Consolidation Rule. — (^Oonthmed.) 
 
 stay the proceedings in all but one, and 
 require the others to follow the event of 
 the one. Similarly, if one plaintlS brings 
 several actions against the same defend- 
 ant in respect to matters which he might 
 have united in one action, the Court will 
 require him to consolidate them. 3 Arch. 
 Pract. 1357. 
 
 CONSPIRACY. A criminal offense of 
 the degree of a misdemeanor, punishable 
 with fine or imprisonment, or both. It is 
 defined as an agreement between two or 
 more persons — (1.) Falsely to charge 
 another with a crime punishable by law, 
 either from a malicious or vindictive mo- 
 tive or feeling toward the party, or for 
 the purpose of extorting money from him ; 
 or, (3.) Wrongfully to injure or prejudice 
 a third person, or any body of men, in 
 any other manner; or, (3.) To com- 
 mit any offense punishable by law ; or, 
 (4.) To do any act with intent to pre- 
 vent the course of justice; or, (5.) To 
 effect a legal purpose with a corrupt in- 
 tent, or by improper means. 
 
 CONSTABLE. The word constable 
 has been said to be derived from the Sax- 
 on language, and to signify the support 
 of the king ; but others have, with 
 greater reason, supposed it to be derived 
 from the Latin comes stahuli, an officer 
 who among the Romans used to regulate 
 all matters of chivalry, tilts, tournaments, 
 and feats of arms, &c. The Constable of 
 ShighndfOT Lord High Gonstdble, as he was 
 called, was an officer of high dignity and 
 importance in this realm about the time 
 of Henry VIII ; but since that period the 
 office has been disused in England, ex- 
 cept on great and solemn occasions. He 
 was then the leader of the king's armies, 
 and had the cognizance of all matters 
 connected with arms and war. He also 
 sometimes exercised judicial functions in 
 the Court of Chivalry, where he took 
 precedence of the earl marshal. His 
 jurisdiction is partly now vested in the 
 Court of Admiralty. The constables, 
 however, to which we more immediately 
 refer now, are of two sorts, high constables 
 and petty constables; the former are ap- 
 pointed at the Court leets of the fran- 
 chise or hundreds over which, they pre- 
 side, or in default of that, by the justices 
 at the quarter sessions, and are removable 
 by the same authority that appoints them. 
 They have the superintendence and direc- 
 tion of all petty constables within their 
 
CONSTITUTION, ETC. — CONSTITUTION, GROWTH OP. 
 
 81 
 
 Constable. — ( Continued.) 
 
 district, and are in some measure respon- 
 sible for the conduct of these latter. 
 They have also the surveying of bridges, 
 the issuing of precepts concerning the 
 appointment of overseers of the poor, of 
 surveyors of the highways, of assessors 
 and collectors of taxes, &c. The duties of 
 petty constables are subordinate to those 
 of the high constable, and of a less im- 
 portant character. There are also Con 
 stdblea of Castles, who are governors or 
 keepers of the same, and whose oifice is 
 usually honorary . 
 
 See, also, titles Akrbst ; Policemak ; 
 Wakkant. 
 
 CONSTITUTION, CHARACTER OF 
 ENGLISH. According to Sir John Por- 
 tescue (who was tutor of Henry VI), the 
 English Government is political and not 
 regal, that is, limited and not absolute. 
 Even the King's prerogatives are given to 
 him only for the subject's good. Accord- 
 ing to Mr. Hume, on the other hand, the 
 Government of England, in its earlier 
 periods, was most arbitrary and absolute. 
 Certain it is that the prerogative of 
 purveyance, as regards both articles of 
 consumption and labor, had been commu- 
 ted into a right or pre-emption at a rea- 
 sonable price; that in judicial matters, 
 torture was unrecognized by the law, al- 
 though occasionally resorted to in fact ; 
 that the rights of juries were respected 
 by the Courts of Law, although some- 
 times evaded ; and that illegal condem- 
 nations upon political charges were 
 infrequent. Therefore England, compared 
 with other countries, was more nearly 
 what Portescue says than Hume; and 
 Hallam supports Portescue's opinion. 
 Hallam, moreover, attributes this general 
 character of the English constitution to 
 the four following causes, namely : — 
 (1.) The civil equality of all freemen 
 
 below the rank of peerage ; 
 (2.) The subjection of the peers them- 
 selves to the impartial arm of 
 justice and taxation. 
 (3.) The passion of the early kings for 
 continental conquest, whereby 
 they were constantly in want of 
 money; and 
 ' (4.) The vigor of the first three Norman 
 sovereigns, who effectually re- 
 pressed the principles of insub- 
 ordination and resistance, which 
 were natural to feudalism. 
 At the same time there is some justifi- 
 cation for Hume's opinion, in the fre- 1 
 
 CouBtitution, etc. — (Continued.) 
 quent interferences of the King's Privy 
 Council in matters affecting the liberties 
 and properties of the subject ; also in the 
 fact that the constable and the marshal 
 exercised a largo jurisdiction, which was 
 most arbitrary ; also in the circumstance 
 that the feudal rights of the Crown, 
 namely, wardships, escheats, and forfeit- 
 ures, were exercised unsparingly; also, 
 lastly, in the circumstance that the forest 
 jurisdictions,although nominally abridged 
 by the Cha/rta di Foreeta, were stiU ex- 
 tensive and encroaching. It may, there- 
 fore, be concluded that Portescue's opin- 
 ion is more flattering than true, and that 
 Hume's opinion is slightly overdrawn the 
 other way. 
 
 CONSTITUTION, GROWTH OP. The 
 
 English constitution, unlike the Ameri- 
 can one, was not made, but grew ; and the 
 following stages in its growth are roughly 
 distinguishable : — 
 
 (1.) The reign of Henry m, in which 
 three points were established, namely— 
 (a.) The Common's right to partici- 
 pate in taxation; 
 (b.) The" Common's right to partici- 
 pate in legislation; and 
 (c.) The Common's right to control 
 the application of supplies. 
 (3.) The reign of Edward HI, in which 
 three points were established, namely— 
 (a.) The Common's right to partici- 
 pate in taxation; 
 (b.) The Common's right to partici- 
 pate in legislation; and 
 (ft) The Common's right to inquire 
 into pvilic abuses and to im- 
 peach public ministers. 
 (3.) The reigns of Henry IV., V., and 
 VI. (Lancastrian line), in which seven 
 points were established, namely — 
 
 (a.) The Common's exchmve right in 
 
 matters of taxaiion; 
 (b.) The Common's right to appro- 
 priate the supplies; 
 (ft) The Common's right to make 
 grants of suppUes conditional 
 upon redress cf grieoanees; 
 (d.) The Common's right to partici- 
 pate in legislation; 
 (e.) The Common's right to control 
 
 the administration ; 
 (/.) The Common's right to impeach 
 
 public ministers; and 
 (g.) The Common's rights of prki- 
 lege, namely — 
 (aa.) Freedom of speech in Parlia- 
 ment. 
 
82 
 
 CONSUL. — CONTINUANCE. 
 
 Constitution, Growth ot. — {^OonVd.) 
 
 (JJ.) Freedom from arrest during 
 Parliament. 
 
 {ec.) Kiglit of decision upon elec- 
 tion returns. 
 
 CONSUL. An officer of a commercial 
 character, appointed by the dififerent 
 states to watch over the mercantile inter- 
 ests of the appointing state, and of its 
 subjects in foreign countries. There are 
 usually a number of consuls in every mari- 
 time country, and they are usually sub- 
 ject to a chief consul, who is called the 
 consul-general. A consul is not a public 
 minister, nor entitled to the immunities 
 of such ; but in the absence of an ambas- 
 sador or eluwgi d' affaires, a consul-gen- 
 eral may act as temporary minister, and 
 as such, senMe, he is entitled for the time 
 to these immunities, and to that position. 
 Tuson on Consuls. 
 
 CONSULTATION (conmltatid). "When 
 a party to a suit in one of the inferior 
 Courts has obtained a writ of prohibition 
 from one of the superior Courts from 
 proceeding further in the matter, and if 
 such superior Court shall finally, after de- 
 murrer and argument, be of opinion 
 that there was no competent ground for 
 having so restrained such inferior juris- 
 diction, then judgment shall be given 
 against him who applied for the prohibi- 
 tion in" the superior Court, and a writ of 
 consultation shall be awarded ; so called 
 because, upon consultation and delibera- 
 tion had, the judges find the prohibition 
 to be ill founded, and therefore by this 
 writ they return the cause to its original 
 jurisdiction to be there determined in the 
 inferior Court. 
 
 CONTEMPT OF COUKT. This con- 
 sists in any refusal to obey an order or 
 process of the Court, or in offending 
 against particular statutes, the contraven- 
 tion of which is thereby declared to be a 
 contempt of Court ; or in the interfering 
 with and violating the known and well- 
 ascertained rules of the Court, e. g., of 
 the Court of Chancery, regarding the 
 custody of marriage of its wards; and 
 also in certain ofEenses of a vague kind, 
 but which are generally calculated to pre- 
 judice the Court in its trial of the action, 
 or in the regard of the people. for it. See 
 the true nature of the oflense stated in 
 the Quern v. Oastro (L. E. 9 Q. B. 219). 
 Every Court has, subject to the control 
 of the Court of Queen's Bench, inherent 
 power to punish for a contempt of Cojjrt, 
 
 Contempt of Court. — (Conimued.) 
 by whomsoever committed, and the of- 
 fender may be committed without war- 
 rant. In re Wilson, 7 Q. B. 984. 
 
 CONTENEMENT. This word will be 
 better understood by giving an example 
 of its use, than by attempting to define it, 
 especially as writers are not agreed upon 
 the meaning of the word. "No man 
 shall have a larger amercement imposed 
 upon him than his circumstances or per- 
 sonal estate will hear ; saving to the land- 
 holder his contmement, or land; to the 
 trader his merchandise, and to the coun- 
 tryman his wainage, or team, and instru- 
 ments of husbandry." It would appear 
 from the above that the word contmement 
 signifies means of support, i. e., the lands, 
 tenements, and appurtenances are the 
 same to the landholder as the merchan- 
 dise is to the merchant, or his wainage to 
 the wagoner. Blount ; Spelm. 
 
 CONTENTIOUS JURISDICTION. 
 
 The litigious proceedings in Ecclesiastical 
 Courts are sometimes said to belong to its ■ 
 contentious jurisdiction, in contradistinc- 
 tion to what is called its voluntary jurist 
 diction, which is exercised in the grant- 
 ing of licenses, probates of wills, dispen- 
 sations, faculties, &c. See, also, Tris- 
 tram's book on the Court of Probate, 
 which is subdivided into the Non-con 
 tentious and the Contentious Jiirisdictions 
 of the Court. 
 
 CONTINUANCE. Anciently the par- 
 ties to an action, or their attorneys for 
 them, used to appear in open Court ; the 
 plaintiff's advocate stated his cause of 
 complaint vivd wee; the defendant's ad- 
 vocate his ground of defense; plaintifiE's 
 advocate replied ; and the altercation con- 
 tinued till the two parties came to contra- 
 dict one another, or, as it was termed, to 
 an issue. If this issue was upon a point 
 of law, the judge decided it ; if upon a 
 point of fact, it was tried by a jury, or by 
 one of the other modes which prevailed 
 at that period. While this was going on 
 the officers of the Court, who sat at the 
 feet of the judges, took a written minute 
 of the proceedings on a parchment roll, 
 which was called the record, and was pre- 
 served as the official history of the suit' 
 and that alone, the correctness of which 
 could be afterward recognized and de- 
 pended on, was the only evidenqe of the 
 matters stated there, and the Court wDuld 
 not allow it to be contradicted. As the 
 proceedings generally occupied more days 
 
CONTINUANDO. — CONTRACTS. 
 
 83 
 
 Continuance! — (JJontinued.) 
 ■ than one, the Court used to adjourn them 
 from time to time ; if these adjournments, 
 which were called continuances, were not 
 made, the suit was at an end, since there 
 was no period at which either party had 
 a right again to call the Court's attention 
 to it ; and if the continuance, though made, 
 were not entered on the record, the suit 
 was equally at an end, since the record 
 was the only evidence the court would 
 admit of the fact of the continuance. In 
 such a case the action was said to be dis- 
 continue. And latterly when a cause was 
 put down in the list of causes to be tried 
 at a certain time, and from some cause or 
 other it was not then tried, but was ad- 
 journed, a minute of such adjournment 
 was entered on the record, which was 
 technically termed entering a contin- 
 uance, because such entry signified that 
 the cause was not yet finished, but con- 
 tinued pending. The practice of enter- 
 ing continuance was, however, abolished 
 by r. 31, T. T., 1853. 
 
 CONTINUANDO (iy conUnuing). In 
 trespasses of a permanent nature, where 
 the injury is continually renewed (as by 
 spoiling or consuming the herbage with 
 the defendant's cattle) the declaration 
 may allege the injury to have been com- 
 mitted by continuation from one given day 
 to another, which is called laying the ac- 
 tion with a contimuindo, and the plaintifl 
 shall not then be compelled to bring sep- 
 arate actions for every day's separate in- 
 jury. 2 EoU. Abr. 545. 
 
 CONTRAINTE PAE CORPS. In 
 
 French law, is the civil process of wrrest 
 of the person, which is imposed upon 
 vendors falsely representing their prop- 
 erty to be unincumbered, or upon persons 
 mortgaging property which they are 
 aware does not belong to them, and in 
 other cases of a moral heinousness. 
 
 CONTRACTS. There are three classes 
 of contracts : 
 (1.) Record. 
 (3.) Specialty. 
 (3.) Simple. 
 
 I. Contracts of record, which are really 
 only judgments, possess the following 
 characteristics : 
 
 (1.) .They merge all other contracts or 
 
 grounds of action ; 
 (2.) They have the effect of an estop- 
 pel; 
 (3.) They require no oyrmderaMon; 
 and 
 
 Contracts. — ( OonUnued.) 
 
 (4.) They used to bind the land of the 
 judgment debtor, but since 1884 
 they do not. 
 
 n. Specialty contracts, which are reaUy 
 only agreements by deed, possess the fol- 
 lowing characteristics : 
 
 (1.) They merge all simple contracts or 
 other grounds of action ; 
 
 (2.) They have the effect of an estojjpd; 
 
 (3.) They require no consideration; 
 and 
 
 (4.) They may be made to bind the land 
 by binding the heir. 
 
 Specialty contracts, although they estop 
 the parties, maybe avoided on the ground 
 of fraud or illegality ; thus in OoUins v. 
 Blomtem (2 Wils. 341) the defendant had 
 covenanted by deed to pay the plaintiff 
 £700, and having refused to do so the 
 plaintiff sued him upon the covenant ; the 
 defendant pleaded that the bond was 
 given as a part of a scheme for stifling a 
 'criminal prosecution ; this plea was held 
 to be a good defense. 
 
 Specialty contracts may be discharged 
 in two ways : 
 
 (1.) By performance ; 
 
 (2.) By another specialty substituted 
 for them, but not by any mere 
 simple contract. 
 Thus, if a man has covenanted to repair 
 or to build a house he can only be dis- 
 charged by doing the thing, or else by 
 another deed releasing him. This rule is 
 without exception where the covenant 
 has not yet been broken {i. e. , before 
 breach of covenant), but after breach 
 there is one exception, and that is where 
 an uncertain sum of money is to be got 
 as damages for the breach. Blake' s' Case, 
 6 Rep. 43 b. 
 
 in. Simple contracts. To every sim- 
 ple contract there are the three following 
 general or abstract requisites : 
 
 (1.) Certainty in the terms of the con- 
 tract ; 
 
 (2.) Assent of both parties to it (assensus 
 ad idem) ; and 
 
 (3.) Mutuality of obligation. 
 To every simple contract there are also 
 the three following ^ow*i(KiZ<ir requisites: 
 
 (1.) Request. 
 
 (2.) Consideration; and 
 
 (3.) Promise. 
 Whence the following distinction, viz. : 
 
 I. Where the consideration is executory^ 
 i. «., in the case of executory contracts, 
 the request and also the promise are im- 
 plied by law, although, of course, both 
 or either of them may be express. 
 
84 CONTRACTS iN RESTRAINT OF TRADE. — CONTRIBUTION. 
 
 Contracts. — ( Omtinmd.) 
 
 n. Where the consideration is examted, 
 i. e., in the case of executed contracts, — 
 There are two classes of cases, viz. : 
 (1.) The acceptance of an executed con- 
 sideration which was not moved 
 by a previous request ; and 
 (3.) A consideration eve uted on re- 
 quest. 
 As to the former of these two subdivis- 
 ions, the former is invariably obligatory 
 (see title Ratification); but |s to the 
 second subdivision, the following varie- 
 ties present themselves, viz. : 
 
 (a.) Where the plaintifl has been le- 
 gally compelled to pay what the 
 defendant was legally com/pelUMe 
 to pay, e. g., A. was surety for B. 
 for £500 owing by B. to C. ; C. 
 compelled A. to pay; then A. 
 brought his action against B. to 
 be repaid. Here the request 
 and the promise are both implied 
 in law. 
 (&.) Where the plaintiff has voluntarily 
 paid what the defendant was 
 legally compellable to pay, and the 
 defendant afterward promises to 
 repay the plaintiff, e. g., A. owes 
 B. £50, and C, to obUge A., 
 pays the £50 to B. for him, then 
 A. proiHises to repay C. Here 
 the request to pay is implied in 
 law, but the promise is not ; and 
 (c.) Where the plaintiff has vohmtarih/ 
 paid what the defendant was 
 morally f but not legally compell- 
 able to pay, «. g., A. owes B. 
 £50 on an immoral debt, and C, 
 to oblige A., pays it; then A* 
 afterward promises to repay C. 
 Here the request to pay is not im- 
 plied, and the promise to repay 
 is without a legal consideration. 
 In every contract prkity is an essential 
 requisite to any one suing on it; in other 
 words, no person can take advantage of 
 the consideration in a contract excepting 
 the party from whom the consideration 
 has moved, which means that no person 
 can sue on a contract excepting the par- 
 ties to it ; and this is what is understood 
 by privity. An example of the absence 
 of privity is the following : A. gives £50 
 to his servant to pay a tradesman's debt ; 
 the tradesman knowing of it sues the 
 servant for money had and received to 
 the tradesman's use (Baron v. Susband, 4 
 B. & Ad. 611) ; in this case the trades- 
 man lost his action for want of privity 
 between him and the Servant. 
 
 CONTRACTS IN RESTRAINT OP 
 TRADE. All such contracts as a general 
 rule are void, because they are against 
 public policy (MitcJiel v. Beynolds, 1 Sm. 
 L. C. 356). But such contracts are al- 
 lowed to be good where the restraint is 
 limited to a particular time, or to a par- 
 ticular locality, and when a valuable con- 
 sideration has been given for them. 
 
 The requisites to a valid contract in re- 
 straint of trade are two, viz. : 
 
 (1.) That the restraint be limited either 
 in time or in locality or in both ; 
 and 
 
 (3.) That a valuable consideration 
 should have been paid' for the 
 restraint. 
 
 What shall be reasonable in point of 
 time or locality varies with the nature of 
 the business. 
 
 And generally, the restraint is only 
 allowed so far as is necessary to protect 
 the trader. 
 
 CONTRAT. In Frejich Law, contracts 
 are of the following varieties : 
 
 (1.) Bilateral or synallagm.atique, where 
 each party is bound to the other 
 to do what is just and proper; 
 • or 
 
 (3.) Unilateral, where the one side only 
 is bound ; or 
 
 (3.) Oommutaiif, where one does to the 
 other something which is sup- 
 posed to be an equivalent for 
 what the other does to him ; or 
 
 (4.) AUatoire, where the consideration 
 for the act of the one is a mere 
 chance; or 
 
 (5.) Oontrat de bimfaisance,- where the 
 one party procures to the other 
 a purely gratuitous benefit ; or 
 
 (6.) Cfontrat a titre onereiuc, where each 
 party is bound under some duty 
 to the other. 
 
 CONTRIBUTION. It is a rule of law, 
 that all persons in the nature of co-sure- 
 ties for the debt of another shall directly 
 (as in Roman Law) or indirectly (as in 
 English Law) bear their proper share of 
 the liability, so far as regards the mutual 
 reUef of each other, and depend for their 
 individual reimbursement upon their ac- 
 tion against the principal debtor. The 
 remedy of a co-surety against his co- 
 surety is said to be for Gontribution ; that 
 against the principal debtor is said to be 
 ror Be-coupment (see title Sukett). It is 
 likewise a rule of law, that there is no 
 contribution between wrong-doers. Merry- 
 weather V. Niaxm, 8 T. R. 186. 
 
CONTUMACY. — CONVEYANCES. 
 
 85 
 
 * CONTUMACY. The refusal or neg- 
 lect of a party to appear or answer to a 
 charge against Mm in a court of justice. 
 Actual contumacy is the refusal of a per- 
 son actually in the presence of the court, 
 to obey an order. Presumed contumacy 
 is the refusal to appear in Court when 
 cited. 3 Curt. Eccl. ; 1 Whart. Lex ; see 
 title Contempt. 
 
 CONVENTICLE ACT: See title Stat- 
 XJTES Ecclesiastical. 
 
 CONVENTION. The most general 
 name for agreement- 
 
 CONVENTION PARLIAMENT, ACTS 
 
 OF. The matters to be provided for by 
 this parliament (which assembled in 1660) 
 were the following: — 
 
 (1.) An indemnity for the past ; 
 
 (2.) The restoration of the church ; 
 
 (3.) The settlement of the revenue ; and 
 
 (4.) The repeal of the late obnoxious 
 statutes. 
 
 CONVENTUAL CHURCH. A church 
 consisting of regular clerks professing 
 some order or religion, or of a dean and 
 chapter, or other such society of ecclesi- 
 astics. Cowel. 
 
 *CONVENTUS JURIDICUS. A Ro- 
 man Prpvincial Court to hear and deter- 
 mine suits, and provide for the civil ad- 
 ministration of the province. 
 
 CONVERSION. This word has two 
 significations in law. (1.) In the action 
 of trover, in which it is the gist of that 
 action, it denotes the appropriating by the 
 defendant to his own use of the goods of 
 the plaintifl, in a manner short of crimi- 
 nal; the appropriation consisting substan- 
 tially in the negative act of withholding 
 them from the plaintiff, upon his demand ; 
 (3.) In Equity it denotes the notional al- 
 teration of land into money, or of money 
 into land, in accordance with a direction 
 to that eflect of a testator or settlor, and 
 in pursuance of the equitable doctrine 
 that what is agreed or imperatively di- 
 rected to be done is already done, or as 
 good as done. As a consequence of this 
 doctrine, it has been held — 
 
 (1.) That lands directed to be conver- 
 ted into money for certain purposes, some 
 of which fail, descend, in the case of the 
 direction being contained in a will, to the 
 heir-at-law of the testator (Achroyd v. 
 Smithaon, 1 Bro. C. 0. 503) ; and, in case 
 of his death, to his next of kin (Smith v. 
 Olaxton, 4 Maddox, 492) but that, in the 
 case of the direction being contained in 
 a deed, the rule is just the reverse ; and 
 
 Conversion. — ( Oontiimed.) 
 
 (3.) That money directed to be conver- 
 ted into land for certain purposes, some 
 of which fail, goes, in the case of the di- 
 rection being contained in a will, to the 
 executor of the testator (Copfflwi v. Stevens, 
 1 Beav. 492, n.); and, in the case of his 
 death, to his executor {Beynolds v. Qodlee, 
 1 Johns. 536); but that, in case of the 
 direction being contained in a deed, the 
 rule is just the reverse. 
 
 Where the purposes for which the con- 
 version was to take place totally fail, the 
 property is regarded as being what it 
 actually is, and the doctrine of conver- 
 sion is in that case excluded. 
 
 CONVEYANCES. These, which an- 
 ciently were called Asmn/Mmces, are instru- 
 ments under seal, whereby lands are con- 
 veyed or assured from the vendor to the 
 vendee, so as to vest in the latter such an 
 estate as the vendor has in himself to con- 
 vey or assure, and as the words of limita- 
 tion in the deed limit or mark out. 
 
 Conveyances arrange themselves under 
 two great classes, viz. : — 
 
 I. Conveyances at the Common Law, 
 and hereunder, — 
 (1.) Feofiments; 
 (3.) Gifts; 
 (3.) Grants; 
 (4.) Bargains and sales ; 
 (5.) Leases; 
 (6.) Exchanges; 
 (7.) Partitions; 
 (8.) Releases; 
 (9.) Confirmations; 
 (10.) Surrenders; 
 (11.) Assignments; 
 (13.) Defeasances; and 
 (13.) Disclaimers, 
 n. Statutory conveyances, and here- 
 under, — 
 
 A. Conveyances operating under the 
 
 Statue of Uses, and hereunder, 
 (1.) Covenants to stand seized ; 
 (2.) Deeds of lease and release; 
 (3.) Deeds leading or declaring the 
 
 uses; 
 (4.) Deeds of revocation of uses ; 
 (5.) Deeds of appointment under 
 
 powers ; and generally 
 (6.) Any Common Law conveyance 
 
 made to uses. 
 
 B. Conveyances under statutes other 
 
 than the Statute of Uses, and 
 
 hereunder, — 
 (1.) Release under 4 Vict. c. 31; 
 (2.) Grant under 8 & 9 Vict. c. 106; 
 (3.) Disentailing assurances under 8 
 
 & 4 Will. 4, c, 74; 
 
86 
 
 CONVICTION. — CONVOCATION. 
 
 ConTeyances. — {OonUrmed.) 
 
 ■ (4.) Assurances of married women 
 
 under 3 & 4 Will. 4, c. 74 ; and 
 
 (5.) Conveyances and leases (concise 
 
 forms) under 8 & 9 Vict. c. 
 
 119, and other subsequent 
 
 statutes. 
 
 Again, of deeds wMch operate under 
 
 the Statute of Uses, there is this further 
 
 division, namely, — 
 
 I. Deeds operating without transmuta- 
 tion of possession, and hereunder, — 
 (1.) Bargain and sale; 
 (3.) Covenant to stand seized, &c. 
 the statute itself effecting the alteration 
 in the legal seizin ; and 
 
 n. Deeds operating with transmutation 
 of possession, and hereunder, — 
 
 (1.) Deeds leading or declaring the 
 
 uses; 
 (3.) Feoffment to uses, &c., 
 the legal seizin being first transferred by a 
 Common Law assurance before the stat- 
 ute operates to effect a second transfer. 
 The forms of conveyance have varied 
 widely at different periods in the history 
 of the law, and in the various States of 
 the United States. Bouv. Diet. ; Wash- 
 bum Real Prop. 
 
 CONVICTION. A conviction is defined 
 to be a record of the summary proceed- 
 ings upon any penal statute, before one 
 or more justices of the peace, or other 
 persons duly authorized, in a case where 
 the offender has been convicted and sen- 
 tenced, and consists, first, of an informa- 
 tion or charge against the defendant; 
 secondly, of a summons or notice of such 
 information, in order that he may make 
 his defense; thirdly, his appearance, or 
 non-appearance ; fourthly, his defense, or 
 confession; fifthly, the evidence against 
 him in case he does not confess; and 
 sixthly, the judgment or adjudication. 
 (Boscaw. Pen. Con. 7 ; iJ. v. Oreen, Cald. 
 Caa. 396, 397.) A conviction may be 
 appealed or removed to the Queen's- 
 Bench by certioraH. A conviction is also 
 defined, the finding of a person guilty by 
 verdict of a jury. 1 Bish. Crim. Law., 
 §338. 
 
 CONVOCATION. In like manner as 
 the Commons were represented from 1365, 
 or at any rate from 1395, by deputies 
 chosen from themselves, so the lower 
 clergy were represented from 1355 by one 
 proctor from the chapter of the cathedral 
 and two proctors from the body of the 
 clergy in each diocese. Also, the like 
 
 Convocation. — (OonUtmed.) 
 cause which necessitated the early as- 
 sembling of the Commons in Parliament, 
 necessitated also the early assembling of 
 the clergy in Convocation, namely, the 
 principle of the English constitution that 
 the subject has the exclusive right of 
 self-taxation. Thus, in 11 Edw. 1, when 
 the cathedral clergy of the province of 
 York met at the town of York by their 
 proctors, and the cathedral clergy of the 
 province of Canterbury met at the town 
 of Northampton by their proctors, but 
 the body of the clergy were not repre- 
 sented at all in either assembly, no tax 
 was imposed, owing to the absence of the 
 latter. 
 
 The clergy appear to have had no separ 
 rate writ of summons, but to have been 
 summoned originally by their respective 
 archbishops, and subsequently, that is, 
 from the reign of Edward I., by their 
 respective bishops in virtue of the prc^ 
 munientes clause contained in the writ of 
 summons which was issued to these 
 latter, the bishop acting in some sense as 
 an ecclesiastical sheriff for this purpose. 
 The archbishops having objected to the 
 clergy being summoned by the bishops, 
 their objection was neutralized by means 
 of a compromise, according to which the 
 bishops were permitted to summon the 
 clergy to Parliament, and the archbishops 
 to summon them to Convocation; but 
 the two assemblies, once summoned, were 
 identicaL 
 
 The legislative acts of the clergy were 
 confined to matters ecclesiastical; for in 
 matters of a temporal nature the clergy 
 assembled in Convocation neither en- 
 joyed nor exercised any legislative power 
 at all apart from, or even (semble) in con- 
 junction with, the Commons. 
 
 From the year 1664, the functions of 
 Convocation were reduced to nothing; 
 its assembling at the commencement of 
 each Parliament was for some time after- 
 ward kept up as a formality merely, being 
 followed on each occasion of its so as- 
 sembling with an immediate prorogation 
 or adjournment. However, about 1690, 
 when the High Church party attained to 
 distinction and power, the attempt was 
 made to revive Convocation as an active 
 ecclesiastical body, and this attempt was 
 successful during the reign of Anne 
 (1703-1714). But in the succeeding reign 
 of George I., Convocation carried its 
 debates in the Bangorian controversy 
 with Bishop Hoadley of Bangor, to such 
 a degree of intolerance, it is said, that 
 
CONVOY. — COPTEIGHT. 
 
 87 
 
 Convocation. — ( OonUrmed.) 
 that king was compelled in 1717 to pro- 
 rogue it, and from that date till the be- 
 ginning of the present reign it never sat 
 again ; but in the beginning of the pres- 
 ent reign, when the High Church party 
 re-acquired repute under Dr. Pusey and 
 others of that school, Convocation was 
 re-summoned for the despatch of matters 
 purely ecclesiastical and, accordingly, 
 but for the despatch only of these mat- 
 ters, it meets regularly at the present 
 day with every fresh session of Parlia- 
 ment. 
 
 CONVOT. In times of war it is fre- 
 quently desired by a neutral country to 
 protect its own merchant vessels from 
 visit and search by either of the bellig- 
 erents, and this object it usually endeav- 
 ors to accomplish by sending one or more 
 of its own ships of war to protect and es- 
 cort, i. e., convoy the merchant vessels. 
 But Sir Wm. Scott, in The Mcuria (1 Eob. 
 340), decided in effect that a neutral con- 
 voy cannot resist the right of visit and 
 search, and that the resistance presented 
 in that case was a reason for condemning 
 the vessels. And it is now generally ad- 
 mitted that the protection of a convoying 
 ileet does not extend to exclude the bel- 
 ligerent right of search ; nor is the word 
 of the commander of the squadron to be 
 accepted as conclusive evidence of the 
 neutrality of the vessels convoyed or of 
 the goods that are stowed therein. See 
 1 Kent Com. 153. 
 
 CO-PARCENERS. These are co-ten- 
 ants entitled by descent, and by no other 
 title. They become so either by the 
 Common Law of England, as in the case 
 of females that are co-heiresses; or by 
 particular custom, as in the case of lands 
 in Kent, which are of gavelkind tenure. 
 Co-parcenery extends even to coUateraU ; 
 and the husband of a deceased co-par- 
 cener, if entitled as tenant by the curtesy, 
 holds as a co-parcener with the surviving 
 sisters of his wife, as does also the heir- 
 at-law of his deceased wife upon his own 
 death. Co-parceners might always effect 
 compulsory partition of the lands held 
 together. 
 
 Bee tiile Partition. 
 
 COPT. When the original instrument 
 is lost or is withheld, and its absence is 
 in either of these ways accounted for, the 
 Court is in the habit of admitting sec- 
 ondary evidence of it by looking at a copy. 
 And where an original will has been lost. 
 
 Copy. — {C/ontkmed,.) 
 
 a copy of it also has been admitted to 
 probate (1 Wms. Executors and Admin- 
 istrators, 364). But the rule of evidence 
 is not extended so far as to admit the copy 
 of a copy of an original instrument. 
 See title Evtdbncb. 
 
 COPYHOLDS. These are lands held 
 by.copy of Court roll (as the name partly 
 denotes) and according to the custom of 
 the manor. It appears that in the reign 
 of Edward I. copyholders were still in 
 the purest state of villenage, cultivating 
 the demesne lands of the lord as serfs 
 merely, and having no certainty of ten- 
 ure i but that in the reign of Edward III. 
 they enjoyed a comparative certainty of 
 tenure, so long as they performed the ac- 
 customed services; and that, finally, in 
 the reign of Edward IV. they might have 
 an action against their lord for trespass or 
 wrongful ejection. 
 
 But to the present day copyholds re- 
 tain some traces of their frail original. 
 The doctrine of copyhold does not pre- 
 vail in the United States. 1 Wash. Real 
 Prop. 26. 
 
 COPYRIGHT. Is the sole and exclu- 
 sive liberty of multiplying copies of an 
 original work or composition {Jeffreys v. 
 Booaey, 4 H. L. 0. 920). It is a species 
 of property founded on industrial occu- 
 pancy, to wit, labor and invention be- 
 stowed on materials. The earliest evi- 
 dence of a recognition of copyright is to 
 be found in the charter of the Stationers' 
 Company granted by Philip and Mary, 
 and in the decrees of the Court of Star 
 Chamber: and the first statute in the 
 matter was the 8 Anne, c. 19, which pro- 
 fesses to be passed for the encouragement 
 and protection of learned men. Interna- 
 tional copyright is provided for by the 7 
 & 8 Vict. c. 12; but the provisions of 
 that statute only go to secure to the 
 authors of books published abroad the 
 right of copyright when the same are 
 republished in Her Majesty's dominions, 
 and do not of course oblige foreign coun- 
 tries to extend to British authors the like 
 protection. 
 
 In addition to copyright in books there 
 may also be copyright in music, engrav- 
 ing, sculpture, painting, photography, 
 dramatic compositions, and generally in 
 ornamental and useful designs. 
 
 For a full treatment of .the whole law 
 of copyright, see Copinger on the Law of 
 Copyright, 1870; Curtis on Copyright; 
 Renonard D^-oits d'Auteurs. 
 
88 
 
 CORAM NON JUDICE.— CORPORATION. 
 
 CORAM NON JUDICE. When the 
 judge of any Court of Law exceeds his 
 Jurisdiction, the subject-matter with re- 
 gard to which he has exercised such ex- 
 cess of jurisdiction is said to be coram, non 
 judice. Thus, in Obfes's Case (Sir W. 
 Jones, 170), it was held, by the whole 
 Court, that if a justice does not pursue 
 the form prescribed by the statute the 
 party need not bring a writ of error, be- 
 cause all is void and coram non judice. 
 This holding is in accordance with the 
 maxim of the Roman Law, which is also 
 a maxim of the English Law — Extra 
 territoria/m jus dicenti wwpune non pa/re- 
 bitur. 
 
 CORNAGE {comagw/m, from the Latin 
 cornu, a horn). Tenure by comage was 
 tenure by the service of blowing a horn 
 when the Scots or other enemies entered 
 the land, in order to warn the King's 
 subjects, and was, like other services of 
 the same nature, a species of grand ser- 
 jeanty : see that title. 
 
 CORNWALL, DUCHY OF. The rev- 
 enues of this duchy belong to the Prince 
 of Wales for the time being. The Nul- 
 lum Tempus Act (9 Geo. 3, c. 16) was ex- 
 tended by the 23 & 34 Vict. c. 53, as be- 
 tween the duke and persons claiming or 
 holding real property within the duchy. 
 The tenure of lands within the duchy was 
 originally a holding from seven years to 
 seven years; but in modem times it is 
 become a holding, to the tenant in fee 
 simple subject to a fine at the end of 
 every seven years, and to forfeiture for 
 non-payment thereof. Usticke v. Peters, 
 4 K. & J. 437. 
 
 CORODT. Corodies are a right of sus- 
 tenance, or to receive certain allotments 
 of victual and provision for one's main- 
 tenance. In lieu of which (especially 
 when due from ecclesiastical persons) a 
 pension or sum of money is sometimes 
 substituted. And these maybe reckoned 
 a species of incorporeal hereditaments, 
 though not chargeable on or issuing out 
 of any corporeal inheritance, but only 
 charged on the person of the owner in re- 
 spect of such his inheritance. 
 
 CORONATION OATH. The oath which 
 is taken by the sovereigns of England on 
 their coronation, promising "to govern 
 the people of Ahis kingdom, and the do- 
 minions thereunto belonging, according 
 to the statutes in Parliament agreed on 
 and the laws and customs of the realm." 
 
 CORONER. An ancient officer of the 
 Common Law, who has principally to do 
 with pleas of the Crown {corona) or such 
 wherein the king is more immediately 
 concerned. He is chosen by the free- 
 holders at the county court, and ought to 
 have an estate sufficient to maintain the 
 dignity of his office and to answer any 
 fines that may be set upon him for his 
 misbehavior, &c. The office and power 
 of a coroner are also, like those of the 
 sheriff, either judicial or ministerial, but 
 principally judicial. This is in a great 
 measure ascertained by statute 4 
 Bdw. 1, de officio coronatoris, and con- 
 sists, iirst, in inquiring when any per- 
 son is slain, or dies suddenly, or in 
 prison, concerning the manner of his 
 death. And this must be sunder msum 
 corporis, for if the body be not found the 
 coroner cannot sit. He must also sit at 
 the very place where the death happened ; 
 and his inquiry is made by a jury from 
 four, five, or six of the neighboring 
 towns, over whom he is to preside. If 
 any be found guilty by this inquest, of 
 murder or other homicide, the coroner is 
 to commit them to prison to await fur- 
 ther trial, and is also to inquire concern- 
 ing their lands, goods-and chattels, which 
 are forfeited thereby ; but whether it be 
 homicide or not, he must inquire whether 
 any deodand has accrued by the King, or 
 to the lord of the franchise, by the death ; 
 and must certify the whole of this inqui- 
 sition under his own seal and the seals of 
 the jurors, together with the evidence 
 thereon, to the Court of King's Bench, or 
 the next assizes. Another branch of his 
 office is to inquire concerning shipwrecks, 
 and certify whether wreck or not, and 
 who is in possession of the goods. Con- 
 cerning treasure trove he is also to inquire 
 \yho were the finders, and where it is, 
 and whether any one is suspected of hav- 
 ing found and concealed a treasure. See 
 1 Fish. Dig. 1902-1915. 
 
 CORONER OF THE KING'S HOUSE 
 
 (usually called coroner of the verge). An 
 officer appointed by the lord steward, or 
 lord great master of the King's house for 
 the time being. His office resembles that 
 of a coronei of a county, only that his 
 duties are limited to such matters as oc- 
 cur within the verge or within the pre- 
 cincts of the King's palace. 1 Cmtty 
 PI. 137, note 30. 
 
 CORPORATION. A body created by 
 Act of Parliament, or by charter, or by 
 letters patent. It may "be created either 
 
CORPOREAL. — CORRUPTION OF BLOOD. 
 
 89 
 
 Corporation. — ( Continued.) 
 for trading or for other general purposes. 
 It must have a common seal ; and all its 
 contracts originally required to be under 
 that seal. But numerous relaxations of 
 this rule have been latterly admitted; 
 and the general state of the law now is, 
 that for contracts of an ordinary every 
 day occurrence a seal is not necessary, 
 and that if such contracts have been ex- 
 ecuted, and the corporation has had the 
 benefit of them, then the corporation is 
 liable to be sued for the price ( Clarke v. 
 CuekfieM. Unim, 21 L. J*. [Q. B.] 349) ; 
 but that upon executory contracts of that 
 sort, the corporation, semble, is not liable 
 unless the contract is under seal. And 
 the old law requiilng the seal is still in 
 force with regard to aU contracts of an 
 extraordinary kind, not within the usual 
 business of the corporation, so that 
 upon these latter kinds of contract the 
 corporation cannot be sued, notwithstand- 
 ing the contract is executed, and the cor- 
 poration has had the benefit of it (Arnold 
 V. Miyor of Poole, 4 Man. & G. 860), and 
 d fortiori, if the contract in such case is 
 executory. 
 
 But the above rules do not apply to a 
 corporation sole (e. g., a bishop or other 
 parson of the church), but only to a cor- 
 poration aggregate. Moreover, where a 
 coi-poration aggregate is constituted by 
 Act of Parliament, the Act commonly 
 defines the mode by which, and the pur- 
 poses for which it may contract; and 
 if swch a corporation exceeds the pur- 
 poses so defined, it cannot, even by afiix- 
 ing its common seal, make a valid con- 
 tract, inasmuch as that would be ultra 
 vires. • 
 
 A corporation is of course liable for 
 torts. Mersey Bocks and BJiwbor Board v. 
 PenhaUow, L. R. 1 H. L. 53. 
 
 CORPOKEAI. The division of things 
 into corporeal and incorporeal is coinci- 
 dent with the division of the Roman Law 
 into tangible (gum tangi possunt) and in- 
 tangible (qucB tangi non possunf). The 
 nomenclature of the Roman division is 
 derived from the sense of touch, which 
 was the most important of the senses in 
 the opinions of the ancient Democritean 
 School, or School of Natural Philosophy ; 
 the nomenclature of the English division 
 is derived from the equally natural dis- 
 tinction of what is sensible to the body 
 (or bodily senses) generally. In itself, 
 the distinction, as resting in nature, is 
 necessarily permanent : in its consequen- 
 
 12 
 
 Corporeal. — (Continued.) 
 ces, it was chiefly remarkable in the di- 
 versity which it occasioned in the mode 
 of the transfer of property, for things 
 which were coi-poreal were capable of 
 manual or bodily transfer, e. g., by feoff- 
 ment with livery, but things which were 
 incorporeal were not capable .of such a 
 mode of transfer, and required for their 
 transfer a deed of grant. Since the year 
 1845, and in consequence of the statute 
 8 & 9 Vict. c. 106, s. 2, the last-men- 
 tioned diversity has been mitigated, al- 
 though not yet entirely removed, inasmuch 
 as things corporeal are now capable of 
 transfer by deed or grant, but things in- 
 corporeal are stiU (and must necessarily 
 continue always to be) incapable of trans- 
 fer by feoffment with livery. 
 
 See titles CoBPOBBAii and Incorpo- 
 
 BEAL HbREDITAMBNTS. 
 
 CORPOREAL HEREDITAMENTS. 
 
 This phrase comprises all hereditaments 
 which maybe touched, qiuB tangi possunt, 
 e. g., lands, houses, &c. It is used in 
 cortradistinction to incorporeal heredita- 
 ments ; as to which, see that title. 
 
 ♦CORPUS CUM CAUSA. An English 
 writ which issued out of Chancery to re- 
 move both the lody and the record touch- 
 ing the cause of any man lying in execu- 
 tion upon a judgment for debt, into the 
 King's Bench, there to remain until he 
 satisfied the judgment. Jacob Diet. 
 
 ♦CORPUS DELICTI. The substantial 
 and fundamental fact of a crime having 
 been committed. The body of the of- 
 fense ; the essence of the crime. 1 Star- 
 kie Ev. 575 ; Best. Presump. § 204. 
 
 CORRUPT PRACTICES AT ELEC- 
 TIONS: fifee title Bbibbrt. 
 
 CORRUPTION OF BLOOD. The im- 
 mediate consequence of attainder used to 
 be corruption of blood, both upwards and 
 downwards; so that an attainted person 
 could neither inherit lands or other here- 
 ditaments from his ancestor, nor retain 
 those he already had, nor transmit them 
 by descent to any heir, because his blood 
 was considered in law to be corrupted. 
 But by the Act for the Amendment of 
 the Law of Descents (3 & 4 Will. 4, c. 
 106), s. 10, the doctrine of the corrup- 
 tion of blood has been abolished as to 
 all descents happening after the 1st of 
 January, 1834. See U. S. Const., Art. 
 8, §3. 
 
90 
 
 CORSNED. — COUNSEL. 
 
 *COKSNED. A piece of barley bread 
 which, after certain imprecations, a per- 
 son accused of a crime was compelled to 
 swallow. If he swallowed it easily he 
 was deemed innocent, if it stuck in his 
 throat he was deemed guilty. Jacob 
 Diet. 
 
 *COKVEE. In old French and Cana- 
 dian law, an obligation on the part of 
 a tenant to perform involuntary labor at 
 the requirement of the lord. Labor ex- 
 acted from villages or communities for 
 repairing roads, constructing bridges, &c. 
 
 COSENAGE, OR COSINAGE (Fr. 
 cousinage). A writ that lay where the 
 tresaM~(i. e., the father of the lesml or 
 great-grandfather) was seised of lands, 
 &c., in fee on the day of his death, and 
 afterward a stranger entered and abated, 
 and so kept out the heir. P. N. B. 2il ; 
 Cowel. 
 
 COSTS. The expenses which are in- 
 curred either in the prosecuting or in the 
 defending of an action are called the 
 costs. Costs between the solicitor or at- 
 torned and client are those which the client 
 always pays his solicitor or attorney, 
 whether such client is successful or not, 
 and over and above what the attouney 
 gets from the opposing party in case of 
 such party having lost the action. Costs 
 between party and party are those which 
 the defeated party pays to the successful 
 one as a matter of course. The plain- 
 tiff's right to party and party costs de- 
 pends on the Statute of Gloucester, that 
 of the defendant to the same costs on 
 the Stat. 33 Hen. 8, c. 15 ; and under these 
 statutes the amount recovered in the 
 action is immaterial (Beaumont v. Qreat- 
 Tiead, 3 C. B. 494). But under more 
 recent statutes, where the damages re- 
 covered are trivial, the judge must in 
 general certify for costs, e. g., in an ac- 
 tion of tort, when the damages are 
 under 40s. 3 & 4 Vict. c. 31, s. 11. 
 
 COSTS OF THE DAT. Whenever 
 one of the parties in an action (i. «., the 
 plaintiff or defendant) gives notice of his 
 intention to proceed to trial at a specified 
 time, and after having given such notice, 
 neglects to do so, or to countermand the 
 notice within due time, he is liable to 
 pay to the other party such costs or ex- 
 penses as the latter has been put to by 
 reason of such notice, which costs are 
 commonly called costs of the day, i. e. , the 
 costs or expenses which have been in- 
 
 Costs of the Day. — (Continued.) 
 curred on the day fixed (by such notice) 
 for the trial. These costs usually consist 
 of the expenses incurred by witnesses 
 and others in coming to the place of trial, 
 and such other expenses as have neces- 
 sarily been incurred in preparing for 
 trial on the specified day. Arch. Prac. ; 
 Lush. Prac. ; 6 Jur. 561. 
 
 COUNCIL, THE KING'S. This coun- 
 cil, called also the Aula Segis, otherwise 
 Ouria Begis, was the parent of the Coui-ts 
 of Exchequer,Gommon Pleas, and Queen's 
 Bench ; but after the severance from it of 
 those three Courts, it still retained a 
 large original jurisdiction ; and, as being 
 in early times interchangeable with the 
 House of Lords, it possessed also an ap- 
 pellate jurisdiction from the subordinate 
 Courts. It possessed therefore (I.) jtidi- 
 cial authority. 
 
 It possessed also (H.) legislatime author- 
 ity, in conjunction with the King, and 
 apart from the Commons. Thus, in early 
 times, the King and his council, some- 
 times, upon the suggestion of the House 
 of Commons, but more often without 
 such suggestion, and in both cases with- 
 out the concurrence of the Commons, 
 enacted laws which appear in the statute 
 book; 3 Eic. 3 is an instance of a law so 
 made. But in 13 Ric. 2, the Commons 
 petitioned the King that his council 
 might not after the close of Parlia- 
 ment make any ordinance against the 
 Common Law. 
 
 But the chief functions of the council 
 were (HI.) executive, the council forming 
 (as it did) a body of assistance to the 
 King in his admimstration. This appears 
 from the list of the official members com- 
 posing it, namely, — 
 
 (1.) The Chancellor, 
 
 (3.) The Treasurer, 
 
 (3.) Th§ Lord Steward, 
 
 (4.) The Lord Admiral, 
 
 (5.) The Lord Marshal, 
 
 (6.) The Keeper of the Privy Seal, 
 
 (7.) The Chamberlain of the House- 
 hold, 
 
 (8.) The Treasurer of the Household, 
 
 (9.) The Controller of the Household, 
 (10.) The Chancellor of the Exchequer, 
 
 and 
 (11.) The Master of the Wardrobe, 
 With a number of other assistant mem- 
 bers of a subordinate character. 
 
 COUNSEL. A- term frequently used 
 to indicate Barrister-at-Law, which title 
 
COUNSEL'S OPINION. — COUNTIES PALATINE, 
 
 91 
 
 COUNSEL'S OPINION. Is in general 
 a protection to an attorney acting upon 
 it, against alleged negligence on his part 
 Kemp Y. Burt, 4 B. & Ad. 434. 
 
 COUNSEL'S SIGNATURE. In former 
 times the appearance of the parties to an 
 action was actual and personal in open 
 Court, and the pleadings consisted of an 
 oral altercation in presence of the judges. 
 But this could be carried on by none but 
 the parties themselves, or else by their 
 regular advocates ; and although the plead- 
 ings in an action are in the present day de- 
 livered in writing between the parties out 
 of Court, yet they are stiU supposed, to be 
 delivered orally as of old (at least forcer- 
 tain purposes), and when the pleadings 
 contain any new affirmative matter, such 
 as would formerly have been put forward 
 by counsel on behalf of his client, they 
 require to bear the signature of some coun- 
 sel, and formerly, in the Court of Common 
 Pleas, of some Serjeant. This signature is 
 chiefly useful at the present day as afford- 
 ing to the Court some means of judging 
 that the case is a proper one, and that it 
 is also properly presented, for the decision 
 of the Court. 
 
 COUNT (Pr. eonte, a narrative.) In 
 Common Law pleadings a section of a 
 declaration is so called. Where a plain- 
 tiff has several distinct causes of action, 
 he is allowed to pursue them cumulatively 
 in the same suit, subject to certain rules 
 which the law prescribes as to joining such 
 demands only as are of similar quality or 
 character. Thus he may join a claim of 
 debt on bond with a claim of debt on 
 simple contract, and pursue his remedy 
 for both by the same action of debt. So, 
 if several distinct trespasses have been 
 committed, these may all form the sub- 
 ject of one declaration in trespass ; but 
 on the other hand, a plaintiff cannot join 
 in the same suit a claim of debt on bond, 
 and a complaint of trespass ; these being 
 dissimilar in kind. Such different claims 
 or complaints, when capable of being 
 joined, constitute different parts or sec- 
 tions of the declarations, and are known 
 in pleading by the description of several 
 counts. And under the C. L. P. Act, 1852, 
 s. 41, a plaintiff may join in one and the 
 same declaration a count in contract with 
 one in tort, provided they are both by and 
 against the same parties, in the same 
 right, and, semble, of a kind to admit of 
 being properly tried together. Thus, a 
 count in contract for breach of warranty 
 may be fitly joined with a count in tort | 
 
 Count. — ( Continued.) 
 
 for a false and fraudulent representation, 
 
 so that the plaintiff if he fails on the one 
 
 may succeed on the other, according to his 
 
 evidence. 
 
 COUNTER? AKT. Signifies little else 
 than a copy of the original. Blackstone's 
 definition of it is as follows : When the 
 several parts of an indenture are inter- 
 changeably executed by the several par- 
 ties, that part or copy which is executed 
 by the grantor is usually called the origi- 
 nal, and the rest are counterparts. The 
 counterpart is for some purposes as good 
 evidence as the original deed. 
 
 COUNTER PLEA. All pleadings of 
 an incidental kind, diverging from the 
 main series of the allegations, are called 
 counter pleas : as when a party demanded 
 oyer, in a case where upon the face of the 
 pleading his adversary conceived it to be 
 not demandable, the latter might demur, 
 or if he had any matter of fact to allege, 
 as a ground why the oyer could not be 
 demanded, he might plead such matter, 
 and if he pleaded, the allegation was 
 called a counter plea to the oyer. Stephen 
 on Plead. 79. 
 
 COUNTIES CORPORATE. Are cer- 
 tain cities and towns, some with more, 
 some with less, territory annexed to them : 
 to which, out of special grace and favor, 
 the kings of England have granted the 
 privilege to be counties, themselves, and 
 not to be comprised in any other county, 
 but to be governed by their own sheriffs 
 and other magistrates, so that no officers 
 of the county at large have any power to 
 intermeddle therein. Such are London, 
 York, Bristol, and many others. 
 
 COUNTIES PALATINE were so called 
 apalatio, because the owners thereof, e. g., 
 the Duke of Lancaster, had therein jura 
 regalia, as fully as the King had in his 
 palace. They might pardon treason, mur- 
 ders, and felonies; they appointed all 
 judges and justices of the peace ; all writs 
 and indictments ran in their names, as in 
 other counties in the King's; and all 
 offenses were said to be done against their 
 peace, and not, as in other places, contra 
 pacem domini regis. The principal counties 
 palatine in England were the Earldom of 
 Chester, the Bishopric of Durham, and the 
 Duchy of Lancaster; but all except' the 
 last have ceased altogether, and the last 
 has ceased partially, to enjoy these 
 rights. 
 
92 
 
 COUNTY COURTS. — COURTS OF JUSTICE. 
 
 (4.) Hundred Court ; 
 
 and 
 (5.) Tything Court; 
 
 COUNTY COUKTS. These are a re- 
 suscitation of the shire-gemots, or County 
 Courts of the Anglo-Saxon and Anglo- 
 Norman times, but entirely remodeled to 
 suit the wants of modem times. (_8ee title 
 CouBT OF Justice.) These Courts were 
 established on their present basis by 
 the Stat. 9 & 10 Vict. c. 95, intituled 
 " An Act for the more easy Recovery of 
 Small Debts and Demands in England, " 
 or shortly, " The County Courts Act, 
 1842. 
 
 COURTS OF JUSTICE. In Anglo- 
 Saxon times, the Courts of Justice pos- 
 sessing (A) C/wiZ jurisdiction were the fol- 
 lowing : — 
 
 (1) Wittenagemot, — which was the 
 
 Court of Appeal ; 
 (3.) Council of "Wittenagemot being 
 the prototype of the Private 
 Council ; 
 (3.) Shire-gemot, i. «., County Court, 
 called also Sheriff's Tourn, and 
 being the Court of First Instance 
 for general civil cases ; 
 
 'being the two 
 Courts for cases 
 of smaller and 
 merely local 
 ^ importance. 
 And the Courts of Justice of those 
 times, which possessed (B.) eriminal 
 jurisdiction were the following : 
 (1.) Wittenagemot; 
 (3.) Shire-gemot, i. e., County Court, 
 
 called also Sheriff's Leet ; 
 (3.) Hundred Court ; and 
 (4.) Tything Court; 
 being the Courts of these several names 
 enumerated above as having civil juris- 
 diction ; and see title of each Court sever- 
 ally. 
 
 In Anglo-Norman times the above men- 
 tioned Courts, called respectively County 
 Court, Hundred Court, and Tything 
 Court, remained; but in addition to them, 
 a new Court was introduced, being the 
 Court called the Aula Megis, or Ouria 
 Regis, and which supplied the place of 
 the Anglo-Saxon Wittenagemot, being, 
 in fact, in those early times interchange- 
 able with the House of Lords, which 
 thereupon became the supreme Appellate 
 Court, and had in those times and for 
 centuries afterward an original jurisdic- 
 tion laso. 
 
 From this Aula Begia have been suc- 
 cessively developed, in addition to, — 
 (1.) The House of Lords, — the follow- 
 ing Courts, namely, 
 
 Courts of Justice. — (OonUmced.) 
 
 (3.) The Judicial Committee of the 
 Privy Council, which, however, 
 has not even yet been permanent- 
 ly severed from the Aula Segis, 
 but remains a committee still ; 
 
 (3.) The Court of Exchequer, — the 
 separation of which from the 
 Aula Regis is commonly assigned 
 to the reign of Richard I., when 
 the purposes of the king's reve- 
 nue, for which exclusively it was 
 set apart, necessitated its more 
 permanent constitution as a 
 Court ; 
 
 (4.) The Court of Common Pleas, — ^the 
 separation of which from the 
 Aulai Regis is commonly assigned 
 to a date anterior to the date of 
 Magna Charta (1215), at which 
 latter date the Court was fixed 
 at Westminster, and received as 
 the subject-matters of its juris- 
 diction all civil causes between 
 subject and subject, and in 
 which the king had no interest ; 
 and inasmuch as such matters 
 related in early times almost ex- 
 clusively to real property ques- 
 tions, so it has happened that to 
 the present day the Court of 
 Common Pleas is primarily and 
 properly concerned with freehold 
 issues only; 
 
 (5.) The Court of Queen's Bench, — 
 which was the then residuum of 
 the Aula Regis after the sever- 
 ance therefifom of the Courts of 
 Exchequer and Common Pleas. 
 The separation of the Court of 
 Queen's Bench from the Aula 
 Regis and its constitution into a 
 separate isolated Court is com- 
 monly assigned to the reign of 
 Edward I., that reign having 
 been the epoch at which the 
 Common Law Procedure, as it 
 existed prior to 1853-60, was es- 
 tablished in its principal fea- 
 tures ; 
 
 (6.) The Court of Chancery which was 
 the then residuum of the Aula 
 Regis after the Queen's Bench 
 had been isolated from it. This 
 Court acquired consistency as a 
 Court in the reign of Edward 
 HI., under an ordinance 23Ed\T. 
 3, which directed the Lord 
 Chancellor to inquire of matters 
 of '■'grace,'" and the Court w?s 
 furnished in the succeediug reign 
 
COURT BAJION. — COURT OF BBLEGATES. 
 
 93 
 
 Courts of Justice. — (^ConUnued.) 
 
 (Richard II.) with its chief 
 ■weapon, namely, the subpoena, 
 which was invented in that reign 
 by Bishop Waltham, of Salis- 
 bury ; and, in spite of strenuous 
 opposition, the Chancery proce- 
 dure by biU and svipcma, as it 
 existed until the year 1853, was 
 fully established in the reign of 
 Edward IV. ; 
 
 (7.) The Court of Exchequer Chamber. 
 This Court was established by 
 the Stat. 31 Edw. 3, st. 1, c. 12. 
 See title Exchbqtjeb Chambbk. 
 
 (8.) The Star Chamber. This was the 
 residuum of the Aula Regis re- 
 maining after the isolation of 
 the Court of Chancery ; and in- 
 asmuch as the Courts already es- 
 tablished did not appropriate all 
 matters of jurisdiction, and in- 
 asmuch as in particular the Court 
 of Chancery never possessed any 
 jurisdiction ia criminal matters, 
 so the Court of Star Chamber of 
 those times had a jurisdiction 
 partly civil but priacipally crim- 
 inal, being supplementary to the 
 other Courts, and interposing 
 where those Courts were from 
 any cause, whether from want of 
 jurisdiction or from obstructions 
 to their jurisdiction, incapable 
 of doing justice or of giving re- 
 dress ; 
 (9.) The Court of Admiralty, ) being 
 
 (10.) The Courts Martial, \ the 
 
 Courts which were latterly devel- 
 oped respectively out of the ju- 
 risdiction of the Constable (over 
 maritime causes), and of the 
 Earl Marshal (over miUtary 
 causes). 
 
 In addition to the Courts before enu- 
 merated, there are two other jurisdictions, 
 namely : 
 
 (11.) Judges of Assize and Gaol Deliv- 
 ery, being the descendants of 
 the Justices Itinerant or Justices 
 in Byre, who were appointed for 
 the first time in the year 1176, 
 by an Act of the Parliament held 
 at Korthampton ia that year; 
 and 
 
 (12.) The Courts Ecclesiastical, which 
 (it is uncertain whether they) 
 emanated from the royal person 
 as supreme head of the Church, 
 or from the person of the Church 
 itself, or of the Pope, the repre- 
 
 Courts of Justice. — {Continued.) 
 
 sentative and vicegerent of the 
 Church of Christ on earth. At 
 any rate, they did not emanate 
 from the Aula Regis; although 
 subsequently to the Reformation 
 of Religion in the reign of Henry 
 Vni., when that monarch as- 
 sumed to be, and was recognized 
 at law as being, supreme head of 
 the Church of England, the 
 Courts Ecclesiastical clearly de- 
 rived their efficacy, like all other 
 Courts and institutions, from his 
 royal person, as the source of law 
 and justice. The Courts Eccle- 
 siastical were of many orders 
 and varieties, as to which see 
 title CouBTs Ecclesiastical ; 
 but at the present day they are 
 principally the Consistory Courts 
 of the bishop of each diocese, 
 and the Court of Arches. See 
 titles Cohsistoey; Aechbs, 
 
 COUBT OP. 
 
 Changes have been made in the judica- 
 ture of England by the Judicature Act 
 of 1873, and other changes are in pro- 
 gress. 
 
 COUBT BARON {cnria iaronis). The 
 Ooiirt Baron is a Court incident to every 
 manor in the kingdom, and is held by the 
 steward of the manor, and is of two 
 natures ; tlw one a customary Court, apper- 
 taining entirely to copyholders, in which 
 their estates are transferred by surrender 
 and admittance, and other matters trans- 
 acted relative to copyhold property ; tJie 
 other a Court of Common Law, which is 
 the baron's or freeholders' Court, and is 
 held for determining by writ of right all 
 controversies relating to the right of 
 lands within the manor ; and also for per- 
 sonal actions, where the debt or damages 
 do not amount to forty shillings. 
 
 COUBT CHBISTIAN. The various 
 species of Ecclesiastical Courts which 
 took cognizance of religious and ecclesi- 
 astical matters were called Courts Chris- 
 tum, as distinguished from the Civil 
 Courts. 
 
 COUBT OP CONSCIENCE: See title 
 
 CONSCIBNCB. 
 
 COUBT, COUNTY : See title County 
 
 COTJBT. 
 
 COUBT OF DELEGATES: See title 
 CouETS Ecclesiastical. 
 
94 COURTS ECQLBSIASTIOAL. — COURTS OF PRINCIP. OF WALES. 
 
 COURTS ECCLESIASTICAL. The 
 
 Ecclesiastical Courts were Courts held by 
 the king's authority, as supreme head of 
 the church, for the consideration, of mat- 
 ters chiefly relating to religion. The 
 causes usually cognizable in these Courts 
 were of three sorts, pecunia/ry, matrimo- 
 nial and testcmienta/ry. Pecuniary causes 
 were such as arose either from the with- 
 holding ecclesiastical dues, or the doing 
 or neglecting some act relating to the 
 church, whereby some damage accrued to 
 the plaintiJffi; mai/rivwmal causes were 
 such as had reference to the right of mar- 
 riage ; as suits for the restitution of ccmju- 
 gal rights, for divorces and the like ; testa- 
 mentary causes were such as related to 
 wiUs and testaments, &c. The various 
 species of Ecclesiastical Courts were as 
 follows : — 
 
 (1.) The Archdeacon's Court, which was 
 and is the lowest Court in the whole 
 ecclesiastical polity. It is held, in the 
 archdeacon's absence, before a judge ap- 
 pointed by himself, and called his official ; 
 and its jurisdiction is sometimes in con- 
 currence with, sometimes in exclusion of, 
 the bishop's Court of the diocese. 
 
 (3.) The Consistory Cov/rt of every dio- 
 cesan bishop, which is held in the cathe- 
 dral of the diocese, for the trial of all 
 ecclesiastical causes arising within the 
 diocese, whereof the bishop's chancellor 
 or his commissary is the judge. 
 
 (3.) Ths Coxcrt of Arclm : See Abchbs, 
 
 COTTRT OF. 
 
 (4.) Th^ Court of Peculiars, which is a 
 branch of, and annexed to, the Court of 
 Arches. It 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. All ecclesiastical 
 causes arising from within these peculiar 
 or exempt jurisdictions are originally 
 cognizable in this Court. 
 
 (5.) The Prerogatim Court, which was 
 established for the trial of all testament- 
 ary causes, where the deceased had left 
 bona notabiUa (see that title) within two 
 different dioceses ; in which case the pro- 
 bate of wills belonged to the archbishop 
 of the province. And all causes relating 
 to wills, administrations or legacies of 
 such persons, were originally cognizable 
 therein before a judge appointed by the 
 archbishop, called the Judge of the Pre- 
 rogative Court; but all this jurisdiction 
 has now been transferred to the Court of 
 Probate. 
 
 Courts Ecclesiastical. — (Continued.) 
 
 (6.) The Oou/rt of Delegates, appointed 
 by the king's commission, under his great 
 seal, and issuing out of Chancery, was 
 the great Court of Appeal in all ecclesi- 
 astical causes. The power and franchises 
 of this Court were, by 3 & 3 Will. 4, c. 
 93, transferred to the Privy Council. 
 
 (7.) A Com/mission of Meniew was a com- 
 mission sometimes granted in extraordin- 
 ary cases, to revise the sentence of the 
 Court of Delegates, when it was appre- 
 hended they had been led into a material 
 error. This appeal, however, is now to 
 the king in council. 
 
 COURT OF HUSTINGS. This was 
 the highest Court of record held at Guild- 
 hall for the City of London, before the 
 mayor, recorder and sheriffs. It deter- 
 mined pleas, real, personal and mixed ; and 
 in this Court all lands, tenements and 
 hereditaments, rents and services, within 
 the City of London and suburbs, were 
 pleadable in two hustings, one called 
 hustings of pleas of lands, and the other 
 hustmgs of common pleas. In the Court 
 also the members who served for the City 
 in Parliament were elected by the livery 
 of the respective companies. 
 
 COURT-LEBT. This is a court of 
 record held once or twice in every year 
 within a particular hundred, lordship, or 
 manor, before the steward of the leet, for 
 the preservation of the peace, and the 
 chastisement of divers minute offenses. 
 Its original intent was to view frank- 
 pledges, that is, freemen within the 
 liberty, who, according to the institution 
 of Alfred the Great, were all mutually 
 pledges for the good behavior of each 
 other. 
 
 See title Fkaitk Plbdgb. 
 
 COURT OF MARSHALSEA: See title 
 
 Makshalsba. 
 
 COURT MARTIAL. A military Court 
 for trying and punishing the military 
 offenses of soldiers in the army. 
 
 COURT OF PECULIARS: See title 
 CouKTS Ecclesiastical. 
 
 COURTS OF PRINCIPALITY OF 
 WALES. A species of private Courts of 
 a limited though extensive jurisdiction ; 
 which, upon the thorough reduction of 
 that principality and the settling of its 
 polity in the reign of Henry Vm., were 
 erected all over the countiy. These 
 Courts, however, have been abolished by 
 
COURT OF RECORD. — COURTS AT WESTMINSTER. 
 
 95 
 
 Courts of Principality of Wales. — 
 
 ( Oontirmed.) 
 
 1 Will. 4, c. 70 ; the principality being 
 now divided into two circuits, which the 
 judges visit in the same manner as they 
 do the circuits in England, for the pur- 
 pose of disposing of these causes which 
 are ready for trial. 
 
 COURT OF RECORD. Is a Court the 
 judgment and proceedings of which are 
 carefully registered and preserved, under 
 the name of records, in public repositories, 
 and to them frequent recourse is had 
 when any critical question arises, in the 
 determination of which former pre- 
 cedents may give light or assistance. By 
 Stat. 1 & 3 Vict. c. 94, the public records 
 of the kingdom are now in general placed 
 under the superintendence of the Master 
 of the Rolls for the time being, and a 
 public record office has been established. 
 
 COURT OF REQUESTS: See title 
 
 CoNBCrENCE, COTJKT OP. 
 
 COURT OF RETIEW: See title Rb- 
 VTBW, Court op. 
 
 COURT OF STAR CHAMBER (eamera 
 steUata). A Court of very ancient origin, 
 but new-modeled by stats. 3 Hen. 7, 
 c. 1, and 31 Hen. 8, c. 30, consisting of 
 divers lords spiritual and temporal, being 
 privy councillors, together with two 
 judges of the Courts of Common Law, 
 without the intervention of any jury. 
 Their jurisdiction extended legally over 
 riots, perjury, misbehavior of sheriffs, 
 and other misdemeanors contrary to the 
 laws of the land; yet it was afterward 
 stretched to the asserting of all proclar 
 mations and orders of state, to the vindi- 
 cating of illegal commissions and grants 
 of monopolies; holding for honorable 
 that which it pleased, and for just that 
 which it profited, and becoming both a 
 Court of Law to determine civil rights, 
 and a Court of Revenue to enrich the 
 treasury. It was finally abolished by 16 
 Car. 1, c. 10, to the general satisfaction 
 of the whole nation. 
 
 See, also. Stab Chamber, Cotjbt op. 
 
 COURT OF THE LORD STEWARD 
 OF THE KING'S HOUSEHOLD, or (in 
 
 his absence) of the treasurer, comptroller 
 and steward of the Marshal^ea, was 
 erected by stat. 33 Hen. 8, c. .13, with a 
 jurisdiction to inquire of, hear and 
 determine, all treasons, misprisions of 
 treason, murders, manslaughters, blood- 
 shed and other malicious strikings,where- 
 
 Court of the Lord Steward of the 
 
 King's Household. — (Continued.) 
 by blood should be shed in or within the 
 limits (i. «., within 300 feet of the gate) 
 of any of the palaces and houses of the 
 king, or any other place where the royal 
 person should reside. 4 Inst. 133. 
 
 * COURT OF SWEINMOTE. One of 
 
 the forest Courts held before the verderns 
 as judges, by the steward three times a 
 year, the sweins or freeholders within 
 the forest composing the jury. 
 
 COURTS OF THE UNIYERSITIES. 
 
 The Chancellor's Courts in the two uni- 
 versities of England used to enjoy the 
 sole jurisdiction, in exclusion of the 
 King's Courts, over all civil actions and 
 suits whatsoever, when a scholar or 
 privileged person was one of the parties ; 
 excepting in such cases where the right 
 of freehold was concerned. These privi- 
 leges were granted in order that the 
 students might not be distracted from 
 their studies by legal process from dis- 
 tant Courts. And these University 
 Courts were at liberty to try and deter- 
 mine, .either according to the Common 
 Law of the land, or according to their own 
 local customs, at their discretion. These 
 privileges are still in part exercised at 
 Oxford, but by a recent private statute 
 have been taken away from Cambridge. 
 In pursuance of the statutes, 17 & 18 
 Vict. c. 45, and 35 & 36 Vict. c. 36, s. 
 13, the procedure is as in the County 
 Courts ; and the rules of the Statute Law 
 of England have taken the place of the 
 rules of the Civil Law. 
 
 COURTS AT WESTMINSTER. The 
 
 superior Courts,both of Law and Equity, 
 have for several centuries been fixed at 
 Westminster Hall, an ancient palace of 
 the monarchs of this country. Formerly 
 all the superior courts were held before 
 the king's capital judiciary of England, 
 in the cmh, regis, or such of his palaces 
 wherein his royal person resided, and 
 removed with his household from one 
 end of th* kingdom to another. This 
 was found to occasion great inconvenience 
 to the smtors, to remedy which it was 
 made an article of the great charter of 
 liberties both of King John and King 
 Henry HI., that " common pleas should 
 no longer follow the King's Court, but 
 be held in some certain place," in conse- 
 quence of which they hs^ye ever since 
 been held (a few necessary removals in 
 times of the plague excepted), in the 
 
96 
 
 COVENANT. 
 
 Courts at "WeatmmBter. — {OonUmied.) 
 palace of Westminster only. The Courts 
 of Equity also sit at Westminster nomin- 
 ally during term time, although actually 
 only during the first day of term, for 
 they generally sit in Courts provided for 
 the purpose in the neighborhood of Lin- 
 coln's Inn. 
 
 COYENANT.. A mere agreement or 
 promise under seal, and may be either to 
 pay a liquidated sum of money or un- 
 liquidated damages, or to do, or abstain 
 from doing, any particular act. 
 
 Covenants are of various kinds, the 
 principal of which are the following:— 
 
 (1.) Express and Implied Covenants — 
 The former being in so many words, the 
 latter arising by inference from which 
 the use of other words, e. g., "demise," 
 which implies a covenant for quiet enjoy- 
 ment, " grant, bargain and sell," which, 
 as regards lands in the East and North 
 Ridings of Yorkshire, imply a covenant 
 for title ; 
 
 (2.) General and Specific Covenants — 
 the former relating to land generally and 
 placing the covenantee in the position of 
 a specialty creditor only, the latter relat- 
 ing to particular lands and giving the 
 covenantee a lien thereon ; 
 
 (3.) Inherent and Collateral Covenants 
 — the former affecting the particular 
 property immediately, the latter affecting 
 some property collateral thereto ; 
 
 (4.) Joint and Several Covenants — th^ 
 former binding both or all the covenantors 
 together, the latter binding each of them 
 separately. A covenant may be both 
 joint and several at the same time. 
 Covenants are usually joint or several 
 according as the interests of the cove- 
 nantors are such; but the words of the 
 covenant, where they are unambiguous, 
 will decide; although where they are 
 ambiguous, the nature of the interests as 
 being joint or several is left to decide. 
 BraMume v. BatfieU, 14 M. & W. 559. 
 
 (5.) Real and Personal Covenants. — 
 These covenants being also sometimes 
 called respectively covenants«which run 
 with the land and covenants which lie 
 against the personalty. The former, 
 whether beneficial or burdensome, attach 
 to the successive owners of the property 
 in virtue of their being such ; but both 
 varieties of covenant, i. «., as well the 
 real as the personal, form the basis of an 
 action for damages against the covenantor 
 himself, or, if he is dead, against his 
 executors or administrators, and even 
 
 Covenant. — {Continued.) 
 against his heir, if the heir is specially 
 named in the covenant. The statute, 23 
 & 23 Vict. c. 35, ss. 27, 38, has limited 
 the liability of executors and administra- 
 tors in respect of the rents, covenants, 
 and agreements of their testator or intes- 
 tate. See also titles Executors, Admin- 
 ISTRATOKS, and AssiGirs. If the cove- 
 nant does not concern the land itself, but 
 only a particular mode of occupying or 
 using the same, it does not run with the 
 land, and the assignee of the lease (not 
 being expressly named in the covenant) 
 cannot sue the lessor upon it. TJwmas 
 V. Sayward, L. R. 4 Ex. 311. 
 
 The benefit of real covenants passes to 
 the heirs of the covenantee, although en- 
 tered into with him and Hs executors and 
 administrators only; also, the benefit of 
 such covenants entered into with the 
 covenantee, his heirs and assigns, or even 
 with the covenantee and his heirs only, 
 passes to all persons taking the estate of 
 the covenantee, or any estate derived out 
 of such estate. Hence, when covenants 
 are entered into with the releasee to vses 
 and his heirs and assigns, or with him and 
 his heirs only, they run with the land for 
 the benefit of all the cestuis que iise whose 
 estates are derived out of the momentary 
 seizin of such releasee, whether such ces- 
 tuis que use are or are not parties to the 
 conveyance, and whether they claim im- 
 mediately under it or by virtue of an ap- 
 pointment made under a power contained 
 in that conveyance. But when the cove- 
 nants are made with the cestui que use 
 and his heirs and assigns, or with him and 
 his heirs only, although they run with the 
 land for the benefit of any person who 
 claims as alienee of his estate, yet they do 
 not run with the land for the benefit of an 
 APPOINTEE of the cestui que use, the reason 
 being that such appointee, although the 
 alienee of the cestni que use, is not the 
 alienee of his estate, but of a new estate 
 which is substituted for it, and which 
 takes effect, not out of the seizin of the 
 cesimi que use, but out of the original seizin 
 of the releasee to uses. Wherefore it is 
 better, when the releasee to uses and the 
 purchaser are different persons, for the 
 covenants to be made with the releasee to 
 uses and not with the cestui que use. 
 
 Again (6.), Covenants may be either de- 
 pendent or independent. Thus, if A. cove- 
 nant with B. to serve him for a year, and 
 B. covenant with A. to pay him £10, the 
 covenants are independent, and A. may 
 maintain an action of debt or covenant 
 
COVENTRY ACT. — CREDIT, LETTER OP. 
 
 97 
 
 CoTenant. — {Continued.) 
 against B. for the money before any ser- 
 vice ; on the other hand, if B. had in the 
 case before mentioned covenanted to pay 
 A. £10 for the service, the words in italics 
 would have made the second covenant de- 
 pendent on the first, and the service be- 
 coming in that way a condition precedent, 
 A. could not have enforced payment of the 
 money without averring and proving the 
 performance of the service. By the 0. L. 
 P. Act, 1853, s. 57, such averment may 
 now be general. Again, where A. cove- 
 nanted with B. to marry B.'s daughter, 
 and B. covenanted with A. to convey an 
 estate to A. and the daughter in tail 
 special, it ,was held that the covenants 
 were independent, and that A. might 
 marry anotiier woman and yet have an 
 action of covenant against B. ; on the 
 other hand, if B. had covenanted with A. 
 in the last-mentioned case to convey the 
 estate to him and the daughter for the 
 cause aforemAA, the vords in italics would 
 have made the second covenant dependent 
 on the first, and A. could not have had 
 his action of covenant against B. without 
 having first married the daughter of B. 
 See 1 Wms. Saund. (ed. 1871), p. 549. 
 
 The distinction between covenants de- 
 pendent and covenants independent, to- 
 gether with the practical importance of 
 that distinction, being apparent, the fol- 
 lowing are the rules for deciding whether 
 in any given case a covenant is dependent 
 or independent: — 
 
 (1.) If a 4ay be appointed for payment 
 of money, or part of it, or for doing any 
 other act, and the day is to (or may) hap- 
 pen "before the thing which is the con- 
 sideration for the money or other act is to 
 be performed, an action may be brought 
 for the money or to enforce doing the 
 other act, before the performance of the 
 consideration {TTghtrws Case, 48 Edw. 3, 
 2, 3 ; Thorpe v. Thyrpe, 13 Mod. 461). But 
 it is otherwise, if the day is to happen 
 after the consideration. Thorpe\. Thmpe, 
 3nd resolution, 13 Mod. 463; and see 
 Pordage v. Cole, 1 Wms. Saund. (ed. 
 1871), p. 648. 
 
 (3.) Where a covenant goes only to part 
 of the considerations on both sides, and a 
 breach of such covenant may be paid for 
 in damages, it is an independent covenant, 
 and an action may be maintained for a 
 breach of the covenant on the part of the 
 defendant, without any averment of per- 
 formance iff the declaration ; a very re- 
 markable illustration of such an action 
 will be found in Boone v. Eyre (1 H. Bl. 
 
 IS 
 
 Covenant. — ( Continued.) 
 373, n. (a). And it is a general rule of 
 law, that where the consideration has 
 been executed in part, that which was at 
 first a condition precedent, becomes for 
 the purposes of pleading a warranty 
 merely, for the breach of which a com- 
 pensation must be sought in damages 
 (Behn v. Burgess, 3 B. & Sm. 751) : unless 
 indeed the consideration is entire and 
 indivisible, in which case there can be 
 no partial failure, but the consideration 
 if it fail at all must fail altogether (<7Aai?t- 
 tei- V. Zeese, 4 M. & W. 395 ; 5 M. & W. 
 698). But it is otherwise where the 
 mutual covenants go to the whole con- 
 sideration on both sides ; for in that case 
 they are mutual conditions precedent, 
 and performance must be averred. St. 
 AJhan's (Duke) v. Shore, 1 H. Bl. 370. 
 
 (3.) Where two acts are to be done at 
 the same time, neither party can maintain 
 an action against the other, without show- 
 ing performance of, or an offer to per- 
 form, his part, although it be not defined 
 which of them is obliged to do the first 
 act; and this third rule applies more 
 especially to all cases of sale. Peeters v. 
 Opie, 3 Wms. Saftnd. (ed. 1871), 742. 
 See, also, title Conditions Precedent. 
 
 ^COVENTET ACT. The name of the 
 Stat. 23 & 33 Car. n, c. 1, enacted for the 
 punishment of the offense of maiming or 
 disfiguring. The occasion of the act was 
 an assault on Sir John Coventry in the 
 street, by which his nose was slit. 
 
 * COVERT. Covered, protected, as a 
 feme covert, so-called as being under the 
 wing, protection or cover of her husband. 
 
 * COVERTURE. The state of a mar- 
 ried woman. 
 
 * COVIN. A secret contrivance or 
 agreement to defraud. 
 
 > CREDIT, LETTER OF. An instru- 
 ment in common use among bankers for 
 the transmission of money either within 
 the United Kingdom, or to the colonies, 
 or to foreign countries. It is, not nego- 
 tiable as a cheque, but is only an authority 
 from the banker who signs it to the 
 banker (or other person) to whom it is 
 addressed upon advice to honor the drafts 
 of the person named in it upon his pro- 
 ducing the letter. If the letter of credit 
 is stolen or lost, the banker upon whom 
 it is drawn is liable in case he honors the 
 drafts or pays the amounts upon a forged 
 signature ; and the 16 & 17 Vict, c 59, s. 
 
98 
 
 CREEB. — CRIMINAL LAW. 
 
 Credit, letter of. 
 
 19, does not apply to these letters, as it 
 does to the drafts therein specified. 
 
 CBIEK. An officer attached to the 
 Courts of Common Law, whose duty it is 
 to call a plaintiflf who is nonsuited at the 
 trial (see title Gallhsgi thePlaintips'), or 
 to call the jury, &c. His fees (as are 
 those of the other officers of the Courts) 
 are regulated by a table of fees sanctioned 
 by the judges under the authority of 7 
 Will. 4 & 1 Vict. c. 30. Bagley Pr. 8. 
 
 CRIME. The distinction between a 
 erime and a tort, or civil injury, is, that 
 the former is a breach and violation of the 
 pubUc rights and duties due to the whole 
 community, considered as such, in its 
 social aggregate capacity; whereas the 
 latter is merely an infringement or priva^ 
 tion of the civil rights which belong to 
 individuals considered merely in their 
 individ.ual capacity. 
 
 See title Cbiminal Law. 
 
 * CRIMEN FALSI. A fraudulent al- 
 teration or forgery, to conceal or alter the 
 truth to the prejudice of another. Any 
 crime which may injuriously affect the 
 administration of justice, by the intro- 
 duction of falsehood. 
 
 * CRIMEN LMSIM MAJESTATIS— 
 
 A crime affecting the King's person. 4 
 Bl. Com. 75. 
 
 CRIMINAL CONTERSATION. The 
 
 name of an action in which a husband 
 proceeded for damages sustained by him 
 in his wife by the act of an adulterer of 
 her body. It was abolished by the stat. 
 20 & 21 Vict. c. 85, s. 59, but the husband 
 may at the present day petition the Court 
 of Probate for damages in such a case, 
 without asking for a divorce also. The 
 action still exists in America. 
 
 CRIMINAL INFORMATION. A 
 
 mode of proceeding available in cases of 
 alleged libelous publications, and in some 
 othCr matters. It is within the discretion 
 of the Court to grant or refuse it accord- 
 ing to the circumstances (Anon., LofFt. 
 333) ; and the Court will not entertain an 
 application for it on light or trivial grounds 
 but will leave the party to his remedy 
 (if any) by action or indictment (Beg. v. 
 Mead, 4 Jur. 1014). The Attorney-Gen- 
 eral or (during the vacancy of that office) 
 the Solicitor-JJeneral may, however, file 
 such an information ecu officio, and without 
 application to the Court (Rex v. Plymouth 
 
 Criminal Information. — {Continued.} 
 [Mayor], 4 Burr. 1687) ; and he may even 
 stop the proceedings upon his first infor- 
 mation, and file a second one {Hex v. Btrat- 
 ton, 1 Doug. 238). To an information 
 for a libel, the defendant may, under 6 
 & 7 Vict. c. 96, 8. 6, plead in his justifica- 
 tion the truth of the matter pubhshed. 
 
 A criminal information also lies against 
 a magistrate who acts from corrupt mo- 
 tives, or who improperly grants or refuses 
 an ale-license; but the magistrate must 
 have notice of the intention to apply for 
 the information against him. And the 
 party applying for an information must 
 in all cases come with clean hands. 
 
 CRIMINAL LAW. The persons con- 
 cerned in the commission of a crime may 
 be concerned in it either as Principals, or 
 as Accessories, or as Abettors, as to the 
 distinctions between whom, see these 
 three several titles. 
 
 The varieties of crimes are innumer- 
 able; they are, however, distinguished 
 generally into three classes, viz., Treasons, 
 Felonies.and Misdemeanors ; as to the dis- 
 tinction between which, see these several 
 titles. The particular offenses (such as 
 Arson, Bigamy, Burglary, Murder, &c.) 
 wiU be found explained under each par- 
 ticular head. 
 
 The mode of procedure in criminal 
 cases is various, being either (1.) by in- 
 dictment, which is the regular course 
 (see title Indictment); or (2.) by sum- 
 mary proceedings before a. magistrate 
 (see title Summabt Convictions) ; or (3.) 
 by Criminal Information (see that title). 
 
 For the evidence adduceable in support 
 of and against the charge, see title Evi- 
 
 DBNCB. 
 
 And with reference to appeals and pro- 
 ceedings in the nature thereof in criminal 
 cases, the following is a statement of the 
 present English law upon the subject: 
 
 (1.) No new trial can be granted in 
 cases of felony ; but with respect to mis- 
 demeanors, it is entirely discretionary 
 with the Court whether it will grant or 
 refuse a new trial. Bex v. Mawbey, 6 T. 
 R. 638. 
 
 (3.) It is contrary to the policy of the 
 English Law that there should be an ap- 
 peal i» cases of felony (Eke parte Edidjee 
 Byramjee, 5 Moo. P. C. C. 276); never- 
 theless the stat. 11 & 13 Vict. c. 78 ena- 
 bles the judge to reserve any point aris- 
 ing on the trial for the consideration of 
 the Court for Crown Cases Reserved, 
 which is established l^ this Act ; but 
 
CRmiNAL LETTERS. — CROWN OFFICE. 
 
 99 
 
 Criminal Law. — {Continued.) 
 
 (3.) After judgment the record may be 
 removed by writ of error, iri any case 
 where an error, either of law or of fact, 
 appears on the record ; this writ of error 
 lies from quarter sessions to the Queen's 
 Bench, and from the Queen's Bench to 
 the Exchequer Chamber. But, semble, 
 in a case of misdemeanor (as distinguished 
 from felony) the previous flat of the At- 
 torney-General is requisite, and it is in 
 his discretion to grant or refuse his fiat. 
 Beg V. Newton, 4 El. & Bl. 869. 
 
 * CRIMINAL LETTERS. In Scotch 
 law, a summons issued by the lord advo- 
 cate or his deputies as the means of com- 
 mencing criminal proceedings. Bouv. 
 Diet. 
 
 CROSS ACTION. Where A. having 
 brought an action against B., B. brings 
 an action against A. upon the same sub- 
 ject-matter, or arising out of the same 
 transaction, this second action is called a 
 cross action. And this double action is 
 sometimes necessary to insure justice to 
 both parties ; as in the case of a contract 
 in wluch neither of the contractors is sub- 
 jected to any condition precedent to his 
 right to enforce performance by the other 
 of his part; but the promises on each side 
 are independent of what is to be done 
 upon the other. In such a case the non- 
 performance of the plaintiff's promises 
 would be no defense to an action for the 
 non-performance of the defendant's, whose 
 sole remedy, therefore, against the plain- 
 tiff would be by a cross action (6 T. R. 
 570 ; 9 B. & C. 259). However, in many 
 cases a cross action is rendered unneces- 
 sary, and the party may raise by answer 
 or defense what he formerly required to 
 raise by cross action. See, also, next title. 
 
 CROSS BILL. A suit in Equity is 
 commenced by the plaintiff filing his bill, 
 wherein are stated aU circumstances 
 which gave rise to the complaint; the 
 defendant's mode of defense is then usu- 
 ally by answer, wherein he controverts 
 the facts stated in the bill, or some of 
 them, &c. But when he is unable to 
 make a complete defense to the plaittifl's 
 bill without disclosing some facts which 
 rest in the knowledge of the plaintiff him- 
 self, he then files what is called a oross 
 hill, which differs in no reject from the 
 plaintiff's original bill, excepting that the 
 occasion which gave rise to it proceeded 
 from matter akeady in litigation. A 
 cross bill is in many cases necessary in 
 
 Cross Bill. — (Oonlmued.) 
 aid of the defense, which cannot prop- 
 erly be raised by answer merely, as in 
 cases of alleged fraud. However, under 
 the Judicature Act, 1873 (36 & 87 Vict, 
 c. 66), Sch. r. 30, a cross action will 
 hardly in any case be now necessary in 
 aid of a defense. 
 
 CROSS DEMANDS. These arise where 
 one man against whom a demand is made 
 by another, in his turn makes a demand' 
 against that other, and of such oross de- 
 mand a set-off is in law the most familiar 
 instance, a set-off being a statutory right 
 of balancing mutual debts between the 
 plaintiff and defendant in an action. 1 
 Chit. PI. 595. See, also, preceding titles. 
 
 CROSS REMAINDER: See title Re- 
 mainder. 
 
 CROWN COURT. Is the Court in 
 which the Crown or criminal business of 
 the assizes is transacted. 
 
 See titles Civil Side ; Plea Side. 
 
 CROWN DEBTS. These are debts due 
 to the Crown, usually froi8 persons who 
 were accountants to the Crown, but also 
 on record, bond, or specialty, generally 
 to the Crown. "The liability of lands to 
 make good these debts attached to the 
 lands even in the hands of londfide pur- 
 chasers for value without notice, and not- 
 withstanding the purchaser had no means 
 of notice. But latterly, by the stats. 3 
 & 3 Vict. c. 11, s. 8, and 32 & 23 Vict, 
 c. 35, s. 32, it was enacted that lands 
 should not be charged in the hands 
 of purchasers with Crown debts unless or 
 until such debts were duly registered and 
 re-registered, whether or not the pur- 
 chaser had notice thereof. And now, by 
 the stat. 28 & 29 Vict. c. 104, s. 4, a writ 
 of ekecution in respect of the debt must 
 also have been issued and registered, in 
 order to affect a purchaser, in addition to 
 the registration and re-registration of the 
 debt itself under the former Acts, whether 
 or not the purchaser have notice of the 
 debt. 
 
 CROWN OFFICE. An office of the 
 Court of Queen's Bench, the master of 
 which is usually called Clerk of the 
 Crown, and in pleading and other law 
 proceedings is styled ' ' coroner and attor- 
 ney of our Lady the Queen." In this 
 office the Attorney-General and Clerk of 
 the Crown exhibit informations for crimes 
 and misdemeanors, the former ex officio, 
 the latter commonly by order of the Court. 
 
100 
 
 CROWN PAPER. — CURIA ADVISARE VULT. 
 
 Crown Office. — {Continued.) 
 And by 4 & 5 W. & M. c. 18, the master 
 of the Crown office may file criminal in- 
 formations, with leave of the Court, upon 
 the complaint or relation of a private sub- 
 ject. 1 Arch. Pract. 9. 
 
 CKOWN PAPER. A paper containing 
 the list of criminal cases which await the 
 hearing or decision of the Court. The 
 term is commonly applied to the Court of 
 Queen's Bench, which has an exclusive 
 criminal jurisdiction ; and it then includes 
 all cases arising from informations quo 
 warranto, criminal informations, criminal 
 cases brought up from inferior Courts by 
 writ of certiorari, and cases from the ses- 
 sions. Bagley Pr. 559. 
 
 CUCKING-STOOL. An engine of cor- 
 rection for common scolds, which in the 
 Saxon language .is said to signify the 
 scolding-stool, though now it is frequently 
 corrupted into du(mng'-&to6i, because the 
 judgment is that when the woman is 
 placed 1;herein, she shall be plunged in 
 the water for Ijpr punishment. It is also 
 variously called a trebucket, tumbrel, and 
 castigatory. 3 Inst. 219. 
 
 cm ANTE DIVORTIUM. A writ 
 which lay for a woman when a widow or 
 when divorced, to recover her estate, 
 which her husband, during her coverture 
 {mi in mta sua, vel cui ante divortium, 
 ipsa contradicere rum potmit), has aliened. 
 Britton, c. 114, foL 364. 
 
 cm IN VITA: See title Cm ante Di- 
 
 TOBTIUM. 
 
 * CUL DE SAC. A street open at one 
 end only. Thompson Highways, 3-6. 
 
 CULPRIT. Besides its popular sense 
 of a prisoner accused of sorne crimes, it 
 used formerly to be made use of in the 
 following manner. When a prisoner had 
 pleaded not guilty, rum c/ulpoMlis, or nient 
 oiil/paMs, which used to be abbreviated 
 upon the minutes thus, "raore (or nient) 
 eul," the clerk of the assize, or clerk of 
 the arraigns, on behalf of the Crown, re- 
 plied that the prisoner is guilty, and that 
 he was ready to prove him so. This was 
 done by two monosyllables in the same 
 spirit of abbreviation, "cmZ prit," which 
 signifies, first, that the prisoner was 
 guilty {eul, culpable or eutpabilis), and' 
 then that the king was ready to prove 
 him so, prit, prcesto sum, or pa/ratus veH- 
 fiaure. This was therefore a replication 
 on behalf of the king imd wee at the bar, 
 
 Cnlprit. - 
 
 which was formerly the case in all plead- 
 ings, as Well in civil as in criminal 
 
 causes. 
 
 CUM TESTAMENT© ANNEXO. 
 
 Where a deceased person has made a will, 
 but without naming any executor, or has 
 named incapable persons; or where the 
 executors appointed refuse to act, or die 
 intestate, in any of these cases the Court 
 of Probate must grant administration cum 
 testamento annew (with the will annexed) 
 to some other person, in the choice of 
 whom the Court usually prefers the resid- 
 uary legatee to the next of Mn. 1 Wms. 
 Bxors. 348. 
 See title ADMiNisTKATioiir, Letters of. • 
 
 CUMULATIVE LEGACY. Legacies 
 are said to be cumulative as contradistin- 
 guished from such as are merely repeated. 
 Where the testator has twice bequeathed 
 a legacy to the same person, it becomes a 
 question whether the legatee be entitled 
 to both, i. «., whether the second legacy 
 shall be regarded as a repetition merely 
 of the prior bequest, or as additional 
 bounty and cumulative to the other ben- 
 efit. On this point the intention of the 
 testator is the rule of construction. 2 
 Wms. Exors. 1030. 
 
 See Repetition of Legacies. 
 
 * CURATOR. A guardian. 
 
 CURE BV VERDICT, TO. After a 
 cause has been sent down to trial, the 
 trial had, and the verdict given, the 
 Courts overlook defects in the statement 
 of a title, which would be available on a 
 demurrer, or if taken at an earlier period. 
 This is what is meant by the term to cure 
 hy v&rdicf ; and the reason of it is, that 
 the Courts presume that all circumstances 
 necessary in form to complete a title im- 
 perfectly stated were proved before the 
 verdict was given ; which reason explains 
 the limitation laid down as to the effect 
 of the verdict, viz., that it cures the 
 statement of a title defectively set out, 
 but not of a defective title; for where 
 the plaintiff totally omits to state his title 
 or cause of action, it need not be proved 
 at the trial, and therefore there is no 
 room for the usual presumption. 1 Smith, 
 L. C. 614, Smhton v. Aapinal. 
 
 See, further, title Aider by Verdict. 
 
 * CURIA ADVISARE VULT. The 
 
 court wishes to consider the matter. 
 Usually contracted in the form ewr. adv. 
 vult. 
 
CURSITOES. — GUSTOS ROTULORUM. 
 
 101 
 
 CURSITORS. Officers connected with 
 the Court of Chancery, of very ancient 
 institution, and twenty-four in number. 
 They used to make out all original writs ; 
 and the business in the several counties 
 in England in this respect was distribu- 
 ted among them by the Lord Chancellor, 
 by whom they were also appointed. They 
 were called cursitors, from the writs de 
 curm; in stat. 18 Edw. 3, c. 5, they are 
 called clerks of course. 
 
 See, also, title "Writs. 
 
 CURTESY OF ENGLAND, TENANT 
 
 BY THE. When a man marries a woman 
 seized of an estate of inheritance, i. «., 
 of land and tenements in fee simple, or 
 fee tail, and has by her issue born alive, 
 which was capable of inheriting her es- 
 tate ; in this case he shall, on the death 
 ' of his wife, hold the lands for hi^life as 
 tenant by the ewrtfesy of England (Litt. 35, 
 53 ; 2 Bl. 126). And this rightis left un- 
 affected by the M. W. P. Act, 1870 (33 & 
 34 Vict. c. 93). 
 
 CURTILAGE (curtilagium, from the 
 Fr. cour, court, and Sax. leah, locus). A 
 piece of ground lying near and belonging 
 to a dwelling-house, as a court, yard, or 
 the like. Cowel. 
 
 CUSTOM ifonmetmb). A law not 
 written, but established by long usage, 
 and the consent of our ancestors. C%is- 
 toms are either general ox pwrticiilar ; gen- 
 eral customs are the universal rule of the 
 whole kingdom, and form the Common 
 Law in its stricter and more usual signifi- 
 cation, e. g., primogeniture: particular 
 customs are those which for the most part 
 affect only the inhabitants of particular 
 districts, such as gavelkind in Kent, and 
 the Uke. The Courts are bound to take 
 notice of general customs, but particular 
 customs must be both pleaded and proved 
 before they are judicially noticed. More- 
 over a general custom is always good, but 
 a particular custom, in order to be good, 
 must present the following characteris- 
 tics: — 
 
 (1) It must be reasonable, 
 
 (3) It must be certain, 
 
 (3) It must be compulsory, 
 
 (4) It must be immemorial, and 
 
 (5) It must be possible in law. 
 
 CUSTOMS OF LONDON. These are 
 particular customs relating to the govern- 
 ment of the City of London, and also to 
 trade, apprentices, widows, orphans, &c., 
 within the City. They differ from all 
 other customs in point of trial, for if the 
 
 Customs of Landon. — {OonUvAied.) 
 existence of the custom be brought in 
 question it shall not be tried by a jury but 
 by certificate from the lord mayor and al- 
 dermen by the mouth of their recorder, 
 unless it be such a custom as the corpora- 
 tion is itself interested in, as a right of 
 taking toll, &c., for in this latter case the 
 law does not permit them to certify on 
 their own behalf. 
 
 CUSTOM OP MERCHANTS Qex mer- 
 catoria). A particular system of customs 
 used only among one set of the king's 
 subjects, which, however different from 
 the general rules of the Common Law, is 
 yet engrafted into it, and made part of 
 it, being allowed for the benefit of trade 
 to be of the utmost validity in all com- 
 mercial transactions, it being a maxim of 
 Law cuilihet in sua arte credendum est. 
 This lex mercatoria, ox custom, of mer- 
 chants, comprehends the laws relating to 
 bills of exchange, mercantile contracts, 
 sale, purchase, and barter of goods, 
 freight, insurance, &c. The statute law 
 has adopted many of these customs of 
 merchants; and conversely, it has been 
 suggested that a large part of mercantile 
 customs have had their origin in forgot- 
 ten statutes. 
 
 CUSTOMS AND SERVICES annexed 
 to the tenure of lands are those which the 
 tenants thereof owe to their lords, and 
 which, if withheld, the lord might an- 
 ciently have resorted to a writ of customs 
 and services to compel thenj (Cowel). But 
 at the present day he would merely pro- 
 ceed to eject the tenant as upon a forfeit- 
 ure. 
 
 CUSTOMARY TENANTS. Tenants 
 who hold their estates according to the 
 custom of the manor. A copyhold tenant 
 is so called because he holds his estate by 
 copy of Court roll by will of the lord ac- 
 cording to the custom of the manor ; and 
 although a distinction has been made be- 
 tween a copyholder and a c/ustomary ten- 
 ant, yet they both agree in substance, 
 and the difference, if any, between them 
 consists only in this, that a copyhold 
 proper is expressly stated in the grant to 
 be at the will of the lord of the manor, 
 whereas a customary freehold is not so 
 stated, but the same thing is impUed. 
 8ee title Copyholds. 
 
 CUSTOS ROTULORUM. A special 
 officer to whos? custody the records or 
 rolls of the sessions are committed ; he is 
 always a justice of the quorum, and is 
 
102 
 
 CUSTOS OF THE SPIRITUALITIB8.— DAMAGES. 
 
 Cnstos Kotalornm. — (^OonHnued.) ' 
 usually selected for his wisdom, counte- 
 nance, or credit; his nomination is by 
 the king's sign manual, and to him the 
 nomination of the clerk of the peace be- 
 'longs, which office he is expressly forbid- 
 den to sell for money. 37 Hen. 8, c. 1 ; 
 Lombard. 
 
 CUSTOS OF THE SPIRITUALITIES. 
 
 He who exercises spiritual or ecclesiasti- 
 cal jurisdiction in a diocese during the 
 vacancy of the see. Cowel. 
 
 CUSTOS OF THE TEMPORALITIES. 
 
 He to whose custody a vacant see or ab- 
 bey was committed by the king as su- 
 preme lord, and who, as steward of the 
 goods and profits thereof, was to give an 
 account to the king's escheator, who ren- 
 dered an account thereof into the exche- 
 quer. His trust continued until the va- 
 cancy was supj)lied by a successor, who 
 obtained the king's writ de rcstitutione 
 temvporaUwm, which was sometimes after 
 and sometimes before consecration, 
 though more frequently after. Cowel. 
 
 CUSTUMA ANTIQUA SITE MAGNA 
 
 (asrecien* or great duties). Duties payable 
 by every merchant, as weU native as for- 
 eign, on wool, sheepskins, or woolfells, 
 and leather exported; the foreign mer- 
 chant had to pay an additional toll, viz., 
 half as much again as was paid by the 
 natives. 
 
 See, also, title Taxation. 
 
 CUSTUMA PAKTA ET NOVA (mall 
 and new duties). Imposts of threepence 
 in the pound, due from merchant stran- 
 gers only, for all commodities as well im- 
 ported as exported, and usually called 
 the alien's duty. These customs were 
 first granted in 13 Bdw. 1. 4 Inst. 32. 
 See, also, title Taxation. 
 
 CT.PEES (as near as, so nea/r). In 
 cases where an attempt is made to create 
 a perpetuity, i. e., to limit the estate to 
 several successful lives infutwro, there is 
 a material difference between a deed and 
 a will; for in the case of a deed all the 
 limitations are totally void; but in the 
 case of a will, the Courts do not; if they 
 can possibly avoid it, construe the devise 
 to be utterly void, but explain the will in 
 such a manner as to carry the testator's 
 iijtention into efieet, as far as the rule 
 respecting perpetuities will allow, which 
 is called a construction cy-pres (6 Cruise, 
 Dig. 165). For example, where a life es- 
 tate is given by wUl to an unborn person, 
 
 Cy-Pres. — ( Continued.) 
 with remainder in tail to the child of such 
 unborn pea-son, the Courts will give the 
 estate tail to the first unborn person in 
 lieu of his estate for life, and so as to 
 leave to the second unborn the chance of 
 the estate tail in that way descending 
 upon him, which it wiU do if not barred. 
 Oy-pris does not apply to personal prop- 
 erty, there being no estate tail in such 
 property. 
 
 *CYR06RAPHUM. The name of a 
 deed or charter among the Saxons. 1 
 Keeves Hist. Eng. Law, 10. 
 
 D. 
 
 DAMAGE-FEASANT. This means do- 
 ing damge (da/mm/wm fado), and is com- 
 monly*applied to the beasts of a stranger, 
 wandering in another man's grounds, and 
 doing him damage, i. e., hurt, by treading 
 down his grass, eating his growing crops, 
 and the like, in which case the owner of 
 the land may distrain them until satisfac- 
 tion is made him for the injury. 
 
 Bee, also, titles Distkbss ; Pound ; Re- 
 plevin. 
 
 DAMAGES. A pecuniary compensa- 
 tion recoverable by action for breach of 
 contract or for tort. The measure of 
 damages, or test by which the amount of 
 damages is to be ascertained, is in gen- 
 eral the same both in contract and in 
 tort, with this single distinction, that the 
 intention with which a contract is broken 
 is perfectly immaterial, while the inten- 
 tion with which a tort is committed may 
 fairly be regarded by the jury in assess- 
 ing the amount of damages ; and gener- 
 ally the Court is not particularly careful 
 to weigh "in golden scales" the dama- 
 ges recoverable in tort. 
 
 However, in both cases, the general rule 
 is, that damages are, and ought to be, 
 purely compensatory. Occasionally, there- 
 fore, only nominal damages will be re- 
 covered. But usually the damages are a 
 substantial sum, and that sum is either an 
 ascertained or an unascertained sum, but 
 ascertainable sum, being in the former 
 case called liquidated and in the latter 
 case unliquidated damages. 
 
 It is usual in bonds and other specialty 
 contracts to fix the damages for breach 
 of the contract at a liquidated sum. If, 
 however, the sum so fixed is a penal sum, 
 the Courts, both of Law and of Equity, 
 wiU relieve against the full amount 
 thereof, and allow the injured party to 
 
DAMAGES. 
 
 103 
 
 Damages. — {Gmtmued.) 
 recover only such part thereof as will 
 compensate -him. The Courts carry this 
 relief so far that even if the parties to 
 the contract expressly stipulate that the 
 sum fixed as damages shall be regarded 
 as liquidated damages and not as a pen- 
 alty, the Courts wiU, it they can find any 
 ground for doing so, hold that the 
 amount so fixed is a penalty, notwith- 
 standing, and will deal with it accord- 
 ingly. Kemhle v. Farren, 6 Bing. 141. 
 See, also, title Pbnaitt. 
 
 Where the damages do not even profess 
 to be liquidated, but are left altogether 
 uncertain in the contract (as they neces- 
 sarily are in cases of tort), then the 
 amount is to be ascertained by the jury, 
 or (in some cases), upon a reference by 
 the referee. But by whomsoever the 
 amount is to be ascertained there are cer- 
 tain particular rules of law which must 
 be observed, the principal of which are 
 the following: — 
 
 (1.) In contracts for the sale of goods, 
 (as.) If the vendor fails to deliver, 
 then the amount of damages 
 is the difference between the 
 contract price and the market 
 price of the goods at the time 
 of the breach ; and 
 (J.) If the vendee refuses to accept, 
 then the amount of damages 
 is the like difference. 
 (2.) Upon breach of a contract to re- 
 place stock, the amount of dam- 
 ages is the price of the stock on 
 the day on which it ought to 
 have been replaced, or (at the 
 plaintiff's option), its price on 
 the day of the trial. 
 (3.) In an action for the price of goods 
 which have been delivered and 
 received, but which are of in- 
 ferior quality to that contracted 
 for, 
 (as.) If the full price has been paid, 
 the amount of damages (to be 
 recovered by the purchaser) 
 is the difference between the 
 price given and the actual 
 value of the goods as ascer- 
 tained by re-seUingthem; and 
 (6.) If the price has not yet been 
 paid, the amount of damages 
 (to be recovered by the vendor) 
 is the price a^eed on mmus 
 the difference between that 
 price and the actual value as- 
 certained as before. 
 
 Damages. — (Oontmued.) 
 
 (4.) In the case of a contract of hiring 
 and service, where the breach 
 consists in a wrongful dismissal, 
 the amount of damages is the 
 usual rate of wages in the par- 
 ticular employment, multiplied 
 by the time that will be required 
 for finding new employment of 
 the same character ; and 
 (5.) In the case of a contract for the sale 
 of land, where the breach of con- 
 tract arises from the vendor's 
 failing to make a goo(^ title, 
 then, — 
 (a.) If the vendor was unaware at 
 the time of contracting of the 
 defect in his title, the amount- 
 of damages is the expense in- 
 curred by the vendee in inves- 
 tigating the title, and nothing 
 more (Flwemi v. ThomhiM, 3 
 W. Bl. 1078); but 
 (6.) If the vendor was aware at that 
 time of the defect of title, 
 then the amount of damages 
 is the expense incurred by the 
 vendee in investigating the 
 , title a-nd also damages for the 
 loss of his bargain.' Hopkins 
 V. Qraeebrodk, 6 B. & C. 31. 
 The following distinctions are also taken 
 in respect of damages, viz. : — 
 
 (1.) Some damages are general and 
 some are special; and the rule of law 
 with respect to the latter class of damages 
 is, that they must be both pleaded and 
 proved, whereas neither of these things 
 is necessary with respect to the former 
 class of damages ; for these as being gen- 
 eral are implied by the law ; and 
 
 (3.) Some damages are direct, and some 
 are indirect, remote, or consequential. 
 Now the law permits no damages as a 
 general rule to be recovered excepting 
 such as are the natmrdl consequences, and 
 also the legal consequences, of the breach 
 of contract or of the tort {Vvyxrs v. Wil- 
 cox, 3 Sm. L. C. 487) ; but under special 
 circumstances, if those special circum- 
 stances have been pointedly, i. «., suffi- 
 ciently, brought to the knowledge of the 
 offending party, then other damages of a 
 remoter or consequential nature which 
 have arisen from the breach of contract 
 orfrom the tort, willbe recoverable {Hadley 
 V. Baamdale, 9 Ex. 341) ; and it is in re- 
 spect to this class of damages when they 
 arise from the commission of a tort that 
 the Court is inclined to be more liberal 
 
104 
 
 DAMNOSA H^BEDITAS. — DEAF AND DUMB. 
 
 - (OmUmied.) 
 in the amouat whicli it awards. See gen- 
 erally Mayne on Damages, by Lundley 
 Smith, 1873. 
 
 * DAMNOSA HJIKEDITAS. An in- 
 heritance which was a charge instead of 
 a benefit. Applied also to the property 
 of a bankrupt when it is a charge to the 
 creditors, for example, a term of years 
 where the rent exceeds the revenue. 
 7 East, 342 ; 3 Oampb. 340. 
 
 DAMNUM ABSQUE INJURIA. This 
 phraap denotes the happening of some 
 loss or damage" to one person, without 
 any wrong done to him on the part of the 
 person who has caused the loss or dam- 
 age. A familiar instance of this is the 
 case of a rival schoolmaster who sets up 
 a school near to an existing school, and 
 by so doing draws away by competition 
 merely some or all of the scholars of the 
 latter school. And in the case of one 
 landowner who, by digging a well in his 
 own ground for his own farm, thereby 
 draws oflE the underground water which 
 supplied a well previously dug in another 
 person's land, we have another instance 
 of a dLamnum, unaccompanied by an m^w- 
 ria {Acton v. Blundell, 12 M. & W. 324 ; 
 Ohasemore v. Richa/rds, 7 H. L. Ca. 849). 
 The converse phrase, ivguria sine damno, 
 is, on the other hand, always actionable, 
 upon the ground that every i?i?wm, being 
 an interference with another person's 
 right, necessarily and in the very nature 
 of it importeth a dwmnv/m. AsJiby v. 
 WMU, 3 Ld. Raym. 953. 
 
 ♦DAMNUM FATALE. Damages caused 
 by inevitable accident, or act of God. 
 
 DANBT, IMPEACHMENT OF. The 
 
 Earl of Danby, minister of Charles 11., 
 was cognizant of that sovereign's secret 
 treaty with France, and for his complicity 
 therein was impeached. Upon his im- 
 peachment three questions of a technical 
 legal importance were raised : — 
 
 (1.) Whether the Lords, upon a mere 
 general charge of treason, were able to 
 commit the accused to prison without 
 bail: — SM, that they might. 
 
 (2.) Whether a minister might plead 
 in bar to an impeachment the fact that 
 the king had subsequently pardoned the 
 ofEense, if any: — Seld, that such plea 
 was not so admissible, although the king's 
 pardon after conviction or attainder would 
 be a good deliverance. This opinion- was 
 only hesitatingly arrived at on the occa- 
 
 Danby; Impeachment of. — (ConUrmed.) 
 sionof Lord Danby's impeachment, and 
 was not finally adopted or declared by the 
 legislature until 13 Will. 8, c. 2 (Act of 
 Settlement). 
 
 And (3.) Whether an impeachment 
 abated by a duaohition of Parliament: — 
 Hdd, that an impeachment did not abate 
 upon a prorogation merely, nor yet upon 
 a dissolution. This decision was not, 
 however, final, for the contrary was held 
 in 1685 ; and it was not till 1717 (in the 
 case of the Earl of Oxford), that aproro- 
 gation, and not until 1781 (in the case of 
 Warren Hastings) that a dissolution was 
 finally declared to be no abatement of an 
 impeachment in parliament. 
 
 DANE-GELT OB DANE-GELD. This 
 means Dane-tribute, and was a tax of 1«. 
 (afterward 2s.) upon every hide of land 
 throughout the kingdom. It was origin- 
 ally imposed by the Danes, and was after- 
 ward levied for clearing the seas of 
 Danish pirates ; sometimes it was applied 
 by way of bribing these pirates to abstain 
 from their invasions. The tax was re- 
 leased by Edward,the Confessor, but was 
 again imposed by William I. ; it was again 
 released by Henry I., and re-imposed in 
 the form of ship-money by Charles I. 
 Bee title Ship-money. 
 
 DAEBEIN PRESENTMENT: Sea ti- 
 tle Assize of Dakeein Pkbsentment. 
 
 DAT: 5'e« title Time. 
 
 *DATS OF GRACE. Certain days al- 
 lowed for the payment of negotiable 
 paper after the date named in the paper. 
 
 In old English Practice, three days of 
 grace were allowed persons summoned in 
 court, beyond the date of the writ, to 
 make their appearance. 
 
 DEAD FREIGHT. This is freight 
 payable by the charterer of a vessel under 
 his charterparty when the cargo has for 
 some cause not been conveyed as in- 
 tended. 
 
 See title Chaktbeparty. 
 
 DEAF AND DUMB. Such persons 
 may lawfully intermarry {Earrod v. Ear- 
 rod, 1 Kay & J. 4) ; and, if married wo- 
 men, may make acknowledgments {In re 
 Hm-per, 6 M. & G. 732). But their wills 
 are regarded with much suspicion {In the 
 Goods of Owaton, 2 S. & T. 461). If deaf, 
 dumb and blind they are idiots, and have 
 no capacity, sed gucere. 
 
DEAN. — DECBNNAKY. 
 
 105 
 
 DEAN. An ecclesiastical dignitary 
 who presides, or originally presided, over 
 ten (Sexd) canons or prebendaries. He is 
 next in rank to the bishop, and is head of 
 the chapter of a cathedral. 
 
 DEATH. Where a person has not been 
 heard of for seven years, and his absence 
 is not explainable, the law raises a primd 
 fatde presumption that he is dead {Row 
 V. Hasland, 1 "W. Bl. 406) ; but that pre- 
 sumption does not in any way fix the time 
 of death, of which strict evidence must 
 be given by the party who derives any in- 
 terest therefrom. Doe v. Nepean, 2 Sm. L. 
 C. 510. 
 
 *DE JETATE PEOBANDAj A writ 
 which lay to summon a jury to determine 
 the age of the heir of a tenant in cwpite, 
 who claimed his estate as being of full 
 age. Bouv. Diet. ; Fitz. Nat. Brev. 257. 
 
 * DE BENE ESSE. Well done for the 
 present, conditionally, provisionally. For 
 example, a witness is examined de hene 
 esse when there is danger of losing his 
 testimony if the party waits until the trial. 
 If the witness be aUve; or can be present 
 at the time of trial, his testimony de bene 
 esse is not to be used. 
 
 DEBENTURE. Is a securily issued by 
 a public company, usually railway com- 
 pany, and which may or may not be a 
 mortgage of the lands and stock of the 
 .company. If not mortgages, debentures 
 are not an interest in land within the 
 meaning of the Statute of Frauds (29 
 Car. 2, c. 3), or within the Mortmain Act 
 (9 Geo. 2, c. 36) ; but otherwise if they 
 are mortgages (Toppin v. Zomaa, 16 C. B. 
 159). Debentures are usually in the form 
 of a promissory note, subject to certain 
 strict regulations as to the mode of trans- 
 fer, and usually have coupons attached 
 to them to facilitate the payment of in- 
 terest. The interest on these coupons, 
 although payable half-yearly, accrues de 
 die in Siem, and is apportionable like or- 
 dinary interest. Inre Sogers, 1 Dr. & Sm. 
 338. 
 
 See, also, title Shabes. 
 
 ♦DEBET ET DETINET. An action 
 of debt is said to be in the debet et deUnet, 
 it being alleged that the defeijdant owes 
 and withholds or detains the debt or 
 thing in suit. 
 
 * DEBET ET SOLET. Words used in 
 old writs showing both a right and a cus- 
 tom as a ground of claim. Beg. Orig. 
 153. 
 
 U 
 
 DEBT. A sum of money due by some 
 certain and express agreement, e. g., on 
 a bond, bill of exchange, &c., where the 
 amount is determinate, and for the non- 
 payment whereof an action of (foSf will lie. 
 
 Debts are of various kinds, namely : 
 
 (1.) Jvdgmemi debts, as to which see title 
 Judgment Debts; (3.) SpedaMy debts; 
 (3.) Simple contract debts. 
 
 Originally debts were not payable out of 
 real estate, but only out of personal estate. 
 
 The present liabihty of lands to the 
 payment of debts is as follows : 
 
 (1.) During the Ufe-time of the debtor 
 — Upon entering up judgment, and duly 
 registering same, execution may be sued 
 out and registered, and under that exe- 
 cution lands, whether freehold, copyhold, 
 or leasehold, and whether legal or equi- 
 table, may be taken possession of and sold 
 in satisfaction of the debt. See title 
 Judgments. 
 
 (2.) After the decease of the debtor. 
 
 By the stat. 8 & 4 Will. 4 c. 104, it is 
 enacted that the lands of a deceased per- 
 son shall be assets in Equity for payment 
 of all his just debts, as well owing by 
 simple contract as by specialty. 
 
 See title Administration of Assets. 
 See, also, title Ckown Debts. 
 
 DECEIT. This is frcmd, as to which 
 see title Fraud . 
 
 A writ of deceit used formerly to lie, 
 and now an action on the case in the 
 nature of a writ of deceit lies, where the 
 plaintiff has received injury or damage 
 through the deceit of the defendant or of 
 his agent, where the defendant was privy 
 thereto. 
 
 See, also, title Warranty. 
 
 *DECEM TALES. A writ which 
 issued to the sheriff commanding him to 
 summon ten jurors to make a fuU panel. 
 Used where ten jurors only were necessary. 
 
 *DECIES TANTUM. A writ which 
 formerly lay against a juror who had taken 
 money for giving his verdict. So called 
 because it was designed to recover from 
 him against him ten times as much as he 
 took. 
 
 DECENNARY. A tithing or civil di- 
 vision of the country composed of ten 
 freeholders with their families. The in- 
 stitution was introduced, it is beUeved, 
 by the earliest Saxon settlers in England, 
 and some say by Alfred. The members 
 of a tithing were mutually responsible for 
 each other's good behavior. Ten decen- 
 naires formed a hundred. 
 
106 
 
 DECENNIBRS. — DE DONIS. 
 
 DECENNIEES. Persons having the 
 oversight of ten free burghs (Holthouse), 
 or possibly only of ten free households 
 (Tomlins), for the conservation of the 
 king's peace therein, with power to try 
 causes and give redress by judgment, 
 and for these purposes to adimnister 
 oaths. 
 
 DECLABATION. At Law is a plead- 
 ing which corresponds to the bill of 
 complaint in Equity. It contains a suc- 
 cinct statement of the plaintiff's case, 
 and generally comprises the following 
 parts: 
 
 (1.) Title ) In the Queen's Bench, 
 
 and daU ( the 10th July, 1874; 
 (3.) Venue — Middlesex, to vrit ; 
 (3.) Oommencement — A. B. by C. D., 
 his attorney \or in person] sues 
 E. F. for . . . 
 (4.) Body of deda/raMon — consisting of 
 the following parts (which, how- 
 ever, are not all necessary in 
 every form of action) viz. : 
 (a.) iTuhieement — being introductory 
 merely, and rarely requiring 
 proof; 
 (5.) Averments — being usually the 
 allegation of the performance 
 of all precedent conditions, 
 &c., on the plaintiff's part; 
 and 
 (c.) Gownts — containing statement of 
 defendant's breach of contract 
 or other injury ; 
 (5.) Oondumn — "And the plaintiff 
 
 claims & " 
 
 The time for the plaintiff to declare is 
 immediately after the defendant has ap- 
 peared; if the plaintiff do not declare 
 within one year after the writ of sum- 
 mons is returnable, he is deemed out of 
 Court. But the defendant may at the 
 end of the term next^^fter his appearance 
 give the plaintiff four days' notice to de- 
 clare, and thereafter, upon the default of 
 the plaintiff's declaring within the time 
 limited for that purpose, may sign judg- 
 ment of nonpros, against him. See Bull. 
 & L. PI. 1. 
 
 DECLABATOE Y ACT. This is an Act 
 which, by profession at least, declares no 
 new law, but only the formerly existing 
 law, removing certain doubts which have 
 arisen on the subject; e. g.y the Statute of 
 Treasons, 25 Bdw. 3, stat. 5, c. 2, pro- 
 fesses to create no new treasons, but only 
 to enumerate the already existing trea- 
 sons. 
 
 See title Statutes. 
 
 DECREE. This is the judgment of a 
 Court of Equity, and is to most intents 
 and purposes the same as a judgment of 
 a Court of Common Law. A decree as 
 distinguished from an order is final, and 
 is made at the hearing of the cause, 
 whereas an order is interlocutory, and is 
 made on motion or petition ; wherever an 
 order may, in a certain event resulting 
 from the direction contained in the order, 
 lead to the termination of the suit in like 
 manner as a decree made at the hearing, 
 it is called a dearetal order . 
 
 DECRETAL ORDER: 8ee title Db- 
 
 CBEE. 
 
 DECRETALS. These are the papal 
 decrees of various popes as the same were 
 collated in five books by Pope Gregory 
 IX., whence also they are called Decre- 
 talia Chregorii Nom, about the year 1230. 
 A sixth book (called Sextms JDeeretaUum) 
 was added by Pope Boniface VJUl. about 
 the year 1298- 
 
 See title Canon Law. 
 
 DEDI. The proper word (give) in a 
 deed of feoffment, and implying formerly 
 a warranty of title, but implying no such 
 warranty at the present day, since 8 & 9 
 Yict. c. 106. 
 
 DEDIMUS POTESTATEM. A writ 
 issuing out of Chancery empowering cer- 
 tain persons therein named to perform 
 certain acts; as when a justice of the. 
 peace appointed unjier the king's com- 
 mission intends to act under this com- 
 mission, a writ of dedvmus potestatem 
 issues, empowering certain persons 
 therein named to administer the usual 
 oaths to him, which being done, he is at 
 liberty to act. Lamb. 23. 
 
 DEDIMUS POTESTATEM DE AT- 
 TORNATO FACIENDO. At Common 
 Law the parties in an action were obliged 
 to appear in Court in person, unless al- 
 lowed by a special warrant from the 
 Crown (bearing the above title). to ap- 
 point an attorney; or unless after ap- 
 pearance they had appointed a deputy, 
 called a responsalis, to act for them, and 
 which the Court allowed them to do in 
 some instances. But now a general lib- 
 erty is giyen to parties in an action to 
 appear by attorney, excepting in the case 
 of infants, idiots, and married women. 
 F. N. B. 25; 1 Arch. Pract. 84. 
 
 DE DONIS. This is the name of a cel- 
 ebrated statute (13 Edw. 1, or Statute of 
 Westminster the Second, c. 1), in virtue 
 
DEEDS. — DEFORCEMENT. 
 
 107 
 
 De Donis. — {GonUnued.) 
 of which an estate is freehold lands, 
 which was formerly known as a donvm, 
 conditioncde (whence the name of the 
 statute), was converted into an estate tail, 
 and required to descend according to the 
 formedon {formam doni), so as to be in- 
 alienable as well against the lord in prej- 
 udice of his reversion as against the issue 
 in prejudice of their succession. A do- 
 num conditionale, on the other hand, was 
 alienable, immediately upon the birth of 
 issue, that being construed as .the condi- 
 tion of the gift (whence the name) ; the 
 condition being discharged, the estate, 
 of course, became absolute. 
 
 See title Estate Tail. 
 
 DEEDS. These are of two kinds, 
 being either deeds-poll or indentures. 
 
 (Is) A deed-poll was a bald or shorn 
 deed, and was made by one person only, 
 beginning with the words, "Know all 
 men," &c. Under such a deed, any per- 
 son may accept a grant. 
 
 (2.) An indenture was an indepted 
 deed, and was made between two or more 
 parties, beginning with the words, " This 
 indenture," &c., and stating the parties 
 at the outset. Formerly no person who 
 was not a party could take any 'im/mediate 
 estate, interest, or benefit under such a 
 deed ; but now, by the 8 & 9 Vict. c. 
 106, such an estate, interest, or benefit 
 may now be taken under it by a person 
 not a party to it. 
 
 A deed may be made either on paper or 
 on parchment. 
 
 *DEEMSTEES. Judges in the Isle 
 of Man who decide all msputes without 
 process. Spelman GHoss. 
 
 DEER. Deer in a park when reclaimed 
 become personal chattels, and cease to be 
 parcel of the inheritance. Myrd v. Tynte, 
 3 J. & H. 150 ; Morgan v. Abergmenny 
 {Em-T), 8 C. B. 768. 
 
 DE FACTO. A king de facto is one 
 actually reigning, as opposed to one de 
 jure merely, who, although having the 
 lawful succession, has either been ousted 
 from, or never actually taken, the posses- 
 sion of the sovereignty. The constitu- 
 tional statute, 11 Hen. 7, c. 1, enacts 
 that obedience to the king for the time 
 being de facto shall be a protection to the 
 subject against all forfeitures under any 
 succeeding sovereign claiming adversely. 
 See also title Allegiance. 
 
 DEFAMATION: See title Libel. 
 
 DEFAULT, JUDGMENT BY. Where 
 a defendant omits to appear, or (having ^ 
 appeared) to plead or to put in his answer 
 to an action or suit within the time or 
 times limited for either of these purposes 
 by the Courts, and he has obtained no 
 enlargement or extension of the time for 
 doing so, it is presumed that he has no 
 defense, and the plaintifE is thereupon 
 entitled to sign judgment against him. 
 Either: 
 
 (1.) For the non-appearance, if the 
 writ has been specially indorsed; s. 37, 
 C. L, P. Act, 1853: or, ' 
 
 (3.) For want of plea, if the writ has 
 not been specially indorsed ; s. 28, C. L. 
 P. Act, 1852. 
 
 Moreover, by s. 93, 0. L. P. Act, 1853, 
 when the plaintifE in any action seeks to 
 recover a debt or liquidated demand in 
 money, judgment by default is final ; and 
 by s. 94 of the same Act, where he seeks 
 to recover an unliquidated sum, the ascer- 
 tainment of which is merely matter of 
 calculation, the Court directs the master 
 to ascertain the amount, without refer- 
 ence to the distinction between debt and 
 dommgea, but the judgment is in the 
 meantime interlocutory only. Of course, 
 where the ascertainment of the damages 
 is not merely matter of calculation, the 
 jury must find the amount : and, mnhle, 
 there is no judgment at all (by default or 
 otherwise) untU the jury have so found. 
 
 Judgment by default is also sometimes 
 called judgment by Wil dicit. 
 
 DEFEASANCE: See title Convet- 
 
 ANCBS. 
 
 DEFENSE: See titles Plea; Justifi- 
 cation. 
 
 DEFORCEMENT. This is the holding 
 of any lands or tenements wrongfully as 
 against any person who has the right 
 thereto, but who has not as yet at any 
 time been in the possession thereof; e. g., 
 where a lessee for years or pii/r autre vie 
 holds over after the determination of his 
 interest and refuses to deliver up the pos- 
 session to the reversioner or remainder- 
 man. But when such a tenant holds over 
 without any such refusal to deliver up, he 
 is not a deforciant, but only a tenant by 
 sufferance. The deforciant must have 
 come in by right in the first instance ; 
 for if the person wrongfully holding came 
 in by wrong in the first instance, he is 
 not a deforciant, but either, 
 
 (1.) An intruder: see title Intbusion; 
 
 (2. A disseisor: see title Disseisin; or, 
 
 (3.) An abator : see title Abatement. 
 
108 
 
 DEGRADATION. — DEMESNE LANDS. 
 
 Deforcement. — {Omitin'ued.) 
 • Deforcement in respe'ct that the defor- 
 ciant comes in by right in the first in- 
 stance is like dUoontinucmce, as to which 
 see title DiscoNTiinjAircB. 
 
 DEGRADATION. This phrase was 
 applied: (1.) To the case of a peer de- 
 prived of his nobility, e. g., the case of 
 the Duke of Bedford, of Edward IV.'s 
 reign, who was deprived by that sovereign 
 on account of his poverty. And at the 
 present day, a peer who becomes bank- 
 rupt ceases for the time being to be capa- 
 ble of sitting in the House of Lords 
 (Bankruptcy Disqualification Act, 1871). 
 (2.) To the case of an ecclesiastic who is 
 divested of his holy orders ; degradation 
 is a greater punishment than deposition, 
 being not merely the displacing one from 
 his office (which deposition also is) but 
 also the divesting hrm of all his badges 
 of honor, privileges, &c. ( which deposi- 
 tion is not). 
 
 DE INJURIA, REPLICATION. This 
 was a form of taking issue, but which has 
 been superseded by the C. L. P. Act, 
 1853, s. 79. The exact nature of the form 
 inay be collected from Grogate^s Case (8 
 Rep. 66), and appears to have been in 
 substance the following : It was a general 
 repUcatioIi putting in issue all the mate- 
 rial averments in the plea. Properly, 
 therefore, it was to be replied to a plea of 
 the defendant where, and only where, 
 that plea consisted of matter of excuse, 
 as that the plaintiS, e. g.,ia an action of 
 trespass for driving the plaintiff's cattle, 
 was himself in fault in the first instance 
 in so doing; to which plea it is of course 
 proper for the plaintiff to reply that the 
 defendant's act was of his (the defend- 
 ant's own proper wrong de injurid sud 
 proprid), and vTithout any such ground of 
 excuse as the defendant alleged (obHqite 
 tali oausd). But where, as in Orogate's 
 Case, the defendant justified under the 
 command of his master, the replication 
 de injwrid was held inapplicable, not 
 being accompanied with a traverse of the 
 command. 
 
 See, also, titles New Assignment; 
 Replication. 
 
 T)iL CREDERE. In mercantile trans- 
 actions, if a factor or agent agrees with 
 his principal, in consideration of some 
 additional compensation, to guarantee to 
 the latter the debt to become due from 
 the buyer, the excess of this compensa- 
 tion ovier the ordinary compensation is 
 
 Del Credere. — (OonUnued.) 
 that which distinguishes a del credere com- 
 mission from an ordinary one. Of course 
 the del credere commission agent is liable 
 on his guarantee in case of the purchaser's 
 default to pay the price. 
 
 * DELECTUS PERSONiE. The right 
 of a partner to decide what new partners, 
 if any, shall be admitted to the firm. 
 Story Part., §§5, 105. 
 
 DELICTO, ACTIONS EX. These are 
 actions arising from a tort or wrong, 
 being independent of contract, 0. L. P. 
 Act, 1852. The wrong must not amount 
 to a crime, otherwise it is no tort in 
 English Law. The division of obligation 
 in Roman law is the following: — 
 
 Obligationes, 
 
 (1.) Ex contractu. (3.) Ez delicto. (3.) Ex variis 
 
 causanxm 
 flguris. 
 
 . Quasi ez Quasi ex 
 
 contractu.- delicto. 
 
 The same division is subtantially adopted 
 in English Law; and the C. L. P. Act, 
 1852, s. 74, provides that in the case of 
 actions which are founded upon obliga- 
 tions which are doubtfully ex ccmtractu and 
 dovbtfully ex delicto, the defendant may 
 treat the declaration as framed in either 
 he pleases, and may plead accordingly. 
 
 * DE LUNATICO INQUIRENDO. A 
 
 writ directing an inquiry whether a per- 
 son is a lunatic or not. 
 
 DEMESNE LANDS. These were such 
 parts of the lands of a manor as the lord 
 kept to himself as being necessary for his 
 own use. Ancient demesne lands are 
 those which were so kept by the king as 
 lord in the reigns of Edward the Confes- 
 sor and William 1, being the lands re- 
 ferred to in Domesday Book as T^rce 
 JSegis, or Terra Regis Ed/awrdi. 
 
 Of such lands, one part was retained by 
 the lord in his actual occupation for the 
 purposes of his family; a second part was 
 held ill viUenage, and out of it the tenures 
 of Copyhold, Customary Freehold, and 
 Ancient Demesne have arisen (see these 
 three titles respectively) ; and the remain- 
 ing part was left uncultivated, whence 
 also it was called the Masfe lands of the 
 manor, serving for public roads and for 
 common of pasture to the lord and his 
 tenants. 
 
 See titles Commons ; Waste. 
 
DEMISE. — DEMURRER. 
 
 109 
 
 DEMISE. A word used in leases for 
 terms of years, and being synonymous 
 with lease, or let, from which it differs 
 only in this respect, namely, that demise 
 ex vi termini implies a covenant for title, 
 and also a covenant for quiet enjoyment, 
 whereas lease, or let, implies neither of 
 these covenants. Where there are mutual 
 leases of the same land, or of something 
 out of the same land, made from one 
 party to another on each side, it is said 
 to be a conveyance by Dermae and Jfe- 
 demise, e. g., where A. grants a lease to 
 B. at a nominal rent and B. re-demises 
 the same property to A. for a shorter term 
 at a substantial rent. 
 
 The word " demise " is also frequently 
 used as a euphemism for decease or death, 
 «. g., the demise of the king, more prop- 
 erly, of the Crown, which means, speak- 
 ing strictly, that in consequence of the 
 king's natural body having by reason of 
 the death thereof become disunited from 
 his politic body, the kingdom is trans- 
 ferred or demised to his successor, for the 
 king, as a corporation sole, never dies. 
 The word demise should not be confound- 
 ed with the word devise. 
 
 *DEMPSTEE. In Scotch Law, the- 
 officer who pronounced the sentence of 
 the court. 1 How. St. Tr. 927. 
 
 DEMUBEAGE. This term is occasion- 
 "ally used to signify the delay or period of 
 delay of a vessel in port (from the Latin 
 demora/rQ; but in law, it is more com- 
 monly used to denote the sum which is 
 fixed by the contract of carriage as a 
 remuneration to the shipowner for the de- 
 tention of his ship beyond the number of 
 days allowed for loading or unloading. 
 It is usual to calculate this sum at so 
 much per day, and also to specify in the 
 contract the allowed days of demurrage ; 
 in which case, if the ship is delayed be- 
 yond the agreed demurrage, the freighter 
 becomes liable to pay damages for the 
 excess, Which damages are usually esti- 
 mated at the demurrage rate per day. 
 
 If the ship after sailing puts back owing 
 to contrary winds, and is detained in port 
 by frost or bad weather, no demurrage is 
 payable for that unavoidable delay ; and 
 when the ship is to be unloaded in the 
 usual and customary time, no demurrage 
 is payable for a detention caused merely 
 by the crowded state of the docks {Jamie- 
 son V. Laurie, 6 Bro. P. C. 474 ; Burmes- 
 ter V. Hodgson, 2 Camp. 438). "Where, 
 however, the parties enter into a positive 
 contract, that the goods shall be taken 
 
 Demurrage. — ( Gontinued.) 
 out of the ship within a specified number 
 of days from her arrival, as such a con- 
 tract is construed strictly, demurrage is 
 payable for any delay beyond the speci- 
 fied period, although the shipper is pow- 
 erless to remove the causes of the delay, 
 provided only the shipowner is not to 
 blame. BamdaU v. Lynch, 2 Camp. 352 ; 
 Besaey v. Evans, 4 Camp. 131. 
 
 The contract to pay demurrage, which 
 is contained in the charterparty, is made 
 between the shipowner and the shipper, 
 and the latter is therefore the person lia- 
 ble to pay the demurrage ; but where, as 
 is usually the case, the bill of lading 
 mentions the demurrage, a consignee who 
 accepts the goods under it may, and gen- 
 erally does, become liable for it on a new 
 contract, to be implied from his accept- 
 ance of the goods under these circum- 
 stances ; and such implied contract may 
 arise, although the receiver at the time 
 of receiving the goods states that he will 
 not pay demurrage (Smith v. Sievehing, 4 
 E. & B. 945). But a mere reference in 
 the bill of lading to the terms of the char- 
 terparty, in which demurrage is specified, 
 will not of itself render the consignee re- 
 ceiving the goods liaOle for demurrage. 
 Smith Y. Sievehing, supra. 
 
 DEMURRER. In pleading, is the for- 
 mal mode of disputing the sufficiency in 
 law of the pleading of the other side. 
 
 Before the C. L. P. Act, 1852, demur- 
 rers were either general or special ; but 
 by s. 51 of that Act, special demurrers 
 were abolished. There is now therefore 
 but one kind of demurrer, namely, the 
 general demurrer, which is admissible 
 under s. 50 of the C. L. P. Act, 1852, 
 but only when the pleading of the oppo- 
 site party is bad in substance ; for if the 
 pleading is bad for argumentativeness, 
 generality, repugnance, duplicity, or other 
 like reason not also amounting to matter 
 of substance, it is to be objected to un- 
 der s. 52, of the C. L. P. Act, 1852, by 
 summary application to the Court to 
 strike out or amend. Under s. 89 of the 
 same Act, the form, of a demurrer is 
 this : — 
 
 "The defendant [or " the plaintiff , " as 
 the case may &ej, by his attorney \pr "in 
 person," as the case may lei ^V^ ^^^^ ^^^ 
 declaration [or "the plea," &c., as the 
 case m^y be] is bad in substance." And 
 in the margin of the demurrer book the 
 matter of law intended to be relied on is 
 to be stated. The other side may there- 
 
110 
 
 DENIZEN. — DEP6t. 
 
 Demurrer. — {Oontimted.) 
 upon join in demurrer in this form: — 
 "The plaintiff [or "the defendant," as 
 the ease ma/y 6e] says that the declaration 
 \w " plea, " &c. , CM *A« case may J«] is good 
 in substance." 
 
 Before the C. L. P. Act, 1862, a party 
 was not at liberty both to plead and to 
 demur to the same pleading; but by s. 
 80 of that Act, he may by leave of the 
 Court now do so upon affidavit, which 
 however is seldom required. 
 
 In Chancery, whenever the statements 
 contained in aplaintifl'sbill of complaint 
 (assuming them all to be true as stated) 
 are insufficient to entitle him to the re- 
 lief prayed, the defendant may demur to 
 the plaintiff's bill, either to the relief 
 (which would include the discovery) 
 sought, or to the discovery alone (exclu- 
 sive of the relief). The most usual 
 grounds of demurrer are the following : — 
 
 (1.) Want of equity, whether 
 (a.) In respect of the subject-matter ; 
 
 or 
 (J.) In respect of the plaintiff per- 
 sonally; or 
 (c.) In respect of the defendant per- 
 sonally ; 
 
 (3.) Want of parties ; 
 
 (3.) Multifariousness; and 
 
 (4.) Insufficiency in Law of case made 
 by plaintiff. 
 
 This fourth ground being analogous to 
 the ground commonly taken at Law. 
 
 The demurrer, as to its form, com- 
 mences with a formal protestation of the 
 falsehood of the statements in plaintiff's 
 bill, and then demurs to the bill, or to 
 the part of it which it specifies, for the 
 cause which it also specifies, concluding 
 with a general allegation of other good 
 causes of demurrer, and praying to be 
 dismissed from the suit with costs, and 
 without being compelled to answer the 
 plaintiff's bill. 
 
 Twelve days after the date of his ap- 
 pearance to the bill is allowed the defend- 
 ant for demurring alone; and twenty- 
 eight days if he demur as to part, and 
 plead or answer as to the rest. 
 
 The demurrer must be filed ; and within 
 three weeks after the filing thereof, it 
 may be set down for argument. 
 
 In case the demurrer is allowed, it puts 
 the plaintiff wholly out of Court, unless 
 he obtains leave to amend ; on the other 
 hand if the demurrer is overruled, the 
 defendant is obliged to put in Ms full de- 
 fense by answer. 
 
 See titles Answer ; Plea. 
 
 DENIZEN. A denizen is an alien by 
 birth, who has obtained, ex donationeregh, 
 letters patent making him an English 
 subject. The king may denizenize but 
 not naturalize a man, the latter requiring 
 the consent of Parliament, either pro re 
 nata or under a general Act, such as the 
 Naturalization Act, 1870 (33 & 34 Vict, 
 c. 14). A denizen holds a middle posi- 
 tion between an alien and a natural bom 
 or naturalized subject, being able to take 
 lands by purchase or devise (which an 
 alien could not until 1870 do), but not 
 having been able to take lands by descent 
 (which a natural bom or naturalized sub- 
 ject may do). 
 
 See, also, titles Allegiance; Aliens; 
 Natuealization. 
 
 DEODAND. Any personal chattel that 
 is the immediate occasion of the death 
 of any reasonable creature, and which by 
 reason thereof precisely is forfeited to 
 the king, to be applied to pious or charit- 
 able uses, — ^being in Boman Catholic 
 countries, the expiation by masses, and 
 otherwise, of the sins of the deceased, 
 and in Protestant countries, the relief of 
 the deserving poor. Where the person 
 killed is an infant under the age of dis- 
 cretion, no deodand arises, there being 
 in his case no sins of commission to ex- 
 piate. 
 
 DEPAKTTJRE. In pleading, where a ' 
 man departs from one line of defense, • 
 and has recourse to another line of de- 
 fense either inconsistent vnth or not con- 
 firmatory of his former defense, this is 
 called a departure, and the effect of it is 
 to render the entire pleading demurrable. 
 Ban-tlett V. Wells, 1 B. & S. 836. 
 
 * DEPART ATION. In Roman Law, 
 A perpetual banishment depriving the 
 banished of his rights as a citizen, and 
 differing somewhat from relegation and 
 eadle. 1 Brown Civ. Law, 135 note ; Inst. 
 1, 13; Dig. 48, 33, 14, 1. 
 
 DEPOSIT: 5ee title Bailment. 
 
 DEPOT. In French Law, is the depos- 
 itum of Roman and the deposit of Eng- 
 lish Law. It is of two kinds, being 
 either (1.) DSp6t simply so called, and 
 which may be either voluntary or neces- 
 sarf; and (3.) Siguestre which is a de- 
 posit made either under an agreement of 
 the parties, and to abide the event of 
 pending litigation regarding it, or by 
 virtue of the direction of the Court or a 
 judge, pending litigation regarding it. 
 
DEP.OSITION. — DESCENTS. 
 
 Ill 
 
 DEPOSITION. This word is used 
 generally to denote any affidavit on oath, 
 or solemn affirmation in lieu thereof. 
 But it is more commonly used in a more 
 particular sense, as meaning -7- a state- 
 ment written down by an officer of the 
 Court (called an examiner in Chancery), 
 embodying the substance of the answers 
 obtained from the deponent in the course 
 of his examination. It is competent for 
 either party to a suit which is intended 
 to be heard upon motion for decree to ex- 
 amine his own unwilling witness in this 
 way, but only upon notice to the other 
 side, who then and there may cross-ex- 
 amine the deponent, the side who have 
 called him in that case re-examining him. 
 Also, in a suit in which repUoation has 
 been filed, such depositions may be taken, 
 but in this case ex parte. In either case 
 the deposition is to be regarded as the 
 reluctant affidavit of the deponent. 
 
 Depositions are also taken before mag- 
 istrates for the purpose of a criminal 
 prosecution; and in case the deponent 
 should die before the trial, or be too ill to 
 attend, these depositions may be used in 
 evidence, subject to certain restrictions, 
 mentioned in the stat. 11 & 13 Vict. c. 43. 
 
 DEPEIVATION: See title Degkada- 
 
 TlOSf. 
 
 DERELICT. Any thing thrown away 
 or abandoned, with the intention of quit- 
 ting the ownership thereof. Goods 
 thrown out of a vessel to lighten same in 
 time of distress are not derelict for want 
 of the intention. See Just. Inst, ii, 1, 48. 
 
 * DERELICTION. The gaining of land 
 from the water, in consequence of the sea 
 shrinking back below the usual water- 
 mark; the opposite of alhimon. 3 Roll. 
 Abr. 170; 3 Bl. Com. 363; Burr. Diet. 
 
 DESCENDER. Writ of formedon in. 
 This writ used to lie where a tenant in 
 tail, having aliened the land otherwise 
 than by fine or common recovery, or hav- 
 ing been disseized thereof, died, and the 
 heir in tail claimed to recover the land as 
 against the person in possession thereof 
 under the alienation or disseizin. 
 
 DESCENT. Where the title to land 
 vests in any one by mere operation of 
 law, such title is said to vest in him by 
 descent. As thus used the term is distin- 
 guished from pu/rcJiase, which may be 
 either demse or grant. 
 
 Bee, also, next title. 
 
 DESCENTS. Estates descend from an- 
 cestor to heir, as the blood trickles. 
 
 The following stages in the growth of 
 the present law of descents may be indi- 
 cated : — 
 
 (1.) Fee simple estates were originally 
 confined to the issue or lineal 
 descendants of the ancestor ; 
 
 (8.) By the reign of Henry II., collat- 
 eral descendants were admitted 
 to the succession upon the failure 
 of lineals; 
 
 (3.) By the time of Henry IH., primo- 
 gemtwre, i. «., descent to the eld- 
 est son in exclusion of the others, 
 was established; 
 
 (4.) By the time of Henry HI., the doc- 
 trine of representation was estab- 
 lished, whereby the issue of the 
 eldest son who was dead stood in 
 his place, to the exclusion of the 
 other sons (being the uncles of 
 such issue) ; 
 
 (5.) In. the year 1833, the lineal ances- 
 tors were as such rendered capa- 
 ble of being heirs ; 
 
 (6.) In the year 1833, the half-blood 
 of the purchaser became admis- 
 sible to succeed as heir.; and 
 
 (7.) In the year 1859, the widow of 
 the purchaser became admissible 
 to succeed as heir. 
 
 The following are the canons which at 
 present regulate the descent of lands in 
 England: — 
 
 (1.) The inheritance is to descend to 
 the lineal descendants of the 
 purchaser in injmibwm (see title 
 Pttechaser) ; 
 
 (3.) And to the male issue in prefer- 
 ence to females ; 
 
 (3.) And to the eldest male issue in 
 exclusion of the others (see title 
 Peimoobniturb) ; but if there 
 are no male issue, then to the 
 female issue altogether (see title 
 
 COPABCBNBRS) ; 
 
 (4.) Lineal descendants in inflnitmn are 
 to represent their ancestor (see 
 title Representation) ; 
 
 (S.) Failing lineal descendants of the 
 purchaser, the inheritance is to 
 go to the nearest lineal ancestor, 
 the father succeeding before the 
 brother or sister of the purchaser, 
 and every more remote ancestor 
 succeeding before his issue other 
 than any less remote ancestor or 
 ancestors, and his or their issue ; 
 
 (6.) In the application of the 5th 
 canon, the succession is to be 
 
112 
 
 DB SON TORT DEMESNE.— PBTINUE. 
 
 -{Oontirmed.') 
 
 according to the followmg 
 order: 
 (as.) The father and all male paternal 
 ancestors and their descend- 
 ants in mfln/itfum; 
 Q>.) AH the female paternal ancestors 
 
 and their heirs ; 
 (fi.) The mother and all male mater- 
 nal _ ancestors, and her and 
 their descendants in imfini- 
 tmn; and 
 {d.) All the female maternal ances- 
 tors and their heirs ; 
 (7.) The half-blood of the purchaser 
 shall inherit: 
 {a.) Where the common ancestor is 
 a male, next after a kinsman 
 in the same degree of the 
 whole blood, and the issue 
 of such kinsman in injmi- 
 tum; and 
 (6.) Where the common ancestor is 
 a female, next after that 
 female ; 
 (8.) In the application . of the 6th 
 canon : 
 (a.) In the adraission of female pater- 
 nal ancestors, the mother of 
 the more remote male pater- 
 nal ancestor and her heirs 
 are to be preferred to the 
 mother of the less remote 
 and her heirs ; and 
 (5.) In the admission of female 
 maternal ancestors, the 
 mother of the more remote 
 male maternal ancestor and 
 her heirs are to be preferred 
 to the mother of the less 
 remote one and her heirs ; 
 (9.) Failing the discovery of an heir 
 after the application of all the 
 first eight canons, the land is to 
 descend to the heir of the per- 
 son last entitled, although he 
 was not the purchaser thereof ; 
 and such heirs will, of course, 
 have to be ascertained by the 
 renewed application of the first 
 eight canons, starting only from 
 a different point of departure, 
 or in propodlma. 
 For the rules of descent in the United 
 States, see Washburn on Real Property. 
 
 DESIGNS, COPYRIGHT IN : See title 
 
 COPYBIOHT. 
 
 DE SON TORT DEMESNE. These 
 are words which were commonly used in 
 the replication to a defendant's plea in an 
 
 [De Son Tort Demesne. — {Gontmued.') 
 action of trespass qvMre ckmsum f regit as 
 thus: — A. sues B., B.' pleads that he com- 
 mitted the alleged trespass by the com- 
 mand of X. ; A. replies that B. did it de 
 son tort demesne, sa/rn ceo que X. hd com- 
 mand modo etformd. Since the cases of 
 TreveUan v. Pyne (Balk. 107), and Ohcmr 
 hers V. Donaldson (11 East, 65), the al- 
 leged command has been traversable in 
 pleading; and by the 0. L. P. Act, 
 1852, s. 77, a plaintifE is at liberty to 
 traverse the whole of any plea or subse- 
 quent pleading of the defendant by a 
 eENBRAL denial (in the form " The plain- 
 tiff takes issue, &c.,") or admitting some 
 part or parts thereof to deny all the rest, 
 or to deny any one or more allegations ; 
 "SO that the plea d^e son tort demesne, semhle, 
 is now superfluous. 
 
 DETAINER. This word was used in 
 two kindred sensed; firstly, it signified the 
 forcibly keeping another out of possession 
 of lands or tenements, an injury which 
 was not. only of a ciTil nature, entitling 
 the dispossessed party to damages, but 
 also of a criminal nature, rendering the 
 dispossessor liable to a fine to the king 
 for his breach of the king's peace. Com- 
 pare in Roman law the Lex Jvliade Vi. 
 Secondly, it signified a writ which lay 
 against persons imprisoned in the Mar- 
 shalsea or the Fleet, and which was 
 directed to the marshal or warden (as the 
 case might be), and directed him to 
 detain the prisoner in his custody until he 
 should be lawfully discharged therefrom. 
 In this latter sense, detainer is become 
 obsolete, in consequence of the Debtor's 
 Act, 1869 (33 & 33 Vict. c. 63). 
 
 DETERMINATION. This word, as 
 used in Law, denotes the ending or ex- 
 piration of any estate or interest in prop- 
 erty, e. g., an estate during widowhood 
 determines upon re-marriage, and an 
 estate during minority upon attaining 
 twenty-one years of age, and so forth. 
 
 DETINUE. An action which lies for 
 the recovery of goods wrongfully detain- 
 ed by any one ; e. g., for a horse lent. The 
 judgment in this action is, that the plain- 
 tiS (when successful) do recover the arti- 
 cles or their value, together with the 
 damages and costs found by the verdict, 
 and tiie costs of increase {see title In- 
 crease; Costs OP). Prior to the C. L. 
 P. Act, 1854, the defendant had the 
 option either to pay the value or restore 
 the goods, but now, by s. 78 of that stat- 
 
DEVASTAVIT. — DILAPIDATIONS. 
 
 113 
 
 Detinue. — ( GonUnued.) 
 ute, sucli option belongs to the plaintiff, 
 ■who, upon application to the Court or a 
 judge, may (at the discretion of the 
 Court or judge) have execution for the 
 goods detained, enforcable by distress. 
 But Courts of Equity could always upon 
 bill filed, order the delivery up of chattels 
 improperly detained, e. g., deeds, court 
 rolls; also, old family pictures, horns, 
 snufE-boxes, &c. FeUs v. Bead, 3 Ves. 
 70. 
 
 DEVASTAVIT. In an action against 
 an executor or administrator, where the 
 plaintiff has obtained judgment that he 
 do recover his debt and costs out of the 
 assets of the testator (if any), and failing 
 these, do recover his costs out of the ex- 
 ecutor or administrator's own goods, the 
 usual writ of execution is a^. fa. de tonis 
 testatoris; but if the sheriff return to this 
 nulla hoTia testatoris nee propria, and a 
 devastcmt, the plaintiff may forthwith 
 upon the return sue out a Ji. fa. de bonis 
 propriis, or (at his election) an elegit or a 
 ca. sa. against the property or the person 
 of the executor or administrator, in as 
 full a manner as in an action against him 
 in his own right. A deeastavit is there- 
 fore strictly such a return by the sheriff ; 
 however, the word is commonly employed 
 in the general sense of wasting the goods 
 of the deceased, or in Equity in the sense 
 of a breach of trust or misappropriation 
 of the assets. 
 
 DE VENTRE INSPICIENDO. Where 
 a widow is suspected of feigning herself 
 with child, the heir may have a writ de 
 ventre inspidendo, to examine her womb 
 whether it be as feigned or not ; and in 
 case her womb be as feigned, the heir 
 may, until her delivery, keep her under 
 
 DEVISAVIT VEL NON. This was an 
 issue directed not unfrequently by the 
 Court of Chancery, to be tried before a 
 jury at Common Law ; and a like issue 
 . may be tried by that Court itself at the 
 present day in a proper case. The object 
 of the issue is to ascertain whether or not 
 certain properties are comprised within a 
 devise which appears prima fade not to 
 comprise them. A proper case for such 
 an issue was that of Ifewhirgh v. New- 
 hv/rgh, 5 Madd. 364. 
 
 DEVISE. This word meant originally 
 to divide or distribute property, but it is 
 now used exclusively to signify the giv- 
 ing of real estates by will, the testator 
 
 15 
 
 Devise. — ( OontArmed.) 
 
 being called the devisor, and the object 
 of his bounty the devisee. The word 
 "devise" is properly applicable to real 
 estate only, while the word " bequeath " 
 is properly apphcable to personal estate 
 only, and upon the strength of the word 
 "devise" alone, an intention has been 
 found to pass real property, which noth- 
 ing else m the will seemed to indicate ; 
 see Goan-d v. Roldemess, 30 Beav. 147. 
 
 DICTUM. Called also obiter dictum, 
 or "remark by the way," is a remark 
 more or less casual dropping from a judge 
 with respect to the law in matters like 
 that at the time before him. 
 
 * DIEM CLAUSIT EXTREMUM. A 
 
 writ which lay on the death of a tenant 
 in capite, to ascertain the lands of which 
 he died seized and reclaim them into the 
 hands of the king. Fitz. Nat. Brev. 
 251 K. A writ issuing after the death of 
 a debtor of the king, directing an inquiry 
 into the property of which he died pos- 
 sessed, with a view to procuring satisfac- 
 tion of the king's debt. 4 Steph. Com. 
 47, 48. 
 
 DIES NON JURIDICUS. A day on 
 
 which the Courts, for reasons of religion, 
 do not sit ; e. g., Good Friday, Sunday and 
 the like. In Roman law it is called dies 
 nefastus. The days on which the Courts 
 may sit are called dies juridid, and in 
 Roman Law are called dies fotsti. Vaca- 
 tions are non-court days for a very differ- 
 ent reason, namely, the health of the 
 judges, counselors and officers. 
 
 DIET. A legislative assembly; e. g., 
 the Diet of Frankfort. 
 
 DIEU ET MON DROIT ("God and 
 my right.") This is the motto of the 
 royal family, and is said to have been first 
 used by Richard I. It signifies that the 
 sovereignty is subject only to the divine 
 and not to any human law. But it is no 
 
 Eretext either for absolutism on the one 
 and, or for the subjection of the State 
 to the Church on the other. 
 
 DIGNITIES. These are _ titles of 
 honor; and having been originally an- 
 nexed to land, they are considered as real 
 property. 1 Cm. 55. 
 
 DILAPIDATIONS. This word denotes 
 generally letting a house get into bad 
 repair, and is applicable generally to all 
 tenants who are under a covenant to repair 
 (see title Waste). But it is more pecu- 
 
114 
 
 DILATOET PLEAS.— DISCOVERT. 
 
 Dilapidations. — {OonUnued.) 
 liarly applicable to the bad repair of 
 ecclesiastical residences, the Ecclesiasti- 
 cal Law enabling a succeeding rector to 
 bring an action for dilapidations against 
 the executor or administrator of his pre- 
 decessor, or (if he should be living) against 
 the predecessor himself. 
 
 DILATOBT PLEAS : See title Abate- 
 ment, Pleas in. 
 
 * DILIGENCE. An amount of care, 
 the absence of which is negligence. Story 
 BaU. §§ 11, 16. In Scotch Law, process 
 by which persons, lands or goods are 
 seized in execution or in security of debt. 
 Ersk. Inst. 3, 11, s. 1 ; Bell Diet. Process 
 for enforcing attendance of witnesses or 
 the production of writings. Burr. Diet. 
 
 ♦DIMINUTION OP THE BECOBD. 
 
 Incompleteness pf the record of a case 
 sent fjfcm a subordinate to a superior 
 court, which may be rectified by a writ of 
 certiorari. Tidd Pract. 1109. 
 
 DIRECTING THE JUET : See title 
 
 JURT. 
 
 DISABILITY. This means any inca- 
 pacity either of acquiring or of trans- 
 mitting a right, or of resisting a wrong. 
 Such disability may arise either from the 
 act of the party, or from the act of his 
 ancestor, or from the act of law, or from 
 the act of God. (1.) Prom the act of the 
 party, — as where, after having agreed 
 upon the surrender of an old lease to 
 grant a new one, he grants the reversion 
 to another, whereby he incapacitates him- 
 self to grant the new lease; (2.) Prom 
 the act of the ancestor, — as where he was 
 attainted or convicted of treason or fel- 
 ony, whereby formerly he rendered his 
 children incapable of inheriting; (3.) 
 Prom the act of law, — as where (prior to 
 1870) he was an alien bom, whereby, or 
 in consequence thereof, the law struck 
 him with a general incapacity to hold 
 lands; and (4.) Prom the act of God, — 
 as where he is a lunatic or idiot, and in- 
 capable therefore generally of contract- 
 ing. 
 
 DISBAB. To deprive a barrister per- 
 manently of the privUeges of his position. 
 It is analogous to striking an attorney ofi 
 the rolls. Being an extreme measure, it 
 is more common to suspend than to dis- 
 bar. 
 
 DISCLAIMEB: 5«« Coitvetanobs. 
 
 DISCONTINUANCE. This phrase is 
 applied to the cessation of an estate or of 
 an action. As applied (1.) to the cessa- 
 tion of an estate, it arises when he who 
 hath an estate tail maketh a larger estate 
 of the land than by law he is entitled to 
 do, in which case the. estate is good, but 
 so far only as his estate extends who 
 made it, «. g., if tenant in tail makes a 
 feoffment in fee simple, or for the life of 
 the feoffee, or in tail — all which are be- 
 yond his power to make — and if the 
 feoffee having entered (as lawfully he 
 may) during the life of the feoffor, re- 
 tains the possession after the death of the 
 latter, the injury which he does by such 
 retention is a discontinuance of the legal 
 estate of the heir in tail. 
 
 As applied (3.) to the cessation of an 
 action, it is somewhat similar to a non- 
 suit ; for when a plaintiff makes a break 
 in the proceedings by not continuing the 
 process regularly from day to day or from 
 time to time as he ought to do, the defend- 
 ant is no longer bound to attend, but the 
 suit is discontinued, and the plaintiff 
 must pay the defendant his costs before 
 he recommences his action. However, by 
 rule 31 T.T. 1853, "no entry or continu- 
 ances by way of imparlance, curia adim- 
 ari vuUjidcecomes non misit breve, or other- 
 wise, shall be made on any record or roll 
 whatever, or in the pleadings." On the 
 other hand , if the plaintiff finds that he 
 has misconceived his action, or that for 
 some defect in the pleadings, or other 
 reason, he is not able to maintain it, he 
 may either, upon apphcation at the 
 proper office of the Court, or upon mo- 
 tion to the Court itself, obtain a rule for 
 leave to discontinue upon the terms of 
 paying the defendant his costs. After a 
 discontinuance, a plaintiff may commence 
 a new action for the same cause; and 
 therefore the Court, in many cases of hard 
 actions, refuses leave to discontinue 
 (SoiccJwr V. La/wson, Hardw. 360) ; as it 
 also does after a peremptory rule for judg- 
 ment on demurrer. Turner v. Twmer, 1 
 Salk. 179. 
 
 * DISCONTINUOUS S E EV I T U D E. 
 
 An easement made up of repeated acts 
 instead of one continuous act, as right of 
 way, drawing water. Bouv. Diet. 
 
 DISCOVEBT. By the Common Law, 
 neither party to an action was required to 
 make discovery to the other of any doc- 
 uments or circumstances which might be 
 useful in evidence ; and an application re- 
 quired to be made to the Court of Chan- 
 
DISENTAILING ASSURANCE. — DISSEIZIN. 
 
 115 
 
 Discovery. — {OonUniied.) 
 eery, which woiild in certain cases, upon 
 a Bill of Discovert being filed, decree 
 that the defendant thereto should make 
 a particular discovery .to the plaintiff. 
 But, at the present day, bills of discov- 
 ery are become unnecessary ; for, in the 
 Court of Chancery, discovery of docu- 
 ments may be obtained under the Juris- 
 diction Act, 1853, by summons at Cham- 
 bers ; and, under the stats. 14 & 15 Vict, 
 c. 99, and 17 and 18 Vict. c. 125, discov- 
 ery may now also be had at law. There 
 are also numerous particular provisions in 
 those statutes regarding (fiscovery by 
 means of interrogatories. 
 
 See title Intbbrogatokies. 
 
 DISENTAILING ASSURANCE. By 
 
 the Stat. 3 & 4 WiU. 4, c. 74, which abol- 
 ished the ancient Fines and Recoveries, 
 whereby formerly (amongst other things) 
 an estate tail might be barred, there was 
 substituted a new assurance, called a dis- 
 entailing assurance, which was calculated 
 to produce the same eflfect. By this as- 
 surance, which is in the form of a simple 
 indenture, but which requii-es to be en- 
 rolled within six months of its execution 
 in the Court of Chancery, the tenant in 
 tail (with or without the consent of the 
 protector, see that title, when there is any 
 such) conveys the lands to a middle man 
 (or man of straw), to the use of himself, 
 the tenant in tall, his heirs and assigns, 
 by which means, and under the Statute 
 of Uses, he instantly emerges a legal ten- 
 ant in fee simple. It is usual (but not 
 apparently necessary) to add, that the ob- 
 ject of the assurance is to dock and bar 
 the entail and all remainders, &c. Where 
 there is a protector, and he refuses to con- 
 cur, the disentailing deed has the effect of 
 a fine only, but otherwise it has the effect 
 of a cow/mon recovery {see these two titles). 
 
 DISFRANCHISE. To deprive of cer- 
 tain privileges, freedoms, or franchises. 
 See title Enfranchise, which is the 
 opposite. 
 
 DISHONOR, NOTICE OF : See title 
 Bill of Exchange. 
 
 DISPAUPER. When a poor person 
 has been admitted to sue in forma pcm- 
 peris, and through the subsequent acqui- 
 sition of property or any other sufficient 
 cause it is proper that he should be de- 
 f)rived of the privilege of suing in that 
 quality, then he is deprived of the privi- 
 lege accordingly; in other words, he is 
 
 DISPENSING POWER. The early 
 English sovereigns, in imitation of the 
 Popes of Rome, had assumed to dispense 
 with the laws by issuing proclamations 
 and making grants ' ' non obstante any par- 
 ticular law to the contrary." This as- 
 sumption was odious to the Common Law. 
 
 The practice, notwithstanding, con- 
 tinued to be exercised, and in some reigns 
 more extensively than in others. In par- 
 ticular the exercise of the power by Rich- 
 ard II. is said to have been such as to set 
 aside the very principles of the statutes 
 dispensed from ; but the more usual prac- 
 tice was to dispense in particular cases 
 only of an exceptional character. It was 
 the opinion of Lord Coke (Case of Mm 
 Obstante, 13 Rep. 30), that no Act of Par- 
 liament could bind the Iring from any 
 prerogative that was inseparable from his 
 person, so as that he might not dispense 
 with the statute by non obstante. But the 
 true nature and limits of the king's right 
 of dispensing with statutes was not fully 
 understood imtil the case of TJuimas v. 
 Sowdl, decided in 1666, and reported in 
 Vaughan. The judgment given was to 
 the efifect that the king was able to dis- 
 pense in some cases and not in others, and 
 that the distinction between the two clas- 
 ses of cases did not depend (as had at 
 one time been said) upon whether the act 
 prohibited by the statute was malum in 
 se or Ttiahtm, prohibiMm only, but that it 
 depended upon whether the king himself 
 was the only person affected by it or 
 whether his subjects also were affected by 
 it. He could dispense with his own priv-- 
 ileges, but not with his subjects' rights. 
 
 In the recent Case of Eton OoUege, 1815, 
 it was held that a d^pensation of Eliza- 
 beth granted to the fellows of Eton Col- 
 lege to hold ecclesiastical preferment to- 
 gether with their fellowships, notwith- 
 standing a statute of Henry VI. to the 
 contrary, was a legitimate exercise of the 
 dispensing power. 
 
 DISSEIZIN. When one man invades 
 the possession of another, and by force or 
 surprise turns him out of the occupation of 
 his lands, this is termed a disseizin, being 
 a deprivation of that actual seizin or cor- 
 poral possession of the freehold which the 
 tenant before enjoyed. In other words, a 
 disseizin is said to be when one enters 
 intending to usurp the possession, and to 
 oust another from the freehold. There- 
 fore gucm-endwm est a judice qm animo he 
 entered. To constitute an entry a dis- 
 seizin, there must be an ouster of the 
 freehold, either, first, by taking the 
 
116 
 
 DISSENTERS. —DISTRINGAS. 
 
 Disseizin. — ( ConUrmed.) 
 profits ; or, secondly, by claiming the in- 
 heritance (1 Cruise, 60). He who so en- 
 ters and puts a party out of possession of 
 the freehold is termed the disseizor. Litt. 
 379. 
 
 DISSENTEKS. The stat. 1 WiU. & 
 M. sess. 1, c. 18 (Toleration Act), s. 4, 
 exempted persons taking the oaths and 
 subscribing the declaration therein men- 
 tioned from aU prosecutions in the Eccle- 
 siastical Courts for nonconformity; and 
 it was held in Barnes v. Shore (8 Q. B. 
 640), that this provision extended not 
 only to lay persons, but to clergymen, 
 who, after being ordained, dissented from 
 the Church. For disturbing a Dissent- 
 ing congregation each offender is liable 
 to a penalty of £20. A Jewish synagogue 
 is not at the present day an illegal estab- 
 lishment. Israel v. Simrrums, 3 Stark. 356. 
 
 Dissenters, in respect of their religious 
 worship have as fuU a right as Church- 
 men to the protection of the Courts (Bex 
 V. Wroughton, 3 Burr. 1683) ; and a man- 
 damus v?ill lie to register and certify a 
 dissenting meeting-house {Bex v. Defrby 
 [Justices], 4 Burr. 1991); also to compel 
 the trustees of a meeting-house to admit 
 a Dissenting teacher. Bex v. BarJeer, 3 
 Burr. 1365. 
 
 DISSOLUTION: See titles Parlia- 
 ment; Partnership. 
 
 DISTANCE. Is to be measured in a 
 straight line as the crow flies (Zahe v. 
 Butler, 6 El. & Bl. 93). And where the 
 trustees of a turnpike road were prohib- 
 ited by a local Act of Parliament from 
 erecting any toll-gate within three miles 
 of Bargate in the town of Southampton, 
 it was held that the distance was to be 
 measured by a straight line and not by 
 the road (JeweU v. Stead, 6 El. & Bl. 350). 
 See, also, Duignan v. Walher, 1 Johns. 
 446 (an injunction case). 
 
 * DISTRAIN. To take and keep the 
 property of another as a pledge for the 
 payment of some debt or the performance 
 of some service. 3 Bl. Com. 331. 
 
 DISTRESS. A power of distress may 
 belong to a landlord either in virtue of 
 express words conferring it, or in virtue 
 of the general law. In the latter cage, 
 the following are the requisites to the 
 power of distress : 
 
 (1.) There must be an actual demise, 
 and not a mere agreement for a 
 lease ; 
 
 (3.) The rent must be certain; 
 
 Distress. — ( GonUnued.) 
 
 (3.) The rent must be in arrear, but in 
 the case of rents payable in ad- 
 vance, these are held to be in 
 arrear instantly upon the com- 
 mencement of the period for 
 which they are payable (Buckley 
 V. Taylor, 2 T. R. 600) ; and 
 
 (4.) The distrainor must have the re- 
 version in him, either an actual 
 reversion or (at the least) a re- 
 version by estoppel. Morton v. 
 Woods, L. R. 3 Q. B. 658. 
 
 DISTRESS INFINITE. In the case of 
 a distress for fealty or suit of Court, no 
 distress can be unreasonable, immoder- 
 ate, or too large ; for this is the only rem- 
 edy to which the party aggrieved is en- 
 titled, and therefore it ought to be such 
 as is sufficiently compulsory ; and let it 
 be of what value it may, there is no harm 
 done, especially as it cannot be sold or 
 made away with, but must be restored 
 immediately on satisfaction made. A 
 distress of this nature, that has no bounds 
 vsdth regard to its quantity, and which 
 may be repeated from time to time, until 
 the stubbornness of the party is con- 
 quered, is called a distress infinite. For 
 some other purposes, as in summoning 
 jurors and the like, a distress infinite 
 used also to be allowed. 
 
 ♦DISTRIBUTION. This word is 
 commonly used to denote the division of 
 the effects of an intestate among those 
 entitled to shares thereof. 
 
 DISTRINGAS. A writ of distringas 
 may be put upon stock or moneys in the 
 Bank of England, and its eflect is exactly 
 that of a stop-order on a fund in Chan- 
 cery (see title Stop-order). Formerly a 
 vrait bearing this name used to be directed 
 to the sherifE, commanding him to dis- 
 train upon the goods and chattels of a 
 defendant, in order to compel his ap- 
 pearance to a writ of summons. This 
 distringas, however, was' only granted 
 when the person requiring the same had 
 shown by affidavit to the satisfaction of 
 the Court out of which the writ of sum- 
 mons issued, that the defendant had not 
 been personally served with the writ of 
 summons, and had not, according to the 
 exigency thereof, appeared to the action, 
 and could not be compelled so to do 
 without some more efficacious process (1 
 Arch. Prac. 203). The writ in this sec- 
 ond use of it was abolished by the C. L. 
 P. Act, 1852. 
 
DISTRMGA8 JURAT0RB8. — DOLE. 
 
 117 
 
 DISTRINGAS JURATORES. A writ 
 directed to the aherifl peremptorily com- 
 manding Mm to compel the appearance 
 of jurors in Court on a certain day therein 
 appointed. This writ also has been abol- 
 ished by the C. L. P. Act, 1852. 1 Arch. 
 Prac. 365. 
 
 DISTURBANCE. A species of injury 
 to real property, commonly consisting of 
 a wrong done to some incorporeal here- 
 ditament by hindering or disquieting the 
 owners in their regular and lawful enjoy- 
 ment of it. There were five principal 
 varieties of this injury, viz. : (1.) Disturb- 
 ance of franchise; (3.)' Disturbance of 
 common ; (3.) Disturbance of ways ; (4.) 
 Disturbance of tenure ; and (5.) Disturb- 
 ance of patronage. Finch. 187. 
 
 DIVORCE (divortium). The separa- 
 tion of husband arid wife by the operation 
 of the law. There were two kinds of 
 divorce, the one total, the other partial ; 
 the one a vinculo matrimonii, the other 
 merely d mensd et ihoro. The total di- 
 vorce, a mneulo matn-vmonii, used to be 
 only for some canonical cause of impedi- 
 ment existing before the marriage, e. jr., 
 consanguinity, and not for any impediment 
 that was supervenient, or arising after- 
 ward, as may be the case in affinity or cor- 
 poreal imbecility. In these cases of a total 
 divorce, the marriage used to be declared 
 null, as having been absolutely unlawful 
 ah initio ; and the parties were therefore 
 separated 'pro salute animarum, ; for which 
 reason no such divorce could be obtained 
 but during the life of the parties. In 
 these divorces the wife, it was said, should 
 receive all again that she brought with 
 her, because the nullity of the marriage 
 arose through some impediment, and the 
 goods, of the wife were given for her ad- 
 vancement in marriage, which was now 
 found never to have existed. (Dyer, 62.) 
 But at the present day a divorce o vinr 
 culo matrimonii may be obtained for a 
 cause that is supervenient; thus, a hus- 
 band may obtain it on account of his 
 wife's adultery, and a wife may obtain it 
 on account of her husband's adultery, and 
 coupled with cruelty or desertion on his 
 part; and such divorces are not unfre- 
 quently granted under the provisions of 
 the Act 31 & 23 Vict. c. 77, without the 
 necessity (which for some time existed) 
 of obtaining a special statute for the 
 purpose. TT&is divorce enables the par- 
 ties to marry again, and to do all other 
 acts as if they had never been married. 
 Divorce a m,eiisdet thoro used to be granted 
 
 Divorce. — ( Oontinued.) 
 when the marriage was just and lawful ah 
 initio, and therefore the law was tender 
 of dissolving it ; but for some superven- 
 ient cause it might become improper or 
 impossible for the parties to live together, 
 e. g., in case of intolerable ill-temper, or 
 adultery in either of the parties. But at 
 the present day there is either a total 
 divorce & vincnih matrim/mii for the causes 
 mentioned above, or else a judicial sepa- 
 ration for causes that are insufficient to 
 justify a total divorce, e. g., cruelty or 
 incompatibility of temper, being extreme. 
 Parties separated in this manner cannot 
 afterward marry again, until the one 
 party is dead. 
 
 See, also, title Alimony. 
 
 * DOCKET. A brief record of judicial 
 proceedings. 
 
 DOCKET, STRIKING A. A phrase 
 that was formerly used in the practice of 
 bankruptcy. It referred to the entry of 
 certain papers at the bankrupt office, pre- 
 liminary to the prosecution of the flat 
 against a trader who had become bank- 
 rupt. These papers consisted of the affi- 
 davit, the bond, and the petition of the 
 petitioning creditor ; and their object was 
 to obtain from the Lord Chancellor his 
 flat, authorizing the petitioner to pros- 
 ecute his complaint against the bank- 
 rupt, either in Her Majesty's Court of 
 Bankruptcy in London, or in one of 
 the district Courts of Bankruptcy in 
 the country. The affidavit had to be 
 left at the office of the Secretary of Bank- 
 rupts, who used to make an entry in the 
 "docket book," and this seems to have 
 been what was technically termed strik- 
 ing a docket. The bond formerly entered 
 into by the petitioner was by the statute 
 5 & 6 Vict. c. 123, no longer required ; 
 but upon the affidavit being left at the 
 office, the clerk prepared the petition, 
 annexed the affidavit to it, and thereupon 
 obtained the Lord Chancellor's fiat . The 
 modem equivalent seems to be putting 
 the petition in bankruptcy upon the files 
 of the Court, no flat of the Lord Chan- 
 cellor being now required in order to 
 prosecute the bankruptcy. Bee Bank- 
 ruptcy Act, 1869. 
 
 DOLE. This word is derived from the 
 Saxon dela/n, to divide, and denotes a 
 part or portion of a meadow which is 
 divided; and the word still retains the 
 meaning of divide, e. g., to dole out alms 
 is to divide or distribute alms. 
 
118 
 
 DOLI ESrCAPAX — DONATIO MORTIS CAUSA. 
 
 ' * DOLIINCAPAX. Incapable of dis- 
 tinguishing good from evil. A child 
 under fourteen is, ^»TOM/a(!i«, doUmcapax, 
 but may be shown to be doli ca/pax. (3 
 Bl. Com. 33. Bout. Diet.) A female 
 is sooner doli ca/pax than a male. Bract., 
 fol. 86, 6. 
 
 ♦DOLUS. Fraud or deceit. 
 
 DOME, or DOOM. This is literally a 
 judgment, and obtained at first a neutral 
 meaning; e. g.,va. the Black Book of 
 Hereford, fo. 46, this phrase occurs, — 
 "So help me God at his holy dome" — 
 meaning at the day of last judgment. 
 But the word has more recently acquired 
 the meaning of condem/naUon. 
 
 DOME-BOOE. A book of judgments 
 {dooms, domes). The book thus called 
 was compiled during the time of Alfred 
 the Grreat, and is said to have been extant 
 so late as the reign of Edward IV., after 
 which it was lost. It is generally assumed 
 to have contained the principal rules of 
 the Common Law (so far as these rules 
 were then developed), together with the 
 then penalties for misdemeanors, and the 
 then forms of judicial proceedings. 
 
 DOMESDAY-BOOK. The book thus 
 called was compiled in the reign and by 
 the direction of William I., commonly 
 called the Conqueror, and is one of the 
 many works of permanent utility of that 
 sovereign. It was in two volumes, and 
 contained the details of a great survey of 
 the kingdom, throughout all its counties, 
 five men in each county (called justices) 
 having been assigned in 1081 for the pur- 
 pose of collecting the necessary statistics, 
 and having completed their statement 
 thereof in 1086, when the whole returns 
 were thrown together and formed the two 
 volumes of Domesday-Book. 
 
 This work is an authority upon certain 
 points of real property law; e. g., upon 
 the question whether lands of copyhold 
 tenure are or are not of that peculiar 
 species of copyhold which is called 
 Andeni Demesne : see that title. 
 
 DOMICILE. Is the place at which a 
 person has his principal residence, and 
 that is generally construed to be the place 
 at which he usually keeps his wife and 
 family (or household gods, vMlar et pe- 
 nates). In the case of infants and married 
 women, their domicile is that of their 
 parents or husband. A domicile may be 
 either original or acquired. The original 
 domicile (domieiUwm originis) is that at 
 
 Domicile. — ( OonUrmed.) 
 which the parents of the person are domi- 
 ciled at the time of his birth, and usually 
 agi-ees (under English law) with his 
 nationality. To acquire another domi- 
 cile, the rule of law is that both the 
 amitms (or intention to acquire it) and the 
 faciMm (or actual acquisition of it) must 
 combine. Now the acquisition of a new 
 domicile is only complete when the former 
 domicile is definitely abandoned, and an 
 actual removal is made to the place of the 
 acquired domicile. But for the re-acqui- 
 sition of the original domicile, the defini- 
 tive abandonment of the acquired domi- 
 cile when followed up, or rather when 
 evidenced, by one step toward a return 
 to the original domicile, is sufficient. 
 
 The law of a man's domicile for the 
 time being (whether original or acquired) 
 determines all his personal capacities and 
 incapacities ; and to that extent it often 
 controls the operation of the Lex loci situs 
 (see that title), although not also the ope- 
 ration of the Lex loci rei sitm (see that 
 title). Further, the Lex Domicilii also 
 regulates the distribution of his personal 
 estate in case of his death intestate. See 
 Story on Conflict of Laws; "Westlake's 
 Private International Law. 
 
 DOMINANT TENEMENT. In the law 
 
 of easements, the tenement whose owner 
 as such enjoys an easement over an ad- 
 joining tenement is called by his name. 
 See title Easements. 
 
 DONATION. In French Law, every do- 
 nation in order to be complete must be 
 assented to by the donee, and if a married 
 woman, with the consent of her husband. 
 Immediately upon such assent being 
 given, the gift is complete (just as in 
 Koman Law) without any traditio; for a 
 necessity is laid on the donor or Ms heirs 
 to make troMUo. In this respect, the 
 English Law differs from both, holding 
 that not only is assent on the part of the 
 donee necessary, but also delivery of the 
 thing given. In French Law such gifts 
 are irrevocable, excepting for one of three 
 causes, — (1.) The non-performance of 
 conditions when there are any such ; (2.) 
 The ingratitude of the donee ; or (3.) The 
 subsequent birth of oflEspring. 
 
 DONATIO MORTIS CAUSA. Is a 
 
 gift made in contemplation of death, and 
 taking absolute effect upon the death. 
 The great essential to it is a delivery 
 actual or constructive of the thing given; 
 and provided that requisite is observed, 
 
DORMANT PARTNER. — DOWRY. 
 
 119 
 
 Donatio Mortis Causa. — {Oontirmed.') 
 there is nothing which may not be the 
 subject of such a gift, excepting a cheque 
 (inasmuch as the authority to pay that is 
 revoked upon the death), and exceptiag 
 perhaps real property (inasmuch as the 
 law prescribes particular formalities for 
 the conveyance of such). There may, 
 however, be a donatio mortis causd of a 
 mortgage debt charged on real property ; 
 and such gift is made by a delivery of the 
 mortgage deeds. 
 
 DORMANT PARTNER. A sleeping 
 partner. 
 
 See title Pabtnbbship. 
 
 DOTE ASSIttNANDA. The writ thus 
 described lay for a widow whose husband 
 held of the king in chief, and was issued 
 to the escheators upon the widow's mak- 
 ing oath in Chancery not to marry with- 
 out the king's leave. Sueh widows were 
 called the king's widows. 
 
 DOTE UNDE NIHIL HABET. The 
 
 writ thus described lay for a widow 
 against a purchaser of the lands from her 
 husband. 
 
 DOUBLE COSTS. Under the statute 
 5 & 6 Vict. c. 97, all previous Acts of 
 Parliament (whether pubUo or private) 
 which awarded double or treble costs are 
 repealed, and party and party costs only, 
 or reasonable costs upon taxation only, 
 are to be given, when given at all. 
 
 DOUBLE PLEA. The plea thus de- 
 scribed is faulty on the ground of du- 
 plicity. Duplicity in pleading is a fault 
 which may arise either in the declaration 
 or in any subsequent pleading, and signi- 
 fies the allegation of several d&stinct mat- 
 ters in support of, or in answer to, a single 
 demand, any one of which matters would 
 be sufficient of itself to support the de- 
 mand, or to answer it. Leave to plead 
 several pleas may, however, be obtained 
 under the 0. L. P. Act, 1853, s. 81. The 
 fault of duplicity used formerly to be 
 taken advantage of by special demurrer ; 
 but since the C. L. P. Act, 1853, it is 
 now to be met by application in a sum- 
 mai-y way under s. 53 of that Act, to 
 amend or strike out the faulty pleading. 
 
 DOWAGER. A widow who is en- 
 dowed, or who has a jointure in lieu of 
 dower, is thus described ; but in common 
 practice the word is confined to the 
 widows of princes, dukes, and other 
 like persons only. 
 
 DOWER. The right of a widow 
 during the residue of her life to one- 
 third part of the lands late of her de- 
 ceased husband. 
 
 (1.)' In the case of widows who were 
 married before the 1st of January, 1834, 
 the right to dower attached to all lands 
 of which the husband was solely seized 
 for an estate of inheritance, and having 
 once attached, the right was not capable 
 of being barred or defeated excepting by 
 a,Jine in which the wife joined. In the 
 absence of a fine, it attached upon the 
 lands even when m the hands of a pur- 
 chaser. It was not necessary that she 
 should have any issue actually bom. To 
 exclude her dower from attaching at all 
 was therefore the great object of every 
 purchaser of land; and the two methods 
 were in common use, called respectively 
 the old method and the modem method 
 of barring dower. Under the old method, 
 the lands were conveyed to the grantee 
 and his heirs, to the use of the grantee 
 and a trustee and the heirs of the grantee, 
 with a declaration that the estate of the 
 trustee was in trust only for the grantee 
 and his heirs. Under the modem method, 
 a general power of appointment was in 
 the first place given to the grantee, and 
 subject thereto to the grantee for his life, 
 with remainder to a trustee and his heirs 
 during the purchaser's life, with an ulti- 
 mate remainder to the heirs and assigns 
 of the purchaser for over. See 4 Kent 
 Com. 85 ; Waahb. Real Prop. 146. 
 
 (3.) In the case of widows who have 
 been married since the 1st of January, 
 1834, the right of dower attaches to all 
 lands of wmch the husband is solely 
 seized, or even equitably possessed, for 
 an estate of inheritance ; but although it 
 may have once attached, the right is of 
 the most fragile sort, being defeated by 
 any declaration in the will of the husband, 
 or by his devise of the lands, or by his 
 alienation of them during his life, and 
 even, pro tanto, by his debts. And it is 
 not infrequent to exclude it from attach- 
 ing even from the first, by inserting a 
 declaration to that effect in the deed of 
 grant, which is also now effectual to 
 defeat the widow's right. 
 
 DOWRY. This is the proper name for 
 the property which the wife brings to her 
 husband upon her marriage with him, 
 and, like the doa of Roman Law, is dis- 
 tinguished from the dower (or jointure in 
 lieu thereof), which corresponds to the 
 donatio propter nuptias of Roman Law. 
 
120 
 
 DROIT. — DYING WITHOUT ISSUE. 
 
 Dowry. — ( Oontimted.) 
 
 The wife's dowry is often called her 
 
 mwritagium in the old statutes. 
 
 DKOIT. This word signified right. 
 Droit-d/roit signifies, therefore, a right 
 upon a right, or a double right, and was 
 used to denote the title of one in whom 
 the right of possession and the right of 
 property were combined. The phrase 
 d/roitural was used of actions which were 
 brought upon a writ of right, as distin- 
 guished from that other group of actions 
 called possessory, which were brought 
 upon the fact of, or right to, the posses- 
 sion merely. 
 
 * DROIT D'AUBAINE. A rule by 
 which the sovereign or the State becomes 
 possessed of all the property of an alien 
 on his death. Treaties relinquishing this 
 right have been made between different 
 countries. 
 
 * DROIT DE BRIS. A right, formerly 
 claimed by the lords of the coast of cer- 
 tain parts of Prance, to shipwrecks, 
 including both the persons and property 
 cast away. It was abrogated in 1326. 
 Laws of Oleron xxvi, note. 
 
 DROITS CITILS. In French Law, 
 denote private rights, and the exercise of 
 which is independent of the status 
 {guaUte) of citizen. Foreigners enjoy 
 them, and the extent of that enjoyment 
 is determined by the principle of reci- 
 procity. Conversely, foreigners, although 
 not resident in France, may be sued on 
 contracts made by them in France, and 
 (unless possessed of sufficient real prop- 
 erty in France) are obliged to give 
 security. This provision meets such a 
 case, semMe, as that of Lerovix v. Brown, 
 13 C. B. 801. 
 
 DRUNKENNESS. Where total, is a 
 qualified incapacity for contracting ; and 
 where the drunkenness, being partial, is 
 caused by the other contracting party to 
 the fraud of the intoxicated person, then 
 it is also a ground for avoiding the con- 
 tract. And with reference to crime, 
 habitual drunkards are placed under 
 police supervision; and persons commit- 
 ting any crilne while in a state of tem- 
 porary drunkenness are not excused 
 thereby, but the circumstance at the very 
 most goes only in extenuation of the 
 ofiEense. 1 Hawk. c. 1, s. 6 ; Arch. Grim. 
 PI. 18. 
 
 DUCES TECUM. When a person has 
 in his possession any written instrument 
 
 Duces Tecum. — {Continued.) 
 which is capable of being used as evi- 
 dence at the trial or hearing, he is 
 brought before the Court upon a subpama 
 duces teeam, yrhich is a writ commanding 
 him to appear at the trial and hri/ng the 
 instrument vyifh M/m. And, notwith- 
 standing he may have some good reason 
 for not producing it, still he must obey 
 the writ in the first instance, not himself 
 judging, but leaving the Court to judge, 
 of the sufficiency of his reason for the 
 non-production. 
 
 DUCH¥ COURT OF LANCASTER: 
 
 See title Ohajncellor. 
 
 DUM FUIT INFRA aiTATEM. A 
 
 writ which lay for the recovery of lands 
 which a man had alienated while vmder 
 age. The writ lay also for the heir of 
 the infant alienor. 
 
 DUM FUIT IN prison!. A writ 
 which lay for the recovery of lands 
 which a man had alienated while in 
 prison or under duress. 
 
 DUM FUIT NON compos MENTIS. 
 
 A writ which lay for the recovery of 
 lands which a man had alienated while 
 insane. 
 
 DUPLICATE. Any copy or tran- 
 script of a deed or writing is called a 
 duplicate. 
 
 DURESS. Is of two kinds, being 
 either (1.) To the person; or (2.) To the 
 goods. The object, of placing either the 
 person or the goods under duress being 
 to extort money in excess of what (if 
 any thing) is rightfully owing, the law 
 holds that the excess so obtained may 
 be recovered back as money had and 
 received; also, that duress (like fraud) 
 vitiates all contracts made under its 
 influence. 
 
 DYING DECLARATIONS. In crimi- 
 nal law the dying declarations of the 
 injured person, being an adult, are ad- 
 missible, but being an infant of very 
 tender years are not admissible in evi- 
 dence, the reason for the exclusion of 
 the latter being that the clyld's mind is 
 not affected by the prospect of death, as 
 the adult's is supposed to be. See Greenl. 
 Ev., §§ 156-7. 
 
 DYING WITHOUT ISSUE. Formerly, 
 if lands were given to A., and if he died 
 without issue, then to B. in fee simple, A. 
 took an estate tail by implication, and B. 
 an estate in fee simple in remainder, 
 
E ALDERMAN. — EASEMENTS. 
 
 121 
 
 Dying without Issue. — (OonUmied.) 
 which, however, A. could defeat. But 
 now, under 1 Vict. c. 26, under the same 
 words, A. would take an estate in fee 
 simple defeasible in case he left no issue 
 when he died, and B. would take an 
 estate in fee simple that was executory 
 upon the same event, namely, A.'s leav- 
 ing no issue at the time of his, A.'s 
 death. 
 
 E. 
 
 EALDEBMAN. A title of oflBce in 
 Anglo-Saxon times, and holding in those 
 times the same position of eminency that 
 the title of Earl held during the Danish 
 period of occupancy. 
 
 The alderman of the present day, mean- 
 ing thereby the civic functionary so 
 described, is clearly a derivation ety- 
 mologically from the Anglo-Saxon Bal- 
 derman, but with the changes in society 
 which have intervened between the 
 Anglo-Saxon and the present times, the 
 eminency of the office has been comparer 
 tively depreciated, although the alder- 
 manlc gown is still a distinction to be 
 aspired at. 
 
 *EAR-GKASS. The grass which is 
 upon the land after the mowing until the 
 feast of the annunciation. Burr. Diet. 
 3 Leon. 313. 
 
 EAB-MABE. Personal property is 
 said to be ear-marked when it can be 
 identified, that is, distinguished from 
 other personal property of the same 
 nature. As a general rule, money has no 
 such distingiiishing feature, or ear-mark. 
 
 EARNEST. In Roman Law ^called 
 arrha, is something given as evidence of 
 the contract in Roman Law, and for the 
 purpose (in certain cases) of binding the 
 bargain in English Law. As the name 
 denotes, it is given to show that the pur- 
 chaser is in earnest, and not either trifling 
 or intending a deception. For this pur- 
 pose it is not infrequently exacted by 
 tradesmen from unknown customers giv- 
 ing them orders to make goods; it is 
 originally no part of the price of the 
 goods, and, therefore, is forfeited on the 
 customer's default; butif he duly accepts 
 and pays for the goods when made, then 
 the earnest counts as part of the price. 
 The giving of an earnest is one of the 
 three alternatives prescribed by the 
 Statute of Frauds, 39 Car. 3, c. 3, s. 17, 
 for the vahdity of a contract for the sale 
 of goods of £10 or upward. 
 
 Ifi 
 
 EASEMENTS. An easement is a priv- 
 ilege, 'without profit, which one neigh- 
 bor hath of another (Termes de la Ley, 
 384) ; or which the owner of one tenement 
 as such has over an adjoining tenement 
 or the owner thereof as such, the former 
 tenement being for this purpose called 
 the dominant tenement, and the latter 
 the servient tenement. 
 
 Easements are in derogation of natural 
 rights, in whatever way such rights may 
 have arisen, whether, 
 
 (1.) In respect of prieate or individual 
 ownership; or 
 
 (3.) In respect of pvbUc or common 
 occupation, 
 Thus, a private owner, subject only to 
 the maxim sic utere Puo ut aUenum non 
 Icedaa, has, in virtue purely of his owner- 
 ship, an absolute power of using, or right 
 to use, his property in whatever way he 
 pleases, to the full extent that his interest 
 therein extends, that is to say, to the fuU 
 extent of his liie-estate if he is a tenant 
 for life, and to an unhmited extent if he 
 is a tenant in fee simple or in fee tail 
 a,bsolute ; and an easement in or over that 
 estate or interest is, to the extent that the 
 easement extends, a restriction upon that 
 absolute right or power of user. And 
 again, public or common occupiers, e. g., 
 the residents in any city, town or village, 
 have, in virtue purely of their occu- 
 pation, certain natural rights analogous 
 to rights arising out of property, e. g., a 
 right to air or to water, to the extent 
 that their occupation-interest extends, 
 that is to say, to the extent of natural 
 existence; and an easement in or over 
 that occupation-interest is, to the extent 
 that the easement extends, a restriction 
 upon those natural rights. 
 
 Easements consist inpatiendo or in non 
 faxiendo, and not in fadendo; in other 
 words, easements extend thus far in their 
 general effect, namely, that they oblige 
 the private owner of the servient tene- 
 ment, not in his personal capacity, but 
 in virtue of that his connection with the 
 servient tenement, to permit, or in no 
 active sense impede, the owner or occupier 
 of the dominant tenement as such in the 
 enjoyment of his easement over the ser- 
 vient tenement to the extent that such 
 easement may extend ; but they oblige no 
 further, e. g., they do not oblige the own- 
 er of the servient tenement as such in any 
 active sense to augment the measure of 
 the easement, or even to facilitate the 
 enjoyment of it, as, for example, by widen- 
 ing or clearing out a dam or water-course, 
 
122 
 
 EASEMENTS. 
 
 Easements.-- {OorMnued.) 
 
 scouring a sewer, and such like. Pomfret 
 
 Y. Bioroft, 1 Wms. Saund. 557. 
 
 Easements are of various kinds, being 
 either, 
 
 (1.) Easements of necessity ; or, 
 
 (3.) Easements of convenience. 
 An easement of necessity is one without 
 which one's neighbor or the owner of the 
 property adjoining could not pursue his 
 trade or enjoy his property at all, and not 
 merely with less readiness or comfort; 
 and with referepce to easements of that 
 kind, the law implies or assumes a grant 
 of them, and dispenses with the produc- 
 tion of the grant. An easement of con- 
 venience is one by which one's neighbor, 
 or the owner of the property adjoining, 
 pursues his trade or enjoys his property 
 in a readier or more comfortable way, 
 but which he might also do without, 
 although not so well. 
 
 An easement which is merely one of 
 convenience under certain circumstances 
 may, under certain other circumstances, 
 be one of necessity, or almost of neces- 
 sity. Thus, given the natural state of 
 land, the only easement of necessity is a 
 road or right of access to it of the sim- 
 plest character over the adjoining land 
 when it is surrounded by such latter 
 land, and there is no public highway 
 running to it; and under such a state 
 of circvmistances all other easements, 
 whether in the shape of ways, or in other 
 shape or shapes, are easements of conven- 
 ience merely. But given an artificial 
 state of land, e. g., land which has been 
 and is applied to manufacturing pro- 
 cesses, the easement of necessity in the 
 shape of a right of access to it under the 
 like circumstances as above continues to 
 exist ; but that easement, instead of being 
 now a way of the simplest character, is 
 enlarged into a wider way, for numerous 
 purposes other than the mere right of per- 
 sonal access, and although to the extent 
 of such enlargements of it, it would be 
 an easement of convenience and not of 
 necessity in the case of the natural state 
 of land, yet in the supposed artificial 
 state of the land, the easement is to its 
 full extent an easement of necessity, or 
 almost of necessity, and not of conven- 
 ience merely. And similarly, rights of 
 consuming water, rights of fouling water, 
 rights of fouling air, may under given 
 circumstances be easements of necessity, 
 although in the natural state of land 
 they would be easements of convenience 
 merely. And such being the wavering 
 
 Easements. — {Oontimted.) 
 character of the distinction between ease- 
 ments of necessity aild easements of con- 
 venience, it is useless to make that dis- 
 tinction, although a true one, the cardi- 
 nal division in an enumeration of the 
 varieties of easements, which are much 
 more usefully referred to the natural 
 rights of user, upon which they are re- 
 strictions ; and upon that principle they 
 may be enumerated generally as follows : 
 
 I. With reference to Air. Every pri- 
 vate owner and general occupier having a 
 natural right, recognized by the Common 
 Law of England, to ptjeitt of Are, the 
 easement relative to the purity of air is 
 the following one, namely: — 
 
 (1.) A right to pollute the air (Flight 
 V. Thomm, 10 A. & E. 590), to an extent 
 justified by the customary business of the 
 locality {Walter v. Selfe, 4 De G. & Sm. 
 315), but not further {8t. Helm's Smelting 
 Go. V. Tipping, 11 H. L. 0. 650); and it 
 makes no difference whether the party 
 complaining of the pollution comes to 
 the nuisance or not {Bliss v. Sail, 4Bing. 
 N. C. 183) ; at any rate where material 
 injury, as distinguished from mere per- 
 sonal discomfort, is the result of it. St. 
 Helen's Smelting Oo. v. Tipping, supra. 
 
 Again, no private owner or general oc- 
 cupier having a natural right recognized 
 by the Common Law of England to the 
 FKEB PASSAGE OF AiB, the cascments rel- 
 ative to the passage of air are the follow- 
 ing two, namely : — 
 
 (3.) A right to the free passage of air 
 {Traheim's Case, Godb. 383) ; but such a 
 right seems now to be discouraged by 
 the law. Webb v. Bird, 10 C. B. (N. S.) 268. 
 
 (3.). A right to send noise through the 
 air. Boshell v. Whiiwm^h, 19 W. B. 804. 
 
 n. With reference to Idght. No pri- 
 vate owner or general occupier having a 
 natural right recognized by the Common 
 Law of England to the fkeb passage of 
 LIGHT, the easement relative to the pas- 
 sage of light is the following one, 
 namely ; — 
 
 (4.) A right to the free passage of light 
 {Aid/red's Case, 6 Rep. 54), which right, if 
 it arise in virtue of the Prescription Act, 
 is an absolute and indefeasible right as 
 well for the present as for all possible 
 future purposes {Taies v. Jack, L. R. 1 Oh. 
 App. 305) ; but if it arise from express 
 grant, the right is limited to the ambunt 
 of light accustomed to pass at the time 
 of the grant {Yates y. Jacle, supra); and 
 if it arise from implied grant, as where 
 a person sells a house with windows 
 
EASEMENTS. 
 
 123 
 
 Easements. — ( Continued.) 
 overlooking land which he retains, the 
 right is limited in like manner as upon 
 an express grant. If, however, the ease- 
 ment is exceeded, that does not entitle 
 the servient owner to obstruct the free 
 passage of the accustomed light, although 
 he is unable without doing so to obstruct 
 the passage of the excess {Ta/pling v. 
 Jones, 11 H. L. C. 390); and the domi- 
 nant owner, in case the accustomed light 
 is obstructed, may in Eqmty have either 
 damages alone, in a few rare cases {Heath 
 V. Buoknall, L. R. 8 Eq. 1), or an injunc- 
 tion and damages both {Straight v. Bwrn, 
 L. R. 5 Ch. App. 166); and at Law he 
 may always have damages, and in some 
 cases an injunction also. See C. L. P. 
 Act, 1854, s. 79. 
 
 in. With reference to Water. Every 
 private owner or general occupier, being 
 a riparian owner or occupier, having cer- 
 tain natural rights recognized by the 
 Common Law of England in respect of 
 natural streams, whether constant or in- 
 termittent, of a known and definite 
 course, and not being artificial or under- 
 ground, that is to say, the three following 
 natural rights, namely : — 
 
 (a.) A right to the natubaii flow of 
 the water; 
 
 (J.) A right to the natural pdbitt of 
 the water ; and 
 
 (c.) A right to take the water for nat- 
 ural USE, and whether for the 
 entire or partial consumption of 
 the water taken ; — 
 
 The easements relative to those respect- 
 ive natural rights are the following two, 
 namely : — 
 
 (5.) A right to divert the water {Bealey 
 V. Shaw, 6 East, 209), including the right 
 to a water-course ; and also a right to pen 
 back the water ( Wright v. 3owa/rd, 1 Sim. 
 & S. 190) ; including the right to flood 
 another's land in penning back the water. 
 
 (6.) A right to pollute the water. Hall 
 V. Lund, 1 H. & C. 676 ; but see GtoUmnAd, 
 V. Tunbridge WeUs Improvement Oommis- 
 iionera, L. R. 1. Eq. 161 ; L. R. Ch. Ap. 349. 
 
 IV. With reference to Support. Evei-y 
 private owner and general occupier having 
 certain natural rights recognized by the 
 Common Law of England in respect of 
 the contiguous land, whether adjacent or 
 subjacent, that is to say, the two follow- 
 ing-natural rights, namely: — 
 
 (a.) A right to Adjacent"! suffloient 
 SUPPORT, and 7^}^^- ^^.^ 
 
 (5.) A right to SUBJACENT f ita natural 
 SUPPORT J state ;— 
 
 Easements. — ( OonUnued.) 
 
 The easements which are relative to 
 these respective natural rights are the fol- 
 lowing three, namely : — 
 
 (7.) A right of support from under- 
 ground water {Popplewell v. Hodhinson, 
 L. R. 4 Ex. 248) ; 
 
 (8.) A right of support for land built 
 upon, or for buildings {Hwnvphries v. 
 Brogdm, 13 Q. B. 749), or otherwise ren- 
 dered more liable to subside (Hams v. 
 Ryding, 5 M. & W. 71) ; and conversely 
 
 (9.) A right to cause a subsidence of 
 land. Ohaawich v. Trower, 6 Bing. N. 
 C. 1. 
 
 V. With reference to Ways. Every 
 private owner or general occupier having 
 an exclusive natural right of way rec- 
 ognized by the Common Law of England 
 over and throughout his private property, 
 or occupation ground, the easements rel- 
 ative to that natural right are the follow- 
 ing two, namely: — 
 
 (10.) A private right of way, being a 
 right of way in an adjoining private 
 owner, or in an adjoining general occu- 
 pier; and 
 
 (li.) A public right of way, being a 
 right of way in the king's subjects gen- 
 erally in respect of their general occupa- 
 tion of the country. 
 
 These two easements differing in this 
 respect, that while a public right of way, 
 wherever it exists, is unlimited in extent, 
 a private right of way, on the contrary, 
 may be either limited or unlimited in ex- 
 tent, as being either a footpath, a bridle- 
 path, a carriage way, a drift way, or any 
 other way. 
 
 Easements being considered odious in 
 law, because they are restrictions upon 
 the free use of property in others, no 
 other easements than those enumerated 
 have been established, the following at- 
 tempts to create new easements having 
 failed : — 
 
 (1.) A right of prospect (Aldred^s Case, 
 9 Rep. 58; Att.-Gen. v. Doitghty, 2 Ves. 
 453); 
 
 (2.) A right of view to a shop-window 
 {Smith -v. Owen, 85 L. J. [Ch.] 317); 
 
 (3.) A right of undisturbed privacy 
 {Twner v. Spomer, 30 L. J. [Ch.] 803; Re 
 Penny amd the South-Eastem Ry. Oo., 7 
 E. & B. 660) ; and 
 
 (4.) A right to the free passage of wind 
 to a windmill. Webb v. Bird, 10 C. B. 
 (N. 8.) 268. 
 
 The apparent easement in these four 
 cases, and in all such like cases, where 
 any such exists, is in the nature of a 
 
124 
 
 EASEMENTS. 
 
 Easements. — ( Continued.) 
 license only, particular or general, wMch 
 is personal to the licensor and not bind- 
 ing on Ms successors in the quasi servient 
 tenement. See title Licbnsb. 
 
 Easements must be proved either by 
 the production of the instrument which 
 creates them, or (in the case of its loss), 
 by prescription, vyhether at the Common 
 Law, or (but in certain cases only) under 
 statute. And those two modes of proof 
 are also the modes of the acquisition of 
 easements. The most usual instrument 
 whereby an easement is created is a deed 
 of grant, which again may either in so 
 many words expressly create the ease- 
 ment (in which case the easement exists 
 by reason of the express grant, and the 
 production of such grant is the proof of 
 its existence), or only impliedly create 
 the easement (in which case the easement 
 exists by reason of the implied grant, 
 and the proof of the existence of such 
 grant lies either in the production of an 
 express grant involving as a necessary in- 
 cident to it the impUed grant of the par- 
 ticular easement, and the withholding of 
 which easement would therefore be in 
 derogation of the express grant, or else 
 in the proof of circumstances rendering 
 the particular easement indispensable or 
 necessary to the beneficial enjoyment of 
 the land expressly granted). Also, the 
 instrument of the creation of the ease- 
 ment may be a will, an Act of Parlia- 
 ment, or a custom even ; but such modes 
 are not usually distinguished from a grant 
 by deed. 
 
 Again, the easement may arise by pre- 
 scription, and that, either 
 
 (1.) At the Common Law, that is to 
 say, upon proof of uninterrupted user, 
 . for twenty years {Mounmj v. lamay, 3 H. 
 & C. 486) which is considered as imply- 
 ing a grant, in the absence of contrary 
 evidence; or 
 
 (3.) Under the Prescription Act (3 & '3 
 Will. 4, c. 71), which, howiever, relates to 
 only a limited number of easements, that 
 is to say, the following : — 
 
 (a.) Any way or other easement ^usdem 
 generis (WM v. Bird, 13 C. B. 
 [N. S.] 368; 13 C. B. [N. S.] 
 841); 
 
 (J.) Any water-course ; 
 
 (e.) The use of any water; 
 
 {d.) Access of light; and 
 
 (e.) Use of light. 
 
 The statute has provided that for the 
 acquisition of any sort of way, or of any 
 water-course, or of the use of any water. 
 
 Easements. — ( OonUnvM.) 
 there shall be actual enjoyment thereof 
 without interruption for the full period 
 of twenty years , and if proof of such en- 
 joyment is produced, any adverse proof 
 purporting to show merely that the ease- 
 ment had its origin in respect of time on 
 this side of the reign of Eichard I., al- 
 though beyond the period of twenty 
 years, shall be excluded ; but any adverse 
 proof of a difiEerent eflFect is admissible, 
 unless in cases where proof of the actual 
 enjoyment of the easement without inter- 
 ruption for the fuU period of forty years 
 is produced, in which latter class of cases 
 the only adverse proof admissible is that 
 of some consent or agreement in writing 
 (under hand and seal, or under hand 
 only), expressly granting the right of en- 
 joyment (s. 3) ; and for the acquisition of 
 any access of light, or of any use of light, 
 there shall be actual enjoyment thereof 
 without interruption for the full period 
 of twenty years, and if proof of such en- 
 joyment is produced, the only adverse 
 proof admissible is that of some consent 
 or agreement in. writing (under hand and 
 seal, or under hand only), expressly grant- 
 ing the right of enjoyment (s. 3). 
 
 By the decision in Flight v. Thomas 
 (ll A. & E. 688; 8 CI. & F. 331), taken 
 in connection with the 4th section of the 
 Prescription Act, the actual enjoyment 
 for twenty years in the case of light is 
 practically reduced to nineteen years; 
 and the actual enjoyment for twenty 
 years, or for forty years, in the case 
 of any sort of way, or water-course, or 
 water, is also practically reduced to nine- 
 teen years or thirty-nine years, as the 
 case may be. In all cases where the Pre- 
 scription Act applies, the acquisition 
 under that act should be the ground of 
 claim [Ta/plmg v. Jems, 11 H. L. C. 390), 
 although it does not follow that the ac- 
 quisition by prescription at the Common 
 Law is therefore excluded, excepting per- 
 haps in the case of light, which depends 
 perhaps wholly on the statute {Truscott 
 V. Merchant Taylors Co., 11 Ex. 855; but 
 see LanfrancM v. MacJeeneie, L. R. 4 Eq. 
 431). Moreover, Under the Prescription 
 Act, the periods of twenty years and 
 forty years respectively are to be reck- 
 oned backward from suit or action bring- 
 ing the easements into dispute (s. 4); 
 and it has been determined that the ac- 
 tual enjoyment must therefore have con- 
 tinued to within one year at the very 
 longest from the commencement of the 
 suit or action (Parher v. Mitehell, 6 Ex. 
 
EASEMENTS. 
 
 125 
 
 Easements. — (GonUnmd.) 
 835). Where actual user before and after 
 a period of intermission is proved, the 
 user is taken to have been uninterrupted 
 or continuous {Garr v. Foster, 3 Q. B. 
 581). The 7th and the 8th sections of 
 the Act provide for the case of persons 
 under the disabilities therein specified of 
 disputing the easement during the period 
 of its adverse acquisition. In all other 
 respects the acquisition of an easement 
 under the Prescription Act is regulated 
 by the same principles as the acquisition 
 of an easement by prescription at Com- 
 mon Law. 
 
 The varieties of adverse proof (when 
 admissible) to the claim of an easement 
 by prescription are the following : 
 
 (1.) Proof of the legal impossibility of 
 the grant wHch is implied ; 
 
 (2.) Proof of the extinguishment of the 
 easement by unity of seizin or 
 otherwise ; 
 
 (3.) Proof of the improbability of the 
 grant; and 
 
 (4.) Proof of the inability of the servi- 
 ent owner to resist the user. 
 
 Thus, where the grant would have been 
 void by reason of some Act of Parliament 
 (Rochdale Canal Co. v. Badcliffe, 18 Q. B. 
 287), or where the servient owner was 
 legally incapable to make the grant 
 {WiiisMp V. Hudspeth, 10 Exch. 5), or 
 was ignorant of the user (Daniel v. North, 
 11 East, 370), e. g., in the case of an al- 
 leged right to support from buildings 
 (Solomon v. Vintners' Co., 13 Q. B. 739), 
 there is no easement. 
 
 In case the owner of the dominant ten- 
 ement is hindered in his enjoyment of the 
 easement, in other words, in the case of a 
 distAirbance of his easement, he has the 
 following remedies : 
 
 (1.) An action on the case at Law for 
 the disturbance, bringing damages for 
 the disturbances that are past, but not 
 for such as have been committed since 
 the commencement of the action, or are 
 yet to come, it being a rule of the Com- 
 mon Law that the damages must not be 
 for cause of action subsequent to the ac- 
 tion in which they are recovered (2 
 Saund. 174, a, b). But now under the 
 C. L. P. Act, 1854 (17 & 18 Vict. c. 125), 
 s.' 79, an injunction against future dis- 
 turbance may be obtained in the action. 
 
 (3.) A suit in Equity upon bill filed 
 stating the case and the damage sus- 
 tained, and praying damages and an in- 
 junction. Wood V. Sutcliffe, 31 L. J. 
 (Ch.) 355; Soamies v. Edge, Johns. 669; 
 
 Easements. — ( OonUmied. ) 
 
 and Chancery Amendment Act (21 & 22 
 
 Vict. c. 37), s. 3. 
 
 And such remedies he as well for the 
 continuance of a disturbance as for the 
 original creation of one, upon the anal- 
 ogy of the principle that every continu- 
 ing trespass is a fresh trespass. 
 
 (3.) TTie remedy by abatement of the 
 disturbance as a nuisance is also availa- 
 ble to the person entitled to the easement 
 (Sex V. JRoswell, 3 Salk. 459); but the 
 abatement generally involves a trespass 
 quare da/usum f regit (Arnold v. Jefftrson, 
 Holt, 498) ; and is for other reasons also 
 to be discouraged. Myne v. Qraham, 1 
 H. & C. 598. 
 
 For the maintenance of an action 
 for the disturbance of an easement, as 
 also of a natural right, it is essential that 
 actual damage should have been sus- 
 tained (Bono/mi v. BackhoiLse, 9 H. L. C. 
 508), unless where the disturbance 
 amounts to or involves a trespass, in which 
 latter case the law presumes the damage 
 (Smith V. Thackerah, L. R. 1 0. P. 564). 
 And where the disturbance may be re- 
 garded as an injury to the right of ease- 
 ment itself, and the repetition of which in- 
 jury would tend to destroy or prejudice 
 the right itself, that tendency is a suffi- 
 cient damage (Ha/rrop v. Hirst, L. R. 4 
 Ex. 43). But a mere possibility of dam- 
 age at some future period, unaccompa- 
 nied with any present damage, is insuf- 
 ficient to sustain the action. Jackson v. 
 Newcastle (Duke), 33 L. J. (Ch.) 698. 
 
 The right of action sometimes varies 
 according as the disturbance affects the 
 dominant occupier only, or the dominant 
 reversioner as well, it being sufficient in 
 the case of the latter that there should be 
 a reasonable probability of damage to his 
 reversion arising from the fact of the de- 
 nial of the right of easement generally 
 (Metropolitan Industrial Dwellings Associ- 
 ation V. Petch, 5 C. B. [N. S.] 504). For 
 example, an action for the pollution of air 
 can in general only be maintained by the 
 person in present occupation, and not by 
 the reversioner (Simpson v. Sa/uage, 1 C. 
 B. [N. S.] 347), that injury being neces- 
 sarily of a temporary nature. At the same 
 time, if the injury is likely in any case to 
 be of a permanent character, the rever- 
 sioner may take proceedings for its sup- 
 pression (Wilson V. Townsend, 1 Dr. & 
 8m. 334), e. g., for the locking of a gate. 
 Eidgill v. Moor, 9 a B. 364. 
 
 A defendant to an action for disturb- 
 ance may plead in justification that the 
 
126 
 
 EASTER TEBM. — EIGNE. 
 
 Easements. — ( ContimuM^ 
 plaintiff was exceeding tlie rightful en- 
 joyment of his easement, and that he, the 
 defendant, merely obstructed the plain- 
 tiff's encroachment; and this plea is 
 good, even although the defendant's ob- 
 struction of plaintifif 's encroachment has 
 obstructed also the plaintiff's lawful en- 
 joyment {GawhweU v. Bussell, 26 L. J. 
 [Ex.] 34), with the single exception of 
 light, as to which the plea would be bad 
 {Tabling v. Jones, 11 H. L. C. 390). And 
 it seems that when an easement of light 
 has been acquired under the Prescription 
 Act, there can be no encroachment, inas- 
 much as the user is for all purposes, 
 future as well as present {Yates v. Jcuik, 
 L. R. 1 Oh. Ap. 295), although where the 
 easement exists under an express grant 
 the user is measured by the words of the 
 grant. 
 
 Lastly, easements although once val- 
 idly existing may have become extin- 
 guished or suspended. Thus, in the 
 event of the dominant and servient tene- 
 ment becoming united in one owner who 
 is legally seized thereof, the easement as 
 such is necessarily either extinguished or 
 suspended upon the maxim nvM res sua ser^ 
 mt{SuryY. Pigott, Pop. 166). But in such 
 event, if the easement is of the quality 
 styled apparent and continuous, that is to 
 say, if the existence of the easement is 
 apparent to the eye, and those appear- 
 ances continue after the unity of owner- 
 ship, then it may be concluded from the 
 cases of SuffieUd ■*!. Brown (33 L. J. [Ch.] 
 349), and Grossley v. lAghtowler (L. R. 2 
 Ch. Ap. 486), that if the once dominant 
 tenement is sold, the easement revives 
 without any fresh creation by grant or 
 otherwise, and is taken to have been sus- 
 pended merely, but that if the once ser- 
 vient tenement is sold, the easement does 
 not revive without some fresh creation by 
 reservation or otherwise, and is taken to 
 have been extinguished; and the like 
 rule applies in the case of those rights or 
 quasi easements, being apparent and con- 
 tinuous, whieh the common owner has 
 exercised over the one portion of his land 
 for the benefit of the other portion of it, 
 where the two portions, being respect- 
 ively the quad servient and qiuisi domin- 
 ant lands, have never been the properties 
 of several owners. 
 
 Where an easement (like a natural 
 right) is suspended merely, it revives 
 (iflte a natural right) upon the . removal 
 of the cafiise of the suspension (Bower v. 
 EiU, 2 Bing. N. 0. 339); on the other 
 
 Easements. — ( Gontirmed.) 
 hand, where an easement (unlike a nat- 
 ural right) is extinguished altogether, it 
 does not revive merely upon the removal 
 of the cause of the extinguishment, but 
 requires in addition for its revival, or 
 rather re-establishment, a re-grant 
 thereof. Bower v. Hill, supra. 
 
 * EASTER TERM. One of the four 
 terms of court in England, beginning on 
 the 15th of April and ending on the 8th 
 of May each year. 
 
 EAT INDE SINE DIE. "When judg- 
 ment is given for the defendant, and the 
 cause is at an end, Jie may go thence with- 
 out a day, i. e., without any further ad- 
 journment and continuance of the cause : 
 in effect, therefore, these words are a 
 judgment that the king's writ command- 
 ing the defendant's attendance has now 
 been fully satisfied, and that his inno- 
 cence has been publicly established. 
 See, also, title Sine Die. 
 
 * EATES DROPPING. The oflense of 
 listening under walls, windows or the 
 eaves of a house to hear discourse and 
 thereupon to frame mischievous tales. 4 
 Bl. Com. 168. Burr. Diet. The penalty 
 is a fine and the giving of sureties for 
 good behavior. 
 
 ECCLESIASTICAL COMMISSION. 
 ERS. These are a body of men constitu- 
 ted under the stats. 3 & 4 Vict. c. 86, and 
 29 and 30 Vict. c. 18, for the general man- 
 agement and supervision of the estates of 
 the Church,being either episcopal or capit- 
 ular, and for the proper application of the 
 revenues or produce thereof in support 
 and extension of the Chureh. 
 
 * EFFIGY. To make an effigy of a 
 person vrith intent to ridicule him is a 
 libel. 2 Chitty Crim. Law, 866 ; Hawk. 
 PI. Cr. b. 1, c. 73, s. 2. Bouv. Diet. 
 
 EFFLUXION OF TIME. When this 
 phrase is used in leases, conveyances, and 
 other like deeds, or in agreements ex- 
 pressed in simple writing, it indicates the 
 conclusion or expiration of an agreed term 
 of years specified in the deed or writing, 
 such conclusion or expiration arising in 
 the natwral course of events, in contra- 
 distinction to the determination of the 
 term by the act of the parties, or by some 
 unexpected or unusual incident or other 
 sudden event. 
 
 EIGNE. This word is a corruption of 
 the French word a/isne or aine, meaning 
 
EIEE, OR BYRE. — ELECTION. 
 
 127 
 
 Eigne. — ( Continued.) 
 sldest. The phrase is usually found in 
 connection with bastard, and a iasta/rd 
 eignS is commonly used to describe a son 
 born before the intermarriage of his 
 parents, in contradiction to a mulier 
 puisne, who is the second or other son 
 born of the same parents subsequently to 
 their intermarriage. 
 
 EIKE, or EYRE. This word is a 
 French corruption of the Latin word iter, 
 and means a way. The word usually oc- 
 curs only in the phrase justiees in eyre, 
 called also juices itinerant, a body of 
 judges who were instituted for the first 
 time in 1176 by an act of the Parliament 
 held at Northampton in that year. Under 
 that Act the kingdom was divided into 
 six circuits, and these newly created 
 judges were commissioned to travel 
 through the various counties comprised 
 in the several circuits, and therein to ad- 
 minister justice upon writs so-called of 
 assize (see title Assize). It is from this 
 early institution that the present justices 
 of assise and nisi prvua are historically 
 derived. 
 
 See title Courts of Justice. 
 
 EJECTIONE CUSTODLiE. This 
 phrase, which is the Latin equivalent for 
 the 'EteaaYi. ejectment degan-de, was the title 
 of a writ wMch lay for a guardian when 
 turned out of any land of his ward during 
 the minority of the latter. 
 
 EJECTMENT. This is an action for 
 the recovery of land. The action origi- 
 nated as far back as the reign of Edward 
 m., and was then a species of personal 
 action brought to recover damages only 
 for the ouster. But toward the end of 
 the 15th century the possession, it was 
 decided, might be recovered by it. From 
 that time until the C. L. P. Act, 1852, 
 the action was incumbered to a very 
 large extent with fictions, being in the 
 form of 7)(?e d. Thomas v. BicJuvrd d. Boe, 
 the first-mentioned person, viz., Doe, 
 being the nominal plaintiff only; the 
 second-mentioned person, viz., Thomas, 
 the real plaintiff, and who was commonly 
 called the lessor of the plaintiff; the third- 
 mentioned person, viz.,Richard, being the 
 tenant in possession; and the fourth- 
 mentioned person, viz., Roe, being the 
 imaginary ejector, and who was com- 
 monly called the casual ejector. The 
 declaration was the first step in the action, 
 and was framed in trespass and ejectment 
 between Doe v. Boe; it was served upon 
 
 Ejectment. — ( OoniinvM.) 
 the tenant in possession, who or his land- 
 lord thereupon obtained a " consent rule" 
 of the Court to appear and defend the 
 action, admitting the fictitious lease, 
 entry, and ouster, and consenting to de- 
 fend the action upon thfe strength of his 
 Utle and nothing else. Thereafter the 
 question came on to be tried upon its 
 merits, and was in substance the follow- 
 ing : — ^Whether the lessor of the plaintiff, 
 on the day when he was alleged to have 
 made the lease to John Doe, and from 
 thence until the service of the declara- 
 tion, was entitled to the property in 
 question ; if the verdict was in the affirm- 
 ative, the plaintiff recovered; and if in 
 the negative, then the defendant remained 
 in possession, and also recovered his costs 
 of the action from the lessor of the plain- 
 tiff. A different mode of procedure pre- 
 vails at the present time in England, and 
 in many of the United States. Bouv. 
 Diet. Eng. Com. Law, Proc. Act, 1853, 
 Washb. on Real Property. 
 
 ELECTION. Is the name of a head of 
 Equity jurisprudence, which directs as 
 follows: — Where, by one and the same 
 instrument, property belonging to A. is 
 given away to B. without the consent of 
 A., and other property of the testator's or 
 settler's own is at the same time given to 
 A., without any express condition that A. 
 is only to take the latter property if he 
 consents to give up his own property to 
 B., then there is an implied condition to 
 that effect; nevertheless if A. will keep 
 his own property, he is only bound to 
 give up to B. an equivalent for it out of 
 the property of the testator or settlor 
 which is given to himself, and he may 
 thereafter keep the difference and also his 
 own property, compensation and not for- 
 feitnire being the rule in all cases of elec- 
 tion. 
 
 The question of election is sometimes 
 incumbered by part of the property given 
 being the subject of a special power of 
 appointment among children or other 
 limited classes of objects; but the rule 
 in these cases, although somewhat more 
 incumbered in its details, is in substance 
 the same, viz. : 
 
 (1.) When the intended appointees of 
 the property are also the persons entitled 
 in default, then in every such case : 
 
 (o.) If the testator gives them some 
 property of his own, and gives 
 away either the whole or part 
 of the appointment property 
 
128 
 
 ELECTIONS, COMMONS' EIGHT IN.— ELISORS. 
 
 Election. — {^Contmued.). 
 
 to other persons who are not 
 objects of the power at all, the 
 intended appointees are put 
 to their election {WMsfler 
 V. Waster, 3 Ves. Jun. 367); 
 but 
 (6.) If the testator gives them no prop- 
 erty of his own, under the like 
 circumstances, they are not put 
 to their election. Bristowe v. 
 W<m-de, 3 Ves. Jun. 336. 
 (3.) Where the intended appointees are 
 not also entitled in default, but some other 
 person or persons are entitled in default 
 of appointment, inasmuch as in this case, 
 clearly the donee of the power has the 
 intended appointees, and (although to a 
 less extent) the person or persons entitled 
 in default, under his entire control, 
 to give or not to give the property to 
 them: — ^ 
 
 (a.) The intended appointees cannot 
 complain wlvatever the donee of 
 the. power should do, and must 
 simply be thankful for what they 
 get; but 
 (6.) The person or persons entitled in 
 default have a right to say that, 
 an improper appointment being 
 no appointment at all, they are 
 entitled to all that part of the 
 property which is improperly ap- 
 pointed; and if the appointor 
 wants to shut them up from com- 
 plaining of and defeating his 
 improper appointment, he must 
 give them some property of his 
 own, "as a sop to pacify them;" 
 for otherwise they will not be 
 put to their election. But if he 
 does give them some property of 
 his own, they will be put to 
 their election, according to the 
 general rule. 
 
 ELECTIONS, COMMONS' EIGHT IN. 
 
 In the year 1604, the Commons delivered 
 to the King a declaration of their rights, 
 and which declaration (entitled "A Form 
 of Apology and Satisfaction") was to 
 the following eflect : — 
 
 "(1.) That the privileges and liberties 
 of the Commons are their right and their 
 inheritance no less than their very lands 
 and goods, and that the same privileges 
 and liberties are not given up by the cus- 
 tomary request made by the Commons 
 at the commencement of parliaments, 
 that they may enjoy their privileges and 
 liberties as in times past, for that such re- 
 
 Elections, Commons' Bight in. — ((7<m.) 
 quest is a mere act of courtesy on their 
 part; 
 
 " (3.) That their House is a Court of 
 Record, and that there is no Court in the 
 kingdom which can compare with the 
 High Court of Parliament; 
 
 "(8.) That the House of Commons is 
 the sole proper judge of election matters; 
 and 
 
 "(4.) That the power of the High 
 Court of Parliament being above the Law 
 is not founded on the Common Law, but 
 that Court has rights and privileges pe- 
 culiar to itself." 
 
 ELEGIT. This is a writ of execution, 
 and is so called because the plaintiff hat 
 chosen this particular writ in preference 
 to others. The writ was first given by 
 the statute of "Westminster the Second 
 (13 Edw. 1), c. 18, and has received a 
 more extensive operation from the statute 
 1 & 3 Vict. c. 110. The writ is available 
 for the recovery of either a debt or dam- 
 ages due upon a judgment or upon the 
 forfeiture of a recognizance taken in the 
 King's Court. By the Common Law 
 (apart from statute), a judgment creditor 
 could come upon the goods and chattels 
 and the presently accruing profits of the 
 lands and hereditaments of his debtor 
 (the writ of execution for that purpose 
 being either a fi. fa. or a Ima/ri facias), 
 but he could not come upon the lands or 
 hereditaments themselves so as to have 
 the possession of them ; by the statutes 
 before mentioned, he has been enabled, 
 by means of the writ of elegit, to appraise 
 (instead of selling) the goods and chat- 
 tels of his debtor and to obtain a de- 
 livery of the same to himself at such 
 appraisement in part satisfaction of his 
 judgment debt ; and in case his judgment 
 is not fully satisfied thereby, then the 
 moiety (under 13 Edw. 1, c. 18) or the 
 entirety (under 1 & 3 Vict. c. 110) of the 
 lands themselves may be taken, possession 
 of under the elegit. During such time as 
 the judgment creditor so holds the lands 
 under this elegit he is called a tenant ly 
 " and his estate in the lands is a ten- 
 
 Bee, also, titles Exbctjtion, Writ op ; 
 
 JXTDGMENT DbBTS. 
 
 ELISORS. If the sheriff who returns 
 the jury in an action is himself an inter- 
 ested party in the action, upon his array 
 being quashed, the jury is to be sum- 
 moned by the coroner ; and if the coro- 
 
ELOIGN, ELOIGNMENT. — EMBLEMENTS. 
 
 129 
 
 Elisors. — (^Continued.) 
 ner's array is also challenged and quashed, 
 then the jury is to be summoned and by 
 two clerks of the Court, who for that 
 matter are called elisors, and to whose 
 array no challenge is allowed. The word 
 elisors is by many supposed to mean elec- 
 tors, from the French Hire, to elect. 
 
 ELOIGN, ELOIGNMENT. When a 
 defendant has recovered judgment in an 
 action of replevin, he obtains a writ of 
 execution de i>etomo habendo, for the re- 
 turn of the things distrained; and in 
 case the sheriff in executing this writ 
 finds that the goods have been conveyed 
 to places unknown to him, so that he 
 cannot execute the writ, he makes a re- 
 turn to the writ that the goods are 
 eloigned, i. «., taken to a distance out of 
 his_ jurisdiction or to some place unknown 
 to "him. This return of the sheriff is 
 called a return of eloignment or elongata. 
 The defendant is thereupon entitled to 
 sue out a writ of capias in withernam,, as 
 to which see that title. Failing satisfac- 
 tion by this writ, the defendant may then 
 sue out a scire facia,s against the plaintiff's 
 pledges, to show cause why the price of 
 the eloigned distress should not be made 
 good out of the lands and goods of the 
 pledges ; and if no cause be shown, then 
 the plaintiff has, execution against the 
 lands and goods of the pledges, and in 
 case the registrar of the county court 
 who granted the replevin has not taken 
 pledges, the defendant has an action on 
 the case against him for his omission, 
 and the damages arising therefrom. 
 
 EMANCIPATION. In French Law, a 
 father or mother (being a widow) may by 
 a simple declaration emancipate a child 
 at the age of fifteen years ; and the mar- 
 riage of a child, at whatever age, operates 
 an emancipation. An orphan of the age 
 of eighteen years may be emancipated by 
 a decision of the conseil de famiMe. The 
 effects of emancipation are to render the 
 child competent to act generally on his 
 own account in all matters of a purely 
 administrative character ; but he remains 
 subject to aU former disabilities in respect 
 of the alienation of capital, of real estate 
 (ses iimneuhles) of loan transaotionSj and 
 the like. If a trader, his capacity is un- 
 limited. Code Nap. 1, 10, 3. 
 
 EMBARGO. The hindering or deten- 
 tion by any government of ships of com- 
 merce in its ports. If the embargo is 
 laid upon ships belonging to citizens of 
 
 17 
 
 Embargo. — (Continued.) 
 the state imposing it, it is called a civil 
 embargo, an example of which occurred 
 in 1807 in the conduct of the United 
 States; on the other hand, if (as more 
 commonly happens) the embargo is laid 
 upon ships belonging to the enemy, it is 
 called a hostile embargo. The effect of 
 this latter embargo is that the vessels de- 
 tained are restored to the rightful own- 
 ers if no war follows, but are forfeited to 
 the embargoing government if war does 
 follow, the declaration of war being held 
 to relate back to the original seizure and 
 detention. See Wheaton, pp. 373-373. 
 
 EMBEZZLEMENT. May be roughly 
 defined as stealing by clerks, servants, or 
 agents. It is not larceny — that offense 
 involving a taking without the will of 
 the owner, which a clerk, servant, or 
 agent who is intrusted to take cannot be 
 said to do. But the offender intercepts 
 and misapplies money or such like things ; 
 and this constitutes the ofifense of embez- 
 zlement under the stat. 24 & 25 Vict. c. 
 96, ss. 68-72. The offense is a felony, 
 and is punishable precisely as larceny is 
 (see that title) . In case a larceny is proved 
 upon an indictment for embezzlement, 
 the defendant may be convicted of the 
 former offense, and vice versd. Any number 
 of distinct embezzlements not exceeding 
 three, committed within a period of six 
 months, may be joined in the same indict- 
 ment. 
 
 EMBLEMENTS. These are the away- 
 going crop, in other words, the crop 
 which is upon the ground and unreaped 
 when the tenant goes away, his lease hav- 
 ing determined ; and the right to emble- 
 ments is the right in the tenant to take 
 away the away-going crop, and for that 
 purpose to come upon the land, and do 
 all other necessary things thereon. The 
 instances In which the right to emble- 
 ments exist are the following: — 
 (1.) A tenant for life sowing the lands 
 and dying before harvest, his ex- 
 ecutors will have the right ; 
 (3.) An under-tenant, whose tenancy 
 is suddenly and without his own 
 act determined before harvest, 
 e. g., by his landlord's estate de- 
 termining (whether by the death 
 or re-marriage of the latter), has 
 the right (Eingsbwry v. OolUns, 
 4 Bing. 207) ; 
 (8.) A tenant at will, who is ousted by 
 his landlord, for no cause of for- 
 
130 
 
 EMBRACEBY. —ENFRANCHISEMENT. 
 
 Emblementg. — ( OonHnued.) 
 
 feiture (Co. Litt. 66 a) ; or who 
 suddenly dies, or whose land- 
 lord suddenly dies (Co. Litt. 55 
 
 b); 
 
 (4.) A. tenant by the curtesy (3 Bl. 
 123) or in dower (30 Hen. 3, c. 
 3) — upon their deaths ; and 
 
 (5.) A. tenant pur aui/re me (Co. Litt. 
 55 b) and a parson (38 Hen. 8, 
 c. 11), upon the determina- 
 tion of their estates otherwise 
 than by their own act or de- 
 fault. 
 
 But the following persons have no right 
 to emblements, notwithstanding the sud- 
 den determination of their tenancy : — 
 
 (1.) A tenant for life who determines 
 the tenancy by his or her own 
 act, e.g.,a, widow who re-marries, 
 being only entitled during her 
 widowhood ; 
 
 (3.) A tenant at will or for years who 
 commits a forfeiture or other- 
 wise willfully determines his own 
 tenancy ; 
 
 (3.) A tenant at sufferance (7 M. & W. 
 335); 
 
 (4.) Tenants at a rack rent since 1851, 
 in virtue of the 14 & 15 Vict. c. 
 35, s 1, whose tenancy, but for 
 that act, would have suddenly 
 determined by the death or ces- 
 ser of the estate of their land- 
 lord, these tenants now holding 
 on until the expiration of the 
 then current year of their ten- 
 ancy, and apportioning their 
 rent between the executors of 
 the deceased landlord and the 
 estate of the succeeding land- 
 lord (see Apportionment of 
 Rent) ; 
 
 (5.) Mortgagors, although to some ex- 
 tent they are tenants at will ; 
 
 (6.) A tenant in dower becoming un- 
 chaste ; 
 
 (7.) A parson who resigns his living. 
 Sulwer V. Sulwer, 3 Bam & Aid. 
 470. See, generally, Taylor on 
 Landlord and Tenant, and Wash- 
 burne on Real Property. 
 
 EMBRACERY. This offense consists 
 in the attempt to influence a jury cor- 
 ruptly to one side or the other, by prom- 
 ises, persuasions, entreaties, entertain- 
 ments, douceurs, and the hke. The 
 person guilty of it is called an embracer, 
 and is punishable undei 19 Hen. 7, c. 13 ; 
 and see stat. 6 Geo. 4, c. 50. 
 
 * EMENDALS. This word is said to 
 be used in the accounts of the Inner Tem- 
 ple ; so much in emendals at the foot of an 
 account meaning so much in bank, in 
 stock, for the supply of emergencies. 
 Cunningham Diet. ; Bouv. Diet. 
 
 ♦EMINENT DOMAIN. The power 
 existing in the state to take private prop- 
 erty for public use. See Cooley Const. 
 Limitations, as to the nature of this pow- 
 er and the mode of its exercise. 
 
 EMPHYTEUSIS. A term of Roman 
 Law, and which finds a near equivalent in 
 the phrase /ee /arm of English Law, being 
 the letting of lahds or houses to a lessee 
 for ever, subject to the payment of a per- 
 petual rent,ilsually of small amount. The 
 interest of the holder (who is called the 
 em/phyteuUcarmi) is assignable, i. e., alien- 
 able ; and the landlord may not eject him 
 unless for non-payment of the rent agreed. 
 In case the entire subject-matter of the 
 lease is destroyed, 'the loss falls upon the 
 landlord ; but a particular loss falls upon 
 the tenant. 
 
 See title Feb Fabm. 
 
 * EMPLAZAMIENTO. In Spanish 
 Law, the citation issued by a judge order- 
 ing a person before his tribunal at a 
 certain day and hour. Bouv. Diet. 
 
 *BNTENTRE SA MERE. For cer- 
 tain purposes a child en ventre sa mere, in 
 its mother's womb, is to be considered in 
 being. 
 
 * ENAJENACION. In Spanish Law, 
 the transfer of property by gift, sale or 
 exchange. 
 
 ENCROACHMENT: ^e« titles Ap- 
 pbovement; Common. 
 
 ENDOWMENT. This term is com- 
 monly applied to any provision for the 
 officiating minister of a church, the pro- 
 vision usually consisting in the setting 
 apart of a portion of lands for his main- 
 tenance. The assignment or bestowment 
 of dower to, or upon, a woman. 
 
 ENFEOFF. This means to vest in 
 another by means of a feoffment the legal 
 estate in lands. 
 
 See title Feoffment. 
 
 ENFRANCHISEMENT. This term is 
 usually applied to copyhold lands, and as 
 so applied denotes the conversion of the 
 copyholds into freeholds. The mode of 
 enfranchisement is regulated at the pres- 
 ent day by the stat. 4 & 5 Vict. c. 85, 
 
BNGLESHIRE. — ENTRY. 
 
 131 
 
 Enfrauchisement. — {Continued.) 
 and the Copyhold Acts, 1852 and 1858, 
 under which Acts great facilities are 
 afforded for the commutation of the 
 lord's customary j-ights. The effect of 
 enfranchisement is, to discharge the lands 
 of all customary incidents, e. g., the cus- 
 tom of descent to the customary heir, 
 and to annex to them all the incidents of 
 freehold lands. 
 
 * ENGLESHIRE. According to a law 
 made by Canute, when a man was killed 
 unless it could be proved that he was an 
 Englishman, the town should be amerced. 
 This proof was called engleshire. 4 Bl. 
 Com. 195. Called also englecery. 
 
 ENGRATINGS : See title Coptbight. 
 
 *ENGROSS. To buy up such a large 
 quantity of an article as to obtain a mon- 
 opoly. 4 Sharswood's Bl. Com. 159 n. 
 
 ENLARGE. This tei-m is commonly 
 used in connection with rules calling upon 
 either party to an action or suit to do a 
 certain thing by a specified day; the 
 judges in such a case will, on sufficient 
 grounds being shown for so doing, enlarge 
 the time originally specified for doing the 
 act, in which case the rule is said to be 
 enUi/rged, meaning that the time specified 
 in it has been enlarged, i. e., extended. 
 Similarly, an arbitrator often enlarges 
 the time for making his award ; and the 
 Court of Chancery may, and often does, 
 enlarge the time for filing evidence in a 
 suit, or for taking some other step in the 
 suit, where the Court is satisfied upon 
 affidavit that there is good reason for so 
 doing. 
 
 * ENQUETE. In canon law, an exam- 
 ination of witnesses taken in writing to 
 be used in the trial of a cause. 
 
 ENQUIRY, WRIT OF : 3ee Inquiky, 
 Writ of. 
 
 ENROLMENT: fi'ee Ihbolment. 
 
 * ENTAIL. A fee abridged, entailed 
 or limited to certain heirs. 3 Bl. Com. 
 113. 
 
 ENTERING APPEARANCE : See Ap- 
 
 PBAKANCB. 
 
 ENTERING JUDGMENTS. The form- 
 al entry of the judgment on the rolls of 
 the Court, which used to be a necessai-y 
 preliminary to suing out execution on the 
 judgment, and which is still necessary 
 before bringing error or an action of debt 
 
 Entering Judgments. — ( Oontinued.) 
 on scire facias on the judgment. How- 
 ever, by the C. L. P. Act, 1852, p. 206, 
 and r. 70, H. T. 1853, it is not necessary, 
 before issuing execution, to enter the pro- 
 ceedings on any roll, but an incipitur 
 thereof inay be made upon paper, shortly 
 describing the nature of the judgment, 
 and judgment may thereupon be signed, 
 costs taxed and execution issued ; but it 
 is provided that the proceedings may be 
 entered on the roll as heretofore, when- 
 ever the same may become necessary for 
 the purpose of evidence, or of bringing 
 error, or the like. This entry of the 
 judgment may, it seems, be made after 
 any lapseof time. Barrow v. Croft, 4 B. 
 & C. 388. 
 
 ENTIRETY. A tenancy by entirety 
 or (in the case of husband and wife) en- 
 tireties, is a tenancy in which the entire 
 or sole possession is in one person, as dis- 
 tinguished from a joint or several posses- 
 sion by two or more persons; in other 
 words, tenants by entireties are seized 
 per tout, and not also per my, whereas 
 joint tenants are seized et per my et perr 
 tout. Consequently, upon the death of 
 either tenant by the entireties, the other 
 takes the whole under the original grant, 
 and not (as is the case in joint tenancy) 
 by the new or independent title of surviv- 
 orship. The effects of such a tenancy are, 
 that neither tenant can convey the whole 
 of his estate without the other, and 
 neither can sever without the other ; and 
 this curious result follows from the unity 
 of the two persons of husband and wife, 
 that a gift to them and a third person of 
 lands or of goods in words which purport 
 to make the three parties joint tenants, 
 or even tenants in common, carries one 
 moiety only to the husband and wife, and 
 leaves the other moiety to the third per- 
 son. Atcheson v. Atcheson, 11 Beav. 485; 
 In reWylde's Estate, 2 De G. M. & G. 724; 
 See 2 Kent Com. 132. 
 
 ENTRY. The actual taking possession 
 of lands or tenements by entering upon 
 the same. This is a remedy which the 
 law affords to an injured party ousted of 
 his lands by another person who has 
 taken possession thereof without right. 
 This remedy (which must in all cases be 
 pursued peaceably) takes place in three 
 only out of the five species of ouster, viz. : 
 abatement, intrusion and disseizin ; for as 
 in these three cases_ the original entry of 
 the wrong-doer is unlawful, so the wrong 
 may be remedied by the mere entry of 
 
132 
 
 ENTEY, WRIT OF. — ENTRY ON THE ROLL. 
 
 Entry. — ( Oontinited.) 
 the former possessor. But it is otherwise 
 upon a disamtinuance, or deforcement, for 
 in these latter two cases the former pos- 
 sessor cannot remedy the wrong by entry, 
 but must do so by action, inasmuch as 
 the original entry being in these cases 
 lawful, and therefore conferring an ap- 
 parent right of possession, the law will 
 not sufEer such apparent right to be over- 
 thrown by the mere act or entry of the 
 claimant. And by the Act 3 & 4 Will. 4, 
 c. 27, s. 10, no person shall be deemed to 
 have been in possession of any land with- 
 in the meaning of that Act, merely by 
 reason of his having made an entry 
 thereon; and by the same Act, s. 11, no 
 continual or other claim upon or near any 
 land shall preserve any right of making 
 an entry. 
 
 ENTRY, WRIT OF. A writ made use 
 of in a possessory action directed to the 
 •sheriff, requiring him to command the 
 tenant of the lanS. that he do render the 
 same to the demandant, because that he 
 the tenant had not entry into the land in 
 question, but by or after a disseizin, in- 
 trusion, or the like, made within the time 
 limited by law for such actions ; or that 
 in case of his refusal so to render the 
 land, he do appear in Court to show the 
 reason of his refusal. It was usual to 
 specify in the writ the degree or degrees 
 within which the same was brought, in 
 this manner: (1.) If the writ was brought 
 against the party himself who did the 
 wrong, then it only charged the tenant 
 himself with the injury — non halmit in- 
 greasum niri per intrusionem quam, ipse 
 feeit. (2.) If the writ was brought 
 against an alienee of the wrong-doer, or 
 against the heir of the wrong-doer, then it 
 was said to be in the iirst degree, and 
 charged the tenant in this manner: that 
 he the tenant had not entry but by, i. e., 
 through, per, the original wrong-doer who 
 alienated the land or from whom it de- 
 scended to him — rum habuit ingressum 
 mm per Gktliehnvm,, qui se in iUud intrusit, 
 et iMJud tenenti dimtisit. (3.) If the writ 
 was brought against a tenant holding 
 under a second alienation or descent, 
 then it was said to be in the second degree, 
 and charged the tenant in this manner : 
 that 'he the tenant had not entry but by, i. 
 e., through, per, a prior alienee, to whom mi, 
 the original wrong-doer demised the 
 same — raore habuit ingresavm nisi per iJi- 
 ca/rdum cui Chdielm/us W/ud dirmsit, qui ae 
 in illud intruait. (4.) If the writ was 
 
 Entry, Writ of. — {Oontinued.) 
 brought against a tenant holding under 
 more than two alienations or descents, i. 
 «., after two degrees were past, it was 
 framed upon the Statute of Marlbridge 
 (52 Hen. 3), c. 30, which first gave the 
 writ in this case ; and as that statute pro- 
 vided that when the number of aliena- 
 tions or descents exceeded the usual 
 degrees, i. e., two degrees, the writ should 
 not mention the degrees at all — the writ 
 was called a writ of entry sur disseisin in 
 the post, and charged the tenant in this 
 manner : that he the tenant had not entry 
 woXeas after, post, or subsequent to the 
 ouster or injury done by the original 
 wrong-doer — non habuit ingressum nisi 
 post intrusionem quwm Ouliefmus in ilhid 
 
 By the Act 3 & 4 WiU. 4, c. 27, s. 36, 
 and the C. L. P. Act, 1860, s. 26, aU real 
 actions have been abolished. 
 
 ENTRY AD COMMUNEM LEGEM. 
 
 This was a writ of entry which lay for 
 a reversioner after the alienation and 
 death of the particular tenant for life, 
 against him who was in possession of the 
 land. 
 
 ENTRY AD TERMINUM QUI PRiE- 
 TERIIT. This was a writ of entry which 
 lay for a reversioner when the possession 
 was withheld from him by the lessee or a 
 stranger, after the determination of a 
 lease for years. 
 
 ENTRY IN CASU PROYISO. This 
 was a writ of entry provided by the 
 Statute of Gloucester (6 Edw. 1), c. 7; 
 it lay for a reversioner after the aliena- 
 tion by tenant in dower or tenant for life, 
 and during the hfe of such tenant. 
 
 ENTRY IN CONSIMIII CASU: See 
 
 title Oasu GoNSEvirLi. 
 
 ENTRY ON THE ROLL. In former 
 times, the parties to an action personally 
 or by their counsel used to appear in open 
 Court and make their mutual statements 
 viva voce, instead of as at the present day 
 delivering their mutual pleadings, until 
 they arrived at the issue or precise point 
 in dispute between them. During the 
 progress of this oral statement, a minute 
 of the various proceedings was made on 
 parchment by an officer of the Court ap- 
 pointed for that purpose ; the parchment 
 then became the record, in other words, 
 the official history of the suit. Long after 
 the practice of oral pleading had fallen 
 into disuse, it continued necessary to 
 
ENURE.— EQUITY FOLLOWS THE LAW. 
 
 133 
 
 Entry on the Roll. — (OmUnued.) 
 enter the proceedings in like manner upon 
 the parchment roll, and this was entry on 
 the roll, or making up the issue roU, as it 
 was othei-wise caUed. 
 
 But by a rule of H. T. 4 Will. 4, the 
 practice of making up the issvs roll was 
 abolished. 
 
 ENURE. This word means to operate 
 or take effect. Thus, a release in fee 
 from a reversioner to his prior tenant en- 
 ures by way of the enlargement of the 
 particular tenancy into a fee simple ; also 
 a grant by one joint tenant to another 
 will enure, i. e., operate as a release 
 {Ohester v. WiUan, 8 Wms. Saund. 97 a), 
 and a release as a covenant to stand 
 seized. Boe v. Tranmourr, Willes. 633, 
 
 * EPIQUETA. In Spanish Law, this 
 word is aynonymous with the word equity. 
 Bouv. Diet. 
 
 EQUITABLE ESTATE: See title 
 
 JSES. 
 
 EQUITABLE MORTGAGE: Bee title 
 Mortgage. 
 
 EQUITABLE PLEAS AND REPLI- 
 CATIONS. Under the C. L. P. Act, 
 1854 (17 & 18 Vict. c. 126), it is permit- 
 ted to plead equitable defenses at Law, 
 beginning the plea with the words, " For 
 defense or equitable grounds. " Such plea 
 required to be such as would have entitled 
 the defendant who pleaded it to an uncon- 
 ditional injunction upon bill filed in 
 Equity; but that is not now the law, 
 under the Judicature Act, 1873. Equi- 
 table pleas make the replications and all 
 subsequent pleadings equitable also. 
 ~ ■ V. Effylake By. Go., L. R. 1 Ex. 9. 
 
 EQUITY is the phrase commonly irsed 
 to designate that portion of the law which 
 is administered by the Courts of Chan- 
 cery in Lincoln's Inn and at the Rolls. 
 Equity in this sense is wider than Law, 
 and narrower than Natural Justice or Nat- 
 ural Equity, in the extent of the matters 
 which are the subjects of its jurisdiction. 
 Equity cannot be defined in its content, 
 otherwise than by an enumeratioil of its 
 various subject-matters, being trusts, 
 mortgages, administrations, &c., &c. 
 
 There are, or used to be, three jurisdic- 
 tions in Equity, namely, the exclusive, 
 the concurrent, and the auxiliary juris- 
 dictions, the exclusive jurisdiction being 
 that in which Equity had jurisdiction 
 and Law had not ; the concurrent that in 
 
 Equity. — ( Oontinued.) 
 
 which Equity and Law had jurisdiction 
 equally', and the auxiMm-y that in which 
 Law had exclusive jurisdiction, and 
 Equity was only the handmaid of Law 
 therein. 
 
 EQUITY DRAFTSMAN. A pleader 
 in Equity. 
 
 EQUITY FOLLOWS THE LAW. This 
 maxim, which is expressed in Latin by 
 the phrase Aequitas sequitur legem, signi- 
 fies that the Courts of Chancery follow 
 the same principles in construing docu- 
 ments and in determining rights as the 
 Courts of Common Law, but the rule is 
 subject to a few inconsiderable exceptions, 
 which the Courts of Chancery have,' for . 
 reasons of their own, thought fit to make 
 in their application of it. 
 
 The following are some illustrations of 
 the general rule : 
 
 (1.) In constnaing the words of limita- 
 tion of estates, the same words which at 
 Law confer a life estate do so in Equity 
 also ; and the phrase " heirs of the body " 
 gives an estate tail in Equity equally as 
 at Law ; and the phrase " heirs and as- 
 signs " in like manner gives a fee simple 
 in Equity as at Law. 
 
 (3.) In applying the rules of descent. 
 Equity adopts the entire nine canons of 
 descent of real estate at Law; e. g., primo- 
 geniture, coparcenary, &c. 
 
 (3.) In applying the statutes for the 
 limitation of actions and suits. Equity 
 never exceeds the limits which the Law 
 prescribes, although, for reasons of its 
 own, it often stops short of the outside 
 limit. See title Limitation of Actions 
 AND Suits. 
 
 The following are the exceptions which 
 Equity has made in its application of the 
 general rule : 
 
 (1.) In the construction of executory 
 trusts, i. e., of trusts incompletely set out 
 in the instrument creating them, if the 
 instiniment is either marriage articles or a 
 will containing a reference to marriage, 
 Equity refuses to follow blindfold the rule 
 of Law commonly designated as the Bule 
 in Bhelley^s Case (see that title), whereby 
 the words " heirs of the body " following 
 upon a freehold estate of the ancestor, 
 confer upon the ancestor an estate tail, 
 but chooses rather to mould these words 
 into the form of a strict settlement, giving 
 to the ancestor a life estate, and securing 
 to the issue of the contemplated marriage 
 a succession of estates, and to the intended 
 wife a jointure or widowhood estate, over 
 
134 
 
 EQUITY OF REDEMPTION. — ESCHEAT. 
 
 Equity follows the Lsiw. — {Oontinued.) 
 
 which estates the intended husband shall 
 have no power either to defeat or to di- 
 minish them {Trevor Y. Trevor, 1 P. "Wms. 
 633 ; Pavilion v. Voice, 3 P. Wms. 571) ; 
 and 
 
 (3.) In the construction of the benefi- 
 cial or equitable estates of joint tenants, 
 with reference to whom, if they are 
 mortgagees, whether for equal or unequal 
 amounts, and if they are' purchasers, for 
 equal amounts (but not also for unequal 
 amounts). Equity refuses to allow survi- 
 vorship of the equitable estate, and de- 
 crees the survivor a trustee for the de- 
 ceased as to the share of the deceased. 
 Lake V. Gibson, X Wh. & T. L. C. 160. 
 
 . EQUITY OF REDEMPTION: See title 
 
 MoETaAGB. 
 
 EQUITY OF A 'STATUTE: See title 
 Intbepbbtation. 
 
 * EKEGIMUS. A word used in the 
 creation of a corporation or a new office by 
 the sovereign. Bacon Abr. Offices, e; 1 
 Bl. Com. 473. 
 
 EBBOR, WRIT OF. After final judg- 
 ment had been signed in an action, the 
 unsuccessful party,if desirous of disputing 
 the matters afresh, might bring a writ of 
 error, being a writ which was sued out of 
 the Chancery, and which was addressed 
 to the judges of the Court in which the 
 judgment had been given, commanding 
 them in some cases to examine the record 
 themselves, and in others to send it to 
 another Court of appellate jurisdiction. 
 The error might consist either (1.) in a 
 matter of fact, or (3.) in a matter of lam. 
 
 * ESCAMBIO. A license in the shape 
 of a writ, formerly granted to an English 
 merchant, to draw a bill of exchange on 
 another in foreign parts. Burr. Diet. 
 Reg. Orig. 194. 
 
 ESCAPE. In civil cases, this was de- 
 fined to be, in general, where any person 
 under lawful arrest either violently or 
 privily evaded such arrest, or was suffered 
 to go at large before he was delivered by 
 due course of law. If the arrest was un- 
 lawful, as where the judgment or the 
 writ of execution was absolutely void, 
 then there was no escape. 
 
 Such an escape might have been either 
 negligent or voluntary : 
 
 (1.) If the escape was negligent, i. e., 
 without the knowledge or consent of the 
 
 Escape. — ( Continu^.) 
 sheriff or his officer, then the escaped per- 
 son might be pursued and retaken any- 
 where, and even on a Sunday; and in 
 such a case, if the sheriff or his officer re- 
 took the prisoner before any action was 
 brought for the escape, he was excused. 
 
 (3.) If the escape was nohtntary, i. e., 
 with the knowledge or consent of the 
 sheriff or his officer, then the escaped 
 person could never be retaken, but the 
 sheriff was liable for the escape, and 
 also (if it should so happen) for the re- 
 taking. 
 
 For an escape, the remedy was either 
 in debt for the full amount of the judg- 
 ment or on the case for damages; and 
 after the Act 5 & 6 Vict. c. 98, s. 31, the 
 remedy was on the case only, and not in 
 debt. But that remedy, which lay against 
 the sherijBE, did not exclude the plaintiff 
 from proceeding against the defendant, 
 either by fresh writ of execution or in an 
 action on the original judgment. 
 
 It is conceived that the Law is still the 
 same, but it must be remembered that by 
 the Act 33 & 83 Vict. c. 63 (the Debtors 
 Act, 1869), imprisonment for debt on a 
 oa. sa. or on mesne process has been abol- 
 ished with the^ exceptions in the Act men- 
 tioned. 
 
 In criminal cases there is no escape., 
 
 ESCAPE-WARRANT. This was a 
 warrant granted to re-take a prisoner 
 committed to the custody of the Queen's 
 Prison who has escaped therefrom. It 
 was obtained on affidavit from a judge of 
 the Court in which the action had been 
 brought, and was directed to all the sher- 
 iffs throughout England, commanding 
 them to re-take the prisoner and to com- 
 mit him to gaol when and where taken, 
 there to remain until the debt was satis- 
 fled. 
 
 ESCHEAT. This word is derived from 
 the French eehoir, to fall, and denotes 
 that incident of feudal tenure by which 
 the land reverts back to the lord upon 
 the failure of a tenant to do the services. 
 Escheat used to arise from two causes : — 
 Either 
 
 (1.) Propter defectum sangvdnis, i. «., on 
 account of the failure of blood, 
 i. e., heirs, of the grantee; or 
 (3.) Propter delictum tenentis, i. e., on 
 account of the felony or attain- 
 der of the tenant. 
 But by the Act 33 & 34 Vict. o. 33, no 
 confession, verdict, inquest, conviction, 
 or judgment of, or for any treason or fel- 
 
ESCHEATOR. —ESTATE-TAIL. 
 
 135 
 
 Escheat. — ( Gontmued.) 
 ony ovfeh de se is to cause any attainder 
 or corruption of blood, or any forfeiture 
 or escheat. So that, at the present day, 
 escheat, it appears, can only arise from 
 the failure of heirs of the grantee . Upon 
 an escheat, the lord used to have a writ 
 of escheat against the person who was in 
 possession of the lands after the death of 
 his tenant without heirs ; and now he has 
 an action of ejectment against him com- 
 menced by writ of summons. 
 
 ESCHEATOB. The name of an officer 
 who was appointed by the lord treasurer 
 in every county to look after the escheats 
 which fell due to the king in that partic- 
 ular county, and to certify the same into 
 the exchequer. An escheator could con- 
 tinue in office for one year only, and was 
 not re-eligible until the third year from 
 the expiration of his former year of office. 
 There does not appear to exist any such 
 officer at the present day. 
 
 ESCROW. Where a deed is delivered 
 conditionally and not absolutely, e. g., 
 where it is delivered not to the grantee 
 personally (or his agent), but to some 
 third person pending the doing of some 
 act which is required of the grantee to be 
 done, such deed is said to be delivered as 
 an escrow, i. e., a mere scroll, or writing, 
 which becomes a good deed upon the ac- 
 complishment of the condition. 
 
 ESCUAGE. This word is from the 
 French ecu, meaning a shield or buckler, 
 and denotes bucklerage, or rather a 
 pecuniary satisfaction paid in lieu thereof. 
 It was a composition offered by knight- 
 tenants to their lord, and accepted by 
 him in lieu of their personal attendance 
 on him in the wars. From being oc- 
 casional, this composition became general, 
 and ultimately was levied by regular as- 
 sessments. 
 
 * ESNECY. The right which the eldest 
 coparcener of lands had to choose one 
 of the parts of the estate after it was 
 divided. Bouv. Diet. ; Fleta 1. 2, c. 66, 
 s. 5. 
 
 *ESPEEA. The period in Which a 
 party is to do certain acts or make certain 
 payments. Bouv. Diet. 
 
 *ESPLEES. The products which the 
 ground or land yields ; as the hay of the 
 meadow, the herbage of the pastures, 
 com of the arable, rents, &o. Jacob 
 Diet. 
 
 *ESSENDiqUIETAM DE THEOLO- 
 NIA. A writ which lay for citizens and 
 burgesses of a town which was usually 
 entitled to exemption from toll, where 
 toll was exacted of them. Fitz. Nat. 
 Brev. Reg. Orig. 2586. 
 
 ESSOIN. This was an excuse (whether 
 on the ground of illness, deirvfi/rmitate, or 
 on other ground), for not appearing in 
 Court in pursuance of a summons con- 
 tained in a writ. The first day of term 
 was called the essoin day, or day for hear- 
 ing excuses. But since 1 Will. 4, c. 70, 
 the essoin day has been done away with 
 altogether, the practice of alleging such 
 excuses, *. e., of casting the essoin, having 
 been discontinued previous to that Act. 
 
 ESTATES. Absolute ownership is an 
 idea quite unknown to the English Law 
 of Real Property ; the so-caUed owner of 
 lands can, at the most, hold only an es- 
 tate in them. The estate which he holds 
 may, at the present day, be of a very va- 
 rious kind ; originally, however, an estate 
 for the man's own life was both the larg- 
 est and the smallest estate in lands, being 
 in fact the only recognized estate. 
 
 The various kinds of estates are called 
 Estate^?' autre iiie; Estate in Common; 
 Estate upon Condition ; Estate in Copar- 
 cenary ; Estate by the Curtesy ; Estate in 
 Dower; Estate by Elegit; Estate in 
 Expectancy ; Estate in Fee-simple ; Estate 
 in Fee-Tail ; Estate of Inheritance ; Estate 
 of Joint Tenancy ; Estate for Life ; Estate 
 inPossession; Estate in Remainder; Estate 
 in Reversion ; Estate in Severalty ; Estate 
 by Statute Merchant; Estate at Suffer- 
 ance ; Estate-Tail ; Estate in Vadio ; Es- 
 tate at Will ; Estate for Years. See Bouv. 
 Diet., and Washb. Real Prop. 
 
 ESTATE-TAIL. This is an estate 
 given to a man and the hei/rs of his body. 
 
 Growth of the Estate-Tail. The fol- 
 lowing stages in the growth of the estate- 
 tail may be indicated — 
 
 (1.) Permission was granted to the 
 heirs of the tenant to succeed on the de- 
 cease of their ancestor ; 
 
 (2.) The word h^i/rs having acquired, 
 about the time of Henry II., a breadth of 
 meaning sufficient to admit collaterals to 
 succeed as heirs ; 
 
 (3.) It became necessary in order to 
 exclude collaterals to limit the estate ex- 
 pressly to a man and the heirs of his body; 
 
 (4.) This limitation to a man and the 
 heirs of Ms body came to be construed in 
 the Courts as a conditional gift, the con- 
 dition being that the man should have 
 
136 
 
 ESTATE-TAIL IN PERSONAL ESTATE. — ESTRATS. 
 
 Estate-Tail. — {Continued.) 
 issue, and so soon as that condition was 
 fulfilled, the estate became an absolute 
 estate in fee-simple ; whence 
 
 (5.) The statute Be Bonis OoTidiUon- 
 alibus, 13 Edward 1 (Statute of "West- 
 minster the Second), c. 1, was passed, 
 enacting that the will of the donor, ac- 
 cording to the form of the deed of gift 
 manifestly expressed, should be from 
 thenceforth observed, or, that the estate 
 should descend according to the forme- 
 don {semindiim formMndord), so as that the 
 ancestor should not alien it from his issue 
 nor the donor be defeated of his rever- 
 sion. This Act created the estate-tail as 
 it at present exists. 
 
 ESTATE-TAIL IN PERSONAL ES- 
 TATE. There is no estate-tail in personal 
 estate, whether chattels real or chattels 
 personal; but the words which seem to 
 confer an estate-tail in personalty confer 
 in fact an absolute estate in fee-simple. 
 This construction of these words arises 
 from two reasons, namely: (1.) The cir- 
 cumstance that the stat. Be Bonis (13 
 Edw. 1, c. 1) extended only to real estate, 
 and (2.), the decision in LeeentTwrpe v. 
 Ashbie, Tud. L. C. Conv. 768. 
 
 ESTATE-TAIL QUASI. This is an 
 estate-tail improper, and is derived out 
 of an estate for life, when the tenant for 
 life grants his estate to K., and the heirs 
 of the body of K., these words of grant 
 being apt and proper to create an estate- 
 tail; but inasmuch as the estate-tail of 
 K. cannot (as the estate-tail proper may) 
 possibly last for ever, but can last at the 
 most for the life of the tenant for life (or 
 grantor), therefore it is called an estate- 
 tail improper or quasi. It further differs 
 from the estate-tail proper in this respect, 
 that it may be barred without the neces- 
 sity of any inrolment of the deed of dis- 
 entail in the Court of Chancery (Feame's 
 Conting. Remrs. 495). On the other 
 hand, it agrees with the estate-tail proper 
 in the course of descent, and also in this 
 respect — that where there is an estate 
 for life prior to the estate-tail quad, then 
 the tenant for life, as being ex officio pro- 
 tector, must consent in order to the bar 
 being effective against the remaindermen 
 and reversioners. Allen v. Allen, 3 D. & 
 War. 307. 
 
 ESTOPPEL. Is a term of law donat- 
 ing that the person whom it affects is es- 
 topped; i. «., stopped or hindered, from 
 saying any thing difierent to what has been 
 
 Estoppel. — ( Gontkmed.) 
 already said, even although what he 
 wishes to say is the truth, and the thing 
 already said an error. There are three 
 kinds of estoppels, viz. — 
 
 (1.) Estoppels by record ; 
 
 (3.) Estoppels by specialty ; and 
 
 (3.) Estoppels by matters inpcds. 
 The principle of, or justification for, the 
 first of these three species of estoppel is, 
 that no one shall aver against a record, 
 i. e., a judgment or verdict of the Court, 
 so long as that judgment remained unre- 
 versed; and of the second, that a man 
 shall not deny what he has ah-eady, with 
 all the solemnity attaching to a deed, 
 affirmed; and of the third, that a man 
 shall not aver the' contrary of that which 
 by his previous conduct he deliberately 
 led other persons to infer, and they have 
 inferred accordingly, and would now be 
 prejudiced pecuniarily if the contrary 
 averment were admitted. 
 
 The operation of estoppels is personal, 
 that is, against the party or parties who 
 are principally affected thereby, their 
 heirs, executors, and administrators ; but 
 in the case of an estoppel by record, 
 where the record is a judgment in rem, 
 the operation of the estoppel is universal, 
 or (as it is said) against all the world. 
 For particular instances of estoppel of all 
 three varieties, see 3 Sm. L. C. 679. 
 
 ESTOVERS. This word which is de- 
 rived from the French itoffer, to furnish, 
 i. «., stuff, is used to denote certain rights 
 enjoyed by persons who have merely a 
 limited estate or interest in land, being 
 rights necessary to the enjoyment of that 
 estate or interest. There are three kinds 
 of festovers, namely, 
 
 (1.) Housebote, being a sufficient quan- 
 tity of wood for the fuel and re- 
 pairs of the house ; 
 (3.) Ploughbote, being a sufficient quan- 
 tity of wood for the making 
 and repairing of agricultural 
 implements; and 
 (3.) Haybote, being a sufficient quan- 
 tity of wood for the repair of fences. 
 
 It is a rule of law, that estovers must 
 be reasonable; also, that they must be 
 strictly applied to their respective pur- 
 poses, and to none other. Any excess in 
 the enjoyment or any misapplication of 
 the just amount would be waste. Smmrums 
 V. Norton, 7 Bing. 640. 
 
 ESTRATS. These are such animals of 
 a tame and valuable character as are 
 found wandering, i. e,, straying, in any 
 
ESTREAT. —EVIDENCE. 
 
 137 
 
 Estrays. — ( OonPinued.) 
 manor or lordship, and are without any 
 apparent owner. The law gives aU such 
 animals to the king, but allows him to 
 make grants of them to other persons, and 
 he has in very many cases granted them 
 to the lords of manors, so that they are 
 become incident thereto by special grant. 
 
 ESTREAT. This word, which is de- 
 rived from the Latin extraetum, denotes a 
 copy or extract from the Book of Estreats, 
 that is to say, the rolls of any Court in 
 which the amerciaments or fines, recogni- 
 zances, etc., imposed or taken by that 
 Court upon or from the accused, and which 
 are to be levied by the bailiff or other 
 proper officer of the Court. Recogniz- 
 ances are said to be estreated when they 
 are forfeited by the failure of the accused 
 to comply with the condition of the re- 
 cognizance, as by failure to appear or 
 otherwise. 
 
 ESTEEPEMENT, WRIT OF. This 
 was a writ of waste, and lay in particular 
 for the reversioner against the tenant for 
 Ufe, in respect of damage or injury com- 
 mitted by the latter to the lands or woods 
 of the reversioner. 
 
 ET HOC PARATUS EST VERIFI- 
 CARE. These words were used, when 
 the pleadings were in Latin, at the con- 
 clusion of any pleading which contained 
 new affirmative matter; they expressed 
 the willingness or readiness of the party 
 so pleading to establish by proof the 
 matter alleged in his pleading. A plead- 
 ing which concluded in that manner was 
 technically said to " conclude with a 
 verification," in contradistinction to a 
 pleading which simply denied matter al- 
 leged by the opposite party, and which 
 for that reason was said to " conclude to 
 the country," because the party merely 
 put himself upon the country, or left the 
 matter to the jury. But now by the C. 
 L. P. Act, 1853, s. 67, " no formal con- 
 clusion is necessary to any plea, avowry, 
 cognizance, or subsequent pleading." 
 
 EVICTION. This is the same as dis- 
 possession or ouster of the possession (see 
 title Ouster). It is usually applied to 
 ouster from real property only, but it is 
 not inapplicable to the dispossession from 
 personal property also. The covenant 
 for quiet enjoyment which is usually in- 
 serted in deeds is in substance a covenant 
 against emction. It is competent also for 
 a landlord to evict his tenant for proper 
 cause ; and a landlord may also be guilty | 
 
 18 
 
 Eviction. — (Oontinued.) 
 
 of a wrongful eviction of his tenant, as 
 where without proper cause he either 
 actually, i. e., physically evicts him, or 
 does any act of a permanent character with 
 the intention of evicting the tenant, and 
 which is inconsistent with the latter's re- 
 turning into or continuing in possession. 
 
 EVIDENCE. Is the proof of, or mode 
 of proving, some fact or written docu- 
 ment. It is to be considered (1.) In its 
 Ifature, and (S.) In its Olject. (A.) With 
 regard to its Natwre. — Evidence is either 
 primary, or secondary, or presumptive, or 
 hearsay. Admissions are not themselves 
 evidence, but narrow the field which the 
 evidence has to cover. 
 
 (1.) Primary Bvidence. — This is the 
 highest kind of evidence which the na- 
 ture of the case admits of. Thus where 
 a will of lands is to be proved, the pri- 
 mary evidence of it is the vnll itself, and 
 not the probate ; for the Court of Probate 
 has no cognizance of real estate (B. N. 
 P. 246). And where any contract or 
 agreement has been reduced into writing, 
 the primaiy evidence of it is the writing 
 (Fenn v. ' Griffiths, 6 Bing. 633). But 
 when the narration of an extrinsic fact, 
 i. «., a fact which has arisen independ- 
 ently of the writing, has been committed 
 to writing, the fact may yet be proved by 
 parol, i. e., extrinsic evidence, e. g., a, re- 
 ceipt for money (Bambert v. Gohen, 4 Esp. 
 213). Also, parol admissions are good 
 as evidence against the party making 
 them, although they relate to the contents 
 of a written instrument (Slatterie v. Poo- 
 ley, 6 TiL. & W. 664). The proper evi- 
 dence of all judicial proceedings is the 
 proceedings themselves, or an examined 
 copy of them. Thellvson v. Sheddon. 2 
 N. R. 238. 
 
 (2.) Sewndwry Mndenci. — This is ad- 
 missible where primary, that is, better, 
 evidence cannot be had, e. g., in the case 
 of a lost deed, upon proof of the loss a 
 copy of the deed is admissible (B. N. P. 
 254) ; and so also upon proof of an un- 
 successful application to the person who 
 has the legal custody of the deed (iJ. v. 
 Stolce GoUing, 1 B. & A. 173). The 
 wrongful refusal of a third person (not 
 being a solicitor) on snibpoBrM duces to pro- 
 duce a document in his possession, is, 
 however, no ground for admitting sec- 
 ondary evidence (Jesus College v. Oihbs, 1 
 T. & C. 156) ; but it is otherwise in the 
 case of a solicitor who so refuses (Hibhert 
 V. Knight, 2 Ex. 11). In some cases, sec- 
 
138 
 
 EVIDENCB. 
 
 Eridence. — ( OmUnued.) 
 ondary evidence of oral testimony is ad- 
 mitted, e. g. where the testimony of a wit- 
 ness on a former trial is admitted on an- 
 other trial without producing the witness 
 in person, as where a witness was exam- 
 ined in a former action on the same point 
 between the same parties and he is since 
 dead (B. N. P. 343), or is kept away by 
 contrivance {Green v. Gatewiek, B. N. P. 
 343). So, also, upon an examination de 
 bene esse (which see). And see title No- 
 tice TO Pkoducb. 
 
 It is commonly said that there are no 
 degrees of secondary evidence. This 
 means that when secondary evidence is 
 admissible at all, upon failure to produce 
 the original document, no restriction is 
 put upon the party producing the evi- 
 dence as to the kind of evidence he shall 
 produce for that purpose ; but if it was 
 apparent that more satisfactory evidence 
 might be produced than is produced, the 
 juiy or a judge will be influenced by that 
 consideration {Doe d. Gilbert v. Moss, 7 M. 
 & W. 103). And there is one exception 
 to the rule, namely, where by statute a 
 special kind of secondary-evidence is sub- 
 stituted for the original. 
 
 (3 ) Presumptive Evidence. — This kind 
 of evidence is so called in contradistinc- 
 tion to direct or positive proof whether 
 oral or written ; it is not of the nature of 
 secondary evidence, and does not there- 
 fore require in order to its admissibility 
 any preliminary proof that positive or di- 
 rect evidence cannot be procured (Doe d. 
 Welsh V. Lamgfleld, 16 M. & "W. 513). 
 The commoner classes of presumptions 
 are the four following, namely : — 
 
 (a.) Presumptions which admit of no 
 contradiction by contrary evi- 
 dence, and which are thence 
 called juris et de jv/re ; 
 (b.) Presumptions which the Court or 
 a judge will direct the jury to 
 presume, although no evidence 
 thereof has been given, and 
 which are thence called juris 
 only; 
 (e.) Presumptions as to which the jury 
 are left entirely to themselves, 
 being cases of which direct proof 
 of one fact is given with the in- 
 tention that the jury may from 
 it presume another fact {Fryer v. 
 Gathercole, 4 Ex. 362) ; and 
 {d.) Presumptions that the testimony 
 of a witness who might be, but 
 is not, called, is unfavorable to 
 the party who omits to call him. 
 
 Evidence. — ( Oontinued.) . 
 
 For examples of these various kinds of 
 presumptions, see 1 Tayl. Evidence, p. 85 ; 
 Eosc. Evid. at N. P. p. 38. , 
 
 (4.) Sear say. — As a general rule, hear- 
 say, i. e., the declarations of persons not 
 made upon oath when repeated, on oath by 
 a witness who heard them, are not admissi- 
 ble as evidence. There are, however, 
 some exceptions to this general rule ; thus, 
 hearsay is admissible in the following 
 cases : — 
 
 {a.) In questions of pedigree, in which 
 questions the declaration (wheth- 
 er oral or written) of deceased 
 members of the family are admis- 
 sible to prove, e. g., legitimacy, 
 marriage, the date of marriage, 
 the number of children, &c. 
 Entries in a family bible fall un- 
 der this head. Nor is it neces- 
 sary that the declarations should 
 be contemporaneous with the 
 facts declared, or even that the 
 declarant should have any per- 
 sonal knowledge of the fact, 
 provided he had it of a relation 
 {Monhton v. Att.-Gen. 3 Kuss. & 
 My. 159). But the relative whose 
 declarations are offered must be 
 proved to be dead before they 
 can be admitted in evidence 
 {Butler V. ViscoUnt Mountgarret, 
 7 H. L. C. 733); moreover, in 
 proving becbnt events, such as 
 the death, place of birth, age, 
 &c., of a person, where that fact 
 is directly in issue, sIHet evidence 
 thereof is required. And any 
 declarations made post litem mo- 
 tam are inadmissible. Berlceley 
 Peerage, 4 Camp. 401. 
 (J.) In questions of public rights, being 
 rights of a pecuniary nature ; and 
 the reasons for the admission are 
 various, being either that l^e or- 
 igin of such rights is generally 
 ancient and obscure, and conse- 
 quently incapable of direct proof, 
 or that in local matters persons 
 residing in the neighborhood 
 and interested in the rights are 
 likely to be acquainted, with 
 them, or that such matters are 
 likely to be the subject of fre- 
 quent conversation. Such evi- 
 dence is most commonly admit- 
 ted for the following purposes : 
 (1.) To prove the extent of a manor. 
 (3.) To prove the boundaries between 
 parishes or manors. 
 
EVIDENCE. 
 
 139 
 
 ETidence. — ( Continued.) 
 
 (3.) To prove the existence of a ferry, 
 &c. 
 . But to prove a prescriptive right 
 which is strictly private, no such 
 hearsay is admissible. More- 
 wood V. Wood, 14 East, 337. 
 
 (e.) As forming part of the transaction 
 (res gestce), and as being not evi- 
 dentiary but explanatory thereof. 
 Thus, the accompanying declara- 
 tions may serve to show the ani- 
 mus of the actor, when that is 
 material {Bateman v. Ba/iley, 5 
 T. R. 512); also, generally the 
 feelings orsufiFerings of the party 
 (^Thompson v. Trevanion, Skin. 
 402 ; but see the Gcwdmer Peer- 
 age Case, Le March. Rep. 174-6). 
 The admissibility of the decla- 
 ration in such cases depends not 
 alone upon its accompanying an 
 act, but on the light which it 
 throws upon an act which is in 
 itself relevant and admissible 
 evidence. Wright v. Doe d. Ta- 
 tham, 7 Ad. & E. 313. 
 
 (<Z.) Ab being acts or assertions of own- 
 ership; but a mere declaration 
 of right, coupled with no other 
 act or actual exercise of it, proved 
 or presumable, is inadmissible as 
 evidence in favor of the right 
 asserted, except as against the 
 party making the declaration 
 and persons claiming under him. 
 
 (c.) As being the declarations of persons 
 who have no interest to misrepre- 
 sent the truth ; but the absence of 
 interest wiU not alone entitle such 
 declarations to be admitted as 
 evidence. Suss&n Peerage, 11 
 CI. & F. 85. 
 
 (_/".) As being the declarations of per- 
 sons having an interest adverse 
 to their own declarations. See 
 2 Russ. 67, n; 
 
 Higham v. Bidgway, 10 East, 
 109. 
 (jr). As being entries, &c., made in the 
 regular course of business, e. g., 
 a notice indorsed as served by a 
 deceased clerk in an attorney's 
 ofiSce is evidence of service {Doe 
 . d. Pattssliall v. Turford, 3 B. & 
 Ad. 890) ; and, again, contempo- 
 raneous entries by a deceased 
 shopman in his master's books 
 in the ordinary course of busi- 
 ness, stating the delivery of 
 goods, are evidence for his 
 
 Evidence. — {Continued.) 
 
 master of such delivery. Price 
 V. Lord Torrington, 1 Salk. 285. 
 
 (5.) Adrrmaions. — These are as good as 
 primary evidence of the fact or facts ad- 
 mitted; and one letter may be used 
 against the writer of it without producing 
 the rest of the correspondence {Barry- 
 more v. Taylor, 1 Esp. 326). But, except 
 in cases of estoppel, the party prejudiced 
 by the admission may prove that it was 
 made under a mistake or misapprehension 
 of law or of fact (Newton v. IMdiard, 13 
 Q. B. 925) ; and in that manner diminish 
 the prejudice occasioned by it. And, 
 generally, letters marked "without preju- 
 dice," and the replies to such letters, 
 although the replies should not be 
 marked "without prejudice," cannot be 
 used as admissions or as evidence {Hogh- 
 ton V. Hoghton, 15 Beav. 378) ; and admis- 
 sions made with a view to a compromise 
 are not available against the person 
 making them (B. N. P. 336). A com- 
 pulsory admission, e. g., in the answer to 
 a bill in Chancery, is available against the 
 person putting in the answer, even in 
 another suit instituted by a different 
 plaintiff, and, a fortiori, if instituted by 
 the same plaintiff, or in the very suit in 
 which the answer has been put in {Fleet 
 V. Perrins, L. R. 1 Q. B. 536). A party's 
 statement on the record is evidence 
 against him, although it purport to be the 
 statement of a written document, the 
 contents of which are directly in issue in 
 the cause. Slatterie v. Pooley, 6 M. & 
 "W. 664. 
 
 The uncontradicted statements of any 
 one made in the presence and hearing of 
 the party against whom they are offered 
 are evidence of a matter reasonably 
 within the party's knowledge, at any rate 
 where it was within his power to contra- 
 dict the statements and he did not do so ; 
 but no such consequence follows from the 
 mere omission of a party to reply to a 
 letter, unless the writer was entitled to an 
 answer. 
 
 The acknowledgment in a deed of the 
 receipt of money is conclusive evidence, 
 both at Law and in Equity, as between 
 the parties to it of such receipt {Baher v. 
 Dewey, 1 B. & C. 704), unless upon proof 
 of fraud. But the acknowledgment in- 
 dorsed on the deed is not conclusive 
 {Btrattm v. BastaU, 3 T. R. 366). A re- 
 ceipt not under seal is, on the other hand, 
 not in general conclusive, and may be 
 contradicted {Graves v. Key, 8 B. & Ad. 
 318). But a receipt may amount to an 
 
140 
 
 EVOCATION. — EXAMINATION. 
 
 Evidence. — (OonUnued.) 
 allowance of a sum or sums of money, 
 and in that case is of value in itself, 
 although no money has been paid. Braiv- 
 ston V. JSobins, 4 Bing. 11. 
 
 By the 0. L. P. Act, 1852, s. 117, 
 either party may call on the other by 
 notice to admit any document, saving all 
 just exceptions ; and in case of refusal or 
 neglect to admit, the cost of proof shall 
 be paid by the party neglecting or refus- 
 ing, whatever may be the result of the 
 cause, unless the judge at the trial shall 
 certify the refusal to be reasonable ; and 
 no costs of proof shall be allowed unless 
 such notice has been given, except where 
 the omission to give such notice is^ in the 
 Master's opinion, a saving of expense. 
 This is a simplification of the former 
 practice (Rule of Practice, H. T. 4 Will. 
 4), under which a judge's order to admit 
 was required. The provision of the 0. 
 L. P. Act, 1853, are applicable to every 
 document, whether in the custody or con- 
 trol of the party or not. Buttwr v. Ohaji- 
 man, 8 M. & W. 888. 
 
 (B.) With regard to its Oijeet.— The 
 object of evidence being to prove the point 
 in issue between the parties, there are 
 three general rules. — 
 
 (1.) That the evidence be confined to 
 the issue ; 
 
 (3.) That the substance only of the 
 issue need be proved; and, 
 
 (3.) That the burden of proof lies upon 
 the party asserting the affirma- 
 tive, in the absence of any 
 presumption of law the other 
 way. 
 
 In consequence of the first of these 
 three general rules evidence of collateral 
 facts is excluded {Holcorribe v. Mewson, 3 
 Camp. 891); unless where the collateral 
 fact is material to the issue, e. g., in an 
 action by a rector for tithes, where the 
 issue is the existence or not of a farm 
 modus (Blundell v. Howard, 1 M. & S. 
 393). So, also, upon the general ques- 
 tions of skill, knowledge, or capacity 
 (Folhes V. Gfiadd, 1 Phill. Ev. 376). But 
 proof of a customary right in a particular 
 manor or parish is, as a general rule, no 
 evidence of the like customary right in an 
 adjoining manor or parish {Somerest 
 [Duke] V. France, 1 Str. 661) ; but if the 
 manors or parishes are first proved to be 
 held under the same tenure the case 
 would be different (Bowe v. Brenton, 8 B. 
 & C. 758). And evidence of general 
 damages, although no part of the issue, 
 is admissible ; and evidence of character, 
 
 Evidence. — ( Gontinued.) 
 as connected with the question of dam- 
 age, is also in some cases admissible. 
 
 Where under R. G., H. T. 1858, r. 19, 
 and the C. L. P. Act, 1853, s. 35, the 
 plaintiff' has delivered (or has indorsed 
 on the writ of summons) particulars of 
 his demand, he will be precluded from 
 giving any evidence of demands not con- 
 tained therein. Wade v. Beasley, 4 Esp. 
 7 ; Hedley v. Bairibridge, 8 Q. B. 816. 
 
 In consequence of the second of the 
 three before-mentioned general rules, 
 variances or apparent variances which are 
 irmnaterial require no amendment: e. g., 
 on a count against a sheriff' for a volun- 
 tary escape, it is enough to prove a negli- 
 gent escape {Banafous v. Walker, 3 T. R. 
 136). And if a plea of justification is 
 divisible, e. g., in an action of trespass, 
 it is enough if so much of the plea is 
 proved as is necessary to cover so much 
 of the plaintiff's declaration as is proved, 
 notwithstanding that the whole plea may 
 have been put in issue by the replication 
 {Spilslmry v. Michlefhwaite, 1 Taunt. 146). 
 And now, by C. L. P. Act, 1853, s. 75, 
 all pleadings capable of being construed 
 distributively shall be so taken ; and upon 
 issue. being taken thereon, if so much 
 thereof as shall be a sufficient answer to 
 part of the causes of action proved shall 
 be found true by the jury, a verdict shall 
 pass for the defendant as to so much, and 
 for the plaintiff' as to the residue. With 
 regard to the use of a mdeUcet, or scilicet, 
 that may or may not dispense with proof 
 of the precise particulars as stated, ac- 
 cording as those particulars as stated are 
 material or not. See, also, title Vahi- 
 
 AXrCBB. 
 
 With reference to the third of the three 
 before-mentioned general rules, the bur- 
 den of proof, see title Onus Pkobandi. 
 See, also, titles Extkinsic Evidbnce ; 
 Interpbbtatiok; and Witnesses. 
 
 ♦EVOCATION. In French Law, the 
 transfer of a cause from one judge to 
 another. 
 
 * EX POST FACTO LAW. A statute 
 making an act done before the passage 
 thereof, punishable in a different man- 
 ner, or making an act, innocent before its 
 passage, criminal, or changing the rules 
 of evidence required at the time of the 
 commission act. 3 Story Const. 313. 
 Applied to criminal or penal statutes. 
 
 EXAMINATION. See Witnesses. 
 
EXAMINER. — EXCOMMUNIOAJO CAPIENDO. 
 
 141 
 
 EXAMINER. An examiuer in Chan- 
 cery is an officer of the Court of Chancery 
 appointed (1.) to take the depositions of 
 unwilling witnesses when notice of motion 
 for decree has been given, such examina- 
 tion being taken in the presence of all the 
 parties, and the cross-examination and 
 re-examination to follow there and then ; 
 (3.) to take the like depositions where 
 issue is joined, i.e., when replication has 
 been filed in any cause, such examination 
 being taken ex •pwrte, and the cross-exami- 
 nation and re-examination afterward com- 
 ing on before the Court itself. There 
 are at present in England two such ex- 
 aminers, but a special examiner is occa- 
 sionally appointed. 
 
 8ee, also, title Dbpositions. 
 
 EXCEPTION. In conveyancing means 
 an exception of part of the thing granted, 
 being a part which is less than and sever- 
 able from the whole, and which is of such 
 a nature that it may be held by itself. In 
 the grant of a manor, the exception of the 
 Court Baron would be void, that being an 
 incident inseparable from the manor; and, 
 again, in the like grant, an exception of 
 the profits of the manor would be void, 
 as being repugnant to the grant. 
 
 In the grant of land, on the other hand, 
 an exception of all mines and minerals 
 thereunder would be a valid exception: 
 and such an exception is also sometimes 
 (although less accurately) called a reser- 
 vation of the mines and minerals. A 
 reservation, however, property denotes 
 the creation of some new hereditament, 
 e. g., a rent; whereas an exception is 
 only a slice (so to speak) of the old 
 hereditament. 
 
 EXCEPTIONS* Exceptions to an 
 answer to a bill in Chancery are objec- 
 tions taken to it on the ground either of 
 insufficiency- or of scandal; or formerly 
 (i. e., prior to 1853) on the ground of 
 impertinence. The objections are stated 
 in the form of a written pleading. How- 
 ever, under the Judicature Act, 1873, this 
 form of taking these objections is super- 
 seded (Sch. rule 25), and the Court is to 
 dispose of the allegation of insufficiency 
 in the answer upon motion in a summary 
 way. 
 
 EXCHEQUER, COURT OF. This 
 Court was the first offshoot from the Aula 
 Regis, and was established by "William I. 
 for revenue purposes, and afterward regu- 
 lated by Edward I. The Court took its 
 name from the table at which the judges 
 
 Exchequer, Court (it. — {Oontinued.) 
 sat, which, Camden says, was covered with 
 a chequered cloth resembling a chess-board 
 and serving as a counter. Its jurisdiction 
 continued to be principally matters in 
 which the king's revenue was either 
 really, or by means of the 'fiction ywo 
 minus, fictitiously, in question : but it ac- 
 quired also some Equity jurisdiction. By 
 the stat. 5 Vict. c. 5, its jurisdiction in 
 Equity has been taken away, and under 
 the Uniformity of Process Act (3 Will. 
 4, c. 39), its present jurisdiction does not 
 materially difier from that of the other 
 co-ordinate Courts of Common Law. 
 See, also, title Courts of Justice. 
 
 EXCHEQUER CHAMBER; At the 
 
 time that the Court of Exchequer had an 
 Equity jurisdiction, the Lord Chief Baron, 
 when administering Equity, sat apart in 
 a chamber called the Exchequer Chamber, 
 and that was the original character of the 
 Court so called as constituted by the stat. 
 31 Edw. 3, St. 1, c. 13. But since the 
 Equity side of the Court of Exchequer 
 was abolished by the stat. 5 Vict. c. 5, 
 the name Exchequer Chamber has been 
 used, more especially since the Act 11 
 Geo. 4 & 1 Will. 4, c. 70, in revival, ap- 
 parently, of a much earlier statute, 27 
 Eliz. c. 8, to designate the Court of Ap- 
 peal which is next above the Courts of 
 Queen's Bench, Common Pleas, and Ex- 
 chequer, and intermediate between these 
 Courts and the House of Lords. 
 
 See, also, title Courts of Justice. 
 
 * EXCISE. An inland tax upon com- 
 modities charged sometimes on the manu- 
 facturer and sometimes on the retail seller. 
 
 EXCOMMUNICATO CAPIENDO. A 
 
 writ which issued to the sherifE of the 
 county commanding him to take an ex- 
 communicated person and imprison him 
 in the county gaol, because within forty 
 days after the sentence had been pub- 
 lished in the church the offender would 
 not submit and abide by the sentence of 
 the Spiritual Court. And he remained in 
 prison until he was reconciled to the 
 Church, and such reconciliation was cer- 
 tified by the bishop ; upon which another 
 writ, de excommunicato deliherando, issued 
 out of Chancery to deliver and release 
 him; but when such person would not 
 become reconciled, but still remained ob- 
 stinate in resisting the sentence of the 
 Spiritual Court, and afterward had been 
 unlawfully delivered from prison before 
 having given caution to obey the author- 
 
142 
 
 EXECUTE. —EXECUTOR. 
 
 Excommnuicato Capiendo* — ( OonVd.) 
 ity of the Church, then a writ excommu- 
 nicato recipiendo was issued commanding 
 the sheriff to seek after the offender and 
 imprison Mm again (Reg. Oiig. 67; F. 
 K. B. 63). The ecclesiastical punishment 
 of excommunication, or by means of 
 other spiritual censures, appears to have 
 become tacitly abolished, although it is 
 true the stat. 37 Geo. 3, c. 44, limit- 
 ing prosecutions for brawling and forni- 
 cation, stiU remains in the statute book 
 as revised. 
 
 EXECUTE. As applied to deeds and 
 other documents, this word denotes to 
 sign, seal, and deliver same, or to sign 
 same, as the case may be. As applied to 
 torits, the word denotes the act of the 
 sheriff in carrying out the command of 
 the Court contained in the writ. Such a 
 writ is called a writ of execution. As ap- 
 pMed to criminals condemned to suffer 
 death, the word denotes the act of the 
 executioner in putting the criminal to 
 death. But in each of these three appli- 
 cations, and in every other application of 
 the word there is the same meaning; 
 namely, that of completing or perfecting 
 what the law either orders or validates. 
 
 * EXECUTED. A word which, when 
 appUed to estates, means ■vested. 1 Washb. 
 Real Prop. 11 ; as an executed estate, an 
 executed remainder. See title Bxbcu- 
 TORT AKD Executed. 
 
 EXECUTION, WRIT OF. This is a 
 judicial writ issuing out of the Court 
 where the record or other judicial pro- 
 ceeding is on which it is grounded. It 
 usually issues at the end of fourteen days 
 from the verdict, but it may for good 
 reason be either expedited or delayed; 
 and it may issue within sis years after 
 the recovery of the judgment, without 
 getting the judgment revived. 
 
 The writ or execution is either &fi. fa., 
 an elegit, or a ca. sa.; and the plaintiff 
 may sue out either he pleases, and after 
 suing out one, he may abandon it before 
 execution and sue out another; or he 
 may even have several writs running at 
 the same time, either of the same species 
 into different counties, or of different spe- 
 cies into the same or different counties.' 
 But only one of such writs must be actu- 
 ally executed. If part only of the amount 
 be levied on the one writ so actually ex- 
 ecuted, then the writ must be returned ; 
 and after the rdmm, another writ may 
 issue. 
 
 Execution, Writ of. — (^OonUmied.) 
 
 By the 0. L. P. Act, 1853, s. 131, the 
 writ should be directed to the sheriff of 
 the county in which it is to be executed. 
 If it is to be executed within a liberty or 
 franchise, it must be directed to the sher- 
 iff of the county in which such liberty or 
 franchise is situate. And by s. 134 of the 
 same Act the writ if unexecuted does not 
 remain in force for more than one year 
 from the teste of the writ, unless it is re- 
 newed. 
 
 See, also, titles Capias ad Satisfa- 
 ciBiroTna: ; Elegit ; and Fi. Fa. 
 
 EXECUTOR. This word is commonly 
 applied to wills, and as so applied it de- 
 notes the person who undertakes the ex- 
 ecution of the will. An executor is of 
 two kinds, being either — 
 
 (1.) A lawful executor; or 
 
 (3.) An executor de son tort. 
 
 (1.) It is incumbent on a lawful execu- 
 tor to collect, get in, and realize all the 
 personal estate of the testator, and if de- 
 sirable for the more lucrative realization 
 thereof it is his duty to carry on or con- 
 tinue the trade or business of the testator, 
 which he may do with safety under the 
 direction of the Court of Chancery. For 
 this latter purpose executors may cari-y 
 out their testator's contracts, and, as a 
 rule, should endeavor by aU means to do 
 so. But an executor is not bound to in- 
 sure or to keep up an insurance against 
 fire. Under the stat. 33 & 34 Vict. c. 
 145, s. 30, he has a right to compound 
 debts. When the estate is realized, for 
 which purpose he is allowed a year, thence 
 called the executor's year — his next duty 
 is to divide or distribute the estate among 
 the legatees (as to whom see title Legacy). 
 But before making any such distribution, 
 it is incumbent upon hitn to pay or pro- 
 vide for the funeral and testamentary ex- 
 penses of the deceased, and all his just 
 debts, otherwise he will be personally 
 liable therefor as for a devastavit (see that 
 title), assuming that there was a sufficiency 
 of assets to pay them. 
 
 It is competent to an executor to re- 
 nounce probate of the will, and in that 
 case his right as executor wholly ceases. 
 But, assuming that he has obtained a 
 grant of probate, he and he only is enti- 
 tled to act as executor until the grant is 
 revoked. 
 
 With reference to the question in what 
 cases an executor is entitled to sue, or is 
 liable to be sued, as executor, or in his 
 own personal capacity, there is a clear 
 
EXECUTORY AND EXECUTED. — EXEQUATUR. 
 
 143 
 
 Executor. — (Gontinued.) 
 
 line of division, namely, the death of the 
 testator ; and as to all contracts which had 
 their commencement on the one side of 
 that line, i. e. , during the life of the tes- 
 tator, the executor is entitled and liable 
 in his representative capacity only ; but 
 as to all contracts which had their com- 
 mencement on the other side of that Une, 
 although these contracts are incidental to 
 the contracts of the testator, the execu- 
 tor is entitled and is liable in his own 
 personal capacity. 
 
 All the rules stated above regarding a 
 lawful executor hold true, mutatis mu- 
 tandis, for an administrator also. 
 
 (2. ) A person becomes an executor de son 
 tm't from almost any inteimeddling with 
 the estate after the death of the testator; 
 e. g.i where A., the sei-vant of B., sold 
 the goods of 0. the testator, as well after 
 his death as before, though by the orders 
 of C, and paid the money arising there- 
 from into the hands of B., the latter was 
 held liable to be sued as executor de son 
 tort {Padget v. Priest, 3 T. R. 97). bo also 
 living in the house and carrying on the 
 trade of a deceased victualer was held to 
 be a sufficient intermeddling to make an 
 executor de son tort {Hooper v. Summersett, 
 Wightw. 16). Where there is also a law- 
 ful executor, the act of an executor de son 
 tort is good against him only when it is 
 lawful, and such an act as the lawful ex- 
 ecutor was bound to perform in the due 
 course of administration (BiuMey v. Ba/r- 
 ier, 6 Ex. 164). But it is evident that an 
 act of intermeddling may be sufficient to 
 make a person liable as executor de son 
 tort, although it should not bind the law- 
 ful executor. Thompson v. Ha/rding, 3 
 El. & Bl. 630. 
 
 EXECUTORT AND EXECUTED. 
 
 These words denote respectively incom- 
 plete and complete, and that as well in 
 their Common Law application to con- 
 Practs, as also in their Equity application 
 to trusts. Thus (1.) In the case of ow- 
 t/racts — The contract or consideration is 
 said to be executed when it is completely 
 performed ; and it is said to be executory 
 when it is not yet completely or only in- 
 completely as yet performed. And it is 
 clear that a contract may be executed on 
 one side and executory on the other. In 
 the case of executory contracts,, a request 
 to perform, together with the consequent 
 promise to pay for the performance, is al- 
 ways implied by law, where it is not ex- 
 pressed in words by the parties ; but in 
 
 Executory and Executed. — {Continued.) 
 the case of executed considerations, this 
 is not always so, although sometimes it is 
 so ; and as to when it is and when it is 
 not so, see title Contkact. 
 
 And (3.) in the case of trusts — A trust 
 is said to be executed when it is com- 
 pletely created or declared, and execu- 
 tory when the words of trust are merely 
 directory, and point to some further in- 
 strument as being necessary to complete 
 the declaration or creation. Many dis- 
 tinctions are made in Equity according as 
 a trust is executed or executory. Thus, 
 Equity follows the Law in applying, for 
 example, Shelley's Rule to trusts that are 
 executed; but as to trusts executory it 
 takes this distinction, viz., if the instru- 
 ment containing the executory trust con- 
 tains a reference to marriage. Equity re- 
 fuses to follow Shelley's Rule and moulds 
 the trusts so as best to suit the presumed 
 intention of the testator ; but where there 
 is no such reference to marriage, then 
 Equity permits the Law to have its own 
 way. And, again, an executory trust 
 which exceeds the rule against perpetui- 
 ties, is not therefore void (as an executed 
 one would be), but Equity will mould 
 the executory trust so as to confine it 
 within that rule of Law, believing that 
 the testator could not intend what was 
 illegal. 
 
 EXEMPLIFICATION. In law is an 
 official copy or transcript made from a 
 record of Court ; thus, an exempUfication 
 of a recovery signifies a copy or transcript 
 of the recovery roll, and the same should 
 be set out Uteris et verbis in an abstract of 
 title comprising it. Similarly, an exem- 
 plification of letters patent signifies a copy 
 or transcript of letters patent made from 
 the original enrollment. 
 
 * EXERCITOR NAVIS. In civil law, 
 the surployer of a ship ; one who sent a 
 ship to sea at his own risk and received 
 all the earnings. Burr. Diet. 
 
 * EXEQUATUR. In French Law, a 
 word formerly placed at the bottom of a 
 judgment by a judge authorizing the 
 officer to execute it, although it was 
 obtained in another jurisdiction. In 
 international law, a declaration of a 
 government approving a newly-appointed 
 consul, and commanding the citizens to 
 recognize him and allow him privileges 
 belonging to his station. 3 Chitty Com. 
 Law, 56. 
 
144 
 
 EXHIBIT. — EXTRINSIC BVIDENOE, 
 
 EXHIBIT. An exhibit is the name 
 given to any particular document which 
 in the course of a cause is exhibited, i. e., 
 produced by either party. Such docu- 
 ments, when numerous, are usually mark- 
 ed with some letter of the alphabet as a 
 convenient mode of referring to and dis- 
 tinguishing them, and they are then 
 called "Exhibit A," or "Exhibit B," and 
 so forth. 
 
 This use of exhibits is a convenient 
 mode of abridging evidence in the case of 
 written documents, the proof being either 
 iiiva voce or by affidavit. But only some 
 documents may be exhibited, namely, 
 extracts from registries, records from the 
 Bodleian and Museum libraries, and gen- 
 erally all documents coming, out of the 
 custody of a public officer having care of 
 them; also, office-copies of records, 
 whether of the Superior Courts at "West- 
 minster or of the Courts of the County 
 Palatine of Lancaster, or of the Inferior 
 Courts of Record ; also, and chiefly, deeds, 
 bonds, notes, bills of exchange, letters or 
 receipts, and the like. Documents of 
 other kinds may not be so proved ; and 
 generally no document may be proved as 
 an exhibit, if it requires more to substan- 
 tiate it than the proof of the execution 
 or of handwriting, e. g., if any ulterior 
 circumstance which might afEect it re- 
 quires to be proved, and the opposite side 
 would have a right to cross-examine upon 
 that circumstance ^Lahe v. Skinner, 1 J. 
 & W. 9, 15). Thus, a will of real estate 
 could not generally be proved as an 
 exhibit at the hearing, but under the 
 present practice that is allowed to be 
 done, the -heir having liberty to cross- 
 examine the witnesses. 
 
 If it is intended to prove an exhibit at 
 the hearing of the cause, an order of 
 course to be obtained on motion of course 
 or petition of course at the Rolls is 
 necessary. 
 
 *EXILIUM. Setting free or wrong- 
 ly ejecting bond-tenants. Bacon Abr. 
 Waste (a). 
 
 EXPROPRIATION. lu French Law, 
 is the compulsory realization of a debt by 
 the creditor out of the lands of his debtor, 
 or the usufruct thereof. When the 
 debtor is co-tenant with others, it is 
 necessary that a partition should first be 
 made. It is confined in the first place to 
 the lands (if any) that are in hypotheque 
 (see that title), but afterward extends to 
 the lands not in hypofheqite. Moreover, 
 the debt must be of liquidated amoMnt. 
 
 EXTENT. A writ of execution availa- 
 ble in cases in which the Crown has an 
 interest. The extent may either be au 
 extent in chief or an extent in aid, the 
 distinction being that the former is a 
 hostile proceeding by the Crown against 
 its debtor, or against the debtor of that 
 debtor, while the latter is an extent 
 issued at the instance of the Crown debt- 
 or himself against his debtor, to aid his 
 payment of the Crown debt. The extent 
 of the Crown has priority over all execu- 
 tions of the subject. 
 
 See, also, title Crown Debts. 
 
 EXTINGUISHMENT. Is the destruc- 
 tion of an estate, or right, or power. A 
 debt is said to be extinguished by pay- 
 ment, and a tort by satisfaction, accord- 
 ing to the general maxim, Omnia judicia 
 absohitoria esse. 
 
 See, also, titles Powers ; Rights, &c. . 
 
 EXTORTION. Is a criminal offense 
 when committed by sherifiEs or other 
 officers ; but, semhle, a mere civil injury, 
 when committed by other persons, against 
 whom an action for money had and 
 received will Ue. 
 
 . EXTRADITION. Denotes the giving 
 up of a criminal by a foreign state in 
 which he has sought refuge from prosecu- 
 tion to the state within whose jurisdiction 
 the oflense has been committed. The 
 duty of a state to make extradition of 
 criminals is by no means generally ad- 
 mitted, and at the most it is an exercise 
 of comity only. Generally, no state will 
 make an extradition of its own subjects ; 
 and generally, also, no state will make an 
 extradition of political offenders. 
 
 * EXTREMIS. When a person is sick 
 beyond hope of recovery and near death 
 he is said to be in extremis. 
 
 See title Dtutg Declaration. 
 
 EXTRINSIC EVIDENCE. This evi- 
 dence is so styled because it is brought 
 forward to throw light upon a written 
 instrument ab extra the instrument. The 
 usual rule of law being that the meaning 
 of the instrument is to be gathered from 
 the instrument itself, the introduction of 
 extrinsic, or (as it is sometimes called) 
 parol, evidence to assist in ascertaining 
 its meaning, is to be regarded in the light 
 of an exception. 
 
 It may be premised generally, that by 
 a rule of the Common Law, independent- 
 ly of a statute, extrinsic or parol evidence 
 was equally inadmissible in certain cases 
 to throw light upon a written document ; 
 
EXTRINSIC EVIDENCE. 
 
 145 
 
 Extrinsic Eridence. — ( Oontinued. ) 
 and that the Statute of Frauds, and other 
 statutes which have made writing an ab- 
 solute sine qud non to the valididy of cer- 
 tain obligations, have not been the occa- 
 sion of the inadmissibility of this species 
 of evidence, but have at the most only 
 rendered that inadmissibility somewhat 
 more patent (&oss v. Zord Nugent, 5 B. & 
 Ad. 58). Thus, before the Statute of 
 Frauds, the Courts were uniformly gov- 
 erned by the rule — that the judgment of 
 a Court or judge in expounding a will 
 should be simply cLsclm-atory of what is in 
 the instrument (Wig. Extr. Ev. p. 6) ; 
 and since that statute the rule is the same, 
 only more apparently so than before, in- 
 asmuch as the admission of evidence ^o 
 do more than to declare what is in the 
 will, would be, to the extent the evidence 
 was admitted, to be In fact making a,n 
 additional or other will for the testator 
 which he has not made. The question is, 
 what Turn the testator written, not what 
 (in any one's opinion) he intended or oiight 
 to have written. 
 
 (A.) Considering the matter, firstly, 
 with reference to WiUs. The following 
 are the uses to which extrinsic or parol 
 evidence may be legitimately ajpplied : — _ 
 
 (1.) Where there is nothing in the con-' 
 text of a will showing that the testator 
 has used words in other than their strict 
 or primary acceptation, but that accepta- 
 tion is insensible with reierence to extrin- 
 sic circumstances, then the extrinsic cir- 
 cumstances may be looked at for the pur- 
 pose of arriving at some secondary or 
 popular sense which shall be sensible 
 with reference to these circumstances. 
 
 (2.) Where the written characters of 
 the will are difficult to decipher, or the 
 words of the vdU are in an unknown 
 or unusual language, the evidence of per- 
 sons experienced in deciphering written 
 characters or acquainted with the lan- 
 guage is admissible for the purpose of 
 informing the Court or judge. 
 
 (3.) Extrinsic evidence is also admissi- 
 ble for the purpose of identifying the 
 object of the testator's bounty (whether 
 devisee or legatee),' and for the purpose 
 of identifying the mbjeet of disposition. 
 
 (4.) Also, for the purpose of defeating 
 a fraud, whereby either the wrong will is 
 executed or an alteration in or omission 
 from the true will is occasioned. Doe v. 
 AUen, 8 T. R. 147. 
 
 On the other hand, extrinsic evidence 
 will not be admissible for the following 
 purposes: — 
 
 19 
 
 Extrinsic Eyidence. — (Ob7i*i»M<«i.) 
 
 (1.) To add to the contents of a will, 
 by proof of a mistake of the testator 
 (Brown v. Sehein, Cas. t. Talb. 240), or 
 of the counsel who prepared the will 
 (Niewiii/rgh [Earl] v. Newmrgh [ Oowntesa], 
 5 Mad. 364, 1 M. <fc. Scott, 853) ; but an 
 issue demsamit vel non, where that will 
 serve the same purpose (as it would have 
 done in Nevobwrgh v. Newbwrgli, supra) 
 may be directed. 
 
 (2.) To supply a total blank in the will, 
 whether of the name of the legatee or 
 devisee, or of the amount of the legacy 
 or estate given. Doe v. Needs, 2 M. & W. 
 139 ; Edmunds v. Waugh, 4 Drew. 275. 
 
 (3.) To identify a legatee or devisee or 
 the estate given, where there being some 
 description, no part of that description 
 is applicable to any person or estate. 
 Hampshire v. Pierce, 2 Ves. 218 ; Miller 
 V. Traoiin, 8 Bing, 244. 
 
 And generally, although the judgment 
 of the Court or a judge in expounding a 
 will should be simply declaratory of what 
 is in the-will, yet — 
 
 (1.) Every claimant under a will has a 
 right to require that the Court or judge 
 shall, by means of extrinsic evidence, 
 place itself or himself in the situation of 
 the testator, the meaning of whose lan- 
 guage it or he is called upon to declare ; 
 and 
 
 (2.) The imieation, as an independent 
 fact, may be proved by means of the like 
 evidence in all those cases in which the 
 description hBing acewate, i. e., unam- 
 biguous on the face of it, its applica- 
 bility to each of several subjects, or to 
 each of several objects, occasions what is 
 called a latent ambiguity. See, also, 
 titles Latent Ambiguity ; Patent Am- 
 
 BIGXnTT. 
 
 (6.) Considering the matter, secondly, 
 with reference to other instniments than 
 wills. The following is an enumeration 
 of the purposes for which extrinsic evi- 
 dence in connection with written docu- 
 ments may be admitted : — 
 (1.) To prove the making of the con- 
 tract ; 
 (2.) To prove the writing not to have 
 
 been a contract ; 
 (3.) To prove that the contract was 
 induced by fraud, mistake, or 
 duress ; 
 (4.) To prove that the writing was 
 
 signed conditionally ; 
 (5.) To annex to the contract usages 
 of trade not inconsistent with 
 the express terms thereof; 
 
146 
 
 FACTOR. — FALSIFY. 
 
 Extrinsic Evidence. - 
 
 (6.) To explain terms of a technical 
 trade significance; 
 
 (7.) To identify the parties and also 
 the subject-matter; and 
 
 (8.) To prove that the contract is ille- 
 gal. See Wigram on Extrinsic 
 Evidence; Leake on Contracts, 
 pp. 106-135. 
 
 F. 
 
 FACTOR. Is a commercial agent, en- 
 joying certain privileges that are peculiar 
 to him, and not coromon to agents gener- 
 ally. These privileges are due in some 
 measure to the circumstance that the fac- 
 tor is iu a position that is analogous to that 
 of the consignee of goods. Thus, he 
 was able by the Common Law to bind his 
 principal by the. sale of the goods in- 
 trusted to him, and he still has that pow- 
 er ; but he could not pledge the goods in 
 a valid manner. However, under the 
 Stat. 6 Geo. 4, c. 94, usually celled the 
 Factor's Act, he is enabled to maketa valid 
 pledge of the goods, or of any part 
 thereof, to one who believes him to be 
 the hmd fids owner of the goods ; and 
 under the stat. 5 & 6 Yict. c. 39, he is 
 further enabled in all ^respects, as if he 
 were the true owner of the goods, .to en- 
 ter into any contract or agreement regard- 
 ing them by way of " pledge, lien, or 
 security," as well for an. original loan, 
 advance, i or payment made on the secur- 
 ity of such goods or documents, as also 
 for any further or continuing . advance in 
 respect thereof, and such contract or 
 agreement ij made valid against the prin- 
 cipal, notwithstanding the lender was 
 fully aware that the borrower was a fac- 
 tor only. This power does not extend to 
 antecedent debts.. 
 
 FACTORIES. The employer ojf labor 
 inf actories is subject, even by the Common 
 Law, to make due provision, e. j'., by 
 properly fencing his machinery, for the 
 security of the lives and limbs of his 
 workmen. Coe v. PZa«, 7 Ex. 460. But 
 see Ooombav. New Bedford Cordage Co., 
 toa Mass. 572 ; 3 Am. Rep. 506. 
 
 FACULTY {famltai). A privilege, or 
 special dispensation granted to a man by 
 favor and indulgence, permitting him to 
 do that which by the law he could hot do ; 
 as to marry without banns being first pub- 
 lished ; to hold two or more ecclesiastical 
 livings at the same time ; and the like 
 (25 Hen. 8, c. 21 ; Les Termea de la Ley). 
 
 Faculty. — ( OonUrmed.) 
 At the present time a faculty is not nn- 
 frequently granted for the removal of a 
 churchyard or church; as to which see 83 
 & 83 Vict. c. 94. 
 
 FAIRS: £fe6 title Mabket. 
 
 FAIT. This word was used in the old 
 law to signify a deed, factmrn. In juris- 
 prudence, the phrase fait jwnMqiie, or 
 fmstwrnjii/ridiaum,, denotes one of the fac- 
 tors or elements constitutive of an obli- 
 gation. 
 
 *FALCIDIAN LAW. A Roman stat- 
 ute enacted during the reign of Augustus, 
 on motion of Pubhus Falcidius, by which 
 a testator was forbidden to give more, in 
 legacies, than three-fourths of his estate. 
 The other fourth was to descend to the 
 heir (Inst. 2, 22), and was called the Fal- 
 cidian portion. 
 
 FALDAGE, called also FOLDAGE. 
 Is a privilege enjoyed by certain lords of 
 manors and others of setting up folds, 
 i. e., inclosures for sheep, as well belong- 
 ing to themselves as to their tenants, in 
 order with the manure thereof to fatten 
 their lands. The privilege is sometimes 
 called suit of fold, aectafaldm. The ten- 
 ant by paying a fald-fee might have com- 
 muted the privilege. 
 
 FALSE IMPRISONMENT. The arrest 
 or detention of a person vyithout warrant, 
 or by an illegal warrant, or by a legal 
 warrant executed at an unlawful time. 
 Blackstone. An action will lie against 
 officers and private individuals. See on 
 this subject 1 HiUiard on Torts, 308-238; 
 2 Stark. Ev. 1112-4; Oolter v. Lower, 9 
 Am. Rep:' 737; 35 Ind. 285. 
 
 See, also, title Mamoious Arkest. 
 
 FALSE JUDGMENT, WRIT OF. This 
 was a, writ which lay to the Superior 
 Courts at Westrhinst^r to rehear and re- 
 view a case which had been tried in an 
 inferior Court, and the judgment in which 
 was submitted to be erroneous. In lieu 
 of this writ, an appeal is open to the 
 party dissatisfied with the judgment. 
 See Judicature Act, 1873. 
 
 FALSE REPRESENTATION! Sas ti- 
 tles Fkaud ; Wabraisttt. 
 
 FALSE RETURN: See title Retubn. 
 
 FALSIFY. This word, as occurring 
 in the phrase " with liberty to surcharge 
 and/d&i/'y," means to .impugn as false or 
 erroneous certain items or entries in an 
 account. The Court of Chancery, where 
 
FARM.— FEME SOLE. 
 
 147 
 
 Falsify. — {Continued.) 
 an account has been stated between par- 
 ties, and they afterward disagree regard- 
 ing it, may either open the whole account 
 or (according to the nature of the case) 
 merely give liberty to surcharge and fal- 
 sify particular items in the account. 
 See, also, title Sukchaiigb. 
 
 FARM. This is the old Baxon feorme, 
 and signifies a ^osisioTi. Anciently, rents 
 were reserved in provisions, such as corn, 
 poultry, and the like, a money equivalent 
 not having been finally introduced until 
 the time of Henry I. Originally, there- 
 fore, farm meant rent, and by a natural 
 transposition it now means the land out 
 of which the rent issues. 
 
 See, also, title Leasehold. 
 
 * FAST ESTATE. A term sometimes 
 used in wills, meaning real property. 
 6 Johns. 185 ; 9 N. Y. 503. 
 
 FEALTY. This word signifies fidelity, 
 the phrase "feal and leal" meaning sim- 
 ply faithful and loyal. Tenants by 
 knights' service and also tenants in socage 
 were required to take an oath of fealty 
 to the king or other their immediate 
 lords ; and fealty was one of the condi- 
 tions of their tenure, the breach of which 
 operated a forfeiture of their estates. 
 
 * FEASANCE. The doing or makiag 
 of any thing. 
 
 FEE. According to Spelman, this is 
 the right wBich the vassal has in lands to 
 use the same and take the profits thereof 
 to him and his heirs, rendering to his lord 
 the due service therefor. Fees were either 
 Fee Simple or Fee TaU, the former being 
 a simply, i.e., genenally, inheritable estate, 
 open to heirs ge/neiral, the latter being 
 also an inheritable estate, but in a limited, 
 i. e., tailed manner only, to wit, open to 
 line%l descendants only, or issue or heirs 
 of the body. 
 
 See title Estates. 
 
 FEE FAEM. This is a species of hold- 
 ing or tenure, of a mixed nature, partly 
 freehold and partly leasehold only. It 
 corresponds as nearly as may be to the 
 Mnphyteusis of Roman Law, which title 
 see. 
 
 FEE SIMPLE : See title Estates. 
 
 FEE TAIL : See title Estate-Tail. 
 
 FEIGNED ISSUE. This was a ficti- 
 tious issue, or rather a true issue raised 
 
 Feigned Issne. — ( Oontimied.) 
 by means of a simple fiction. The fiction 
 raisLDg it was resorted to in order to ob- 
 viate the expense and delay of pleadings : 
 e. g., the plaintifl by a fiction declared 
 that he laid a wager of £5 with the de- 
 fendant that certain goods were his fthe 
 plaintiff's) goods, and then averred fiiat 
 the goods were his; whereupon the de- 
 fendant, admitting the feigned wager, 
 averred that the goods were not the plain- 
 tifiE's goods, thus raising at once the issue 
 as to the plaintiff's property in the goods. 
 These feigned issues used to be largely 
 resorted to in Courts of Equity, and not 
 unfrequently also, in interpleader suits, 
 in Courts of Law. But by the Act 8 & 9 
 Vict. c. 109, s. 19, for the trial of any 
 question of fact, the Court is to direct a 
 writ of summons to be sued out by the 
 proper party against the proper party, in 
 the form set forth in the schedule to the 
 Act ; and the proceedings thereupon are 
 to be as upon a feigned issue. 
 
 FELO DE SE. This means a felon of 
 himself, a suicide, and denotes any one 
 who deliberately puts an end to his own 
 existence, or commits some unlawful or 
 maUcious act in Committing which he oc- 
 casions his own death; as, e. g., when un- 
 lawfully shooting at another person the 
 gun bursts, and he kills himself. 
 See, also, title Homicide. 
 
 FELONY. Any capital crime short of 
 treason, and being such as occasioned at 
 Common Law the forfeiture of the felon's 
 lands and goods, or at any rate of his 
 goods. The vrord " felony " in its generic 
 sense includes even treason, and under 
 particular statutes, e. g., 39 cfc 40 Geo. 3, 
 c. 93, the offense of treason may be prose- 
 cuted as a felony. The crime of felony 
 stands midway between treason and mis- 
 demeanors. See both these titles. 
 
 In American Law, felony is not well 
 defined except by statute. In many of 
 the states it is defined as an offense pun- 
 ishable by death or by imprisonment in 
 a state prison. 
 
 FEME COYERT. A married woman 
 is so called, but whether from the legal 
 or from the physical meaning of the word 
 cover, or from both, is uncertain. 
 See title Mabiiied Woman. 
 
 FEME SOLE. An unmarried woman 
 is so called; also, any woman who, al- 
 though married, is in matters of property 
 independent of her husband, is a feme 
 
148 
 
 FENCES. — FBUBAL SYSTEM. 
 
 Feme Sole. — {Continued.') 
 sole quoad such property, and may deal 
 with it in every respect as if she were un- 
 married. Taylor V. Meade, 34 L. J.(Ch.) 
 203. 
 
 FENCES: 5e« title Party-Walls. 
 
 * FEODAET : See title Fetid atokt. 
 
 FEOFFMENT : 5ee title Contetancbs. 
 
 FERM NATURE. Animals so de- 
 scribed aj-e wild animals in which there is 
 no property, but in respect of which, or 
 of some of them, there may be an exclu- 
 sive right of preserving and of killing, 
 which is analogous to the right of prop- 
 erty, and which is designated game. See 
 that title. 
 
 FERBT. Is properly a place of transit 
 across a river, or arm of the sea ; but in 
 law it is treated as a franchise, and de- 
 fined as the exclusive right to carry pass- 
 engers across a river, or arm of the sea ; 
 from one vill to another, or to connect a 
 continuous line of road leading from one 
 township or vill to another; it is not a 
 servitude or easement ; it is wholly un- 
 connected with the ownership or occupia- 
 tion of land, so much so," that the owner 
 of the ferry need not have any property 
 in the soil adjacent on either side (Ifew- 
 tm v. GuMtt, 13 0. B. [N. S.] 32). The 
 owner of the ferry is bound to maintain 
 it in a proper state of repair. 
 
 A ferry may have originated in legal 
 grant; but from a user of thirty-flve 
 years, a jury will presume that the ferry 
 had a legal origin {Trotter v. BJarria, 2 T. 
 & J. ^85) ; and in case of a disturbance 
 of the franchise, it is sufficient for the 
 plaintifiE to show that he was in possession 
 at the time of the disturbance. Trotter 
 V. Haa-ris, mpra, 
 
 FEUD. This was a fee {see that title). 
 Feuds were either ^(>per or vm/proper, the 
 fomjer class being purely military, given 
 freely, i.e., gratis, to persons duly qualified 
 to discharge military services, the latter 
 class being either given in exchange for 
 some equivalent in money or in kind, or 
 granted free from all manner of services, 
 or granted in return for certain determin- 
 ate services of a non-miEtary nature. 
 8ee, also, title Feudal System. 
 
 FEUDAL. This is the adjective from 
 feud, e. g., the feudal law signifies the 
 Aoctcmeot feuds. Feudal posaesdonisVcie 
 same thing as seidn ; and feudal actions 
 is the old name for real actions. Thus a 
 
 Feudal. — {Gontiniied.) 
 tenant for years had not the feudal pos- 
 session, and consequently had no real ac- 
 tion, for a man's remedies are necessarily 
 only commensurate in extent and in qual- 
 ity with his rights. 
 
 See title Seizin. 
 
 FEUDAL SYSTEM. Previously to the 
 Norman Conquestj feudalism, strictly so 
 called, was unknown in England, although 
 something superficially analogous to it 
 existed in Anglo-Saxon times. It was in- 
 troduced into England partially in 1066 
 as a consequence of the acquisition or 
 conquest of England by "William I. in 
 that year; and the system was completely 
 established in England in 1085 by Law 
 52 of that sovereign, founded on the oath 
 taken at Salisbury in the latter year by 
 all free men. The law is in these words: 
 " Statuimms ut omnes Uberi homines fadere 
 et saeramento affirmeni quod intra et extra 
 universum regnum Angles WUhehno regi 
 domino suo fideles esse whint; terres et 
 honores ilUus omni fidelitate ubique serva/re 
 cum eo et contra inirmcos et alienigenas 
 defendere." The precise nature of the 
 change in the law of land which was thus 
 effected at a stroke was the entire de- 
 struction of ownerships and the substitu- 
 tion for them of tenures; henceforward 
 there was no such thing as absolute own- 
 ership in land, but only a tenwe of them ; 
 whence also lands have ever since been, 
 as they now also are, described as tene- 
 ments. 
 
 The principal obligations incident to 
 the feud were the following: — 
 
 (1.) Wardship {see that title), although 
 it is certain that ' this incident 
 could form no part of the law of 
 feuds before these became he- 
 reditary ; 
 
 (2.) Marriage (see that title) ; 
 
 (3.) Belief {see that title) ; 
 
 (4.) Aids {see that title) ; ♦ 
 
 (5.) Escheat {see that title) ; and 
 
 (6.) Escuage (see that title). 
 
 It is so absolute a maxim of the feudal 
 law, or law of tenures, that all lands are 
 holden mediately or immediately of the 
 king, that even the king himself cannot 
 give lands in so absolute and uncondi- 
 tional a manner as to set them free from 
 tenure ; and, therefore, in the case of such 
 a gift, the donee ' would, prior to the 12 
 Car. 2, c. 24, have, held the lands of the 
 king in capita by knight service and would, 
 since that statute, how hold by fealty. 
 All lands therefore being tenures, the va- 
 
FEUDATORY. — FmB JU880R. 
 
 149 
 
 Fendal System. — (Oontinued.) 
 rieties of tenures are the following, stat- 
 ing the same in the words of Bracton 
 (Henry m.):— 
 
 " Tenements are of two kinds, (I.) 
 Frank tenement, and (11.) Villenage. 
 And of Frank tenements, (I. a.) some are 
 held freely in consideration of homage 
 and knight-service ; (I. b.) others in free 
 socage with the service of fealty only. 
 Of villenages (11. a.) some are pure; and 
 (n. b) others are privileged, he that holds 
 in pure villenage being bound to uncer- 
 tain services of a viUein nature, and he 
 that holds in privileged villenage being 
 bound to certain services of a villein na- 
 ture, whence also the latter is often called 
 a villein-socman." 
 
 FEUDATORY. A name for a feudal 
 tenant, or vassal. The word is to be dis- 
 tinguished from feudoury, which denoted 
 an officer in the Court of Wards, who 
 was appointed by the 33 Hen. 8, c. 46, 
 and abolished by the 13 Car. 3, c. 34, ana 
 who, during the continuance of his office, 
 acted as a receiver for the king of the 
 lands of the king's wa/rds and widows. 
 
 riAT. A latin word signifying " let 
 it bedmie." Thus, upon a petition to the 
 King for his warrant to bring a writ of 
 error to the House of Lords, he used to 
 vTiite the woiis Jiatjustiiia, "let justice 
 be done, " on the top of the petition. And 
 in like manner, it was under a fiat of the 
 Lord Chancellor, addressed to the Court 
 of Bankruptcy, that the petitioning cred- 
 itor used to prosecute, and that that Court 
 used to hear the bankruptcy petition. 
 Both these uses of the word " fiat " have 
 gone into disuse, but analogous uses of 
 the word remain; and as so used, the 
 ■word in every case denotes an authority 
 issuing from some competent source for 
 the doing of some legal act. 
 
 FICTIONS. These are assumptions of 
 an innocent and even beneficial character, 
 made for the advancement of the ends of 
 jtiatice. They secure this end chiefly by 
 the extension of procedure from cases to 
 which it is applicable, to other cases to 
 which it is not strictly applicable, the 
 ground of inapplicability being some dif- 
 ference of an immaterial character. Thus 
 by the strict law of Rome, a foreigner 
 (peregrinus) who had committed or suf- 
 fered a tort, was neither liable to be sued, 
 nor competent to sue, for the same ; but 
 at a very early period the peregrimis in 
 such a case was enabled to sue, and was 
 
 Fictions. — {^OonUnued.) 
 made liable to be sued, upon the assump- 
 tion, i. e., fiction, that he was a Roman 
 citizen. And similarly in English Law, 
 the procedure of the Court of Exchequer, 
 which was strictly confined to matters af- 
 fecting the Crown revenues, was extended 
 by means of the fiction quo minus to gen- 
 eral civil suits in debt, and similarly the 
 procedure of the Court of Queen's Bench 
 was extended by the fiction of the ac etiam 
 clause. It was customary also at one 
 time to lay the venue at St. Martin's-le- 
 Grand by a fiction for the true venue in 
 the case of murders committed abroad, e. 
 g., in Jamaica, this being an innocent 
 fiction, the utility of which consisted in 
 giving the Queen's Bench in England 
 jurisfiction to try the ofiense. And 
 generally, the procedure of Courts of 
 Equity, so far as the same is supplement- 
 ary to that of Courts of Common Law, 
 depended largely on fictions of the like 
 sort, e. g., ttiat the cestui que trust was 
 feudally possessed, and might sue in the 
 absence of his trustee, in whom the legal 
 estate in reality was. 
 
 According to Maine, fictions stand mid- 
 way between early law and modem legis- 
 lation, as a means of advancing the law. 
 This opinion is corroborated by what 
 actually occurred in the Roman Law, and 
 by what is daily occurring in English 
 Law. Thus, the actio Rumiana, which 
 was the result of legislation, superseded 
 the actio Sermana, which was the product 
 of a fiction (Gai. iv. 35) ; and in English 
 Law, by the C. L. P. Act, 1853, the cestui 
 que trust was empowered to proceed at 
 Law precisely as he might have done in 
 Equity, a provision which is now made 
 general by the Judicature Act, 1873. 
 
 FIDEICOMMISSAEIUS. TMs word 
 denoted in Roman Law the person who 
 in English Law is called the cestui que 
 trust. The prmtor ^fideieommissarius was 
 an officer who corresponded to the Lord 
 Chancellor. Mdeicommissa was the name 
 for trusts, which are said to have been 
 introduced for the first time in the reign 
 of Augustus (Just. 3, 38, 1) in the person 
 of Lucius Lentulus. 
 
 FIDEJUSSOR. A surety in Roman 
 Law. He might be added to any obliga- 
 tion, whether civil or natural, being in 
 this respect (and in a few other respects) 
 different from both a fidepromissor and a 
 yMnsor, who were also sureties. He en- 
 joyed a right against the principal debtor 
 
150 
 
 FIDUCIARY. -^ FINE. 
 
 Fidejussor. — (^GorMrmed.) 
 
 analogous to the right of recoupment in 
 EngUsh Law, and which was called the 
 actio depensi; but after the JEpigt/ula Ha- 
 d/Hani (117 A. D.), he had no right anal- 
 ogous to the English Law right of contri- 
 bution as between co-sureties, but he had 
 a better right, viz., the ieneficium divi- 
 sionis, which required the creditor to split 
 his demand evenly among all the co-sure- 
 ties, whom for that purpose he made co- 
 defendants. 
 
 See also title Subbtt. 
 
 FIDUCIABT. This phrase is derived 
 from the Latin fiducmrius, which in Ro- 
 man Law denoted substantially a trustee ; 
 and, accordingly, the word is used in 
 Enghsh Law to denote any one who holds 
 the character of trustee, or (more accu- 
 rately) a character analogous to that of 
 trustee: e. g., agents, guardians, and the 
 like. 
 
 In the Roman Law, a fiduaMrius hitor 
 was the elder brother of an emancipated 
 pupiUus, whose father had died leaving 
 him still under fourteen years of age. 
 
 * FIEL. In Spanish Law, An officer 
 whose duty it is to keep things deposited 
 by law. Las Partidas Pt. 3, tit. 9, 1. 1. 
 
 *FIEEDING COURTS. Ancient 
 Gothic courts of limited jurisdiction. 3 
 Bl. Com. 34. 
 
 FI. FA. A writ of execution, as to the 
 general character of which, see that title. 
 The particular writ is in substance a com- 
 mand to the party to whom it is directed, 
 viz., the sheriff, that of the goods and 
 chattels of the debtor he do cause to be 
 made (Jierifadaa) the sum recovered by 
 the judgment, together with interest at 4 
 per cent, and that he have the money and 
 interest, and the writ itself, before the 
 Court immediately after the execution of 
 the writ, or on a day certain in term, to 
 be rendered to the party who sued out the 
 writ. Under the stat. 1 & 3 Vict. c. 110, 
 the sheriff may, upon a fi. fa., seize any 
 money, bank notes, cheques, bills of ex- 
 change, promissory notes, bonds, special- 
 ties, or other securities for money belong- 
 ing to the debtor, in addition to things 
 that were already seizable by the Com- 
 mon Law; but by stat. 8 & 9 Vict. c. 127, 
 the wearing apparel and bedding of the 
 debtor or his family, and the tools and 
 implements of his trade, to the extent of 
 £5 in value, are protected. 
 
 FIFTEENTHS. This was a tax con- 
 sisting of one-flfteenth part of all the 
 moveable property of the subject. It is 
 said to have been first imposed by Hen. 3. 
 See title Taxation. 
 
 FILING OF RECORD. This means 
 entering amongst the records of the 
 Court. 
 
 *FIN DE NON RECEIVOIR. In 
 
 French Law, A plea that the plaintiff 
 has no right to bring the action. Pothier 
 Proc. Civ., Pt. 1, c. 3, s. 3, art. 3; Story 
 Confl. La,ws, § 580. 
 
 FINAL JUDGMENT. A judgment is 
 either final or interlocutory. It is said to 
 heflncH, when it is complete in itself, and 
 entitles the party to obtain at once the 
 fruits of Ms, judgment, without any 
 further inquiry being requisite for the 
 purpose of ascertaining its amount. On 
 the other hand, a judgment is said to be 
 interlocutory, when something further re- 
 mains to be done in the suit before the 
 successful party is entitled to issue exe- 
 cution upon his judgment. For example, 
 in an action of assumpsit, if the defend- 
 ant suffers judgment to go by default, the 
 judgment is interlocutory only, because 
 the amount of the debt or damages has 
 first to be ascertained, and possibly a jury 
 to be summoned for the purpose, before 
 any execution may issue on the judgment. 
 But under the C. L. P. Act, 1853, many 
 judgments which used to be held inter- 
 locutory are made final, subject to the 
 ascertainment of the amount of debt or 
 damages, where that is a mere matter of 
 calculation. 
 
 FINAL PROCESS. As distinguished 
 from mesne process (for which, see that 
 title), this phrase is used to denote writs 
 of execution, such as fi. fa. and elegit, 
 being the steps taken at the end of a suc- 
 cessful action for the purpose of realizing 
 the fruits of a judgment. 
 
 FINDING OF A JURY. This denotes 
 the verdict of the jury. They, find a 
 mixed verdict, that is, partly of law and 
 partly of fact; and it is competent for 
 them to find the contrary of the truth, for 
 their finding maketh even what is false 
 to be true, in cases of an exceptional 
 character: see BushelPs Case, 6 St. Tr 
 909. 
 
 FINE. A species of assurance abol- 
 ished by the stat. 3 & 4 Will. 4, c. 74, 
 but which previously to that statute was 
 
FINES ON ALIENATION. — FIXTURES. 
 
 151 
 
 Fine. — {Continued.) 
 
 commonly in use for assuring estates of 
 
 freehold. In criminal* law, pecuniary 
 
 punishment. 
 
 FINES ON ALIENATION. These 
 were incidents, of the tenure by knight 
 service in capite, and became payable to 
 the king upon any aUenation by his 
 tenant, apparently as the purchase-money 
 for Uberty to aUene. In case such a 
 tenant attempted to aUene without hav- 
 ing first obtained in that manner the 
 king's license so to do, he incurred a com- 
 plete forfeiture of his lands. Similar fines 
 were also exacted, and still are exacted, 
 upon the alienation of lands of copyhold 
 tenure. 
 
 See title Copyholds. 
 
 FIRE-BOTE. This is the same as 
 hmae-hote, which title see; and see also 
 title Estovers. 
 
 FIRST FRUITS (primiim.) The first 
 year's whole profits of a benefice or spirit- 
 ual living. These were originally part of 
 the papal usurpations over the clergy of 
 this kingdom ; and as they expressed their 
 willingness to contribute'so much of their 
 income to the head of the church, it was 
 thought proper, when the papal power 
 was abolished, and the king declared 
 head of the Church of England, to annex 
 this revenue to the Crown, which was 
 done by stat. 36 Hen. 8, c. 3 (confirmed 
 by stat. 1 Eliz. c. 4), and a new i)alor 
 heneflaiorum was then made, by which the 
 clergy have since been rated. 
 
 FISHERY. The right or privilege of 
 fishing. It is a species of common, and 
 is sometimes described as common of pis- 
 cary. Free fishery is the exclusive right 
 of fishing in a public river, and is a privi- 
 lege of the Crown. Several fishery is a 
 right of fishing enjoyed by the owner of 
 the soil of the river, and which he may 
 lease or devolve in any other manner upon 
 a stranger. 
 
 FISH ROYAL. These were the whale 
 and the sturgeon, which, when thrown 
 ashore, or caught near the coast, became 
 the property of the king by virtue of his 
 prerogative, and in recompense for his 
 protecting the shore from pirates and 
 robbers. 
 
 FIXTURES. As the name denotes, 
 are things fixed or affixed to other things. 
 The rule of law regarding them is that 
 which is expressed in the maxim Aecessio 
 
 Fixtures. — ( Continued.) 
 cedit prineipoM, ' ' the accessary goes with, 
 and as part of, the principal subject- 
 matter." This maxim, as applied to 
 lands, has assumed in English Law the 
 form "Quid-qudd plantatwr solo, eolo cedit," 
 and in Roman Law the form " OmTis 
 quod iwxdiflcatwr solo, solo cedit." The 
 rule had its first application in English 
 Law in the case of buildings erected on 
 land for agricultural purposes, whence 
 agricultural fixtures so-called present 
 the operation of the maxim in its most 
 general form. But inasmuch as that 
 maxim was thought to operate, and 
 undoubtedly did operate, in discourage- 
 ment of trade, there grew up a mitiga- 
 tion of the rule, applicable to trade fixtures 
 as they were called, and which mitigation 
 was to this effect, that fixtures of the lat- 
 ter sort might be removed during the 
 tenancy by the tenant who had put them 
 in, but not after the determination of his 
 tenancy. This mitigation of the rule 
 was subsequently extended, upon the like 
 grounds of utility, to ornamental fixtures 
 so called, which also were permitted to be 
 removed during the tenancy, but not af- 
 terward. 
 
 Fixtures are chattels of an amphibious 
 character, being for some purposes and 
 at some times interests in land and for 
 other purposes, and at other times purely 
 personal chattels. Thus, while fixtures 
 are annexed to lands or houses, they are 
 an interest in land, and are ratable as 
 land, and trover will not lie for their con- 
 version or detention ; and yet, even while 
 so annexed, they ere not, mrihle, an inter- 
 est in land within the meaning of the 
 4th sect, of the Statute of Frauds (29 
 Car. 2, c. 3). On the other hand, fix- 
 tures, even while annexed, are purely per- 
 sonal chattels within the meaning of the 
 Bills of Sale Act, 1854 (17 So 18 Vict. c. 
 36) ; and yet the Courts have held that 
 where they are comprised in one testatum, 
 together with the lands or houses to 
 which they are attached, they are to be 
 treated as part and parcel of the lands or 
 houses, and that the Bills of Sale Act, 
 1854, intended them to be personal chat- 
 tels only when treated in a separate tes- 
 tatum by themselves, and when the 
 grantee or mortgagee had the power of 
 removal and of sale; SeeBawtreyY. But- 
 Un, 21 W. R. 633, and JSx parte Bwrelay, 
 Be Joyce, 23 W. R. 608-610 (reflecting on 
 Aliens. Meitx, I. c); and see generally 
 Brown on Law of Fixtures, 2nd ed. 
 1872. 
 
152 
 
 PLEDWITE. — FORESTALLING. 
 
 *PLEDWITE. Li old English Law, 
 A. fine exacted from a fugitive or outlaw 
 as the price of the king's pardon. Burr. 
 Diet. 
 
 FLOTSAM: See title Jetsam. 
 
 _ F(ENUS NAUTICUM. This phrase 
 literally means maritime interest, which 
 was commonly at a higher rate of per- 
 centage than ordinary interest, in consid- 
 eration of the extra risks which are in- 
 curred at sea. 
 
 See, also, titles Bottomry; Respon- 
 dentia. , 
 
 FOLK-LAND. In Anglo-Saxon times, 
 lands were divided into boc-land and folc- 
 land, the former being held by writing, 
 and the latter by custom merely. 
 
 FOLK-MOTE. This denotes an assem- 
 bly of the people. It was in the nature 
 of an inferior Court,, and an appeal lay 
 from it to the superior Courts. It is sup- 
 posed to have been the same as the shire- 
 gemote in counties, ,and as the burg- 
 gemote in burghs. But it had other more 
 general meanings, and denoted merely a 
 popular assembly, summoned for any 
 cause, whether permanent or occasional, 
 and either to complain of existing mis- 
 governments or to renew the duty of al- 
 legiance to the sovereign. In these latter 
 senses, it seems to have acted as that ul- 
 timate tribunal of the Commons them- 
 selves. To which (in the words of Aus- 
 tin), the House of Commons and the min- 
 isters are subject. 
 
 * FOLK-BIGHT. This word occurs in 
 the laws of King Edward I., and is 
 thought to be the same as commum Icm. 1 
 Bl. Com. 65. 
 
 FOBCIBLE ENTRY. This is a crim- 
 ina,l offense, and consists of an entry or 
 detainer made with such a number of per- 
 sons or with such a show of force as is 
 calculated to deter, the rightful owner 
 from sending the persons away and re- 
 suming his own possession (Mitner v. 
 Modem, 3 0. & P. 17). The offense is 
 somethmg more than a trespass {Hea) v. 
 Smyth, 5 0. & P. 201). The entry must 
 have been unlawful, to come within the 
 Stat. 8 Hen. 6, c. 9. 
 
 FOBECLOSUBE. This is one of the 
 remedies of a mortgagee. Por its opera- 
 tion and effect, see title Mortgage. 
 
 *FOBEHAND BENT. A premium 
 given by the tenant at the time of taking 
 the lease. Crabb. Real Prop. § 155. 
 
 F0BEI6N ATTACHMENT. When 
 the defendant is sued in the Lord Mayor's 
 Court of the City of London, it is the 
 custom of that City and Court to issue an 
 attachment against moneys or debts in 
 which the defendant has a beneficial in- 
 terest, and for which that defendant 
 might at the time of the attachment have 
 brought an action ( WSster v. Webster, 31 
 Beav. 393). It is not necessary that the 
 debt for which the attachment issues 
 should arise within the jurisdiction, or 
 that the parties should be within the ju- 
 risdiction, but only that the debt attached 
 should be so. A foreign attachment is 
 no bar to an action for the same debt. 
 
 FOBEIGN ENLISTMENT. The stat. 
 59 Geo. 8, c. 69, was until recently the 
 Foreign Enlistment Act for England ; but 
 during the recent Franco-Prussian war 
 that Act was repealed, and a further and 
 more stringent Foreign Enlistment Act 
 (38 & 34 Vict. c. 90) was passed, declar- 
 ing illegal, and visiting with penalties, 
 the following offenses, viz. : — 
 
 (1.) Enlisting in military or naval ser- 
 vice of any foreign state at war with an- 
 other foreign ^state at peace with Eng- 
 land ; 
 
 (3.) Being in any manner subservient 
 thereto or assisting therein; and 
 
 (3.) Building ships or making expedi- 
 tions in aid of either belligerent. 
 
 FOBEIGN LAWS. Are often the sug- 
 gesting occasions of changes in, or adm- 
 tions to, our own laws, and in that respect 
 are called jiis reeepPwm. But foreign laws 
 sometimes prevail almost propria vigore 
 within this country, through our Courts 
 of Justice choosing invariably to follow 
 them in certain cases. What those cases 
 are, and in what cases the English Courts 
 refuse to follow the foreign- law and ap- 
 ply the Law of England, may be learned 
 from a study of the "Conflict of Laws," , 
 by Mr. Story or Mr. Wharton, or (more 
 conveniently, perhaps) from Westlake's 
 Priv. Inter. Law. And for some detailed 
 information of the various laws which 
 come in conflict, see these titles in this 
 dictionary, viz., Lex Loci Rbi SiTio ; Lex 
 DoMiorLn ; Lbx Loci Actus or Celebra- 
 tionis ; Lbx Looi Situs ; Lex Loci Solu- 
 tionis or Contractus ; and Lbx Fori. 
 
 FORESTALLING. The obstructing 
 of a way ; the intercepting of a person or 
 thing on a road'. 
 
 Also regrating or engrossing of the 
 market, which is an offense by the Com- 
 
FOREST-LAW. —FORNICATION. 
 
 153 
 
 Forestalling. — {Continued.) 
 mon Law; thus, spreading rumors, withi 
 intent to enhance the price of hops, in 
 the hearing of hop-planters, to the effect 
 that the stock is nearly exhausted and 
 that there will be a scarcity is an instance 
 of this oflense. Some attempt was made 
 by the stat. 7 & 8 Vict. c. 24, to regulate 
 t^e offense, but apparently with poor ef- 
 fect : the statute was necessary, inasmuch 
 as the Common Law offense extends only 
 to the necessaries of Uf e {Pettamberdara 
 Y. Noehxrrseydas, 7 Moo. P. 0. C. 239). 
 The Index to the Revised Edition of the 
 Statutes, p. 407, speaks of the offense of 
 forestalling, &c., as abolished by the last- 
 mentioned statute, sed guan-e. 
 
 FOREST-LAW. This was a particular 
 system or body of laws relating to the 
 forests of the Crown. It is popularly as- 
 sociated with every thing that was cruel, 
 — an opinion to which the frequency of 
 that kind of statute called Oarta di For- 
 esta seems to give some probability. The 
 officers of the forest, who were charged 
 to preserve the " vert and venison " there- 
 of, were called /westers. 
 
 FORFEITURE. By the stat. 33 & 84 
 Vict. c. 23, forfeiture or escheat of lands 
 on the ground of felony is abolished, but 
 of course remains for any other cause (see 
 title Bschbat). The law of forfeiture 
 also still apphes as between landlords and 
 their tenants for breaches of covenants 
 contained in leases ; and with reference 
 to these, not being mere informal insur- 
 ances, neither Courts of Law nor Courts 
 of Equity have much or any power to re- 
 lieve. See title Penalties. 
 
 See, also, title Waiver. 
 
 FORGERY. This is a criminal offense, 
 existing partly by Common Law and 
 partly by statute. Forgery at Common 
 Law is the fraudulent mahing or alteration 
 ef a writing to the prejudice of another 
 man's right. Under the stat. 24 & 25 
 Vict. c. 98, and numerous other statutes, 
 offenses analogous to forgery at Common 
 Law are made felonies, and are punisha- 
 ble as forgeries ; but that punishment is 
 not now death (as formerly), but penal 
 servitude for life, or for any term not less 
 than five years, or imprisonment, with or 
 without hard labor, and with or without 
 solitary confinement, for any term not 
 exceeding two years. 
 
 FORISFAMILIATED. An antiquated 
 word, which signifies much the same as 
 set up in the world (see title Advanck- 
 
 20 
 
 Forisfamiliated. — (Oontinued.) 
 MBNT). A son was said to be forisfamil- 
 iated when in his father's life-time he re- 
 ceived his part of the lands, and was con- 
 tented therewith. 
 
 See, also, title Hotchpot. 
 
 FORMA PAUPERIS. A. person is 
 said to sue or defend an action or suit in 
 forma pauperis, i. e., in the character of 
 a poor person, when, »by going through 
 certain forms, he is admitted by the Court 
 so to sue or defend, and has counsel and 
 attorneys assigned to conduct his case 
 free of charge. An order of the Court 
 is necessary, which is to be obtained upon 
 a petition of the party, accompanied with 
 a certificate of counsel. The order must 
 be served on the opposite party, and only 
 takes effect as from the date of such ser- 
 vice (Fray v. Voules, L. R. 3 Q. B. 214) ; 
 but, subject to that rule, the party may 
 be admitted to sue or defend in this ca- 
 pacity at any stage of the proceedings. 
 Moreover, he may appeal without making 
 any deposit. Drennan v And/reu>, L. R. 
 1 Ch. 300. 
 
 FORMEDON. This was an action in 
 the nature of a writ of right. There 
 were three species of the writ, viz. : — 
 
 (1.) Formedonm the descender ; 
 
 (2.) Formedon in the remainder ; and 
 
 (3.) Formedon in the reioersion; 
 these forms of writ being applicable re- 
 spectively in the following cases: — 
 
 (1.) Formedon in the descmder, where 
 the tenant in tail aliened the land entailed 
 or was disseized thereof and died, and 
 the heir in tail wanted to recover the land 
 against the then tenant of the freehold ; 
 
 (2.) Formedon in the remainder, where 
 the tenant for life or in tail with remain- 
 der to a third person in fee or in tail died 
 (and, in the case of tenant in tail, with- 
 out issue), and afterward a stranger in- 
 truded upon the land and kept the re- 
 mainderman out of possession, and the 
 remainderman wanted to recover the land 
 from the intruder ; and 
 
 (3.) Formedon in the reverter, where the 
 tenant in tail died without issue, and the 
 reversioner wanted to recover the lands 
 against the then tenant thereof. 
 
 All these forms of this writ were abol- 
 ished by the stat. 3 & 4 Will. 4, c. 27, s. 
 36, but it would be a mistake to suppose 
 that the analogous remedies are abolished, 
 which they are not. 
 
 ♦FORNICATION. Unlawful carnal 
 knowledge of an unmarried person of 
 
154 
 
 FORPRISE. — FRAUD. 
 
 Fornication. — (OorMrmed.) 
 
 another, whether married or unmarried. 
 
 Bouv. Diet. 
 
 * FORPRISE. An exception or reser- 
 vation. 
 
 * FOURCHER. A mode of delaying an 
 action, formerly used by defendants. 
 
 FRANCHISE. An incorporeal here- 
 ditament or rightf such as a ferry, 6r a 
 market, entitling the owner of the fran- 
 chise to take certain tolls or pecuniary 
 payments. Sometimes, also, it denotes 
 an exemption from the ordinary jurisdic- 
 tion, coupled with the right of exercising 
 a jurisdiction of one's own ; arid in this 
 last signiflcation it is a royal privilege or 
 branch of the king's prerogative, subsist- 
 ing in the hands of a subject ; e. g., to be 
 a county palatine, to have right to hold 
 a Court leet, to have "waifs, wrecks, es- 
 trays, treasure-trove, royal fish, forfeitures, 
 and deodands. 3 Cru. 278. 
 
 FRANKALMOIGN. A species of ten- 
 ure of lands granted by the owner to the 
 church or to any monastic body, to hold 
 to the church or monastery for ever free 
 (as the name denotes) of all manner of 
 services to the donor for ever, save and 
 except the saying of prayers and. the dis- 
 tributing of charity to the poor for the 
 welfare of the soul of the donor and his 
 family for ever. 
 
 FRANEMARRIAGE. A species; of 
 tenure of lands granted by the owner to 
 his son-in-law upon his marrying into the 
 family, to hold to such son-in-law and the 
 heirs of the marriage free (as the name 
 denotes) of all manner of services to the 
 donor until the fourth generation, the 
 sole consideration for the gift being the 
 marriage itself. 
 
 FRAUD. Its definition and the ys^e- 
 ties thereof: 
 
 At Law fraud has been thus variously 
 defined : ^ 
 
 (1.) Falsely and fraudulently warrant- 
 ing a specific article sold (Langridge v. 
 Leoy, 2 M. & W. 519) ; the scienter is an 
 essential part of the definition, and its 
 absence dispels the fraud [Longmeid, v. 
 HoUiday, 6 Ex. 761); 
 
 (2.) Falsely and fraudulently represent- 
 ing a man as a safe customer {Pasley v. 
 Freeman, 3 T. B. 51), where the repre- 
 sentation is intended to be acted upon, 
 and is in writing under 9 Geo. 4, c. 14, 
 s. 6; 
 
 Fraud. — ( Continued. ) 
 
 (3.) Recklessly asserting, without any 
 knowledge of the matter, the existence of 
 a certain state of circumstances, and in- 
 ducing the plaintiff, in reliance thereon, 
 to act upon an erroneous assumption to 
 his loss {Evans v. Edmunds, 13 C. B. 777) 
 [sed quceritur] ; and 
 
 (4.) Asserting without any knowledge 
 of the matter, but with a disbelief of his 
 own assertion, the existence of a certain 
 state of circumstances, and inducing the 
 plaintifiE in reliance thereon to act upon 
 an erroneous assumption to his loss. Tay- 
 lor V. Aahtm, 11 M. & "W. 415. 
 
 See iTifra, cases in which an action for 
 fraud will lie at Law. 
 
 In Equity, fraud has never been defined, 
 the Courts fearing that new cases of fraud 
 might arise, which if they should not fall 
 within the definition might prove to he . 
 irremediable ; but the Courts of Equity 
 have distinguished many classes and 
 varieties of frauds, namely, the foUowr 
 ing: 
 
 I. Actual Fraud, and hereunder two 
 sub- varieties, namely: 
 (A.) Frauds from a regard to the 
 peculiat position of the de- 
 frauded person. 
 (B.) Frauds without any such regard, 
 but arising from conduct gen- 
 erally, as being either 
 (1.) Stiggestio/dld; or 
 (2.) Suppressio veri. 
 n. Constructive Fraud, and hereunder 
 three sub-varieties, namely: 
 (A.) Frauds, because evasions of the 
 
 rules of public policy. 
 (B.) Frauds, because violations of 
 trust or of confidence reposed. 
 (C.) Frauds, because of unconscien- 
 tious nature of acts themselves, 
 either 
 (1.) As against the parties; 
 or, • 
 
 (2. ) As against third persons. 
 And see concrete instances of fraud in 
 paragraph containing Remedies in Equity. 
 Bemedies in cases of Frcmd. These 
 reniedies lie either at Law or in Equity. 
 
 I. The remedies available at Law are 
 the following; 
 
 (1.) An action on the case in the nature 
 of a writ of deceit, and recover- 
 ing damages for the fraud ; and 
 (2.) An action on "the common indebi- 
 tatus count for money had and 
 received, and recovering the full 
 amount of the debt. 
 
FRAUD. 
 
 155 
 
 Fraud. — ( Continued. ) 
 
 Generally speaking, the first of these 
 two remedies, viz., an action to recover 
 damages arising from fraud will lie in 
 every case of fraud ; but if the plaintifE 
 chooses to disaffirm the contract on the 
 ground of fraud, he may then bring the 
 second form of action, viz., an action on 
 the common indebitatus count {Neate v. 
 Hcurding, 6 Ex. 349). But some act of 
 disaffirmance must in every case precede 
 the commencement of the latter form of 
 action. Smith v. Bodson, 4 T. R. 311; 3 
 Sm. L. C. 119, and notes. 
 
 A false warranty and a misrepresenta- 
 tion being often difficult to distinguish, 
 it is customary in practice to join a count 
 for fraud with the count for a breach of 
 warranty where it is doubtful whether a 
 warranty can be proved. 
 
 There is, however, a limit to the right 
 of bringing the first action, i. e., an action 
 on the case in the nature of deceit, it 
 b^ing a rulg of the Common Law that 
 such an action will not lie against a prin- 
 cipal for the fraudulent representations of 
 his agent, the principal not having either 
 expressly or impliedly authorized the 
 agent to make the representations (Corn- 
 foot V. FowJce, 6 M. & W. 358) ; and there- 
 fore an incorporated -company caimot as 
 such be made liable ia this action for the 
 false representations of its directors, the 
 company not having authorized the di- 
 rectors to make the representations (TF«sf- 
 em BanJe of Scotland v. Addie, L. R. 1 S. 
 & D. 162), the remedy (if any) being 
 against the directors only. Gerhard v. 
 Bates, 3 El. & Bl. 487. 
 
 And there is also a limit to the right of 
 bringing the second action, i. e., an action 
 for money had and received, it being a 
 rule of the Common Law that such an ac- 
 tion will not lie if the circumstances have 
 so far changed since the date of the con- 
 tract that the parties cannot be restored 
 'to the position in which they stood before 
 or at the time of the contract (Clarhe v. 
 Dvekson, Bl. Bl. & El. 148) ; and therefore 
 a contract, although induced by fraud, 
 cannot be avoided if the rights of an in- 
 nocent vendee have in the mean time in- 
 tervened. Queen v. Saddhr^s Gomparvy, 
 10 H. L. C. 430. 
 
 At Law, an action to recover damages 
 arising from fraud, or (upon a disaffirm- 
 ance) an action on the common indebita- 
 tus count will lie in the following cases: 
 
 (1.) Where the defendant has stated or 
 represented as a matter of fact (and not 
 of opinion merely) what is untrue, hnowr 
 
 Fraud. — ( Continued.) 
 ing it to be untrue, with intent to induce 
 the plaintiff to act upon it, and has there- 
 by induced the plaintiff to act upon it, to 
 his loss {Paaley v. Freeman, 3 T. R. 51) ; 
 
 (3.) Where the defendant has stated or 
 represented as a matter of fact (and not 
 of opinion merely) what is untrue, with- 
 out knowing whether it is false or true, 
 hit Twt Relieving it to he true, with intent 
 to induce the plaintiff to act upon it, and 
 has thereby induced the plaintiff to act 
 upon it to his loss {Twywr v. Aihton, 11 
 M. & W. 401) ; 
 
 (3.) Where the defendant has stated or 
 represented as a matter of fact (and not 
 of opinion merely) what is untrue, know- 
 ing it to be untrue, hut from, defect of 
 memory idi&oing at the time that it is true, 
 with intent to induce the plaintiff to act ' 
 upon it, and has thereby induced the 
 plaintiff to act upon it to his loss {BUm 
 V. Croucher, 3 Giff. 37); 
 
 (4.) Where, senihle, the defendant has 
 stated or represented as a matter of opin- 
 ion merely what is untrue, not heliemng it 
 to he, true, with intent to induce the plain- 
 tiff to act upon it, and has thereby in- 
 duced the plaintiff to act upon it to his 
 loss; 
 
 (5.) Where the defendant has fraudu- 
 lently concealed from the plaintiff some 
 defect which it was his dcatj (either gen- 
 erally, or by reason of the special circum- 
 stances of the transaction) to disclose, 
 with intent to induce the plaintiff to act 
 upon the assumption of the absence of 
 such defect, and has thereby induced the 
 plaintiff to act upon the assumption to 
 his loss (HorsfaU v. Thomas, 1 H. & C. 
 90); and 
 
 (6.) Where the defendant has falsely 
 and fraudulently warranted a specific 
 article sold (Langridge v. Levy, 3 M. & W. 
 519) ; in which latter case (waiving the 
 fraud) an action would lie for breach of 
 warranty. 
 
 But such action will not lie at Law in 
 the following cases : 
 
 (l.)Where the defendant has stated or 
 represented as ^ matter of fact (and not 
 of opinion merely) what is untrue, know- 
 ing it to, be untrue, hut without intent to 
 induce the plaintiff to act upon it, although 
 the plaintiff may have been induced 
 thereby to act upon it to his loss {Way v. 
 Seam, 13 0. B. [N. B.] 292); 
 
 (3.) Where the defendant has stated or 
 represented as a matter of fact (and not 
 of opinion merely) what is untrue, with- 
 out knowing whether it is false or true, 
 
156 
 
 FRAUD. 
 
 Frand. — ( Continued,.') 
 tut heUeming it to he true amd rwt hrnig under 
 any d/wby to hww the contra/ry, with intent 
 to induce the plaintiff to act upon it, and 
 has thereby induced the plaintiff to act 
 upon it to his loss (Evans v. OolMns, 5 Q. 
 B. 804; see, also, title Fbatto, Legal 
 WITHOUT Moral Fbaud) ; 
 
 (3.) Where the defendant has stated or 
 represented as. matter of opinion merely 
 what is untrue, heUeoing it to be irue, with 
 intent to induce the plaintiff to act upon 
 it, and has thereby induced the plaintiff 
 to act upon it to lus loss. This is an ap- 
 plication of the maxim, Oa/eeat Mnptor ; 
 and 
 
 (4.) Where the defendant has fraudu- 
 lently concealed from the plaintiff some 
 defect, which it was not the duty of the 
 defendant (either generally, or by reason 
 of the special circumstances of the trans- 
 action) to disclose^ but on the contrary 
 the duty of the plamtiLS to discover, with 
 intent to induce the plaintiff to act upon 
 the assumption of the absence of such 
 defect, and has thereby induced the plain- 
 tiff to act upon that assumption, to his 
 loss. This is another application of the 
 maxim Oaeeat Emptor. 
 
 As to pleading fraud at Law, the defense 
 must be specially pleaded, although it 
 is generally sufficient for the defendant 
 to allege that he was iaduced to make 
 the alleged contract by the fraud of the 
 plaintiff. Where fraud is pleaded with 
 particularity, no other fraud can be 
 proved than that which is averred {Tu^k 
 V. TooJee, 9 B. & C. 437). Sometimes the 
 Court orders particulars of the fraud to be 
 delivered. Marshall v. Emperor Life As- 
 sitrance Society, L. R. 1 Q. B. 35. 
 
 n. The remedies available in Equity 
 are the following : — . 
 
 (1.) The Rescission of the contract,and 
 
 hereunder, — 
 
 (a.) The cancellation and delivery 
 
 up of executory agreements; 
 
 (&.) The setting aside of executed 
 
 agreements; 
 
 (3.) The specific perfbrinance' of the 
 contract, with or without com- 
 'peps9.tion; 
 
 (3.) An injunction from profiting by 
 the fraud ; and 
 
 (4.) A declaration making the defraud- 
 ing party a trustee for the party 
 defrauded. 
 
 Every such remedy is available by bUl, 
 and by bill only. The bill must not rest 
 upon a mere general allegation of fraud, 
 but must state in a particular manner the 
 
 Fraud. — (^Gontinued.) 
 details of the transaction which is im- 
 pugned as fraudulent, iii order that the 
 Court may infer from that statement 
 whether there was or not any fraud in 
 the transaction. Oilhert v. Lewis, 1 De Gr. 
 J. & S. 38. 
 (A.) Where the remedy sought is the 
 
 RESCISSION OF THE CONTRACT, Whether 
 
 that be for the cancellation and delivery up 
 of executory or for the setting aside of 
 executed agreements, the following are 
 the general requisites to the success of 
 the suit : — 
 
 (1.) That the party against whom re- 
 lief is sought can be remitted to his former 
 position, the interests of third parties 
 without notice of the fraud not having 
 meanwhile intervened; 
 
 (3.) That the contract may be rescinded 
 in toto, unless indeed it be severable in 
 its nature, in which latter case the rescis- 
 sion of the fraudulent portion of it may, 
 subject to the first requisite) be obtained 
 (^Matiwrin v. Tredennich, 13 W. R. 740); 
 and 
 
 (3.) That the party to the contract is 
 either himself the person who committed 
 the fraud or is a privy of such person. 
 Pulsford V. Richards, 17 Beav. 95. 
 
 The remedy by rescission is available in 
 the cases of the following general char- 
 acter, «. g., where a brother or other per- 
 son gives the intended wife a sum of 
 money to swell her fortune, taking a bond 
 for the repayment of the sum. Qale v. 
 Inndo, 1 Vern. 475 ; and see the very sim- 
 ilar case of Twrton v. Benson, 1 P. Wms. 
 496. 
 
 The terms upon which a transaction is 
 rescinded are in general upon the plain- 
 tiff doing equity. Thus, fraudulent in- 
 struments are commonly set aside on 
 repayment by the plaintiff of the actual 
 consideration given, with interest thereon 
 at a reasonable rate; or they are directed 
 to stand as a security for the moneys ac- 
 tually advanced with the like interest,, or 
 for what upon taking the accounts shall 
 be ascertained to be really due. And 
 where the transaction affects real estate, 
 it is usual to direct a reconveyance there- 
 of upon the repayment of the purchase- 
 moneys and all sums laid out in improve- 
 ments and repairs of a permanent and 
 substantial ^nature by which the present 
 value is improved, with interest thereon 
 from the respective times of the actual 
 disbursements, the party in possession 
 accounting' on his part for deteriorations 
 and for the rents received and profits made 
 
FBAUD. 
 
 157 
 
 Fraud. — ( Continued.) 
 in the meantime out of the estate. But 
 ceatuia que trust in respect of the frauds 
 of their trustees, and principals in respect 
 of the frauds of their agents, stand upon 
 more favorable terms, being entitled at 
 their option to hold the defrauding per- 
 son to his fraud if that is more beneficial 
 to them, and at the same time to take the 
 profits he has made by the fraud, or at 
 their option to have the property re-con- 
 veyed, and'interest paid at the rate of 5 
 per cent, instead of 4 per cent, which is 
 the usual rate in other cases. In the case 
 of two or more copartners, where one of 
 them has been induced by fraud to enter 
 into the partnership, the terms of rescis- 
 sion are that his copartner or copartners 
 repay hinn whatever he has paid, with in- 
 terest thereon, and indemnify him against 
 all habilities incurred by him through 
 having become and been a partner, he on 
 his part accounting for what profits he 
 has received out of the partnership. 
 Where a man has been fraudulently in- 
 duced to take shares in a company, he is 
 entitled to recover his money and to have 
 his name removed from the register, he 
 accounting to the company for any divi- 
 dends or other profits in the meantime 
 received by him. 
 
 (B.) Where the remedy sought is the 
 
 SPBCIFIC PEKFOBMANCB OF THE CONTRACT 
 
 with or without compensation, the fol- 
 lowing are the general requisites to the 
 success of the suit : — 
 
 (1.) That the actual subject-matter of 
 the contract is in substance that which 
 it was misrepresented as being, and that 
 the difference accordingly admits of com- 
 pensation ; 
 
 (3.) That the party who made the mis- 
 representation, being plaintiff, offers to 
 give compensation for the variance, or 
 being defendant is discharged by the 
 plaintiff from giving such compensation 
 (see Seton v. Slade, 7 Ves. 365 ; 3 Wh. & 
 Tud. L. C. 468 ; and Townshend v. 8tamr- 
 groom, 6 Ves. 338) ; and 
 
 (3.) That the plaintiff is himself uAo- 
 cent in respect of the fraud or misrepre- 
 sentation. 
 
 This remedy is available in the follow- 
 ing cases, and, either 
 
 (1.) Against one who is a party to the 
 contract; or 
 
 (3.) Against one who is not a party to 
 the contract. 
 
 (1.) Against one who is a party to the 
 contract : — 
 
 Fraud. — (GonUnued.) 
 (a.) Where, although the property is 
 incorrectly described, yet the 
 inaccuracy was known to the de- 
 fendant at the time, or he in- 
 spected the property before mak- 
 ing the purchase and relied upon 
 his own judgment (Dyer v. Ed/r- 
 grme, 10 Ves. 505) ; 
 (b.) Where the vendor invited further 
 investigation on the part of the 
 purchaser, and gave him every 
 . facility for the same ; 
 (c.) Where the misrepresentations are 
 
 matters of opinion merely ; 
 (<?.) Where the property is subject to 
 incumbrances concealed from the 
 purchaser, and the vendor can by 
 paying off these make good his 
 ascertion that the property is un- 
 incumbered; and 
 (e.) Where the property is subject to 
 some small rent not disclosed at 
 the time of the contract, and the 
 vendor may satisfy or provide 
 for the same by some deduction 
 * from the purchase-money, of by 
 
 some commutation payment. 
 (3.) Against one who is not a party to 
 the contract: — 
 
 (a.) Where a person makes a false rep- 
 resentation of the value of prop- 
 erty which is agreed to be 
 charged in favor of another per- 
 son as security for a loan to some 
 third person {Ingram, v. Thorpe, 
 7 Hare, 67 ; also Burrowes y.Loch, 
 10 Ves. 470; Gleland v. Leech, 5 
 Ir. Ch. 478) ; and 
 (6.) Where the father of an intended 
 wife promises to her intended 
 husband to leave her a sum of 
 money by his wiU, and the mar- 
 riage contract follows upon the 
 faith of such promise. Ba/rh- 
 worth V. Towng, 4 Drew, 1 ; and 
 see the very similar case of Hut- 
 ton V. Bomter, 7 De Q-. M. & G. 
 9 (executor). 
 It follows that specific performance is 
 excluded in all cases not presenting the 
 three general requisites enumerated above, 
 and more especially where the property is 
 substantially different to what it was rep- 
 resented as being, e. j'., if it is freehold 
 instead of copyhold, or leasehold instead 
 of freehold, and viae versd, or if it is an 
 underlease and not an original lease, or 
 mc^verad, and so forth. 
 
 (0.) WTien an nuJiwcTiON is the remedy 
 
158 
 
 FRAUD. 
 
 Fraud. — ( OonUmied. ) 
 sought, that remedy is in general availa- 
 ble in the following cases: — 
 
 (1.) "Where a creditor of the intended 
 husband represents to the father, or other 
 relation in loco parentis of the intended 
 wife, that the husband is not indebted to 
 him. Nemlle v. Wilkinson, 1 Bro. CO. 
 
 (3.) Where a brother or other person 
 gives the intended wife a sum of money 
 to swell her fortune, taking a bond for 
 the repayment of the sum. Qdle-v. lAndo, 
 1 Vem. 475; Twton v. Benson, 1 P.Wms. 
 496. 
 
 (3.) Where proceedings, are taken at 
 law upon an instrument which is vitiated 
 by fraud, although the defense of fraud 
 may be good at law. FemyJimtgh v. 
 Leader, 15 L. J. (Ch.) 458. 
 
 (4.) Where the defrauding party threat- 
 ens to part with or transfer property 
 which he has fraudulently obtained, e. g., 
 by paying over moneys, negotiating se- 
 curities, and such like. 
 
 (5.) Where the fraud consists in the 
 piracy of a trade-mark. 
 
 (6.) Where a right of prospect was tfee 
 inducement upon which a person took a 
 lease, and the lessor threatens to destroy 
 the right by buildings opposite. Piggott 
 V. Stratum, John. 359. 
 
 (7.) Where a retiring trader who has 
 sold the goodwill of his business, upon 
 the express or even implied understanding 
 not to set up the same business next door, 
 and he nevertheless proceeds to do so. 
 
 (D.) Where the remedy sought is a 
 DBCLARATioN that the defriiuding person 
 is A TETTSTBB for the defrauded person, 
 that remedy is available in the following 
 cases : 
 
 (1.) In the case of moneys which have 
 been fraudulently appropriated ; 
 
 (3.) In the case of jiidgmehts or de- 
 crees fraudulently obtained. 
 
 It is clear that a Court of Equity cannot 
 set aside the judgment of a Court of Com- 
 mon Law, but it may decree the success- 
 ful party who is successful through a 
 fraud to reconvey or hold in trust for the 
 party thereby defrauded any property or 
 profit he may have acquired as the fruits 
 of or under the judgment. Bwnmby v. 
 Powell, 1 Ves. 130, 385 ; Allen v. Maopheir- 
 son, 1 Ph. 145; 1 H. L. C. 213. 
 
 In pleadings in Equity the fraud must 
 be specifically alleged in the bill; and 
 evidence is admissible to prove the case 
 therein stated, and that case only. In 
 case the fraud should not be proved, l)ut 
 a case for some relief be maide, the bUl 
 
 Fraud. — ( GonUntied. ) 
 may pray for such alternative reUef, One 
 bill may be brought against a single prin- 
 cipal in respect of two totally distinct 
 frauds committed by his two agents. 
 WalsJiam v. Stainton, 1 De G. J. & S. 
 678. 
 
 In the case of the defense of purchase 
 for value without notice of the fraud, that 
 defense must be pleaded specially; but it 
 is sufficient to deny the notice generally, 
 unless particular facts are alleged as evi- 
 dence of the notice, in which latter case, 
 in addition to the plea, an answer deny- 
 ing the facts as specially and particularly 
 as they are charged in the biU must ac- 
 company the plea (Pemdngton v. Beeehey, 
 3 Sim. & Stu. 382). And in every case of 
 an answer being put in alone, the answer 
 must be full, and it must also expressly . 
 set up the defense of purchase for value 
 without notice, if that is a defense in- 
 tended to be relied on. 
 
 Sometimes Law has jurisdiction in cases 
 of fraud where Equity has none. Thus 
 (1.), Equity vrill not rescind a contract, 
 where the parties to it carmot be restored 
 to their respective original positions ; and 
 Law is, in that case, the only forum for 
 redress {Great iMxerribourg By. Go. v. 
 Magnay, 35 Beav. 587). And again (2.), 
 where the party to the contract is neither 
 the person who committed the fraud nor 
 a privy of such person, the party de- 
 frauded can have no rescission of the con- 
 tract in Equity ; and unless therefore the 
 misrepresentation may be made good,, he 
 must seek redress at Law against the 
 person guilty of the fraud; whence, for 
 the fraudulent representations of the 
 directors of a company, not being repre- 
 sentations authorized by the con^)any, 
 the redress is at Law (BroeJowelV.a Case, 4 
 Drew. 205). Again (3.), where a person 
 has given a general representation of £he 
 character or credit of another, which is 
 fraudulent, the person injured thereby, 
 from his reliance thereon, can have no re- 
 dress in Equity, but must proceed at Law 
 in an action for damages. Whibmore v. 
 Maeheson, 16 Beav. 128. 
 
 On the other hand, Eqmty has some- 
 times jurisdiction where Law has none. 
 For, in general. Courts of Equity act 
 upon mudh slighter evidence of fraud than 
 Courts of Law do, inferring it, whereas 
 at Law it must be proved, e. g., from the 
 condition of the injured parties in the 
 cases, of fraud enumerated above. And 
 in the great majority of cases, although 
 there is a remedy at Law, yet the remedy 
 
FRAUD, LEGAL, APART FROM MORAL FRAUD. 
 
 159 
 
 Fraud. — ( GontinueA.) 
 
 in Equity is concurrent, and it is there- 
 fore optional for the plaintiff to sue in 
 either jurisdiction, according as he finds 
 the remedy either more convenient or 
 more adequate; thus in Ooltv. WooUaa- 
 ton (3 P. Wms: 154), a bill for the mere 
 recovery of moneys was held not demur- 
 rable, and that case has been often fol- 
 lowed since ; and in Bwrry y. Grosakey (2 
 J. & H. 30), a bill in Equity was more 
 convenient, as avoiding a multiplicity of 
 actions. 
 
 FRAUD, LEGAL, APART FROM 
 MORAL FRAUD. The question has 
 been raised whether legal fraud, unac- 
 companied by moral fraud, is actionable. 
 This question only amounts to this, 
 whether a false representation made with- 
 out knowledge that it is false, and with- 
 out any dishonest intention, should make 
 the person (who has made it) liable in 
 damages. The question is rendered more 
 complex where the fraud occurs under 
 the following circumstances : A. employs 
 
 B. as his agent to sell a house. C. goes 
 to the agent, intending to buy the house, 
 and asks B. whether there is any thing 
 objectionable about the house or thS 
 neighborhood. B. answers — no, and 
 Tionestly believes there is nothing objec- 
 tionable, but A., his principal, knows 
 that the next house has a bad reputation. 
 
 C. thereupon sues A. for the false repre- 
 sentation of B., his agent: — Held, that 
 A. was not liable, as he did not give B. 
 any instructions to make the misrepresen- 
 tation. Gomfoot V. Fwj)Tise, 6 M. & W. 
 858. 
 
 FRAUDS, STATUTE OF. This is the 
 famous Stat. 39 Car. 2, c. 3, which applies 
 as well to Real Property as to Equi^^and 
 to Common Law. 
 
 1. As applying to Real Property. It 
 enacts that aU leases, &c., of lands made 
 vnthout writing signed by the parties or 
 their agents lawfully authorized in writ- 
 ing, shall have the force of leases, &c., at 
 wiU only (s. 1); except, nevertheless, 
 leases not exceeding three years from the 
 maldng thereof which reserve two-third 
 parts at the least of the full improved 
 value of the lands demised (s. 3) ; and 
 that no lease, &c., of lands (not being 
 
 ■ copyholds) shall be assigned,, &o.,' or sur- 
 rendered, unless it be by writing, signed 
 by the party assigning, &c., or surrender- 
 ing, or his agent lawfully authorized 
 
 . in writing, except nevertheless assign- 
 
 Frauds, Statute ot.— {GonUnued.) 
 
 ments, &c., and surrenders by act and 
 operation of law (s. 3). 
 
 II. As applying to Equity. It enacts 
 that all declarations or creations of thists 
 of land shall be in writing signed by the 
 party declaring or creating the same 
 (s. 7) ; except, nevertheless, trusts arising 
 or resulting by the implication or con- 
 struction of law, or transferred or dis- 
 tinguished by act or operation of law (s. 
 8); that all grants and assignments of 
 trusts shall be in writing signed by the 
 party granting or assigning the same (s. 
 9) ; and that the shenffi may take upon 
 an execution for the debts of the cestm 
 que trust all lands of which any one is 
 seized or possessed in trust for him at the 
 time of execution sued in like manner as 
 the sheriff might or could have done if 
 the cestui que tru^t had been himself seized 
 thereof at that time ; also, that such lands 
 being fee simple lands descending to the 
 heir of the eestid, me trust ahaU be deemed 
 assets by descent for payment of such 
 debts, in like manner as they would have 
 been if the estate had been legal (s. 10). 
 
 ni. As applying to Common Law. It 
 enacts that no action shall be brought— 
 
 (1.) Whereby to charge any executor 
 or administrator upon any special prom- 
 ise to answer damages out of his own 
 estate; or i ■ 
 
 (3.) Whereby to charge the defendant 
 upon any special promise to answer for 
 the debt, default, or miscarriage of 
 another person ; or 
 
 (3.) Whereby to charge any person 
 upon any agreement made upon consid- 
 eraijion of marriage ; or 
 
 (i.) Whereby to charge any person 
 upon any contract or sale of lands, or any 
 interest in or concerning thejn; or 
 
 (5.) Whereby to charge any person 
 upon any agreement that is not to be per- 
 formed within the space of one year from 
 the making thereof, — 
 
 Unless the agreement or some memo- 
 randum or note thereof is in writing and 
 signed by the party to be charged there- 
 vnth, or his agent lawfully authorized 
 (S.4); 
 
 And it further enacts, that no contract 
 for the sale of any gdpds for the price of 
 £10 or upwards stajl be allowed to be 
 good; uiuess — ; 
 
 (1.) The buyer shall accept part of the 
 goods so sold and actually receive the 
 same ; or 
 
 (3.) Give something in earnest to bind 
 the bargain, or in part payment ; or 
 
160 
 
 FRAUDULENT GIFTS. — FREiaHT. 
 
 Frauds, Statute of. — {Oontmved.) 
 
 (3.) Some note or memorandvim in 
 writing of the said bargain be made and 
 signed by the parties to be charged by 
 such "contract or their agents lawfully 
 authorized (s. 17) ; 
 
 And it further enacts that (judgments 
 against lands shall bind the lands as 
 against purchasers only from the day of 
 signing judgment ; and that) judgments 
 against goods shall bind the property of 
 the goods only from the day that the writ 
 of execution thereon is delivered to the 
 sheriff to be executed (ss. 14, 15). 
 
 FRAUDULENT GIFTS. Gifts, 
 whether of lands or of personal estate, 
 which are fraudulent, are so either (a.) 
 By the Common Law; or (S.) By the 
 Statute Law. 
 
 The criterion of fraud at the Common 
 Law is not single but complex, its chief 
 element being, however, the debtor's con- 
 tinuance in possession of the goods after 
 the gift thereof. Mdma/rds v. Bawrben, 2 
 T. R. 587. 
 
 *FBEDNITE. Authority to hold 
 courts and receive fines for beating and 
 wounding. Cowel; Bouv. Diet. Called 
 
 also Fredwite. 
 
 FBEEBENCH. A name by which the 
 dower of widows is known in the case of 
 copyhold lands. It is subject to many 
 varying customs,, but extends usflally to 
 one-third of the lands of which her hus- 
 band at his death was possessed. 
 
 FREEHOLD. A freehold is the hold- 
 ing of a freeman; and as no freeman 
 could originally receive more, or would 
 originally accept less, than an estate for 
 his own Ufe, therefore the original free^ 
 hold was a Ufe estate. And although, at 
 the present day, as indeed from a very 
 early period, freehold estates of larger 
 quantity than for life are numerous 
 enough, yet the original quality of the 
 freehold is stUl expressed in the custom- 
 ary definition of that terni which is, as 
 commonly expressed, the following: — 
 An estate of freehold is any estate of 
 uncertain duration which may possibly 
 last for the life of the tenant at the least. 
 Whence an estate granted to a widow 
 during her widowhood is an estate of 
 freehold. 
 
 FREIGHT. This is the reward which 
 is payable for the carriage of ^oods by 
 sea, whether in a chartered or m a gen- 
 
 Freiglit. — ( Continued.) 
 eral ship ; the usual time for payment i 
 being upon completion of the voyage, 
 although (in charterparties more espe- 
 cially) the payment may be otherwise 
 agreed; e. g., it may be specially agreed 
 that freight shall be paid in advance; and 
 when this is so, the amount paid cannot 
 be recovered back, even if the voyage 
 fails, unless there is a distinct agreement 
 to that effect. 
 
 Whejre the freight has not been paid in 
 advance, but, the goods having been duly 
 laden on board, the ship has broken 
 ground, i. e., has fairly started on the 
 voyage, then, although the voyage should 
 afterward ful, the freight is nevertheless 
 due by Maritime Law; but, in such a 
 case, the shipowner acquires by English 
 Law only a right of action against the 
 freighter, i. .«., shipper, for the damage 
 consequential on his breach of contract, 
 and not for freight properly so called 
 {Curling Y. Toung, 1 B. & P. 636). In 
 some cases, however, of a failure of the 
 voyage, freight may be recoverable pro 
 rata itineris (Kay's Law of Shipmasters, 
 pp. 309-313). The Court of Admiralty 
 possesses an equitable jurisdiction over 
 questions of freight. 
 
 Seconery of Frdglit. ■. — No one can be 
 liable to pay freight unless under an ex- 
 press or implied contract for its payment. 
 Moreover, several such contracts may 
 exist simultaneouAy. binding different 
 persons to pay the same . freight. For 
 instance, the shipper is liable on his ex- 
 press contract by charterparty, or on the 
 implied one arising from the shipment, 
 and this notwithstanding the bill of lad- 
 ing should state that the freight is to be 
 paid by the consignee or his assigns; and 
 at the same time the consignee or any 
 assign of his receiving the goods under 
 the bill of lading is liable also. But pay- 
 ment of freight by one discharges all; 
 and where cash has been offered by the 
 consignee, .but the master has elected to 
 take from him a bill of exchange in pay- 
 ment, and the bill of exchange is after- 
 ward dishonored, the remedy against the 
 shipper or consignor is gone. Tapley v. 
 iKorfejM, 8 T. R. 451. 
 
 Sh/ipowner's Lien for Freight. — The 
 shipowner has, independently of contract, , 
 a lien on the goods actually carried for 
 the freight due in respect of them, and 
 also for any sum which by the charter- 
 party is to be paid for the hire of the 
 ship ; but his lien does not, in the absence 
 of express stipulation to that effect, 
 
FRBNDNITE. — PRUMGTLD. 
 
 161 
 
 Freight. — ( GmHnued.) 
 extend to claims for dead freight, demur- 
 rage, wharfage or port charges. But the 
 shipowner may deprive himself of his 
 lien by the terms of his contract with the 
 shipper; e. g., if the freight is not to be- 
 come payable until after the goods are to 
 be delivered {Lucas v. Nbekdls, 4 Bing. 
 739). Moreover, possession is necessary 
 to a lien. If, therefore, the shipowner 
 absolutely demises the ship to the char- 
 terer, and thus parts with the possession 
 of her and her cargo, he has no hen for 
 her earnings ; but the Courts endeavor to 
 prevent such an effect, even where the 
 terms of the demise are absolute, pro- 
 vided' they can find any expression of a 
 contrary intention in the charterparty. 
 Where, as is now common, a ship is char- 
 tered at a lump sum, and it is intended 
 to be put up by the charterers as a gen- 
 eral ship, and the charterparty provides 
 that the master shall sign bills of lading 
 at such rates of freight as the charterers 
 may direct, without prejudice to the 
 charter, the shipowner's lien remains 
 against the charterers for the charter- 
 freight, and against the holders of the 
 bills of lading for the bill of lading 
 freight, but, in the case of the latter, 
 only to the extent of the freight they 
 have contracted to pay, although it may 
 be less than the charter-freight. 
 
 And see the Merchant Shipping Act 
 Amendment Act, 1862 (25 & 26 Vict. c. 
 63), SB. 67-78, and Kay's Law of Ship- 
 masters. 
 
 ♦PRENDNITE. A fine exacted from 
 one who harbored an outlaw. Cowel. 
 
 FBESH DISSEIZIN. Such a dissei- 
 zin as a man himself might seek to defeat, 
 that is, by his own power, without the 
 help of the king, or judges, or other 
 foreign aid ; as where a disseizin had not 
 taken place above fifteen days or other 
 short period. Britton, cc. 43, 55. 
 
 FBESH FORCE. A force which had 
 been recently committed in any city or 
 borough, as by disseizin, abatement, in- 
 trusion, or deforcement of any lands or 
 tenements within such city or borough ; 
 and before the action of ejectment was 
 introduced the party who had a right to 
 the land might, by the usage of the said 
 city or borough, bring his assize or bill 
 of fresh force within forty days after the 
 force had been committed for the pur- 
 pose of recovering' his land. Fitz. Nat. 
 Brev. ; Le» Termea de la Ley. \ 
 
 91 
 
 FBESH SUIT. MTien a party robbed 
 diligently and immediately follows and 
 apprehends the thief, or convicts him 
 afterward, or procures evidence to con- 
 vict him, this following up of the thief is 
 termed making fresh suit, and the person 
 so robbed shall in such case have restitu- 
 tion of his goods. Fresh suit is also 
 when the lord comes to distrain for rent 
 or service, and the owner of the beasts 
 rescues them or makes rescoits (as it is 
 termed), and drives them into another 
 man's ground not holden of the lord, and 
 the lord follows and takes them there. 
 2 Hawk. P. C. c. 23; Les Termea de la 
 Ley. , 
 
 *PEIBUSCALUM. In Civil Law, A 
 slight disagreement between husband 
 and wife, producing a temporary separa- 
 tion without intention to dissolve the 
 marriage. Bouv. Diet. ; Poth. Pan^. lib. 
 50, s. 106. 
 
 FBIENDLT SOCIETIES. The law as 
 
 to these societies was consolidated by the 
 stat. 13 & 14 Yict. c. 115, and has been 
 still further consolidated by the stat. 18 
 & 1ft Vict. c. 63. The members of such 
 a society being duly registered are not 
 liable to be sued iriflividuaUy for the 
 debts of the society (Burton v. TamuMll, 
 5 El. & Bl. 797) ; the only persons liable 
 to be sued are the officers of the society. 
 All disputes within the society, i. e., be- 
 tween any member and the treasurer or 
 other officer of the society, are to be 
 decided in the manner directed by the 
 rules of the society, and sucii decision is 
 to be binding and without appeal. By 
 the stat. 28 & 24 Vict. c. 58, provision 
 has been made for the winding-up and 
 dissolution of such societies. 
 
 *FBITHBOBG. In Saxon Law, A 
 pledge or surety for the peace. Burr. 
 Diet. 
 
 * FEITHBOTE. In Saxon Law, A fine 
 for breach of the peace. 
 
 FEIVOIOUS PLEAS. These are pleas 
 which are clearly insufficient upon the 
 face of them, and are generally (when at 
 all) put in for purposes of delay, or to 
 embarrass the plaintiff. Under the C. L. 
 P. Act, 1852, they may, on motion, be 
 ordered to be at once struck out ; seeus, if 
 the plea is not manifestly frivolous on the 
 face of it. See Day Practice, p. 88. 
 
 * FBUMGTLD. In Saxon Law, Tho 
 first payment made to kin of a slain per- 
 son in recompense of his murder. 
 
162 
 
 FUBRO. — GENERAL AVERA&E. 
 
 *rUERO. In Spanish Law, A code 
 of laws; also usages and customs; the 
 unwritten, law; charters, ordinances; let- 
 ters emanating from the king. The word 
 has a great variety of meanings. 
 
 FUGITIVE'S GOODS. The goods of 
 a felon who took flight, and which, after 
 the flight, were lawfully found, belonged 
 to the king or to the lord of the manor. 
 5 Rep. 10 q. 
 
 FUNGIBLES. Any moveable goods 
 which may be estimated by weight, num- 
 ber, or measure; hence jewels, paintings, 
 statues, and works of art in general are 
 not considered as fungibles, but, on the 
 contrary, as nonfungibUea, *because their 
 value cannot be measured by any com- 
 mon standard; whereas res ftingiKles 
 are money, barley, oil, and such-like, 
 which can be repaid in kind. 
 
 FURTHER MAINTENANCE OF AC- 
 TION, PLEA TO. A plea grounded 
 upon some fact or facts which have arisen 
 since the commencement of the suit, and 
 which the defendant puts forward for the 
 purpose of showing that the plaintiflf 
 should not further maintain his action. 
 It is called a plea to the further mainten- 
 ance of the suit, because it does not, 
 like an ordinary plea in bar, profess to 
 show that the plaintiflE had no ground of 
 action when he commenced the suit, but 
 simply shows that he has no right to 
 maintain it further. A plea of payment 
 of money into Court in satisfaction of the 
 plaintiff's claim ia in the nature of a plea 
 to the further maintenance of the suit, 
 such a plea admitting that the plaintiff 
 had a good cause of action, but showing 
 that he ought not further to maintain it, 
 upon the ground that the money so paid 
 in by the defendant is sufficient to satisfy 
 all damages which the plaintiff has sus- 
 tained. See Step. PI. 73, 4th ed. 
 
 Gr. 
 
 GAGE : Bee title Nantissbmbnt. 
 
 GAME. Under this description are 
 included hares, pheasants, partridges, 
 grouse, heath or moor game, black game, 
 and bustards. 1 & 3 Will. 4, c. 33. 
 
 Game chased and killed on the land of 
 
 A. is his property {Blades v. Biggs, 13 0. 
 
 B. [N. 8.] 501, and 13 O.B. [N. S.] 844); 
 secus, where the game is started on an- 
 other man's ground and killed on the 
 ground of A. OTrnvrehwiwA v. Btuddy, 14 
 East, 349. 
 
 See, also, titles Chase; Pabk. 
 
 GAMING: See title Wagbring. 
 
 * GANANCIAL PROPERTY. In 
 
 Spanish Law, The species of property 
 held by husband and wife in common 
 which is increased during marriage. 1 
 Burge. Confl. Laws, 418-9. 
 
 GAOL. A prison. 
 
 GARANTIE. In French Law corres- 
 ponds to warranty or covenants for title 
 in English Law. In the case of a sale this 
 garantie extends to two things. (1.) 
 Peaceful possession of the thing sold; 
 and (3.) Absence of undisclosed defects 
 {d^f omits cacMi). 
 
 GARNISHEE : See title Attachment 
 or Debt. 
 
 ♦GARNISHMENT. An order to secure 
 the appearance of one not a party for the 
 information of the court. 
 
 GATELKIND : See titles Fbudai Ten- 
 tjkb; Estates. 
 
 GELD. A Saxon word signifyiug 
 money or tribute. In consideration with 
 other words it signifies the compensation 
 for some particular crime, e. g., wergeld 
 signifies the value of a man slain; orfgeld 
 the value of a beast slain. 
 
 GEMOTE. A Saxon word signifying 
 a convention or assembly, e. g.,witenagenwte 
 and sMregemoteaxe respectively the assem- 
 bly of the witan, or wise men, and of the 
 shire or county, i. e., the freeholders 
 thereof. 
 
 GENERAL AVERAGE. Cases of gen- 
 eral average arise where loss or damage is 
 voluntarily and properly incurred in re- 
 spect of the goods on board ship or in 
 respect of the ship for the general safety 
 of both ship and cargo; the loss sus- 
 tained by the particular owners having 
 inured to the advantage of the owners 
 generally, it is only equitable to distrib- 
 ute, i. e., adjust the loss ratably over all 
 the owners ; and such adjustment is gen- 
 eral average. The phrase simple or par- 
 ticular average is an inaccurate and mis- 
 leading phrase, meaning nothing more 
 than that a particular damage, — e. g., the 
 souring of a cask of wine — must rest 
 where it falls. 
 
 General average is excluded in the case 
 of particular losses arising from the ordi- 
 nary risk and perils of the sea {Power v. 
 Whibmore, 4 M. & S. 149) ; and, therefore, 
 in the case of the loss of a mainmast, oi 
 
GENERAL ISSUE, PLEA OF. — GILD. 
 
 163 
 
 General Average. — {Oontinued.) 
 damage done to the yards, by -winds, &c., 
 there is no general average. The dis- 
 tinction is well stated by Lord Kenyon in 
 Birkley v. Presgram (1 East, 230), in this 
 manner: That all ordinary losses and 
 damages sustained by the ship, happening 
 immediately from the st&rm or perih of the 
 sea, must be borne by the shipowners; 
 but that all those articles which a/re made 
 use ofhythe master and orew upon a par- 
 ticular emergency and out of the usual 
 course, for the benefit of the whole con- 
 cern, must be paid for proportionably as 
 a general average. 
 
 The most usual instance of a case for 
 general average is the case of jettison, 
 being thejactits of the Koman Law; and 
 any damage voluntarily and necessarily 
 done to the ship in order to facilitate the 
 jettison, is a general average loss ; also, a 
 voluntary stranding of the ship must be 
 made good as a general average, provided 
 the stranding was a proper thing to do, 
 or was prudent and reasonable. 
 
 Less usual instances of general average 
 are where part of the cargo is necessarily 
 sold by the master in order to defray the 
 expenses of repairing injuries to the ship 
 which are themselves matters of general 
 average (_The Oratitudine, 3 Rob. 355); 
 also where the ship puts into port in dis- 
 tress owing to an injury which is itseH 
 matter of general average, and there are 
 incurred expenses for repairs and for un- 
 loading, and also port-charges, seamen's 
 wages, and cost of provisions during the 
 detention (Da Costa v. Newnham, 3 T. R. 
 413); also the expenses of salvage; also 
 the freight of jettisoned goods. 
 
 But general average is excluded in re- 
 spect of the following losses : The wages 
 and provisions of the crew in cases of 
 detention by embargo ; the expenses oc- 
 casioned by an oroEnary quarantine, or 
 by waiting for convoy; also (although 
 with exceptions) deck cargoes that are 
 jettisoned ; also damage sustained in re- 
 sisting capture. 
 
 With reference to the articles liable to 
 contribute toward general average, the 
 ship and freight contribute, the former 
 in proportion to its value at the end of 
 the voyage, the latter deducting the ex- 
 penses of the voyage and the wages of 
 the crew; also, all merchandise put on 
 board for the purpose of traffic must con- 
 tribute. But the ship's stores and the 
 ship's ammunition do not contribute ; as 
 neither do the wearing apparel, luggage, 
 jewels, &c., of the passengers or crew, all 
 
 General Average. — {OonUnued.) 
 
 these articles being for use and not for 
 traffic. 
 
 And see title Adjustment of Atkh- 
 
 AQE. 
 
 GENERAL ISSUE, PLEA OF. Under 
 the present practice, this plea is a mere 
 denial of the gist of the action, that is, a 
 denial of the principal fact on which the 
 declaration is founded ; and every other 
 matter of defense must be pleaded spec- 
 ially. See R. T. T. 1853. The defense, 
 where appropriate, is available in all sorts 
 of actions and prosecutions, whether 
 founded on contract, or on tort, or in 
 crime, the most common examples of it 
 being "Not guilty," "Nevei; indebted," 
 "Non Assumpsit," "Non est factum," 
 and such like. 
 
 In certain cases it is permitted by stat- 
 ute .to plead the general issue, and to give 
 the special matter of defense in evidence ; 
 and in that case the words "by statute " 
 must be inserted in the margin of the 
 plea. However, under the Act 5 & 6 
 Vict. c. 97, s. 3, this form of defense is 
 aboUshed in the case of local and personal 
 Acts. 
 
 GENERAL SHIP. Where a ship is 
 not chartered whoUy to one person, out 
 the owner offers her generally to carry 
 the goods of all comers, or where if char- 
 tered to one person he ofiers her to several 
 sub-freighters for the conveyance of their 
 goods, she is called a general ship, 
 as opposed to a chartered one. In these 
 cases the contract entered into by and 
 with the shipowner or master, as his agent, 
 is called a biU of lading. 
 
 See title Bill of Lading. 
 
 *GERSUME. A fine. 
 
 GESTIO PRO H^REDE. This is a 
 phrase of Roman Law, and denotes act- 
 ing as Tiwres, i. e., successor to a deceased 
 person, vrithout having made or before 
 making the aditio ha/reditatis or entry. 
 See Gains, ii. 174-8. 
 
 *.GEWRITE. In Saxon Law, Deeds; 
 charters. 
 
 GIFT : See title Conveyancbs. 
 
 GILD. This word (more commonly 
 spelt guild) signifies primarily tribute, and 
 secondarily, the fraternity or company 
 that is subject to the tribute. The com- 
 pany is a body of persons bound together 
 by ordeiB and laws of their own making, 
 th^king's license having been first had 
 
164 
 
 GLADIUS. — GROUKD-RENT. 
 
 Gild* — ( Oonimued.) 
 
 to the making thereof. A gild of mer- 
 chants may be incorporated by grant of 
 the sovereign, and such incorporation, 
 without more, is sufficient to establish 
 them as a corporation for ever. O-uild- 
 Hall is the name given to the hall of meet- 
 ing of the guild ; the term is applicable 
 to the public place of meeting of the 
 mayor, aldermen, and commonalty of 
 every city and borough, but is applied 
 par excellence to the place of meeting of 
 the Lord Mayor, Aldermen, and Com- 
 monalty of the City of London. 
 
 GLADIUS. This word, which is the 
 Latin for sword, was used as the symbol 
 of jurisdiction ; a person created an earl 
 was gladio mcdnctus, he having jurisdic- 
 tion over his county. 
 
 * GODBOTE. An ecclesiastical fine or 
 amercement. Cowel. 
 
 *GOING WITNESS. One who is going 
 out of the jurisdiction of the court. Bouv. 
 Diet. 
 
 GOOD CONSIDERATION. Consists 
 in "blood and natural affection," as op- 
 posed to ' ' money and money's worth, " 
 which latter constitute a valuable consid- 
 eration. Good consideration is, however, 
 used in the stat. 13 Eliz. c. 5, as the same 
 thing as valuable consideration. 
 
 GOODWILL.. As applied to the sale of 
 a business this phrase denotes the sum of 
 money which any one would be willing to 
 give for the chance of being able to keep 
 the trade connected with the place where 
 it is carried on. It is the purchase of an 
 advantage that is dependent solely upon 
 locality; and therefore a sale of the good- 
 will without a sale or lease of the premi- 
 ses would be impossible andinconsistent ; 
 and an agreement for such a sale would 
 therefore not be enforced in the Court of 
 Chancery. Austen v. Soys, 3 De G. & J. 
 636. 
 
 GRACE. This word is commonly used 
 in contradistinction to right. Thus, in 23 
 Edw. 3, the Lord Chancellor was instruc- 
 ted to take cognizance of matters of grace, 
 being such subjects of equity jurisdiction 
 as were exclusively matters of equity. 
 Again, days of grace is a phrase denoting 
 the three extra days allowed by the cus- 
 tom of merchants after the maturity of a 
 bill of exchange for the payment thereof. 
 
 GRAND ASSIZE: See title TIbiai. by 
 
 JtTRT. • 
 
 ♦GRAND BILL OF SALE. An instru- 
 ment whereby a ship is assigned while at 
 sea. Bouv. Diet. 
 
 ♦GRAND CAPE. A writ in old real 
 actions issued to compel the appearance 
 of the defendant after neglect to obey 
 the original writ, and commanding the 
 officer to "take"' his lands; and if he 
 came not at the day named he lost his 
 lands. A petit cape issued after appear- 
 ance to the original writ ; the grand cape 
 before. Bouv. Diet. 
 
 * GRAND COUTUMIEE. Two ancient 
 collections of laws; the eoutwmier of 
 France and the eoutwmier of Normandie. 
 Hale, Hist. Com. Law, c. 6. 
 
 GRAND JURY : See title Jubt, Teial 
 
 BY. 
 
 GRAND SEEJEANTT : See title Ten- 
 
 VSEB. 
 
 GRANT : See title CoistvEYAJsrcBs. 
 
 *GRAVIUS. A chief magistrate. Bouv. 
 Diet. 
 
 GROSS. The phrase ' ' in gross " means 
 standing separate from any corporeal 
 hereditament. 
 
 See title IncobpokbaIi Hbbedita- 
 
 GROUND-RENT. A landlord having 
 land conveniently situated for building 
 upon, not unfrequently lets it out to a 
 builder at a trivial rent, for a period 
 usually of ninety-nine years, upon the 
 understanding that the builder-lessee 
 shall, within a fixed time, erect upon it 
 one or more messuages of a specified de- 
 scription. When these , messuages are 
 erected, the builder sublets them to oc- 
 cupants, who pay Mm a rent very consid- 
 erably larger than what he himself pays 
 to the ground landlord, being, in fact, a 
 rent estimated to repay him with a profit 
 within the ninety-mne years for his labor 
 and outlay in erecting the messuages and 
 taking a lease of the land from his own 
 landlord. The builder's rent, or that 
 which he pays to the ground landlord, is 
 called the ground rent. Under the stat. 
 4 Geo. 3, c. 38, the ground landlord may 
 distrain on the premises for this rent; so 
 that it is quite possible that the occupy- 
 ing tenant may have to pay not only his 
 own occupation rent but also the ground- 
 rent, unless proper precautionsliave been 
 taken. 
 
 See, also, title Rents. 
 
GUARANTEE. — HABEAS CORPUS. 
 
 165 
 
 GUARANTEE. Is a promise to answer 
 for the debt, default, or miscarriage of 
 another person, and for which that other 
 person remains liable. It is usually a 
 simple contract; and the agreement or 
 memorandum expressing or evidencing it 
 must be in writing by the Statute of 
 Frauds, and must contain all the material 
 terms {Sanmders v. Wakefield, 4 B. & Aid. 
 595), excepting that under the stat. 19 & 
 30 Vict. c. 97 (Merc. Law Am. Act, 1856), 
 s. 3, the consideration need not appear in 
 the writing. . The guarantee may be 
 either for one particular amount, or for 
 any sum not exceeding that amount, or 
 it may be a continuing guarantee, limited 
 or unlimited in amount; e. g., when A. 
 became bound to B. for any debt which 
 C. might contract with him not exceed- 
 ing £100, the guarantee was held to be a 
 continuing guarantee, and not extin- 
 guished by one dealing between B. and 
 C. to that amount {Merle v. Welh, 3 Camp. 
 413) ; on the other hand, a bond entered 
 into by A. and B. to the plaintiff to ena- 
 ble A. to carry on his trade, conditioned 
 for the payment of all such sums not ex- 
 ceeding £8,000 as should at any time 
 thereafter be advanced by the plaintiff to 
 A., was held not to be a continuing guar- 
 antee to the extent of £3, 000 for advances 
 made at any time, but only a guarantee 
 for advances once made to that amount. 
 Kirhy v. Marlborough (Duke), 3 M. & S. 
 18. 
 
 See, also, titles Indemnity; Princi- 
 pal AND SUBETT. 
 
 GUARDIAN. There were at one time 
 a great many varieties of guardians of in- 
 fants, of which the following enumera- 
 tion comprises the principal : — 
 
 (1.) Guardians in chivalry, enduriog 
 until the age of twenty-one 
 years, but abolished by the stat. 
 13 Car. 3, c. 34; 
 
 (3.) Guardians in socage, enduring un- 
 til the age of fourteen years ; 
 
 (8.) Guardians by custom, e.g., of gavel 
 kind lands, enduring commonly 
 till the age of fifteen years ; 
 
 (4.) Guardians by nature, enduring till 
 the age of twenty-one years; and 
 for nurture, enduring till the age 
 of fourteen years ; 
 
 (5.) Guardians appointed by deed or 
 will in virtue of the Act 12 Car, 
 a, c. 34, the most common species 
 of guardian at the present day, 
 and enduring till the age of 
 twenty-one years ; and 
 
 Guardian. — ( Oontirmed.) 
 (6.) Guardians appointed by the Court 
 of Chancery (ecinquidUom), and 
 enduring either for a particular 
 purpose only, or generally till 
 the age of twenty-one years. 
 The guardian appointed under the stat. 
 12 Oar. 3, c. 24, is entitled both to the cus- 
 tody of the person of the child, and to 
 that of the profits of his real and per- 
 sonal estate ; and subject to the control 
 of the Court of Chancery he regulates 
 generally the entire conduct of the infant 
 and the entire management of his estate. 
 He cannot make or take any profit there- 
 out. 
 
 The chief respects in which the Court 
 of Chancery interferes between guardians 
 and infants are the following : — 
 
 (1.) To remove guardians, which it will 
 
 only do for misconduct upon bill 
 
 filed establishing a clear case 
 
 against the guardian ; 
 
 (2.) To compel security from guardian; 
 
 (8.) To compel the guardian to render 
 
 proper accovmts ; 
 (4.) To appoint interim guardians in 
 the absence of the testamentary 
 guardian ; 
 (5.) -To regulate the maintenance and 
 
 education of the child ; 
 (6.) To control his marriage ; and, gen- 
 erally, 
 (7.) To control (without setting aside 
 altogether) the authority of a 
 testamentary guardian (as of a 
 parent himself). See, also, title 
 Infants. 
 
 *GTLTWITE. Compensation for fraud 
 or trespass. Cowel. 
 
 H. 
 
 HABEAS CORPUS. A writ directed 
 to the gaoler, or other person having the 
 applicant in custody, requiring him to 
 produce the body, i. e., person, of the ap- 
 plicant in Court before the judge on the 
 day named therein. The right to a Tiabeas 
 corpus exists by the Common Law, and 
 its availability only has been faciUtated 
 by particular statutes, principally the 
 stat. 31 Car. 3, c. 2 (Habeas Corpus Act) 
 and 56 Geo. 3, c. 100 {In re Besset, 6 Q. 
 B. 481). But whether at Common Law 
 or under statute, the writ does not issue 
 as a matter of course upon application in 
 the first instance, but must be grounded 
 on an affidavit, upon which the Court is 
 to exercise a discretion in issuing it or 
 
166 
 
 HABEAS CORPUS JTIRATORUM.— HANAPER. 
 
 Habeas Corpns. — {ConUnued.) 
 not {Rexy. Sbbhouse, 3 B. & A. 430). 
 Where a witness is in custody, a Juibeas 
 corpus ad tesHficandvipi, is issued to bring 
 him up as a witness (1 Arch. Pract. 355 ; 
 1 Dan. Ch. Pr. 805) ; and prior to the C. 
 L. P. Act, 1853, s. 137, where the defend- 
 I ant was in custody at the suit of a third 
 party, it was necessary for the plaintiff to 
 issue a Tiabeas wrpm ad satisfaciendv/m, to 
 charge him in execution, but under that 
 section a judge's order, made upon affida- 
 vit that judgment has been signed and is 
 unsatisfied, suffices. 1 Arch. Pract. 1209. 
 
 HABEAS CORPUS JURATORUM. 
 
 This was a writ commanding the sheriff 
 to bring up the persons of jurors, and if 
 need were, to distrain them of their lands 
 and goods, in order to insure or compel 
 their attendance in Court on the day of 
 trial of a cause. The writ Was abolished 
 by the C. L. P. Act, 1853, s. 104. 
 
 HABENDUM. ' Is that part of an in- 
 denture expressed iu the words "To 
 have, " and which are usually followed by 
 the words "To hold" (called the tenen,- 
 dwrrC). The phrase "to have and to hold," 
 being as a general rule introductory to 
 the declaration of the uses to, for or upon 
 which the lands are granted. Its office 
 is only to limit the certainty of the estate 
 granted ; therefore no person can take an 
 immediate estate by the habendum of a 
 deed when he is not named in the premi- 
 ses ; for it is in the premises of a deed 
 that the thing is really granted. 4 Cru. 
 Dig. 373. 
 
 HABERE FACIAS POSSESSIONEM. 
 
 When a plaintiff recovered in a real or 
 mixed action (both of which forms of ac- 
 tion, with the exception of ejectment, 
 have been exploded since 1834), he was 
 awarded a writ for the purpose of putting 
 him in possession of the real or personal 
 property recovered ; the writ was called 
 an habere facias possessionem in the case of 
 a chattel interest, and habere facias seis- 
 incrni in the case of a freehold interest. 
 And at the present day a writ of habere 
 fouAas possessionem is the process com- 
 monly resorted to by the successful party 
 in an action of ejectment, for the pur- 
 pose of being placed by the sheriff in the 
 actual possession of the land recovered. 
 See title Ejectment. 
 
 HACKNEY-CARRIAGES. The laws 
 relating to these coaches and cabs within 
 the metropolis are regulated by the stats. 
 1 & 3 Will. 4, c. 33, 1 & 3 Vict. c. 79, 
 
 Hactney-Carriag'es. — ( Oontirmed.) 
 and 17 & 18 Vict. c. 86. They are 
 properly carriages plying for hire off a 
 stand. The driver is liable for negli- 
 gently losing the luggage of a customer. 
 Boss V. ma, 3 0. B. 877. 
 
 *HADBOTE. A compensation or fine 
 for the violation of holy orders, or vio- 
 lence to persons in holy orders. Cowell ; 
 Burr. Diet. 
 
 H^RETICO COMBURENDO. The 
 
 stat. de haireUoo comburendo (3 Hen. 4, c. 
 15) was the first penal law enacted against 
 heresy, and imposed the penalty of death 
 by burning upon all heretics who relapsed 
 or who refused to abjure their opinions. 
 It was repealed by the stat. 39 Oar. 3, c. 
 9, which however abolished the penalty 
 of death only, and left the ecclesiastical 
 jurisdiction for the repression of atheism 
 and false religion otherwise unaffected. 
 See title Tolebation. 
 
 * HAFNE COURTS. Courts anciently 
 held in certain ports in England. 
 
 *HAIMSUCKEN. In Scotch Law, the 
 crime of beating or assaulting a person 
 in his own house. Bell Diet. Called 
 also, Ha/mesuchen. 
 
 HALF-BLOOD. Are children and 
 other persons related to each other through 
 one parent only, whether through the 
 father only, or through the mother only. 
 They were until 1833 excluded from all 
 right of succession to lands, but were ad- 
 mitted by a stat. in that year (3 & 4 WUL 
 4, c. 106). For the place which they oc- 
 cupy, see title Descents. 
 
 * HALF.TONGUE. A jury half of one 
 tongvs or nationality, and half of another. 
 
 * HALLAZCO. In Spanish Law, the 
 finding of something ■ previously without 
 an owner. The thing so found becomes 
 the property of the finder. Las Partidas 
 3,5, 38; 5,48,49; 5, 30, 50. 
 
 * HALTMOTE. A holy or ecclesiasti- 
 cal court. A court held on Sunday in 
 London for regulating the transactions of 
 bakers. 
 
 HANAPER. This is an office con- 
 nected with the Court of Chancery; writs, 
 with the returns thereto, were kept in 
 the hamper or hanaper, in all cases in 
 which the question was one affecting the 
 subject only; writs (with the returns 
 thereto), in which the Crown had an in- 
 terest mediate or immediate being kept 
 
HANDSALE.— HEIR. 
 
 167 
 
 Hanapcr. — {Gontimced.) 
 in the petty lag, which phrase is accord- 
 ingly used in contradistinction to the 
 hanaper. Both the Hanaper OflSce and 
 the Petty Bag Ofllce belong to the Com- 
 mon Law side of the Court of Chancery. 
 
 * HANDSALE. A sale made or con- 
 firmed by the parties shaking hands. A 
 custom which prevailed among Northern 
 nations. 
 
 HANDWRITING. The proof of hand- 
 writing is in general by resemblance, and 
 is effected in either or any of the follow- 
 ing three ways, namely — 
 
 (1.) ^ vim smptionis, i. e., by the 
 comparison of the disputed writing by a 
 witness who has seen the party in the act 
 of writing ; 
 
 (3.) Mc seripUs olvm mds, i. e., by the 
 like comparison by a witness who has had 
 frequent correspondence with the party, 
 or otherwise frequently seen writings of 
 his; 
 
 (3.) jEJc saripto nunc inso, i. e., by the 
 like comparison by a witness who is an 
 expert in characters or letters, and their 
 peculiarities of formation. 
 
 The third sub-variety was not admissi- 
 ble by the Common Law, but was first 
 made so by the C. L. P. Act, 1854 (17 & 
 18 Vict. c. 135, s. 37). 
 
 See, also, title Evidence. 
 
 *HANGWITE. In Saxon Law, a fine 
 for illegal hanging of a thief, or for allow- 
 ing him to escape. Immunity from such 
 fine. Bouv. Diet. ; Jacob Diet. 
 
 HEAD-BOEOUGH. This was the name 
 of the officer who was at the head of a 
 frankpledge, and who was the chief of 
 the ten pledges (whence called chief- 
 pledge) in a decennary. His nine coad- 
 jutors were called Hand-Boroughs. His 
 modem equivalent appears to be the head 
 constable of a borough. 
 
 See, also, title Police. 
 
 HEALTH, PUBLIC. Is Secured by a 
 variety of statutes, principally by the 
 Public Health Act, 1848 (11 & 13 Vict, 
 c. 63), the Local Government Act, 1858, 
 and the Acts amending same. Under 
 these statutes large powers are given to 
 the local authorities for removing nui- 
 sances, regulating burials, checking the 
 sale of injurious food or drink, and other- 
 wise preventing disease. 
 
 HEAKSAT : See title Evidence. 
 
 HEAKTH-MONET: See title Taxa- 
 tion. 
 
 HEDGE-BOTE. This phrase denotes 
 the allowance of wood for the repair of 
 hedges (sometimes called hays, whence 
 hay-bote) made to a tenant for Ufe, or 
 other tenant with a limited interest. 
 See title EsTdvBRS. 
 
 HEIR. As defined by Blackstone, the 
 heir is one "upon whom the law casts the 
 estate immediately on the death of his 
 ancestor ; " whence also it is said that the 
 heir cannot disclaim the estate of his an- 
 cestor (see title Disclaimer). It is a 
 maxim of the English Law that God and 
 not man maketh an heir (Solas Deus haire- 
 demfaeere potest, non homo) ; and again it 
 is a maxim of the Boman Law that the 
 law and not the prsetor makes an heir 
 (Prcetor hairedem facere turn potest, fes 
 facere potest). The two maxims are, 
 however, very different in what they de- 
 note, the maxim of the Boman Law 
 merely pointing at the difference be- 
 tween the harres and the lionwrwm posses- 
 sor (or, roughly speaking, the legal and 
 the equitable owner), and not implying 
 that a testator could not (for in fact he 
 always could) constitute his own heir, 
 whereas the maxim of the English Law, 
 on the other hand, points at the difference 
 between an heir and a devisee, and seeks 
 to denote (with a certain feeling of piety 
 that is characteristic of the early law) the 
 inability of any one to determine for him- 
 self amidst the multitude of chances who 
 shall be the successor to his real estate if 
 left to descend in due coui'se of law. The 
 popular use of the term heir is a mistake 
 for devisee. An heir can only be deter- 
 mined upon the decease of the ancestor 
 (Nemo est halves mventis), and he is the 
 heir whom the canons of descent demon- 
 strate when applied at the date of such 
 decease. See title Descent. 
 
 The following are various uses of the 
 word heir in combination with other 
 words — 
 
 (1.) Seir-Appa/rent. — Is he who, if he 
 survive his ancestor, must cei-tainly be his 
 heir and succeed him, a. g. , the eldest son 
 in the life-time of his father ; 
 
 (3.) Ekjir-Presvmptive. — Is he who, if 
 the ancestor were immediately to die, 
 would succeed, but whose right of succes- 
 sion may be defeated by some event other 
 than his own death before the ancestor ; 
 
 (3.) Customary Seir. — la he who is 
 heir according to any custom such as that 
 of Borough Bnghsh, or, in the case of 
 
168 
 
 HEIR-LOOMS. — HIGHWAY. 
 
 Heir. — ( Oontinued.) 
 
 Copyhold lands, upon the death of his 
 ancestor. 
 
 The hmres of Soman Law is more like 
 the executor than the heir of English 
 Law, being both constituted by the ap- 
 pointment of the testator, and taking in 
 general a baa-e legal estate, which he 
 • holds in trust to pass down to or dis- 
 tribute among another or others. 
 
 HEIR-IOOMS. Such personal chattels 
 as go to the heir along with the inheri- 
 tance, as being a loom, limh, or member, 
 i. e., part thereof. They are properly 
 ancient portraits of former owners, coats 
 of arms, paintings, and such like; and 
 are to be distinguished from another class 
 of personal chattels, often but improperly 
 called heir-looms, which, as being fixed 
 to the inheritance in such a manner as 
 does not admit of their severance from 
 it without damaging the inheritance, go 
 to the heir of the deceased and not to 
 the executor (see title Fixtubes). A bill 
 in equity will lie for the specific delivery 
 up of heir-looms to the owner of the in- 
 heritance. Pusey V. Pusey, 1 Wh. & Tud. 
 L. 0. 735. 
 
 *HENGHEN. A prison; a place of con- 
 finement or correction. 
 
 HERBAGE. The Uberty which one 
 man hath in or over another man's ground, 
 e. g., his forest, to feed his cattle therein. 
 See title Common. 
 
 HEREDITAMENT. Is the general 
 name for lands or houses; it may be 
 either a corporeal hereditament, an incor- 
 poreal hereditament, or a purely incor- 
 poreal hereditament: all which three 
 titles see. 
 
 HERESY. Is defined in 1 Hawk, P. 
 C. c. 2, as being the offense of holding a 
 false opinion repugnant to some point of 
 doctrine clearly revealed in the Scrip- 
 tures, and either absolutely essential to a 
 man's salvation or of essential importance 
 in the Christian faith. The penalty for 
 the offense, which in the case of lay per- 
 sons has gone entirely into desuetude, 
 used to be either death (see title HiER- 
 ETico CoMBtmEiroo), or excommunication, 
 or other ecclesiastical penalty. 
 
 HERIOT. The best beast (whether a 
 horse, ox, or cow) which by the custom 
 of most manors is due to the lord upon 
 the death of his copyhold tenant. Heriots 
 aje usually divided into two sorts, heriot- 
 
 Heriot. — ( Continued.) 
 service and heriot-custom ; the former are 
 such as are due upon a special reservation 
 in a grant or lease of lands, and therefore 
 amount to little more than a mere rent'; 
 the latter arise upon no special reserva- 
 tion whatever, but depend solely upon 
 immemorial usage and custom. In some 
 manors it is the best chattel, under which 
 term a jewel or piece of plate is included; 
 but it is always a personal chattel, which 
 immediately on the death of the tenant, 
 being ascertained by the option of the 
 lord, becomes vested in him as his prop- 
 erty, and is no charge on the lands, but 
 merely on the goods and chattels of the 
 tenant. 1 Cruise, 333. 
 
 HIDACrE. By some it is said to signify 
 an extraordinary tax payable to the king 
 upon every hide of land ; by others it is 
 said to be an exemption from that tax. 
 Xes Termes de la Ley. 
 
 HIGH COMMISSION. A court of 
 ecclesiastical jurisdiction in England, 
 erected in 1.583, and abolished by stat. 
 16 Car. 1, c. 11. 3 Bl. Com. 67. 
 
 HIGHWAY. This is a public way open 
 to all the king's subjects, and leading be- 
 tween two public termini {Young y. (Juth- 
 hertson, 1 Macq. H. L. 455). The soil of 
 the road is in the freeholders adjoining 
 (Coohe V. Cfrem, 11 Price, 736). A high- 
 way may be created either by act of Par- 
 liament (Sutdiffe V. Oreenwood, 8 Price, 
 535), or by dedication of the freeholder 
 to the public, which dedication must be 
 absolute {Rex v. Leake, 2 N. & M. 595), 
 otherwise it is a mere license {Stafford, 
 [Marquis] v. Goyney, 7 B. & C. 257). 
 Moreover, the dedication must be in per- 
 petuity {Daws V. Sawhins, 8 C. B. [N. S.] 
 848). Such a dedication may be presumed 
 from loiig enjoyment {Pool v. Sushinson, 
 11 M. & W. 837) ; and it is not material 
 to inquire who the precise dedicating 
 owner was {Bex v. Mast Mark Tything, 11 
 Q. B. 877). If the owner wants to ex- 
 clude the presumption of a dedication, 
 while at the same time he wishes to let 
 the public pass over it, he should do some 
 act to show that he gives a license only ; 
 the common course is to shut the way up 
 one day in the year {British Museum 
 [Trustees'] v. Finnis, 5 C. &P. 460). Where 
 the parish adopts a public way, which be- 
 comes such by dedication, it is liable to 
 repair the same, even at Common Law 
 {Bex V. Leake, 2 N. & M. 583) ; and for 
 statutory regulations as to such adoption, 
 
HLOTH. — HORSES. 
 
 169 
 
 Highway. — ( Continmd.) 
 see 5 & 6 Will. 4, c. 50 (Highway Act, 
 1835). A remedy lies by action or in- 
 dictment for the obstruction of a high- 
 way. Dovaston, v. Payne, 3 Sm. L. 0. 
 133. 
 
 *H10TH. An unlawful company of 
 men — from seven to thjrty-five. Jacob 
 Diet. 
 
 * HODGE-PODGE ACT. An act of 
 
 Parliament in which provisions on vari- 
 ous subjects are thrown together under a 
 single title. 
 
 HOLDING OVER. This is the phrase 
 commonly used to denote that a tenant 
 remains in possession of lands or houses 
 after the determination of his term therein. 
 Thus, a tenant by sufEerance is one who 
 has come in by right and who holds 
 over by wrong. And by the Com- 
 mon Law, a husband who has been in 
 possession during the coverture in right 
 of his wife, and who afterward (not hav- 
 ing qualified by the birth of a child or 
 otherwise to hold over as tenant by the 
 curtesy) holds over, was also a tenant by 
 sufferance, but for Ids more speedy ejec- 
 tion by the next successor in right he is 
 made a trespasser by the stat. 6 Anne, c. 
 18, s. 5. 
 
 * HOLOGRAPH WILL. A will writ- 
 ten entirely by the hand of the testator. 
 
 HOMAGE. This was an incident of 
 feudalism, and was so called because the 
 tenant thereby acknowledged his tenure 
 as that of the lord's man or vassal (de- 
 vmioTuymoveater). It is to be distinguished 
 from fealty, another incident of feudal- 
 ism, and which consisted in the solemn 
 oath of fidelity made by the vassal to the 
 lord, whereas homage was merely an ac- 
 knowledgment of tenure. If the hom- 
 age was mtended to include fealty it was 
 called liege homage, but otherwise it was 
 called simple homage. 
 
 The word homage, or h,omafgmm,ia also 
 a noun of multitude, and denoted the 
 jury of copyholders who made present- 
 ment to the lord or his steward of all 
 matters affecting the lands of the manor 
 which had been transacted out of Court. 
 Such presentment has, however, ceased to 
 be required in the great majority of cases 
 since the Act 4 & 5 Vict. c. 35. 
 
 HOMICIDE is literally the killing of a 
 human being. It is of the following va- 
 rieties : — 
 
 22 
 
 Homicide. — ( Oontimced.) 
 
 (a.) Felonious homicide, — and being 
 either murder or manslaughter 
 (see these two titles) ; 
 
 (6.) Excusable homicide, — as where it 
 occurs by misadventure, or 
 through ignorance, or from ne- 
 cessity; and 
 
 (c.) Justifiable homicide, — as where a 
 sheriff executes, or causes to be 
 executed, a criminal in strict 
 conformity to his sentence ; or 
 where a policeman kiUs a person 
 who resists capture; or where 
 another person commits the act 
 in self-defense ; or (in the case 
 of a woman) in defense of her 
 chastity. 
 
 HOMINE REPLEGIANDO. This was 
 a writ which lay to replevy a man put of 
 prison, or out of the custody of any pri- 
 vate person, in the same manner that 
 chattels taken in distress may be replevied.' 
 It was necessary to give security to the 
 sheriff that the man should be forthcom- 
 ing to answer any charge against him. 
 In SomeneWs Case (20 St. Tr. 1), it is 
 stated by Mr. Hargreaves in argument 
 that this»writ was one (the writ de naUw 
 Tuibendo being the other) of the only two 
 writs provided by law for the master's re- 
 claiming a runaway villein. 
 
 * HOMOLOGATION. Approbation ; 
 confirmation by a court of justice. The 
 approval of a deed. Bouv. Diet. 
 
 HONOUR. The seigniory of a lord 
 paramount was so called, while the seign- 
 iory of a mesne lord was simply called a 
 seigniory. 
 
 HORSES. A person who hires a horse 
 is bound(ui the absence of express agree- 
 ment to the contrary) 'to provide it with 
 sufficient food during his use of it (Sand- 
 ford V. Palmer, 5 Moo. 74) ;, he must also 
 use it in a careful manner, and not drive 
 it when visibly exhausted (Brai/ v. Mmyne, 
 Gow. 1). A livery stable-keeper has a 
 lien for his keep and exercise of a horse 
 (Bevan v. Waters, 3 0. & P. 520) ; and 
 other stable-keepers may, by special agree- 
 ment, acquire a similar lien (Wallace v. 
 Woodgate, 1 C. & P. 575). Horses stand- 
 ing at livery are liable to be distrained 
 for rent (Parsons v. GKngett, 4 C. B. 545). 
 The stats. 3 & 3 Ph. & M. c. 7, and 31 
 Eliz. c. 12, regulate the sale of horses, 
 which must be in fairs or markets ; and 
 horses so sold, although stolen, become 
 the property of the purchaser ; but the 
 
170 HOES DE SON FEE. — HOUSE OF LOEDS, JUEISDICTION OF. 
 
 Horses* — ( GonUnued.) 
 owner of a stolen horse so sold may re- 
 deem it upon payment of the price given, 
 31 Eliz. 0. 13, s. 4. As to the sale of 
 horses with a wa/rranty, see title Wak- 
 
 KANTY. 
 
 * HOBS DE SON FEE. An exception 
 to avoid an action brought for rents or 
 services by one who pretends to be the 
 lord. Jacob Diet. 
 
 HOTCHPOT. This word is the Eng- 
 lish equivalent for the Latin coUatio. It de- 
 notes that of two or more persons jointly 
 entitled to share equally in the distribu- 
 tion of property, whether real or personal, 
 any one of them who has received part 
 of his or her share previously to the pe- 
 riod of the ultimate distribution must 
 bring into the common property the part 
 so received before he or she is entitled to 
 share in the general distribution. Thus, 
 if the owner of fifty acres has two daugh- 
 ters, and gives one of such daughters 
 twenty acres upon her marriage, and 
 afterward dies intestate, leaving the two 
 daughters his co-heiresses, the daughter 
 who had already received part shall bring 
 that part into hotchpot, and then take 
 her half share of the origiual fifty acres, 
 or refusing so to do, shall leave all the re- 
 maining thirty acres to her sister. A 
 hotchpot clause is also usual in wills and 
 marriage settlements. 
 
 HOTJSE-BOTE. This word denotes the 
 right of the tenant for life, or other ten- 
 ant with a limited interest, to take wood 
 or timber for the necessary repair of 
 houses, &c., part of the lands in tenancy. 
 See title Estovbks. 
 
 HOUSE-BREAKING: ;S'ee Bukglakt. 
 
 HOUSE OF LORDS, JURISDICTION 
 
 OF. The House of Lords, haviug been 
 originally interchangeable with the Aula 
 Regis, was possessed of a twofold juris- 
 diction, namely, 
 (1.) An original jurisdiction ; and 
 (3.) An appellate jurisdiction. 
 This twofold jurisdiction appears from 
 various causes to have fallen in early 
 times into comparative disuse. Certain 
 it is, at all events, that after the begin- 
 ning of the fifteenth century the appel- 
 late jurisdiction of the House of Lords 
 did fall into disuse, and that it continued 
 in disuse tiU about the Bestoration in 
 1660, when the jurisdiction of the House 
 of Lords, as well as in its original as in 
 
 Honse of Lords, etc. — {ConUrmed.) 
 its appellate branch, was attempted to be 
 restored. 
 
 Thus (1.) With reference to their orig- 
 inal jurisdiction, — The Lords did not- at 
 the Bestoration period hesitate on peti- 
 tion (a.) to stay waste on the estates of 
 private persons ; (b.) to secure the tithes 
 of church livings during vacancies; or 
 generally (c.) to interfere in freehold mat- 
 ters affecting a member of their own 
 House. But these pretensions were al- 
 ways objected to by the Commons as an 
 unlawful iuterference with the ordinary 
 tribunals, and were finally given up in the 
 case, or as a consequence of the case, of 
 Shmn&r v. Blast India Gompcmy, in the 
 reign of Charles H. 
 
 (2.) With reference to their appellate 
 jurisdiction, — The Lords, in the opinion 
 of Sir M. Hale, never exercised any such 
 jurisdiction in matters coming from 
 Courts of Equity until the reign of 
 Charles L, or more probably the Bestora- 
 tion in 1660 ; but in matters coming from 
 the Courts of Common Law, the Lords 
 from a very early time exercised an ap- 
 pellate jurisdiction upon writs of error 
 under commission issuing under the 
 &reat Seal. This appellate jurisdiction 
 in both of these its branches was equal- 
 ly reasonable and proper; but upon its 
 attempted revival after the Bestoration 
 in 1660, it was resisted by the Commons, 
 principally (it appears) upon the score of 
 privilege, and not upon any more general 
 grounds. Thus, in 1675, in the case of 
 Shirley v. Sir John Fogg, the defendant 
 being a member of the Commons' House, 
 the plaintifl brought an appeal to the 
 House of Lords from the Courts of 
 Equity ; whereupon the Commons appre- 
 hended the counsel engaged in the case 
 and imprisoned them in the Tower ; and 
 although the Lords sent their usher to 
 the Tower to deliver them, they remained 
 in custody for some time longer, the 
 Lieutenant of the Tower refusing to re- 
 lease them without a warrant from the 
 Commons. The King, with a view to 
 staying, this dispute between the two 
 Houses, prorogued Parliament for three 
 months ; but the dispute was revived upon 
 the re-assembling of Parliament, and 
 the King thereupon again prorogued Par- 
 liament, on the latter occasion for eigh- 
 teen months. Shirley's appeal never 
 came on again, but the Lords in«sted 
 upon their right to an appellate jurisdic- 
 tion, and have ever since exercised that 
 jurisdiction, although the Commons upon 
 
HOUSEHOLDER. — HUSBAND AND WIFE. 
 
 171 
 
 Honse of Lords^ etc. — (ConUmied.) 
 the re-assembling of Parliament passed 
 some [intemperate] resolutions to the 
 effect that there lay no appeal to the 
 House of Lords from Courts of Equity, 
 and that to assist in any such was to 
 betray the rights and liberties of the sub- 
 ject. The appellate jurisdiction in Com- 
 mon Law matters seems not to have been 
 questioned either after or before the Res- 
 toration. 
 
 ♦HOUSEHOLDER. One who keeps 
 house with his family ; the head or mas- 
 ter of a family. It is distinguishable 
 from Iwuaekeeper. See 1 Dowl. P. C. 173. 
 
 * HUDE6ELD. An acquittance for a 
 trespass or assault committed upon a tres- 
 passing servant. Cowel ; Burr. Diet. 
 
 HUE AND CRY. This phrase denotes 
 the [old] process provided by the Com- 
 mon Law for the pursuit of felons, and 
 which the sherifE, serMe, may still put in 
 force. But the modem facilities and 
 provisions for arrest have now, as a gen- 
 eral rule, excluded the necessity for it. 
 
 .*HUISSER. In French Law, an ex- 
 ecutive oflBcer of a court of justice whose 
 original function was that of doorkeeper. 
 Burr. Diet. 
 
 HUNDRED COURT.) A Hundred 
 HUNDREDORS. J Court is much 
 
 the same as a Court Baron, only that it ia 
 larger, and is held for the inhabitants of 
 a particular hundred instead of a manor ; 
 it resembles a Court Baron in not being 
 a Court of Record, and in the free suitors 
 being the judges, and the steward the 
 registrar. Hundredors are persons im- 
 paneled or fit to be impaneled on a jury 
 upon a controversy arising within the 
 hundred where the land in question lies. 
 The word " hundredor " also sometimes 
 signifles he who has the jurisdiction of a 
 hundred and holds the Hundred Court ; 
 and sometimes it is used for the baiUS 
 of a hundred. Cromp. Juris. 317. 
 
 HUSBAND AND WIPE. This relar 
 tion, which was anciently called that of 
 Baron and Feme, is fertile in legal con- 
 sequences, as well in the rights which it 
 confers as in the liabilities which it im- 
 poses upon either party to the relation. 
 
 Firstly, The rights of the husband; and 
 hereunder firstly, in the real estate of 
 the wife; and secondly, in her personal 
 estate. 
 
 Husband and Wife. — {OonUnued.) 
 
 (1.) In the real estate of the wife, the 
 husband takes the following rights : — 
 (a.) The entire rents and profits aris- 
 ing during the coverture ; and if 
 he survive the wife, and has had 
 issue by her capable of inherit- 
 ing; 
 (6.) An estate for the residue of his 
 life. See title Curtesy. 
 But with respect to marriages which are 
 solenmized after the 9th of August, 1870, 
 and real estate coming to the wife after- 
 ward, during the coverture, the wife 
 takes the entire rents and profits thereof 
 independently of her husband (see title 
 Sbpasatb Estate) ; and the husband is 
 left only his curtesy estate. (M. W. P. 
 Act, 1870). 
 
 (2.) In the personal estate of the wife, 
 the husband has the following rights : — 
 (a.) All that part of her personal estate 
 .that is in possession, or which 
 (being chattels personal) he re- 
 duces into possession or (but 
 only if chattels real) alienates 
 during the coverture ; and if he 
 survive the wife ; 
 (J.) All that other part of her estate 
 which, as being either choses in 
 action not reduced into posses- 
 sion or chattels real not alien- 
 ated during the coverture, go to 
 Mm as her administrator. 
 But under the M. W. P. Act, 1870 (33 
 & 34 Vict. c. 93), the wages and earnings 
 of married women from any employment, 
 occupation, or trade, or from the exercise 
 of any Uterary, artistic, or scientific skill, 
 are to be their own separate estate, as are 
 also all investments thereof, and all de- 
 posits in savings banks ; and further, all 
 personal property coming to married 
 women under an intestacy, and all per- 
 sonal property not exceedmg £300 com- 
 ing to them under a will, are to be their 
 own property ; and married women may 
 effect policies of life insurtoce either on 
 their own or their husbands' lives, and 
 such policies are to form part of their 
 own separate estate. 
 
 Moreover, in respect of the before-men- 
 tioned rights of the husband as well in 
 the real as in the personal estate of the 
 wife, the same are subject to the rule or 
 practice of Equity, called "The Wife's 
 Equity to a Settlement " {see title Equity 
 TO Settlement), whereby the Court of 
 Chancery in certain cases, and almost, 
 indeed, in the invariable case, sets apart 
 for the wife a proportion of her estate 
 
172 
 
 HUS AND HAUT. — HYPOTHEQUE. 
 
 Husband and Wife. — (Oontinued,)' 
 previously to the husband's obtaining the 
 possession thereof. 
 
 Secondly, I%e rights of the wife, and 
 hereunder. Firstly, In the real estate of 
 her husband; and, secondly, in his per- 
 sonal estate. 
 
 (1.) In the real estate of the husband. 
 If the marriage was solemnized before 
 the 1st of January, 1834, and the wife 
 survives her husband, she is entitled for 
 the residue of her life as dowresn to one- 
 third part of all the lands of which her 
 husband was at any time during the 
 coverture solely seized for an estate of 
 inheritance (see title Dowbe) ; and if the 
 marriage was solemnized after the 1st of 
 January, 1834, she is entitled for the 
 residue of her life, as dowress, to one- 
 third part of the lands of inheritance 
 remaining to the husband undisposed of 
 by him, either by deed or will, and 
 whether he was legally seized,- or only 
 equitably possessed, of the same lands 
 during the coverture. But whereas form- 
 erly her right of dower, after it had once 
 attached, was indefeasible by any adverse 
 disposition, much less by any adverse 
 declaration of the husband, the right in 
 the case of marriages solemnized since the 
 Ist of January, 1834, is defeasible by 
 disposition, and even by declaration of 
 the husband to the contrary, made or 
 contained by or in any deed or will of 
 his. Bee Dower Act. 
 
 Thirdly, The UaMlities of the husband. 
 In respect of his wife, the husband incurs 
 the following liabilities : He is liable to 
 pay all his wife's debts contracted before 
 the marriage, and to provide her with the 
 necessaries of life during the marriage, 
 whether she is living with him, or (from 
 no fault of her own) separate from him. 
 He is also liable on all the contracts of 
 his wife entered into by her with regard 
 to necessaries, and (upon proof of his 
 assent thereto) with regard also to non- 
 necessaries, being articles of a luxurious 
 and expensive kind. However, under 
 the M. "W. P. Act, 1870, when the mar- 
 riage has taken place after the 9th of 
 August, 1870, the husband is not to be 
 liable for the debts of the wife contracted 
 before marriage, but the wife's own sepa- 
 rate estate (if any) is to be liable for the 
 same; but under the M. "W. P. Amend- 
 ment Act, 1874, the husband is again 
 subjected to liability for these debts of 
 his wife, but to a limited extent only; 
 see 37 & 38 Vict. c. 50, ss. 1-5. 
 
 Fourthly, The liabilities of the wife. In 
 
 Husband and Wife. — (OonMmted.) 
 respect of her husband, the wife used 
 formerly to incur no pecuniary liability 
 at all, but only the duties of obedience 
 and chastity. But under the M. W. P. 
 Act, 1870, when the husband becomes 
 chargeable to the parish, she is liable to 
 an order under the Poor Law Amend- 
 ment Act, 1868, s. 83, charging her to 
 contribute to the maintenance of her hus- 
 band; and she is also liable for the main- 
 tenance of her children, as a widow was 
 by law already chargeable therewith. 
 Moreover, under the M. W. P. Amend- 
 ment Act, 1874, mtpra, she is rendered 
 liable, jointly with her husband, for her 
 own debts contracted before the mar- 
 riage. 
 
 See, also, titles Conjitgal Rights; 
 Makriagb Settlements, &c. 
 
 * HUS ANB HAUT. Words used in 
 ancient pleadings. Jacob Diet. 
 
 * HUSTINGS. The name of the court 
 held by the Lord Mayor and aldermen of 
 London. The place of meeting to choose 
 members of Parliament. 
 
 HTPOTHECA. This was a term pf 
 Roman Law, and denoted a pledge or 
 mortgage. As distinguished from the 
 term pignus in the same law, it denoted 
 a mortgage whether of lands or of goods 
 in which the subject in pledge remained 
 in the possession of the mortgagor or 
 debtor, whereas in the pignus the mort- 
 gagee or creditor was in the possession. 
 Such an hypotheca might be either express 
 or implied; (1.) Express, where the par- 
 ties upon the occasion of a loan enter into 
 an express agreement to that effect; or 
 (3.) Implied, as, e. g., in the case of the 
 stock and utensils of a farmer (colorms), 
 which were subject to the landlord's right 
 as a creditor for rent ; whence the Scotch 
 law of hypothec. 
 
 The word has suggested the term Ti/y- 
 pothecate, as used in the mercantile and 
 maritime law of England. Thus, under 
 the Factors Act {see that title), goods are 
 frequently said to be hypothecated ; and 
 a captain is said to have a right to hy- 
 pothecate his vessel for necessary repairs. 
 See Kay's Law of Shipmasters and Sea- 
 men. 
 
 See, also, next title. 
 
 HTPOTHEQUE. In French Law is 
 the mortgage of real property in English 
 Law, and is a real charge, following the 
 property into whosesoever hands it comes. 
 
IDEM SONANTIA. — IMPETRATION. 
 
 173 
 
 Hypotheque. — (Continued.) 
 Such a charge may be either (1.) LegaU ; 
 or (2.) Judidavre ; or (3.) OonvenHonneUe. 
 It is Ugale, as in the case of the charge 
 which the state has over the lands of its 
 accountants, or which a married woman 
 has over those of her husband ; it is judi- 
 ciaire, when it is the result of a judgment 
 of a Court of Justice ; and it is cmvoen- 
 tionneUe, when it isthe result of an agree- 
 ment (which must be express) of the 
 parties. 
 
 IDEM SONANTIA. Where two words 
 (usually surnames) sound the same, al- 
 though spelt differently. In criminal in- 
 dictments a mistake in spelling the sur- 
 name is immaterial, so long as the sound 
 is the same, and there is no mistake as to 
 the party, e. g., Segrave for Seagrave. 
 WiUiams v. Ogle, 2 Str. 889. 
 
 IDENTITY. In conveyances of land 
 it is necessary to identi^ the property 
 sold with that described by the parcels in 
 the title-deeds. This is usually done by a 
 comparison of all maps and the success- 
 ive descriptions in the successive deeds, 
 coupled with a declaration of identity by 
 some old credible person. And in actions 
 and suits it is often necessary to establish 
 the identity of parties and of deponents ; 
 but such evidence need not be strict, as 
 the similarity of name throws the onus of 
 dUproving the identity on the party af- 
 firming the negative. An affidavit of 
 identity is also required of the names in 
 certificates of births, baptisms, marriages, 
 and burials, otherwise the question of 
 identity is for the jury to determine. 
 Buhbard v. Zees, L. R. 1 Ex. 255. 
 
 * IDIOCHIRA. In the Civil Law, an 
 instnmient privately executed as distin- 
 guished from such as were executed be- 
 fore a public officer. Calv. Lex. 
 
 IGNORAMUS (We are ignorant). For- 
 merly the grand jury used to write this 
 word on bSls of indictment when, after 
 having heard the evidence, they thought 
 the accusation against the prisoner was 
 groundless, intimating that, though the 
 facts might possibly be tnie, the truth 
 did not appear to them ; but now they 
 usually write in English the words ' ' not 
 a true bill," or "not found," if that is 
 their verdict; whereupon the party is 
 forthwith discharged,; and the jury are 
 in so doing said to ignore or throw out 
 
 Ignoramns. — (OonUnued.) 
 the biU. A notable instance of the find- 
 ing an ignoramm was the Earl of Shaftes- 
 bury^s Case, 8 St. Tr. 759, temp. Charles 
 
 n. 
 
 * ILLUSORY APPOINTMENT. Such 
 an appointment or disposition of property 
 as is merely nominal and not substantial. 
 Bouv. Diet. ; 4 Kent Com. 342. 
 
 IMMEUBLES. These are, in French 
 Law, the immoveables of English Law. 
 Things are immeubles from any one of 
 three causes : (1.) From their own nature 
 — e. g., lands and houses ; (2.) From their 
 destination — e. g., animals and instru- 
 ments of agriculture when supplied by 
 the landlord; or (3.) By the object to 
 which they are annexed, e. g., easements. 
 
 IMPANEL. To impanel a jury signi- 
 fies the entering by the sheiiJfiE upon a 
 piece of parchment termed a panel the 
 names of the jurors who have been sum- 
 moned to appear in Court on a certain 
 day to form a jury of the country to hear 
 such matters as may be brought before 
 them. 
 
 IMPARLANCE. An indulgence for 
 merly granted to a defendant to defer 
 pleading to the action until a subsequent 
 term. It is said that the reason of allow- 
 ing imparlance was to give the plaintiff 
 an opportunity of settling the matter ami- 
 cably with the defendant without fur- 
 ther prosecuting his suit, a practice which 
 is supposed to have originated from a re- 
 ligious principle founded on the text of 
 Scripture, "Agree with thine adversary 
 quickly, whiles thou art in the way with 
 him." Matt. v. 25. Since the 2 Will. 4, 
 c. 39, in actions commenced by the pro- 
 cess prescribed by that Act, these impar- 
 lances are abolished ; and more recently, 
 under r. 31, T. T. 1858, no entry or con- 
 tinuance by way of im/paHance or other- 
 wise shall be made on any record or roll 
 whatever, or in the pleadmgs. 
 
 See, also, title Continuance. 
 
 * IMPEACHMENT OF WASTE. Lia- 
 bility for committing waste upon lands or 
 tenements. All tenants for life or for a 
 less estate are liable to impeachment for 
 waste unless they hold by leases witJwut 
 im/peachment of waste. 2 Bl. Com. 283. 
 
 * IMPETRATION. The obtaining any 
 thing by prayer or petition. Anciently 
 applied to certain church benefices. 
 Jacob Diet. 
 
174 
 
 IMPLICATION. —INCIPITUR. 
 
 IMPLICATION. This word signifies 
 something implied in law, though not 
 formally expressed in words. 
 
 The natural meaning of the word is also 
 the technical one. Such implications are 
 raised both in estates and in rights ; e. g., 
 prior to 1 Vict. c. 36, an estate tail by 
 implication arose from words importing 
 an indefinite failure of issue of the donee 
 for life ; and although that particular im- 
 plication is now expressly discontinued 
 by statute, yet similar implications hold 
 good in other matters ; also, a subsequent 
 ratification by A. of the contract of B. 
 amounts in law by implication to a pre- 
 vious command on the part of A. to B. to 
 enter into the contract. 
 
 IMPOUND. The placing — i. e., con- 
 fining — cattle, goods, or chattels taken 
 under distress in a lawful pound, which 
 may be either open or close. An open 
 pound is any place in which the owner of 
 the cattle may give them to eat and drink 
 without trespass, and by the Common 
 Law he was in fact bound to do so at his 
 own peril. A pound close is some- pri- 
 vate place, selected by the impounder, 
 where the owner has no right to enter to 
 them, but the impounder must sustain 
 them, and that without any allowance for 
 it. But now, by 12 & 13 Vict. c. 93, it 
 is enacted that every person who shall 
 impound or confine any animal in any 
 common pound or inclosed place sTiall 
 provide it with food and water ; and by 
 the 17 & 18 Vict. c. 60, it is further en- 
 acted that the impounder may, in the 
 manner directed by the Act, sell the cat- 
 tle impounded, or any of them, openly in 
 the public market, and apply the produce 
 of the sale in discharge of the expenses of 
 food and nourishment, rendering the over- 
 plus (if any) to the owner of the cattle. 
 
 See, also, titles Pouitd ; Pounb-brbach ; 
 
 and POTJITD-KBBPBB. 
 
 IMPROPRIATE RECTOR. Common- 
 ly signifies a lay rector as opposed to a 
 spiritual rector, just as appropriate tithes 
 are tithes in the hands of a lay owner, as 
 opposed to appropriate tithes, which are 
 tithes in the hands of a spiritual owner. 
 See titles Impropriation ; Tithes. 
 
 IMPROPRIATION. The annexing of 
 an ecclesiastical benefice to the use of a 
 lay person, whether individual or corpo- 
 rate, in the same way as a/ppropriatUm is 
 the annexing of any such benefice to the 
 proper and perpetual use of some spirit- 
 ual corporation, whether sole or aggre- 
 gate, to enjoy for ever. 
 
 IMPUTATIONS DES PAIEMENS. 
 
 In French Law, denotes the same as Ap- 
 propriation of Payments in English Law. 
 8ee that title. 
 
 IN AUTRE DROIT. In another's 
 right. Thus, when an executor or ad- 
 ministrator sues a person for a debt due 
 to the testator or the intestate, he is said 
 to do so in waVre droit, that is, in right of 
 another, viz., in the right^of the testator 
 or intestate, whom he represents. So also 
 a husband, in right of his wife, acquires 
 certain interests in her estates, both real 
 and personal, and may also in her right 
 sue on the contracts of his wife made be- 
 fore marriage, and on all obligations com- 
 ing to her as the meritorious cause of ac- 
 tion during the coverture. The circum- 
 stance that any estate or right is held in 
 autre droit, while another is held in son 
 droit, or in a person's own right, is one 
 of the chief causes which prevent the 
 merger of the two estates or rights in one. 
 
 INCIDENT. This phrase is properly 
 used to denote any thing which is insep- 
 arably belonging to, connected with, or 
 inherent in, another thing which is called 
 the principal. Thus, a Court Baron is 
 incident to a manor, and also inseparably 
 incident, so much so that it cannot be 
 severed from it by grant; for a Court is 
 an "essential ingredient in every manor, 
 without which it will cease to be a manor. 
 Again, rent is said to be incident to a re- 
 version ; i.e., one of the inseparable qn^- 
 ties, or one of the necessary characteris- 
 tics of a reversion. Les Termes de la Ley. 
 
 But the word is also used less properly 
 to denote' any thing which is connected 
 with another thing, even separably. 
 Thus, in the common phrase, " costs of 
 and incidental to " any suit or legal pro- 
 ceeding, the word can only be taken as 
 meaning properly incurred in. connection 
 therewith. Also the incidents of prop- 
 erty may be either inseparable or separa- 
 ble, e. g., the right of alienation is separa- 
 ble in Equity, although, semble, insepara- 
 ble at Law, from a fee simple or fee tail 
 estate in lands, or an absolute interest in 
 personal estate. 
 
 INCIPITUR (from the Lat. indpio — 
 to begin). The beginning or commence- 
 ment of pleadings, or sometimes of other 
 proceedings. The phrase entering the in- 
 cA/pit/wr on the roll may be thus explained. 
 When the contending parties in an action 
 have come to an issue, the plaintiff, in 
 strictness, should enter the same, together 
 with all the pleadings prior thereto, on a 
 
INCLOSUKB. — INCORPOREAL HEREDITAMENTS. 
 
 175 
 
 Incipitur. — ( Oontmued.') 
 roll of parchment called the issue-roll; 
 but this is now seldom done, the com- 
 mencement of the pleadings only being 
 entered thereon, which is termed entering 
 the indpibwr (i. e,, the beginning) on the 
 roll (1 Arch. Pract. 350; Tidd's Pract.) 
 The entry even of the incipitur is now, 
 however, by a recent rule of Court, ren- 
 dered unnecessary. See 1 PI. R. H. T., 
 4 Will. 4. 
 
 iSee, also, title IsstrB Roll. 
 
 INCLOSUEE. Provision has been made 
 by numerous Acts in the present reign, 
 following the principal Act, 41 Geo. 8, 
 c. 109 (General Inclosure Act), for the 
 inclosure, exchange, and improvement of 
 commons and other lands, subject to com- 
 monable rights and incidents in England 
 and Wales. A board of commissioners 
 is constituted by the Act 14 & 16 Vict, 
 c. 53, and their continuance in office is reg- 
 ulated by the Act 25 & 26 Vict. c. 73. The 
 usual method of procedure is for the com- 
 missioners to make an order for allot- 
 ment, which, in the first instance, is pro- 
 visional only, but which is afterward 
 made absolute upon a proper valuation 
 and adjustment of the rights of aU the 
 parties concerned. The Court of Chan- 
 cery has no power, in general, to restrain 
 the commissioners. Ma/rris v. Joae, L. 
 R. 1 Eq. 34. 
 
 See, also, titles Commons; Roads; 
 Wats. 
 
 INCOEPOBEAL HEEEDITAMENTS. 
 
 These comprise the following varieties of 
 hereditaments : — 
 
 (A.) Incorporeal hereditaments simply 
 
 • so called ; and 
 (B.) Purely incoiporeal hereditaments. 
 (A.) Incorporeal hereditaments, simply 
 so-called, comprise the follow- 
 ing varieties of hereditaments: 
 (1.) Reversions; 
 
 (2.) Remainders, which again are either 
 (as.) Vested remainders ; or 
 (6.) Contingent remainders; and 
 (3.) Executory interests. 
 The definitions of these varieties of 
 incorporeal hereditaments are the follow- 
 ing: 
 
 (1.) A reversion is that estate of the 
 tenant which remains undisposed of, after 
 he has granted a particular estate, or par- 
 ticular estates,- out of his own original 
 estate ; 
 
 (3.) A remainder is that part of the 
 grantor's own original estate which re- 
 mains in him after he has granted there- 
 
 Incorporeal Hereditaments. — {OonVd.) 
 out one or more particular estate or es- 
 tates, and which he afterward, by the 
 same instrument whereby he creates the 
 particular estate or estates which precede 
 it, grants out also, so as to take effect (if 
 at all) subsequently to and upon the de- 
 termination of the last-mentioned partic- 
 ular estate or estates. And such a re- 
 mainder is either 
 
 (a.) A vested remainder, if (be it ever 
 so small) it is always ready from its 
 creation to its close to come into pos- 
 session the moment the prior estate or es- 
 tates (be they what they may) happen to 
 determine ; or 
 
 (5.) A contingent remainder, if (be it 
 what it may) it is not always ready from 
 its creation to its close to come into pos- 
 session the moment the prior estate or es- 
 tates (be they what they may) happen to 
 determine ; 
 
 (3.) An executory interest is a future 
 estate which in its own nature is inde- 
 structible, and which arises when its time 
 comes of its own inherent strength, not 
 waiting f or^ or depending on, the deter- 
 mination of the prior estate or estates (as 
 the remainder does), but, on the contrary, 
 putting an end to any prior estate or es- 
 tates which may at the time be subsist- 
 ing. 
 
 There are certain rules which regulate 
 the creation of contingent remainders and 
 executory interests respectively. Firstly, 
 the rules which regulate the creation of 
 the contingent remainder are the follow- 
 ing:— 
 
 (as.) The seizin, or feudal possession, 
 must never be without an owner ; in other 
 words, every contingent remainder of an 
 estate of freehold must have a particular 
 estate of freehold to support it ; and as a 
 corollary to this first rule, there is also the 
 following rule, viz., every contingent re- 
 mainder must vest, i. e., become trans- 
 muted into a vested remainder or actual 
 estate, during the continuance of the par- 
 ticular estate which supports it, or eo in- 
 stanti that such particular estate deter- 
 mines; and 
 
 (p.) An estate cannot be given to an 
 unborn person for life, followed by an es- 
 tate to the child of such unborn person. 
 
 Secondly, the rules which regulate the 
 creation of the executory interest are the 
 following : — 
 
 (as.) An executory interest (not being 
 subsequent to an estate tail) must be made 
 to commence (if at all) within the period 
 of any fixed number of lives ejpsting at 
 
176 
 
 INGRBASE, COST OF. — mCUMBENT. 
 
 Incorporeal Hereditaments. — ( Cont'd.) 
 the date of the instrument creating it 
 and an additional term of twenty-one 
 years, allowing further for the period of 
 gestation, should gestation actually exist ; 
 but if no lives are fixed on, then the term 
 of twenty-one years only is allowed (see 
 title Perpetuities) ; and 
 
 (6.) The income of real or personal es- 
 tate cannot be directed to be accumula- 
 ted for any longer term than one or other 
 singly (but not two or more together) of 
 the following periods, so as to-be given 
 over with or without the eorpus of the es- 
 tate to a grantee, or devisee, or legatee, 
 that is to say, — 
 
 (aa.) For the life of the grantor or set- 
 tlor (in the case of a deed) ; 
 (bi.) For twenty-one years from the 
 death of such grantor or settlor 
 (in the case of a deed), or of the 
 devisor or testator (in the case 
 of a will) ; 
 (ce.) For the minority of any person 
 living or in venire sa m&re at the 
 death of the grantor or testator ; 
 or 
 {dd.) For the minority only of any per- 
 son who under the deed or will 
 would for the time being, if of 
 full age, be entitled to the in- 
 come so directed to be accumu- 
 lated (39 & 40 Geo. 3, c. 98, 
 commonly called the Thellusson 
 Act) (and see title AccmrnLA- 
 
 TIONS). 
 
 (B.) Purely incorporeal hereditaments 
 comprise the following varieties : — 
 
 {a.) Appendant incorporeal heredita- 
 ments ; 
 
 (&,) Appurtenant incorporeal heredita- 
 ments; and 
 
 («.) Incorporeal hereditaments in gross. 
 
 Firstly, («s.) Appendant incorporeal he- 
 reditaments are such hereditaments of an 
 incorporeal character as are necessarily, 
 and have therefore from the earliest of 
 times, been attached to some corporeal 
 hereditament, and never been separated 
 therefrom. They comprise the following 
 three varieties, viz. : — 
 
 (1.) A seigniory appendant (see that 
 title); 
 
 (3.) A right of common appendant (see 
 title Common-) ; and 
 
 (3.) An advowson appendant (see that 
 title). 
 
 Secondly, appurtenant incorporeal here- 
 ditaments are such hereditaments of an 
 incorporeal character as are not necessa- 
 rily or originally attached to some corpo- 
 
 Incorporeal Hereditaments. — (Cont'd.) 
 real hereditament, but have been attached 
 thereto either by some express deed of 
 grant, or by prescription which presumes 
 a grant. The only example of an appur- 
 tenant incorporeal hereditament which 
 need be given is, — 
 
 A right of common appurtenant. See 
 title OoMMOiir. 
 
 Thirdly, incorporeal hereditaments in 
 gross are such hereditaments of an incor- 
 poreal character as are not attached to 
 any corporeal hereditament, but stand 
 separate and alone. They comprise the 
 following six (among other) varieties : — 
 
 (1.) A seigniory in gross (see that 
 title) ; 
 
 (2.) A rent-seek (see that title) ; 
 
 (8.) A rent-charge (see that title) ; 
 
 (4.) A right of common in gross (see 
 title Common) ; 
 
 (5.) An advowson in gross (see that 
 title); and 
 
 (6.) Tithes (see that title). 
 
 Many of these incorporeal heredita- 
 ments in gross may have been at one time 
 incorporeal hereditaments either append- 
 ant or appurtenant to some corporeal 
 hereditament, from which in some man- 
 ner or other they have been separated; 
 and it is a rule of law that when an ap- 
 pendant incorporeal hereditament (e. g., 
 an advowson) is once separated from the 
 corporeal hereditament to which it was 
 theretofore attached, it can never become 
 appendant again, but must always for the 
 future either remain in gross or become 
 appurtenant by some grant, express or 
 presumed. 
 
 INCREASE, COST OF. In England 
 it is within the province of the jury irpon 
 any trial to assess or ascertain the amount 
 of and to award the costs of the action to 
 the successful party ; but as the Courts 
 have power ex officio to assess the damages 
 against the defendant, it has become ihe 
 practice for the jury to award to the suc- 
 cessful party the nominal sum of 408. 
 only, and for the Court to assess by their 
 own officer the actual amount ; and the 
 amount so assessed, over and above the 
 nominal sum awarded by the jury, is 
 thence called "costs of increase." Lush 1 
 Pr. 775. 
 
 INCUMBENT (from incum^ere, signify- 
 ing, as well to possess and keep safely, 
 as to endeavor earnestly, obniax oj^erwm, 
 dare). Is a clerk duly possessed of or 
 resident on his benefice with cure. It is 
 said there are four things necessary to 
 
INDEBITATUS ASSUMPSIT.— INDENTURE. 
 
 177 
 
 Incnmbent. — {Continued.) 
 the being a complete incumbent. 1st. 
 Presentation. That is, the patron's free 
 gift or commendation of his clerk to the 
 parsonage or vicarage, by presenting or 
 offering him to the bishop. Sndly. Ad- 
 mission of such clerk by the bishop by 
 his allowance or approbation of him after 
 due examination, and by making record 
 of his name accordingly. 3rdly. Institu- 
 tion of such clerk to such benefice by the 
 bishop or coUation. 4thly. Introduction, 
 whereby the clerk takes actual possession 
 of the benefice, by taking the keys of the 
 church door, by the lingiug of a bell or 
 the like. 
 
 INDEBITATUS ASSUMPSIT. That 
 species of the action of assumpsit in 
 which the plaintiff first alleged a debt, 
 and then a promise in consideration of the 
 debt; such promise, however, was not 
 usually an express, but an implied one, 
 the law always implying a promise to do 
 that which the party is legally hable to 
 perform. Now by the C. L. P. Act, 1852, 
 s. 49, all statements which need not be 
 proved, such as the statement of time, 
 quantity, quality, and value, where these 
 are immaterial; the statement of losing, 
 and finding, and bailment in actions for 
 goods and their value ; the statement of 
 acts of trespass having been committed 
 with force of arms and against the peace of 
 our lady the queen ; ihe statement of prom- 
 ises wMeh need not he proved, as promises in 
 indebitatus counts, and mutual promises to 
 perform agreements; and all statements 
 of a like kind, shall be omitted. 
 
 For forms of iadebitatus counts, see 
 Day, C. L. Pract. pp. 337-239. 
 
 *INDEBITI-801UTI0. In Scotch and 
 Civil Law, the payment of what is not 
 due which, when made by mistake or 
 ignorance, might be recovered back by an 
 action called condietio indebiti. 
 
 These are 
 offenses 
 under the 
 Criminal 
 Law, Zi & 
 25 Vict. c. 
 100, s. 52, 
 
 INDECENT ASSAULT. 
 INDECENT EXPOSURE. 
 INDECENT PRINTS. 
 
 and other statutes, punishable respect- 
 ively with imprisonment or fine, or both, 
 and vpith or without hard labor. See 
 Q-reenwood and Martin's Magisterial and 
 Police Guide, 1874. 
 
 INDEMNITY. It is usual in England 
 to insert in settlements and wills a clause 
 
 23 
 
 Indemnity. — ( Continued.) 
 
 of indemnity for the protection of the 
 trustees acting ia the trusts created 
 therein. And where (as not infrequently 
 happens) the trustees at the urgent re- 
 quest of their cestuis que trust commit 
 what is technically a breach of trust, but 
 the act is done hon&Jide, and for a present 
 advantage, it is not unusual to give, and 
 the trustees have a right to demand, from 
 the cestujis que trust requiring them so to 
 act, an express deed of indemnity. Such 
 deed may either consist in the personal 
 covenant of the parties, or not only in 
 such personal covenant, but also in the 
 setting apart a fund, called an indemnity 
 fund, to recoup the trustees any outlay 
 which they may have to incur or be put 
 unto in consequence of their having so 
 acted. 
 
 See, also, title Guakantbb. 
 
 INDEMNITY, ACTS OF. Acts of In- 
 demnity are such as are passed for the 
 relief of those who have neglected to take 
 the necessary oaths, or to perform other 
 acts required to qualify them for their 
 offices and employments. So Acts of In- 
 demnity, after rebellions, have been 
 passed for quieting the minds of the peo- 
 ple, and throwing former offenses into 
 oblivion. Similarly, in 1766, when the 
 Privy Council, being driven to do so by 
 an urgent necessity, issued certain Orders 
 in Council without having the authority 
 of any Act of Parhament so to do, an Act 
 of Indemnity was passed in the following 
 year for the protection of aU persons con- 
 cerned in the issuing or execution of the 
 orders. 
 
 INDENTURE. Deeds or writings 
 which are cut or indented at the top or 
 side are called indentures. They formerly 
 used to cut them in acute angles (instar 
 denUwni) Uke the teeth of a saw, but now 
 they are usually cut, where cut at all, in 
 a waving line on the top. Formerly, when 
 deeds were more concise than at present, 
 it was usual to write both parts on the 
 same piece of parchment, with some word 
 or letters of the alphabet written between 
 them ; through which the parchment was 
 cut, either in a straight or indented line, 
 in such a manner as to leave half the word 
 on one part and half on the other, but at 
 length mdenting only came into use, 
 vrithout cutting through any letters at all ; 
 after which the process of indenting 
 came to serve for little other purpose than 
 to give name to the species of the deed, 
 and accordingly by the %tat. 8 & 9 Vict. 
 
178 
 
 INDICTMENT. —INT ANTS, AGE OF. 
 
 Indenture. — 
 
 c. 106, the necessity for indenting was 
 abolished altogether in the case of ordi- 
 nary deeds, and by the stat. 24 Vict. c. 9 
 it was abolished as a requisite in deeds of 
 gift of lands to charities. 
 
 INDICTMENT. An indictment is a 
 written accusation brought, or (speaking 
 technically) laid against one or more per- 
 sons of a crime or misdemeanor preferred 
 to and presented upon oath by the grand 
 jury. Strictly speaking such a written 
 accusation is not called an indictment 
 until the grand jury has heard the evi- 
 dence against the accused, and pro- 
 nounced the accusation to be well 
 grounded, or in other words has found 
 ' ' a true bill " : and in this case the indict- 
 ment is said to be found, and the party is 
 said to stand indicted. The person who 
 indicts another man of an ofEense is some- 
 times termed the indictor, and he who is 
 indicted the indictee. Hawk P. C. 
 
 See, also, title CumiNAii Informa- 
 tion. 
 
 INDOBSEMENT. Any writing on the 
 back of a deed or other instrument is an 
 indorsement; thus the receipt for con- 
 sideration money on the back of a deed 
 is an indorsement; so is the attestation 
 clause when written on the back of a 
 deed. So also in the negotiating bills of 
 exchange, he who writes his name on the 
 back of a bill is termed the indorser, and 
 he in whose favor it is indorsed, the 
 indorsee. 
 
 An indorsement is of two kinds, viz., 
 either (1) in blank, or, (3) special. An 
 indorsement in blank (which is much the 
 more usual of the two) is where the in- 
 dorsing person merely writes his name 
 across the back ; an indorsement special 
 is where he prefixes to his own signature 
 on the back the name of the third person 
 expressed as his payee. The efEects of 
 the two indorsements are different, an 
 indorsement in blank rendering a bill or 
 note payable to bearer generally, while a 
 special indorsement limits the paynUnt to 
 the special payee named and to no other. 
 
 INDUCEMENT. That portion of a 
 declaration or of any subsequent pleading 
 in an action, which is brought forward 
 by way of explanatory introduction to the 
 main allegations. 
 
 *INDUCI^. A truce; an agreement 
 for delay. A d^ay or indulgence allowed 
 by law. 
 
 INDUCTION. The giving the clerk or 
 parson corporal possession of the church ; 
 and it is generally done by holding the 
 ring of the door, tolling the bell, or some 
 such form. The intention of it is, that 
 the parishioners may have due notice and 
 sufficient certainty of their new minister, 
 to whom their tithes are to be paid. This, 
 therefore, is the investiture of the tem- 
 poral part of the benefice, as institution is 
 of the spiritual. Co. Litt. 300. 
 
 *INDULTO. In Spanish Law, the 
 pardon of a criminal. 
 
 IN ESSE. In being; in existence. Law 
 writers frequently make a distinction be- 
 tween things which are in esse, and those 
 which are in posse, or in potentia ; the one 
 signifying something in existence at the 
 present instant, the other signifying 
 something that may possibly be so at some 
 future time. Co. Litt. 
 
 INFANTS, AGE OF. He who has not 
 
 attained the age of legal capacity, which 
 age is in general fixed at twenty-one 
 years. For certain purposes, however, it 
 arrives much earlier. Thus, in criminal 
 cases, a person of the age of fourteen 
 years may be capitally punished, but un- 
 der the age of seven he cannot. The in- 
 termediate period, between seven and 
 fourteen, is subject to much uncertainty, 
 for the infant between seven and four- 
 teen shall be judged _p?'m(i/ocie innocent ; 
 yet, if he was Mi eapaoi, and could dis- 
 cern between good and evil, he may be 
 convicted and undergo execution of death, 
 though he hath not attained the years of 
 puberty or discretion. A male of twelve 
 years of age may take the oath of al- 
 legiance ; at fourteen is so far at the years 
 of discretion that he may enter into a 
 binding contract of marriage; and at 
 twenty-one he is at his own disposal, 
 may aliene his land, and generally per- 
 form all the duties and enjoy all the priv- 
 ileges attaching to a citizen. A female 
 also is at maturity at twelve years of age, 
 and may therefore at that age enter into 
 a binding contract of marriage ; and at 
 twenty-one she may dispose of all her 
 property. 
 
 The full age of twenty-one years is 
 completed on the day preceding the an- 
 niversary of a person's birth ; and as in 
 the computation of time, the law in gen- 
 eral allows no fraction of a day, it fol- 
 lows that if an infant is bom on the 1st 
 of January, he is of an age to do any le- 
 gal act on the morning of the last day of 
 
INFANTS, LNCAPACITIES OF. — INFORMATION. 
 
 179 
 
 Infants, Age of. — {Continued.) 
 December, though he may have lived 
 nearly forty-eight hours (or two days) 
 short of the twenty- one years. 
 
 INFANTS, INCAPACITIES OF. An 
 
 infant may be liable both for tort and in 
 crime ; but vsdth reference to his liability 
 on contract, the law may be stated as fol- 
 lows: — (a.) In the case of contracts for 
 necessaries, he is fully liable for these ; 
 and as to what are necessaries, see that 
 title; (J.) In the case of contracts for 
 non-necessaries, the general rule of law is 
 that infants bind others,* but are not 
 bound themselves (pbligant, sed non obli- 
 gantur). This general rule is, however, 
 subject to another one, viz., that every 
 contract is primd facie presumed to be for 
 the infant's benefit, and until the con- 
 trai-y is shown, and he chooses upon at- 
 taining his majority to disaffirm it, the 
 law will hold him to it, the contract of 
 an infant in such cases being voidable 
 only, and not absolutely void. In case 
 an infant, upon becoming an adult, 
 ehooses to promise to pay a debt incurred 
 during his or her infancy, he or she must 
 put the promise in writing, and person- 
 ally sign the same, under Lord Tenter- 
 den's Act (9 Geo. 4, c. 14). There are, 
 however, some contracts entered into by 
 infants which are absolutely void, and 
 therefore, ex m termini, not conflrmable 
 by them upon their attaining f uU age, e.g., 
 generally such contracts as cannot possi- 
 bly be for their benefit, such as a bond in 
 a penail mm. It is not competent for a 
 plaintiff to treat a breach of contract as 
 a tort, for the purpose of suing the infant 
 on it. Jennings v. BandcM, 8 T. R. 835. 
 And now under the Infants' Relief Act, 
 1874 (37 & 38 Vict. c. 62), the contracts 
 of infants which were heretofore voidable 
 only, are rendered absolutely ?«?«?, and as 
 a consequence are not conformable by 
 them upon their becoming adults. 
 
 INFANTS, JURISDICTION OF 
 CHANCBBT OVER. The origin of this 
 jurisdiction is in the Crown as darens 
 pa;t/ri<ji, whereby the Crown is laid under 
 certain duties toward children, and the 
 discharge of which duties the Crown has 
 committed to the Lord Chancellor sitting 
 in Chancery. An appeal lies to the House 
 of Lords and not to the Privy Council. 
 But now aU appeals are to be to the 
 Court of Appeal (intermediate or final) 
 of the High Court of Justice. 
 
 ■An infant is said to become a ward of 
 Court so soon as a biU is filed relative to 
 
 Infants, etc. — {Continued.) 
 
 his estate, or an order for his maintenance 
 is made on summons without' suit (In re 
 ehdham, L. R. 10 Bq. 530). It is not 
 necessary that the infant should have any 
 property in order to found the jurisdic- 
 tion, although without some property the 
 jurisdiction cannot be either conveniently 
 or profitably exercised. Wellesley v. Beam- 
 fart, 3 Russ. 31. 
 
 The control of the Court over infants 
 extends to their maintenance, education, 
 and marriage ; and the Court visits any 
 disregard of its authority in these mat- 
 ters with the punishment of imprisonmemt 
 for contempt. 
 
 See, also, title (Jtjakdianb. 
 
 INFERIOR COURTS. Our Courts of 
 Judicature are classed generally under 
 two heads of divisions, viz., the superior 
 Courts, and the inferior Courts ; the form- 
 er division comprising the Courts at 
 Westminster, the latter comprising all 
 the other Courts in general, many of 
 which, however, are far from being of in- 
 ferior importance in the common accepta- 
 tion of the word. Those Courts which 
 are generally understood by the phrase 
 " the superior Courts at Westminster," 
 are the King's Bench, Common Pleas, and 
 Exchequer. 
 
 * INFIRMATIVE. In the law of evi- 
 dence. Having a tendency to weaken or 
 diminish force. A word introduced by 
 Bentham. 3 Benth. Jud. Bv. 14; Best 
 onPres. s. 317; Burr. Circ. Ev. 153-155. 
 
 IN FORMA PAUPERIS. See Forma 
 Pauperis. 
 
 INFORMATION. Informations are ac- 
 cusations for criminal offenses, and he 
 who makes such accusations is termed an 
 informer, and are, lst.( in the name of 
 the king only, and these are filed in 
 the Court of King's Bench for the pun- 
 ishment of offenses affecting the safety 
 of the Crown, or the interests of the pub- 
 lic; and when affecting the king, his 
 ministers, or the state, are filed ex officio, 
 by his immediate officer, the Attorney- 
 General ; when more particularly affecting 
 individual rights, they are then filed by 
 the king's coroner, or master of the crown 
 office ; 3nd., in the name of a king and a 
 subject, or in the name of the subject 
 only. These latter are commonly called 
 informations qui tarn, from these words 
 in the information when the proceedings 
 were in Latin, qui twm pro dommo rege 
 quam.pro se ipso, &c., and these are usu- 
 
180 
 
 IN GROSS.— mJUNOTION. 
 
 Information. — (Gontinued.) 
 ally brought before justices of the peace, 
 upon penal statutes, which inflict a pen- 
 alty upon conTiction of the offender, one 
 part thereof going to the king, and the 
 other part thereof to the informer. The 
 proper matters for informations ex officio 
 are such misdemeanors as peculiarly tend 
 to disturb or endanger the king's govern- 
 ment, or to molest or affront him in the 
 regular discharge of his royal functions, 
 e. g., seditious libels and riots not amount- 
 ing to high treason, libels upon the king's 
 ministers, his judges, &c., reflecting upon 
 their conduct in the execution of their 
 official duties, obstructing such officers in 
 the execution of their duties, ofienses by 
 such officers for bribery or for corrupt or 
 oppressive conduct, and the like. 
 See, also, title Criminal Information. 
 
 IN GROSS. At large; independent of ; 
 not annexed to, or dependent upon any 
 thing. The phrase " easements in gross" 
 was used to designate rights of way and 
 the like, enjoyed by an individual or in- 
 dividuals as such, and not as being owner 
 or owners of some adjoining land. But 
 such rights are now called KcenBes only, 
 and not easements. Also, powers in 
 gross are those powers (not being simply 
 collateral) which are not appendant or 
 annexed to an estate. 
 
 See, also, title Incobpoebal Hbre- 
 
 DITAMBNTS. 
 
 INHERITANCE QmreMtm). Such an 
 estate in lands or tenemeiits, or other 
 things, as may be inherited by the heir, 
 and it is divided into inheritance corpor- 
 ate and inheritance incorporate; the 
 former consisting of messuages, lands, and 
 other substantial or corporeal things ; the 
 latter consisting qf advowsons, ways, com- 
 mons, and such like, that are or may be 
 appendant or appurtettant to inheritances 
 corporate. Lea Termea de la Ley. 
 
 INHIBITION. A writ to inhibit or 
 forbid a judge from proceeding further 
 in the cause depending before him. There 
 is also another writ of this kind, being 
 one which issues forth from a higher 
 Ecclesiastical Court to an inferior one 
 upon an appeal (Cowel). It is nearly the 
 same thing with Prohibition at Common 
 Law and Injunction in Equity. See those 
 several titles. 
 
 INJUNCTION. This is a writ reme- 
 dial which formerly issued almost exclu- 
 sively out of the Court of Chancery re- 
 
 Injnnctiont — ( GonUrmed.) 
 strainingthe commission by the defendant 
 of some act which he is threatening to 
 commit, or restraining him in the con- 
 tinuance thereof. The writ of prohibi- 
 tion' {see that title) was until recently 
 the only writ of this nature which might 
 issue out of a Court of Common Law ; 
 but under thfe C. L. P. Act, 1854, and now 
 more completely under the Judicature 
 Act, 1873, every Court may issue injunc- 
 tions of all kinds. 
 
 Injunctions have hitherto been issued 
 chiefly in restraint of two classes of acts, 
 viz: — * 
 
 (1.) The institution or continuance of 
 legal proceedings ; and 
 
 (3.) The commission of acts in pais, of 
 a wrongful nature. 
 
 The former of these two groups of cases 
 will no longer be restrained by the Courts 
 of Equity alone, but by all the Courts 
 equally, and probably upon the like 
 grounds with those upon which hitherto 
 Courts of Equity have been induced to act, 
 viz., — cases where the plaintiff had a le- 
 gal right, which it was inequitable that he 
 should exercise at law, e. g., upon a bond 
 or other security obtained by fraud or 
 undue influence {Tyler v. Yates, L. R. 11 
 Bq. 265) ; or against an executor whose 
 assets have been lost without his act or 
 default ; or where a creditor vexatiously 
 sues an executor at law, after a decree 
 has been obtained upon a creditor's bill 
 for administration of assets in Equity. 
 Perry v. Phelps, 10 Ves. 38. 
 
 The latter group of cases in which 
 Equity would restrain by injunction com- 
 prised such cases as the following: 
 
 (1.) Where the case was one for specific 
 performance, and an injunction (which 
 is the negative side of that remedy) was 
 the only available means of enforcing it 
 {Lumley v. Wagner, 1 De G., M. & G. 
 616); 
 
 (2.) In cases of waste, where, either from 
 the nature of the waste or from the titles 
 of the parties, no writ of waste could be 
 had at Law {Downshire [Marquis] v. San- 
 dys, 6 Ves. 109 ; Qa/Hh v. Gottm, 1 Ves. 
 Sen. 524) ; 
 
 (3.) Nuisances, whether of a public or 
 of a private nature ; and 
 
 (4.) Infringements of patent, copyright, 
 and trade-marks. 
 
 And under the stat. 21 & 22 Vict. c. 37 
 (Lord Cairns' Act), the Court may award 
 damages either in addition to or in lieu 
 of an injunction in a proper case. Soames 
 V. Mdge, Johns. 669. 
 
INJUEIA ABSQUE DAMNO.— IN PERSONAM. 
 
 181 
 
 ♦INJURIA ABSQUE DAMNO. Wrong 
 without damage. An action will not lie 
 for wrong done without damage or loss. 
 SeeWillea! 74; 5 Coke, 72; 1 Ld. Raym. 
 940. 
 
 * INLAGATION. Restoration to the 
 protection of the law. Jacob Diet . 
 
 INLAND BILLS OF EXCHANGE. 
 
 Bills of exchange are so called when the 
 drawer and drawee are both resident 
 within the kingdom where drawn (Bay- 
 ley on Bills of Exchange). If the bill is 
 either drawn abroad or made payable 
 abroad it is a foreign bill and not an in- 
 land one. 
 
 See, also, title Bills of Exchanse. 
 
 INN. A house where the traveler is 
 furnished with every thing he has occasion 
 for while on his way. TJwmaon v. Laoy, 
 3 B. & A. 283. 
 
 A mere coffee-house, or boarding, or 
 lodging-house, is not an inn. Upon the 
 keeper of an inn the law throws a pecu- 
 liar responsibility in guarding the goods 
 of his guests ; and if the goods are lost, 
 unless it be through the gross negligence 
 of the owner, the innkeeper shall be lia- 
 ble ; but his liability is limited to goods 
 in the house (infra hoapitivm) and to the 
 goods of regular guests (a resident boarder 
 or lodger not being such a guest). 1 
 Smith L. C. 50; GaJye's Case, 8 Coke, 
 32; 2 Stephen PI. 133; Cro. Jac. 224. 
 
 INNS OF COURT (hoapitia ourim). 
 The societies of the Middle Temple, Inner 
 Temple, Lincoln's Inn, and Gray's Inn, 
 are so called because the students therein 
 do study the law to fit them for practic- 
 ing in the Courts at Westminster or else- 
 where. These, together with the Inns of 
 Chancery and the two Serjeant's Inns, are 
 said to have formed one of the most fa- 
 mous universities in the world for the 
 study of law; and here exercises were 
 performed, lectures read, and degrees 
 conferred in the Common Law, as they 
 are at other universities in the present 
 day in the Canon and Civil Laws. The 
 degrees were those of barristers (first 
 styled apprentices, from a/pprend/re, to 
 leam) whp answered to our bachelors ; as 
 the state and degi-ee of a Serjeant, servi- 
 entis ad legem, did to that of doctor. 
 These studies are now under the control 
 of the Council of Legal Education, who 
 have endeavored to re-invigorate them 
 by holding out rewards for excellence in 
 the various branches of legal study, and 
 particularly in Roman Law and Jurispru- 
 
 Inns of Court. — {Oontimted,) 
 dence, and by making a certain standard 
 of excellence compulsory upon all stu- 
 dents seeking admission to the degree of 
 barrister. 
 
 The Inns of Chancery being Clifford's 
 Inn, Symond's Inn, Clement's Inn, and 
 others, are subordinate to the Inns of 
 Couit properly so called. 
 
 ' * INNOCENT CONVEYANCES. Con- 
 veyances, made by a tenant of his lease- 
 hold, which do not occasion a forfeiture. 
 Bouv. Diet. ; 1 Chitty Pract. 243, 244. 
 
 * INNOMINATE CONTRACTS. Con- 
 tracts which have no precise names. The 
 Roman lawyers classified them as follows : 
 do ut facias ; dout dee ; fado ut foidoi ; 
 facio ut des. Dig. 2, 14, 7, 2. 
 
 INNUENDO (from innuo to beck or 
 nod with the head). That part of the 
 declaration in actions of libel and slander 
 which explains the meaning or points the 
 application of the libelous or slanderous 
 matter complained of. An innuendo is 
 frequently necessary where the language 
 of the defendant is apparently innocent 
 and inoffensive, but where, nevertheless, 
 by virtue of its connection with known 
 collateral circumstances, it conveys a la- 
 tent and injurious imputation. So where, 
 from the ambiguity of the defendant's 
 expressions,it is doubtful who was meant, 
 it is the proper office of the innuendo to 
 render the allusion clear, by specifically 
 pointing out the meaning, as, «. g., where 
 but one or two letters of the name are 
 expressed, or the plaintiff is libeled under 
 a fictitious or borrowed name, or where 
 the libel is couched under a fable or alle- 
 gory, whose tendency and meaning it is 
 necessary to explain by reference. 
 See titles Libel ; Slaitder. 
 
 IN PERSONAM. Against or upon a 
 person, as distinguished from in rem, 
 against or upon a thing. An illustration 
 of the distinction existing between these 
 two phrases is frequently furnished by the 
 revenue cases, which are peculiarly within 
 the jurisdiction of the Court of Ex- 
 chequer. Thus the condemnation of the 
 smuggled goods to the use of the Crown 
 is a proceeding in rem, whilst the convic- 
 tion of the person committing the illegal- 
 ity, though by the same Court and con- 
 cerning the same transaction, is a pro- 
 ceeding in personam. A judgment in rem 
 is an adjudication pronounced upon the 
 staMis of some particular subject-matter, 
 as for instance, the sentence of the Court 
 
182 
 
 INQUEST. —INSOLVENCY. 
 
 In Fersouam. — (OonUnued.) 
 of Admiralty condemning a vessel or 
 prize, or of the Court of Probate and Di- 
 vorce establishing or nullifying a mar- 
 riage ; which latter case, although clearly 
 affecting the personal position of the par- 
 ties, is yet included in the class of judg- 
 ments in rem, for it decides the permar 
 nent status of those concerning whom it 
 was instituted. * 
 
 Besides being used to denote the diver- 
 sity in the effect of a judgment according 
 as it is m rem or in perscmam as distin- 
 guished above the phrases inp^sonam and 
 in rem are also used to denote the com- 
 pass or extent of rights ; thus a, jus in rem 
 has been and commonly is defined as a 
 right availing against the world at large 
 {fac/ultas personm com/petens sine respeetu ad 
 certam personami) ; and on the other hand, 
 a jiis in personam, as a right availing 
 against some one individual in particular 
 {faauMas personm cornpetens ewm respeetu ad 
 certomn, personam). But this distinction 
 has reference only to the proximate diver- 
 sities, for &J11S inpersona/m also avails re- 
 motely against all the world. Austin 
 Jurisprudence. 
 
 INQUEST (inquisitio, an inquiry). An 
 inquiry by a jury duly impaneled by the 
 sheriff into any cause, civil or criminal. 
 The term "inquest" is sometimes used 
 to signify the jury itself before whom the 
 question is brought. 
 
 INQUIRY, WRIT OF, A writ directed 
 to the sheriff, commanding him to sum- 
 mon a jury, and to inquire into the 
 amount of damages due from the defend- 
 ant to the plaintiff in a given action. 
 The necessity for this writ, and the in- 
 quiry under it, obcurs in certain cases 
 when the defendant has suffered judg- 
 ment to pass against, him by default or 
 nil didt, by confession, or cognovit actio- 
 nem, &c., in an action, the damages in 
 which are not ascertained or ascertainable 
 by mere calculation. 
 
 In such cases it becomes absolutely 
 necessary that the guanPwm of damages 
 should be assessed by a jury, who, under 
 the presidence of the under-sheriff, ascer- 
 tain by the evidence of witnesses, as in a 
 trial at Nisi Prius, what damages the 
 plaintiff hath really, sustained; and after 
 their verdict the sheriff returns the in- 
 quisition, which is entered on the roll in 
 the manner of a postea. 
 
 INQUISITION OF OFFICE. Is an 
 
 oflScial inquiry' directed by the Crown in 
 
 Inquisition of Office. — (Continued.) 
 certain cases, as a preliminary step to the 
 seizure of property, when that can only 
 be done after "inquest of office," or after 
 "office found." 
 
 See, also, title Office. 
 
 INQUISITORS (inquisitores). These 
 (who are called also ministri) are sheriffs, 
 coroners swper msvm corporis, or the like, 
 who are empowered to inquire into cer- 
 tain cases. Britton, fol. 4. 
 
 INROLLMENT. The tranacribiag a 
 deed on to a roll of parchment, accordong 
 to certain forms and regulations, is 
 termed inroUing a deed. It is a common 
 practice to inroll deeds for safe custody; 
 that is, to get them transcribed upon the 
 records of one of the King's Courts at 
 Westminster, or at a Court of Quarter 
 Sessions. The inroUment of a deed does 
 not make it a record ; but it thereby be- 
 comes a deed recorded. For there is a 
 difference between a matter of record 
 and a thing recorded to keep in memory. 
 A record is the entry on parchment of 
 judicial matters controverted in a Court 
 of record, and whereof the Court takes 
 notice ; but an inroUment of a deed is a 
 private act of the parties concerned, of 
 which the Court takes no cognizance at 
 the time when it is done (4 Cruise, 503). 
 The copy of an inroUed deed of bargain 
 and sale is by the stat. 10 Ann. c. 18, s. 
 3, made as good evidence as the original 
 deed itself. 
 
 INSANITY : See title Ltotacy. 
 
 INSENSIBLE. A term used in plead- 
 ing to signify unintelligible ; and the rule 
 relating to it is, that if a pleading be in- 
 sensible by the omission of material 
 words, &c., it is bad. Stephen on Plead- 
 ing, 414. 
 
 INSIMUL COMPUTASSENT (they 
 settled their accounts together). A species 
 of asswmpdt so called, because one of the 
 counts of the declaration alleged that the 
 plaintiff and defendant had settled their 
 accounts together, and that the defendant 
 engaged to pay the plaintiff the balance, 
 but has since neglected to do so. 
 
 ♦INSINUATION OF A WILL. 
 
 Among the civilians the first production 
 of a will, or leaving it in the hands of the 
 proper officer for probate. Jacob Diet. 
 
 INSOLVENCY. Inability to pay one's 
 debts. 
 
 See title Bankruptcy. 
 
INSPECTION OR EXAMINATION. — INTERDICTION. 
 
 183 
 
 INSPECTION or EXAMINATION. 
 
 Trial by inspection or examination is such, 
 that when the point ox question in dis- 
 pute is evidently an object of sense, the 
 judges of the Court take upon themselves 
 to decide the question upon the testimony 
 of their own senses ; for where the affirm- 
 ative or negative of a question is matter 
 of such obvious determination, it is not 
 thought necessary to summon a jury to 
 decide it, that being called to inform the 
 conscience of the Court in respect only 
 of dubious facts. 9 Rep. 31. 
 
 INSPECTION OF DOCUMENTS : /S«e 
 
 title DiscovBBT. 
 
 INSPEXIMUS (we have inspected). 
 Letters patent are so called from th#cir- 
 cumstance of this being the first word 
 with which they begin (after the title of 
 the king), thus, "Sex omnSms, dhe., Tn- 
 spemnus, &e." It is the same thing with 
 an exemplification: see that title. Les 
 Termes de la Ley. 
 
 INSTALLMENTS. Are diflerent por- 
 tions of a debt payable at different suc- 
 cessive periods as agreed. 
 
 INSTANTER. Immediate without loss 
 of time. In this sense it is used when 
 applied to the word trial; thus, a trial 
 inatanter means an immediate trial, a 
 trial that is to take place forthwith. 
 
 INSTITUTION. A kind of investiture 
 of the spiritual part of the benefice, as 
 induction is of the temporal ; for by in- 
 stitution the care of the souls of the par- 
 ish is committed to the charge of the 
 clerk. By institution, the church is full, 
 so that there can be no fresh presentation 
 tiU another vacancy, in the case of a com- 
 mon patron; and the clerk may enter 
 upon the parsonage house and glebe, and 
 take the tithes ; but he cannot till induc- 
 tion grant or let them, or bring an action 
 for them. 
 
 INSURANCE or ASS URANCE. A se- 
 curity or indemnification, given in consid- 
 eration of a sum of money, against the 
 risk of loss from the happening of certain 
 events. The person who so insures is 
 termed the insurer, and he whose prop- 
 erty is insured is termed the insured, or 
 assured, and sometimes, assurde ; and the 
 instrument by which he effects such insur- 
 ance is termed the policy of insurance. A 
 policy of insurance may be defined to be 
 a contract between two persons, stipulat- 
 ing that if one pay a sum of money (or 
 premium), estimated to be an equivalent 
 
 Insurance or Assurance.) — (OorOmued.) 
 to the hazard run, the other will indem- 
 nify (or insure) , him against the conse- 
 quences which may ensue from the hap- 
 pening of any particular event. Thus, 
 if I pay an insurance company 10s. a 
 year to indemnify me against the loss 
 which I might sustain by my house being 
 burnt down, this is termed insuring my 
 house, the company undertaking, in con- 
 sideration of the money which I pay, to 
 give me a certain sum to rebuildit in case 
 of fire. The same system is pursued in 
 the insurance of ships (commonly called 
 marine insurance), and in the insurance 
 of the lives of individuals, commonly 
 called life insurance. 
 
 There is this difference between life 
 insurance policies and all other kinds, 
 that the latter are contracts of indemnity 
 merely, and the moneys secured thereby 
 cease to be payable if no damage arises; 
 but the former, if duly kept up until the 
 death of the party assured, are payable 
 at all events. Dalby v. India and London 
 Ufe Assurance Co. (15 C. B. 365). 
 
 For the validity of a life-assurance 
 policy, it is, however, necessary that the 
 person who takes it out should have some 
 interest in the life assured at the time of 
 his so taking it out (14 Geo. 3, c. 48) ; 
 but the subsequent cessation of such in- 
 terest does not vitiate the policy. "Wms. 
 P. P. 177. 
 
 INTfiNDMENT. Understanding, 
 meaning, or construction, is so called. 
 Bee, also, title Common Intkndment. 
 
 INTERCOMMONING. When the com- 
 mons of two adjacent manors join, and 
 the inhabitants of both have immemo- 
 rially fed their cattle promiscuously on 
 each other's common, this is called inter- 
 commoning. Les Termes de la Ley. 
 
 INTERDICT (interddcUo). An eccle- 
 siastical censure, prohibiting the admin- 
 istration of divine service in particular 
 places, or to particular persons. 23 Hen. 
 8, c. 12. 
 
 As used in Roman Law, an interdict 
 was equivalent to the injunction in equity, 
 and see next title. 
 
 INTERDICTION. In French Law, a 
 person over twenty-one years of age, if 
 he is in an habitual state of imbecility or 
 insanity, may be excluded the manage- 
 ment of his goods, upon the application 
 of any of the relatives, whom failing, 
 upon the application of the Attorney- 
 General (procurem- du.Bm), to the Court 
 
184 
 
 INTBEESSB TERJUin.— INTERLOCUTORY. 
 
 Interdiction. - 
 
 of first instance, who will thereupon di- 
 rect an inquiry before the conml defa/m- 
 ille. The interdiction may be either ab- 
 solute or limited ; in the case of a limited 
 interdiction, the party is able to act with 
 the approval of a consdl jvdicMre, see 
 that title. 
 
 INTBRESSE TERMINI {An interest 
 in the term). That species of property or 
 interest which a lessee for years acquires 
 in the lands demised to him, before he has 
 actually become possessed of those lands; 
 as distinguished from that property or in- 
 terest vested in him by the demise, and 
 also reduced into possession by an actual 
 entry upon the lands and the assumption 
 of ownership therein, and which is then 
 termed "an estate for years." Thus, 
 where an estate for years in lands is 
 granted to commence at a future period, 
 the grantee, of course, cannot enter until 
 that period has arrived ; but still he has 
 acquired a kind of estate or at least in- 
 terest in the lands ; and the estate or in- 
 terest so acquired, and which he would 
 continue to have until the period at which 
 the term was to commence, had arrived, 
 and he had entered upon the possession 
 of the lands, would be simply an interesse 
 termini. 1 Cra. Dig. 330. 
 
 INTEREST. In its legal signification, 
 means the estate or property whigh a man 
 possesses either in land or chattels, the 
 quantum of which, of course, depends 
 upon the title under which he holds, and 
 which, therefore, varies in exact propor- 
 tion to the different titles under which 
 property can be held. Thus, in land? a 
 man may be possessed of a freehold in- 
 terest, or of an interest less than freehold ; 
 which main classification may again be 
 divided into his interest in fee simple, fee 
 tail, or for life, or his interest for a* term 
 of years, or at will. So also with regard 
 to the interest or property in goods and 
 chattels, it may be either joint or several ; 
 joint, if shared with others (as with the 
 part owners of a ship), several, if pos- 
 sessed by one person exclusively or by 
 more than one, their interests, however, 
 not being in common. 
 
 See title Estate ; also title Intekesse 
 Tebmini, a,nd next title. 
 
 INTEREST OP MONET. Called also 
 Usury, was not favored by the English 
 Common Law, being apparently thought 
 unchristian. However, the custom of 
 merchants gradUEllly introduced it in the 
 
 Interest of Money. - 
 
 following cases, in all of which it is there- 
 fore payable without any express agree- 
 ment for that purpose : — 
 
 (1.) On bills of exchange; 
 
 (3.) On promissory notes ; 
 
 (3.) On bonds ; and 
 
 (4.) On mortgages. 
 
 Interest is also payable, even by the 
 Common Law, in the following cases : — 
 
 (5.) Under an express contract to pay 
 it; 
 
 (6.) Under a contract to pay it, which 
 is implied from previous deal- 
 ings between the parties. 
 
 Equity always favored the allowance of 
 interest upon money lent or owing, when 
 the amount was either certain or ascer- 
 tainable, and invariably in such cases 
 from a demand made for payment fol- 
 lowed by a refusal to pay; and now under 
 the Stat. 3 & 4 "Will. 4, c. 43, s. 38, ' ' Upon 
 all debts or sums certain payable at a cer- 
 tain time or otherwise, the jury, on the 
 trial of any issue, or of any inquisition 
 of damages, may, it they shall think fit, 
 allow interest to the creditor at a rate not 
 exceeding the current rate of interest, 
 from the time when such debts or sums 
 certain were payable ; (a.) if such debts 
 or sums be payable by virtue of some 
 written instrument at a certain time ; or 
 (J.) if payable otherwise, then from the 
 time when demand of payment shall have 
 been made in writing, so as such demand 
 shall give notice to the debtor that inter- 
 est will be claimed from the date of such 
 demand until the term of payment." 
 
 INTERLOCUTORY (from Latin tTiter- 
 loqitor). Something intervening. or hap- 
 pening between the commencement of 
 law proceedings and their termination, 
 i. e., during the progress of an action at 
 Law or a suit in Equity ; thus, an inter- 
 locutory decree in a suit in Equity signi- 
 fies a decree that is not final and does not 
 conclude the suit, for it seldom happens 
 that the first decree can be final; for if 
 any matter of fact is strongly controver- 
 ted, the Court usually directs an inquiry 
 in Chambers to be made, after which the 
 matter is to come on again for further 
 consideration, and the final decree is 
 therefore suspended until the result of 
 such inquiry is made known. An inter- 
 locutory judgment in an action at law 
 signifies a judgment that is not final, but 
 which is given upon some plea, proceed- 
 ing or default, occurring in the course of 
 the action, and which does not terminate 
 
INTERNATIONAL LAW. — INTERPRETATION. 
 
 185 
 
 Interlocutory. — (^Cmtinued.) 
 the suit ; such are judgments on demur- 
 rer, or verdict for the defendant on cer- 
 tain dilatory pleas called pleas in abate- 
 ment, or those which are given when, al- 
 though the right of the plaintiff in the 
 action is established, yet the amount of 
 damages he has sustained is not ascer- 
 tained, which cannot be done without the 
 intervention of the jury. This happens 
 when the defendant in an action suffers 
 judgment by default, or confession, or 
 upon a demurrer, in any of which cases, 
 if the demand sued for be damages and 
 not a ^ecific sum, then a jury must be 
 called to assess them ; therefore the judg- 
 ment given by the Court previous to such 
 assessment by the jury is interlocutory 
 and not final, because the Court knows 
 not what damages the plaintiff has sus- 
 tained. An interlocutory order is an 
 order made during the progress of a suit 
 upon some incidental matter which arises 
 out of the proceedings, as an order for 
 an injunction, for instance. Smith's 
 Action at Law, 179. 
 
 INTERNATIONAL LAW. As op- 
 posed to Municipal, i. e., Civil Law, is 
 the law common to nations generally. 
 It is either public or private, as to which 
 generally see Woolsey on International 
 Law, and see, also, particular titles 
 throughout. 
 
 INTERPLEADER. When two or 
 more persons claim the same thing of a 
 third, and he, laying no claim to it him- 
 self, is ignorant which of them has a 
 right to it, and fears he may be pre- 
 judiced by their proceeding against 
 him to recover it, he may file a bill in 
 equity against them, the object of which 
 is to make them litigate their title be- 
 tween themselves instead of litigating it 
 with him, and such a bill is called a bill 
 of interpleader. Or he may, in certain 
 cases, resort to a Court of Law for the 
 same purpose. 
 
 The jurisdiction at Law in interpleader 
 was originally confined to the single case 
 of joint bailment {Ora/wahayv. Thornton, 
 3 My. & Or. 31), i. e., to cases in which 
 the titles of the claimants to the money, 
 goods or chattels in question, or to the 
 proceeds or value thereof, had a common 
 origin ; but now under the C. L. P. Act, 
 1860, s. 13, this community of origin in 
 the titles of the interpleading parties is 
 no longer necessary. But the titles must 
 at Law still be legal in their character, 
 and not equitable. Whence the remedy 
 
 94 
 
 Interpleader. — ( OonUnued.) 
 
 in Equity is still more extensive than 
 that at law. The grounds of an inter- 
 pleader suit in Equity are the follow- 
 ing:— 
 
 (1.) That the plaintiff has no personal 
 interest, either in respect of rights 
 {Mitchell V. Haym, 3 S. & S. 63), or in 
 respect of liabilities {Gramiha/y v. Thorn- 
 ton, supra), in the subject-matter; 
 
 (2.) That the adverse rights of the 
 defendants are such as can be finally 
 deteraftned in the interpleader suit ; but 
 
 (3.) These rights may be legal or 
 equitable, either all or some of them 
 indifferently, unless the jurisdiction 
 should be exclusively at Law. 
 
 The interpleader statute at Law is 1 
 & 2 Will. 4, c. 58, and see Day C. L. 
 Prac. pp. 353-364, and notes. 
 
 INTERPRETATION. This consists 
 in ascertaining the true meaning of the 
 words and conduct of men. 
 
 Firstly, with reference to wills, the fol- 
 lowing six rules of interpretation are 
 generally recognized : — 
 
 (1.) A testator is always presumed to 
 use words according to their strict and 
 primary acceptation, until from the con- 
 text of the will it appears that he has 
 used them in a different sense ; 
 
 (3.) Where there is nothing in the con- 
 text of a will showing that the testator 
 has used words in other than their strict 
 and primary acceptation, and his words 
 when so interpreted are sensible with 
 reference to extrinsic circumstances, then 
 the words are to be interpreted in their 
 strict and primary sense and in no other, 
 notwithstanding the strongest presump- 
 tion to the contrary ; 
 
 (3.) But where the testator's words 
 when so interpreted are insensible with 
 reference to extrinsic circumstances, then 
 the extrinsic circumstances may be 
 looked into for the purpose of arriving 
 at some secondary or popular sense which 
 shall be sensible with reference to these 
 circumstances ; 
 
 (4.) Where the written characters of 
 the will are difficult to decipher, or the 
 words of the will are in an unknown or 
 unusual language, the evidence of persons 
 experienced in deciphering written char- 
 acters or acquainted with the language, 
 is admissible for the purpose of informing 
 the Court or judge ; 
 
 (5.) Extrinsic evidence is also admissi- 
 ble for the purpose of identif3dng the direct 
 of the testator's bounty (whether the 
 
186 
 
 INTERROGATORIES. — INTESTATE. 
 
 Interpretation. — ( GmUnued.) 
 devisee or legatee), and for the purpose 
 also of indentifying the subject of dispo- 
 sition ; 
 
 (6.) Where the words of a will remain 
 unintelligible after the application of the 
 five preceding rules, the will is void for 
 uncertainty. 
 
 Secondly, with reference to other in- 
 struments. The principal rules regard- 
 ing the interpretation of these are the 
 following : — 
 
 (1.) ifie agreement shall havfi a rea- 
 sonable construction according to the 
 intent of the parties ; 
 
 (3.) The construction shall be liberal 
 and favorable, ut res magis iialeat qudm 
 
 (3.) The popular meaning of the word 
 is to be adopted until proof of a preciser 
 technical or acquired meaning ; 
 
 (4.) Every word is to be regarded in the 
 light of its context, ex antecedentHms et 
 consequeniOms optima fit interpretatio ; 
 
 (5.) An erroneous particularization 
 does not afiect a precedent generality 
 that is true (Julsa demonstratio mm nocet, 
 cum de corpore constat) ; and vice versa,, a 
 subsequent generality shall be confined 
 by the precedent particularization (this 
 is called the construction ejusdem gen- 
 eris); 
 
 (6.) Custom shall control a contract, 
 unless the contract exclude the custom 
 (this is an application of the rule Lex loci 
 aotus ; see that title) ; 
 
 (7.) The words of a deed are to be con- 
 strued most strongly against the grantor 
 {fierba ea/rtarum forUus accipiuntur cont/ra 
 proferentem) ; but this rule is only to be 
 relied upon when other rules of con- 
 struction fail (lAndMS v. Mel/rose, 3 H. & 
 N. 177); 
 
 (8.) Every contract binds the executor 
 or administrator of the party, although 
 he be not named ; but to bind the heir, 
 he must be particularly mentioned ; and 
 
 (9.) Parol evidence may in certain cases 
 be admitted in connection vnth written 
 agreements. 
 
 8ee title Extrinsic Evidence. 
 
 INTERROGATORIES. The examina- 
 tion of the parties to a Chancery suit ia 
 not ordinarily conducted vvBa voce in 
 open Court (as is the case in Common 
 Law Courts), but upon written questions 
 previously prepared by counsel, which are 
 called interrogatories; hence the phrase 
 examining a vritness upon interrogatories. 
 And since the Act 17 & 18 Vict. C. 125, 
 
 Interrogratories. — ( Gontinued.) 
 ss. 51-57, interrogatories may, subject to 
 certain restrictions, be also exhibited at 
 Law by either party to the action. But 
 whereas in Equity there is almost no 
 question which the plaintiff may not 
 extract from the defendant by means of 
 interrogatories, the practice at Law is 
 subject to the following restrictions : — 
 (1.) Interrogatories must not be made 
 the means of evading the rule which 
 requires the production of primary evi- 
 dence (Herschfidd v. Ola/rlc, 11 Exch. 
 
 (2.) Interrogatories do not deprive a 
 witness of his privilege ; consequently, he 
 vnll not be compelled to state the con- 
 tents ctf, or to describe documents which 
 are his muniments of title, nor (except 
 under very special circumstances) to an- 
 swer questions tending to criminate him, 
 or to expose him to penalties or forfeit- 
 ures; and 
 
 (8.) Pishing interrogatories will not be 
 encouraged, either at Law or in Equity. 
 
 INTERVENER. The interposition or 
 interference of a person in a suit in the 
 Court of Probate and Divorce in defense 
 of his own interests is so termed, and a 
 person is at liberty to do this in every 
 case in which his interest is affected, 
 either in regard of his property or his 
 person. Thus, in a matrimonial pause, if 
 proceedings be taken against a party who 
 has either solemnized or contracted mar- 
 riage with another, such other or third 
 party may, if he or she pleases, interpose 
 in such suit to protect his or her own 
 rights in any part or stage of the pro- 
 ceedings, even after the conclusion of the 
 cause. The Queen's Proctor may also in 
 a proper case intervene under the stat. 
 33 & 34 Vict. c. 144, as in case of sus- 
 pected collusion between the parties. 
 ~ ■ V. Bering, L. R. 1 P. & M. 531. 
 
 INTESTATE. "Without making a will. 
 Thus a person is said to die intestate 
 when he dies without making a vrill, or 
 dies without leaving any thing to testify 
 what his wishes were with respect to the 
 disposal of his property after, his death. 
 This word is not only applied to the 
 above-mentioned condition in which a 
 person dies, but is often used to signify 
 the person himself. Thus, in speaking 
 of the property of a person who died 
 intestate, it is common to say the intes- 
 tate's property, i. e., the property of the 
 person dyin^ in an intestate condition. 
 An intestate is the opposite to a testator, 
 
INTRUSION. — ISSUE. 
 
 187 
 
 Intestate. — (^Oontinued.') 
 the latter word signifying a man who 
 dies having made a will. It was a rule 
 of the Eoman Law that no one could die 
 partly testate and partly intestate (neque 
 enim idem en pwrte testatus et ex parte in- 
 testatus decedere potest, Just. ii. 14. 5) ; but 
 nothing is more common in English Law 
 than that the same man should die testate 
 as to part, and intestate as to the rest of 
 his property, unless indeed he has made 
 a residuary bequest or devise, and even 
 in that case a partial intestacy is not 
 infrequent. 
 
 INTRUSION (intrano). A species of 
 injury by ouster, or amotion of posses- 
 sion from the freehold, being an entry of 
 a stranger, after a particular estate of 
 freehold is determined before him in 
 remainder or reversion, as when a tenant 
 for life dies seized of certain lands and 
 tenements, and a stranger enters thereon 
 after such death, and before any entry 
 . made by him in remainder or reversion 
 (F. N. B. 203, 204; 1 Cruise, 161, 316). 
 The word is also applied to copyholds, 
 when a stranger enters or intrudes before 
 the reversioner or remainderman, after 
 the determination of the particular copy- 
 hold estate. The writ which lay against 
 such intruders was also called a writ of 
 intrusion. Les Termes de la Ley ; Old 
 Nat. Brev. 203. 
 
 IN VENTRE SA MERE {in its mother's 
 woniS). Every legitimate emfamt in ventre 
 sa mire, or iu its mother's womb, is sup- 
 posed in law to be bom for many pur- 
 poses. It is capable of having a legacy, 
 or of receiving a surrender of copyhold 
 lands ; so if lands be devised to B. for 
 Ufe, remainder to such chUd or children 
 as shall be living at the time of his 
 decease, a posthumous child wiU take 
 equally with those who were bom be- 
 fore B.'s death {Doe v. Olark, 2 Hen. 
 Bl. 399; Pewrce v. Ga/rrington, L. R. 
 8 Ch. App. 969). But in the case of 
 lands, the produce or profits go in the 
 interim to the heir-at-law, or residuary 
 devisee (if there be any such). Hophins 
 V. HopUns, Ca. t. Talb. 44, and Tud. Con- 
 vey. L. C. p. 711. 
 
 INVESTITURE (from theFr. imesUr). 
 A ceremony which accompanied the grant 
 of lands in the feudal ages, and consisted 
 in the open and notorious delivery of pos- 
 session in the presence of the other vas- 
 sals, which perpetuated among them the 
 on-a of their new acquisition at the time 
 
 luTestiture. — ( Omtinued.) 
 when the art of writing was very Uttle 
 known, and thus the evidence of the 
 property was reposed in the memory of 
 the neighborhood, who in case of dis- 
 puted title were afterward called upon to 
 decide upon it. 
 
 IRREPLEVIABLE or IRREPLEVI- 
 SABLE. Not to be replevied, or set at 
 large on sureties (Cowel). It is contrary 
 to the nature of a ^stress for rent to be 
 irrepleviable. Tomlins. 
 
 * IRRITANCY. In Scotch Law, the 
 happening of an event by which a charter 
 or deed to which a clause i/rritamt is an- 
 nexed, becomes void. A kind of forfeit- 
 ure. Bouv. Diet. ; Burton Real Prop. 
 298. 
 
 ISSUABLE PLEA. An issuable plea 
 is that which puts the merits of the cause, 
 either on the facts or law, in issue; in 
 other words, which will decide the action 
 {Steele v. Sarmer, 14 M. & W. 139). It 
 seems, however, to be by no means clear 
 that a plea to be " issuable " must put the 
 substantial or moral merits of "the cause 
 at issue. Thus, a plea which goes simply 
 to show that the plaintiff had no present 
 cause of action, as in an action by an at- 
 torney for work and labor, that the plain- 
 tiff had not delivered a signed bill a 
 month before action brought, has been 
 held an issuable plea ( WilJcinson v. Page, 
 1 Dowl. & L. 913); see, also, Staples v. 
 HoMmorth, 4 Bing. N. C. 144). Where 
 the Court grants an extension of time, or 
 other like indulgence to a defendant, it 
 it is generally upon this condition 
 (among others) that within that extended 
 time he shall "plead issuably." See 
 Smith's Action at Law. 
 
 ISSUE {eiAtus). Is the disputed point 
 or question to which the parties in an 
 action have narrowed their several alle- 
 gations, and upon which they are desir- 
 ous of obtaining the decision of the 
 proper tribunal. When the plaintiff and 
 defendant have arrived at some specific 
 point or matter affirmed on the one side 
 and denied on the other, they are said to 
 be at issue {ad exitum, i. e., at the end or 
 result of their pleading) ; the question so 
 set apart is called the issue, and is desig- 
 nated, according to its nature, as an 
 issue in fact, or an issue in law. If it is 
 an issue in fact, it is almost universally 
 tried by. the country {i. «., a jui-yof twelve 
 men) ; if an issue in law, by the judges of 
 the land constituting the Court in which 
 
188 
 
 ISSUE ROLL.— JOINDER. 
 
 Issne. — ( OonUrmed.) 
 
 the action has been brought. Steph. on 
 
 Pleading, 35, 4th edit. 
 
 ISSUE BOLL. In ancient times it 
 was the practice of the Courts, when the 
 pleadings were carried on orally, to have 
 H contemporaneous record of the proceed- 
 ings made out upon a parchment roll 
 called the " Issue RoE" This practice, 
 although long gro\|n into disuse, was 
 until recently still supposed in contem- 
 plation of law to exist ; and the Courts 
 still required that it should be made up, 
 or at all events commenced, or an iTuApitur, 
 as it was called, was entered upon the 
 roU, and certain fees were paid to the 
 officers for the making it up. Practi- 
 cally, however, this roU was of no use, 
 and in consequence it was by a late rule 
 of Court aboKshed; and the only entry 
 of the proceedings upon record, in the 
 present day, is that made upon the Nisi 
 Prius Record, or upon the Judgment Roll, 
 accoi'ding to the nature of the case, and 
 no fees are allowed to be paid in respect 
 of any oljher entry made or supposed to 
 be made upon any roll or other record 
 whatever. 1 PI. R. H, T. 4 "Will. 4. 
 
 ITINERANT. Tr9,veling or moving 
 about; thus the judges who are now 
 called justices of assize were formerly 
 called justices itinerant, from the circum- 
 stance of their traveling into several 
 counties to hear causes ready for trial (3 
 Bl. 59). These judges were appointed 
 for the first time' by King Henry II., at 
 the Parliament of Northampton, in 1187. 
 
 J. 
 
 JACENS H^REDITAS. An estate in 
 abeyance. This was one of the fictitious 
 personcs of law referred to by Austin. It 
 was supposed to continue the persona of 
 the deceased person until the entry 
 (adiUo) of the Ticm-ea (executor) upon the 
 estate. In English Law, the authority of 
 the executor or administrator arises from 
 the grant of probate or administration; 
 and until such grant is made, the Judge 
 Ordinary is the only legal personal repre- 
 sentative of the deceased ; but the sub- 
 sequent grant to the executor or adminis- 
 trator when made relates back (for most 
 purposes) to the date of the death. 
 
 JACTITATION (jactitaUo). . A false 
 boasting. The word is commonly used 
 with reference, 1st, to marriage ; Bud, to 
 
 Jactitation. — ( Continued.) 
 
 the right to a seat in a church; and, 
 
 3rdly, to tithes. 
 
 (1.) JactitaUon of Tnarriage is the ho&Bt- 
 ing or giving out by a party that he or 
 she is married to some other, whereby a 
 common reputation of their matrimony 
 may ensue. To defeat that result, the 
 person may be put to a proof of the actual 
 mariiage, failing which proof she or he 
 is put to silence about it ; 
 
 (3.) Jactitation of a right to a seat in a 
 church appears to be the boasting by a 
 man that he has a right or title to a pew 
 or sitting in a church, to which he has 
 legally no title ; 
 
 (3.) Jactitation of tithes is the boasting 
 by a man that he is entitled to certain 
 tithes, to' which he has legally no title. 
 See Rog. Eccl. Law, 483. 
 
 JEOFAILE (from the Fr. j'oi failU, I 
 have failed). An oversight in pleadings 
 or in other law proceedings. The Statutes 
 of Jeofails are so-called because when a 
 pleader perceives any mistake in the form 
 of his proceedings, and acknowledges 
 such error {fai faille), hs is at liberty by 
 those statutes to amend it (Stra. 1011). 
 These old statutes have been superseded 
 in effect by the more liberal powers of 
 amendment conferred by the C. L. P. 
 Act, 1853. 
 
 See title Amendment. 
 
 JETSAM, JETSON, or JETTISON. 
 
 By this appellation are distinguished 
 goods which have been cast into the sea, 
 and there sink and remain under water 
 (2 Steph. PI. 557.) Jetsam is in this 
 respect distinguished from Flotsam, where 
 the goods remain swimming on the sur- 
 face of the waves, and from Lagan, where 
 they are sunk, but tied to a buoy or cork 
 in order to mark their position, so that 
 they may be found again. 
 
 The king, or his grantee, shall have 
 flotsam, jetsam,, or lagan when the ship is 
 lost and the owners of the goods are 
 unknown. F. N. B. 133. 
 
 JEWS : See Toleration Act. 
 
 JOINDER. Joining, uniting together, 
 &c. Thus, joinder in action signifies the 
 joining or uniting of two persons together 
 in one action against another; and such 
 an action is termed a joint action. 
 Joinder of issue is where the plaintiff or 
 plaintiffs and the defendant or defendants 
 unite upon a statement of their respective 
 grounds of action and defence, and agree 
 to stand or fall by that statement. 
 
JOINDER IN DEMURRER. — JUDGMENT. 
 
 189 
 
 JOINDER IN DEMUBBEB. When 
 a defendant in an action tenders an issue 
 of law (called a demurrer), the plaintiff, 
 if he means to maintain his action, must 
 accept it, and this acceptance of the de- 
 fendant's tender, signified to the plaintiff 
 in a set form of words, is called a joinder 
 in demurrer. The usual words of a 
 demurrer are, — " The defendant (or 
 plaintiff) says that the declaration (or 
 plea) is bad in substance ; " and it is 
 necessary to state in the margin some 
 substantial matter of law intended to be 
 argued. Thereupon the other joins issue 
 on the demurrer in these terms, — "The 
 plaintiff (or defendant) says that the 
 declaration (or plea) is good in sub- 
 stance." 
 
 JOINDEB OF ISSUE. In an action 
 at law, in any stage of the pleadings, 
 when either side traverses or denies the 
 facts pleaded by his antagonist, he usually 
 tenders an issue, as it is called, which, iJE 
 the other party accepts, issue is said to be 
 joined. Smith's Action at Law. 
 
 JOINT AND SEYEBAL. A joint and 
 several bond is a bond in which the obli- 
 gors have rendered themselves both 
 jointly and individually liable to the 
 obligee ; so that the latter, in the event 
 of the non-performance of the conditions 
 of the bond by the obligors, may sue 
 them either jointly or separately as he 
 deems the more advisable. The phrase 
 is also frequently used with reference to 
 contracts not under seal (i. e., simple 
 contracts), and it often becomes a matter 
 of serious moment to know whether a 
 given cbntract is a joint or a several con- 
 tract. Thus, where a broker was em- 
 ployed to sell a ship belonging to three 
 part owners, two of whom communicated 
 with him on the subject, and to them he 
 paid their shares of the proceeds of the 
 sale; but after admitting the amount 
 of the third part owner's share to be in 
 his hands, refused to pay it to him with- 
 out the consent of the other two, and 
 he alone brought an action for his share, 
 it was held that he could not sue alone, 
 but should have sued jointly with the 
 other two part owners. 1 Ch. PI. 9, 6tJi 
 edit. ; 1 Saund. 153, n. (1). 
 
 JOINT INDICTMENTS. When sev- 
 eral offenders are joined in the same in- 
 dictment, such an indictment is called a 
 joint indictment ; as when principals in 
 the first and second degree, and accesso- 
 ries before and after the fact, are all 
 
 Joint Indictments. — (OonUnued.) 
 
 joined in the same indictment. 3 Hale, 
 173. 
 
 JOINT TENANTS. Those who hold 
 lands or tenements by joint tenancy. It 
 may be further described by the follow- 
 ing passage from Cruise : 
 
 "When lands are granted to two or 
 more persons to hold to them and their 
 heirs, or for the term of their lives, or for 
 the term of another's life, without any 
 restrictive, exclusive, or explanatoiy 
 words, all the persons named in such 
 grant, to whom the lands are so given, 
 take a joint estate, and are thence called 
 joint tenants." 3 Cruise, 431; Litt. s. 
 ,377. 
 
 See, also, title STjKvrroRSHip. 
 
 JOINTUBE. A settlement of lahds or 
 tenements made to a woman on account 
 of marriage. It is defined by Lord Coke 
 to be "a competent livelihood of free- 
 hold for the wife of lands or tenements, 
 &c., to take effect presently in possession 
 or profit, after the decease of her hus- 
 band, for the life of the wife at least." 
 The woman on whom such a settlement 
 of lands is made is termed a jointress (1 
 Cruise, 199 ; 1 Inst. 36). A legal joint- 
 ure was first authorized by the Statute of 
 Uses, 37 Hen. 8, c. 10, by which statute 
 if the jointure is before marriage, the 
 woman shall not have her election be- 
 tween jointure and dower, but if the 
 jointure is after marriage, then she shall 
 have her election. 
 
 JUDGMENT. Is defined to be the 
 sentence of the law pronounced by the 
 Court upon the matter appearing from the 
 previous proceedings in the suit. Judg- 
 ment is given either for the plaintiff or 
 the defendant ; when for the plaintiff, it 
 is either a judgment (1) by confession or 
 (3) by default ; when given for the de- 
 fendant it is either a judgment of (3) 
 nonsmt, (4) non pros., (5) retraxit (6) nolle 
 prosequi, (7) discontmuanee, or (8) stet pro- 
 cessus; and judgment may be given for 
 either party upon (9) dmiwrrer, (10) issue 
 ofnul Uel record, or (11) verdict. A judg- 
 ment (1) by confession, or (3) default, is 
 such a judgment as is signed against the 
 defendant when the justice of the plain- 
 tiff's claim is admitted bjr him, either (1) 
 in express terms, as by giving a cognovit, 
 or (3) by conduct, as by failing to take 
 proper steps in the suit. A judgment 
 upon (3) nonsuit is a judgpient given to 
 the defendant whenever it clearly ap- 
 
190 
 
 JUDGMENT DEBTS.— JUDGMENT ROLL. 
 
 Jndgment. — ( Continued.) 
 pears that the plaintiff has failed to make 
 out his case by evidence. A judgment of 
 (4) non pros, is a judgment which the 
 defendant is entitled to have against the 
 plaintiff when he does not follow up (non 
 prosequitwr) his suit as he ought to do, as 
 by delaying to take any of those steps 
 which he ought to take beyond the time 
 appointed by the practice of the Courts 
 for that purpose. A (5) retraxit, or (6) 
 nolle prosequi, is when the plaintiff, of 
 his own accord, declines to foUow up his 
 action ; the difference between them is, 
 that a rebramt is a bar to any future action 
 brought for the same cause, whereas a 
 TwUe prosequi is not, unless made after 
 judgment (Sowden v. Som, 1 Bing. 716). 
 A judgment on a (7) discontinuance is 
 when the plaintiff finds that he has mis- 
 conceived his action and obtains leave 
 from the Court to discontinue it, on which 
 judgment is given against him, and he 
 has to pay the expenses. A judgment on 
 a (8) stet processus is entered when it is 
 agreed, by leave of the Court, that all 
 further proceedings shall be stayed; 
 though in form this is a judgment for the 
 defendant, yet it is generally like a dis- 
 continuance, being, in point of fact, for 
 the benefit of the plaintiff, and entered 
 on his application ; as, for instance, when 
 the defendant has become insolvent, &c. 
 Judgment on (9) demurrer is such a 
 judgment as is pronounced by the Court 
 upon a question of law submitted to 
 them, as opposed to a question of fact, 
 which is submitted to a jury. A judg- 
 ment upon an (10) issue of nul tiel record 
 is when a matter of record is pleaded in 
 any action — as a fine, a judgment, or the 
 like — and the opposite party pleads 
 "nul tiel record," i. e., that there is no 
 such matter of record existing ; upon this 
 issue is joined and tendered in the fol- 
 lowing form: "And this he prays may 
 be inquired of by the record, and the 
 other doth the like ; " and thereupon the 
 party jJleading the record has a day given 
 him to bring it in, and proclamation is 
 made in Court for him to "bring forth 
 the record by him in pleading alleged, 
 or else he shall be condemned ; " and on 
 his failure to do so, his antagonist shall 
 have judgment to recover. A judgment 
 upon (11) a verdict is the judgment of 
 the Court pronounced after the jury 
 have given their verdict. As to inter- 
 locutory and final judgments, see titles 
 Interlocutoht, Final; and see, also, 
 next title. 
 
 JUDGMENT DEBTS. These are debts 
 whether on simple contract or by special- 
 ty, for the recovery of which judgment 
 has been entered up, either upon a cog- 
 novit, or as the result of a successful ac- 
 tion. The old law of judgments was in 
 many respects different from the presemt 
 law. Thus under the old law, which 
 rested substantially upon the Acts 13 
 Edw. 1, c. 18; 29 Car. 3, c. 3; and 4 & 5 
 "W. & M. c. 39, the lands afiected by a 
 judgment were the entirety of terms for 
 years only, and one moiety of freehold 
 lands, tithes, reversions, and trust estates 
 whereof the trustee was seized for the 
 debtor at the Ume of execution sued. Es- 
 tates tail were liable to the extent of one 
 moiety thereof, but only during the life 
 of the tenant in tail; and joint tenancies 
 were in the same position. Moreover, 
 trust terms for years, joint trust estates, 
 and equities of redemption were alto- 
 gether exempt ; as were also copyholds, 
 glebe, and advowsons in gross. More- 
 over, purchasers (including mortgagees) 
 were not bound by a judgment which 
 was either undocketed or misdocketed 
 (Tunstall v. Trt^ipes, 3 Sim. 386; Brand- 
 ling V. Phimmer, 8 De G. M. & G. 747); 
 unless they had notice thereof, in which 
 case they were bound (Dams v. 81/rath- 
 more [EaH'\, 16 Ves. 419). However, 
 Equity assisted the judgment-creditor 
 toward enforcing his execution in respect 
 of those equitable interests before enu- 
 merated which were not statutorily liable 
 on an elegit; thus in the case of an equi- 
 table freehold estate, the judgment-cred- 
 itor, after suing out an ehgit, might file 
 his bill in Equity for relief (^NeatcY. Ma/rl- 
 lorougTh [i)«fe], 3 My. & Cr. 407) ; and in 
 the case of an equitable leasehold or term 
 of years, the judgment-creditor, after su- 
 ing out ?kfi. fa., might in like manner file 
 his bin in Equity for relief (Gore v. B(m- 
 ser, 1 Jur. [N. S.] 393); and this seems 
 to be still the law; Padwick v. Drihe of 
 Newcastle, L. R. 8 Eq. 700. 
 
 The present law in England which de- 
 pends substantially upon the following 
 statutes, namely: — 1 & 3 Vict. c. 110; 3 
 & 3 Vict. c. 11; 3 & 4 Vict. c. 83; 33 & 
 34 Vict. c. 38; and 37 & 38 Viet. c. 113. 
 
 JUDGMENT ROLL. A parchment 
 roll upon which all proceedings in the 
 cause up to the issue, and the award of 
 venire inclusive, together with the judg- 
 ment which the Court has awarded in the 
 cause, are entered. This roll, when thus 
 made up, is deposited in the treasury of 
 
JUDICIAL WRITS.— JURORS, IMMUNITY OF. 
 
 191 
 
 Jnd^ment Roll. — ( OonUnued.) 
 the Court, in order that it may be kept 
 with safety and integrity. In practice, 
 the making up and depositing the judg- 
 ment roll is generally neglected, unless in 
 cases where it becomes absolutely neces- 
 sary to do so ; as when, for instance, it is 
 required to give the proceedings in the 
 cause in evidence in some other action ; 
 for in such case the judgment roll, or an 
 examined copy thereof, is the only evi- 
 dence of them that will be admitted. 
 Smith's Action at Law, 184. 
 
 JUDICIAL WRITS. Such writs as 
 issue under the private seal of the Courts, 
 and not under the great seal of England, 
 and are tested or witnessed not in the 
 king's name, but in the name of the chief 
 judge of the Court out of which they 
 issue, are so called. The word "judi- 
 cial " is used in contradistinction to orig- 
 inal ; original writs signifying such as is- 
 sue out of Chancery under the great seal, 
 and are witnessed in the king's name. 
 Since the Uniformity of Process Act (3 
 Will. 4, c. 39, s. 31), the distinction has 
 become almost useless. 
 
 JUeES D'INSTRUCTION. In French 
 Law, are officers subject to the Procureur- 
 Imperial (see that title), who receive in 
 cases of criminal offenses the complaints 
 of the parties injured, and who summon 
 and examine witnesses upon oath, and 
 after communication with the procureur- 
 imperial draw up the forms of accusa- 
 tion. They have also the right, subject 
 to the approval of the same superior offi- 
 cer, to admit the accused to bail. They 
 are appointed for three years, but are re- 
 eligible for a further period of office. 
 They are usually chosen from among the 
 regular judges. 
 
 JURAT (from the Latin j'swasiiM, sworn 
 by). The clause written at the foot of 
 an affidavit, stating when, where, and be- 
 fore whom such affidavit was sworn, is 
 called the jurat. 
 
 * JURAMENTUM. In Civil and Crim- 
 inal Law, an oath. 
 
 * JURATORY CAUTION. In Scotch 
 Law, an inventory of effects given upon 
 oath and assigned as security of sums 
 which may be found due. Bell Diet. 
 
 JURISDICTION (jurisdietio). The 
 right, power, or authority which an in- 
 dividual or a Court has to administer jus- 
 tice. Thus the three superior Courts of 
 
 Jurisdiction. — (ConUnmd.) 
 
 Common Law ^ — viz., the King's Bench, 
 Common Pleas, and Exchequer, have 
 jurisdiction over all personal actions 
 throughout England ; that is, they have 
 power and authority to hear and deter- 
 mine such actions throughout England. 
 
 JURIS UTRUM. A writ that lay for 
 the succeeding incumbent of a benefice, 
 to recover the lands or tenements belong- 
 ing to the church, which had been aliened 
 by his predecessor. Les Termes de la 
 Lm/. 
 
 JURORS, IMMUNITY OF. In early 
 times juries were subject to punishment 
 and intimidation for giving and in giving 
 certain verdicts, the chief processes 
 against them being two, namely : — 
 
 (1.) By writ of attaint; and 
 
 (3.) By summary fine and imprison- 
 ment. 
 
 First. Attaint was a process which lay 
 partly by the Common Law and partly by 
 statute. The proceeding consisted in 
 impaneling a jury of twenty-four to try 
 the verdict of the twelve. The verdict of 
 the twenty-four was final, and if opposed to 
 that of the twelve, it operated the two 
 following effects, namely : — 
 
 (1.) It annulled the former verdict; 
 and 
 
 (2.) It convicted the twelve of perjury 
 and false verdict. 
 
 Thereupon, the convicted jurors were 
 arrested and imprisoned and rendered in- 
 famous for ever ; their lands and goods 
 were forfeited to the king, their wives 
 and children were turned out of their 
 homes, their houses were thrown down, 
 their trees were rooted up, and their 
 meadows were ploughed. This proceed- 
 ing was available only in the case of a 
 verdict in civil causes. 
 
 Secondly. The summary process by fine 
 and imprisonment, although it was fre- 
 quently resorted to, was admitted to be 
 illegal, as being against Magna Charta. 
 The Star Chamber was the Court by which 
 chiefly this summary jurisdiction was ex- 
 ercised; and although in certain cases 
 there may have been good cause for the 
 Star Chamber to intervene (it is alleged, 
 e. g., in the case of Welsh juries), still the 
 jurisdiction and the exercise of it were 
 alike inexcusable. After the abolition of 
 the Star Chamber, in 1641, the practice of 
 fining and imprisoniag jurors for giving 
 false verdicts was not altogether discon- 
 tinued ; for in 22 Car. 2, it was again re- 
 sorted to in the case of Bushell, who was 
 
192 
 
 JURY.— JURY, TRIAL BY. 
 
 Jurors, Immnnity of. — (ContmiuM^ 
 one of the jury who had (notoriously 
 against the truth) found that Penn and 
 Mead had not preached in Graceohurch 
 Street, contrary to the Act of Uniformity, 
 the Mve Mile Act, or the Conventicle 
 Act. This man Bushell, having been im- 
 prisoned along -with his fellow jurors 
 upon the late trial, sued otft his writ of 
 habeas corpus ; and the cause of his im- 
 prisonment being stated in the return 
 made to his writ to be that he had found 
 a verdict in favor of Penn and Mead, ccm- 
 trcvry to the evidence and also controury to 
 the direction of tJie judge in matter of lam, 
 after argument upon the sufficiency or 
 legality of that cause of imprisonment, 
 Vaughan, C. J., ordered Bushell to be 
 released, holding in effect therefore, that 
 jurors could not be fined or imprisoned 
 for an alleged false verdict, and bas- 
 ing that opinion upon the following 
 grounds, — 
 
 (1.) That the jury were the judges of 
 the evidence and found the same, and 
 their finding was the only evidence, no 
 matter what the alleged eyidence adduced 
 might be ; and 
 
 (3.) That the judge's direction, even in 
 matter of law, was not imperative or ab- 
 solute, but was hypothetical merely, for 
 he could not direct what the law was 
 without first knowing the fact, and the 
 jury had not as yet found the fact at the 
 time he gave his direction. 
 
 This sophism of the chief justice, which 
 even a regard for liberty can scarcely 
 palliate, was effectual in causing the 
 abandonment of the summary procedure 
 against jurors for the future. The other 
 and regular proceeding, that by attaint, 
 fell gradually into disuse by reason of the 
 extreme severity of its consequences, and 
 it was eventually abolished altogether by 
 the County Juries Act, 1835 (6 Geo. 4, c. 
 50), which substituted a motion for a 
 new trial as the mode, and that it is, at the 
 present day, the only mode, of impugning 
 or, at any rate, reviewing the verdict of 
 a jury. This mode is av^able, moreover, 
 in civil cases only. 
 
 JURY (jiirata from fware, to swear). 
 A certain number of men (usually twelve) 
 to whose decision the matter in dispute 
 between a plaintiff jind defendant is sub- 
 mitted, and who are bound upon their 
 oaths to decide (or give their verdict) ac- 
 cording to the evidence which is laid be- 
 fore them on the trial of the cause. Such 
 men, individually, are called jurors. A 
 
 Jury. — ( Continued.) 
 jury is either a common jury or a special 
 jury. A common jury consists of persons 
 between the ages of twenty-one and sixty, 
 who shall have £10 a year, beyond re- 
 prises, in lands and tenements of freehold, 
 copyhold, or customary tenure, or held in 
 ancient demesne, or in rents issuing out 
 of such tenements, in fee simple, fee tail, 
 or for life, or £30 a year in leaseholds held 
 for twenty-one years or any longer term, 
 or any term determinable on a life or 
 lives; or, being a householder, shall be 
 rated to the poor rate, or, in Middlesex, to 
 the house duty, in a value of not less 
 than £30 ; or who shall occupy a house 
 containing not less than fifteen windows. 
 These qualifications, however, do hot ex- 
 tend to jurors of any liberties, franchises, 
 cities, or boroughs who possess civil or 
 criminal jurisdiction. It is called a com- 
 mon jury, because the matter to be tried 
 by it is only of a common or ordinary 
 nature. A special jury consists of persons 
 of the degree of squire or upwards, or of 
 the quality of banker, or merchant, &c. It 
 is called special, because the matter to be 
 tried by it is usually of a special and im- 
 portant nature, and is supposed to require 
 men of education and intelligence to un- 
 derstand it. See also Jury Act, 1870, 33 
 & 34 Vict. c. 77. 
 
 JURY, TRIAL BY. It is a disputed 
 point whether trial by jury existed in 
 Anglo-Saxon times, but the following 
 may be considered as traces of that mode 
 of trial in those times in its rudest as- 
 pect : — 
 
 (1.) A law of Alfred, requiring a Mug's 
 thane accused of homicide to purge him- 
 self of the charge with twelve king's 
 thanes, and a lesser thane under like ac- 
 cusation to purge himself with eleven of 
 his equals and one king's thane : 
 
 (3.) One of the canons of the North- 
 umbrian clergy, requiring a king's thane 
 to purge himself before twelve king's 
 thanes of his own choice, twelve others 
 appointed for him, and twelve British 
 strangers, being thirty-six men altogether, 
 with similar provisions for lesser thanes 
 and ceorls ; 
 
 (3.) A law of Ethelred U., whereby 
 the sheriff and twelve thanes in every 
 wapentake were constituted a tribunal of 
 justice; and 
 
 (4.) The case of the monastery of Ram- 
 sey, in which a controversy between the 
 monastery and a certain private individ- 
 ual having arisen regarding certain lands, 
 
JUS.— JUS TBRTH. 
 
 193 
 
 Jury, Trial by. — (Omitirmed.) 
 and a suit ha-7ing been instituted about 
 it in the County Court, the matter was re- 
 ferred to a committee of thirty-six thanes 
 for its determination. 
 
 Now, it may be said that these bodies 
 were not jurors, but compurgators; but 
 to this it is replied that compurgation 
 was, in Anglo-Saxon times (as in all early 
 ages), a natural mode of evidence, being 
 the oath or oaths of the collective bodies 
 to the effect that they disbelieved the 
 truth of the accusation (see title Comptjk- 
 gation), and it being, moreover, a more 
 peculiar characteristic of the Anglo-Sax- 
 ons that they gave great weight to credit 
 or general character, — a species of evi- 
 dence but little regarded in civilized 
 times, e. g., in the present day. 8ee title 
 Chabacter, Evidence as to. 
 
 This rude mode of taking evidence hav- 
 ing been discontinued in Anglo-Norman 
 times, there was introduced in those later 
 times, in lieu of compurgation, an inquest, 
 or inquisition, i. e., inquiry into the par- 
 ticular circiunstances or the details of the 
 case, bat evidence of character was not 
 even then (as it is not even yet) altogether 
 laid aside. 
 
 This inquest was made by sworn recog- 
 nitors, being twelve or twenty -four in 
 number, as well in civil as in criminal 
 proceedings. In the reign of Henry n., 
 the assize of rwvel disseisin, called also the 
 magna asma, or gramd assize, was intro- 
 duced, whereby, in a civil suit, the plain- 
 tiflE or defendant had his choice either to 
 try the dispute by eornbat, or to put him- 
 self on this assize, which was composed 
 of sixteen sworn recognitors, and In the 
 same reign the ancient privilege of com- 
 purgation, pure and simple, was abol- 
 ished. 
 
 In the reign of Henry HI. trial by or- 
 deal was abolished, and trial by a petty 
 jury in criminal causes was introduced ; 
 and with that reign trial by jury, both in 
 civil and in criminal matters, may be re- 
 garded as having been for the first time 
 completely established, subject, however, 
 to the following qualification, namely, — 
 
 The jurymen were originally themselves 
 the witnesses, and their verdict or finding 
 was the result of their own knowledge, 
 unassisted by other testimony ; but it was 
 impossible that twelve men should always 
 be acquainted with the circumstances of 
 the matter before them, and the distinction 
 of jurors from witnesses was early felt to 
 be a necessity, and the distinction itself 
 was, in fact, made at some early but unas- 
 
 25 
 
 Jnry, Trial by. — (Omtimted.) 
 signable date. It is probable that as the 
 law of evidence became gradually better 
 understood,and the weakness of character- 
 evidence became gradually more apparent, 
 so the distinction referred to became 
 gradually more and more perceived to be 
 necessary and to be taken, until at the 
 present day the distinction is become 
 marked and essential. And yet, even at 
 the present day, the jury may assist them- 
 selves by their own knowledge as well as 
 by the testimony of the witnesses. 
 
 JUS. Right, law, authority, ifec. 
 See the following titles. 
 
 JUS ACCRESCENDI is used by our 
 old law writers to signify the right of 
 survivorship amongst joint tenants, &c. 
 See title Subvivobship. 
 
 JUS AD REM! signifies the inchoate or 
 imperfect right to a thing, in contradis- 
 tinction to jua in re, which signifies the 
 complete and perfect right in the thing. 
 
 JUS DUPLICATUM, or DROIT 
 DROIT; signifies the right of possession 
 joined with the right of property. 
 
 JUS IN RE: See title Jus ad Rem. 
 
 JUS POSTLIMINII is a right to resti- 
 tution after a re-capture as applied in 
 maritime law, — a use of the phrase 
 which is derived from the Roman jus 
 postUminii, which restored the citizen of 
 Rome who had been made a slave to his 
 threshold, i. «., to his franchise. The 
 term is therefore metaphorically used in 
 our Admiralty Courts to signify a resump- 
 tion of an original, inherent right to a re- 
 captured British ship in the legal owners. 
 But the phrase is also frequently used 
 with an analogous meaning in other 
 branches of the law. 
 
 JUS RECUPERANDI, INTRANDI, 
 
 &C.; is the right of recovering and enter- 
 •ing lands. Tomlins ; Cowel. 
 
 JUS TERTII. This phrase, which sig- 
 nifies literally the right of some third jjer- 
 son, is commonly applied in the following 
 manner: a tenant, it is true, cannot dis- 
 pute the title of his landlord, but he may 
 plead that such titlcf has determined by 
 conveyance or otherwise ; and so also a 
 bailee, when sued to re-deliver the goods 
 bailed to him, cannot as a rule deny the 
 right of the bailor (who delivered them 
 to him) to recover the goods ; neverthe- 
 less he may show that by transfer, assign- 
 ment, or otherwise, the bailor's right to 
 
194 
 
 JUSTICES.— JUSTICES OP THE PAVILION. 
 
 Jus Tertii. — {Continued.) 
 have the goods re-delivered to him has 
 determined, e. g., a pawnbroker will re- 
 gard only the holder of the duphcate, 
 and to an action brought by the pawnor, 
 will set up the defense otjus tertii. 
 
 JUSTICES (jusUoicmi). Officers ap- 
 pointed by the Crown to, administer jus- 
 tice. The various sorts of justices wiU 
 be found under their proper heads in the 
 following titles. 
 
 JUSTICES OF ASSIZE, or, as they are 
 sometimes called, justices of nisi prius. 
 The judges of the superior Courts at 
 Westminster, who go circuit into the vari- 
 ous counties of England and Wales twice a 
 year, for the purpose of disposing of such 
 causes as are ready for trial at the assizes, 
 are termed justices of assize. 
 
 See, also, title Circuits. 
 
 JUSTICES IN ETKE. So called from 
 the old French word eire, i. e., a journey, 
 were those justices who in ancient times 
 were sent by commission into various 
 counties to hear more especially such 
 causes as were termed pleas of the Crown ; 
 they differed from justices in oyer and 
 terminer, inasmuch as the latter were sent 
 to one place, and for the purpose of try- 
 ing only a Umited number of special 
 caused; whereas the justices in eyre were 
 sent through the various counties with a 
 more indefinite and general commission ; 
 in some respects they resembled our pres- 
 ent justices of assize, although their au- 
 thority and manner of proceeding dif- 
 fered much from them. 
 
 JUSTICES or THE FOBEST were 
 officers who had jurisdiction over aU of- 
 fenses committed within the forest against 
 vert or venison. The Court wherein these 
 justices sat and determined such causes 
 was called the justice seat of the forest. 
 They were also sometimes called the jus- 
 tices in eyre of the forest. 
 
 JUSTICES OF GAOL DEIIVEBT. 
 
 Those justices who are sent with commis- 
 sion to hear and determine all causes ap- 
 pertaining to such persons who for any 
 offense have been cast into gaol. Part 
 of their authority Was to punish those 
 who let to mainprise those prisoners who 
 were not bailable by the law, nor by the 
 Statute Definibus; and they seem form- 
 erly to have been sent into the country 
 upon this exclusive occasion, but after- 
 ward justices of assize had the same au- 
 thority given them. 
 
 JUSTICES OF THE HUNDRED. A 
 
 hundredor, lord of the hundred, he who 
 had the jurisdiction of a hundred, and 
 held the Hundred Court. 
 
 JUSTICES OF THE JEWS. Justices 
 appointed by Richard L to carry into ef- 
 fect the laws and orders which he had 
 made for regulating the contracts and 
 usury of the Jews. 
 
 JUSTICES OF LABOKEES. Justi- 
 ces who were formerly appointed to re- 
 dress the frowardness of laboring men, 
 who would not work without having un- 
 reasonable wages granted them. 
 
 JUSTICES OF NISI PEIUS: fiee ti- 
 tle Justices of Assize. 
 
 JUSTICES OF OYER AND TERMI- 
 NER. These justices of oyer and termi- 
 ner are certain persons appointed by the 
 king's commission, among whom are 
 usually two judges of the Courts at West- 
 minster, and who go twice in every year 
 into every county of the kingdom (except 
 London and Middlesex), and at what is 
 usually called the assizes hear and deter- 
 mine all treasons, felonies, and misde- 
 meanors. They are usually those who 
 have before been described under the ti- 
 tles of Justices of Assize, and Justices of 
 Gaol Delivery. 
 
 JUSTICES OF THE PEACE. Certain 
 justices appointed by the king's special 
 commission under the great seal jointly 
 and separately, to keep the peace of the 
 country where they dwell. Any two or 
 more of them are empowered by this com- 
 mission to inquire of and determine felo- 
 nies and other misdemeanors, in which 
 number some particular justices, or one of 
 them, are directed to be always included, 
 and no business to be done without their 
 presence, the words of the commission 
 running thus : "qworwm aUquem viestirum," 
 A. B. C. D., &c., ^'■unvm, esse volumus;" 
 whence the persons so named are usually 
 called justices of the quorum. 
 
 * JUSTICES OF THE WAIL-BAS- 
 TON. These were appointed by Edward 
 I. upon occasion of great disorders in the 
 realm. They had powers adapted to 
 emergencies which they exercised in a 
 summary manner. Burr. Diet. 
 
 * JUSTICES OF THE PATILION. 
 
 Judges of a Court anciently authorized 
 by the Bishop of Winchester at fairs held 
 on St. Giles' Hill. Burr. Diet. 
 
JUSTICES OF THE PEACE, .ORIGIN OP.— KING'S BENCH. 
 
 195 
 
 JUSTICES OF THE PEACE, OBI- 
 CrIN OP. The origin of these magis- 
 trates is to be found in the reign of Ed- 
 ward I., -who by the stat. 8 Edw. 1 (Stat- 
 ute of Westminster the First), c. 9, and 
 by the statute of Coroners (4 Edw. 1, 
 stat. 3), but chiefly by the statute of "Win- 
 ton, otherwise Winchester (13 Edw. 1), 
 directed that every country and town 
 'should be well kept, and that upon any 
 robbery or felony committed therein, Ime 
 and cry should be raised upon the felon, 
 and they that kept the town were to fol- 
 low him with hue and ciy from town to 
 town with all the town and the towns 
 near; and failing capture, the hundred 
 was made liable for the damage. In the 
 reign of Edward HI., conservators of the 
 peace were appointed, whose duty it was 
 to assist the sheriff, coroner, and consta- 
 ble, and they were empowered to imprison 
 and punish rioters and offenders. These 
 conservators were afterward designated 
 justices of the peace. By a more recent 
 statute, 37 Eliz. c. 13, the sheriff or con- 
 stable was required to make the pursuit 
 both with horse and foot; and to the 
 present day, hue and cry in that manner 
 may still be made under that and the 
 previous statutes, but is seldom if ever in 
 fact made, owing to the equally effective, 
 if not so speedy, remedy which is provi- 
 ded in the ordinary police and criminal 
 processes for the apprehension and pun- 
 ishment of offenders. 
 
 JUSTICIES. A writ directed to the 
 sheriff, empowering him for the sake of 
 dispatch to try an action in his County 
 Court for a larger amount than he has 
 the ordinary power to do. It is so called 
 because it is a commission to the sheriff 
 to do the party justice. 4 Inst. 366. 
 
 JUSTIPICATION. Pleas in justiflca. 
 tion or excuse are such as show some jus- 
 . tiflcation or excuse of the matter charged 
 in the declaration, the effect of which is 
 to show that the plaintiff never had any 
 right of action because the act charged 
 was lawful ; a plea of ton aamult demesne 
 is one of this kind of pleas (Stephen on 
 Plead. 334). They are, however, more 
 common in actions for a libel, to which 
 the defendant justifies on the score either 
 of privilege, or of truth and the public 
 advantage. 
 
 JUSTIFYING BAIL. Is the act of 
 
 proving to the satisfaction of the Court 
 that the persons put in as bail for the de- 
 fendant in an acMon are competent and | 
 
 Justifying Bail. — (OonUnued.) 
 sufficient persons for the purpose. No 
 persons are justified in becoming bail for 
 a 'defendant unless they are householders 
 and possess certain other qualifications 
 with reference to property, &c. ; but it 
 frequently happens that persons become, 
 or endeavor to become, bail for a defend- 
 ant, who are not so qualified, or whom 
 the plaintiff suspects not to be so quali- 
 fied ; in this case the plaintiff objects to 
 such bail (or, as it is termed, excepts to 
 them), who are then called on to justify 
 themselves, and this they do by swearing 
 themselves to be housekeepers, and to 
 possess the other qualifications required 
 of them; and this is termed justifying 
 bail. They frequently justify voluntarily 
 without being required to do so by the 
 plamtiff. 1 Arch. Prac. 847-57; Tidd. 
 149. 
 
 K. 
 
 * KAIN. A payment of fowls reserved 
 in Scotch leases. Ersk. Inst. 11, 10, 33. 
 
 KEEPEE OF THE 6EEAT SEAL. A 
 
 high officer of state, through whose hands 
 pass aU charters, grants, and commissions 
 of the king under the great seal. He 
 is styled Lord Keeper of the Great Seal, 
 and this office and that of Lord Chan- 
 cellor are united under one person; for 
 the authority of the Lord Keeper and 
 that of the Lord Chancellor were, by stat. 
 5 Eliz. c. 18, declared to be exactly the 
 same ; and like the Lord Chancellor, the 
 Lord Keeper with us at the present day 
 is created by the mere delivery of the 
 king's great seal into his custody. Comyn 
 Dig. tit. Chancery. 
 
 KEEPER OF THE PRIVY SEAL. An 
 
 officer through whose hands pass all 
 charters signed by the king before they 
 come to the great seal. He is a privy 
 councillor, and was anciently called clerk 
 of the privy seal, but is now generally 
 called the Lord Privy Seal. Rot. Pari. 
 11 H. 4. 
 
 ♦KENNING TO A TERCE. In Scotch 
 Law, the act of the sheriff in ascertaining 
 the proportion of a husband's lands be- 
 longing to his widow in right of terce or 
 dower. Bell Diet. 
 
 KING'S BENCH. The supreme Court 
 of Common Law in the kingdom, consist- 
 ing of a chief justice and four puisnS jus- 
 tices, who, by their office, are the sover- 
 eign conservators of the peace and su- 
 
196 
 
 KING'S COUNSEL. — L.ESIONE PIDBI, SUITS PBO. 
 
 Kind's Bench. — (ConMreii«c?.) 
 preme coroners of the land. The Court 
 of King's Bench was so called because 
 the Hng used formerly to sit there in 
 person, the style of the Court still being 
 coram, ipso rege. This Court is the rem- 
 nant of the Aiila Megis, and was formerly 
 not stationary in any particular spot, but 
 attended the king's person wherever he 
 went ; hence the reason for process issu- 
 ing out of this Court in the king's name 
 ' being returnable, ' ' 'iMeninquefuerwms in 
 Anglid." 4 Inst. 13. 
 
 See, also, title Coxtbts of Jxtsticb. 
 
 KING'S COUNSEL. Barristers selected 
 on account of their superior learning and 
 talent to be his majesty's counsel; the 
 only outward distinction between these 
 and other barristers is that they wear silk 
 gowns and take precedence in Court. 
 The two principal of the king's counsel 
 are called the Attorney and the Solicitor- 
 General, and none of these counsel can 
 plead publicly in Court for a prisoner or 
 a defendant in a criminal prosecution 
 without a license obtained for that pur- 
 pose from the Crown. Fortescue, de 
 Leg^ius, c. 50. 
 
 * KINSBOTE. In Saxon Law, a sat- 
 isfaction paid for killing a kinsman. 
 
 *KIRB¥'S QUEST. A survey of 
 lands in England taken in the reign of 
 Edward I., by John De Kirby. Burr. 
 Diet. 
 
 KNIGHT'S FEE (Jeodwm militcM-e): 
 See title Knight Service. 
 
 KNIGHT SERTICE. A species of 
 feudal tenure, which diflEered very slightly 
 from a pure and perfect feud, being en- 
 tirely of a military nature ; and it was the 
 first, most universal, and most honorable 
 of the feudal tenures. To make a tenure 
 by knight service, a determinate quantity 
 of land was necessary, which was called 
 a knight's fee (/eodwm rrdUta/re), the meas- 
 ure of which was estimated at twelve 
 plough-lauds. Spelman, 319; 2 Inst. 
 596. 
 
 KNIGHTS OF THE SHIRE. Knights 
 of the shire, otherwise called knights of 
 Parliament, are two knights or gentlemen 
 of property who are elected by the free- 
 holders of a county to represent them in 
 Parliament. In times of old they were 
 required to be real knights, girt with the 
 sword, but now notable esquires may be 
 chosen. They required to possess, as a 
 qualification to be chosen, not less than 
 
 Knights of the Shire. — {ConUrmed.) 
 £600 per annum of freehold estate. But, 
 at the present day, all property qualifica- 
 tions in members of Parliament have been 
 removed. 
 
 See title Parliament. 
 
 L. 
 
 * LABOR A JURY. To tamper with * 
 a jury. It is stated that the first lawyer 
 from England who practiced in Boston 
 was sent back for this ofiense. Washb. 
 Jud. Hist. 
 
 LACHES (from the Fr. Mohesse, indo- 
 lence). Negligence, mistake arising from 
 negligence, &c. Thus, in Littleton, 
 "laches of entry," signifies a neglect in 
 the heir to enter (Litt. 136 ; JLes Termes 
 de la Ley). Laches is a ground for refus- 
 ing relief in Courts of Equity, upon the 
 maxim of these Courts, " VigilarMms rum 
 dormienMbM aquitas subvpnit ;" and so 
 strong is the aversion to bringing for- 
 ward stale demands that the Coiirts of 
 Equity, at any rate in the matters which 
 are subject to their exclusive jurisdiction, 
 refuse to relieve even within the statutory 
 periods of limitation ; although, of course, 
 in matters which are subject to their con- 
 current jurisdiction, they must allow the 
 plaintiff his fuU legal period. 
 
 UESE MAJESTY. An old term of 
 law, designating the crime of attempting 
 any thing against the king's Ufe, or to 
 raise sedition against him, or to create 
 disafiection in the army {see 3 Reeve's 
 Bug. Law, 5, 6). The modem equivalent 
 is High Treason, which title see. 
 
 UBSIONE FIDEI, SUITS PRO. Suits 
 or actions for breach of faith in civil con- 
 tracts, which the clergy, in the reign of 
 Stephen, introduced into the spiritual 
 Courts, were so termed. By means of 
 these suits they took cognizance of many 
 matters of contract wMch in strictness 
 belonged to the temporal Courts. It is 
 conjectured that the pretense on which 
 they founded this claim to an extended 
 jurisdiction was that oaths and faith 
 solemnly plighted, being of a religious 
 nature, the breach of them belonged more 
 properly to the spiritual than to the lay 
 tribunal (1 Reeves, 74). These suits, 
 along with the jurisdiction assumed over 
 express and impUed or resulting uses, 
 open or secret, have contributed to the 
 development of the principal branches of 
 equitable jurisdiction at the present day. 
 
LAGAN.— LAPSE. 
 
 197 
 
 * LAGAN. Goods found in the sea at 
 such a distance from the shore as to ren- 
 der it doubtful whether they would come 
 to land. They belonged to the finder. 
 Pract. fol. 120; Burr. Diet. 
 
 LAND (terra). This word has a more 
 comprehensive signification in law than 
 in common parlance ; for it comprehends 
 not only land or ground, but, also, any 
 thing that may stand thereon, as a house, 
 a castle, or a bam. It has also an indefi- 
 nite extent upwards as well as down- 
 wards, ' ' Gujus est solum ejus est usque ad 
 o(dwm,et deinde usque ad inferos," being 
 the maxim of the law; and, therefore, no 
 man may erect any building or the like 
 to overhang another's lands, and what- 
 ever is in a direct line between the sur- 
 face of any land and the center of the 
 earth belongs to the owner of the surface, 
 so that the word " lands " comprehends 
 not only the face of the earth, but every 
 thing under it or over it (Co. Litt. 4 a). 
 When, however, the word "land" was 
 used in a declaration of ejectment with- 
 out any qualifying adjunct, it obtained a 
 very restricted sense, and meant arable 
 land (Salk. 256). In such bases, there- 
 fore, the particular kind of land should 
 have been stated. Cowp. 346; 11 Rep. 
 55 ; Adams' Eject. 31 ; 3 Oh. PI. 626, n.. 
 («), 6th ed. 
 
 LANDLORD. He of whom lands or 
 tenements are held (Co. Litt.). When the 
 absolute property in, or fee simple of, the 
 land belongs to a landlord he is then 
 sometimes denominated the ground land- 
 • lord in contradistinction to such an one 
 as is possessed only of a Umited or par- 
 ticular interest in land, and who himself 
 holds imder a superior landlord. 
 
 LANDLORD AND TENANT. This 
 phrase expresses a familiar legal relation, 
 involving many peculiar rights, duties, 
 and liabilities. The relation is contract- 
 ual, and is constituted by a letting or 
 agreement to let (as to which see title 
 Lease). The landlord is entitled to be 
 paid a stated rent, and may enforce pay- 
 ment thereof either by action, or by dis- 
 tress, or by entry (see these three several 
 titles). The tenant is entitled to the pos- 
 session and quiet enjoyment of the prem- 
 ises so long as he pays his rent and duly 
 observes and performs the other stipula- 
 tions contained in his contract (see title 
 Covenants). A failure in the perform- 
 ance of any covenant works a forfeiture 
 (see that title), unless the landlord chooses 
 
 Landlord and Tenant. — {Continited.) 
 
 to waive the breach (see title Waivee). 
 The tenant is also bound to keep and 
 leave the premises in good repair, and 
 will be liable for dilapidations (see that 
 title) ; but he is permitted during the 
 term of his lease, but not afterward, to 
 unfasten and remove all tenant's fixtures 
 so called which have been affixed to the 
 premises by himself (see title Fixtures). 
 He is estopped from disputing his land- 
 lord's title (see title Estoppel), but he 
 may show that that title has determined 
 (see title Jus Tertii). 
 
 See, also, title Ejectment. 
 
 LAND-TAX. An annual charge levied 
 by the Government upon the subjects of 
 this realm in respect of their real estates, 
 and also in respect of offices and pensions, 
 but not (since 4 & 5 Will. 4, c. 11) in re- 
 spect of their personal estates. The 
 method of raising it is by charging a par- 
 ticular sum upon each county according 
 to a certain valuation,and this sum used to 
 be assessed and raised upon individuals 
 by commissioners duly appointed for that 
 purpose (2 Bum's Justice, 61). Under 
 the Stat. 16 & 17 Vict. c. 74, facilities are 
 afforded for the redemption of this tax, 
 which is now generally redeemed. 
 For origin, see title Taxation. 
 
 LAPSE. The word is used in various 
 senses. (1.) As applied to church livings, 
 it denotes a species of forfeiture by which 
 the right of presentation to a (ihurch ac- 
 crues to the ordinary by the neglect of a 
 patron to present ; to the metropolitan by 
 the neglect of an ordinary; and to the 
 king by neglect of the metropolitan. (3.) 
 As applied to a legacy it denotes the fail- 
 ure of a testamentary gift through the 
 devisee or legatee dying in the testator's 
 life-time. The mere addition of the 
 words "heirs and assigns," or "execu- 
 tors, administrators, and assigns," or 
 other words of limitation to the name of 
 the predeceasing devisee or legatee in 
 the gift to him, will not prevent a lapse 
 of the interest given ; and the rule is the 
 same where the devisee or legatee is 
 already dead at the date of the will (Miiy- 
 lank V. Broohs, 1 Bro. C. C. 84). And, 
 although the legacy be of a debt, it is lia- 
 ble to lapse in the same manner (Elliott 
 V. Damenport, 1 P. Wms. 83); and al- 
 though the legacy or devise be contained 
 in a will made in exercise of a power the 
 creation of which was by an instrument 
 (whether deed or will) taking effect be- 
 
198 
 
 LAPSE. 
 
 Lapse. — ( OonMnued.) 
 fore the. death of the legatee or devisee, 
 still even in this case the legacy or devise 
 ■will lapse in case the legatee or devisee 
 predecease the testator who exercises the 
 power. Duke of MwrlboTough v. L<yrd 
 QodoVphm, 3 Ves. 78 ; OulaJia v. GJieese, 7 
 Hare, 236. 
 
 A mere declaration that the devise or 
 bequest shall not lapse is ineffectual to 
 prevent a lapse in case of the devisee or 
 legatee predeceasing the testator (Pkher- 
 irig V. Stamford, 3 Yes. 493) ; but such a 
 declaration, if accompanied with the des- 
 ignation of a substitute for the devisee or 
 legatee in case he predeceases the testator, 
 would be valid to prevent a lapse (TopUs 
 V. Baker, 2 Cox, 131) ; and from the desire 
 of the Courts to effectuate the intentions 
 of testators, such designation of a substi- 
 tute, where not expressly made, has been 
 in a manner implied from trifling circum- 
 stances, «. g., in Oitbings v. M''Dermott (3 
 My. & K. 69), Lord Brougham, C, in the 
 case of a gift to the children ot A. or to 
 their heirs, held that the representatives 
 of predeceasing children were entitled by 
 way of substitution for their parents, the 
 word Jiew-s, although ordinarily a word of 
 limitation, and not of purchase, being in 
 that particular decision, and by reason 
 chiefly of the two words or to which are 
 italicised, construed as a word of pur- 
 chase and not of limitation. 
 
 Again, if the testator makes a gift to 
 two or more persons jointly, there is, of 
 course, no lapse if one or more of the 
 joint tenants survive, as the survivors 
 will take by survivorship ; and similarly, 
 if the testator makes a gift to two or 
 more persons in common, and limits over 
 to the survivor or survivors the share of 
 any predeceasing tenant, there is, of 
 course, again no lapse if one or more of 
 the tenants in common survive, as the 
 survivor will take under the limitation 
 over. But it is the rule of law in this 
 latter case that there is no survivorship 
 upon survivorship ; and therefore, unless 
 the limition over is made (as it commonly 
 is made) to extend " as well to the accru- 
 ing as to the original shares," there will 
 be a lapse as to any accrued share of a 
 predeceasing legatee or devisee. Pain v. 
 Benson^ 3 Atk. 80. 
 
 Again, if a devise or bequest is made 
 to persons of a class in common tenancy, 
 and the class is to be, i. e., can only be, 
 ascertained at the date of the testator's 
 death, the members of the class who are 
 surviving at that date will take the whole 
 
 — (Gontimted.) 
 among them, notwithstanding that other 
 persons who but for their prior death 
 would have formed members of the class 
 may have predeceased the testator. Viner 
 V. Francis, 3 Bro. C. C. .658. 
 
 And with reference to the question, 
 whether lapse shall take place or not, the 
 cases of WilUnff v. Bcdne (3 P. Wms. 
 118) and Sumberstone v. Stanton (1 V. & 
 
 B. 385) should be contrasted. 
 
 Where a devise or bequest is made to 
 one person in trust for another, the legal 
 estate will lapse in case the devisee or 
 legatee in trust, i. «., the trustee, should 
 predecease the testator, but the beneficial 
 interest, or interest of the cestui que trust, 
 will not therefore also lapse (Elliott v. 
 Bamemport, 3 Vem.530); and, conversely, 
 in the case of a like devise or bequest, 
 the beneficial estate will lapse, and the 
 legal estate will not lapse in case the 
 cesbai que trust predecease the testator 
 {Boe d. /SM% V. Edlim, 4 Ad. & E. 583). 
 It has even been held in Oke v. Heath (1 
 Ves. 135), that an annuity bequeathed to 
 
 C. and charged on a bequest to B. did 
 not lapse by reason merely that B. pre- 
 deceased the testator, whereby the be- 
 quest to him lapsed. 
 
 Some provisions have been made by 
 the stat. 7 WilL 4 & 1 Vict. c. 36, against 
 lapse in certain cases, that is to say : 
 
 (1.) By s. 25 of that Act devises and 
 bequests which would otherwise lapse are 
 given to the residuary devisee or legatee 
 (if there is one) ; 
 
 (3.) By s. 82 of the same Act the devise 
 of an estate tail to any one (whether child ^ 
 or stranger) does not lapse by reason ' 
 merely of the devisee in tail predeceasing 
 the testator, but takes efifect in him, and 
 descends to the person who is his heir in 
 tail at the testator's death, if he has any 
 such; and 
 
 (3.) By s. 83 devises or bequests made 
 to a child or children of the testator who 
 predecease the testator, but leave issue 
 surviving the testator, do not lapse, but 
 take effect in the predeceasing child or 
 children, and devolve in case of the 
 intestacy of the latter upon their next of 
 kin, and in case they have made a will, 
 according to the disposition, or disposi- 
 tions thereof contained in that will 
 (Winter v. Winter, 5 Hare, 306; Johnson 
 V. Johnson, 3 Hare, 157). It has been 
 held, however, that the 33rd section of 
 the Act does not apply to gifts under a 
 limited, i. «., special, power of appoint 
 ment, where there is a gift over in default 
 
LAECENT. — LAW. 
 
 199 
 
 Lapse* — ( OcmUmted.) 
 of appointment {Griffiths v. Oale, 12 Sim. 
 327) ; but it does apply to a general power 
 of appointment, even although there is 
 a gift over in default of appointment. 
 Ecdes V. Ohryne, 2 K. & J. 676. 
 
 LARCENY. Larceny is the felonious 
 taking and carrying away of the personal 
 goods of any one from his possession, 
 with intent to convert them to the use of 
 the oSender without the consent of the 
 true owner. 
 
 *LAS PATEIDAS. A code of Laws 
 compiled by Alphonso X. of S^adn, about 
 1250, containing all the provincial cus- 
 toms. 1 Bl. Com. 66. 
 
 LATENT AMBIGUITY. This is an 
 ambiguity which arises not upon the 
 words of the will, deed, or other instru- 
 ment, as looked at in themselves, but 
 upon those words when applied to the 
 object or to the subject wMch they de- 
 scribe. The term is opposed to the 
 phrase Patent Ambiguity (which see). 
 The rule of law is, that extrinsic or parol 
 evidence is admissible in all cases to 
 remove a latent ambiguity, but in no 
 case to remove a patent one. 
 
 See title Extbinsic Evidbkcb. 
 
 LATHE, LATH, OR LETH. Is the 
 
 designation of a great portion of a county 
 containing three or more hvmdreds or 
 Les Termes de la Ley. 
 
 LATITAT. A writ which, before the 
 Uniformity of Process Act, was the pro- 
 cess used for commencing personal ac- 
 tions in the King's Bench against a 
 defendant seeking to evade the service 
 of the writ. It recited the bill of Middle- 
 sex, and the proceedings thereon, and 
 that it was testified that the defendant 
 '■^latitat et discv/rrit," lurks and wanders 
 about, and therefore commanded the 
 sheriff to take him, and have his body in 
 Court on the day of the return. 
 
 See now titles Service; Substi- 
 tuted Service. 
 
 LAW. This word has various signifi- 
 cations. (1.) In the most enlarged sense 
 in which the word can be used, it applies 
 not only to those rules, or systems of 
 rules, which different governments lay 
 down for the internal regulation of their 
 respective communities, but also to those 
 fixed and invariable principles in con- 
 formity with which nature carries on her 
 operations. (2.) When, however, we 
 wish to restrict the sense, or to limit the 
 
 Law. — ( OonUmted.) 
 
 application of the word, we use it ordin- 
 arily in conjunction with some other 
 phrase ; thus, when we apply it to those 
 rules or principles of morality which our 
 reason enables us to discover, and our 
 conscience commands us to obey, we call 
 it not unfrequently the law of nature; 
 and when the same rules and principles 
 are applied to the regulation of the con- 
 duct of nations in their intercourse with 
 each other, it is then termed the Law of 
 Nations or International Law. (3.) The 
 word "Law," however, in a stUl more 
 limited sense, signifies that body, or 
 system, of rules which the government 
 of a country has established for its inter- 
 nal regulation, and for ascertaining and 
 defining the rights and duties of the 
 governed, and it is then commonly called 
 Municipal, i. e., Civil Law, and, in popu- 
 lar language, "the law of the land." 
 The Municipal Law of England is com- 
 posed of written and unwritten laws ( jm« 
 smptwm and jus non sariptum) ; or, in 
 other words, of statutes of the realm, 
 and of the custom of the realm, other- 
 wise termed the "Common Law;" on 
 both of which branches of the law the 
 superior Courts exercise their judgment, 
 giving construction and effect to the 
 former, and by their interpretation de- 
 claring what is and what is not the latter. 
 The following extract from an important 
 case furnishes a good illustration of the 
 division of our Municipal Law into the 
 j«« non scrvpimm, or the Common Law, 
 and the JV:S seriptu/m, or the written, or 
 Statute Law, and of the mode in which 
 the Courts exercise their judgment there- 
 on: — 
 
 "Two questions of importance were 
 raised in the course of the argument. 
 The first, is, whether at Common Law a 
 foreigner residing abroad, and compos- 
 ing a work, has a copyright in England. 
 The second is, whether such foreign au- 
 thor, or his assignee, has such a right by 
 virtue of the BngUsh statutes .... We are 
 all of opinion that no such right exists 
 in a foreigner at the Common Law ; but 
 that it is the creature of the Municipal 
 Law of each country, and that in Eng- 
 land it is altogether governed by the 
 statutes which have been passed to create 
 and regulate it. A foreign author hav- 
 ing, therefore, by the Common Law, no 
 exclusive right in this country, the only 
 remaining question is, whether he has 
 such a right by the Statute Law ; and this 
 depends on the construction of the stat- 
 
200 
 
 LAW OF MAEQUB.— LAY, TO. 
 
 Law. — ( Continued.) 
 
 utes relating to literary copyright wHch 
 were in force at the time of the transac- 
 tion in question." See per Pollock, 0. B., 
 in Ohappel v. Purday, 14 M. & W. 316 ; 
 also 1 Reeve's Hist. 1). For an explana- 
 tion of the different kinds of law, see 
 their particular titles. 
 
 The various significations in which the 
 term " Law " has been used in jurispru- 
 dence, are thus given by Locke and Aus- 
 tin: 
 I. Locke's division of Laws, — 
 
 (1.) Divine Law, — being the Law of 
 
 God natural and revealed; 
 (3.) .Civil Law, — being the Municipal 
 
 Law; and 
 (3.) Law of Beputation, — being mo- 
 rality. 
 n. Austin's divisions of Laws, — 
 (1.) Divine Law, — being the reveal- 
 ed Law of God ; 
 (3.) Positive Human Law, — being 
 
 Municipal Law; 
 (3.) Positive Morality, — being mo- 
 rality; and 
 (4.) Laws metaphorically so called, 
 — being the laws of animate 
 and inanimate nature. 
 
 LAW or MABQUE (from the German 
 word mcureh, i. e., a bound or Umit). A 
 sort of law of reprisal, which entitles him 
 who has received any wrong from another, 
 and cannot get ordinary justice, to take 
 the shipping or goods of the wrong-doer 
 when he can find them within his own 
 bounds or precincts, in satisfaction of the 
 wrong (Cowel). The consent of the sover- 
 eign is necessary before any subject can 
 thus proceed by his own arm to vindicate 
 a wrong ; and such consent, where granted, 
 is expressed in the so-called Letters of 
 
 See, also, title BefbisaIjS. 
 
 LAW MEECHANT (kc mereatoria). 
 One of the branches of the unwritten or 
 Common Law consists of particular cus- 
 toms, or laws which afEect only the in- 
 habitants of particular districts, under 
 which head may be referred the law or 
 custom of merchants (lex mereatoria), 
 which is a particular system of customs 
 used only among one set of the king's 
 subjects, which, however different from 
 the general rules of the Common Law, is 
 yet engrafted into it, and made a part of 
 it; being allowed for the benefit of trade 
 to be of the utmost validity in all com- 
 mercial transactions, for it is a maxim of 
 
 Law Kerchant. — {Oonbmued.) 
 law, that ' ' etdMet in sua arte aredendvm 
 ." This law of merchants comprehends 
 the laws relating to bills of exchange, 
 mercantile contracts, sale, purchase and 
 barter of goods, freight, insurance, &c. 
 1 Chitty PI. 76, n. (g). 
 
 LAW OF NATIONS. The Law of 
 
 Nations consists of a system of rules or 
 principles deduced from the law of nature, 
 intended for the regulation of the mutual 
 intercourse of nations. The law is 
 founded on the principle, that the differ- 
 ent nations ought to do to each other in 
 time of peace as much good, and in time 
 of war as little harm as may be possible, 
 without injuring their own proper inter- 
 ests ; and this law comprehends the prin- 
 ciples of national independence, the in- 
 tercourse of nations in peace, the privi- 
 leges of ambassadors, consuls, and inferior 
 ministers ; the commerce of the subjects 
 of each state with those of the others in 
 times of war and of peace, or of neu- 
 trality ; the grounds of just war, and the 
 mode of conducting it ; the mutual duties 
 of belligerent and neutral powers; the 
 limit of lawful hostility; the rights of 
 conquest; the faith to be observed in 
 warfare; the force of armistice, of safe 
 conducts and passports; the nature and 
 obUgations of alliances; the means of 
 negotiation, and the authority and inter- 
 pretation of treaties. 1 Cmtty's Com- 
 mercial Law, 25, 36 ; PufEendorf . 
 See, also, title Inte&national Law. 
 
 LAW OF NATUEE: See title Law. 
 
 * LAW OF THE STAPLE. The law- 
 merchant was anciently so-called. 
 
 ♦LAWLESS COUET. An ancient 
 EngUsh local Court held in Essex once a 
 year at cock-crowing, without a light, or 
 pen and ink, and conducted in a whisper. 
 The title of it was in Latin rhyme, and 
 it was called " lawless " because it was 
 held at an unlawful hpur. Jacob Diet. 
 
 LAW-WOETHT. Being entitled to, or 
 having the benefit and protection of the 
 law. Brady on Boroughs, 16 fo. ed. 
 
 LAT, TO. Signifies to allege, to state, 
 &c., e. g., "No inconvehience can arise 
 to the defendant from either mode of 
 laying the assault." Per Ouj-iawre, 3 Bos. 
 & Pul. 437 ; 6 Mod. 38. ' ' If you lay (i. e., 
 allege, or state) an ouster in your declara- 
 tion, you must lay are-entry." Per Holt, 
 C. J. So "laying the venue" signifies 
 
LEADING A USB.— ^BASE AND EELEASE. 
 
 201 
 
 lay, to. — {Continued.) 
 flie stating, naming, or placing in the 
 margin of a declaration any given county 
 as the county in which the plaintifi pro- 
 poses that the trial shall take place. 
 
 LEADING A USE. When lands were 
 conveyed by that species of conveyance 
 termed a "fine and recovery," the legal 
 seizin and estate became thereby vested 
 in the cognizee or recovery, i. e., the per- 
 son who was the object of that convey- 
 ance. But if the owner of the estate de- 
 clared his intention that such fine or 
 recovery should inure or operate to the 
 use of a third person, a use immediately 
 arose to such third person out of the 
 seizin of the cognizee or recoveror ; and 
 the Statute of Uses transferred the actual 
 possession to such use, without any entry 
 on the part of such third person. The 
 deed by which the owners of estates so 
 declared their intention with regard to 
 the lands thus conveyed was termed either 
 a deed to lead the uses, or a deed to de- 
 clare the uses; when executed prior to 
 the levying the fine, or suflEering the re- 
 covery, it bore the former appellation; 
 when executed subsequently thereto, it 
 bore the latter. 1 Cru. Dig. 396. 
 
 See, also, titles Convbyancbs ; Uses. 
 
 LEADING CASE. Amongst the va- 
 ried cases that are argued and determined 
 in the Courts, some, from their important 
 character, have demanded more than 
 usual attention from the judges, and from 
 this circumstance are frequently looked 
 upon as having settled or determined the 
 law upon all points involved in such 
 cases, and from the importance they thus 
 acquire are familiarly termed " leading 
 cases." Such, for instance, are those 
 cases coUectea in the valuable work of 
 the late Mr. J. W. Smith, so well known 
 to the profession imder the title of 
 ' ' Smith's Leading Cases ; " and similar 
 collections have been made of the lead- 
 ing cases in Conveyancing Law (Tudor's), 
 and in Equity Law (White & Tudor's), 
 and in Mercantile Law (Tudor's). 
 
 LEADING QUESTION. A question 
 put or framed in such a form as to sug- 
 gest the answer sought to be obtained by 
 the person interrogating. A counsel is 
 said to put a leadmg question to a wit- 
 ness, when, instead of putting a simple 
 interrogation, he states a proposition as 
 though he believed it to be true, with a 
 view of leading the witness into the ad- 
 mission of it. Such questions may be 
 
 26 
 
 Leading Question. — (OonUmied.) 
 asked upon cross-examination, but not 
 upon examination in chief. They may 
 also be asked with a view to discrediting 
 one's own witness where he unexpectedly 
 proves adverse. 
 
 See, also, title Witness. 
 
 LEASE. A lease is a conveyance of 
 lands or tenements to a person for life, 
 for a teim of years or at will, in consid- 
 eration of a return of rent or some other 
 recompense. The person who so conveys 
 such lands or tenements is termed the les- 
 sor; and the person to whom they are 
 conveyed the lessee ; and when the lessor 
 so conveys lands or tenements to a lessee, 
 he is said to lease, demise or let them. 4 
 Cruise, 58. 
 
 See, also, titles Assignment; Con- 
 VBYANOBS ; FoRrBiTUKB ; Frauds, 
 Statute op ; Laioilobd and Ten- 
 ant; Tenancies; Undebleasb. 
 
 LEASE AND RELEASE. A species 
 of conveyance commonly in use for con- 
 veying the fee simple or absolute property 
 in lands or tenements from one person to 
 another. In the reigns of Henry VI. and 
 Edward IV. it was not unusual to trans- 
 fer freehold estates in the following man- 
 ner: A deed of lease was made to the 
 intended purchaser for three or four 
 years ; and after he had entered into pos- 
 session, a deed of release of the inherit- 
 ance was executed to him, which oper- 
 ated by enlarging his estate into a fee 
 simple. When it was found that the 
 Statute of Uses transferred the actual 
 possession without entry, the idea of a 
 lease and release was adopted. This 
 kind of conveyance was thus contrived : 
 A lease, or rather bargain and sale upon 
 some pecuniary consideration for one year 
 was made by the tenant of the freehold to 
 the lessee or bargainee, i.e., to the per- 
 son to whom the lands were to be con- 
 veyed ; now this made the vendor stand 
 seized to the use of the lessee or bar- 
 gainee, and vested in the latter the use 
 of the term for a year, to which the Stat- 
 ute of Uses immediately transferred the 
 possession. Thus the bargainee, by being 
 in possession, became immediately capa- 
 ble of accepting a release of the freehold 
 and reversion (which must be made to a 
 tenant in possession), and accordingly a 
 release was made to him, dated the day 
 next after the day of the date of the lease 
 for a year, which at once transferred to 
 him the freehold. 
 
 See, also, titles Conveyances ; Uses. 
 
202 
 
 LBET.— LEGACIES. 
 
 * LEEX. The name of an ancient Eng- 
 lish Court of criminal jurisdiction. 
 
 LEGACIES. These are bequests (i. e., 
 gifts by "will) of personal property ; they 
 are of three Hnds, namely : — 
 
 (1.) General, called also pecuniary, 
 legacies, being a gift of money or other 
 fungible substance in quantity ; 
 
 (2.) Specific legacies, being a gift of 
 ear-marked money, or of other ear-marked 
 fungible substance, in mass, or of any non- 
 fungible substance by description; and, 
 
 (3.) Demonstrative legacies, being a 
 gift of money or other fungible substance 
 in quantity, expressed to be made paya- 
 ble out of a specified sum of money or 
 other specified fungible substance; but 
 such legacies become, upon any destruc- 
 tion of the specified source of payment, 
 merely general legacies. 
 
 The following are examples of these 
 three kinds of legacies, namely : — 
 
 (1.) General legacies: £500 ia cash 
 {Rioha/rds y. BicTim-ds, 9 Price, 236) ; £50 
 annuity payable out of, or charged upon, 
 the personal estate (^Alton v. MedUcott, 2 
 Ves. 417) ; £30 to buy a ring (Apreece v. 
 Apreeee, 1 V. & B. 364) ; my stock {Good- 
 lad r. Bwnett, 1 K. & J. 341) ; and, ordi- 
 narily, residuary gifts. 
 
 (3.) Specific legacies: sum of money 
 in such a bag {Lmoson v. Stitch, 1 Atk. 
 508) ; sum of money in the hands of A. 
 (Hinton v. Pinke, 1 P. Wms. 540) ; A.'s 
 debt {Fryer v. Morris, 9 Ves. 800); A.'s 
 bond {Davies v. Morgan, 1 Beav. 405); 
 my East India Bonds {Sleech t. Thoring- 
 ton, 3 Ves. 563) ; gift of one part of debt 
 to A., and of residue thereof to B. {Ford 
 Y. Fleming, 3 P. Wms. 469) ; gift of debt 
 to A. for liie, remainder to B. {AsKbwner 
 Y. Macgwire, 3 Bro. C. C. 108) ; a lease of 
 lands {Long v. Short, 1 P. Wms. 403), 
 and occasionally residuary gifts. Pmge 
 Y. Leajivngwell, 18 Ves. 463. 
 
 (3.) Demonstrative legacies: £1,000 
 out of my Eeduced Stock {Kvrby y. Pot- 
 ter, 4 Ves. 748) ; £12, 000 out of my funded 
 property {Lambert v. Lamiert, 11 Ves. 
 607) ; £500 annuity or legacy payable out 
 of, or charged on, lands. Sa/eilleY. BlacTcet, 
 1 P. "Wms. 778. 
 
 These distinctions between legacies lead 
 to the following consequences : 
 
 I. With reference to the Ademption of 
 legacies : 
 
 (1.) General legacies are not, as a gen- 
 eral rule, liable to ademption ; so that, al- 
 though locally described, the alteration 
 of locality by removal does not adeem 
 the legacy {Norris v. Norris, 3 Coll. 719) ; 
 
 Legacies. - 
 
 but a general legacy to a child would be 
 adeemed in a whole, or pro tanto, by a 
 subsequent portion given to that child 
 {see title Satisfaction of Legacy by 
 Portion, infra); 
 
 (2.) Specific legacies are invariably lia- 
 ble to ademption, e. g., by the specific thing 
 ceasing to belong to the testator and not 
 becoming his again at or before his death 
 {StamleyY. Potter, 3 Cox, 183), and without 
 reference to the animus adimendi of 
 the testator {AsKbumer v. Maeguire, 
 3 Bro. 0. C. 108); or even, in case of 
 the specific thing being specific by 
 local description merely, by the alter- 
 ation of that description through the 
 removal of the goods in the testator's 
 life-time {Gfreen v. Symonds, 1 Bro. C. C. 
 127, n. ; HeselUne v. HeselMne, 3 Mad. 
 276), unless the local description is agaia 
 in existence at the testator's death {Land 
 V. Deoaynea, 4 Bro. C. C. 537) ; or unless 
 the original removal was due to fire or 
 other inevitable cause {Ohapmam, v. Hart, 
 1 Ves. 271), or to fraud {Shaftshwry v. 
 ShaftAwry, 2 Vem. 747); or by the de- 
 struction of the specific thiug, although 
 it is insured and the insurance is recov- 
 ered after the testator's death, and al- 
 though the destruction occurred contem- 
 poraneously with his death {Dwrrant v. 
 Friend, 5 De G. & Sm. 343) ; or in the 
 case of a debt, by the discharge of the 
 debt in the testator's life-time {Rider v. 
 Wager, 3 P. Wms. 339; Bwrker v. Rm/- 
 ner, 5 Madd. 308); although the debt 
 should have been a mortgage debt, and 
 part of it is outstanding at the testator's 
 death on a new security {Qwrdner v. 
 Ratton, 6 Sim. 93); but in general the 
 partial receipt of a debt is only an 
 ademption pro tanto {Jones v. Sonthodl, 32 
 Beav. 31) ; and a destruction by Act of 
 Parliament of stock of one kind followed 
 by a substitution for it of stock of another 
 kind is no ademption {Partridge v. Par- 
 tridge, Cas. t. Talb. 326 ; Oalees v. Oalces, 
 
 9 Hare, 666) ; as neither is the unauthor- 
 ized although provident alteration during 
 lunacy of a specific thing bequeathed by 
 the lunatic when sane {Taylvr v. Taylor, 
 
 10 Hare, 475). A specific legacy is also 
 adeemed by an assignment of the specific 
 thing, e. g. leaseholds {Ooviper v. Main- 
 tell, 22 Beav. 223) ; but not by a pawn or 
 pledge thereof {Knight v. Damis, 3 My. & 
 K. 361) ; and the executors must redeem 
 same at the cost of the general estate, 
 although the executors need not in the 
 case of a bequest of fully paid-up shares 
 
LEGACIES. 
 
 203 
 
 Legacies. — ( GonUnueA.) 
 or of other like choses already perfected 
 in the testator's life-time, pay the calls 
 which are made thereon subsequently to 
 the testator's death. Armat/rongi!. Bamet, 
 30 Beav. 434 ; 
 
 (3.) Demonstrative legacies, like gen- 
 eral legacies, are not liable to ademption, 
 the fund specified as that out of which 
 they are to be paid being the primary 
 fund only, and the general personal estate 
 being liable in mbsMium (^Smille v. Blaehet, 
 1 P. Wms. 777) ; but such a legacy would 
 be adeemed if the specified fund were 
 declared to be the only fund for payment 
 {Ooard v. Solderness, 33 Beav. 391) ; and, 
 semble, it would be adeemed in the case 
 of a chUd by a subsequent portion to that 
 child. 
 
 n. With reference to the Abatement of 
 legacies : 
 
 (1.) G-eneral legacies are liable to abate 
 as between themselves in case the general 
 personal estate, and other the property 
 (if any) available for their payment is 
 insufficient (after payments thereout 
 which are of prior right) to pay" them all 
 in full, the payments of prior right 
 being debts, specific legacies and demon- 
 strative legacies which have remained 
 demonstrative ; see title MABSHAiiLiifG as 
 BETWEEN Legatees. A residuary be- 
 quest, if general, abates with general leg- 
 acies (Petre v. Petre, 14 Beav. 197) ; but 
 a general legacy which is given for value, 
 e. g., for the relinquishment of dower 
 (BurrUge v. BracLyl, 1 P. Wms. 136 ; 3 
 & 4 Will. 4, c. 105, s. 12), or for the re- 
 lease of a debt actually due {Demies v. 
 Bush, 1 Younge, 341), is preferred to 
 other general legacies ; and similarly any 
 legacy, although general, which the tes- 
 tator expresses a clear intention should be 
 preferred. Lewin v. Lewin, 3 Ves. 415. 
 
 (2.) Specific legacies are Uable to abate 
 as between themselves, and pa/ri passu 
 with demonstrative legacies which have 
 remained demonstrative, but are preferred 
 to general legacies. 
 
 (3.) Demonstrative legacies which have 
 remained demonstrative are Uable to abate 
 as between themselves, and pcm passu 
 with specific legacies, but are preferred to 
 general legacies {Bdberts v. Pooock, 4 Ves. 
 150); but demonstrative legacies which 
 have become general are not so preferred. 
 MiOUm V. Smith, 1 Dr,&'Sm. 310. 
 
 m. With reference to the repetition of 
 legacies, 
 
 See title Satisfaction of LbgIacybt 
 Legacy. 
 
 Legacies. - 
 
 IV. With reference to the satisfacHon 
 of legacies, 
 
 See title Satisfaction of Legacy by 
 Legacy. 
 
 V. With reference to the ma/rshalUng of 
 legacies. 
 
 See title MABSHAiiLifrG of Assets. 
 
 VI. With reference to legacies being 
 
 See title Annuities. 
 
 Vil. With reference to the lapse of 
 legacies, 
 
 See title Lapse. 
 
 Vm. With reference to interest on 
 legacies : 
 
 (A.) General legacies carry interest 
 from the time they are payable. There- 
 fore, 
 
 (a.) Where the testator has fixed no time 
 of payment, they are not payable until one 
 year after his decease, and therefore only 
 carry interest as from that date {Child v. 
 ElswortA, 2 De G., M. & G. 679), unless 
 they are charged on land, in which case 
 they are payable, and therefore carry in- 
 terest, as from the testator's death {Max- 
 well V. Wettenhall, 3 P. Wms. 26); and 
 from whichever of these two dates they 
 are payable, they will carry interest, al- 
 though the actual payment of the legacies 
 themselves should be then impracticable 
 {Wood V. Perwyre, 13 Ves. 333), and 
 whether the assets are productive or not 
 {Pearson v. Pea/rson, IS. & L. 10) ; and 
 
 (S.) Where the testator has fixed a time 
 for payment ; 
 
 {aa.) If that time is fixed for the con- 
 venience of the estate merely, they will 
 be payable, and will therefore carry in- 
 terest, as from the testator's death or as 
 from one year after the testator's death, 
 according as they are or are not charged 
 on land {Varley v. Winn, 3 K. & J. 700); 
 but 
 
 {bb.) If that time is not fixed for the 
 convenience of the estate merely, then it 
 must be observed ; and if it exceed the 
 year, the interest will be proportionately 
 delayed {Heath v. Perry, 3 Atk. 101); 
 but if it fall within the year, the interest 
 will be proportionately accelerated {Loi-d 
 Londesboroagh v. SomermUe, 19 Beav. 395) ; 
 and 
 
 (c.) Whether the testator has fixed a 
 time of payment or not, the following 
 other legacies are payable, and therefore 
 also carry interest, as from the testator's 
 death. 
 
 (1.) A legacy which is in satisfaction of 
 a debt, whether of the testator's own ( Olmrh 
 
204 
 
 LEGACIES. 
 
 Legacies. — {OonUnueA.') 
 
 V. Sewell, 3 Atk. 99) or of another man. 
 
 Shirt V. Weatby, 16 Ves. 309. 
 
 (3.) A legacy by a parent (Sechforfi v. 
 Tdbin, 1 Ves. 310) or person inloco parerir 
 Us (Wilson V. Maddison, 3 T. & 0. C. C. 
 873) to a legitimate child being an in- 
 fant, but not to a legitimate child being 
 an adult {Baven v. Waite, 1 Sw. 553), nor 
 to a legitimate child, although an infant, 
 being otherwise provided Trith mainten- 
 ance {In re Mouse's Estate, 9 Hare, 649), 
 nor to an illegitimate child (BechforcL y. 
 ToMn, 1 Ves. 310) in the absence of an 
 express direction as to maintenance. 
 Newman v. Bateson, 3 Sw. 689. 
 
 (3.) A legacy which is settled upon 
 several takers in succession (Angerstein v. 
 Martin, T. & R. 332 ; Ebwe v. Da/rtmouth 
 [JBJarl], 7 Ves. 137) ; but a legacy of con- 
 sumable articles, other than stock in trade 
 (Philips V. Beal, 33 Beav. 25), and other 
 than fanning stock (Qroves v. Wright, 3 
 K. & J. 347), being an absolute gift (An,- 
 d/rew V. Andrew, 1 Coll. 690), unless where 
 the consumable articles are included in a 
 residuary bequest comprising other arti- 
 cles of a difEerent nature (Randall v. Bv^ 
 sell, 3 Mer. 195), the rule as to payment 
 of interest to the tenant for life as from 
 the death is inapplicable. 
 
 (B.) Specific legacies carry interest 
 from the time they are payable, and being 
 considered as severed from the bulk of 
 the estate and appropriated for the ben- 
 efit of the specific legatee as from the 
 death of the testator, they carry interest 
 as from the death (Ba/rrington v. Tristam, 
 6 Ves. 345); and for that matter it makes 
 no difference that the testator has direct- 
 ed them to be paid within twelve calen- 
 dar months after his decease (Bristow v. 
 Bristow, 5 Beav. 389), or has otherwise 
 postponed the enjoyment of the principal. 
 2 Rop. Leg. 1250, 4th ed. 
 
 (C.) Demonstrative legacies which have 
 remained demonstrative, carry interest, 
 semhle, from the testator's death in like 
 manner as specific legacies; but where 
 they are payable out of reversionary prop- 
 erty, they carry interest, serrMe, only as 
 from the date at which the reversion falls 
 ix\.(Earle v. BeWingham, 34 Beav. 448); 
 and if they have ceased to be demonstra- 
 tive, and are become general legacies, 
 they are subject to the rules above stated 
 regarding the payment of interest on gen- 
 eral legacies. MuMns v. Smith, 1 Dr. & 
 Sm. 210. 
 
 Where interest is payable, it is usually 
 at the rate of 4 per cent (Wood v. Bry- 
 
 Legacies. — (GontiTmed.) 
 ant, 3 Atk. 533), free of all deductions 
 on account of cost of remittance or other- 
 wise (Vachrell v. Barber, 16 Ves. 461). 
 And 
 
 IX. With reference to legacies charged 
 on land : 
 
 In general, a legacy which is vested ia, 
 in case of the death of the legatee subse- 
 quently to the vesting and previously to 
 the commencement of the actual enjoy- 
 ment of the legacy, transmissible to the 
 personal representatives of the legatee, 
 and the Courts, both of Law and Equity, 
 favor in all cases the vesting of legacies. 
 
 Thus, even at Law, all legacies are con- 
 sidered as vested unless vrhere there is a 
 condition precedent to the vesting ; and a 
 legacy once vested wiU not be divested 
 by any condition subsequent either at 
 Law or in Equity unless the latter condi- 
 tion is exactly fulfilled (Sarrison v. fore- 
 man, 5 Ves. 207; Doe d. Blahiston v. 
 Haslewood, 10 C. B. 544). Also, words of 
 apparent contingency are construed as 
 words of futurity, and as having reference 
 to the period of enjoyment only and not 
 of the vesting (^addison y. Qha^mam,, 4 
 K. & J. 709). This latter principle being 
 so strong in the case as weU of personal as 
 of real estate that a bequest or devise to 
 the children of A. as a class vests in the 
 existing children of A. at the death of 
 the testator, although A. is then living, 
 and opens up to admit after-bom children 
 of A. (if any) successively as they are 
 bom (McLacWan v. Taitt, 3 De G., F. & 
 J. 449). And words of apparent con- 
 ditionality are in like manner con- 
 strued as words of futurity, having 
 reference to the enjoyment only and not 
 to the vesting (Manfleld v. Duga/rd, 1 Eq. 
 Ca. Abr. 194; Doe d. Wheedon v. Lea, 8 
 T. R. 41 ; Pearsall v. Simpson, 15 Ves. 
 39); and conditions apparently precedent 
 will, if possible, be construed as condi- 
 tions subsequent, so as rather to vest the 
 estate meanwhile and leave it liable to be 
 divested afterward, than prevent it from 
 vesting at all in the meantime (Edwwrds 
 Y. Hammond, 1 Bos. & Pul. K. R. 834, 
 n.); but, of course, this cannot always be 
 done (Bull v. Pritehard, 5 Hare, 567); 
 and where the postponement of enjoy- 
 ment is merely for the convenience of the 
 estate, the future interest will be held a 
 vested interest (-Blamire v. Oeldart, 16 
 Ves. 314) ; and although the gift is resid- 
 uary, the Courts strongly incline to con- 
 struing it as vested, so as to avoid an 
 intestacy. Booth v. Booth, 4 Ves. 399. 
 
LEGACY DUTY. — LESSOR OF THE PLAINTIFF. 
 
 205 
 
 Legaciesa — ( Continued.) 
 
 All the foregoing statement applies 
 equally to real and to personal estate ; but 
 the Common Law, from the favor it shows 
 to the hei/r, who is always an ascertained 
 or ascertainable person, holds that a 
 legacy payable out of lands (not being 
 also a devise of the very lands themselves, 
 or part thereof), although it be vested, 
 yet sinks for the Iseneflt of the inheritance 
 in case the legatee die before the period 
 of actual enjoyment, no matter whether 
 the legacy be to a child as a provision or 
 portion for that child (Pamlett v. Pawlett, 
 
 1 Tern. 321), or be to a stranger (Smith 
 V. Smith, '3 Vem. 92), unless where the 
 postponement of the enjoyment is for the 
 convenience of the estate merely (KiTig 
 V. Withers, 3 P. Wms. 414), or unless the 
 testator expressly directs the contrary 
 {WatUm V. Cheek, 2 S. & S. 199). The 
 lake rules applied- mutatis mMtandis to 
 legacies payable out of a mixed fund of 
 real and personal estate. Ghandos (Duke) 
 V. Talbot, 2 P. "Wms. 601. 
 
 Legacies charged on land carry interest 
 as from the testator's death (Maxwell v. 
 WettenhaU, 2 P. Wms. 26), and not (like 
 personal legacies) as from one year after 
 the testator's death. Child v. Elsworth, 
 
 2 De Or. M. & O. 679. 
 
 See, also, title AKTrroiriBB. 
 
 LEGACY DUTY. A duty imposed in 
 England upon personal property (other 
 than leaseholds) devolving under any 
 will or intestacy. 
 
 LEGAL MEMORY. This, as distin- 
 guished from living memory, extends as 
 far back as the year of our Lord 1189, 
 being the year in which King Richard I. 
 returned from Palestine. See, also, title 
 Mbmobt of Man ; also title Timb ottt op 
 Mind. See, also, Co. Litt. 114 b ; 3 Inst. 
 338; 3 Ves. Sen. 511; 3 & "3 Will. 4, c. 
 71, s. 1. 
 
 *LEGANTINE CONSTITUTIONS. A 
 
 code of ecclesiastical laws enacted in 
 synods in the reign of Hen.HI., by legates 
 from Popes Greg. IX., and Clem. IV., 
 about 1330 and 1268. 1 Bl. Com. 83. 
 
 ♦LEGATORY. The third part of a 
 freeman's personal estate, which in Lon- 
 don the freeman might have disposed of 
 by will, in case he had a wife and chil- 
 dren. Burr. Bict. ; Bacon Abr., Customs 
 of London (D. 4). 
 
 ♦LEGITIM. In Scotch Law, the 
 claim of the children out of the free 
 
 Legitim. — (Goni/inued.) 
 
 moveable estate of their father. 4 Bell's 
 App. Cas. 286. 
 
 * LEGITIMACY. The state of being 
 bom in wedlock or in a lawful manner. 
 
 LEGITIMATION. The making legiti- 
 mate or lawful, as where children are 
 bom bastards, the act by which they are 
 made legitimate is called legitimation, 
 which in Scotland may be effected by the 
 subsequent marriage of the parents 
 (Cowel ; TomUns). But when an attempt 
 was made in the Parliament of Merton to 
 introduce the like law into England, the 
 barons of Parliament replied, " Nolumus 
 leges Anglim muta/re hue usque tiMtataa 
 atque wpprdbatas" and thus frastrated the 
 attempt. It is the rule of the English 
 Law that legitimation depends on the 
 statMS of the mother when she gives birth 
 to the child, and has no reference (as in 
 Roman Law) to the date of the child's 
 conception: '■'■Pater est quern nupUm de- 
 mMistravit." Under the stat. 31 & 33 
 Vict. c. 93, a declaration of legitimacy 
 may be obtained in certain cases. 
 
 LEPROSO AMOVENDO. An old ob- 
 solete writ that lay for the removal of a 
 leper, or lazar, who obtruded himself 
 upon the company of his neighbors, either 
 in the church or other public place of 
 meeting in a parish. H. N. B. 433 ; Zes 
 Termes de la Ley. 
 
 LE ROY LE VEUT. The Royal assent 
 to public bills is given in these words ; 
 and to private bills the words are, soit 
 fa/it com/me il est desiri, i. e. , let it be done 
 as it is desired; but when the Royal 
 denial is given to a bill presented by 
 Parliament, the words in which it is 
 conveyed are leroy s'amsera, i. e., the king 
 will advise upon it. 
 
 LESION. In French Law, upon a sale, 
 it is competent for the purchaser to re- 
 scind the contract on account of lesion, 
 i. e., the worsened value of the thing sold, 
 when it exceeds seven-twelfths of the 
 price given. A purchaser cannot bargain 
 away his right in this respect, but he 
 must exercise it vfithin two years. In 
 the contract of exchange there is no 
 right of rescission, yowr ooMse de Usion. 
 Code Civil, 1706. 
 
 LESSOR OF THE PLAINTIFF. The 
 
 lessor of the plaintiff in an action of 
 ejectment was the party who really and 
 in effect prosecuted the action, and was 
 interested in its result. He must at the 
 
206 LETTERS OP ADMINISTRATION. — LETTERS OF REQUEST. 
 
 Lessor of the Plaintiff. — {Oontinued.) 
 time of bringing the action have had the 
 legal estate, and the right to the posses- 
 sion of the premises sought to be re- 
 covered (7 T. R. 47; 3 Burr. 668; 8 T. 
 R. 3, n. ; 1 Ch. PI. 187). The reason of 
 his having been called the lessor of the 
 plaintiff, arose from the circumstance of 
 the action having been carried on in the 
 name of a nominal plaintiff (called John 
 Doe), to whom he (the real plaintiff) had 
 granted a fictitious lease, and thus had 
 become his lessor. 
 
 See title Ejectment for the modern 
 process. 
 
 LETTERS OF ADMINISTRATION. 
 
 The instrument by virtue of which ad- 
 ministrators derive their title and 
 authority to have the charge or adminis- 
 tration of the goods and chattels of "a 
 person who dies intestate. The ordinary 
 was the person whom the law, in the 
 first instance, appointed to have the 
 charge or administration of the goods and 
 chattels of such deceased person ; and the 
 persons who are called administrators 
 were the officers of the ordinary, ap- 
 pointed by him in pursuance of the 
 statute 13 Edw. 1, stat. 1, c. 19. Some- 
 times, however, letters of administration 
 are granted when a party has actually 
 made a will, but has omitted to appoint 
 any executor, and is therefore said to be 
 quasi inteatatiis ; or when, having made a 
 will, and appointed an executor, the 
 executor dies before the testator, or before 
 he has proved the will, or refuses to act, 
 or is incapable of acting, and in all such 
 cases the administration is granted with 
 the wUl annexed, and the letters of ad- 
 ministration are thence termed letters of 
 administration with the will annexed 
 (cum testamento annexo). See 1 Wms. 
 Executors, 348; Rog. Ecc. Law, 949. 
 See title Administkation. 
 
 LETTERS OF CREDIT: See title 
 Cebdit, Lbttebs of. 
 
 LETTER OP LICENSE. A letter or 
 written instrument which used sometimes 
 to be given by creditors to their debtor 
 who had failed in trade, &c., allowing 
 him longer time for the payment of his 
 debts, and protecting him from arrest in 
 the meantime (Tomlins). But now im- 
 prisonment for debt, and with it all pro- 
 ceedings in insolvency, have been abol- 
 ished . 
 
 See titles Imprisonment fob Debt ; 
 Insolvency. 
 
 LETTERS MISSIVE. A letter mis- 
 sive, for electing a bishop, is a letter 
 which the king sends to the dean and 
 chapter, together with his usual license 
 to proceed to elect a bishop on the avoid- 
 ance of a bishopric, which letter con- 
 tains the name of the person whom he 
 would have them elect. A letter missive 
 in Chancery is a letter from the Lord 
 Chancellor to the defendant in a suit in 
 Equity, informing him that the bill has 
 been filed against Mm, and requesting 
 him to appear to it. Such a letter is the 
 step taken in a Chancery suit to compel 
 a defendant's appearance to a bill when 
 such defendant is a peer or a peeress, 
 being thought a milder or more compli- 
 mentary mode of procedure than serving 
 such a defendant with a subpcena in the 
 first instance. 1 Dan. Oh. Pr. 366-9. 
 
 ■ LETTERS PATENT. Letters by 
 which the king makes his grants, whether 
 of lands, honors, franchises, or any thing 
 else. They are so-called because they are 
 not sealed, but are exposed to open view, 
 with the great seal pendent at the bottom, 
 and they are usually directed or addressed 
 by the king to all his subjects at large; 
 and herein they differ from certain other 
 letters of the king, sealed also with his 
 great seal, but directed to particular per- 
 sons and for particular purposes, which 
 therefore not being proper for public in- 
 spection are closed up and sealed on the 
 outside, and are therefore called letters 
 close (Uterce da/asm), and are recorded in 
 the close rolls in the same manner as the 
 others are in the patent rolls. 
 
 See, also, title Patents. 
 
 LETTERS OF REQUEST. Are the 
 
 formal instrument by which an inferior 
 judge of ecclesiastical jurisdiction re- 
 quests the judge of a superior Court to 
 take and determine any matter which has 
 come before him. And this he is per- 
 mitted to do in certain cases by the 
 authority of an exception to the stat. 33 
 Hen. 8, c. 9, which exception is to the 
 ■effect, that a person may be cited in a 
 Court out of his own diocese, when any 
 bishop or other inferior judge, having 
 jurisdiction in his own right, or by com- 
 mission, makes request or instance to the 
 archbishop or bishop, or other superior, 
 to take, hear, examine,or determine the 
 matter before him ; but this is to be done 
 in cases only where the law, civil or canon, 
 doth affirm execution of such request of 
 jurisdiction to be lawful and tolerable. 
 Upon this exception it has been held that 
 
LETTBBS OF SLANES. — LEY GAGER. 
 
 207 
 
 Letters of Bequest. — {GonUnued.) 
 the Dean of the Arches is bound, ex 
 debito justitia, to receive letters of request 
 without the consent of the party pro- 
 ceeded against; but this power of re- 
 questing the decision of a superior Court 
 is generally employed at the desire of the 
 parties. Bog. Ecc. Law, 789; 3 Lee, 
 312, 319 ; Hob. 185. 
 
 * LETTERS OF SLANES. In old 
 
 Scotch Law, a bond by which the heirs 
 and relations of a murdered person bound 
 themselves, for a consideration^ to forgive, 
 &c., the criminal. Bell. Diet, title 
 Sladts. 
 
 LEVANT AND COUCHANT. These 
 words are thus used by law writers : — If 
 lands were not sufficiently fenced to keep 
 out cattle, they would occasionally stray 
 thereon ; but the landlord could not dis- 
 train them as dcumage /eosawi tin they had 
 been leiBant and coucTiant on the land, that 
 is, had been long enough there to have 
 lain down and risen up to feed, which in 
 general is held to be one night at least. 
 Gilb. Dist. 47. 
 
 LEVARI FACIAS. A writ of execu- 
 tion directed to the sheriff, commanding 
 him to levy or make of the lands and 
 chattels of the defendants the sum re- 
 covered by the judgment. Excepting in 
 the case of outlawry, however, this writ 
 has been completely superseded in prac- 
 tice by the writ of elegit. 1 Arch. Prac. 
 698; Tidd. 
 
 LEW (leeare). To exact, to raise, to 
 coUeot, to gather together, &c. Thus a 
 sheriff is commanded by a writ to levy a 
 certain sum upon the goods and chattels 
 of the debtor, i. e.,to collect a certain sum 
 by appropriating the goods and chattels 
 to that purpose. 
 
 LEX DOMICILII : ,8«« title Domioile. 
 
 LEX FORI. This phrase denotes the 
 law of the forum or court in which an 
 action or suit is proceeding. It regulates 
 every thing pertaining to procedure and 
 evidence, including the forms of practice, 
 the times for commencing and proceed- 
 ing with actions, the requisites of plead- 
 ing, and such like. It sometimes over- 
 rides or excludes the Lex loci actus sen 
 amt/raoUM, whence there arises a Conplict 
 OF Laws (see Lerovs v. Brown, 13 C. B. 
 801). But of necessity it agrees in all 
 cases with the Lex loei rei sitce. See Story 
 on Conflict of Laws, and Forsyth's Oases 
 and Opinions. 
 
 LEX LOCI ACTUS VEL CELEBRA- 
 TIONIS : See next title. 
 
 LEX LOCI CONTRACTUS. This is 
 an ambiguous phrase, denoting either 
 
 (1.) The law of the place in which the 
 contract is to be performed (in eo loco 
 urmaqvAsque contraxisse videtw in quo ut 
 mhetiwr se dbligamt) ; or 
 
 (2.) The law of the place in which the 
 contract is entered into. 
 
 According to the former of these two 
 senses, it is the Lex loei solutionis, accord- 
 ing to the latter of them it is the lex loci 
 actus, and it is desirable that these two 
 phrases should be used for distinction's 
 sake, when any thing is to turn on the dis- 
 tinction. The former phrase, namely,the 
 Lex loci solutionis, regulates the mode of 
 recovery upon the contract, and the latter 
 phrase, viz., the Lex lod actus, regulates 
 the formalities or ceremonies requiring to 
 be observed upon entering into a contract. 
 In each case the law of the place denoted 
 by the plirase is to be singly regarded, 
 unless, indeed, pro majori eauteld. 
 
 LEX LOCI REI SIT^. This phrase 
 denotes the law of the place of the situa- 
 tion of the property, as does also the 
 phrase Lex lod situs; but the former 
 phrase is exclusively appUcable (and ought 
 to be confined) to real property, including 
 leaseholds, and the latter to personal 
 property, exclusive of leaseholds. There 
 are also certain differences between the 
 two laws expressed by the two respective 
 phrases; thus, the Lexlod rd sites is a 
 paramount law, and regulates the devolu 
 tion of lands, whether upon a testacy w 
 an intestacy ; it also determines what shall 
 be the forum, so that it is never in con- 
 flict with the Lex fori; and lastly, it com- 
 pletely disregards the Lex domidUi. The 
 Lex lod situs, on the other hand, is differ- 
 ent in all these three respects, being sub- 
 sidiary to the Lex cforoioiW, being frequent- 
 ly in conflict with the Lex fori, and having 
 absolutely no influence upon the devolu- 
 tion of property. 
 
 LEX LOCI SITUS : See the preceding 
 titie. 
 
 LEX LOCI SOLUTIONIS: -Se« title 
 Lex Loci Contbaotus. 
 
 LEX MEBCATORIA: ^See' title Law 
 Merchant. 
 
 *LET GAGER. Wager of law. The 
 giving of gage or security by a defendant 
 that he would make good his defense. 
 Co. Litt. 394 b, 295 a. 
 
208 
 
 LIBEL.— LIEGB PONSTIE. 
 
 LIBEL. This word is commonly used 
 in two senses, 1st., in the Court of 
 Arches, and some few other Courts, as 
 meaning a formal allegation in the nature 
 of a pleading, containing the substance 
 of the plaintifl's complaint. But, 3dnly, 
 and more commonly, it signifies some ma- 
 licious defamation of any person expressed 
 otherwise than by mere words (see title 
 Slandbb), as by writing, print, figures, 
 signs, or any other symbols. Malice is 
 an essential requisite to constitute any 
 writing a Ubel, and the truth of defama- 
 tory writings is not at Common Law any 
 justification of them, but under the A.ct 
 6 & 7 Vict. c. 96, it is competent for the 
 defendant to plead the truth of the libel, 
 and that it was published for the public 
 good. 
 
 Previously to the year 1793, the func- 
 tions of the jury in actions or prosecu- 
 tions for libel were confined to finding 
 the fact of publication merely, or the ab- 
 sence of that fact (Dean of St. Asaph's 
 Case, 21 St. Tr. 847); but sLace that 
 year, and in virtue of Fox's Libel Act, 
 1792 (32 Geo. 3, c. 60), the jury now 
 find a mixed verdict of libel or no libel, 
 returning generally the verdict of guilty 
 or not guilty, in which both law and 
 fact are blended. The functions of the 
 judge, which were formerly very large, 
 have been correspondingly diminished, 
 and are now confined to points arising 
 incidentally in the trial, and which re- 
 quire to be summarily disposed of, but 
 including amidst such matters a rather 
 important defense in actions of this 
 sort, namely, PBrvrLBGB, as to which 
 see that title. See generally 2 Bish. 
 Crim. Law ; Heard Libel & Slander. 
 
 LIBERATE. A warrant which used 
 formerly to issue out of Chancery 
 under the great seal to the Treasurer, 
 Chamberlain, and Barons of the Ex- 
 chequer, &c., for the payment of any 
 yearly pension or other sum of money 
 granted under the great seal. Some- 
 times it was directed to the sheriff for 
 the delivery of land or goods taken 
 upon forfeiture of a recognizance; and 
 sometimes to a gaoler for the delivery 
 of a prisoner who had put in bail for 
 his appearance. It was most in use for 
 the delivery of goods on an extent ; for 
 until the liberate no projjerty in the 
 . goods passed to the conusee in the recog- 
 nizance. Tomlins. 
 
 LIBERTY: ;8«e title Franchise. 
 
 LIBERTY TO HOLD PLEAS. The 
 
 liberty of having a Court of one's own ; 
 thus, certain lords had the privilege of 
 holding pleas within their own manors. 
 
 LICENSE. A license is a mere per- 
 mission to do an act, which if done with- 
 out that permission would (a.), with 
 respect to land, be a trespass quareclausum 
 /regit; and (b.), with respect to goods, be • 
 a tort in respect of the goods, whether a 
 conversion of them or a detainer of them 
 from the true owner. 
 
 As a general rule, licenses in respect of 
 land are revocable at the will of the 
 grantor; for they confer no interest in the 
 land ; but where the license is something 
 more than a license, in other words, where 
 it is accompanied with a grant, it is irre- 
 vocable wlule the grant continues (Wood 
 V. LeadMtter, 13 M. & W. 844), no matter 
 whether it is made by deed or parol. 
 Moreover a license is irrevocable when the 
 licensee, acting upon it, has executed 
 works of a permanent and expensive 
 character. Winter v. Brochwell, 8 East, 308 ; 
 Baniwrty. Tencmt, L. R. 10 Eq, 141. 
 
 Where a license is revocable it may be 
 revoked in various ways, namely, either 
 (1.) by an express withdrawal of it; or, 
 (3.) by any other act adverse to its con- 
 tinuance. WalUs V. Sa/rrison, 4 M. & W. 
 538. 
 
 Similarly, where the license is in respect 
 of goods. 
 
 By the C. L. P. Act, 1852, Sched. B. 
 44, the defendant licensee may plead that 
 he did the act complained of by the leave 
 and license of the plaintiflE; and the 
 plaintiff may then take issue on that plea 
 (Bamesy. Hunt, 11 East, 451), or may (in 
 a fit case) new assign (Kmianagh v. Chidge, 
 7 N. & 0-. 316), or may reply specially. 
 Price V. Peek, Bing. N. C. 880. 
 
 *LICITATION. In CivU Law, the 
 offering for sale to the highest bidder. 
 The act of offering for sale by co-heirs or 
 co-owners. Pothier Contr. of Sale, 516, 
 638; Burr. Diet. 
 
 LIE. To subsist, to exist, to be sus- 
 tainable, &c. Thus, the phrase, "an ac- 
 tion will not lie," signifies that an action 
 cannot be sustained, or that there is no 
 ground upon which to found the action. 
 
 * LIEGE PONSTIE. In Scotch Law, 
 a state of health which gives a person 
 lawful power to dispose by will. Bell 
 Diet. • A deed executed when the grantor 
 is in health. 
 
LIEN. — LIMITED ADMINISTRATION. 
 
 209 
 
 LIEN. A qualified right of property 
 wMch. a person has in or over a thing, 
 arising from such person's having a claim 
 upon the owner of such thing. Thus, the 
 right which an attorney has to keep pos- 
 session of the deeds and papers of his 
 client until such client has paid his at- 
 torney's bill is termed the attorney's hen 
 upon those deeds, papers, .&c. There are 
 two sorts 'Of hen, viz., particular and 
 general. A pa/rticfula/r lien is the right 
 which a person has to retain the specific 
 thing itself in respect to which the claim 
 arises ; a general lien is the right which a 
 person has to retain a thing not only in 
 respect of demands arising out of the 
 thing itself so retained, but also for a 
 general balance of account arising out of 
 dealings of a similar nature. A hen may 
 exist over real and personal property 
 equally ; but there is this difierence in the 
 two cases, namely, (1.), that the lien on 
 personal property is dependent on posses- 
 ion, and ceases when the possession 
 ceases; whereas, (2.), the hen on real 
 property is independent of possession, 
 and, indeed, implies that the person 
 claiming the lien is out of the possession, 
 e. g., in the case of a vendor's lien for 
 unpaid purchase-money, or of a purchaser 
 for his deposit. The lien is, however, in 
 all cases commensurate only with the in- 
 terest of the person through whom it 
 arises. 
 See, also, title Stoppage in Transitu. 
 
 LIFE ESTATE : See title Estate. 
 
 LIFE BENT. A rent payable to, or 
 receivable by, a person for the term of his 
 or her life, e.g., a jointure rent-charge, a 
 life annuity issuing out of lands, and such 
 like. 
 
 LIGEANCE : See title Allegiance. 
 
 LIKIT. To mark out, to define, to fix 
 the extent of. Thus, to limit an estate 
 means to mark out or to define the period 
 of its duration, and the words employed 
 in deeds for this purpose are thence 
 termed words of limitation, and the act 
 itself is termed limiting the estate. Thus, 
 if an estate be granted to A. for the 
 term of his natural life, the words " term 
 of his natural life " would be the words of 
 limitation, and the estate itself would be 
 limited to A. for that period. Sometimes 
 very great importance attaches to the 
 words of limitation that are usedj for 
 example, the Rule in SheUey^s Case is en- 
 tirely a rule of words; and again, in 
 every conveyance (except by will) of an 
 
 27 
 
 Limit. — ( Continued.') 
 estate of inheritance, whether in fee tail 
 or fee simple, the word " heirs " is neces- 
 sary to be used as a word of limitation to 
 make out the estate ; for if a grant be 
 made to a man and his seed, oi to a man 
 and his offspring, or to a man and the is- 
 sue of his body, all these are insuflScient 
 to confer an estate tail, and only convey 
 an estate for life for want of the word 
 "heirs." 
 
 JilMITATION. Confinement within a 
 certain time,&c. The word " limitation," 
 as applied to actions, signifies the period 
 of time which the law gives a man to 
 bring his action for the recovery of any 
 thing; and this period of time within 
 which a man must bring his action in or- 
 der to recover the thing sought is limited 
 by the legislature in some cases to two 
 years, in some to six years, and so on. 
 The Acts of ParUament which prescribe 
 these Umits within which actions must be 
 commenced are thence called the Stat- 
 utes of Limitation, and the subject gen- 
 erally is termed Umitation of actions. 
 
 LIMITATION OF ESTATES. The 
 
 word "hmitation" as applied to es- 
 tates signifies the limits of duration 
 beyond which an estate cannot last, 
 as when an estate is so expressly 
 confined and limited by the words 
 of its creation, that it cannot en- 
 dure for any longer time than till the 
 contingency happens Upon which the 
 estate is to fail ; as when land is granted 
 to a man so long as he is lord of the manor 
 of Dale, or while he continues unmarried, 
 or until out of the rents and profits he 
 shall have made £500, and so on. In 
 such cases the estate determines as soon 
 as the contingency happens (i. «., when 
 he ceases to be lord of the manor, mar- 
 ries a wife, or has received the £500), and 
 the next subsequent estate which depends 
 upon such determination becomes imme- 
 diately vested in possession, without any 
 act to be done by him who is next in 
 expectancy. 1 Inst. 334 ; Litt. 347. . 
 
 LIMITED ADMINISTRATION. An 
 
 administration of a temporary character, 
 granted for a particular period, or for a 
 special or particular purpose, as distin- 
 guished from an ordinary administration 
 which is not granted subject to such 
 Umitations or conditions. Such, for 
 instance, is an administration dv/rcmte 
 minore estate, which becomes necessary 
 when an infant has been appointed sole 
 
210 
 
 LIMITED DIVORCE.— LIS PENDENS. 
 
 Limited Administration. — {OonUmied.) 
 
 executor, or the person upon, whom the 
 right to administration devolves is an 
 infant, in -which case administration is 
 granted to some other proper person for 
 a limited period, viz.: until the infant 
 attains the full age of twenty-one years, 
 and is capable of taking the burden of 
 the administration upon himself. 
 
 See, also, title Administration, Lbt- 
 
 TBKS OF. 
 
 * LIMITED MTOECE. A separation 
 from bed and board. 
 
 LIMITED EXECUTOR. The appoint- 
 ment of an executor may be either abso- 
 lute or qualified. It is absolute when 
 there is no restriction, condition or limi- 
 tation imposed upon him in regard to the 
 testator's efiects, or no limitati6n in point 
 of time. It may be qualified by limita- 
 tions as to the time or place wherein, or 
 the subject-matter whereon, the ofiice is 
 to be exercised, and when so qualified the 
 executor is frequently, in reference to his 
 limited or qualified powers, termed a 
 limited executor. Thus, if one appoint a 
 man to be his executor at a certain time, 
 as at the expiration of five years after his 
 death, or at an uncertain time, as upon 
 the death or marriage of his son, such an 
 executor, with reference to the time he 
 should begin to execute his oflSce, would 
 be a limited executor. So, also, an ex- 
 ecutor may be a limited executor, with 
 reference to the place in which he is em- 
 powered to execute his trust; as if a 
 testator should make A. his executor for 
 his goods in Cornwall, B. for those in 
 Devon, and 0. for those in Somerset. 
 "Went. Off. Ex. 291, 4th ed.; Bro. Ex- 
 ecutors, 3, 155, cited in 1 Wms. Ex. 181. 
 
 LIMITED LIABILITY. The liability 
 of the members of a Joint Stock Company 
 {gee that title) may be either unlimited 
 (which it seldom is) or limited; and if the 
 latter, then the limitation of liability is 
 either the amount, if any, unpaid on the 
 shares (in which case the hmit is said to 
 be In/ sha/res), or such an amount as the 
 members guarantee in the event of the 
 company's being wound up (in which 
 case the limit is said to be Z 
 
 LINEAL CONSANGUINITY. That 
 relationship which subsists between per 
 sons each of whom is descended in a 
 direct line from another, as between son, 
 father, grandfather, great-grandfather, 
 and so upward in the direct ascending 
 
 Lineal Consanguinity. — {Continued.) 
 Une, or downward in the direct descend- 
 ing Une. 
 
 See, also, title Consanguinitt. 
 
 LINEAL DESCENT. Descent in a 
 right Une, as where an estate descends 
 from ancestor to heir in one line of suc- 
 cession. 
 
 See, also, title Descents. 
 
 LINEAL WARRANTY : See title Wae- 
 bantt. 
 
 LIQUIDATED DAMAGES are dam- 
 ages, the amount of which is fixed or 
 ascertained, as opposed to unascertained 
 or uncertain, i. e., unliquidated damages. 
 It is frequently mutually agreed between 
 the parties to a contract that the one 
 shall pay to the other some specified sum 
 of money in the event of a breach of the 
 contract; and in such a case it frequently 
 becomes a nice question whether such a 
 sum is to be considered in the nature of 
 a penalty merely for the purpose of cover- 
 ing the damages which one party may 
 sustain in the event of a breach commit- 
 ted by the other, or whether the full sum 
 specified is to be actually paid to the 
 injured party as liquidated or settled 
 damages, without reference to the extent 
 of the injury sustained. See KerrMe v. 
 Farran, 6 Bing. 141; Seilh/ v. Jones, 1 
 Bing. 203; Ch. on Contr. 863, 864. 
 And see title Damages. 
 
 LIQUIDATION. Under the Bank- 
 ruptcy Act, 1869, a person in embarrass- 
 ment, instead of suffering himself to be 
 made a bankrupt, may (under s. 125) 
 summon a meeting of his creditors and 
 prevail with thein by special resolution 
 to declare that his affairs shall be liqui- 
 dated by arrangement. 
 
 LIQUIDATOR : See title Winding-tip. 
 
 *LIS MOTA. A dispute or contro- 
 versy prior to the commencement of legal 
 proceedings. 
 
 LIS PENDENS. This phrase denotes 
 a suit or action depending, i. e., in course. 
 Inasmuch as every such suit or action 
 would, when decided, naturally, affect 
 the land according to its result in whose- 
 soever hands the land might be at the 
 date of the decision, it was enacted by 
 the 3 & 3 Vict. c. 11, s. 7, that no lis 
 pendens, unless or until the same was 
 registered, and duly re-registered, should 
 bind a purchaser or mortgagee not hav- 
 ing express notice thereof. By the stat. 
 
LIVERY. — LODGINGS. 
 
 211 
 
 Lis Pendens. — (Oontmued.) 
 13 & 14 Vict. c. 35, s. 17, a special case 
 to which appearances have been entered 
 is made a lis pendens. Lastly, by 80 & 31 
 Vict. c. 47, s. 3, if a suit or action is not 
 prosecuted in a bona flde manner, the 
 Court may order the registration of it as 
 a lis pendens to be vacated, and that even 
 without the consent of the person regis- 
 tering the same. 
 
 LIVERY. During the existence of 
 the feudal tenures and customs, the male 
 heir when he arrived at the age of twenty- 
 one years, or the heir female at the age of 
 sixteen, might sue out a writ of livery or 
 ouster le main; that is, the delivery of 
 their lands out of their guardian's hands ; 
 for in the feudal times the lord was en- 
 titled to the wardship of the heir, and 
 was called the guardian in chivalry. 
 This wardship consisted in having the 
 custody of the body and lands of such 
 heir till he or she attained the age of 
 twenty-one if a male, or sixteen if a 
 female (3 Inst. 303). This guardianship 
 was not subject to account. 
 
 See, also, next title. 
 
 LIVERY OF SEIZIN. This simply 
 means delivery of the land (firaditio). It 
 is of two kinds, being either in deed or 
 in law. 
 
 (1.) Livery in deed, i. e., in fact or act, 
 was performed by delivery of a part of 
 the actual thing in lieu, and as a symbol 
 of, the whole, e. g., by delivery of the 
 ring of a door, or of a branch of a tree, 
 or a turf of the ground, accompanied 
 with these or the like words spoken by 
 the feoffor : ' ' Here I deliver you seizin of 
 this house or land " [ow t?ie case might be], 
 "in the name of the tenements contained 
 in this deed, and according to the form 
 and effect thereof." And thereupon the 
 feoffee entered upon or took possession 
 of the house or land. A separate livery 
 was wanted for lands in several counties. 
 Livery in deed could only be made to the 
 feoffee personally. 
 
 (3.) Livery in law, i. «., constructive or 
 implied delivery of the actual thing. This 
 was done off the land but in sight of it, 
 the feoffor saying these or the like words : 
 " I give you yonder land, enter and take 
 possession ; " and if the feoffee thereupon 
 or at any time thereafter during the life 
 of the feoffor entered upon the land, the 
 livery was good, but otherwise it was 
 void. One such livery suflBced for vari- 
 ous counties. Livery in Law might be 
 
 Livery of Seizin. — {Oontinued.) 
 made either to the feoffee personally, or 
 to his lawfully constituted attorney. 
 Wms. R. P. 138-9. 
 
 LLOYD'S BONDS. These are acknowl- 
 edgments by a borrowing company in 
 England under its seal of a debt incurred 
 and actually due by the company to a 
 contractor or other person for work done, 
 goods supplied, or otherwise, as the case 
 may be, with a covenant for payment 
 of the principal and the interest at a 
 future time. There are valid securities, 
 if issued bond, flde, and not a mere device 
 for evading the provisions of the Acts 
 regarding companies forbidding them to 
 borrow money, unless in re-payment of 
 the existing debt of the company. See 
 Godef roi and Shortt, 39. 
 
 LOCAL ACT OF PARLIAMENT. 
 
 Such an Act has for its object the interest 
 of some particular locality ; as the forma- 
 tion of a road, the alteration of the course 
 of a river, the formation of a public market 
 in a particular district, &c. See 1 M. & 
 W. 530. 
 
 LOCAL ACTION. An action is termed 
 local when all the principal facts on which 
 it is founded are of a local nature, as 
 where possession of land is to be recov- 
 ered, or damages for an actual trespass, 
 or for waste affecting land, or for any 
 other kind of injury affecting real prop- 
 erty, because in such a case the cause of 
 action relates to some particular locality, 
 which usually also constitutes the venue 
 of the action. But under the Judicature 
 Act, 1873, there is to be no local venue 
 for the trial of any action (Sch. r. 38). 
 Bee, also, titles Tbansitoby Action ; 
 Vbitob. 
 
 *LOCATIO. Letting or doing for 
 hire. Bee Bailment. 
 
 LOCUS IN QUO. The place in which 
 the cause of action arose, or where any 
 thing is alleged to have been done, in 
 pleadings is so called (1 Salk. 94). The 
 phrase is almost peculiar to actions of 
 trespass qua/re claiisum /regit. 
 
 LODGING-HOUSES. The keeper of 
 a lodging-house is not liable (as an inn- 
 keeper) for the loss of the goods brought 
 by a lodger to her house, provided she be 
 not guilty of a positive misfeasance. 
 Solder v. &m%, 8 C. B. (N. S.) 354. 
 
 LODGINGS. A person who lets lodg- 
 ings impliedly warrants that they are rea- 
 
212 
 
 LONG PABLIAMENT. — LORD'S DAY. 
 
 Lodgings. — {OonUnued.) 
 sonably fit for habitation {Smith v. Ma/r- 
 able, 11 M. & W. 5). Since the stat. 34 
 & 35 Vict. c. 79, a lodger's goods cannot 
 be distrained for the rent owing from his 
 landlady to the superior landlord. A 
 contract for mere lodgings is always deter- 
 minable upon notice by either party to 
 the other, a week's notice being that 
 usually given in the absence of any special 
 agreement; and this rule is not altered 
 although the rent should not be paid by 
 the week, but by longer periods. BigM 
 V. Darh/, 1 T. R. 159. 
 
 LONG PARLIAMENT. This Parlia- 
 ment assembled in 1640-1, and was never 
 formally dissolved. 
 
 LORD CHANCELLOR: ;S«« title Chan- 
 
 CELLOB. 
 
 LORD MATOR. The chief officer of 
 the Corporation of the City of London is 
 so called. The origin of the appellation 
 of "Lord," which the Mayor of London 
 enjoys, is attributed to the fourth charter 
 of Edward in., which conferred on that 
 officer the honor of having maces, the 
 same as royal, carried before him by the 
 Serjeants. He is annually nominated and 
 elected by the livery from amongst such 
 of the aldermen as have served the office 
 of sheriff. In his character of chief mag- 
 istrate of the city, the Lord Mayor pre- 
 sides at the Court of Aldermen in the 
 Inner Chamber, the Court of Common 
 Council, and the Court of Common Hall ; 
 and as such issues his precept for the 
 holding of any of these courts. He is 
 also nominally President of the Court of 
 Aldermen in the Outer Chamber (or Lord 
 Mayor's Court). 'He is chairman of every 
 committee which he attends ; also of the 
 commissioners of sewers, and has power 
 to summon them to a public meeting 
 whenever he thinks proper (11 Geo. 3, c. 
 39, s. 6). The corporation provide the 
 Lord Mayor with the Mansion House, 
 which they keep in repair at their own 
 expense, and annually grant a sum of 
 money amounting to nearly £8,000, and 
 also provide various officers at their own 
 expense to support the dignity of the 
 office. Puffing's Laws and Customs of 
 the City and Port of London. 
 
 LORD MAYOR'S COURT. This is a 
 Court of Record, of Law and Equity, and 
 is the chief court of justice within the 
 corporation of London. Its legal style is 
 ' ' The Court of our Lady the Queen, hold- 
 
 Lord Mayor's Court. — {Continued,) 
 en before the Lord Mayor and Aldermen 
 in the Chamber of the Guildhall of the 
 City of London." In legal consideration 
 and in conformity with the style of the 
 Court, the Lord Mayor and Aldermen are 
 supposed to preside ; but the recorder is 
 in fact the acting judge. All persons, as 
 well freemen as non-freemen, not being 
 under a,ny general incapacity which would 
 disable them from suing in the superior 
 Courts at Westminster, may sue in this 
 Court. As a Court of Common Law it 
 has cognizance of all personal and mixed 
 actions arising within the City and liber- 
 ties, without regard to the amount of the 
 debt or damages sought to be recovered ; 
 and if the gist of the action arise within 
 the City, the residence of the plaintiff or 
 defendant therein is immaterial. Emmer- 
 son's City Courts; Puffing's Laws and 
 Customs of the City and Port of London, 
 177, 3d ed. ; Brandon on Foreign Attach- 
 ments, and Notes of Practice. 
 See, also, title Attachment, Foreign. 
 
 LORDS SPIRITUAL AND TEMPO- 
 RAL. The lords spiritual compose one 
 of the constituent parts of our Parliament, 
 and consist of two archbishops and twen- 
 ty-four bishops ; and by the Act of Union 
 with Ireland (39 & 40 Geo. 3, c. 67) four 
 Irish lords spiritual, taken from the whole 
 body by rotation of sessions, were added, 
 who ranked next after the spiritual lords 
 of Great Britain ; but under the stat. 33 
 & 33 Vict. c. 42, these Irish lords spirit- 
 ual have ceased. The lords temporal con- 
 sist of all the peers of the realm, by 
 whatever title of nobility distinguished, 
 and form another constituent part of our 
 Parliament. 
 
 See, also, title Peers. 
 
 LORD AND VASSAL. The funda- 
 mental maxim of all feudal tenure is this: 
 that all lands were originally granted out 
 by the sovereign, and are therefore holden 
 either mediately or immediately from the 
 Crown. The grantor was called the pro- 
 prietor or lord, being he who retained the 
 dominion or ultimate property of the feed 
 or fee ; and the grantee, who only had 
 the use and possession, according to the 
 terms of the grant, was styled the feuda- 
 tory or vassal, which was only another 
 name for the tenant or holder of_the 
 lands. 
 
 iS«e titles Estates; Feudal System; 
 Tenure. 
 
 LORD'S DAT : See title Sunday. 
 
LOT.— MAYBOTE. 
 
 213 
 
 LOT. Certain duties, tolls, assess- 
 ments, or impositions are frequently so 
 termed. 
 
 See title Lot and Scot. 
 
 LOT AND SCOT (Sax. Uot, a chance or 
 lot, and seeat, a part or portion). Certain 
 duties which must be paid by those who 
 claim to exercise the elective franchise 
 within certaiu cities and boroughs before 
 they are entitled to vote. It is said that 
 the practice became uniform to refer to 
 the poor-rate as a register of "scot and 
 lot " voters, so that the term, when em- 
 ployed to define a right of election, 
 meant only the payment by a parishioner 
 of the sum to which he was assessed on 
 the rate. Rog. on Elec. 198, 6th ed. ; 1 
 Dougl. 129. 
 See, also, title Elbctobai, Pkanchisb. 
 
 LOTTEBT. Lotteries have been fre- 
 quently resorted to both by States and by 
 individuals for the purpose of raising 
 money, but they are proscribed by the 
 morality and industry of England. They 
 were declared a nuisance and prohibited 
 by 10 & 11 Will. 3, c. 17 ; and even for- 
 eign lotteries are forbidden by the 6 & 7 
 Will. 4, c. 66, to be advertised in Eng- 
 land. For an instance in which these 
 laws have been put in force, see AUport v. 
 Niitt, 1 C. B. 974 ; and lee title Wagbr- 
 
 DTG. 
 
 LOU AGE. This is the contract of hir- 
 ing and letting in French Law, and may 
 be either (1) of things, or (3) of labor. 
 The varieties of each are the following: 
 (1.) Letting of things, — 
 (as.) Bml a layer, being the letting of 
 
 houses ; 
 (S.) Bail d/erme, being the letting of 
 lands ; 
 {%) Letting of labor, — 
 
 (as.) Layer, being the letting of per- 
 sonal service ; 
 (J.) Bail a eheptel, being the letting 
 of animals. 
 
 LOTER : See title Louagb. 
 
 * LUGGAGE. A term synonymous 
 with baggage. 
 
 LUNACY is the common legal designa- 
 tion of insanity, or the state of being 
 non compos mentis. The law takes notice 
 of three degrees of lunacy: (1) Lunacy 
 which exempteth in crime; (3) Lunacy 
 which excuseth in contract ; and (3) Lu- 
 nacy which placeth the party and his 
 property under the protection of the 
 Crown. 
 
 Lunacy. — ( Oontmued.) 
 
 Criminal hinacy may be either total or 
 partial. And if total, than either natural 
 (dementia naturaUs), in which case it is 
 termed idiocy, or accidental (dementia ac- 
 cidentalis), which may be either perma- 
 nent or intermittent (i. e., accompanied 
 with "lucid intervals"), or willfully 
 brought on by the party himself (demen- 
 tia affeetata), e. g., in the case of drunk- 
 enness (see that title). If the lunacy be 
 partial, then the criminal definition of it 
 is that given in R. v. M''N(igTiten (10 C. 
 L. & P. 200), where the judges advised 
 the House of Lords to this efiect, that 
 notwithstanding the party did the act 
 complained of with a view, under the in- 
 fluence of insane delusion, of redressing 
 or avenging some supposed grievance or 
 injury, or of producing some public ben- 
 efit, he was nevertheless punishable ac- 
 cording to the nature of the crime com- 
 mitted, if he knew, at the time of com- 
 mitting such crime, that he was acting 
 contrary to law. 
 
 With reference to contract law the rule 
 is, that a lunatic is liable for necessaries, 
 and generally also on contracts executed 
 of which he has had the advantage, not- 
 withstanding they may not be for neces- 
 saries at all (MoUon v. Camwoux, 4 Ex. 17) ; 
 but that on all other contracts he is not 
 liable at all, not even although at the time 
 of contracting he betrayed no signs of lu- 
 nacy, and the other contracting party 
 was ignorant thereof. 
 
 With reference to the Chancellor and 
 Lords Justices' jurisdiction in lunacy, 
 this jurisdiction extends generally to per- 
 sons not capable of managing their own 
 afEairs, and therefore are properly deemed 
 of unsound mind, 7um compos Tnentis. 
 This jurisdiction is now most commonly 
 exercised under the Lunacy Regulation 
 Act, 1853 (16 & 17 Vict. c. 70), or where 
 the property is of small amount, under 
 the Lunacy Regulation Act, 1863 (35 & 
 36 Vict. c. 86). 
 
 *LYTAE. In Roman Law, a name 
 given to students of law in the fourth 
 year, from their being supposed to be able 
 to sohe any difficulty. Tayl. Civ. Law, 
 39 Burr. Diet. 
 
 M. 
 
 *MATBOTE. A compensation for 
 murder in ancient times, when corporeal 
 punishment was often commuted to pe- 
 cuniary fine. 
 
214 
 
 MAGNA CHART A.— MALA m SE. 
 
 MAGNA CHABTA. The great char- 
 ter of English liberty granted by, or 
 rather extorted from, King John, and af- 
 terward, with some alterations, confirmed 
 in Parliament by Henry HI. ^d Edward 
 I. It was called Magna Charta on ac- 
 count of its great importance, and partly 
 in contradistinction to another charter 
 {Ca/rta de Foreata), which was granted 
 about the same time. The provisions of 
 this charter extend, not only to the ad- 
 ' ministration of justice (regulating the 
 vaiious jurisdictions, temporal and eccle- 
 siastical), but also to the personal hberty 
 of the subject, the liinits of taxation of 
 his property, the rights of foreign mer- 
 chants within the realm, as well during 
 peace as in times of war, and also the 
 liberties and privileges of the church. 
 It contains also numerous provisions of a 
 purely temporary nature, intended to 
 remedy the prevailing abuses of the 
 times. 
 
 * MAIDEN. An instrument once used 
 in Scotland for beheading criminals. 
 
 MAIDEN ASSIZE. When, at the as- 
 sizes, no person has been condemned to 
 die it is termed a "maiden assize." 
 
 MAIDEN RENTS. A fine paid by the 
 tenants of some manors to the lord for a 
 Ucense to marry a daughter. Oowel. 
 
 MAIHEM, or MATHEM. The vio- 
 lently depriving another of the use of such 
 of his members as may render him the less 
 able ia fighting, either to defend himself, 
 or to annoy his adversary; e. g., the cut- 
 ting off, or disabling, or weakening a 
 man's hand or finger, striking out his eye 
 or foretooth, or depriving him of those 
 parts the loss of which in all animals 
 abates their courage, are considered as 
 mayhems ; hence, to do a person such an 
 external injuiy as merely detracts from 
 his personal appearance is not considered 
 as mayhem, because it does not weaken 
 him, but only disfigures him. 1 Hawk.- 
 c. 44. 
 
 *MAINAN. The thing stolen found 
 in the hands of the thief. Bouv. Diet. ; 
 4 Bl. Com. 307 ; Tid. 71. 
 
 MAINPRISE (from the Fr. main, hand, 
 a.ndL prendre, to take). One of the means 
 of remedying the injury of false impris- 
 onment was by a writ called a writ of 
 mainprise, directed to the sheriff (either 
 generally, when any man was imprisoned 
 for a bailable ofEense, and bail had been 
 refused ; or specially, when the offense or 
 
 Mainprise. — (^OomtAnuML.) 
 cause of commitment was not properly 
 bailable below), commanding him to take 
 sureties for the prisoner's appearance, 
 usually called mainpernors, and to set 
 him at large. Mainpernors differ from 
 bail, m that a man's bail may imprison or 
 surrender him up before the stipulated 
 day of appearance ; whereas mainpernors 
 can do neither, but are simply sureties for 
 his appearance at the day ; bail are only 
 sureties that the party be answerable for 
 the special matter for which they stipu- 
 late ; mainpernors are bound to produce 
 him to answer all charges whatsoever. 
 The word mainprise is used in various 
 ways ; thus when a man is committed to 
 those who undertake he shall appear at 
 the appointed day (i. e., to his mainper- 
 nors), he is said " to be let to mainprise;" 
 and a man who may be so mainprised or 
 delivered to mainpernors is said to be 
 mainpernable. Where an offense was not 
 bailable, the justices were frequently, by 
 Act of Parliament, directed "to commit 
 such offender or offenders to the common 
 gaol of the county, there to remain with- 
 out bail or mainprise." 43 BUz. c. 2, s. 
 4; Dyer, 373 (31); 4 Inst. 179. 
 See, also, title Bail. 
 
 * MAINSWORN. Perjured or forsworn 
 with one's hand on the book. (North of 
 England.) Hob. 125. 
 
 MAINTENANCE. This word has va- 
 rious senses : — 
 
 (1.) It designates an offense bearing a 
 near relation to baiTatry, and which con- 
 sists in oflSciously intermeddling in a suit 
 that in no way belongs to one, as by 
 maintaining or assisting either party with 
 money, or otherwise taking great pains 
 to assist the plaintiff' or defendant in the 
 suit, although having nothing to do with 
 it. Les Termes de la Ley ; Findon v. 
 ParTixfr, 11 M. & W. 675. 
 
 (2.) In another sense, it denotes the 
 prpvision made, either by deed or will, or 
 by order of the Court of Chancery, for 
 the support and briaging up of children 
 during their minorities. The Court is 
 now able, in a proper case, to make the 
 requisite order on summons, without bill 
 filed. 
 
 See title Inpabtts. 
 
 MALA IN SE imih in themaehes). All 
 things which are evil in themselves are so 
 termed, in contradistinction to those 
 things which are not evil in themselves, 
 but are only forbidden by the laws, and 
 
MALA PROHIBIT A.— MANDAMUS. 
 
 215 
 
 Mala In Se. — (Oontinued.) 
 
 which are therefore called mala proTMta, 
 or forbidden evils, and sometimes mala 
 quia proMbita, to indicate that they are 
 evils by reason of the prohibition only. 
 
 MALA PROHIBITA : See title Mjlla 
 
 IN SE. 
 
 MALICE (malitia). In its legal sense, 
 this word does not simply mean ill-will 
 against a person ; but signifies a wrong- 
 ful act, done intentionaUy, without just 
 cause or excuse. Thus, if I intentionally 
 and without just cause or excuse gave a 
 perfect stranger a blow likely to produce 
 death, I should, in legal contemplation, 
 , do it of malice, because I did it inten- 
 tionaUy, and without just cause or excuse. 
 So, if I maim cattle, even without know- 
 ing whose they are, I should, in legal 
 construction, do it of malice, because it 
 would be a wrongful act, and be done in- 
 tentionally, without cause or excuse. 
 See^e?" Bayley, J., in Bromage v. Prosser, 
 4 B. & 0. 355. Malice is regarded under 
 the following varieties of aspect -.-^ 
 
 (1.) Malice in Law, — being that spe- 
 cies of it which is described above ; and 
 (2.) MaUce in Fact, which again pre- 
 sents two sub-varieties, viz : — 
 
 (a.) Personal malice, i. «., spite against 
 some particular individual ; and 
 (J.) MaUce against the world generally, 
 without reference to any partic- 
 ular individual, e. g., whei-e a 
 person throws a bottle of vitriol 
 over a wall iato the public street 
 or liighway, not knowing or 
 caring who is passing in the 
 street or on the highway at the 
 time. 
 
 MALICE PREPENSE (from the Latin 
 malitia, malice, aiid the Fr. pmser, to 
 think, B,nd.pre, beforehand). Malice afore- 
 thought, i. e., deliberate, predetermined 
 malice. 3 Roll. Rep. 461. 
 
 MALICIOUS PROSECUTION. A per- 
 son who has been unjustly prosecuted for 
 any crime, or who has causelessly been 
 made a bankrupt, may bring an action for 
 a malicious prosecution against the pros- 
 ecutor or the petitioner as the case may 
 be ; but for the success of his action, he 
 must prove two things: — (1.) The fact of 
 malice ; and (3.) The absence of all rea- 
 sonable or probable cause for the defend- 
 ant's conduct. The action for a malicious 
 arrest stands on the like footing, but can 
 hardly occur at the present day. In 
 
 Malicious Prosecution. — ( Continued.) 
 England, imprisonment as weU. on mesne 
 as on final process having been abolished. 
 
 ♦MALVERSATION. 
 
 mitted in ofiice. 
 
 Offenses com- 
 
 MANDAMUS. This is either (1) the 
 prerogative writ so called, or (3) the 
 ordinary writ of injunction. The pre- 
 rogative mandamus is a writ which issues 
 in the king's name out of the Court of 
 King's Bench, commanding the comple- 
 tion or restitution of some right. The 
 power of issuing writs of mMnda/m/m is 
 one of the highest and most important 
 branches of the jurisdiction of the Court 
 of King's Bench, and in general belongs 
 exclusively to that Court ; and it may be 
 compared to a bill in Equity for a specific 
 performance. It is used principally for 
 public purposes, and to enforce the per- 
 formance of public rights or duties. A 
 writ of mandam/m, however, does operate 
 in affording specific relief, and enforcing 
 some private rights when they are with- 
 held by a public oflScer, and though prin- 
 cipally for the admission or restitution to 
 a public oflBce, yet it extends to other 
 rights of the person or property. A 
 m/mdam/m is not generally granted by 
 the Court, excepting when the party 
 applying for it has no other specific 
 remedy. It issues to compel a removed 
 clerk to deliver up books of a public cor- 
 porate company, to compel overseers to 
 deliver up parish books to their success- 
 ors ; to compel a lord and steward of a 
 copyhold manor to admit the tenant ; it 
 also issues to inferior Courts and judges 
 thereof, and justices of the peace and 
 other public functionaries, to compel 
 them to proceed according to their re- 
 spective duties. There was also a man- 
 da/nma formerly much in use which issued 
 to the escheator for the finding of an 
 office after the death of one who had 
 died the king's tenant, and was the same 
 as the writ of diem, clausit extremum, 
 excepting that the diem ekmsit extremum 
 went out within a year after the death, 
 whereas the mandamus did not go out till 
 after the year, and when no diem clausit 
 extremum had previously been sued out, 
 or had been sued out to no effect. 1 
 Chitt. Gen. Pract. of the Law; Les 
 Termes de la Ley; C. L. P. Act, 1854, ss. 
 75-77. 
 
 The ordinary mMndmnus is to all in- 
 tents and purposes an injunction {see that 
 title), and issues under the provisions of 
 
216 
 
 MANDAT. — MANUMISSION. 
 
 Mandamus. — {Ccmtkmed.') 
 
 the C. L. P. Act, 1854 (ss. 68-74), to 
 
 compel the defendant in an action to 
 
 perfortn any duty, being of a public 
 
 character, in which the plaintiff has an 
 
 interest. 
 
 MANDAT. In Trench Law is the 
 mandatwm of Roman, and the Chratwitoua 
 lailment of English Law. 
 
 See title Batlment. 
 
 9IANBATE (ma/rtdaturri). A contract 
 by which one employs another to act for 
 him in the management of his affairs, or 
 in some particular department of them, 
 of which employment the person accepts 
 and agrees to act. He who so gives the 
 employment is called the mandator, and 
 he who accepts it the mandata/rius. The 
 word was also sometimes used to signify 
 a judicial command of the king or any of 
 his justices to have any thing done for 
 the benefit and dispatch of justice, and 
 appears to have been somewhat analo- 
 gous to the writ of mandam,us. Cowel. 
 
 * MANIFEST. A written instrument 
 containing an account of the cargo of 
 a ship, with other particulars. 
 
 MANNER AND F R M (ifot^o «« 
 formd). Formal words introduced at 
 the conclusion of a traverse; and their 
 object is to put the party whose pleading 
 is traversed, not only to the proof that 
 the matter of fact denied is in its general 
 effect true as alleged, but also that the 
 manner and form in which the fact or 
 facts are set forth are also capable of 
 proof. See Steph. PI. 314, 315, 4th ed. ; 
 Neale & M'Kenzie, 3 Or. M: & R. 67; 1 
 Ch. PI. 513. 
 
 MANOR (manerium). A manor seems 
 to have been a district of ground held by 
 great personages. It is compounded of 
 various things, as of a mansion-h'ouse, 
 arable land, pasture, meadow, wood, rent, 
 advowson, court baron, and such like. A 
 manor, to be such, must have continued 
 from time immemorial ; for at the present 
 day, or since the stat. Quia Emptores 
 (18 Edw. 1, c. 1), a manor cannot be 
 made, because the process of subinfeuda- 
 tion has been abolished, and a Court 
 Baron cannot now be made, and a manor 
 cannot exist without a Court Baron, and 
 suitors and freeholders to the amount of 
 two at the least ; for if all the freeholds 
 except one escheat to the lord, or if he 
 purchase all except one, his manor is at 
 once gone and dead. A manor by repu- 
 
 Manor. — ( GonUnv^d.) 
 tation, however, but which has ceased to 
 be a legal manor, by defect of suitors to 
 the Court, may yet retain some of its 
 privileges, as a preserve for game, and the 
 lord may still appoint a gamekeeper 
 thereto. Lea Termes de la Ley; Watlnns 
 on Copyholds. 
 
 With reference to the legal content of 
 the word manor, it seems that without 
 the addition of the word "appurtenan- 
 ces," it will pass the following properties, 
 viz: — 
 
 (1.) The demesnes, i. e., the lands of 
 which the lord is seized within 
 the manor;* 
 (3.) The freehold of all the lands held 
 by copyhold or other customary' 
 tenants ; 
 (3.) The wastes; 
 (4.) Fealty, suit of Court, rents, and 
 
 generally all the services ; 
 (5.) Courts Baron, with fines and per- 
 quisites annexed thereto ; 
 (6.) Courts Leet, with the like fines 
 
 and perquisites; 
 (7.) Franchises; and 
 (8.) Advowsons appendant. 
 Many manors which have been de- 
 stroyed are still reputed manors, and will 
 pass in a deed by the description of 
 manor. 
 
 MANSLAUGHTER. Is a criminal 
 oflense ; it is defined as homicide feloni- 
 ous, but without premeditation; and it 
 may be either (a) involuntary, as where a 
 man doing an unlawful act not amount- 
 ing to felony by accident kills another, or 
 where by culpable neglect of duty he 
 occasions another's death ; or (b) volun- 
 tary, as when upon a sudden quarrel, two 
 persons fight, and one of them kills the 
 other, or where a man greatly provokes 
 another by some personal violence and 
 the other immediately kills him. 
 
 MANUMISSION (manwrrdssio). The 
 making a bondman free, which in the 
 feodal ages was a frequent occurrence. 
 Manumission was either express or im- 
 plied. Manumission express was done by 
 the lord granting to his villein a deed of 
 enfranchisement. Manumission implied, 
 was done by the lord entering into an 
 obligation with his villein to pay him 
 money at a certain day, or granting him 
 
 * But demesnes previously granted in fee do 
 not, on a repurchase of them by the lord, be- 
 come part of the manor again, as they would 
 do upon an escheat. Detoofterois v. Delacherois, 
 n H. L. C. 62. 
 
MARITAGIUM.— MARRIAGE. 
 
 217 
 
 Manumission. — (^Continued.) 
 an annuity, or leasing lands to him by 
 deed for a tenn of years, or doing any 
 other similar act which would imply that 
 he treated with his villein upon the foot- 
 ing of a freeman {Lea Termes de la Ley). 
 Similar modes of dealing with a a&rvu» 
 had in Roman Law the Eke effect of an 
 implied manumission ; and in particular 
 the mere circumstance of the master de- 
 scribing his slave in a written document 
 as his son {JUms) had the effect of ren- 
 dering him a freeman, although not a 
 son. Just. Inst. i. 11, 12. 
 
 MARITAGIUM. Was the wife's por- 
 tion in English Law and the dos of Roman 
 Law, and is to be distinguished from 
 matrimonium, which was land inherited 
 from one's mother. It also signified the 
 power which the lord or guardian in 
 chivalry had of disposing of his infant 
 ward in matrimony. It is also said to 
 have been that profit which might accrue 
 to the lord by the marriage of one under 
 age who held his lands of him by knight 
 service. Cowel. 
 
 MARKET. In its legal signiQcation 
 may be defined to be the liberty or priv- 
 ilege by which a town or lord is enabled 
 to keep a market (Old Nat. Brev. 149. 
 See, also, title Fkakchisb). The Market 
 and Fairs Clauses Act (10 & 11 Vict. 
 c. 114) consolidates in one Act the pro- 
 visions usually contained in special Acts 
 for constructing and regulating fairs and 
 markets; and under the stat. 31 & 33 
 Vict. c. 51, the usual days for holding 
 fairs, if inconvenient, may on representa- 
 tion to the Home Secretary be altered, a 
 notice of the alteration being published 
 in the Gazette. The fairs of the metropo- 
 lis are regulated by the stats. 3 & 3 Vict, 
 c. 47, and 31 & 33 Vict. c. 106. No one 
 may place a stall in a market without 
 leave from the owner of the soil {North- 
 ampton [Mayor] v. Ward, 1 Wils. 107), 
 and trespass will lie for so doing. 2for- 
 wich (Mayor) v. Swan, 3 W. Bl. 1116. 
 See, also, next title. 
 
 MARKET OVERT (open marhet). 
 Selling goods in market overt means sell- 
 ing them in an c^en market, aa opposed 
 to selling them privately or in a covert 
 place ; the former kind of sale effects a 
 change in the property of the things so 
 sold, even as against the true owner, e. g., 
 in the case of stolen goods ; but a sale out 
 of market overt does not. In the country, 
 the market-place or spot of ground set 
 
 Market Overt. — ( Continued.) 
 apart by custom for the sale of goods 
 and wares, &c., is, in general, the only 
 market overt. In London, however, a 
 sale in an open- shop of proper goods is 
 equivalent to a sale in market overt ; for 
 every day, except Sunday, is a market 
 there . So it would appear is the case in 
 Bristol, or elsewhere, when warranted by 
 custom. Dub. Mo. 635 ; 5 Co. 83 c ; cited 
 in Com. Dig. tit. Market (E). And see 
 generally the Case of Maarket Overt, Tud. 
 L. C. Mer. Law, 713. 
 
 MARKSMAN. A deponent in an affi- 
 davit who cannot write his name, but 
 makes his mark, or cross instead, is so 
 termed (3 Q. B. 530, n.[o.] ; 4 Dowl. P. C. 
 765). The proof of such a signature by 
 comparison of handwriting is excluded, 
 a mark not presenting sufficient data of 
 comparison. 
 
 MAROUE AND REPRISAL, LET- 
 TERS OF. These words, "marque and 
 reprisal," are frequently used as synony- 
 mous ; but taken in their strict etymolog- 
 ical sense, the latter signifies a taking in 
 retwm; the former, the passing the fron- 
 tiers (mwches) in order to such taking. 
 Letters of marque and reprisal are grant- 
 able by the law of nations, whenever the 
 subjects of one state are oppressed and in- 
 jured by those of another, and justice is 
 denied by that state to which the oppres- 
 sor belongs ; and the party to whom these 
 letters are granted may then seize the 
 bodies or the goods of the subjects of the 
 state to which the ofifender belongs, until 
 satisfaction be made, wherever they hap- 
 pen to be found. Reprisals are to be 
 granted only in case of a clear and open 
 denial of justice. They are regulated in 
 England by the stat. 4 Hen. 5, c. 7. They 
 are of course granted only in times of 
 peace, and for a cause which is not suffi- 
 cient to provoke an actual war between 
 the two countries. But at the present 
 day, in consequence partly of treaties 
 and partly of the practice of nations, the 
 makmg of reprisals is confined to the 
 seizure of commercial property on the 
 high seas, by public cruisers, or by pri- 
 vate cruisers specially authorized thereto. 
 See, also, title Pbivatbbring. 
 
 MARRIAGE. The law of marriage 
 depends partly on Statute and partly on 
 the Common Law. Tlie most important 
 statute upon the subject was the 36 Geo. 
 3, c. 33 (Lord Hardwicke's Act), by which 
 the publication of banns, and the solem- 
 
218 MARRIAGE, BREACH OF, ETC.— MARRIAGE SETTLEMENTS. 
 
 Marriage. — ( Cmtimied.) 
 nization in one of the churches where 
 they had been published, were required ; 
 and that statute also enacted that two 
 witnesses besides the miiflster should be 
 present, and that the register should be 
 signed by the minister, parties, and wit- 
 nesses. This statute, referring only to 
 the formalities of the marriage, was 
 strictly territorial or local {see title Lex 
 Looi Actus), whence Gretna Green Mar- 
 riages were valid (Brooh v. Brook, 9 H. 
 L. 0. 193). The stat. 3 Geo. 4, c. 75, 
 declared marriages of infants by license, 
 without consent, vaUd. The stat. 6 Geo. 
 4, c. 93, and other subsequent statutes, 
 provide for the validity of marriages cele- 
 brated in churches and chapels in which 
 banns have not been usually published. 
 And under other statutes, commencing 
 with the stat. 6 & 7 Will. 4, c. 85, mar- 
 riages by or without licenses may be sol- 
 emnized by virtue of the superintendent 
 .registrar's certificate. 
 
 By the Common Law of England the 
 requisites to the validity of marriage are 
 the following -.-^ 
 
 (1.) The presence of a priest in holy 
 orders {Oathe/rwooa y. Oaslon, 13 
 M. & W. 261 ; Beg. v. MUlis, 10 
 01. & F. 534) ; 
 (3.) The presence of witnesses {Beam- 
 ish V. Beamish, 9 H. L. 0. 274), 
 or at least of one witness ( Wing 
 V. Taylor, 3 S. & T. 278) ; 
 (8.) The consent of the parties [Harrrod, 
 
 V. Harrod, 1 K. & J. 4) ; 
 (4.) The formalities of marriage as de- 
 fined by the lex loei actus must 
 be observed {Brooh v. Brooh, 9 
 H. L. 0. 193) ; 
 (5.) The essentials of marriage as de- 
 fined by the lex domicilii, includ- 
 ing therein all questions of 
 personal capacity or incapacity, 
 must be observed {Brooh v. 
 Brook, supra); 
 (6.) The parties must not be within the 
 prohibited degrees of consan- 
 guinity or of afiinity; «nd for 
 that purpose illegitimate rela- 
 tionship counts; but 
 (7.) The consent of the parents is not 
 necessary {Bex v. Birmingham, 2 
 M. & R. 330). 
 See, also, title HnsBAND and "Wipe. 
 
 MARRIAGE, BREACH OF PROMISE 
 
 OF. The promise, to support an action, 
 must have been made to the plaintiff 
 {Gole V. Cottingham, 8 C. & P. 75). More- 
 
 Marriage; Breach of, etc. — {ConPd.) 
 over, it must appear, not only that the de- 
 fendant proposed or even promised to 
 marry the plaintiff, but also that she 
 promised to marry him ; for in this as in 
 all other cases of contract mutuality is an 
 essential requisite {see title Oontbact) 
 {Veneall v. Veness, 4 F. & F. 344). The 
 0. L. P. Act, 1852, Sch. B, provides sim- 
 ple counts for this action, suitable to the 
 circumstances of the generality of cases. 
 With reference to the evidence of the 
 promise, the parties themselves, although 
 formerly incompetent as witnesses (14 & 
 15 Vict. c. 99, s. 4), were made compe- 
 tent by the stat. 33 & 33 Vict. c. 68. 
 Various defenses may be raised to the ac- 
 tion, e. g., (1.) General bodily infirmity 
 arising subsequently to the contract {Atcli- 
 inson v. Baker, Peake's Add. Oa. 103), 
 not being, semble, mere infirmity arising 
 from disease {BJall v. Wright, El. Bl. & 
 El. 746) ; (3.) Prior unchastity of the fe- 
 male, not discovered until after the con- 
 tract ( Wltarton v. Lewi», 1 C. & P. 529) ; 
 and (3.) Mutual releases. Dams v. Bom- 
 ford, 6 H. & N. 345. 
 
 MARRIAGE SETTLEMENTS. These 
 are settlements made on marriage, either 
 by the parties themselves to the marriage 
 contract, or one of them, or by some 
 parent or other relation of the parties, or 
 of one of them on their behalf. Such 
 settlements, if made before marriage, are 
 called ante-nuptial, if made after the mar- 
 riage, are called post-nuptial; and there 
 is this broad distinction between ante- 
 nuptial and post-nuptial settlements, that 
 the former are equivalent to purchases for 
 value, while the latter are considered as 
 voluntary conveyances only, and the re- 
 spective natural efiects of that distinc- 
 tion attach to the respective settlements. 
 Consequently, an ante-nuptial settlement 
 receives the like favor in Equity and also 
 at Law which a purchase for value re- 
 ceives, while a post-nuptial settlement is 
 subject to the like liabilities to be defeated 
 both in Equity and at Law which every 
 voluntary settlement is subject to. Two 
 rules, however, have been established, 
 which partially favor post-nuptial settle- 
 ments above purely voluntary settlements, 
 namely: — 
 
 (1.) If the slightest addition of value, 
 not notoriously colorable, is added to the 
 meritorious consideration of blood or 
 natural affection, which already under- 
 lies the settlement, then the post-nuptial 
 settlement is taken out of the category 
 
M^fiRIACJE SETTLEMENTS. 
 
 219 
 
 Marriage Settlements. — (GmUnued.) 
 of voluntary settlements altogether, and 
 is placed in the category of settlements 
 for value, -with all the corresponding 
 incidents of advantage attaching to the 
 latter (Hewison v. Negus, 16 Beav. 594) ; 
 and 
 
 (2.) If the post-nuptial settlement has 
 been preceded by marriage articles en- 
 tered into previously to the marriage, then 
 the post-nuptial settlement relates back 
 to the date of the articles, and becomes 
 practically ante-nuptial, or equivalent to 
 a settlement for value ; and it does not 
 matter whether the articles are in wWting 
 or rest in parol merely {Dundas v. Dutens, 
 3 Cox, 235 ; Warden v. Jmea, 3 De G. & 
 J. 76) ; the subsequent settlement in wri- 
 ting supplying in the latter case, before 
 any action has arisen, the original defect 
 of writing. Bailey v. Sweeting, 9 C. B. 
 (N. S.) 843; BUI v. Bament, 9 M. & W. 
 40. 
 
 Also by the Bankruptcy Act, 1869 (33 
 & 33 Vict. c. 71), s. 91, the following pro- 
 visions have been made with reference to 
 post-nuptial settlements by traders : — 
 
 I. With reference to the husband's prop- 
 erty in his own right, — 
 
 (1.) Any post-nuptial settlement made 
 within two years of the subsequent bank- 
 ruptcy of the trader is ipso facto void 
 upon the bankruptcy ; and 
 
 (2.) Any post-nuptial settlement made 
 within ten years of the subsequent bank- 
 ruptcy of the trader, and outside of the 
 first two years thereof, is also void upon 
 the bankruptcy, until proof of bonajides. 
 
 II. With reference to the husband's 
 property in right of his wife, — 
 
 (3.) Any post-nuptial settlement by a 
 trader on his wife and children is good, 
 notwithstanding the bankruptcy, if the 
 property have accrued during the cover- 
 ture. 
 
 Also, by the same Act, and the same sec- 
 tion thereof, it is provided, that, with refer- 
 ence to covenants and contracts made be- 
 fore marriage by a trader to settle future 
 property, yet to acquire, all such cove- 
 nants and contracts shall be void upon the 
 trader's bankruptcy, unless prior to such 
 bankruptcy the property referred to has 
 been both acquired and settled pursuant 
 to the covenant or contract. Mb pa/rte 
 Bishop, In re Tonnies, W. N. 1873, pp. 81, 
 135. 
 
 Assuming that a marriage settlement 
 is ante-nuptial, or (although post-nup- 
 tial) is, for any one or more of the fore- 
 going reasons, valid, the following ques- 
 
 Marriage Settlements. — ( ConUmied. ) 
 tion arises upon it, namely, what is the 
 extent of the marriage consideration? 
 The general rule is, that the consideration 
 of marriage supports only Umitations to 
 the intended husband and wife and the 
 expected issue, and not limitations to any 
 other persons (Johnson v. Legard, 6 M. & 
 S. 60) ; but to this rule there are two ex- 
 ceptions, namely, — 
 
 (a.) Settlements made previously to 
 and in contemplation of a second 
 marriage, upon the issue of a 
 former marriage (Olarhe v. 
 WrigU, 6 H. & N. 849) ; and 
 (6.) Settlements made previously to, 
 and in contemplation of, a first 
 marriage upon the issue of either 
 of the marrying parties by a fu- 
 ture marriage. Jenkins v. Key- 
 mis, 1 Lev. 150 ; Clayton v. Wil- 
 ton, 3 Mad. 303. 
 There is also, speaking with a rough 
 accuracy only, a third exception, namely : 
 (c.) Settlements made upon collaterals, 
 if there is any person purchasing 
 on their behalf ; but the vahdity 
 of such Umitations to collaterals 
 clearly depends upon the money 
 consideration and not on the 
 marriage consideration alone. 
 Heap V. Tonge, 9 Hare, 90. 
 The peculiarity which attaches to mar- 
 riage as a consideration is this, that, un- 
 like other considerations, when the mar- 
 liage consideration has once had effect, 
 the parties cannot be remitted to their 
 original positions, the consideration not 
 admitting, like a money sum, of being 
 repaid or returned. The law regards the 
 consideration of marriage in a sacred 
 light. Where, therefore, the sacredness 
 of marriage is made a mere pretext for 
 committing a fraud, as where a trader who 
 has been already living in concubinage 
 with a woman marries her on the eve of 
 his bankruptcy, and previously to such 
 marriage settles all or a material part of 
 his property on her, and his expected 
 issue by her, the marriage consideration 
 being clearly fictitious will be disregarded 
 by the Court, and the settlement, al- 
 though it is ante-nuptial, will be set aside 
 upon the trader's bankruptcy, or as 
 against his creditors ( Golumbine v. Penliall, 
 1 Sm. & Giff. 328 ; Bulmer v. Sunter, L. 
 R. 8 Bq. 46), the wife being in such cases 
 presumed to have notice of the husband's 
 embarrassment — a presumption which, 
 perhaps, would hardly be rebuttable by 
 evidence. 
 
220 
 
 MARSHAL.— MARSHALSEA. 
 
 MARSHAL. There are, or used to be, 
 several officers of this name, but those 
 which are more particularly connected 
 with law are (1.) The marshal of, the 
 king's house or knight marshal, whose 
 special authority is in the king's palace, 
 to hear and detei-mine all pleas of the 
 Crown, and to punish all faults commit- 
 ted within the verge, and to hear and 
 judge of suits between those of the king's 
 household; (3.) The Marshal of the 
 Queen's Prison, who, previously to the 
 stat. 5 & 6 Vict. c. 33, was called the 
 Marshal of the King's Bench Prison, and 
 had the custody of the King's Bench 
 Prison; (3.) The Marshal of the Ex- 
 chequer, to whose custody that Court 
 committed the king's debtors for secur- 
 ing payment of their debts, and who also 
 assigned sheriffs, escheators, customers, 
 and collectors their auditors,bef ore whom 
 they had to account. Pleta, lib. 3, c. 4, 
 5; Cowel. 
 
 MARSHALLING OF ASSETS. As it is 
 
 right that every claimant upon the assets 
 of a deceased person should be satisfied 
 (if his claim be just) so far as that object 
 can be effected by any arrangement con- 
 sistent with the nature of the respective 
 claims of the creditors in general, it has 
 been long a general principle of Equity 
 that if a claimant has two or more funds 
 to which he may resort, a person having 
 an interest in one only of such funds has 
 a right to compel the former to resort to 
 the other or others of them, if that is 
 necessary for the satisfaction of both. 
 This principle is not confined to the ad- 
 ministration of the estate of a person de- 
 ceased, but applies wherever the ejection 
 of a party having two funds will disap- 
 point the claimant having the single fund. 
 Thus, where A., a creditor, can resort to 
 more than one fund of the deceased, and 
 B., another creditor, can resort -to only 
 one, then in such case A. shall re- 
 sort to that fund on which B. has no 
 claim, and thus both will be satisfied; 
 and this is termed marshalling of assets. 
 
 The question who are entitled to mar- 
 shal, and against whom, is one of very 
 considerable complexity, but may be con- 
 veniently explained in the following 
 manner : ' 
 
 Upon referring to the title Adminis- 
 TKATiON OF ASSETS, it wiU be seen that 
 there is an order usually observed in ap- 
 plying the properties which are applica- 
 ble in payment of debts ; now, by substi- 
 tuting in the same order the various per- 
 
 Marshalling of Assets. — {Oontinued.) 
 sons to whom these various properties 
 would go if there were no debts to pay, 
 and to whom they do go so far as they 
 are not exhausted by that payment, we 
 obtain the following list of persons enti- 
 tled to participate in the property of the 
 deceased, viz. : 
 
 (1.) Next of kin; 
 
 (3.) Heir-at-law; 
 
 (3.) Heir-at-law ; 
 
 (4.) Charged devisees and charged leg- 
 atees ; X 
 
 (5.J Uncharged pecuniary legatees, and 
 uncharged residuary devisees ; 
 
 (6.) Uncharged specific devisees, and 
 uncharged specific legatees ; and 
 
 (7.) Appointees. 
 
 Now the general rule of marshalling is 
 this, That if any person in the above list 
 is disappointed of his benefit under the 
 will through the creditor seizing upon 
 (as he may) the fund intended for him, 
 such disappointed person may recoup or 
 compensate himself for that disappoint- 
 ment by similarly going against the fund 
 intended for and disappointing in his 
 turn any one or more of the persons prior 
 in the above list ; and such secondly dis- 
 appointed person or persons may in his 
 or their turn do the like against those 
 prior to him or them ; so that eventually 
 the next of kin have to bear the disap- 
 pointment which was occasioned by the 
 act of the creditor. Moreover, persons 
 who stand in the same position in the 
 above list may have contribution (if not 
 compensation) as against each other. 
 But no one has any right to compensation 
 as against persons posterior to himself in 
 the above list. 
 
 Bee, also, title Administbation of 
 Assets. 
 
 MARSHALSEA. The court or seat of 
 the marshal of the king's house. This 
 Court was originally held before the 
 steward and marshal of the king's house, 
 and was instituted to administer justice 
 between the king's domestic sei-vants, in 
 order that they might not be drawn into 
 other Courts, and thus deprive the king 
 of their services. This Court latterly 
 merged into the palace exmrt (ewnapal- 
 atii) which was erected by King Charles 
 I., to be held before the steward of the 
 household and knight marshal, and the 
 steward of the Court or his deputy, with 
 jurisdiction to hold plea of all manner of 
 personal actions which should arise be- 
 tween any parties within twelve miles of 
 
MARSH ALSEA PRISON.— MASTER IN CHANCERY. 
 
 221 
 
 Marshalsea. — ( Continued.) 
 
 the king's palace at Whitehall. The 
 Court was held once a week, together 
 with the ancient Court of Marshalsea, in 
 the borough of Southwark, and a writ of 
 error lay from there to the Court of King's 
 Bench. The business of this Court has 
 of late years much decreased, owing to 
 the new Courts of request of conscience 
 and the County Courts that have since 
 been established. The word ' ' Marshal- 
 sea " is also sometimes taken for the 
 prison belonging to the Court of Queen's 
 Bench, commonly called the Queen's 
 Bench Prison, but by 5 Vict. c. 22, the 
 style of it is changed to the Queen's 
 Prison. 
 
 See title Marshalsea Pbison. 
 
 MARSHALSEA PRISON. This prison, 
 which was also styled the Prison of the 
 Marshalsea of Her Majesty's Household, 
 was a prison for debtors, and for persons 
 charged with contempt of Her Majesty's 
 Court of the Marshalsea ; the Court of the 
 Queen's Palace of Westminster, common- 
 ly called the Palace Court, and the High 
 Court of Admiralty ; and also for Admir- 
 alty prisoners under sentence of courts 
 martial. By 5 Vict. c. 23, this prison, 
 the Fleet, and the Queen's Bench, were 
 consolidated imder the title of the 
 Queen's Prison. See 5 Vict. o. 22; 6 
 Jur. 254. 
 
 MARTIAL LAW. The law which is 
 properly designated Martial Law consists 
 of no settled code, but of the will and 
 pleasure of the king or his lieutenant; for 
 in the time of war, on account of the 
 great necessity there is for guarding 
 against dangers that often arise, and 
 which require immediate attention, the 
 king's power is absolute and his word is 
 law. Nevertheless, martial law in that 
 sense does not exist in time of peace 
 {Qramtv. Gould, 2 H. Bl. 69, 100); and 
 the law of Courts Martial, sometimes 
 called Military and Naval Law, is to be 
 distinguished from it as that law which 
 governs soldiers and sailors as such in 
 times of peace, and for the due adminis- 
 tration of which there are special Courts 
 military or Courts naval provided. Yet 
 so jealous of these jurisdictions is the 
 Common Law of England that they have 
 continuance for one year only being an- 
 nually reconstituted by the Mutiny and 
 Marine Mutiny Acts which are passed 
 at the beginning of each session of Par- 
 liament. 
 
 MASTER. This is a name descriptive 
 of various officers or offices in the law, 
 several of which have in recent times been 
 abolished. For a description of each, see 
 the several particular titles following. 
 
 MASTER IN CHANCERY. The mas- 
 ters in Chancery were officers of that 
 Court whose duty it was to make inquir- 
 ies (when so required by the Court) into 
 matters which, from the constitution of 
 the Court, it could not conveniently, with- 
 out the assistance of such officers, make 
 for itself, and to report to the Court their 
 findings or conclusions with respect to 
 such matters. The duties of these masters 
 were of a mixed character, being partly 
 judicial and partly ministerial, the powers 
 which they possessed in both respects 
 having been delegated to them by the 
 Court. Whenever a master had acted in 
 obedience to the directions of the Court, 
 he used to inform the Court, by a docu- 
 ment in writing, of what he had done, 
 or what conclusion he had come to ; and 
 in most cases this document was called 
 the master's report. The masters in 
 Chancery, in addition to their ordinary 
 functions, acted as messengers from the 
 House of Lords to the House of Com- 
 mons. Two attended the House in rota- 
 tion each day, and sat on the wool-sacks, 
 their duties consisting in carrying bills 
 to the Commons which had been passed 
 in the Lords, or in conveying any message 
 which their Lordships might be desirous 
 of communicating to the Commons. On 
 arriving at the latter House they took 
 their seats behind the chair of the ser- 
 jeant-at-arms, and this officer, bearing the 
 mace, walked up to the table and acquaint- 
 ed the Speaker that there was " a mes- 
 sage from the Lords." The Speaker 
 said, " Let the messenger be called in ; " 
 upon which the masters in chancery, ac- 
 companied by the serjeant-at-arms, ap- 
 proached the table, making their obei- 
 sances, and having deposited the bills 
 thereon, or delivered their message, they 
 retired with the same forms, walking 
 backwards until they reached the bar of 
 the House. There were also certain other 
 officers of the Court of Chancery called 
 masters extraordinary in Chancery ; these 
 were usually solicitors, who were ap- 
 pointed by the Court to act in the vari- 
 ous counties of England in taking affi- 
 davits, acknowledgments of deeds, recog- 
 nizances, &c., which otherwise would 
 have had to be taken before the masters 
 in London, and would thus have occa- 
 
222 MASTER OP THE FACULTIES. — MASTER AND SERVANT. 
 
 Master in Chancery. — (^Oontinued.) i 
 sioned to the suitors loss of time and ex- 
 pense in coming to London for that pur- 
 pose (Gray's Ch. Prao. 103). The duties 
 formerly discharged by the masters in 
 ordinary in Chancery are now discharged 
 by the chief clerks attached to the oflo^ces 
 of the various judges; those formerly 
 discharged by the masters extraordinary 
 are now discharged by solicitors qualified 
 as commissioners for taking oaths 
 throughout the kingdom. 
 
 MASTER OF THE FACULTIES. An 
 
 officer under the Archbishop of Canter- 
 bury who grants licenses and dispensa- 
 tions. He is mentioned in 33 & 33 Car. 
 3. Cowell. 
 
 MASTER JOF THE ROLLS. One of 
 
 the judges of the Court of Chancery ; he 
 is so called because he has the custody of 
 the rolls of all patents and grants wHch 
 pass the great seal, and also of the records 
 of Chancery. He presides in a court called 
 the Rolls Court, and his duties are assist- 
 ant to those of the Lord Chancellor. He 
 is first called Master of the Rolls in 11 
 Hen. 7, c. 18; but his office is as ancient 
 as the Court itself. Unlike that of the 
 Vice-Chancellors, his jurisdiction is in the 
 nature of a distinct jurisdiction, which 
 the suitor may, for certain purposes, 
 which are now considerably diminished, 
 elect in preference to that of the Lord 
 Chancellor. 
 
 MASTERS OF THE COURTS OF 
 COMMON LAW. Each of the superior 
 Courts of Common Law has five import- 
 ant officers attached to it, termed masters. 
 These gentlemen are usually persons of 
 consideration and learning, and are ordi- 
 narily members of the Bar. One of the 
 masters of each Court always attends the 
 sittings of his own Court in banc, and 
 usually sits on the bench, appropriated 
 for him and other officers, at the foot of 
 the judicial bench. The Court of Error, 
 also, is always attended by one of the 
 masters. Their chief duties, when at- 
 tending the Court, consist in taking affl- 
 / davits sworn in Court, in administering 
 oaths to attorneys on their admission, and 
 in certifying to the Court, in case of 
 doubt or difficulty, what the practice of 
 the Court is. Their principal duties out 
 of Court consist in taxing attorney's 
 costs, in computing principal and interest 
 on bills of exchange, promissory notes, 
 and other documents, under rules to com- 
 pute, — in examining witnesses who ai'e 
 
 Masters of the Courts, etc.— (Core^'d.) 
 going abroad, for the purpose of obtain- 
 ing their testimony, — in hearing and 
 determining rules referred to them by 
 the Court in the place of the Court itself, — 
 and in reporting to the Court their con- 
 clusions with reference to the rules so 
 referred to them. 
 
 MASTER AND SERVANT. This is 
 the relation which arises out of the con- 
 tract of hiring. That contract may be 
 either for an expressly defined period or 
 for an indefinite or unexpressed period ; 
 but a general hiring, in the absence of 
 any custom to the contrary, is presumed 
 to be a yearly hiring, and, in all cases, a 
 hiring at so much per month is a hiring 
 for a year {Fa/wcett v. Cash, 3 N. & M. 
 177). In the case of domestic servants, 
 such hiring may be determined by a 
 month's notice or a month's wages in 
 advance given or paid at any time (Tur- 
 ner V. Mason, 14 M. & W. 112); but in 
 the case of clerks and respectable ser- 
 vants, the hiring, if general, is construed 
 to be a hiring for one year, and so on 
 from year to year, and, must be deter- 
 mined with the year, at least in the 
 absence of misconduct {Beeston v. Colyer, 
 4 Bing. 309). But a hiring at two guineas 
 a week for one year has been held to be 
 not a yearly but a weekly hiring (Sobert- 
 son V. Jmner, 15 L. T. [N. S.] 514). So 
 on a contract to pay a commercial traveler 
 by commission, no implication arises of a 
 yearly hiring. Wayler v. Tewsley, 3 E. 
 & F. 41. 
 
 Every person sufEering himself to be 
 hired as a skilled artisan warrants that 
 he possesses the requisite ability and suf- 
 ficiency, and upon proof of his want of 
 such ability or sufficiency; i. e., of his 
 incompetency, his employer may dis- 
 charge him. Bajrmer v. Cornelius, 5 C. 
 B. (N. S.) 336. 
 
 A servant has a right to be paid for his 
 work, and paying for same otherwise than 
 by money is contrary to the Truck Act 
 (1 & 3 "Will. 4, c. 37), but that Act prop- 
 erly applies to laborers only. Biky v. 
 Wa/rdm, 3 Ex. 59. 
 
 A servant is not personally liable on 
 contracts made by him for his master; 
 but he is liable for torts committed by 
 him, although at the command of his 
 master {Granoh v. White, 1 Scott, 314) 
 (a case of trover) ; similarly he is civilly 
 Hable for assisting his master in a fraud 
 {Oullen V. Thomson, 4 Macq. H. L. C. 
 441). Conversely, the master is liable for 
 
MATRONS, JURY OF.— MEDIETAS LINGUA. 
 
 223 
 
 Master and Serrant. — {Continued. ^ 
 the tort of his servant committed in his 
 service. McManus v. Criokett, 1 East, 
 106. 
 
 A master lies under certain duties to 
 his servant. He is bound to provide an 
 apprentice with medical attendance and 
 medicine during sickness (Seg. v. Smith, 8 
 0. & P. 153) ; seaus, in the case of a menial 
 or general sei-vant. He is bound to pro- 
 vide for the reasonable safety of his ser- 
 vant while engaged in his employment, as 
 by fencing machinery and otherwise ; but 
 having done that, he is secure, — thus, a 
 master was held not Uable for an injury 
 sustained by his servant through the 
 breaking down of a carriage in which the 
 servant was riding at the time on his 
 master's business, through a defect in the 
 carriage of which the master was not 
 aware. Priestley v. Fowler, 3 M. & W. 1. 
 
 A master may maintain an action for 
 debauching his servant {Fores v. Wilson, 
 Peake, 55) ; and may even justify an as- 
 sault in protecting Ms servant {Tickell v. 
 Bead, LofiEt. 315). So also trespass will 
 lie by a master for enticing his servant 
 away. Hart v. AMrndge, Cowp. 54. 
 
 Under various statutes the justices 
 have a summary jurisdiction in questions 
 arising between masters and their ser- 
 vants, as for non-payment of wages by 
 the master, for misconduct on the part of 
 the servant, and such like. 
 
 MATRONS, JURY OF. A jury of 
 matrons is a jury formed of women, 
 which is impaneled to try the qtiestion 
 whether a woman be with child or not. 
 See title Db Vbntbb Inspicibnbo. 
 
 MATTER OF RECORD, MATTER 
 IN DEED, AND MATTER IN PAIS. 
 
 Matter of record signifies some judicial 
 matter or proceeding entered upon one of 
 the records of the Court, and of which 
 the Court takes peculiar cognizance. 
 Thus the pleadings in an action in the 
 superior Courts, and in the Courts of 
 record, being matter which is entered 
 upon the records of the Court and filed 
 with its offtcer as an authentic history 
 of the suit, is thence termed a matter of 
 record. 
 
 Matter in deed is some private matter 
 or thing contained in a deed between 
 two or more parties ; as the covenants or 
 recitals in a lease, or in a mortgage deed 
 • for instance ; and these, although enrolled 
 that is, transcribed upon the records of 
 one of the Queen's Courts at Westmin- 
 
 Matter of Record, etc. — {Continued) 
 ster, or at a Court of Quarter Sessions, as 
 they often are, for safe custody, do not 
 thereby become matter of record, but are 
 simple deeds recorded or enrolled; for 
 there is a material difference between a 
 matter of record and matter recorded for 
 the purpose of being kept in memory ; a 
 record being an entry on parchment of 
 judicial matters or proceedings which 
 have taken place in a Court of record, 
 and of which the Court takes judicial 
 notice, as matter coming peculiarly under 
 its own cognizance, whereas the enroll- 
 ment of a deed is a private act of the 
 parties concerned, of which the Court 
 takes no cognizance at the time when it 
 is done. 
 
 Matter in Pais simply means matter 
 of fact, probably so-called because mat- 
 ters of fact are triable by the country, i. 
 e., by a jury. The above several phrases 
 are generally used in connection with the 
 subject of estoppel. Thus any allegation 
 of fact, or any admission made in plead- 
 ing (whether it be express or implied, 
 from pleading over, without a traverse) 
 will preclude the party from afterward 
 contesting the truth of the matter so 
 alleged or admitted, upon the trial of the 
 issue in which such pleading terminates. 
 This is an estoppel by matter of record. 
 As an instance of an estoppel by deed, 
 may be mentioned the case of a bond 
 reciting a certain fact. The party exe- 
 cuting that bond will be precluded from 
 afterward denying in any action brought 
 upon that instrument the fact so recited. 
 An example of an estoppel by matter in 
 pais occurs when one man has accepted 
 rent of another; in such case he wiU be 
 estopped from afterward denying in any 
 action with such person that the latter 
 was, at the time of such acceptance, his 
 tenant. 
 
 See title Estoppel. 
 
 MEDIATORS OF QUESTIONS. By 
 
 37 Edw. 3, st. 3, c. 24, six persons, so 
 called, were authorized when any ques- 
 tion arose amongst merchants touching 
 any unmarketable wool, or undue pack- 
 ing, to certify upon oath, and settle the 
 same before the mayor and officers of the 
 staple, and by whose award therein the 
 parties concerned were to abide. Cowel. 
 
 _ MEDIETAS LINGU J:. A jury de me- 
 ddetate lingucB is a jury consisting one-half 
 of natives and the other half of foreign- 
 ers, to try a cause in which either the 
 plaintiff or the defendant is a foreigner 
 
224 MELIUS INQUIRENDUM VEL INQUIRENDO.— MEEE RIGHT. 
 
 Medietas Lingaee. — {ConUmued.) 
 (Staun. PL Oor. Lib. 3, c. 7). But such 
 juries are abolished by the Juries Act, 
 1870 (33 & 34 Vict. c. 77). AUens who 
 have been domiciled in England for ten 
 years or upwards, and being otherwise 
 qualified, are now competent generally to 
 serve on juries. 
 
 See title Jtjkies. 
 
 * MELIUS INQUIRENDUM TEL IN- 
 QUIRENDO. A writ issued to the es- 
 cheator commanding him to make further 
 inquiry concerning a matter, as who was 
 the next heir to a party dying seized of 
 lands. Burr. Diet. 
 
 MEMORIAL OP DEEDS. By several 
 Acts of Parliament all deeds and wills 
 concerning the conveyance or disposition 
 of estates in the counties of York, King- 
 ston-upon-HuU, and Middlesex (subject 
 to certain exceptions), are reqtiired to be 
 registered, and such registration is ef- 
 fected by the execution and deposit of a 
 memorial under the hand and seal of some 
 or one of the grantors or grantees, his or 
 their heirs, executors or administrators, 
 guardians or trustees, which memorial is 
 to contain, — • first, the day of the month 
 and year when the instrument bears date, 
 the names and additions of all the parties 
 to it, and of the witnesses, and the places 
 of their abode ; and, secondly, a descrip- 
 tion of 'the property conveyed, or pro- 
 posed to be conveyed or disposed of, the 
 names of the parishes wherein it respect- 
 ively lies, and the manner in which the 
 same property is dealt with or affected by 
 such instrument or instruments. It is 
 proposed to render the registration of 
 such memorials universal throughout 
 England, by and in accordance with an 
 Act to be intituled the Transfer of Land 
 Act, but which Act has for the present 
 been postponed. 
 
 MEMORY OF MAN. In law the mem- 
 ory of man is supposed to extend back to 
 the time of Richard I. ; and until the 3 & 3 
 Will. 4, c. 71, any custom might have 
 been destroyed by proving that it had not 
 existed uninterruptedly from that period. 
 But though it was essential to the valid- 
 ity of a custom that it should have ex- 
 isted before the commencement of the 
 reign of Richard I., yet proof of a regu- 
 lar usage for twenty years, not explained 
 or contradicted, was that upon which 
 many public and private rights were held, 
 and suflicient for a jury in finding the ex- 
 
 Memory of Man. — (Continued.) 
 istence of an immemorial custom. See 
 Mounsey v. Imiay, 3 H. & C. 486 ; and ti- 
 tle Legal Memoey. 
 
 MENSA ET THORO: See title Di- 
 
 VOBCB. 
 
 *MERCEU-LAGE. One of the three 
 principal systems of laws existing in Eng- 
 land at the beginning of the 11th century. 
 1 Bl. Com. 65. 
 
 MERCY. " To be in mercy " was the 
 usual conclusion of a judgment in an ac- 
 tion at Common Law. When » the judg- 
 ment was for the plaintifi^ the form was 
 that the defendant " be in/n^cy " (mis- 
 ericordia), that is, be amerCett ot fined for 
 his delay of justice ; whenfwf ihe defend- 
 ant, that the plaintiff be iiiflie'rcy for his 
 false claim. The practi^fbf imposing 
 any actual amercement has/»een long ob- 
 solete. Steph. 122. ;, ifff;^ 
 Bee title AMEB^kmEST. 
 
 MERE MOTION (m&ro nwtu). The 
 free and voluntary act of a party himself, 
 without the suggestion or influence of 
 another person. The phrase is used in 
 letters patent, whereby the king grants, 
 " of his especial grace, certain knowledge, 
 and mere motion" (exspedaU gratia, eertd 
 aeientid, et mero motu), his license, power, 
 and authority to the patentee to use and 
 enjoy, exclusively, the new invention ; and 
 it manifests that the grant is not made 
 upon the suggestion or suit of the party, 
 but of the free and unfettered will of the 
 monarch himself. Webster on Patents, 
 76, n. (d). 
 
 The expression is also applied to the 
 occasional interference of the Courts of 
 Law, who, under certain circumstances, 
 will (ex mero motu,), of their own motion, 
 object to an irregularity in the proceed- 
 ings of the parties to an action, though 
 no objection be taken to the informality 
 by the plaintiff or defendant in the suit. 
 3 Chitty Gen. Pr. 430; 3 DowL 110; 1 
 Bing. N. 0. 358; 1 B. & P. 866. 
 
 MERE RIGHT (jus merwm). The 
 right of property (the jus proprietaUs), 
 which a person may have in any thing, 
 without having either possession or even 
 the right of possession, is frequently 
 spoken, of in our books under the name 
 of the mere right, and the estate of the 
 owner is in such cases said to be totally ■ 
 divested and put to a right. Co. Litt. 
 345. 
 
MERGER. 
 
 225 
 
 MERGER. This term is the equivalent 
 of wnfum, in the Roman Law, and indi- 
 cates that where the qualities of debtor 
 and creditor become united in the same 
 individual, there arises a confusion of 
 rights which extinguishes both qualities ; 
 whence also merger is often call Extin- 
 guishment. And just as in the Roman 
 Law the prsetor in certain cases where 
 merger would be inequitable intercepted 
 and prevented it,* so also in English Law 
 the Chancellor interferes in like cases to 
 prevent it. And therefore it is a rule of 
 English Law, that merger or extinguish- 
 ment wiU or will not take place in Equity 
 according to the intention, actual or pre- 
 sumed, of the person in whom the two 
 interests come to be united ; and even at 
 Law, merger is excluded in certain cases. 
 
 The doctrine of merger is chiefly of 
 importance with reference to real prop- 
 erty ; and in examining the subject, it is 
 convenient to divide it under two heads, 
 natnely : — 
 
 (1.) Cases in which the owner of the 
 charge becomes also owner of 
 the estate ; and 
 
 (3.) Cases in which the owner of the 
 estate becomes also owner of the 
 charge. 
 
 Now, firstly, as a general rule, where 
 the owner of the charge becomes also 
 owner of the estate ■syhether in fee simple 
 or in fee tail, the charge is ipio facto 
 merged and extinguished in the estate. 
 But to this general rule there are the fol- 
 lowing exceptions, that is to say, — (1.) 
 The charge may be kept alive, and the 
 intention to keep itflive may be either 
 expressed in so many words, or may be 
 implied from circumstances or from con- 
 duct. For example, if a mortgagee who 
 purchases the equity of redemption takes 
 a conveyance thereof to a trustee for 
 himself, and the conveyance contains a 
 declaration that the mortgage security 
 shall remain on foot, there, from the ex- 
 pressed intention of the party, merger is 
 excluded. Agkin, the intention to pre- 
 vent a merger, where not expressed, has 
 been implied Under the following cir- 
 cumstances, viz: — 
 
 (a.) The mortgagee, becoming benefi- 
 cial devisee of the equity of redemption, 
 and being also executor of the testator- 
 mortgagor, in his residuary account as 
 executor stated that he had retained £467 
 out of the personal estate toward pay- 
 ment of his mortgage debt, and after- 
 
 * See Brown's Savlgny on Obligations, p. 15. 
 
 29 
 
 Merger. — ( Continued.) 
 ward devised the property to X., T., and 
 Z., provided they undertook, to receive 
 the same with all the liabilities attaching 
 thereunto ; and it was held upon the in- 
 tention which these acts implied, that 
 the charge had not merged in the estate 
 {Hatch V. Skeltm, 30 Beav. 453). Again, 
 
 (J.) If the efEect of suffering the charge 
 to merge would be to give priority to 
 subsequent incumbrances, it will be pre- 
 sumed, from the clear advantage arising 
 to the owner of the estate from keeping 
 the charge aUve, that the charge has not 
 become merged in the estate (Fortes v. 
 Moffatt, 18 Ves. 384) ; and this will be a 
 fortiori so, if the owner is a lunatic (Lord 
 Gompton v. Oxmden, 3 Ves. Jun. 361) ; 
 and, 
 
 (c.) If the owner of the charge becomes 
 entitled only to a limited interest in the 
 estates the charge will clearly not 
 merge, although this case is hardly an ex- 
 ception to the general rule as stated 
 above. 
 
 And, secondly, as a general rule, where 
 the owner, whether in fee simple or in fee 
 tail, becomes also owner of the charge, 
 the charge is ipso facto merged or extin- 
 guished in the estate. This rule is al- 
 most without exception where the charge 
 comes to the owner of the estate by suc- 
 cession or by bequest ; and even where it 
 comes to him by being purchased up by 
 him, the general rule almost invariably 
 holds, but with the following excep- 
 tiois : — 
 
 (a.) When the owner of the estate who 
 buys up the charge is not in possession of 
 the estate, but is, say, a tenant in tail or 
 in fee simple in remainder expectant upon 
 some other estate, the owner of which 
 might bar or exclude his interest alto- 
 gether, in that case the charge will not 
 merge (Wigsell v. Wigsell, 3 S. & S. 364), 
 even although he should afterward be- 
 oome entitled in possession (Eorton v. 
 Smith, 4 K. & J. 634) ; also, 
 
 (J.) Similarly, where the owner who 
 buys up the charge has only a defeasible 
 estate by reason of some executory devise 
 over, which may or may not'take effect, 
 the charge wiU not merge in the estate, 
 even although the owner shovdd be in 
 possession (Drinkwater v. Oonihe, 3 S. & 
 8. 340); and, 
 
 (c.) If the owner who buys up the 
 charge is an infant, the Court of Chan- 
 cery sanctioning the purchase, there is no 
 merger, as the infant can express no in- 
 tention in the matter, and the Court will 
 
226 
 
 MERITORIOUS CAUSE OF ACTION. —MERITS. 
 
 Merger. — ( Oontimted.) 
 not prejudice him or the" real or per- 
 sonal representatives who may claim un- 
 der him {Akop v. Bell, 24 Beav. 451); 
 also, 
 
 (d.) If the owner who becomes entitled 
 also to the charge has an interest in keep- 
 ing the charge alive, e. g., if the merger 
 or extinguishment of the charge would 
 give priority to subsequent incumbrances, 
 in that case there will be no merger, in 
 whatever manner, whether by succession, 
 bequest, or purchase, the owner has ac- 
 quired the charge (Gricev. Shmo, 10 Hare, 
 76); and, 
 
 («.) If the owner who becomes entitled 
 to the charge has only a limited interest 
 in the estate, e. g., if he is only a tenant 
 for life, the charge will clearly not merge, 
 at least when he has acquired the charge 
 by purchase (Burrell v. MaH of Egrmnont, 
 7 Beav. 305) ; and apparently (on princi- 
 ple at least), not even where he has ac- 
 quired the charge by succession or be- 
 quest ; but this case is, in fact, scarcely 
 an exception to the general rule of mer- 
 ger as stated above (see MorUy v. Morley, 
 5 De G., M. & G. 630) ; lastly, 
 
 (/.) No merger will take place where 
 a merely contracting purchaser of an 
 estate pays off a charge upon it, before 
 the completion of his purchase (Watts v. 
 Symes, 1 De G., M. & G. 340); and appa^ 
 rently not even if the purchase is after- 
 ward completed. 
 
 There are also other special causes ex- 
 cluding merger. Thus, tithes will not 
 merge by mere unity of possession (Charp- 
 man v. Oatcomie, 3 Bing. N. C. 516) ; as 
 neither will a commutation rent-charge in 
 lieu of tithes; but provision has been 
 made by certain recent statutes for effect- 
 ing a merger of both whenever the land 
 and the tithes or rent-charge belong to 
 one and the same individual. Moreover, 
 redeemed land-tax is on the same footing 
 as commutation rent-charge with regard 
 to the question of merger. Ware v. Pol- 
 Tdll, 11 Ves. 257. 
 
 Again, where the estate and the charge 
 become vested in the same individual in 
 different rigrfts, e. jr., the estate in his own 
 right and the charge m autre droit or vice 
 versd, in such a case, the general rule,even 
 at Law, is this, that the union of the two 
 will not cause any merger, if such union 
 be occasioned by the act of law, e. g., by 
 descent or devise, and not by the act of 
 the party, e. g., by purchase. So, if the 
 owner of a term make the freeholder his 
 executor, the term will not merge; but if 
 
 Merger. — (Oontmued.) 
 the executor holding the term as such 
 should himself purchase the immediate 
 freehold, the better opinion is that the 
 term will merge, subject only to the rights 
 of the creditors (if any) of the testator. 
 
 Again, if one of two joint holders of a 
 term obtain the immediate freehold, his 
 moiety of the term will merge; and, con- 
 versely, if the sole owner of n term ob- 
 tain the immediate freehold jointly with 
 another, one moiety of the term wiU 
 merge, and the joint ownership of the 
 freehold will continue, subject only to the 
 remaining moiety of the term. See Will. 
 Real Prop. p. 400 ; Washb. Real Prop. 
 
 MERITORIOUS CAUSE OF ACTION. 
 
 A person is sometimes said to be the mer- 
 itorious cause of action when the cause of 
 action, or the consideration on which the 
 action was founded, originated with, or 
 was occasioned by, such person. Thus, 
 in an action by husband and wife for the 
 breach of an express promise to the wife 
 in consideration of her personal labor and 
 skill in curing a wound, she would be 
 termed the meritorious cause of action. 
 So in an action by husband and wife upon 
 an agreement entered into with her before 
 marriage, she would be the meritorious 
 cause of action ; for it originated or ac- 
 crued out of a contract entered into with 
 her. So a promissory note made to the 
 wife during coverture in her own name is 
 presumed to be made upon a consideration 
 moving from her (Leake on Contracts, 
 340-1). In all such cases the husband 
 and wife ought to be joined as co-plain- 
 tiffs, because in case the wife survive after 
 commencement but before conclusion of 
 the action, the right of recovery will sur- 
 vive to her, and the suit will not have 
 abated by the husband's death. But it 
 appears to be optional with the husband, 
 if he chooses to take the risk, to sue alone 
 in all such cases. 
 
 MERITS. The real or substantial 
 grounds of the action are frequently so 
 termed in contradistinction to some tech- 
 nical or collateral matter which has been 
 raised in the course of the suit. Thus, 
 where, at a time when special demurrers 
 were in use, a defendant demurred to the 
 plaintiff's declaration on the ground of 
 some informality, and the plaintSf, instead 
 of amending, joined in demurrer, with the 
 view of having the point argued before 
 the Court; in such case, although he 
 might be beaten upon the demurrer, by 
 the Court deciding against the sufficiency 
 
MERTON, STATUTE OP.— MESSAGES FROM THE CROWN. 227 
 
 Merits. — ( Continued.) 
 of tte declaration in point of form, yet, as 
 the merits or substantial grounds of the 
 action still remained to be tried, he might 
 ultimately be successful upon these. So 
 an affidavit of merits signifies an affidavit 
 that upon the substantial facts of the case 
 justice is with the party so making such 
 affidavit. Such an affidavit is required 
 in support of certain motions to the Court, 
 e. g., in order to let in a defendant to de- 
 fend after judgment signed. Listed v. 
 Lee, 1 Salk. 403; and generally, Day's 
 Common Law Practice, pp. 63-6. 
 
 MERTON, STATUTE OF. The 30 
 
 Hen. 3 is so called because it was passed 
 in a convent of St. Augustin, situate at 
 Merton, in Sorrey. The particular pro- 
 visions of the statute regarded, 1st. Le- 
 gitimacy of children (see title Legitima- 
 tion] ; 3dly. Dower ; 3dly. Inclosure of 
 common lands ; and, 4thly. Wardships. 
 See, also, title Statutes. 
 
 MESNE {medius). Middle, intermedi- 
 ate, intervening. The word "mesne" 
 is ordinarily used iji the following com- 
 binations: 1st. Mesne Lord; 3d. Mesne 
 Process; 3d. Mesne Assignments; 4th. 
 Mesne Incumbrances ; 5th. Mesne Profits. 
 
 1st. A Mesne Lord was applied in the 
 f eodal times to the lord of a manor who 
 had tenants under him, and yet a superior 
 lord over him, and so held an intermedi- 
 ate position between the two. 
 
 3d. Mesne Process is generally used in 
 contradistinction to final process, and sig- 
 nifies any writ or process issued between 
 the commencement of the action and the 
 suing out final process or execution in 
 such action; and includes also the writ 
 of summons, notwithstanding this is 
 the process by which personal actions are 
 commenced, and therefore cannot be re- 
 garded now as mesne or intermediate 
 process, in the literal sense of the word. 
 See per Parke, B., in Sarmer v. Johnson, 
 14 M. & W. 340. 
 
 3d. Mesne Assignment signifies an in- 
 termediate assignment. Thus, if A. grant 
 a lease of land to B., and B. assign his 
 interest to C, and C. in turn assign his 
 interest therein to D., in this case the as- 
 signments so made by B. and 0. would be 
 termed mesne assignments : that is, they 
 would be assignments intervening be- 
 tween A.'s original grant and the vesting 
 of D.'s interest in the land under the last 
 
 4th. Mesne Incumbrances signify inter- 
 mediate charges, burdens, liabilities, or 
 
 Mesne. — ( Continued.) 
 
 incumbrances; that is, incumbrances 
 which have been created or have attached 
 to property between two given periods. 
 Thus, when a vendor of an estate cove- 
 nants to convey land to a purchaser free 
 from all mesne incumbrances, it com- 
 monly means free from all charges, bur- 
 dens, or liabilities which might by possi- 
 bility have attached to it between the 
 period of his purchase and the time of 
 the proposed conveyance to the intended 
 vendee. 
 
 5th. Mesne Profits are intermediate 
 profits ; that is, profits which have been 
 accruing between two given periods. 
 Thus, after a party has recovered the 
 land itself in an action of ejectment, he 
 frequently brings another action for the 
 purpose of recovering the profits which 
 have been accruing or arising out of the 
 land between the periods of his title to 
 the possession accruing or being raised, 
 and of his recovery in the action of eject- 
 ment, and such an action is thence termed 
 an action for mesne profits. In eject- 
 ment by landlord against tenant, mesne 
 profits are recoverable in the very action 
 itself of ejectment, upon proof of title 
 by the landlord ; but in all other cases of 
 ejectment, a special action for mesne 
 profits must be brought as above. See 
 Bull & Leake, Prec. of Plead, pp. 431-3, 
 n. (a). 
 
 MESNE, WRIT OF (de media). A writ 
 in the nature of a writ of right, which lay 
 when, upon subinfeudation, the mesne or 
 middle lord suffered his under-tenant, or 
 tenant paravail, to be distrained upon by 
 the lord paramount for the rent due to 
 him by the mesne lord. 3 Inst. 374. 
 
 MESSAGES FROM THE CROWN. 
 
 The mode of communicating between the 
 Sovereign and the Houses of Parliament. 
 Such messages are brought either by a 
 member of the House, being a minister of 
 the Crown, or by one of the royal house- 
 hold. In the Lords, when there is such 
 a message, the bearer of it having inti- 
 mated that he has a message under the 
 royal sign manual, the Lord Chancellor 
 proceeds first to read it, and then the 
 clerk at the table reads it over again. In 
 the Commons the member appears at the 
 bar and informs the Speaker that he has 
 a letter from Her Majesty. He then takes 
 it to the table and presents it, upon which 
 the Speaker reads it, the members the 
 meanwhile remaining uncovered. These 
 
228 
 
 MESSENGERS.— MINES AND MINERALS. 
 
 Messages from the Crown. — {Cont'd.) 
 forms having been gone tlirough, the 
 House proceeds to deal with the message 
 aooordangly. May's Pari. Pr. 
 
 MESSENGERS. The messenger of the 
 Court of Chancery is an officer whose 
 duty it is to attend on the great seal 
 either in person or by deputy, and to be 
 ready to execute all such orders as he 
 shall receive from time to time from trie 
 Lord Chancellor, Lord Keeper, or Lords 
 Commissioners (Chan. Com. Rep. 138, 
 cited in Smith's Oh. Pr. 57). There are 
 certain persons also who are attached to 
 the Court of Bankruptcy who are styled 
 messengers, and whose duty consists, 
 amongst other things, in seizing and tak- 
 ing possession of the bankrupt's estate 
 during the proceedings in the bankruptcy. 
 See G. R. made in pursuance of the 
 Bankruptcy Act, 1869, as to Messengers' 
 Deposits; Yate Lee's Bankruptcy, pp. 
 898-900. 
 
 MESSUAGE. This word is now syn- 
 onymous with the word "dwelling- 
 house," but, as having once had a larger 
 signification, it invariably precedes the 
 word "dwelling-house " in a description 
 of parcels. A grant of a messuage with 
 the appurtenances will pass not only the 
 dwelling-house but also all buildings 
 adjoining or attached to it, together with 
 the curtilage, garden, and orchard, and 
 the close in which the house is built, and 
 any pleasure grounds adjoining and be- 
 longing to it. See 3 Bing. N. 0. 618; 
 Les Termes de la Ley. 
 
 METROPOLITAN. The Archbishop 
 of Canterbury is styled ' ' Primate of all 
 England and the Metropolitan, " because 
 the province of Canterbury contains 
 within it the metropolis or chief city. 
 The metropolitans were so called because 
 they presided over the churches of the 
 principal cities of the province. It was 
 their duty to ordaiu the bishops of their 
 province, to convoke provincial councils, 
 and exercise a general superintendence 
 over the doctrine and discipline of the 
 bishops and clergy within the provinces. 
 The province of York anciently claimed 
 and had a metropolitan jurisdiction over 
 all the bishops of Scotland until about 
 the year 1466, shortly after which time 
 Pope Sixtus the Fourth created the Bishop 
 of St. Andrew's Archbishop and Metro- 
 politan of all Scotland. 1 Bum's Ecc. 
 Law, by PhiUimore, 194, 197, tit. 
 "Bishops ;" Rog. Ecc. Law, 105, 113. 
 
 MEUBLES. These are in French Law 
 the moveables of English Law. Things 
 are mmibles from either of two causes, — 
 (1.) From their own nature, e. g., tables, 
 chairs; or (2.) Prom the determination 
 of the law, e. g., obligations. 
 
 MEUBLES MEUBLANS. These are 
 in French Law the utensils and articles 
 of ornament usual in a dwelling-house. 
 
 * MICEL-GEMOTES, M I C E L-S Y N- 
 ODS. The great councils of kings and 
 noblemen in Saxon times. Jacob Diet. 
 
 MILEAGE. A payment or charge of 
 so much per mile is so termed. It is fre- 
 quently used with reference to the charge 
 made by sheriffs, when, for the purpose of 
 executing writs, they have to travel any 
 given number of miles. 
 
 MILITARY COURTS : See titles Coubt 
 Mabtial and Coubt of Chivalky. 
 
 MILITIA: ;See title Abmt. 
 MILLS : See title Factobibs. 
 
 MINES AND MINERALS. Primd 
 fade the owner of the surface is entitled 
 to the surface itself, and all below it, ex 
 jure ■naiwrm; and those who claim the 
 property in the minerals below must do 
 so by some grant or conveyance by him ; 
 and in such latter case the rights of the 
 grantee must depend on the terms of the 
 grant ; although ^n?ra<i/aae, it wiU be pre- 
 sumed, if the minerals are to be enjoyed, 
 that a power to get them was also granted 
 as a necessary incident {Bowbothcmi v. 
 Wihon, 8 H. L. C. 348). "Where the 
 claim to mines or minerals is rested upon 
 the Statute of Limitations, it is not 
 enough to show the absence for twenty 
 years of enjoyment of the mines or. min- 
 erals on the part of the plaintiff, but it is 
 necessary further to show the presence of 
 enjoyment on the part of the defendant. 
 Bowe V. Chrenfel, Russ. & My. 396. 
 
 As to what are mines and minerals, it 
 has been said {Gleeeland v. Meyrich, 37 
 L. J. [Ch.] 124) that the definition de- 
 pends on the mode of working and not 
 upon the material obtained from the mine ; 
 and so in that case slates obtained by 
 mining as opposed to quarrying were held 
 to be mines. But this definition is ex- 
 ceptional, and, perhaps, it is even excep- 
 tionable ; for in Micklethu>aite v. Winter, 
 (6 Ex. 644), stones got by quarrying were 
 held to be miuerals. Therefore, gener- 
 ally (unless we are to distinguish between 
 mines and minerals), the materials, and 
 
MINISTERIAL POWERS. 
 
 229 
 
 Mines and Minerals. — (OonUniied.) 
 not the mode of working, must be made 
 the criterion ; or, speaking perhaps more 
 accurately, mines are materials obtained 
 by mining, and minerals are the like ma- 
 terials obtained either by mining or by 
 quarrying, such materials being so very 
 numerous and various as to admit of de- 
 scription or enumeration only, and not of 
 definition. In strictness, mines are the 
 openings only, and not the material ex- 
 tracted from the earth through these 
 openings. 
 
 Where the surface of land belongs to 
 one owner, and the mines and minerals 
 belong to another owner, — Then 
 
 (a.) If nothing appears showing their 
 respective titles, or the measure of the 
 respective grants of the respective here- 
 ditaments to the two respective owners, 
 the mine -owner cannot so mine the verti- 
 cal strata as to destroy the surface above, 
 or even so as to occasion a subsidence 
 thereof, while that surface remains in its 
 natural state {BwmpTi/nea v. Brogden, 15 
 Q. B. 739) ; and after buildings have 
 stood on the surface for twenty years, 
 the right of natural support to the land 
 and buildings thereon from the vertical 
 strata and also from the adjacent strata 
 is acquired {Brovme v. Bobins, 4 H. & N. 
 186^: and 
 
 (6.) If the mode of the acquisition of 
 the respective titles, or even the respect- 
 ive deeds of grant of the respective 
 several tenements, are existing, then the 
 words of the deed are to be regarded ; 
 and in consequence of such words the 
 right of natural support, as well from the 
 vertical as from the adjacent strata, may 
 be found to have been either abandoned 
 or diminished; but the Court fights 
 against that conclusion. Compare Harris 
 V. Myding, 5 M. & W. 60; WiUiams v. 
 BagnaU, 15 W. R. 273; and Smith v. 
 Darby, L. R. 7 Q. B. 730. 
 
 MINISTERIAL POWERS. These 
 powers, as the name indicates, are given 
 for the good, not of the donee himself 
 exclusively, or of the donee himself neces- 
 sarily at aU, but for the good of several per- 
 sons, including or not including the donee 
 also. They are so called because the donee 
 of them is as a minister or servant in his 
 exercise of them. They are of various 
 kinds. 
 
 (1.) The ministerial powers of a tenant 
 for life are the following, viz. : — 
 
 (A.) A power of leasing. This power 
 depends upon and is regulated by the 
 
 Ministerial Powers. — ( Oontinued.) 
 Act 19 & 30 Vict. c. 120, and the Act i!l 
 & 33 Vict. c. 77, called respectively the 
 Leases and Sales of Settled Estates Act 
 and the Act amending the same. Under 
 these Acts it is lawful for a tenant for 
 life who is so under a settlement dated 
 after the 1st of November, 1856, which 
 does not expressly exclude the Act, to 
 demise for any term not exceeding 
 twenty-one years any part of the settled 
 estates (except the principal mansion- 
 house or the demesnes thereof), provided 
 he observes the following requisites, 
 namely : — , 
 
 (a.) Lease only in possession; 
 (i.) Make the demise by deed; 
 (e.) Reserve the best obtainable rent ; 
 (A) Take no premium or fore-gift ; 
 (e.) Make the lessee impeachable for 
 
 waste ; 
 (/.) Insert a covenant for payment of 
 rent, and other usual and proper 
 covenants ; 
 (y.) Insert a condition of re-entry for 
 non-payment of rent for twenty- 
 eight days, or for non-observ- 
 ance of the other covenants; 
 and 
 (A.) Obtain the lessee to execute a 
 counterpart of the lease. 
 The tenant for life may exercise the 
 power of leasing to the extent aforesaid 
 without any applicMion to the Court of 
 Chancery. 
 
 And in case the settlement is of a date 
 prior to the 1st of November, 1856, or in 
 case a longer term of demise than twenty- 
 one years is desired to be granted, then, 
 upon application to the Court of Chan- 
 cery for its sanction thereto, the tenant 
 for life may (under certain conditions, for 
 which see the Acts) grant the following 
 varieties of lease, namely : — 
 
 (fl.) An agricultural lease for twenty- 
 one years or under ; 
 (J.) An occupation lease for twenty-one 
 
 years or under; 
 (c.) A mining lease for forty years or 
 
 under ; 
 (d) A water lease or other easement 
 
 lease for forty years or under ; 
 («.) A repairing lease for sixty years or 
 
 under ; 
 (/.) A building lease for ninety-nine 
 years or under. 
 And where it is possible to satisfy the 
 Court that it is customary in the district 
 and beneficial to the inheritance to grant 
 longer leases than for the periods above 
 mentioned, the Court will sanction the 
 
230 
 
 MINOR. — MISBRICORDIA. 
 
 Ministerial Voyyera. — ^OontiTmed.) 
 tenant for life granting leases for longer 
 periods than those above mentioned in 
 all the above-mentioned varieties of lease, 
 excepting only the agricultural lease or 
 first variety. 
 
 (B.) A power of borrowing money for 
 the improvement of the estate, and charg- 
 ing the loan upon the inheritance. This 
 power was necessitated by the somewhat 
 rigorous rule of Courts of Equity which 
 denied any remuneration to tenants for 
 life for the expenses they might have in- 
 curred, even for permanent improvements, 
 unless the improvements were absolutely 
 indispensable for the maintenance of the 
 estate at its accustomed value (see Dent 
 V. Dent, 30 Beav. 363) ; and no prudent 
 tenant for life should expend his own 
 money on the estate, it being free to him 
 to expend borrowed money for the pur- 
 pose. His power of borrowing depends 
 upon various Acts, that is to say — 
 (as.) If, on the one hand, the money 
 intended to be borrowed is to 
 be expended in agrieultwral im- 
 provements, then he may have it 
 from Government under the Im- 
 provement of Land Act, 1864 
 (37 & 38 Vict. c. 114), upon the 
 terms of that Act ; and 
 (J.) If, on the other hand, the money 
 intended to be borrowed is to 
 be expended in the improvement 
 of a residence, then he may have 
 it from Government in like man- 
 ner, although to a more limited 
 extent, under the Limited Own- 
 ' er's Residences Act, 1870 (33 & 
 34 Vict. c. 56), and the Act 
 amending same (34 & 85 Vict. 
 0. 84), upon the terms of those 
 two Acts ; and 
 (C.) A power of selling the settled 
 estates and conveying the same to the 
 purchaser for an estate in fee simple. 
 This power depends on various Acts, 
 principally upon the Act 11 Geo. 4 & 1 
 Will. 4, c. 47, which authorizes a sale or 
 mortgage of the lands, when that is 
 requisite for the payment of the debts of 
 the testator, being the settlor ; the pro- 
 visions, however, of which Act have 
 been largely superseded by the provisions 
 of the Trustee Act, 1850 (13 & 14 Vict, 
 c. 60), and of the Leases and Sales of 
 Settled Estates Act, 1856 (19 & 20 Vict. 
 c. 130). 
 
 (3.) The ministerial powers of a tenant 
 for life in right of his wife, and of a 
 tenant by the curtesy or in dower, depend 
 
 Ministerial Powers. — (OpnUnued.) 
 as to leasing on the Leases and Sales of 
 Settled Estates Act, 1856, and are gener- 
 ally subject to the same or the like pro- 
 visions as are above stated regarding a 
 tenant for life in his own right ; and 
 
 (3.) The ministerial powers of a tenant 
 in tail depend partly on the stat. 3 & 4 
 Will. 4, c. 74 (as to leasing), and partly on 
 the Leases .and Sales of Settled Estates 
 Act, 1856 ; but owing to the facility with 
 which he may at the present day bar the 
 entail and become absolute owner, the 
 question of his ministerial powers is com- 
 paratively insignificant. 
 
 8ee, also, title CoNVByANCES. 
 
 MINOR. A person who has not at- 
 tained his majority is usually so termed, 
 in the Irish Reports principally ; that is, 
 one under the age of twenty-one years. 
 See title Inpanct. 
 
 MISDEMEANOR. A misdemeanor is 
 an act committed or omitted, in violation 
 of a public law either forbidding or com- 
 manding it. This general definition, 
 however, comprehends both crimes and 
 misdemeanors, which, properly speaking, 
 are mere synonymous terms, though in 
 common usage the word " crimes " is made 
 to denote such offenses as are of a deeper 
 and more atrocious dye, while smaller 
 faults and omissions of less consequence 
 are comprised under the milder term of 
 misdemeanors only. In the English Law 
 the word "misdemeanor" is generally 
 used in contradistinction to felony, and 
 misdemeanors comprehend all indictablet 
 offenses which do not amount to felony — 
 as libels, conspiracies, attempts and solici- 
 tations to commit felonies, &c. 4 
 Chitty PI. 5, and n. 3. 
 
 MISE. The issue in a writ of right, 
 when the tenant in a writ of right pleads 
 that his title is better than the demand- 
 ant's, he is said to join the mise on the 
 mere right. 
 
 MISERICORDIA. This word was 
 commonly used in our law to signify a 
 discretionary mulct or amerciament im- 
 posed upon a person for an offense ; thus, 
 when the plaintiff or defendant in an 
 action was amerced the entry was always 
 ideo in miserieordid, and it was so called 
 because the fine was but small (and 
 therefore merciful) in proportion to the 
 offense; and if a man was outrageously 
 amerced in a Court not of record — as in 
 a Court Baron, for instance — there was 
 
MISFEASANCE.— MITTER LE DROIT. 
 
 231 
 
 Misericordia. — (OcmUnued.) 
 a writ called Mbderatd Misericordid, to be 
 directed to the lord or his bailifl, com- 
 manding them that they take moderate 
 amerciaments in just proportion to the of- 
 fense of the party to be amerced. When 
 a fine was amerced on a whole county 
 instead of an individual, it was then 
 termed Misericordia Comm/unis. E. N. B. 
 75 ; Les Termes de la Ley. 
 
 MISFEASANCE. Doing evil, trespass- 
 ing, &c. ; and he who does so is sometimes 
 called a misfeasor (Cowel). The term is 
 used in contradistinction to a non-feascmce^ 
 which means simply an abstention from 
 doing altogether. An interesting appli- 
 cation of this distinction is to be found 
 in the Six Carpenters' Case (1 Sm. L. C. 
 133), where the mere refusal to pay for 
 the wine (sc. beer) which the men had 
 drunk in a public-house was declared not 
 sufficient to make them trespassers ab 
 initio in coming upon the premises at all, 
 as breaking the pots or doing other will- 
 ful damages and misfeasances, it was 
 stated, would have made them. 
 
 MISJOINDER. The joining of two or 
 more persons together as the plaintiffs or 
 defendants in an action who ought not to 
 be joined. Non-joinder is the omitting 
 to join one or more persons who ought to 
 have been joined as the plaintiffs or de- 
 fendants in an action. See, also, title 
 NoN-JorNDBB ; and generally as to modes 
 of remedying or taking advantage of 
 misjoinder or nonjoinder, see title Amend- 
 ment. 
 
 MISNOMER. The mistake in a name 
 or the using one name for another. It is 
 a general rule of law that a misnomer has 
 no effect if the subject-matter or person 
 is certain or ascertainable notwithstand- 
 ing the misnomer, ^^ Falsa demanstratio 
 non nocet, si de corpore constat;" and in 
 its application to legacies, Falsd demons 
 stratione legatnm non peremi," Just. Inst, 
 ii. 20, 30 ; and " Longe magis falsa causa 
 non nocet." Just. Inst. ii. 30, 30.' 
 
 MISPLEADING. Pleading incorrect- 
 ly, or omitting any thing in pleading, 
 which is essential to the support or de- 
 fense of an action, as in the case of a 
 plaintiff not merely stating his title in a 
 defective manner, but setting forth a title 
 which is essentially defective in itself; 
 or, if to an action of debt the defendant 
 pleaded not guilty instead of nil debet, 
 this was mispleading (Salk. 365). Also, 
 
 Mispleading. — ( OonUrmed.) 
 
 in Chancery suits, it is a mispleading in 
 certain cases if the defendant do not 
 allege the absence of notice, see title 
 Notice. 
 
 MISPRISION (from the French mepris, 
 neglect or contempt). IJisprision is gener- 
 ally understood to be all such high offen- 
 ses as are under the decree of capital but 
 closely bordering thereon ; and it is said 
 that a misprision is contained in every 
 treason and felony whatsoever. Mispris- 
 ions are generally divided into two sorts, 
 negative and positive, the former con- 
 sisting in the concealrnent of something 
 which ought to be revealed, the latter in 
 the commission of something which 
 ought not to be done. Of the first, or 
 negative kind, is what is called mispris- 
 ion of treason, which consists in the 
 bare knowledge and concealment of trea- 
 son, without any degree of assent there- 
 to. Of this negative kind is also mis- 
 prision of felony, which is the conceal- 
 ment of a felony which a man knows but 
 never assented to. The concealment of 
 treasure trove, which belongs to the king 
 or his grantees by royal prerogative, is 
 also a species of negative misprision. 
 Positive misprisions are generally denomi- 
 nated contempts or high misdemeanors ; 
 such, for example, are the mal-adminis- 
 tration of such high officers as are in 
 public trust and employment ; the embez- 
 zling of the public money; contempts 
 against the king's prerogative, his person, 
 and government, or his title, &c. 1 
 Hawk. P. C. 60. 
 
 MITTER LE DROIT (to pass or trans- 
 fer the right). This phrase is used in 
 contradistinction to that of mitter I'estate, 
 and both are employed to point out the 
 mode in which releases of land operate. 
 A release might be a conveyance of a 
 right to a person in possession. Thus, 
 where a person was disseized or put out 
 of possession of lands, although the dis- 
 seizor thereby acquired the possession, 
 still the right of possession and property 
 remained in the msseizee ; but if the dis- 
 seizee agreed to transfer his right to the 
 disseizor, the proper mode . of carrying 
 such an agreement into execution was by 
 a release, the disseizor already having 
 the possession; and as in such cases 
 nothing but the baVe right passed, the 
 release was said to inure by way of mit- 
 ter le droit, i. e., transferring the right. 
 A release was said to inure by way of 
 
232 
 
 MITTER L'BST ATE. — MONEY COUNTS. 
 
 Slitter Le Droit. — (0(mUnued.) 
 
 mitter I' estate, i. e., of passing the estate, 
 e. g., when two or more persons become 
 seized of the same estate by a joint title, 
 either by contract or descent, as joint 
 tenants or co-parceners, and one of them 
 releases his right to the other, such release 
 is said to inure Ijy way of mitter Vestate, 
 i. e., transferring the estate. 4 Cru. Dig. 
 84, 85. 
 
 And see title Convbyamcbs, sub-title 
 
 MITTEK L'ESTATE : See title Mit- 
 TBB LB Droit. 
 
 MITTIMUS. A writ by which records 
 are transferred from one Court to another, 
 sometimes immediately, as out of the 
 King's Bench into the Exchequers and 
 sometimes by a certiora/ri into Chancery, 
 and from thence by a mittmius into 
 another Court. This word is also used 
 to signify a precept that is directed by a 
 justice of the peace to a gaoler for the 
 receiving and safe-keeping of a felon or 
 other offender committed by the said 
 justice to the gaol. Lea Termes de la 
 Ley. 
 
 MIXED ACTIONS are such as partake 
 of the twofold nature of real and per- 
 sonal actions, having for their object the 
 demand and restitution of real property, 
 and also personal damaiges for a wrong 
 sustained. 
 
 * MODO ET FORMO. Words used in 
 old pleadings where a party denied alle- 
 gations not only as to their general effect 
 but the exact manneir and form. Steph. 
 PI. 189, 190. 
 
 MODUS DECIMANDI (the mamner of 
 UtMng, or paying titles). A discharge 
 from the payment of tithes, by custom or 
 prescription, is said to be either de modo 
 dedmandi (i. e., in the iLanner of tithing 
 or paying tithes), or de non deeimamdo {i. 
 «., in paying no tithes). Amadua ded- 
 mandi, commonly called by the simple 
 name of modms only, is where there is by 
 custom a particular manner of tithing 
 allowed, different from the general man- 
 ner of taking tithes in kind : and this is 
 sometimes eflected by a pecuniary com- 
 pensation, as twopence an acre for the 
 tithe of land ; sometimes it is a compen- 
 sation partly in work and labor, as that 
 the parson shall have only the twelfth 
 cock of hay, and not the tenth, in con- 
 sideration of the owner's making it for 
 him, and the like : in short, any means 
 
 Modns Decimandi. — ( OonUnued.') 
 whereby the general law of tithing is 
 altered, and a new method of taking 
 tithes is introduced, is called a mod'm 
 demrumdi, or special manner of tithing. 
 A discharge from the payment of tithes 
 by a custom or prescription, de non deci- 
 mando, arises either from some personal 
 privileges which the party enjoys who is 
 so discharged, or by a real composition 
 made in Ueu of payment of tithes, or 
 from some other like circumstahce. Thus, 
 the king, by his prerogative, is discharged 
 from all tithes ; so a vicar is discharged 
 from paying tithes to the rector, and the 
 rector to the vicar. A real composition 
 is made by an agreement between the 
 owner of lands and the parson or vicar, 
 with the consent of the ordinary and the 
 patron, that such lands shall for the 
 future be discharged from payment of 
 tithes in consideration of some land or 
 other REAL recompense being given to 
 the parson in lieu and satisfaction there- 
 of. 3 Inst. 490 ; 14 M. & W. 393. 
 8ee, also, title Tithes. 
 
 MOHATBA. In French Law, a fraudu- 
 lent contract designed to cover a usurious 
 loan of money. 
 
 MOIETY (from the French, nMm, 
 halt). The half or part of any thing. 
 Thus, joint tenants are sometimes said to 
 hold by moieties (Cowel). The shares of 
 two joint tenants are of necessity moie- 
 ties; but the shares of two tenants in 
 common entitled equally would also be 
 moieties. An inaccurate use of the word 
 ' ' moiety " is that in which it signifies 
 merely ^ari, aha/re or proporUan, whether 
 equal or unequal. 
 
 MOLIITER MANUS IMPOSUIT {he 
 
 laid hands on him gently). When a per- 
 son is sued for an assault, he may set forth 
 the whole case, and plead that he laid 
 hands on him gently, molUter manus im- 
 pomit. From these words having been 
 so used in pleas, several justifications in 
 actions of trespass for assault are called 
 by this phrase (1 Sid. 301). The degree 
 of gentleness (or of roughness) neces- 
 sarily varies with the degree of the resist- 
 ance. 
 
 MONET-BILLS. Bills for raising 
 revenue or making appropriations. 
 
 MONET COUNTS. These are simple 
 forms of pleading in actions of assumpsit, 
 and were provided by the C. L. P. Act, 
 1853, Sch. B. They are goods sold, work 
 
MONITION. — MONTH. 
 
 233 
 
 Money Counts. — (Oontinued.) 
 done and materials provided, money lent, 
 money paid, money received, and such 
 like other counts, which are also some- 
 times called the common indebitatus 
 count. 
 
 See title AsstrMPsiT ; and Ikdbbita- 
 TTjs Assumpsit. 
 
 MONITION. An order, or admonitory 
 epistle, issuing from a spiritual C6urt, 
 and addressed to some person or persons 
 offending against the laws ecclesiastical, 
 advising or monishing them to act in 
 obedience to those laws. When a party 
 has been duly served with a monition, he 
 is technically said to have been "mon- 
 ished. " See Rog. Ecc. Law ; Bum's Ecc. 
 Law, tit. "Monition." 
 
 MONK. The profession of a religious 
 person of this character made him dead 
 in law, or civilly dead (see titles CrviL 
 Death ; Clerotmah) ; but since the Ref- 
 ormation, the monkish profession is not 
 recognized by law in England; and 
 amounting, therefore, to no religious pro- 
 fession at all, it no longer renders the 
 monk civilly dead, tn re Metcalfe^ 33 L. 
 J. (Ch.) 308. 
 
 MONOPOLY. The sole right of selling 
 a particular article of manv3acture. The 
 power to grant such a right was in early 
 times claimed as a prerogative of the 
 Crown. Its exercise was in many cases 
 most beneficial, as ingenious foreign 
 workmen were from time to time drawn 
 to England by the expectation of sub- 
 stantial commercial advantages being se- 
 cured to them by royal letters patent 
 (being, in fact, these grants of monopoly) ; 
 and enterprising Englishmen were also 
 induced by the like expectation to travel 
 abroad and acquire a practical knowledge 
 of trades and arts. But the Crown expe- 
 riencing in those days the evUs of no 
 regular taxation — the chief of which 
 was a perpetually-recurring want of 
 money to conduct the affairs of Govern- 
 ment — the prerogative was exposed to, 
 and its exercise soon became affected with, 
 many abuses, principally in this respect, — 
 that the monopoly was sold at a ruinous 
 price, usually to the highest bidder, 
 whether or not he was the true and first 
 inventor of the process of manufacture, 
 and latterly without any regard at all to 
 his capacity or ability as an inventor 
 or manufacturer, and frequently indeed 
 to courtiers, who made it a means of gain 
 exclusively, and did not assist the na- 
 
 30 
 
 Monopoly. — (Oontmued,.') 
 
 tional industry at all. The evils arising 
 from this abuse of the prerogative were 
 become so great by the latter end of the 
 reign of Elizabeth, that the Courts of 
 Common Law, in the Qme of MonopoUes 
 (JDwrcey v. Allen, 11 Rep. 84), 44 Eliz., 
 adjudged monopolies to, be illegal ; and 
 parUament took up the matter as early as 
 1601, and, in the next reign, succeeded 
 in regulating the abuse by enacting the 
 Patent Act (31 Jac. 1, c. 3), which is the 
 basis of the Patent Law at the present 
 day. 
 
 See title Patents. 
 
 MONSTER. One who has. not the 
 shape of a human being, and, although 
 bom in lawful wedlock, cannot be heir 
 to any land. But mere deformity of per- 
 son does not make any one a monster. 
 
 MONSTRANS DE DROIT {showing of 
 right). One of the Common Law meth- 
 ods of obtaining possession or restitution 
 from the Crown, of either real or per- 
 sonal property, is by monstrams de droit, 
 manifestation or plea of right, which may 
 now be preferred or prosecuted either in 
 the Chancery or in any of the Common 
 Law Courts, although originally in the 
 Chancery and Exchequer only (see Peti- 
 tions of Right Act, 1860, 23 & 24 Vict, 
 c. 34). A moMtroms de droit Ues when 
 the right of the party, as well as the right 
 of the Crown, appears upon record, wMch 
 is putting in a claim of right, grounded 
 on facts already acknowledged and estab- 
 lished, and praying the judgment of the 
 Court whether, upon those facts, the king 
 or the subject has the right. Skin. 609 ; 
 Day's Common Law Pro. 563. 
 
 ♦MONSTRANS DE FAITS. A kind 
 of profert or showing of deeds or rec- 
 ords. Jacob Diet. 
 
 * MONSTR.ATERUNT. A writ which 
 lay for tenants in ancient demesne when 
 they distrained to do other services and 
 customs, unto their lord, than their an- 
 cestors used to do. Jacob Diet. 
 
 MONTH. In English Law, a lunar 
 month, or twenty-eight days, unless other- 
 wise expressed. Hence a lease for 
 twelve months is for forty-eight weeks 
 only; but if it be for a "twelve-month," 
 it is good for the whole year. In a con- 
 tract, if the parties obviously intended 
 that a month should be a calendar month, 
 the law will give effect to that intention. 
 If money be lent for nine months, it must 
 
234 
 
 MORATEN m LEGE. — MORTGAGE. 
 
 Month. — {Oontin/usd.) 
 
 be understood calendar months (Str. 446) ; 
 similarly in the case of bills of exchange 
 and promissory notes. In legal proceed- 
 ings, as in time to plead, a month is four 
 weeks (3 Burr. 1455), but is to denote in 
 future a calendar month, see Order li., 
 r. 1, Proposed Rules under Judicature 
 Act, 1873. But where a statute speaks 
 of a year, it shall be computed by the 
 whole twelve months (2 Cro. 167) ; and 
 so generally in all statutes. " 
 
 *MOKATENINLEGE. This phrase 
 was used when a party did not go forward 
 in pleading, but rested or abided by the 
 decision . of the Court, as to the suffi- 
 ciency of the adverse party's pleading. 
 
 * MORGANATIC MARRIAGE. A 
 
 marriage between a man of superior and 
 a woman of inferior rank, in which it was 
 stipulated that the wife and children 
 should not enjoy the rank, or inherit the 
 possessions of the husband and father. 
 
 MORT CIVILE in French Law deno- 
 ted civil death, as upon conviction for 
 felony. It was nominally abolished by 
 a law of the 31st of May, 1854, but some- 
 thing very similar to it, in effect at least, 
 still remains. Thus, the property of the 
 condemned possessed by him at the date 
 of his conviction goes and belongs to his 
 successors (Tieritiers), as in case of an in- 
 testacy; and his future acquired property 
 goes to the State by right of its preroga- 
 tive (peer d/roit de desJierence), but the 
 State may, as a matter of grace, make it 
 over in whole or in part to the widow and 
 children. 
 
 MORT D'ANCESTOR. An assize of 
 inort d'anceitor was a writ which lay for 
 a person whose ancestor died seized of 
 lands, &c., that he had in fee simple, and 
 after his death a stranger abated; and 
 this writ directed the sheriff to summon 
 a jury or assize, who should view the 
 land in question,' and recognize whether 
 such ancestor were seized thereof on the 
 day of his death, and whether the de- 
 mandant were the next heir. 
 
 MORTGAGE (rrwrtgagium; from mort, 
 death, and gage, pledge). A mortgage 
 may be described to be a conveyance of 
 lands by a debtor to his creditor, as a 
 pledge' or security for the repayment of 
 a sum of money borrowed. The. debtor 
 who so makes a conveyance of his lands, 
 or so puts them in pledge, is termed the 
 mortgagor, and the creditor to whom the 
 
 Mortgage. — ( Oontinued.) 
 lands are so conveyed as a security fdr 
 the money lent is termed the mortgagee. 
 The mortgagee, with respect to the tenure 
 which he acquires in the lands so con- 
 veyed to him, is also termed a tenant in 
 mortgage. 
 
 Mortgages of freehold lands are of two 
 sorts: either the lands are conveyed to 
 the mortgagee and his heirs in fee simple, 
 with a proviso that if the mortgagor pays 
 the money borrowed on a certain day, 
 the mortgagee will reconvey the lands ; or 
 else the lands are conveyed to the mort- 
 gagee, his executors, administrators and. 
 assigns, for a long term of years, with a 
 proviso that if the money borrowed is 
 repaid on a certain day, the term shaU 
 cease and become void. There is also 
 another kind of mortgage, where the pro- 
 viso for redemption does not oblige the 
 mortgagor to pay the money on a partic- 
 ular day, but allows him to do it at any 
 indefinite time ; and this is called a Welsh 
 mortgage. 3 Cruise, 81 ; 2 Bl. 152. 
 
 Mortgages of leasehold lands are like- 
 wise of two sorts, being either (1) by assign- 
 ment, in which case the mortgagee coming 
 into legal privity with the lessor becomes 
 liable to the latter on the rents and cove- 
 nants ; or (2) by underlease, in which case 
 the mortgagee by reason simply of the 
 absence of that privity with the lessor 
 does not become liable to the latter on 
 the rents and covenants. In either case 
 there is the usual proviso for the re-assign- 
 ment or surrender of the premises upon 
 repayment of the principal money lent 
 and interest and costs. 
 
 Mortgages of copyhold lands, where 
 they constitute the principal or entire se- 
 curity, are usually made by surrender 
 without admittance, subject to a proviso 
 making void the surrender upon repay- 
 ment of the principal, interest, and costs; 
 but where they are only a subordinate 
 part of the security, the mortgagee is fre- 
 quently satisfied with a covenant to sur- 
 render, which he takes from the mort- 
 gagor, subject to the usual proviso that 
 the covenant shall be discharged and be- 
 come void upon repayment of the mort- 
 gage debt and interest and costs. 
 
 A mortgagee may realize the mortgage 
 debt in various ways, — (1.) By foreclos- 
 ure, which he efleotuates by means of a 
 suit in Equity; (3.) By Sale, which he 
 carries out either by exercising his power 
 of sale (if any) contained in the mort- 
 gage deed, in which case he must care- 
 fully conform to the terms of the power. 
 
MORTMAIN ACTS. — MOVEABLES. 
 
 235 
 
 Mortgage. — ( Continued.) 
 or by exercising the statutory power of 
 sale, which is to be taken (in the absence 
 of an express one) to be imphed in every 
 mortgage deed (23 & 24 Vict. c. 145), in 
 which case he must carefully comply 
 with the words of the enabling statute. 
 The mortgagor's remedy against his mort- 
 gagee is, — By Redemption, which in the 
 ordinary case he exercises by simply pay- 
 ing back the borrowed money, and in all 
 cases of peculiarity or of unsettled ac- 
 counts by means of a suit in Equity. 
 Where an estate is mortgaged for success- 
 ive debts to successive mortgagees, if 
 any mesne mortgagee wishes to realize his 
 mortgage debt he files a biU in Equity 
 oflEering to redeem the prior mortgagees, 
 and praying to foreclose those that are 
 posterior to himself, according to the 
 rule of practice, — "Redeem up, foreclose 
 down." 
 See, also, titles Notice ; Tacktng, &c. 
 
 MORTMAIN ACTS. These Acts had 
 for their object the prevention of lands 
 getting into the possession or control of 
 religious corporations, or, as the name in- 
 dicates, in mortvA manu. After numer- 
 ous prior Acts dating from the reign of 
 Edward I., it was enacted by the stat. 9 
 Geo. 2, c. 36 (called the Mortmain Act 
 par excellence), that no lands should be 
 given to charities unless certain requisites 
 should be observed. 
 
 MORTUARY. A mortuary is that 
 beast or other moveable chattel which, 
 upon the death of the owner thereof, by 
 the custom of some places, becomes due 
 to the parson, vicar, or rector of the par- 
 ish in which the person so dying resided, 
 in Ueu or satisfaction of tithes or other 
 ecclesiastical offerings which such party 
 may have forgotten or have neglected to 
 pay while alive. 21 H. 8, c. 6; Les 
 Termes de la Ley. 
 
 MOTION. An application to the Court 
 by the plaintiff or defendant in an ac- 
 tion, or by the counsel for either, in order 
 to obtain some rule or order of Court 
 which may become necessary in the course 
 of the proceedings ; and the act of mak- 
 ing such an application is termed moving 
 the Court. The word also signifies in- 
 stance, desire, will, &c. Thus a person 
 is said to do a thing of his own motion, 
 i. e., voluntarily, without being required 
 to do it. 
 
 See, also, the next following titles. 
 
 MOTION OF COURSE. Is a motion 
 which is granted as a matter of course, 
 and which, therefore, is not usually made 
 in open Court, but is granted by the mas- 
 ter or officer of the Court when the paper 
 containing the direction to move is laid 
 before him, with a barrister's signature 
 attached. Almost every thing that may 
 be done on motion of course can also be 
 done, and is ordinarily done, by petition 
 of course at the Rolls. See that title ; and 
 2 Dan. Ch. Pr., Appendix. 
 
 MOTION IN PARLIAMENT. Making 
 a motion in either House of Parliament 
 is simply the act of submitting a propo- 
 sition. In the House of Commons a mem- 
 ber desirous of making a motion is de- 
 sired to give previous notice thereof, and 
 having done so, it is entered in terms 
 upon the notice paper or order book. In 
 the Lords this notice is not required by 
 the rules of the House, but, for the sake 
 of general convenience, the same practice 
 ordinarily prevails. In the House of 
 Commons there are certain fixed days ap- 
 pointed for motions of which notice has 
 previously been given, as contradistin- 
 guished from "orders of the day," which 
 latter are questions which the House has 
 already agreed to consider, or has partly 
 considered and adjourned for further 
 consideration or debate. On an " order " 
 day the orders have precedence of mo- 
 tions, and on a " motion " day the motions 
 have precedence of orders ; but in either 
 case if the one can be disposed of in 
 time, the House will proceed to the other. 
 
 MOVEABLES. Moveable and im- 
 moveable is one of the commonest, be- 
 cause the most apparent and natural, of 
 the modern divisions of things, as the 
 subjects of property. It is not coinci- 
 dent, however, with the historical divis- 
 ions which have obtained most extensively 
 in ancient or in modern times, not agree- 
 ing with the Roman Law division into 
 Res Mandpi and Res Nee Marwipi (agricul- 
 tural and non-agricultural) on the one 
 hand, nor with the EngUsh Law division 
 into lands and chattels, or real and per- 
 sonal property, on the other. For ex- 
 ample, a leasehold house is an immoveable, 
 and yet is personal property ; and a dig- 
 nity or title of honor is a moveable, and 
 yet is real property. Nevertheless, just 
 as the division into Res Mandpi and Res 
 Neo Mancipi gradually gave way before 
 the industrial development of Roman 
 greatness, so also the division into real 
 and personal property is more and more 
 
236 
 
 MUNICIPAL CORPORATION.— NATIVO HABENDO. 
 
 Moveables. — (OonMrmed.) 
 giying way before the advancing diversi- 
 ties of English wealth. For example, a 
 leasehold house is now for many purposes 
 looked upon as land, and is even declared 
 to be such in the interpretation clause of 
 most modern statutes. But the division 
 into moveable and immoveable, finding 
 its basis in nature, promises to be perma- 
 nent ; and it may grow to be as fertile in 
 consequences as the other divisions have 
 been. 
 
 MUNICIPAL CORPORATION: See 
 
 title CoRPOBATioiir. 
 
 MUNIMENTS. Deeds, evidences, and 
 writings in general, whether belonging 
 to public bodies or private individuals, are 
 called muniments ; and in cathedral and 
 collegiate churches, and generally in all 
 offices there is a strong rorom or compart- 
 ment provided for the keeping of the 
 muniments relating to their property, &c., 
 which is thence termed a muniment 
 house or strong room. Les Termes de la 
 Ley ; 3 Inst. 170. 
 
 MURDER. The act of a person of 
 sound memory, and of discretion, unlaw- 
 fully killing any person under the king's 
 peace, with malice aforethought, either 
 express or implied. Express malice is 
 signified by one person killing another 
 with a deliberate mind and formed de- 
 sign, and which formed design is evi- 
 denced by external circumstances discov- 
 ering that inward intention, as by- lying 
 in wait, antecedent menaces, former 
 grudges, and concerted schemes to do 
 him some bodily harm. Implied malice 
 is signified by one person voluntarily 
 killing another without any provocation ; 
 for when such deliberate acts are com- 
 mitted, the law implies or presumes mal- 
 ice to have urged the party to the com- 
 mission of them, although no particular 
 enmity can be proved (3 Inst. 4 ; 1 Hale, 
 455) ; and in case a person trespassing in 
 pursuit of game fires at a bird, and, with- 
 out any intention at all of doing so, hits 
 and kills a man, that is murder, inasmuch 
 as the act of poaching is felonious, and 
 the felony therein couples itself to the 
 death, and supplies the intention which 
 was lacking. R. v. Grispe, 1 B. & Aid. 
 283. 
 
 * MURDRUM. In old English Law, 
 the kilUng of a man iu a secret manner. 
 
 * MUTATION OF LIBEL. An amend- 
 ment to a libel. Dunlap Admr. Pr. 313. 
 
 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 otherwise ; or upon hav- 
 ing pleaded not guilty refuses to put him- 
 seB upon the country. 
 
 MUTINY ACT. An Act of Parliament 
 to punish mutiny and desertion, and for 
 the better regulation of the army, and 
 their quarters. The Mutiny Act, properly 
 so called, relates to the army only ; the 
 Marine Mutiny Act relates to the navy. 
 Bach Act is passed annually, the jealousy 
 of the constitution for the individual's 
 liberties being such as not to tolerate that 
 such Acts, or the jurisdictions which they 
 establish, should become perpetual or per- 
 manent. This necessity for their annual 
 re-enactment secures the annual re-as- 
 sombling of Parliament. 
 
 MUTUAL CREDIT: See title Set- 
 off. 
 
 MUTUAL PROMISES. In a declara- 
 tion in special assumpsit the plaintiff 
 usually alleges that, in consideration that 
 he, at the request of the defendant, had 
 then prpmised tlie defendant to observe, 
 perform, and fulfill all things in the 
 agreement on his, the plaintiff's, part, 
 the defendant promised the plaintiflE 
 that . he would perform and fulfill all 
 things in the said agreement on his, the 
 defendant's, part to be observed and per- 
 formed,* which is thence termed the alle- 
 gation or statement of mutual promises. 
 
 * MYSTIC TESTAMENT. A will 
 under seal. Bouv. Diet. ; La. Civ. Code, 
 art. 1867. 
 
 N. 
 
 *NAMARE. To take or distrain. Used 
 in old records. 
 
 NANTISSEMENT. In French Law is 
 the contract of pledge ; if of a moveable, 
 it is called gage, and if of an immoveable 
 it is called antichrese. 
 
 * NARR. The abbreviation of narratio; 
 a declaration in a cause. 
 
 NATITO HABENDO. A writ which 
 lay for a lord when his villein had run 
 away from him ; it was directed to the 
 shenffl, and commanded him to apprehend 
 the villein, and to restore him together 
 with his goods to the lord. But if a vil- 
 lein had tarried in a town or ancient de- 
 
NATURAL-BORN SUBJECTS. — NEGLIGENCE. 
 
 237 
 
 Native Habendo. — (Continued.) 
 mesne lands for the period of a year and 
 a day without having been claimed by 
 his lord, then the lord could not seize him 
 in either of such places (Les Termes de la 
 Ley). It was a writ of right raising the 
 title of the lord, upon whom, therefore, 
 the onvs prdbandi was laid ; and such a 
 provision was also m favor of liberty, the 
 proof of villenage, or neifty, going back 
 as far as 1 Ric. 1. 
 
 See, also, title Villbnage. 
 
 NATURAL.BORN SUBJECTS. Those 
 who are born within the dominions, or 
 rather within the allegiance of the King 
 of England. 
 
 See, also, title AiLEGiANCB. 
 
 NATURALIZATION. The making a 
 foreigner a lawful subject of the state, or, 
 as it is sometimes termed, the king's nat- 
 ural subject. Formerly an Act of Parlia- 
 ment was required in each particular case 
 to naturalize an alien ; the king by his 
 letters patent might denizenize but not 
 naturahze. However, by the 7 & 8 Vict. 
 c. 66, which was a General Act, it was 
 enacted that aliens of friendly states 
 might become naturalized British sub- 
 jects upon complying with the requisites 
 of the Act. And now, by the Naturali- 
 zation Act, 1870 (33 & 34 Vict. c. 14), 
 further facilities of naturalization are 
 afforded, and the important privilege of 
 expatriation is conferred; also, the evil 
 or inconvenience of a " double allegiance " 
 is remedied. 
 
 See, also, title Allegiance. 
 
 NAVIGATION. The right of the pub- 
 lic to navigate a public river is para- 
 mount to any right of property in the 
 Crown, which never had the power, e. g., 
 to grant a weir in obstruction of the 
 navigation {WiMa/ms v. WiUcox, 3 N. 
 & P. 608). As to what is evidence of a 
 public river, the flux and reflux of the 
 tides is prima, fcuAe evidence of its being 
 so; but the evidence is not conclusive, 
 because a public right of navigation in 
 such a river may have been extinguished 
 either (as.) By legal means; e. g., an Act 
 of Parliament, a writ of ad quod damnum 
 {see that title), or an order of conunission- 
 ers of rivers; or (S.) by natural causes, e. 
 g., a retreat of the sea or a deposit of silt 
 and mud {Rex v. Montague, 6 D. <fc R. 
 616). A navigable river is a public high- 
 way for vessels at all times and states of 
 the tide {Colchester [Mayor] v. BrooTce, 7 
 Q. B. 339); and an obstruction to the 
 
 Navigration. — ( Continued.) 
 
 navigation may be the subject either of 
 an action or of an indictment, according 
 to the circumstances. Similarly, the 
 public have a right of user of a canal, 
 which is an artificial navigable river, e. g., 
 with boats propelled by steam power, if 
 they do no injury to the canal beyond 
 what would be occasioned by traction by 
 horses. Case y. Midland Ry. Co., 5 Jur. 
 (N. 8.) 1017. 
 
 * NE ADMITTAS. A writ by which 
 the bishop was forbidden to admit to a 
 benefice the other party's clerk during the 
 pendency of a qua/re impedit. Jacob 
 Diet. 
 
 NE EXEAT REGNO {that he leame not 
 the Tcingdoni). A writ which issues to re- 
 strain a person from leaving the kingdom. 
 This wnt is frequently resorted to in 
 Equity when one party has an equitable 
 demand against another, and that other 
 is about to leave the kingdom ; and it is 
 only in cases where the intention of the 
 party to leave can be shown that the 
 writ is granted. P. N. B. ; Gray's Ch. Pr. 
 16. 
 
 NEGATIVE PREGNANT. In plead- 
 ing signifies the statement of a negative 
 proposition in such a form as may imply 
 or cany with it the admission of an affirm- 
 ative. Thus, in an action of trespass for 
 entering the plaintiff's house, the defend- 
 ant pleaded that the plaintiff's daughter 
 gave him license to do so, and that he 
 entered by that license; to which the 
 plaintiff replied that he did not enter by 
 her license. This repUcation was held 
 to be a negative pregnant, inasmuch as it 
 might imply or carry with it the admis- 
 sion that a license was given, although 
 the defendant did not enter by that license, 
 and the proposition would therefore, in 
 the language of pleading, be said to be 
 pregnant with that admission, viz., that 
 a license was given. A negative preg- 
 nant is one of those faults in pleading 
 which fall within the rule that plead- 
 ings must not be ambiguous or doubtful 
 in meaning. In the above instance the 
 plaintiff should have denied either the 
 entry by itself, or the license by itself ; 
 for the effect of denying both together 
 was to leave it doubtful whether he meant 
 to deny the Ueense, or the fact of the de- 
 fendant's entry by virtue of that license. 
 Steph. on PI. 408, 409, 4th ed. 
 
 NEGLIGENCE. Negligence produc- 
 ing damage to the plaintiff is in aU cases 
 
238 
 
 NEUTRALITY.— NEW TBIAL PAPER. 
 
 Negligence. — (Oontirmed.) 
 a ground of action; but the question 
 what shall be considered negligence ifor 
 this purpose is a question for the jury, 
 subject to certain rules of law, or of com- 
 mon sense, according to which the meas- 
 ure of culpable negligence varies accord- 
 ing as the circumstances of the case differ. 
 In all oases the first point to settle is the 
 amount or degree of diligence exigible 
 from the defendant, for by means of that 
 positive criterion, it is possible to ascer- 
 tain in the next place the amount or de- 
 gree of negligence on the defendant's 
 part which wiE involve him in liability 
 for the damage which has arisen. The 
 rule is, that the negligence is inversely in 
 proportion to the diligence. For exam- 
 ple, if but slight diligence (lews diligenUa) 
 is exigible, then only gross negligence 
 (arassa negligenUa) amounting also to will- 
 fulness or intentionaUty (dolus), will ren- 
 der the defendant liable, as is the case 
 with gratuitous bailees, whether deposi- 
 taries or mandatories. And, on the other 
 hand, if extreme diligence (exaeta diU- 
 gentia) is exigible, then the slightest neg- 
 ligence (levis negligentia, or tevis culpa) 
 wiU in like manner render the defend- 
 ant liable, as is the case with innkeepers, 
 carriers, and generally with paid bailees. 
 But, subject to these rules, the ques- 
 tion is one oifact ; and the mode of proof 
 varies from the most apparent case, in 
 which the facts speak for themselves (res 
 ipsa loqwiPitr) condemning the defendant, 
 into the least tangible case of all, in 
 which the judge hesitates whether or not 
 there is any question of negligence at all 
 which he can submit to the jury. Then, 
 occasionally, the plaintiff has by Bis own 
 negUgenoe contributed to the damage; 
 and, before the jury can find for him, they 
 must be persuaded upon the evidence that 
 the defendant's negligence was such as 
 that the damage would have arisen at all 
 events although the plaintiff had been 
 ever so diligent. 
 
 NEUTRALITY. The condition in 
 which a third nation is when two other 
 nations are at war with each other. The 
 duties of a friendly neutrality have been 
 considerably increased of late years, 
 whence the Foreign Enlistment or Neu- 
 trality Act of 59 Geo. 3, c. 69, has 
 been repealed, and a more stringent 
 Neutrality Act, viz., the Foreign En- 
 Ustment Act, 1870 (33 & 84 Vict. c. 90), 
 substituted in its place. Under that 
 Act, which extends to all the Queen's 
 
 Neutrality. — (Continued.) 
 dominions and the adjacent territorial 
 waters, the penalty of fine and imprison- 
 ment, or of either, and with or with- 
 out hard labor, is imposed upon any 
 British subject enlisting without the 
 license of the Queen in the military or 
 naval service of either belUgerent, or 
 agreeing to so enlist, or inducing others to 
 so enlist, or leaving England with the in- 
 tention to so enlist, or inducing others to 
 embark with that intention, under a mis- 
 representation of the fact, or taking ille- 
 gally enlisted persons on board, with a 
 knowledge of the fact. And under the 
 same Act, illegal ship-building and all 
 particular acts assistant thereto, and all 
 illegal expeditions generally, are subject 
 to the like penalties, together with the 
 forfeiture of the vessel or other materials 
 of the expedition. 
 
 NEW ASSIGNMENT. From the very 
 general terms in which declarations are 
 framed, the defendant is sometimes not 
 sufficiently guided to the real cause of 
 complaint, and is in consequence led to 
 apply his plea to a different matter from 
 that which the plaintiff had in view. In 
 such cases, a plaintiff is obliged to resort, 
 in his replication, to a mode of pleading 
 termed a new assignment, for the purpose 
 of setting the defendant right. A new 
 assignment, as the phrase imports, is an 
 instrument in which the plaintiff assigns 
 afresh his ground of complaint with 
 more certainty and particularity than he 
 had previously done in the declaration, 
 and distinguishes the true ground of com- 
 plaint from that which the defendant in 
 his plea had assumed it to be. Steph. PI. 
 347, 353. 
 
 NEW TRIAL MOTION PAPER. By 
 
 the practice of the Courts in England, 
 motions for new trials must in general be 
 made within the first four days of term ; 
 but when, from pressure of business, or 
 other like cause, the Courts have not had 
 time to dispose of all the applications, it 
 is the practice to have the name of the 
 causes and of the counsel who are in- 
 structed to move therein put into a list, 
 called the new trial motion paper, and the 
 motions are then heard and disposed of 
 on the following or some subsequent day, 
 according to the seniority of counsel ap- 
 pointed to move therein. 
 
 NEW TRIAL PAPER. A paper con- 
 taining a list of causes in which rules 
 nisi have been obtained for a new trial, 
 
NEXT FBEBND. — NISI PRIUS. 
 
 239 
 
 New Trial Paper. — {Continued.) 
 or for entering a verdict in place of a 
 ponsuit, or for judgment non obstante 
 veredicto, or for otherwise varying or set- 
 ting aside proceedings which have taken 
 place at Nisi Prius. These are called on 
 for argument in the order in which they 
 stand in the paper, on days appointed by 
 the judges for the purpose. 
 
 NEXT FBIEND. An infant sues by 
 his next friend {prochein amw) and defends 
 by Ms guardian ad litem. Similarly a 
 married woman, where she has an interest 
 conflicting with that of her husband, 
 sues by her next friend (making her hus- 
 band a defendant). The. name of the 
 next friend is always mentioned in the 
 title of the cause or matter, and a writ- 
 ten authority from the next friend must, 
 in the case of a suit, be filed together 
 with the bill (15 & 16 Vict. c. 86, s. 11). 
 The next friend is responsible for the 
 costs of the suit if unsuccessful. 
 
 * NIENT DEDIKE. To suffer judg- 
 ment by default. Jacob Diet. Bee Nn, 
 Digit. 
 
 * NIENT. LE FAIT. In Old plead- 
 ing. Not the deed ; the same as non eat 
 factwm. Burr. Diet. 
 
 NIGHT. As to what is reckoned night 
 and what day, with reference to the of- 
 fense of burglary, it seems to be the 
 general opinion that if there be daylight, 
 or cfrepiueulum, enough begun or left to 
 discern a man's face, that is considered 
 day. And night is defined, or rather de- 
 scribed, by some, to be when it is so dark 
 that the countenance of a man cannot be 
 discerned (1 Hale's P. 0. 350). How- 
 ever, the arbitrary limit of & p. m. to 6 
 A. M. has been fixed as the period of night 
 in prosecutions for burglary and larceny. 
 34 & 25 Vict. c. 96, s. 1. 
 
 NIHIL CAPIAT PER BREVE, or 
 PEE BILLAM {fhat he take nothing hy 
 his writ). The judgment given against 
 a plaintifl either in bar of his action, 
 or in abatement of his writ. Co. Litt. 
 363. 
 
 NIHIL, or NIL DEBET (he owes noth- 
 ing). The plea to an action of debt on 
 simple contract is commonly not in- 
 debted, or nil debet. However, now, by 
 r. 11, T. T. 1858, "the plea of nil debet 
 shall not be allowed in any action ; " see 
 Bull. & Leakej Free. PI. 462. 
 
 NIHIL, or NIL DICIT(^ sm/s m)tUng). 
 When the plaintifiE in an action has 
 stated his case in the declaration, it is 
 incumbent on the defendant, within a 
 prescribed time, to make his defense and 
 to put in a plea, otherwise the plaintiff 
 will be entitled to have judgment by de- 
 fault or nildicit of the defendant. 
 See title Judgment. 
 
 NIHIL, or NIL HABUIT IN TENE- 
 
 MENTIS. A plea to be pleaded in an 
 action of debt oily, brought by a lessor 
 against a lessee for years, or at will, 
 without deed. 3 Lil. Abr. 314. 
 
 NISI PRIUS (unless before). The nisi 
 prius Courts are such as are held for the 
 trial of issues of fact before a jury and 
 one presiding judge. It is in these Courts 
 that the various disputes and differences 
 which daily arise between man and man, 
 and which form the subject-matter of 
 civil actions, are heard and determined. 
 The circumstance of the nisi prius Courts 
 taking cognizance of questions of fact 
 only arising between man and man in his 
 civil capacity, occasions them to be fre- 
 quently mentioned in contradistinction 
 to the criminal Courts, and to the Courts 
 sitting in banc or banco for the hearing 
 and determining questions of law. Thus, 
 a judge may be said to be sitting in bane, 
 or at nisi prius ; in the one case he would, 
 in company with three other learned 
 judges, be hearing and determining ques- 
 tions of law, which have been raised for 
 the opinion of the Court ; in the other, 
 he would be presiding at the trial of some 
 question of fact which was to be submit- 
 ted to the consideration of a jury. So at 
 the assizes, a judge is said to be sitting in 
 the nisi prius Court, as distinguished 
 from the Crown Court, wherein the trial 
 of prisoners takes place. The same dis- 
 tinction prevails when speaking of the 
 peculiar qualifications of an advocate ; 
 thus an advocate is frequently said to be 
 a good nisi prius lawyer, meaning thereby, 
 that he possesses in an eminent degree 
 that peculiar learning, and those mental 
 qualifications, more particularly required 
 to attain success in the conduct and 
 management of trials at nisi prius. The 
 origin of the phrase in this application 
 of it is in the old form of prieeipe to the 
 sheriff commanding him to have the per- 
 sons of the jury at Westminster on such 
 and such a day "unless sooner" (nisi 
 prius) the judge should go down himself 
 to the countiy to try the case there. 
 
240 
 
 NOBILE OFFICIUM. — NON DAMNIFIC ATUS. 
 
 *NOBILE OrnCIUM. In Scotch Law, 
 the power of the court of sessions to 
 grant equitable relief, where the law al- 
 lows none . Ersk. Inst. 1, 3, 33. 
 
 NOILE PROSEQUI {that lie wiU not 
 prosecute or follow up). A Twlle prosequi 
 is in the nature of an acknowledgment 
 or undertaking by the plaintiff in an 
 action to forbear to proceed any further 
 either in the action together, or as to 
 some part of it, or as to some of the de- 
 fendants. A nolle pros^jui is different 
 from a non pros. , for there the plaintiff is 
 put out of Court with respect to all the 
 defendants. If a plaintiff misconceives 
 his action, or makes a mistake as to the 
 party sued (as where he sues a, feme covert, 
 and she pleads coverture in bar, or the 
 like), he may enter a nolle prosequi as to 
 the whole cause of action, and proceed de 
 novo in another action (3 Arch. Pract.) 
 If money be paid into Court, and the 
 plaintiff determines on accepting that 
 sum in satisfaction of the action, he may 
 reply that he accepts the sum paid into 
 Court in satisfaction of that part of the 
 declaration to which the plea is pleaded ; 
 and if he does so, he must at the same 
 time add anoUe prosequi as to the residue, 
 otherwise the defendant may sign judg- 
 ment of non pros. But if he accepts the 
 sum in satisfaction of part only of his 
 action, namely, of that part to which the 
 plea of payment into Court is pleaded, 
 then he must reply to the other pleas of 
 the defendant. Day's Com. Law. Pract. 
 110. 
 
 NOMINATION TO A LIVING. The 
 
 rights of nominating and of presenting to 
 a living are distinct, and may reside in 
 different persons. Presentation is the 
 offering a clerk to the bishop. Nomina- 
 tion is the offering a clerk to the person 
 who has the right of presentation. Thus, 
 one seized of an advowson may grant to 
 A. and his heirs that whenever the church 
 becomes vacant, he will present such a 
 person as A. or his heirs shall nominate. 
 He who has the right of nomination is, 
 to most purposes, considered as the patron 
 of the church. Plowd. 539; Kog. Ecc. 
 Law, 5. 
 
 NON- AGE. Under twenty-one years of 
 age in some cases, and under fourteen or 
 twelve in others. 
 
 See titles AaB ; Infants. 
 
 NON ASSUMPSIT (he hath not prom- 
 ised). The name of a plea which occurs 
 in the action of asswmpdt, by which the 
 
 Non Assnmpsit. — ( Continued.) 
 defendant denies that he undertook, or 
 promised, to do the thing which the 
 plaintiff in his declaration alleges that he 
 did undertake and promise to do ; and 
 this plea operates as a denial, in point of 
 fact, of the existence of any express prom- 
 ise or the fact alleged in the declaration, 
 or of the matters of fact from which the 
 promise alleged would be implied by law. 
 Steph. on Plead. 170, 180. 
 
 NON ASSUMPSIT INFRA SEX AN- 
 
 NOS (he has not promised within sin yea/rs). 
 There are certain periods limited by law 
 within which actions must be brought. 
 In an action of assumpsit the period is six 
 years; if, therefore, any person com- 
 mences such an action for any thing which 
 did not accrue or happen within such 
 period of six years, the defendant may 
 plead non assumpsit infra sex annos, i. e., 
 he made no such promise within six years, 
 which plea is an effectual bar to the com- 
 plaint ; and the defendant in such case 
 is said to plead the Statute of Limita- 
 tions. 
 
 NON CEPIT (he has not tdkm). A 
 plea which occurs in the action of re- 
 plevin, in which action the plaintiff al- 
 leges in his declaration that the defend- 
 ant "took certain cattle or goods of the 
 plaintiff in a certain place called," &c., 
 and this plea states that he did not take 
 the said cattle or goods "in the manner 
 or form as alleged," which involves a de- 
 nial both of the taking and of the place 
 in which the taking was alleged to have 
 been ; the place being a material point in 
 this action. Steph. on Plead. 185. 
 
 NON-CLAIM. The omission or neg- 
 lect of him who ought to claim his right 
 within the time limited by law ; as within 
 a year and a day where a continual claim 
 was required, or within five years after a 
 fine had been levied. Les Tennes de la 
 Ley. 
 
 NON COMPOS MENTIS. Not mas- 
 ter of his wits; in other words, of un- 
 sound mind. 
 
 8ee title Ltjnact. 
 
 NON CONSTAT (it does not appear). 
 It is by no means clear or evident ; a 
 phrase used in general to state some con- 
 clusion as not following, although it 
 seems, prima fa/Ae, to follow. 
 
 NON DAMNIFICATU* (not damnified 
 or hvH). This is a plea in an action of 
 debt on an indemnity bond, or bond con- 
 
NON DECmANDO. — NONSUIT. 
 
 241 
 
 Non Damniflcatus. — {Continued.) 
 ditioned '' to keep the plaintiff harmless 
 and indemnified," &c. ; it is in the nature 
 of a plea of performance, being used 
 where the defendant means to allege that 
 the plaintiff has been kept harmless and 
 indemnified according to the tenor of the 
 condition. Steph. on Plead. 388. 
 
 • NON DECIMANDO (not paying tithes). 
 A custom of prescription of de non deci- 
 mando is a claim to be entirely discharged 
 of tithes, and to pay no compensation in 
 lieu of them. 
 
 See, also, title Modus DBCiMAiroi. 
 
 NON DETINET {he does not detain). 
 A plea which occurs in the action of de- 
 tinet, by which the defendant alleges 
 that he did not detain " the said goods " 
 in the plaintiff's declaration specified, &c. 
 It operates therefore as a demal of the 
 detention of the goods in question by 
 the defendant. Steph. on Plead. 175. 
 
 NON EST FACTUM (it is m>t his deed). 
 A plea which occurs in the action of debt 
 on bond or other specialty, and also in 
 covenant. In this plea the defendant de- 
 nies that the deed mentioned in the decla- 
 ration is his deed (Steph. on Plead. 169, 
 172). By r. 10, T. T. 1853, in actions 
 on specialties and covenants, the plea of 
 non est factum shall operate as a denial 
 of the execution of the deed in point of 
 fact only, and all other defenses shall be 
 specially pleaded,including matters which 
 make the deed absolutely void as well as 
 those which make it voidable. 
 
 NON EST INVENTUS (he isnot found). 
 When a writ is directed to the sheriff 
 commanding him to arrest the defendant,, 
 and he is unable to do so because he can- 
 not find him, he returns the writ with an 
 indorsement on it to that effect, and this 
 is technically called a return of non est 
 inventus. However, this return is neces- 
 sarily now little in use, since the facility 
 of imprisonment for debt, and almost the 
 practice itself of such imprisonment, 
 have been done away with. 
 
 See title Impbibonmbnt for Debt. 
 
 NON-FEASANCE (non-performance). 
 The omitting to do what ought to be 
 done, e. g., where a gratuitous bailee sim- 
 ply refuses to enter upon the agency, and 
 for which mere non-feasance he is held 
 to be not liable. Bcdfe v. West, 13 0. B. 
 466. 
 
 ' See, also, title Mibfeabaitcb. 
 
 31 
 
 NON-JOINDER. The not joining of 
 any person or persons as a co-defendant 
 or co-plaintiff. It may be further illus- 
 trated by the following passage from 
 Tidd'g Practice : "In actions upon con- 
 tracts, where there are several parties, 
 the action should be brought by or against 
 all of them. If living, or if some are 
 dead, by or against the survivors ; and if 
 an action be brought by one of several 
 parties on a joint contract made with all 
 of them, the non-joinder may be pleaded 
 in bar," i. e., the fact of all the parties to 
 the contract not having been joined in 
 the action may be pleaded in bar. Tidd's 
 NewPract. 318. 
 
 NON OBSTANTE VEREDICTO (not- 
 withstanding the verdict). When the de- 
 fense of the defendant in an action put 
 upon the record is not a legal defense to 
 the action in point of substance, and the 
 defendant obtains a verdict, the Court, 
 upon motion, will give the plaintiff leave 
 to sign judgment notwithstanding the 
 verdict, provided the merits of the case 
 be very clear; and this is called judg- 
 ment non obstante veredicto. 3 Arch. Pract. 
 1551. 
 
 NON PROS, or NON PROSEQUITUR 
 
 (he does not prosecute or follow v/p). If in 
 the proceedings of an action at law the 
 plaintiff neglects to take any of those 
 steps which he ought to take within the 
 time prescribed by the practice of the 
 Courts for that purpose, the defendant 
 may enter judgment of non pros, against 
 him, whereby it is adjudged that the 
 plaintiff does not follow up (non prose- 
 quibwr) his suit as he ought to do, and 
 therefore the defendant ought to have 
 judgment against him. Smith's Action 
 at Law, 96. 
 
 NONSUIT (non est proseautus). A re- 
 nunciation or giving up the suit by the 
 plaintiff; and this is usually done on his 
 discovering some error or defect, or when 
 he fipds that his evidence is not suffi- 
 cient to maintain his case. The stage of 
 the proceedings at which a plaintiff is 
 nonsuited is usually just Before the judge 
 has summed up, but it may be done at 
 any time before the jury have delivered 
 their verdict. It is, however, entirely 
 optional with the plaintiff, in England, 
 whether he will submit to a nonsuit or 
 not ; he cannot be compelled to do so, 
 but may insist on the case going to 
 the jury, and take his chance of the ver- 
 dict. In cases, however, where it is 
 doubtful whether the verdict will be a fa- 
 
242 
 
 NON SUM INF0RMATU8. — NOTICE. 
 
 Nonsuit. — 
 
 ■) 
 
 vorable one, it is usual for the plaintiff to 
 choose (or elect, as it is termed) to be 
 nonsuited, because after a nonsuit he iday 
 conunence another suit against the de- 
 fendant for the same cause of action, 
 which may be advisable if he can come 
 better prepared with evidence, or can 
 otherwise repair the defect which was 
 the cause of his failure ; but if a verdict 
 be once given, and the judgment follow 
 thereon, he is forever barred from suing 
 the defendant upon the same ground of 
 complaint. 1 Arch. Pract. 409, 444; 
 Staph, on Plead. 120. 
 
 NON SUM INF0RMATUS {lam not 
 informeS) . Judgment by default is either 
 by nil dAcit, that is, where the defendant 
 is stated to have appeared, but to have 
 said nothing in bar or preclusion of the 
 action ; or by Tum sum informatus, where 
 he is said to appear by attorney, but the 
 attorney says that he is not informed by 
 the defendant of any answer to be given. 
 This latter is used only in cases where 
 judgment is entered in pursuance of a 
 previous agreement between the parties. 
 Leg Termes de la Ley. 
 
 NOTARY. In ancient times a notary 
 was a scribe or scrivener, who took min- 
 utes and made short drafts of writings 
 and instruments, both of a public and a 
 private nature. In the present day, how- 
 ever, he is called a notary publie, who 
 confirms and attests the truth of any 
 deeds or writings, in order to render the 
 same available as evidence of the facts 
 therein contained in any other country. 
 Some of the chief duties of notaries are 
 connected with mercantile transactions, as 
 in noting bills of exchange and promissory 
 notes which have been presented for pay- 
 ment and dishonored, the noting of a 
 foreign bill being, like the notice of dis- 
 honor of an inland bill, a necessary pre- 
 hminary to bringing an action upon it 
 against the indorsers and (usually) against 
 the drawer. 
 
 NOTE OF A FINE. The note of a 
 fine was an abstract of the writ of cove- 
 nant and concord, naming the parties, the 
 parcels of land, and the agreement. 
 See, also, title Fink. 
 
 NOTEjPROMISSOKT: ;See title Pkom- 
 issoBT Note. 
 
 NOT GUILTY. A plea which occurs in 
 the action of trespass or trespass on the 
 case ex delicto, by which the defendant 
 
 Not Guilty. — {ConUmued.) 
 denies being guilty of the trespasses, &c., 
 laid to his charge in the plaintiff's decla- 
 ration. When a defendant pleads not 
 guilty in a criminal charge he thereby puts 
 himself upon trial, and is entitled to all the 
 chances of escape from conviction which 
 the rules of law afford him in case of the 
 evidence being doubtful, or from any 
 other cause, notwithstanding he may in 
 fact have committed the act wliich is 
 usually taken to constitute the offense. 
 An accused person is, therefore, in all 
 cases justified in pleading not guilty to a 
 criminal charge. On the other hand, in 
 civil cases, when a defendant pleads not 
 guilty, he is said to plead the general 
 issue, whereby he is taken to deny the 
 gist of the action only. For example, in 
 actions for torts the plea of not guilty 
 operating as a denial only of the breach 
 of duty or wrongful act alleged to have 
 been committed by the defendant, it fol- 
 lows that in an action for a nuisance to 
 the occupation of a house by carrying on 
 an offensive trade, the plea of not guilty 
 will operate as a denial only that the de- 
 fendant carried on the alleged trade in 
 such a way as to be a nuisance to the oc- 
 cupation of the house, but wiU not ope- 
 rate as a denial of the plaintiff's occupa- 
 tion of the house. And again, in an ac- 
 tion for slander of a plaintiff in his office, 
 or profession, or trade, the plea of not 
 guUty will operate as a denial of speaking 
 the words, of speaking them maliciously 
 and in the defamatory sense imputed, 
 and with reference to the plaintiff's office, 
 or profession, or trade, but will not ope- 
 rate as a denial of the fact of the plain- 
 tiff holding the office, or profession, or 
 trade alleged. See Smith's Action at 
 Law, p. 533. 
 
 NOTICE. This is a head of equity of 
 great importance in the two principal re- 
 spects following, namely : — 
 
 (1.) As perfecting the assignment of 
 choses in action ; and 
 
 (3.) As affecting or not affecting nibse- 
 qimht interests. 
 
 But in regard to both these branches 
 notice may be either actual or construct- 
 ive, with this difference, that actual no- 
 tice is the more common of the two in 
 respect of the former branch, and con- 
 structive notice the more common in re- 
 spect of the latter. For, firstly, actual 
 notice is any express intimation given by 
 a person interested, or claiming to be in- 
 terested, in the chose in action to the per- 
 
NOTICE. 
 
 243 
 
 Notice. — ( Gontinued. ) 
 son having present control over it, on 
 purpose to bind him as to such control, 
 and thereby to complete, as far as possi- 
 ble, the rights of the person giving the 
 notice. And, secondly, constructive no- 
 tice is notice impHed or inferred from the 
 proof of surrounding circumstances, — an 
 insecure form of notice, which the person 
 claiming a chose in action should in no case 
 rely upon. Notice has been inferred from 
 two states of circumstances in particular, 
 viz., (1.) Where actual notice of some 
 general charge has been given, and if the 
 fact had been inquired into, the person 
 receiving such notice would have been 
 naturally led on to notice of other things, 
 but he has neglected all inquiry, where- 
 fore of these latter he is taken to have 
 constructive notice; and (3.) Where the 
 circumstances are such as show the per- 
 son charged with constructive notice to 
 have willfully, and not negligently 
 merely, abstained from inquiry for the 
 purpose of avoiding notice. For the first 
 species of constructive notice see Biscoe 
 V. Banbury (Ea/rl) (1 Ch. Ca. 387) ; and 
 for the second species, Birch v. Sllames 
 (2 Anstr. 427). And there is a third spe- 
 cies of constructive notice arising from 
 the relation of the parties, as being that 
 of principal and agent, client and solic- 
 itor, and such like, where the transaction 
 is either contemporaneous with, or shortly 
 subsequent to, another transaction com- 
 municating notice (Fuller v. .Bennett, 3 
 Hare, 394), the subject-matter of the no- 
 tice having been a material part of the 
 earlier transaction. Wyllie v. Pollen, 32 
 L. J. (Ch.) N. 8. 782. 
 
 Considering the subject of Notice in its 
 two branches, — and, Firstly, Notice as 
 perfecting the assignment of chases in ao- 
 tion. In order that third persons may be 
 bound it is necessary, with regard to a 
 chose in action, to give notice to the per- 
 son in whose hands it is, or when realizing 
 itself will be, such notice being, in the 
 case of a chose in action which does not 
 admit of actual delivery, precisely equiv- 
 alent in its effect to the actual delivery 
 of a chattel in possession which admits 
 of delivery {Ryall v. Bowles, 1 Ves. 348). 
 Therefore, 
 
 (a.) In order to take a chose in aetion 
 out of the order and disposition of the 
 creditor in case of his bankruptcy it is 
 necessary to give notice to the debtor. 
 ByaU V. Bowles, supra. 
 
 (J.) In the case of a policy 'of assur- 
 ance notice must be given to the insur- 
 
 Notice. — ( Continued.) 
 
 ance office. Thompson v. TowMns, 3 Dr. 
 
 & Sm. 8. 
 
 (<;.) In the case of an assignment of 
 freight notice must be given to the char- 
 terer. Browne v. Tanner, L. R. 3 Eq. 806. 
 
 {d.) In the case of an assignment of a 
 legacy, general or specific, the executors 
 not having yet assented to it, notice to the 
 executors must be given. Browne v. Souo- 
 age, 4 Dr. 635. 
 
 (e.) In the case of an assignment of the 
 costs of a suit not yet ordered to be paid 
 notice should be given to the trustees, or 
 other the parties to whom they will be 
 payable. Day v. Bay, 1 D. & J. 144. 
 
 (/.) In the case of an assignment of 
 shares in a company, notice must be given 
 to the company. Bx parte Bovlton, 1 D. 
 & J. 163 ; and see generally the cases of 
 Dearie v. Mall, Loveridge v. Cooper, 3 Russ. 
 1, 30. 
 
 If such notice has been given, as soon 
 as the assignee knows to whom the same 
 is to be given, the assignee^ if not other- 
 wise in default, will not lose the benefit 
 of it (Feltham v. Cla/rh, 1 De G. & Sm. 
 307), upon the maxim, lex neminem cogit 
 ad vana seu inutilia pa/ragenda. 
 
 Where for any reason notice cannot be 
 given then the assignee must perfect his 
 title in some other way ; e. g., where the 
 sole trustee of stock has died without 
 legal representatives a dis^ngas should 
 be served on the Bank of England {Etty 
 V. Bridges, 1 Y. & C. Ch. 486); and 
 where a fund is in Court, a stop-order 
 over it should be left at the Paymaster- 
 General's Office (Greening v. Bechford, 5 
 Sun. 195 ; Chancery Funds Act, 1873 [35 
 & 36 Vict. c. 44], and rules thereunder), 
 a mere notice to the Paymaster-General 
 being iasufficient ( Wan-hwton v. Sill, Kay, 
 470) ; but a notice to the trustees (if any) 
 before payment into Court would be good' 
 against a stop-order subsequently ob- 
 tained. Livesey v. Barding, 23 Beav. 141. 
 
 Chattel interests in real estate, being 
 equitable, are not chases in action within 
 the meaning of the rules above stated 
 (Wiltshire v. Babbits, 14 Sim. 76); and 
 being legal, the law will of course prevail 
 without regard to the question of notice. 
 But the proceeds of the sale of real es- 
 tate are not a chattel interest in real es- 
 tate. Lee V. HowUtt, 3 K. & J. 531. 
 
 And, Secondly, Notice as affecting or 
 not affecting sulssequent interests. A 
 purchaser for value vnthout notice of a 
 prior equitable estate or interest, and, d 
 fortiori, of a mere equity, obtaining the 
 
244 
 
 NOTICE. 
 
 Notice. — ( GonUnued.) 
 legal estate either at the time of his pur- 
 chase or subsequently thereto, and appa- 
 rently, whether by fair means or by a 
 fraud {Ovlpepper^g Oaae, Freem. 123; 
 Pitcher v. RmoUns, L. R. 7 Ch. App. 359), 
 is entitled to priority in Equity as well as 
 at Law ; but not in case of a breach of 
 trust (Bcmnders v. Dehew, 2 Vern. 271). 
 But the legal estate, where it is obtained 
 fraudulently, must have been actually ob- 
 tained, — i. e., conveyed {Eyre^. Burmei- 
 ter, 10 H. L. C. 90) j although where it 
 may be obtained by fair means and with- 
 out fraud the right of a conveyance of it 
 is sufficient {WUougKnj v. WillougKby, 1 
 T. R. 763). And even where a purchaser 
 for value without notice neither has the 
 legal estate nor the best right to call for 
 it, Equity will do nothing to prejudice 
 him upon the application of an adverse 
 party asking the aid of Equity (auxiliary 
 jurisdiction) {BaHace v. Oooh, Ereem. 
 34) ; although, upon the application of an 
 adverse party q|kinghis legal rights (con- 
 current jurisdiction), and not merely the 
 assistance of the Court of Chancery 
 toward establishing these rights of Law, 
 Equity is bound and compellable to de- 
 clare and decree him his rights, however 
 much to the prejudice of the purchaser 
 for value ( Williornis v. Lamhe, 3 Bro. C. 
 C. 264 ; OoUins v. Archer, 1 Russ. & My. 
 284) ; and with reference to the rights of 
 a prior legal mortgagee see FinchY. Shorn, 
 Gollyer v. Finch (19 Beav. 500). And as 
 between persons who are successive equi- 
 table claimants. Equity takes them ac- 
 cording to their priorities of date, with- 
 out regard to notice or the absence of 
 notice (PMJips v. Phillips, 31 L. J. [Oh.] 
 325), unless in the case of the gross neg- 
 ligence of a prior claimant being the oc- 
 casion of the prejudice sustained by a 
 subsequent one. Mice v. Sice, 3 Dr. 73. 
 On the other hand, a purchaser for 
 value with notice of a prior equitable es- 
 tate, or interest, or even of an equity, can- 
 not, by getting in the legal estate, whether 
 at the time of, or subsequently to, his 
 purchase, and whether by fair means or 
 fraudulent, obtain priority over such prior 
 claim, but the purchaser will in such a 
 case be held a trustee for the prior claimant 
 to the extent of such prior claim {Birch v. 
 EUames, 2 Anst. 437); And notice will 
 bind the subsequent purchaser, even 
 although the prior charge is defective, or 
 would even (as from neglect to register or 
 re-register) be void at Law {Le Nefoe v. i« 
 Nme, Amb. 436); although conversely 
 
 Notice. — {Contimied.) 
 the absence of notice will save him, even 
 although the prior charge be registered 
 {Moreooch v. Dickens, Amb. 678), unless ia 
 Ireland (6 Anne, c. 3), or vnth reference 
 to British ships {BMghex v. Morris, 3 De 
 Q. M. & Gr. 349) ; the same rules apply to 
 subsequent mortgagees; but with refer- 
 ence to judgment "creditors the following 
 peculiar rules have been established : — 
 
 (a.) Judgment creditors, as between 
 themsehes, take rank according to the or- 
 der of the dates of their several registra- 
 tions, without regard to the question of 
 notice, which as between them is imma- 
 terial. Benham v. Keane, 1 J. & H. 685 ; 
 3 & 4 Vict. c. 83, s. 3. 
 
 (&.) An unregistered judgment does 
 not afiect a subsequent purchaser for 
 value or mortgagee, and here also without 
 regard to the question of notice. Berh- 
 ham V. Keane, IJ. & H. 685 ; 18 & 19 Vict, 
 c. 15, s. 5. 
 
 (c.) An unregistered judgment afEeots 
 a subsequent cestui que irust having notice 
 of it. Bmham v. Keajtve, s/upra. 
 
 (A.) A registered judgment which has 
 been also duly re-registered affects a sub- 
 sequent purchaser for value or mortgagee 
 having notice of it {Simpson v. Morley, 3 
 K. & J. 71) ; but not a subsequent pur- 
 chaser for value or mortgagee not having 
 notice of it. BoMnson v. Woodwa/rd, 4 
 De G. & Sm. 563. 
 
 (e.) A registered judgment which has 
 been otherwise duly perfected does not 
 aflect a purchaser whose contract is prior 
 in date to the judgment, although -the 
 conveyance should be subsequent {Brown 
 Y. Perrott, 4 Beav. 585), without reference 
 to the question of notice. 
 
 (/.) A registered judgment which has 
 been otherwise duly perfected does not 
 affect a prior voluntary settlement (.Beo- 
 vam v. Oxford [JSlar^, 6 De G. M. & G. 
 507) ; and, a fortiori, does not affect a 
 prior purchase for value or mortgage, 
 without reference to the question of 
 notice. And see title Judgment Debts. 
 
 And with reference to taakmg the fol- 
 lowing peculiar rules have been estab- 
 lished as between mortgagees and judg- 
 ment creditors : — 
 
 (as.) If one who is a judgment creditor 
 to begin with buys in a first mortgage, he 
 shall not tack the judgment to that mort- 
 gage so as to gain a priority-over a second 
 mortgagee who was such at the date of ■ 
 his judgment, and without reference to 
 the question of notice. Brace v. Marl- 
 lorough {Dutchess), 3 P. Wms. 491. 
 
NOTICE. 
 
 245 
 
 Notice. — ( Continued.) 
 
 (J.) If one who is a first legal mort- 
 gagee to begin with buys in or obtains a 
 judgment for a further sum, and had no 
 notice of any subsequent charge at the 
 time of getting hold of such judgment, 
 he shall tack the judgment to his mort- 
 gage and obtain priority over the subse- 
 quent charge. Brace v. MwrlJborough 
 {Dutchess), supra. 
 
 And with reference to the successive 
 assignees of eTu>seg in action the following 
 rules have been estabhshed : — 
 
 (a.) As between two or more particular 
 assignees (being of course equitable). 
 
 (aa.) If both or aU the notices are 
 given before the cTiose in action has real- 
 ized itself, so as to be ready to be deliv- 
 ered actually, in the form of money or 
 other proceeds, then priority of notice 
 gives no priority of title. Buller v. 
 Plunkett, IJ. i& H. 441. But 
 
 (hb.) If otherwise, the successive dates 
 of the successive notices estabUsh the 
 successive priorities, or the one priority, 
 as the case may be, this being the general 
 effect of notice in such cases. 
 
 (b.) As between the trustee in bank- 
 ruptcy or a general assignee on the one 
 hand, and a particular assignee on the 
 other, by the Bankruptcy Act, 1869 (32 & 
 38 Vict. c. 71), s. 15, the property of the 
 bankrupt which vests in his trustee for 
 division among the creditors of the bank- 
 rupt comprises (among other things) 
 (1.) All such property as may belong to, 
 or be vested in, the bankrupt at the com- 
 mencement of the bankruptcy, or may be 
 acquired by or devolve upon him during 
 its continuance ; and (2.) All goods and 
 chattels being, at the commencement of 
 the bankruptcy, in the possession, order, 
 or disposition of the bankrupt, being a 
 trader, by the consent and permission of 
 the true owner, of which goods and chat- 
 tels the bankrupt is reputed" owner, or of 
 which he has taken upon himself the sale 
 or disposition as owner; but it is pro- 
 vided that things in action other than 
 debts due to the bankrupt in the course 
 of his trade or business shall not be 
 deemed goods and chattels within the 
 meaning of this order and disposition 
 clause ; and in the first schedule to the 
 Act the word ' ' trader " is made to in- 
 clude the occupations specified in that 
 schedule. Now, subject to that section, 
 and so far as it may not have altered the 
 previous law, the following rules have 
 been established as between a trustee in 
 bankruptcy or general assignee on the 
 
 Notice. — ( OonbinvM.) 
 
 one hand, and a particular assignee on 
 
 the other: — 
 
 {aa.) If the particular assignee were of 
 a date prior to the bankruptcy of the 
 debtor, and had also given notice prior 
 thereto, he retained his priority, but fail- 
 ing such notice lost it, in favor of the 
 trustee in bankruptcy or general assignee 
 who gave notice, the particular assign- 
 ment not being fraudulent ; 
 
 (bb.) If the particular assignee was of a 
 date posterior to the bankruptcy of the 
 debtor, but had given notice of his 
 assignment before the trustee in bank- 
 ruptcy or general assignee had given 
 notice of the bankruptcy or general 
 assignment, the particular assignee (the 
 particular assignment not being fraudu- 
 lent) acquired priority over the trustee in 
 bankruptcy, or general assignee, who had 
 omitted to give such notice {In re Ba/rr''s 
 Trusts, 4 K. & J. 319 ; Jti re Atkinson, 3 
 De G. M. & G. 140) ; but by the Bank- 
 ruptcy Act, 1849, s. 141, and the decision 
 in Be Ma/ry Ooombe (1 Giff. 91), he was 
 deprived of such priority over the trustee 
 in bankruptcy; but having regard to ss. 
 92, 94 and 95 of the Bankruptcy Act, 
 1869, the same general rules as applied 
 before the Bankruptcy Act, 1849, and 
 the last-mentioned decision seem to have 
 been restored in all cases where the par- 
 ticular assignment, although subsequent 
 to the commencement of the bankruptcy, 
 is prior to the date of the order of adjudi- 
 cation, subject only to the limitation im- 
 posed by s. 15 of the Bankruptcy Act, 
 1869, stated above. The subsequent par- 
 ticular assignee who gives notice still has 
 priority over a prior general assignee who 
 oniits to ^ve notice; but in Lhyd v. 
 Banks (L. R. 3 Ch. 488), where the trustee 
 of a fund had notice of an insolvency 
 from the newspapers merely, and acted 
 on the information thereby obtained, a 
 subsequent particular assignee of the 
 cesiwi que trust was held not to acquire 
 priority over the general assignee in in- 
 solvency. 
 
 And in all these cases notice before 
 actual payment of the purchase-money, 
 whether or not the notice be also before 
 the contract, and whether before or after 
 the conveyance is executed, is binding 
 upon the subsequent purchaser or mort- 
 gagee {Tounnlle v. Naish, 3 P. Wms. 307) ; 
 and even where notice is not given until 
 after payment of the purchase-money, 
 provided the conveyance has not yet been 
 executed, the purchaser or mortgagee i? 
 
246 
 
 NOTICE OF ACTION.— NOVATION. 
 
 Notice. — {Continued^ 
 equally bovmd {Wigg v. Wigg, 1 Atk. 382). 
 Therefore, the only notice which the pur- 
 chaser or mortgagee may disregard is 
 notice coming to him both after payment 
 of the purchase or mortgage money and 
 after execution of the conveyance. 
 
 But a subsequent purchaser or mort- 
 gagee of lands with notice of a prior 
 voluntary settlement may safely disregard 
 it, such settlement being void against 
 him under the 37 Eliz. c. 4 (Doe v. Mcm- 
 ning, 9 East, 59) ; and the purchaser may 
 even compel a specific performance of the 
 contract {Ddhing v. Whimper, 26 Beav. 
 568). The benefit of the stat. 37 Eliz. c. 
 4, does not, however, extend to one who 
 purchases or takes a mortgage of lands 
 from the heir-at-law or devisee of the 
 voluntary settlor, or from a person claim- 
 ing under a subsequent voluntary settle- 
 ment, or indeed from any person other 
 than the voluntary settlor himself. Doe 
 V. Rasham, 17 Q. B. 723 ; Lewis v. Bees, 
 3 K. & J. 132; BicTuwdsY. Lewis, 11 C. 
 B. 1035. 
 
 NOTICE OP ACTION. When it is 
 intended to sue certain particular indi- 
 viduals it is sometimes, as in the case 
 of actions against justices of the peace, 
 necessary to give them notice of the 
 action some time, usually one month, 
 before. 
 
 NOTICE TO PRODUCE. In general, 
 notice to produce any document in the 
 possession or power of the opposite party 
 is required; and such notice must be 
 given in order to the admission of second- 
 ary evidence of the contents of the docu- 
 ment (Beg. V. MwortJiy, L. R. 1 C. C. R. 
 105). But where, from the nature of the 
 proceedings, as in the case of trover for 
 a bond, the party in possession of the 
 document necessarily has notice that he 
 is to be charged with the possession of it, 
 a notice to produce is unnecessary (How 
 V. Sail, 14 East, 374). Also, a counter- 
 pMt executed by the defendant may be 
 read by the plaintiff without a notice to 
 produce the original (Burleigh v. Stibbs, 5 
 T. R. 465) ; and iu an action for seamen's 
 wages, secondary evidence of the ship's 
 articles is admissible under 17 & 18 Vict, 
 c. 104, s. 164, without any notice to pro- 
 duce them. 
 
 Generally, however, a notice to produce 
 any notice on which the action is founded 
 is unnecessary ; but it is usual iu business 
 to have two copies of the notice to pro- 
 duce, and to serve one and retain, the 
 
 Notice to Produce. — (ConMnvM.') 
 other, indorsing on the latter the time 
 and mode of the service of the former. 
 And now by the C. L. P. Act, 1852, s. 
 119, where there has been a notice to 
 admit the notice to produce, an affidavit 
 of the attorney or his clerk of the service 
 of the notice to produce and of the time 
 when served, with a copy of it annexed, 
 is, sufficient evidence of the service of the 
 original and of the time of service. 
 
 NOTICE TO QUIT. As between land- 
 lords and tenants, where there is no 
 express stipulation as to the length of 
 notice to quit the tenements occupied by 
 the tenant, it is a general presumption 
 of law that in the case of tenancies from 
 year to year a half-year's notice must 
 be given, such notice to expire at the 
 end of the current year of the tenancy 
 (Bridge v. Potts, 17 C. B. [N. S.] 383). 
 And in the case of quarterly, monthly, 
 and weekly tenancies, the safest course 
 is to give a notice corresponding to 
 the tenancy, but there is hardly any rule 
 of law upon the subject. The like mles 
 apply as to the tenant giving notice to 
 determine Ms tenancy, which also is 
 sometimes abusively called a notice to 
 quit. The notice may be afterward 
 waived, e. g., by the landlord's subse- 
 quently distraining for rent. 
 
 NOVATION. The acceptance of a new 
 debt or obligation in satisfaction of a 
 prior existing one. Thus, it is said that 
 a surety is discharged by the novation of 
 the debt; for he can no longer be bound 
 for the first debt, for wMch ' he was 
 surety, since it no longer subsists, having 
 been extinguished by' the novation; 
 neither can he be bound for the new debt 
 into which the first has been converted, 
 since this new debt was not the debt to 
 which he acceded. 
 
 A novation may arise in either of two 
 ways: 
 
 (1.) As in the case of a renewal bill, 
 where the person of the debtor remains 
 the same, but the amount or terms are in- 
 creased or altered ; 
 
 (3.) As in the case of an amalgamation 
 of companies, where the person of the 
 debtor is altered, but the other terms of 
 the contract remain the same, the new 
 company which is substituted for the old 
 one, taking over all the liabilities (together 
 with the rights) of the latter. 
 
 It is essential to every novatio that the 
 creditor should have assented thereto. 
 
NOVEL DISSEIZIN.— NUNCUPATIVE WILL. 
 
 247 
 
 NoTation. — ( OonUntied.) 
 
 Justinian (in his Institutes, iii. 29 [30], 
 Qu&tis Modis Obligatio Tollitwr, s. 3) en- 
 acted that, unless the parties expressly 
 stated in the writing that their intention 
 ■was to make a novatio, the new obligation, 
 although substituted for, should not put 
 an end to the old obligation, but the 
 creditor should have the benefit oi both 
 securities. But this is not the rule of the 
 English Law. 
 
 NOVEL DISSEIZIN (a new or recent 
 disseizin, or dispossession) : See title Assize 
 OP NovBL Disseizin. 
 
 * NOVELLAE LEONIS. " The ordin- 
 ances of the Emperor Leo, made from 887 
 to 893. They were originally written in 
 Greek, but afterward, in 1560, were trans- 
 •lated into Latin by Agilaeus. Burr. 
 Diet. 
 
 NUDUM PACTUM {a bare agreement). 
 An agreement to do or pay any thing on 
 one side, without any consideration or 
 compensation therefor on the other. This 
 is thence called a nude or naked contract 
 (nudum paetwm), and when not under seal 
 is totally void in law, and a man cannot 
 be compelled to perform it upon the max- 
 im, ^^ Ex nvdo pacta mm oritur actio." 
 Pacts performed a great part in Roman 
 Law, and it was a rule of that law that a 
 nudum pactum, although not sufficient (in 
 general) to support an action, was always 
 sufficient to furnish an exception, i. e., 
 plea or defense. 
 
 See title Pacts. 
 
 NUISANCE (from the Pr. nwire, to 
 hurt). Every enjoyment by one of his 
 own property which violates the rights 
 of another in an essential degree is a 
 nuisance and actionable as such at the 
 suit of the party injured thereby. Wood 
 on Nuisance, p. 3. See, also, id., p. 14 
 et seq., for a criticism of the definitions 
 of nuisance. A nuisance is either pub- 
 lic or private. A public or common 
 nuisance is such as affects or interferes 
 with the king's subjects in general; a 
 private nuisance is only such as affects 
 or interferes with an individual in his 
 individual capacity. A private' nuisance 
 may be remedied by action, or in some 
 instances by abatement (see that title) ; 
 a public nuisance producing private 
 damage by action, or (making the At- 
 torney-General a party) by information 
 in Chancery, or by indictment at Com- 
 mon Law. 
 
 NUL TIEL RECORD (no such record). 
 A plea pleaded in that form of trial which 
 is called trial by the record. This form 
 of trial is only used in one particular in- 
 stance,and that is where a matter of record 
 is pleaded in any action, as a fine, a judg- 
 ment, or the like, and the opposite party 
 pleads ^'nultiel record," i. e., that there 
 is no such matter of record existing; 
 whereupon issue is joined, which is called 
 an issue of nul tiel record, and in such 
 cases the Court awards a trial by inspec- 
 tion and examination of the record. 
 Stephen on Pleading, 113. 
 
 NUNC PRO TUNC (now for then). 
 When a party has omitted to take some 
 step which he ought to have taken, as to 
 file an affidavit, or to enter up judgment, 
 for instance, the Court will sometimes 
 permit him to do it after the proper time 
 has passed by for that purpose, and will 
 allow it to have the same effect as if it 
 had been regularly done ; and this in the 
 case of the affidavit is called filing it nunc 
 pro Punc; or, in the case of entering up 
 judgment, is called- entering it nunc 
 pro tunc ; i. «., doing it now for (or in- 
 stead of) then. By r. 56, H. T. 1853, all 
 judgments, whether interlocutory or final, 
 shall be entered of record of the day of 
 the month and year, whether in term or 
 vacation, when signed, and shall not 
 have relation to any other day; but it 
 shall be competent to the Court or a judge 
 to order a judgment to be entered nunc 
 pro tunc. Under this rale a judgment is 
 frequently allowed to be entered nunc pro 
 tunc, where the signing of it has been de- 
 layed by the act of the Court, and usually 
 in the case of the death of a party, e. g., 
 if a party dies after special verdict, or after 
 a special case has been stated for the opin- 
 ion of the Court, or after a motion in 
 arrest of judgment, or for a new trial, or 
 after a demurrer set down for argument 
 and pending the time taken for argument, 
 or whilst the Court is considering of its 
 judgment. No such indulgence is given 
 where the neglect to enter up judgment 
 is attributable to the lach^es of the plaintiff 
 or of those representing him, or by reason 
 of any proceeding in error or the like. 
 The right to order judgment to be enter- 
 ed nunc pro tunc belongs, even at Common 
 Law, to the Court. 
 
 NUNCUPATIVE WILL (testamentum 
 nuncupatwm). A will which depends 
 merely upon oral evidence, ha,ving been 
 declared or dictated by the testator pre- 
 vious to his death, before a sufficient 
 
248 
 
 NUPER OBIIT. — OCCUPANCY. 
 
 NuncupatiTe Will. — (^Continued.) 
 number of witnesses, and afterward re- 
 duced to writing. All wills, however, must 
 now be reduced into writing at the time 
 they are made (1 Vict. c. 36, s. 1). In the 
 interval between the Statute of Frauds 
 (29 Car. %, c. 3) and the New "Wills Act 
 (1 Vict. 0. 36) nuncupative wills were 
 good for estates not exceeding £30 in all, 
 where the will was pronounced before 
 three witnesses, and was reduced into 
 writing, within six days after it was made 
 or was proved within six months of the 
 making ; but before the Statute of Frauds 
 they were valid without limi t as to estate, 
 just as they always were in Roman Law 
 if made in the presence of seven witnesses. 
 Just. ii. 10, 14. 
 
 NUPER OBIIT (he died lately). A writ 
 that lay for a co-heir who had been de- 
 forced by her co-parcener of lands or ten- 
 ements, of which their grandfather, 
 father, brother, or other common ances- 
 tor had died seized in fee simple. F. N. 
 B. 197 ; Cowel. 
 
 NUETUBE, guardians for, are the 
 father or mother until infants attain the 
 age of fourteen' years ; and ia default of 
 father or mother, the ordinary in former 
 times usually assigned some discreet per- 
 son to take care of the infant's personal 
 estate, and to provide for its maintenance 
 and education. But this duty is now dis- 
 charged by the Court of Chancery, which 
 appoints a guardian for that purpose. \ 
 See titles Guakdians ; Infants. 
 
 o. 
 
 OATHS. Have been very generally in 
 use as a security that a witness vrill speak 
 the truth ; but in recent times, in the case 
 of persons holding conscientious views of 
 the impropriety of oaths, a solemn prom- 
 ise or declaration that they will speak the 
 truth, and the whole truth, has been sub- 
 stituted for them (33 & 34 Vict. c. 49). 
 Since the case of Omy6hu7id v. Barker 
 (1 Atk. 31) it has been usual in England 
 to swear each witness according to the 
 forms of his own religion, the English 
 form being upon the Holy Gospels. Be- 
 fore an oath can be administered it must 
 be shown (if any doubt of the fact should 
 exist) that the witness is aware of the 
 sanctity of the oath, or generally that God 
 will punish falsehood. Oaths have, how- 
 ever, been the subject of considerable 
 abuse in law, particularly the so-called 
 Deeiaory Oath, which, in the absence of 
 
 Oaths. — ( OontAmied.') 
 other evidence to the contrary, was per- 
 mitted to settle the question in dispute ; 
 also, the so-called Suppletory Oath, which 
 was administered by the judge, and was 
 allowed to have a similar eSect. 
 
 * OBITER DICTUM. An opinion of 
 a judge delivered hythe was^andnot upon 
 the precise question involved. Burr. Diet. 
 
 OBLIGATION {dbligaUo). An obliga- 
 tion or bond is a deed whereby a person 
 obliges himself, his heirs, executors, and 
 administrators, to pay a certain sum of 
 money to another at an appointed day; 
 and he who so obliges himself, or enters 
 into such a bond, is termed the obligor, 
 and the party to whom he so obliges, or 
 binds himself, is termed the obligee. 
 
 Such is the use of the term ' ' obligaj 
 tion " in English Law ; but the word is 
 commonly used in a much more general 
 sense in jurisprudence as denoting any 
 liability incurred by one person to another 
 in virtue either of an agreement of the 
 parties or their disagreement; and an 
 obligation is said to arise either ex am- 
 tracPu, or qvad so, or ex delicto, or quasi so. 
 
 Again, obligations are of many varie- 
 ties, being either, first, perfect {i. e., ac- 
 tionable, amies) according to the laws of 
 the particular country, or, secondly, im- 
 perfect (i. e., natwcdes, or moral) accord- 
 ing to the same laws. And as a general 
 rule, aU systems of law (other than the 
 English Law) allow to such latter varie- 
 ties of obligation a partial legal efficacy, 
 e. g., making them good by way of de- 
 fense to an action at any rate. For the 
 effects which the Roman Law allowed 
 them, see Brown's Savigny, title NaturaUa 
 Obligatio. 
 
 OBLIGATION SOLIDAIBE. This, in 
 French Law, denotes joint and several 
 liability in English Law, but is applied 
 also to the joint and several rights of the 
 creditors parties to the obligation. 
 
 *OBEOGATION. The alteration or 
 annulling of a law. Bouv. Diet. 
 
 OCCUPANCY is defined to be the 
 " taking possession of those things which 
 before belonged to nobody ; " hence the 
 title which a person so acquires in things 
 is called title by occupancy. Occupancy is 
 frequently divided into general and special 
 occupancy. General occupancy occurred 
 where a person was tenant per oMbre vie, 
 and died during the life of the cestui qui 
 vie, in which case the person who first 
 
OCTO TALES. — OFFICIAL, OR OFFICIAL PRINCIPAL. 
 
 249 
 
 Occnpancf . — ( Continued.) 
 entered on the land after Ms death might 
 lawfully retain possession thereof, as long 
 as the cestui que vie lived by right of oc- 
 cupancy, because it belonged to nobody. 
 Special occupancy occurred where an 
 estate was Umited to a man and his heirs, 
 or the heirs of his body, during the life 
 of another person, by which the heir or 
 heirs of the body of such grantee might 
 enter on the death of the ancestor, and 
 hold possession as special occupant, hav- 
 ing an exclusive right, by the terms of 
 the original contract, to occupy the lands 
 during the residue of the estate granted. 
 General occupancy, in the sense before 
 described, was- abolished by the Statute 
 of Frauds, and the remnant of the estate 
 was made distributable among the credi- 
 tors (if any), and the surplus remaining 
 over was (aiter 14 Geo. 3, c. 20) to be 
 distributed among the next of Mn of the 
 deceased grantee. The whole law is now 
 regulated by the 1 Vict. 3, c. 26, which re- 
 enacts the provisions of both the last- 
 mentioned two statutes as regards occu- 
 pancy. 
 
 Oceupaney, in a larger sense, has played 
 a great part in international law and in 
 jurisprudence. In internationar law, it 
 is regarded as the title to the ownership of 
 newly-discovered countries, and also 
 (under the particular name of hostile cap- 
 ture) as the title to the ownership of 
 newly-conquered countries. In juris- 
 prudence, it is put forward, at least very 
 commonly, as the foundation and origin 
 of all property, whether in lands or in 
 goods; but an objection is taken to it as 
 such in Maine's Ancient Law, upon the 
 ground that occupancy, in order to be a 
 foundation of property, is an advised 
 taking possession of a thing, and the 
 notion of advisedness is too abstract for 
 an early age. Probably, this objection 
 refutes itself; and, after all, to quote the 
 words of Savigny, property has had its 
 origin in " adverse possession ripened by 
 prescription." 
 
 *OCTO TALES. A writ which was 
 formerly issued to the sherifiE, to summon 
 tight men to make up a deficiency in 
 jurors. 3 Bl. Com. 864. 
 
 *ODHAL BIGHT. AUodial right. 
 Jacob Diet. 
 
 ODIO ET ATIA. An old writ which 
 was directed to the sheriff to inquire 
 whether a man committed to prison on 
 suspicion of murder was committed on 
 
 Odio et Atia. — (Continued.) 
 
 just cause of suspicion, or only out of 
 malice. And if upon an inquisition it 
 were found that he was not guilty, then 
 another writ was directed ' to the sheriff 
 to bail him. Les Termes de la Ley, 
 
 OFFENSE (deUcPwm). Offenses are 
 either capital or not capital ; capital of- 
 fenses are such as draw down the pun- 
 ishment of death on the offender, such 
 as high treason, felony, &c. Offenses 
 not capital are those of a less important 
 nature, and which are generally termed 
 misdemeanors. 
 
 OFFICE {pffidum). An office is de- 
 fined to be the right to exercise a public 
 or private employment, and to take the 
 fees and emoluments belonging thereto; 
 and it is considered in law a species of 
 incorporeal hereditament. 
 
 * OFFICE-POUND : See next title. 
 
 OFFICE, INQUEST OF. An inqui- 
 sition or inquest of office is an inquiry 
 made by the king's officer, his sheriff, 
 coroner, or escheator, by virtue of his 
 office (viirtmte officii), or by writ sent to 
 him for that purpose, or by commission- 
 ers specially appointed, concerning any 
 matter that entitles the king to the pos- 
 session of lands or tenements, goods, or 
 chattels, &c. This inquiry is made by a 
 jury formed of an indefinite number of 
 persons; it used frequently to be made 
 during the existence of the military 
 tenures, but is now grown almost out of 
 use. For further information on this 
 subject, see titles Inquest ; and Inqtjisi- 
 TiON OP Office. 
 
 OFFICIAL, or OFFICIAL PRINCI- 
 PAL. This was the name given to a judi- 
 cial officer of high ecclesiastical authority 
 in the province of Canterbury, and who 
 was appointed by and under the authority 
 of the archbishop. He had extraordi- 
 nary jurisdiction in almost all ecclesiasti- 
 cal causes, and all appeals from bishops 
 ahd their surrogates were directed to him. 
 His ordinary jurisdiction extended 
 throughout the whole province of Canter- 
 bury ; but his citation, except upon ap- 
 peal, or by letters of request, was con- 
 fined to his own diocese. This office 
 was at one time separate from that of the 
 Dean of the Arches Court of Canterbury ; 
 but as the two Courts met at the same 
 place (formerly Bow Church, de Arcvinis), 
 and the Dean of the Arches frequently 
 performed the duties of the official, in 
 
250 
 
 OFFICINA JUSTITLE. — OPENmG A COMMISSION. 
 
 Official, or Official Principal. — (Ciw*.) 
 the course of time they became, and ever 
 afterward remained, completely united 
 and identified. The Court of the OfiBcial 
 Principal was therefore called the Arches 
 Court of Canterbury, and was of very 
 ancient origin, having subsisted before 
 the time of Henry II. It was held in the 
 hall belonging to the College of Civilians, 
 or Doctors of the Civil Law, at Doctors' 
 Commons. The duties of the OflB.cial 
 Principal, or Dean of Arches, are now 
 discharged by the Judge of the Court for 
 Ecclesiastical Causes, and oflEice which is 
 at present combined with that of the 
 Judge of the High Court of Admiralty. 
 8ee title CtotnaT op Akchbs. 
 
 * OFFICINA JUSTITI J;. The work 
 shop or office of justice ; chancery is so- 
 called. 
 
 OFFICIO, OATH EX. An oath for- 
 merly administered to persons by which 
 they might be compelled to confess, 
 accuse, or purge themselves of any crimi- 
 nal matter or thing by which they might 
 be liable to any censure or punishment. 
 This oath was made use of in the Spirit- 
 ual Court as well in criminal cases of ec- 
 clesiastical cognizance, as in matters of 
 civil right, but was abolished with the 
 High Commission Court by stat. 16 Car. 
 1, c. 11. 
 
 See title High Commission Cottet. 
 
 *OLD NATURA BREVIUM. A trea- 
 tise written in the reign of Edward III., 
 and containing the writs then in use 
 with comments. It is to be distinguished 
 from Eitzherbert's work entitled Natura 
 Brevium. 
 
 OLERON, lAWS OF. The laws made 
 by Richard I., when at Oleron, relating 
 to maritime affairs. Les Termes de la 
 Ley; Co. Litt. 260. 
 
 * OLOGRAPH : See title Holograph. 
 
 * ONERIS FERENDI. In Civil Law, a 
 servitude by which the waU of one house 
 is required to sustain that of another. 
 
 *ONEMASTIC. A signature in a dif- 
 ferent handwriting from the body of the 
 instrament. 2 Bent. Jud. Ev. 460, 461. 
 
 ONUS PROBANDI. This means the 
 Burden of Proof. It is a general rule that 
 he who asserts a fact is bound to prove 
 it ; and it is not ordinarily required to 
 prove a negative, ei qui didt rum qui negat 
 incumbit probatio. But what is at first 
 
 Onus Proband!. — ( Oontinued.) 
 sight a negation may be in reality an 
 affirmative assertion, and in respect of it 
 the arms probandi would rest on the per- 
 son asserting it (Williams v. U. I. Oo., 3 
 Bast, 193), unless the matter was peculi- 
 arly within the knowledge of the other 
 party, e. g., killing game without being 
 duly qualified (Spieres v. Parher, 1 T. R. 
 144), or selling beer without a license. 
 a. V. Smrison, Paley, Conv. 45, n. 
 
 The oniis probandi may be shifted by 
 some presumption of law, e. g., by the 
 presumption of innocence {WilUams v. 
 R I. Oo., supra) ; or of legitimacy {Ban- 
 bury Peerage Case, 2 Selw. N. P. 709) ; or 
 of value in the case of an acceptance to a 
 bill (Mills V. Ban-ber, 1 M. & W. 425) ; or 
 of sanity (Sutton v. Sadler, 26 L. J. [0. 
 P.] 384) ; however, in numerous cases of 
 a criminal nature, the Legislature, has 
 expressly enacted that the burden of 
 proving authority, consent, la/wful excuse, 
 and the like, shall lie on the defendant, 
 e. g., in the case of a person being found 
 by night with implements of house- 
 breaking. 24 & 25 Vict. c. 96, s. 58. 
 
 A test frequently, but not always, 
 available for determining upon whom the 
 burden of proof rests, is, to ask which 
 party would succeed if no evidence were 
 given on either side, and then the onus 
 probandi will rest upon the other party 
 (Mills V. Ba/rber, 1 M. & W. 427). For 
 example, in an action for not executing a 
 contract in a workmanlike manner, the 
 onus rests on the plaintifl (Amos v. Hughxs, 
 1 M. & Rob. 464). Wherefore, usually, 
 the party on whom the ontis probandi lies, 
 as developed on the record, must begin; 
 and the right to begin is conversely a test 
 of the party on whom the onus probandi 
 rests. And yet in certain cases tiie right 
 to begin is in the plaintiff, while the onus 
 probandi lies on the defendant, or ra» 
 versd, as in cases where a plaintiff seeks 
 unliquidated damages in an action for 
 libel or slander, or even of covenant or 
 assumpsit. Mercer v. WhaM, 5 Q. B. 447. 
 
 * OPEN LAW. Trial by ordeal. See 
 title Ordeal. 
 
 OPENING A COMMISSION. Enter- 
 ing upon the duties under a commission, 
 or commencing to act under a commis- 
 sion, is so termed. Thus the judges of 
 assize and nisi prius derive their authority 
 to act under or by virtue of commis- 
 sions directed to them for that purpose ; 
 arid, when they commence acting under 
 the power so committed to them, they 
 
OPENING A RULE. — ORDINANCE OP PARLIAMENT. 
 
 251 
 
 Opening a Commission. — (GmUnued.) 
 are said to open the commissions, and 
 tlie day on which they so commence their 
 proceedings is thence termed the com- 
 mission day of the assizes. 
 
 OPENING A RULE. The act of re- 
 
 storLag or recalling a rule, which has 
 been made absolute, to its conditional 
 state, as a rule nisi, so as to re-admit of 
 cause being shown against the rule. Thus, 
 when a rule to show cause has been made 
 absolute under a mistaken impression that 
 no counsel had been instructed to show 
 cause against it, it is usual for the party 
 at whose instance the rule was obtained 
 to consent to have the rule opened, by 
 Tfhich all the proceedings subsequent to 
 the day when cause ought to have been 
 shown against it are in efEect nullified, 
 and the rule is then argued in the ordi- 
 nary way. 
 
 OPENING PLEADINGS. In trials at 
 2H»i JfVius it is the practice for the plain- 
 tiff's counsel to state briefly the substance 
 and effect of the pleadings in the cause, 
 in order that the jury may know what are 
 the issues about to be tried, and this is 
 termed "opening the pleadings." 
 
 OPTION. The archbishop has a cus- 
 tomary prerogative when a bishop is con- 
 secrated by him, to name a clerk or chap- 
 lain of his own to be provided for by the 
 bishop, in Ueu of which it is now usual 
 for the bishop to make over by deed to 
 the archbishop, his executors and assigns, 
 the next presentation of such dignity or 
 benefice in the bishop's disposal within 
 that see, as the archbishop himself shall 
 choose, which is, therefore, called his 
 option. Cowel. 
 
 ♦OPTIONAL WRIT. A writ framed 
 in the alternative. Called also proecvpe. 
 3 Bl. Com. 374. 
 
 ORATOR. The plaintiff in a cause or 
 matter in Chancery, when addressing or 
 petitioning the Court, used to style him- 
 self "orator," and when a woman, "ora- 
 trix." But the phrase has long gone into 
 disuse, and the customary phrases are 
 now plaintiff and petitioner. 
 
 ORDEAL. The most ancient species 
 of titel was that by ordeal, which was 
 distinguished by the appellation of judi- 
 eiwm Dei, and sometimes by vulgaris pii/r- 
 gatio, to distinguish it from the canonical 
 purgation which was by the oath of the 
 party. It was of two kinds : fire erdeal 
 
 Ordeal. — {Gontinued.) 
 and water ordeal ; the former being con- 
 fined to persona of rank, the latter to the 
 common people. Fire ordeal was per- 
 formed either by taking up in the hand a 
 piece of red-hot iron of one, two, or three 
 pounds' weight, or else by walking bare- 
 foot and blindfold over nine red-hot 
 plough-shares laid lengthwise, at unequal 
 distances, and if the party escaped un- 
 hurt he was adjudged innocent, if other- 
 wise, he was condemned as guilty. 
 Water ordeal was performed either by 
 plunging the bare arm up to the elbow 
 in boiling water, or by casting the sus- 
 pected person into a river or pond of cold 
 water ; and if in the former instance his 
 arm was unburnt, or if in the latter in- 
 stance he floated without any effort to 
 swim, it was deemed evidence of his in- 
 nocence ; if otherwise, of his guilt. The 
 ordeal was abolished in the reign of 
 Henry HI., when the more rational pro- 
 cess of trying the guilt or innocence of 
 an accused person by means of evidence 
 laid before the jury was substituted fqr 
 it. 
 
 See title Jtjry, Trial by. 
 
 * ORDER NISI. A conditional order 
 which is to be confirmed unless something 
 be done, which has been requii-ed, by a 
 time specified. Bouv. Diet. 
 
 ORDERS OF THE DAT. Any mem- 
 ber of the House of Commons who wishes 
 to propose any question, or to "move the 
 House, " as it is termed, must, in order to 
 give the House due notice of his inten- 
 tion, state the form or nature of his mo- 
 tion on a previous day, and have it entered 
 in a book termed the order book ; and the 
 motions so entered, the House arranges, 
 shall be considered on particular days, 
 and such motions or matters, when the 
 day arrives for their being considered, 
 are then termed the "orders of the day." 
 May on Pari. 
 
 ORDINANCE OP PARLIAMENT. Sir 
 
 Edward Coke says that an ordinance of 
 Parliament is to be distinguished from 
 an Act of ParUament, inasmuch as the 
 latter can be only made by the king and 
 a three-fold consent of the State, whereas 
 the former may be ordained by one or 
 two of them. At the time that the right 
 of the Commons to participate in legisla- 
 tion was yet only in growth, a distinction 
 was taken, for the first time, in the reign 
 of Edward HI., between ordinances and 
 statutes, the former being experimental 
 
252 
 
 OKDINART — OUVERTURE DES SUCCESSIONS. 
 
 Ordinance of Parliament. — (Cont'd.) 
 Acts passed for a time only, and, as it 
 were, on trial, and which might after- 
 ward be, and often were, converted into 
 statutes, i. e., permanent Acts, or else 
 might be continued for a time, or dis- 
 charged altogether. 
 
 OEDINAET. In the Civil Law signi- 
 fies any judge who has authority to take 
 cognizance of causes in his own right, 
 and not by deputation. But in the Com- 
 mon Law it signifies the bishop of a dio- 
 cese, though more frequently a commi- 
 sary or official of the bishop or other 
 ecclesiastical judge who has judicial au- 
 thority within his jurisdiction. 
 
 ORDINARY OF NEWGATE. A di- 
 vine who is appointed to attend the con- 
 demned criminals in that prison to 
 prepare them for death, &c. 
 
 =► ORE TENUS. Anciently the plead- 
 ings in Court were ore tenui, that is, ver- 
 bal, oral. Pract. 3736. 
 
 ORIGINAL WRIT. An original writ 
 was the process formerly in use for the 
 commencement of personal actions. It 
 was a mandatory letter from the king, 
 issuing out of Chancery, sealed with the 
 great seal, and directed ta the sheriff of 
 the county wherein the injury was com- 
 mitted, or who was supposed to have been 
 committed, requiring him to command the 
 wrong-doer or accused party either to do 
 justice to the plaintiff, or else to appear 
 in Court and answer the accusation 
 against him. This writ is now disused, 
 the writ of summons being the process 
 prescribed by the Uniformity of Process 
 Act for commencing personal actions; 
 and under the Judicature Act, 1873, all 
 suits, even in the Court of Chancery, are 
 to be commenced by such writs of sum- 
 mons. 
 
 ORPHANAGE PART. That portion 
 of an intestate's effects which his children 
 are entitled to by the custom of London. 
 This custom appears to be a remnant of 
 what was once a general law all over 
 England, namely, that a father should 
 not by his will bequeath, the entirety of 
 his personal estate away from his family, 
 but shall leave them a third part at least, 
 called the children's part, corresponding 
 to the "bairns' part" ovlegitimoi Scotch 
 Law, and also (although not in amount) 
 to the legitima qua/rta of Roman Law. 
 Just. ii. 18. 
 
 ♦OSWALD'S LAW. The law which 
 effected the ejecting of married priests 
 and the introduction of monks into the 
 churches, promulgated by Oswald Bishop 
 of Worcester in 964. 
 
 OUSTED (from the Fr. ouster, to put 
 out). To be removed or put out ; thus, 
 ouster of the freehold signifies being put 
 out of possession of the freehold ; ousted 
 of an estate for years, signifies being 
 turned out from the occupation of the 
 land during the continuance of the term. 
 
 OUSTER LE MAIN {to remove the 
 hand). When the male heir arrived at 
 the age of twenty-one, or the heir female 
 at the age of sixteen, they might sue out 
 their livery of ouster le main; that is, tke 
 delivery of their lands out of their guar- 
 dian's hands. 
 
 See, also, title Livbbt. 
 
 OUT OF COURT. He who has no le- 
 gal status in Court is said to be "out of 
 Court," i. «., he is not before the Court. 
 Thus, when the plaintiff in an action, by 
 some act of omission or commission, shows 
 that he is unable to maintain his action, 
 he is frequently said to puthimseU "out 
 of Court." Sometimes a person who is 
 out of Court is said to have no hem 
 standi, 
 
 OUTER BAR. Barristers at law are 
 divided into two classes, viz., queen's 
 counsel, who are admitted within the bar 
 of the Courts, in seats specially reserved 
 for themselves ; and junior counsel, who 
 sit without the bar ; and the latter are 
 thence frequently termed barristers of the 
 "outer bar," or "utter bar," in contra- 
 distinction to the former class. 
 
 See, also, title Utter Babbistbrs. 
 
 OUTLAWRY. The process of putting 
 a man out of the protection of the laWj so 
 that he is incapable of bringing any action 
 for redress of injuries ; and it is also at- 
 tended with a forfeiture of the party's 
 goods and chattels, a consequence which 
 is in no way affected by the Forfeiture for 
 Felony and Treason Abolition Act, 1870 
 (33 & 34 Vict. c. 23). 
 
 OUTSTANDING TERMS: See title 
 Tebm. 
 
 OUVERTURE DES SUCCESSIONS. 
 
 In French Law denotes the right of suc- 
 cession which arises to one upon the death, 
 whether natural or civil, of another. Such 
 successor must not be either as yet uncon- 
 ceived, or a child non mahle, or one civilly 
 
OVERCYTED.— PAINE, PORT ET DURE. 
 
 253 
 
 Ouverture Des Successions. — (Gont^d.) 
 dead ; and he must also be clear of cer- 
 tain moral delinquencies, for which see 
 Code Civil, 737. Bastards have no rights 
 of succession ; but in case their parent 
 leaves legitimate oflEspring, they have one- 
 third of the goods which, as a legitimate 
 child, they would have received ; and if 
 tlie parent leaves no legitimate offspring, 
 but ascendants and collaterals (being 
 brothers or sisters), then one-half; and 
 and if the parent leaves neither legitimate 
 offspring nor ascendants nor collaterals 
 (being brothers or sisters), then three- 
 fourths ; -and in case of a total failure of 
 inheritable relations, then the whole. 
 The widow surviving takes the succession 
 where the parent leaves no inheritable 
 relations or bastards, and failing her, the 
 state. 
 
 * OVERCYTED. Proved guilty or con- 
 victed. A word found in the laws of 
 Edward. Jacob Diet. 
 
 *OVERHEMISSA. Contempt of Court, 
 used in old Saxon Law. Spelman. 
 
 OYERT (Fr. open, &o.). Thus an overt 
 act signifies an open or manifest act, such 
 as can be manifestly proved. 
 
 In charges of treason it is necessai-y in 
 order to a conviction to substantiate 
 either one overt act by at least two wit- 
 nesses, or two overt acts of the same char- 
 acter by one witness apiece. 
 See title Treason. 
 
 ♦OWELTY. The difference paid or 
 secured by one co-parcener to another to 
 equalize a partition. Plowd. 134 ; Bouv. 
 Diet. 
 
 *OXGANG. In old English Law, as 
 much land as an ox could till, from 13 to 
 15 acres. Crompt. Juris. 220. 
 
 OYER (to Tiea/r). This word, says Dr. 
 Cowel, seems formerly to have signified 
 what our word assize does now, sed giitere, 
 as to the oyer of deeds, and oyer and ter- 
 miner. 
 
 See the two following titles. 
 
 OYER OF DEEDS AND RECORDS. 
 
 Hearing of deeds and records. Thus, 
 when either party in an action alleges 
 any deed, he is in general obliged to make 
 profert of such deed ; that is, to produce 
 it in Court simultaneously with the plead- 
 ing in which it is alleged. "When oral 
 pleading was in practice, the deed was 
 actually produced in Court; but after- 
 
 Oyer of Deeds and Records. — {OonVd.) 
 ward profert consisted merely of a fonnal 
 allegation that the party showed the deed 
 in Court, it being, in fact, retained in his 
 own custody. When profert was thus 
 made by one of the parties, the other, 
 before he pleaded in answer, was entitled 
 to demand oyer, that is, to hear it read ; 
 and this, either for the purpose of enab- 
 ling him to ascertain the genuineness of 
 the alleged deed, or of founding on some 
 part of its contents (not set forth by the 
 adverse party), some matter of answer. 
 Oyer of records was of the same nature, 
 being a demand to hear any record read 
 which had been alleged in the pleading 
 of the opposite party. By the Common 
 Law Procedure Act, 1852, s. 55, it shall 
 not be necessary to make profert of any 
 deed or other document mentioned or re- 
 lied on in any pleading ; and if profert 
 shall be made, it shall not entitle the op- 
 posite party to crave oyer of, or set out 
 upon (/yer such deed or other document. 
 But this provision affects the form of 
 pleading only, and not also the rules of 
 evidence, or the modes of proving any 
 deed or other docimient. 
 
 OYER AND TERMINER (from the 
 Pr. mviir, to hear, and terminer, to deter- 
 mine). A commission of oyer and ter- 
 miner is a commission under the king's 
 great seal, directed to certain persons, 
 among whom two Common Law judges 
 are usually appointed, empowering them 
 to hear and determine treasons, felonies, 
 robberies, murders, and criminal offenses 
 in general. 
 
 See title Justices of Oyer and Ter- 
 miner. 
 
 Oj YES. It is said to be a corruption 
 of the French oy«z, i. e., hear ye; and is 
 sometimes used in Courts by the pubUc 
 crier, to command attention when a proc- 
 lamation is going to be made. 
 
 P. 
 
 PAINE, FORT ET DURE (Pr., punish- 
 ment, strong and severe). A special pun- 
 ishment for those who, being arraigned 
 for felony, refused to put themselves on 
 the ordinal^ trial of God and the country, 
 and were, therefore, considered as mute 
 in the interpretation of the law. This 
 punishment was vulgarly called pressing 
 to death. 
 
 See, also, title Mute. 
 
254 
 
 PAIS. — PAEAPHEENALIA. 
 
 PAIS (Pr. eounl/ry). A trial' per pais 
 signifies a trial by the country, or, as it is 
 more commonly called, by jury. An as- 
 surance by matter m pais is an assurance 
 transacted between two or more private 
 persons in pom (in the country), i. e., upon 
 the very spot to be transferred. Matter 
 in pais seems to signify matter of fact, 
 probably so called because matters of fact 
 are triable by the country, i. e., estoppels 
 in pais are estoppels by conduct, as dis- 
 tinguished from estoppels by deed or by 
 record. 
 
 See title Estoppels. 
 
 PALACES, BO YAL. The privilege of 
 palace is attached to any place which is 
 de facto the sovereign's residence. Hamp- 
 ton Court Palace was formerly a royal 
 residence, but has not been personally oc- 
 cupied by the sovereign since 10 Geo. 2. 
 The State departments have for many 
 years past been used as a picture gallery, 
 open, within certain hours, to the public 
 gratuitously; the other apartments are 
 occupied partly by officers of the palace, 
 partly and chiefly by private persons, by 
 the permission and at the pleasure of the 
 Crown. The palace is under the control 
 of a housekeeper of the Crown, who (the 
 housekeeper) has apartments in the pal- 
 ace. A writ of Ji. fa. having been execu- 
 ted in one of the suites of apartments 
 occupied by private persons, an informa- 
 tion of intrusion was filed against the 
 sheriffs and their officers in a case of Att.- 
 Oen. V. Dahin and Others (L. R. 3 Ex. 
 390). It was held^er CWMsm,.that actual 
 personal residence of the sovereign at the 
 time is not necessary to confer the privi- 
 lege, if there is no intention to resume 
 residence. 
 
 PANDECTS. The books of the Civil 
 Law compiled by Justinian are so called. 
 The word literally translated means a 
 universal collection or compilation of pas- 
 sages, and denotes the universality of the 
 subjects* treated of in the Corpus Juris 
 Givilis; whereas the word Digest, which 
 in England is the more common of the 
 two words, means a methodical arrange- 
 ment, and denotes the method or order 
 which is so perfectly observed in the ar- 
 rangement of the same compilation. 
 
 PANEL. The slip of parchment on 
 which the sheriff returns the name of the 
 jurors to serve on a jury is so called. 
 See, also, title Impanbl. 
 
 PANIEB. Is an attendant or domes- 
 tic, who waits at table and gives bread 
 
 Panier. — {Oorvtirmed.') 
 (panis), wine, and other necessary things 
 to those who are dining. The phrase was 
 in familiar use amongst the Knights Temp- 
 lars, and from them has been handed 
 down to the learned societies of tlie Inner 
 and Middle Temples, who at the present 
 day occupy the halls and buildings once 
 belonging to that distinguished order, 
 and who have retained a few of their cus- 
 toms and phrases. " From the time of 
 Chaucer to the present day, the lawyers 
 have dined together in the ancient hall, 
 as the military monks did before them, 
 and the rule of their order reqtiiring two 
 and two to eat together, and all the frag- 
 ments to be given in brotherly charity to 
 the domestics, is observed to this day, 
 and has been so from time immemorial. 
 The attendants at table, moreover, are 
 still called ' paniers,' as in the days of 
 the Knights Templars." Addison's Knight 
 Templars. 
 
 PANNAGE or PAWNAGE. Words 
 used by our law writers to signify the 
 money which the agistors of the forest 
 collect for the feeding of swine within 
 the forest, and sometimes it is used for the 
 food itself. £ies Termes de la Ley. 
 
 ♦PARAGE. Equality of blood, name, 
 rank, and especially of land in partition. 
 In feudal law, equality of condition be- 
 tween persons holding unequal portions 
 of a fee. 
 
 PARAMOUNT (from the French par 
 and monter). The supreme lord of a fee, 
 in contradistinction to the mesne lord, 
 who held of some superior under certain 
 services (F. N. B. 135; Cowel). The 
 sovereign is the universal lord paramount, 
 of whom all lands are held in England. 
 See title Fbudal Tenures. 
 
 PARAPHERNALIA (from the Greek 
 TtapoL, besides, and <pspvij, dower, i.-e., 
 something to which the wife is entitled 
 over and above her dower). Under the 
 term paraphernalia" are included such 
 apparel and ornaments of the wife as are 
 suitable to her condition in Ufe. Thus, 
 pearls and jewels, usually or sometimes 
 worn by the wife, although articles of 
 mere ornament, have been held to fall 
 within the term paraphernalia, as in the 
 case of Mangey v. Mungerford (3 Eq. C. 
 Ab. 156), where the widow claimed and 
 obtained her gold watch and several gold 
 rings as paraphernalia, which had been 
 given to her at the funerals of relations. 
 
PAEAPHBRNAUX, BIBNS. — PAROL. 
 
 255 
 
 PARAPHEBNAUX, BIENS. In 
 
 French Law all the -wife's property which 
 is not subject to the rigvme dotal (see that 
 title) is called by this name ; and of these 
 the wife has the entire administration; 
 but she may allow the husband to enjoy 
 them, and in that case he is not liable to 
 account. Compare English Law, Pin- 
 MoNBY ; Sep ABATE Estate ; PABAPfiER- 
 
 TSALIA. 
 
 PARA VAIL (from the Preneh par and 
 amayW). Tenant paravail signified the 
 lowest tenant of land, being the tenant 
 of a mesne lord ; he was so called because 
 he was supposed to make avail or profit 
 of the land for another. Cowel ; 2 Bl. 60. 
 
 PARCENARY. The holding of lands 
 jointly by parceners or co-parceners. See 
 
 title Co-PABCEKEBS. 
 
 PARCENERS : See title Co-pabcbnebs. 
 
 PARDON. The Crown, in exercise of 
 its prerogative of mercy, may pardon after 
 conviction either of treason or of- felony. 
 But such pardon may not be given in an- 
 ticipation of a conviction, and so as to be 
 pleaded in defense to a prosecution {tee 
 title Danby, Impeachment of). The par- 
 don relates of course only to the particu- 
 lar conviction for which it is given. Reg. 
 v. Sam-oA, 3 0. & K. 294. 
 
 PARENT AND CHILD : See titles In- 
 fants; Seduction. 
 
 PARK (pasrcMs). The word commonly 
 signifies an inclosure ; t>ut to constitute a 
 legal park, or rather a park in the eye of 
 the law, it must have been made so by the 
 king's grant, or at least by immemorial 
 prescription. Lei Termes de la Ley. 
 See titles Chase ; Waebbn. 
 
 * PARLE OR PARLING HILL. A 
 
 hiU where courts were held in old times. 
 
 PARLIAMENT — lU dwigion into two 
 Bouses. The year assigned by Carte for 
 this division is 17 Edward 3, and that is 
 the most probable date. But Hallam ar- 
 gues for a much earlier date, and he in- 
 stances 11 Edward 1 as a year in which 
 the Houses were divided ; the Commons 
 and Spiritual Peers having in that year 
 sat at Acton Bumell, while the Temporal 
 Peers sat at Shrewsbury. It appears, 
 however, that the separation in 11 Edward 
 1 was due to a special cause, that is to 
 say, the temporal peers in their sitting at 
 Shrewsbury were trying David Prince of 
 Wales (otherwise caUed" Llewellyn), on a 
 charge of treason ; and upon such a trial 
 
 Parliament. — (OmUnued.) 
 the Spiritual Peers, and dforUwi the 
 Commons, were not entitled to be present. 
 The other instances which Hallam puts 
 forward might possibly be explained in 
 like manner upon their special circum- 
 stances;' and therefore any such occa- 
 sional separations must not be suffered to 
 impugn the authority of Carte, or the cor- 
 rectness of the date which he assigns. 
 But, in fact, an earlier separation of 
 Lords and Commons was not needed ; for 
 the Commons, even when they met under 
 the same roof as the Lords, always sat 
 apart from the Lords in the lower end of 
 the hall, and not then assuming to dis- 
 charge any duties beyond the grant of 
 money or supplies, there was no urgent 
 reason in early times why they should sit 
 in a separate house. 
 
 PARLIAMENTARY AGENTS. Per- 
 sons who act as solicitors in promoting 
 and carrying private bills through Parlia- 
 ment. They are usually attorneys or so- 
 licitors, but who do not usually confine 
 their practice to this particular depart- 
 ment. 
 
 PARLIAMENTARY TAXES. Such 
 taxes as are imposed directly by Act of 
 Parliament, i. «., by the Legislature itself, 
 as distinguished from those which are im- 
 posed by private individuals or bodies 
 under the authority of an Act of Parlia- 
 ment. Thus, a sewers rate, not being im- 
 posed directly by Act of ParUament, but 
 by certain persons termed commissioners 
 of sewers, is not a parliamentary tax; 
 whereas the income tax, which is directly 
 imposed, and the amount also fixed, by 
 Act of Parliament, is a parliamentary tax. 
 See title Taxation. 
 
 * PARLIAMENTUM INDOCTUM. 
 
 The unlearned or lack-learning parlia- 
 ment. A parliament held in the reign of 
 Henry PV., to which no lawyer or person 
 skilled in the law was allowed to come. 
 1 Bl. Com. 177. 
 
 PAROL (Pr., signifying word, speech, 
 &c.). This word signifies verbal, in con- 
 tradiction to that which is written. Thus, 
 a parol agreement signifies an agreement 
 by word of mouth, in contradistinction to 
 a written agreement. The pleadings in an 
 action are also, in our old law French, de- 
 nominated the parol, because they were 
 formerly actual vwa voce pleadings in 
 Court, and not mere written allegations as 
 at present. A remnant of this latter use 
 of the word occurs in the phrase, "the 
 
256 
 
 PAROL DEMURRER.— PARTNERSHIP. 
 
 Parol. — {CmUnued.') 
 parol shall not demur " (as to which, see 
 next title). Parol evidence is also the 
 phrase commonly used to denote extrin- 
 sic evidence, i. e., evidence outside of the 
 written document which it is used to ex- 
 plain. 
 
 See title Extbinsic Evipenob. 
 
 PAROL DEMURRER. A plea to stop 
 or stay the pleadings in an action. In 
 many real actions brought by or against 
 an ijafant under the age of twenty-one 
 years, and also in actions of debt brought 
 against him, as heir to any deceased an- 
 cestor, either party may suggest the non- 
 age of the infant, and pray that the pro- 
 ceedings maybe deferred till his full age, 
 or (in our legal phrase) that the infant 
 may have his age, and that " the parol may 
 demur, " that is, that the pleadings may 
 be stayed ; and then they shall not pro- 
 ceed till his full age, unless it be apparent 
 that he cannot be prejudiced thereby. 
 This plea of parol demurrer was abolished 
 by the stat. 11 Geo. 4 & 1 Will. 4, c. 47, 
 as to proceedings under that statute, 
 being chiefly decrees for the sale of real 
 estate to pay debts. But since the Trus- 
 tee Act, 1850, and Trustee Extension Act, 
 1853, "a resort to the last-mentioned 
 statute is seldom necessary. 
 
 * PARS ENTITIA. The part or share 
 of the eldest daughter in the partition of 
 land by lot. Co. Litt. 166 b. ; Burr. 
 Diet. 
 
 PARSON (^pereona), in its legal ac- 
 ceptation, si^ifies the rector of a paro- 
 chial church. He is called parson, 
 persona, because, by his person, the 
 church, which is an invisible body, is 
 represented. Co. Litt. 300 a, s. 538. 
 
 PARSON IMPERSONEE. When a 
 clerk is not only presented, but instituted 
 and inducted into a rectory, he is then, 
 and not before, in full and complete pos- 
 session, and is called in law persona im- 
 pe/rsonata, or parson impersonee. Co. Litt. 
 300. 
 
 PARTAGE. This is, in French Law, 
 the partition of English Law, and is 
 demandable as of right. 
 
 PARTICULAR ESTATE. A limited 
 legal interest or property in lands or tene- 
 ments, as distinguished from the absolute 
 property or fee simple therein, is usually 
 so termed ; and he who holds or enjoys 
 such a limited interest therein is thence 
 
 Particular Estate. — ( Continued. ) 
 sometimes called the particular tenant. 
 Thus, if A. has the absolute property or 
 fee simple in certain lands, and he de- 
 mises them to B. for a term of seven years, 
 or life, the legal interest which B. would 
 thus acquire therein would be called the 
 particular estate with reference to A.'s 
 estate' in fee simple; i. «., it would be a 
 particle or portion carved or cut out of 
 A.'s fee simple. 
 
 See, also, titles Rbmadtobr ; Revbk- 
 
 SION. 
 
 PARTICULARS OF DEMAND: See 
 
 title Bill op Pakticulaes. 
 
 PARTICULARS OF OBJECTIONS: 
 
 See title Notice ob Objbctions. 
 
 PARTIES, or PRIVIES. " Parties " . 
 to a deed or contract are those with 
 whom the deed or contract is actually 
 made or entered into. By the term 
 "privies," as applied to contracts, is 
 frequently meant those between whom 
 the contract is mutually binding, although 
 both are not literally parties to such con- 
 tract. Thus, in the case of a lease, the 
 lessor and lessee are both parties and 
 privies, the contract being literally made 
 between the two, and also being mutually 
 binding; but if the lessee assign his 
 interest to a third party, then a privity 
 arises between the assignee and the origi- 
 nal lessor, although such assignee is not 
 literally a party to the original lease. 
 See, also, title Privies. 
 
 PARTITION (parUUo). The dividing 
 of lands held by joint tenants, co-par- 
 ceners, or tenants in common, into dis- 
 tinct portions, so that they may hold 
 them in severalty ; and the instrument by 
 which this partition or division is effected 
 is called a deed of partition (4 Cruise, 
 83). A partition is usually eflected upon 
 bUl filed in the Court of Chancery, after 
 the decree on which the parties execute 
 to each other the requisite mutual con- 
 veyances of each other's shares (see title 
 CoNTBYANCEs). But if the parties can 
 agree among themselves to make a parti- 
 tion, there is no occasion to resort to the 
 Court at all. Since the Partition Act, 
 1868 (81 & 32 Vict. c. 40), the Court may, 
 in certain cases specified in the Act, 
 decree a sale in lieu of partition. 
 
 PARTNERSHIP. This is a voluntary 
 contract, whereby two or more persons 
 agree to put their money and labor, or 
 either, together in some lawful business, 
 
PARTNERSHIP. 
 
 257 
 
 Partnership. — ( Oontmued.) 
 and to divide the profits arising from the 
 business. No third party can be intro- 
 duced into the partnership without the 
 consent of all ; but he may be taken as a 
 sub-partner of one or more of the partners 
 (Ex parte Barrow, 3 Rose, 255). Upon 
 the death of a partner, he pay not by his 
 will introduce a successor to bis share 
 {Peource v. Ohamberlami, 2 Ves. 33), unless 
 the partnership agreement authorizes 
 him to' do so. Stuart v. Bute {Earl), 3 
 Vea. 212; 11 Ves. 657. 
 
 In the absence of stipulation, the shares 
 of the partners, both in the capital and in 
 the profits, are presumed to be equal, and 
 the losses to be similarly divisible {Pea- 
 coch V. Peacoch, 16 Ves. 49) ; but the pre- 
 sumption is rebuttable {Stewart v. Forbes, 
 1 Mac. & G. 137). A partner is not en- 
 titled to interest on the capital which he 
 brings in {EM v. King, 1 N. R. [L. C] 
 161), but he is entitled to interest on 
 advances made in excess of his share of 
 capital {Mc paHe GTiippendale, 4 De G. M. 
 & G. 36), five per cent being the custom- 
 ary rate. Ex pa/rte Bignold, 22 Beav. 
 167. 
 
 The true criterion of a partnership is, 
 that each member of it stands in the rela- 
 tion of a principal to the other members, 
 who in that regard are his agents {Oox v. 
 Hkleman, 8 H. C. 268); consequently a 
 person may share profits without being a 
 partner, as well by the Common Law, as 
 under the Act 28 Ss 29 Vict. c. 86, and 
 may in that manner escape all liability for 
 losses. On the other hand, a person who 
 is not a partner may, by holdfag himself 
 out as one, become liable for losses, 
 although not entitled to share in profits 
 {Ex parte Watson, 19 Ves. 461); but 
 merely continuing the name of a deceased 
 partner in the style does not charge the 
 executor with liability on contracts made 
 since the death of his testator by the 
 surviving partners. Desayriea v. Noble 
 {SouUon's Case), 1 Mer. 616. 
 
 The liability of a partner extends to all 
 acts of his co-partners reasonably within 
 the scope of the partnership business 
 {Sandilcmd v. Ma/rsh, 2 B. & Aid. 672), 
 although beyond the agreed powers of 
 the co-partners {MawJcen v. Bourne, 8 M. 
 & W. 710) ; and such liability commences 
 with the de facto commencement of the 
 partnership, notwithstanding the partner- 
 ship articles may not be signed till after- 
 ward {Battley v. Lewis, 1 Han. & G. 155), 
 but it does not commence sooner as to 
 third parties, notwithstanding by special 
 
 Partnership. — ( Oontmued.) 
 agreement it commences sooner as be- 
 tween the co-partners {Vere v. AaMy, 10 
 
 B. & C. 288). However, no contract of 
 one or more partners will bind the other 
 or others if it be in a matter wholly un- 
 connected with the partnership {Ex pa/rte 
 Agace, 2 Cox, 312) ; and no partner can 
 bind the partnership by executing a deed 
 {Harrison v. Jackson, 7 T. R. 207), unless 
 he have been authorized by deed to 
 execute it {Horsley v. Rush, 7 T. R. 209), 
 or, unless the deed be one of release as 
 distinguished from one of grant {Aspinall 
 V. London and Northwestern By. Go.^ 11 
 Hare, 325), the transaction being, of 
 course, one within the scope of the part- 
 nership {Ex pa/rte Bosanqwet, 1 De G. 432). 
 Also, ordinarily, one partner cannot bind 
 the firm by a guarantee for collateral 
 purposes {Brettel v. WilUams, 4 Ex. 623), 
 unless the other partners are proved to 
 have sanctioned it {Sandilands v. Ma/rsh, 
 2 B. & Aid. 672) ; also, one partner's part 
 payment of the principal or interest of a 
 debt does not save the Statute of Limita- 
 tions, as against the other partners, M. 
 L. A. Act, 1856 (19 & 20 Vict. c. 97), s. 
 14, altering the former law {Whitcomb v. 
 Whiting, Doug. 651) ; also, one partner 
 cannot bind the firm by a submission to 
 arbitration {Stead v. Salt, 10 Moo. 389). 
 Neither can a partner in a non-mercantile 
 firm ordinarily draw or accept bills or 
 notes, or give a receipt for money so as 
 to bind the firm {Ha/rman v. Johnson, 2 
 El. & Bl. 61 ; DicUnsm, v. VaJpy, 10 B. & 
 
 C. 128) ; and a partner in a mercantile 
 firm even cannot borrow money for the 
 purpose of increasing the fixed capital of 
 the firm. Fisher v. Tayler, 2 Hare, 218. 
 
 And with reference to the duration of 
 the liability of partners,, the liability of a 
 retiring or deceased partner ceases with 
 the cessation of the partnership as to him, 
 provided notice by circular letter and in 
 the Gazette has been given {Kirwan v. 
 Kvrwan, 2 C. & M. 617 ; Newsome v. Oohs, 
 2 Camp. 617), but only as to contracts 
 subsequent to the date of his interest 
 ceasing {Wood v. Braddick, 1 Taunt. 104; 
 Finder v. Wilhs, 5 Taunt. 612) ; a dormant 
 partner does not require to give such 
 notice, excepting to the customers who 
 knew his connection with the firm {Evans 
 V. Drwmmwnd, 4 Esp. 89). And it is 
 competent for the creditors (although not 
 also for the continuing partners, vmless 
 with the consent of the creditors) to 
 accept the liability of the continuing 
 partner and to discharge the ceasing 
 
258 
 
 PARTNERSHIP. 
 
 Partnership. — {OmMnued.') 
 partner. Lyfh v. AuU, 7 Ex. 669, over- 
 ruling Tiodffe V. IHcaa, 3 B. & Aid. 611. 
 
 Partnerships are usually carried on 
 under agreements in writing (-whether 
 under hand and seal or under hand only), 
 but a mere parol agreement suffices, and 
 may even be substituted at any time for 
 the written one (^England v. OurUng, 8 
 Beav. 139); and where a partnership is 
 continued after the term specified in the 
 writing, it is a partnership at will upon 
 the old footing, so far as applicable {Olarh 
 V. Leach, 1 De Qt. J. & S. 490) ; and the 
 same is the case when a new partner is 
 taken in without any fresh writing. 
 AvMen v. Boys, 84 Beav. 598. 
 
 One partner cannot sue another at Law 
 in respect of a partnership matter, and 
 therefore can have no account there {Bo- 
 mil V. Eamvmond, 6 B. & 0. 149), unless 
 upon a special covenant for breach thereof 
 {Broim V. Tapscott, 6 M. & W. 119), or for 
 a balance of account upon an implied 
 promise to pay ( Wrwy v. MUeatone, 5 M. 
 & W. 31). But even at Law one partner 
 may sue another for a matter dehors the 
 partnership {Freinch v. Styring, 3 C. B. 
 [N. 8.] 357), for example, for money ad- 
 vanced or work done before the partner- 
 ship, although toward the formation of 
 the partnership {Verming v. Lechie, 13 
 East, 7). But in Equity the partner has 
 the following remedies against his co- 
 partner: 
 
 L Specific performance, — 
 
 (a.) Of contract for partnership 'for a 
 term of years, when there have 
 been acts of part performance 
 (8ooU V. Bayment, L. R. 7 Eq. 
 113) ; but not 
 (J.) Of agreement for reference (Btreet 
 V. Righy, 6 Ves. 818. 
 IL Injunction, ^ 
 
 (a.) Against willfully excluding a co- 
 partner's name from the style, 
 contrary to agreement (Mar- 
 shall V. Col/man, 2 Jao. & W. 
 266); 
 (6.) Against one partner engaging in 
 another business, contrary to 
 agreement (SomerviUe v. Mac- 
 hay, 16 Ves. 382) ; 
 (o.) Against willfully excluding a co- 
 partner from the exercise of 
 his rights as such (JMetrichsen 
 V. Cdbtmm, 2 Ph. 59) ; 
 (d.) Against a sudden dissolution 
 working irreparable damage. 
 1 Lindl. Partnership, 332, 3d 
 ed. 
 
 Partnership. — ( GonUnwed,.') 
 in. Decree for dissolution,including the 
 taking of the accounts and the 
 appointment of a receiver, with 
 a view to the dissolution ; 
 (o.) Where the co-partnership origin- 
 ated in fraud (Ba/mlins v. 
 WielkJiam, 1 Giff. 355) ; 
 (&.) Where a co-partner is guilty of 
 gross misconduct in partner- 
 ship matters (Smdth v. Jeyes, 
 4 Beav. 503) ; 
 (c.) Where a co-partner is continually 
 breaking the partnership 
 agreement ( Waters v. Taylor, 
 2 V. & B. 299) ; 
 (d) Where the incompatibility of 
 tempers is extreme (Baxter v. 
 West, 1 Dr. & Sm. 173); 
 («.) Where a co-partner whose per- 
 sonal skill was indispensable 
 to the partnership becomes in- 
 sane. JoTies V. Jafoy, 2 My. & 
 K. 125. 
 IV". Receiver, — ^toward dissolution. HaU 
 
 V. Sail, 3 Mac. & &. 79. 
 v. Accounts, — ^without dissolution; 
 (a.) Where a partner has been ex- 
 cluded ; 
 (6.) Where the partner complaining 
 would be entitled to ask for a 
 dissolution. Fairthorrm v. 
 Westmi, 3 Hare, 387. 
 VI. Discovery, — in aid of an action at 
 law, and even of a .compulsory 
 reference to arbitration (British 
 B. I. Go. V. Sorms, 5 W. R. 813). 
 Moreover the jurisdiction in Equity is, 
 in general, much more available, and also 
 more advantageous than that at Law, as 
 will be seen from the following instances : 
 (1.) Upon the decease of a co-partner 
 the creditors can only proceed 
 against the survivors, but in 
 Equity they may proceed 
 against the estate of the de- 
 ceased (YuUiaamy v. Noble, 3 
 Mer. 593) ; 
 (3.) In the case of two firms having a 
 common partner, neither firm 
 can sue the other at Law 
 (Bosanquet v. Wray, 6 Taunt. 
 597) ; but in Equity each may 
 sue the other (MainwaHng v. 
 Newman, 3 B. & P. 130) ; . 
 (8.) In the case of a co-partner pur- 
 chasing a share in the partaer- 
 ship, he cannot at Law sue his 
 co-partners to recover it, but 
 in Equity he may ( Wright v. 
 Hunter, 5 Ves. 793) ; 
 
PARTNEESHIP. 
 
 259 
 
 Partnership. — {Gontiniied.) 
 
 (4.) The lands of a co-partnership are 
 at Law liable only as lands, 
 but in Equity they are liable 
 as personal estate {Baring v. 
 Nolle, 3 Ry. & M. 495); and 
 (5.) Generally, a co-partner cannot 
 obtain either specific perform- 
 ance, an injunction, a decree 
 for dissolution, the appoint- 
 ment of a receiver, or an order 
 to account at Law, although 
 he may (as is above mentioned) 
 have all of these in Equity. 
 A partnership depending for its com- 
 mencement upon the consent of the part- 
 ners, depends upon the same consent for 
 its contiiiuance ; and therefore the disso- 
 lution of a partnership may be brought 
 about by any sufficient dissent of the part- 
 ners to its continuance, namely, in the 
 following variety of ways : 
 L Dissolution by act of the partners 
 themselves, — 
 (1.) Consent of all to dissolve {Hall 
 
 V. Hall, 13 Beav. 414) ; 
 (3.) Dissent of one, where partner- 
 ship .is at will {Master v. Kir- 
 ton, 3 Ves. 74; Glumany v. 
 Tan Somer, 3 Wood. Lect. 
 416, n); 
 (3.) Efflux of term of co-partnership. 
 irFeatheratonhaugh v. fenwidi, 
 17 Ves. 378. 
 n. Dissolution by operation of law, — 
 (1.) By conviction of a partner for 
 
 felony; 
 (3.) By the marriage of a partner, 
 being a female {Nerot v. Ber- 
 Tumd, 4 Buss. 347) ; 
 (8.) By the partner's general assign- 
 ment {Seath V. Sanson, 4 B. & 
 Ad. 173); 
 (4.) By execution creditor of a part- 
 ner seizing his share or part 
 thereof {Fox y.Sanbury.Ooyrp. 
 445); 
 (5.) By bankruptcy of a partner 
 {Grawsha/y v. GolUns, 15 Ves. 
 318), the dissolution taking 
 efEect upon adjudication, but 
 dating backward to act of 
 bankruptcy {Button v. Morri- 
 son, 17 Ves. 193) ; 
 (6.) By hostilities between two coun- 
 tries of co-partners, where 
 they are foreigners to each 
 other {Cfriswold v. Waddington, 
 16 Johns. [Am.] 438) ; 
 (7.) By the death of a partner {CHlles- 
 pie V. Hamilton, 3 Madd. 354) ; 
 
 Partnership. — ( GonUmued.) 
 
 III. Dissolution by decree of Court of 
 Equity, for the reasons enu- 
 merated above. 
 ■ Immediately upon a dissolution being 
 made, the power of the partners, either 
 together or individually, to enter into any 
 ra«w engagjements ceases {Ex parte Wil- 
 liams, 11 Ves. 5); nevertheless each part- 
 ner may actively assist in the winding-up 
 of the iBusiness, and therefore may give a 
 valid receipt for any debt of the partner- 
 ship received by him {Fox v. Hanbury, 
 Cowp. 445), and may even compound 
 debts, provided the composition be 
 fair and honorable {BeaJe v. Beak, Ca. t. 
 Pinch, 190). And in case of a dissolu- 
 tion by death or bankruptcy, the surviv- 
 ing or solvent partners cannot insist upon 
 taking the partnership effects at a valua- 
 tion {Goole V. Collingridge, Jac. 607), but 
 all the property of the firm as well real as 
 personal must be sold {OroMshay v. Maule, 
 1 Sw. 495), although at the sale the 
 partners may bid {OJiambera v. Howell, 11 
 Beav. 6), having first obtained the leave 
 of the Court, where the sale is by direc- 
 tion of the Court. JRowland v. Evans, 30 
 Beav. 303. 
 
 The creditors of the partnership, not 
 being execution creditors, have no direct 
 Uen on the partnership effects, but have 
 an indirect lien through the direct lien of 
 the partners themselves thereon {Ex parte 
 Buffin, 6 Ves. 119), consequently the 
 partneriship (or, as they are called, joint) 
 creditors have the first claim on the part- 
 nership (i. e., joint) property for the pay- 
 ment of their debts, the partners them- 
 selves having that right, in exoneration 
 pro tern, or pro tanto of their respective 
 private {i. e., separate) estates, and on 
 the other hand the separate creditors of 
 each partner have the first claim on the 
 separate estate of that partner; then, if 
 the partnership is solvent and the indi- 
 vidual partners also solvent, there is an 
 end of the rights of creditors, their debts 
 being paid. But if, on the one hand, the 
 partnership is insolvent, the joint credit- 
 ors may thereafter come down on the re- 
 spective separate estates of the individual 
 partners whether living or dead ; and if, 
 on the other hand, any one or more of the 
 individual partners are insolvent, his or 
 their respective separate creditors may 
 thereafter come down upon the partner- 
 ship estate to the extent of his or their 
 respective shares therein; and it makes 
 no difference whether the estate is ad- 
 ministered out of Court or in Court, and 
 
260 
 
 PARTNEBSHIP.— PAKTT AND PARTY, , BETWEEN. 
 
 • Partnership. — {Gmtinued.) 
 if in Court whether in a Court of Equity 
 or in a Court of Bankruptcy (Btdgway v. 
 Glare, 19 Beav. 111). But, although the 
 order above described is the natural order 
 of payment, yet any joint creditor may in 
 the absence of a bankruptcy proceed in 
 the first instance against the separate es- 
 tate, and any separate creditor against the 
 joint estate, occasioning a certain amount 
 of disorder thereby, which disorder, how- 
 ever, is afterward removed in the general 
 settlement of the accounts {WilMnson v. 
 Henderson, 1 My. & K. 583), the princi- 
 ple of settlement being the principle 
 of marshalling derived from the nat- 
 ural order of payment mentioned above 
 and the whole doctrine resting upon the 
 principle of Equity, that every partner- 
 ship debt is not only a joint but also a 
 several debt {Bum v. Bwm, 3 Ves. 573), 
 unless it be the result of some arbitrary 
 joint convention of the partners. Bvm,- 
 ner v. Powell, 2 Mer. 30. 
 
 By the Bankruptcy Act, 1869, s. 37, if 
 any bankrupt is at the date of the order 
 of adjudication liable in respect of dis- 
 tinct contracts as member of two or more 
 distinct firms, or as a sole contractor and 
 also as member of a firm, the circumstance 
 that such firms are in whole or in part 
 composed of the same individuals, or that 
 the sole contractor is also one of the joint 
 contractors, shall not prevent proof in re- 
 spect of such contracts against the prop- 
 erties respectively liable upon such con- 
 tracts ; and by the Rules in Bankruptcy 
 made in pursuance of the Bankruptcy 
 Act, 1869, G. R. 76, any separate cred- 
 itor of any bankrupt is at liberty to 
 prove his debt under any adjudication 
 of bankruptcy made against such bank- 
 rupt jointly with any other person or 
 persons; and under every such adjudi- 
 cation distinct accounts are to be kept of 
 the joint estate and also of the separate 
 estate or estates of each bankrupt, and 
 the separate estate is to be applied in the 
 . first place in the satisfaction of the debts 
 of the separate creditors; and in case 
 there is an overplus of the separate estate, 
 such overplus is to be carried to the 
 account of the joint estate. And in case 
 there is an overplus of the joint estate, 
 such overplus is to be carried to the ac- 
 counts of the separate estates of each 
 bankrupt in proportion to the right 
 and interest of each bankrupt in the 
 joint estate. So that the principles of 
 the Common Law as evolved from the 
 decisions have been followed mwplieiter 
 
 Partnership. — ( Continued.) 
 
 in the provisions of the Bankruptcy Act, 
 
 1869. 
 
 But where a retiring partner, upon the 
 dissolution of a partnership, assigns all 
 his interest in the partnership property to 
 the remaining partner, and the assign- 
 ment is iond flde, that assignment con- 
 verts the joint property of the partner- 
 ship into the separate property of the re- 
 maining partner, so as that so much of 
 the then partnership property as remains 
 in specie upon the subsequent bankruptcy 
 of the surviving partner vests in the trus-. 
 tee in bankruptcy of the latter as his sepa- 
 rate estate, and is liable accordingly (Ex 
 pmte Buffln, 6 Ves. 119). But the assign- 
 ment must be complete {Ex parte Williams, 
 11 Ves. 3), for if any thing remains still 
 to be done to render it complete, the con- 
 version of joint into separate property 
 does not take effect {Ex pa/rte Wheeler, 
 Buck. 35) ; moreover, the property must 
 not be suffered to remain in the order and 
 disposition of the old partemership {Ex 
 parte Bti/rtm, 1 Glyn & J. 207). The ef- 
 fect of the conversion is of course to give 
 the separate creditors a prior claim upon 
 the property {Ex parte Freeman, Buck. 
 473) ; it does not deprive the joint credit- 
 ors of their right to be paid somehow 
 {Ex parte Peake, 1 Madd. 358). Moreover, 
 the assignment requiring to be hma fde, 
 the insolvency of the partners, either col- 
 lectively or individually, at the date of 
 the assignment would render it fraudu- 
 lent {Ex pa/rte Mayen, In re Edwards, 
 Woods & Greenwood, 34 L. J. [Bkcy.] 25), 
 unless the hona fides of it is otherwise 
 proved. Expojrte Peake, In re LiglvtolleT, 
 1 Madd. 346. 
 
 PARTY AND PAKTT, BETWEEN. 
 
 This phrase signifies between the contend- 
 ing parties in an action, i. e., the plaintifl 
 and defendant, as distinguished from the 
 attorney and his client. These phrases 
 are commonly used in connection with the 
 subject of costs ; and in order to give a 
 precise idea of their scope and meaning, 
 it will be- necessary to consider briefly the 
 nature of costs. Such of these charges 
 and expenses as are necessarily incurred 
 in the prosecuting and defending the ac- 
 tion, and which arise as it were out of 
 the proceedings themselves, are denomi- 
 nated costs in the cause, the payment of 
 which usually devolves upon the defeated 
 or unsuccessful party. In addition to 
 these, there are others which, though not 
 arising directly out of the proceedings 
 
PARTY- WALL. —PAWNBROKERS. 
 
 261 
 
 Party and Party, Between. — (Gonffd.) 
 themselves, are usually paid by each party 
 to his own attorney, whatever raay have 
 been the result of the cause, and these are 
 commonly called costs as between attor- 
 ney and client, as distinguished from the 
 costs in the cause, or as the latter are 
 sometimes called, costs as betweenparty 
 and party. 
 
 The scale upon which costs as between 
 solicitor and client are calculated is more 
 liberal than that upon which costs as be- 
 tween party and party are calculated ; and 
 the Court in a proper case will direct all 
 the costs of a proceeding to be paid out 
 of the estate as between solicitor and 
 client, but more often the direction for 
 payment is as between party and party 
 only. See Morgan and Davey on Costs. 
 
 PARTY-WALL. A partition wall ; i. e., 
 a wall dividing two messuages. Peculiar 
 provisions exist under statute regarding 
 party walls within the metropoUs. See 
 title Mbtkpolitan BurLDrnGS and stat- 
 utes there cited. 
 
 * PASCHA. In old English practice, 
 the term of Easter. 
 
 PASS, TO. To go, to be transferred, 
 to be conveyed, e. g., by a conveyance of 
 a house, do the fixtures pass? i. e., do they 
 go, or are they conveyed as part and par- 
 cel of the house ? Again, does the fee 
 pass under the word "estate? " i. e., does 
 the fee simple in land become transferred 
 or pass away under the term "estate? " 
 
 PASSING ACCOUNTS. When an 
 auditor appointed to examine into any 
 accounts certifies to their correctness, he 
 is said to "pass " them; i. e., they pass 
 through the examination without being 
 detained or sent back for inaccuracy or 
 imperfection. 
 
 PASSING RECORD. When the pro- 
 ceedings are entered upon the nisi prius 
 record, it used to be taken to the master's 
 office and there examined by the proper 
 officer, who then signed it; and the rec- 
 ord was then said to be " jpassed." But 
 by the C. L. P. Act, 1853, s. 103, the 
 record of ram privs shall not be sealed or 
 passed, but may be delivered to the proper 
 officer of the Court in which the cause is 
 to be tried, to be by him entered as at 
 present and remain until disposed of. 
 See title Entry fob Trial. 
 
 PATENT AMBIGUITY. This is an 
 ambiguity which arises upon the words of 
 the will, deed, or other instrument, as 
 
 Patent Ambiguity. — (OonUrwed.) 
 looked at in themselves, and before they 
 are attempted to be. applied to the object 
 or to the subject which they describe. 
 The term is opposed to the phrase Latent 
 Ambiguity (which title see). The rule of 
 law is, that extrinsic or parol evidence, 
 although admissible in all cases to remove 
 a latent ambiguity, is admissible in no 
 case to remove a patent one. 
 
 See title Extrinsic Evidence. 
 
 PATENTS. In consequence of the 
 abuse of the prerogative in granting mo- 
 nopolies {see that title), the statute 31 Jac. 
 1, c. 3, was passed, which, after declar- 
 ing that the letters patent theretofore 
 granted were contrary to the laws of this 
 realm, and therefore utterly void and of 
 none efiect, went on to provide and enact 
 that any declaration in the Act before 
 mentioned should not extend to any let- 
 ters patent for the term of one and twenty 
 years or under theretofore made, or there- 
 after to be made, of the sole working or 
 making of any manner of new manufac- 
 ture within this realm to the first and true 
 inventor or inventors of such manufac- 
 tures, which others at the time of the 
 granting of such letters patent did not 
 use, so they be not contrary to the law 
 nor mischievous to the state by raising of 
 the prices of commodities at home, or 
 hurt of trade, or generally inconvenient. 
 Upon this statute the whole patent law is 
 to the present day substantially founded ; 
 but it is competent upon petition to the 
 Crown to obtain an extension of this 
 patent right after the expiration of the 
 fourteen years allowed by the statute of 
 James for such further period as the Privy 
 Council shall think is fit or proper for the 
 due remuneration of the inventor. This 
 extension is permitted under the statutes 
 5 & 6 Will. 4, c. 83, and the Patent Law 
 Amendment Act, 1853 (15 & 16 Vict. c. 
 83). . 
 
 See, also, titles Notice op Objec- 
 tions; and Specification. 
 
 PATRON (patronut). He who has the 
 right, title, power, or privilege of pre- 
 senting to an ecclesiastical benefice. 
 See title Advowson. 
 
 PAUPERIS FORMA : See title Forma 
 Pauperis. 
 
 PAWNBROKERS. Are a species of 
 paid bailees, and their liabilities in re- 
 spect of negligence are determined ac- 
 cordingly (see title Negligence). If left 
 
262 
 
 PAYMENT.— PECUNIARY CAUSES. 
 
 Pawnbrokers. — {Continued.) 
 to the Common Law, the rights of pawn- 
 brokers would be the rights of ordinary 
 pawnees or pledgees" (see title Pledge) ; 
 but owing to certain abuses to which the 
 trade of pawnbroking is exposed, the leg- 
 islature has thought fit to control it by 
 statutory provision. 
 
 By the Common Law {Morley v. Atterif- 
 hyrough, 3 Ex. 500), a pawnbroker could 
 not retain goods illegally pawned, e. g., 
 stolen goods, nor could the purchaser from 
 him retain same, as against the tnie owner ; 
 but under s. 30 of the Act of 1873, upon 
 conviction of the thief, the Court may 
 (in its discretion) either allow the pawn- 
 broker to retain the goods as a security 
 for the money advanced or order the res- 
 titution thereof to the true owner. 
 
 PAYMENT. This is the normal mode 
 of discharging any obligation. In the 
 case of several distinct debts owing be- 
 tween the same creditor and debtor, if 
 the debtor makes a general payment, the 
 doctrine of the Appkopkiation of Pay- 
 ments is called into activity (see that 
 title). 
 
 PAYMENT OF MONEY INTO COURT. 
 
 When the defendant, in an action brought 
 for a given sum, admits either the whole 
 or a part of the plaintiff's claim, he often, 
 with the view of preventing the plaintiff 
 from further maintaining his action, 
 pleads what is termed a " plea of payment 
 into Court," by which he alleges that he 
 brings a sum of money into Court ready 
 to be paid to the plaintiff if he will accept 
 the same, and that the plaintifE has no 
 claim to a larger amount ; and this plea is 
 accompanied by an actual payment of the 
 specified sum into the hands of the proper 
 officer of the Court, where the plaintiff, 
 or usually his attorney, may, upon appli- 
 cation, obtain it. Should the plaintiff, 
 after this, proceed with the action, he 
 does so at the peril of being defeated, 
 and having the costs to pay, unless he 
 should, upon the trial, prove that a 
 further sum still remains due to him from 
 the defendant. By the C. L. P. Act, 
 1853 (15 & 16 Vict. c. 76), s. 70, in ex- 
 tension of a similar provision contained 
 in the 3 & 4 "Will. 4, c. 42, s. 21, it is 
 lawful for the defendant in all actions 
 (except actions for assault and battery, 
 false imprisonment, libel, slander, mali- 
 cious arrest or prosecution [criminal con- 
 versation], or debauching of the plaiu- 
 tifE's daughter or servant), and, by leave 
 of the Court or a judge, upon such terms 
 
 Payment of Money into Court. — (01m.) 
 as to the latter shall seem fit, for one or 
 more of several defendants, to pay into 
 Court a sum of money by way of com- 
 pensation or amends. Such payment into 
 Court admits the plaintiff's ground of 
 action, and the plaintiff is entitled to 
 have the money in any event; but, semble, 
 the Court may control or direct the ap- 
 pUcation of the money. Om-l v. Boyal 
 Exchange Ins. Oo., 84 L. J. (Q. B.) 31. 
 
 PEACE, ARTICLES OF THE. Where 
 a person says that his life is endangered 
 through the hostility of some 'one, he may 
 exhibit articles of the peace (being a 
 formal statement of the danger) to the 
 Court or a magistrate, who will thereupon 
 require the party informed against to give 
 security to keep the peace. But the Court 
 must satisfy itself that there is on the 
 face of the articles a reasonable ground 
 of fear. The articles are put in upon 
 oath, and the defendant cannot controvert 
 the allegations contained therein, even by 
 affidavit. Bex v. Dolierty, 18 Bast, 171. 
 
 PEACE OF GOD AND THE CHURCH. 
 
 Anciently meant to signify that rest and 
 cessation which the king's subjects had 
 from trouble and suit of law between the 
 teiTns. Cowel. 
 
 PECULIAR. This was the phrase used 
 to designate a particular parish or church 
 that had jurisdiction within itself for 
 granting probates of wills, &c., except 
 from the Ordinary or Bishop's Courts. 
 The Oowrt of PeavMa/rs was a Court an- 
 nexed to the Court of Arches, and had 
 jurisdiction over all those parishes dis- 
 persed through the province of Canter- 
 bury, in the midst of other dioceses, 
 which were exempt from the ordinary 
 jurisdiction and subject to the metropoh- 
 tan only, in which Court all ecclesiastical 
 causes arising with these peculiar or 
 exempt jurisdiction were originally cog- 
 nizable. Les Teirmes de la Ley. 
 
 *PECULIUM. In Civil Law, a limited 
 amount of money or property which a 
 son or servant was allowed to have sepa- 
 rate from that of his father or master. 
 Burr. Diet. 
 
 PECUNIARY CAUSES. These were 
 causes arising either from the withholding 
 ecclesiastical dues, or the doing or neg- 
 lecting some act relating to the church 
 whereby some damage accrued to the 
 plaintiff; toward obtaining satisfaction 
 for which he was permitted to institute a 
 
PEERS. — PENALTY OP A BOND. 
 
 263 
 
 Pecuniary Causes. — (Gontirmed.) 
 suit in the Spiritual Court. Such, for 
 instance, were the subtraction and with- 
 holding of tithes from the parson or 
 vicar; the non-payment of ecclesiastical 
 dues to the clergy, as pensions, mortu- 
 aries, compositions, and the like. 
 
 PEERS' Those who are impaneled 
 in an inquest upon any man for the con- 
 victing or clearing him of any offense for 
 which he is called in question. The jury 
 was so called from the Latin pares, i. e., 
 equals, because it is the custom of this 
 country to«try every man by his equals, 
 that is to say, by his peers (jvdicio parium 
 suorum). The word " peer " seems also 
 not merely to have signified one of the 
 same rank; but it was also used to signify 
 the vassals or tenants of the same lord, 
 who attended him in his Courts and 
 adjudicated upon matters arising out of 
 their lord's fees, and were thence called 
 peers of fees (Cowel; Zes Termes de la 
 Ley). Whence also apparently the king's 
 barons, who sit in the House of Lords, 
 are called his peers, being (or having at 
 any rate been) to some extent and for 
 some purposes the equals of the sover- 
 eign. 
 
 See, also, titles Babony ; and Lobdb, 
 House oi' ; and next title. 
 
 PEERS, QUALITY OF SPIRITUAL. 
 
 For the general nature of Barony, in the 
 case of the Temporal Peers or Lay Lords, 
 as they may be called, see title Babont. 
 With reference to the SpiriPiial Peers, or 
 Bishops, as they now are, their title of 
 peerage seems to rest upon the following 
 bases or basis : — 
 
 In early times the title of the prelates 
 to sit in the House of Peers was cumula- 
 tive, resting on one or more of the follow- 
 ing grounds : — 
 
 (1.) Their learning ; 
 
 (2.) The custom of Western Europe 
 (inclusive of England) to admit 
 the clergy to their supreme coun- 
 cils; and 
 
 (3.) The tenure of lands by barony. 
 
 Probably, however, the third of these 
 three grounds was the chiefest, as the 
 absence of it is in some instances (e. g., 
 that of the Prior of St. James, at North- 
 ampton, in 13 Edw. 2, and that of the 
 Abbot of Leicester in 25 Edw. 3) made a 
 ground of exemption to the prelate from 
 attendance in Parliament; it is certain, 
 however, that the third ground was not a 
 sme qud non in the Spiritual Peerage, as 
 many spiritual peers were in the House 
 
 Peers, Quality of SpirituaL — (Oonfd.) 
 upon the grounds of their learning and 
 of the custom of Europe alone, or upon 
 one of such grounds ; and that, or those, 
 are the present titles of the spiritual peers 
 to sit in the House of Lords. 
 
 To all intents and purposes the spiritual 
 peers were (with one exception) upon a 
 level with the temporal peers for the time 
 being, but they must necessarily have 
 been (in most if not in all cases) like peers 
 only. The one exception to this general 
 equality consisted ia the following pecu- 
 liarity, namely, the spiritual had not (nor 
 have they) the right of being present dur- 
 ing the trial or (at any rate) upon the 
 judgment (whether of condemnation or 
 of acquittal) of a temporal peer, or of 
 being themselves tried (like a temporal 
 peer) by their peers. This point of inferi- 
 ority, however, has never been assented 
 to by the spiritual peers themselves ; e. g., 
 in 25 Edw. 3, upon the trial of a certain 
 temporal peer, the spiritual peers, upon 
 retiring, remonstrated that they had full 
 right to remain ; and again, e.g., in 1357, 
 the Bishop of Ely claimed to be tried by 
 the Lords, but that claim was disallowed, 
 and he went before a jury ; and the same 
 was the case with Bishop Fisher in the 
 reign of Heni^ VIH., which latter case 
 settled the law. 
 
 ♦PEINE PORTE ET DURE. See 
 
 title Padtb Porte, &c. 
 
 PENAL BILL. An instrument form- 
 erly in use by which a party bound him- 
 self to pay a certain sum or sums of 
 money, or to do certain acts, or in default 
 thereof to pay a certain specified sum by 
 way of penalty, thence termed a penal 
 sum. These instruments have been super- 
 seded by bonds in a penal sum, with con- 
 ditions. 
 
 PENAL STATUTES. Statutes impos- 
 ing certain penalties on the commission 
 of certain offenses ; and actions brought * » 
 for the recovery of such penalties are 
 denominated penal actions. Inasmuch 
 as a penal statute is, to the extent of the 
 penalty, a money bill, the Commons claim 
 the exclusive right as to all such enact- 
 ments, the Lords and Crown having 
 merely an assenting vote. 
 
 See title Monbt-Bills. 
 
 PENALTY OF A BOND. The sum of 
 
 money which the obligor of a bond under- 
 takes to pay by way of penalty, in the 
 event of his omitting to perform or carry 
 out the terms imposed upon him by the 
 
264 
 
 PENDENTE LITE.— PEREMPTORY MANDAMUS. 
 
 Penalty of a ^onA.~~ {Continued.) 
 conditions of the bond. The distinction 
 between a penalty and a sum payable as 
 liquidated damages is this, that the penal 
 sum is generally or always double the 
 amount of the debt secured by the bond, 
 whereas liquidated or ascertained dam- 
 ages,, as the name indicates, are intended 
 to denote, and usually denote, the exact 
 amount of the debt. The Courts of Law 
 and also of Equity relieve against penal- 
 ties upon payment of the principal debt, 
 and interest, and costs ; nor will this right 
 to relief be excluded by the parties merely 
 designating that as liquidated damages 
 which is in reality a penalty {Kemble v. 
 Fa/rren, 6 Bing. 141), unless where the 
 damages are altogether unascertainable, 
 otherwise than by the amount fixed by 
 the instrument. Athyna v. Kinnier., 1 
 Ex. 659. 
 
 PENDENTE LITE. Pending the suit, 
 whilst the suit is pending. 
 
 See, also, title Lis Pendens. 
 
 PENSION (permo). That which in the 
 Inner and the Middle Temple is called a 
 parliament, and in Lincoln's Inn a coun- 
 cil, is in Gray's Inn termed a pension ; 
 that is, an assembly of the members of 
 the society to consult of their afEairs. 
 Certain annual payments of each member 
 of the Inns of Court are also so termed. 
 There is also a writ called a pension writ, 
 which seems to be a sort of peremptory 
 order against those members of the society 
 who are in arrear with their pensions and 
 other dues. Cowel. 
 
 See, also, titles Civn, List ; Pension 
 List. 
 
 PENSION LIST. This is the list of 
 persons receiving pensions from the royal 
 bounty. As to the limits of such bounty, 
 see title Civil List. 
 
 PEPPERCORN RENT. Where only 
 a nominal rent is wished to be reserved, 
 the reservation is frequently confined to 
 "one peppercorn." 
 
 PER AUTER TIE. For or during the 
 life of another, for such a period as 
 another person shall live. 
 
 See title Pus 'Autre Vie. 
 
 PER cm ET POST "Writ of Entry. 
 
 See title Entry, "Writ op. 
 
 PER CURIAM {By the Court). A fig- 
 urative phrase commonly used in_ the 
 reports, and meaning that the presiding 
 
 Per Cnriam. — {Continued.) 
 
 judge or judges spoke to this or that 
 
 effect. 
 
 PER, IN THE : See title Entry, Writ 
 
 OP. 
 
 PER MT ET PER TOOT {iy the half 
 amd hy all). This phrase is applied to 
 joint tenants who are said to be seized 
 per m/y et per tout ; that is, by the halt or 
 moiety and by all ; that is, they each have 
 the entire possession as well of every par- 
 cel or pie6e of the land as of the whole 
 considered in the aggregate. For one of 
 them has not a seizin of one-lialf or moi- 
 ety, and the other, of the other half or moi- 
 ety ; nor can one be exclusively seized of 
 one acre and his companion of another, 
 but each has an undivided half or moiety 
 of the whole, and not the whole of an 
 undivided moiety. 
 
 PERAMBUIATIONE FACIENDA. A 
 
 writ which lies where two lordships lie 
 near each other, and some encroachments 
 are supposed to have been made, by which 
 writ the pa'rties consent to have their 
 bounds severally known. It is directed 
 to the sheriff, commanding him to make 
 perambulation and to set down their cer- 
 tain limits. F. N. B. 133. 
 
 PER TOTAM CURIAM is a similar ex- 
 pression, meaning that the whole Court, 
 i. e., all the presiding judges, were unan- 
 imous in the judgment, dictum, or ex- 
 pression of opinion ; e. g., " and it was 
 resolved per tptam CuHam that it could 
 not be attached." 
 
 PEREMPTORY. In Law this word 
 signifies absolute, final, determinate, &c. 
 The meaning of the word in its different 
 applications maybe collected from perus- 
 ing the following titles : 
 
 PEREMPTORY CHALLENGE. Is a 
 
 privilege allowed to a prisoner in criminal 
 cases, or at least in capital ones, infavorem 
 mtm, to challenge a certain number of 
 jurors, without showing any cause for so 
 doing. 
 
 See title Chaxlbnge. 
 
 PEREMPTORY MANDAMUS. When 
 a mandamus has issued commanding a 
 party either to do a certain thing or to 
 signify some reason to the contrary, and 
 the party to whom such writ is directed 
 returns or signifies an insufficient reason, 
 then there issues in the second place an- 
 other mandamus, termed a peremptory 
 mandamus, commanding the party to do 
 
PEKEMPTORY PAPER. — PER JURY. 
 
 265 
 
 Peremptory Mandamus. — (^Continued.) 
 the thing absolutely, and to which no 
 other return will be admitted but a cer- 
 tificate of perfect obedience and due ex- 
 ecution of the writs. 
 
 See, also, title Mandamus. 
 
 PBREMPTOET PAPER. A Kst of the 
 
 causes which are enlarged at the request 
 of the parties, or which stand over from 
 press of business in Court. 
 
 PEREMPTORY PLEAS. Pleas in bar 
 are so termed in contradistinction to that 
 class of pleas called dilatory pleas. The 
 former, viz., peremptory pleas, are usual- 
 ly pleaded to the merits of the action with 
 the view of raising a material issue be- 
 tween the pai-ties ; whilst the latter class, 
 viz., dilatory pleas, are generally pleaded 
 with the view of retarding the plaintiff's 
 proceedings, and not for the purpose of 
 raising an issue upon which the parties 
 may go to trial and settle the point in dis- 
 pute. Peremptory pleas are also called 
 pleas in ba/r, while dilatory pleas are said 
 to be in abatement only. 
 
 See title Abatement, Pleas In. 
 
 PEREMPTORY RULE TO DECLARE. 
 
 When the plaintiff in an action was not 
 ready to declare within the time limited 
 and the defendant wished to compel the 
 plaintiff to declare, he procured what was 
 termed a peremptory rule to declare, 
 which was in the nature of an order from 
 the Court, compelling the plaintiff to 
 declare peremptorily under the pain of 
 judgment of non pros., being signed 
 against him. But by the C. L. P. Act, 1852, 
 s. 53, rules to declare, or declare per- 
 emptorily, shall not be necessary, but in- 
 stead thereof a notice shall be given re- 
 quiring the opposite party to declare, 
 otherwise judgment. If the plaintiff is 
 not prepared to declare within the four 
 days, he may obtain from the judge an 
 extension of time upon sufficient grounds. 
 
 PEREMPTORY WRIT. This was an 
 original writ called a,site fecerit seowrvm 
 from the words of the writ; which di- 
 rected the sheriff to cause the defendant 
 to appear in Court without any option 
 given him, provided the plaintiff gave 
 the sheriff security effectually to prose- 
 cute his claim ; this writ was in use where 
 nothing was specifically demanded, but 
 only a satisfaction in general ; as in the 
 case of writs of trespass on the case, 
 wherein no debt or other specific thing is 
 sued for, but only damages to be assessed 
 by a jury. 1 Arch Pract. 205. 
 
 34 
 
 PERFECTING BAIL. Certain qual- 
 ifications of a property character being 
 required of persons who tender themselves 
 as bail, when such persons have justified, 
 i. e., established their sufficiency bjr sat- 
 isfying the Court that they possess the 
 requisite qualifications, as a rule of Court 
 is made for their allowance, and the bail 
 is then said to be perfected, i. e., the pro- 
 cess of giving bail is finished or com- 
 pleted. . • 
 See, also, titles Bail; Jubtipting Bail. 
 
 PERFORMANCE. This, Uke pay- 
 ment, is the normal and natural mode of 
 discharging an obligation. In Equity 
 practice it has acquired a somewhat ex- 
 tended and peculiar development. Thus, 
 when a person covenants to do an act, 
 and without making any express reference 
 to the covenant, he does an act which may 
 either wholly or partially be taken as or 
 toward a performance of the covenant. 
 Equity imputes to him the intention, i. e., 
 impUes an intention, on his part to per- 
 form the covenant. Cases of performance 
 in Equity fall under two divisions, viz. : 
 (1.) Covenants to purchase and settle 
 lands, and lands are, in fact, 
 purchased, but no settlement 
 thereof is made (Willcocia v. 
 WiUcocJcs, 3 Vem. 558) ; and 
 (2.) Covenants to leave personal prop- 
 erty, and the covenantee in fact 
 receives property left by reason 
 of the covenantor's intestacy. 
 Bhm3/y v. WOmore, 1 P. Wms. 
 323.- 
 The rules applicable to both these 
 groups of cases are the same, viz. : 
 
 (1.) When the lands purchased or per- 
 sonal property left by intestacy are of less 
 value than the intention of the covenant, 
 they go in part toward a performance of 
 the covenant {Lechmere v. Ca/rlMe [^Earl], 
 3 P. Wms. 211); and 
 
 (2.) The omission of immaterial requi- 
 sites to the due performance of the cove- 
 nant will count for nothing, e. g., the 
 omissipn or neglect to obtain the trustee's 
 consent to the purchase, or even to pur- 
 chase the lands through the trustees as 
 agents (Bowden v. Sowden, 1 Bro. C. C. 
 582); but 
 
 (3.) There is no performance in these 
 cases, if the covenant is broken in the 
 life-time of the covenantor. Oliver v. 
 BrieUmA, 3 Atk. 420. 
 
 See, also, title Satisfaction. 
 
 PERJURY is defined by Coke to be a 
 crime committed when a lawful oath is 
 
266 
 
 PERNANCY. — PERPETUITY. 
 
 Perjury. — (^GonUnued.) 
 administered in some judicial proceeding 
 to a person -who swears willfully, abso- 
 lutely, and falsely in a matter material to 
 the issue or point in question. And un- 
 der various modem statutes offenses 
 against veracity of the lite sort, although 
 not on oath, are rendered indictable and 
 punishable as perjury, e. g., in the case of 
 the declarations substituted for oaths. 
 The Common Law penalty for perjury was 
 fine and imprisonment at the discretion 
 of the Court ; the statute law penalty is 
 under 2 G-eo. 3, c. 35, s. 3, transportation 
 or imprisonment with hard labor in the 
 house of correction, for any term not ex- 
 ceeding seven years ; and now penal ser- 
 vitude is, under 20 & 21 Vict. c. 3, and 
 27 & 28 Vict. c. 47, substituted for trans- 
 portation. Two witnesses are required to 
 insure a conviction for perjury. 
 
 PEENANCT. Pernancy signifies tak- 
 ing, receiving, enjoying, &c. Thus the 
 pernancy of the profits of an estate means 
 the receipt or enjoyment of the profits, e. 
 g., " estates in possession are those where 
 the tenant is entitled to the actual per- 
 nancy of the profits " (2 Cruise, tit. " Re- 
 mainder," s. 1) ; and he who is so in re- 
 ceipt of the profits is termed the perner 
 of the profits. 
 
 PFRPETUATING TESTIMONY OF 
 WITNESSES. When a party in a suit 
 in equity is desirous of preserving the 
 evidence of witnesses concerning a matter 
 which cannot be immediately investiga- 
 ted in a Court of Law, or when he is 
 likely to be deprived of the evidence of 
 material witnesses by their death or de- 
 parture from the realm, it is usual to file 
 a bill in equity to perpetuate and preserve 
 the testimony of such witnesses ; and the 
 Court then usually empowers certain per- 
 sons to examine such witnesses, and to 
 take their depositions. The evidence so 
 taken is then available on any future 
 trial, if the witness or witnesses should 
 in the meantime have died, but not other- 
 wise. 
 
 PERPETUITY. Various attempts 
 have from time to time been made to keep 
 land in a certain line or family in perpe- 
 tuity, but the law disliking a perpetuity 
 has frustrated every such attempt. The 
 most noteworthy attempts have been the 
 following: 
 
 (1.) Restraints imposed upon tenants in 
 tail to prevent them from suffer- 
 ing a common recovery or a fine, 
 
 Perpetuity. — ( Contirmed.) 
 
 — an attempt which was tms- 
 trated in Jft'MMOy'g Gase (6 Rep. 
 40); 
 (2.) Successive life estates, with a pro- 
 viso for the creation of an ever- 
 fresh succession of them — an 
 attempt which was frustrated in 
 Mwrlborough (Duke) v. OodoVphin 
 (1 Eden, 404); and 
 (S.) The creation of executory interests 
 under the Statutes of Uses and of 
 WiUs (27 Hen. 8, c. 10, and 32 
 Hen. 8, c. 5) — an attempt which 
 was frustrated in Cadell v. Palmer 
 (1 CI. & F. 372), which case also 
 established the Rule of Perpe- 
 tuities in its present form, and 
 which is in these words, — 
 Rule of Perpetuities or of Bemoteneas. — 
 An executory interest cannot be created 
 so as to take effect unless within a life 
 or lives in being, twenty-one years after- 
 ward, and (but only where gestation 
 actually exists Gadell v. Palmer, swpra) 
 the period of gestation ; or (where no life 
 or number of lives is mentioned) within 
 twenty-one years alone and (but only 
 where gestation actually exists) the period 
 of gestation {Pahner v. Holford, 4 Russ. 
 403). Moreover, all interest subsequent 
 to and depending upon an executory 
 interest which exceeds the limits of the 
 rule are also void, notwithstanding in 
 themselves they may be within the limits 
 of the rule. Pal/nm' v. Bblford, supra ; 
 Bobinaon v. Ha/rdcaBtle, 2 Bro. C. C. 32. 
 
 The rule is applicable to personal as 
 well as to real estate. 
 
 In the application of the rule possible 
 and not actual events are to be consid- 
 ered; so that if the executory interest 
 which is given might by possiSnlMy exceed 
 the limits of the rule, in other words 
 would not necessarily take effect as a 
 vested interest (if at all) within these 
 limits, and whether as to all or as to one 
 even of the beneficiaries, the interest is 
 void. And not only must the interest 
 vest, but the respective vested interests of 
 the respective takers (where they are more 
 than one) must also be ascertainable,* 
 within the limits of the rule, otherwise 
 the gift is void (Gurtis v. ImMn, 5 Beav. 
 147); but it is not necessary that the 
 interest having vested should also be in 
 possession (Murray v. Adderibrohe, 4 Buss. 
 407), the possession, if arbitrarily post- 
 
 *Mogg v. Mogg, 1 Mer. 654, cannot be con- 
 sidered law. 
 
PEEPETUITY.— PERPETUITY OP THE KING. 
 
 267 
 
 Perpetuity. — ( Continued.) 
 poned beyond the vesting, being simply 
 accelerated and brought up to the period 
 of vesting. 
 
 The following are the chief examples 
 of interests attempted to be created, but 
 void as being against the rule, — 
 
 (1.) An executory interest to arise after 
 an indefinite failure of issue, unless the 
 prior interest can be construed as an 
 estate tail by implication from the words 
 describing the failure of issue, in which 
 latter case the executory interest over 
 would be good (Doe d. SUis v. Ellia, 9 
 East, 383; Grumble v. Jones, "Will. 166, 
 n), the reason for the validity of the 
 exception being that the gift over may be 
 defeated by the estate taU being barred 
 at any time before the event occurs on 
 which the executory interest is to spring 
 into being. NicoUs v. Sheffield, 2 Bro. C. 
 C. 315 ; Morse v. Lord Ormonde, 5 Madd. 
 99. 
 
 (2.) An executory bequest, after a life 
 estate in A. to the children of A. attain- 
 ing any age which exceeds twenty-one 
 years {Leake v. Sobinson, 3 Mer. 368) ; and 
 in such a case the whole bequest over is 
 void, although some of the children may 
 have attained the prescribed age within 
 twenty-one years from the death of A., 
 unless indeed the individual shares of the 
 respective children can be ascertained 
 within the limits of the rule of perpetui- 
 ties, in which latter case the gift over 
 would be valid as to those children who 
 are within the rule and void only as the 
 others. Storrs v. Benbow 2 My. & K. 46. 
 
 (3.) A devise to a child (not in esse) of 
 A. who is in esse upon that child attaining 
 some qualification which is not neeessanh/ 
 attainable within the limits of the rule, 
 e. g., succeeding to a barony {Tollemache 
 V. Ea/rl of Gmenbry, 3 CI. & F. 611), or 
 being in holy orders. Proctor v. Bishop 
 of Bath and WeOs, 3 H. Bl. 858. 
 
 (4.) A gift of leaseholds to trustees 
 upon trusts corresponding with lands in 
 strict settlement, and expressed as not to 
 vest in any tenant in tail in possession 
 till he shall attain the age of twenty-one 
 years (JMetson v. Tbbetson, 5 My. & Cr. 
 26; Lord Dungannon v. Smith, 12 CI. 
 & F. 546) ; but it is otherwise if the gift 
 is expressed not to vest in any tenant in 
 tail 6y pwrehase under the settlement till 
 such tenant attain the age of twenty-one 
 years, and this latter is the common limi- 
 tation. 
 
 (5.) The literal exercise of powers of 
 appointment (not being general) in favor 
 
 Perpetuity. — {GonUnited.) 
 of objects who if inserted (as they must 
 be considered as being) in the instrument 
 (whether deed or will) creating the 
 power, would take interests beyond the 
 limits of the rule, as calculated from the 
 date of the operation of the creating in- 
 strument {Devonshire [DuJce] v. Lord G. 
 Cavendish, 4 T. B. 741) ; nevertheless 
 such a power is not void in its creation, 
 and the donee of it may, by using dis- 
 cretion, exercise it in a valid manner. 
 Attenborough v. AUemhorough, 1 K. & J. 
 296. 
 
 (6.) The creation of powers of sale or 
 management of estates exercisable gene- 
 rally during the minorities of persons 
 entitled to the settled estates {Werrand v. 
 Wilson, 4 Hare, 373), such persons not 
 being expressed to be entitled hy pur- 
 chase under the settlement ; nevertheless, 
 such powers, if intended for the payment 
 off of incumbrances on the settled estates, 
 would be valid. Briggs v. Oxford {Earl), 
 1 DeG. M. & G. 363. 
 
 The rule of perpetuities does not apply 
 to executory trusts, or rather the Coui-t 
 of Chancery, in moulding such trusts, will 
 take care not to exceed the limits of the 
 rule {HumberstonY. Humherston, 1 P. Wms. 
 332) ; neither does it apply to cases of 
 ay pris, and for the like reason, that the 
 Court coops up the excess within the 
 lawful period of limitation {NichoU v. 
 Nicholl, 3 W. Bl. 1159). And there are 
 also the following further exceptions to 
 the application of the rule : — 
 
 (1.) Gifts to charities, e. g., contingent 
 limitations over from one charity to 
 another charity ( Ghrisfs Hospital v. Grain- 
 ger, 1 Mac. & G. 460) : but not of course 
 a gift or gift over in the like case from a 
 charity to an individual. Mope\. Gldster 
 {Corporation), 7 DeG. M. & G. 647. 
 
 (3.) Lands whereof the reversion or 
 remainder subsists in the Crown (84 & 35 
 Hen. 8, c. 30), not being put into the 
 Crown in fraud of the rule. Johnson d. 
 Angleaea {Ea/rl) v. Derby {Ea/rl), 2 Show. 
 104. 
 
 (3.) Any provision for the payment of 
 the debts of the settlor {Briggs v. Oxford 
 [Ea^l], supra), including therein a pro- 
 vision to indemnify a purchaser against 
 an incumbrance. Massey v. O'Dell, 10 
 Ir. Ch. Rep. 22. 
 
 See, also, title AccuMULATiosfs. 
 
 PERPETUITY OF THE KING. That 
 fiction of the law which for certain politi- 
 cal purposes ascribes to the king in his 
 
268 
 
 PER QUiE SERVITIA. — PETITION IN CHANCERY. 
 
 Perpetuity of the Kiug. — (Continued.) 
 political capacity the attribute of immor- 
 tality; for though the reigning -monarch 
 may die, yet by this fiction the king never 
 dies ; that is, the office is supposed to be 
 re-occupied for all political purposes im- 
 mediately on his death. 
 
 PEE QU* SERVITIA, A judicial 
 writ that issued out upon the note of a 
 fine ; and which lay for the conusee of a 
 manor or seigniory to compel the tenant 
 of the land at the time the fine was levied 
 to attorn to him. Zes Termes de la Ley. 
 
 PERQUISITES. Such advantages and 
 profits as come to a manor by casualty, 
 and not yearly ; as escheats, heriots, re- 
 liefs, estrays, and such like -things. The 
 word " perquisite " is also used by some 
 of our old law writers to signify anything 
 obtained by industry, or purchased vidth 
 money, in contradistinction to that which 
 descends from an ancestor (Cowel; Les 
 Termes de la Ley). It is also, at the 
 present day, used of the casual profits of 
 any office. 
 
 PER QUOD. When an action is 
 brought by a person for defamation of 
 character, and the offensive words do not 
 apparently and upon the face of them 
 import such defamation as will of course 
 be injurious, it is necessary that the plain- 
 tifiE should aver some particular damage 
 to have happened, which is called laying 
 his action with a per quod: as if I say 
 that such a clergyman is a bastard, he 
 cannot for this bring any action against 
 me, unless he can show some special loss 
 by it ; in which case he may bring his 
 action against me for saying he was a 
 bastard, per quod he lost the presentation 
 of such a living. In all actions for slander, 
 other than for slander to a person in his 
 or her profession, trade, or occupation, it 
 is necessary to add this per quod clause in 
 effect, although no longer in form, inas- 
 much as damage is an essential part of 
 the ground of action. 
 
 PERSONAL (pertonaUs). Any thing 
 connected with the person, as distin- 
 guished from that which is connected 
 with land. Another characteristic of 
 personal property (or personalty, as it is 
 sometimes called) is, that it is usually 
 of a transitory or moveable nature, and 
 capable of being taken away by the owner 
 whenever he pleases to go ; whereas real 
 property (or realty, as it is sometimes 
 termed) is of a local and not transitory 
 
 Personal. — ( Continued. ) 
 nature, and does not possess the attnuute 
 of mobility, or the capacity of being 
 moved about with the person of the 
 owner; and hence, from its substantial 
 and permanent nature, it is termed real. 
 Having stated thus much, it would be 
 advisable further to illustrate the word 
 by explaining it in conjunction with other 
 words with which it is usually associated. 
 
 Personal AePions, for instance, signify 
 such actions as are brought for recovery 
 of some debt, or for damages for some 
 personal injury; in contradistinction to 
 the old real actions, which related to real 
 or landed property, &c. 
 
 Personal Estate, property, things, or 
 chattels, &c., signify any moveable things 
 of whatever denomination, whether alive 
 or dead ; as furniture, money, horses, and 
 other cattle, &c., for all these things may 
 be transmitted to the owner wherever he 
 thinks proper to go, and may therefore be 
 said to attend his person, according to 
 the maxim Mbbilia ossibus inhoerent. 
 See, also, following titles. 
 
 PEESONAI PROPERTY. Property 
 of a personal or moveable nature, as 
 opposed to property of a local or im- 
 moveable character, such as land, or 
 houses, and which are termed real prop- 
 erty. This term is also applied to the 
 right or interest less than a freehold 
 which a man has in realty. 
 
 See, also, title Pbesonal. 
 
 PERSONALTY. Signifies generally any 
 personal property, in contradistinction to 
 realty, which signifes real property. In 
 our old law, an action was said to be in 
 the personalty when it was brought for 
 damages out of the personal estate of the 
 defendant. But see Cowel under this 
 title. 
 
 PETITION IN CHANCERY. During 
 the progress of a suit in Chancery the in- 
 terference of the Court is frequently re- 
 quired in order to the regular and efiectual 
 prosecution or defense of the suit, and in 
 order to the immediate attainment of 
 many objects connected with it. When 
 such interference is required, an order of 
 Court, embodying the particular object, 
 is applied for, and such application is fre- 
 quently made by what is termed a petition 
 which is a statement in writing made to 
 the Lord Chancellor, or the Master of the 
 Rolls, showing the cause which the peti- 
 tioner has for some order of Court. Peti- 
 tions to the Court of Chancery are either 
 
PETITION OF RIGHT.— PIN-MONEY. 
 
 269 
 
 Petition in Cha.ncerj. — ^OonUntied.) 
 made in a suit or under a statute, or both ; 
 but where no suit is pending and no stat- 
 ute gives the right of proceeding upon 
 petition, then a Dill is the only course 
 open to the suitor, unless in certain mat- 
 ters regarding infants, which may be done 
 on petition without either suit or enabling 
 statute. 
 
 PETITION or RIGHT : See title Mon- 
 
 STBAHS DE DROIT. 
 
 PETITION OF RIGHTS. A parlia- 
 mentary declaration of the liberties of 
 the people assented to by King Charles I., 
 in 1629. It is to be distinguished from 
 the Bill of Rights, 1689, which was 
 passed into a permanent constitutional 
 statute. 
 
 See title Bill of Rights. 
 
 PETITIONING CREDITOR. The 
 
 creditor at whose instance an adjudica- 
 tion of bankruptcy is made against a 
 bankrupt. The debt of the creditor so 
 petitioning required formerly to amount 
 to £100, but if it amount to £50 that is 
 now sufficient. Bankruptcy Act, 1869. 
 
 ♦PETITORY SUIT OR ACTION. 
 
 In Admiralty Law, a suit in which the 
 mere title to property is litigated as dis- 
 tinguished from possession. 5 Mason R. 
 465 ; 1 Kent Com. 371. 
 
 PETTY BAG OFFICE. Is an office 
 which belongs to the Common Law Courts 
 in Chancery, and out of which all writs 
 in matters wherein the Crown is inter- 
 ested do issue. Such writs, and the re- 
 turns to them, were in former times pre- 
 served in a little sack or bag (in parvd 
 iagd), whereas other writs, relating to 
 the business of the subject, were origi- 
 nally kept in a hamper (inJianaperio), and 
 thence has arisen the distinction of the 
 Hanaper Office and Petty Bag Office, 
 which both belong to the Common Law 
 side of the Court in Chancery. 5 & 6 
 Vict. c. 103. 
 
 PETTY LARCENY : See title Larceny. 
 PETTY SERJEANTY: See title Sbr- 
 
 JBAUTY. 
 
 PETTY SESSION. A special or petty 
 session is sometimes kept in corporations 
 and counties at large by a few justices, 
 for dispatching smaller business in the 
 neighborhood between the times of the 
 general sessions; as for licensing ale- 
 houses, passing the accounts of the parish 
 officers, and so forth. 
 
 PETTY TREASON : ;See title Treason. 
 
 *PIED POUDRB (dmty foot). The 
 term applied to a court held at fairs to 
 administer justice to buyer and sellers, 
 and to redress disorders. Jacob Diet. 
 
 PILOTAGE. The act of steering or 
 guiding a ship by the pilot or helmsman, 
 either during an entire voyage, or on the 
 departure from, or on the approach to, 
 port. The dangerous navigation of the 
 coasts and of the rivers of England has 
 led to the appointment of qualified per- 
 sons, who receive a license to act as pilots 
 within a certain district, and who enjoy 
 the monopoly of conducting vessels out 
 of, and up, the various rivers, and to and 
 from the various ports of the country. 
 By diflferent Acts of Parliament the mas- 
 ter of every ship engaged in foreign 
 trade must put his ship under the charge 
 of a local pilot so licensed, both in his 
 outward and homeward voyage. The 
 power of appointing these " duly Ucensed" 
 pilots is mainly vested in the corporation 
 of the Trinity House, Deptford, whose 
 jurisdiction extends from Orfordness to 
 London Bridge, from London Bridge to 
 the Downs, from the Downs westward to 
 the Isle of Wight ; and all bodies or per- 
 sons having the power of appointment in 
 other places (as the commissioners of the 
 Cinque Ports, the Trinity Houses of Hull, 
 Newcastle, and Liverpool) are, to some 
 extent, subject to their authority. Where 
 the master is bound by Act of Parliament 
 to place his ship under the command of a 
 licensed pilot, he is reUeved from the lia- 
 bility of any damage which is done by it 
 while so under the pilot's command. The 
 rates of charge for pilotage are regulated 
 partly by statute and partly by usage, 
 but also by the corporation of the Trinity 
 House. See Maude and Pollock on Mer- 
 chant Shipping. 
 
 PIN-MONEY. An allowance set apart 
 by a husband for the personal expenses 
 of the wife ; i. e., for the dress and pocket- 
 money of the wife. It is that money 
 which the husband allows to the ■^ife for 
 the purpose of decking or attiring her 
 person, or to pay her ordinary personal 
 expenses: It is not a gift from the hus- 
 band to the wife out and out ; it is not 
 to be considered like money set apart for 
 the sole and separate use of the wife 
 during coverture excluding the jus mariti ; 
 but is a sum set apart for a specific pur- 
 pose; it is due to the wife in virtue of a 
 particular arrangement, and is payable by 
 
270 
 
 PISCARY.— PLEAD. 
 
 Pin-Money. — ( Gontmied.) 
 the husband by force of that arrangement 
 only, and for that specific purpose and no 
 other (JSoward v. IHgby, 8 Bligh's Eep. 
 N. E. 269). Consequently, if pin-money 
 should not be duly paid by the husband, 
 and should be found to be in arrear at 
 his death, his wife surviTing him can 
 claim only one year's arrears of it (Aston 
 V. Aston, 1 Ves. Sen. 367) ; also the hus- 
 band may find his wife in apparel, in- 
 stead of paying her this apparel-rnoney, 
 as it may be called. Mowa/rd v. Digby, 
 supra. 
 
 PISCARY (^pisca/ria vel primlegiwm pis- 
 candi.) The right or privilege of fiahing, 
 Thus free fishery, which is a royal fran- 
 chise, is the exclusive right of fishing in 
 a pubUc river. Cgmmon of piscary is the 
 right of fishing in another man's water. 
 Several fishery resembles free fishery, only 
 that he who has a several fishery must 
 also be (or at least derive his right from) 
 the owner of the soil, which in a free 
 fishery is not requisite. 
 
 See, also, title Fishery. 
 
 PIX JUKY (from Lat. PyxU, a box 
 made of the box-tree \Pyxac<mtiia\, used 
 by the ancients for gallipots, and to hold 
 the Host in Oathohc churches). A jury 
 consisting of the members of the corpora- 
 tion of the Goldsmiths of the city of 
 London, assembled upon an inquisition of 
 very ancient date, called the trial of the 
 pix. The object of this inquisition is to 
 ascertain whether the coin of the realm, 
 manufactured at Her Majesty's Mint, is of 
 the proper or legal standard. This inves- 
 tigation as to the standard of the coin is 
 calling pixing it, and hence the jury ap- 
 pointed for the purpose is called a pix 
 jury. The investigation takes place 
 usually onde a year, and the Lord High 
 Chancellor presides, and points out to the 
 jury the nature of their duties. They 
 have to ascertain whether the coin pro- 
 duced is of the true standard, or " ster- 
 ling " niptal, of which, by stat. 25 Edw. 
 3, c. 13, all the coin of the kingdom 
 must be made. This standard has been 
 fixed at various times by statute ; for it 
 seemeth that the royal prerogative doth 
 not extend to the debasing or enhancing 
 the value of the coinage below or above 
 the sterling value. 2 Inst. 577. 
 
 * PLACITUM. In old EngUsh Law, a 
 court, a cause, or suit in court. Burr. 
 Diet. 
 
 PLAINT (from the Fr. pMnte, com- 
 plaint). The instrument or process by 
 which actions are commenced in the 
 County Courts. It has been described as 
 a private memorial tendered in open 
 Court to the judge, wherein the party in- 
 jured sets forth his cause of action. 
 See title Codutt Cotikts. 
 
 PLEA {phmtvm). Is used in various 
 senses. In its usual acceptation it signi- 
 fies the defendant's answer to the plain- 
 tifE's declaration ; and when this answer 
 sets forth at large or in detail the subject- 
 matter of the defense, it is denominated 
 a special plea, in contradistinction to 
 those direct and concise answers to the 
 declaration termed the general issues. 
 The word is also frequently used to sig- 
 nify suit or action. Thus holding pleas 
 means entertaining or taking cognizance 
 of actions or suits ; common pleas signify- 
 ing actions or pleas, between man and man 
 as distinguished from such as are promo- 
 ted and prosecuted at the suit of the 
 Crown, which are thence denominated 
 pleas of the Crown. The word is used 
 in this sense by Finch in defining an 
 issue : " An issue is when both the par- 
 ties join upon somewhat that they refer 
 unto a trial, and to make an end of the 
 plea, i. e., suit or action. So thp plea 
 side of a court means that department of 
 a Court which takes cognizance of civil 
 actions, as distinguished from criminal 
 proceedings or matters which peculiarly 
 concern the crown." See Finch, Law, 
 396, c. 35; and see titles Abatement, 
 Plea in; Pebbmptokt Plea. 
 
 PLEA SIDE. The plea side of a Court 
 means that branch or department of the 
 Court which entertains or takes cogniz- 
 ance of civil actions and suits, as distin- 
 guished from its criminal or Crown de- 
 partment. Thus the Court of Queen's 
 Bench is said to have a plea side,' and a 
 Crown or criminal side ; the one branch 
 or department of it being devoted to the 
 cognizance of civil actions, the other to 
 criminal proceedings, and matters pecu- 
 liarly concerning the Crown. So the 
 Court of Exchequer is said to have a plea 
 side and a Crown side ; the one being ap- 
 propriated to civil actions, the other to 
 matters of revenue. 
 
 PLEAD. The defendant in an action is 
 said to plead when he delivers his answer 
 to the plaintiff's declaration ; because his 
 answer itself is called a plea. Steph. 
 Plead. 53. 
 
PLEADING IS8U ABLY.— PLIGHT. 
 
 271 
 
 PLEADING ISSUABLT. Pleading 
 such a plea as is calculated to raise a ma- 
 terial issue either of law or of fact. 
 The defendant in an action is entitled, 
 as a matter of right, to a certain number 
 of days to plead. If he seeks to ob- 
 tain further time, it is granted to him 
 only by way of indulgence; and the 
 Court in so doing usually annexes to its 
 order the condition that the defendant 
 shaU plead issuably, that is, that he shall 
 plead a fair and 'bond fide plea, as distin- 
 guished from one which is calculated only 
 to embarrass the defendant, and to re- 
 tard the progress of the action. The con- 
 dition so annexed is in effect, " an agree- 
 ment by the defendant to speed the cause 
 to its conclusion, and bring it to an issue 
 upon the substantial merits of law or 
 fact, without regard to any formal inac- 
 curacies in the plaintiff's statement." Per 
 Coleridge, J., m Ba/rker v. Gleadon, 5 
 Dowl. 136. 
 
 See, also, title Issvasle Flba. 
 
 PLEADING OVER. Passing over, 
 passing by, omitting to take notice of, 
 &c. Thus, when a defendant in his 
 pleadings passes by or takes no notice of 
 a material allegation in the declaration, 
 he is said to plead over it. 
 
 PLEADINGS. The mutual aUegation 
 or statements which are made by the 
 plaintiff and defendant in a suit or action 
 are so termed. These are now written or 
 printed and delivered between the con- 
 tending parties, or to the proper officers 
 appointed to receive them ; but formerly 
 they were actual mva voce pleadings in 
 open Court. The pleadings in an action 
 are designated according to their nature 
 by the following terms : declaration, plea, 
 replication, rejoinder, surrejoinder, re- 
 butter, and surrebutter. The principles 
 on which these pleadings or contending 
 statements are framed, and the manner 
 in which they govern or affect the sub- 
 sequent course of the cause, form the 
 principal feature in the art or science of 
 pleading, or, as it is popularly called, 
 special pleading. See liead v. Broohman, 
 3 T. R. 159, per BuUer, J. ; Steph. PL 34; 
 and the particular titles mentioned in the 
 course of this present title. 
 
 * PLEAS OF THE CEOWN. Criminal 
 prosecutions. 
 
 PLEDGE : See titles Bailment ; Pawn- 
 broker. 
 
 PLEDGES. In the ancient law no 
 person could prosecute a civil action with- 
 out having in the first stage of it two or 
 more persons as pledges of prosecution ; 
 and if judgment was given against the 
 plaintiff, or he deserted his suit, both he 
 and his pledges were liable to amerce- 
 ment to the king pro falso da/more. In 
 the course of time, however, these pledges 
 were disused, and the names of fictitious 
 persons substituted for them, two ideal 
 persons, John Doe and Eichard Roe, hav- 
 ing become the common pledges of every 
 suitor; now, however, even these are not 
 used in personal actions. And since the 
 C. L. P. Act, 1853, the use of such 
 pledges has been discontinued even in 
 the action of ejectment; and inasmuch 
 as all the real actions were abolished by 
 3 & 4 Will. 4, c. 37, it would seem that 
 the use of such pledges is now discon- 
 tinued altogether. 
 
 PLENARTT. Is appUed to a benefice 
 being full or occupied, and is directly 
 opposed to vacation, which signifies a 
 benefice being void. 
 
 PLENARY CAUSES. In the Ecclesi- 
 astical Court causes were divided into 
 plenary and summary. Plenary causes 
 were those in whose proceedings the 
 order and solemnity of the law was re- 
 quired to be exactly observed, so that if 
 there were the least departure from that 
 order, or disregard to that solemnity, the 
 whole proceedings were annulled. Sum- 
 mary causes were those in which it was 
 unnecessary to pursue that order and 
 solemnity. The present distinction be- 
 tween the contentious and the non-con- 
 tentious jurisdiction of the Court of 
 Probate seems to be very closely analo- 
 gous to this old distinction between 
 causes as plenary or summary. 
 
 PLENE ADMINISTRAVIT. A plea 
 pleaded by an executor or adininistrator, 
 on an action being brought against him, 
 to the effect that he has fully adminis- 
 tered, that is, that he has exhausted the 
 assets before such action was brought. 
 Toller's Exec. 367. 
 
 PLIGHT. An old English word, signi- 
 fying the habit or quality of any thing. 
 Thus, to deliver up a thing in the sam'e 
 plight and condition, or to be in the 
 same plight and condition, are phrases 
 analogous to the phrase " assemble and 
 meet together," the latter of the two 
 words explaining the former of them, 
 but being otherwise tautological. This 
 
272 PLOUGH-BOTE.— POLICY OF ASSURANCE, OR INSURANCE. 
 
 Plight. — ( GmUnued.) 
 use of the word ^'■pUghV is the same as 
 that which occurs of the word "casMsa" 
 in Just. Inst. iv. 17, 3. The word applies 
 to real and personal property equally, 
 and to any estate, even to a rent-charge 
 or possibility of dower, in land. This 
 seems to be the meaning of Cowel, title 
 Plight. 
 
 PLOUGH-BOTE. An allowance of 
 wood which tenants are entitled to, for 
 repairing their implements of husbandry. 
 
 PLUBIES. A writ of summons or 
 capias was termed a plwriea writ, when 
 two other writs had been issued previ- 
 ously, but to no efEect; and it was so 
 termed, because the words ran thus: 
 " Tou are commanded as often you have 
 been commanded " (alluding to the com- 
 mands contained in the two previous 
 writs). (Smith's Action at Law, 63.) But 
 the plwries writ is now abolished, and by 
 B. 11 of the C. L. P. Act, 1853, the original 
 writ may be renewed at any time before 
 its expiration for six: months from the 
 date of such renewal, and so on from 
 time to time during the currency of the 
 renewed writ, this renewal saving the 
 Statute of Limitations as from the date 
 of the original writ. 
 
 * POACHING. Unlawful entry on 
 land at night armed, and with intent to 
 destroy game. 1 Russ. Crimes, 469; 
 Bouv. Diet. 
 
 POCKET SHERIFFS. Sherifis ap- 
 pointed by the sole authority of the 
 Crown without the interposition of the 
 judges. 
 
 * POINDING. In Scotch Law, the 
 taking of goods on execution or by dis- 
 tress. 1 Forbes Inst. pt. 3, p. 33. "iJeasZ 
 poinding takes efEect upon the debtor's 
 moveables on the land to which the debt 
 attaches; p&rtonal poinding, upon his 
 moveables generally." Burr. Diet.; 
 Brande. 
 
 POLICE. Regarding the police of the 
 metropolis (se« title Mbtbopolitaii Po- 
 lice). "With reference to police generally, 
 these are of various degrees. (1.) The 
 high constable of a county, appointed by 
 the justices of the county at quarter ses- 
 sions, and not at petty sessions {Beg. v. 
 WilKmon, 10 A. & B. 388) ; (3.) Special 
 constables who are appointed for cases 
 of sudden public tumult, or other like 
 emergency, under the stats. 1 & 3 Will. 4, 
 
 Police. — ( Oontinued.) 
 c. 41, and 5 & 6 Will. 4, c. 43 ; (3.) County 
 and district constables, being the regular 
 officers of police for counties and districts 
 appointed under the stats. 3 & 3 Vict. c. 
 93, 3 & 4 Vict. c. 88, and 19 & 30 Vict, 
 c. 69; and (4.) Parish constables, being 
 principally the officers of police in towns, 
 appointed under the stat. 5 & 6 Vict. c. 
 109, and some Amendment Acts, and 
 whose duties are regulated by the Town 
 PoUce Clauses Act, 10 & 11 Vict. c. 89. 
 
 By the constitution of England, every 
 man is responsible for the preservation of 
 the public peace (see title Fbankpledge) ; 
 and if any one upon being duly called 
 upon by the magistrates to serve as a 
 special constable refuses to do so, the 
 magistrates may and ought to cause him 
 to be indicted {Reg. v. Vincent, 9 C. & P. 
 91). A special constable, when duly 
 appointed, is appointed for an indefinite 
 time, and until, in fact, his services are 
 either determined or suspended; and 
 during the term of his office he has all 
 the authority of an ordinary constable. 
 The office, it appears, may be served by 
 deputy (Bex v. Olm-Tce, 1 T. R. 679) ; but 
 a naturalized foreigner may not serve 
 either as deputy or as principal. Eex v. 
 Ferdmand de Mierre, 5, Burr. 3787. 
 
 In the case of a breach of the peace 
 actually continuing, or reasonably Ukely 
 to be renewed, any private person may 
 arrest the offlenders, or any of them ; but 
 when the afiray is over he may not do so, 
 nor even require a policeman, wTio has not 
 seen the affray, to do so {Baynes v. Brew- , 
 ster, 3 Q. B. 375). In the case of a felony 
 being actually committed, he may arrest 
 the felon ; and in case the felony is com- 
 pleted, he may give the felon in charge 
 to a policeman {Afhinson v. Warne, 1 Cr. 
 M. & R. 837). All these things he may 
 do without a warrant, .and, a fortiori, a 
 regular policeman may and ought to do 
 the like. But further, in the case of a 
 felony actually committed, a policeman 
 may, upon probable suspicion merely, 
 arrest the felon without a warrant, and 
 may even break open doors, and, if 
 necessary for his apprehension, kill the 
 felon (Mogg v. Ward, 3 H. & N. 417). A 
 warrant for the apprehension is a protec- 
 tion to the constable in all cases, unless 
 where it shows upon the face of it a total 
 want of jurisdiction. The Marahalsea 
 Case, 10 Rep. 68. 
 
 POLICY OF ASSURANCE, or IN- 
 SURANCE : See title Insubancb. 
 
POLL.— POS8B88IO FRATEIS.' 
 
 273 
 
 POLL. Deeds are sometimes called 
 deeds-poll, in contradistinction to deeds 
 indented or indentures ; deeds-poll being 
 shaved or polled quite even. 
 
 See title Debk-poll. 
 
 PONE. An original writ, formerly 
 used for the purpose of removing suits 
 from the Court Baron, or County Court, 
 into the superior Courts of Common Law. 
 It was also the proper writ to remove all 
 suits which were before the sheriff by 
 writ of justices {Lea Termes de la Ley). 
 But this writ is now in disuse, the writ 
 of certiorari being the ordinary process 
 by which at the present day .a cause is 
 removed from a County Court into any 
 superior Court. 
 
 * PONIT SE (puts himself). Li Eng- 
 lish criminal practice, when the defendant 
 pleads not guilty the plea is recorded in 
 the words "Po. se" or "Ponit se super 
 patriam" (he puts himself upon the 
 Country). 
 
 POPULAR ACTIONS. Such actions 
 as are maintainable by any of Her Majes- 
 ty's subjects for recovery of the penalty 
 incurred by transgressing some penal 
 statute. It is called a popular action 
 because it is a proceeding which may be 
 taken not by any one person in particu- 
 lar, but by any of the people who think 
 proper to prosecute it (Cowel, title " Ac- 
 tion, Popular "). These are the Publica 
 (i. e., PopuUea) JvMda of Roman Law. 
 
 POET (jportm marii). A port is a 
 haven, and somewhat more. Ist. It is a 
 place for arriving and unlading of ships 
 or vessels. -Sd. It hath a superinduction 
 of a civil signature upon it, somewhat of 
 franchise and privilege. 3d. It hath a 
 ville, or city, or borough, that is, the 
 caput porUis, for the receipt of mariners 
 and merchants, and the securing and 
 vending of their goods, and victualing 
 their ships. So that a port is quid aggre- 
 gatum, consisting of somewhat that is 
 natural, viz., an access of the sea, whereby 
 ships may conveniently come; safe situa- 
 tion against winds, where they may safely 
 lie, and a good shore where they may 
 well unlade ; something that is artificial, 
 as quays, and wharves, and cranes, and 
 warehouses, and houses of common re- 
 ceipt ; and something that is civil, viz. , 
 privileges and franchises, viz., jus appli- 
 candi, jus mereati, and divers other addit- 
 aments given to it by civil authority. A 
 port of the sea includes more than the 
 bare place where the ships unlade, and 
 
 35 
 
 Port. — ( Gontinited.) 
 sometimes extends many miles, as the 
 port of London in the time of King Ed- 
 ward I., extended to Greenwich; and 
 Gravesend is also a member of the port 
 of London ; so the port of Newcastle takes 
 in all the river from Sparhawk to the sea. 
 Hale, de Pcn-tibus Maris, pwro., sec. c. 3. 
 
 PORTION DISPONIBLE. In French 
 Law, a parent leaving one legitimate 
 child may dispose of one-half only of his 
 property; leaving two, one-third only; 
 and leaving three or more, one-fourth 
 only ; and it matters not whether the dis 
 position is inter vivos, or by will. 
 
 PORTIONEE. When a parsonageis 
 served by two, or sometimes three, min- 
 isters, alternately, the ministers are termed 
 portioners, because they receive but a 
 portion or proportion of the tithes or 
 profits of the living. Cowel. 
 
 PORTMOTE, or PORTMOOT (from 
 partus, a port, and gemote, an assembly). 
 A Court kept in haven towns or ports. 
 Les Termes de la Ley. 
 
 PORT-REVE (from port, an haven or 
 harbor, and reve, an officer, minister, or 
 baihfE, who does business for another man). 
 The port-reve was the king's bailiff, who 
 looked after the customs and toUs in the 
 port of London before they were let to 
 fee-farm. (Brady on Bor., 16 fol. ed.) 
 This office, it is believed, is not peculiar 
 to the port of London. 
 
 POSSE COMITATDS. The posse 
 eomitatus, or power of the county, was 
 the power given to the sheriff and other 
 of the king's officers by Act of Parha- 
 ment, namely, the Statute of Winchester, 
 or Winton, to compel the attendance of 
 the inhabitants of the county (with some 
 exceptions), to assist him in preserving 
 the peace, in pursuing and arresting 
 offenders, and in such like acts whei'e 
 assistance was requisite. The posse eomi- 
 tatus being thus in a maimer organized 
 was capable of serving as a militia for 
 the defense of the county against the 
 Scots and other foreign invaders. 
 Bee title Akmt. 
 
 POSSESSIO FRATRIS. Possession 
 or seizin of the brother. It used to be a 
 maxim that possessio fratris fadt sororem 
 esse Tueredem, that is, that the possession 
 or seizin of a brother would make his sis- 
 ter of the whole blood his heir in 
 preference to a brother of the halt blood. 
 The question of the possession or seizin 
 
274 
 
 POSSESSION. — POUNDAGE, SHERIFF'S. 
 
 Possessio Fratris. — {OonUnued.) 
 of the ancestor is not, since the Descent 
 Act (3 & 4 WiU. 4^ c. 106), of any impor- 
 tance in ascertaining who is heir, inas- 
 much as the descent is now traced from 
 the last person entitled who did not inherit 
 and not from the last person seized. 
 
 There was no possessio fratris of a dig- 
 nity, so that a half brother always suc- 
 ceeded in preference to a whole sister. 
 
 POSSESSION : 8ee title Sbizin. 
 
 POSSESSION MONET. The man 
 
 whom the sheriff puts in possession of 
 goods taken under a writ oi fieri fadas is 
 entitled whilst he continues so in posses- 
 sion to a certain sum of money per diem, 
 which is thence termed possession money. 
 The amount is 3s. %d. per day if he is 
 boarded, or 5s. per day if he is not 
 boarded. 
 
 POSSESSORY ACTION. An action 
 which has for its object the regaining 
 possession of the freehold, of which the 
 demandant, or his ancestors, has been 
 unjustly deprived by the present tenant 
 or possession thereof. 
 
 POSSIBILITY. An uncertain thing, 
 which may or may not happen; such, for 
 instance, as the chance of an heir appar- 
 ent succeeding to an estate, or of a rela- 
 tion obtaining a legacy on the death of a 
 kinsman. A possibility is said to be 
 either near or remote ; as, for instance, 
 when an estate is limited to one after the 
 death of another, this is a near possibil- 
 ity ; but that a man shall be married to a 
 woman aijd then that she shall die, and 
 he be married to another, this is a remote 
 possibility. The rule against Perpetui- 
 ties {see that title), and the rule against 
 Remoteness (see that title), are commonly 
 ascribed to the circumstance that the law 
 (like any other practical person) refuses 
 to act or decide, i. e., determine upon a 
 double contingency, and waits until the 
 same becomes a simple contingency by the 
 happening of the one event. 
 
 POSTEA. Is a formal statement in- 
 dorsed on the md prius record (see that 
 title) of the proceedings at the trial. It 
 takes up the story where the nisi prius 
 record terminates. It is so called be- 
 cause it commences with the word aft&r- 
 wa/rd {posted) ; and it proceeds to state 
 the appearance of the parties, and of the 
 judge and jury at the place of trial, and 
 the verdict of the jury on the issues joined. 
 Sm. Action at Law, 159. 
 
 POSTEEIOBITT. This is a word of 
 comparison and relation in tenure, the 
 correlative of which is the word " prior- 
 ity." Thus, a man who held lands or 
 tenements of two lords was said to hold 
 of his more ancient lord by priority, and 
 of his less ancient lord by posteriority. 
 Old Nat. Brev. 94. 
 
 But the word has also a general appli- 
 cation in law consistent with its etymo- 
 logical meaning, and as so used it is like- 
 wise opposed to priority. 
 
 * POSTMAN. The senior barrister at 
 the bar of the Court of Exchequer who 
 had the privilege of moving there before 
 the attorney and solicitor-general and all 
 the crown counsel. Burr. Diet. 
 
 POST-NUPTIAL {after ma/rriage). 
 Thus an agreement entered into by a 
 father after the marriage of his daughter, 
 by which he engages to make a provision 
 for her, would be termed a post-nuptial 
 agreement. 
 
 See further title Mabkiagb Settle- 
 ments. 
 
 POST-OBIT BOND. A post-obit bond 
 is an agreement on the receipt of money 
 by the obligor to pay a larger sum ex- 
 ceeding the legal rate of interest upon 
 the death of the person from whom he, 
 the obligor, has some expectations If he 
 survive him. ChesterfiM v. Jameson, 3 
 Ves. 157. 
 
 POST-OFFICE. This is the office for 
 the conveyance or transmission of letters 
 through the kingdom from j^lace to place 
 within it, and also from foreign parts. 
 
 POSTULATION {postulaUo). A peti- 
 tion. Formerly, on the occasion of a 
 bishop being translated from one bishop- 
 ric to another, he was not elected to the 
 new see, for the rule of the Canon Law 
 is electus Turn potest elegi; and the pre- 
 tense was, that he was married to the 
 first church, which marriage could not 
 be dissolved but by the pope ; and there- 
 upon he {se. the pope) was petitioned, 
 and consenting to the petition, the bishop 
 was translated, and this was said to be 
 by postulation; but this was restrained 
 by 16 Ric. 3, c. 5. Cowel; Tomlins. 
 
 POUNDAGE, SHEKIFF'S. Is an al- 
 lowance to the sheriff of so much in the 
 pound upon the -amount levied under 
 an execution. The object of this allow- 
 ance is to remunerate the sheriff for the 
 risk and trouble which are incident to 
 the performance of this branch of his 
 
POUND BREACH. — POWER OP THE COUNTY. 
 
 275 
 
 Ponndage, Sheriff's. — ( OonUnued.) 
 duties. Originally, or at Common Law, 
 the sheriff was entitled to no allowance 
 for executing writs, his office being re- 
 garded solely as an honorary one, and 
 hence it was that men of wealth and 
 substance were usually elected to fill this 
 post. In the progress of society, how- 
 ever, and on the growth of commerce, 
 the duties of a sheriff being attended 
 with considerable expense, and the office 
 thereby becoming extremely onerous, the 
 Legislature has, by different Acts of Par- 
 liament, entitled them to certain fees and 
 dues, amongst which the above is in- 
 cluded. Dalton's Office of Sheriff. 
 
 POUND BEEACH. Is the act of 
 
 breaking into a pound or inclosure in 
 which things distrained are placed under 
 the protection of law ; and it is an offense 
 in the eye of the law even where the dis- 
 tress has been taken without just cause ; 
 for when once impounded, the goods im- 
 mediately' are in legal custody. The 
 punishment for such offense varies ac- 
 cording to the nature of the thing dis- 
 trained ; but in case of distress damage 
 feascmt, it is, by 6 & 7 Vict. c. 30, fixed 
 at a penalty not exceeding £5, and the 
 payment of all expenses. Co. Litt. 47. 
 
 *POUBPAKTT. That part of an 
 estate, first held in common by parceners, 
 which is by partition allotted to them. 
 
 POURPRESTUKE (from thePr. pour- 
 pris, an inclosure). The wrongful inclos- 
 ing another man's property, or the en- 
 croaching or taking to one's self that 
 which ought to be in common. It is 
 perhaps more commonly applied to. an 
 encroachment upon the property of the 
 Crown, either upon its demesne lands, or 
 in the highways, rivers, harbors, or 
 streets. 2 Co. Inst. 38, 271. 
 
 * POURSUIVANT. A messenger of 
 the king in court and elsewhere. 
 
 POUEVETANCE : See title Pre-emp- 
 tion. 
 
 POWER. A power is an authority 
 which one person gives to another, author- 
 izing him to act for him, and in his stead. 
 Powers by the Common Law were divided 
 into two sorts, naked powers or bare 
 authorities, and powers coupled with an 
 interest. Thus, when a man devises that 
 his executors shall sell his land, this 
 power is a naked one, that is, the power 
 which the testator so gives to his execu- 
 tors to sell his land is simply a power, 
 
 Power. — ( ConUnued.) 
 and does not vest any interest in the land 
 in the executors; whereas, if a man 
 devises lands to his executors to be sold, 
 this is a power coupled with an interest. 
 The word "power" retains the' same 
 meaning when coupled with other words ; 
 thus, a power of attorney, or letter of 
 attorney, signifies an authority which one 
 man gives to another to act for him ; and 
 these powers are perhaps of the most 
 frequent occurrence, bemg resorted to 
 whenever circumstances are likely to 
 occur to prevent a party dQing the act 
 desired to be done himself; as, for in- 
 stance, if it were necessary that a person 
 should sign a deed next week, but which 
 he could not do, being obliged to set out 
 upon a voyage to a foreign country before 
 that time, in this case he might authorize 
 some other person to do it for him, and 
 the instrument by which he would con- 
 fer that authority would be a power of 
 attorney. (See that title.) 4 Cruise, 145. 
 
 Powers are otherwise arranged in the 
 following threefold division, namely: — '■ 
 I. Powers simply collateral. 
 
 n. Powers not simply collateral, but 
 being either 
 (1.) Appendant or annexed to an 
 
 estate, or 
 (2.) In gross, not being incident to 
 any estate. 
 
 A power simply collateral is one which 
 is not, and has never been, annexed to an 
 estate ; all other powers are either so an- 
 nexed, or having once been so have be- 
 come disannexed, in which latter case 
 they are said to be powers in gross. 
 Where the donee of a power to appoint 
 lands is also the fee simple owner of the 
 lands, he may convey the lands for any 
 estate, either in exercise of his power, or 
 in virtue of his estate ; but having done 
 so in either of these two ways, he cannot 
 afterward make any conveyance in the 
 other way, which would be in derogation 
 of his first conveyance, which for that 
 reason is said to have either suspended or 
 extinguished Ms power, according to the 
 quantity of the estate which he has 
 already created. 
 
 See, also, title Appointmbnt. 
 
 POWER OF APPOINTMENT: See 
 
 title CoNVBTAlfCBS. 
 
 POWER OF ATTORNEY : See title 
 Attoenbt, Powub op. 
 
 POWER OF THE COUNTY : See title 
 Posse Comitatus. 
 
276 
 
 P0YNING8' LAW. — PRAEMUNIRE. 
 
 POTNINGS' lAW. Ad Act of Parlia- 
 ment made in Ireland in the reign of 
 Henry Vn., by which it was enacted that 
 all statutes made in England before that 
 time should be in force in Ireland. It 
 was so called because Sir Edward Poyn- 
 ings was lord-lieutenant there at the time 
 it was made. 12 Rep. 190. 
 
 PKACTICE COURT, QUEEN'S 
 
 BENCH. Is a Court attached to the 
 Court of Queen's Bench, and presided 
 over by one of the judges of that Court, 
 in which points of practice and pleading 
 are discussed and decided. After the 
 appointment of an additional judge to 
 the Court of King's Bench, under the 
 authority of 11 Geo. 4 & 1 Will. 4, c. 70, 
 s. 11, which took place in Michaelmas 
 Term, 1830, Lord Tenterden, then being 
 the Lord Chief Justice, informed the 
 Bar that in addition to the powers already 
 exercised by one judge sitting apart from 
 the others in the Bail Court (or Court in 
 which the sufficiency of parties as bail, 
 and other minor matters, are ascertained),, 
 all matters of practice would for the 
 future be determined there. Since then 
 it has become usual to move in this Court, 
 in certain cases, for new trials; and in 
 ordinary cases for writs of mandamus and 
 of prohibition, in addition to mere points 
 of practice. If any doubt arises in the 
 mind of the presiding judge as to any 
 question brought before him, he refers 
 the party to the full Court, before which 
 indeed cause, on rules nid, is generally 
 shown; but the decision of the single 
 judge is of itself conclusive. The four 
 puisne judges by turns preside for the 
 space of a term. This Court, though 
 frequently and properly termed the 
 " Practice Court of the Queen's Bench," 
 is now generally caUed, from its origin, 
 the Bail Court. 
 
 See title Bah, Coubt. 
 
 PRJICIPE. An original writ ui the 
 alternative, commanding the defendant 
 to do the thing required, or to show his 
 reason for not doing it. This writ was 
 used when something certain was de- 
 manded by the plaintiff, which it was in- 
 cumbent on the defendant himself to per- 
 form ; as to restore the possession of land, 
 to pay a certain liquidated debt, to per- 
 form a specific covenant, and the like. 
 The word proecvpe is now commonly used 
 for a sort of abstract of a writ of sum- 
 mons, or capias, which is made out on a 
 slip of paper and delivered to the signer 
 of the writs at the time of issuing them ; 
 
 Praecipe. — ( Contimied. ) 
 and from which abstract or memorandum 
 that officer makes his entry in the book 
 kept for that purpose. 
 
 See, also, following titles. 
 
 PBJECIPE IN CAPITE. When one 
 of the king's immediate tenants in eapite 
 was deforced, his writ of right was called 
 a writ of prceoipe in eapite. 
 
 PE.aECIPE QUOD REDD AT. A writ 
 of great diversity, extending as well to 
 writs of right as to writs of entry. It 
 was sometimes called a writ of right close, 
 when issuing out of Chancery close; 
 sometimes a writ of right patent, when 
 issuing out of Chancery patent, or open. 
 Pitz. Nat. Brev. c. 1. 
 
 PRECIPE, TENANT TO .THE : See 
 
 title Tbnajtt to the Pk^cipb, and also 
 title PntB. 
 
 PR.ECIPUT CONVENTIONNEL. In 
 
 French Law, under the regime en com- 
 nrnnamte {see that title), when that is of 
 the conventional kind, if the survivor of 
 husband and wife is entitled to take any 
 portion of the common property by a 
 paramount title and before partition 
 thereof, this right is called by the some- 
 what barbarous title of the conventional 
 prcEciput, iroraprw, before, smicapere, to 
 take. 
 
 PR JIMUNIRE (iiomprmnoneo, to fore- 
 warn, &c.) A species of ofiense affect- 
 ing the king and his government, though 
 not .subject to capital punishment. When 
 any one is said to incur a prcenmnire, it 
 signifies that he incurs the penalty of 
 being out of the king's protection, and 
 of having his property forfeited to the- 
 king. It is so called from the words of 
 the writ preparatory to the prosecution 
 thereof, viz., '^prcemunire fadas," i. e., 
 cause A. B. to be forewarned that he ap- 
 pear, &c. This writ is itself frequently 
 called aprmmunire. 3 Inst. 110. 
 
 There was also a celebrated Statute of 
 Praemunire (15 Rio. 3, c. 5), which was 
 enacted to check the exorbitant power 
 claimed and exercised by the Pope in 
 England ; whence the offense of prcmmnire 
 was the particular name of the offense of 
 inaintaining the papal power in England 
 as an imperium in vmperio. The statute 
 enacts, that whoever procures at Rome or 
 elsewhere any translations, processes, ex- 
 communications, bulls, instruments, or 
 other things which touch the king, 
 against him, his crown and realm, and all 
 
PRAGMATIC SANCTION. — PREMISES. 
 
 ■ 277 
 
 Fraemanire. — {Continued.) 
 persons aiding and assisting therein, shall 
 be put out of the king's prbtection, their 
 lands and goods forfeited to the king's 
 use, and they shall be attached by their 
 bodies to answer to the king and his 
 council, or process of pr(mnunire facias 
 shall be made out against him, as in any 
 other case of Prmisora. 
 
 See, also,title Pbovisobs. 
 
 *PKAGMATIC SANCTION. In 
 
 French Law, an expression designating 
 such ordinances as relate to the most 
 important object of the civil or ecclesias- 
 tical administration. In Civil Law the 
 answer of the emperors on questions of 
 Law, when consulted by a body of citi- 
 zens, was called by this name. Bouv. 
 Diet. 
 
 PKATEK OF PROCESS. A prayer or 
 petition with which a bill in Equity used 
 to conclude, to the efEect that a writ of 
 subpoena might issue against the defend- 
 ant to compel him to answer upon oath 
 all the matters charged against him in 
 the bill. 
 
 See title Stjbpoina. 
 
 PREAMBLE OF A STATUTE. The 
 
 introducing clause or section of a statute 
 is so termed. It usually ' recites the 
 objects and intentions of the Legislature 
 in passing the statute, and frequently 
 points out the evils or grievances which 
 it was the object of the Legislature to 
 remedy. Although the preamble is gen- 
 erally a key to the construction, yet it 
 does not always open or disclose all the 
 parts of it ; as sometimes the Legislature, 
 having a particular mischief in view, 
 which was the primary object of the 
 statute, merely state this in the preamble, 
 and then go on in the body of the Act to 
 provide a remedy for general mischiefs 
 of the same kind, but of different species, 
 neither expressed in the preamble, nor 
 perhaps then contemplated by the f ramer 
 thereof {Mann v. Gammel, Loft. 783). A 
 reference to the preamble is therefore 
 only an insufficient guide to the true 
 interpretation of the statute. 
 
 PRE-AUDIENCE. The precedence of 
 being heard, which prevails at the Bar 
 according to the rank which the counsel 
 respectively hold. In the Court of Ex- 
 chequer there are two banisters ap- 
 pointed by the Lord Chief Baron, called 
 the post-man and the tub-man (from the 
 places in which they sit), who take pre- 
 cedence in motions. 
 
 PREBEND. The rents and profits 
 {prmbenda) belonging to a cathedral 
 church, or the endowment in land or 
 money given to it for the maintenance of 
 the dean, chapter and spiritual officers 
 connected therewith. A prebendary, 
 vulgarly called a prebend, is one of this 
 ecclesiastical body who are so maintained. 
 Cowel. 
 
 PREBENDARY (prebmda/rim): 
 title Pbbbbnd. 
 
 See 
 
 PRECEDENT CONDITION: ite title 
 Conditions. 
 
 * PRECEDENTS. Adjudications and 
 legal forms which serve as rules or models 
 for subsequent cases. Bouv. Diet. 
 
 PRE-EMPTION {prm empUm). The 
 prerogative of purveyance, or pre-emp- 
 tion, was a right enjoyed by the Crown 
 of buying up provisions and other neces- 
 saries t)y the intervention of the king's 
 purveyors, for the use of his royal house- 
 hold, at an appraised valuation, in prefer- 
 ence to all others, and even without 
 consent of the owners ; and also of forci- 
 bly impressing the carriages and horses 
 of the subject to do the king's business 
 on the public roads, in the conveyance of 
 timber, baggage and the Uke. This pre- 
 rogative of the Crown appears to have 
 been made the occasion of much abuse 
 in the early reigns, as one of the chief 
 constitutional struggles of the period 
 was the restriction and regulation of this 
 right. In the United States, the right of 
 pre-emption is the right of settlers upon 
 public lands to purchase them at a hm- 
 ited price in preference to others. Burr. 
 Diet. 
 
 PREFER, TO. To bring before, to 
 prosecute, to try, to proceed with. Thus, 
 preferring an indictment signifies prose- 
 cuting or trying an indictment. 
 
 PREGNANCY, PLEA OF. A plea 
 which a woman capitally convicted may 
 plead in stay of execution; for this, 
 though it is no stay of judgment, yet 
 operates as a respite of execution until 
 she is deUvered. 
 
 PREMISES. Matter previously stated 
 or set forth is frequently so termed. In 
 a deed, the preqaises comprise all that 
 portion which precedes the habendvm,, i. e., 
 the date, the parties' names and descrip- 
 tions, the recitals, the consideration and * 
 the receipt thereof, the grant, the descrip- 
 tion of the things granted, and the excep- 
 
278 
 
 PREBOGATIVE.— PRESENTATrVE ADVOWSON. 
 
 Premises. — ( Continued.) 
 tions (4 Or. Dig. 26). So, in pleading, 
 the word is used, in its logical sense, as 
 signifying foregoing statements or pre- 
 viously-mentioned facts. Thus, in a 
 declaration in indebitainis aaswn/pait, the 
 plaintiff, after alleging that the defendant 
 was indebted to him in a given sum of 
 money, proceeded to state that, in con- 
 sideration of the premises, the defendant 
 promised to pay him the same. So, 
 again, in a declaration for the diversion 
 of water from a water-course, the plaintiff, 
 after stating his right to the enjoyment 
 of the water, and his previous user of the 
 same, and setting forth the fact and the 
 nature of the diversion, then proceeds to 
 point out the injurious consequences 
 which have flowed from the previously- 
 stated facts, in the following manner: 
 "And the plaintiff, by reason of the 
 premises, hath been deprived of the use, 
 benefit and advantage of the water of 
 the said water-course." 
 
 The common use of the word '^ premi- 
 ses," as in the phrase "eligible premises," 
 is an abusive use of the word, derived 
 apparently from the frequency with which 
 the word is used in conveyances and 
 leases of lands and houses. 
 
 PREROGATIVE (from prm, before or 
 above, and rogo, to ask or demand). By 
 prerogative is meant some exclusive pre- 
 eminent power or right. Thus, the king's 
 prerogative is usually understood to be 
 that special pre-eminence which the king 
 has over and above all other persons^ and 
 out of the ordinary course of the Com- 
 mon Law, in right of his regal dignity. 
 Thus, the power of making war or peace, 
 of making treaties, leagues and alliances 
 with foreign states and princes; of ap- 
 pointing ports and havens, or such places 
 only for persons and merchandise to pass 
 into and out of the realm as he in Ms 
 wisdom sees proper, are all instances of 
 the king's prerogative. The greater part 
 of early constitutional history consists in 
 the struggles of Parliament to restrain 
 the royal prerogative (see title Constitu- 
 tion, GrBOWTH of). And at the present 
 d.ay the law regarding the prerogative 
 exhibits exactly the reverse peculiarity, 
 viz., that the Crown may not of its own 
 authority diminish its prerogative, al- 
 though with the authority of Parliament 
 it may do so {Ex pwrte BduTjeB Byrwm^ee, 
 5 Moo. P. C. C. 376). And generally the 
 sovereign may not exercise his preroga- 
 tive in contrariety to the Common Law ; 
 
 Prerogative. - 
 
 and although, he may by his prerogative 
 establish Courts to proceed accordmg to 
 the Common Law, he cannot create any 
 new Court to adroinister any other law. 
 In re Natal (Bishop), 3 Moo. P. C. C. (N. 
 S.) 115. 
 
 PREROGATIVE COURT: See title 
 
 CotrRTS ECCLBSIASTICAI, S. 5. 
 
 PREROGATIVE LAW. That part of 
 the Common Law of England which is 
 more particularly applicable to the king. 
 Com. Dig. tit. "Ley." (A). 
 
 PRESCRIBE, TO. To assert a right 
 or title to the enjoyment of a thing on 
 the ground of having hitherto had the 
 uninterrupted and immemorial enjoyment 
 of it. 
 
 See title Prbsokiption. 
 
 PRESCRIPTION (prmsoripUo). A title 
 which a person acquires to incorporeal 
 hereditaments by long and continued pos- 
 session. Every species of prescription 
 by which property is acquired or lost is 
 founded on this presumption, that he who 
 has had a quiet and uninterrupted posses- 
 sion of any thing for a long period of 
 years is supposed to have a just right, 
 without which he could not have been 
 suffered to continue in the enjoyment of 
 it. This mode of acquisition was well 
 known in the Roman Law by the name of 
 usucapUo, because a person who acquired 
 a title in this manner might be said u^u 
 rem eapere. Before the Act of 2 & 3 
 Will. 4, c. 71, the possession required to 
 constitute a prescription must have ex- 
 isted time out of mind, or beyond the 
 memory of man, as it is also termed, that 
 is, before the reign of Richard I. ; but 
 now, the period of possession necessary 
 to constitute a title by prescription is in 
 many cases by the above Act considera- 
 bly shortened. 
 
 See titles Commons; Basements; 
 Profits a Prendre. 
 
 PRESENTATION {presentatio). The 
 act of a patron or proprietor of a living 
 offering or presenting a clerk to the 
 ordinary. This is done by a kind of let- 
 ter from the patron to the bishop of the 
 diocese in which the benefice is situated, 
 requesting him to admit to the church 
 the person presented. 3 Cruise, 14. 
 See, also, title Nomination. 
 
 PRESENTATIVE ADVOWSON: See 
 
 title Advowson. 
 
PRESENTEE. — PRTTVrATE OF ALL ENGLAND. 
 
 279 
 
 PRESENTEE. He who is presented 
 to a liying by the patron thereof. 
 
 PRESENTMENT. This word has 
 various significations. Iq its relation to 
 criminal matters it signifies the notice 
 taken by a grand jury of any offense 
 from their own knowledge or observa- 
 tion, without any bill of indictment laid 
 before them at the suit of the king ; as 
 the presentment of a nuisance, a libel 
 and the Kke ; upon which the officer of 
 the Court must afterward frame an in- 
 dictment before the party presented can 
 be put to answer it. The word, as used 
 in reference to admissions to copyholds, 
 signifies an information made by the 
 homage or jury of a Court Baron to the 
 lord, by way of instruction, to give the 
 lord notice of the surrender and of what 
 has been transacted out of Court (5 
 Cruise, 503). But the necessity of the 
 latter presentment has been aboUshed by 
 4 & 5 Vict. c. 35. 
 
 See title Copyholds. 
 
 ♦PRESENTS. The ^hiaae these pres- 
 enia signifies the writing made and 
 spoken of. Bouv. Diet. 
 
 PRESS, LIBERTY OF. The law of U- 
 
 bel was at first extremely severe, any reflec- 
 tion upon the Government, or upon min- 
 isters, being construed into a reflection 
 upon the krng himself, and therefore as a 
 seditious Ubel. This state of the law of 
 hbel was rendered all the worse by reason 
 of the then doctrine of the Common Law, 
 that the jury could only find the particu- 
 lar fact of pubhcation, and not a general 
 verdict of Ubel or no Ubel, that matter 
 being left to the judges, who (as being 
 the servants of the Crown) were naturally 
 suspected of being disposed toward the 
 Crown. And although in the Case of the 
 Seven BisJiops (1687), the jury brought in 
 a general verdict of no libel, yet that 
 precedent was insufficient of itself to 
 change the law, more especially as it was 
 given in bad times. It was left to Mr. 
 Erskine, in the Case of the Dean of St. 
 Asa/ph (1778), to advocate the right of the 
 jury in actions of Ubel to find a general 
 verdict, and to Mr. Pox, in his Libel Act, 
 1793, to confer that right upon the jury. 
 By a later Act (6 & 7 Vict. c. 96), it was 
 for the first time rendered competent to a 
 defendant to plead in defense or justifi- 
 cation the truth of the matters published, 
 and that the same were so pubUshed for 
 the public good. 
 
 PRESUMPTION {^ppenmnptAo). That 
 which is presumed or beUeved in the ab- 
 sence of any direct evidence to the con- 
 trary. A presumption, or that which is 
 presumed, has been denominated a vio- 
 lent, a probable, or a Ught presumption, 
 according to the amount of weight which 
 attaches to it. Thus, if a landlord sues 
 for rent due at Michaelmas, 1754, and 
 the tenant cannot prove the payment, but 
 produces an acquittance for rent due at a 
 subsequent time, in full of all demands, 
 this is a violent or strong persumption of 
 his having paid the former rent, and is 
 equivalent to full proof. Again, if , in a 
 suit for rent due in 1754, the tenant proves 
 the payment of his rent due in 1755, this 
 is a probable presumption that the rent of 
 1754 was paid also. Again, such pre- 
 sumptions as are drawn from inadequate 
 grounds are termed Ught or rarii pre- 
 sumptions. Presumptions are also com- 
 monly divided into (1.) Prsesumptions 
 ywrit et de jure, and (3.) Prsesumptions 
 jv/ria tantum, the former class being con- 
 sidered irrebuttable, and the latter rebut- 
 table, by contrary evidence. 
 
 See, also, title Evidencb. 
 
 PRET in French Law is a loan, and 
 may be either (a.) Fret d usage, corre- 
 sponding to the Bommo^atwm of Boman 
 Law (gee that title), or (J.) PrU de con- 
 summation, corresponding to the mutuwm 
 of Roman Law (see that title). 
 
 PRICKING FOR SHERIFFS used to 
 be the method of electing the sheriffs of 
 the different counties of England. This 
 was done by marking each name with the 
 prick of a pin, and for that reason this 
 particular election was generally termed 
 pricking for sheriffs. 
 
 PRIMAGE. A smaU payment made to 
 the master of a vessel for his personal 
 care and trouble, which he is to receive 
 in addition to his wages or salary, to his 
 own use, unless he has otherwise agreed 
 with his employers. This payment is that 
 intended in the phrase "with primage 
 and average accustomed." It appears to 
 be of very ancient date ; and in the old 
 books is sometimes called "hat money," 
 and also " la contribution des cha/usses, ou 
 potde mndumaitre." Abbot on Shipping 
 by Shee, 404 ; Maude & PoU. March. 
 Ship. 88 ; Kay's Law of Shipmasters. 
 
 PRIMATE OF ALL ENGLAND. An 
 
 ecclesiastical title belonging to the Arch- 
 bishop of Canterbury, who is styled " Pri- 
 mate of aU England and MetropoUtan." 
 
280 
 
 PKIMER FINE. — PRmCIPAIi AND AGENT. 
 
 Primate of all England. — (Corai'd.) 
 The Archbishop of Tork is sometimes 
 styled Primate of England, See Bums' 
 Ecol. Law, by Phillimore. 
 
 PKimER FINE. On the levying of 
 a fine when the writ of covenant was 
 sued out, there was due to the king by 
 ancient prerogative a sum of money called 
 primer fine, being a noble for every five 
 marks of land sued for. It was so called 
 because there was another fine payable 
 afterward, which was termed the post 
 fine. 
 
 See, also, title PurB. 
 
 PKIMEB SEIZIN (prima seidna). 
 During the feudal tenures, when any of 
 the kin's tenants in ca/pite died seized of 
 lands or tenements, the Crown was enti- 
 tled to receive of the heir, if he were of 
 full age, a sum of money amounting to 
 one whole year's profits of the lands, 
 which was termed ^wjm«r seizin, i. e., first 
 possession. 1 Cruise, 31 ; 3 Inst. 134. 
 
 PEIMOGENITUEE. The right of the 
 eldest son to inherit his ancestor's estates 
 to the exclusion of the younger sons ; or, 
 as the canon of descent has it, ' ' that 
 \where there are two or more males in 
 equal degree, the oldest only shall in- 
 herit " (Litt. sec. 5). The law of primo- 
 geniture became generally established in 
 England in the reign of Henry in., in 
 which reign also the lineal descent of the 
 Crown to the infant issue of an elder 
 brother in preference to a younger brother 
 of full age was established. The county 
 of Kent is still an exception, theoreti- 
 cally at least, to the law of primogeni- 
 ture. 
 
 See title Descents. 
 
 PRINCIPAL AND ACCESSORY. A 
 
 criminal offender is either a principal or 
 an accessory; a principal is either the 
 actor, i. e., the actual perpetrator of the 
 crime, or else is present, aiding and abet- 
 ting the fact to be done ; an accessory is 
 he who is not the chief actor in the of- 
 fense, nor yet present at the performance, 
 but is someway concerned therein, either 
 before or after the fact committed. An 
 accessory before the fact is he who, being 
 absent at the time of the commission of a 
 felony, procures, counsels, or commands 
 the principal felon to commit it ; as if 
 several plan a theft, which one is to exe- 
 cute ; or if a person incites a servant to 
 embezzle the goods of his master. An 
 accessory after the fact is one who, know- 
 
 Principal and Accessory. — {Oontinued.) 
 ing a felony to have been conmiitted, re- 
 ceives, harbors, relieves, comforts, or 
 assists the principal or accessory before 
 the fact with a view to his escape. 1 Hale, 
 613, 618. 
 
 See, also, titles AccEssoiirBS ; Aidebs 
 AND Abbttoks. 
 
 PRINCIPAL AND AGENT. The 
 
 English Law adopts the maxim, that 
 what a man does through another person 
 he does for himself ( qui faeit per alium 
 faeitper ge), and as a rule (but subject to 
 a few exceptions, chiefly statutory) what 
 a man may do by himself he may also do 
 by another acting for him ; but the con- 
 verse does not hold, that what he cannot 
 do for himself, he cannot do for another, 
 for infants and married women, although 
 they cannot bind themselves, may be 
 agents so as to bind the principal who em- 
 ploys them. 
 
 Agents are either general or special; 
 but in either case the authority of the 
 agent is confined by his instructions, 
 whether particular or general, and the 
 same rules of law apply to both. 
 
 These rules are principally the follow- 
 ing:— 
 
 (1.) Where an agent contracts within 
 the scope of his authority he binds his 
 principal ; and if vyithout that scope, then 
 he does not bind the latter ; 
 
 (3.) Where an agent contracts aspririr 
 (Apal he is personally liable ; 
 
 (8.) But in case (3.), it the principal is 
 Tonovm at the time of the contract to the 
 other contracting party, who chooses 
 there and then to dmt the principal, the 
 agent is not liable; and, on the other 
 hand, if with the like knowledge he 
 there and then debits the agent, the prin- 
 cipal is not liable ; 
 
 (4.) But if the principal is unknown at 
 the time of the contract to the other con- 
 tracting party, then, whether the agent 
 represent himself or not as principal, the 
 other contracting party may, upon dis- 
 covering the principal, debit at his elec- 
 tion either the principal or the agent ; 
 
 (5.) Where, however, the principal is 
 at fault in permitting his agent to act as 
 apparent principal, and thereby the other 
 contracting party is induced to contract 
 with him, the true principal, if he should 
 afterward intervene, wDl take subject to 
 all rights or equities, e. g., by way of set- 
 off, which the third party had against the 
 apparent principal {Qeorge v. ~' 
 7 T. R. '"■ 
 
PRINCIPAL AND SURETY. — PRIVIES. 
 
 281 
 
 Principal and Agent. — {OmUin/ued.) 
 
 (6.) Where a persoii having no au- 
 thority as an agent represents Mmself as 
 agent, and in that self-aasumed capacity 
 enters into a contract, the other contract- 
 ing j)arty cannot charge the pretended 
 principal either upon the contract or at 
 all; but he may charge the assuming 
 agent, not, indeed, upon the express con- 
 tract, but on an implied contract or war- 
 ranty that he had authority to make the 
 contract, and in that way he will make 
 such agent liable for damages {OoUen v. 
 Wrigltt); and 
 
 (7.) An agent who contracts in writing 
 should describe himself, both iu the body 
 of the instrument and in his signature to 
 it, as agent merely for his principal, 
 naming the latter in both places, other- 
 wise he may (in case of any ambiguity in 
 the instrument) be held personally hable 
 {Humphrey v. BaLe, 7 EL & Bl. 266 ; EL Bl. 
 & EL 1004) ; and he wiU. certainly be per- 
 sonally liable in such a case if he names 
 a fictitious principaL 
 
 Agency is determined by death of 
 either principal or agent; nor does the 
 English Law admit of that equitable ex- 
 tension of the Roman Law, whereby a 
 stranger contracting with the agent in ig- 
 norance of the principal's death was pro- 
 tected, and might recover. Smout v. 11- 
 lery, 10 M. & W. 1 ; Blades v. Free, 9 B. 
 & C. 157. 
 
 PRINCIPAL AND SURETY : See title 
 
 StTKBTY. 
 
 ♦PRINCIPAL CHALLENGE. A chal- 
 lenge of a juror for a cause which carries 
 with it prima fade marks of suspicion 
 either of malice or favor. Burr. Diet. ; 
 8 BL Com. 363. 
 
 PRISONS: 5ee titles Escape ;Rb8Cue. 
 
 PRIVATE ACT OF PARLIAMENT. 
 
 Is an Act aSecting particular persons, as 
 distinguished from a public Act, which 
 concerns the whole nation. The statutes 
 of the realm are generally divided intq 
 pubUc and private. The former being an 
 universal rule that regards the commu- 
 nity at large, and of which the Courts of 
 Law are bound of themselves judicially 
 to take notice ; the latter being rather ex- 
 ceptions than rules, operating only upon 
 particular persons and private concerns, 
 and of these the judges need only take 
 notice when expressly pleaded. Thus 
 the statute 13 EUz. c. 10, which prevents 
 the master and fellows of any college, the 
 dean and chaipter of a cathedral, or any 
 
 Private Act of Parliament. — {OonVd.) 
 other person having a spiritual living, 
 from making leases for longer terms than 
 twenty-one years or three hves, is a pub- 
 lic Act, it being a rule prescribed to spir- 
 itual persons in general ; but an act to 
 enable the Bishop of Chester to make a 
 lease to A. B. for sixty years, which is 
 otherwise beyond a bishop's power, con- 
 cerns only the parties, and is, therefore,' a 
 private Act. 4 Rep. 13 a; Ibid. 76 a. 
 See, also, next title. 
 
 _ PRIVATE BILLS. AU parUamentary 
 bills which have for their object some 
 particular or private interest are so termed, 
 as distinguished from such as are for the 
 benefit of the whole community, and 
 which are thence termed public bills. 
 
 PRIVATE WAY: See titles Wat and 
 
 EASBMBira. 
 
 ♦PRIVATEER. A private armed ves- 
 sel commissioned by government to cruise 
 against the commerce of an enemy in 
 time of war. 1 Kent Com. 95, 100 ; Burr. 
 Diet. 
 
 * PRIVEMENT ENSIENT. The state 
 of a woman with child, but not quick 
 with child. 
 
 PRIVIES (from the Fr. prive, familiar, 
 intimate, &c.) Persons between whom 
 some connection exists, arising from some 
 mutual contract entered into with each 
 other; as between donor and donee, lessor 
 and lessee ; or else it signifies persons re- 
 lated by blood, as ancestor and heir, &c. 
 And this connection which so arises or 
 exists between persons is termed privity. 
 The word " privy " is used with various 
 adjuncts, in order to express the nature of 
 the privity or connection which exists be- 
 tween persons. Thus, persons related by 
 blood, as ancestor and heir for instance, 
 are denominated privies in blood ; those 
 related to a party by mere right of repre- 
 sentation, as executors or administrator 
 of a deceased person, are denominated 
 privies in representation, or in right ; 
 those connected vyith each other in respect 
 of estate, as lessors and lessees, donors 
 and donees, &c., are denominated privies 
 in estate. So also those who are in any 
 way related to the parties who levy a fine 
 and claim under them, either by right of 
 blood or otherwise, are denominated priv- 
 ies to a fine ; and the connection or rela- 
 tionship which in all such cases arises or 
 exists between the parties is termed priv- 
 ity ; so that between lessors and lessees, 
 
282 
 
 PEIVILEaE. — PRIZE. 
 
 PriTies. — ( CcmMnued.) 
 who are termed privies in estate, there 
 also exists privily of estate. 5 Cruise, 
 158 ; Zes Termes de la Ley. 
 
 PEIVILEGE (primlegivm). Some- 
 times used in Law for a place which has 
 some special immunity; and sometimes 
 for an exemption from the ligor of the 
 Common Law. It is either real or per- 
 sonal. A real privilege is that which is 
 granted to a place, a personal privilege 
 that which is granted to a person., An 
 instance of the former kind is the power 
 granted to the universities to have Courts 
 of their own; an instance of the latter 
 Mnd is the exemption of certain persons 
 from being obliged to serve in certain offi- 
 ces, or to perform certain duties, or from 
 being arrested on civil process. Kitchen ; 
 Cowel. 
 
 See, also, title Pabliament. 
 
 PRIVILEGED COMMUNICATION. 
 
 In actions for libel or slander, one of the 
 most common defenses is that of privilege, 
 or that the words spoken or written were 
 a privileged communication. The chief 
 grounds of privilege are the following: — 
 
 (1.) That the defendant was the master 
 of the plaintiff, and spoke the words to 
 him while that relation was existing 
 (SomermMe v. Emohins, 10 C. B. 583) ; 
 
 (2.) That the defendant spoke or wrote 
 the words as part of a charactefr which he 
 was requested to give of the plaintiff 
 (Fountains. Boodle, 3 Q. B. 11); 
 
 (3.) That the words were a fair com- 
 ment upon an author or speaker (JWason 
 V. Walter, L. R. 4 Q. B. 73) ; and 
 
 (4.) That the defendant had a pecuniary 
 interest (direct or indirect) in the business 
 with reference to which the words were 
 spoken. OoxheadY. Bieka/rda, 3 C. B. 569. 
 
 PRIVILEGED DEBTS. Those debts 
 wiiich an executor may pay in preference 
 to others ; such as the funeral expenses, 
 servants' wages, expenses of medical at- 
 tendance ijjcurred during the illness of 
 the deceased, &c. Also, in bankruptcy 
 proceedings under the English Bank- 
 ruptcy Act, 1869, the following classes of 
 debts are privileged, i. e., entitled to pri- 
 ority of payment : — 
 
 (1.) Parochial, and other local rates; 
 
 (2.) Assessed taxes ; 
 
 (3.) Land tax ; 
 
 (4.) Property or income tax up to the 
 5th of April preceding. In each 
 of these cases to the extent of 
 one year's arrears only ; 
 
 Privilegred Debts. — {Oontinued.) 
 (6.) Wages or salaries of clerks or ser- 
 vants, not exceeding four months' 
 arrears or £50 ; and 
 (6.) Wages of laborers and workmen, 
 not exceeding two months' ar- 
 rears. 
 
 * PRIVILEGED DEED. In Scotch 
 Law, an instrument in whose execution the 
 usual statutory formalities are dispensed 
 with, from necessity or expediency. Ersk. 
 Inst. 3, 3, 22.; Bouv. Diet. 
 
 PRIVITY OP CONTRACT. That con- 
 nection or relationship which exists be- 
 tween two or more contracting parties is 
 so termed. It is essential to the mainte- 
 nance of an action on any contract that 
 there should subsist a privity between the 
 plaintifiE and the defendant in respect of 
 the matter sued on ; and the absence of 
 such privity is fatal to the action {Baron 
 V. Husband, 4 B. & Ad. 611). But in 
 some cases, where an action of contract 
 will not lie for want of privity, an action 
 of ,tort (in which privity is not an essen- 
 tial) will properly lie. Cterhmd v. Bates, 
 2 El. & Bl. 476. 
 
 Bee title Contkacts. 
 
 * PRIVY VERDICT. A verdict given 
 privily to the judge out of court. 
 
 PRIZE. Booty seized on land or cap- 
 tured at sea in times of war. The English 
 Court of Admiralty has always had 
 jurisdiction in the matter of naval cap- 
 tures ; but until the stat. 3 & 4 Vict. c. 
 65, s. 23, it had no jurisdiction in the 
 matter of land seizures, or booty. Banda 
 and Eirwee Booty Gase, Law Rep. 1 A. & 
 B. 109. 
 
 Prize tribunals are a species of interna- 
 tional tribunals, their sentences being 
 conclasive evidence upon every matter 
 within their respective jurisdictions {Bol- 
 ton tt. ffladstone, 5 East, 155); but noth- 
 ing that rests on mere inference from 
 these sentences is conclusive in the same 
 manner {Fisher v. Ogle, 1 Camp. 418). 
 The conclusive efiect of these sentences 
 appears to arise from the fact that they 
 are not given in any litigation inter partes 
 (the foreign state having no locus standi 
 in the Courts) nor yet ex parrte ; but the 
 sovereign state itself in which the Court 
 is sitting is by means of its Court making 
 an inquiry for itself, and adjudicating for 
 itself only, and the sovereign state is an- 
 swerable to the injured party (if any), 
 who will either claim or recriminate 
 through his own govemih,ent. 
 
PROBATE. — PROCLAMATION. 
 
 283 
 
 PROBATE (jn-oboMo). The copy of a 
 will or testament made out in parchment 
 under the seal formerly of the ordinary, 
 and now of the Court of Probate, and 
 usually delivered to the executor or ad- 
 ministrator of the deceased, together with 
 a certificate of the will's having been 
 proved, is commonly called the probate. 
 It is sometimes used for the act of prov- 
 ing a wUL The meaning of proving a 
 will may be thus explained. In England, 
 an executor, before he is permitted to 
 take a probate of -the will, is obliged to 
 swear, formerly before the ordinary or his 
 surrogate, and now before a registrar of 
 the Court of Probate that the writing con- 
 tains the true last will and testament of 
 the deceased as far as he knows or be- 
 lieves, and that he will truly perform the 
 same by paying, first, the testator's debts, 
 and then the legacies therein contained, 
 as far as the goods, chattels, and credits 
 of the deceased will thereto extend, and 
 the law charge him; and that he will 
 make a true and perfect inventory of all 
 the goods, chattels, and credits, and ex- 
 hibit the same into the registry of the 
 Court at the time assigned by the Court, 
 and render a just account thereof when 
 lawfully required; and this is termed 
 proving a wiU. Toller's Exec. 58. 
 See, also, title Pkovhtg a "Will. 
 
 PROCEDENDO. A writ by which a 
 cause which has been removed from an 
 inferior to a superior Court by cerUorari 
 or otherwise, is sent down again to the 
 same Court to be proceeded with there, 
 after it has appeared that the defendant 
 had not good cause for removing it. 
 Cowel ; Leg Terme» de la Ley. 
 
 PROCEDURE. This word is common- 
 ly opposed to the sum of legal principles 
 constituting the substance of the law, and 
 denotes the body of rules, whether of 
 practice or of pleading, whereby rights 
 are effectuated through the successful 
 application of the proper remedies. It is 
 also generally distinguished from the Law 
 of Evidence. The procedure of diffierent 
 jurisdictions varies, that of the Courts of 
 Common Law being in many respects dif- 
 ferent from the procedure in the Courts 
 of Equity; but under the Judicature Act, 
 J873, and the rules made and to be made 
 thereon, some attempt is made to insure 
 uniformity of procedure in these two 
 hitherto separate jurisdictions. The pro- 
 cedure in criminal cases also differs from 
 that in civil ones, and is not affected by 
 the Judicature Act or the rules thereon. 
 
 PROCESS. This word is generaUy de- 
 fined to be the means of compelling the 
 defendant in an action to appear in Court. 
 And when actions were commenced by 
 original writ, instead of, as at present, by 
 writ of summons, the method of compel- 
 ling the defendant to appear was by what 
 was termed original process, being found- 
 ed on the original writ, and so called also 
 to distinguish it from mesne or interme- 
 diate process, which was some writ or 
 process which issued during the progress 
 of the suit. The word " process," how- 
 ever, as now commonly understood, sig- 
 nifies those formal instruments called 
 writs. The word "process" is in Com- 
 mon Law practice frequently applied to 
 the writ of summons, which is the instru- 
 mept now in use for commencing personal 
 actions. The word "process," however, 
 in its more comprehensive signification 
 includes not only the writ of summons, 
 but all other writs which may be issued 
 duiing the progress of an action. Those 
 writs which are used to carry the judg- 
 ments of the Courts into effect, and which 
 are termed writs of execution, are also 
 commonly denominated final process, be- 
 cause they usually issue at the end of a 
 suit. Steph. on Plead. 21 ; Smith's Ac- 
 tion at Law, 56 ; 1 Arch. Pract. 582. 
 
 ♦PROCESSIONING. A proceeding 
 authorized by statute in some of the 
 United States for ascertaining, marking 
 and establishing the boundaries of lands. 
 
 PROCHEIN AMY (next friend). As 
 an infant cannot legally sue in his own 
 name, the suit or action must be brought 
 by his proehein amy, i. «., some friend who 
 is willing to take upon himself the 
 trouble and responsibility. Co. Litt. 135 
 b., note; Cro. Car. 161. 
 
 See, also, title Next PKiKin). 
 
 PROCLAMATION. A notice pubUcly 
 made of any thing ; or a public declara- 
 tion of the king's wUl made to his sub- 
 jects. It was the opinion of Lord Coke 
 that proclamations, when grounded on 
 the laws of the realm, were of great force ; 
 and of Blackstone, that proclamations 
 were binding on the subjects when they 
 did not contradict the laws of the land, 
 or tend to establish new ones ; and they 
 appear, in fact, to be a proper mode, if 
 not of signifying, at any rate of enforcing 
 the law, and, as such, to be a necessary 
 part of the executive in proper cases. 
 They have been used at all times by all 
 classes of sovereigns, as well those who 
 
284 
 
 PROCLAMATION OF A FINE. — PROHIBITION. 
 
 Proclamation* — ( Oontimied.) 
 regarded the constitution as those who 
 disregarded it. The stat. 31 Hen. 8, c. 
 8, gave to the king's proclamations in 
 ecclesiastical matters the force of law ; 
 and, similarly, Orders in Council made 
 in virtue of any like enabling statute have 
 the force of law. 
 
 PEOCLAMATION OP A FINE. The 
 
 notice or proclamation which was made 
 after the engrossment of a flue, and which 
 consisted in its being openly read in 
 Court sixteen times, viz., four times in 
 the term in which it was made, and four 
 times in each of the three succeeding 
 terms, which, however, was afterward 
 reduced to one reading in each term. 
 
 PEO CONFESSO. When a defendant 
 in a suit in Chancery will not put in his 
 answer to the plaintifiE's bill, and the 
 proper means have been resorted to to 
 compel him to do so, and yet he does it 
 not, and will not do it, the plaintifiE may 
 proceed to have the bill taken against 
 1:0111 pro amfesso (i. e., as confessed), and 
 to obtain a decree in the suit on the as- 
 sumption that the defendant has confessed 
 the truth of the bill ; for by his not an- 
 swering it, and remaining silent, it is as- 
 sumed, reasonably enough, that he con- 
 fesses the truth of its contents. 
 
 PROCTOR {procv/raUor). An officer of 
 the Ecclesiastical Courts, while these ex- 
 isted, and now of the Court of Probate, 
 whose duties correspond with those of an 
 attorney in the Common Law Courts ; and 
 in fact all such attorneys may, and com- 
 monly do, now act as proctors in the 
 Court of Probate. 
 
 PROCURATION {procumUo). In- 
 dorsing a bill of exchange by procuration 
 is doing it as proxy for or by authority of 
 another. Also, many contracts are enter- 
 ed into per proc, as it is called; in which 
 case the agent should describe himself as 
 such both in the body of the document 
 and in his signature to it, otherwise he 
 maybe incurring a personal Uabilityupon 
 it. 
 
 See title PRmciPAL akd Agent. 
 
 PROCURATOR. In its general signi- 
 fication means any one who has received 
 a charge, duty, or trust for another. Thus 
 the proxies of the Lords in Parliament 
 are in our old books caWsdi procwratores ; so 
 also a vicar or Ueutenant was so called, and 
 even the bishops were sometimes called 
 procuratorea eccUsiarwm. From this term 
 
 Procurator.- {Omtirmed.) 
 came the word "proctor," meaning one 
 who acted for another in the Ecclesiasti- 
 cal Courts, the same as an attorney does 
 for his client in the Common Law Courts. 
 The word "procurator" was also used 
 for him who gathered the profits of a 
 benefice for another man, and the word 
 "procuracy" for the writing or instru- 
 ment which authorized the procurator to 
 act. Cowel ; Les Termes de la Ley. 
 
 PROCUREUR DU ROI. In French 
 Law is a public prosecutor, v?ith whom 
 rests the initiation of all criminal proceed- 
 ings. In the exercise of his office (which 
 appears to include the apprehension of 
 offenders), he is entitled to call to his as- 
 sistance the public force {posse comita- 
 tug) ; and the officers of police are auxil- 
 iary to him. 
 
 PROCUREUR-GENERAL, or IMPE- 
 RIAL. In French Law is an officer of 
 the Imperial Court, who either personally 
 or by his deputy prosecutes every one 
 who is accused of a crime accordmg to 
 the forms of French Law. His functions 
 appear to be confined to preparing the 
 case for trial at the assizes, assisting in 
 that trial, demanding the sentence in 
 case of a conviction, and being present at 
 the delivery of the sentence. He has a 
 general superintendence over the officers 
 of police and of the juges d'instruetdon, 
 and he requires from the proewreur du roi 
 a general report once in every three 
 months. 
 
 PROFERT IN CURIA {he produces in 
 Court): See title Otbk of Deeds aito 
 Records. 
 
 PROFITS A PRENDRE. Are rights 
 of taking some portion of the substance 
 or produce of lands, in which respect 
 they are distinguished from easements, 
 which stie privileges without profit (see 
 title Easements). They are to all in- 
 tents and purposes mere rights of common, 
 and their varieties are specified under 
 that title. 
 
 PROHIBITION. A writ issuing prop- 
 erly out of the Court of King's Bench, 
 being the king's prerogative writ ; but for 
 the furtherance of justice it may also be 
 had in some cases out of the Courts ot 
 Chancery, Common Pleas, or Exchequer, 
 directed to the judge and parties of a 
 suit in any inferior Court, commanding 
 them to cease from the prosecution thereof 
 upon a suggestion that either the cause 
 
PROHIBITIVE mPEDIMENTS. — PROMOTERS. 
 
 285 
 
 Prohibition. — ( Oontinued.) 
 originally, or some collateral matter aris- 
 ing therein, does not belong to that juris- 
 diction, bat to the cognizance of some 
 other Court. No such prohibition will 
 issue after sentence unless the want of 
 jurisdiction below appears on the face of 
 the proceedings. Bttggin v. Bennet, 4 
 Burr. 30, 35. 
 
 In early times, the chief use of prohi- 
 bitions was to restrain the Ecclesiastical 
 Courts from interfering in matters which 
 were properly subject to the jurisdiction 
 of the Courts of Common Law, whence 
 also numerous statutes were passed in aid 
 of the Common Law (see titles Auticuli 
 Clehi; Clakendon, Constitutions of), 
 and the clergy used to complain, notably 
 in the reign of James I. during the pri- 
 macy of Archbishop Bancroft, that the 
 Common Law Courts extended their inter- 
 ference with the spiritual Courts by means 
 of their prohibitions too far (see Case of 
 ProhiMMong, 13 Rep. 59). But in more 
 modem times the uses of writs of prohi- 
 bition have been chiefly the following: — 
 
 (1.) To commissioners, justices, and 
 inferior Courts generally, 
 whether civil or criminal, for as- 
 suming unwarranted jurisdic- 
 tion; 
 
 (3.) To Courts of Appeal, not except- 
 ing even the Judicial Committee 
 of the Privy Council. Darhy v. 
 Oozam, 1 T. R. 553 ; Ex pcvrte 
 Smyth, 3 A. & B. 719. 
 
 But, semble, no prohibition will issue 
 to restrain the Lord Mayor's Court, this 
 being a consequence of the words of s. 
 15 of the Mayor's Court Procedure Act, 
 1857, which provide that aU objections 
 to the jurisdiction shall be taken by plea 
 only. 
 
 The Court of Chancery can properly 
 grant a prohibition (as distinguished from 
 an injunction) during vacation only, and 
 not during term. 
 
 *PKOHIBITITE IMPEDIMENTS. 
 
 Such impediments to a marriage as are 
 followed by a punishment, but do not ren- 
 der the marriage void. Burr. Diet. 
 
 PRO INDIVISO (as undivided). The 
 joint occupation or possession of lands ; 
 thus lands held by co-parceners are held 
 pro indiviso, that is, they are held undivi- 
 dedly, neither party being entitled to any 
 specific portions of the land so held, but 
 both or all having a joint interest in the 
 undivided whole. Cowel. 
 
 * PROLYTiE. The term used to desig- 
 nate, in Roman Law, the students at law 
 during the fifth and last year. 
 
 PROMISE. In law is either express or 
 implied. Express, when founded upon 
 the express contract.or declaration of the 
 party promising ; implied, when the prom- 
 ise is inferred from his acts, conduct or 
 pecuUar position. Thus the law will al- 
 ways infer a promise by a debtor to pay a 
 debt due to Ms creditor ; and in an action 
 against the debtor for recovery of the 
 debt, such promise must be alleged in the 
 declaration, although it need not be spe- 
 cifically proved. 
 
 See, also, title Assumpsit. 
 
 PROMISSORY NOTE. A written in- 
 strument by which one person engages or 
 promises to pay a certain sum of money 
 to another. It in many respects resem- 
 bles a bill of exchange ; the following is 
 an ordinary form of a promissory note : — 
 
 £100 Os. Od. 
 
 London, lit Mwreh, 1874. 
 
 On demand, I promise to pay to James 
 Williams, or bearer, one hundred pounds, 
 value received. 
 
 John Andbbson. 
 
 A promissory note of course, varies from 
 the above form according to circum- 
 staances ; thus a party frequently promi- 
 ses to pay at a certain period after the 
 date of it instead of on demand, and then 
 it would run thus: "Three months (as 
 the case may be) after date, I promise," 
 &c. 
 
 See, also, title Bill of Exchansb. 
 
 PROMOTERS. Those persons who in 
 popular and penal actions prosecute of- 
 fenders in their own name and in that of 
 the king's, and are thereby entitled to a 
 part of the fine or penalty inflicted on the 
 offender as a reward for so prosecuting. 
 The term is also, and now almost exclu- 
 sively, applied to a party who puts in mo- 
 tion an ecclesiastical tribunal for the pur- 
 pose of correcting the manners of any 
 person who has violated the laws ecclesi- 
 astical, and taking such a course, he is 
 said to "promote the office of the judge " 
 (see TayVyr v. Morley, 1 Curt. 470). It 
 would appear that the office of the judge 
 ought not to be promoted in a suit by 
 more than one person, excepting in the 
 case of churchwardens {per Sir H. Jen- 
 ner, 3 Curt. 403). The word "promo- 
 ters " is also used to denote a number of 
 
286 
 
 PROPERTY. — PROTHONOTARY. 
 
 Promoters. - 
 
 persons who project and endeavor to float 
 a public undertaking, e. g., promoters of 
 railway companies. 
 
 PROPERTY {proprietas). A word of 
 almost infinite extepit, including every 
 species of acquisition which a man may 
 have an interest in. Thus the terms 
 lands, goods, chattels, efEects, and, indeed 
 almost every term which represents an 
 object in which a person may acquire an 
 interest or a right, are included in the 
 word "property." Doe d. Morgan v. 
 " », 6B. &0. 512. 
 
 PROPOUNDER OF A WILL. He by 
 
 whom it is brought forward, and who seeks 
 to obtain for it the probate formerly of 
 the ordinaory or of the Prerogative Court, 
 and now of the Court of Probate. This 
 is generally the executor; but if any testa- 
 mentary paper be left in the possession of, 
 or materially benefits, any other person, it 
 may be propounded by such person. 
 Wood and Others v. QoodMhe; Hel/pa amd 
 Others, 3 Curt. 84, 95. 
 
 PROPRIETATE PROBANDA. A 
 
 writ which used to be directed to the 
 sheriff, requiring him to inquire by in- 
 quest, whether goods distrained were the 
 property of the plaintiff, or of the person 
 claiming them. This writ issued when 
 to a writ of replevin the sheriff returned 
 as his reason for not executing it, that the 
 distrainor, or other person, claimed a 
 property in the goods distrained (3 Arch. 
 Pract. 837). The object of this writ is 
 now obtained by means of a summons to 
 interplead. 
 
 PROPBIETE. In French Law, is the 
 right of .enjoying and of disposing of 
 thongs in the most absolute manner, sub- 
 ject only to the laws. 
 
 PRO RATA {inpropoiiion; at a eertmn 
 rate). As, under certain circumstances, 
 the payment of freight is regulated ac- 
 cording to the portion of the voyage per- 
 formed, pro raid itineris perotcbi. Abbot 
 on Shipping, by Shee, 438, et seq. ; 1 M. 
 &8. 453 ;_ 5 Taunt. 513; 10 East, 878, 
 536. See,' also, the phrase used in 3 Wil- 
 liams's Exors. 1459. 
 
 PROROGATION OF PARLIAMENT: 
 
 iS«e title Pabliambnt. 
 
 PROTECTION, WRIT OF. A prerog- 
 ative writ which the king may grant to 
 privilege any person in his service from 
 arrest during a year and a day; this pre- 
 
 Protectionj Writ of. — ((Jont/mwed.') 
 rogative, however, is seldom exercised; 
 it was formerly the subject of much abuse, 
 whence the frequent complaints regarding 
 it in the early constitutional period. 
 
 PROTECTOR. By s. 83 of the stat. 3 
 & 4 Will. 4, c. 74, power is given to any 
 settlor to appoint any person or persons, 
 not exceeding three, the protector of the 
 settlement, and also to perpetuate that 
 protectorship. , 
 
 PROTEST. In its most general and 
 enlarged sense signifies an open declara- 
 tion or afifirmation. Thus, when in the 
 House of Lords any vote passes contrary 
 to the sentiments of any of its members, 
 such members may, by leave of the House, 
 enter their dissent on the journals of the 
 House, with the reasons of such dissent, 
 which is usually styled their protest. So 
 also the term "protest," as applied to 
 foreign bills of exchange, signifies a sol- 
 emn declaration by the notary that the 
 bin has been presented for acceptance or 
 payment and dishonored. So also amongst 
 mariners, a declaration made on oath be- 
 fore a magistrate or notary public in any 
 distant port of the damage likely to en- 
 sue from a ship's delay is termed a pro- 
 test. 
 
 PROTESTATION. A particular form- 
 ula which was used in pleading was so 
 tefmed ; the nature of it may be thus ex- 
 plained : — It is frequently expedient for 
 a party to plead in such a manner as to 
 avoid any implied admission of a fact 
 which cannot with propriety or safety be 
 positively affirmed or denied; and this 
 might be done by the party interposing 
 an oblique allegation or denial of some 
 fact, protesting that such a matter did or 
 did not exist, and at the same time avoid- 
 ing a direct affirmation or denial ; and 
 this was technically termed a protesta- 
 tion. This, however, by a late rule of 
 Court (Hil. T. 4 WiU. 4) is disallowed. 
 In a demurrer to a bill in the Court of 
 Chancery, the form begins with a protes- 
 tation in this manner : " This defendant 
 by protestation not confessing or acknowl- 
 edging all or any of the matters or things 
 in the said bill of complaint contained to 
 be true in such manner and form as the 
 same are therein set forth and alleged, 
 doth demur," &c. See Hunter's suit in 
 Equity, App. p. 375. 
 
 *PEOTHONOTARY. The title of an 
 officer wlio officiates as chief clerk of some 
 courts. Viner Abr. ; Bouv. Diet. 
 
PROVISIONAL ASSIGNEE.— PUIS DARREIN CONTINUANCE, 
 
 287 
 
 PROTISIONAL ASSIGNEE. An as- 
 signee to whom the property of a bank- 
 rupt was assigned until the regular or 
 permanent assignees were appointed by 
 the creditors. 
 
 PROVISIONS. The nominations to 
 benefices by the pope were so called, and 
 those who were so nominated were termed 
 provisors. Various statutes were passed 
 in the reign of Edward m. forbidding 
 all ecclesiastical persons /rom purchasing 
 these provisions ; see in particular the 
 stats. 35 Edw. 3, st. 6, and 37 Ever. 3, 
 St. 1, which are pre-eminently called the 
 Statutes of Provisors. 
 
 See, also, title Pk^mttnikb. 
 
 PROVISO. A condition or provision 
 which is inserted in deeds, and on the 
 performance or non-performance of which 
 the validity of the deed frequently de- 
 pends ; it usually begins with the word 
 "provided." Thus, in leases there is 
 usually a proviso that if the rent be un- 
 paid for the space of twenty-one days 
 after the day appointed for the payment 
 of it, then it shall be lawful for the lessor 
 to enter into possession of the premises 
 (4 Cruise, 376). So in mortgage deeds, 
 that part which provides that on payment 
 of the mortgage-money and interest and 
 costs by the mortgagor, the mortgagee 
 shall re-convey the estate to the mort- 
 gagor, is termed the proviso for redemp- 
 tion, because it is by virtue of that pro- 
 viso that the mortgagor is empowered to 
 redeem his estate. 
 
 See, also, title Pkoviso, TuiAii by. 
 
 PROVISORS : See title Pbotisions. 
 
 PRO VISOR, TRIAL BY. In all cases 
 In which the plaintiff, after issue joined, 
 does not proceed to trial, when by the 
 course and practice of the Court he rjight 
 have done so, the defendant may, if he 
 wishes, give the plaintiff notice of trial, 
 and proceed to trial as in ordinary cases ; 
 this is termed a trial by proviso. It is so 
 called because in the distringas to the 
 sheriff there is a proviso that promded 
 two writs shall come to his hands he shall 
 execute one of them only (2 Arch. Prac. 
 1492-3). But as this mode of proceed- 
 ing is tedious and expensive, the defend- 
 ant in ordinary cases more usually takes 
 proceedings under the C. L. P. Act, 1852, 
 s. 101, to compel the plaintiff to proceed 
 to trial. 
 
 PUBLIC ACT OF PARLIAMENT is 
 
 an Act which concerns the whole com- 
 
 Public Act of Parliament. — (Cont'd.) 
 munity, and of which the Courts of Law 
 are bound judicially to take notice. See, 
 for distinction between a Public and Pri- 
 vate Act, title PKrvATB Act of Paklia- 
 MBNT. See, also, title Pbivatk Bills. 
 
 PUBLICATION. This word, as ap- 
 plied to the depositions of witnesses in a 
 suit in Chancery, signified the right which 
 was exercised by the clerks in pourt, or 
 the examiner, of openly showing the de- 
 positions as taken at the examination of 
 such witnesses. Th^re was a limited 
 time only, namely, eight weeks after issue 
 joined, within which this public showing 
 of the depositions was permitted to be 
 made ; after which time publication was 
 said to have passed. But the Court would 
 enlarge the time for publication, and lat- 
 terly even upon summons at chambers. 
 The closing of the time for taking evi- 
 dence under the modern practice is tl^e 
 same thing as the passing of pubUcation 
 under the former. 
 
 PUBLISH. The publishing of a wiU 
 by a testator signified the declaration 
 which he made (usually at the time of 
 signing it) in the presence of a proper 
 number of vritnesses), that it was his last 
 will and testament. But under the new 
 Wills Act, 1 Vict. c. 26, no such publica- 
 tion is now necessary to the validity of a 
 will, s. 13. 
 
 PUIS DARREIN CONTINUANCE 
 
 {dnee the last adjownment or contimiance). 
 By the ancient practice, when the adjourn- 
 ments of the proceedir^ took place for 
 certain purposes from one day or one 
 term to another, there was always an en- 
 try made on the record expressing the 
 ground of the adjournment, and appoint- 
 ing the parties to re-appear at. a given 
 day, which entries were called continu- 
 ances. In the intervals between such 
 continuances and the day appointed the 
 parties were of course out of Court, and 
 consequently not in a situation to plead. 
 But it sometimes happened, that after a 
 plea had been pleaded, and while the 
 parties were out of Court, in consequence 
 of such a continuance, some new matter 
 of defense arose which did not exist be- 
 fore the last continuance, and which the 
 defendant consequently had had no op- 
 portunity of pleading before that time. 
 This new defense he was therefore entitled, 
 at the day given for his re-appearance, to 
 plead, as a matter that had happened 
 after or since such last continuance (puis 
 
288 
 
 PUISNE. — PUTTENG IN SUIT. 
 
 Puis Darrein Continuance. — (Oonffd.) 
 darrein eonUimanee) ; and it was, there- 
 fore, termed a plea pim d/Mrein conUim- 
 tmce. And under the C. L. P. Act, 1853, 
 s. 69, in cases in which & ■plea, puis darrHn 
 eontimumee has heretofore been plead- 
 able in banc or at nisi prius, the same de- 
 fense may be pleaded, with an allegation 
 that the matter arose after the last plead- 
 ing; but no such plea shall be allowed 
 unless accompanied with an affidavit that 
 the matter thereof arose within eight days 
 next before the pleading of such plea, or 
 unless the Court or a judge shall other- 
 wise order. 3 Arch. Pr. 930. 
 
 See title CoifTtNTTAHCE. 
 
 PUISNE (Pr. putne, younger, subordi- 
 nate). Thus aU the judges, excepting 
 the chiefs, are termed puisne judges; that 
 is, they are subordinate to their respect- 
 ive chiefs. As to muUer puisne, see title 
 
 ElGKE. 
 
 * PUISSANCE PATEENELLE. In 
 
 French Law the male parent has the fol- 
 lowing rights over the person of his 
 child: — (1.) If child is under sixteen 
 years of age he may procure bim to be 
 imprisoned for one month or under; (3.) 
 If child is over sixteen and under twenty- 
 one, he may procure an imprisonment for 
 six months or under, with power in each 
 case to procure a second period of im- 
 prisonment. The' female parent, being a 
 widow, may, with the approval of the 
 two nearest relations on the father's side, 
 do the like. 
 
 The parent enjoys also the following 
 rights of property over his child, viz., a 
 right to take the income until the child 
 attains the age of eighteen years, subject 
 to maintaining the child and educating 
 him in a suitable manner. 
 
 PUR AUTRE TIE (for the Ufe of amr 
 
 other). An estate pwr a/ai/re nie is an es- 
 tate which endures only for the life of 
 some particular person. Thus, if A. lease 
 lands to B. to hold and enjoy them for 
 or during the life of C, B. is said to have 
 an estate pw autre vie, that is, during the 
 life of another, viz., the life of C. ; and 
 B. is also then called, in respect of his 
 interest in such lands, a tenant pur autre 
 vie, and C, for or during whose Ufe B. 
 holds his lands, is termed the cestui que 
 vie. 
 
 See, also, title Estates. 
 
 PURCHASE. The word "purchase" 
 is used in law in contradistinction to de- 
 scent ; and in any other mode of acquir- 
 
 Pnrchase. — (Oontimued.') 
 ing real property than by the common 
 course of inheritance. So that the word 
 is not merely used in its popular sense, 
 viz., that of buying for a sum of money, 
 but implies any mode of acquiring prop- 
 erty except by descent. Thus, if a per- 
 son acquire real property by gift, grant, 
 or by devise, or by any other mode (ex- 
 cepting descent), and which does not even 
 subject him to the payment of any sum 
 of money for suth property, he is stiU in 
 legal language said to acquire such prop- 
 erty by purchase. The difference between 
 the acqvdsition of an estate by descent 
 and by purchase consists principally in 
 two points: (1.) That by purchase the 
 estate acquires a new inheritable quality, 
 and is descendible to the owner's blood 
 in general. (3.) That an estate taken by 
 purchase will, not make the person who 
 acquires it answerable for the acts of his 
 ancestors, as an estate by descent will. 
 3 Cruise, 451, 453. 
 
 *PURPARTT: See title Poukpabtt. 
 
 PURPRESTURE, or PURPRESTER. 
 
 A word derived from the Pr. pourpris, 
 which signifies to take from another and 
 appropriate to oneself; hence a perpres- 
 ture, in a general sense, signifies any such 
 wrong done by one man to another. 
 Purpresture in a forest signified any en- 
 croachment upon the king's forest, whether 
 by building, inclosing, or using any lib- 
 erty without a lawful warrant to do so. 
 Les Termes de la Ley. 
 
 PURVIEW. The purview of an Act 
 of Parliament is that part of it which be- 
 gins with the words " Be it enacted," &c 
 Cowel. 
 
 PUTATIVE FATHER. The alleged 
 or reputed father of an illegitimate cmld 
 is so called. 
 See, also, titles Affiliation; Bastardy. 
 
 PUTTING IN SUIT. As applied to a 
 bond, or any other legal instrument, sig- 
 nifies bringing an action upon it, or mak- 
 ing it the subject of an action. Thus in 
 43 Geo. 3, c. 99, it is enacted that the 
 collectors appointed by the commission- 
 ers of taxes shall give security by a joint 
 and several bond, with two sureties, &c., 
 "provided always that no such bond shall 
 be^Mi in suit {i. e., be made the subject 
 of an action) against any surety or sure- 
 ties for any deficiency other than what 
 shall remain unsatisfied after the sale " of 
 the defaulting collector's goods. 
 
QUALIFIED FEB. — QUARTEE SESSIONS. 
 
 289 
 
 Q.. 
 
 QUALIFIED FEE : &« title Base Fee. 
 
 QUAMDIU SE BENE GESSERIT (as 
 
 long as Tie conducts himself well). A clause 
 frequently inserted in the grant of offices, 
 &c., by letters patent, and signifying that 
 the party shall hold the same as long as 
 he behaves himself weU {guamdiu seoene 
 gesserif) (Co. 4 Inst. 117 ; Cowel). Under 
 the Act of Settlement (12 & 13 Will. 3, c. 
 2), the judges are ma(7e to hold office 
 upon the like terms, namely, qtM/mdiu se 
 
 QUANDO ACCIDERINT (when they 
 may happen). Judgment of assets quando 
 a,cdderint is a judgment which is some- 
 times signed against an executor, and 
 ■which empowers the party so signing it 
 to have the benefit of assets which may 
 at any time afterward come to the hands 
 of the executor, or whenever they may 
 happen (2 Arch. Pract. 1329). The plain- 
 tiff, having obtained a judgment of this 
 sort, may afterward, upon the assets hav- 
 ing come to the defendant's hands, pro- 
 ceed against him by sd.fa. to obtain pay- 
 ment of his debt. 
 
 QUANTUM MERUIT (as much as he 
 deserved). These words are thus explain- 
 ed by Blackstone : " If I employ a person 
 to transact my business for me or perform 
 any work, the law implies that I under- 
 took or assumed to pay him so much as 
 his labor deserved; and if I neglect to 
 make him amends, he has a remedy for 
 this injury by bringing his action on the 
 case upon this impued aasmngpiai or prom- 
 ise ; wherein he is at liberty to suggest 
 that I promised to pay him so much as he 
 reasonably deserved ; '| and this action on 
 the case is thence termed an action of as- 
 swmpsiit on a qtumtum meruit, that is, an 
 action for breach of my promise to pay 
 him as much as he deserves. But this 
 assu/mpdt may be excluded by 'special 
 agreement. (See Cutter v. Powell, 3 Sm. 
 L. C. 1, and notes thereto.) There is 
 also an action of assumpsit on a qua/ntwm, 
 valebat (i. e., as much as it was worth), 
 which is very similar to the former, being 
 only where one takes up goods or wares 
 of a tradesman without expressly agree- 
 ing for the price. There the law con- 
 cludes that both parties did intentionally 
 agree that the real value of the goods 
 should be paid, and therefore an action 
 may be brought for the breach of the im- 
 plied promise to pay as much for the 
 goods as they were worth. 
 
 QUANTUM VALEBAT: See title 
 Quantum Meruit. 
 
 * QUARE CLAUSUM FREGIT (where- 
 fore he IroTce the dose). That species of 
 the action of trespass which has for its 
 object the recovery of damages for an 
 unlawful entry upon another's land is 
 termed an action of trespass qua/re doMsv/m 
 f regit; "breaking a close" being the 
 technical expression for an unlawful entry 
 upon land. The language of the decla- 
 ration in this form of action is " that the 
 defendant with force of arms broke and 
 entered the close " of the plaintiff. 
 
 The foundation of this action is posses- 
 sion in the plaintiff, which must be actual, 
 not merely constructive possession; in the 
 action of trespass to personal property, on 
 the other hand, i. e., the action of tres- 
 pass deionis asportatis, although the foun- 
 dation of the action is also possession, yet 
 that possession may be either actual or 
 constnietise. 
 
 QUARE EJECIT INFRA TERMI- 
 
 NIJM. A writ which lay for a lessee 
 when he was cast out or ejected from his 
 farm before the expiration of his term, 
 against the lessor or feoffee who so eject- 
 ed him, to recover the residue of his term, 
 and also damages for being so ejected. 
 Cowel ; Les Termes de la Ley. 
 
 QUARE IMPEDIT («>%, or wherefore, 
 he hinders). The action of Qwar* vmpedAt 
 was the remedy by which a party whose 
 light to a benefice was obstructed recov- 
 ered the presentation, and was the form 
 of action constantly adopted to try a dis- 
 puted title to an advowson. But Sy the 
 C. L. P. Act, 1860, 8. 26, no <^an-e impe- 
 dit shall be brought after the commence- 
 ment of that Act, but the action may be 
 commenced by the ordinary writ of sum- 
 mons, with an indorsement thereon that 
 the plaintiff intends to declare in Qum-e 
 impeddt. 1 Arch. Prac. 3. 
 
 QUARREL (querela d querendo). This 
 word is said to extend not only to real 
 and personal actions, but also to the 
 causes of actions and suits ; so that by the 
 release of all quarrels, not only actions 
 pending, but also causes of action and 
 suit are released; and quarrels, contro- 
 versies, and debates are in law considered 
 to have one and the same signification. 
 Co. Litt. 8, 153 ; Les Termes de la Ley. 
 
 QUARTER SESSIONS: See title Ses- 
 sion. 
 
290 
 
 QUASH. — QUIA EMPTOEES. 
 
 QUASH {foimmfaeer^. To make void, 
 to cancel, to abate. Thus, to quash a plea, 
 an order of sessions, <fco., is to annul or 
 cancel the same. 
 
 QUASI CONTBACT. An impUed con- 
 tract. Maine, in his Ancient Law, ob- 
 jects that the implied contracts of Eng- 
 lish Law are different from the quad con- 
 tracts of Roman Law, but his opinion is 
 not correct ; for the particular instances 
 given in Just. iii. 27 (38), of quad con- 
 tracts in Boman Law are all of them good 
 as implied contracts in English Law. It 
 is true, however, that there are in Roman 
 Law, a species of contracts, not being 
 quasi contracts, which are called implied 
 contracts (tocjiS comoenire), e. g., in Dig. 
 ii. 14, 4, where a landlord's right to take 
 the furniture of his tenant in distress for 
 rent is instanced as an implied contract. 
 
 * QUASI OFFENSE. An offense for 
 which a person other than the one com- 
 mitting it is responsible, the act being 
 committed by the command of the person 
 responsible. 
 
 QUE ESTATE. A term used in plead- 
 ing, the nature of which may be thus ex- 
 plained: Formerly it was necessary, when 
 there was occasion to plead a prescriptive 
 right to any easement, or profit, or bene- 
 fit arising out of land (as, for example, a 
 prescriptive right of way or common), to 
 allege seizin in fee of the land in respect 
 of which the right was claimed, and then 
 to allege that the plaintiff and all those 
 whose estate he had in the land, had 
 from time immemorial exercised the 
 right in question, and this was termed 
 prescribing in a que estate, from the word 
 AND (,que). 
 
 QUEEN'S ADVOCATE. An advocate 
 of the Civil Law Bar appointed by the 
 Crown to maintain its interests and to 
 advise it in all matters in which the learn- 
 ing of the Civil Law is involved. Those 
 matters include important questions of 
 international law, upon wluch (as in 
 framing treaties with foreign nations) 
 the counsel of the Queen's Advocate is 
 frequently taken by the government. In 
 the legal profession this officer holds a 
 distinguished place. He now ranks next 
 in dignity to the Attorney and Solicitor- 
 Generals, and formerly, indeed, the 
 Queen's Advocate took precedence even 
 of them. The Queen's Advocate used to 
 practice in the Ecclesiastical Courts at 
 Doctors' Commons, and at the present 
 
 Queen's Advocate. — {OonUmieA.) 
 day confines his practice, as a rule, to the 
 Courts of Probate, Divorce and Admi- 
 ralty. 
 
 QUEEN'S BENCH, COUBT OF: See 
 
 title King's Bench. 
 
 QUEEN'S BENCH PBISON. Some- 
 times called the Prison of the Marshalsea 
 of the Court of Queen's Bench, was a 
 prison for debtors -and for persons con- 
 fined under the sentence, or charged with 
 the contempt of Her Majesty's Court of 
 Queen's Bench. This prison, the Fleet, 
 and the Marshalsea Prisons, were, by the 
 5 Vict. c. 32, consolidated under the title 
 of the Queen's Prison, which latter is by 
 the above Act appointed to receive all 
 the prisoners formerly distributed among 
 the three. 6 Jurr. 254. 
 
 QUEBELA. An action preferred in 
 any Court of justice in which the plaintiff 
 was querens, or complainant, and his brief, 
 complaint or declaration was querela, 
 whence the use of the word ' ' quarrel " 
 in law. Quietm esse d qitereld sometimes 
 meant to be exempted from the customary 
 fees paid to the king or lord of a Court 
 for liberty to prefer such an action ; but 
 more commonly it meant to be freed from 
 the fines or amercements which would 
 otherwise have been imposed upon the 
 exempted person for trespasses and such 
 Uke offenses. Cowel. 
 
 QUI TAMj Suing. Prosecuting a popu- 
 lar action for the purpose of recovering 
 the penalty is called suing qui tarn, be- 
 cause the prosecutor or informer sues as 
 well for the Crown as he does for him- 
 self. 
 
 See title Qui Tam Actions. 
 
 QUI TAM ACTIONS. Those kinds of 
 popular actions in which one part of the 
 penalty recovered is given to the king, to 
 the poor, or to some public use, and the 
 other part to the informer or prosecutor. 
 It is called a qui tarn action, because it is 
 brought by a person " qui tarn pro domino 
 rege, &o., quam pro se ipso in Tiac parte 
 sequitur " (i. e., who sues as well for our 
 lord the king as for himself). The case 
 of Thomas v. Sorrell (Vaughan), which is 
 otherwise famous as having first stated 
 the true nature and Umits of the king's 
 dispensing power, was a qui tarn action. 
 
 QUIA EMPTOBES (pecause pta-chasera). 
 The stat. 18 Edw. 1, c. 1, is so called. 
 This statute took from the tenants of 
 common lords the feodal liberty they 
 
QUIA TDIET. — QUOAD. 
 
 291 
 
 Quia Emptores. — ( OonUnued.) 
 claimed of disposing of part of their 
 lands to hold of themselves, and instead 
 of it gave them a general liberty to sell 
 all or any part, to hold of the next 
 superior lord, which they could not have 
 done before mthout consent (Wright's 
 Ten. 161 ; 4 Cruise, 6). The effect of the 
 statute was twofold — (1.) To facilitate 
 the alienation of fee simple estates ; and 
 (2.) To put an end to the creation of 
 any new manors, i. e., tenancies in fee 
 simple of a subject. 
 
 See title Alibnation. 
 
 * QUIA TIMET. A preventive or an- 
 ticipatory remedy. Coke Litt. 100. 
 
 QUID PRO QUO (what for wJiaf). Used 
 in law for the giving one valuable thing 
 for another. It is nothing more than the 
 i&utual consideration which passes be- 
 tween the parties to a contract, and which 
 renders it valid and binding. Cowel. 
 
 QUIETUS. A word which was com- 
 monly used by the clerk of the pipe and 
 auditors in the Exchequer in their acquit- 
 tances or discharge given to accountants 
 signifying to be freed, acquitted, or dis- 
 charged. Cowel. 
 
 See, also, title Cbown' Debts. 
 
 QUIT CLAIM. The release or acquit- 
 ting of one man by another, in respect of 
 any action that he has or might have 
 against him, also acquitting or giving up 
 one's claim or title. Bracton, b. 5, tract. 
 5, c. 9, num. 6 ; Zes Termes de la Ley. 
 
 QUIT RENT (guietm redditut). Cer- 
 tain established rents of the freeholders 
 and ancient copyholders of- manors are 
 denominated quit rents, quieU redditws, 
 because thereby the tenant goes quit and 
 free of all other services. 3 Cruise, 314. 
 See, also, title Ebnts. 
 
 QUO MINUS. A writ upon which all 
 proceedings in the Court of Exchequer 
 were formerly grounded, in which the 
 plaintiflE suggested that he was the king's 
 farmer or debtor, and that the defendant 
 had done him the injury or damage com- 
 plained of, qiu> minus suffleiens exsUtit, by 
 which he was th^ less able to pay the king 
 his debt or rent. It was also a writ 
 which formerly lay for one who had a 
 grant of house-bote and hay-bote in an- 
 other man's woods against the grantor 
 for making such waste as interfered with 
 ,ihe grantee's enjoyment of his grant. 
 Cowel. 
 
 QUO WARRANTO. A writ which 
 lies for the king against any one who 
 claims or usurps any office, franchise, or 
 liberty, to inquire by what authority he 
 supports his claim, in order to determine 
 the right. It lies also in case of non-user 
 or long neglect of a franchise, or misuser 
 or abuse of it, being a writ commanding 
 the defendant to show by what warrant 
 he exercises such a franchise, having 
 never had any grant of it, or having for- 
 feited it by neglect or abuse (Finch's L. 
 823). An information in the nature of a 
 qiu) wa/rranto may also be laid under the 
 stat. 9 Anne, c . 30, but it is in the dis- 
 cretion of the Court to grant it or not 
 (Bex V. Trecener, 3 B. & A. 479). The 
 information will generally be granted 
 where the right in dispute depends upon 
 a doubtful point of law, in order to its 
 being finally determined {Bex v. darter, 
 Lofft. 516). And generally a jMO Morrasrato 
 will lie for usurping any office, whether 
 created by charter of the Crown alone, or 
 by the Crown with the consent of Parlia- 
 ment, provided the office is of a public 
 nature, and a substantive office, not mere- 
 ly a function discharged at the will or 
 pleasure of others (see Da/rley v. Beg. [in 
 error], 13 01. & F. 530), which was a case 
 regarding the office of treasurer of the 
 public money of the county of the city of 
 Dublin. 
 
 QUO WARRANTO, CASE OF. The 
 case which is pre-eminently so-called was 
 a case brought in 1681 by the Attorney- 
 General, on behalf of the king against the 
 corporation of the City of London, alleg- 
 ing breaches of trust iu the officers of the 
 corporation' and seditious opposition to 
 the Crown, and requiring the City to 
 show the tenure of its liberties, with a 
 view to the justification of its proceed- 
 ings. The offenses alleged were : 
 
 (1.) That the City had imposed taxes 
 without authority ; and 
 
 (3.) That the City had concocted sedi- 
 tious petitions to the king. 
 
 Judgment was given for the Crown, and 
 against the City ; and the corporation not 
 submitting within the time limited for 
 their so doing, their liberties were taken 
 from them, and their charter was forfeited. 
 These liberties, together with their char- 
 ter, were not restored until 1688, when 
 James 11., under the immediate fear of 
 his own expulsion, restored them. 
 
 WOXH {asto, coneemiTijg, &e.). A pro- 
 hibition quoad is a prohibition as to cer- 
 tain things amongst others. Thus, where 
 
292 
 
 QUOD EI DEFORCEAT. — RAPPOETS. 
 
 Quoad. — ( Ooritinued.) 
 a party was complained against in the 
 Ecclesiastical Court for matters cogniza- 
 ble in the temporal Courts, a prohibition 
 quoad these matters issued, i.e., as lomich 
 maUerrs the party was prohibited prosecut- 
 ing his suit in the Ecclesiastical Court. 
 The word is also frequently applied to 
 other matters than to prohibitions. See 
 2 Roll. Abr. 315, b. 10; Vin. Abr. tit. 
 "Prohib."E. a. 7. 
 
 QUOD EI DEFORCEAT. A writ that 
 lay for a tenant in tail, tenant in dower, 
 or tenant for life, who had lost their 
 lands by default, against him who recov- 
 ered them, or against his heir. Reg. 
 Orig. 171. 
 
 QUOD PEKMITTAT. A writ that lay 
 for the heir of him who was disseized of 
 his common of pasture against the heir of 
 the deceased disseizor. Cowel. 
 
 QUOD PERMITTAT PROSTERN- 
 ERE. A writ which lay against any per- 
 son who erected a building, though on 
 his own ground, so near to the house of 
 another that it overhung it, and became 
 a nuisance to it. Tomlins. 
 
 QUORUM ifif whom). Among the jus- 
 tices of the peace appointed by the king's 
 commission, there were some who were 
 more eminent for their skill and discre- 
 tion than others, one, or some of whom, 
 on special occasions the commission ex- 
 pressly required should be present, and 
 without whose presence the others could 
 not act; and who were thence termed 
 justices of the quorum, from the language 
 of the commission, which ran thus: 
 '■^quorum aUquem 'eeatrum A. B., 0. D., 
 &c., unwn esse volurmis'" (i. e., of whom 
 we wish some one of you, A. B., 0. D., 
 &c., to be present). The word is used in 
 a similar sense in the following passage : 
 "By charter 3 Edw. 4, the mayor, re- 
 corder, and aldermen that have been 
 mayors, shall be conservators of the 
 peace within the city ; and they, or four 
 of them, quorum, the mayor to be one, 
 shall be justices of oyer and terminer 
 there." Com. Dig. tit. London (0.), 
 Mayor. 
 
 QUOUSQUE {wiUl). Thus a seizure 
 quouique by the lord of a manor on de- 
 fault of the heir coming in to be admit- 
 ted, means a seizure until the heir so 
 comes in ; the lord being entitled to do 
 this after three proclamations made at 
 three consecutive Courts (Watkins on 
 
 Qnousqne. — (OorMrmedj.) 
 Copyholds, 330, tit. "Admission;" 
 Carth. 41; 1 Lev. 63; 3 T. R. 163). A 
 prohibition quouaque is a prohibition by 
 which something is forbidden or prohib- 
 ited until a certain time. Thus, if in 
 trying temporal incidents in the Ecclesi- 
 astical Courts, they rejected a mode of 
 proof sufficient at Common Law, they 
 might have been prohibited qwmsque 
 (until) they submitted to a legal mode of 
 trial. Telv. 93. 
 
 RACHAT. In French Law is the right 
 of re-purchase which the vendor in 
 English Law may reserve to himself. It 
 is also called remire (see that title). 
 
 RACK-RENT. A rent of the full 
 annual value of the tenement, or near it. 
 
 * RAGEMAN. A statute of justices 
 assigned by Edward I. and his councU, 
 to hear and determine all complaints of 
 injuries done throughout the realm, 
 within the five years next before Michaet- 
 mas, in the fourth year of his reign. 
 Jacob Diet. 
 
 RAISING A USE. Creating, estab- 
 lishing, or calling a use into existence. 
 Thus, ii a man conveyed land to another 
 in fee, without any consideration. Equity 
 would presume that he meant it to the 
 use of himself, and would therefore raise 
 an implied'use for his benefit. See title 
 Use ; also Saunders on Uses and Trusts, 
 c. 1, s. 9, 5th edit. ; 1 Cru. Dig. 443. 
 
 RANSOM. In law this word is fre- 
 quently used to signify a sum of money 
 paid for the pardoning of some great 
 offense : and the distinction made between 
 a ransom and an ameroiament is, that a 
 ransom is the redemption of a corporal 
 punishment, whereas an amerciament is 
 a fine by way of penalty for an offense 
 committed. Litt. 137; Cowel. 
 
 RAPE. A criminal offense, consisting 
 in the penetration of a female's parts 
 against her will or without her consent. 
 It is punishable in England with penal 
 servitude for life, or for any period not 
 under five years, or with imprisonment 
 not exceeding two years, and with or 
 without hard labor. See, generally. Arch. 
 Crim. Pleading. 
 
 RAPPORTS. This is in French Law 
 the duty incumbent upon a legatee to 
 
RATES.— KEAL. 
 
 293 
 
 Bapports. — (OovMimieB,^ 
 
 bring into hotchpot such part of the 
 
 legacy as he has akeady received by gift 
 
 intev vivos. 
 
 RATES; 
 
 I title Taxation ; Taxes. 
 
 RATIONABILI PARTE BONORUM. 
 
 A writ that lay for the mfe against the 
 executors of her husband, to have the 
 third part of his goods after his just 
 debts and funeral expenses had been paid. 
 F. N. B. 133 ; Les Termes de la Ley. See, 
 also, title Rbasonablb Part. 
 
 RATIONALIBUS DITISIS. A writ 
 that lay for the lord of a seigniory, when 
 he found that any portion of his seigniory 
 or his waste had been encroached upon 
 by the lord of an adjacent seigniory, 
 ° against him who had so encroached, in 
 order to settle their boundaries. Cowel; 
 F. N. B. 138. 
 
 RATIONALIBUS ESTOVERUM. A 
 
 phrase anciently applied to alimony. 
 Jacob Diet. 
 
 RATIFICATION. This is authorizing 
 subsequently what has been already done 
 without authority ; in contract law it is 
 equivalent to a prior request to make the 
 contract ; and in the law of torts it often 
 has the eSect of purging the tort. MaU 
 V. Piakershia, 1 B. & B. 383. 
 
 RAVISHMENT DE GARD (rcmishr 
 ment of Ward). A writ that lay for the 
 guardian by knight service or in socage 
 against him who took away from him the 
 body of his ward. 13 Car. 3, c. 24; 
 Cowel. 
 
 RE (in. the matter of). Thus, Re- Vivian 
 signifies In the matter of Vivian, or in 
 Vivian's case. 
 
 READERS. In the Middle Temple 
 those persons are so called who are ap- 
 pointed to deliver lectures or readings at 
 certain periods during the term. The 
 clerks in holy orders who read prayers 
 and assist in the performance of divine 
 service in the chapels of the several inns 
 of court are also so termed. See 5 
 Reeve's Eng. Law, 347 (1st edit.). 
 
 READING IN. A new incumbent of 
 a benefice is to read, within two months 
 of actual possession, the morning and 
 evening prayers, and declare his un- 
 feigned assent and consent thereto pub- 
 licly in the church, before the congre- 
 gration. He is also to read the thirty-nine 
 articles in the church in the time of com- 
 
 Reading In. — {OonUnued.) 
 
 mon pi:ayer, and to delare his unfeigned 
 assent thereto, within two months after 
 induction; and to read in his church, 
 within three months after institution or 
 collation, the declaration appointed by 
 the Act of Uniformity, and also the certi- 
 ficate of his having subscribed it before 
 the bishop. The obseijyance of the above 
 forms by a new incumbent constitutes 
 what is termed " reading in.?' Rog. Ecc. 
 Law ; Burns' Ecc. Law. 
 
 REAL. Real and personal property is 
 the most fertile division of things which 
 are the subjects of property in English 
 law. The division is substantially co-in- 
 cident with that into lands, tenements, 
 and hereditaments, on the one hand, and 
 goods and chattels on the other. In the 
 case of each division, the principle under- 
 lying the division is feudal ; it is directly 
 so in the case of the division into lands 
 and chattels, and indirectly so in the 
 case of the division into real and personal 
 property. As law and society progressed, 
 it became more and more apparent that 
 the essential difference between lands and 
 goods was to be found in the remedies for 
 the deprivation of either; that as to the 
 one, the real land, i. e., the land itself 
 could be recovered, and that as to the 
 other, proceedings could be had against 
 the person only. The two great classes of 
 property accordingly began to acquire 
 two other names that were characteris- 
 tic of this difference, and with reference 
 to the remedies for the recovery of each 
 were called respectively real and personal 
 property. The circumstance that a lease- 
 hold interest in land is personal property, 
 is a striking illustration both of the origin 
 and of the principal of this division. It 
 is an illustration of the origin, because 
 originally all leases were farming leases, 
 and the farmer was only the bailifif or 
 agent of his landlord, who warranted 
 him in the quiet possession of the land, 
 and against whom, in the case of an eject- 
 ment, the farmer had his only remedy in 
 a personal action for damages ; it is also 
 an illustration of the principle of (^le 
 division, because the farmer in the like 
 case of an ejectment had no action for 
 the recovery of the land itself, but at the 
 most (as already stated) an action against 
 his landlord personally, whereby he com- 
 pelled the latter either to take proceed- 
 ings for the restitution of the land or 
 else to compensate in damages for the 
 disturbance of the quiet possession. 
 
294 KBAL REPKESENTATTVE.— RECEIVING STOLEN GOODS. 
 
 REAL REPRESENTATIVE. He who 
 
 represents or stands in the place of 
 another with respect to his real property, 
 is so termed, in contradistinction to him 
 who stands in the place of another with 
 regard to his personal property, and who 
 is termed the personal representative. 
 Thus, the heir is the representative of his 
 deceased ancestor. 
 
 See, also, title*BEPKESBNTATioN. 
 
 REALTY. That which relates to real 
 
 Eroperty (i «., to lands, tenements, and 
 ereditaments), in contradistinction to 
 that which relates to personal property 
 (i. e., to moveable things in general), 
 which is termed personalty. 
 
 REASONABLE PART. The shares to 
 which the wife and children of a deceased 
 person were entitled, were called their 
 reasonable parts; and the writ de raUori- 
 dMU pa/rte bonorwn was given to recover 
 them. F. N. B. 132. 
 
 RE-ATTACHMENT. A second attach- 
 ment, or an attachment of a person who 
 has been previously attached, and has 
 been dismissed the Court without day, 
 from the happening of some casual cir- 
 cumstance. Cowel. 
 
 REBUTTER (from the Er. bouter, that 
 is, to repel, to put back, to bar, &c.). In 
 an action at law the alternate allegations 
 of fact (i. «., the pleadings) are denomi- 
 nated as follows : declaration, plea, repli- 
 cation, rejoinder, surrejoinder, rebutter, 
 and surrebutter. The declaration is the 
 statement of the plaintifi's cause of com- 
 plaint ; the plea is the defendant's answer 
 to the declaration ; the replication is the 
 plaintifiE's answer or reply to the plea; 
 the rejoinder is the defendant's answer 
 to the replication; the surrejoinder, the 
 plaintiff's answer to the rejoinder; the 
 rebutter the defendant's answer to the 
 surrejoinder; and the surrebutter the 
 plaintiff's answer to the rebutter. 
 
 RECAPTION. Recaption' or reprisal, 
 is a species of remedy by the mere act of 
 the party injured ; and is resorted to when 
 any one has deprived another of his prop- 
 erty in goods or personal chattels, or 
 wrongfully detains one's wife, child, or 
 servant, in which case the owner of the 
 goods, and the husband, parent, or 
 master, may lawfully claim and retake 
 them wherever he happens to find them, 
 so that it be not in a riotous manner, or 
 attended with a breach of the peace, 
 which retaking is termed "recaption." 
 
 Recaption. — ( OovMnued.) 
 There is also a writ of recaption to recover 
 damages against a person who (pending a 
 replevin for a former distress) distrains a 
 man again for the same rent or service. 
 
 RECEIVER. He who receives stolen 
 goods from thieves, and conceals them. 
 There are also other kinds of receivers, as 
 the receiver of the fines, who was an offi- 
 cer who received the money of all such as 
 compounded with the king upon original 
 writs in Chancery: the Receiver-General 
 of the Buchy of Lancaster, who is an 
 officer belonging to Duchy Court, who 
 gathers in all the revenues and fines of the 
 lands belonging to that duchy, and all 
 forfeitures and assessments belonging to 
 the same. There is also a person who is 
 appointed by the Court of Chancery to 
 receive the rents, issues and profits of 
 lands, and the produce and profits of 
 other property which may be the subject- 
 matter of proceedings in that Court, who 
 is called a receiver; this officer has also 
 to manage and take care of such lands 
 and property during the pendency of the 
 suit, and he is appointed by the Court in 
 various cases where it is doubtful to what 
 party the property will ultimately belong ; 
 or where a party from incapacity, such as 
 infancy^ &c.,is incapacitated from receiv- 
 ing the profits of or managing the estate, 
 and the property is in any danger of suf- 
 fering damage from neglect or otherwise 
 in the meantime. 
 
 See, also, next title. 
 
 RECEIVERS AND TRIERS OF PE- 
 TITIONS. The mode of receiving and 
 trying petitions to Parliament was for- 
 merly judicial rather than legislative ; and 
 the triers were committees of prelates, 
 peers, and judges; but their functions 
 have long given way to the authority of 
 Parliament at large. By the House of 
 Lords, however, receivers and triers of 
 petitions are still appointed at the open- 
 ing of every session, as in ancient times. 
 But petitions are, by both houses, con- 
 sidered now in the first instance, and only 
 referred to triers or committees in certain 
 cases. 
 
 RECEIVING STOLEN GOODS. Re- 
 ceiving any chattel, money, valuable se- 
 curity, or other property whatsoever, 
 obtained by felony, knowing the same to 
 have been so feloniously obtaiUed, is a 
 felony, for which the receiver may be in- 
 dicted and convicted either as an acces- 
 sory after the fact to the principal felony, 
 
JIECIDIVB. — RECORD, COURTS OF. 
 
 295 
 
 BeceiTing Stolen Goois. — (Continued.) 
 or as for a substantive felony, and, in the 
 latter case, whether or not the principal 
 felon shall have been previously convicted. 
 The offense is punishable -with penal servi- 
 tude for any period between five and 
 fourteen years, or with imprisonment for 
 two years or under, with or without hard 
 labor, and with or without soUtary con- 
 finement, and (if a male under the age of 
 sixteen years) with or without whipping. 
 24 & 25 Vict. c. 96, s. 91. 
 
 *KECIDITE. The case of one who 
 commits an ofiense after having once 
 been condemned for a previous one. Bouv. 
 Diet. 
 
 BECITAL. The formal statement or 
 setting forth of some matter of fact in 
 any deed or writing, in order to explain 
 the reasons upon which the transaction is 
 founded. The recitals are situated in the 
 premises of a deed ; that is, in that part 
 of a deed between the date and the ha- 
 bendum ; and they usually commence with 
 the formal word "whereas." 4 Cruise. 
 
 RECITE, TO. To state or set forth in 
 any deed or other writing such matters of 
 fact as may be necessary to explain the 
 nature of the transaction, or the reasons 
 upon which it is founded. As used in 
 the practice of conveyancing it is some- 
 what analogous to the word "induce" as 
 used in the practice of pleading. 
 See, also, title Recital. 
 
 RECOGNITORS (recofirmfewes.) A word 
 which was frequently used to signify a 
 jury impaneled upon an assize ; so called 
 because they aclmowledge, e. g., a dis- 
 seizin, by their verdict. Cowel; Bract, 
 lib. 5, tract 3, c. 9. 
 
 8ee title Jxmv, Tbial by. 
 
 RECOGNIZANCE. A recognizance is 
 an acknowledgment upon record of a 
 former debt ; and he who so acknowledges 
 such debt to be due is termed the recog- 
 nizor, or cognizor; and he to whom, or 
 for whose benefit, he makes such acknowl- 
 edgment is termed the recognizee, or cog- 
 nizee. A recognizance is in most respects 
 similar to a bond; the difference being 
 chiefly that a bond is the creation of a 
 new debt; whereas a recognizance is 
 merely an acknowledgment upon record 
 of a debt which was previously due. The 
 form of a recognizance runs thus: — 
 " That A. B. doth acknowledge to owe 
 to C. D. the sum of £100 " ; and it is also 
 conditioned to be void on performance of 
 
 Recognizance. — (^Oontmmed.) 
 the thing stipulated. It is certified to 
 and witnessed by an officer of some Court, 
 and not by the seal of a party, as in the 
 case of deeds strictly so called (4 Cruise, 
 103). Recognizances are also frequently 
 taken from persons, either to secure their 
 prosecution of a suit or their presence in 
 Court upon a certain day, or to secure 
 their careful administration of property 
 intrusted to them in some official capacity, 
 e. g., in the cases of administrators, and 
 also of receivers appointed by the Court 
 of Chancery. 
 
 * RECONVENTION. A cross demand. 
 A term in use in Louisiana and Texas. 
 Burr. Diet. 
 
 RECORD. An authentic testimony in 
 writing contained in rolls of parchment, 
 and preserved in Courts of record. The 
 record of niai prius is an official transcript 
 or copy of the proceedings in an action 
 entered on parchment and sealed and 
 passed, as it is termed, at the proper office ; 
 it serves as a warrant to the judge to try 
 the cause, and is the only document at 
 which he can judicially look for informa- 
 tion as to the nature of the proceedings, 
 and the issues joined between the parties. 
 
 RECORD, COURTS OF. Courts whose 
 acts and judicial proceedings are enrolled 
 ia parchment, called the records of such 
 Courts, and are ^ preserved as a perpet- 
 ual memorial and testimony thereof. All 
 Courts of record are the King's Courts in 
 right of his crown and dignity, and they 
 usually possess, as incident to them, the 
 power to fine and imprison. Several of 
 the King's Courts, however, are not 
 Courts of record ; as the Courts of Equity 
 and the Admiralty Courts, which are at 
 best only quasi of record, or of record to 
 themselves. The distinction between 
 Courts of record and Courts not of record, 
 was introduced soon after the Conquest ; 
 for by an edict of the Conqueror's it was 
 ordained that all proceedings in the King's 
 Courts should be carried on in the Norman 
 instead of the English language, in con- 
 sequence of which the influence of the 
 County Courts, Courts Baron, and other 
 inferior jurisdictions, was much narrowed, 
 for as the judges and suitors of such 
 Courts were ignorant of that language, 
 they were prohibited from recording their 
 acts (3 Ch. Bl. Com. 34 ; Com. Dig. tit. 
 " Chancery "). One of the privileges 
 which attaches to a Court being a Court 
 of record, is the high authority which 
 
296 KECORD, TRIAL BY.— RECTO DE DOTE UNDj; NIHIL HABET. 
 
 Becord, Courts of. — {Contimied.) 
 their records are allowed to possess, their 
 truth not being permitted to be called in 
 question; it being an almost invariable 
 rule that nothing shall be averred against 
 a record, and that no plea, or even proof, 
 shall be admitted to the contrary. Also, 
 a plea of matter of record need not be 
 put in on oath, but is sufficient without 
 oath ; and a decree even of the Court of 
 Chancery, when it has been signed and 
 enrolled (but not sooner), stands on the 
 same footing, at least for all purposes of 
 litigation in .that Court itself. 1 Dan. 
 Ch. Pr. ^95. 
 
 RECORD, TRIAL BY. A species of 
 trial adopted for the purpose of ascertain- 
 ing the existence or non-existence of a 
 record. When a record is asserted by 
 One party to exist, and the opposite party 
 denies its existence under the form of 
 traverse, that there is no such record re- 
 maining in Court as alleged, and issue is 
 joined thereon, this is called an issue of 
 rml tiel record ; and in such case the Court 
 awards a trial by inspection and examina- 
 tion of the record. Upon this the party 
 affirming its existence is bound to pro- 
 duce it in Court on a day given for the 
 purpose ; and if he fail to do so, judg- 
 ment is given for his adversary. This 
 mode of trial is not only that specially 
 appropriated to try an issue of the above 
 kind, but is, in fact, the only legitimate 
 mode of trying such an issue. Co. Litt. 
 117 b, 360 a. 
 
 See, also, title Ntjl Tiel Record. 
 
 BECORDARI FACIAS LOQUELAM. 
 
 An original writ directed to the sheriff to 
 remove a cause pending in an inferior 
 Court to one of the superior Courts ; as 
 from a County Court or Court Baron to 
 the Court of Queen's Bench or Common 
 Pleas. It seems to be called a recordcuri 
 from the circumstance of its commanding 
 the sheriff to whom it is directed to make 
 a record of the proceedings in the Court 
 below, and then to send it up to the su- 
 perior Court. Reg. Orig. ; Cowel. 
 
 RECORDER. A barrister or other 
 person learned in the law, whom the 
 mayor or other magistrate of any city or 
 corporate town (having a jurisdiction, or 
 a Court of record within his precincts) 
 doth by the ^ng's grant associate to him 
 for his better direction in the judicial pro- 
 ceedings of such Court (Cowel). Thus 
 the Recorder of the City of London is 
 practically the judge in the LordMayor's 
 
 Recorder. — ( Oontinued. ) 
 
 Court of the City, although in theory the 
 
 Lord Mayor and Aldermen are the judges 
 
 therein. 
 
 * RECOUPMENT. Reduction of 
 damages in' an action on contract from 
 breach of warranty, or defects in per- 
 formance. See Bonier v. Ohapin, 38 Vt. 
 413, 415; Burr. Diet. 
 
 RECOVERY. A recovery in its most 
 extensive sense is the restoration of a 
 former right by the solemn judgment of 
 a Court of justice. A common recovery 
 was one of the modes of transferring 
 property from one party to another, and 
 is said to have been introduced by the 
 ecclesiastics, in order to avoid the stat- 
 utes of Mortmain, by which they were 
 prohibited from purchasing or receiving, 
 under pretense of a free gift, any lands 
 or tenements whatever. 
 
 RECTO DE ADVOCATIONE ECCLE- 
 
 SI-3E. A writ of right which lay when a 
 man had right of advowson, and the par- 
 son of the church dying, a stranger pre- 
 sented his clerk to the church, and the 
 real patron did not bring his action of 
 gua/re impedit or darrein preiembment within 
 six months, but permitted the stranger to. 
 usurp on him, and so was left to his writ 
 of right only to recover his right. This 
 writ lay only where the patron was enti- 
 tled to the fee in the advowson. Reg. 
 Orig. 39; Cowel. 
 
 RECTO DE DOTE. A writ of right of 
 dower, which lay for a woman who had 
 received part of her dower, and proposed 
 demanding the remainder, against the 
 heir of her husband, or his guardian if he 
 were a ward (Old Nat. Brev. 5 ; Cowel). 
 Under the C. L. P. Act, 1860, s. 26, no 
 writ of right of dower shall be brought 
 after the commencement of that Act in 
 any Court whatsoever ; but instead thereof 
 an action may be commenced by the ordi- 
 nary writ of summons, with an indorse- 
 ment thereon to the effect that the plain- 
 tiff intends to declare in dower ; and all 
 subsequent proceedings therein are, as 
 nearly as may be, to be taken in accord- 
 ance with the C. L. P. Acts, 1852 and 
 1854. 
 
 RECTO DE DOTE UNDE NIHIL 
 HABET. A writ of right of dower, which 
 lay when a man who had divers lands and 
 tenements had assigned no dower to hia 
 wife, and she was thereby driven to sue 
 for her thirds against the heir or his 
 
RECTO DE RATIONABILI PARTE.— RE-DISSEIZIN. 
 
 297 
 
 Becto De Dote, etc. — (^Contimted.) 
 
 faardian (Reg. Orig. 170 ; Cowel). Un- 
 er the C. L. P. Act, 1860, the like 
 provisions are made regarding this 
 action as are stated in' the title last 
 preceding to have been made by the 
 same Act regarding the writ of right of 
 dower. 
 
 BECTO DE RATIONABILI PARTE. 
 
 A writ that lay between privies in blood, 
 as brothers in gavelkind, or sisters, co- 
 heiresses, or other co-parceners, for land 
 in fee simple. As for instance, if a man 
 leased his land for life, and afterward 
 died, leaving issue two daughters, and 
 after that, the tenant for life died also, 
 and then one sister entered upon the 
 whole of the land, and so deforced the 
 other, then the sister so deforced might 
 have had this writ to recover part. F. 
 N. B. 9; Cowel. 
 
 BECTO QUANDO DOMINUS BE- 
 MISIT. A writ of right, which lay where 
 lands or tenements that were in the seign- 
 iory of any lord were in demand by a 
 writ of right ; for if in such case the lord 
 held no court, or otherwise, at the prayer 
 of the demandant, sent to the King's 
 Court his writ, to put the cause thither 
 for that time (reserving to him at other 
 times the right of his seigniory), then 
 this writ issued out for the other party. 
 Reg. Orig. 4; Cowel. 
 
 RECTO SUB DI8CLAIMEB. A writ 
 that lay for a lord who had avowed upon 
 his tenant in the Court of Common Pleas, 
 and such tenant had disclaimed to hold 
 of him, on which disclaimer the lord 
 might have this writ ; and if he averred 
 and proved that the land was holden of 
 him, he should recover the land forever. 
 Old Nat. Brev. 150; Cowel. 
 
 BECTOB. A governor. Rector eccle- 
 sicB pa/rocMalu is he who has the cure or 
 charge of a parish church, qvi tantwmjvs 
 in eacledd parocJiiaM habet^qmmPwm praAo/- 
 tus in eccleHd collegiatd. It appears that 
 when dioceses were divided into parishes, 
 the clergy who had the charge in those 
 places were called rectors; afterward, 
 when their rectories were appropriated to 
 monasteries, &c., the monks kept the 
 great tithes, but the bishops were to take 
 care that the rector's place should be sup- 
 plied by another, to whom he was to allow 
 the small tithes for his maintenance ; and 
 this was the vicar. 
 
 See title Advowson. 
 
 BECTOBT. This word appears to be 
 used for an entire parish church, with all 
 its rights, glebes, tithes, and other profits 
 (Spelm). The word was often used to 
 signify the rector's manse, or parsonage 
 house. Ken. Par. Antiq. 649. 
 See title Adtowson. 
 
 BECUSANTS. This word, as used in 
 the statutes, has been expounded to mean 
 all those who separate from the church as 
 established by the laws of this realm 
 (Les Termea de la Ley). Numerous laws 
 against recusants were passed in the per- 
 secuting times of Charles 11., in which 
 reign these recusants were chiefly non- 
 conformists. The term does not, in fact, 
 appear to have ever been applied to Ro- 
 man Catholics or Jews, but only to Prot- 
 estant Dissenters. 
 
 See title Statutes Ecclesiastical. 
 
 BEDDENDUM. The reddendum is a 
 clause in a deed by which the grantor 
 reserves something to himself out of what 
 he has granted before. It is situated 
 between the habendum and the covenants 
 in deeds, and usually begins either with 
 the word ' ' yielding " or the word ' ' ren- 
 dering ; " thus in a lease, that clause which 
 commences with the words ' ' yielding and 
 paying " is the reddendum. 4 Cruise, 26. 
 
 BEDDITION. A judicial confession 
 and acknowledgment that the land or 
 thing in demand belongs to the demand- 
 ant, and not to the person surrendering. 
 34 & 35 Hen. 8, c. 34; Cowel. 
 
 BEDDITUS SICCUS {d/ry rent, hwrren 
 rent). A rent for the recovery of which 
 no power of distress is given by the rules 
 of the Common Law (3 Cru. Dig. 314). 
 It is also sometimes called rent-seek (Litt. 
 sec. 217, 218. See, also, Co. Litt. 143 a, 
 143 B, 153 a, n. [1] ). But a power of 
 distress for this rent was given by stat. 4 
 Geo. 3, c. 38. For the other varieties of 
 rent, see title Rent. 
 
 REDEEMABLE BIGHTS. Such 
 rights as return to the grantor of lands, 
 &c., on repayment of the sum for which 
 such rights were granted. Jacob ; Tom- 
 lins. 
 
 BE.DEMISE : See title Demise. 
 
 BEDEMPTION, EQUITY OF : See ti- 
 tles Equity op Redemption, and Mokt- 
 
 GAGE. 
 
 BE-DISSEIZIN. A disseizin made by 
 a person who had once before been ad- 
 judged to have disseized the same man of 
 
298 
 
 REDUCTION.— REGIME EN COMMTJNAUTE. 
 
 Be-Diaseizin. — {Omtinued.) 
 his lands or tenements, for which there 
 •lay a special writ, termed a writ of re- 
 disseizin. Reg. Orig. 304; Cowel. 
 
 REDUCTION. In French Law, when 
 a parent gives away, whether by gift inter 
 moos or by legacy, more than his portion 
 disponible {see that title), the donee or 
 legatee is required to submit to have his 
 gift reduced to the legal proportion. 
 Bee, also, title Hotchpot. 
 
 BE-ENTRT« The entering again into 
 or resuming possession of premises. Thus 
 in leases there is a proviso for re-entry of 
 the lessor on the tenant not paying the 
 rent, or not performing the covenants 
 contained in the lease ; and by virtue of 
 such proviso the lessor may take the 
 premises into his own hands again if the 
 rent be not paid, or the covenants be not 
 observed by the lessee ; and this taking 
 possession again is termed re-entry. 3 
 Cruise, 8; Cowel. 
 
 See, also, title Entkt. 
 
 RE-EXCHANGE. The like sum of 
 money payable by the drawer of a bill of 
 exchange, which is returned protested 
 back again to the place whence it was 
 drawn, for the exchange of the sum men- 
 tioned in the biU. Lex M&rcat. 98. 
 
 RE-EXTENT. A second extent made 
 on lands and tenements on complaint being 
 made that the former extent was only 
 partially performed. Cowel. 
 See title Extbnt. 
 
 REFERENCE. The fact of something 
 being referred. Thus in the proceedings 
 in a suit in equity, or in an action at law, 
 matters frequently arise which would take 
 up too much of the time of the Court to 
 be brought before it for its decision ; and 
 such matters are therefore referred to the 
 masters of the respective Courts, or to 
 special referees, to be inquired into by 
 them. The order of the Court author- 
 izing such a reference is termed an order 
 of reference. 
 
 See title Arbitkation . 
 
 REFERRING A CAUSE. When a 
 case or action involves matters of account 
 or other intricate details which require 
 minute examination, and for that reason 
 are not fit to be brought before a jury, it 
 is not unusual to refer all matters in dif- 
 ference between the parties to the decis- 
 ion of an arbitrator, and in such a case 
 the cause is said to be referred. 
 
 See, also, title Rkpbkencb. 
 
 REFRESHER. It frequently happens 
 that after the briefs in a cause have been 
 delivered to counsel, the cause, from a 
 press of business or some other reason, is 
 adjourned, or allowed to stand over from 
 one term or sittings to another, which 
 imposes upon counsel the necessity of re- 
 perusing their briefs, in order to refresh 
 their memory upon the various points of 
 the cause ; in consideration of which it is 
 usual for the attorney to mark on the 
 briefs which have so been delivered a 
 small additional fee, thence termed a 
 refresher fee. 
 
 REGALIA. The royal rights of a king, 
 the kilig's prerogative ; and regalia faeere 
 is to do homage or fealty when he is in- 
 vested with the regalia (Cowel). The 
 word is also occasionally used to denote 
 the emblems of sovereignty. 
 
 REGARDANT (Fr. looking at). Thus, 
 a villein regardant was called regardant 
 to the manor, because he was charged 
 with doing all base services within the 
 same, and with seeing that the same was 
 freed from all things that might annoy it. 
 Co. Litt. 130 ; Cowel. 
 
 See, also, title Villbnagb. 
 
 REGE INCONSULTO. A vmt issued 
 from the king to the judges, command- 
 ing them not to proceed in a cause which 
 may prejudice the king without the king 
 being advised. 18 Vin. Abr. 375, 380. 
 
 REGIME DOTAL. In French Law, 
 the dot, being the property which the wife 
 brings to the husband as her contribution 
 to the support of the burdens of the mar- 
 riage, and which may either extend as 
 well to future as to present property, or 
 be expressly confined to the present prop- 
 erty of the wife, is subject to certain 
 regulations which are summarized in the 
 phrase regime dotal. The husband has 
 the entire administration during the mar- 
 riage ; but as a rule where the dot consists 
 of immoveables, neither the husband nor 
 the wife, nor both of them together, can 
 either sell or mortgage it. The dot is 
 returnable upon the dissolution of the 
 marriage, whether by death or other- 
 wise. 
 
 REGIME EN COMMUNAUTE. In 
 
 French Law is the community of interests 
 between husband and wife which arises 
 upon their marriage. It is either (1) legal 
 or (3) conventional, the former existing 
 in the absence of any agreement properly 
 so called and arising from a mere declara- 
 
REGISTER.— RE-HEARING. 
 
 299 
 
 • Beg'ime En Commnnaute. — {Omfd.) 
 tion of community, the latter arising from 
 an agreement properly so called. Legal 
 community extends to all the moveable 
 and immoveable property of both parties 
 (and the profits thereo:^ ** the time of 
 and during the marriage, and also to all 
 the debts with -which either spouse is 
 burdened at the date of the marriage, or 
 which the husband or the wife (vdth his 
 consent) contracts during the marriage. 
 Under such a community, the husband 
 has the sole management and disposal of 
 the property, but he cannot give them 
 away for nothing, unless it should be for 
 the advancement of the children of the 
 marriage. This conununity is destroyed 
 by a judicial separation de corps et de 
 Mens, and the wife recovers the free ad- 
 ministration of her goods. Conventional 
 community may be as diverse as the 
 parties choose by their conventions to 
 make it, these conventions most com- 
 monly regulating the amount of property 
 which shall be held in common, exclud- 
 ing the after-acquired property from it, 
 or making other such restrictive regula- 
 tions. 
 
 KEGISTEE. A book wherein things 
 are registered for the preservation of the 
 same ; that a parish register is that book 
 wherein the baptisms, marriages and 
 burials are registered in the respective 
 parishes; there is also a book wherein 
 are entered the various forms of original 
 and judicial writs, which is termed the 
 register of writs. Co. Litt. 159 ; Cowel. 
 See, also, the two following titles. 
 
 REGISTRAR. An officer who has the 
 custody or keeping of a registry. There 
 are several officers of this kind connected 
 with the law. The principal are the 
 registrars of the Courts of Chancery and 
 Bankruptcy and the registrars of births, 
 deaths, and marriages. The registrar of 
 the Court of Chancery is an officer with 
 whom, in certain cases, the defendants are 
 compelled to enter their appearances ; and 
 by him the decrees of the Court are 
 drawn up, signed, and passed. As to the 
 duties of the registrars of the Court of 
 Bankruptcy, the reader is referred to the 
 Bankruptcy Act, 1869. The registrars of 
 births, deaths, and marriages are officers 
 appointed under the 6 & 7 Will. 4, c. 86, 
 7 Will. 4. and 1 Vict. c. 32, and 3 & 4 
 Vict. c. 93, for the purpose of keeping 
 in their respective districts an exact 
 register of every birth, death, and mar- 
 
 Registrar. — ( OonUrmed. ) 
 
 riage which may take place therein. The 
 registrars of each union are subjected to 
 the supervision of their "superintendent 
 registrar," and these again are subject to 
 the authority of a superior officer ap- 
 pointed under the great seal, and holding 
 office during the pleasure of the Crown, 
 called the ' ' Registrar-General of Births, 
 Deaths and Marriages in England. " See 
 the statutes above referred to. 
 
 REGISTRY OF DEEDS. By certain 
 Acts of Parliament all deeds and con- 
 veyances (with some exceptions) which 
 aflfect lands in the counties of Middlesex 
 and York, are required to be registered ; 
 that is, an abstract of their substance is 
 required to be entered in a registrar kept 
 for that purpose. The object of this is 
 that purchasers and mortgagees of lands 
 in these counties by referring to this reg- 
 ister may have an opportunity of ascer- 
 taining whether the lands they are about 
 to purchase are in any way incumbered 
 or otherwise affected by any prior transac- 
 tions; and therefore by these statutes, 
 deeds and conveyances are void against 
 subsequent purchasers or mortgagees, 
 unless registered before the conveyances 
 under which such purchasers or mortga- 
 gees claim, unless, indeed, the subsequent 
 purchaser or mortgagee had notice of the 
 prior charge (Ze Neve v. Le Neoe, 2 Wh. 
 & Tud. L. C. 28). By a Bill of the pres- 
 ent session it was proposed to make the 
 registration of titles to land universal; 
 but the Bill has fallen through for the 
 present. 
 
 REGRATING (from re, again, and the 
 Fr. grater, to scrape). In one sense this 
 word signifies the scraping or dressing of 
 cloth or other goods for the purpose of sell- 
 ing them again. But in its more ordinary 
 sense it means the offense of buying or 
 getting into one's hands at a fair or 
 market any. provisions, com, or other 
 dead victual vfith the intention of selling 
 the same again in the same fair or market, 
 or in some other within four miles there- 
 of, at a higher price ; and he who com- 
 mits this offense is termed a regrator. 3 
 Inst. 195 ; 5 Edw. 6, c. 14. 
 
 See, also, title Forestalling. 
 
 RE-HEARING. When a party seeks 
 to have a decree of the Court of Chancery 
 reversed or altered he may petition for a 
 re-hearing; that is, for the cause to be 
 heard again. Such re-hearing is usually 
 had before the same judge that previously 
 
300 
 
 REJOINDER. —REMAINDER. 
 
 Re-Hearing. — (Contimted.) 
 heard the case. It is obtained upon a 
 petition to the Lord Chancellor, accom- 
 panied with the certificate of two coun- 
 sel, one of whom, at least, must have been 
 engaged on the occasion of the former 
 hearing; and the usual ground of it is 
 that there has been an oversight on the 
 part of the judge, resulting in a miscar- 
 riage of justice. The certificate is, how- 
 ever, in the most general form, merely 
 stating that the cause is a proper one to 
 be re-heard. In case the re-hearing is that 
 of an order made on motion, then no 
 certificate of counsel is required, and 
 neither is any petition of appeal necessary, 
 but counsel merely moves the Court of 
 Appeal on motion with notice. 
 See, also, title Appbai,. 
 
 REJOINDER: See title Rbbottek. 
 
 REJOINING GRATIS. Rejoining 
 voluntarily, or without being required to 
 do so by a rule to rejoin. It would seem 
 that when a defendant is under terms to 
 rejoin gratis, it means that he must de- 
 liver a rejoinder, without putting the 
 plaintiff to the necessity of obtaining a 
 rule to rejoin. AtMna v. Anderson, 10 
 M. & W. 13; Lush's Pr. 396. 
 
 RELATOR. A rehearser or teller. It 
 is sometimes used to signify an informer; 
 as in the case of an information being 
 filed by the Attorney-General at the rela- 
 tion of some informant, such informant is 
 termed a relator, and the information is 
 said to be at the relation of such person. 
 Such informations are usually laid in the 
 Court of Chancery for the abatement of 
 a public nuisance ; the corresponding pro- 
 ceeding in the Courts of Common Law is 
 called an indictment. 
 
 RELEASE. A release is a discharge 
 or conveyance of a man's right in lands 
 or tenements to another who already has 
 an estate in possession; as if A. has a 
 lease of lands for a term of years, and B. 
 has the remainder or reversion in fee; 
 here the fee siniple of the lands may be- 
 come vested in A. by B. executing a re- 
 lease of them to A. (4 Cruise, 84). Such 
 a release is said to operate by enlarge- 
 ment of the estate of A. For the other 
 varieties of a release, and the incidents 
 attaching thereto, see title Conykyancbs. 
 
 RELEASE TO USES. The conveyance 
 by a deed of release to one party to the 
 use of another is so termed. Thus, when 
 a conveyance of lands was effected, by 
 
 Release to Uses. — (Oontmaed.) • 
 
 those instruments of assurance termed a 
 lease and release, from A. to B. and his 
 heirs, to the use of C. and his heirs, in 
 such case C. at once took the whole fee 
 simple in such lands ; B., by the opera- 
 tion of the Statute of Uses, being made 
 a mere conduit pipe for conveying the 
 estate to C. 
 
 See title Convbtahces. 
 
 RELIEF. A fine or acknowledgment, 
 which, during the f eodal system, tite heir 
 paid to the lord on being admitted to the 
 feud which ■ his ancestor possessed ; it 
 generally consisted of houses,arms,money, 
 and the like; it was called a relief, either 
 because it raised up and re-established the 
 inheritance, or because by it the heir took 
 up or Ufted up the inheritance, or in the 
 words of the f eodal writers, 'Hneertam et 
 caducam hereditatem relevaiat" (Knight, 
 14). It seems that a relief is still paya- 
 ble, if demanded. Wms. R. P. p. 130. 
 
 REM, IN : See title In Pebsonam. 
 
 REMAINDER. A remainder is defined 
 to be an estate limited to take effect and 
 be enjoyed after another estate is deter- 
 mined. As if a man who is seized of 
 lands in fee simple grants them to A. for 
 twenty years, and after the determination 
 of that term to B. and his heirs forever; 
 in this case the estate of A. (that is, the 
 interest which A. has in the lands for 
 the twenty years) is termed an estate for 
 years ; and the estate of B. (that is, the 
 interest which B. has in the lands after 
 the end of the twenty years) is termed a 
 remainder. In order to constitute or to 
 create a remainder, it is a rule that there 
 must be some particular estate (as it is 
 termed) to support it, that is, at the time 
 of creating a remainder there must be 
 some estate (in the same lands to which 
 the remainder applies) created at the 
 same time to precede the remainder, 
 which preceding estate is teimed the par- 
 ticular estate. Thus, in the above in- 
 stance (of a man who is seized of lands 
 in fee simple granting them to A. for 
 twenty years, and after the determination 
 of that term to B. and his heirs for ever), 
 the estate of A. is termed the particular 
 estate, because it is only a small part, or 
 particule, of the inheritance, the residue 
 or remainder of which is granted over to 
 B. The necessity of creating this pre- 
 ceding particular estate, in order to make 
 a good remainder, arises from this plain 
 reason, that the word "remainder" is a 
 
REMANET. — REMITTITUR. 
 
 301 
 
 Remainder. — {Omtinued.) 
 relative expression, and implies that some 
 part of the thing is previously disposed 
 of ; for where the whole is conveyed at 
 once, there cannot possibly exist a re- 
 mainder. Remainders are said to be 
 either vested or contingent. Vested re- 
 mainders (or remainders executed) are 
 those on the creation of which a present 
 interest passes to the party, though to be 
 enjoyed at a future time, and by which 
 the estate is invariably fixed to remain to 
 a determinate person after the particular 
 estate is spent. As if an estate is con- 
 veyed to A. for twenty years, remainder 
 to B. in fee ; here B.'s is a vested remain- 
 der, which nothing can defeat or set 
 aside ; so that a person entitled to a vested 
 remainder has an immediate fixed right 
 of future enjoyment, that is, an estate in 
 prcBsenti, though it is only to take effect 
 in possession and receipt of the profits at 
 a future period. Contingent (or execu- 
 tory) remainders are such as are limited 
 to take effect in favor of a dubious and 
 uncertain person ; as if an estate is con- 
 veyed to A. for life, with the remainder 
 to B.'s eldest son (then unborn) in tail; 
 this is a contingent remainder, for it is 
 quite uncertain whether B. will have a 
 son or not ; but the instant that a son is 
 bom, the remainder is no longer contin- 
 gent, but vested (2 Cruise, 331). These 
 two varieties of remainder are defined in 
 WiUiama' Real Property as follows : — 
 
 (1.) A vested remainder is one which is 
 always ready from its creation to its close 
 to come into possession the moment the 
 prior estate determines ; 
 
 (2.) A contingent remainder is one 
 wmch is not always so ready. 
 
 BEMANET. A remnant, that which 
 remains. Thus the causes which are de- 
 ferred being tried from one term to 
 another, or from one sittings to another, 
 are termed remanets. 1 Arch. Praot. 
 375. 
 
 BEMEMBBANCEBS. Were three o&- 
 cers, or clerks, of the Exchequer, who 
 were formerly called clerks of the remem- 
 brance. One was called the king's re- 
 membrancer ; the second, the lord treas- 
 urer's remembrancer ; and the third, the re- 
 membrancer of the first fruits. The king's 
 remembrancer entered in his office all 
 recognizances taken before the barons for 
 any of the king's debts, or for appearances, 
 or for observing of orders ; he wrote pro- 
 cess against the collectors of customs, 
 
 Bemembrancers. — (ConUwued.) 
 subsidies, and fifteenths for the accounts, 
 &c. The lord treasurer's remembrancer 
 made process against all sheriffs, escheat- 
 ors, receivers, and bailiffs, for their ac- 
 count ; also of fieri facias and extent for 
 any debts due to the king either in the 
 pipe or with the auditors, &c. The re- 
 membrancer of the first fruits took all 
 compositions and bonds for the first fruits 
 and tenths, and made process against such 
 as did not pay the same. Cowel. 
 
 BEMEBE: /See title Rachat. 
 
 BEMISE DE LA DETTE. In French 
 Law is the release of a debt. 
 
 BEMITTEE (rmnittere, to send back). 
 In real property law is a restitution of one 
 who has two titles from the latter defect- 
 ive title, in respect of which he is in 
 possession, to the former complete title 
 which he has to the lands, but in respect 
 of which he is not in possession. It is 
 necessary in order to the principle of re- 
 mitter taking effect, that the latter title 
 should have come to the party by the act 
 of law; for if- it came to him by his own 
 act, he is taken to have waived his former 
 or more ancient title. Co. Litt. 858. 
 
 BEMITTITUB {it is remitted). This 
 word is ordinarily used in two senses ; 
 first, for an entry or minute which a plain- 
 tiff sometime makes expressive of his in- 
 tention to give up or waive the damages 
 which he has originally demanded in his 
 declaration, whence the entry is called a 
 remittitur damna ; secondly, to signify the 
 returning or sending back by a Court of 
 Appeal the record and proceedings to the 
 Court whence the appeal came. A com- 
 mon instance of the first description of 
 r&mittitw is afforded in an action of re- 
 plevin, wherein the defendant, having 
 pleaded and estabUshed an avowry, cog- 
 nizance or justification, is entitled to 
 damages ; but as that action is generally 
 brought merely to estabUsh a right, the 
 defendant often excuses or remits the pay- 
 ment of those damages to which he would 
 be otherwise entitled, and when he does 
 so, it is thus recorded in the judgment : 
 " And hereupon the said C. D. freely here 
 in Court remits to the said A. B. his dam- 
 ages aforesaid ; therefore let the said A. 
 B. be acquitted thereof." The second 
 sort of remittitur is used when for instance, 
 the House of Lords having affirmed the 
 judgment on a writ of error from the 
 Queen's Bench, returns or remits the 
 record, so that that Court may carry its 
 
302 
 
 RENDER. — REPLEADER. 
 
 Remittitur. — ( Continued.) 
 sentence (so confirmed) into execution. 
 The form is thus entered in the judgment : 
 " Thereupon the record aforesaid, and 
 also the proceedings aforesaid in the same 
 Court of Parliament had in the premises, 
 are remitted by the same Court of Parliar 
 ment to the Court of our said Lady the 
 Queen, before the Queen herself, where- 
 soever, &c., to the end that execution 
 may be done thereupon," &c. Tidd's 
 Forms, 574, 615, &c. 
 
 RENDER (from the Fr. rmdre, to re- 
 turn). To give up, to yield, to surrender. 
 Thus, when a defendant who has been 
 arrested, and has obtained his liberty by 
 procuring bail, yields himself up again 
 into custody, in order that the bail may 
 be discharged from their obligation and 
 UabUity, he is said to render himself in 
 discharge of his bail. 1 Arch. Pract. 
 873. ^ 
 
 RENOUNCING PROBATE. Refusing 
 to take upon oneself the office of executor 
 or executrix. Refusing to take out pro- 
 bate under a will wherein one has been 
 appointed executor or executrix. 
 
 RENT (reddiius). Defined to be an 
 annual return made by the tenant to the 
 landlord, either in labor, money, or pro- 
 visions, in consideration of the lands or 
 tenements which such tenant holds of his 
 landlord; from which it follows, that 
 though rent must be a profit, yet there is 
 no occasion that it should consist of 
 money. There are three principal kinds 
 of rents, viz., rent-service, rent-charge, 
 and rent-seek. Rent-service consisted of 
 fealty and a certain rent, and this was 
 the only kind of rent originaUy known 
 to the Common Law ; it was called rent- 
 service, because it was given as a compen- 
 sation for the services to which the land 
 was originally liable. When a rent was 
 granted out of lands by deed, the grantee 
 had not power to distrain for it, because 
 there was no fealty annexed to such grant. 
 To remedy this inconvenience an express 
 power of distress was commonly inserted 
 in the grant. Rent-seek, or barren-rent, 
 is nothing more than a rent for the re- 
 covery of which no power of distress is 
 given either by the rules of the Common 
 Law or the agreement of the parties. 
 This third variety of rent arises where a 
 landlord grants away his rent without at 
 the same time granting his reversion to 
 which that rent was incident. But by 
 fltat. 4 Geo. 3, c. 38, a power of distress 
 
 Rent. — ( OonUrmed.) 
 has been made incident both to rents- 
 charge and to rents-seek. There are the 
 following other minor varieties of rent, 
 viz: — 
 
 (4.) Quit Rbnts, see that title; 
 
 (5.) Gkound Rents, see that title ; 
 
 (6.) Feb Fakm Rents, «ee that title; and 
 
 (7.) Rents of Assize, see that title. 
 
 RENTAL (said to be corrupted from 
 rent-roll). A roU on which the rents of 
 a manor, or other estate are registered or 
 set down, and by which the landlord's 
 bailiS collects the same. It contains the 
 lands and tenements let to each tenant, 
 the names of the tenants, and other par- 
 ticulars connected therewith. Cunning- 
 ham. 
 
 RENT-ROLL : See title Rental. 
 
 RENTS OP ASSIZE (redditm asdsos). 
 The certain and determined rents of the 
 freeholders and ancient copyholders of 
 manors are called rents of assize, appar- 
 ently because they were assized or made 
 certain, and so distinguished from reddiUM 
 motnUs, which was a variable or fluctuat- 
 ing rent. 3 Cruise, 314-. 
 
 REPARATIONE FACIENDA. A writ 
 which lay in various cases ; as if, for in- 
 stance, there were three tenants in com- 
 mon, joint tenants, or pro indiviso, of a 
 mill or house which had fallen into decay, 
 and one of the three was willing to re- 
 pair it, and the other two not ; in such 
 case the party who was willing to repair 
 it might have this writ against the other 
 two. Reg. Orig. 153; Cowel. 
 
 REPLEADER. To plead again. When, 
 after issue has been joined in an action 
 and a verdict given thereon, the pleading 
 is found (on examination) to have mis- 
 ca,rried, and failed to effect its proper 
 object, viz., of raising an apt and material 
 question between the parties, the Court 
 'win, on motion of the unsuccessful party, 
 award a repleader, that is, will order the 
 parties to plead <fe novo, for the purpose 
 of obtaining a better issue. For example, 
 if in an acnon of debt on bond, condi- 
 tioned for the payment of £10 10s. at a 
 certain day, llhe defendant pleads the pay- 
 ment of £10 according to the form of the 
 condition; and the plaintiff, instead of 
 demurring, tenders issue upon such pay- 
 ment ; it is plain that whether this issue 
 be found for the plaintiff or the defend- 
 ant, it will remain equally uncertain 
 whether the plaintiff is entitled or not to 
 
KEPLEVIABLE. — REPRESENTATION AND REPRESENTATIVE. 303 
 
 Repleader. — ( GonUwued.) 
 maintain his action ; for in an action for 
 the penalty of a bond, conditioned to pay 
 a certain sum, the only material question 
 is whether the exact sum were paid or 
 not, and repayment in part is a question 
 quite beside the legal merits. The Court 
 ■will after trial grant such repleader only 
 if that will be the means of effecting sub- 
 stantial justice between the parties ; nor 
 will the Court grant it where it can give 
 judgment non obstante veredicto on the 
 whole record. If a repleader is granted 
 where it should be refused, or vice verad, 
 that is ground of error. The form of the 
 judgment of repleader is " guod partes re- 
 plcuxtent." 3 Arch. Pract. 155a-4. 
 
 REPLEVIABLE. Capable of being 
 replevied. Property is said to be replev- 
 iable or replevisable when proceedings in 
 replevin may be resorted to for the pur- 
 pose of trying the right to such property. 
 Thus goods taken under a distress are re- 
 pleviable, for the validity of the taking 
 may be tried in an action of replevin; 
 but goods delivered to a carrier and un- 
 justly detained are not repleviable, for 
 the unjust detention of goods delivered 
 on a contract is not an injury to which 
 the action of replevin applies, but forms 
 the ground of an action of detinue or tro- 
 ver. See Galloway v. Bird, 4 Bing. 299. 
 
 REPLEVIN (from replegiare, to deliv- 
 er to the owner upon pledges). A per- 
 sonal action adapted to try the validity of 
 a distress, or to recover the possession of 
 goods unlawfully distrained (Com. Dig. 
 "Replevin"). Where goods have been 
 distrained, and the tenant thinks the dis- 
 tress unlawful, and wishes to contest its 
 validity, the action of replevin is the ap- 
 propriate remedy to resort to for the pur- 
 pose. The mode adopted is by the ag- 
 grieved party making plaint (i. «., com- 
 plaint) to the sheriff, and his goods are 
 thereupon replevied, that is, deUvered to 
 him upon his giving security to prosecute 
 an action against the distrainor for the 
 purpose of trying the legality of the dis- 
 tress ; and if upon such trial the right be 
 determined in favor of the latter, then 
 the goods are returned. In form it is an 
 action for damages for the illegal taking 
 and detaining of the goods and «|battels 
 (Com. Dig. tit. "Replevin;" 2 Arch. Pr. 
 1081 ; "Woodf all's Land, and Ten. lib. 3, c. 
 6, s. 1. 
 
 REPLEVY. This wprd, as used in 
 reference to the action of replevin, sig- 
 
 Replevy. — ( Continued.) 
 nifles to re-deliver goods which have been 
 distrained to the original possessor of 
 them, on his pledging or giving security 
 to prosecute an action against the dis- 
 trainor for the purpose of trying the legal- 
 ity of the distress. It has also been used 
 to signify the bailing or liberating a man 
 from prison on his finding bail to answer 
 for his forthcoming at a future time. 
 See title Replevin. 
 
 REPLICATION {repUoatio). A reply 
 made by the plaintiff in an action to the 
 defendant's plea, or in a suit in Chancery 
 to the defendant's answer. 
 
 See, also, titles Answer ; Rebutter. 
 
 REPORT OP COMMITTEE. The re- 
 port of a parliamentary committee is that 
 communication which the chairman 
 makes to the House at the close of the 
 investigation upon which it has been en- 
 gaged ; and it is usually in the form of a 
 series of resolutions. In the House of 
 Commons he appears at the Bar shortly 
 after the Speaker has taken the chair, 
 and on being called upon, reads his re- 
 port, brings it up, and it is received by a 
 vote of the House. 
 
 REPORTS. The published periodical 
 volumes, which contain the various cases 
 argued and determined in the several 
 Courts of Law and Equity, are so termed. 
 Since the year 1866 inclusive, the chief 
 of these reports are brought out under the 
 superintendence of a council styled the 
 Incorporated Council of Law Reporting 
 for England and Wales; formerly the 
 matter was left to the enterprise of private 
 publishers or of private reporters; and 
 at one time the reports were brought out 
 at the cost of the State. 
 
 See title Tear-Bookb; and Bout. 
 Diet., title Reports. 
 
 REPRESENTATION AND REPRE- 
 SENTATIVE. Representation is the act 
 of one person representing or standing in 
 the place of another; and he who so rep- 
 resents or stands in the place of another 
 is termed his representative. Thus, an 
 heir is the representative of the ancestor ; 
 and an executor is the representative of 
 the testator; the heir standing in the 
 place of his deceased ancestor with re- 
 spect to his reality, the executor standing 
 in the place of his deceased testator with 
 respect to his personalty ; and hence the 
 heir is frequently denominated the real 
 representative, and the executor the per- 
 sonal representative. 
 
304 
 
 REPRESENTATION IN PARLIAMENT. — RESERVATION. 
 
 BepresentatioU) ete. — (OmUnued.) 
 
 In the Law of contracts, a representa- 
 tive is an agent ; but the term ' ' represen- 
 tative " is little used for this purpose. 
 
 In Constitutional Law representatives 
 are those chosen by the people to repre- 
 sent their several interests in Parliament. 
 For this use of the word, see title Rbpke- 
 
 SBNTATION IN PAKLIAMBNT. 
 
 REPRESENTATION IN PARLIA- 
 MENT. The custom of sending repre- 
 sentatives to Parliament appears to have 
 grown up at a very early period, but the 
 first extant traces of it are comparatively 
 recent. Thus, 
 
 (1.) As regards County Bepresentabion. 
 The earliest extant trace is in 1314, King 
 John having in that year directed the 
 sherifls to send four discreet knights {qua- 
 tiu/yr dMoretos miUtes) of the county to rep- 
 resent it at the Parliament which was to 
 be held at Oxford; and 
 
 (2.) As regards Borouffh BepresentatUm. 
 The earliest extant trace is in 1365, Simon 
 de Montford having in that year issued 
 writs to the sheriffs directing them to re- 
 turn two citizens or burgesses for every 
 city or borough in their shrievalty ; but 
 as Montford was assuming an excess of 
 authority in issuing those writs, that in- 
 stance of borough representation is not 
 considered of much value, while on the 
 contrary the writs issued to the like ef- 
 fect by Edward I. in 1295 are considered 
 of great value, and they afford the first 
 distinct legal trace that is extant of the 
 summoning of burgesses to Parhament. 
 
 REPRESENTATITE PEERS. The 
 
 representative peers are those who, at the 
 commencement of every new parliament, 
 are elected to represent Scotland and Ire- 
 land in the British House of Lords, name- 
 ly, sixteen for the former, and twenty- 
 eight for the latter country. At the 
 union of Scotland with England in 1707, 
 and of Ireland in 1800, the peers of those 
 two countries were not admitted en, masse 
 to seats in the British Parliament, but 
 were allowed to elect a certain number of 
 their body to represent them therein; 
 hence the term "representative peers." 
 The Scottish representative peers must 
 have descended from ancestors who were 
 peers at the time of the union. 
 
 See, also, title Rbpkksbntation in 
 Pakliambnt. 
 
 BEPRIEYE. The withdravring or 
 suspending for a time sentence of execu- 
 tion against a prisoner. Les Termes de 
 la L&y. 
 
 REPRISAL: ^«e title Maequb. 
 
 * REPROBATION. The propounding 
 of exceptions to legaUty of any thing. 
 Used in Ecclesiastical Law. Bouv. Diet. 
 
 REPUTED, REPUTATION. The 
 
 general, vulgar, or public opinion respect- 
 ing any thing. Thus, land may he repu- 
 ted part of a manor, though not really so, 
 and a certain district may be reputed a 
 parish or a manor, or be a parish or a 
 manor in reputation, although in reaUty 
 no parish or manor at all. 
 
 REPUTED MANOR: 5ee title Manor. 
 
 REPUTED OWNER. He who has the 
 
 general credit or reputation of being 
 the owner or proprietor of goods, is said 
 to have the reputed ownership in them, 
 or to be the reputed owner thereof. 
 
 REQUEST, LETTERS OF: See title 
 
 LETTERS OF RbQUBST. 
 
 REQUESTS, COURT OP: See title 
 CoNsciBNCE, Courts op. 
 
 * REQUISITION. The demand made 
 by one government upon another for a 
 fugitive from justice. 
 
 . RESCOUS or RESCUE (Fr. reams, 
 rescue). A resistance against lawful au- 
 thority. As, for instance, the taking 
 back by force goods which have been 
 taken imder a distress ; or the violently 
 taking away a man who is under arrest, 
 and setting him at liberty, or otherwise 
 procuring his escape, are both so denom- 
 inated; and for which writs of reseous 
 used to lie, and now an ordinary prosecu- 
 tion for the rescue Ues against such of- 
 fenders, offending parties, or resoussors, 
 as they were termed. Co. Lit. lib. 3, cap. 
 13 ; Pmrett Namigatian Gompamy v. Stower, 
 6 M. & "W. 564. 
 
 RESERVATION. In conveyancing, a 
 clause of reservation is a clause whereby 
 the grantor or lessor reserves either to 
 himself or to the lord of the fee some 
 'money, chattel, or service not being part 
 of the thing granted or demised, or an ap- 
 purtenant thereto. A reservation, strict- 
 ly so called, cannot be made in favor of 
 a stranger, although such an attempted 
 reservation might be good as a condition 
 for payment of an annual sum in gross. 
 And it follows from the definition that a 
 man cannot grant an estate and reserve 
 part thereof, or make a feoffment in fee, 
 and reserve a lease for life ; also, that a 
 man cannot reserve rent to his heirs with- 
 
RES rNTEGRA. — RESPONDENTIA. 
 
 305 
 
 Beserration. — ( OoTvtinued. ) 
 out first reserving it to himself. A reaer- 
 vaMon is often confounded with an excep- 
 tion, but the true distinction between 
 them is that in a reservation some new 
 hereditament is created, and that usually 
 of an incorporeal kind, whereas in an ex- 
 ception a sUce (so to speak) of an already 
 existing hereditament is merely withheld, 
 or (as the name denotes) excepted, out of 
 the conveyance. 
 
 See tittle Exception. 
 
 *BES INTEGBA. A new case or 
 point ; as distinguished from res adjudir 
 eata, a point decided. 
 
 * BESETTLEB. A receiver of stolen 
 goods. * Used in Scotch Law. 
 
 BE-SETTLEMENT : Se« titles Skttlk- 
 MBNT OF Rbaitt ; and Estate Tail. 
 
 BESIDTJABT. The remaining portion 
 or residue. Thus residuary estate or 
 property signifies the remaining part of a 
 testator's estate and efiects after payment 
 of debts and legacies, &c., or that por- 
 tion of his estate and efiects which has 
 not been particularly devised or bequeath- 
 ed. A residuary legatee is he to whom 
 a testator bequeaths the residue of his 
 estate and efiects, after the payment of 
 such others as are particularly mentioned 
 in the wiQ. Toller, 369. 
 
 See titles Abatement ; Lapse ; Leg- 
 acy. 
 
 BESIGNATION OF LIYIN6S: See 
 
 title SmoNT. 
 
 *BESOLUTOBT CONTBACT. One 
 
 which has for its object, when accom- 
 plished, the revocation of the principal 
 obligation. Bouv. Diet. 
 
 BESPITE, TO. To adjourn, to for- 
 bear, to forego, &c. Thus to respite an 
 appeal at the sessions appears simply to 
 mean to adjourn it to some future period, 
 or to forbear bringing it on at the time it 
 was first entered for. Respiting of hom- 
 age is the forbearing to enforce the duty 
 of homage from a tenant who held his 
 lands in consideration of doing homage 
 to his lord. 
 
 See, also, title REPBiEyE. 
 
 BESPITE OF HOIVAGE. The for- 
 bearing or dispensing with the perform- 
 ance of homage by tenants who held their 
 lands in consideration of performing 
 homage to their lords. Such a respite 
 was, most frequently, granted to those | 
 
 Respite of Homagre. — {OonUnued.) 
 who held by knight service in capite, who 
 paid into the Exchequer every fifth term 
 some small sum of money to be respited 
 from doing their homage. Cowel. 
 
 RESPONDEAT, or BESPONDEAS, 
 OUSTEB. Upon an issue in law arising 
 on a dilatory plea, the form of the judg- 
 ment is that the defendant answer over, 
 which is thence called a judgment of re- 
 apondeat ouster. This not being a final 
 judgment, the pleading is resumed, and 
 the action proceeds. Steph. PI. 115. 
 
 BESPONDEAT SUPEEIOB {let the 
 guperior ansiwer). The phrase is thus used 
 'in an old work, — Pwr insufficiency del 
 bm/liff d^un VSberty respondeat dominits Ub- 
 ertatis, i. e., for the insufficiency of the 
 bailiff of a liberty, let the lord of the Ub- 
 erty answer (4 Inst. 114; Cowel). The 
 phrase, as used at the present day, simply 
 denotes that the principal is to answer 
 for the act of his agent, special or gen- 
 eral, done within the limits of his agency. 
 A landlord also answers for, i. e., defends, 
 his tenant. 
 
 BESPONDENT. The party who ap- 
 peals against the judgment of an inferior 
 Court, is termed the appellant; and he 
 who contends against the appeal the re- 
 spondent. The word also denotes the 
 persons upon whom an ordinary petition 
 in the Court of Chancery is served, and 
 who are, as it were, defendants thereto. 
 The terms respondent and co-respondent 
 are used in like maimer in proceedings in 
 the Divorce Court. 
 
 BESPONDENTIA. A contract by 
 which the master or owner of a ship bor- 
 rows money upon the goods and merchan- 
 dise in the vessel, which must necessarily 
 be sold or exchanged in the course of the 
 voyage, and in wmch case the borrower 
 personally is bound to answer the con- 
 tract, and is therefore said to take up 
 money at resp(mdenMa. The general na- 
 ture of a reyiondentiof bond is this: the 
 borrower binds himself in a large penal 
 sum, upon condition that the obligation 
 shall be void if he pay the lender the sum 
 borrqwed and so much a month from the 
 date of the bond till the ship arrives at a 
 certain port, or if the ship be lost or cap- 
 tured in the course of the voyage (3 Park 
 on Insurance, 616). But such a contract 
 is now usually called a bottomry bond, al- 
 though (as the name denotes) the latter 
 phrase was appropriate only where the 
 
306 
 
 BBSPONSA PRUDENTUM.— EETUBl^. 
 
 Bespondentia. — {OorMnMed.) 
 vessel itself, or bottom, was included in 
 the security. Maude & P. Merch. Sh. 
 433 ; Kay's Law of Shipping. 
 
 S«e titles Bottomry Bond; Htpoth- 
 
 BCATION. 
 
 *EESPONSA PRUDENTUM. Opin- 
 ions of Roman jurists; one of the prin- 
 cipal sources of Roman Law. 
 
 . RESTS. The days of grace which, 
 according to the custom of commercial 
 countries, are allowed for the payment of 
 foreign bills and notes. The word is also 
 used in reference to account between a 
 debtor and a creditor, and in this sense, 
 signifies the making a pause in the ac- 
 count by striking a balance therein (see 
 Butter V. Harrison, Cowp. 566). The 
 account which is taken against a mort- 
 gagee tn possession is commonly directed 
 to be taken with rests, and he is thereby 
 charged with Interest as from the dates 
 of the respective rests upon the balance 
 of proceeds over interest. 
 
 RESULTING USE : See title Use. 
 
 RESUMPTION. This word, as used 
 in the stat. of 31 Hen. 6, s. 7, particularly 
 signifies the taking again into the king's 
 hands such lands or tenements as before, 
 upon some false suggestion or other error, 
 he had delivered to the heir, or granted 
 by letters patent to any man (Oowel ; Lea 
 Termes de la Ley). The policy or the re- 
 sumption of royal grants of lands was 
 much agitated after the Revolution in 
 1688, owing chiefly to the lavish way in 
 which William lU. made such grants to 
 the Duke of Portland and others. 
 
 RETAINER. Is commonly used to 
 signify a notice given to a counsel by an 
 attorney on behalf of the plaintiff or de- 
 fendant in an action, in order to secure 
 his services as advocate when the cause 
 comes on for trial. This notice is inva- 
 riably, in England, accompanied with a 
 fee called a retaining fee. 
 
 Bee, also, titles Attorney ; Barrister. 
 
 *RETORNO BRBVIUM. The return 
 of writs by sheriffs, &c. 
 
 See title Rbtuen. 
 
 RETORNO HABBKa)0. A writ that 
 lies for the distrainor of cattle, goods, and 
 chattels, &c.(and who, on repl&ein brought, 
 has proved his distress to be a lawful one), 
 against him who was so distrained, to 
 have them returned to him according to 
 law, together with damages and costs (3 
 
 Betorno Habendo. — (_Contmued.) 
 Arch. Pract. lO&l). If to the retorno ha- 
 bendo the sheriff returns that the goods, 
 &c., are eloigned, the defendant may then 
 sue out a writ of capias in withernam, re- 
 quiring the sheriff to take other goods, 
 &c., of the plaintiff instead of those 
 eloigned; and in the absence of any such 
 other goods, the goods of the pledges 
 may then be taken on a sai. fa. 2 Arch. 
 Pract. 1096. 
 
 RETRAXIT (he has witJidrtmn). A 
 retraxit is an open and voluntary renun- 
 ciation in Court of a suit by the plaintiff, 
 by which he for ever loses his action. A 
 retraoAt is very similar to a rwlU prosequi, 
 the difference between them being that a 
 rebraadt is a bar to any future action for 
 the same cause, whereas a jwUe prosequi is 
 not, unless made after judgment. 2 
 Arch. Pract. 1515; ^rber v. Swyer, 3 
 Dowl. & L. 65, n. (6). 
 
 See title Judgment. 
 
 * RETROSPECTIVE LAWS. Acts of 
 the legislature which are made to operate 
 upon some subject, contract, or crime 
 which existed before the passage of the 
 acts. Bouv. Diet. 
 
 RETURN. This is a word which is 
 commonly applied to writs and judges' 
 summonses, and literally signifies much 
 the same as it does in its popular sense, 
 viz., to return or send back any thing. 
 Thus, writs are directed to certain per- 
 son (as to sheriffs, for instance, command- 
 ing them to perform certain acts, and 
 after a certain time to return the same 
 into the Court again, together with a cer- 
 tificate or memorandum certifying or sta- 
 ting what they have done in pursuance of 
 such command. The memorandum or 
 certificate is written on the back of the 
 writ, and is now commonly called the re- 
 turn to it ; so that when a writ is directed 
 to a sheriff commanding him to perform 
 certain acts (as to arrest a man, or to re- 
 turn an M. P. for instance), and the sher- 
 iff in due time returns the writ, together 
 with such a memorandum as above de- 
 scribed, indorsed thereon, this memoran- 
 dum is then called the sherifi's return; 
 and for a false return, he' is civilly re- 
 sponsible. Before the 2 Will. 4,c. 39, 
 writs for the commencement of personal 
 actions, viz., writs of summons, capias, 
 and detainer, were obliged to be returned 
 upon certain fixed days in term, which 
 were thence called the return days of the 
 term; now, however, this is not the case, 
 
REVE, OR GREEVE.— REVIEW, COURT OF. 
 
 307 
 
 Betnrn. — {OonUnued.) 
 the return day being regulated by the 
 service or execution of the writ. The 
 meaning of the word "returnable," as 
 applied to a judge's summons, is nearly 
 the same, signifying the time appointed 
 by the judge in the summons for hearing 
 the parties on the subject-matter of dis- 
 pute ; the summons is said to be returna- 
 ble at such time, because the party who 
 takes out such summons returns with it 
 at the time therein appointed to the place 
 whence he took it out. 1 Arch. Pract. 
 160 ; Smith's Action at Law, 241. 
 
 BEVE, or GREEVE (from the Sax. 
 gerefa, a prefect). The bailiff of a fran- 
 chise or manor; hence, shire-reve is used 
 for a sheriff, &c. Cowel. 
 
 REVELAND. Such land as having re- 
 verted to the king after the death of his 
 thane, who had it for life, was not after- 
 ward granted out of any other person by 
 the king, but remained in charge on the 
 account of the reve or bailiff of the 
 manor, who it seems usually kept the 
 profit of it himself, till it was discovered 
 and presented to the king. Domesday ; 
 Spelman on Feuds. 
 
 *BEVE MOTE. The court of the reve. 
 Burr. Diet. 
 
 RETENIJE : Bee title Taxation. 
 
 BEVEBSAL OF JUDGMENT. The 
 
 annulling or making a judgment void on 
 account of some error in the same. 
 
 BEVEBSION. That which reverts or 
 returns to a person. An estate in rever- 
 sion is defined, or rather described, by 
 Lord Coke to be " the returning of the 
 land to the grantor or his heirs after the 
 grant is determined." The idea of a re- 
 version is founded on the principle that 
 where a person has not parted with his 
 whole estate or interest in a piece of land, 
 all that which he has not given away re- 
 mains in him, and the possession of the 
 land reverts or returns to him upon the 
 determination of the preceding estate. 
 Thus, if a person who is seized in fee of 
 lands conveys them to A. for life, he still 
 retains the fee simple of the lands, be- 
 cause he has not parted with it ; but as 
 that fee simple can only return or fall into 
 possession upon the determination or 
 ending of the preceding estate (i. e., of 
 A.'s estate for life), it is only a fee simple 
 estate in reversion. So that, perhaps, a 
 reversion may be shortly defined as "the 
 
 Reversion. — (Oonihmed.) 
 residue of an estate left in the grantor." 
 The interest which a man has in lands in 
 reversion is commonly called a reversion- 
 ary interest. 3 Cruise, 395, 396. 
 
 EETEBSIONABY INTEBEST. The 
 
 right, title, or interest, which a person 
 has in or to the reversion of lands or 
 other property. A right to the future en- 
 joyment of property at present in the 
 possession or occupation of another is 
 also frequently so called. 
 
 8ee title Rbvbrsion. 
 
 REVERSIONS, SALES OF. These 
 are no longer to be set aside on the ground 
 of undervalue merely (31 Vict. c. 4) ; but 
 this statute does not affect the jurisdic- 
 tion of Courts of Equity over improper 
 sales by unwary young men. Tyler v. 
 Tates, L. R. 6 Ch. 665. 
 
 See, also, title Ustjby. 
 
 BEVEBTEB, FOBMEDON IN: See 
 
 title FOBMBDON. 
 
 BE VEST. To place one in the posses- 
 sion of any thing of which he has been 
 divested or put out of possession. See 1 
 Roper, Husband and Wife, 853. It is op- 
 posed to DrvKST. 
 
 REVIEW, BILL OF. A bill filed to 
 reverse a decree in Chancery, which, after 
 it has been duly enrolled, a party may 
 find good grounds for having reversed, 
 either from error apparent on the face of 
 it, or from new facts discovered since the 
 decree was made, or at least since publi- 
 cation passed in the cause, and which 
 consequently could not be used when the 
 decree was made. 3 Dan. Ch. 1422; 
 Hunter's Suit in Eq. 183. This bill is an 
 alternative remedy with an appeal to the 
 House of Lords. 
 
 See, also, title Re-hbabing. 
 
 BEVIEW, COMMISSION OF. A com- 
 mission sometimes granted in extraordi- 
 nary cases to reverse the sentence of the 
 Court of Delegates when it was appre- 
 hended they had been led into a material 
 error. 
 
 BEVIEW, COUBT OF. A Court es- 
 tabUshed by 1 & 3 Will. 4, c. 56, for the 
 adjudicating upon such matters in bank- 
 ruptcy as before were within the jurisdic- 
 tion of the Lord Chancellor. It formed 
 a constituent and most important part of 
 the Court of Chancery, and exercised a 
 general jurisdiction in bankruptcy, the 
 same as had theretofore been exercised by 
 
308 
 
 REVIEWING TAXATION. — RIENS PER DESCENT. 
 
 Reviewj Court of.- 
 the Lord Chancellor ; and all such mat- 
 ters to be heard and determined in the 
 Court of Review were to be subject to an 
 appeal to the Lord Chancellor on matters 
 of Law and Equity, or on the refusal or 
 admission of evidence. This Court has 
 long ceased to exist, and in lieu of it 
 there is an appeal to the Lords Justices in 
 Chancery, or (in matters of unusual legal 
 importance) to the Lord Chancellor and 
 Lords Justices together. See Bankruptcy 
 Act, 1869. 
 
 REVIEWING TAXATION. The re- 
 taxing or re-examining an attorney's bill 
 of costs by the Master. The Courts some- 
 times order the Masters to review their 
 taxation, when, on being applied to for 
 that purpose, it appears that items have 
 been allowed or (disallowed on some erro- 
 neous principle, or under some mistaken 
 impression. Arch. Pract. 
 
 ♦REVISING BARRISTERS. Barris- 
 ters appointed to revise the lists of voters 
 in England. 
 
 REVIVING. In law signifies much the 
 same as it does in its popular sense, viz., 
 renewing, calling to life again, &c. Thus, 
 when a certain time (formerly a year and 
 a day, but now six years) has elapsed 
 after judgment is signed, without execu- 
 tion being sued out upon it, the law pre- 
 sumes that the judgment . has been exe- 
 cuted, or that the plaintiff has released 
 the execution; and the plaintiff, in order 
 to sue out execution, must in that case 
 first revive the judgment against the de- 
 fendant by a writ of seire fotdas, or now, 
 under the C. L. P. Act, 1853, s. 139, either 
 by suing out a writ of revivor, or (with 
 the leave of the Court or a judge), by 
 merely entering a suggestion upon the roll 
 to the effect that it manifestly appears to 
 the Court that the party applying for leave 
 is entitled to have execution of the judg- 
 ment and to issue execution thereon (3 
 Arch. Pract. 1133). And by s. 134 of the 
 same Act, a writ of revivor to revive a 
 judgment less than ten years old shall be 
 allowed without any rule or order; if 
 more than ten years old, not without a 
 rule of Court or a judge's order ; nor if 
 more than fifteen years old, without a rule 
 to show cause. 
 
 REVIVOR, BILL OF. A bill in Chan- 
 cery which is filed for the purpose of 
 reviving or calling into operation the pro- 
 ceedings in a suit, when, from some cir- 
 
 Reviyor, Bill of. — {Contirmed.) 
 cumstances (as, for instance, the death of 
 a plaintiff ), the suit has abated. It is 
 not, however, in all cases that the death 
 of a party abates the suit ; for it is a gen- 
 eral rule, that wherever the right of the 
 party dying survives to his co-plaintifi or 
 co-defendant, and the cause is in the same 
 condition after the party's death as it 
 was .before, then the suit does not abate, 
 and consequently does not require to be 
 revived. There are also many provisions 
 under recent statutes enacting that cer- 
 tain events shall not abate the suit, and 
 providing for the continuance thereof 
 without the trouble of resorting to a bill 
 of revivor. 
 
 See title Abatement. 
 
 REVOCATION, POWER OF. The 
 
 power to revoke or call back something 
 granted. As if any one makes a convey- 
 ance of any lands, with a clause of revo- 
 cation, at his will and pleasure, of such 
 conveyance; here the clause by which 
 such person reserves to himself the power 
 of revoking such conveyance is termed 
 a power of revocation. 4 Cruise, 466. 
 
 *REWME, in old records. Realm, 
 kingdom. Burr. Diet. 
 
 RIDER. A rider, or rider-roU, signifies 
 a schedule or small piece of parchment 
 annexed to some part of a roU or record. 
 It is frequently familiarly used for any 
 kind of schedule or writing annexed to a 
 document which cannot well be incor- 
 porated in the body of such document. 
 Thus, in passing bUls through Parliament, 
 when a new clause is added after the bill 
 has passed through committee, such new 
 clause is termed a rider. 
 
 RIDINGS. The three great divisions 
 of the county of York are called the 
 North, West and Bast Ridings. The 
 word " riding " is said to be a corruption 
 of trithing, meaning a third part of a 
 county. 
 
 BIENS ARREAR (nothing in arreair). 
 A kind of plea used in an action of debt 
 upon arrearages of account, by which the 
 defendant alleges that there is nothing in 
 arrear. Cowel. 
 
 RIENS PER DESCENT {notMnghy 
 descent). A plea pleaded by an heir to an 
 action brought against hita for debt due 
 by his ancestor to the plaintiff, signifying 
 that he has received nothing from his an- 
 cestor, and therefore is not liable for his 
 ancestor's debt. 
 
EIGHT.— BOBBERY. 
 
 309 
 
 EIGHT ( jus). A lawful title or claim 
 to any thing. 
 
 RIGHT, WBIT OF: See titla Wbit of 
 Right. 
 
 RIGHT CLOSE, WRIT OF. A writ 
 which the king's tenants in ancient de- 
 mesne were entitled to, in order to try the 
 right of their property in a peculiar Court 
 of their own, called a Court of ancient 
 demesne. 
 
 RIGHT TO BEGIN. This is the phrase 
 which denotes the right of the one or 
 other party to an action or suit to open 
 the case. It involves the right to reply ; 
 the reply being often most eflEective, es- 
 pecially in trials before a jury, it is some- 
 times a considerable advantage to the 
 party who has the right to begin. The 
 general rule deciding the matter is the 
 following: — Supposing no evidence were 
 adduced on either side, the party against 
 whom the verdict would be given has the 
 right to begin. This rule, however, does 
 not mean that the defendant (if it should 
 so happen) must open the pleadings ; for 
 in every case, without one exception, 
 these are opened by the plaintiff or his 
 coutfsel. The rule has therefore reference 
 to the evidence merely. There are the 
 three foDowing principal applications of 
 the rule : — 
 
 (1.) The plaintiff begins if the onus of 
 proving any one of the issues rests on 
 him; 
 
 (3.) The defendant begins if the onus 
 of proving not a single issue rests on the 
 plaintiff, but all of them on the defend- 
 ant; and 
 
 (3.) Where the burden of proving all 
 the issues lies on the defendant, and the 
 burden of proving the amount of the 
 damage only lies on the plaintiff, then the 
 plaintiff begins ( Carter v. Jcmet, 6 C. & P. 
 64), although formerly the rule in that 
 case was that the defendant should begin. 
 ■ V. WaUey, 3 C. & P. 474. 
 
 RINGS, GIVING. A custom observed 
 by serjeants-at-law on being called to that 
 degree or order. These rings bear the in- 
 scription of somfe motto selected by the 
 Serjeant about to take the new degree. 
 Thus we find it noted in 2 Q. B. Rep. 
 425, that Cresswell Cresswell, of the Inner 
 Temple, Esq., was appointed a judge of 
 the Common Pleas, m Hilary Term, 5 
 Vict., being first called to the degree of 
 serjeant-at-law, when he gave rings with 
 the motto '^ Leges juraque." 
 
 RIOT. If three or more persons as- 
 semble together with an intent mutually 
 to assist each other against any one who 
 shall oppose them in the execution of 
 some enterprise of a private nature, with 
 force or violence against the peace, or to 
 the manifest terror of the people, whether 
 the act intended were of itself lawful or 
 unlawful, and though they after depart of 
 their own accord without doing any thing, 
 it is an unlawful assembly. If after their 
 first meeting they move forward toward 
 the execution of their intended purpose, 
 whether they actually execute that pur- 
 pose or not, this, according to general 
 opinion, is a rout. And if they put it into 
 execution, then it is a riot. And if any 
 person encourages, promotes, or takes 
 part in such riot, whether by words, signs, 
 or gestures, or by wearing the badges or 
 ensigns of the rioters, he is considered a 
 rioter. 1 Hawk. c. 65, s. 1 ; Arch. Crim. 
 Law, 841. 
 
 ♦RIPARIAN PROPRIETOR. The 
 
 owner of land bordering on a water- 
 course. 
 
 * RIPARIAN LAW. A code of laws 
 of the Franks, who occupied the country 
 on the Rhine, Meuse and Scheldt. 
 
 RIYERS. With reference to navigable 
 rivers, see title Navigation. The law as 
 to non-navigable rivers is as follows : 
 
 (1.) The soil, uspie ad medium Jihim, 
 mcB, usually belongs to the adjoining pro- 
 prietors on each side of the river, and 
 that in proportion to their estates along 
 the bank. Bickett v. Morris, L. R. 1 H. L. 
 So. 47. 
 
 (2.) Accretions from the gradual change 
 or deflection of the course of the river 
 become the property of the adjoining 
 proprietor {Ford v. Lacey, 7 Jur. [N. S.] 
 684) ; similarly accretions by alhmio. Mus- 
 sumat Iman Bandi v. Hurgommd Ghose, 4 
 Moo. Ind. App. 403. 
 
 (3.) The use of the banks is incident to 
 the use of the river, and persons having 
 the latter right have the former also ; the 
 right of fishing in non-navigable rivers 
 belongs to the adjoining proprietors, and 
 such right is protected by the stat. 80 
 Yict. c. 18, and its violation is made a 
 criminal offense by stat. 24 <& 25 Vict. c. 
 96. 
 
 See titles Allitvio ; Fishbbt. 
 
 ROBBERY. The felonious and forci- 
 ble taking from the person of another 
 goods or money to any value by violence 
 
310 
 
 ROLL.— BULB. 
 
 Robbery. — {Continued.) 
 
 or putting him in fear. 1 Hawk. P. C. 
 
 35 ; Arch. Crim. Law, 412. 
 
 See, also, title Larceny. 
 
 BOLL. A schedule or sheet of parch- 
 ment on which legal proceedings are 
 entered. Thus, the roll of parchment on 
 which the issue is entered is termed the 
 issue roll. So the rolls of a manor, 
 wherein the names, rents, and services of 
 the tenants are copied and enrolled, are 
 termed the court rolls. There are also 
 various other rolls, as those which con- 
 tain the records of the High Court of 
 Chancery, which are kept in the Bolls 
 Office of the Chancery; those which con- 
 tain the registers of the proceedings of 
 our old Parliament, and which are called 
 roUs of Parliament ; that in the Inner and 
 Middle Temple, called the calves-head 
 roll, wherein every bencher was taxed 
 annually 3s., every barrister Is. 6i., and 
 every gentleman under the bar Is., to the 
 cook and other officers of the house, in 
 consideration of a calves'-head dinner 
 provided -for them in Easter Term, &c. 
 brig. Jur. 199; Cowel. 
 
 BOLLS COURT: ^S^e title Master of 
 CHE Bolls. 
 
 * BOTA. A celebrated Court of Ap- 
 peals at Bome, of which one judge must 
 be a Frenchman, one a German, two 
 Spaniards, and eight Italians. A similar 
 court was held at Genoa in the sixteenth 
 century. 
 
 ROYAL ASSENT. The royal assent is 
 the last form through which a bill goes 
 previously to becoming an Act of Parlia- 
 ment ; it is, in the words of Lord Hale, 
 "the complement and perfection of a 
 law." The royal assent is given either 
 by the queen in person, or by royal com- 
 mission by the queen herself signed with 
 her own hand. It is rarely given in per- 
 son, except at the end of the session, 
 when the queen attends to prorogue Par- 
 liament. 
 
 5e« title Le Kot lb Veut. 
 
 ROYAL FISH. The whale and stur- 
 geon are so called; and these, when 
 either thrown ashore or caught near to 
 the shore, belong to the Crown. 
 
 ROYAL MINES. These mines which 
 are properly royal, and to which the king 
 is entitled when found, are only those of 
 gold and silver. 
 
 ROYALTIES. The rights of preroga- 
 tives of the king are so called (see title 
 Pberogativb). The dues of the lessor 
 or landlord of mines are also called royal- 
 Ues, apparently in analogy to the tvperiori- 
 ties of the Crown. 
 
 RULE. This word is used in various 
 senses. In its most common acceptation 
 it signifies an order made by the Court 
 at the instance of one of the parties in a 
 suit, usually commanding the opposite 
 party to do some act, or to show cause 
 why some act should not be done. A 
 rule of this kind is said to be either a 
 rule nisi, i. e., to show cause, or a rule 
 absolute. A rule nisi or to show cause 
 commands the party to show cause why 
 he should not do the act required, or why 
 the object of the rule should not be en- 
 forced. A rule absolute commands the 
 subject-matter of the rule to be forthwith 
 enforced. There are some rules which 
 the Courts authorize their officers to grant 
 as a matter of course vyithout formal ap- 
 plication being made to them in open 
 Court, and these are technically termed 
 side-bar rules, because formerly they were 
 moved for by the attorneys at the side- 
 bar in Court ; such, for instance, was the 
 rule to plead, which was an order or fcom- 
 mand of the Court requiring a defendant 
 to plead v(dthin a specified number of 
 days. Such also were the rules to reply, 
 to rejoin, and many others, the granting 
 of which depended upon settled rules of 
 practice rather than upon the discretion 
 of the Courts ; all of which are rendered 
 unnecessary by recent statutory changes. 
 The word "rule," when used as a verb, 
 seems to have two significations : (1) to 
 command or require by a rule of Court, 
 as, for instance, to rule the sheriff to re- 
 turn the writ, to rule the plaintiff to 
 reply ; (3) to settle or decide a point of 
 law arising upon a trial at nisi prius, and 
 when it is said of a leai-ned judge pre- 
 siding at such a trial, that he ruled so 
 and so, it is thereby meant that his lord- 
 ship laid down, settled, or decided such 
 and such to be the law. The rules for 
 regulating the practice of the Courts, 
 and which the judges are empowered to 
 frame, and to put in force, as occasion 
 may require, are also termed Bules of 
 Court. Rules, chiefly of practice or of 
 pleading, are also now commonly made 
 by the judges for the carrying out of the 
 provisions of any Act of Parliament in- 
 volving important changes in the law. 
 See Bankruptcy Act, 1869; Judicature 
 Act, 1873. 
 
RULE OF COURT. — SALE. 
 
 •311 
 
 RULE OF COURT, The rules for 
 regulating the practice of the different 
 Courts, and which the judges are empow- 
 ered to frame, and to put in force as oc- 
 casion may require, are termed Rules of 
 Court. 
 
 RULEj TO. Is commonly used in two 
 senses : (1) for commanding or requiring 
 by a rule or order of Court, as to rule a 
 sheriff to return a writ, &c. ; (2) for lay- 
 ing down, or deciding, or settling a point 
 of law. See the word used by Lord Den- 
 man in Bingham v. Stanley, 2 Q. B. Rep. 
 125. 
 
 See, also, title Rttle. 
 
 RULES OF THE KING'S BENCH 
 PRISON. Were certain limits without 
 the walls, within which all prisoners in 
 custody in civil actions were allowed to 
 live, upon giving security by bond with 
 two sufficient sureties to the marshal not 
 to escape, and paying him a certain per- 
 centage on the amount of the debts for 
 which they were detained. Bagley's 
 Prac. 
 
 RUNNING WITH THE LAND. A 
 
 covenant is said to run with the land 
 when either the liability to perform it or 
 the right to take advantage of it. passes 
 to the assignee of that land. Thus, if A. 
 grants B. a lease of the land for twenty- 
 one years, and the lease, amongst other 
 covenants, contains a covenant on the 
 part of A. for the quiet enjoyment of the 
 land by B. during the term, and also a 
 covenant on the part of B. to cultivate 
 the land demised in a particular manner, 
 and B. afterward assigns the land to C. 
 for the residue of the term, in this case 
 the liability to perform the covenant 
 made by B. and the right to take advan- 
 tage of the covenant made by A. would 
 devolve upon C. as assignee of the land 
 to which the covenants related, and in so 
 doing they would be said to run with the 
 land. Ifohe v. Awder, Cro. Eliz. 436; 
 Ooekaon v. Goch, Cro. Jac. 125. See, a^^o, 
 notes to Spencer's Oase, 1 Sm. L. C. 45. 
 See title Covenant. 
 
 RUNNING WITH THE REVER- 
 SION. ' A covenant is said to run with 
 the reversion when either the liability to 
 perform or the right to take advantage of 
 it passes to the assignee of that rever- 
 sion. Thus, if A. grants a lease of land 
 to B. for twenty-one years, and the lease, 
 among other covenants, contains a cove- 
 nant on the part of A. for the quiet en- 
 joyment of the land by B. during the 
 
 Running with the Reversion. — {Cont.) 
 term, and . also a covenant on the part of 
 B. to cultivate the land demised in a par- 
 ticular manner, and A. afterward assigns 
 the reversion in the land to C, in this 
 case the liability to perform the covenant 
 made by A., and the right to take advan- 
 tage of the covenant made by B., would 
 devolve upon 0. as assignee of the rever- 
 sion in the land to which the covenants 
 related ; and in so doing they would be 
 said to run with the reversion. See Noke 
 V. Awder, Cro. Eliz. 436; Campbell v. 
 Lewis, 3 B. & A. 392; Middl^more v. 
 &oodall, 3 Cro. Car. 503 ; Gockson v. Ooek, 
 Cro. Jac. 125 ; and notes to Spencer's Case, 
 1 Sm. L. C. 45. 
 
 And see title Covenant. 
 
 RURAL DEAN : See title Dean. 
 
 RURAL DEANERY. The circuit or 
 jurisdiction of a rural dean is so called. 
 See title Dean. 
 
 S. 
 
 *SABINIANS. A sect of lawyers 
 having for one of their chiefs Caelius 
 Sabinus, from whom their name is de- 
 rived. Bouv. Diet. 
 
 * SACRAMENTUM DICISIONIS. — 
 
 Where one party, not being able to 
 prove his case, took an oath, and offered 
 to refer the decision of the cause to the 
 oath of his adversary, the latter was 
 bound to make the same offer, or the 
 whole was considered as confessed by 
 him. 3 Bl. Com. 342. 
 
 SACRILEGE. A desecration of any 
 thing that is holy. The alienation of 
 lands which were given to religious pur- 
 poses to laymen, or to profane and com- 
 mon purposes, was also termed sacrilege. 
 Cowel. 
 
 SAFE CONDUCT. A guarantee or 
 security granted by the king under the 
 great seal to a stranger for his safe com- 
 ing into and passing out of the kingdom. 
 Cowel, 
 
 SAFE-GUARD. A security given by 
 the king to a stranger who fears ^he vio- 
 lence of some of his subjects, for seeking 
 Ms right by course of Law. Reg. Orig. 
 26; Cowel. 
 
 SALE. The transferring of property 
 from one man to another in consideration 
 of some price or recompense in value, i. e.. 
 for valuable consideration. 
 
312- 
 
 SALE, BILL OF. — SALVAGE. 
 
 Sale. — ( Contimied.) 
 
 The contract of sale in English Law is 
 a real contract, or in the nature of a real 
 contract, some tender or transfer being 
 required by the Common Law to make the 
 sale complete; in Boman Law, on the 
 other hand, the contract of sale is a con^ 
 sensual contract, being complete as soon 
 as the price is agreed on. The two sys- 
 tems of law agree in this, that so soon as 
 the sale of a specific article or ascertained 
 bulk is complete, all risk attaching to it 
 forthwith rests upon the purchasers, the 
 Roman Law expressing this rule in the 
 maxim " Pericumn rei wriMtm statim ad 
 envptorem perUnet,'" and the English Law 
 in the maxim ''Jfes perit dommo ;" and 
 that in the case of a non-specific article 
 or unascertained bulk, the risk does not 
 so rest, until the article or bulk becomes 
 specific or is ascertained. But there is 
 this very striking diflference between the 
 English and the Roman Law in the con- 
 tract of sale, namely, that in English Law 
 the PKOPBBTT in a specific article (or in 
 a non-specific article or unascertained 
 bulk so soon as the same becomes specific 
 or ascertained) passes to and vests in the 
 purchaser even before delivery, the vendor 
 retaining only a lien on it while in his 
 possession for the price; whereas, in 
 Roman Law such property does not pass 
 into the purchaser until after payment of 
 the price and also delivery of the article. 
 See, generally, Benjamin on Sales; and 
 Just. Inst. ii. 1. 41, and iii. 23 (24), pref. 
 
 SALE, BILL OF : See title Bill of 
 
 Sale. 
 
 SALE ON APPROVAL. This phrase 
 and the corresponding phrases " sale on 
 trial " and "sale or return," is a sale de- 
 pendent upon a condition precedent, viz., 
 the condition of the purchaser being 
 satisfied with or approving the goods. 
 The approval may be implied from keep- 
 ing the goods beyond a reasonable time. 
 Benjamin, 483. 
 
 SALE WITH ALL FAULTS. In this 
 case, unless the seller fraudulently and 
 inconsistently represents the article sold 
 to be faultless, or contrives to conceal any 
 fault from the purchaser, the latter must 
 take the article for better or worse. 
 Baglehole v. Walters, 3 Camp. 154. 
 
 SALIQUE LAW. An ancient law 
 made by Pharamond, King of the Franks, 
 by which males only were capable of in- 
 heriting. Cowel. 
 
 SALVAGE. Is the compensation al- 
 lowed to persons 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, derelict, capture, and the Uke. 
 And a salvor is he who renders such 
 assistance. The chief statutory provisions 
 at present in force with reference to 
 wreck and salvage are contained in Part 
 viir. of the stat. 17 & 18 Vict. c. 104 
 (Merchant Shipping Act, 1854). 
 
 The services entitling to salvage must 
 be such as demanded skill, enterprise, 
 and risk on the part of the salvors ; for 
 mere ordinary services, as towage, no 
 salvage is claimable {The Princess AUce, 
 3 W. Rob. 138). Moreover, these services 
 must have been attended with success 
 (The Edwa/rd-Hamhms, 31 L. J. [Adm.] 
 46) ; for salvage, it is said, is a reward 
 for services actually conferred, not for 
 services attempted to be conferred {The 
 Ohetah, 5 Moo. P. C. C. [N. S.] 621). 
 There may be a valid agreement regard- 
 ing salvage between the master of a vessel 
 and the salvors, and such agreement wiU 
 be binding on the owner of the ship 
 {The Firefy, Sw. 240), unless proved to 
 be dishonest and exorbitant, or to have 
 been obtained by compulsion or fraud. 
 Tlie Helen amd George, Sw. 368. 
 
 The right to salvage may be forfeited 
 either totally or partially by misconduct 
 on the part of the salvors, but the evi- 
 dence of misconduct must be conclusive 
 {The Oha/rles Adolphe, Sw. 153). A tow- 
 ing ship, if it render salvage services, 
 will be entitled to salvage reward like 
 any other ship {TTie Retrieve v. The Queen, 
 11 L. T. [N. S.] 329). Similarly, one of 
 the vessels which have been in collision 
 may, if the innocent party, be entitled to 
 salvage for services rendered to the other 
 party, and that notwithstanding 25 & 26 
 Vict. c. 63, s. 33 ; but not so, if both 
 ships were equally in fault {Oargo ex 
 Gapella, L. R. 1 A. & E. 356). 
 
 The following persons may become en- 
 titled to salvage : (1.) Officers and crews 
 of Her Majesty's ships; (2.) Pilots, but 
 not for mere pilotage services ; (3.) Sea- 
 men of the abandoned wreck; (4.) Ship 
 agents; (5.) Ship-owners; (6.) Masters 
 of vessels; (7.) Beachmen, guardsmen, 
 and others ; but not passengers on board 
 the wreck. 
 
 With reference to the amount of sal- 
 vage, the Court of Admiralty never allows 
 more than a moiety for salvage, however 
 meritorious the salvage services may have 
 
SANCTUARY. — SATISFACTION IN EQUITY. 
 
 313 
 
 SalTage. — (Continued,') 
 been {Ths Inca, Sw. 370); the value is to 
 be calculated at the place where the ser- 
 yices terminate; also, pro raid itineris 
 peracti, and the other equities of the case 
 {The Norma, Lush. 124). Ship and cargo 
 must each pay its own share of salvage 
 (The Pyrenee, B. & L. 189) ; and as be- 
 tween difEerent salvors, the Court is able, 
 imder the Merchant Shipping Act, 1854, 
 s. 498, to decree an equitable apportion- 
 ment. The Enchantress, Lush. 93. And 
 see, generally, Kay on Shipping. 
 
 SANCTUARY. A consecrated place 
 which had certain privileges annexed to 
 it, and to which offenders were accus- 
 tomed to resort in order to evade the 
 severity of the law. Staunf . PI. Cor. lib. 
 2, c. 38. 
 
 See title Abjueation. 
 
 SANE MEMORY. Sound mind, 
 memory, and understanding. This is 
 one of the essential elements in the 
 capacity of contracting ; and the absence 
 of it in lunatics and idiots, and its im- 
 maturity in infamts, is the cause of their 
 respective incapacities or partial inca- 
 pacities to bind themselves. The like 
 circumstance is their ground of exemp- 
 tion in cases of crime. 
 
 SATISFACTION. The satisfying a 
 party by paying what is due to him, or 
 what is awarded to him by judgment of 
 the Court or otherwise. Thus a judgment 
 is satisfied by payment of the amount due 
 to the party who has recovered such judg- 
 ment, or by the party's levying the 
 amount or otherwise. The entry of satis- 
 facHcm on the roll is a memorandum 
 which is entered on the judgment roll, 
 by which the party who has recovered 
 the judgment acknowledges that he has 
 been satisfied by his opponent by payment 
 of the damages, costs and charges, &c., 
 and therefore that he may be acquitted 
 thereof. A satisfaction piece is a memo- 
 randum written on a piece of parchment, 
 stating that satisfaction is acknowledged 
 between the plaintiff and the defendant. 
 This memorandum or satisfaction piece, 
 as it is called, is taken to one of the 
 masters of the Court, and from it he enters 
 the satisfaction on the roll before men- 
 tioned. 1 Arch. Pract. 723. 
 
 SATISFACTION IN EQUITY. Is a 
 
 doctrine somewhat analogous to Per- 
 formance in Equity {see that title), but 
 differs from it in tUs respect, that satis- 
 
 Satisfaction in Equity. — (Continued.) 
 faction is always something given either 
 in whole or in part as a substitute and 
 equivalent for something else, and not (as 
 in Performance) something that may be 
 construed as the identical thing cove- 
 nanted to be done. The subject of satis- 
 faction divides itself into four, or rather 
 three branches, viz. : — 
 
 (1.) The satisfaction of debts by lega- 
 cies; 
 
 (2.) The satisfaction of legacies by 
 legacies; and 
 
 (8.) The satisfaction of legacies by 
 portions, and of portions by 
 legacies. 
 
 (1.) Debts by Legacies. — The general 
 rule in this case is, that a legacy equal to 
 or greater than the debt is a satisfaction ; 
 but that a legacy less than the debt is not 
 even a satisfaction of it pro tanto ; and in 
 determining what is less, that may be 
 either in amount, or in time of payment, 
 or in certainty of payment. And as the 
 leaning of the Court in this case is against 
 satisfaction, very slight circumstances 
 are allowed to rebut the doctrine of satis- 
 faction, so that the creditor will take 
 cumulatively both his debt and the 
 legacy. 
 
 (2.) Legacies by Legacies. — The gen- 
 eral rule in this case is, that if the two 
 legacies are: (a.) In the same instrument, 
 when if different in amount, the legatee 
 takes both, but if equal in amount, one 
 only; and if the two legacies are, (6.) In 
 different instruments, then whether they 
 are different or equal in amount, the 
 legatee takes both ; with one exception, 
 via., that where the legacies are equal in 
 amount, and the same motive is assigned 
 in each case for giving the legacy, then 
 the legatee will take one only. 
 
 (8.) Legacies by Portions, and Portions 
 by Legacies. — The general rule in this 
 case is, that the legatee or portionist 
 shall take one only, and not both; nor 
 does it matter since Pym v. Zochyer (5 . 
 My. & Cr. 39) whether the will or the 
 settlement comes first, excepting to this 
 extent, that what is due under the settle- 
 ment is in the nature of a debt, and re- 
 coverable accordingly, while what is due 
 under the will (so far as it is in excess of 
 that due under the settlement) is a vol- 
 untary bounty only ; liable to fail or abate 
 accordingly. There is one curious anomaly 
 connected with satisfaction in this case, 
 viz.,- that as the word "portion" is apph- 
 cable to children only, and a bastard is 
 not a child, therefore the bastard takes 
 
314 SAVING THE STATUTE OP LIMITATIONS. — SCIRE FACIAS. 
 
 Satisfaction in Eqnity. — {Gontmued.) 
 both the gift under the settlement and 
 that under the will, and is therefore bet- 
 ter off than either a child or one in whom 
 the settlor-testator has put himself in loco 
 Mb parte J^e, 18 Ves. 140. 
 
 SAVING THE STATUTE OF LIMI- 
 TATIONS. Preventing the operation of 
 the statute. A creditor is said to save 
 the Statute of Limitations when he saves 
 or preserves his debt from being barred 
 by the operation of the statute. Thus, in 
 the case of a simple contract debt, if a 
 creditor commence an action for its re- 
 covery within six years from the time 
 when the cause of action accrued, he will 
 be in time to save the statute. 
 
 See title Limitations, Statute of. 
 
 SCANDAL. The words "scandal" and 
 " impertinence " are thus used with refer- 
 ence to pleadings in Equity. Scandal is 
 defined to be any thing alleged in a bill, 
 answer or other pleading, in such language 
 as is unbecoming the Court to hear, or as 
 is contrary to good manners ; or any thing 
 set forth which charges some person with 
 a crime not necessary to be shown in the 
 cause. Impertinence is defined to be the 
 incumbering the records of the Courts 
 with long recitals, or with long digres- 
 sions of matters of fact, which are alto- 
 gether unnecessary and totally immaterial 
 to the point in question. Exceptions 
 might formerly have been taken to plead- 
 ings for scandal and impertinence ; and 
 such exceptions may still be taken for 
 scandal, but since the Jurisdiction Act, 
 1852 (15 & 16 Vict. c. 86), s. 17, the prac- 
 tice of excepting for impertinence was 
 abolished, and the only check upon im- 
 pertinent pleadings is now visiting them 
 with costs. And now under the Judica- 
 ture Act, 1873, all exceptions are abol- 
 ished, but the faulty pleading may be 
 objected to by motion ili a summary man- 
 ner. 
 
 SCANDALUM MAGNATUM. Scandal, 
 or spreading false reports against peers 
 and certain other great officers of the 
 realm is so called, and is subjected to pe- 
 culiar punishment by divers ancient stat- 
 utes. Cowel. 
 
 SCHEDULE. A piece of paper or 
 parchment containing a list or inventory 
 of things usually annexed to deeds and 
 to Acts of Parliament. 
 
 SCIENTER. A term used in pleading 
 to signify that part of the declaration 
 
 Scienter. — ( Contwmed.) 
 which alleges the defendant's previous 
 knowledge of the cause which led to the 
 injury complained of, or rather his previous 
 knowledge of a state of things which it 
 was his duty to guard against, and his 
 omission to do which has led to the in- 
 jury complained of. Thus, in an action 
 upon the case for keeping dogs that 
 chased and killed the plaintiff's cattle, 
 that part of the declaration which, after 
 stating that the ' ' defendant wrongfully 
 kept dogs," adds, " knowing them to be 
 accustomed to chase and kill cattle," is 
 termed the scienter. The following pass- 
 age from'the judgment of Ellenborough, 
 C. J., in Jackson v. Pealced (1. M. & S. 
 238), furnishes an apt illustration of the 
 use of the word: "In an action for keep- 
 ing a mischievous bull there was no 
 Scienter in the declaration ; and after a 
 verdict for the plaintiff, the judgment was 
 arrested on that account ; and the Court 
 said ' they could not intend it was proved 
 at the trial ; for the plaintiff need not 
 prove more than is in his declaration ;' 
 and yet every lawyer is aware that a 
 knowledge of the mischievous nature of 
 the animal is of the essence of such an 
 action, and would therefore never suffer 
 a jury, if he could control them, to find 
 for the plaintiff in such a case, unless 
 such a knowledge in the defendant were 
 proved." See Steph. PL 178, 4th edit.; 
 1 Chit. PI. tit. '■ Scienter;" 1 M. & S. 338. 
 
 SCILICET (fo wit, that is to say). A 
 word frequently used in pleadings to 
 point out or particularize that which has 
 been previously stated in general terms 
 only. For more particular information 
 with regard to this word, see title Vidb- 
 
 LIOBT. 
 
 ♦SCINTILLA JURIS. A very small 
 portion of an estate remaining in feoffees 
 to uses, but sufficient to support contin- 
 gent uses when they came in esse. 4 Kent 
 Com. 288-246. 
 
 SCIRE FACIAS {that you mahelmown). 
 A scire facias is a judicial writ founded 
 upon some matter of record, and requir- 
 ing the person against whom it is brought 
 to show cause why the party bringing it 
 should not have the advantage of such 
 record, or (as in the case of scire facias to 
 repeal letters patent) why the record 
 should not be annulled and vacated. It 
 is, however, considered in law as an ac- 
 tion ; and in the nature of a new original. 
 It is used for a variety of purposes, but 
 
SCmB FIERI. — SEA-SHORE. 
 
 315 
 
 Scire Facias. — {Continued.) 
 perhaps one of the most common uses to 
 ■which it was applied was to revive a 
 judgment after it had become extinct. 
 For all writs of execution must formerly 
 have been sued out within a year and a 
 day after the judgment was entered,other- 
 wise the Court concluded primdfade that 
 the judgment was satisfied and extinct, 
 as it is now presumed to be after six years 
 and non-execution; yet, however, it 
 would grant this writ of aa/re facias, 
 which stated the judgment recovered by 
 the plaintiff, and that execution still re- 
 mained to be had, and commanded the 
 sheriff to make known to the defendant 
 that he should be in court on the return 
 day, in order to show why the plaintiff 
 ought not to have execution against him 
 (2 Arch. Pract. 1132). The writ of scire 
 famas does not, apparently, now lie for 
 the purpose of reviving a judgment, at 
 least in the usual cases, a writ of revivor 
 or a suggestion on the roll being substi- 
 tuted for it by the C. L. P. Act, 1852, s. 
 129 ; however, the writ still lies in the 
 cases referred to in s. 132 of that Act, and 
 also on a judgment against an executor 
 of assets qaando acciderint, and in some 
 other peculiar cases. Sm. Act. at Law, 
 292. 
 
 SCIRE FIERI. When to a writ of ex- 
 ecution issued against an executor or an 
 administrator, the sheriff returns nulla 
 lona, the plaintiff, if he can prove a devas- 
 fcmt, may sue out a scire fieri inquiry, 
 which is a writ directed to the sheriff, 
 commanding him that in case there shall 
 be no goods of the testator remaining in 
 the hands of the executor, he shall sum- 
 mon a jury to inquire whether the de- 
 fendant has wasted the goods of the 
 testator, and if a devastamt be found, that 
 he shall warn the defendant that he be in 
 Court upon a day mentioned, to show 
 cause why the plaintiff should not have a 
 fieri facias de bonis propriis against him. 
 a Arch. Pract. 1233. 
 
 SCOT AND LOT. A customary con- 
 tribution laid on all subjects according to 
 their ability. 
 
 SCRIVENER. An agent to whom prop- 
 erty was intrusted for the purpose of 
 lending it out to others at an interest pay- 
 able to his principal, and for a commis- 
 sion or bonus for himself, whereby he 
 sought to gain his livelihood. In order 
 to make a man a money scrivener he must 
 carry on the business of being intrusted 
 
 Scrivener. — {OmitmueA.) 
 
 with other people's moneys to lay out for' 
 
 them as occasion offers. See Arch. Bank. 
 
 86 ; Adams v. MalMn, 3 Cramp. 534, per 
 
 Gibbs, C. J. ; Scott a/kd Another -7. MekiCle 
 
 and others, 3 Scott's N. R. 346 ; 9 Dow. 
 
 882. 
 
 * S C R U E T ROLL. The record of 
 bail in habeas corpus cases. Bouv. Bict. 
 
 SCUT AGE (scutagiwm) : See title Escu- 
 
 AGK. 
 
 SCUTAGIO HABENDO. A writ that 
 lay for the king or other lord against his 
 tenant, who held by knight-service, to 
 compel him to serve in the wars, or to 
 find a substitute, or to pay scutage. F. 
 N. B. 83; Cowel. 
 
 *SCTREGEMOTE. The principal 
 court among the Saxons. 
 
 * SEAL. When a seal is affixed to an 
 instrument it is called a specialty. See 
 4 Kent Com. 452. 
 
 SEA-SHORE. This appears in con- 
 templation of law to belong in property 
 to the sovereign as a jus privatum, subject 
 to the jus public/urn, or public right of the 
 sovereign and people together, to pass 
 and re-pass over it, which latter right is 
 in the nature of an easement {Att.-Gen. 
 V. Bimridge, 10 Price, 350). The king 
 may grant his private right to a corpora- 
 tion, being caput partus, but not so as to 
 prejudice the public right. Att.-Oen. v. 
 Pavmeter, 10 Price, 378. 
 
 In the absence of all other evidence the 
 extent of the Crown's right to the sea- 
 shore landwards is the line of the medium 
 high tide between the springs and the 
 neaps {Att.-Oen. v. Chambers, 4 De Qc. M. 
 & G. 206) ; and the bed of all navigable 
 rivers where the tide flows and re-flows, 
 and of all estuaries or arms of the sea, is 
 vested in the Crown, but subject to the 
 right of navigation which belongs by law 
 to the subjects of the realm, and of which 
 the right to anchor forms a part; and 
 every grant thereof made by the Crown is 
 subject to such public right of navigation 
 {Qann v. Free Fishers of Whitstdhle, 11 H. 
 L. C. 192), and for which, therefore, the 
 grantee cannot (in the general case) 
 charge anchorage dues. As evidence of 
 such a grant of the sea-shore to the lord 
 of the manor, the exclusive taking of 
 sand, stones, and sea-weed may be called 
 in aid, in the absence of documentary 
 evidence of the grant. Caknadyv. Borne, 
 6 0. B. 861. 
 
316 
 
 SECONDARY. — SB DEFENDENDO. 
 
 Sea-Shore. — (OonMnued.) 
 
 If the sea, by gradual and impercepti- 
 ble progress, encroaches upon the land 
 of a subject, the land thereby covered 
 with water accrues to the Crown (In re 
 Bull & Setby SMhoay, 5 M. & W. 337); 
 and in the case of a like retirement of 
 the sea, the land accrues to the adjoining 
 owner. AU.-Gen,. v. Ohambers, 4 De G. 
 & J. 55. 
 
 SECONDABY. An officer of the Court 
 of King's Bench and Common Pleas ; so 
 called because he was second or next to 
 the chief officer. The secondaries of 
 those Courts were abolished by 7 Will. 4 
 & 1 Vict. c. 30 (1 Arch. Pract. 11). But 
 at the present day there is a law officer in 
 the City of London who bears the name 
 of Secondary. 
 
 SECONDARY CONVEYANCES. Con- 
 veyances are sometimes divided into pri- 
 mary or original conveyances, and second- 
 ary or derivative. The first, as their title 
 imports, are such as do not depend upon 
 any previous conveyance, but are inde- 
 pendent and original; the second are 
 such as pre-suppose some other convey- 
 ance precedent, and only serve to en- 
 large, confirm, alter, restrain, restore, or 
 transfer the interest granted by such 
 original conveyance; thus an assign- 
 ment of a lease may be considered a sec- 
 ondary conveyance with respect to the 
 lease itself. 
 
 Bee, also, title Convbtancbs. 
 
 SECOND DELIVERANCE, WRIT OF. 
 
 A writ which lies for a plaintiff after he 
 has been nonsuited in an action of re- 
 plevin, in pursuance of which the sheriff 
 must again deliver to the plaintiff the 
 goods that were distrained, on his giving 
 security, as he did in the first instance, 
 to re-deliver them, if the distress prove a 
 justifiable one. 3 Arch. Pract. 1087, 1094. 
 
 * SECOND SURCHARGE, WRIT OF. 
 
 A writ issued against an English com- 
 moner who has surcharged the common 
 a second time. 8 Bl. Com. 239. 
 
 SECRET COMMITTEE. A secret 
 committee of the House of Commons is a 
 committee specially appointed to investi- 
 gate a certain matter, and to which se- 
 crecy being deemed necessary in further- 
 ance of its objects, its proceedings are 
 conducted with closed doors, to the ex- 
 clusion of all persons not members of such 
 committee. All other committees are 
 open to members of the House, although 
 they may not be serving upon them. 
 
 SECTA, or SUIT. By these words 
 were anciently understood the witnesses 
 or followers of the plaintiff. 
 
 See, also, following titles. 
 
 SECTA AD CURIAM. A writ that lay 
 against him who refused to ;perform his 
 suit, either to the County Court or Court 
 Baron. Cowel. 
 
 SECTA AD MOLENDINUM, WRIT 
 
 DE. A writ which lay for the owner 
 of a mill against the inhabitants of 
 the place where such mill is situated, 
 for not doing suit to the plaintiff's mill ; 
 that is, for not having their com ground 
 at it. 
 
 SECTA REGALIS. A suit so called 
 by which all persons were bound twice 
 in a year to attend in the sheriff's toum, 
 in order that they might be informed in 
 things relating to the public peace. It 
 was so called because the shenff's toum 
 was the king's leet, and it was held in 
 order that the people might be bound by 
 oath to bear trae allegiance to the king. 
 Cowel. 
 
 SECURITY FOR COSTS. When the 
 plaintiff in a suit resides out of the juris- 
 diction of the Court in which his suit is 
 pending, or lives abroad, and the defend- 
 ant is apprehensive that the plaintiff, in 
 the event of being defeated, will evade 
 payment of the costs or expenses of the 
 suit, it is u?ual for him to apply to the 
 Court to compel the plaintiff's attorney to 
 give security for such payment, and which 
 the Court usually orders to be done, on its 
 appearing that there are good grounds for 
 the application. The security is common- 
 ly effected by the plaintiff and two sure- 
 ties entering into a bond to a sufficient 
 amount to cover the supposed costs of the 
 suit (3 Arch. Pract. 1414). The mere 
 poverty of a plaintiff is, however, no 
 ground for requiring him to give security 
 for costs, unless to a limited extent in 
 some proceedings in tort proper for the 
 County Court, but which the plaintiff 
 chooses to institute in a superior Court 
 (see County Courts Act, 1867, 30 & 31 
 Vict. c. 143, s. 10). An appellant must in- 
 variably give security for costs, but com- 
 monly, in England, he makes a deposit of 
 money in lieu tljereof . 
 
 SECUS (Lat., otherwise, not «o, the cortr 
 trary) : See the word used in 1 Man. & 
 Gr. 208, n. 
 
 SE DEFENDENDO (m defending him- 
 self). A plea pleaded by him who is 
 
SEDITION. — SEIZIN. 
 
 317 
 
 Se Defendendo. — (OonMnued.) 
 charged -witli the death of another, to the 
 effect that he was obliged to do what he 
 did in his own defense, otherwise his life 
 would have been in danger. Stavinf . PI. 
 Cor. lib. 1, c. 7. 
 
 See titles Homicide and Son Assauit 
 Dekeske. 
 
 ♦SEDITION. An attempt made by 
 meetings and speeches or publications to 
 disturb the tranquillity of the state or to 
 excite discontent in respect to the gov- 
 ernment. It does not amount to treason. 
 Burr. Diet. 
 
 SEDUCTION is a tort committed 
 against a parent or master by having sex- 
 ual intercourse, through persuasion, with 
 his daughter or female servant. The 
 foundation of the action is loss of servi- 
 ces ; and a parent can only maintain the 
 action if his daughter was in his service 
 at the time. But the slightest degree of 
 service will suffice ; and the jui-y wiU give 
 damages not at all in proportion to the 
 value of the services, but in proportion to 
 the meanness of the conduct of the seducer 
 — this excess of damage being awarded as 
 a solatium, to the f ee&gs of the injured 
 parent, and with which (although it is 
 contrary to the principles of our law) the 
 judge rarely chooses to interfere. When 
 a master sues for the seduction of his 
 servant, he must provq a subsisting con- 
 tract of service valid in law at the time 
 of the seduction. Brctoegirdle v. Bmld, 1 
 B. & Aid. 722. 
 
 SEIGNIOE (from the Pr.sei^n«w, lord), 
 in its general signification means lord, 
 but in law it is particularly applied to the 
 lord of a fee or of a manor ; and the fee, 
 dominions, or manor of a seigrUor, is 
 thence termed a seigniory, i. e., a lord- 
 ship. He wh9 is a lord, but of no manor, 
 and therefore unable to keep a Court, is 
 termed a seignior in gross. Kitchin, 
 206; CoweL 
 
 SEIGNIORAGE. A privilege or pre- 
 rogative of the king, by which he claims 
 an allowance in respect of gold and sil- 
 ver brought in the mass to be exchanged 
 for coin. Cowel. 
 
 SEIZED IN DEMESNE AS OF FEE. 
 
 Is the strict technical expression used to 
 describe the ownership in "an estate in 
 fee simple in possession in a corporeal 
 hereditament." The word "seized" is 
 used to express the " seizin " or owner's 
 possession of a freehold property; the 
 
 Seized in Demesne as of Fee. — {Cont'd.) 
 phrase "in demesne," or "in his de- 
 mesne " (in dominico auo), signifies that he 
 is seized as owner of the land itself, and 
 not merely of the seigniory or services ; 
 and the concluding words "as of fee" 
 import that he is seized of an estate of 
 inheritance in fee simple. Where the 
 subject is incorporeal, or the estate ex- 
 pectant on a precedent freehold, the 
 words "in his demesne" are omitted. 
 Co. Litt. 17 a; Fleta, 1. 5, c. 5, s. 18; 
 Bract. 1. 4, tr. 5, c. 3, s. 2. 
 
 SEIZIN (seisina). Possession or a 
 freehold estate. Upon the introduction 
 of the Feudal Law into England the word 
 " seizin " was applied only to the posses- 
 sion of an estate of freehold in contradis- 
 tinction to that precarious kind of pos- 
 session by which tenants in villenage held 
 their lands, which was considered to be 
 the possession of those in whom the free- 
 hold continued. The word stiU retains 
 its original signification, being applied 
 exclusively to the possession of land of a 
 freehold tenure, it being inaccurate to 
 use the word as expressive of the posses- 
 sion of leaseholds or terms of years, or 
 even of copyholds. To seize signifies to 
 take possession of lands of a freehold 
 tenure by the ceremony of Uvery of seizin, 
 or delivery of possession ; to be seized to 
 be in possession of such land ; and the 
 possession of the land itself, which has 
 been acquired by the ceremony of livery 
 of seizin, is thence denominated ''seisin " 
 or ' ' seizin. " The following passage from 
 Cruise's Dig. tit. 8, c. 1, s. 10, affords a 
 good illustration of the word: "A ten- 
 ant for years is not said to be seized of 
 the lands, the possession not being given 
 to him by the ceremony of livery of seizin ; 
 nor does the mere delivery of a lease for 
 years vest any estate in the lessee, but 
 only gives him a right of entry on the 
 land ; when he has actually entered, the 
 estate becomes actually vested in him, 
 and he is then possessed, not properly of 
 the land, but of the term for years, the 
 seizin of the freehold stUl remaining in 
 the lessor." It may be observed, how- 
 ever, that the word " seize " is sometimes 
 used in reference to the possession of 
 goods. Thus, in Taylor v. Msher (Cro. 
 Eliz. 245, 346), the following passage 
 occurs : " Trespass for breaking his house 
 and taking away a corslet and a pike of 
 the plaintiffs. The defendant pleaded 
 that long time before the supposed tres- 
 pass, J. Bamfield was seized of the ^aid 
 
318 
 
 SEIZING OF HEEIOTS.^ SEQUESTRATION. 
 
 Seizin. — 
 
 
 
 corslet and pike, as of his own goods," 
 &c. See Watk. Introd. Conv. by Mor- 
 ley; Coote & Gov. 7th edit. pp. 32, 33; 
 1 Cru. Dig. tit. 8, c. 1, s. 10; 3 C. M. & 
 R. 41, n. (a); 3 Camp. 116, per Lord 
 EUenborough, C. J. ; Cro. Eliz. 245. 
 
 SEIZING OF HEBIOTS. The seizing 
 of heriots, when due on the death of a 
 tenant, is a species of self-remedy, re- 
 sembling that of taking cattle or goods 
 in distress ; excepting that a distress is 
 merely taken as a pledge for other prop- 
 erty, whereas a heriot is or becomes the 
 actual property of him who so seizes it. 
 See title Hhriot. 
 
 SELF-DEFENSE : See title Sb Dbfbn- 
 
 DBNDO. 
 
 SEMBLE. It would seem; it would 
 appear, &c., e. g., "In assumpsit on a 
 proviso to manage a farm in a good hus- 
 bandlike manner, and according to the 
 custom of the country; aemble, that it is 
 sufficient to assign a breach in the words 
 of the promise." 1 C. & M. 89. 
 
 SEPABATE DE]VISE IN EJECT- 
 MENT. A demise in a declaration in 
 ejectment used to be termed a separate 
 demise when made by the lessor sepa- 
 rately or individually, as distinguished 
 from a demise made jointly by two or 
 more persons, which was termed a joint 
 demise. No such demise, either sep- 
 arate or joint, is now necessary in tins 
 action. 
 
 See title Ejbctmbnt. 
 
 SEPABATE ESTATE. Property which 
 a married woman, under certain circum- 
 stances, is entitled to retain for her sepa- 
 rate and independent use. By the custom 
 of London a married woman may acquire 
 a separate estate by carrying on trade on 
 her own separate account. The right of 
 the wife to the enjoyment of property 
 separately from her husband is usually 
 secured by trustees being appointed on 
 her behalf, to whom the property is con- 
 veyed in trust for her sole and separate 
 use; but although no trustees be ap- 
 pointed for the wife, under a limitation 
 to her separate use. Equity would convert 
 her husband into a trustee for her, and 
 she would still be entitled to the enjoy- 
 ment of the separate estate. And under 
 the Stat. 21 & 22 Vict. c. 85, a woman 
 judicially separated from her husband 
 holds her property to her own separate 
 use, and such use continues in case the 
 
 Separate Estate. — {Oontirmed.) 
 cohabitation is afterward resumed. So, 
 also, under the M. W. P. Act, 1870 (33 
 & 34 Vict. c. 98) numerous species of 
 property are made the wife's separate 
 estate. . 
 
 The Court of Chancery, to further 
 secure to married women the enjoyment 
 of separate estate, allows of a restraint 
 upon anticipation, i. e., alienation, to be 
 attached to the property {Pybm v. Smith, 
 3 Bro. C. 0. 389) ; and the operation of 
 that restraint was settled in the case of 
 TuUett V. Armstrong (1 Beav. 1) to be this, 
 that it attaches upon marriage, dis-at- 
 taches upon widowhood, re-attaches upon 
 a re-marriage, and so on. 
 
 To the extent that a married woman 
 has separate estate sheisa/eme sole ; and 
 unless restrained from anticipation she 
 may alienate it by any of those voluntary 
 or involuntary modes by which a feme 
 sole or a man may do (Ta/ylor v. Meads, 34 
 L. J. [Ch.] 203; MattJiewman's Oase, L. E. 
 3 Eq. 787). She may also permit her 
 husband to receive it, and in that case 
 she is entitled to only one year's account 
 of it ; and her husband takes all her sepa- 
 rate personal estate that is undisposed of 
 at her death, if choses in possession or 
 chattels real, by his marital right {Molony 
 V. Kennedy, 10 Sim. 254), and if choses 
 in action, by his right as her adminis- 
 trator. Proudley v. Fielder, 2 My. & E. 
 57. 
 
 SEQUESTER. As used in the Civil 
 Law signifies to renounce or disclaim, &c. 
 As when a widow comes into Court and 
 disclaims to have any thing to do or to 
 intermeddle with her deceased husband's 
 estate she is said to sequester. The word 
 more commonly signifies the act of taking 
 in execution under a sequestration the 
 ecclesiastical goods and chattels of a 
 beneficed clerk or clergyman. 
 
 See title Sbqubstkation. 
 
 SEQUESTRARI FACIAS. A writ of 
 execution against a clergyman, directed 
 to the bishop of the diocese in which the 
 defendant resides, commanding the bishop 
 to enter the rectory and parish church, 
 and to take and sequester the same and 
 hold them until of the rents, tithes, and 
 profits thereof, and of other ecclesiastical 
 goods of the defendant, he shall have 
 levied the plaintiff's debt. 2 Arch. Pract. 
 1284. 
 
 SEQUESTRATION. This word, in its 
 most ordinary sense, signifies a kind of 
 
SEQUESTRB. — 8EEJEANT-AT-AKMS. 
 
 319 
 
 Sequestration. — ( Cmtmtied.) 
 execution for debt, and is most frequently 
 used against a beneficed clerk or clergy- 
 man. In this case the plaintiff sues out 
 B. fieri facias de tonia eccledaslieU, directed 
 to the bishop of the diocese, commanding 
 him to make of the ecclesiastical goods 
 and chattels belonging to the defendant 
 ■within his diocese the sum mentioned in 
 the writ. This writ is taken to the regis- 
 trar of the diocese, who thereupon issues 
 a sequestration, which is in the nature of 
 a warrant directed to the churchwardens, 
 requiring them to levy the debt of the 
 tithes and other profits of the defendant's 
 benefice. Sequestration also issues in 
 Chancery when a defendant has eluded 
 the process of the Court, and a commis- 
 sion of rebellion has been awarded 
 against him to no efEect; by virtue of 
 which sequestration his personal estate, 
 and the profits of his real, are seized and 
 detained until the defendant obeys the 
 commands of the Court. A sequestration 
 is also defined to be the separating of a 
 thing in controversy from the possession 
 of both those who contend for it, and 
 in this sense it is considered either as 
 voluntary or necessary ; the former being 
 that which is done by the consent of each 
 party, the latter that which is done by 
 the judge of his own authority, whether 
 the parties will or not. The word 
 "sequestration " used also to signify the 
 act of the ordinary in disposing of the 
 goods and chattels of a deceased person 
 whose estate no man would meddle 
 with. It is also used to signify the 
 gathering, collecting, and taking care 
 of the fruits and profits of a vacant 
 benefice for the benefit of the next in- 
 cumbent. The persons who are ap- 
 pointed to take care of the goods and 
 chattels, or of the rents and profits of 
 lands that are so sequestered, are de- 
 nominated sequestrators. 2 Arch. Pract. 
 1284; Cowel. 
 
 sIlQUESTEE: &« title Depot. 
 
 seriatim:. Severally, separately, 
 individually, one by one: e. g., ''Their 
 lordships delivered their judgments seri- 
 atim." In cases of great importance, or 
 where the judges djJEer in opinion, it is 
 usual for them to deliver their judgments 
 individually, instead of delegating one 
 with the power of delivering the united 
 judgment of the whole Court, and in 
 such cases they are said to deliver their 
 judgments seriatim. 
 
 SERJEANT, or SERGEANT. There 
 are various officers connected with the 
 law that are denominated Serjeants — as 
 serjeant-at-law, serjeant-at-arms, serjeant 
 of the mace, &o. A serjeant-at-law is a 
 barrister of the Common Law Courts of 
 high standing, and of much the same 
 rank as a doctor of law is in the Ecclcr 
 siastical Courts. These Serjeants seem 
 to have derived their title from the old 
 knights templars (amongst whom there 
 existed a peculiar class under the denomi- 
 nation of frh-e» '■^sergens" ovfratrea aer- 
 vientes), and to have continued as a sepa- 
 rate fraternity from a very early period 
 in the history of the legal profession. 
 The barristers who first assumed the old 
 monastic title were those who practiced 
 in the Court of Common Pleas, and until 
 a very recent period (the 35th of April, 
 1834, 9 & 10 Vict. c. 54) the serjeants-at- 
 law always had the exclusive privilege of 
 practice in that Court. Every judge of a 
 Common Law Court previous to his ele- 
 vation to the bench used to be created a 
 serjeant-at-law; but since the Judicature 
 Act, 1873, this is no longer necessary. 
 Amongst all the Serjeants, judges, and 
 others, the practice is to address each 
 other by the familiar epithet of " brother. " 
 A serjeant-at-arms is an officer connected 
 with the House of Commons, whose duty 
 it is to keep the doors of the House, and 
 also to apprehend and to take into custody 
 any offender whom the House may com- 
 mit to his charge. There is a similar 
 officer connected with the House of 
 Lords. There is also a serjeant-at-arms 
 belonging to the Court of Chancery, 
 whose duty it is to apprehend such per- 
 sons as are guilty of contempt of Court, 
 &c. Serjeants of the mace are a kind of 
 inferior officers who attend the mayor or 
 other head officer in the city of London 
 and other corporate towns. Cowel ; Ad- 
 dison's Knights Templars, 318 ; The Ser- 
 jeants^ Oase, 6 Bing. N. C. 235 ; Fortesc. 
 0. 50. 
 
 SERJEANT-AT-ARMS is the title of 
 an officer in each of the two Houses of 
 Parliament. His duties in the House of 
 Lords are to attend upon the Chancellor 
 with the mace, and to execute the orders 
 of the House for the apprehension of 
 delinquents; and in the Commons this 
 officer attends upon the Speaker with the 
 mace, carries messages from the bar to 
 the table, and executes the orders of the 
 House with respect to delinquents to be 
 taken into custody for breaches of its 
 privileges. 
 
320 
 
 SBRJEANTY. — SERVITUDE. 
 
 SERJEANTY. A species of tenure by 
 knight service, which was due to the king 
 only, and was distinguished into grand 
 and petit serjeanty; the tenant holding 
 by ^and serjeanty was bound, instead of 
 serving the king generally in his wars, to 
 do some honorary service to the king in 
 person, as to carry his banner, his sword, 
 or the like ; or to be his butler, champion, 
 or other officer at his coronation. Petit 
 serjeanty difiEered from grand serjeanty 
 in that the service rendered to the king 
 was not of a personal nature, but con- 
 sisted in rendering him annually some 
 small implement of war — as a bow, a 
 sword, a lance, an arrow, or the like 
 (Cowel). Both these species of tenures 
 were spared at the general abolition of 
 feudal tenures in 1660 (13 Car. 2, c. 24) ; 
 and the estates of Strathfleldsaye (Duke 
 of Wellington) and Blenheim (Duke of 
 Marlborough) are examples, perhaps the 
 only examples, at the present day of the 
 tenure by petit serjeanty. 
 
 SERVICE. The consideration which 
 the feudal tenants were bound to render 
 to their lords in recompense for the lands 
 they held of him. This service in origi- 
 nal f eods was only twofold ; to follow, or 
 do suit to their lord, in his courts in time 
 of peace, and in his armies or warlike 
 retinue in times of war. Generally, how- 
 ever, these services varied much; some 
 being of a personal nature, others not; 
 some of an honorable, others of a menial 
 or servile character. Britton, c. 66. 
 
 SERVICE OF WRITS, &c. The ser- 
 vice of writs, summonses, rules, &c., sig- 
 nifies the delivering or leaving them with 
 the party to whom, or with whom they 
 ought to be delivered or left ; and when 
 they are so delivered they are then said to 
 have been served. Usually a copy only 
 is served, and the original is shown. 
 Various periods of time are limited for 
 the service of particular process; and 
 those periods cannot in the general case 
 be exceeded. Usually the service must 
 be personal, but in cases of peculiarity 
 substituted service may be made with the 
 leave of the Court. 
 
 Bee title SxiBSTmjTBD Sbkvice. 
 
 SERVICES PONCIERS. These are in 
 French Law the easements of English 
 Law. 
 
 SERVIENT TENEMENT. In the law 
 of easements the tenement, whose owner 
 as such is subject to an easement enjoyed 
 
 Servient Tenement.— ^((7oK.*J?ii««dl.) 
 by an adjoining tenement, is called by 
 this name. 
 
 See title Easements. 
 
 SERVITIUM LIBERUM. A sort of free 
 or liberal service which certain feodatory 
 tenants, called M)eri homines, were bound 
 to perform. And as these tenants them- 
 selves were diflEerent from vassals, so 
 were their services of a more honorable 
 nature ; as to attend the lord's Court, to 
 find a man and horse to go with the lord 
 into the army, and such like. Cowel. 
 
 SERVITIUM REGALE. Royal ser- 
 vice, or the rights and prerogatives of 
 manors which belong to the kmg as lord 
 of the same, and which were generally 
 reckoned to be six, viz., (1), power of ju- 
 dicature in matters of property ; (2) pow- 
 er of life and death in felonies and mur- 
 ders ; (3) a right to waifs and strays ; (4) 
 assessments ; (5) minting of money ; and 
 (6) assize of bread, beer, weights, and 
 measures. CoweL 
 
 SERVITORS OF BILLS were messen- 
 gers of the marshal of the King's Bench, 
 who were sent to serve biUs or vmts to 
 summon men to Court. They are now 
 more commonly called tipstaves. 2 Hen. 
 4, c. 23 ; Cowel, 
 
 See title Tipstaff. 
 
 SERVITUDE, in its original and pop- 
 ular sense, signifies the duty of service, or 
 rather the condition of one who is liable 
 to the performance of services. -The 
 word, however, in its legal sense, is ap- 
 plied figuratively to things. When the 
 freedom of ownership in land is fettered 
 or restricted, by reason of some person, 
 other than the owner thereof, having some 
 right therein, the land is said to serve 
 such person; the restricted condition of 
 the ownersldp, or the right which 
 forms the subject-matter of the restric- 
 tion, is termed a servitude ; and the land 
 so burdened with another's right is termed 
 a servient tenement, while the land be- 
 longing to the person enjoying the right 
 is called the dominant tenement (see titles 
 Dominant and Sbbvibnt Tenements). 
 The principles with regard to servitude, 
 and the terms employed in treating of 
 them are borrowed from the Roman Law. 
 In the language of the Roman Law, a 
 thing is said to be servient in which, al- 
 though it is owned by another, we have 
 a real right, by virtue of which, and for 
 the advantage of our person or property, 
 we can require the owner, or any pos- 
 
SESSION. — SET-OFF. 
 
 321 
 
 Serritnde. — {Continued.) 
 aessor of the thing, to suffer, or omit to 
 do something with respect to such thing, 
 which he would not have to submit to if 
 the rights which constitute ownership re- 
 mained in himself undiminished. Servi- 
 tude is therefore a jxis in re, as distin- 
 guished from apis ad rem; the former is 
 a real right, or a right in the thing itself, 
 and consequently has effect against every 
 third person ; while the latter is a per- 
 sonal right, or a right to the thing, and 
 hence applies only against the actual 
 obligee. If my neighbor burdens his 
 land for the benefit of my land, with the 
 lermtus eonvpaacm, or with the serwMis ne 
 himinOms offldatur, I have in each of these 
 cases 3,j%is in re, and every holder of the 
 land must suffer me to pasture my cattle 
 on it, and he must abstain from erecting 
 any thing on his ground, or doing any 
 thing to it whereby my light would be 
 injured. The word "servitude" maybe 
 said to have both an active and a passive 
 signification ; in the former sense denot- 
 ing the restrictive right belonging to the 
 entitled party; in the latter, the restrict- 
 ive duty entailed upon the proprietor or 
 possessor of the servient land. 
 
 See, also, title Easements. 
 
 SESSION. The sitting of the justices 
 in Court by virtue of their commission. 
 There are various kinds of sessions, viz., 
 (1), Session of Parliament; (3), Great 
 Session of Wales; (3), Session of Gaol 
 Delivery; (4), Session of the Peace. 
 These will be explained in their order : 
 (1.) Session of Parliament signifies merely 
 the sitting of Palrliament in order to 
 transact the business of the State. (2.) 
 The Great Session of Wales was a session 
 or Court held .in Wales twice in every 
 year, similar to our assizes ; these sessions, 
 however, were abolished by the 1 Will. 4, 
 c. 70, and the judges now go the circuits 
 in Wales and Cheshire the same as in the 
 English counties. (3.) Session of Gaol 
 DeSvery was a session held for delivering 
 a gaol of the prisoners therein confined. 
 (4.) Session of the Peace. This is a Court 
 of record, and is held before two or more 
 justices of the peace, one of whom must 
 be of the quorum (see title Qtjobum). The 
 jurisdiction of this Court, by stat. 34 
 Bdw. 3, c. 1, extended to the trying and 
 determining all felonies and trespasses 
 whatsoever, although they seldom, if ever, 
 try any greater offense tjian small felon- 
 ies. There are three different kinds of 
 sessions held by justices of the peace: 
 
 At 
 
 I 
 
 Session. — ( Oonlmued.) 
 {a.) General sessions, which may be held 
 at any time of the year for the general ex- 
 ecution of the authority of the justices ; 
 (ft.) The general quarter sessions, which 
 are held at four stated times in the year; 
 and (c.) A special or petty sessions, which 
 may be holden on any special occasion 
 for the execution of some particular 
 branch of the authority of the justices. 
 a Hale, P. C. 43 ; Tomlins. 
 
 SESSIONAL ORDERS. There are 
 (jertain resolutions which are agreed to by 
 both Houses at the commencement of 
 every session of Parliament, and have re- 
 lation to the business and convenience 
 thereof; but they are not intended to 
 continue in force beyond the session in 
 which they are adopted. They are prin- 
 cipally of use as directing the order of 
 business. 
 
 SESSIONS FOR WEIGHTS AND 
 MEASURES. A session in London, 
 which may be held before four justices, 
 selected ftom the mayor, recorder, and 
 aldermen (of which the mayor or re- 
 corder must be one), to inquire into the 
 offenses of selling by false weights and 
 measures, contrary, to the statutes, and to 
 receive indictments, punish offenders, &c. 
 Cunningham. 
 
 SET. This word appears to be nearly 
 synonymous with the word "lease." 
 When used as a verb it would seem to 
 convey the same meaning as "to lease." 
 A lease of mines is frequently termed a 
 "mining set." 
 
 * SET OP EXCHANGE. The parts of 
 a bin of exchange called 1st of exchange, 
 3(2 of exchange, &c., any one part of 
 which being paid the others become null. 
 
 SET-OFF. A demand which the de- 
 fendant in an action sets up against the 
 plaintiff's demand, so as to counterbalance 
 that of the plaintiff, either altogether or 
 in part. As if the plaintiff sues for ten 
 pounds due on a note of hand, the de- 
 fendant may set off nine pounds due to 
 himself from the plaintiff, for merchan- 
 dise sold to the plaintiff ; and if he pleads 
 such set-off in reduction of the plaintiff's 
 claim, such plea is termed a plea of set- 
 off. A set-off may therefore be defined 
 to be a claim which a defendant has upon 
 a plaintiff, and which he sets up or places 
 against the plaintiff's demand. 
 
 The leading principles of set-off are the 
 following: 1st. At Lorn there was no set- 
 
322 SETTLEMENT, ACT OF. — SETTLEMENT OF REAL ESTATE. 
 
 Set-off. — {Ocmtinued.) 
 ofE in case of mutual unconnected debts, 
 until the Statutes of Set-off, 3 Geo. 3, c. 
 32, and 8 Geo. 3, c. 34, pemritted it in 
 the case of the bankruptcy of either 
 debtor; but as to connected accounts, the 
 balance was in the general case recovera- 
 ble at Law. 3dly. In Equity, these 
 Courts generally follow the rules of the 
 Common Law in allowing or in refusing a 
 set-off, but they allow a set-off in the fol- 
 lowing further cases: (as.) In the case of 
 mutual independent debts contracted 
 upon the faith of a mutual credit (Lanei- 
 horough v. Jones. 1 P. Wms. 336); (6.) 
 In the case of cross demands admitting 
 a set-off at Law, but of which the one or 
 both are of an equitable nature ; and even 
 (e.) In the case of cross demands arising 
 in different rights, but in this last case 
 only under circumstances of particularity, 
 e. g., of fraud. Mc parte Stephens, 11 
 Ves. 34. 
 
 SETTLEJIENT, ACT OP. The stat. 
 of 13 & 13 "Will. 3, c. 3, by which the 
 Crown was limited to the house of Han- 
 over, and some new provisions were added 
 at the same time for the better securing 
 our religion, laws, and liberties. 
 
 See, also, title Stjcohssion to the 
 Crown. 
 
 SETTLEMENT, DEED OF. A deed 
 made for the purpose of settling property, 
 i. e., arranging the mode and extent of 
 the enjoyment thereof. The party who 
 settles property is called the settlor; and 
 usually his wife and children, or his cred- 
 itors, or his near relations, are the bene- 
 ficiaries taking interests under the settle- 
 ment. 
 
 It may be either a marriage settlement, 
 and in that case either a settlement of 
 real estate or a settlement of personal 
 estate ; or it may be a trust deed in favor 
 of creditors, or it may be a voluntary 
 settlement. 
 
 See each of these several titles. 
 
 SETTLEMENT OP PERSONAL 
 
 ESTATE. This is a settlement usually 
 made upon marriage, either a marriage to 
 follow, or one which has already taken 
 place. It is a deed of trust ; and usually 
 the first trusts (after providing for the in- 
 vestment of the trust funds) relate to the 
 destination of the income during the lives 
 of husband and wife, and that of the 
 survivor of them. When the property 
 put into settlement is contributed by the 
 husband, the first life interest is in gen- 
 
 Settlement of Personal Estate. — ((7<m.) 
 
 eral given to him ; on the other hand, 
 where the property is contributed by the 
 wife, the first life interest is invariably 
 given to her own separate use without 
 power of anticipation ; but it is compe- 
 tent to the wife to allow the husband to 
 receive the income without account. 
 After the decease of both husband and 
 wife, the ordinary trusts of the settle- 
 ment are for the children or remote issue 
 of the marriage as the husband and wife 
 or the survivor shall appoint; and in de- 
 fault of, or subject to, any such appoint- 
 ment, then in trust for the children 
 equally, sons taking a vested, i. e., trans- 
 missible, share at twenty-one, daughters 
 the like at twenty-one or marriagej which- 
 ever is the earlier event ; and in case of a 
 failure of children or remote issue of the 
 marriage living to attain a vested interest, 
 the trust property is usuailly made to re- 
 vert to the party vrho has contributed 
 the same. The settlement usually con- 
 tains special provisions regarding the 
 maintenance, education, and advance- 
 ment of the children of the marriage, as to 
 which see these titles. Very generally, it 
 also contains a covenant to bring into set- 
 tlement the after-acquired property of the 
 wife (exceeding a certain value, which 
 varies according to the wealth of the 
 parties). 
 
 SETTLEMENT OP REAL ESTATE. 
 
 This, also, is usually a deed of trust made 
 in contemplation of marriage ; but it dif- 
 fers from a settlement of personal estate 
 in this respect, that the limitations of real 
 estate may be made" without the inter- 
 vention of trustees, whereas there can be 
 no partial estate, but only the absolute 
 interest in personal estate at Law, and 
 such latter estates are only good in 
 Equity. 
 
 A settlement of real estate may be either 
 a strict settlement, as it is called, or one 
 that is not strict. The latter kind of set- 
 tlement is made where it is desired to 
 settle the land ia such a way as that the 
 children shall take equally, and the proper 
 mode of attaining that object is by con- 
 veying the land to trustees in trust for 
 sale, such trust being made exercisable 
 durmg the lives of the tenants for life 
 with their consent only, and afterward 
 at the sole discretion of the trustees, and 
 the proceeds te arise from the sale are 
 then settled as personal estate (see title 
 Sbttlkment 01" PEBSONAii Estate), with 
 a proviso that until sale the rents and 
 
SETTLEMENT OF REAL ESTATE. — SETTLEMENT, POOR LAW. 323 
 
 Settlement of Eeal Estate. — (OonPd.) 
 profits shall be paid and applied in the 
 same manner as the income of the pro- 
 ceeds would be applicable if a sale had 
 been already made. On the other hand, 
 if the real estate (being an old family 
 estate, or for any other reason) is to be 
 settled strictly, the general form and con- 
 tents of the settlement are as follows : — 
 The first testatum contains a grant of the 
 freehold property to the general trustees 
 (grantees to uses) to the use of the settlor 
 until the marriage, and thereafter to the 
 use of pin-money trustees for a term of 
 ninety-nine years, and subject thereto to 
 the use of the settlor for fife, remainder 
 to the use that the wife surviving her 
 husband shall receive a jointure rent- 
 charge during her Uf e, and subject thereto 
 to the use of jointure trustees for a term 
 of 200 years, and subject thereto to the 
 use of portion trustees for a term of 600 
 years, and subject thereto to the use of 
 the first and other sons of the marriage 
 successively in tail male [with the re- 
 mainders to the use of the husband's 
 younger brothers for life, and to their re- 
 spective issues in tail male in succession, 
 with remainder to the first and other 
 sons of the intended husband in tail, with 
 the like remainder to his daughters in 
 tail, with remainder to the first and other 
 sons of the husband's brother in tail, 
 with remainder to the first and other 
 daugters of the same brothers in tail], 
 with remainder to the right heirs of the 
 settlor. The limitations within the square 
 brackets are often omitted, or left to be 
 subsequently settled by the remainder- 
 man in fee, or by the first tenant in tail. 
 The settlement ought also to contain the 
 following usual clauses : — 
 
 (1.) Maintenance and education clause ; 
 
 (3.) Advancement clause ; 
 
 (3.) Provisions for the raising of por- 
 tions ; 
 
 (4.) Provisions for the application of 
 rents during minorities ; 
 
 (5.) Power for the husband to charge 
 the premises with a gross sum ; 
 
 (6.) Power for him to charge an addi- 
 tional rent-charge for his in- 
 tended Vif e ; 
 
 (7.) Power for him to jointure any fu- 
 • ture wife, and to charge portions 
 for his children by her; 
 
 (8.) General powers of managing estate, 
 according to its nature, by grant- 
 ing mining, agricultural, or other 
 leases, subject to certain restric- 
 tions ; 
 
 Settlement of Real Estate. — (Confd.) 
 (9.) Powers of sale and exchange; 
 (10.) Powers of enfranchisement and 
 
 partition ; 
 (11.) Provisions for the application of 
 the moneys received upon any 
 sale, exchange, enfranchisement, 
 or partition ; 
 (12.) Power to general trustees to give 
 receipts for such last-mentioned 
 moneys; and 
 (13.) Power of appointing new trus- 
 tees. 
 Where the settled property comprises 
 freeholds, copyholds, leaseholds, and 
 heirlooms, or general personal estate, there 
 is usually a separate testatum for each of 
 these species of property ; and the settlor 
 gives the usual covenants on the part of a 
 vendor, a settlement being in the nature 
 of a purchase-deed. 
 
 SETTLEMENT, POOR LAW. The 
 
 right, depending on various circumstances, 
 which entitles a pauper to be maintained 
 by a particular locality, whether parish 
 or union, is called his settlement. In 
 the case of a married woman, her settle- 
 ment follows that of her husband, assum- 
 ing the marriage to have been legal (CAin- 
 Tirnn V. Prestm, 1. W. Bl. 192) ; but if her 
 husband has no settlement she retains 
 her maiden settlement (^Rex v. St. Botolph, 
 Burr. S. C. 367). With reference to 
 children (as.), if legitimate, the place of 
 their birth is primdfade the place of their 
 settlement, such settlement continuing so 
 long as the child remains a member of 
 the family (_Sex v. Bleasbi/, 3 B. & A. 377) ; 
 and (5.), if illegitimate, the mother's set- 
 tlement is that of the child (4 & 5 Will. 
 4, c. 76, c. 71). Domestic servants used 
 to acquire a settlement by one year's 
 uninterrupted service in the same ser- 
 vice, but such is not now the effect of 
 service (4 & 5 Will. 4, c. 76, s. 64). 
 Being an apprentice and inhabiting in 
 any town or place makes that place the 
 settlement of the child (3 W. & M. c. 
 11, 8. 8; St. Panaras v. Glapliam, 3 Bl. 
 & El. 742). Also renting a tenement 
 of the yearly value of £10 and paying 
 poor rates for one year confers a settle- 
 ment, under 35 Geo. 3, c. 101, and 4 «& 5 
 Will. 4, c. 76. Also acquiring property 
 at the purchase price of £30 or upwards, 
 appears to confer a settlement in the 
 place where the property is situated ; 
 but residence in the place seems to be 
 also necessai-y. 
 
 See, also, title Poor. 
 
324 
 
 SEVERAL COVENANT. — SHERIFF'S COURT. 
 
 SEVERAL COVENANT. A covenant 
 by two or more persons severally, and not 
 jointly, so that they are severally or sepa- 
 rately bound by it. 5 Rep. 23. 
 See title Covenant. 
 
 SEVERAL FISHEBT: 5«« title 
 
 FiBHBRT. 
 
 SEVERAL INHERITANCE. An in- 
 heritance conveyed in such manner as to 
 descend or come down to two or more 
 persons severally, and not jointly, by 
 moieties. Cunningham. 
 
 SEVERAL TAIL. An entail severally 
 to two ; as if land is given to two men 
 and their wives and to the heirs of their 
 bodies begotten ; here the donees have a 
 joint estate for their two lives, and yet 
 they have a several inheritance, because 
 the issue of the one shall have his moiety, 
 and the issue of the other the other 
 moiety. Cowel. 
 
 SEVERALTY. A person is said to 
 hold lands in severalty when he is the sole 
 tenant thereof, and holds them in hU own 
 right only, without any other person be- 
 ing joined or connected with him in point 
 of interest during his estate therein. 
 
 SEVERANCE. Singling, dividing, dis- 
 joining. Thus, in pleading, when there 
 are several defendants in an action they 
 may either all plead jointly one and the 
 same defense, or each defendant may 
 plead a separate defense for himself if he 
 thinks such a course preferable ; in which 
 latter case he is said to ' ' sever, " and the 
 subject generally is termed "severance 
 in pleading." When, however, defend- 
 ants have once united in the plea — that 
 is, have pleaded a joint defense, they can- 
 not afterward sever at the rejoinder, or 
 any other later stage of the pleadings. 
 The word "severance" is also used to 
 signify the cutting of the crops, such as 
 com, grass, &c. F. N. B. 78; Steph. PI. 
 385, 4th ed. ; 4 B. & C. 764. 
 
 SEWERS, COMMISSIONERS OF. 
 
 The Court of Commisaioners of Sewers is 
 a temporary tribunal erected by virtue of 
 a commission under the great seal. Its 
 jurisdiction is to overlook the repairs of 
 sea-banks and sea-walls, and the cleans- 
 ing of rivers, public streams, ditches, and 
 other conduits, whereby any waters are 
 carried oS ; and is confined to such county 
 or particular district as the commission 
 expressly names. 
 
 SHERIFF (from the Saxon scir-5'«r«/«). 
 A sheriff is the principal oflttcer in every 
 county, and has the transacting of the 
 public business of the coimty. He is an 
 officer of great antiquity, and was also 
 called the shire-reve, reve, or baiUff. He 
 is called in Latin vieecomea, as being the 
 deputy of the earl or comes, to whom the 
 custody of the shire is said to have been 
 committed at the first division of this 
 kingdom into counties. But the earls in 
 process of time, on account of their high 
 employments and attendance on the king's 
 person, not being able to transact the 
 business of the county, were relieved of 
 that burden, reserving to themselves the 
 honor, but the labor was laid on the 
 sheriff, who now, therefore, does all the 
 king's business in the county. The office 
 of sheriS lasts for one year, and his duties, 
 which are very numerous and important, 
 are commonly performed by his deputy, 
 called an under-sheriff. The duties prin- 
 cipally consist in executing writs, pre- 
 cepts, warrants from justices of the peace 
 for the apprehension of offenders, &c. He 
 was also empowered to act as judge in 
 the Coimty Court (or Sheriff's Court, as it 
 was sometimes called), where actions were 
 brought for the recovery of sums under 
 £30 ; and to the present day the City of 
 London Court, which is a County Court, 
 is the same as the Sheriff's Court. But 
 by recent statutes (for which see title 
 CoTJNTT Cotjbt), a new organization of 
 County Courts has been provided, and 
 which has little or no connection with the 
 sheriff, a special officer (called the County 
 Court Judge) presiding over each County 
 Court. 
 
 Under the statute 38 Edw. 1, st. 3, c. 8, 
 the election of the sheriffs of the county 
 belonged to the freeholders of the county 
 assembled in the County Court ; but by 
 the subsequent statute, 9 Edw. 3, st. 3, 
 the right of election was vested in (per- 
 haps restored to) the Crown, who made 
 the election through its chancellor, jus- 
 tices, &c. By the statute 14 Edw. 3, st. 
 1, c. 7, it was enacted that the sheriffs of 
 every county should be annuajly re-elected 
 at the Exchequer; and the practice at the 
 present day is regulated by the last-men- 
 tioned Act. 
 
 SHERIFF'S COURT. The Court held 
 before the sheriff's deputy — that is, the 
 under-sheriff, and wherein actions are 
 brought for recovery of debts under £30 ; 
 writs of inquiry are also brought here to 
 be executed. The Sheriff's Court for 
 
SHEKIPF'8 JUEY. — SIGNIPICAVIT. 
 
 325 
 
 Sheriff's Court. — (^Continued.) 
 the county of Middlesex is that in -which 
 damages are assessed in proper cases after 
 trial at Westminster. 
 
 * SHERIFF'S JURY. A jury sum- 
 moned by the sherifE to hold an inquest. 
 The number might be more or less than 
 twelve. 3 Bl. Com. 358. 
 
 SHERIFF'S TOURN. The sherifiE's 
 toum, or rotation, is a Court of record, 
 held t^wice every year before the sheriS in 
 different parts of the county; being in- 
 deed only the turn of the sheriff to keep 
 a Court Leet in each respective hundred. 
 4 Inst. 259; 2 Hawk. P. C. 55. 
 
 SHIFTING USE : See title Use. 
 
 SHIP-MONET. An ancient imposition, 
 which, after having lain dormant for 
 many years, was attempted to be revived 
 by King Charles I., in 1685 and 1636, and 
 his attempt to revive which was adjudged 
 legal in the great Case of Ship-money (3 
 St. Tr. 825). It consisted of a tax levied 
 on all the ports, towns, cities, boroughs, 
 and counties of the realm for providing 
 and fitting out ships of war for the king's 
 service (Oowel; 17 Car. 1, c. 14). The 
 tax was subsequently resolved in Parlia- 
 ment to be illegal, or, at all events, un- 
 constitutional. 
 
 * SHIP'S HUSBAND. The agent who 
 attends to the repairs, management, 
 equipment and other concerns of a ship. 
 3 Kent Com. 151 ; Abb. on Shipping, 105. 
 
 * SHIPPING ARTICLES. The agree- 
 ment between the master and seamen of 
 a ship as to the voyage and the term for 
 which seamen are shipped. 
 
 SHIRE-MOTE. The assizes of the 
 shire, or the assembly of the people, was 
 so called by the Saxons. It was nearly, 
 if not exactly, the same as the Soyr-gemote, 
 and in most respects corresponded with 
 what were afterward called the County 
 Courts. 
 
 /Se« titles Courts op Justice ; CpuNTY 
 
 COUBTS. 
 
 SHORT CAUSE IN CHANCERY. Is 
 
 a cause which is not likely to occupy a 
 great portion of the time of the Court, 
 and which may be entered in the list of 
 ' ' short causes, " set apart for the purpose, 
 upon the appUcation of one of the parties 
 and a certificate of his counsel that the 
 cause is a proper one to be heard as a 
 " short cause." If both the parties con- 
 
 Short Canse In Chancery. — (Omfid.) 
 sent to the speedy decision of the suit, 
 the cause is heard as a "consent cause;" 
 but if one refuses to consent, and throws 
 obstacles in the way of its speedy decis- 
 ion, it may, but only if from its nature 
 it is a proper case to be heard as a short 
 cause, be still heard more speedily than 
 it would be in its regular course by its 
 entry as a "short cause" (11 Sim. 51; 3 
 Keen, 671; 1 Keen, 464; 3 M. & C. 453). 
 At the present day the difference between 
 a short cause and a consent cause is prac- 
 tically non-existent. 1 Dan. Ch. Pr. 800. 
 
 SHOW CAUSE, RULE TO: See title 
 Rule. ' 
 
 SI FECERIT TE SECURUM. One of 
 
 the species of original writs, and which 
 was so called from the words of the writ, 
 which directed the sheriff to cause the 
 defendant to appear in Court without 
 any option given him, "provided the plain- 
 tiff gave the sheriff security " effectually to 
 prosecute his claim. 
 
 SI NON OMNES. A writ of associa- 
 tion of justices, by which if all in com- 
 mission cannot meet at the day assigned 
 it is allowed that two or more of them 
 may finish the business. And after the 
 writ of association it is usual to make 
 out a writ of si jwn omnes, directed to the 
 first justices, and also to those who are 
 associated to them ; which, after reciting 
 the purport of the two former commissions, 
 commands the justices that if all of them 
 cannot conveniently be present, such a 
 number of them may proceed, &c. F. N. 
 B. Ill; Cowel; Tomlins. 
 
 SIDE BAR RULE : See title Rule. 
 
 SIDESMEN. Or, as they were likewise 
 termed, synodsmen, were originally per- 
 sons whom, in the ancient episcopal 
 synods, the bishops were wont to sum- 
 mon out of each parish to give informa- 
 tion of the disorders of the clergy and 
 people. These in the process of time be- 
 came standing officers, under the title of 
 sidesmen, synodsmen, or questmen. The 
 whole of their duties seems now to have 
 devolved by custom upon the church- 
 wardens of a parish. Cripps' Laws of the 
 Church and Clergy, 180. 
 
 SIGNIFICAYIT. Was that clause of 
 the writ de contumace capiendo which 
 stated that a certain judge or other com- 
 petent person had " signified " to the king 
 that he against whom the writ was issued 
 was " manifestly contumacious." It was 
 
326 
 
 SIGN MANUAL. — SmONT. 
 
 SigniflcaTit. — 
 
 in the following form: — "'William the 
 Fourth by the grace of God," &c., "to 
 
 the sheriff of shire, greeting: Sir 
 
 John NichoU, Knight, Doctor of Laws, 
 Official Principal of the Arches Court of 
 Canterbury, lawfully constituted, hath 
 signified to us that one A. B., Esq., of 
 
 in the county of , is manifestly 
 
 contumacious." The '^aignificamV'' was 
 inserted also in other writs of similar 
 nature. Sometimes the writ itself which 
 contained this clause was termed a " »ig- 
 mficamt." See Bex v. BichetU, 6 Ad. & 
 B. 537. 
 
 See, also, title ExcoMMrmiCATO Ca- 
 
 PrBNDO. 
 
 SIGN MANUAL. The signature or 
 subscription of the king is termed his 
 sign manual. There is this difference be- 
 tween what the sovereign does under the 
 sign manual and what he or she does 
 under the great seal, viz., that the former 
 is done as a personal act of the sovereign, 
 the latter as an act of state. 
 
 SIGNING JUDGMENT. Is the act of 
 
 entering the judgment, which either the 
 plaintiff or defendant has obtained in an 
 action. Judgments, like the pleadings, 
 were formerly pronounced in open Court, 
 and are stiU always supposed to be so. 
 But by a relaxation of practice, there is 
 now, in England, except in the case of 
 an issue in law, no actual delivery of 
 judgment either in Court or elsewhere. 
 The plaintiff or defendant, when the 
 cause is in such a state that by the course 
 of practice he is entitled to judgment, 
 obtains the signature or allowance of the 
 proper officer of the Court, expressing 
 generally that judgment is given in his 
 favor, and this is called signing judgment, 
 and stands in the place of the actual de- 
 livery thereof by the judges themselves. 
 And sometimes the officer only grants his 
 permission to sign ; for it has been stated 
 that the signing of the judgment is but 
 the leave of the master of the office for the 
 attorney to enter the judgment for his 
 client. Style's Prac. Reg. title "Judg- 
 ment;" Steph. PI. 122, 5th ed. 
 
 SILK GOWN. Is the professional robe 
 worn by those barristers who have been 
 appointed of the number of Her Majesty's 
 counsel, and is the distinctive badge of 
 Queen's counsel, as the stuff gown is of 
 the ' ' juniors " who have not attained that 
 dignity. Accordingly, when a barrister 
 is raised to the degree of Queen's counsel. 
 
 Silk Gown. — {OonMrmed.) 
 he is said to have "got a silk gown.'' 
 The right to confer this dignity resides 
 with the Lord Chancellor, who disposes 
 of this branch of his patronage according 
 to the talents, the practice, the seniority, 
 and the general merits of the junior 
 counsel. 
 
 SIMILITER. That set form of words 
 used by the plaintiff or defendant in an 
 action by wMch he signifies his accept- 
 ance of the issue tendered by his oppo- 
 nent. When simply added to the adver- 
 sary's pleading, containing the tender of 
 issue, it is in the following form: "And 
 the plaintiff \pr defendant, as the case may 
 5e] doth the Uke." When instead of 
 being simply added to the pleading as 
 above explained, it is delivered to the 
 opposite party as a separate instrument, 
 it then runs in the following form : "And 
 the plaintiff, as to the plea of the defend- 
 ant by him above pleaded, and whereof 
 he hath put himself upon the country, 
 doth the like;" and in this case it is 
 called a "special stm&'fer." The use of 
 the similiter is only applicable to issues 
 of fact which are triable by the country 
 (i. e. a jury). It serves, says Mr. Serjeant 
 Stephen, to mark the acceptance both of 
 the question itself, and the mode of trial 
 proposed, although originally it seems to 
 have been introduced with the view to 
 the latter point only. The resort to a 
 jury in ancient times could in general be 
 had only by the mutual consent of each 
 party. It appears to have been with the 
 object of expressing such consent, that 
 the similiter was in those times added in 
 drawing up the record; and from the 
 record it afterward found its way into 
 the written pleadings. Accordingly, no 
 similiter or other acceptance of issue is 
 necessary, when recourse is had to any of 
 the other modes of trial (Steph. PI. 265, 
 266, 4th ed.). By the C. L. P. Act, 1852, 
 s. 79, either party may plead in answer 
 to the plea or subsequent pleading of his 
 adversary that he joins issue thereon; 
 and in all cases where the plaintifi's plead- 
 ing is in denial of the pleading of the de- 
 fendant, or some part of it, the plaintiff 
 may add a joinder of issue for the de- 
 fendant. Joinder of issue in this last 
 case is therefore equivalent to adding the 
 similiter for the defendant. Sm. Act. at 
 Law, 88. 
 
 SIMONT. The corrupt presentation of 
 any one to an ecclesiastical benefice for 
 money, gift, or reward, and any resigna- 
 
SIMPLE CONTRACT. — SINGLE BOND. 
 
 327 
 
 Simony. — ( Gontinued.) 
 tion or exchange for money, is corrupt, 
 however fair the transaction may appear 
 to be. It is said to be called " Simon.y " 
 from the resemblance it bears to the sin 
 . of Simon Magus (3 Inst. 156). As to 
 what amounts to a corrupt presentation 
 within the intent of the Law, see Fox v. 
 BisTiop of Chester (Tud. L. 0. Conv. 190) 
 and stats. 12 Anne, st. 3, c. 13, and 3&4 
 Vict. 0. 113. Generally the living must 
 be full at the time of the sale, in order 
 that the sale of the presentation may be 
 free from corruption ; and bonds of resig- 
 nation are subjected to restraint by the 
 stat. 9 Geo. 4, c. 94, which requires them 
 to be made only in favor of certain rela- 
 tions by blood or marriage, e. g., uncle, 
 son. brother, nephew, &c., of the patron 
 or his wife. 
 
 SIMPLE CONTRACT. The wo:^ 
 "simple," as appUed to contract, is use' 
 in contradistinction to special; the 
 former including all such contracts as 
 are entered into either verbally or by 
 writing not sealed, that is, by any instru- 
 ment not under seal (as it is termed) ; the 
 latter comprehending such contracts as 
 are entered into by the parties in writing 
 and subscribed to by their affixing their 
 seals to the same ; and which are thence 
 termed contracts under seal. The former 
 species of contract are called simple, be- 
 cause they subsist by reason simply of the 
 agreement of the parties, or (as some say) 
 because their subject-matter is usually of 
 a more simple or of a less complex nature. 
 The latter species are called special from 
 the same obvious reasons, viz., that the 
 ■ subject-matter is usually of a more im- 
 portant or special character; hence also 
 the reason for the former being merely 
 verbal or written, and the latter always 
 being in writing and sealed with the seal 
 of the party in testimony of his assent to 
 the subject-matter of the contract. In 
 point of form contracts are threefold, by 
 parol, by specialty, and by matter of 
 record. All contracts are called parol, 
 unless they be specialties (that is, deeds 
 under seal) or be matter of record. A 
 written agreement not under seal is 
 classed as a parol or simple contract, and 
 is usually considered as such just as much 
 as any agreement by mere word of mouth. 
 For at Common Law there is no such 
 class of contracts as contracts in writing 
 contradistinguished from those by parol 
 or specialty. If they are merely written, 
 and not specialties, they are parol. 
 
 Simple Contract. — (^Continued.) 
 Bonds, deeds, and the other contracts 
 under seal are called specialties; and 
 being of a higher order than contracts by 
 parol, require, as was before observed, 
 greater solemnity and accuracy in order 
 to render them valid. Contracts by mat- 
 ter of record, and which are the highest 
 kind of contracts, are such as judgments, 
 recognizances of bail, statutes merchant, 
 &c., and other securities of the same 
 nature, entered into with the intervention 
 of some public authority, as before a 
 'Court of record or a judge thereof, &o. 
 See further title Contbacts. 
 
 SIMPLE LARCENY: See title Lar- 
 
 CBNT. 
 
 SIMPLICITER. Simply, directly, 
 immediately, as distinguished from infer- 
 entially or indirectly, &c., e. g.: "No 
 doubt the notice (by a carrier that he will 
 not be responsible for loss or damage to 
 valuable goods, unless the bailor will pay 
 a higher than ordinary rate of insurance 
 for their carriage) operates as a limitation 
 of liability ; but the question is in what 
 way ? svm/plidter f of as the foundation 
 of a special contract ? " Per Parke, B., 
 in Wild V. PicTcfwd, 8 M. & W. 452. 
 
 SINECURE. When a rector of a parish 
 neither resides nor performs duty at his 
 benefice, but has a vicar under him en- 
 dowed and charged with the cure thereof, 
 this is termed a "sinecure." And when 
 a church has fallen down, and the parish 
 becomes destitute of parishioners, it is 
 said to have become a sinecure. Wood's 
 Inst. 153. 
 
 ♦SINE ASSENSU CAPITUCI. A 
 writ which lay where a dean or other 
 ecclesiastical officer aliened lands held in 
 the right of his house, without consent of 
 the chapter. His successor might have 
 the writ. Burr. Diet. 
 
 SINE DIE {witlunit day). When judg- 
 ment is given for the defendant in an 
 action, it is said eat inde sine die (let him 
 go thereof without day), that is, be is 
 discharged or dismissed out of Court. 
 See, also, title Eat inde Sine Dm. 
 
 SINGLE BILL : See next title. 
 
 SINGLE BOND. A bond is called 
 single when there is no condition added 
 to it that if the obligor does some par- 
 ticular act the obligation shall be void, 
 &c. 
 
 See title Bond. 
 
328 
 
 SINGLE DEMISE IN EJECTMENT. — SOC. 
 
 SINGLE DEMISE IN EJECTMENT. 
 
 A declaration in ejectment might have 
 contained either one or several demises ; 
 when it contained only one, it was said 
 to be a declaration with a single demise. 
 It was essential to the maintenance of an 
 action of ejectment, that he who was 
 alleged as making the demise should have 
 had the legal estate in the premises 
 sought to be recovered; and hence, when- 
 ever a doubt existed as to whether the 
 legal estate was in one of the several per- 
 sons, it was usual in framing the declara^ 
 tion to insert a demise by each, in which 
 case the declaration was said to contain 
 several demises, and the action was then 
 entitled ' ' John Doe on the several 
 demises of A.., B., and C," naming the 
 several lessors (see, also, title Dbmise). 
 But now under the 0. L. P. Acts, 1852 
 and 1860, a new method of proceeding in 
 ejectment is provided, in which no demise 
 at all is necessary, but the action proceeds 
 against the actual tenant in possession as 
 nearly as may be in accordance with the 
 rules in other actions. 
 
 See title Ejectment. 
 
 SITTINGS: See title Banc; also Nisi 
 Pbius. 
 
 SITTINGS AT NISI PRIUS: 5ce title 
 Nisi Pbius. 
 
 SITTINGS IN BANC: See title Banc. 
 
 SIX CLERKS. Officers belonging to 
 the Court of Chancery, whose duties con- 
 sisted in receiving and filing all bills, 
 answers, replications, and other records 
 in all causes on the Equity side of the 
 Court of Chancery. They signed all 
 copies of pleadings made by the sworn 
 clerks and waiting clerks, after seeing 
 that the originals were regularly filed. 
 They examined and signed dockets of 
 decrees and dismissions prepared for en- 
 rollment, and saw that the records and 
 orders were duly filed and entered, &c. 
 They had the care of all records in their 
 office, which remained in their studies 
 for six terms, for the sworn clerks and 
 waiting clerks to resort to without fee, 
 &c. (Smith, Ch. Pr. 35.) But now by 
 General Orders I., 35, the clerks of records 
 and writs are to periform all such duties 
 as used to be performed by the six clerks, 
 sworn clerks, or waiting clerks as officers 
 of the Court, in relation to the filing, 
 copying, and amending of all bills, de- 
 murrers, pleas, answers, and other plead- 
 ings and records ; and in relation to the 
 entrance of appearances, consents, notes, 
 
 Six Clerks. — {Contimted.) 
 and memorandums of services ; the certi- 
 fying of appearances, the custody of ex- 
 hibits, the em-ollment of decrees, and 
 other such like proceedings. 
 
 SLANDER. The maUcious defamation 
 of a man with respect to his character, 
 or his trade, profession, or occupation, by 
 word of mouth ; the same as a Ubel is by 
 writing or other significant characters (3 
 Ohitty's PI. 133, and Starkie on Libel 
 and Slander). Unless where the words 
 are spoken of a person in respect of his 
 trade, profession, or occupation, it is 
 necessary to prove special damage, and 
 also to allege the same in the declaration. 
 See title Libel. 
 
 SLANDER OF TITLE. This is a 
 statement of something tending to cut 
 down the extent of title to some estate 
 4bsted in the plaintiff. Such statement, 
 in order to be actionable, must be false 
 and malicious, i. e., both untrue and done 
 on purpose to injure the plaintiff. 
 Further, damage must also have resulted 
 from the statement according to the gene- 
 ral rules in cases of Slander, see that title. 
 
 SLAVERY : See title Villbnage. 
 
 SLEEPING RENT. An expression 
 frequently used in coal mine leases and 
 agreements for same. It would seem to 
 signify a fixed rent as distinguished from 
 a render, or rent varying with the amount 
 of coals gotten. See Jones v. Shears, 6 
 M. & W. 439. 
 
 SLIP. Is that part of a police-court 
 which is divided off from the other parts 
 of the court for the prisoner, or -party . 
 charged with any offense, to stand in. It 
 is frequently called the dock. 
 
 * SMABT-MONET. Vindictive or ex- 
 emplary damage. 
 
 SMUGGLING. Importing goods which 
 are liable to duty so as to evade payment 
 of duty. Such goods may be seized, and 
 the vessel forfeited ; and every person on 
 board such vessel is liable to a penalty of 
 £100. The price of smuggled goods can- 
 not be recovered in an action. Thomson 
 V. Thomson, 7 Ves. 493. 
 
 SOC (soca). Power or Uberty of juris- 
 diction, whence the word soca, signifying 
 a seigniory enfranchised by the king with 
 liberty of holding a court of sockmen or 
 socagers, i. e., tenants, whose tenure is 
 said by some to ^ave been thence called 
 socage. Bract, lib. 3, tract 3 ; Cowel. 
 
SOCAGE. — SOUGH. 
 
 329 
 
 SOCAGE (from the Fr. soc^ a plough- 
 Bhare). Socage tenure is the holding of 
 lands in consideration of certain inferior 
 services of husbandry to be performed by 
 the tenant to the lord of the fee. Socage 
 in its most general and extensive signrS- 
 cation seems to denote a tenure by any 
 certain and determinate service. And in 
 this sense it is by our ancient writers con- 
 stantly put in opposition to tenure by 
 chivahy or knight service, where the 
 render was precarious and uncertain. 
 Socage is of two sorts — free socage, where 
 the services are not only certain but 
 honorable ; and villein socage, where the 
 services, though certain, are of a baser 
 nature. Such as hold by the former 
 tenure are also called in GlanvU and other 
 ■ authors by the names of Uheri aolcemanni, 
 or tenants in free socage. Cowel; Bract, 
 lib. 2, c. 35. By the stat. 12 Car. 2, c. 
 24, all the tenures by knight servict 
 were, with one or two immaterial excep- 
 tions, converted into free and common 
 socage. 
 
 SOCAGERS. These, who were called 
 also SocTnama, SoTcemans, or Socmen, were 
 tenants who held their lands by socage ten- 
 ure. The ceorles, or husbandmen, among 
 our Saxon ancestors were of two sorts, 
 one that hired the lord's out-land ortene- 
 mentary land, like our farmers ; and the 
 other that tilled or manured his in-land 
 or demesnes (yielding work, not rent), 
 and were, therefore, called soc-men or 
 plough-men. But after the Conquest the 
 proper «o<!/fcOT(Mirai, ot aokemanni, were those 
 tenants who held by no servile tenure, 
 but commonly paid their rent as a soke, 
 or sign of freedom, to the lord, though 
 they were sometimes obliged to perform 
 customary duties for the service and 
 honor of their lord. Cowel; Les Termes 
 de la Ley. 
 
 SOCIETE. In French Law is the so- 
 eietaa of Roman Law stnd the partnership 
 of English Law. Every aodete is either 
 (1.) Vhiiierselle ; heiag either 
 (a.) Of aU present property, or, 
 (6.) Of all future gains ; or, 
 (3.) PartieuUere; being a particular 
 contract for one definite enter- 
 prise. 
 Gtenerally, the modes and consequences 
 of a dissolution of a aoeiete are the same 
 as for that of a partnership in English 
 Law. 
 
 See title Paktnebship. 
 
 * SOCMAN. 
 
 A tenant by socage. 
 4.9, 
 
 SODOMY. The crime of having un- 
 natural intercourse with a male human 
 being, or, semble, a female person ; or vidth 
 a brute animal. 
 
 See, also, title Buggbbt. 
 
 SOLE CORPORATION I See title Cobp 
 
 POKATION. 
 
 SOLE TENANT. He who holds lands 
 in his own right without any other being 
 joined. Kitchin, 134; Cowel. 
 
 SOLICITOR. A legal practitioner 
 in the Court of Chancery. The words 
 "solicitor" and "attorney" are commonly 
 used indiscriminately, although they are 
 not precisely the same ; an attorney being 
 a practitioner in the Courts of Common 
 Law, a solicitor a practitioner in the 
 Courts of Equity. Most attorneys take 
 out a certificate to practice in the Courts 
 of Chancery, and therefore become solic- 
 itors also ; and, on the other hand, most, 
 if not all, solicitors take out a certifi- 
 cate to practice in the Courts of Com- 
 mon Law, and therefore become attor- 
 neys also ; and hence it is that the two 
 words are commonly used as synony- 
 mous (see title Attoknbt at Law). 
 But under the Judicature Act, 1873, 
 the common appellation or description 
 of "Solicitor to the Supreme Court" 
 is to be appUed both to solicitors and 
 to attorneys, — the description will 
 probably be abbreviated into "8. 8. 
 C." 
 
 SOLVIT AD DIEM (fie paid on the day). 
 A plea pleaded by a defendant in an 
 action of debt, or bond, &c., to the effect 
 that the money was paid at the day lim- 
 ited or appointed. 
 
 SON ASSAULT DEMESNE (hia own 
 assault). A plea which occurs in the 
 actions of trespass and trespass on the 
 case, by which the defendant alleges that 
 it was the plaintiff's own original assault 
 that occasioned the trespass for which he 
 has brought the action, and that what 
 the defendant did was merely in his own 
 defense. Steph. PI. 186, 187. 
 
 SOUGH. A drain or water-course. 
 The channels or water courses used for 
 the purpose of draining mines are so 
 termed ; and those mines which are near 
 to and lie within the same level, and are 
 benefited by any given sough, are tech- 
 nically said to lie within the title of that 
 sough. See Arhumght v. Gell, 5 M. & W. 
 228, per Abinger, L. C. B. 
 
330 
 
 SOUND m DAMAaES. — SPECIAL DAMAGE. 
 
 SOUND IN DAMAGES. An action is 
 technically said to sound in damages 
 when it is brought, not for the specific 
 recovery of lands, goods, or sums of 
 money (as is the case in real and mixed 
 actions, or in the personal actions of debt 
 and detinue), but for recovery of damages 
 only, as in actions of covenant, trespass, 
 &c. Steph. PI. 116. 
 
 * SOUS SEING PRIVE. In Louisiana 
 an act or contract evidenced by the pri- 
 • vate signature of the parties. 
 
 SPEAKER OF THE COMMONS. The 
 
 term "Speaker," as used in reference to 
 either of the Houses of Parliament, sig- 
 nifies the functionary acting as chairman. 
 In the Commons his duties are to put 
 questions, to preserve order, and to see 
 that the privileges of the House are not 
 infringed ; and in the event of the num- 
 bers being even on a division, he has the 
 privilege of giving the casting vote. 
 
 SPEAKER OF THE LORDS. The 
 
 Speaker of the Lords is the Lord Chan- 
 cellor or the Lord Keeper of the Great 
 Seal of England, or if he be absent, the 
 Lords may choose their ovm Speaker. 
 "It is singular," says Mr. May, in his 
 Treatise on the Privileges, &c., of Parlia- 
 ment, "that the president of this delib- 
 erative body is not necessarily a member. 
 It has. frequently happened that the Lord 
 Keeper has officiated for years as Speaker 
 without having been raised to the peer- 
 age ; and on the 32d of November, 1830, 
 Mr. Brougham sat on the woolsack as 
 Speaker, being at that time Lord Chan- 
 cellor, although his patent of creation as 
 a peer had not yet been made out." The 
 duties of the Speaker of the Lords are 
 principally confined to putting questions, 
 and the Lord Chancellor has no more to 
 do with preserving order than any other 
 peer. 
 
 SPEAKERS OF THE HOUSES OF 
 PARLIAMENT. Bach House of Parlia- 
 ment has an officer termed a Speaker, 
 who presides over and manages the form- 
 al parts of the business. The Speaker 
 of the House of Lords is the Lord Chan- 
 cellor, or keeper of the King's Great Seal, 
 or any other person appointed by the 
 king's commission; and if none be so 
 appointed, the House of Lords (it is said) 
 can elect. The Speaker of the House of 
 Commons is chosen by the House, but 
 must be approved by the king. May's 
 Pari. Prac. 
 
 SPECIAL ACCEPTANCE OF A BILL 
 OF EXCHANGE. Where the acceptor 
 makes the bill payable at a particular 
 place, "and not elsewhere," it is so 
 termed. This is also sometimes termed 
 a restrictive special acceptance as distin- 
 guished from one payable generally or at 
 a particular place only, without the ad- 
 dition of the words "and not elsewhere." 
 See titles Acceptance ; Bill of Ex- 
 
 CHAUaB. 
 
 SPECIAL BAIL : See title Bail. 
 
 SPECIAL CASE. When on a trial a 
 difficulty in point of law arises, the jury 
 may, instead of finding a special verdict, 
 find a general verdict for the plaiatiff, 
 subject to the opinion of the judge or the 
 Court above on what is termed a special 
 case, that is, a written statement of, all 
 the facts of the case drawn up for the 
 opinion of the Court in banc by the coun- 
 sel and attorneys on either side, under 
 correction of the judge at nisi prius. The 
 party for whom the general verdict is so 
 given is in such case not entitled to judg- 
 ment till the Court in banc has decided 
 on the special case ; and according to the 
 result of that decision the verdict is ulti- 
 maltely entered either for him or his ad- 
 versary. It has also been provided by 
 3 & 4 Will. 4, c. 42, s. 35, that where the 
 parties in an action on issue joined can 
 agree on a statement of facts, they may, 
 by order of a judge, draw up such state- 
 ment in the form of a special case for the 
 judgment of the Court without proceed- 
 ing to trial. Steph. PI. 102; 1 Arch. 
 Prac. 452. 
 
 SPECIAL CONTRACT: See title Sim- 
 ple Contract. 
 
 SPECIAL DAMAGE. The damages 
 which a plaintiff seeks to recover are 
 either general or special. General dam- 
 ages are such as the law implies or pre- 
 sumes to have resulted from the wrong 
 complained of. Special damages are such 
 as really and in fact resulted, out are not 
 implied by law, and are either superadded 
 to general damages arising from an act 
 injurious in itself, as, where some par- 
 ticular loss arises from the uttering of 
 slanderous words actionable in them- 
 selves ; or are such as arise from an act 
 indifferent and not actionable in itself, 
 but injurious only in its consequences, as 
 where words become actionable only by 
 reason of some special or actual damage 
 having resulted from the uttering them. 
 Whenever the damages sustained by a 
 
SPECIAL DEMTJREER. — SPECIAL TRAVERSE. 
 
 331 
 
 Special Damaire* — ( Ocmtinued.) 
 party have not necessarily resulted from 
 the act complained of, and consequently 
 are not impUed by law, the plaintiff must, 
 in order to prevent surprise on the de- 
 fendant which otherwise might ensue on 
 the trial, state with particularity in his 
 declaration the actual or special damage 
 which he has sustained. 8 T. R. 138; 
 1 Ch. PL 395, 396, 6th ed. 
 
 SPECLIL DEMURRER. This has 
 been abolished by the C. L. P. Act, 1853. 
 See title Dbmttbbeb. 
 
 SPECIAL ISSUES. The issues pro- 
 duced upon special pleas, as being usually 
 more specific and particular than those of 
 not guuty, never indebted, &c., are some- 
 times described in the books as special 
 issues by way of distinction from the 
 others, which are called general issues, 
 the latter term being also implied not 
 only to the issues themselves, but to the 
 pleas which tendered and produced them. 
 Steph. PI. 109, 5th ed. ; Co. Litt. 136 a; 
 Heath's Maxims, 53; Com. Dig. "Plead- 
 er" (R. 3). 
 
 SPECIAL JURY is & jury composed 
 of individuals above the rank of ordinary 
 freeholders, and is usually summoned to 
 try questions of greater importance than 
 those usually submitted to common juries. 
 See title Juby. 
 
 SPECIAL OCCUPANT: See titles 
 Pub atjtbe Vie and Estates. 
 
 SPECIAL PAPER. A Court paper 
 containing a list of special cases and de- 
 murrers set down therein for argument. 
 
 SPECIAL PLEADER: See title Spe- 
 cial PLBADrNG. 
 
 SPECIAL PLEADING. When the 
 allegations (or pleadings, as they are 
 called) of the contending parties in an 
 action are not of the general or ordinary 
 form, but are of a more complex or special 
 character, they are denominated special 
 pleadings ; and when a deftndant pleads 
 a plea of this description (i. e., a special 
 plea) he is said to plead specially in oppo- 
 sition to pleading the general issue. 
 These terms have given rise to the popu- 
 lar denomination of that science which, 
 though properly called pleading, is gen- 
 erally known by the name of special 
 pleading. Hence, also, the denomina- 
 tion of "special pleader" as applied to 
 those learned persons who are employed 
 in drawing and framing special pleadings. 
 
 Special Pleading. — (Continued.) 
 These, it may be as well to observe, are 
 mostly gentlemen who have studied for 
 more than three years at one of the Inns 
 of Court, and who may or may not intend, 
 at some future period, to engage in the 
 more complicated and important avoca- 
 tions of a barrister. Steph. PI. 31, 186. 
 
 SPECIAL RULES. The grounds upon 
 which certain rules are granted are sub- 
 ject to so little variation, and are so well 
 understood, that in,practice they are ob- 
 tained from the proper officer of the 
 Court upon application by the party or 
 his attorney, and without any motion, 
 actual or supposed. In other cases the 
 motion need, not be actually made in 
 Court, but it is supposed to be made, and 
 the proper officer draws up the rule on 
 the production of a brief or motion paper 
 signed by counsel; the rules granted 
 without any motion in Court, or when 
 the motion is only assumed to have been, 
 and is not actually made, are called com- 
 mon rules, while the rules granted upon 
 motion actually made to the Court in 
 term, or upon a judge's order in vacation, 
 are termed special rules. Bagl. Prac. 
 379; 3 Arch. Pr. 1708. 
 
 See, also, title Rui,e Nisi. 
 
 SPECIAL TRAVERSE is that pecu- 
 liar form of traverse or denial in plead- 
 ing by which the party traversing seeks 
 to explain or qualify Ms denial instead of 
 putting it, as by a common traverse he 
 would, in a direct and absolute form. 
 And this he is enabled to do by first al- 
 leging hew affirmative matter, which is 
 c^ed the inducement, and then by add- 
 ing a distinct and formal denial of such 
 portions of the adverse pleading as sup- 
 port the adversary's case. This negative 
 part is, in the language of pleading, 
 termed the absque hoc (without this), 
 those being the words with which this 
 portion of the plea commences, and the 
 whole is finished by a conclusion to the 
 country. The inducement or introduc- 
 tion of new affirmative matter is usually 
 employed for the purpose of avoiding 
 some rule of law which Would prohibit a 
 plain and simple denial of the adversary's 
 allegation, or sometimes for the purpose 
 of raising a question of law at once upon 
 the pleadings, and the negative part, or 
 absque Jwc, is generally necessary by rea- 
 son of the inducement, which by itself 
 would constitute an indirect (or argu- 
 mentative) denial of the preceding state- • 
 ment, and would be at variance with the 
 
332 
 
 SPECIAL YERDICT. — SPECIFIC PERFORMANCE. 
 
 Special Trarerse. — {Omtimied.) 
 rules of pleading against argumentative- 
 ness. TMs form of traverse is now com- 
 paratively little employed. (Steph. PI. 
 193-318, 5th ed. ; 3 Chit. 908, 6th ed. ; 
 BrvdneU v. Bdberts, 3 Wils. 143 ; Palmier 
 V. Blm/ns, Lord Raym. 1550 ; Bac. Abr. 
 Pleas, &c. [H. 1] ; Reg. Gen., Hil. Term, 
 4 Will. 4) ; and see an example of it in 
 TaltwvmHi Oase, 13 Edw. 4, Tear Book, 
 19, translated in Tud. L. 0. Conv. p. 605. 
 
 SPECIAL VERDICT : See title Ver- 
 dict. 
 
 SPECIALTY! 
 
 TRACT. 
 
 See title Simple Con- 
 
 SPECIE. As appUed to a contract 
 signifies specifically, strictly, or according 
 to its specific terms. Thus, performing a 
 contract in specie means performing it 
 strictly, or according to its very terms. 
 As applied to things it signifies individu- 
 ality or identity. Thus, if I bequeath to 
 A. a named or specific picture of Raf- 
 faelle's, such bequest would only be sat- 
 isfied by delivery to A. of the specific 
 picture named, and not by delivery to 
 him of any work of that master, nor by 
 giving him the value of the picture be- 
 queathed; and in this case A. would be 
 said to be entitled to the delivery of the 
 picture in specie, i. e., in kind. Whether 
 a thing is due ingenere or in specie depends 
 in each case on the will of the transact- 
 ing parties. If a thing be designated 
 only by its kind, as, e. g., any house what- 
 ever, or any of my houses, any ,cask of 
 wine, or any cask of the vintage of 1834 
 in my cellar, it may be furnished mj'enere. 
 But if the thing be designated individu- 
 ally, «. g., my house, No. 300, Waverley 
 Place, or my five-year old bay saddle 
 horse, it is not then generic, but must be 
 furnished or returned in individuo. The 
 practical distinction between the two is, 
 that he who has a right or an obligation 
 with respect to a thing specifically desig- 
 nated cannot require or furnish any other 
 than the very thing itself; whereas, in 
 the case of a thing which is designated 
 generically, the party obliged has the 
 choice of giving which of the species he 
 will, as the other party has no right to 
 any one in particular. Mackeldy's Civ. 
 Law, by Kaufmann, 153; Brown's Sav. 
 70. 
 
 SPECIFIC LEGACIES. Such lega- 
 
 r cies as are specified or particularized by 
 
 a testator in his will, as the bequest of a 
 
 Specific Legacies. — ( OonUnueA. ) 
 particular diamond ring, or a particular 
 horse, &o. It is used in contradistinction 
 to a general legacy, which is expressive 
 of such as are pecuniary or merely of 
 quantity, as a bequest of £100, &c. ; for 
 in this instance no particular or specific 
 £100 is bequeathed, but only a sum of 
 money to that amount; whereas, in the 
 former instance, the diamond ring and 
 the horse are specifically bequeathed and 
 cannot be supplied by another ai-ticle of 
 equal value. Toll. Ex. 800, 301. 
 See, also, title Lbgacibb. 
 
 SPECIFIC PEEFOEMANCE. When 
 a party has sustained damage or injury 
 from the breach or non-performance of, 
 or from delay in performing, any con- 
 tract, &c., he may either have a recourse 
 to a Court of Common Law to obtain re- 
 compense in damages, or he may resort 
 to a Court of Eqxiity, which will compel 
 the party to repair the injury by perform- 
 ing the terms of the contract in specie, as 
 it is termed, i. e., specifically, or accord- 
 ing to the specifications it contains ; and 
 this performing the terms of a contract 
 in specie is called " specific performance." 
 The requisites which the Court of 
 Chancery requires in order to its decree- 
 ing spepific performance are the follow- 
 ing: — 
 
 (1.) That the act be both legal and 
 
 moral ; 
 (3.) That it be for value ; 
 (3.) That it be within the power of the' 
 Court to enforce, and so there is 
 no specific performance of, — 
 (as.) Contracts requiring personal skill 
 {Liimley v. Wagner, 5 Be G. & 
 Sm. 485) ; 
 (J.) Contracts for transfer of good 
 will apart from lease of premi- 
 ses (Boaster v. OomoUy, 1 Jac. 
 «fc W. 576) ; 
 (c.) Contracts to build or repair 
 {MoseUy v. Virgin, 3 Ves.184) ; 
 and 
 (d.) Contracts revocable in their 
 nature (Eercy v. Birch, 9 Ves. 
 357); 
 (4.) That the contract be mutual (Ad- 
 derly v. JDicon, 1 S. & S. 607) ; 
 and 
 (5.) That damages at Law for breach 
 of contract are not an adequate 
 compensation. 
 Generally, therefore, the Court decrees 
 specific performance of contracts regard- 
 ing land, and not of contracts regarding 
 
SPECIFICATION. — SPOLIATION. 
 
 333 
 
 Specific Performance. — ( OonUnued.) 
 personal estate. Yet in respect of per- 
 sonal estate, where the species of estate 
 contracted for is (like land) limited in 
 purchasability, the Court decrees a 
 specific performance of the contract, — 
 e. g., regarding shares in a railway com- 
 pany (JDuruToft V. AUrrecht, 13 Sim. 199) ; 
 debts provable under a bankruptcy (Ad- 
 derley v. Dixon, 1 8. & S. 607) ; articles of 
 vertu {Falc&er v. Gh-ay, 4 Drew. 658) ; heir- 
 looms {Somerset v. Ooohum, 1 Wh. & Tud. 
 L. C. Eq. 736); and such like. There 
 appears to be no exception to the general 
 rule that the Court will decree specific 
 performance regarding land ; iadeed, the 
 Court carries its principle so far in this 
 respect that it will, in contravention of 
 the Statute of Frauds, decree specific 
 performance of an unwritten contract in 
 special cases, being chiefly cases of part 
 performance of the contract {Swrcombe v. 
 Pinniger, 3 De G. M. & G. 571), or of 
 fraud- Foxaroft v. Lester, 1 Wh. & Tud. 
 L. C. 693. 
 
 Also, in the case of a contract regard- 
 ing lands which is put into writing, but 
 which the defendant alleges was after- 
 ward varied by parol, although such parol 
 variation would be worthless at Law, yet 
 in Equity the plaintrS shall only have 
 specific performance upon condition of 
 accepting the defendant's terms {Toion- 
 ahend v. Stangroom, 6 Ves. 338). Some- 
 times, also, specific performance is decreed 
 with a compensation for any misdescrip- 
 tion or deficiency of the land or estate 
 contracted for, but the misdescription or 
 deficiency must (where the vendor asks 
 specific performance) be of a compensable 
 character (WQ^ueen v. Fon-queha/r, 11 Ves. 
 467); although that is hot a requisite 
 where the purchaser asks specific per- 
 formance. HiU V. Buckley, 17 Ves. 401 ; 
 and qumre, Thomas v. Daring, 1 Keen, 729. 
 
 SPECIFICATION. As used in patents 
 and in building contracts is (what the 
 name denotes) %. particular or detailed 
 statement of the various elements in- 
 volved. 
 
 See title Patbnts. 
 
 ♦SPECULUM. The title of several 
 ancient law books. The name of a col- 
 lection of the ancient laws of Pomerania 
 and Prussia. Burr. Diet. 
 
 SPEEDY EXECUTION is an execution 
 which, by the direction of the judge at 
 md ffrms, issues forthwith, or on some 
 early day fixed upon by tiie judge for 
 
 Speedy Execution. — ( Oontintced. ) 
 that purpose after the trial of the action. 
 By Stat. 1 Will. 4, c. 7, s. 3, in all actions 
 brought in the Courts of Law at West- 
 minster "it shall be lawful for the judge 
 before whom issue joined in any such 
 action shall be tried, in case the plaintiff 
 or demandant therein shall become non- 
 suit, or a verdict shall be given for the 
 plaintiff or demandant, defendant or 
 tenant, to certify .under his hand on the 
 back of the record, at any time before 
 the end of the sittings or assizes, that in 
 his opinion execution ought to issue in 
 such action forthwith, or at some day to 
 be named in such certificate," &c. This 
 certificate is never granted where a mate- 
 rial point has arisen at the trial, and upon 
 which it is fair that the unsuccessful 
 party should have an opportunity to take 
 the opinion of the Court. And see now 
 C. L. P. Act, 1853, s. 130 ; and r. 57, H. 
 T. 1853; 1 Arch. Pract. 413. It seems 
 that, if the plaintiff will waive his costs, 
 he may also have speedy execution, as a 
 matter of course. 1 Arch. Pract. 535. 
 
 SPIRITUAL CORPORATIONS: See 
 
 title Corporations. 
 
 SPIRITUAL COURTS: See title 
 Courts Eoclbsiasticai,. 
 
 SPIRITUALITIES OF A BISHOP. 
 
 Those profits which a bishop receives in 
 his ecclesiastical character, as the dues 
 arising from his ordaining and instituting 
 priests, presentation money, and such 
 like, in contradistinction to those profits 
 which he acquires in his temporal capacity 
 as a baron and lord of parliament, and 
 which are termed his temporalities, con- 
 sisting of certain lands, revenues, and lay 
 fee, &c. Staund. PI. Cor. 133; Cowel. 
 
 SPOLIATION. An injury done by one 
 clerk or incumbent to another, in taking 
 the fruits of his benefice without any 
 right to them, but under a pretended 
 title. It also seems to be used for a suit 
 brought to recover the fruits of a church 
 or even the church itself, by one incum- 
 bent against another, when they both 
 claim by one patron, and the right of 
 patronage is not called in question ; as if 
 a patron first presents A. to a benefice, 
 who is instituted and inducted thereto ; 
 and then, upon pretense of a vacancy, 
 the same patron presents B. to the same 
 living, and he also obtains institution and 
 induction. Now, if the fact of the va- 
 cancy be disputed, then that clerk who 
 
334 
 
 SPOLIATOR. — STAB-CHAMBER. 
 
 Spoliation. — ( OanMnued.) 
 is kept out of the profits of the living, 
 whichever it be, may sue the other iu the 
 Spiritual Court for spoliation, or taking 
 the profits of his benefice; and it shall 
 there be tried whether the living were or 
 were not vacant, upon which the validity 
 of the second clerk's pretensions must 
 depend. Zes Termes de la Ley ; F. N. B. 
 36. 
 
 SPOLIATOR. It is a maxim of law 
 bearing chiefly on evidence, but also upon 
 the value generally of the thing destroyed, 
 that every thing most to his disadvan- 
 tage is to be presumed against the de- 
 stroyer (spoliator), coreira apoUatorem omnia 
 praswmu/nlnir. Armory^. I)elamirie, 1 Sm. 
 L. C. 315. 
 
 * SPOUSE BREACH. Adultery. 
 
 STAKEHOLDER. Is the person with 
 whom money is deposited upon a bet or 
 wager to abide the event. Such money 
 may be recovered in England before the 
 event, but not afterward. Manning v. 
 PwceU, 7 De G. M. & G. 55. 
 See title Wageb. 
 
 STANDING ORDERS. The rules 
 adopted by the Houses of Parliament for 
 the permanent guidance and order of their 
 proceedings are called "Standing Orders," 
 and are contradistinguished from the ses- 
 sional orders (s«e that title), by the fact, 
 that the former, unless rescinded by a 
 special vote of the House, continue in 
 force, not only f rpm one session to another ; 
 but from one parliament to another; 
 while tjie latter are intended to last only 
 during the session in which they are made. 
 In the House of Lords every new stand- 
 ing order is added to ' ' The Roll of Stand- 
 ing Orders," carefully preserved and 
 published from time to time. In the 
 Commons, there is no authorized collec- 
 tion of standing orders except in relation 
 to private bills. May's treatise on Parlia- 
 ment. 
 
 STANNARY COURTS. Courts in Dev- 
 onshire and Cornwall for the administra- 
 tion of justice among the miners and tin- 
 ners. These Courts were held before the 
 Lord Warden and his deputies by virtue 
 of a privilege granted to the workers of 
 the tin mines there, to sue and be sued in 
 their own Courts only, in order that they 
 may not be drawn away from their busi- 
 ness by having to attend lawsuits in dis- 
 tant Courts. Bac. Abr. tit. " Courts of 
 the Stannaries." 
 
 * STAPLE. In International Law, the 
 right of staple exercised by a people upon 
 foreign merchants is defined by Bouvier 
 to be that they may not allow them to 
 set their merchandises and wares to sale 
 but iu a certain place. The right is not 
 in force in the United States. 
 
 STAR-CHAMBER. The Court caUed 
 by this name is commonly regarded as 
 being the Aula Segis sitting in the Star 
 Chamber, a room at Westminster. The 
 jurisdiction of the Court would, there- 
 fore, be all or some part of that residuary 
 jurisdiction which remained after the sev- 
 erance of the Courts of Exchequer, Com- 
 mon Pleas, Queen's Bench and Chan- 
 cery. 
 
 By the stat. 3 Hen. 7, c. 1, the Court 
 was remodelled, and its jurisdiction 
 placed upon a lawful and permanent basis. 
 That Act empowered the Chancellor, 
 Treasurer, and Keeper of .the Privy Seal, 
 or any two of them, with one spiritual 
 and one temporal peer, and the Chief 
 Justices of the Courts of Queen's Bench 
 and Common Pleas, or in their absence 
 two other justices to call before them and 
 to punish the following offenders and 
 classes of offenses : — 
 
 (1.) Combinations of the nobility and 
 gentry, supported by liveries, 
 &c. ; 
 
 (3.) Partiality on the part of sheriffs in 
 making up the panels of jurorsL 
 or in malang untrue returns ot 
 members ; 
 
 (3.) Bribery in jurors ; and 
 
 (4.) Riots and unlawful assemblies. 
 
 By a later statute 21 Hen. 8, c. 30, the 
 President of the King's Council was added 
 to the lists of judges; and by the stat. 31 
 Hen. 8, c. 8, which gave to the king's 
 proclamations in ecclesiastical matters the 
 force of law, all persons offending against 
 such proclamations were to be tried before 
 the Star-Chamber and punished with fine 
 and imprisonment. 
 
 The jurisdiction of the Court is defined 
 by Lord Bacon as extending to "forces, 
 frauds, crimes, various of steUionate, and 
 the inchoations or middle acts toward 
 crimes capital or heinous not actually 
 committed or perpetrated." 
 
 The utility of the Star-Chamber, in the 
 reigns of Henry VH. and subsequent 
 monarchs, consisted in two principal 
 functions, viz. : — 
 
 (1.) In its repression of the turbulence 
 of the nobility and gentry in the 
 provinces; and 
 
STARE DECISIS. — STATUTES AT LARGE. 
 
 335 
 
 Star-Chamber. — ( Continued.) 
 (3.) In its supplying a Court of juris- 
 diction for matters which, as 
 being of novel origin, were un- 
 provided for by the existing tri- 
 bunals, e. g., in the case of 
 offenses against proclamations in 
 ecclesiastical matters. 
 The effect of the Court was to enhance 
 the royal authority, which it did by sup- 
 plying the executive with a speedy and 
 effective machinery. Cardinal Wolsey 
 has the credit of having improved and 
 extended the jurisdiction of the tribunal. 
 But the very nature of the jurisdiction 
 of the court of Star-Chamber rendered 
 its process liable to great abuses; and 
 Wolsey's connection with it was one of the 
 principal causes of his unpopularity. 
 The increase of those abuses was the ulti- 
 mate cause of its abolition by the Long 
 Parliament in 1640. 
 
 * STARE DECISIS. To stand by the 
 decisions, to adhere to the adjudications. 
 
 STATE OP FACTS. Formeriy, when 
 a Master in Chancery was directed by the 
 Court of Chancery to make an inquiry or 
 investigation into any matter arising out 
 of a suit, and which could not conve- 
 niently be brought before the Court itself, 
 each party in the suit carried in before 
 the Master a statement showing how the 
 party bringing it in represented the mat- 
 ter in question to be ; and this statement 
 was technically termed a state of facts, 
 and formed the ground upon which the 
 evidence was received; the evidence 
 being in fact brought by one party or the 
 other to prove his own or disprove his 
 opponent's state of facts (Gray's Ch. 
 Pract. 109, 110). And so now, a state of 
 facts means the statement made by any 
 one of his version of the facts. 
 
 STATING PART OF A BILL IN 
 CHANCERY: Sse title Bili, nr Equity. 
 
 STATUTE. The statut* are the writ- 
 ten laws of the kingdom, made by the 
 king's majesty, by and with the advice 
 and consent of the Lords spiritual and 
 temporal and Commons in Parliament as- 
 sembled. They are either general or 
 special, public or private. A general or 
 public Act is a universal rule that regards 
 the whole community; and of this the 
 Courts of Law are bound to take notice 
 judicially and ex offieio, without the stat- 
 ute being specially pleaded or formally 
 set forth by the party who claims advan- 
 
 Statate. — ( OontiTmed.) 
 
 tage of it. Special or private Acts are 
 rather exceptions than rules; being 
 those which only operate upon particular 
 persons and private concerns ; such as the 
 Romans entitled privilegia (in the favora- 
 ble sense of that word), or senatAs decireta, 
 in contradistinction to the aenaMa amsulta, 
 which regarded the whole community; 
 and of these (which are not promulgated 
 with the same notoriety as the former) 
 the judges are not bound to take notice, 
 unless they be formally shown and 
 pleaded. Thus, for instance, the statute 
 13 Eliz. c. 10, to prevent spiritual persons 
 from making leases for longer terms than 
 twenty-one years, or three lives, is a pub- 
 lic Act ; it being a rule prescribed to the 
 whole body of spiritual persons in the 
 nation. But an Act to enable the Bishop 
 of Chester to make a lease to A.B. for 
 sixty years, is an exception to this rule ; 
 it concerns only the parties and the 
 bishop's successors, and is therefore a 
 private Act. 
 
 Various rules have been made regard- 
 ing the construction or interpretation of 
 statutes ; the short substance of which is 
 as follows : — 
 
 I. Where the words of the statute are 
 unambiguous, then by the words alone it 
 is proper to abide, uidess, perhaps, in the 
 case only of manifest absurdity [pr. Bon- 
 ham,' a Gaae, 8 Rep. 118 a.); 
 
 II. Where the words of the statute are 
 ambiguous, then the following subsidiary 
 rules are to be applied : — 
 
 (1.) Inquire the Common Law before 
 
 the making of the statute ; 
 (2.) The mischief against which it did 
 
 not provide; 
 (3.) The remedy which Parliament 
 
 thought to apply; and 
 (4.) The true reason (i. «., true essence, 
 or gist) of the remedy. Heydon'a 
 Gaae, 8 Rep. 7. 
 It used also to be a general rule, that 
 penal statfltes were to oe construed re- 
 strictively, and beneficial statutes liber- 
 ally ; but as to the propriety of such a 
 rule, there may well be considerable 
 doubt. See Austin's Lectures on Juris- 
 prudence. 
 
 STATUTES AT LARGE. An authen- 
 tic collection of the various statutes which 
 have been passed by the British Parlia- 
 ment from very early times up to the 
 present day. The oldest of these now 
 extant, and printed in our statute book, 
 is the famous Magna Charta, as confirmed 
 
336 
 
 STATUTE-MERCHANT. — STE WARTRY. 
 
 Statutes at Large. — (Contirmed.) 
 in Parliament 9 Hen. 3, though doubtless 
 there were 'many Acts before that time, 
 the records of which are now lost, and 
 whose provisions are perhaps in the pres- 
 ent day currently received for the maxims 
 of the Old Common Law, or customs of 
 the realm. The statutes from Magna 
 Charta down to the end of the reign of 
 Edward H. (including also some which, 
 because it is doubtful to which of the 
 three reigns of Henry HI., Edward I., or 
 Edward n., to assign them, are termed 
 incerU temporia), compose what have 
 been called the Vetera statuta ; on the 
 other hand, those from the beginning of 
 the reign of Edward III. are contradis- 
 tinguished by the appellation of the nma 
 statuta. Dwarris on Stat. 636. 
 
 STATUTE-MERCHANT. A writing 
 in the nature of a bond, which was intro- 
 duced in the reign of Edward I., for the 
 purpose of allowing lands to be charged 
 with the payment of debts contracted in 
 trade, which was contrary to all feudal 
 piinoiples. It is called statute-merchant, 
 because usually made between merchants, 
 and according to the forms expressly pro- 
 vided by statute, which direct both before 
 what persons, and in what manner, it 
 ought to be made. It is somewhat in the 
 nature of what is termed a mvum vadAum, 
 or living pledge, by which a man borrows 
 a sum of money of another, and grants 
 him an estate to hold till the rents and 
 profits shall repay the sum so borrowed. 
 A statute-merchant may, therefore, be 
 said to be a security for a debt acknowl- 
 edged to be due, and by which not only 
 the body of the debtor may be imprison- 
 ed, and his goods seized in satisfaction of 
 the debt, but also his lands maybe deliv- 
 ered to the creditor till out of the rents 
 and profits of them the debt may be sat- 
 isfied ; and during such time as the cred- 
 itor so holds his lands he is called a ten- 
 ant by statute-merchant, and such cred- 
 itor's estate or interest in the lands dur- 
 ing that period is termed an estate by 
 statute-merchant. 
 
 STATUTE-STAPLE. A security for a 
 debt acknowledged to be due before the 
 mayor of the staple, that is, the grand 
 mart for the principal commodities or 
 manufactures of the kingdom, formerly 
 held by Act of Parliament in certain 
 trading towns. It is called "statute 
 staple," because entered into before the 
 mayor of such staple, and made accord- 
 
 Statate-Staple. — {GonUmieA.) 
 ing to certain forms prescribed by stat- 
 ute. This security, which is in the nature 
 of a bond given by the debtor to the 
 creditor, is very similar to a statute-mer- 
 chant, and was originally permitted only 
 among traders for the benefit of commerce. 
 By it, not only the body of the debtor 
 may be imprisoned, and his goods seized 
 in satisfaction of the debt, but also his 
 lands may be delivered to the creditor till 
 out of the profits and rents of them the 
 debts may be satisfied ; and during such 
 time as the creditor so holds the lands 
 he is called "tenant by statute-staple, " 
 and his estate or interest in the lands 
 during that period is called an "estate 
 by statute-staple." 
 
 STATUTE OP JEOFAILS: See titles 
 Amsnbmbnt ; Jbofatls. 
 
 STEALING: 
 
 ! title Labobnt. 
 
 STEALING AN HEIRESS: See title 
 Abdtjction. 
 
 STET PROCESSUS. Is an entry on 
 the roll, in the nature of a judgment, of a 
 direction that all further proceedings 
 shall be stayed (i. e., that the process 
 may stand), and it is one of the ways by 
 which a suit may be put an end to by an 
 act of the party, as distinguished from a 
 termination of it by judgment, which is 
 the act of the Court. 
 
 STEWARD. This word signifies a 
 man appointed in the place or stead of 
 another, and generally denotes a princi- 
 pal officer within its jurisdiction. The 
 greatest, however, of these was the Lord 
 High Steward of England, whose func- 
 tions were of a very important nature, 
 having, next under the king, the super- 
 vision and regulating the administration 
 of justice, and most other affairs of the 
 realm, both of a civil and military nature. 
 There is also an important officer, called a 
 " steward of a manor," who has the gen- 
 eral management of all forensic matters 
 connected with tl^ manor of which he is 
 steward. He stands in much the same 
 relation to the lord of the manor as an 
 under-sheriff does to the sheriff. Cowel. 
 
 STEWARTRY. In the Scotch Law 
 seems to be synonymous with the English 
 word "county." Thus, "any shire or 
 stewartry in Scotland, " is used in the 12th 
 section of 5 & 6 Vict. c. 35 (the Income 
 and Property Tax Act) ; and by 1 Vict, 
 c. 39, it is enacted that the word " county " 
 occurring in any future or existing Act 
 
STINT, COMMON WITHOUT. — STOPPAGE IN TRANSITU. 337 
 
 Stewartry. — ( Oontiimed. ) 
 shall comprehend and apply "to any 
 stewartry m Scotland, excepting where 
 otherwise specially provided, or where 
 there is any thing in the subject or con- 
 text repugnant to such meaning or appli- 
 cation." See Bell's Sc. Law Diet. tit. 
 "County." 
 
 STINT, COMMON WITHOUT. Com- 
 mon without stint is the right of common- 
 ing or feeding an unlimited number of 
 cattle on the common, and that through- 
 out the year, without limitation of time. 
 The notion, however, of this species of 
 common is said to be exploded, as a right 
 of common without stint cannot exist in 
 law. 3 Chit. PI. 34 n. (33). 
 
 See furthet title Common. 
 
 ♦STIPULATION. In admiralty, a 
 recognizance in the nature of bail for the 
 appearance of a defendant. 3 Bl. Com. 
 108. 
 
 STIRPES. Taking property by repre- 
 sentation is called " succession per stirpes," 
 in opposition to taking in one's own right, 
 or as a principal which is termed per cap- 
 ita. It is called succession per stirpes, 
 because according to the roots ; that is, 
 all the branches inherit the same share 
 that their root, whom they represent, 
 would have done. 
 
 See, also, title Capita, DisTBiBtrrioN 
 Per. 
 
 STOCK. This is the general name for 
 the public funds, but is applicable gener- 
 ally to the like funds of corporate bodies. 
 It is a chose in action, and cannot be sued 
 for as money (Nightingale v. Deeisme, 3 W. 
 Bl. 684). It carries interest, which has 
 been defined to be a right to receive a 
 perpetual annuity subject to redemption 
 {WMman v. WMman, 9 Ves. 177). The 
 Bank of England is the depositary of the 
 public funds, and liable only as such 
 ISumberstme v. Ghase, 3 T. & C. 309). 
 The interest or dividends have by a re- 
 cent Act (33 & 33 Vict. c. 104, the Divi- 
 dends and Stock Act, 1869), been made 
 payable upon warrants sent through the 
 post. 
 
 See, also, next title. 
 
 STOCK EXCHANGE. This is a soci- 
 ety or club, prescribing rules which bind 
 its members, and its customs bind all 
 persons, whether members or not, having 
 dealings upon it. The persons transact- 
 ing business professionally on the Ex- 
 change are either brokers or jobbers ; the 
 
 Stock Exchange. — (_Oontimied.) 
 former being agents merely for their cus- 
 tomers, the latter (especially since the 
 Stat. 33 Vict. c. 38, repealing Sir John 
 Barnard's Act, 7 Geo. 3, c. 8) dealing 
 for themselves while at the same time 
 making purchases and sales for their cus- 
 tomers, chiefly by means of what are 
 calleS "time-bargains." See Doles y.Bris- 
 towe, t. R. 4 Ch. App. 8 ; GHssell v. Bris- 
 tme, L. R. 4 C. P. (Ex. Ch.) 36; and 
 " "v. Paine, L. R. 4 Ex. 81. 
 
 STOPPAGE IN TRANSITU. This is 
 the right of the unpaid vendor of goods 
 to stop them in certain cases before they 
 have reached the actual or constructive 
 possession of the vendee, and to resume 
 the possession, so as to put himself in the 
 same position as if he had not parted with 
 it. The first case in which the principle 
 was acted on is Wiseman v. VomcLeputt (3 
 Vem. 303 ; Tudor's Merc. C. 681). The 
 right arises properly only in cases in which 
 the vendee or consignee has become bank- 
 rupt or insolvent ; but a general inability 
 to pay, evidenced by stoppage of pay- 
 ment, is sufficient to satisfy the rule (Sm. 
 M. L., 8th ed., p. 544). Moreover, the 
 right or an analogous one, may exist by 
 special contract. Wilmshwrst v. Bowker, 
 3 Man. & G. 792. 
 
 The right determines when the goods 
 have reached their destination, whether 
 or not they are yet in the actual posses- 
 sion of the vendee. Usually the carrier 
 of the goods is a mere neutral agent be- 
 tween the vendor and the vendee ; and 
 in ordinary cases, therefore, the transit is 
 regarded as continuing as long as the 
 goods are in the carrier's possession. But 
 if the cafrier enters into any new relation 
 with the vendee, becoming, e. g., cus- 
 todian as well as carrier, that determines 
 the transit, although the goods may not 
 have reached yet their destination ( White- 
 head V. Anderson, 9 M. & W. 534). So, also, 
 the exercise by the vendee of acts of own- 
 ership over the goods will in general de- 
 termine the transit ; for example, if the 
 vendee take samples of the goods with 
 the intention of taking a constructive 
 possession, and the carrier retaining pos- 
 session of the goods has expressly or im- 
 pliedly assented to keep the goods as 
 agent for the vendee ( Whitehead v. Ander- 
 son, svpra). And if the goods are de- 
 livered on board the vendee's own ship, 
 that determines the transit {Sehotsmans v. 
 iMncashvre and Yorkshire By. Oo., L. R. 2 
 Ch. App. 333), unless, indeed, the vendors. 
 
338 
 
 STOPPAGE IN TRANSITU. 
 
 Stoppag'e in Transitn. — (OonUmied.) 
 in such a case procure (as they ought to 
 procure) the master's bill of lading, mak- 
 ing them deliverable to their order or 
 assigns, for in this way they reserve to 
 themselves the jus disponenM {Tv/mer v. 
 Trustees of Imerfool Books, 6 Ex. 543) and 
 may re-take possession, or transfer the 
 property by indorsement and delivelT' of 
 the bin of lading {8heiphe/rd v. Biwrison, 
 L. R. 4 Q. B. 196, 493). And where 
 goods sold in London free on 'boa/rd, (f . o. 
 b.), to be paid for on delivery on board 
 by bill or cash at a certain discount, were 
 shipped on a vessel selected by the ven- 
 dee, and the vendor elected to take a bill, 
 and it appeared that by the custom of the 
 port the expression "f. o. b." indicated 
 that the vendee was considered as the 
 shipper, although the vendor was to pay 
 the expenses of shipment, it was held 
 that the transit was determined by the 
 delivery on board, and the receipt of the 
 bill. Oowasjee v. Thompson, 5 Moo. P. C. 
 C. 165. 
 
 Where goods are in a warehouse and 
 not on carriage, it is a general rule that 
 the right of stoppage in In-ansitu deter- 
 mines so soon as a delivery order is given 
 by the vendor to the vendee, and the 
 warehouseman assents thereto ; but this 
 is only so where no acts remain to be 
 done, such as weighing, measuring, or 
 separating, to ascertain the quantity, 
 value, or identity of the goods (Sanson 
 V. Meyer, 6 East, 614; Tud. M. C. 600). 
 The mere giving of a delivery order does 
 not operate as a constructive delivery of 
 the goods (M'Ewan v. Smith, 2 H. L. 0. 
 209) ; and the transfer of a delivery order 
 has no such effect as the indorsement and 
 delivery of a bill of lading {Alcerman v. 
 Humphrey, 4 Blng. 516). Moreover, the 
 warehouseman's assent to hold the goods 
 for the vendees may, in certain cases, 
 estop him personally from denying their 
 right to the possession of the goods, while 
 it leaves the right of the vendors to stop 
 in transitu unafiected. Storuwd v. Dun- 
 Mn, 2 Oamp. 344. 
 
 Where there would be a right to stop 
 if the i/ransitvs had begun, there is a 
 fxyrtiori, a right to refuse to allow the 
 transit even to begia. Dixon v. Tates, 5 
 B. & Ad. 818. 
 
 The right of stoppage is not determined 
 by part payment or part delivery, unless 
 in the latter case the vendee take posses- 
 sion of the part in the name of the whole; 
 although even then the vendor is entitled 
 .under certain circumstances to hold the 
 
 Stoppage in Transitn. — (Oontinued,.) 
 remainder of the goods until the price for 
 the whole is paid {WentmorthY. Outh- 
 waAU, 10 M. & W. 486). Neither is the 
 right of stoppage determined by a resale 
 of the goods by the vendee, in the 
 absence of course of a previous delivery 
 thereof to him. Oramen v. Ryder, 6 Taunt. 
 433. 
 
 The right to stop in trajmfe is personal 
 to the vendor or consignors ; it does not 
 belong to a surety for the price of the 
 goods (Biffkin v. Wray, 6 East, 871). The 
 vendor may, however, at any time before, 
 the transit is ended, ratify and thereby 
 make good the act of a stranger who stops 
 the goods. Bird v. Brown, 4 Ex. 786. 
 
 Under the Interpleader Act, 1 & 3 WilL 
 4, c. 58, and the 0. L. t". Act, 1860, s. 13, 
 the master of a vessel, or warehouseman, 
 having the goods in his possession, may 
 obtain an order of interpleader upon the 
 adverse claimants, and that whether or 
 not the two claims have a common origin. 
 
 The following is a summary of the rules 
 regarding stoppage m trairmtu: — 
 
 (1.) The right of stoppage in transitu 
 is not a rescission of the contract, but at 
 the most a re-visiting of the possession 
 in the vendor. Wemtworth v. Outhmaite, 
 10 M. & W. 451 ; 
 
 (3.) The right is personal to the con- 
 signor, and does not extend, e. g., to a 
 surety for the price of the goods. SiffMn 
 V. Wray, 6 East, 871 ; 
 
 (3.) The right only endures during the 
 transit, and the transit is taken to have 
 ended so soon as the goods come into the 
 actual or constructive possession of the 
 vendee. Edwards v. Brewer, 3 M. & W. 
 375; 
 
 (4.) The termination of the transit as 
 to part is not the termination of it as to 
 the rest {Tanner v. Seovell, 14 M & W. 
 28) ; unless the contract was entire (Bixm- 
 mmd V. Anderson, 1 N. R. 69) ; 
 
 (5.) The termination of the transit may 
 be accelerated by the vendee (Whitehead 
 V, Anderson, 9 M. & W. 518); but may 
 not be prolonged by the earner. Bird v. 
 Brown, 4 Ex. 786 ; 
 
 (6.) The right to stop in transitu is 
 defeated by the consignee's negotiating 
 the bill of lading to a bond fide transferee 
 for value {lAckbarn'ow v. Mason, 1 Sm. L. 
 C. 699) ; secus, if to a mold fide trans- 
 feree. Gumming v. Brown, 9 East, 514 ; 
 
 (7.) But the indorsee, even since 18 & 
 19 Vict, o 111, takes subject to the equi- 
 ties attaching upon his indorser. Owmey 
 V. Behrend, 3 E. & B. 623. 
 
STOUTHIRBF.— SUBMISSION TO ARBITRATION. 
 
 339 
 
 *STOUTHIREP. In Scotch Law, 
 forcible depredation in or near a dwelling- 
 house. Burr, Diet. 
 
 STRANGERS. These are the third 
 persons generally. Thus, the persons 
 bound by a fine are parties, privies, and 
 strangers. The parties are either the 
 cognizors or cognizees; the privies are 
 such as are in any way related to those 
 who levy the fine, and claim under them 
 by any right of blood, or other right of 
 representation ; the strangers are all other 
 persons in the world, except only the 
 parties and privies. In its general legal 
 signification it is opposed to the word 
 "privy." Those who are in no way par- 
 ties to a covenant, nor bound by it, are 
 also said to be strangers to the covenant. 
 
 * STREPITUS JUDICIALIS. Turbu- 
 lence at a court of justice. Jacob Diet. 
 
 * STRIKING A DOCKET. In English 
 practice, the first step in the proceedings 
 in bankruptcy, consisting of the affidavit 
 of the debt, and the bond to follow up 
 the procee(Mngs. Burr. Diet. 
 
 STRIKING A JURY. The act of 
 
 selecting or nominating a jury of twelve 
 men out of the whole number returned 
 as jurors on the panel. This, in common 
 jury cases, is usually done by the associate 
 of the Court at the trial putting all their 
 names in a box, and then drawing out 
 twelve p"romiscuously. The phrase, how- 
 ever, seems more commonly used with 
 regard to a special jury, in which, the mode 
 of proceeding is somewhat varied. The 
 proper officer of the Court appoints a 
 time and place for "striking the special 
 jury," at which the under-sheriff, or his 
 agent, and the parties attend. The num- 
 ber from the jurors' list are then put into 
 a box, and the forty-eight names corre- 
 sponding with the forty-eight numbers 
 drawn by each party alternately, and this 
 number is afterward reduced, and consti- 
 tutes the special jury. Lush's Pr. 471, 
 477; Stat. 6 Geo. 4, c. 50, ss. 30, 32, 34, 
 37; Juries Act, 1870 (33 & 34 Vict. c. 
 77). 
 
 STRONG HAND. The words "with 
 strong hand " imply a degree of criminal 
 force, and much more than is meant by 
 the words " with force and arms " {vi et 
 'armis). The statutes relating to forcible 
 entries use these words, " with a strong 
 hand," as describing that degree of force 
 which makes an entry or detainer of lands 
 criminal, and entitles the prosecutor, un- 
 
 Strongf Hand. — (OonUnued.) 
 der circumstances, to restitution and dam- 
 ages; whereas the words ^^viet armig," 
 with force and arms, are mere formal 
 words in the action of trespass, and if 
 issue were taken upon them, the plaintifiE 
 would not be bound to prove any force. 
 Bex V. Wihon, 8 T. R. 363, 363; ^w Law- 
 rence, J., Lowe V. , King, 1 Saund. 81 ; 
 Smney v. Brydges, 14 M. & W. 440, per 
 Parke, B. 
 
 STUFF GOWN. Is the professional 
 robe worn by barristers of the outer bar, 
 viz., those who have not been admitted to 
 the rank of Queen's counsel. 
 
 See title Silk Gown. 
 
 *STUPRUM. Criminal intercourse 
 between a man and an unmarried woman 
 or widow. Used in Roman Law. 
 
 SUBINFEUDATION. The system 
 which the feudal tenants introduced of 
 granting smaller estates out of those 
 which they held of their lord, to be held 
 of themselves as inferior lords ; and as 
 the system was proceeding downward ad 
 inftnitum, and depriving the lords of their 
 feudal profits of wardships, marriage, and 
 escheats, which fell into the hands of 
 these mesne, or middle lords, who were 
 the immediate superiors of him who occu- 
 pied the land, a provision was made in 
 the thirty-second chapter of Magna 
 Charta, 9 Hen. 3, prohibiting any man 
 either to give or sell his land without re- 
 serving sufficient to answer the demand 
 of his lord. Ultimately, by the stat. 
 Quia Em/ptores, 18 Edw. 1 (Statute of 
 Westminster the Third), c. 1, subinfeuda- 
 tion was entirely suppressed, and instead 
 of it alienation in the modem sense 
 was introduced, so that thenceforth the 
 alienee held of the same chief lord and 
 by the same services that his alienor be- 
 fore him held. 
 
 See title Alienation. 
 
 SUBMISSION : See next title. 
 
 SUBMISSION BOND: ;S«« next title. 
 
 SUBMISSION TO ARBITRATION. 
 
 The submitting matters in difference be- 
 tween parties to the award or decision of 
 an arbitrator, and also the bond by which 
 the parties agree so to submit their matters 
 to arbitration, and by which they bind 
 themselves to abide by the award of the 
 arbitrator, are commonly called the sub- 
 mission or submission bond. 
 
340 
 
 SUBORNATION OF PERJURY. — SUBTRACTION. 
 
 SUBORNATION OF PEEJUET. The 
 
 offense of procuring anothei: to take such 
 a false oath as would constitute perjury 
 in the principal. To render the offense of 
 subornation of perjury complete, either 
 at Common Law or on the statute, the 
 false oath must be actually taken and 
 no abortive attempt to solicit the party 
 to take it will bring the offender within 
 its penalties. (3 Mod. 123.) The pun- 
 ishment is the same as for perjury, viz., 
 fine or penal servitude for not more than 
 seven nor less than five years. 3 Geo. 4, 
 c. 114; 30 & 31 Vict. c. 3; 27 & 28 Vict. 
 C.47. 
 
 SUBPOENA. A writ by which persons 
 are commanded to appear at a certain 
 place, at a certain time, under a penalty 
 of £100. This writ is used both in the 
 Courts of Chancery and in the Courts of 
 Common Law, and is applied to various 
 purposes. The subpoena most frequently 
 in use in Chancery proceedings was that by 
 which parties were commanded to ap- 
 pear in Court, and answer the plaintiff's 
 bill, and which was thence called a sub- 
 poena to appear and answer. This sub- 
 poena was', however, aboUshed by the 
 Jurisdiction Act, 1852. There are, how- 
 ever, other subpoenas still in use in Chan- 
 cery proceedings, and which are of the 
 same nature as the above, though applied 
 to effect different objects. The subpoe- 
 nas of most frequent occurrence in Com- 
 mon Law proceedings are, (1.) Those 
 used for the purpose of compelling vnt- 
 nesses to attend in Court to give their 
 testimony on a trial, and which are thence 
 called mbpcmas ad testificandum; (3.) 
 Those used for the purpose, not only of 
 compelling witnesses to attend in Court, 
 but also requiring them to bring with 
 them books or documents which may be 
 in their possession, and which may tend 
 to elucidate the subject-matter of the 
 trial, and which are thence called subpcB- 
 nas ditces te&wm. 
 
 SUBEOGATION. In French Law de- 
 notes the putting a third person who has 
 paid a debt in the place of the creditor 
 to whom he has paid it, so as that he may* 
 exercise against the debt all the rights 
 which the creditor if unpaid might have 
 done. It is of two kinds, — either (1.) 
 Conventional, or (3.) Legal, the former 
 being where the subrogation is expreas by 
 the acts of the creditor and the third 
 person, the latter being (as in the case of 
 sureties) where the subrogation is wrepZM 
 by the law. 
 
 SUBSCEIBING WITNESS. He who 
 
 witnesses or attests the signature of a 
 party to an instrument, and in testimony 
 thereof subscribes his own name to the 
 document. 
 
 SUBSEQUENT CONDITIONS: Bee 
 
 title COITDITION. 
 
 SUBSIDY. An extraordinary grant in 
 the nature of a tax, aid, or tribute granted 
 by Parliament to the King to meet the 
 exigencies of the state. 
 
 See title Taxation. 
 
 ♦SUBSTITUTION. Putting^ one in 
 place of another. Usually applied to the 
 appointment of one person as heir in 
 place of another. 
 
 SUBTEACTION. The offense of with- 
 holding (or withdrawing) from another 
 man what by law he is entitled to. There 
 are various descriptions of this offense, 
 of which the principal are as follows : — 
 
 (1.) Subtraction of suit and service, 
 which is a species of injury affecting a 
 man's real property, and consists of a 
 withdrawal of (or a neglect to perform or 
 pay) the fealty, suit of court, rent, or 
 customary services, all of which in feudal 
 times, and some of which at the present 
 day, are reserved by the owner of the 
 land to himself when he lets or leases it 
 to another. For this neglect of duty on 
 the part of the tenant the law gives the 
 landlord the peculiar remedy of distress ; 
 but the other remedies formerly in use 
 for rent in arrear, and for subtraction of 
 suit and service, were abolished by the 
 Stat. 3 & 4 Will. 4, c. 37, which put an 
 end to almost all kinds of real actions ; 
 the only actions which now lie for rent 
 being of the personal class. But for the 
 neglect to perform any customary service, 
 such as the neglect or refusal to grind 
 com at the landlord's mill, an action on 
 the case will lie to compensate the party 
 injured in damages. 3 B. & C. 837. 
 
 (3.) The subtraction of tithes is the 
 withholding from the parson or vicar, 
 whether the former be a clergyman or a 
 lay impropriator, the tithes to which he 
 is entitled, and this is an offense cogniz- 
 able in the Ecclesiastical Courts; for 
 though those Courts have no jurisdiction 
 to try the right of tithes (unless between 
 spiritual persona), yet where only the 
 fact, whether or not the tithes allowed to 
 be due are really subtracted or withdrawn, 
 is in dispute, this is a personal transient 
 injury, for which the remedy (viz., the 
 recovery of the tithes or their equivalent) 
 
SUCCESSION DUTY. — SUCCESSION TO CROWN, LAW OF. 341 
 
 Subtraction. — ( Continued.) 
 may properly be had in the Ecclesiastical 
 Court. But any dispute as to tithes in 
 their original form is now rare, that 
 species of property having been in the 
 great majority of parishes already com- 
 muted into a corn rent-charge, under the 
 provisions of the Tithe Commutation Act 
 (6 (fc 7 Will. 4, c. 71). a Roll. Abr. 309. 
 
 (3.) Subtraction of conjugal rights is 
 the withdrawing or withholding by a 
 husband or wife of those rights and 
 privileges which the law allows to either 
 party. This is an offense peculiarly 
 witMn the cognizance formerly of the 
 Ecclesiastical Courts, and now of the 
 Court for Matrimonial Causes, and the 
 party injured seeks redress by bringing 
 a suit to recover those rights of which he 
 or she has been deprived, called a suit for 
 the restitution of conjugal rights. Thus, 
 where the husband leaves his wife, and 
 lives separate from her, without any suf- 
 ficient reason, the Court in question will 
 compel him to return to cohabitation. 
 
 (4.) Subtraction of legacies is the With- 
 holding or detaining of legacies by an 
 executor; and as such act deprives the 
 legatees of the benefit which the law 
 gives to them, and which the testator 
 intended them to have, it is an offense of 
 which the Courts which have a testa^ 
 mentary jurisdiction take notice. With 
 them, however, the Courts of Equity hold 
 a concurrent jurisdiction. 
 
 (5.) Subtraction of church rates is the 
 last and most familiar class of " subtrac- 
 tion," and consists in the refusal to pay 
 the amount of rate at which any indi- 
 vidual parishioner has been assessed for 
 the necessary repairs of the parish church ; 
 and thi.s, like the other species of this 
 offense, is cognizable by the Courts Ec- 
 clesiastical. Roger's Ecc. Law, 983-999 ; 
 1 Curt. 872 i 4 Ad. & E. 423; 1 Curt. 345; 
 12 Ad. & E. 338, 265; 1 Atk. 516; 2 
 Mad. 251. 
 
 SUCCESSION DUTY. This is a duty 
 varying from one to ten per cent, payable 
 under the stat. 16 & 17 Vict. c. 51, in 
 respect chiefly of real estate and lease- 
 holds, but generally in respect of all 
 property (not already chargeable with 
 legacy duty) devolving upon any one in 
 consequence of any death. 
 
 SUCCESSION TO CROWN, LAW OF. 
 
 The law of succession in Anglo-Saxon 
 times was a mixture Of the hereditary with 
 the elective principles, the Crown de- 
 scending within the royal family, but not 
 
 Snccession to Crown, Law of. — (Oont.) 
 invariably to the individual pointed out 
 by the strict rules of descent ; for in very 
 many instances the Wittenagemote seems 
 to have approved as a successor an able 
 uncle in preference to the infant son of 
 his brother, e. g., Alfred excluded the son 
 of his brother Ethelred, and Athelstan 
 (although illegitimate) excluded the sons 
 of his brother Edward the elder; and, 
 again, the sons of Edmund I. were post- 
 poned to their uncle Edred, and in their 
 turn they excluded the sons of Edred. 
 The frequency of these instances proves 
 that the principle of election was as 
 strong as that of hereditary descent, if, 
 in fact, the former principle was not the 
 stronger of the two. 
 
 This mode of succession survived into 
 the Anglo-Norman times, although the 
 elective principle was much impaired. 
 Thus, upon the death of William I., his 
 son William succeeded in exclusion of 
 Robert; and, again, upon the death of 
 WiUiam n., his brother Henry I. succeed- 
 ed, in exclusion also of Robert. Subse- 
 quently, however, the rules of descent 
 became fixed and strictly hereditary. It 
 is true that- John, who was the fifth son 
 of Henry H., excluded his elder brother 
 Greoffrey's son Arthur, but John appears 
 to have done so with difficulty, and by 
 means of artifice, for he claimed under a 
 devise of the Crown from Richard I., who 
 was elder than Geoffrey, it being proba- 
 bly at that epoch a moot point whether 
 the Crown was or not devisable. How- 
 ever, upon the death of John the Crown 
 descended upon Henry IH., although he 
 was a minor of nine years or so, and the 
 subsidiary principle of a regency (under 
 the Earl of Pembroke) was resorted to ; 
 so that the law of hereditary succession 
 to the Crown appears by a somewhat nat- 
 ural coincidence to have become estab- 
 lished at the same time and in the same 
 reign that the principles of primogeniture 
 and representation were established in 
 the matter of the succession to real prop- 
 erty. 
 
 The Crown of England has since de- 
 scended according to the strictest rules 
 of primogeniture and representation. 
 However, the doctiine of the king's ca- 
 pacity to devise the Crown was revived 
 in the reign of Henry VHI., that mon- 
 arch having attempted to devise the 
 Crown, and having also made a purport- 
 ed devise thereof in the 28th, 32d, and 
 35th years of his reign, under enabling 
 statutes passed in those years, in such 
 
342 
 
 SUE. — SUGGESTIONS, ENTRY OF, ON THE ROLL, 
 
 Succession to Crown, Law of. — (Oiwi*.) 
 manner as that the same should descend 
 upon his decease otherwise than the law 
 of inheritance pointed out, that is to say, 
 to the issue of Anne Boleyn (i. e., Eliza- 
 abeth) in exclusion of the issue of Queen 
 Catharine {i. e., Mary), and subsequently 
 to his son by Jane Seymour (i. e., Edward 
 VI.), with remainder to the issue of the 
 younger daughter of Henry VU. (i. e., 
 Mary of Suffolk, his sister), in exclusion 
 of the issue of the elder daughter of 
 Henry Vn. (i.e., Margaret of Scotland, 
 his sister). It is noteworthy, however, 
 that all those attempts to alter the hered- 
 itary Une of descent proved ineffectual, 
 and that upon the death of Henry Vin. 
 the Crown descended successively to Ed- 
 ward VI., Mary, and Elizabeth, and after- 
 ward to James I., who was the great 
 grandson of Margaret, according to the 
 strict principles of primogeniture and 
 representation, and notwithstanding that 
 there were at the time of each descent 
 persons in existence who might have 
 claimed under the devise before men- 
 tioned. 
 
 However, although the principle of he- 
 reditary succession to the Crown is now, 
 and has long been well established, still 
 that principle is, or appears at any rate to 
 be, subject to the constitutional maxim 
 established at the Revolution of 1688, 
 namely, that the two Houses of Parlia- 
 ment may, with the consent of the peo- 
 ple, but for reasons of overwhelming suf- 
 ficiency, set aside or pass over the strict 
 heir, and resort to the old principle of 
 election within the royal family, and may 
 even settle the descent of the Crown by 
 Act of Parliament, as was done, for ex- 
 ample, in the Bill of Rights, 1689, and 
 again in the Act of Settlement, 1701, the 
 present Brunswick dynasty holding, and 
 claiming to hold, under the last-men- 
 tioned Act. 
 
 See titles Bill of Rights, and Set- 
 
 TLHMBNT, AcT OF. 
 
 SUE (from Latin sequor, to follow). 
 To prosecute by law ; to commence legal 
 proceedings against a party. It is ap- 
 plied almost exclusively to prosecuting a 
 civil action against one. He who has 
 had process issued against him is said to 
 have been sued. 
 
 SUFFEEANCE. A tenant at suffer- 
 ance is he who holds lands or tenements 
 by the implied permission of the owner. 
 Thus if a man takes a lease for a year. 
 
 Sufferance. — (Oontmued.) . 
 and after the year is expired continues to 
 hold the premises without any *fresh leave 
 of the owner, such man is called a tenant 
 at sufferance, and the estate which he so 
 continues to hold is then called an estate 
 at sufferance. And generally, a tenant 
 at sufferance is one who comes in by 
 right and holds over by wrong, i. e., 
 without right. See House's Case, Tud. 
 Conv. 1. 
 
 SUFFERING A RECOTEET. A re- 
 covery, as has been explained under that 
 title, was a mode of conveyance formerly 
 in use, which was effected by the party 
 wishing to convey the land suffering a 
 fictitious action to be brought against 
 him by the party to whom the land was 
 to be conveyed (who was called the de- 
 mandant), and allowing the demandant 
 to recover a judgment against him for the 
 land in question. The vendor, or con- 
 veying party, in thus assisting or per- 
 mitting the demandant so to recover a 
 judgment against him, was thence techni- 
 cally said to "suffer a recovery." 
 See title Recovbbt. 
 
 SUFFRAGAN (from mffragari, to help, 
 or assist). Bishops who in former times 
 were appointed to supply the place of 
 others during their absence on embassies 
 or other business were so termed. They 
 were consecrated as other bishops were, 
 and were anciently called ^^ ehorepiseopi, 
 or bishops of the county," in contradis- 
 tinction to the regular bishops of the city 
 or see. The practice of creating suffragan 
 bishops after having long been discon- 
 tinued was recently revived; and such 
 bishops are now assistants of the bishops 
 generally and at all times. 
 
 SUGGESTIONS, ENTET OF, ON THE 
 EOLL. In actions at law, whenever, by 
 the provision of an Act of Parliament or 
 otherwise, a person not a party to the 
 record is to be affected by a judgment, or 
 where the judgment upon the record is to 
 be such as would not be ordinarily war- 
 ranted by the previous proceedings on the 
 record, , the proper coiirse is to enter a 
 suggestion on the roll so that the party 
 to be affected by it may demur if he 
 thinks the facts suggested are insufficient 
 in point of law ; or to plead if he means 
 to deny them. As where there are two 
 or more plaintiffs or defendants, and one 
 or more of them die, the action will not 
 be abated, but such death being suggest- 
 ed on the record, the action may be con- 
 
SUICIDE. — SUMMONS AND ORDEB. 
 
 343 
 
 Suggestions, Entry of, etc. — (Omt'd.) 
 tinued by or against the survivors, with 
 or without the representatives of the de- 
 ceased party. A suggestion is also en- 
 tered upon the record where a person not 
 a party to the action is to be afiected by 
 the judgment, under th^ provisions of an 
 Act of Parliament (as the members of a 
 company by a judgment against the sec- 
 retary), or where the judgment is to be 
 such as would not be ordinarily warrant- 
 ed by the proceedings on the record, or 
 where the sheriff to whom the venire is to 
 be awarded is interested in the suit, or 
 where, by the order of the Court, the 
 venue in a local action is removed to an- 
 other county, and in many similar cases, 
 where the circumstances involve a devia- 
 tion from the ordinary course of proceed- 
 ing. C. L. P. Act, 1852, and Jurisdic- 
 tion in Chancery Amendment Act, 1853 ; 
 2 Arch. Pract. 1566 ; 2 Dan. Ch. Praot. 
 1393. 
 
 SUICIDE : See title Fblo dh sb. 
 
 SUIT. This word has various signifi- 
 cations. As applied to proceedings at 
 Law, it originally signified a number of 
 persons or witnesses which a plaintifE 
 produced to estabUsh the truth of the al- 
 legations made in his declaration; and 
 this practice of producing a suit gave rise 
 to the very ancient formula almost inva- 
 riably used at the conclusion of a declara- 
 tion, et inde prod/udt secta/m (and therefore 
 he brings his suit) ; and thus, though the 
 actual production has for many centuries 
 fallen into disuse, stiU the formula until 
 recently remained. The other meaning 
 to which the word "suit " is applied will 
 be found under the following titles. 
 Steph. PL 461. 
 
 SUIT AT LAW : See title Action. 
 
 SUIT IN EQUITY: See title Bn,L in 
 Chancery. 
 
 SUIT OF COUKT. This phrase de- 
 noted the duty of attending the Lord's 
 Court, and, in common with fealty, was 
 and is one of the incidents of a feudal 
 holding. 
 
 SUIT OF THE KING'S PEACE , 
 
 pads regis). The pursuing a man for 
 breach of the king's peace by treasons, 
 insurrections, or trespasses. Oowel. 
 
 SUITORS' FUND IN CHANCERY 
 
 was a fund standing in the name of the 
 Accountant-General of the Court of Chan- 
 cery, and arising out of the interest which 
 
 Suitors' Fund in Chancery. — (Omfid.) 
 accrued from the large sums of money 
 paid into the name of the Accountant- 
 General by the suitors of that Court. 
 There appear to have been two principal 
 accounts kept at the Bank of England 
 by the Accountant-General of Chancery 
 with regard to the Suitors' Fund. The 
 one was entitled "Account of the moneys 
 placed out for the benefit and better se- 
 curity of the suitors of the High Court of 
 Chancey," and the other, "Account of 
 securities purchased with surplus interest 
 arising from securities carried to an ac- 
 count of moneys placed out for the bene- 
 fit and better security of the suitors of the 
 High Court of Chancery." In cases of 
 poverty, the Court would sometimes allow 
 the costs of a defendant's contempt to be 
 paid out of the "Suitors' Fund"— (1 
 Daniell, Ch. Pr. 425). Now, however, 
 under the statutes 83 & 33 Vict. c. 91 
 (Courts of Justices Salaries and Funds 
 Act, 1869), and 35 and 36 Vict. c. 44 
 (Court of Chancery Funds Act, 1872), 
 and the Chancery Funds Rules, 1873, the 
 Suitors' Fund has been reduced to a vary- 
 ing amount, and vested in an officer 
 called the Paymaster-General, who has 
 been substituted for the Accountant- 
 General, and the sui-plus moneys have 
 been transferred to the Treasury in triist 
 for the public and on their indemnity. 
 
 SUMMARY CONVICTIONS. Sum- 
 mary proceedings directed by several 
 Acts of Parliament for the conviction of 
 offenders, and the infiicting of certain 
 penalties created by those Acts of Parlia- 
 ment. In these proceedings there is no 
 intervention of a jury, but the party ac- 
 cused is acquitted or condemned by the 
 suffrage of such person only as the stat- 
 ute has appointed to be his judge, and 
 who is usually the magistrate, or bench of 
 magistrates. See Oke on Summary Con- 
 victions ; Greenwood and Martin, 1874. 
 
 SUMMONS. The process used for 
 bringing a party before a justice of the 
 peace on summary conviction is termed a 
 summons. It is also sometimes called a 
 warrant, but the latter term commonly 
 denotes that instrument which authorizes 
 the apprehension of the accused, which a 
 summons does not generally do. 
 
 SUMMONS AND ORDER. In the pro- 
 gress of an action at law it frequently 
 becomes necessary to obtain the order of 
 the Court upon some matter of minor im- 
 portance ; and as such matters are of very 
 
344 
 
 SUMMONS, WRIT OF. — SUPERSEDE AS. 
 
 Summons and Order. — (^OonUmted.) 
 frequent oecurrence, it would be incon- 
 venient in majiy respects to permit the 
 party seeking such an order to make an 
 application for the same in open Court ; 
 in consequence of which, one of the 
 judges usually sits at his own chambers 
 for the purpose of hearing and disposing 
 of such minor matters. The party who 
 wishes to obtain a judge's order must 
 usually summon the attorney or agent of 
 the opposite party before the judge, whidi 
 he does by obtaining a judge's summons, 
 and serving it on such opposite party, 
 which summons requires him to attend 
 before the judge at a specified time, to 
 show cause why the party applying for 
 the order should not have it granted him. 
 The order of the judge, when granted, 
 usually orders or grants liberty to the ap- 
 plicant to have what he seeks. 2 Arch. 
 Pract. 1598. 
 
 SUMMONS, WRIT OF. The writ or 
 process used for the commencement of 
 all personal actions in the Courts of Law. 
 It is a judicial writ (i. e., a writ issuing 
 out of the Court in which the defendant 
 is to be sued, and witnessed in the name 
 of its chief judge), and is directed to the 
 defendant, whom it commands to appear 
 in Court at the suit of the plaintiff. By 
 the C. L. P. Acts, 1852 and 1854, six gen- 
 eral forms of this writ were provided, viz., 
 ■ I. Where defendant is within the 
 jurisdiction, and the writ bears 
 no special indorsement ; 
 n. Where defendant is within the 
 jurisdiction, and the writ bears 
 a special indorsement ; 
 ni. Where defendant, beuig a British 
 subject, is out of the jurisdic- 
 tion; 
 rV. Where defendant, not being a 
 British subject, is out of the 
 jurisdiction ; 
 V. Wliere the plaintiff seeks a manda- 
 mus (C. L. P. Acts, 1854, a. 68) ; 
 and 
 VI. Where the plaintiff seeks an in- 
 junction. C. L. P. Acts, 1854, 
 ss. 79-82. 
 And under the Summary Procedure on 
 BiUs of Exchange Act, 1855, where that 
 process is set in motion, it is by means of 
 a writ of summons specially provided for 
 the purpose. See 18 & 19 Vict. c. 67. 
 
 Under the Judicature Act, 1873, a writ 
 of summons is prescribed for the com- 
 mencement of all proceedings in the 
 Court of Chancery. 
 
 SUMPTUARY LAWS. Laws made for 
 restraining excess of expenditure in 
 clothes and apparel, &c. CoweL 
 
 SUNDAY. Contracts in England made 
 on Sundays by persons in their usual 
 trades are invalid under the stat. 29 Car. 
 2, c. 7 {Bloxsome v. WUUams, 3 B. & 0. 
 232). The statute applies to "trades- 
 men, artificers, worlnnen, laborers, and 
 other persons whatsoever;" but it does 
 not extend to people not falling within 
 these categories, e. g., io a, stage-coach 
 owner (Sandvman v. Breneh, 7 B. & C. 96) ; 
 and works of necessity are expressly ex- 
 cepted. 
 
 * SUPERCARGO. The superintend- 
 ent of a cargo. The person employed to 
 take, charge of and sell a cargo of mer- 
 chandise and to purchase a returning 
 cargo. 
 
 SUPERIOR COURTS. The Courts of 
 the highest and most extensive jurisdic- 
 tion, viz., the Court of Chancery and the 
 three Courts of Common Law, i. e., the 
 Queen's Bench, the Common Pleas, and 
 the Exchequer, which sit in Westminster 
 Hall, are commonly so termed. 4 Steph. 
 PI. 868, 369, 5th ed. See also Peaeock v. 
 Bell, 1 Saund. 73; 12 Ad. & E. 256; 4 
 Ad. & E. 433, 446. 
 
 See title Cotjktb of Justice. 
 
 SUPERSEDE. To stay, stop, inter- 
 fere with, or annul. Thus, the proceed- 
 ings of outlawry may be superseded at 
 any time before the return of the exigent 
 by the enti-y of the defendant's appear- 
 ance with the clerk of the outlawries. So 
 the Lord Chancellor or Court of Appeal 
 in Chancery would supersede or annul a 
 fiat in bankruptcy, if it had been im- 
 properly issued, as where the bankrupt 
 was discovered not to be a trader within 
 the bankruptcy laws (10 Bing. 544; 1 
 Mont. & Ayr. Bankruptcy, 514-557 ; 5 & 6 
 Vict. c. 123, s. 4). 
 
 See, also, next title. 
 
 SUPERSEDEAS. A writ which lies 
 in various cases to supersede or to stay 
 the doing of that which ought not to be 
 done (on account of the particular cir- 
 cumstances of the case), but which ordi- 
 narily may be done. Thus, for example, 
 a man may commonly obtain surety of 
 peace against another of whom he swears 
 he is in bodily fear, and the justice of 
 whom the same is required cannot com- 
 monly deny the party such surety ; but if 
 the party has been before bound to the 
 
SUPERSTITIOUS USES. — SUE CUT IN VITA. 
 
 345 
 
 Supersedeas. — {Ckmtmued.) 
 peace, then a ■writ of supersedeas lies to 
 stay the justice from doing that which 
 otherwise he ought not to deny. F. N. 
 B. 236. 
 
 8ee,iX60, title Supbksedb. 
 
 SUPERSTITIOUS USES. What these 
 are depends partly on the Common Law, 
 which renders it incumbent on the Crown 
 to prevent the propagation of a false re- 
 ligion, and partly upon particular statutes, 
 being principally the following: — 
 
 (1.) 33 Hen. 8, c. 10, assurances of lands 
 to uses to have ohiU perpetual, or 
 a continual service of a priest 
 forever; 
 (2.) 1 Edw. 6, c. 14, lands given to the 
 finding or maintenance of any 
 anniversary or obit, or other like 
 thing, intent, or purpose; and, 
 (3.) 1 Q-eo. 1, c. 50, a statute appoint- 
 ing a commission to inquire into 
 and confiscate to the king lands 
 held on superstitious uses. 
 Inasmuch as the doctrines of Protestant 
 Dissenters, of Roman Cathohcs, and of 
 Jews were all deemed contrary to the na- 
 tional worship more or less, all trusts in 
 aid of such teachings were deemed super- 
 stitious ; but Dissenters were relieved of 
 this interpretation by the Toleration Act, 
 1689, Roman Catholics by the stat. 2 & 3 
 Will 4, c. 115, and Jews by the stat. 9 
 & 10 Vict. c. 59. 
 
 See, also, title Chabitablb Ubks. 
 
 SUPPLEMENTAL BILL. In a suit 
 in Chancery it frequently happens that 
 new matter has arisen or is discovered 
 since the fihng of the original bill in the 
 suit, or that some of the parties have ac- 
 quired a new interest, or that fresh par- 
 ties have acquired an interest in the 
 matter in question; all which matters 
 must be brought to the knowledge of the 
 Court upon the proceedings. Now it 
 occasionally happens that some of these 
 objects may be accomplished by amend- 
 ing the bill ; but after the parties are at 
 issue, and witnesses have been examined 
 in the suit, the biU cannot usually be 
 amended, and therefore the defect is in 
 such case supphed by means of what is 
 termed a supplemental bill (Gray's Ch. 
 Pr. 86). However, under the modem 
 practice, the Court will sometimes, on an 
 ex parte application by motion or petition, 
 make an order to revive and carry on the 
 proceedings in the original suit without 
 the necessity of filing any supplemental 
 bill. 
 
 SUPPLETOET OATH. In the modem 
 practice of the Civil Law they do not 
 allow a less number than two witnesses 
 to be plena probatio (full proof) ; they call 
 the testimony of one semirplena probatio 
 only, on which no sentence can be found- 
 ed. In order to supply the other half of 
 proof, they admit the party himself 
 (plaintiff or defendant) to be examined 
 in his own behalf, and the oath adminis- 
 tered to him for that purpose is called 
 the suppletory oath, because it supplies 
 the necessaiy quantnim of proof on which 
 to found the sentence. 
 
 SUPPHCAVIT. A mandatory writ is- 
 suing out of the Court of King's Bench or 
 Chancery to compel a justice to give se- 
 curity of peace to a party who is in bodily 
 danger. 
 
 SUPPLIES. The '.' supplies," in par- 
 liamentary proceedings signify the sums 
 of money which are annually voted by 
 the House of Commons for the mainte- 
 nance of the Crown and the various public 
 services. 
 
 SURCHARGE. This word signifies 
 overcharge, or over and above the regular 
 amount. Thus^ surcharge of the forest 
 or of common signifies the putting in the 
 forest or on the common more beasts 
 than one has a right to put ; and if, after 
 admeasurement of common, upon a writ 
 of admeasurement of pasture, the same 
 defendant surcharges the common again, 
 the plaintifiE may have a "writ of second 
 surcharge (de secundd superatione pasturtB), 
 by which the sheriff is directed to inquire 
 by a jury whether the defendant has in 
 fact again surcharged the common con- 
 trary to the tenor of the last admeasure- 
 ment, and if he has, he shall then forfeit 
 to the king the supernumerary cattle put 
 in, and shall also pay damages to the 
 plaintiff. 
 
 SURCHARGE AND FALSIFY. This 
 phrase, as used in the Courts of Chan- 
 cery, denotes the Uberty which these 
 Courts will occasionally grant to a plain- 
 tiff who disputes an account, which the 
 defendant aUeges is settled, to scmtinize 
 particular items therein without opening 
 the entire account. The showing an 
 item for which credit ought to have (but 
 has not) been given is to surcharge the 
 account; the proving an item to have 
 been inserted wrongly is to falsify the 
 account. 
 
 SUR GUI IN VITA. A writ that lay 
 for the heir of a woman whose husband 
 
346 
 
 SURETY OF THE PEACE. — SURMISE. 
 
 Sur Cni in Tita. — {OonUnued.) 
 had aliened her land in fee, and she 
 omitted to bring the writ of cui in vita 
 for the recovery thereof ; in which case 
 her heir might have this writ against the 
 tenant after her decease. Cowel. 
 
 SURETY OF THE PEACE. Surety 
 of the peace is a species of preventive 
 justice, and consists in obliging those 
 persons whom there is a probable ground 
 to suspect of future misbehavior, to stip- 
 ulate with, and to give full assurance to, 
 the public that such offense as is appre- 
 hended shall not take place, by finding 
 pledges or securities for keeping the 
 peace, or for their good behavior. This 
 security consists in being bound with one 
 or more securities in a recognizance or 
 obligation to the king entered on record, 
 and taken in some Court, or by some 
 judicial officer; whereby the parties 
 acknowledge themselves to be indebted 
 to the Crown in the sum required (for 
 instance £100), vpith condition to be void 
 and of none effect if the party shall ap- 
 pear in Court on such a day, and in the 
 meantime shall keep the peace, either 
 generally toward the king and all his 
 liege people, or particularly alsp with 
 regard to the person who seeks such 
 security. Or if the security be for the 
 good behavior of the party, then on con- 
 dition that he shall demean and behave 
 himself well (or be of good behavior); 
 either generally or specially, for the time 
 therein limited. 
 
 SURETYSHIP. This word denotes 
 the relation in which one person who is 
 not primarily indebted stands toward the 
 two other persons, viz.,the primary creditor 
 whom he further assures in his debt, and 
 the primary debtor whom he assists in 
 obtaining credit. The relation is con- 
 tractual in these respects, viz., the surety 
 agrees vnth the creditor to pay him, fail- 
 ing the debtor ; and the debtor agrees to 
 repay the surety the amount which he 
 may have paid on his account to the 
 creditor. 
 
 The utmost good faith is required from 
 all parties to this con&act, any conceal- 
 ment or misrepresentation of material 
 facts on the part of the creditor releasing 
 the surety (Pidcock v. Bishop, 3 B. & C. 
 605; and quc^e Samilton v. Wataon, 13 
 CI. &■ F. 109). Whence the surety will 
 be discharged if the creditor varies the 
 contract with his debtor without the 
 surety's privity, or if without the surety's 
 
 Suretyship. — {Oontinued.) 
 consent he give time to the debtor or 
 release the debtor, but not if he merely 
 covenant not to sue the debtor. 
 
 It seems that the surety cannot compel 
 the creditor (as in Roman Law, ienefiaimn 
 excusaiorm vel ordinia) to obtain payment 
 of his debt from the debtor; but he can 
 compel the debtor to pay the debt when 
 d.\3.e{Padwi6k ■V.Stanley, 9 Hare, 637). And 
 in case the surety has been called upon 
 to pay, and has paid, the debt, then he 
 is entitled to be re-imbursed the amount 
 by the debtor, a right which is commonly 
 called his right to recov/pmemt. He has 
 also under such circumstance a right to 
 have all securities held by the creditor 
 delivered up to him, whether or not the 
 same securities, or any of them, are satis- 
 fled by his own payment of the debt 
 (Hodgson v. Sliam, 3 My. & K. 190, and 
 M. L. A. Act, 1856) ; and whether or not 
 he knew at the time of becoming surety 
 that the creditor held such securities ; a 
 right which was called in Latin lenefldum 
 cedenda/rwm actAonwm. 
 
 Where there are two or more sureties 
 for one and the same debt, they have in 
 English Law no right (as they had in 
 Roman Law under the EpistnilaMadrian^ 
 to require the creditor to split his demand 
 equally between or amongst all the solvent 
 co-sureties (benefldum dimaionia), but in 
 lieu thereof they have what is called the 
 right of contribution as against each other, 
 where one or more have paid the entire 
 debt. At Law this right of contribution 
 is regulated by the original number of 
 co-sureties (Batwrd v. Bamea, 2 El. & Bl. 
 387), but in Equity by the number of 
 those who are solvent at the time of pay- 
 ment {Peter v. Rich, 1 Ch. Rep. 19) ; and 
 for this purpose it does not matter 
 whether all the co-sureties are by one 
 instrument or by several instruments 
 {Dering v. Earl of Winchelsea, 1 W. & T. L. 
 0. 89), provided they are equally upon a 
 line as sureties for one common debt, and 
 not one for one part only and the others 
 for the other part of the debt {Ooope v. 
 Twynam, 1 T. <fc R. 426), or some as being 
 only collaterally liable in svisidium of 
 the others. Swain v. WaU, 1 Ch. Rep. 
 149. 
 
 SURMISE. This word commonly de- 
 notes to suspect, conjecture, or suggest. 
 In former times, where a defendant in an 
 action pleaded a local custom — as, e. g., 
 a custom of the City of London — it was 
 necessary for him "to surmise," that is, 
 
SUKKBBUTTER. — SUSPENSE, SUSPENSION. 
 
 347 
 
 Sarmise. — ( Continued.) 
 to suggest, that such custom should be 
 certified to the Court by the mouth of the 
 Recorder, and -without such a ' ' surmise " 
 the issue was to be tried by the country, 
 as other issues of fact are. 1 Burr. 251 ; 
 Vin. Abr. 246 (G.). 
 
 SUREEBUTTER: See title Rbbot- 
 
 TBK. 
 
 SURREJOINDER: See title Rbjoin- 
 
 DBE. 
 
 SURRENDER. A surrender is of a 
 nature directly the reverse of a lease ; for 
 as the latter operates by the greater estate 
 descending upon the less, so a surrender 
 operates by the falling of a less estate 
 into a greater. It is defined by Lord 
 Coke to be the yielding up of an estate 
 for life or years to him who has an im- 
 mediate estate in reversion or remainder, 
 wherein the estate for life or years may 
 drown by mutual agreement between 
 them. The person who so surrenders is 
 termed the surrenderor, and the person 
 to whom he surrenders is termed the sur- 
 renderee. 
 
 See title Contbtanobs. 
 
 SURRENDER OF COPYHOLD. The 
 
 mode of conveying or transferring copy- 
 hold property from one person to another 
 is by means of a surrender, which con- 
 sists in the yielding up of the estate by 
 the tenant into the hands of the lord for 
 such purposes as are expressed in the sur- 
 render. The process in most manors is 
 for the tenant to come to the steward 
 either in Court or out of Court, or else to 
 two customary tenants of the same manor, 
 provided there be a custom to warrant it, 
 and there by deUveringup a rod, a glove, 
 or other symbol, as the custom directs, to 
 resign into the hands of the lord, by the 
 hands and acceptance of his steward, or 
 of the said two tenants, all his interest 
 and title to the estate; in trust, to be 
 again granted out by the lord to such 
 persons and for such uses as are named 
 in the surrender, and as the custom of 
 the manor will warrant. 
 
 SURROGATE. One who is appointed 
 or substituted in the place of another, 
 most commonly in the place of a bishop, 
 or a bishop's chancellor. He usually pre- 
 sided in the bishop's diocesan court, and 
 as the representative of the ordinary 
 granted letters of administration where 
 the spiritual court was not presided over 
 by a judge. Upon the death of the judges 
 of the Ecclesiastical Courts in the sees of 
 
 Surrogate. — ( GonUnued. ) 
 Canterbury and London, the surrogates' 
 of such Courts were by Act of Parliament 
 directed to perform their duties until the 
 appointment of their successors. 3 Bum's 
 Ecc. Law, 667, 229 ; stat. 10 Geo. 4, c. 
 53, s. 13. In American Law, the term 
 surrogate is sometimes used to designate 
 the judge of probate and administration 
 of wills. 
 
 SURVITORSHIP. One of the inci- 
 dents of joint estates is what is termed 
 the doctrine of survivorship, by which, 
 when two or more persons are seized of a 
 joint estate of inheritance for their own 
 lives, or pv/r autre vie, or are jointly pos- 
 sessed of a chattel interest, the entire ten- 
 ancy upon the "decease of any of them re- 
 mains to the survivors, and at length to the 
 last survivor ; and he shall be entitled to 
 the whole estate, whatever it be, whether 
 an inheritance or a common freehold only, 
 or even a less estate. This incident does 
 not attach to estates held by tenancy in 
 common ; but in the case of these latter 
 tenancies it is not unusual to insert a 
 clause of survivorship or accrual as it is 
 called. There is this difference between 
 the accrual in joint tenancies which is 
 impUed by law, and the accrual in com- 
 mon tenancies which is expressed in the 
 words of the deed, that whereas the 
 former takes place repeatedly, as often as 
 the event arises, the latter is confined to 
 the original shares only of the tenants, 
 and does not extend also to the shares 
 accrued by the accrual, it being a maxim 
 of law as to the express clause that in the 
 absence of express words there is "no 
 survivorship upon survivorship " (Podn 
 V. Benson, 3 Atk. 80). Usually, also, 
 there is no survivorship implied at law as 
 between pwrtners ; moreover, the Court 
 of Chancery will defeat survivorship upon 
 very sUght distinctions. 
 
 See title Joint Tenancy. 
 
 SUSPENSE, SUSPENSION. A tem- 
 porary stop or suspension of a man's 
 rights; as when a seigniory rent, &c., on 
 account of the unity of possession thereof, 
 and of the land out of which it issues,are 
 not in esse for a time, but may be revived 
 at some future time ; and thus suspension 
 diflFers from extinguishment, which would 
 extinguish or annSiilate the rent for ever. 
 The word "suspension" is also applied 
 to the depriving of an ecclesiastic of the 
 profits and privSeges of his benefice. See, 
 also, a like use of the word in the case of 
 Easements, supra. 
 
348 
 
 SUS. PEE COLL. — TAIL. 
 
 * SUS. PER COLL Qet Tiim ie Tumged hy 
 'the neeh). Words used in England an- 
 ciently in signing judgment against a 
 criminal who was to be himg. 
 
 *SWEINMOTE. One of the ancient 
 forest Courts. Jacob Diet. 
 
 *STN6RAPH. A deed under the 
 hand and seal of aU the parties. 
 
 * TACIT RELOCATION. In Scotch 
 Law, an implied reletting of premises, the 
 tenant continuing in possession after the 
 expiration of the lease. 1 Forbes' Inst, 
 pt. 3, p. 653. 
 
 TACKINGr. This word denotes annex- 
 ing, and as applied to mortgages it sig- 
 nifies the annexation of a subsequent to 
 some prior charge. This is its chief ap- 
 plication in law; but under the Vendor 
 and Purchaser Act, 1874 (37 & 38 Vict, 
 c. 78), s. 7, the doctrine of tacking has 
 been abolished as from the 7th August, . 
 1874. The law prior to that date was ex- 
 pressed in the following rules, which are 
 principally taken from the celebrated case 
 of Brace v. Ma/rlbwimgh (Ihtchess), 2 P. 
 "Wms. 491 :— 
 
 (1.) A third mortgagee buying in a 
 first mortgage, Jein^ a legal mortgage, might 
 annex his third mortgage to the first, so 
 as to squeeze out, i. e. , get paid before, 
 the second or mesne mortgage ; 
 
 (3.) One who is a legal mortgagee to 
 begin with, and who afterward advances 
 a further sum upon a judgment, might in 
 like manner annex his judgment to his 
 mortgage ; but one who was a judgment 
 creditor to begin with could not annex 
 his judgment to a first legal mortgage 
 which he might afterward obtain a trans- 
 fer of ; 
 
 (3.) Tacking is excluded when all the 
 mortgages are equitable ; also, where the 
 third mortgage or the subsequent mort- 
 gage is made or obtained with notice of 
 the second or mesne mortgage. {See title 
 Notice.) 
 
 The doctrine of Consolidation may be 
 taken to have fallen with the abolition of 
 tacking, for it was a gross abuse of the 
 doctrine of tacking. It was this: A 
 mortgagor or the purchaser from him 
 could not redeem one or any of two or 
 more estates in mortgage (whether orig- 
 inally or by successive transfers) to the 
 same individual without redeeming thein 
 aU, for the mortgagee might heap up, i. 
 
 Tacking. — ( OonUnited. ) 
 e., eonaoUdate, all his mortgages upon one 
 estate. SeHn/ v. Pom/ret, IJ. & H. 336 ; 
 Beevor v. Luek, L. R. 4 Bq. 637. 
 
 TAIL (from the Fr. tailler, to cut or to 
 carve). This word, used in conjunction 
 with the word " estate " or the word 
 "fee," signifies an estate of inheritance, 
 descendible to some particular heirs only 
 of the person to whom it is granted, in 
 contradistinction to an estate in fee sim- 
 ple, which is an estate descendible to the 
 heirs general (without distinction) of the 
 person to whom it is granted. An estate 
 tail is of two kinds, general and special. 
 When lands are given to a man and the 
 heirs of his body without any further re- 
 striction, this is called an estate tail gen- 
 eral ;. because how often soever such donee 
 in tail be married, his issue by every such 
 marriage is capable of inheriting tiie es- 
 tate tail. But if the gift is restrained or 
 limited to certain heirs of the donee's 
 body, exclusively of others, as in the case 
 of lands being given to a man and the 
 heirs of his body on Mary his present 
 wife to be begotten, this is an estate 
 tail special, because the issue of the donee 
 by any other wife is excluded. 
 
 Estates tail are also distinguished into 
 estates tail male and estates tail female. 
 When lands are given to a person and 
 the heirs male of his or her body, this is 
 called an estate tail male, and to which 
 the female heirs are not capable of inher- 
 iting. On the other hand, when lands 
 are given to a person and the heirs female 
 of Ms or her body, this is called an estate 
 tail female, and to which the male heirs 
 are not capable of inheriting. The per- 
 son who holds an estate tail is termed a 
 tenant in tail. And when a person grants 
 land to a man and his particular heirs in 
 the manner above described (t. «., when he 
 creates an estate tail), such person is said 
 to entail his lands. 1 Cruise, 78, 79 ; Les 
 Termea de la Ley. 
 
 Estates tail exist chiefly in lands of 
 freehold tenure, the statute Be Bonis 
 OondiUonalibua (18 Edw. 1, -c. 1) upon 
 which they depend speaMng only of 
 "tenements of inheritance." However, 
 certain manors having, in imitation of 
 the Courts at Westminster, introduced 
 into their Courts the analogy of the stat- 
 ute, while other manors have persistently 
 excluded it, it follows that in manors of 
 the former class an estate tail in copyhold 
 lands may and does exist, and arises in 
 virtue of the .same words as the like ea- ' 
 
TAKING, FELONIOUS. — TAXATION. 
 
 349 
 
 Tail. — ( Gmlmued.) 
 
 tate in freehold lands ; whereas in man- 
 ors of the latter class an estate tail does 
 not exist, but a donum conditionale, only, 
 i. e., a fee simple conditional at Common 
 Law, as was the case with all like gifts 
 of freehold lands before the Statute Be 
 Bonis. 
 
 Personal estate cannot be entailed ; and 
 words of limitation which would confer 
 an estate tail in freehold lands give a fee 
 simple absolute in leasehold lands (Zeveiv- 
 thorpe V. AsMne, Tud. Conv. 763), or 
 2M(W« (if executory) a fee simple condi- 
 tional. Marlof StaffordY.Buchlei/jZYeB. 
 Sen. 170. 
 
 See, also, title Estate. 
 
 TAKING, FELONIOUS : See title Lab- 
 cent. 
 
 TALES. When by means of challen- 
 ges, or any other cause, a sufficient num- 
 ber of unexceptional jurors does not ap- 
 pear at the tnal, either party may pray a 
 tales as it is termed ; that is, a supply of 
 sircH men as are aunmioned on the first 
 panel in order to make up the deficiency. 
 For this purpose a writ of decern tales, oeto 
 tales, and the like used to be issued to the 
 sheriff at Common Law, and must be still 
 so done at a trial at bar, if the jurors 
 make default. But at the assizes or nisi 
 prius, by virtue of the stat. 35 Hen. 8, c. 
 6, and other subsequent statutes, the 
 judge is empowered at the prayer of 
 either party to award a tales de eiroumstan- 
 Ubus, i. e., of the l>ystamders or of persons 
 present in the Court, to be joined to the 
 other jurors to try the cause, who, how- 
 ever, are liable to the same challenges as 
 the principal jurors. This is usually done 
 tattes quaties till the legal number of 
 twelve is completed. 1 Inst. 155. 
 
 TALITER PEOCESSUM EST. When 
 pleading the judgment of an inferior 
 Court the proceedings preliminary to such 
 judgment, and on which the same was 
 founded, must, to some extent, appear in 
 the pleading ; but the rule is that they 
 may be alleged with a taliter processum est, 
 i. «., with a general assertion that "such 
 proceedings were had," instead of a de- 
 tailed account of the proceedings them- 
 selves; thus, "that A. B. at a certain 
 Court, &c., held at, &c., levied his plaint 
 against C. D. in a certain plea of, &c., for 
 a cause of action arising within the juris- 
 diction, and thereupon such proceedings 
 were had that afterward, &c., it was 
 considered by the said Court that A. B. 
 
 Taliter Frocessnm Est. — {Oontimied.) 
 should recover against the said C. D." 
 (1 Wms. Saund. 113, 113; Steph. PI. 369, 
 5th ed.) A like concise mode of stating 
 former proceedings in a suit is adopted 
 at the present day in Chancery proceed- 
 ings upon Petitions and in BUls of Re- 
 vivor and Supplement. See Pemberton 
 on that subject. 
 
 TALLAGE. This word is said to be 
 used metaphorically for a share of a man's 
 substance, paid by way of tribute, toU or 
 tax ; being derived from the French tail- 
 ler, which signifies a piece cut out of the 
 whole. Cowel. 
 
 See title Taxation. 
 
 * TAEDE VENIT. A return to a writ 
 when it came into the sheriff's hands too 
 late to be executed. 
 
 TAXATION. In early Anglo-Norman 
 times, taxation was twofold : 
 
 (1.) Taxes upon land, and being either 
 (a.) On military tenants; or 
 (&.) On socage; tenants, thereof; and 
 (3.) Taxes upon persons other than 
 landowners, being the taxes com- 
 monly called tallages. 
 The taxes of the first class were noth- 
 ing more than the incidents of tenure, 
 viz., aids, reliefs, wardships, marriages, 
 escheats, and the like, the amounts of 
 which were regulated by Magna Charta, 
 1215. The taxes of the second class were 
 granted by the Commons in Parliament ; 
 and it is regarding these latter' taxes that 
 most of the statutes protecting the sub- 
 jects' property against illegal taxation 
 have been made, chief amongst which is 
 the Statutum de Tallagio non Goneedmdo 
 (35 Edw. 1). But the king also derived 
 a large revenue from his hereditary 'do- 
 mains. 
 
 In later times fresh sources of revenue 
 were opened up, namely : 
 
 (1.) The custuma antiqua sive magna, 
 being customs granted for the 
 first time in 35 Edw. 1, and fall- 
 ing upon wool, woolfels, and 
 leather, exported and imported ; 
 (3.) The embrniM nova sme pan-va, being 
 customs granted for the first time 
 in 31 Edw. 1, and falling upon 
 merchant strangers exclusively, 
 and being in addition to their 
 assessment under the c^Mit^ma ain- 
 tigua sii)e magna ; 
 (3.) Butlerage, being a charge of 2». on 
 every ton of wine imported by 
 merchant strangers ; and 
 
350 
 
 TAXING COSTS. — TELLERS IN PAELLiMENT. 
 
 Taxation. — ( Omtinued.) 
 (4.) Prisage, being a charge of 20s. for 
 one t<m before and another be- 
 hind the mast, and falling upon 
 English merchants haying 20 
 tons of wine or more on board. 
 Two other modes of raising a revenue 
 were given to the sovereign by special 
 Acts of Parliament, passed usually at the 
 commencement of each reign, viz. : 
 
 (1.) Tonnage and Poundage, the for- 
 mer on wine and the latter on 
 dry goods ; and 
 (2.) Aids, being chiefly tenths and fif- 
 teenths of moveable goods. 
 The king, also, in virtue of his prerog- 
 ative, or of an assumed prerogative, ex- 
 ercised other modes of raising a revenue, 
 viz.: 
 
 (1.) Purveyance ; 
 (2.) Benevolences; 
 (3.) Forced loans; and 
 (4.) Fines, forfeitures, and penalties. 
 In 12 Car. 2, when the feudal tenures 
 were commuted into socage tenures, the 
 revenue from the feudal dues was taken 
 away and in lieu thereof the excise duties 
 were given to the king ; but afterward, 
 in 1692, an equivalent for the feudal dues 
 was re-imposed on land in the shape of the 
 land-tax, which in 38 Geo. 3, was fixed 
 at 4s. in the pound, and made perpetual. 
 
 TAXING COSTS. There are certain 
 officers in the Courts of Common Law 
 who are appointed to examine the items 
 in attorney's bills, and to make such de- 
 ductions as they think proper to be made ; 
 this process of examining the bills, and 
 making the proper deductions, is techni- 
 cally termed taxing costs. The officers 
 who perform this duty are the masters of 
 the respective Courts ; and when a master 
 has so examined a bill (or taxed the costs, 
 as it is so termed), and has deducted the 
 items which he has thought proper to dis- 
 allow from the gross amount, he marks 
 down the remaining sum which is to be 
 allowed, and this remaining sum is thence 
 called the master's alhcatm: In the 
 Courts of Chancery there are similar offi-- 
 cers called Taxing Masters, whose duties 
 are the same in respect to Chsfticery pro- 
 ceedings, and the result of their taxation 
 is embodied in their certificate. 
 
 The taxation of costs may be made on 
 either of two scales, that is to say, either 
 (1.) As between solicitor and client, which 
 is the more liberal; or (2.) As between 
 party and party, which is the less liberal 
 scale. 
 
 Taxing Costs. — (OmUmied.) 
 
 At any time before the taxing master's 
 certificate is signed, any party dissatisfied 
 therewith may apply to the master for a 
 warrant to review the taxation; and may 
 also apply by summons at Chambers for 
 an order to review the taxation, such re- 
 view extending only to matters objected 
 to before the master. 
 
 TELEGRAPHS. Under the stat. 31 & 
 32 Vict. c. 110, and the Amendment Act, 
 32 & 83 Vict. c. 73, the Government, in 
 its Postmaster-General, was authorized to 
 acquire, work, and maintain electric tele- 
 graphs for th« use of the public, having 
 previously only had the use thereof in 
 common with the public. The telegraph 
 company (and now, senible, the Govern- 
 ment) is not answerable for the conse- 
 quences of a mistake in transmitting the 
 message on the vrires (J^cAndrew v. Mec- 
 tric Telegraph Company, 17 C. B. 3). Tele- 
 graph messages are not privileged from 
 production for purposes of evidence in 
 Courts of Justice. In re WaddeU, 8 Jur. 
 (N. S.) 181. See, generally, Allen's Tele- 
 graph Cases; Scott & Jajnigin Law of 
 Telegraphs. 
 
 TELLERS. Four officers in the Ex- 
 chequer so called, whose duty it was to 
 receive all moneys due to the king, and toi 
 give the clerk of the pells a bill to charge 
 him therewith. They also paid all per- 
 sons any money payable by the king, by 
 warrant from the auditor of the receipt, 
 and made weekly and yearly books of 
 their receipts and payments, which they 
 delivered to the Lord Treasurer. Cowel. 
 See, also, next title. 
 
 TELLERS IN PARLIAMENT. In the 
 
 language of Parliament, the " tellers " are 
 the members of the House selected to 
 count the members when a division takes 
 place. In the House of Lords a division 
 is effected by the "non-contents" remain- 
 ing within the bar, and the "contents" 
 going below it ; a teller being appointed 
 for each party. In the Commons the 
 " ayes " go into the lobby at one end of 
 the House, and the "noes" into a lobby 
 at the other end, the House itself being 
 perfectly empty. The Speaker then ap- 
 points two tellers for each party, and of 
 each two there is one for the ayes and one 
 for the noes put together, in order that 
 they may act as a check upon each other. 
 On the return of the members into the 
 House their names are ascertained by the 
 clerks, who, having in their hands alpha- 
 
TEMPORALITIES OF BISHOPS. — TENANT IN TAIL, ETC. 
 
 351 
 
 Tellers in Parliament. - 
 
 betical lists printed on large pieces of 
 cardboard, put a mark against the name 
 of each as he passes. In this manner a 
 division of a full House will be effected 
 in a little more than a quarter of an hour. 
 May's Treatise on Parliament. 
 
 TEMPORALITIES OF BISHOPS: Bee 
 
 title SpntiTUAiiTiHS of a Bishop. 
 
 TENANT (tmem, from tenere, to hold). 
 This word conveys a much more compre- 
 hensive idea in the language of the law 
 than it does in its popular sense. In 
 popular language, it is used more particu- 
 larly as opposed to the word ' ' landlord ;'' 
 and always seems to imply that the land 
 or property is not the tenant's own, but 
 belongs to some other person, of whom 
 he immediately holds it. But in the lan- 
 guage of the law, every possessor of 
 landed property is called a tenant, with 
 reference to such property; and this, 
 whether such landed property is abso- 
 lutely his own, or whether he merely holds 
 it under a lease for a certain number of 
 years. The reason of it is, that almost 
 -aU the real property of this kingdom is, 
 by the policy of our laws, supposed to be 
 granted by, dependent upon, and h olden 
 of, some superior lord-, in consideration 
 of some service to be rendered to the lord 
 by the tenant or possessor of this prop- 
 erty. Tenants are distinguished, accord- 
 ing to the nature of the estate which they 
 hold, by appropriate and corresponding 
 terms. Thus, a person who holds an 
 estate in fee simple is called, with refer- 
 ence to such estate, a tenant in fee simple ; 
 if the estate which a person holds is an 
 estate tail, he is then called, with refer- 
 ence to such an estate, a tenant in tail ; 
 if it is an estate for years, he is then called 
 tenant for years, and so on. The word 
 "tenant," therefore, when applied to a 
 person, alway presupposes such person to 
 be the holder or possessor of an estate of 
 some kind or other, but what kind of an 
 estate it is cannot be determined without 
 some additional adjuncts being associated 
 with the word "tenant;" as the words 
 "in fee simple," "in tail," "for life," 
 "for years," &c., which at once define 
 the e^ent or interest which the tenant 
 has in the lands or tenements. 
 
 See, also, titles Estate; Tbhtjkbs; 
 and succeeding titles. 
 
 TENANT IN COMMON. Tenants in 
 common are generally defined to be such 
 as hold by several and distinct titles, but 
 
 Tenant in Common. — {Oontimied.) 
 by unity of possession, because none 
 knows his own severalty, and therefore 
 they all occupy promiscuously. 
 See, also, title Estate. 
 
 TENANT BY THE CUETEST: See 
 
 title CuBTESY OF Enqlahb; also title 
 Estate. 
 
 TENANT TO THE PE2ECIPE: See 
 
 title Rboovebt. 
 
 TENANT AT SUFFEEANCE: See 
 
 title BUFFEBAirCB. 
 
 TENANT IN TAIL : 5«« title Tail. 
 
 TENANT IN TAIL AFTEE POSSI- 
 BILITY OF ISSUE EXTINCT. The 
 
 meaning of this title may be thus ex- 
 plained. Supposing lands to be given to 
 a man and the heirs of his body on Mary, 
 his present wife, to be begotten ; such a 
 man, with reference to the lands which he 
 holds in such a restricted form, is called 
 a tenant in tail. Now, if his wife Mary 
 should happen to die without leaving 
 issue, or having left issue, such issue should 
 die also, he would then be caUed a tenant 
 in tail after possibility of issue extinct ; 
 that is, the possibility of his having issue 
 which could inherit the lands would, on 
 account of the death of his wife, be ex- 
 tinct, or extinguished ; or, in other words, 
 such a possibiUty could no longer exist, 
 because Mary, his wife, who was the only 
 source from which he could derive issue 
 capable of inheriting according to the 
 terms of the gift, was dead, and there- 
 fore he would now be a tenant in tail 
 after the possibility of his having issue 
 (that is, by his wife Mary) had become 
 extinct. Such a tenant cannot bar the 
 estate tail; but in consideration of the 
 eminency of his estate, which is greater 
 than that for an estate for life, he is dis- 
 punishable of waste, not being willful 
 and humorsome. 
 
 TENANT IN TAIL EXPEOTISIONE 
 VIEI. Where an owner of lands, upon 
 or previously to marrying a wife, settled 
 lands upon Umself and his wife, and the 
 heirs of their two bodies begotten, and 
 then died, the wife as survivor became 
 tenant in tail of the husband's lands in 
 consequence of the husband's provision 
 {ex provisUme mri ). Originally she could 
 bar the estate tail like any other tenant 
 in tail ; but the husband's intention hav- 
 ing been merely to provide for her during 
 her widowhood, and not to enable her to 
 bar his children of their inheritance, she 
 
352 
 
 TENANT AT WILL. — TENTEEDEN'S ACT (LORD). 
 
 Tenant in Tail, etc. — (Otmtmued.) 
 was very early restrained from so doing 
 by the stat. 33 Hen. 8, c. 36. 
 
 TENANT AT WILL: See title Will, 
 Estate at. 
 
 * TENANT BIGHT. In leases from 
 the Crown, corporations, or the church, 
 it is usual to grant a further term to the 
 old tenants in preference to strangers. 
 This interest of the old tenant is called 
 tenant right. Bouv. Diet. ; Bacon Abr. 
 Leases, &c. 
 
 TENDER. In order to a valid tender- 
 the money tendered must be actually pro- 
 duced, unless the creditor dispenses with 
 the production of it at the time (^Thomas 
 V. Etxms, 10 East,101). The tender must 
 also be unconditional; and for this pur- 
 pose, in case a receipt is wanted, the 
 debtor should bring a receipt with him, 
 and require the creo&tor to sign it. Lamg 
 V. Meader, 1 C. & P. 257. 
 
 See, also, next title. 
 
 TENDER, PLEA OP. Signifies a plea 
 by which the defendant alleges that he 
 has been always ready to pay the debt 
 demanded, and iefore tTie oommencemmit 
 of the acUm tendered it to the plaintiff, 
 and now brings it into Court ready to be 
 paid to him, &c. (Steph. PI. 247; Bull. 
 & L. Prec. in PI. 693), The plea of 
 tender must be accompanied by an actual 
 payment of the amount into Court, such 
 payment being in fact stated in the plea. 
 The plea amounts to an admission of the 
 cause of action. 
 
 TENDERING ISSUE. If in the plead- 
 ings in an action the defendant traverses 
 or denies some allegation of fact put for- 
 ward by the plaintiff in his declaration or 
 other pleading, it is evident that a ques- 
 tion is at once raised between the parties 
 as to the existence or non-existence, truth 
 or falsehood, of the fact, to which the tra- 
 verse or denying is directed. A question 
 being thus raised, or, in other words, the 
 parties having arrived at a specific point, 
 or matter affirmed on the one side and 
 denied on the other, the defendant (as the 
 party traversing) is obliged to offer to refer 
 this question to the proper mode of trial, 
 which he does by annexing to the traverse 
 an appropriate formula indicative of such 
 offer, and in so doing he is said to " ten- 
 der issue." Where the question for trial 
 is one of fact, the formula ia simply as 
 follows : '' and of this the defendant puts 
 himself upon the country," &o., meaning 
 
 Tendering Issne. — {ConUimed.) 
 that, with regard to the question in issue, 
 he throws himself upon a jury of his 
 country. It must be observed, however, 
 that other issues besides those of fact are 
 frequently tendered. Steph. PI. 59, 60. 
 5th ed. 
 
 ' See, also, title IssuB. 
 
 TENEMENT. This word has a very 
 comprehensive signification in law, in- 
 cluding within its compass- every species 
 of real property which may be held, or in 
 respect of which a person may be a 
 tenant. The word is used in the fol- 
 lowing manner by Blackstone. "Almost 
 all the real property of this kingdom is 
 by the policy of our laws supposed to be 
 granted by, dependent upon, and Twlden 
 of, some superior lord, by and in consid- 
 eration of certain services to be rendered 
 to the lord by the tenant or possessor 
 of his property. The thing holden is, 
 therefore, styled a tenement, the possessor 
 thereof a tenant, and the manner of his 
 possession a tenure." As thus used, the 
 word ^ ^tenement" extendeth to land and 
 messuages of all three varieties, whether 
 freehold, copyhold, or leasehold. It is 
 the most general word for all real prop- 
 erty, subjects. Sometimes, and not un- 
 commonly in popular usage, it denotes 
 simply a house, e. g., in the phrase "all 
 that messuage or tenement." 
 
 See, also, title Tenubb. 
 
 TENENDUM. That formal part of a 
 deed which is characterized by liie words 
 "to hold." It was formerly used to ex- 
 press the tenure by which the estate 
 granted was to be held; but since aU 
 freehold tenures have been converted into 
 socage, the tenendwm is of no further use, 
 and is therefore joined in the habendum. 
 4 Cruise, 26. 
 
 TENTERDEN'S ACT (LORD). The 9 
 
 Geo. 4, c. 14, is so called, which is de- 
 clared to be "An Act for rendering a 
 written memorandum necessary to the 
 validity of certain promises and engage- 
 ments." 
 
 These are four in number, that is to 
 say:— 
 (1.) A promise to bar the Statute of 
 
 Limitations (s. 1); • 
 
 (2.) A promise by an adult to pay a 
 debt «ontracted by him during 
 infancy (s. 5) ; * 
 
 * By Infants' Belief Act, 1874 (37 & 88 Vict. c. 62), 
 this section of Lord Tenterden's Act seems to be 
 in effect repealed. 
 
TENTHS.— TENURE OF LAND, HISTORY OF. 
 
 353 
 
 Tenterden's Act (Lord). — (Oontinued.) 
 (S. ) Representations of ability in trade, 
 upon the strength of -which 
 credit is intended to be given 
 (s. 6) ; and 
 (4). Contracts for the sale Of goods 
 amounting in price to £10 or 
 upwards, notwithstanding such 
 goods have yet to be made or 
 finished (s. 7). 
 
 TENTHS. Tenths and fifteenths were 
 temporary aids issuing out of personal 
 property, and granted to the King by 
 Parliament. They were formerly the real 
 or actual tenth or fifteenth part of aU the 
 moveables belonging to the subject; 
 where such moveable or personal estates 
 were a very different and much less con- 
 siderable thing than they are at present 
 (see, further, title Taxation). Ecclesias- 
 tical tenths were of a somewhat different 
 nature, being the tenth part of the annual 
 profit of each living, which, with the first 
 fruits (or the first year's profit of the liv- 
 ing), was claimed by the Holy See from 
 the clergy of the English Church, under 
 the supposed authority of a precept of 
 the Levitical law. At the time of the 
 Reformation the clergy continued to pay 
 the same tax, but then paid it to the 
 king, who had become head of the 
 church ; but upon the accession of Queen 
 Anne, that queen abandoned this source 
 of revenue, and allotted it to trustees for 
 the purpose of augmenting poor livings. 
 See titles Pebst Fhuits; Qxiebk 
 Anne's Bounty. 
 
 TENURE. Tenure signifies the system 
 of holding lands or tenements in subordi- 
 nation to some superior, and which in the 
 feudal ages was the leading characteristic 
 of real property. The king, who was at 
 once the source of property and the foun- 
 tain of justice and honor, had bestowed 
 large territories on the great barons who 
 immediately surrounded the throne' and 
 these again had distributed his bounty 
 through the channels of their numerous 
 dependents. In legal contemplation, at 
 least, all the landowners of the kingdom 
 thus derived their estates. On this hy- 
 pothesis, so consonant to the genius and 
 history of feuds, the system of tenure was 
 built ; a system which linked every feu- 
 datory, by a chain more or less extended, 
 to the Crown, and rendered Ms fief 
 eventually liable to resumption by the 
 sovereign power from which it had, or 
 was assumed to have, originally emanated. 
 
 AS 
 
 Tenure. — ( OonUmued.) 
 The nature of the tenure, or, in other 
 words, the manner in which lands were 
 held, was characterized by appropriate 
 terms; thus, lands held by the honorable 
 tenure of military service, that is, in con- 
 sideration of attending or assisting the 
 lord in the wars, Ac, were distinguished 
 by the corresponding term of tenure by 
 knight service, &c. Out of this system 
 arose the relation of. lord and vassal,, cor- 
 responding to a certain extent with the 
 landlord and tenant of the present age. 
 To this system we may also refer the 
 origin of the present legal assumption, 
 that every possessor of real property is a 
 tenant in respect of that property ; that 
 he is still considered as holding it of 
 some superior lord, and therefore is a 
 tenant in reference to such lord. To this 
 system may also be referred the origin of 
 the present freehold and copyhold tenures, 
 into the one or the other of which nearly 
 all the various tenures which existed 
 during the period of feudal rigor have 
 merged. Such is a general idea of the 
 nature of tenure ; the different kinds of 
 tenure will be found under their respective 
 titles ; and see, also, titles Estates, Feu- 
 dal Tenures, and next following title ; 
 see as to tenures in the United States 
 Washb. on Real Prop, and Kent's Com. 
 
 TENURE OF LAND, HISTORY OF. 
 
 It4s a disputed question whether tenure 
 existed in Anglo-Saxon times. It is the 
 opinion of Spehnan, Madox, Wright, 
 Blackstone, and Williams, that no tenure 
 existed till 1066. On the other hand, 
 HaUam mentions that writers of equ^ 
 authority (whose names, however, he sig- 
 nificantly does not give) have held a dif- 
 ferent theory ; and he himself is of opin- 
 ion, that if actual tenure did not exist, at 
 least something very closely analogous to 
 it did exist in Anglo-Saxon times. 
 
 It is true that in Anglo-Saxon times all 
 lands were subject to services or burdens, 
 namely, — 
 
 (1.) Military services in defensive war; 
 
 (3.) The repair of roads and bridges; 
 and 
 
 (3.) The maintenance of royal fort- 
 resses; these being the three burdens 
 comprised in the trinocLa necessitas. But 
 it appears that for the neglect to render 
 these services the Anglo-Saxon owner 
 did not forfeit his lands, but at the most 
 was Uable in damages only ; whereas in 
 Anglo-Norman times the holder in case 
 he neglected the services that were due 
 
354 
 
 TBRCE. — TEEM. 
 
 Tennre of Land, History of. — (^Omed.) 
 and owing from him forfeited the lands, 
 and was not liable in damages merely, 
 these services being the condition of his 
 continuing to hold the lands. In brief, 
 the Anglo-Norman services were annexed 
 to the tenure of the lands, whereas the 
 Anglo-Saxon services were annexed 
 to the lands themselves ; and therein pre- 
 cisely consists the distinction between 
 feudal estates and allodial ownerships. 
 ' It is true that the lands of England, 
 being subject in Anglo-Saxon times to 
 the services of the iHnoda necessitas, were 
 fitted to receive readily and naturally the 
 peculiar impress of feudalism ; the differ- 
 ence between annexing the service to the 
 tenure and annexing them to the lands 
 was very slight. That, however, is no 
 reason for confounding two distinct 
 things, or for saying that things which 
 were analogous merely are identical ; and 
 the English lawyer knows, therefore, of 
 no tenure prior to 1066. 
 
 * TEECE. In Scotch Law, the right 
 of dower. 
 
 TERM. The word "term" is com- 
 monly used in two senses : (1.) As signi- 
 fying those four periods of the year 
 during which the Courts at Westminster 
 sit to hear and determine points of law, 
 and transact other legal business of im- 
 portance, and which are called respect- 
 ively Hilary, Easter, Trinity, and Michael- 
 mas Terms. It was proposed by the 
 Judicature Act, 1873, to "abolish the dis- 
 tinction of terms from sittings after term ; 
 but the proposed abolition is rather 
 nominal than real, like most of the other 
 proposed changes of that Act; and the 
 Act itself has been postponed in its 
 operation. (3.) As signifying the bounds, 
 limitation, or extent of time, for which 
 an estate is granted ; as when a man holds 
 an estate for any limited or specific num- 
 ber of years, which is called his term, and 
 he himself is called, with reference to the 
 term he so holds, the termor, or tenant 
 of the term. A term of years, considered 
 as an estate or interest in lands, is but a 
 particle, or portion, of some larger or 
 greater estate or interest in the same 
 lands, and hence is, with reference to such 
 larger estate, termed a particular estate. 
 The largest estate or interest which a 
 person can have is obviously the entire 
 ownership or inheritance, which may be 
 termed the root or stock from which all 
 particular estates or limited interests in 
 the same lands are derived. A term of 
 
 Term. — ( OonUnued.') 
 
 years is said to be either outstanding, i. e., 
 in gross, or attendant upon the inherit- 
 ance. It is outstanding or in gross when 
 it is unattached or msconneoted with 
 the estate or inheritance, as where it is 
 in the hands of some third party having 
 no interest in the inheritance ; it is attend- 
 ant when vested in some trustee in trust 
 for the owner of the inheritance. Thus, 
 supposing A to be the owner of the inherit- 
 ance, and to have occasion for a loan of 
 £1,000, which B is willing to advance. A 
 may lease the land to B for a term of 1, 000 
 years, not reserving any rent, or reserving 
 only a nominal rent, the lease containing 
 a clause that if A repays the sum of 
 £1,000 with interest to B on a given day, 
 the term shaH cease ; the payment is not, 
 in fact, made on the day, so that the clause 
 of cesser becomes wholly nugatory ; but on 
 a subsequent day A pays B the principal 
 and interest. What is now tb become of 
 the term ? The purpose for which it was 
 granted has been satisfied, but still the 
 term continues to exist, and resides in B, 
 who by virtue thereof is entitled in a 
 Court of Law to recover the possession 
 of the land for the remaining portion of 
 the term. In point of conscience, it is 
 true that B ought to restore, and in a 
 Court of Equity he would be compelled 
 to restore, the land to A. The only 
 mode, therefore, of withdrawing from B 
 the legal ownership in the land, which he 
 has now, in an equitable point of view, 
 no longer any right to enjoy, is either to 
 induce B to surrender the term to A, by 
 which, by the operation of a legal doctrine 
 termed "merger" (see that title), the 
 term would be absorbed in the inherit- 
 ance, and would cease to have any con- 
 tinued existence; or to procure him to 
 make a transfer or assignment of his inter- 
 est in the term to some third party as a 
 trustee for A, to the intent that such 
 third party shall hold the term solely for 
 the benefit of A's inheritance. This 
 latter course is that which for many rea- 
 sons is frequently had recourse to in pref- 
 erence to the former, and when a term 
 has been thus transferred or assigned, it 
 is technically said to " attend upon the 
 inheritance," because whosoever becomes 
 entitled to the inheritance would be 
 equitably entitled to such term as belong- 
 ing to it, and the term itself is thence 
 ■called an "attendant term." 
 
 Such attendant terms were frequently 
 of great use in protecting the estate of 
 a purchaser against prior unhnmnn incum- 
 
TERM FEE. — TESTE MEIPSO. 
 
 355 
 
 Term. — {Oontinued.) 
 brances ; but being also liable to abuse, 
 it has been proTided by the Satisfied 
 Terms Act (8 & 9 Vict. c. 113), that 
 terms already attendant on the 31st of 
 December, 1845, and also terms becoming 
 attendant subsequently to that date, shall 
 absolutely cease ; but as the former, where 
 they are attendant by express declaration 
 only, they are to continue (although non- 
 existing) to afford the old protection. 
 
 TERM FEE. A small fee or allow- 
 ance which an attorney in a cause is enti- 
 tled to for every term in which any step 
 is taken in the cause, from the time of 
 the deUvery of the declaration until final 
 judgment. The term for this purpose 
 is considered as including the following 
 vacation, so that if any step in the cause 
 is taken between one term and another, 
 as, for instance, between Michaelmas and 
 HUary Terms, i. e., in Michaelmas vaca- 
 tion, the attorney vfill be entitled to his 
 fee for Michaelmas Term the same as if 
 the step had been actually taken in the 
 term itself. The amount of the fee 
 varies in England from 13s. to 30s. 
 
 TEEffilNUM QUI PRETEKIIT, 
 WEIT OF ENTRY AD. A writ which 
 lay for the reversioner, when the posses- 
 sion was withheld by the lessee, or a 
 stranger, after the determination of a 
 lease for years. 
 
 TERRE-TENANT. He who is literally 
 in the occupation or possession of the 
 land, as distinguished from the mere 
 owner of the same. The phrase also 
 denotes sometimes the owner of the legal 
 estate,*, g., the trastee's estate; and in 
 that sense, although the cestui que trust 
 should die vnthout heirs, the lands will 
 not escheat to the lord for want of a 
 tenant (per defectum samguinis), for the 
 trustee is the terre-tenant. Burgess v. 
 WheaU, 1 Eden, 177. 
 
 *TESMOTN. A witness. 
 
 TEST AND CORPORATION ACTS. 
 
 Were Acts passed for the better securing 
 the Established Church agaiust perils 
 from Nonconformists of all denominaj 
 tions, infidels, Turks, Jews, heretics. 
 Papists, and sectaries. 
 
 TESTAMENT: ^ee title Will. 
 
 TESTAMENTARY CAUSES. Are 
 
 causes that were cognizable formerly in 
 the Ecclesiastical Courts, and which are 
 
 Testamentary Causes. — ( Oontmued.) 
 now cognizable in the Court of Probate, 
 concerning last wiUs and testaments. 
 TESTAMENTARY GUARDIAN. A 
 
 person appointed by a father in his last 
 will and testament to be guardian of his 
 child until he or she attains the age of 
 twenty-one years. The power of ap- 
 pointing such a guardian was first con- 
 ferred on the father by stat. 18 Car. 3, 
 c. 34. 
 
 See title GrUABDiAir. 
 TESTATOR. The person who makes 
 a will or testament is so-called. 
 
 See, also, title Intestate. 
 
 TESTATUM. This is the name given 
 to those words in a deed, beginning, 
 '■^ Now this Indentwe loitnesseth." 
 See title Deep. 
 
 TESTATUM WRIT. When a writ of 
 execution had been directed to a sheriff 
 of a county, and that sheriff returned 
 that there were no goods of the defend- 
 ant in his baiUwick, then a second writ, 
 reciting this former writ and the sheiifif s 
 answer to the same, might be directed to 
 the sheriff of some other county wherein 
 the defendant was supposed to have 
 goods, commanding him to make execu- 
 tion of the same ; and this second writ 
 was called testatum writ, from the words 
 in which the writ was concluded, viz., 
 " Whereupon, on behalf of the said plain- 
 tiff, it is testified in our said Court that 
 the said defendant has goods, &c., within 
 your bailiwick." But now by the C. L. 
 P. Act, 1852, s. 131, it shall not be neces- 
 sary, to issue any writ directed to the 
 sheriff of the county in which the venue 
 is laid, but writs of execution mm/ issu^ 
 at once into any county, and be directed 
 to and executed by the sheriff of any 
 county, whether a county palatine or not, 
 without reference to the county in which 
 the venue is laid, and without any sug- 
 gestion of the issuing of a prior writ 
 into such county. So that the testatum 
 clause in the second writ (being now the 
 only writ) is omitted, and the testatum 
 writ may be regarded as being in that 
 indirect manner abolished. 
 
 TESTE. The teste of a writ is that 
 clause at the bottom of a writ beginning 
 with the word " witness." When, there- 
 fore, a writ is said to be tested in the 
 name of such or such a judge, it means 
 that it is witnessed in his name. 
 
 * TESTE MEIPSO. A formula of at- 
 testation by the sovereign formerly used 
 
356 
 
 TESTES, PROOF OP WILL PER.— TIME. 
 
 Teste Meipsot — {CmMmted.) 
 at the conulusiou of charters, public in- 
 struments, and writa of chancery. Spel- 
 man. 
 
 TESTES, PROOF OF WILL PER. 
 
 When the validity of a will is contested, 
 the executor, instead of proving it in the 
 common form, i. «., upon his own oath 
 simply, before the registrar of the Court 
 of Probate, proves it per testes (by wit- 
 nesses) and in open Court. When a. will 
 is so proved, two witnesses are by the 
 Civil Law indispensable; although it 
 does not appear to be necessary that they 
 should have read the will, or even heard 
 it read, provided they can depose on oath 
 that the testator declared that the writ- 
 ing produced was his last will and testst- 
 ment, or that he duly executed the same 
 in their presence. 
 
 Two witnesses seem also to have been 
 at one time required by the English Law 
 in such a case (Godol. 66 ; Toll. Ex. 57) ; 
 but at the present day, the mode of proof 
 is stated to be as follows : — 
 
 " Where a will requiring attestation is 
 subscribed by several witnesses, it is only 
 necessary at Lam to call one of them; 
 and the same rule prevails in Ohcmcery, 
 excepting in the case of wilh, with respect 
 to which it has for many years been the 
 invariable practice to require that alIi 
 THE WITNESSES who are in England and 
 capable of being called shall be exam- 
 ined." Best on Evidence, 760. 
 
 TESTES, TRIAL PER. A trial had 
 before a judge without the intervention 
 of a jury ; in which the judge is left to 
 form in his own breast his sentence upon 
 the credit of the witnesses examined; 
 but this mode of trial, although common 
 in the Civil Law, is seldom resorted to 
 in the practice of the Common Law. 3 
 Oh. Bl. 336, and n. (4). 
 
 TESTIMONIAL. A certiflcate under 
 the hands of a justice of the peace testi- 
 fying the place and time when and where 
 a soldier or mariner landed, and the 
 place of his dwelling and birth, whither 
 he is to pass (Oowel; 3 Inst. 85). The 
 document holds a kind of doubtful posi- 
 tion midway between a certificate and a 
 peraiit, or pass. 
 
 *TBSTMOIftNE. Evidence. 
 
 *TEXTUS ROFFENSIS. The Roches- 
 ter Text, an ancient manuscript, contain- 
 ing certain Saxon laws and the laws re- 
 lating to the church of Rochester, drawn 
 
 Textas Roffensis. —{Gmtmued.) 
 
 up by Emulph, bishop, in 1114-34, 
 CoweU; Burr. Diet. 
 
 THANE. Thanes were those important 
 personages who attended, i. e., ministered, 
 upon the Anglo-Saxon kings in their 
 Courts, and who held their lands imme- 
 diately of those kings. That portion of 
 the king's land of which a thane was the 
 ruler or governor, was termed "thanage 
 of the king;" and such lands as the 
 Saxon kings granted by charter to their 
 thanes were denominated " thane lands." 
 CoweL 
 
 THEFT 
 
 ! title Lakcbnv. 
 
 THEFT-BOTE. The offense of theft- 
 bote arises by a party who has been 
 robbed and knows the felon, taking his 
 goods again, or receiving other amends 
 upon agreement not to prosecute. 
 See title CoMpotWDiua Felony. 
 
 ♦THIRD BOROW. A constable. 
 
 TIMBERLODE. A service which 
 some tenants were bound to perform to 
 their lords of carrying felled timber from 
 the woods to the lord's house. Cowel. 
 
 TIMBER-TREES. In a legal sense 
 timber-trees include oak, ash, and elm. 
 In some places, however,. by local custom, 
 where other trees are commonly used for 
 building, they are on that account con- 
 sidered as timber-trees. Monywood v. 
 Hmywood, L. R. 18 Eq. 306. 
 
 TIME. The calendar, as amended by 
 the Stat. 24 Geo. 3, cc. 23 and 80, is that 
 which is now in use in England. With 
 reference to days, there is no general rule 
 of law that in computing time the day is 
 to be either inclusive or exclusive, but 
 the reason of the king and the accompany- 
 ing circumstances are to decide (Lester v. 
 GwrUmd, 15 Ves. 348) ; the point is not 
 unfrequently settled by statute in partic- 
 ular cases. Usually fractions of a day 
 count as an entire day ; but when it is 
 necessary to show which of two events 
 happening on the same day first took 
 place, the Court will consider such frac- 
 tions {Clinch Y. Srmih, 8 B. P. 0. 337). 
 With reference to months, the stat. 13 & 
 14 Vict. c. 31, enacts that "month" ia 
 all future statutes shall mean calendar 
 month, and not lunar month, although 
 the latter was the meaning by the Com- 
 mon Law {Learn v. Hooper, 1 Esp. 246), 
 unless where the intention indicated a 
 different use of the word {Lang v. Qah, 
 
TIME OUT OF MIND, — TITLE. 
 
 357 
 
 Time. — ( Continued.) 
 
 1 M. & S. Ill), or custom controlled the 
 meaning. Titmer v. Barlow, 3 P. & F. 
 
 946. 
 
 See, also, title Month. 
 
 TIME OCT OF MIND. Any period 
 anterior to the reign of Richard I. Bract. 
 1. 3, c. 23; 3 Lev. 160. 
 
 See, also, title Legai Mbmoby. 
 
 TIPSTAFF. Tipstaves are officers who 
 were formerly appointed by the marshal 
 of the King's Bench Prison, or by the 
 warden of the Fleet Prison, but who now, 
 under the Act 25 & 26 "Vict. c. 104 
 (Queen's Prison Discontinuance Act, 
 1863), are appointed by the respective 
 chiefs of the Chancery, Queen's Bench, 
 Common Pleas, and Exchequer divisions 
 of the Court. They attend the King's 
 Courts with a stafiE or rod tipped with 
 silver, and take into their charge all pris- 
 oners committed by the Court. 1 Arch. 
 Pract. 11; Cowel. 
 
 TITHES. A species of incorporeal 
 hereditaments, de&ied to be the tenth 
 part of the increase yearly arising and 
 renewing (1) from the profits of the lands, 
 (3) from the live-stock upon lands, and 
 (S) from the personal industry of the in- 
 habitants. The first species of tithe is 
 usually called predial, and consists of 
 com, grass, hops, wood, and the like; 
 the second mixed, as of wood, milk, pigs, 
 &c., consisting, it will be observed, of 
 natural products, but nurtured and pre- 
 served in part by the care of man ; the 
 third personal, as of manual occupations, 
 trades, fisheries, and the like. The dis- 
 tinction between predial and mixed tithes 
 is that predial tithes (so called from prcB- 
 dium, a farm) are those which arise im- 
 mediately out of. the soil, either with or 
 without the intervention of human in- 
 dustry ; and mixed are those which arise 
 immediately through the increase or pro- 
 duce of animals which receive their nu- 
 triment from the earth and its fruits. 
 Personal tithes are so called because they 
 arise entirely from the personal industry 
 of man. In addition to this distinction, 
 tithes have been divided into two classes, 
 viz., great and small; the former com- 
 prehending in general the tithes of com, 
 peas, beans, hay, and wood; the latter, 
 all other predial, together with all mixed 
 and personal tithes. Tithes are great or 
 small according to the nature of the 
 things which yield the tithe, without ref- 
 erence to the quantity. Thus clover 
 
 Tithes. — {Gontmued.) 
 
 grass made into hay is of the nature of 
 all other grass made into hay, and conse- 
 quently is a great tithe ; but if left for 
 seed its nature becomes altered, and, like 
 other seed, it becomes a small tithe. 2 
 Chit. PI. 34, and n. (6) ; Cowel. 
 
 See, also, titles Appbopriate; Im- 
 
 PKOPRIATB. 
 
 TITHING. One of the civil divisions 
 of the territory of England, being a por- 
 tion of that greater division called a hun- 
 dred. It was so called because ten free- 
 holders with their families composed one. 
 It is said that they were all knit together 
 in one society, and bound to the king for 
 the peaceable behavior of each other {see 
 title Frankpledge). In each of these 
 societies there was one chief or principal 
 person, who, from his office, was called 
 teothing-man, now tithing-man. Mirr. c. 
 1, s. 3; Cowel. 
 
 See next title. 
 
 TITHING-MAN. During the Saxon 
 times the officer who was appointed to 
 preside over tithings and to examine and 
 determine all causes of small importance 
 between the inhabitants of adjacent tith- 
 ings was so called. In the present day, 
 however, tithing-men are a lund of con- 
 stables elected by parishes, and sworn in 
 their offices in the Court Leetf and some- 
 times by justices of the peace, &c. 
 
 TITLE. This word may be defined 
 generally to be the evidence of right 
 which a person has to the possession of 
 property. The word "title" certainly 
 does not merely signify the right which 
 a person has to the possession of property, 
 because there are many instances in which 
 a person may have a right to the posses- 
 sion of property, and at the same time 
 have no title to the same. In its ordinary 
 legal acceptation, however, it generally 
 seems to imply a right of possession also. 
 It therefore appears on the whole to sig- 
 nify the outward evidence of the right 
 rather than the mere right itself. Thus, 
 when it is said that the "most imperfect 
 degree of title consists in the mere naked 
 possession or actual occupation of an es- 
 tate," it means that the mere circum- 
 stance of occupying the estate is the 
 weakest species of evidence of the occu- 
 pier's right to such possession. The word 
 is defined by Sir Edward Coke thus: 
 ' ' Titulus estjusta causa possidendi id quod 
 Twstrwm est " (1 Inst. 34) ; that is to say, 
 the ground, whether purchase, gift, or 
 
358 
 
 TITLE OF ENTRY.— TRADE-MARKS. 
 
 Title. — ( OonUnued.) 
 other such ground of acquiring, 
 being distinguished in this respect from 
 mod/us acguwendi, which is the traditio, i. 
 e., delivery or conveyance of the thing. 
 See, also, title Abstkact of Title. 
 
 TITLE OF ENTRY. The right or title 
 to enter upon lands. Thus, when one 
 seized of land in fee makes a f eofEment of 
 the same on condition, and that condi 
 tion is afterward broken, then the feoffor 
 has title to enter into the land. Cowel. 
 
 TITLES OF CLERGYMEN. Before a 
 candidate for holy orders can be ordained 
 he must obtain what is termed a title, 
 which is either an appointment to a ben- 
 efice actually vacant, or to a curacy, and 
 also a letter from the clergyman who 
 gives the title, signifying the reason 
 which obliges him to appoint a curate. 
 Eccl. Leg. Guide, 4. 
 
 TOFT. A messuage, or the site or 
 piece of ground on which a messuage has 
 stood ; and the owner of a toft is termed 
 a toft-man. "West. Symb. ; Cowel. 
 
 TOLERATION ACT. The stat. 1 Will. 
 & M. St. 1, c. 18, for exempting Protes- 
 tant dissenters from the penalties of cer- 
 tain laws is so called. 
 
 See title Statutes, sub-title Bcclb- 
 
 SIASTICAL. 
 
 TOLL. This word has various signifi- 
 cations. When used as a verb, it signi- 
 fies to bar, to defeat, or to take away; 
 thus, to toll the entry, signifies to deny or 
 take away the right of entry. When used 
 as a noun, it signifies either a Uberty to 
 buy or sell within the precinct of a manor, 
 or a tribute or custom paid for passage. 
 Cowel; Les Termen de la Ley ; 1 M. & W. 
 19. Toll-thorough is a toll for passage 
 over a highway. Toll-traverse is a toll 
 for passage over private land. Toll-tun 
 is a toU on beasts returning from market. 
 
 TONNAGE. A duty imposed by Par- 
 liament upon merchandise exported and 
 imported, according to a certain rate 
 upon every tun . 
 
 See title Taxation. 
 
 TORT. A wrong or injury that is 
 "independent of contract." Personal 
 actions are founded either on contracts or 
 on torts. The latter signify such wrongs 
 as are in their nature distinguishable from 
 mere breaches of contract, and are often 
 mentioned as of three kinds, viz. : (1.) 
 Nonfeasance, being the omission to do some 
 
 Tort. — ( OontmueA. ) 
 act which a person is bound to do; (3.) 
 Misfeasance, being the improper doing of 
 some act which he may lawfully do ; or 
 (3.) Malfeasance, being the commission of 
 some act which is positively unlawful. 
 Actions founded upon tort are sometimes 
 described as actions ex delicto, in distinc- 
 tion to actions eai contrcustni, which are 
 founded upon contract. The forms of 
 action generally founded upon tort are 
 trover, deUmie, trespcus, trespass on the 
 case, and replemn ; whilst dM, amumpsit, 
 and covenant belong to the class of ac- 
 tions founded upon contract. 1 Chit. 
 PI. 3. 
 
 TORTFEASOR (Fr. tortfaismr). A 
 wrong-doer or a trespasser. There is no 
 contribution between tortfeasors, like 
 that which subsists between co-debtors. 
 Merryweather v. Niamn, 3 8m.. L. C. 481. 
 
 TORTURE: Bee title Paine, Fokte 
 bt Dubb. 
 
 * TOURN. The county criminal court 
 anciently held by the sherifE in every 
 hundred of the kingdom twice a year. 
 Burr. Diet. 
 
 TRADE. All contracts in restraint of 
 trade are regarded with disfavor by the 
 law ; and if the restraint is general, it is 
 wholly void; and if it is partial, it is 
 only good when the restraint is reasona- 
 ble and a valuable consideration has been 
 given by way of purchasing the restraint 
 {Mitchell V. Reynolds, 1 Sm. L. 0. 356). 
 A reasonable restraint may be either in 
 respect of locality or of time, or of both 
 combined; and in every trade, what is 
 reasonable in these respects varies with 
 the character of the trade. 
 
 TRADE-MARKS. The right of a 
 manufacturer to his ownparticular trade- 
 mark is .analogous to that of the owner of 
 a patent or a copyright ; there is, however, 
 this difference between the right to a 
 trade-mark and these latter rights, viz., 
 that the. value of a trade-mark is inde- 
 pendent of the article itself, and consists 
 entirely in the reputation of the partic- 
 ular individual who makes or sells it, 
 which is not the case in patented articles 
 or in copyright works {see titles Patent 
 and Copyright). The law, does not, in- 
 deed, recognize any property either in 
 trade-names or in trade-marks ; neverthe- 
 less, it will not encourage a fraud or de- 
 ception; and, in the words of Lord 
 Cranworth {Farina v. Siherlock, 6 De Gr. 
 
TRADES-UNIONS. — TRAVEE8E OP AN INDICTMENT. 
 
 359 
 
 Trade-Marks. — ( Cmtinued.) 
 M. & Or. 318), every one who has adopted 
 a particular mode of designating hisT)wn 
 manufacture has a right to say that an- 
 other person shall not sell the same article 
 in such a way as to make purchasers be- 
 lieve that the article is his manufacture. 
 The protection which the law secures to 
 a trade-mark is therefore only a particular 
 application of the general rule of law that 
 it is a fraud to represent what the party 
 knows to be untrue, where such represen- 
 tation is calculated from the mode in 
 which it is maSe to induce another to act 
 on the faith of it, so that he may incur 
 damage, or where such representation 
 will prejudice the reasonable profits of 
 another man from his superior industry 
 or invention. See Adams on Trade-marks ; 
 Browne on Trade-marks. 
 
 TRADES-UNIONS. Combinations on 
 the part either of employers or of employes 
 to regulate the price of labor are, within 
 certain limits, valid by tLe Common Law 
 {Bex V. Batt, 6 C. & P. 339) ; but such 
 combinations, when carried the length of 
 violence in any phase or shape, are ille- 
 gal. Wherefore the stat. 6 Geo. 4, c. 139, 
 placed such combinations on the part of 
 employes chiefly, under a most rigorous re- 
 straint ; and, under that statute, any thing 
 in the nature of a threat put forward 
 with a view to forcing or endeavoring to 
 force a workman to leave his employmeni; 
 was made a criminal offense ( Walsby v. 
 Ardey, 3 El. & Bl. 516). Of recent years 
 the stat. of Geo. 4 has been thought too 
 rigorous, and under the stats. 32 Vict. 
 c. 34, 33 & 38 Vict. c. 61, and 34 & 35 
 Vict. c. 31, combinations on the part of 
 employis, or (as they are usually called) 
 Trades- TTnions, are recognized as legal as- 
 sociations with legitimate objects, and 
 which objects they may endeavor to se- 
 cure (if so advised) by pecuniary and 
 other means of supporting strikes, &c., 
 so long as they do not resort to open or 
 secret violence, or to threats, intimida- 
 tion, rattening, and the like. 
 
 TRANSACTION. In French Law is 
 the transactio of Roman and the coro- 
 promise of Bnghsh Law, being an agree- 
 ment to give up the residue (if any)_ of 
 an unascertained debt, in consideration 
 of the payment of an agreed sum. 
 
 TRANSITORY ACTIONS. Actions 
 are said to be either local or transitory ; 
 an action is local when all the principal 
 facts on which it is founded are of a local 
 
 Transitory Actions. — {Oontmmd.) 
 character, and carry with them the idea 
 of some certain place ; these are generally 
 such as relate to realty. An action is 
 termed transitory when the principal fact 
 on which it is founded is of a transitory 
 kind, and might be supposed to have hap- 
 pened anywhere ; and, therefore, all ac- 
 tions founded on debts, contracts, and 
 such like matters relating to the person or 
 personal prftperty, come under this latter 
 denomination (Steph. PI. 816, 817). If 
 the action is local, the verme is also local ; 
 and if the action is transitory, the vervM 
 also is transitory. But under the Judica- 
 ture Act, 1873, Schedule, Rules of Pro- 
 cedure 28, there shall be no local venvs 
 for the trial of any action. 
 
 TRANSLATION. This word, as ap- 
 plied to a bishop, signifies removing him 
 from one diocese to another. Cunning- 
 ham. 
 
 *TRANSUNPT. In Scotch Law, a 
 transcript. 
 
 TRAVERSE (from the Fr. tromerser, to 
 cross, or oppose). In the language of 
 pleading signifies a denial. Thus, where 
 a defendant denies any material allega- 
 tion of fact in the plaintifi^s declaration, 
 he is said to traverse it, and the plea itself 
 is thence frequently termed a traverse. 
 Beside the common traverse, as explained 
 above, there is one of occasional occur- 
 rence termed a special traverse, or traverse 
 with an absque hoc. This, instead of being 
 framed in the shape of a simple denial, 
 consists ordinarily of two branches, one 
 involving the introduction of new affirm- 
 ative matter, which, inferentially or argu- 
 mentatively, denies the disputed allega- 
 tion of fact upon which the defendant 
 purposes raising an issue ; the other, being 
 the absque hoc clause, consisting of a di- 
 rect denial of such allegation of fact. 
 See title Spkcial Travbkse; also, 
 Absqub Hoc. 
 
 TRAVERSE OF AN INDICTMENT. 
 
 The word " traverse, " as applied to an 
 indictment, has the same import as when 
 applied to a declaration; si^fying to 
 contradict or deny some principal matter 
 of fact therein, e. g., in a presentment 
 against a person for a highway overflowed 
 with water, for default of scouring a 
 ditch, &c., he may allege that there is no 
 highway, or that the ditch was sufficiently 
 scoured. Cowel. 
 
 See title Tbayekse. 
 
360 
 
 TRAVERSE OF AN OFFICE. — TRESPASS. 
 
 TRAVERSE OF AN OFFICE. The 
 
 proving that an inquisition made of lands 
 or goods by the escheator is defective and 
 untruly made. Kitchin, 327. 
 
 TRAVERSING NOTE. This is a plead- 
 ing in Chancery, and consists of a denial 
 put in by the plaintiff on behalf of the 
 defendant generally denying all the state- 
 ments in the plaintiff's bill. The effect 
 of it is to put the plaintiff upon proof of 
 the -whole contents of his bil^ and is only 
 resorted to for the purpose of saving time, 
 and in a case where the plaintiff can safely 
 dispense with an answer. A copy of the 
 note must be served on the defendant; as 
 to which see title Service. 
 
 TREASON. This word, in its original 
 sense, denoted the betrayal of confidence 
 or of trust, and such betrayal was of two 
 species, according as it was either 
 
 (1.) Against the king as supreme ; or 
 
 (3.) Against a subject as superior; 
 the former species was called High. Trea- 
 son, and the latter Petit Treason. 
 
 Petit treason has been abolished by 
 stat. 9 Geo. 4, c. 31, s. 2, although of 
 course, breach of confidence or trust, in 
 so far as it is a civil wrong, is still a tort, 
 and as such remediable in a Court of Law 
 or (more commonly) of Equity. 
 
 High treason is, therefore, now called 
 treason simply. 
 
 TREASURE -TROVE. Any money, 
 coin, gold, silver, plate, or bullion found 
 (trouve) hidden in the earth, the owner 
 thereof being unknown; such kind of 
 treasure in general belongs to the 
 king, and forms one of the precarious 
 sources of his revenue. "When, however, 
 it is found in the sea or upon the 
 earth it does not belong to the king, 
 but to the finder in case no owner appears. 
 In many cases treasure-trove belongs to 
 the lord of the manor within whose limits it 
 is found, by special grant or prescription. 
 Gowel. 
 
 TREASURY BENCH. In the House 
 of Commons the first row of seats on the 
 right hand of the Speaker is so called, 
 because occupied by the First Lord of 
 the Treasury or principal Minister of the 
 Crown. 
 
 * TREATY. A compact made between 
 two or mere independent states or nations. 
 In the United States a treaty is the law 
 of the land when applicable. 
 
 TREBLE COSTS. Are three times 
 the amount of the costs incurred by a 
 
 Treble Costs. — {Oontinued.) 
 party in an action, and the payment of 
 suc% costs is by various statutes imposed 
 as a punishment upon persons violating 
 the provisions of those statutes. Thus 
 by 39 EUz. c. 4, the sheriff for extortion 
 on final process is liable not only to pay 
 treble damages (or three times the amount 
 of the sum which he has extorted), but 
 also treble costs, which is the amount of 
 the plaintiff's costs reckoned three times 
 over. 2B. & Aid. 393;1 Ch. Rep. 137; 
 3 Ch. PI. 336, n. (A), 6th ed. 
 
 TREBUCKET. A certain engine of 
 correction, in which persons convicted of 
 the offense of being common scolds were 
 placed ; it was also called the castigatory 
 or cucking stool, which latter is said to 
 signify in the Saxon language scolding 
 stool, though frequently corrupted into 
 ducking stool, from the circumstance of 
 the offender placed therein being plunged 
 in the water for her punishment. 8 Inst. 
 319. 
 
 TRESPASS. This word in its most 
 comprehensive sense, signifies any trans- 
 gression or offense against the law of 
 nature, of society, or of the country in 
 which we Uve ; and this, whether it 
 relates to a man's person or to his prop- « 
 erty. In its more limited and ordinary 
 sense, it signifies an injury committed 
 with violence, and this violence may be 
 either actual or implied ; and the law will 
 imply violence though none is actually 
 used, when the injury is of a direct and 
 immediate kind, and conmiitted on the 
 person or tangible and corporeal property 
 of the plaintiff. Of actual violence, an 
 assault and battery is an instance; of 
 impUed, a peaceable but wrongful entry 
 upon a person's land. For the above 
 offenses an action of trespass lies; and 
 this action is usually either an action of 
 trespass vi et armis, or an action of tres- 
 pass on the case; the former being 
 brought to recover damages for wrongs 
 done with direct violence, the latter to 
 recover damages for wrongs not done 
 with direct violence, or if done vdth 
 direct violence, yet. resulting from negli- 
 gence as distinguished from design 
 (Steph. PI. 17 ; Smith's Action at Law, 
 2). Again, where trespass is done to 
 lands or real property, it is called tres- 
 pass qtia/re dmmim /regit : and to support 
 this action, the plaintiff must have been 
 in the actual possession of the land at the 
 time of the trespass committed. On the 
 other hand, where the trespass is done to 
 
TRESPASS ON THE CASE. — TROVER. 
 
 361 
 
 -{Continued.') 
 goods or personal property, it is called 
 trespass de torm asportatit — an action 
 which, equally with the other, rests upon 
 possession, but the possession in this case 
 may be either actual or constructive ; con- 
 structive possession being that which 
 ownership or property draws with it by 
 implication or construction of law. 
 Bee next title. 
 
 TRESPASS ON THE CASE. Is the 
 
 form of action adapted to the recovery 
 of damages for some injury resulting to a 
 party from the wrongful act of another, 
 unaccompanied with direct or immediate 
 force. Thus, if a man, in throwing a log 
 into the highway, strikes a' passer-by, he 
 may sue in an action of trespass simply 
 so called, and only in that action for 
 damages for the injury he may have sus- 
 tained; but if, after the log has fallen and 
 rested on the ground, he stumbles over 
 it, and so receives an injury, then "tres- 
 pass on the case," or, as it is commonly 
 called, an action " on the case," would be 
 his appropriate remedy. It is called an 
 action upon the case, because the original 
 writ by which this action was formerly 
 commenced was not conceived in any 
 fixed form, but was framed and adapted 
 to the nature and circumstances of the 
 case by virtue of the statute Be ConsvmUi 
 0am (13 Edw. 1, Statute of Westminster 
 the Second), c. 24. See Scots v. Sheplierd, 
 2B1. Rep. 892; 1 Smith's L. C. 210; 1 
 Chit, on PI. 127, 6th ed. ; Com. Dig. tit. 
 "Action upon the Case " (a.) 
 
 ♦TRESPASS FOR MESNE PROFITS. 
 
 An action supplemental to ejectment, 
 brought against the tenant in possession 
 to recover profits unlawfully received by 
 him. 3 Bl. Com. 205. 
 
 ♦TRESPASSER AB INITIO. Where 
 a person does a lawful act at first, but 
 afterward commits some unlawful act 
 which in law relates back to the first act, 
 he is said to be a trespasser al> imiMo. 
 
 TRIAL. The mode of determining a 
 question of fact in a Court of Law. Or 
 it may, in other words, be defined to be 
 the formal method of examining and 
 adjudicating upon the matter of fact in 
 dispute between a plaintiflE and a defend- 
 ant in a Court of Law. There are vari- 
 ous difiierent species of trials according 
 to the nature of the subject or thing to 
 be tried ; these, however, will, in general, 
 be found under their respective titles. A 
 
 Trial. — ( Omtirmed. ) 
 trial at bar, which is a species of trial 
 now seldom resorted to excepting in cases 
 where the matter in dispute is one of 
 great importance and difficulty, is a trial 
 which takes place before all the judges at 
 the bar of the Court in which the action 
 is brought (Steph. PI. 84). The recent 
 case of Meg. v. Oastro, otherwise Tichr 
 borne, or Orton (1872-3), was an example 
 of trial at bar. 
 
 TRIBUNAUX DE COMMERCE. In 
 
 French Law are Courts consisting pf a 
 president, judges, and substitutes elected 
 in an assembly of the principal traders. 
 No person under thirty years is eligible 
 as a member of the tribunal, and the 
 president must be forty years of age at 
 the least. The tribunal takes cognizance 
 of all cases arising between merchants, 
 and also of all disagreements arising 
 among partners. The course of proceduje 
 is as in civil cases, and with an appeal to 
 the regular Courts. 
 
 TRIORS OF JURORS. Persons 
 selected by the Court to examine whether 
 a challenge made to the panel of jurors, 
 or any of them, be just or not. A chal- 
 lenge to the panel is grounded on some 
 probable cause of suspicion, as an ac- 
 quaintance, or the like, the 'validity of 
 which is determined by these triors. 
 These, if the first juror be challenged, 
 are two indifEerent persons named by the 
 Court ; if they find one man indifferent, 
 he shall be sworn, and he with the two 
 triors shall try the next, and when another 
 is found indifEerent and sworn, the two 
 triors shall be superseded, and the two 
 first sworn on the jury shall try the rest. 
 Cowel ; Smith's Action at Law, 146. The 
 office is abolished in some states, the 
 judge acting in their place. Bouv. Diet. 
 
 See, also, titles Challenge ; Juboes. 
 
 TRITHIN6: See title Tithing. 
 
 TROYER (from the Fr.<rmt»er, to find). 
 Is that form of action adapted to try a 
 disputed question of property in goods or 
 chattels. It is called trover, because it 
 is found upon the supposition (which, 
 however, is in general a mere fiction) 
 that the defendant found the goods in 
 question ; and the declaration, after stat- 
 ing such a finding, proceeds to allege that 
 the defendant converted them to his own 
 use (such conversion being the true ^st 
 of the action); and then he claims 
 damages for the injury which he has sus 
 tained by such wrongful conversion. 
 
362 
 
 TEUSTS. 
 
 Trover. — (ConUnued.) 
 
 In form, the action is a fiction; in sub- 
 stance, it is a remedy to recover the 
 value of personal chattels wrongfully con- 
 verted by another to his own use. The 
 form supposes the defendant may have 
 come lawfully by the possession of the 
 goods. This action Ues, and has been 
 brought, in many cases, where in truth 
 the defendant has got the possession law- 
 fully. It is an action of tort, and the 
 whole tort consists in the wrongful con- 
 version. Two things are necessary to be 
 proved to entitle the plaintiff to recover 
 in this kind of action : First, property in 
 the plaintiff, and, secondly, a wrongful 
 conversion by the defendant (see ^er Lord 
 Mansfield in Oooper v. Ohitiy, 1 Burr. 20 ; 
 1 Smith's L. C. 330). Moreover the 
 property necessary to support the action 
 must be one which draws with it a right 
 to the immediate possession also of the 
 thing converted {Gordon v. Bm-per, 7 T. 
 R. 9); consequently, if the thing is in 
 pledge to another, the pledgor, although 
 owner, cannot bring the action. But the 
 pledgee, as having what is called a fecial 
 property in the thing, may bring the 
 action ; and generally any bailee of the 
 goods may do so on the like ground. 
 
 TRUSTS. A right of property held 
 by one for the benefit of another. Uses 
 having existed previously to the Statute 
 of Uses (37 Hen. 8, c. 10), as confidences 
 which the Court of Chancery upheld and 
 enforced, these early confidences were the 
 earliest form of trusts; but after that 
 statute, these uses having in consequence 
 thereof become transmuted into legal 
 estates, the jurisdiction of Equity over 
 trusts promised to cease, or at any rate, 
 to become unnecessary, when the decis- 
 ion in Tyrrell's Gme (4 & 5 Phil. & M.), 
 whereby the Courts at Westminster re- 
 fused to recognize any second use upon 
 a first use, i «., a use upon a use, revived 
 or restored to the Courts in Lincoln's 
 Inn, and even increased their former 
 jurisdiction over trusts. 
 
 In regulating the qualities and inci- 
 dents of trust estates. Equity followed 
 the Law in its leading principles, con- 
 struing, for example, words of limitation 
 in the like manner as the same were con- 
 strued at Law, and generally (although 
 with some exceptions hereinafter men- 
 tioned) adopting the rules of Law with 
 little or no variation. Thus, in fact, in 
 every estate, there came to exist, by pos- 
 sibility at least, and in general in actual 
 
 Trusts. — ( OonUnued. ) 
 fact as well, two estates of equal quality 
 and duration, existing side by side, and 
 like parallel lines of equal length running 
 beside each other, the one estate being 
 called the equitable estate and the other 
 the legal estate. And like parallel lines, 
 the two estates in their own nature never 
 meet, although just as the two parallel 
 lihes being laid upon the top of each 
 other would coincide and grow into one 
 line only, so the two estates being by 
 force, ad e}ci/ra themselves, brought to- 
 gether do also coincide and grow into 
 one estate only, a union which is called 
 the union of the equitable with the legal 
 estate in fee^ 
 
 Two statutes are all-important in their 
 bearing upon trusts, the first of the two 
 being the Statute of Uses already men- 
 tioned, and the other of them the Statute 
 of Frauds (39 Car. 3, c. 3) ; and in distin- 
 guishing these two statutes, it is essential 
 to note, — (1.) That the Statute of Uses, on 
 the one hand, extends to freehold heredit- 
 aments only, and neither to leaseholds nor 
 to copyholds ; and & fortiori, not to pure 
 personal estate ; and, (3.) That the Statute 
 of Frauds, on the other hand, extends to 
 freeholds, leaseholds, and copyholds indif- 
 ferently, requiring for the creation of a 
 trust thereof respectively the use of 
 writing, but as the latter statute does not 
 extend to pure personal estate, it follows 
 that a trust of pure personal estate may 
 be created without writing, or by word 
 of mouth only. McFadden v. JenHns, 1 
 PhiL 157. 
 
 Trusts are manifold; but are com- 
 monly arranged under the following 
 heads : 
 I. Express Trusts — being trusts which 
 are created in so many fit and ap- 
 propriate terms, and which are 
 subdivided thus : 
 (a.) Express Private Trusts — being 
 trusts affecting individuals 
 only; and 
 (b. ) Express P ablic Trusts '■ — being 
 trusts affecting public bodies 
 primarily. 
 II. Implied Trusts — being trusts 
 founded on the presumable, al- 
 though unexpressed intention 
 of the party who creates them ; 
 and 
 m. Constructive Trusts — being trusts 
 which are founded neither on an 
 expressed nor on any presumable 
 intention of th^party, but which 
 are raised by oonst/rticUon of 
 
TRUSTS. 
 
 363 
 
 Trusts. — ( Gontinued.) 
 
 Eqviity without any regard to 
 intention, and simply for the 
 purpose of satisfying the de- 
 mands of justice and good con- 
 science. 
 The following is a more or less exhaust- 
 ive list of all the varieties of trusts fall- 
 ing under each of the three principal 
 heads above enumerated, and for a par- 
 ticular description of each such variety, 
 see the sub-title that is descriptive there- 
 of. 
 The varieties of trusts are : 
 I. Express Trusts. 
 (1.) Express Private Trusts. 
 
 (a.) Executed and executory trusts ; 
 (6.) Trusts voluntary and for value ; 
 (c.) Trusts in favor of creditors. 
 (3.) Egress Public Trusts, called also 
 
 Charitable Trusts. 
 n. Implied Trusts. 
 
 (a.) Trusts resulting from a purchase 
 
 in the name of a stranger. 
 (S.) Trusts resulting from an incom- 
 plete disposition of the equita- 
 ble estate; including 
 (e.) Trusts of the undisposed of sur- 
 plus of personal estate for the 
 next of kin, or of real estate 
 for the heir-at-law ; 
 {d.) Trusts under conversions that 
 
 fail; 
 (e.) Trusts in cases of joint tenancies, 
 whether for purchasers, or for 
 mortgagees 
 m. Constructive Trusts, 
 (a.) Vendor's lien, also vendee's lien, 
 in respect of purchase-money 
 either unpaid or prematurely 
 paid; 
 (p.) Renewal of leases by trustee in 
 
 his own name ; 
 (e.) Permanent improvements to an 
 estate which were unavoida- 
 ble; 
 (d.) Heir of mortgagee in respect of 
 mortgage loan for next of Idn 
 of mortgagee. 
 There are certain requisites for the cre- 
 ation of a trust, other than and in addi- 
 tion to the statutory requisite of writing 
 above mentioned, where writing is re- 
 quired, these requisites being three in 
 number, and familiarly called tJie Three 
 Gertamties in Trusts. These three cer- 
 tainties are : 
 (1.) Certainty in the words creating the 
 
 trust; 
 (3.) Certainty in the svbject of the trust, 
 i. e., in the trust property ; 
 
 Trusts. — ( Gontinued.) 
 
 (3.) Certainty in the olject of the trust, 
 i. e., in the beneficiary. 
 (See Knight v. Knight, 3 Beav. 173 ; 11 
 CI. & P. 513). And failing any one or 
 more of these three, certainties, the trust 
 which was intended inevitably fails. But 
 it being clear that some trust was in- 
 tended, the trustee is not, in such cases, 
 entitled or permitted to take or keep the 
 property for his own benefit {Briggs v. 
 Penny, 3 Mac. & G. 546), if there are any 
 other persons entitled (whether as devi- 
 sees or legatees of the residue, or as 
 heirs, or next of kin of the testator or in- 
 testate) to have it made over to them ac- 
 cording to its quality ; and if there are 
 no such other persons as last mentioned, 
 then the Crown takes the personal estate 
 as hma vacantia {Taylor v. Maygarth, 14 
 Sim. 8) ; but the trustee keeps the real 
 estate for his own benefit, his tenure 
 thereof excluding escheat. Burgess v. 
 WheaU, 1 Eden, 177. 
 
 Executed and Bkceetitory Trusts. An 
 executed trust is one which the person 
 creating it has fully and finally declared, 
 whence also, it is called a Complete Trust ; 
 an executory trust is one which the per- 
 son creating it has not fully or finally de- 
 clared, but has given merely an outhne of 
 it by way of direction to the conveyancer, 
 whence also it is called sometimes an 
 Incomplete and sometimes a Directory 
 Trust. 
 
 The Court of Chancery deals very dif- 
 ferently with executory trusts to what it 
 does with executed ones. 
 
 Thus (1.) That Court follows the Law 
 (aquitas sequitwr Ugem) with regard to ex- 
 ecuted trusts, e. g., the rule in ShsUy's 
 Oase applies to these without any excep- 
 tion; whereas with regard to executory 
 trusts the Court takes the following dis- 
 tinction, viz. : 
 
 (a.^ If the executory trust occurs in 
 mamage articles {Treeor v. Tretor, 1 P. 
 Wms. 633), or ia a will manifestl/y point- 
 ing at marriage {Pa^lon v. Voice, 3 P. 
 Wms. 571), the Court refuses to follow 
 the rule in Shelly's Gase as to their con- 
 struction, as by so doing it would give to 
 the intended husband full power of de- 
 feating the prospective issue of the in- 
 tended marriage of the provision presum- 
 ably intended to have been made in their 
 favor; but 
 
 (b.) If the executory trust occurs in a 
 wiU, and that will does not manifestly 
 point at marriage, the Court follows the 
 rule in Shelh/^s Gase, and gives to the an- 
 
364 
 
 TRUSTS EBSULTING. — TUEBARY. 
 
 Trusts. — ( Gtmtmued.) 
 cestor an estate in fee simple or in fee tail 
 without reference to Ms issue, there being 
 no presumption in this case of any inten- 
 tion to provide for such issue (JSweetapph 
 V. Sindon, 3 Vern. 536; PapillonY. Voice, 
 supra); and 
 
 (3.) The Court of Chancery is ready, 
 and is even compellable, in all cases of 
 an executed trust to give full effect to the 
 same, saving all prior equitable rights, 
 and that even in favor of vohinteers, but 
 the Court refuses and is not compellable 
 in any case of an executory trust being in 
 favor of a wlunteer to give any effect 
 whatever to the same, which consequent- 
 ly falls to the ground, although the Court 
 will, in many cases of executory trusts 
 being in favor oi purchasers for value and 
 such like, give effect thereto, saving all 
 prior equitable rights. Bee title Tbtjsts 
 
 VOLTTNTABT AND FOB VaIjUB. 
 
 In the United States, most of the States 
 have special statutes regulating trusts. 
 See generally 4 Kent Com. 290-395; 
 Washb. Real Prop. 
 
 TRUSTS RESULTING. Either, 
 
 (1.) From purchase in name of stranger ; 
 or 
 " (3.) From incomplete disposition of 
 equitable estate ; or 
 
 (3.) From the failure of equitable con- 
 versions. 
 
 (1.) In the case of purchasers, whether 
 of land or of goods, the conveyance or 
 assignment of which is taken or made in 
 the name of a party other than the pur- 
 chaser himself or person who pays the 
 money, the Genebal Rttlb is, that the 
 grantee or assignee in whom the legal 
 estate is so vested holds the property in 
 trust for the purchaser and for the bene- 
 fit of the purchaser only. This is merely 
 one form of the old rule that a feoffee 
 without consideration was a trustee for 
 the feoffor. But the Exceptions to this 
 rule are more important than the rule 
 itself, and are generally summed up 
 under the head Advancement, which title 
 see. 
 
 (2.) In the case of a conveyance or as- 
 signment, or devise or bequest of lands 
 or of personal estate to A. in fee simple, 
 or other estate, vpon trust for certain 
 estates and purposes which do not ex- 
 haust the entire fee simple or other estate, 
 it is a general rule and without any excep- 
 tions, that all that part of the estate 
 which is not exhausted by the trusts de- 
 clared results, in the case of a settlement 
 
 Trusts Resnltingr. — (Oontinued.) 
 to the settlor, and in the case of a wiU to 
 the heir or real representatives of the 
 testator if the estate is in realty, and to 
 the executors or personal representatives 
 of the testator if the estate is in person- 
 alty {Pamdl V. Hingston, 3 Sm. & Giff. 
 344). But in applying this rule it is 
 necessary to distinguish conveyances or 
 assignments, or devises or bequests upon 
 trust, from conveyances or assignments, 
 or devises or bequests, which are merely 
 subject to or chwrged with certain limited 
 beneficial interests, the grantee or dev- 
 isee, assignee or legatee, in the latter 
 case taking the entire residue for his own 
 benefit after satisfying the charge. King 
 V. Denison, 1 Ves. & B. 373. 
 
 (3.) When money is directed to be 
 turned into land, or land is directed to 
 be turned into money, for certain pur- 
 poses or upon certain trusts, the property 
 is in Equity considered as already, from 
 the date of the direction taking effect, 
 converted into that into which it is di- 
 rected to be converted (see title Conveb- 
 sion) ; in other words, the money as being 
 notionally land, and the land as being 
 notionally money. But this equitable 
 conversion is subject to the following 
 limitation, that is to say, the direction 
 extends no further than the trusts or pur- 
 poses for the sake of which it is given, 
 or such of the same trusts or purposes as 
 are capable of taking effect, and as also 
 take effect, require it to extend ; and ac- 
 cordingly the margin or surplus of the 
 property over and above what is required 
 for those trusts or purposes results in the 
 case of a deed to the settlor, and in the 
 case of a will to the next of kin, so far 
 as the direction for conversion concerned 
 personal estate, and to the heir-at-law so 
 far as it concerned real estate. 
 
 * TRUSTEE PROCESS. A method of 
 reaching goods and other property of a 
 debtor in the hands of a third person. 
 Bouv. Diet. ; Cushing Trustee Proc. 
 
 TUBMAN. A barrister who has a pre- 
 audience in the Exchequer. One who 
 has a particular place in Court. 
 
 * TUMBRELL. An old instmment of 
 punishment for common scolds by duck- 
 ing. 
 
 *TUNGINUS. A judge who ranked 
 next to the count. Used in old European 
 law. 
 
 TURBARY (from turla, an old Latin 
 word for turf). Turbary, or common of 
 
TURNPIKE ROADS. — UNIFORMITY OF PROCESS ACT. 
 
 365 
 
 Turbary. — ( ContinueA.) 
 
 turbary, is the right or liberty of digging 
 
 turf upon another man's ground. Kitchin, 
 
 94. 
 
 See, also, title Couuoir. 
 
 TURNPIKE ROADS. These are roads 
 on which parties have by law a right to 
 erect gates and bars, for the purpose of 
 taking toll, and of refusing the permis- 
 sion to pass along them to all persons 
 who refuse to pay {Northam Bridge and, 
 Boads Co. V. London and SoutTumpton Ry. 
 Go., 6 M. &. "W. 428). So in the RaU- 
 ways Clauses Act, 1845 (8 & 9 Vict. c. 
 30), s. 50, a turnpike-road means a road 
 which is repaired by toUs payable by pas- 
 sengers for the use of the road (Beg. v. 
 East and West India Docks a/nd Mrming- 
 ham Junction By. Co., 2 El. & Bl. 466). 
 The law of turnpike-roads is partly regu- 
 lated by statute, the Act 3 Geo. 4, c. 126, 
 being the General Turnpike Act, and 
 having, been amended by subsequent 
 Acts. A turnpike-road may become a 
 highway {see that title), 30 & 31 Vict. c. 
 121. A TnaradoOTiMS does not lie to compel 
 the repair of a turnpike-road (_Beg. v. 
 Oxford amd Witney Boads [Tnistees], 13 
 A. & B. 437) ; but the proper proceeding 
 is to summon in the first instance the 
 treasurer, surveyor, or other officer of the 
 tumpike-road trust before the justices at 
 special sessions, under the stat. 5 & 6 
 Will. 4, c. 50, s. 94. 
 
 * TURMES. The sheriff's court. 
 
 TUTEUR OPFICIEUX. In French 
 Law, a person over fifty years of age may 
 be appointed a tutor of this sort to a 
 child over fifteen years of age, with the 
 consent of the parents of such child, or 
 in their default the conseil de fa/miUe. 
 The duties which such a tutor becomes 
 subject to are analogous to those in Eng- 
 lish Law of a person who puts himself 
 in loco pa/rentis to any one. 
 
 TUTEUR SURROG^. In French Law, 
 in the case of an infant under guardian- 
 ship, a second guardian is appointed to 
 him, the duties of the latter (who is 
 called the snibroge tutew) only arising 
 where the interests of the infant and his 
 principal guardian are in conflict. Code 
 Nap. 420. 
 
 ♦TWELVE TABLES. A body of 
 Roman laws framed by decemvirs ap- 
 pointed A. U. C. 803. 1 Kent Com. 
 531-535. 
 
 TJ. 
 
 * UKASE, UKAAS. A law or ordi- 
 nance made by the C^ar of Russia. Bouv. 
 Diet. 
 
 * ULLAGE. The amount which a cask, 
 on being gauged, lacks of being fuU. 
 
 * ULTRA VIRES. In the law of Cor- 
 poration An Act beyond the scope ol 
 their powers as defined by their charters 
 or acts of incorporation. See Brice on 
 Ultra Vires. 
 
 *ULTRONEUS WITNESS. A wit- 
 ness who offers his testimony without 
 being cited. Used in Scotch Law. 
 
 UMPIRAGE. When matters in dis- 
 pute are submitted to two or more arbi- 
 trators, and they do not agree in their 
 decision, it is usual for another person to 
 be called in as umpire, to whose sole 
 judgment it is then referred ; the word 
 "umpirage," in reference to an umpire, 
 is the same as the word "award " in ref- 
 erence to arbitrators ; but award is com- 
 monly applied to the decision of the 
 umpire also. 
 
 See title Arbitbation aot) Awabd. 
 
 UNDER-OHAMBERLAIN OF THE 
 EXCHEQUER. An officer in the Ex- 
 chequer who cleared the tallies written 
 by the clerk of the tallies, and read the 
 same, that the clerk of the peU and the 
 comptroller might see that their entries 
 were true. He also made searches for all 
 records in the treasury, and had the cus- 
 tody of Domesday Book. There were 
 two officers of this name, but their office 
 is now abolished . Cowel. 
 
 UNDERLEASE. Is a lease granted by 
 one who himself is only a lessee of the 
 premises which he underlets. Thus, if A. 
 grants a lease of land to B. for twenty- 
 one years, and B. afterward grants a 
 lease of the same land to C. for fourteen 
 years, here C. would be termed the under- 
 lessee, and the lease, by virtue of which 
 C. held the land, an underlease. In this 
 respect ah underlease differs from an 
 assignment, which is a transfer of the 
 entire term, or residue thereof. The 
 uuderlessee has no privity with the orig- 
 inal lessdl-, and is liable for rent to his 
 immediate lessor only. But it is differ- 
 ent with the assignee. 
 
 UNIFORMITY OF PROCESS ACT. 
 
 Is the title commonly given to the statute 
 3 Will. 4, 0. 39, by which a more simple 
 
366 
 
 UNITY OF POSSESSION. — USES. 
 
 Uniformity of Process Act. — (Corei'd.) 
 and uniform course of proceeding for the 
 commencement of personal actions was 
 establislied. More sweeping enactments 
 have been made by the C. L. P. Act, 
 1853. 
 
 See title Pkocedubb. 
 
 UNITY OF POSSESSION. Joint pos- 
 session of two rights by several titles. 
 As if I take a lease of land from a person 
 at a certain rent, and afterward I buy 
 the fee-simple of such land ; by this I ac- 
 quire unity of possession, by which the 
 lease is extinguished; because I, who 
 before occupied the premises only in con- 
 sideration of rent, do by the purchase of 
 the fee simple become lord of the same. 
 Cowel. . 
 
 * UNIO PROLIUM. In German Law, 
 a species of adoption whereby the chil- 
 dren of a former marriage are made equal 
 in respect to succession with the children 
 of the second marriage. 
 
 ♦UNILATERAL CONTRACT. Aeon- 
 tract in which the party to whom an en- 
 gagement is made makes none expressly 
 in return. 
 
 UNLAWFUL ASSEMBLY : See title 
 Riot. 
 
 UPPER BENCH, COURT OF. The 
 
 Court of Queen's Bench was so called 
 during the interval between 1649 and 
 1660, the period of the Commonwealth. 
 
 USAGE. This word, as used in Eng- 
 lish Law, differs from custom and pre- 
 scription, in that no man may claim a 
 rent, common, or other inheritance by 
 usage, though he may by prescription. 
 Moreover, a usage is local in all cases, and 
 must be proved; whereas a custom is 
 frequently general, and as such is noticed 
 without proof. Usage, in French Law, 
 is the usus of Roman Law, and corre- 
 sponds very nearly to the tenancy at will 
 or on sufferance of English Law. 
 
 USANCE. The time which, by the 
 usage of different countries between 
 which bills of exchange are drawn, is ap- 
 pointed for their payment. This is a 
 calendar month, as from the SOtti of May 
 to the 20th of June, and what is termed 
 a double usance consists of two such 
 months. Ghitty on Bills. 
 
 USER. Is the act of using or enjoying 
 any profit or benefit to be taken from or 
 npon the land, or any easement to be en- 
 
 User. — ( Oontiimed.) 
 joyed upon or over any land or water. 
 And in law the effect of such user (if 
 continued for a period sufficiently long, 
 and under circumstancesjvhich indicate 
 the exercise of a right on the part of the 
 person so using the land) is to establish 
 a prescriptive claim ever after to enjoy 
 the same profit or easement. Co. Litt. 
 115 a; and see title PBBSCBiPTiojsr. 
 
 USES. The word "tcse," in its orig- 
 inal legal application, denoted simply the 
 benefit or beneficial enjoyment of land. 
 The invention of uses is commonly at- 
 tributed to the ecclesiastics; and they 
 having been the early lawyers, that origin 
 is probable. The system of uses was 
 attended with numerous advantages to 
 the true owners of the land, — the use 
 not being subject to escheat or to forfeit- 
 ure, and being devisable by will, and 
 transferable without livery of seizin; but 
 like other systems it was made the chan- 
 nel of numerous abuses, lands being con- 
 veyed by means of it to persons and in 
 ways forbidden by the words — or, at all 
 events, by the policy — of the Statute 
 Law. Thus, by means of the use, lands 
 came largely into mortmain to spiritual 
 corporations, contrary to the Statutes of 
 Mortmain (7 Edw. 1; 15 Ric. 3, c. 5); 
 and, ultimately, after some Acts of a 
 more imperfect character, the Statute of 
 Uses (37 Hen. 8, c. 10) was passed, which 
 in effect enacted that the use should be 
 the land, and that where the use was 
 there the land or legal estate should be and 
 should be deemed to be. In consequence 
 of this statute the word "iise " departed 
 with its original signification, and became 
 equivalent to seizin or legal estate. 
 
 By the decision in Tyrrell's Case (4 & 5 
 Ph. & M.) the Courts of Law held that 
 the Statute of Uses intended the first use 
 only, and that as soon as it had executed 
 that use and made it the legal estate, it 
 was exhausted. But the Court of Chan- 
 cery, while adopting the rule of Law so 
 far, went further, and gave the benefit or 
 beneficial enjoyment, as before, to the 
 person intended to benefit, calling the 
 first usee the legal estate man, or trustee 
 merely, and the proper beneficiary, being 
 the second or last usee, the cestui que 
 trust and true owner in Equity. 
 
 By the joint operation of the Statute 
 of Uses and the decision in TyrrelVs Oase 
 two lines of estate have become well es- 
 tablished in Law, namely, (1) the legal 
 estate in the trustee, which retains all, or 
 
USES, CHARITABLE.— UTI POSSIDETIS. 
 
 367 
 
 Uses. — ( ConMnued.) 
 
 nearly all, its ancient incidents ; and (2) 
 the equitable estate in the cestui que truBt, 
 which has received incidents analogous 
 to those of the legal estate, upon the 
 maxim, Equity foUows the Lam. 
 
 "Bis the means of these uses new facili- 
 ties have been furnished for the convey- 
 ance of property. 
 
 See title Convetakcbs. 
 
 USES, CHABITABLE: Bee titles 
 Chabitieb; Chakitablb Usbs akd 
 Tbtjsts. 
 
 USES, SUPERSTITIOUS: See title 
 StrpBRSiTiouB Uses. 
 
 USHEB (from the Pr. Tmimer, a door- 
 keeper of a Court). A subordinate offi- 
 cer in the Courts of Law. The chief 
 usher in the Court of King's Bench used 
 to hold his office by letters patent under 
 the great seal for two lives, and to exe- 
 cute it by three deputies. But see now 
 15 & 16 Vict. c. 73, ss. 16-21, which 
 enacts that the ushers of the Superior 
 Courts shall be appointed by the Chief 
 Justices and Chief Baron respectively, 
 and prescribes their salaries and tenure 
 of office. There are also ushers in the 
 Courts of Chancery, appointed in like 
 manner by the judges of those Courts. 
 
 USHER OF THE BLACK BOD. The 
 
 Gentleman Usher of the Black Rod is an 
 officer of the House of Lords appointed 
 by letters patent from the Crown. His 
 duties are, by himself or deputy, to de- 
 sire the attendance of the Commons in 
 the House of Peers when the royal assent 
 is given to bills either by the Queen in 
 person or by commission, to execute 
 orders for the commitment of persons 
 guilty of breach of privilege, and also to 
 assist in the introduction of peers when 
 they take the oaths and their seats. 
 
 USUCAPIO. A term of Roman Law 
 used to denote a mode of acquisition by 
 the civil — i. e., old strict law. It is, 
 however, sometimes used as interchange- 
 able with longi temporis poatessio. It cor- 
 responds very nearly to our term prescrip- 
 tion or limitation, which by the stats. 3 
 & 4 Will. 4, c. 27 (as to corporeal heredit- 
 aments), and 2 & 3 "Will. 4, c. 71 (in- 
 corporeal hereditaments) confers a_ posi- 
 tive (although merely possessory) title on 
 the holder. But the prescription of 
 Roman Law differed from that of English 
 Law, not only in its times (which are of 
 less importance), but also in this great 
 
 Usncapio. — (^Contimted.) 
 and peculiar feature, that no maid fide 
 possessor (i.e., person in possession know- 
 ingly of the property of another) could 
 by however long a period ^acquire title by 
 possession merely, the two never-failing 
 requisites not only to 'usvmpio, but also 
 to longi temjxrris posaessio, being justa 
 causa (i. «., title) and hm& fides {i. e., ig- 
 norance). The term Msucopio is sometimes, 
 but erroneously, written uaucapUo. In 
 Roman Law, re-acquisition by usucapio 
 was called tjsubbcbptio. 
 
 USUFRUCT (umfructm). An usufruct 
 has been defined to be that real right in 
 an(<ther's property which entitles a party 
 to reap all the fruits of the thing, and in 
 general to have the whole use and enjoy- 
 ment of it, as far as it is practical, with- 
 out injury to its substance (salvd rerwm 
 substantid). He who is so entitled to en- 
 joy the fruits of another's property is 
 termed the usufructuary, in contradistinc- 
 tion to the actual proprietor of the thing 
 (Just. Inst. ii. 4). The usufructuary was 
 invariably entitled for life, and for no 
 less period ; he, therefore, corresponds to 
 our tenant for life, 
 
 USUFRUIT. This is, in French Law, 
 the usufruct of English and Roman Law. 
 
 USUBA MARITIMA: ;S«e title Fwsrus 
 Nauticum. 
 
 USURIOUS CONTRACT: ;8«e title 
 
 USURT. 
 
 USURPATION OF ADVOWSON. An 
 
 injury which consists in the absolute 
 ouster or dispossession of the patron, and 
 which happens when a stranger who has 
 no right presents a clerk, and the latter 
 is thereupon admitted and instituted. 
 
 USURPATION OF FRANCHISES, or 
 OFFICES. The unjustly claiming or 
 usurping any office, franchise, or liberty. 
 
 USURY (uturd). An unlawful contract 
 on the loan of money to receive the same 
 again with exorbitant increase ; that is, 
 not only to receive the principal sum 
 again, but also an exorbitant interest by 
 way of compensation for the use of such 
 principal sum. All restrictions upon the 
 rate of interest in England were, how- 
 ever, abolished by stat. 17 & 18 Vict. c. 
 90. 
 
 *UTI POSSIDETIS. This phrase sig- 
 nifies that the parties to a treaty are to 
 retain possession of what they have ac- 
 quired by force during war. Bouv. Diet. 
 
368 
 
 UTTER, TO. — VALUABLE CONSIDERATION. 
 
 UTTEE, TO. In law signifies to put 
 in circulation, to offer or tender to another 
 man, and it is used in reference to forged 
 instruments or counterfeit coin. Thus, 
 by Stat. 11 Geo. 4 & 1 Will. 4, c. 66, it is 
 enacted that the forging or uttering of any 
 Exchequer bill. Bank of England note, 
 bill of exchange, deed, transfer of stock, 
 &c., &c., knowing it to be forged, and 
 with the intent to defraud, shall be felony ; 
 and by 3 "Will. 4, c. 34, s. 7, it is pro- 
 vided that "if any person shall tender, 
 uUeir, or put off any false or counterfeit 
 gold or silver coin, knowing the same to 
 be counterfeit, he shall be guilty of a 
 misdemeanor, and be imprisoned for any 
 term not exceeding a year. See Sax, v. 
 Jrniei, 9 C. & P. 761. 
 
 UTTER BAR (or Outer Bar) is the bar 
 at which those barristers, usually junior 
 men, practice who have not yet been 
 raised to the dignity of queen's counsel. 
 These junior barristers are said to plead 
 without the bar, while those of the higher 
 rank are admitted to seats within the bar, 
 and address the Court or a jury from a 
 place reserved for them and divided off 
 by a bar. 
 
 See title Uttbb Bakristbks. 
 
 UTTER BARRISTERS. Barristers- 
 at-law, in general, who plead without the 
 bar. They are called utter barristers, i. «., 
 pleaders without the bar, to distinguish 
 them from the benchers, or those who 
 have been readers, and are sometimes ad- 
 mitted to plead within the bar, the same 
 as king's and queen's counsel are. Cowel. 
 
 V. 
 
 VACATION. The interval between 
 each term is termed the vacation, that is, 
 between thp end of one term and the be- 
 ginning of the next. These intervals of 
 a cessation of business are retained under 
 the Judicature Act, 1873, but are differ- 
 ently reckoned, the distinction of terms 
 having been abolished by that Act, in 
 name at least. 
 
 VADIUM MORTUUM {dead pledge) : 
 See next title. 
 
 VADIUM VIVUM (a Immg pledge). 
 When a man borrows a. sum of money of 
 another (suppose £300), and grants him 
 an estate, as of £30 per annum, to hold 
 tiU the rents and profits shall repay the 
 sum so borrowed ; in this case the land 
 or pledge is said to be living ; it works off, 
 
 Vadinm Vivum. — {OontmueA.) 
 i. e., repays and survives, the debt, and, 
 immediately on the discharge of that, re- 
 verts back to the borrower. It is called 
 a wmi/m vadium,, or living pledge, in con- 
 tradistinction to a mortiwwm vadmm, the 
 land in which does not of itself work off, 
 i. 6., repay the debt, but- the mortgagor 
 must needs himself repay the same, 
 before the land reverts to him. In the 
 case of both these species of vadium, the 
 pledgee receives the rents and profits 
 without account, in which respect they 
 both differ from a mortgage properly so 
 called. 
 
 See title Moktga&b. 
 
 VAGRANTS : See title VAaABOHDS and 
 Vagkants. 
 
 VALOR MARITAGII (value of mar- 
 riage). The meaning of this may be col- 
 lected from the following passage: — 
 "During the prevalence of the feudal 
 tenures the guardian was at liberty to ex- 
 ercise over his infant ward the right of 
 marriage {ma/ritagium, as contradistin- 
 guished from matilmony), which in its 
 feudal sense signifies the power which 
 the lord or guardian in chivalry had of 
 disposing of his infant ward in matri- 
 mony. For while the infant was in ward 
 the guardian had the power of tendering 
 him or her a suitable match, without dis- 
 paragement or inequality; which, if the 
 infants refused, they forfeited the value 
 of the marriage {valorem ma/rilxtgii) to 
 their guardian ; that is, so much as a jury 
 would assess, or any one would lonA fide 
 give to the guardian for such an alliance ; . 
 and if the infants married themselves 
 without the guardian's consent, they for- 
 feited double the like value, duplicmn vor 
 Litt. 110. 
 
 VALUABLE CONSIDERATION. The 
 
 distinction between a good and a valuable 
 consideration is, that the former consists 
 of considerations of blood, or of natural 
 love and affection ; as when a man grants 
 an estate to a near relation from motives 
 of generosity, prudence, and natural 
 duty; and the latter consists of such a 
 consideration as money, marriage which 
 is to follow, or the like, which the law 
 esteems an equivalent given for the grant. 
 The conveyance by bargain and sale re- 
 quires to be for valuable consideration, 
 as distinguished from that by a covenant 
 to stand seized, which requires to be for 
 blood or natural affection {see title Con- 
 vey ancbs). In the statutes of Elizabeth 
 
VARIANCES. — VENIRE DE NOVO. 
 
 369 
 
 Valuable Consideration. — (OonUnued.) 
 agaiiLst fraud (13 Eliz. c. 6, and 27 Eliz. 
 c. 4), a good consideration means a valu- 
 able one. 
 
 VAEIANCES. It is a general rule that 
 a party must recover secundum allegata et 
 probata; but in matters impertinent or 
 immaterial to the issue, or merely formal 
 or superfluous, a variation between the 
 pleading and the evidence is unimportant, 
 more especially since the powers of 
 amendment conferred by the 0. L. P. Act, 
 1852. 
 
 Variances are of the following kinds: — 
 
 (1.) Variance in the pa/rties to a con- 
 tract — being either the omission of a 
 plaintifEwho ought to be joined (^Qraham 
 V. Bobertson, 2 T. R. 282), or the mis- 
 joinder of a plaintiff or defendant, not 
 also the non-joinder of a defendant (1 
 Wma. Saund. 291-4), which can only be 
 pleaded in abatement. These cases of 
 variance may be amended at nisi priua 
 under the 0. L. P. Act, 1852, ss. 35-38. 
 (>9«e title Amendment.) 
 
 (2.) Variance in the amsideration of a 
 contract, — being the omission of any part 
 of the consideration. The variance in 
 such a case is fatal (Dashwood v. Pearl, 
 Manning's Index, 308), unless the omitted 
 part is not material. Ola/rke v. Qra/y, 6 
 East, 568. 
 
 (3.) Variance in the promke in a con- 
 tract, — being the omission of any part of 
 the promise. The variance in such a case 
 may or may not be fatal ; e. g., the omis- 
 sion of an exception contained in the 
 promise would be fatal (Latham v. B/vMey, 
 2 B. & C. 20), but the omission of an ad- 
 dition or of a defeasance would not be 
 so. MHa V. Sheuoa/rd, 8 East, 7 ; Hothami 
 V. E. I. Co., 1 T. R. 640. 
 
 VASSAL. Originally signified a feudal 
 tenant or grantee of land. It seems doubt- 
 ful what the exact relationship was that 
 subsisted between lord and vassal ; some 
 writers are of opinion that they stood to 
 each other in the relation of landlord and 
 tenant, and to a certain extent were the 
 companions of each other; whUe others 
 affirm that the vassal was little better 
 than the slave or bondman of his lord. 
 The state or condition of a vassal is 
 termed vassalage. 2 Chitty's PI. 52, n. 
 (6). 
 
 VENDITIONB EXPONAS. A judicial 
 writ directed to the sheriff commanding 
 hiTin to sell goods which he has taken into 
 his hands by virtue of a former writ (but 
 
 47 
 
 Venditione Exponas. — ( Oonlmmed. ) 
 to which writ he had returned that he 
 had taken the goods, but that they re- 
 Tnained in his hands for want of buyers), 
 in order to satisfy judgment against the 
 defendant. 1 Arch. Pract. 678 ; Reg. Jud. 
 83. 
 
 VENDORS AND PURCHASERS. The 
 
 vendor of lands undertakes to make a good 
 title thereto, and should he fail to do so, 
 the purchaser is discharged from his con- 
 tract, and recovers damages {FhireoM v. 
 ThomMU, 2 W. Bl. 1078; Sophirn v. 
 Ghrazebrodk, 6 B. & C. 31). The duties of 
 such a vendor are now regulated in all 
 material points by the Vendor and Pur- 
 chaser Act, 1874 (37 & 38 Vict. c. 78), 
 s. 2, and incidentally also by the other 
 sections of that Act, relative to Abstracts 
 of Title, Sales by Trustees, Protection of 
 Legal Estate, and Tacking. On the 
 other hand, the vendor of personal prop- 
 erty (not being chattels real) comes under 
 no such liability, unless he expressly 
 chooses to warrant the title of the thing 
 sold, the general maxim of the Common 
 Law in the case of sales of personal prop- 
 erty being caoeat emptor (Morley v. Atten- 
 lorough, 3 Ex. 500). Usually, upon a 
 purchase, the risk of the thing purchased 
 attaches to the purchaser, as from the 
 moment that sale is complete (Ta/rling v. 
 Boaster, Tud. L. C. Mer. Law, 596). See 
 title Sale with reference to sales of per- 
 sonal property, and the following titles 
 with reference to sales of real property 
 (including leaseholds or chattels real), 
 viz.. Abstract op Title; Convbtance; 
 Fratjd. » 
 
 ♦VENDOR'S LIEN. An equitable 
 Uen which the vendor has upon land sold. 
 The Uen remains until the purchase- 
 money is paid and exists against all but 
 bond fide purchasers, without notice. 
 
 VENIRE FACIAS. A judicial writ 
 which used to be directed to the sheriff 
 of the county in which a cause was going 
 to be tried, commanding him to cause a 
 jury of twelve men to come from the 
 body ■ of his county to try the issue be- 
 tween the litigating parties. The writ 
 has been abolished by the C. L. P. Act, 
 1852, s. 104. 
 
 See title Jubt. 
 
 VENIRE DE NOVO. A fresh or new 
 venire, which the Court grants when there 
 has been some impropriety .or irregularity 
 in returning the jury, or where the ver- 
 
370 
 
 VENTER. — "VERIFIOATION. 
 
 Venire de Noto. — {ConUnued.) 
 diet is so imperfect or ambiguous that no 
 judgment can be given on it (3 Ajch. 
 Pract. 1549; Smith's Action at Law, 173): 
 In all cases where this trial de novo is 
 grantable, the Court is bound to grant it 
 as of right, and without being shackled 
 with any restrictive or other condition. 
 
 VENTER (tTie lelly). Is used in law as 
 designating the maternal parentage of 
 children. Thus, where in ordinary 
 phraseology, we should say that A. was 
 B.'s child by his first wife, he would be 
 described in law as "by the first venter ; " 
 similarly, we may say, "A. died seized, 
 leaving two infant daughters by difler- 
 ent venters." Doe d. Bamiett v. Keen, 7 
 T. R. 886. 
 
 VENUE. The county in which an ac- 
 tion is intended to be tried, and from the 
 body of which the jurors are accordingly 
 to be summoned, is so called. This 
 county, or vemie, as it is termed, when 
 fixed upon and determiued by the plain- 
 tiff, is always inserted in the margin of 
 his declaration, which is termed "laying 
 the venv£ " in such a county ; and the ac- 
 tion itself is then said to be "laid" or 
 brought "within that county." By the 
 Judicature Act, 1873 (Sched. Rules of 
 Proc. 38), there is to be no local venue for 
 the trial of any action, but when the 
 plaintiff proposes to have the action tried 
 elsewhere than in Middlesex, he is in his 
 statement of claim to name the county or 
 place in which he proposes that the ac- 
 tion shall be tried ; and the action there- 
 upon shall, unless the judge otherwise 
 orders, be tried in the county or place so 
 named. 
 
 VERDEROE {verdMrie/r). An officer of 
 the king's forest, who is sworn to main- 
 tain and keep the assizes of the forest, 
 and to view, receive, and enroll the at- 
 tachments and presentments of aU man- 
 ner of trespasses of vert and venison in 
 the forest. Marwood, c. 6, s. 5. 
 See, also, title Vert. 
 
 VERDICT. A verdict is the unani- 
 mous judgment or opinion of the jury on 
 the point or issue submitted to them. A 
 verdict is either general or special. It is 
 said to be general when it is delivered in 
 general words with the issue; as if the 
 issue be on a plea of not guilty, then a 
 general verdict would be that the defend- 
 ant is guilty, "or is not guilty, as the case 
 may be. It is said to be special when the 
 
 Verdict. — ( Continued.) 
 jury, instead of finding the negative or 
 affirmative of the issue, as in the case of 
 a general verdict, declare that all the 
 facts of the case, as disclosed upon the 
 evidence before them, are in their opinion 
 proved, or in other words,' find the special 
 facts of the case, but that they aref gnor- 
 ant in point of law on which side they 
 ought, upon these facts, to find the issue ; 
 that if upon the whole matter the Court 
 shall be of opinion that the issue is proved 
 for. the plaintiff, they find for the plain- 
 tiff accordingly, and assess the damages 
 at such a sum, &c. ; but if the Court are 
 of an opposite opinion, then vice veirad. 
 This special verdict is then, together with 
 the whole proceedings on the trial, en- 
 tered on the record ; and the question of 
 law arising on the facts found is argued 
 before the Court in banc, and decided by 
 that Court as in case of demurrer. A 
 verdict is called a privy verdict when the 
 judge has left or adjourned the Court ; 
 and the jury being agreed, in order to be 
 delivered from their confinement, obtain 
 leave to give their verdict privily to the 
 judge out of Court, which privy verdict, 
 however, is of no force, unless afterward 
 affirmed by a public verdict given openly 
 in Court. Boote's Suit at Law, 373; 
 Steph. PI. 100 ; Sm. Act. at Law, 159. 
 
 VERGE (virga, rod). The Court of the 
 Marshalsea had jurisdiction within the 
 verge of the Court, which, in this respect, 
 extended for twelve miles around the 
 king's place of residence. The word 
 "verge " is also used to signify a rod or 
 stick by which one is admitted tenant to 
 a copyhold estate, by holding it in one's 
 hand and swearing fealty to the lord of 
 the manor. Old Nat. Brev. 17. 
 
 VERIFICATION. Is a certain formula 
 with which aU pleadings containing new 
 affirmative matter must conclude. It is 
 in itself an averment that the party plead- 
 ing is ready to establish the truth of what 
 he has set forth. It is either common or 
 special. The common verification runs 
 in the following form: "And this the 
 plaintiff [or defendant] is ready to verify." 
 A special verification is used only when 
 the matter pleaded is to be tried by rec- 
 ord, or by some other method than the 
 ordinary mode of trial by jury ; and in the 
 case of a trial by the record would be in 
 the following form : ' ' And this the plain- 
 tiff [o»- defendant] is ready to verify by the 
 said record." When new matter is in- 
 
VERT. — VICAR-GENERAL. 
 
 371 
 
 Teriflcation. — {Gontinued.) 
 troduced into a pleading, it must always 
 conclude with a veriflcation. Steph. PL 
 479; Finch's Law, 359. 
 
 See, also, title Et Hoc Paeatus est 
 Verificakb. 
 
 VERT (Fr. green). In general signifies 
 every thing that grows and bears green 
 leaf within the forest. There are two 
 sorts of vert in every forest, viz., over vert 
 and neather vert. Over vert, sometimes 
 also called Jiault-'boys, is all manner of 
 great wood, as well such as bear fruit as 
 do not. Old ash and holly trees are ac- 
 counted over vert. Neather vert, some- 
 times also called aouth-'boys, comprises all 
 kinds of underwood, bushes, thorns, 
 gorse, and such like. Whether fern and 
 heath are included under the term 
 "neather vert," seems doubtful. Man- 
 wood argues that they are not; Fleet- 
 wood and Hesket maintain the contrary 
 opinion. The vert which grows in the 
 Mng's demesne woods is termed special 
 vert. From this word ' ' vert " is derived 
 the word "verderor." See Harewood, 
 c. 6, ss. 3, 4, 5. 
 
 TESTED INTEREST. An interest, 
 property, or estate, whether in possession 
 or not, which is not subject to any condi- 
 tion precedent and unperformed. The 
 interest may be either a present and im- 
 mediate interest, or it may be a future 
 but uncontingent, and therefore trans- 
 missible interest, an interest which is 
 contingent not being transmissible at all. 
 Thus a vested remainder is that descrip- 
 tion of remainder by the creation of 
 which a present interest passes to the 
 party ; and though the remainder itself, 
 ex vi termini, can only be enjoyed in 
 futuro, yet a present, immediate and dis- 
 posable interest, as remainderman, is at 
 pnce conveyed, and therefore the re- 
 mainder is called a vested remainder. A 
 vested interest is not necessarily an un- 
 conditional interest; on the contrary, it 
 is frequently qualified by some condition, 
 being, however, a condition which does 
 not extend to delay the vesting of the 
 interest. 
 
 VESTED LEGACY. A legacy is said 
 to be vested when the words of the tes- 
 tator making the bequest convey a trans- 
 missible interest, whether present or 
 future, to the legatee in the legacy. Thus 
 a legacy to one to be paid when he attains 
 the age of twenty-one years is a vested 
 legacy, because it is given uncondi- 
 
 Vested Legacy. — (^Continued.) 
 tionally and absolutely, and therefore 
 vests an immediate interest in the lega- 
 tee, of which the enjoyment only is de- 
 ferred or postponed ; and if such legatee 
 die before that age, his representatives 
 shall receive it out of the testator's per- 
 sonal estate at the time that it would have 
 become payable had the legatee himself 
 lived. But if the legacy were given when 
 or if the legatee attain a certain age, it 
 would not be vested, i. «., transmissible, 
 until that age ; and if the legatee were to 
 die before that age, the legacy would fail 
 to take effect, and his representatives 
 could make no claim to it. For in this 
 case the bequest is a kind of conditional 
 one, depending upon the happening of a 
 certain event, viz., the legatee's attaining 
 the specified age. See Borastonh Case, 
 Pawlett V. Pawlett, Sta/pleton v. Oheales, 
 and Sanson v. GhraTutm, Tud. L. 0. Conv. 
 
 * VESTED REMAINDER. A fixed 
 iniierest to take effect in possession after 
 a particular estate is terminated. 4 Kent 
 Com. 303; 3 Bl. Com. 168. 
 
 VIAGERE, RENTE. In French Law 
 is a rent-charge or annuity payable for 
 the life of the annuitant. 
 
 VICAR (viearius). The priest or par- 
 son of every parish is termed a rector, 
 unless the predial tithes be appropriated, 
 and then he is called a vicar, that is, has 
 the part of a vice-rector. The distinc- 
 tion, therefore, between a parson and 
 vicar is this, that the parson has for the 
 most part the whole right to all the eccle- 
 siastical dues in his parish ; but a vicar 
 has generally an appropriator over him, 
 entitled to the best part of the profits, 
 and to whom he is In effect perpetual 
 curate, with a standing salary. Cowel; 
 Wms. Real Prop. 330, 8th ed. 
 
 VICAR-GENERAL. Is an ecclesiastical 
 officer in each diocese, appointed by, and 
 acting under, the authority of the bishop. 
 He formerly was only occasionally consti- 
 tuted during the bishop's absence from his 
 diocese; but now he is the perpetual 
 representative of the bishop in certain 
 matters, such as the granting of licenses, 
 &c., where there is nothing of contention 
 or litigation between the parties. He 
 appears to have no criminal jurisdiction, 
 and therefore cannot inquire, in the place 
 of the bishop, into such offenses as quar- 
 reling, brawling, or smiting, &c. Roger's 
 Ecc. Law, 143, 144; Gibs. Introd. 33; 
 Thorpe V. Mansel, 1 Hag. Con. 4, in notis. 
 
372 
 
 VICAEIAL TITHES.— VILLAINS, OR VILLEINS. 
 
 TICARIAI TITHES. Those tithes to 
 which vicars are entitled, and which are 
 generally called privy or small tithes. 
 See title Tithes. 
 
 VICINAGE (from the Fr. voisinage, 
 neighborhood). Common because of 
 vicinage or neighborhood, signifies the 
 right exercised by the inhabitants of two 
 townships which lie contiguous to each 
 other, of intercommoning one with 
 another; the beasts of the one straying 
 mutually into the other's fields without 
 any molestation from either. 
 See title Common. 
 
 *VIDAME. An oflBlcer who represented 
 the bishop, as a viscount did the count. 
 Burr. Bict. 
 
 VIDELICET, or SCILICET. The 
 
 words to wit, or that is to say, so fre- 
 quently used in pleading, are technically 
 called the mdeUeet, or saiUeet ; and when 
 any fact alleged in pleading is preceded 
 by, or accompanied with, these wofds, 
 such fact is, in the language of the law, 
 said to be laid under a videlicet. The 
 use of the videlicet, or scilicet, is to point 
 out, particularize, or render more specific 
 that which has been previously stated in 
 general language only; also to explain 
 that which is doubtful or obscure. It has 
 been called by Lord Hobart a " hand- 
 maiden to another clause." Where the 
 soiUcet is contrary to the preceding gen- 
 eral statement it may be rejected (Dotbin's 
 Oaae, 3 Wms. Saund. 678). But a vide- 
 licet, or seilieet, which is not so contrary, 
 and which is not mere surplusage, can- 
 not be rejected as immaterial, but may 
 be traversed like any other averment. 
 See notes to Dakin's Ome, mpra. 
 
 VIEW. In real actions a defendant 
 might have demanded a view, that is, a 
 sight of the thing, in order to ascertain 
 its identity and other circumstances. As 
 if a real action were brought against a 
 tenant, and such tenant did not exactly 
 know what land it was that the demand- 
 ant asked, then he might have prayed the 
 view, which was that he might see the 
 land which the demandant claimed (F. 
 N. B. 178). And now generally under 
 the C. L. P. Act, 1854, s. 58, an inspec- 
 tion of real or personal property may be 
 had or made whenever it would be con- 
 ducive to the right decision of a case. 
 
 VIEW OF FKANKPIEDGE. The 
 
 office which the sheriff in his .County 
 Court, or the bailifi in his hundred, per- 
 
 View of Frankpledge. 
 
 formed in looking to the king's peace, 
 and seeing that every man was of some 
 pledge. 
 
 See title Fbankplbdge. 
 
 VIEW OF AN INQUEST. Is a view 
 or inspection taken by a jury, summoned 
 upon an inquisition or inquest, of the 
 place or property to which the inquisition 
 or inquiry refers. 
 
 See title View. 
 
 VI LAICA REMOVENDA. A writ 
 that lies where two persons contend for 
 a church, and one of them enters into it 
 with a grSat number of laymen, and 
 keeps out the other vi et wrmis; then he 
 who is so kept out shall have this writ 
 directed to the sheriff, by virtue of which 
 he shall remove such lay force. But the 
 sheriff must not remove the' incumbent 
 out of the church, whether he is right- 
 fully there or not, but only the force, or 
 laymen, that accompanied him. Les 
 Terme» de la Ley ; Cunningham. 
 
 VILL. Seems to bear the same signifi- 
 cation in law as a town or tithing, and 
 each of them is said to have had origin- 
 ally a church, and celebration of divine 
 service, sacraments, and burials; though 
 this seems to be rather an ecclesiastical 
 than a civil distinction, and hence it is 
 that the word " vill" has by some writers 
 been described as a parish or a manor. 
 It appears to have some different signifi- 
 cations, but its more ordinary meaning 
 was that of a town ; and the Statute of 
 Exeter (14 Edw. 1) so uses it in making 
 frequent mention of vills, demi-vills, and 
 hamlets. Sir Henry Spehnan conjectures 
 entire vills to have consisted of ten free- 
 men or frankpledges (hence tithing), and 
 demi-viUs of five. Co. Litt. 115 b. ; stat. 
 14 Edw. 1; Spel. Gloss. 274; 1 Inst. 115; 
 Bract, lib. 4, c. 31. 
 
 VILLAINS, or VILLEINS. Were a 
 sort of people under the Saxon govern- 
 ment in a condition of downright servi- 
 tude, who were used and employed in the 
 most servile works, and are even said to 
 have belonged to the lord of the soil, 
 like the cattle or stock upon it. They 
 seem to have been those who held what 
 is termed the folk-land, from which they 
 were removeable at the lord's pleasure. 
 These viUeins, belonging principally to 
 lords of manors, were either villeins 
 regardant, that is, annexed to the manor 
 or land, or else they were villeins in gross, 
 
VILLANIS REGIS SUBTEACTIS REDUCENDIS. — VOIR DIRE. 373 
 
 Yiliains; or Tilleins. — (Cmtinued.) 
 or at large, that is, annexed to the person 
 of the lord, and. transferable by deed 
 from one owner to another, either apart 
 from, or with, the land. The tenure by 
 which viUeins held their land, and their 
 condition in general was termed "tII- 
 lenage." Cowel; JLes Termes dela Ley. 
 See title Villbnage. 
 
 YILLANIS REGIS SUBTRACTIS 
 REDUCENDIS. A writ that lay for the 
 restoring the king's bondmen who had 
 been carried away by others out of Ms 
 manors to which they belonged. Reg. 
 Orig. 87; CoweL 
 
 VILLANOUS JUDGMENT. Such a 
 judgment as threw the reproach of villany 
 and shame on those against whom it was 
 given, and by which they were discred- 
 ited and disabled as jurors or witnesses ; 
 forfeited their goods, and chattels, and 
 land's, for life ; had their lands wasted, 
 their houses razed, their trees rooted up, 
 and their bodies committed to prison (1 
 Hawk. P. C. 198; Lamb. Eiren.). A 
 judgment in attaint against unjust jurors 
 had these efEects, and was, therefore, a 
 villanous judgment. 
 
 See titles Attaint; Jxtrors, Immu- 
 
 HITY OF. 
 
 VILLENAGE. This was the species 
 of slavery or serfdom in which villeins 
 lived ; for the varieties of whom see title 
 ■^rLLAiNS. It was a state of society 
 recognized by the law, but which, from 
 various circumstances favoring liberty, 
 has entirely disappeared out of England; 
 the latest cases on the subject being 
 OraucKs Case (9 & 10 Eliz.), and Pi^g v. 
 Caley (15 Jac. 1) ; and according to the 
 genius of the English constitution, as 
 explained by Mr. Hargreaves in his argu- 
 ment in SomenetVa Case, no new slavery 
 can be introduced into England. So 
 jealous, indeed, was the law of any such 
 new form of it, that it was at one time 
 doubted whether a contract of service, 
 intended to last during the life of the 
 servant, was legal ; a question decided in 
 favor of the legality of it in WallU v. 
 Dwy (3 M. & W. 273) (1837). A slave 
 who is for one moment introduced by 
 his master on English territory is, there- 
 fore, absolutely free (SomerseWs Case, 20 
 St. Tr. 1), nor may his owner carry him 
 by force out of the country (Magna 
 Charta and Habeas Corpus Act) ; although 
 if the slave of his own accord return 
 with his master to the slave country, his 
 
 Tillenage. — ( Continued.) 
 
 slavery at once re-attaches. The Sla/oe 
 
 Oraoe, 2 Hagg. Adm. 94. 
 
 V VINCULO MATRIMONII, DIVORCE 
 
 A. A divorce from the bond of matri- 
 mony. 
 
 See title Divorce. 
 
 VIOLENT PRESUMPTION : See title 
 Presumption. 
 
 VIRTUTE CUJUS {hy reason whereof). 
 That part of the declaration in an action 
 which, after setting forth the various 
 grievances complained of, proceeds to 
 point out the injurious results which have 
 flowed therefrom, is frequently technically 
 spoken of as the ' ' virtMte cujits, " from 
 the words employed therein, which are, 
 "by reason whereof." Thus, in an 
 action for diverting water from theplain- 
 tiflf's.mill, the declaration, after stating 
 the plaintiff's right to the water, and 
 particularizing the injurious act com- 
 plained of, proceeds to point out the 
 injury which the plaintiff has sustained 
 in consequence, in the following manner: 
 "and the plaintiff, iy reason of the 
 •premises, " had been prevented from work- 
 ing his said mill in so beneficial a man- 
 ner as he heretofore has, and otherwise 
 could and would have done, &c., &c. 
 See Doctr. PI. 351; 11 Rep. 106; Steph. 
 PI. 221, 5th edit. 
 
 VISITATION. The office performed 
 by the bishop of every diocese once in 
 every three years, or by the archdeacon 
 once in every year, of visiting the churches 
 and their rectors. These visitations were 
 instituted for the purpose of correcting 
 any abuses or irregularities that might 
 arise therein ; and the persons who per- 
 form such visits are termed the visitors 
 (Cowel). Most, if not all, of the colleges 
 at Oxford and Cambridge have their 
 visitors. 
 
 VIVA VOCE. As applied to examina- 
 tions of witnesses and generally, this 
 phrase is equivalent to oral ; it is used in 
 contradistinction to evidence on affi- 
 davits. 
 
 VOIDANCE: See Avoidance. 
 
 VOIR DIRE {see him speak). This 
 phrase is applied to denote that prelimi- 
 nary examination which the judge makes 
 of one presented as a witness, where the 
 witness's competency is objected to. If 
 the witness is a child of very tender 
 years, the judge will examine him on the 
 
374 
 
 VOLUMUS. — "WAGERING. 
 
 Voir Dire. — {OonUnued.) 
 voir dire, to test his knowledge of the 
 sacredness of an oath. If the result of 
 such preliminary examination supports 
 the objection to incompetency, then the 
 ■witness will be rejected; but in the 
 general case the judge inclines to allow 
 the competency, leaving the objection to 
 go to the credibility merely. The ex- 
 amination on the voir d4re may be made 
 at any stage of the trial, whenever the 
 occasion for it arises. 
 
 VOLUMUS. The first word of a clause 
 in the king's writs of protection and let- 
 ters patent. Cowel. 
 
 See titles Pkotbction ; Patent. 
 
 VOLUNTARY CURTESY. A voluntary 
 act of kindness. An act of kindness per- 
 formed by one man toward another, of 
 the free will and inclination of the doer, 
 without any previous request or promise 
 of reward made or offered by him who is 
 the object of the curtesy. From such a 
 voluntary act of kindness the law implies 
 no promise on the part of him who is 
 benefited by such act that he will make 
 any remuneration or return for the same ; 
 for if it were otherwise, one man might 
 impose a legal obligation upon another 
 against his wiU. If, however, the curtesy 
 or act of kindness was performed at the 
 instance or request of the party benefited, 
 then the law implies a promise on the 
 part of the latter to make a remuneration 
 or return for such act. Hence the mean- 
 ing of the phrases that a " voluntary 
 curtesy will not support an assumpsit," 
 but that " a curtesy moved by a previous 
 request will." See Lamvplmgh v. Braith- 
 waM, Hob. 105; 1 Smith's Leading Cases, 
 189; 3 Bos. & P. 350, in notis; Bumfmd 
 V. Meanter, 5 M. & S. 446. 
 
 yfils* title CONTKACTS. 
 
 VOLUNTARY JURISDICTION. 
 
 Those Courts are said to have a voluntary 
 jurisdiction which are merely concerned 
 in doing or settling what no one opposes, 
 and which keep an open office for that 
 purpose (as granting dispensations, li- 
 censes, faculties and other remnants of 
 the papal jurisdiction), but do not con- 
 cern themselves with administering re- 
 dress for any injury. 
 
 VOLUNTARY OATHS are such as'per- 
 sons take in extra-judicial matters, and 
 not regularly in a Court of Justice, or 
 before an officer invested with authority 
 to take the same. 
 
 VOTES AND PROCEEDINGS. In 
 
 the Houses of Parliament the clerks at the 
 table make brief entries of all tl at is ac- 
 tually done; and these minutes, which 
 are printed from day to day for the use of 
 members, are called the "Votes and Pro- 
 ceedings of Parliament." The votes and 
 proceedings of the House of Commons 
 are published by the Speaker's authority, 
 and sold to the public as well as distrib- 
 uted among the members themselves; 
 but those of the House of Lords are not 
 published nor sold, although they can be 
 obtained as a favor by persons desiring 
 them. Prom these " votes and proceed- 
 ings " the journals of the House are sub- 
 sequently prepared, by making the entries 
 at greater length ; but in neither is any 
 BiOtice taken of the speeches of a debate. 
 
 WADSET. A Scotch term for mort- 
 gage. 
 
 WAGER or BATTLE. This was a 
 mode of trial, as to the meaning of which, 
 see title Battle. It was abolished in 
 writs of right by the 59 Geo. 3, c. 46; 
 and as the same statute abolished also ap- 
 peals of murder, of treason, and of felony, 
 this mode of trial may be considered to 
 have been then abolished altogether. 
 
 WAGER OF LAW. This was a species 
 of " decisory oath " taken by the defend- 
 ant to an action on a simple contract, and 
 in some few other actions, not being on 
 specialties. The defendant swore in Court, 
 in the presence of eleven compurgators, 
 that he owed the plaintiff nothing, or 
 that he did not detain the plaintiff's 
 goods, and the eleven swore that they be- 
 lieved his oath to be true. This mode of 
 trial was only admissible in the absence 
 of all evidence ; the Court would rather 
 discharge the defendant on his oath than 
 charge him on the plaintiff's uncorrobo- 
 rated oath. Wager of law was abolished 
 by 3 & 4 Will. 4, c. 42, s. 13. 
 
 WAGERING. By the stat. 8 & 9 Vict, 
 c. 109, all contracts or agreements, 
 whether by parol or in writing, by way 
 of gaming or wagering are declared null 
 and void ; and no action or suit is main- 
 tainable for recovering any sum of money 
 or other valuable article alleged to be won 
 upon any wager, or which has been de- 
 posited in the hands of any person to 
 abide the event of the wager. And by 
 thS Stat. 16 & 17 Vict. c. 119 (extending 
 
WAGES. — WAPENTAKE. 
 
 375 
 
 Wagering. — ( OonUrmed.) 
 to Scotland, and generally rendered more 
 rigorous, by the Betting Act, 1874, 37 & 
 38 Vict. c. 15) a penalty is imposed upon 
 persons being the occupiers or owners of 
 betting-houses, and who receive moliey to 
 abide the event of any wager, or who ad- 
 vertise advice on races, subject to certain 
 exceptions mentioned in the Act. Those 
 statutes have produced an alteration in 
 the Common Law ; for by the Common 
 Law an action might have been main- 
 tained on a wager, strictly so called, if it 
 was not against the interests or the feel- 
 ings of third persons, and did not leap 
 to indecent evidence, and was not con- 
 trary to public policy. TTiachooraeydaaa v. 
 Blwndmull, 4 Moo. Ind. App. 339. 
 
 WAGES. The payments made to ser- 
 vants and workmen are so called. 
 See titles Labokbk ; Sbrtakt. 
 
 WAIFS. If a felon, in his endeavors 
 to escape pursuit, waived, i. e., threw 
 away, the goods stolen, then the king's 
 officers (or the lord's bailiff) might have 
 seized the goods to the king's (or the 
 lord's) use, and keep them as a punish- 
 ment upon the true owner, if he did not 
 prosecute the thief within a year and a 
 day, or at least give evidence against him, 
 leading to his conviction ; but such owner, 
 if he was a foreign merchant, i. e., a 
 stranger to our laws, was not so punished. 
 Waifs are to be distinguished from iona 
 fugitiva, which are the goods of the felon 
 himself, which he abandons in his flight 
 from justice. 
 
 See title Fugitive's Goods. 
 
 WAIN, WAINAGE. A cart or wagon, 
 with its equipments. The law exempted 
 the laborer's wainage from being taken 
 ' for debt (see Magna Charta) ; and many 
 similar exceptions, suited to modem so- 
 ciety, are aflEorded by our law to the hon- 
 est but unfortunate debtor. See Simpson 
 V. Bwtopp (1 Sm. L. C. 385), as to what 
 things are privileged from distress ; and 
 see also the provisions of the Bankruptcy 
 Act, 1869, as to the clothes and bed- 
 ding of the bankrupt, and of his wife and 
 family. 
 
 WAITER. This word is commonly 
 used to denote the declining to take ad- 
 vantage of an irregularity in legal pro- 
 ceedings, or of a forfeiture incurred 
 through breach of covenants in a lease. 
 A gift of goods may be waived by a dis- 
 agreement to accept ; and then it is no 
 
 Waiver. — ( OmUrmed.) 
 gift. See SUl v. WiUm (L. R. 8 Ch. 
 for a modem application of this doctrine. 
 So, also, a plaintiff may commonly sue in 
 contract, waiving the tort. But the doc- 
 trine of waiver is chiefly valuable in con- 
 nection with covenants in leases ; and in 
 this use of it waiver is commonly said to 
 be of two sorts, namely, (1.) Implied 
 waiver, and (2.) Actual waiver. With 
 reference to the first kind of waiver, a 
 receipt of rent by a landlord, after notice 
 of a breach of covenant committed by 
 his tenant prior to the rent becoming due, 
 was an implied waiver of his right of 
 entry for that particular breach (Co. Litt. 
 311, s. 6) ; and with reference to the 
 second kind of waiver, if a landlord, in 
 express terms, waive his right of re-entry 
 on the ground of the breach for that once, 
 he was considered in law to have waived 
 it also for all subsequent breaches of the 
 same covenant ; but by the stat. 23 & 23 
 Vict. c. 35, s. 6, the effect of an actual 
 waiver is now reduced in this respect to 
 that of an implied, which is the most or- 
 dinary, kind of waiver. 
 
 WALES. It appears that England and 
 Wales were originally but one country ; 
 and that, even after Wales had princes of 
 its own, the kings of England exercised 
 a superiority over them. King Edward 
 I., in the twenty-eighth year of his reign, 
 annexed the marshes of Wales perpetu- 
 ally to the Crown of England ; and the 
 annexation was completed by the 37 Hen. 
 8, c. 36. By the subsequent stat. 34 & 
 35 Hen. 8, c. 36, Wales was divided into 
 twelve counties, a president and council 
 appointed for the principality, and two 
 justices were to be assigned to hold a ses- 
 sion twice every year. By the 1 Wm. & 
 M. St. 1, c. 37, the Court of the President 
 and Council was abolished, and the pro- 
 cess of the Courts at Westminster was 
 partially extended to Wales. And now 
 by 20 Geo. 2, c. 43, s. 8, in an Act of 
 Parliament, the word " England " is made 
 to include Wales and Berwick-on-Tweed 
 as well as England proper; and by 11 
 Geo. 4 & 1 Will. 4, c. 70, the process of 
 the Courts at Westminster was made the 
 exclusive process in Wales, and the cir- 
 cuits of North and South Wales were es- 
 tablished. 
 
 WAPENTAKE. A local division of 
 the country ; the name is in use north of 
 the Trent to denote a hundred. The 
 derivation of the name is said to be from 
 
376 
 
 WAR. — WARRANTY. 
 
 Wapentake. — ( OmMnmA. ) 
 
 wewpon and taike, and indicates that the 
 
 division was originally of a military 
 
 character. 
 
 WAR: 8ee titles Abmt ahd Naty; 
 Mtlitia; Volunteers. 
 
 WARD. A division in the city of 
 London committed to the special ward, 
 i. «., guardianship, of an alderman. The 
 name also denotes a prison or division 
 thereof. All infants are likewise denom- 
 inated wards, as to whom see title In- 
 fants. 
 
 WARDEN. A keeper, e. g., the Warden 
 of the Cinque Ports, the Warden of the 
 Stannaries, and the Warden of the Fleet 
 Prison. 
 
 WARD-MOTE. The Court of the divis- 
 ion of the City of London which is called 
 a ■■ 
 
 WARDS, COURT OP. This was a 
 Court established by Henry VJLU.., and to 
 which he afterward added the office of 
 liveries (32 Hen. 8, c. 46). The Court 
 was abolished by 13 Car. 3, c. 24, along 
 with the military tenures. 
 
 WARRANT. A precept under hand 
 and seal to an officer to take up an 
 oSender, to be dealt vrith according to 
 due course of law. 
 
 See title Constable. 
 
 WARRANT OF ATTORNEY : See title 
 
 POWEB OF AtTOBNET. 
 
 WARRANTIA CHARTS. A writ 
 which lay for a man who was enfeoffed 
 of lands with warranty, and who, being 
 afterward sued or impleaded in assize or 
 other actions in which he could not vouch 
 to warranty, was permitted by means of 
 this writ to compel the feoffor, or his 
 heirs, to warrant the land to him ; and if 
 that writ were obtained by the feofee 
 pending the first writ against him, then 
 in case the land were recovered from 
 him, he should recover as much lands in 
 value against the warrantor (F. N. B. 
 134; Les Termes de la Ley, 373, 588). 
 The writ was abolished by 3 & 4 WiU. 4, 
 c. 37, s. 36. 
 
 WARRANTY. This word applies both 
 to real and to personal property. 
 
 I. As applied to real property — it is a 
 covenant, i. e.,& promise by deed, by the 
 grantor for himself and his heirs to war- 
 rant, i. e., secure, the grantee and his 
 heirs in the thing granted against all the 
 
 Warranty. — ( Continued.) 
 world. The benefit of such a warranty 
 appeared when it was attempted to evict 
 the grantee of the lands, who thereupon 
 either vouched his warrantor, or obtained 
 judgment in a writ of warrantia cha/rtm 
 against him to defend his title, or else to 
 recompense him with other lands of equal 
 value. 
 
 Warranty was either implied or express. 
 By the old law, every feudal grant, by 
 the word ^^dedi," involved or implied a 
 warranty; but in other modes of grant of 
 a more recent origin an express clause of 
 warranty was required. 
 
 A warranty bound not only the war- 
 rantor himself but also his heirs, and it 
 mad.e no difference whether the warranty 
 was lineal or collateral, that is to say, 
 whether the heirs had or not derived, or 
 might or not by possibility have derived 
 title from or through the warrantor. But 
 the heir in either case was in theory bound 
 only if he had received other sufficient 
 lands or assets by descent from the war- 
 rantor, although both in lineal and in col- 
 lateral warranty he was in effect bound ' 
 whether he had received such lands or 
 not, inasmuch as the assets he should 
 have recovered upon upsetting the war- 
 ranty of his ancestor were regarded as 
 assets by descent from his ancestor, and 
 as such would be hable to make good his 
 warranty. This was an evident abuse of 
 a proper principle; and the abuse was 
 corrected — as to the warranties of tenants 
 by the curtesy, by the stat 6 Edw. 1, c. 
 3 ; and as to the warranties of tenants in 
 dower, by the stat. 11 Hen. 7, s. 20 ; and 
 as to the warranties of tenants for life 
 generally, by the stat. 4 & 5 Anne, c. 
 16 ; and last of all, as to the warranties 
 of tenants in taU, by the stat. 3 & 4 Will. 
 4, c. 74, s. 14. 
 
 n. As appUed to personal property, a 
 warranty may also be either express or 
 implied. The better opinion is, that there 
 is no implied warranty of title upon the 
 sale of personal chattels, but there may, 
 of course, be an express warranty of title. 
 And neither is there any implied war- 
 ranty of the goodness or soundness of the 
 articles sold, but there may of course be an 
 express warranty to that effect ; and there 
 is an implied warranty that the goods 
 sold are fairly merchantable, or will fairly 
 answer the purpose for which they are 
 known to be bought, e. g., that provis- 
 ions are wholesome. The custom of trade 
 may also give rise to an implied warranty 
 of goodness, e. g., where goods are bought 
 
WARRANTY, BREACH OF. — WASTE. 
 
 377 
 
 Warranty. — ( OmMnmci.) 
 and sold by sample (2 East, 814). A gen. 
 eral warranty does not extend to obvious 
 defects, e. g., to the want of the tail in a 
 horse that is warranted perfect. Dig. 18, 
 1, 43, s. 1 ; 1 Salk. 211. 
 
 A warranty differs from a misrepresen- 
 tation (whether fraudulent or innocent) 
 in that a warranty must always be given 
 contemporaneously with and as part of 
 the contract, whereas a misrepresentation 
 precedes and induces to the contract. 
 And while that is their difference in na- 
 ture, their difference in consequence or 
 effect is this : that upon breach of war- 
 ranty (or false warranty), the contract re- 
 mains binding and damages only are re- 
 coverable for the breach ; whereas upon a 
 false representation the defrauded party 
 may elect to avoid the contract, and re- 
 cover the entire price paid. 
 
 See title Fbatjd ; and next title. 
 
 WABBANTY, B B E A C H OF. This 
 must be distinguished froni misrepresen- 
 tation. For the warrantor is liable for 
 damages for breach of warranty whether 
 he knew or did not know that the thing 
 sold was imperfect, when as for a mis- 
 representation he would only be liable if 
 he knew it was false when he made it. 
 
 The remedy for a breach of warranty 
 differs also from the remedy for a mis- 
 representation. Thus, on breach of war- 
 ranty the purchaser is not entitled to 
 return the article and get back his money ; 
 at the most he can only obtain damages 
 which will go in part reduction 6f the 
 price. On the other hand, in case of a 
 misrepresentation the purchaser is enti- 
 tled to send back the article and have his 
 money returned to him. 
 
 A warranty may be either express or 
 implied — 
 
 (1.) Express, where given in so many 
 words at the time of the pur- 
 chase ; 
 
 (2.) Implied, where the purpose for 
 which the article is bought is 
 known to the seller. 
 
 WASTE. This word, which is derived 
 from vaattim, denotes that havoc or de- 
 vastation which arises from exceeding 
 the right of user. The word is, there- 
 fore, applicable only to persons having 
 limited interests or estates in lands, e. g., 
 tenant for life, or pur <mtre vie, tenant in 
 dower, and tenant by the curtesy ; and it 
 is inapplicable, as a general rule, to ten- 
 ants in fee tail or in fee simple. 
 
 -(Oontmued.) 
 By the Common Law waste was punish- 
 able in the cases only of tenants for life 
 who were such by operation of law, 
 namely, tenant in dower and tenant by 
 the curtesy; but by the Statute of Marl- 
 bridge (52 Hen. 3), c. 23, it was made 
 j)unishable in the cases also of tenants for 
 life, or pur autre vie, or for years, who 
 were tenants by the creation of the par- 
 ties or of the settlor. Furthermore, the 
 Courts of Equity have long interfered 
 to remedy waste in cases in which the 
 Courts of Law were powerless to inter- 
 fere; and there has grown up accordingly 
 a distinction of Waste into legal on the 
 one hand, being such as Law can re- 
 strain ; and equitable on the other hand, 
 being such as Equity alone can re- 
 strain. However, by the Judicature 
 Act, 1873, this distinction appears to be 
 abolished, in part at least (36 & 37 Vict, 
 c. 66, s. 25, and sub-s. 3), if not also in 
 whole (sub-s. 11), as from the 2d of No- 
 vember, 1875. 
 
 While the distinction before mentioned 
 subsisted, the divisions and sub-divisions 
 of waste were the following: — 
 (1.) Legal waste being either 
 (a.) Voluntary waste ; or 
 (6.) Permissive waste ; and 
 (2.) Equitable waste, which was in all 
 cases voluntary, and so is described as 
 equitable waste only. 
 
 (1 as.) Voluntary legal waste consisted 
 in the following particulars : pulling down 
 houses, pulling down wainscots, doors, 
 windows, furnaces, and other such fix- 
 tures, causing timber trees to decay, stub- 
 bing up underwood, cutting down fruit 
 trees in an orchard, cutting down trees 
 which shelter the mansion ; also, opening 
 new gravel pits, lime pits, clay pits, &c., 
 or new mines of metal, coal, or the like ; 
 also the conversion of old meadow land 
 into arable, or of arable into plantation, 
 or the like ; and even ploughing up a 
 rabbit warren (Angeritein, v. Sunt, 6 Ves. 
 488), or reclaiming deer in a park. Ford 
 V. Tynte, 2 J. & H. 153. 
 
 (1 J.) Permissive legal waste consisted 
 in suffering houses to get into decay ; but 
 the Courts have ceased to give any remedy 
 or assistance in such cases (Warren v. 
 SudaU, 1 J. & H. 1, 13), notwithstand- 
 ing the same are generally considered to 
 have been comprised in the Statute of 
 Gloucester, 6 Edw. 1, c. 5. 
 
 (2.) Equitable waste consisted in " mali- 
 cious, e:rtravagant, or humorsome " acts 
 of destruction on the part of a tenant who 
 
378 
 
 ■WATCH.— WATS. 
 
 Waste. — ( Oontimied. ) 
 was not impeachable for waste at law, 
 e. g., where a tenant for life, without im- 
 peachment of waste, pulls down or dis- 
 mantles the mansion-house {VaTis v. Lord 
 Ba/mwrd, 3 Vem. 738), or pulls down 
 farm-houses (Aston v. Astonj 1 Ves. 365), 
 or totally destroys a plantation .{Id.), or 
 feUs ornamental timber {BoltY. Lord 8omr 
 erville, 3 Bq. Ca. Abr. 759); or, agaia, 
 where a tenant in tail after possibility of 
 issue extinct commits the like acts of 
 waste {AU.-Oen. v. Duke of Ma/rWorough, 
 
 3 Madd. 538) ; or, again, where a devisee 
 in fee simple with an executory devise 
 over on his death without leaving issue, 
 or on any other event, does the like acts 
 of waste {Turner v. Wright, 1 Johns. 
 740) ; or, again, where a tenant in posses- 
 sion under a disputed title does the like 
 acts of waste. Marl Talbot v. Sope Scott, 
 
 4 K. & J. 96. 
 
 Procedure in cases of waste : The legal 
 remedy for waste used to be either a writ 
 of waste (which, however, was abolished 
 by 3 & 4 Will. 4, c. 37, s. 36), or an action 
 on the case ; and at the present day the 
 legal remedy is an action on the case, in 
 which action an injunction may also be 
 obtained. But the equitable remedy, 
 which was and is by bill, was and is more 
 generally resorted to; and Equity, which, 
 until 1854, had exclusive jurisdiction by 
 injunction, used to interfere, and also still 
 interferes, in the three following groups 
 of cases: — - 
 
 (1.) Where a remainderman for life in- 
 tervenes in the order of the limitations 
 between the tenant who commits the 
 waste and the owner of the inheritance 
 in remainder or reversion (Tracy y. Tracy, 
 1 Vem. 33) ; 
 
 (2.) Where the tenant for life who com- 
 mits the waste is in collusion with the 
 remainderman in fee to the prejudice of 
 an intervening contingent remainderman 
 (Cfrath V. Ootton, 1 Ves. 646) ; and 
 
 (3.) Where the waste is equitable as op- 
 posed to legal. 
 
 And see titles Equitable Wastk; 
 Legal Wastb. 
 
 WATCH. Watching is properly for 
 the apprehending of rogues in the night, 
 as warding is for the day; for default of 
 watch or ward the township may be pun- 
 ished. 
 
 See, also, title Police. 
 
 WATEE-BAIIIPF. An officer in port 
 towns for the searching of ships. In the 
 
 Water-Bailiff.- 
 
 city of London he has the supervising of 
 fish brought thither, the gathering of the 
 toll arising from the Thames, and the 
 arrest of men for debt, or other personal 
 or criminal matters, on that river. 
 
 WATER AND WATER-COURSE : See 
 
 title Easements. 
 
 WATERMEN. These are eight over- 
 seers elected annually by the Lord Mayor 
 and Court of Aldermen of the city of 
 London to exercise supervision over all 
 wherrymen, watermen, and lightermen 
 upon the River Thames between Graves- 
 end and Windsor. Their duties were 
 latterly regulated by the Consolidation 
 Act (7 & 8 Geo. 4, c. 75) ; but the matter 
 is now to some extent regulated by the 
 recent stat. 37 & 38 Vict. c. 118. 
 
 WATS. Ways are of four principal 
 varieties, namely — 
 
 (1.) Iter, i. e., a footway; 
 
 (3.) AcM», i. e., a horse and footway, 
 called also a packway; 
 
 (3.) Via, i. e., a cartway (including 
 foot and horseway) ; and 
 
 (4.) A driftway (probably included in 
 Roman Law under the term octo* 
 but being excluded therefrom 
 in English Law), i. e., a way for 
 driving cattle. 
 
 Ways are either public or private, the 
 former being open to all the king's sub- 
 jects, the latter being open to the mhabit- 
 ants of a particular parish, village, or 
 house only; a public way is also com- 
 monly called a highway. 
 
 It is commonly said that every high- 
 way is the king's ; but this means that 
 the king and his subjects have at all 
 times the right to pass and repass only 
 at their pleasure ; for the freehold and all 
 the profits thereof belong to the lord of 
 the soil (2 Inst. 705), being in general the 
 adjoining owner, who therefore may 
 bring trespass for digging in the high- 
 way. 1 Burr. 143. 
 
 A public way need not be a thorough- 
 fare ; nor is a thoroughfare of necessity a 
 public way. 
 
 The dedication of a public way is 
 readily presumed from user as such, e. g., 
 from eight or six years' user. But a 
 highway may also exist by virtue of an 
 express grant. It most commonly exists 
 in virtue of some Act of Parliament. 
 
 With reference to the repair of high- 
 ways, the whole parish is of common 
 right bound to repair all the roads of the 
 
WEAR. — WITENAGEMOTE. 
 
 379 
 
 Ways. — (Oonthmed.') 
 parish, and the whole county all the 
 roads of the county. And this liability 
 continues, although some particular per- 
 son or persons may be liable in the first 
 instance to make tide repairs. Such par- 
 ticular person or persons may be bound 
 to repair a highway either by reason of 
 prescription or by reason of inclosure. 
 The prescriptive duty to repair is often 
 called the liability to repair raUone 
 tenurm. The liability by reason of inclos- 
 ure arises when the owner of uninclosed 
 lands adjoining the highway incloses 
 them, and thereby prevents the pubUc 
 going on the lands inclosed when the 
 road is bad. 
 
 Any thing whereby the public are in- 
 commoded in their use of the highway is 
 a nuisance to it, e. g., the foulness of the 
 adjoining ditches, the overhanging of 
 boughs, &c., whence the adjoining owner 
 is bound to scour his ditches, and also 
 to lop his trees adjoining the highway. 
 Every unauthorized obstruction of a high- 
 way is an indictable oflense. 
 
 "Any one may justify in pulling down 
 or abating a common nuisance, e. g., in 
 demolishing a gate erected in a common 
 highway. 
 
 The whole law of highways is now 
 principally regulated by statute; see 5 
 & 6 Will. 4, c. 50; 25 & 36 Vict. c. 61, 
 and 27 and 28 Vict. c. 101. 
 
 With reference to private ways, see 
 title Easements. 
 
 WEAK. A great dam made across a 
 river, accommodated for the taking of 
 fish, or to convey a stream to a mill. 
 
 WEIGHTS. There are two sorts of 
 weight in use, viz., troy weight and 
 avoirdupois, the former containing 12 oz. 
 and the latter 16 oz. to the pound. 
 See title Measures. 
 
 * WELSH MORTGAGE. An ancient 
 species of mortgage, being a conveyance 
 of an estate redeemable at any time on 
 payment of the principal, with the under- 
 standing that the profits in the mean- 
 time shall be received by the mortgagee 
 in payment of interest. 
 
 WERGILD. This was the price of 
 homicide, or other atrocious personal 
 ofliense, paid partly to the king for the 
 loss of a subject, partly to the lord for 
 the loss of a vassal, and partly to the next 
 of kin of the injured person. In the 
 Anglo-Saxon laws the amount of com- 
 
 Wergild. — ( Oontmued.) 
 
 pensation varied with the degree or rank 
 
 of the party slain. 
 
 WHIPPING. This is a punishment 
 which may or may not accompany sen- 
 tences of imprisonment in most cases ; as 
 to females, it was abolished by 1 Geo. 4, 
 c. 51. 
 
 WIDOW : See titles Dower and Next 
 OF Kin. 
 
 The king's widow was she who, after 
 her husband's death, being the king's 
 tenant in capite, could not marry again 
 without the king's consent. 
 
 ♦WIFE'S EQUITY. The equitable 
 right of the wife to have settled upon 
 her and her children a suitable provision 
 out of her estate. Bouv. Diet. 
 
 WILL, ESTATE AT: See title Es- 
 tates; Tenancies. 
 
 WILL. The disposition of a person's 
 property to take efEect after death. See, 
 generally, Jarman on Wills ; Nigram on 
 Wills; Redfield on Wills. 
 
 WINDING-UP. This phrase means 
 simply squaring the accounts of a part- 
 nership or company with a view to the 
 dissolution of the same. 
 
 *WISHUT, LAWS OF. A code of 
 maritime laws compiled at Wishuy, the 
 ancient capitol of Gothland, in the 13th 
 century. 
 
 These laws were adopted by the nations 
 at one time as the laws of the sea. 
 
 WITCHCRAFT. A practice for which 
 in former times persons might have been, 
 and often were, condemned to death, 
 even upon their own confession (see Best 
 on Evidence, Criminal Confessions). The 
 rule of the Mosaic Law was, — "Thou 
 shalt not suffer a witch to live ;" and the 
 Civil Law also punished with death sor- 
 cerers and witches. By the English Law, 
 witchcraft was at one time (under 33' 
 Hen. 8, c. 8) a felony without benefit of 
 clergy — a severity continued in the Act 
 1 Jac. 1, c. 13 ; but at the present day 
 under the stats. 9 Geo. 3, c. 5, and 56 
 Geo. 3, c. 138, no prosecution for witch- 
 craft is for the future to be carried on ; 
 but the PRETENSE of witchcraft is made 
 a misdemeanor pilnishable with a year's 
 imprisonment and hard labor. 
 
 WITENAGEMOTE. An assembly of 
 wise men, used distinctively to denote the 
 Parliament of Anglo-Saxon times. 
 See title Parliament. 
 
380 
 
 WITHDBAWING A JUKOR.— WEIT. 
 
 ♦WITHDRAWING A JUROR. The 
 
 ■withdrawal of jurors takes place some- 
 times at the instance of the judge — when 
 it is improper that the case should pro- 
 ceed. This puts an end to the case for 
 the time. ' 
 
 WITHERNAM: See title Capias is 
 Withernam. 
 
 WITHOUT DAT : See title Sine Die. 
 
 WITNESSES. These are a means or 
 instrument of evidence, and are persons 
 who inform the tribunals regarding mat- 
 ters of fact. Generally, all persons are 
 compellable to' give evidence excepting 
 only the sovereign; but witnesses may 
 object to answer particular questions, 
 being chiefly questions which tend to 
 criminate or to expose to penalties or 
 forfeitures, but not (unless where the 
 judge interposes) questions tending to 
 bring the witness into disgrace or ridi- 
 cule, or to render him liable to merely 
 civil proceedings. 
 
 A distinction is taken between the 
 competency and the credibility of wit- 
 nesses, the former determining absolutely 
 the admission or rejection of their evi- 
 dence, the latter going to corroborate or 
 to impugn its truthfulness. At the present 
 day, all objections to witnesses (with one 
 exception) go to the credibility of their 
 testimony and not to their competency, 
 the stats. 14 & 15 Vict. c. 99, and 33 & 
 33 Vict. c. 68, having rendered even the 
 parties to an action of whatever sort com- 
 petent and also compellable to give their 
 testimony. The, one exception referred 
 to is, that in criminal proceedings a 
 husband is not compellable to give evi- 
 dence against his wife, or the wife 
 against her husband, these twain being 
 one flesh. 
 
 However, for various reasons a person 
 may not be competent to take an oath, 
 and therefore may never fall under the 
 category of witness at all, so that neither 
 the question of his competency nor that 
 of Ms credibility may come into ques- 
 tion. Thus, from want of understand- 
 ing, whether innate deficiency (as in the 
 case of idiots) or extreme immaturity (as 
 in the case of children of very tender 
 years), or, semble, atheism, a person is 
 incompetent to take an oath {see title 
 Oath), and is therefore excepted from 
 the class of vdtness, excepting that an 
 atheist may now make a solemn affirma- 
 tion, and a child may on examination on 
 the voir dire (see that title) be found to be 
 conscious of the sanctity of an oath. 
 
 Witnesses. — ( Goniirmed.) 
 
 The principal grounds for suspecting 
 the credibility of a witness (as distin- 
 guished from his competency) are pecu- 
 niary interest, sexual relationship, social 
 connections, self-regarding sentiments, 
 and the feeling of sympathy with others. 
 Usually the method of dealing with 
 witnesses is for the party on whose be- 
 half they are called to examine them in 
 chief, then for the opposite party to cross- 
 examine them, and finally for the chief, 
 examiner to re-examine them. The object 
 of the examination-ln-chief is to obtain 
 facts in support of the case of the plain- 
 tiff; the object of the cross-examination 
 is to impugn or throw discredit upon 
 that first examination ; and the object of 
 the re-examination is to undo the preju- 
 dice which may so have been occasioned 
 in the cross-examination. 
 
 See, also, titles Evidence; Proof 
 PER Testes ; StrBP(ENA|AD Testifi- 
 CANDtrM; Statute of Frauds, 
 &c. 
 
 WRECK. Such goods as after a ship- 
 wreck are cast up by the sea and left 
 there within some county. By. the Com- 
 mon Law all wrecks belonged to the 
 Crown ; but it was usual to seize wrecks 
 to the king's use only when no owner 
 could be found. The Common Law was 
 modified by statute in the reign of Henry 
 I., who granted that if any person escaped 
 alive out of the ship it should be no 
 wreck ; and afterward by the Statute of 
 Westminster the First (3 Edw. 1) c. 4, if 
 a man or dog or cat escaped alive the 
 goods shall be no wreck, but the sheriff 
 shall keep the same (or, if perishable, 
 their value) for a year and a day, in order 
 to restore them to the rightful owner, or 
 his representatives establishing their claim 
 to them. And by the statute 37 Edw. 3, 
 c. 13, if a ship is lost on the shore and 
 the goods come to land, they are to be at 
 once returned to the owners, they paying 
 a reasonable reward for their aahage (see 
 title Salvage). By the stat. 7 & 8 Geo. 
 4, c. 39, plundering any vessel' in distress 
 or wrecked is made felony punishable 
 with death. If for a year and a day no 
 one claims wreck, it still belongs to the 
 king as before. See Hall, Sea Shore; 
 Marvin, Wreck and Salvage. 
 
 See, also, title Flotsam and Jetsam. 
 
 WRIT. This word is from the Saxon 
 writan, to write ; it is translated by breve 
 in the Latin forms. In general a writ is 
 
WRIT OF RIGHT. — YEAR. 
 
 381 
 
 Writ. — ( OontinvM.') 
 the king's precept in writing under seal 
 issuing out of some Court and command- 
 ing something to be done touching a suit 
 or action, or giving commission to have 
 it done. Les Termes de la Ley. 
 
 Writs in civil actions -were either 
 original or judicial. Original writs 
 issued out of the Court of Chancery for 
 summoning a defendant to appear, and 
 were granted before the suit was begun, 
 to begin the same, whence the name; 
 judicial writs issued out of the Court 
 where the original was returned after the 
 suit was begun. The original bore date 
 in the name of the king, the judicial in 
 the name of the judge. Another division 
 of writs was into real, personal and mixed; 
 the real concemiEig the possession of 
 land, and being either writs of entry or 
 writs of right, the personal concerning 
 goods, chattels, and personal injuries, 
 and the mixed partaking of the nature 
 of both. Again, writs concerning the 
 possession of land were either possessory, 
 of a man's own possession, or ancestral, 
 of the seizin and possession of his ances- 
 tor as well. Writs also commonly bore 
 some special name or addition descriptive 
 of their particular purpose, e. g., writ of 
 assistance, of Inquiry, of capias, &c. 
 
 Writs original have been abolished, 
 and all personal actions are now to be 
 commenced by writ of summons (1 & 3 
 Vict. c. 110); also, all the real and mixed 
 writs have been abolished (3 & 4 Vict. 
 c. 17 ; C. L. P. Act, 1860), and ejectment 
 itself even is now commenced by an 
 ordinary writ of summons. For the 
 varieties of the writ of summons, and 
 also for the other varieties of now exist- 
 ing writs, see the respective titles, and, 
 in particular, title Stjmmonb, Wbit of. 
 
 WRIT OF RIGHT. This was a writ 
 which lay for a man who had the right 
 of property against another man who had 
 the right of possession aind was in pos- 
 session under such right. This severance 
 of the two rights arose in three cases 
 chiefly: — 
 
 (1.) Upon discontinuance by tenant in 
 
 tail; ' 
 (3.) After judgment In a possessory 
 
 action; and 
 (3.) After the possessory action was 
 barred by the Statute of Limi- 
 tations. 
 The writ of right properly lay only to 
 recover corporeal hereditaments for an 
 estate in fee simple ; but there were other 
 
 Writ of Right. — {Gonbinued.) 
 writs said 'to be "in the nature of a writ 
 of right " available for the recovery of 
 incorporeal hereditaments or of lands for 
 a less estate than a fee simple. 
 
 In this action, the demandant alleged 
 some seizin of the lands in himself, or 
 else in some one under whom he claimed; 
 and usually the tenant in possession de- 
 nied the demandant's right, which the 
 latter was thereupon required to prove ; 
 and failing such proof, the demandant 
 and his heirs were perpetually barred of 
 his claim, otherwise he recovered the 
 lands against the tensmt and his heirs for 
 ever. There was a limit to the seizin 
 which the demandant might allege ; and 
 such limit was fixed by the Statute of 
 Westminster the First (3 Edw. 1), c. 39, 
 from the time of Richard I. ; and after- 
 ward by the stat. 32 Hen. 8, c. 3, seizin 
 in a writ of right wasto be alleged within 
 sixty years. 
 
 By the stats. 3 & 4 WUl. 4, c. 37, s. 36, 
 and C. L. P. Act, 1860, s. 36, all writs of 
 right and writs in the nature thereof have 
 been abolished. 
 
 WRIT OF RIGHT OF ADVOWSON : 
 
 See title Quarb Impbdit. 
 
 WRIT OF RIGHT OF DOWER: Bee 
 
 title DowBR. 
 
 WRIT OF RIGHT OF WARD: See 
 
 title Infants. 
 
 * WRITER TO THE SIGNET. An 
 
 officer in Scotland nearly corresponding 
 to the attomey-at-law in England and 
 America. 
 
 This officer was anciently a clerk in the 
 office of the secretary of state, and writs 
 were prepared and issued by him. Sub- 
 sequently such clerk acted as agent or 
 attorney before the court of sessions. 
 
 WRITING. This word usually denotes 
 any instrument in the nature of an agree- 
 ment under hand only. 
 
 See title Aqbbbmbnt. 
 
 WRONG : See title Tobt. 
 
 Y. 
 TASD. An inclosed space of ground 
 generally attached to a dwelling-house. 
 
 YEA AND NAT. Yes and No; accord- 
 ing to a charter of Athelstan, the people 
 of Ripon were to be believed in aU actions 
 or suits upon their yea and nay. 
 
 TEAR. The year, as divided by Julius 
 Csesar, consists of twelve months. It 
 
382 
 
 YEAR AND DAY. — ZOLL VEREm. 
 
 Tear. - 
 
 :•) 
 
 appears that in early English times the 
 year began with Christmas Day ; but as 
 from the reign of William I. the year is 
 designated by that of the reign only. 
 Upon the Reformation of Religion the 
 year was made to begin with the 35th of 
 March, being the day of the feast of the 
 Annunciation, but the year of the reign 
 continued to be the common mode of 
 denoting dates until the Commonwealth, 
 when the year of our Lord came into use ; 
 and ultimately, by the 24 Geo. 3, c. 33, 
 it was enacted that the 1st of January 
 next following the last day of December, 
 1751, should be the first day of the year 
 1753, and so on for the first day of every 
 succeediug year; and that the then 3d 
 of September, 1753, should continue to 
 be reckoned as the second, but the next 
 succeeding day (which of right would be 
 the 3d of September, 1753) should be 
 reckoned as the 14th of September, 1753, 
 omitting for that time only the eleven 
 intermediate days. And all writings 
 after the 1st of January, 1753, were to be 
 dated according to the new style. 
 See, also, title Time. 
 
 TEAR AND DAT. This period was 
 fixed for many purposes in law. Thus, 
 in the case of an estrap, if the owner did 
 not claim it within that time, it became 
 the property of the lord. So the owners 
 of wreck must claim it within a year and 
 a day. Death must follow upon wound- 
 ing within a year and a day if the wound- 
 ing is to be indicted as murder. Also, a 
 year and a day was given for prosecuting 
 or avoiding certain legal acts, e. g., fov 
 bringing actions after entry, for making 
 claim for avoiding a fine, &c. 
 
 TEAR, DAT, AND WASTE. It was 
 
 formerly a part of the king's prerogative 
 to take the profits of the lands of felons 
 for a year and a day, and to make waste 
 of the same lands, unless the lord of the 
 felon redeemed the king's waste. But 
 the king was restricted of this right of 
 waste by Magna Charta, 9 Hen. 3, c. 33, 
 and after taking the profits for a year and 
 a day, he was to deliver them over to the 
 lord. This prerogative of the king was 
 abolished altogether by the stat. 54 Geo. 
 3, c. 145, which enacted that no future 
 attainder for felony, except in cases of 
 high treason or murder, should extend to 
 the disinheriting of any heir, or to the 
 prejudice of the right or title of any per- 
 son other than the right or title of the 
 offender himself during his Uf e. 
 
 TEAR-BOOKS. Reports in a regular 
 series from the reign of King Edward II., 
 inclusive, to the time of Henry VHI., said 
 to have been taken by the prothonotaries 
 or chief scribes of the Court at the ex- 
 pense of the Crown ; they were published 
 annually, whence their name. 
 
 TEARS, LEASES FOR: See title 
 
 Leases. 
 
 TEOMAN. A grade of society next 
 in order to that of gentleman (6 Ric. 3, c. 
 4, and 30 Ric. 3, c. 3). The word ety- 
 mologically means a common man, i. e., 
 oommoner. 
 
 Yeoman also designates an officer of 
 the Queen's household, holding a middle 
 place between Serjeant and groom. Also, 
 there are yeomen of the Queen's guard,_ 
 being a body of soldiers first established 
 in the reign of Henry VHI. 
 
 TEW. A tree of which bows were 
 commonly made for warfare ; whence the 
 tree was commonly planted in the church- 
 yards, to insure its protection. 
 
 TIELDING AND FATING. The 
 
 phrase which conunonly expresses the 
 reservation of rent in a deed of lease. 
 
 TULE. A north country word for 
 Christmas. The word is still in common 
 use in Scotland, and is part of the local 
 dialect. 
 
 ZEALOT. This word ' is commonly 
 taken in a bad sense, as denoting a sepa- 
 ratist from the Church of England, or a 
 fanatic. 
 
 ZEALOUS WITNESS. When a wit- 
 ness is over-zealous on behalf of his 
 party, the counsel who calls him ought 
 to interrogate him with an appearance of 
 indifference, to repress the witness's 
 readiness to give evidence, and to prevent 
 him from diminishing the effect or weight 
 of his testimony; and he ought to dis- 
 miss him so soon as he has obtained all 
 the evidence that he wants from him. 
 Of such a witness Quintilian says, — 
 ' ' Nee nimium insta/re interrogationi [debef], 
 ne ad omnia respondendo testis fldem suam 
 rmnuat ; sed in tantum eiioea/re eum, quan- 
 tum sumere ex uno satis sit." Best's Evi- 
 dence, 819. Over-zeal in a witness is 
 clearly a matter affecting his trustworthi- 
 ness. Tayl. Bv. p. 70. 
 
 ZOLLTEREIN. Is the name of the 
 trade-league constituted by twenty-five 
 
ZOLLVEREIN. 
 
 383 
 
 Zollverein. — ( Oontmaed.) 
 
 of the states of the German Empire, until 
 recently of the German Confederation. 
 It comprises the kingdoms of Prussia, 
 Bavaria, Saxony, Hanover, and Wurtem- 
 berg, together with one electorate (Hesse), 
 three grand duchies, seven duchies, seven 
 principalities, one landgraviate, and the 
 city of Frankfort-on-the-Main. These 
 states have agreed upon a general system 
 of law with regard to commerce, the effect 
 
 Zollverein. — {Oontimied.) 
 of which is to override the particular laws 
 of the particular states, excepting where 
 the general law is silent. See the Con- 
 vention with regard to Letters Patent, 
 dated the Slst of September, 1842, and 
 ratified the 29th of June, 1843. (John- 
 son's Patentees' Manual, p. 356.) And 
 see Wheaton's International Law, 70, 
 78 (n.) 
 
APPENDIX. 
 
 A LIST OF LEGAL MAXIMS, WITH TRANSLATIONS. 
 
 A verbis legls non est recedendum: 
 From the words of the law there is to be 
 no departure. 
 
 Accessorium non ducit sed sequitur 
 sumn piincipale : The accessory does not 
 lead its principal, but follows it. 
 
 AccessoriuB sequitur naturam sui prin- 
 cipalis ! An accessory follows the nature 
 of his principal. 
 
 Acta ezteiiora indicant inteiiora se- 
 creta : Outward acts indicate the inward 
 intent. 
 
 Actio personalis moritur cum persona : 
 A personal action dies with the person. 
 
 Actio poenalis in heeredem non datur 
 nisi es damno locupletior haeres factus 
 sit : A penal action is not given against 
 an heir unless on account of damage which 
 has made the heir richer. 
 
 Actor sequitur forum rei: The plain- 
 tifF follows the forum of the thing in con- 
 troversy. 
 
 Actus curiae neminem gravabit: An 
 act of the court shall prejudice no one. 
 
 Actus Dei nemini facit iiquiiam : The 
 act of God wrongs no one. 
 
 Actus legis nemini facit injuiiam ; The 
 act of the law wrongs no one. 
 
 Actus legis nemini est damnosus : The 
 act of the law is prejudicial to no one. 
 
 Actus non facit reum nisi mens sit rea : 
 An act does not make one guilty unless 
 the intention is guilty. 
 
 Ad ea quae frequentius accidunt jura 
 adaptantur : To those things which more 
 frequently happen the laws are adapted. 
 
 Ad quaestionam facti non respondent 
 judicis, ad questionem legis non respond- 
 ent juratores : In respect to a question of 
 fact the judges do not respond, and in 
 respect to a question of law the jury do 
 not respond. 
 
 fidificatum solo, solo cedit: That 
 which is built upon the land goes with the 
 land. 
 
 iEquitus sequitur legem: Equity fol- 
 lows the law. 
 
 .SIstimatio prssteriti delicti ex post 
 facto nunquam crescit: The estimation 
 of a crime committed never increases from 
 a, subsequent occurrence. 
 
 Affirmemti, non neganti, Inoumbit pro- 
 batio : The proof is incumbent upon him 
 who affirms, not on him who denies. 
 
 AUud est celare aliud tacere : To con- 
 ceal, one thing ; to be silent, another. 
 
 Ambig^tas verborum latens verifica- 
 tione suppletur, nam quod ez facto oritur 
 ambiguum verMcatione &icti tollitur ; A 
 latent ambiguity of words may be sup- 
 plied by evidence ; for that ambiguity 
 which arises oat of a fact may be removed 
 by evidence of the fact. 
 
 Ambiguum placitum interpretari debet 
 contra proferentem : An ambiguous plea 
 should be interpreted against the pleader. 
 
 Apices juris non sunt jura : The nice- 
 ties of the law are not the law. 
 
 Aqua currit et debet currere ut cur- 
 rere solebat: Water runs and ought to 
 run as it was accustomed to run. 
 
 Argmnentum ab inconvenient! pluri- 
 mum valet in lege: An argument from 
 what is inconvenient is very strong in law. 
 
 As^gnatus retitur jure aactoris: An 
 appointee is clothed with the power of his 
 principal. 
 
 BenignSB faciundae sunt interpreta- 
 tiones propter simplicitatem laicorum ut 
 res magis valeat quam pereat ; et verba 
 intentioni none contra, debent inservire : 
 
 Liberal interpretations are to be made on 
 account of the ignorance of non-profes- 
 sional persons, so that the sabjectmatter 
 may stand instead of perishing ; and words 
 ought to subserve the intention, not the 
 reverse. 
 
 Bona fides non patitur ut idem bis ex- 
 igatur : Good faith does not allow one to 
 demand payment for the same thing twice. 
 
 Bona fide possessor facit fractus con- 
 sumptos suos : A bona fide possessor makes 
 the profits consumed his own. 
 
 . Boni judicis est ampliare jurisdictionem : 
 It is the part of a good judge to enlarge 
 his jurisdiction. 
 
 Bonus judex secundum aequum et bo- 
 num judicat, et aequitatem stricto juri 
 praefert : A good judge decides according 
 to equity and the right, and prefers equity 
 to strict law. 
 
386 
 
 APPENDIX. 
 
 Casus omissus habetur pro amisao : A 
 
 case omitted is held as lost. 
 
 Caveat emptor qui ignoxare non debuit 
 quod JUS fdienum emit : Let the purchaser 
 beware, who should not be ignorant that 
 he is purchasing another's right. 
 
 Certiun est quod certum reddi potest : 
 That is certain which can be made certain. 
 
 Cessaute causa, cessat efiectus: The 
 cause ceasing, the effect ceases . 
 
 Cessante ratione legis, cessat ipsa lex : 
 The reason of the rule ceasing, the rule 
 itself ceases. 
 
 Charta de non entse non valet: The 
 deed of a thing not in being is not valid. 
 
 Chirographum apnd debitorem reper- 
 tum preesumitur solutum : A bill or bond 
 found in possession of the debtor is pre- 
 sumed to be paid. 
 
 Circuitus est evitandue : Circuity is to 
 be avoided. 
 
 Clausula quae abrogationem ezcludit 
 ab initio non valet : A clause excluding 
 abrogation (of the law) is invalid from the 
 beginning. 
 
 Clausula vel dispositio inutUis per pzse- 
 sumptionem vel causam remotam ez post 
 facto non fulcitor : A useless clause or dis- 
 position is not supported by a presumption 
 or a remote cause arising afterward. 
 
 Clausulee incousuetse semper inducnnt 
 suspicionem : Unusual clauses always 
 excite suspicion. 
 
 Cogitationis poenamnemo patitur: No 
 one sufEers punishment for his thoughts. 
 
 Commodum ex injuria sua non habere 
 debet: No one ought to derive benefit of 
 his own wrong. 
 
 Communis error facet jus : A common 
 error makes or becomes law. 
 
 Conditio illicita habetur pro non ad- 
 jecta : An illegal condition is held as not 
 annexed. 
 
 Confirmat usum qui tollit abusum : He 
 confirms a use who removes an abuse. 
 
 Consensus facit matrimonium : Consent 
 constitutes matrimony. 
 
 Consensus non concubitus, facit nuptias 
 vel matrimonium: Consent, not cohabita- 
 tion, constitutes nuptials or marriage. 
 
 Consensus tollit errorem ; Consent ob- 
 viates an error. 
 
 Constructio legis non facit injuriam : The 
 construction of a la w does not work a wrong. 
 
 Consuetude ex certa causa rationabUi 
 usitata privat conununem legem : A cus- 
 tom observed from a certain reasonable 
 cause supersedes the common law. 
 
 Consuetude loci est observanda : The 
 custom of the place is to be observed. 
 
 Contemporanea expositio est optima et 
 fortisaima in lege: A contemporaneous 
 exposition is the best and strongest in law. 
 
 Contra non valentem agere nulla cunit 
 preescriptio : No prescription runs against 
 a pereon unable to act. 
 
 Contractus ex turpi causa contra bonos 
 mores nullus est : A contract with a base 
 consideration or against good morals is null. 
 
 Copulatio verborum indlcat accepta- 
 tiouem in eodem sensu : The coupling of 
 words together indicates their acceptance 
 in the same sense. 
 
 Corpus humanum non recipit sestima- 
 tionem : A human body is not susceptible 
 of valuation. 
 
 Crimina morte estinguuntur : Crimes 
 are extinguished by death. 
 
 Oui licet quod majus non debet quod 
 minus est non licere : He who is permit- 
 ted to do the greater act ought not to be 
 debarred from doing the less act. 
 
 Cuicunque aliqui quid concedit conce- 
 dere videtur et id sine quo res ipsa esse 
 non potuit: Whoever grants any thing 
 is supposed to grant also that without 
 which the grant itself would be of no 
 effect. 
 
 Cuilibet in arte sua credendum est: 
 Every one is to be believed in his own art. 
 
 Cuique licet juri pro se introducto re- 
 nunciare : Every one may renounce a law 
 introduced for his benefit. 
 
 Ci^uB est commodum ^us debet esse in- 
 commodum: He who has the benefit 
 should also have the disadvantage. 
 
 Cujus est dare eg'us est disponere : He 
 who gives may make the disposition of the 
 gift. 
 
 Cujus est solum egus est usque ad coe- 
 lum : He who owns the soil owns it to the 
 sky. 
 
 Culpa lata dolo aequiparatur : Gross 
 negligence is equivalent to fraud. 
 
 Culpa tenet sues auctores : Negligence 
 binds its own authors. 
 
 Cursus curise est lex curiae : The prac- 
 tice of the court is the law of the court. 
 
 Dans et retinens nihil dat: Giving and 
 keeping gives nothing. 
 
 De fide et ofScio judicis non reclpitur 
 quaestio sed de scientia sive sit error juris 
 sive facti : The good faith and sense of 
 right of a judge is not to be questioned, 
 but his decisions may be questioned for 
 error, either of law or of fact. 
 
 De minimis non curat lex: The law 
 does not notice trifies. 
 
 De non apparentibus et non existentibus, 
 eadem est ratio : The law is the same 
 concerning things which do not appear and 
 those which do not exist. 
 
 Debitor non preesumitur donare: A 
 debtor is not presumed to make a gift. 
 
 Debitum et contractus sunt nullius loci : 
 Debt and contract are of no particular place. 
 
 Delegata potestas non potest delegare : 
 A delegated power cannot be again dele- 
 gated. 
 
 Delegatus non potest delegare : A dele- 
 gate or deputy cannot delegate or appoint. 
 
APPENBIX. 
 
 387 
 
 Deus solus heeredem faoere potest, non 
 homo : Qoi alone, and not man, can make 
 an heir. 
 
 Dies dominicus non est juridicus : Sun- 
 day is not a judicial day. 
 
 Dies incceptus pro complete habetur: 
 A day begun is held complete. 
 
 Dies incertus pro conditione habetur: 
 A day uncertain is held as a condition. 
 
 Dolus auctoris non nooet successori: 
 The fraud of a predecessor does not pre- 
 j udice a successor. 
 
 Dolus circuitu non purgatur ; Fraud is 
 not purged by circuity. 
 
 Dominium non potest esse in pendenti : 
 Eight of property cannot be in abeyance. 
 
 Dominus aliquando non potest alienare : 
 The owner cannot alienate more than once. 
 
 Domus sua cuique est tutissim.um. refu- 
 gium ! Every man's house is his castle. 
 
 Dona clandestina sunt semper suspici- 
 osa : Clandestine gifts are always sus- 
 picious. 
 
 Donatio non prsesumitur : A gift is not 
 presumed. 
 
 Dormiunt aliquando leges, nunquam 
 moritur : The laws sometimes sleep, but 
 never die. 
 
 Doti lex favet : The law favors dower. 
 
 Ejna est periculum c^jus est dominum— 
 aut conunodum : He has the risk who has 
 the property or advantage. 
 
 Ex antecedentibus et consequentibus fit 
 optima interpretatio : The best interpre- 
 tation is from antecedents and conse- 
 quents, 
 
 Ex. dolo malo non oritur actio : A right 
 of action does not arise out of fraud. 
 
 Ex facto oritur jus : The law arises out 
 of the fact. 
 
 Ex maleficio non oritur contractus : A 
 contract does not arise out of an evil deed. 
 
 Ex multitudine signorum colligitur 
 identitas vera: From a multitude of 
 signs true identity is ascertained. 
 
 Ex nudo pacto non oritur actio : No 
 action arises from a naked agreement. 
 
 Ex turpi causa non oritur actio: No 
 action arises from an illegal agreement. 
 
 Exceptio falsi est omnium iHtima : A 
 false plea is the last of all. 
 
 Exceptio probat regulam in casibus non 
 exceptis : The exception proves the rule 
 in cases not excepted. 
 
 Exceptio quee firmat legem exponit 
 legem : An exception which affirms the law 
 expounds the law. 
 
 Excusat aut extenuat delictum in capi- 
 talibus quod non operatur idem in civili- 
 bus : That excuses or extenuates a wrong 
 in capital cases which does not operate the 
 same in civil cases. 
 
 Executio juris non habet injuziam: 
 The execution of the law does not pro- 
 duce wrong. 
 
 Expressio eonun quae tacite insunt 
 nihil operatur : The expression of things 
 which are tacitly implied effects nothing. 
 
 Expressio unius est exclusio alterius: 
 The expression of one is the exclusion of 
 another. 
 
 Expressum facit cessare taciturn : That 
 which is expressed puts an end to that 
 which is silent. 
 
 Falsa demonstratio non nooet: A false 
 description does no harm. 
 
 Falsus in uno, falsus in omnibus : False 
 in one, false in all. 
 
 Fiat justitia, ruat ocelum: Let justice 
 be done though the heavens fall. 
 
 Fictio legis inique operatur alieni dam- 
 num vel iiquriam: A fiction of law is 
 wrongful if it works loss or injury to any 
 one. 
 
 Fortior et potentior est dispositio legis 
 quamhominis: Stronger and more effect- 
 ive is the disposition of the law than of 
 man. 
 
 Fraus latet in generEdibos: Fraud is 
 hidden in generalities. 
 
 Frustra petis quod mox es restiturus: 
 In vain do you seek what you will soon 
 have to restore. 
 
 Frustra probatur quod probatum non 
 relevat: In vain is that proved which, 
 when proved, does not relieve. 
 
 Furiosus solo furore punitur: The fu- 
 rious is punished by fury alone. 
 
 Generalibus specialia derogant : 
 
 cials derogate from generals. 
 
 Spe- 
 
 The 
 
 Heereditas nunquam ascendit: 
 inheritance never ascends. 
 
 Haeres est eadem persona cum anteces- 
 sore : The heir is the same person with 
 the ancestor. 
 
 Hseres hseredis mei est meus haeres : 
 The heir of my heir is my heir. 
 
 Haeres legitimus est quern nuptiae de- 
 monstrant: Ho is the lawful heir whom 
 the marriage demonstrates. 
 
 Idem est non esse et non apparere : It 
 is the same thing not to be and not to ap- 
 pear. 
 
 Ignorantia eorum quae quis scire ten- 
 etur non excusat: Ignorance of those 
 things which any one is bound to know 
 does not excuse. 
 
 Ignorantia fact! excusat ; ignorantia 
 juris non excusat: Ignorance of fact ex- 
 cuses ; ignorance of law does not excuse. 
 
 Impotentia excusat legem : Impossi- 
 bility is an excuse in law. 
 
 In aequali jure melior est conditio pos- 
 sidentis : When there are equal rights 
 the condition of the possessor is better. 
 
 In alternativis electio est debitoris: 
 In alternatives the debtor has the election. 
 
388 
 
 APPENDIX. 
 
 In Claris non est locus coi^jectiuis : In 
 clear cases there is no place for conjecture 
 
 In contractibus tacite insunt qiiss sunt 
 mens et consuetudinis : In contracts those 
 things are tacitly implied which are of 
 custom and usage. 
 
 lu criminalibus sufficit generalia malitia 
 intentionis cum facto paris gradus: In 
 criminal cases a general badness of inten- 
 tion is sufficient -with a deed of equal 
 grade. 
 
 In diqjunctivis sufficit alteram partem 
 esse veram : In disjunctives it is sufficient 
 for either part to be true. 
 
 In dubio pars mitior est sequanda: In 
 doubt the better part is to be pursued. 
 
 In dubio pro dote, libertate, innocentla, 
 possessore, debitore, reo, respondendum 
 est: In doubt the response is to be in 
 favor of dower, of liberty, of innocence, 
 of the possessor, of the debtor, of the de- 
 fendant. 
 
 In dubio sequendum quod tutius est : In 
 doubt, that which is safer is to be followed. 
 
 In favorabilibus annus incceptus pro 
 complete habetur : In things favored the 
 year begun is held as completed. 
 
 In fictioue juris semper sequitas existit : 
 Equity always exists in a fiction of law. 
 
 In jure non remota causa sed prozima 
 spectator ; In law, not the remote cause, 
 but the proximate cause, is to be looked at. 
 
 In pari delicto, potior est conditio pos- 
 sidentis : In equal wrong, the condition of 
 the possessor more powerful. 
 
 In propria causa nemo judex : No one 
 can be a judge in his own case. 
 
 Incommodum non solvit argumentum: 
 An inconvenience does not dissolve an ar- 
 gument. 
 
 Index animi sermo : Speech is the index 
 of the mind. 
 
 Interest reipublicse ut sit finis litium: 
 It is for the good of the commonwealth that 
 there should be a limit to litigation. 
 
 Judicis est jus dicere non dare : It is 
 for the judge to declare the law, not to 
 enact it. 
 
 Judicium a non sue judice datum nul- 
 lius est momenti : A judgment pronounced 
 by one not a judge is of no moment: 
 
 Jura eodem mode destituuntur quo con- 
 stitutmtur: Laws are abrogated in the 
 same manner as constituted. 
 
 Jus ex injuria non oritur : A right does 
 not arise from a wrong. 
 
 Jus in re inhaeret ossibus usufructuarii : 
 A right in a thing cleaves to the person of 
 the usufructuary. 
 
 Jus non patitur ut idem bis solvatur : 
 The law does not permit the same debt to 
 be paid twice. 
 
 Jua publicum privatorum pactis mutari 
 non potest : The public law cannot be 
 changed by private agreements. 
 
 Jus respicit sequitatem: The law re- 
 spects equity. 
 
 Jus superveniens auctori accrescit suc- 
 cessori : A right belonging to one accrues 
 to his successor. 
 
 Iiegatum generis perit haeredi ; legatum 
 specie! perit ligatario: A family legacy 
 perishes with the heir ; "■ specific legacy 
 perishes with the legatee. 
 
 Leges posteriores priores contrsaias ab- 
 rogant : Posterior laws abrogate prior con- 
 trary laws. 
 
 Iiex neminem cogit ad vana inutilia aut 
 impossibilia: The law forces no one to do 
 vain, useless or impossible things. 
 
 Iiez plus laudatur quando ratione pro- 
 batur : The law is more praised when it 
 is approved by reason. 
 
 Iiex semper dabit remedium : The law 
 always gives a remedy. 
 
 Iiex spectat naturae ordinem : The law 
 looks at the order of nature. 
 
 Iiinea recta semper preefertur trans- 
 versali: The right line is always pre- 
 ferred to the transverse. 
 
 Majori inest minus : The less is in the 
 greater. 
 
 M^us dignum trahit ad se minus dig- 
 num : The more worthy draws to itself 
 the leas worthy. 
 
 Mala grammatica non vitiat chartam : 
 Bad grammar does not vitiate a deed. 
 
 Maledicta expositio quae corrumpit 
 textum : It is a base construction which 
 corrupts the text. 
 
 Malitia supplet eetatem: Malice sup- 
 plies age. 
 
 Malus usus est abolendus : A bad use 
 is to be abolished. 
 
 Matrimonia debent esse libera: Mar- 
 riages ought to be free. 
 
 Melior est conditio possidentis: The 
 condition of the possessor is the better. 
 
 Misera est servitus ubi jus est vagum 
 aut incertum: It is miserable slavery 
 when the law is vague or uncertain. 
 
 Mobilia non habet situm : Moveables 
 have no situs. 
 
 Modus et conventio vincunt legem: 
 The agreement and its form overrule the 
 law. 
 
 Modus legem dat donation! : The man- 
 ner gives legality to a donation. 
 
 Mvdta in jure communi contra rationem 
 disputandi pro commimi utilitate intro- 
 ducta sunt : Many things have been intro- 
 duced into the common law for the sake of 
 common utility, which are contrary to 
 sound reason. 
 
 Multa non vetat lex quae tamen tacite 
 damnavlt: The law fails to forbid many 
 things which nevertheless it silently con- 
 demns. 
 
APPENDIX. 
 
 389 
 
 Multitudo impetitonuu perdit ouxiam: 
 
 A muUltade of ignorant practitioneTs de- 
 stroys a court. 
 
 Necessitas inducit privilegium quoad 
 jura privata : Necessity induces privileges 
 as to private rights. 
 
 Necessitas publica major est quam pri- 
 vata: Public necessity is greater than 
 private. 
 
 Necessitas quodoogit defendit: Neces- 
 sity defends what it compels. 
 
 Nemo cogi potest prsecise adfactum sed 
 in id tantum quod interesse : No one can 
 be forced positively to any act but such as 
 is to his interest. 
 
 Nemo debet ex alien4jactur4 lucrari: 
 No one ought to gain by another's loss. 
 
 Nemo debet bis puniii pro uno delicto : 
 No one ought to be punished twice for one 
 offense. 
 
 Nemo debet bis vexari pro un4 et 
 eadem causa: No one ought to be vexed 
 twice for one and the same cause. 
 
 Nemo debet esse judex in proprii caus4 : 
 No one ought to be judge in his own cause. 
 
 Nemo est haeres viventis : No one is an 
 heir to one living. 
 
 Nemo potest plus juris ad alium trsms- 
 ferre quam ipse habet ; No one can trans- 
 fer to another a greater right than he him- 
 self has. 
 
 Nemo ex suo delicto meliorem suam 
 conditionem facere potest: No one out 
 of his own wrong can make his condition 
 better. 
 
 Nemo mori potest pro parte testatus, 
 pro parte intestatus : No one can die tes- 
 tate in part and intestate in part. 
 
 Nemo praesumitur donare; No one is 
 presumed to give. 
 
 Nemo praesumitur malus: No one is 
 presumed bad. 
 
 Nemo prsesumitor ludere in extremis : 
 No one is presumed to trifle at the point of 
 death. 
 
 Nemo tenetur jurare in suam turpitudi' 
 nem : No one is bound to testify to his 
 own turpitude. 
 
 Nihil quod est inconveniens est licitum : 
 Nothing which is inconvenient is lawful. 
 
 Nihil tam conveniens est natural! aequi- 
 tati quam unumquodque dissolvi eo liga- 
 mine quo ligatum est : Nothing is so con- 
 sonant with natural equity as that each 
 thing should be loosed by the band which 
 bound it. 
 
 Nimia subtilitas in jure reprobatur, et 
 talis certitude certitudinem cooftmdit: 
 Too great subtlety in law is reprehensible, 
 for such nicety confounds certainty. 
 
 Non accipi debent verba in demonstra- 
 tionem falsam quae competunt is limita- 
 tionem veram : Words ought not to be 
 accepted as a false description which are 
 competent for a true limitation. 
 
 Non deberetaliinocere, quod inter alios 
 actum esset : Any one ought not to be in- 
 jured by what occurs between others. 
 
 Non exemplis, sed legibus judicandum: 
 Not by examples, but by laws, is it to be 
 decided. 
 
 Non onme damnum inducit ii^juriam: 
 Not every loss produces an injury (or cause 
 of action). 
 
 Non potest adduci exceptio eg'usdem rei 
 oi^us petitur dissolutio : There cannot be 
 brought forward a plea of the same mat- 
 ter whose dissolution is sought. 
 
 Non potest adduci rex gratiam facere 
 cum injuria et damno aliorum : The king 
 cannot be induced to grant a favor with the 
 injury and loss of others. 
 
 Noscitur a sociis : He is known by his 
 associates. 
 
 Nova constitutio faturis formam impo- 
 nere debet non prsetertis : A new enact- 
 ment ought t<^ impose form on what is to 
 come, not on what is past. 
 
 Novatio non praesumitur : A change is 
 not presumed. 
 
 Novum judiciimi non dat novum jus, 
 sed declarat antiquum: A new decision 
 does not make a new law, but declares the 
 old. 
 
 Nulla pactionl efficl potest ut dolus 
 praestitur; By no agreement can it be 
 effected that fraud be not called to account. 
 
 Nullum tempus occuixit regi : No time 
 runs against the king. 
 
 Nullus commodum capere potest de in- 
 juria sua proprio : No one shall take ad- 
 vantage of his own wrong. 
 
 Nunquam concluditur in falso : There 
 is never a concluding in case of false- 
 hood. 
 
 Nunquam praescribitur in falao: There 
 is never a prescription in case of false- 
 hood. 
 
 0£Scium nemini debet esse damnosum: 
 An office ought to be injurious to no one. 
 
 Omne majus continet in se minus; 
 Every greater contains in itself the less. 
 
 Omne crimen ebrietas et incendit et 
 detegit ; Drunkenness inflames and reveals 
 every crime. 
 
 Omnia prassumuntur contra spoliatorem ; 
 All things are presumed against a wrong- 
 doer. 
 
 Omnia praesumuntur rite et solenniter 
 esse acta donee probetur in contrarimn : 
 All things are presumed regularly and for- 
 mally until the contrary is proved. 
 
 Omnia quae jure conbrahuntur contrailo 
 jure pereunt: All obligations contracted 
 under one law are annulled by a contrary 
 law. 
 
 Omnis Innovatio plus novltate pertur- 
 bat quam utilitate prodest : Every inno- 
 vation disturbs more by its novelty than it 
 benefits by its utility. 
 
390 
 
 APPENDIX. 
 
 Omnis ratihabitio retro trahitur et man- 
 dato priori aequiparatur: Every ratifica- 
 tion is retroactive and is equivalent to a 
 prior command. 
 
 Optima est lex quae minimnm relinquit 
 arbitrio judicis, optimus jndex qui mini- 
 mum sibi: That is the best la^v which 
 leaves least to the discretion of the judge ; 
 he is the best judge who leaves least to 
 himself. 
 
 Optimus interpres legum consuetudo : 
 The best interpreter of the law is usage. 
 
 Optimus interpres rerum usus : The 
 best interpreter of affairs is use. 
 
 Pacta privata juri publico derogare 
 non possunt: Private contracts cannot 
 derogate from the public law. 
 
 Partus sequitur ventrem : The offspring 
 follows the condition of its mother. (As 
 in the case of slaves and animals.] 
 
 Pater est quem nuptiee,demonstrant : 
 The father is whom the marriage points 
 out. 
 
 Patrem sequitur sua proles : The off- 
 spring follow the condition of the father. 
 
 Peccata contra natura sunt gravissima : 
 Offenses against nature are heaviest. 
 
 Pendente lite nihil inuovandum : Dur- 
 ing a litigation nothing should be changed. 
 
 Feiiculum rei venditee, nondum traditae 
 est emptoiis : The risk of a thing sold, 
 although not delivered, is the purchaser's 
 risk. 
 
 Plus valet quod agitur quam quod sim- 
 ulate concipitur : That which is done is 
 much stronger than that which is falsely 
 conceived. 
 
 Plus valet unus oculatus testis, quam 
 auriti deoem: One eye-witness is better 
 than ten ear-witnesses. 
 
 Pcena ad paucos, metus ad omues : Pun- 
 ishment to few, fear to all. 
 
 Ponderantur testes, non numerantur: 
 Witnesses are weighed, not counted. 
 
 Posteriora derogant prioiibua: Poste- 
 rior things derogate from things prior. 
 
 Potior est conditio possidentis: The 
 condition of the possessor is better. 
 
 Potior est conditio defendentis : The 
 condition of the defendant is better. 
 
 Praesentia corporis tollit errorem nom- 
 inis ; et Veritas nominis tollit errorem de- 
 monstrationis : The presence of the body 
 cures an error in the name ; and the truth of 
 the name cures an error in the description. 
 
 Frsesumptio violenta plena probatio : A 
 violent presumption is full proof. 
 
 Prior tempore, potior jure: Prior in 
 time, better in law. 
 
 Privatum incommodum publico bono 
 peusatur : Private inconvenience is com- 
 pensated by the public good. 
 
 PrivilegiUm contra rempublicam non 
 valet : A privilege does not avail against 
 the commonwealth. 
 
 Probatis extremis prsesumuntur media : 
 
 Extremes being proved, the mediums are 
 presumed. 
 
 Pro possessore habetur qui dolo desiit 
 possidere : He is held a possessor who has 
 been dispossessed by fraud. 
 
 Protectio trahit su1:aectionem et subjec- 
 tio protectionem : Protection involves 
 subjection, and subjection protection. 
 
 Provisio hominis tollit provisionem 
 legis : The provision of man does away 
 with the provision of the law. 
 
 Quae non valesmt singula jimcta juvant : 
 Things which do not, avail singly when 
 united are effective. 
 
 Quae libet conoessio fortissime contra 
 donatorem interpretanda est : Every grant 
 is to be taken most strongly against the 
 grantor. ' 
 
 Quae temporalia ad agendum sunt per- 
 petua ad excipiendum : Things which are 
 temporary as to their performance may be 
 perpetual as to their consequences. 
 
 Quando aliquid mandatur, mandatur et 
 omne per quod pervenitur ad illud: 
 When any thing is commanded, all else is 
 commanded by which it can be accom- 
 plished. 
 
 Quando aliquid prohibetur, prohibetur 
 et omne per quod devenitur ad illud : 
 When any thing is prohibited, all else is 
 prohibited by which it might be effected. 
 
 Quando jus domini regis et subditi con- 
 currunt jus regis preferri debet: When 
 the right of the sovereign and of the sub- 
 ject concur, the right of the sovereign 
 ought to be preferred. 
 
 Quando plus fit quam fieri debet vide- 
 tur etiam illud fieri quod faciendum est : 
 When more is done than ought to be done 
 that also will be taken to be done which 
 should be done. 
 
 Quando res non valet ut ago valeat 
 quantum valere potest : When a thing is 
 not effective as I do it, it shall be as effect- 
 ive as it can be. 
 
 Qui approbat non reprobat: He who 
 approves does not reprove. 
 
 Qui cum alio contrahit, vel est, vel 
 debet esse conditionis ejus non ignarus : 
 He who contracts with another either is 
 not ignorant, or ought not to be, " of his 
 condition. 
 
 Qui ex damnato coitu nascuntur inter 
 liberos non computentur: They who are 
 born of illicit intercourse are not to be 
 counted among the children. 
 
 Qui haeret in liter4 haeret in cortice: 
 He who adheres to the letter adheres to 
 the bark. 
 
 Qui in utero est pro jam nato habetur, 
 quoties de ^uso ommodo quaeritur : He who 
 is in the womb is considered as born when- 
 ever his advantage is concerned. 
 
APPENDIX. 
 
 391 
 
 Qui jussu judiois aliquod fecerit non 
 videtur dolo malo fecisse quia parere ne- 
 
 oesse est: He who does any thing by 
 command of a judge will not be deemed 
 to do it fraudulently, because it is neces- 
 sary to obey. 
 
 Qui non habet in eere luat in corpora ; 
 He who has not (satisfaction) in money 
 must expiate in his body. 
 
 Qui facit per sdium facit per ge: He 
 who does a thing through another does it 
 for himself. 
 
 Qui providet sibi providet hseredibug : 
 He who provides for himself provides for 
 his heirs. 
 
 Qui rationem in omnibus quserunt ra- 
 tionem subvertunt : He who asks a rea- 
 son for every thing subverts reason. 
 
 Qui sentit commodum sentire debet et 
 onus : He who experiences the benefit 
 ought also to know the burden. 
 
 Qui sentit onus sentire debet et commo- 
 dum : He who knows the burden ought 
 also to know the advantage. 
 
 Qui suum recepit, licet a non suo debit- 
 ore, non tenet restituere : He who re- 
 ceives his own, even from one not his 
 debtor, is not bound to restore. 
 
 Qui tacet consentire videtur : He who 
 is silent is deemed to consent. 
 
 Quicquid acquiritur servo acquiritur 
 domino :. Whatever is acquired by the ser- 
 vant is acquired for the master. 
 
 Quicquid plantatur solo solo credit: 
 Whatever is set in the soil belongs to the 
 soil. 
 
 Quilibet potest renunciare juri pro se 
 introducto ; Any one can renounce a law 
 introduced for himself. 
 
 Quisquis est rei sues moderator et arbi- 
 ter : Whoever is ruler of his own things 
 is also arbiter. 
 
 Quod ab initio non valet in tractu tem- 
 poris non convalescit : What is not valid 
 in the beginning is not rendered so by 
 lapse of time. 
 
 Quod fieri non debet factum valet: 
 What ought not to be done when done is 
 valid. 
 
 Quod fieri debet facile praesumitur: 
 What ought to be done is easily pre- 
 sumed. 
 
 Quod inesse debet inesse praesumitur: 
 What ought to be included is presumed to 
 be included. 
 
 Qaod non apparet non est : What does 
 not appear does not exist. 
 
 Quod non habet piincipiom non habet 
 finem : What has no beginning has no end. 
 * Quod nullius est, est domini regis : That 
 which is nobody's belongs to our lord the 
 king. 
 
 Quod nullius est id ratioue naturali oc- 
 cupanticonceditur: That which is nobody's 
 by natural reason belongs to the occupant. 
 
 Quod nullius est fit domini regis : 
 
 Quod remedlo destitutur ipsa re valet 
 si culpa absit : What is without a remedy 
 is by that fact itself valid if there be no 
 fault. 
 
 Quod sub carta forma concessum vel 
 reservatum est non trahitur ad valorem 
 vel compensationem : That which is 
 granted or reserved under a certain form 
 is not to be drawn into valuation or com- 
 pensation. 
 
 Quotias in verbis nulla est ambiguitas 
 ibi nulla exposito contra verba fienda est : 
 When there is no ambiguity in words there 
 is to be made no explanation contrary to 
 the words. 
 
 Ratio legis est anima legis : The reason 
 of the law is the soul of the law. 
 
 Reipublicae interest voluntates defunct- 
 orum effectum sartiri : It is for the wel- 
 fare of the commonwealth that wills of 
 dead men should have effect. 
 
 Res inter alios acta alteri nocere non 
 debet: A thing done between parties 
 ought not to do injury to another. 
 
 Res judicata pro varitata accipitur : A 
 thing adjudged is accepted as truth. 
 
 Resoluto jure dantia resolvitur jus ac- 
 cipientis : The right of the grantor being 
 extinguished, the right of the acceptor is 
 extinguished. 
 
 Respondeat superior : Let the superior 
 or principal respond. 
 
 Rex non potest peccare : The king can 
 do no wrong. 
 
 Rex nunquam moritur; The king 
 never dies. 
 
 Salus populi suprama lax : The welfare 
 of the people is the supreme law. 
 
 Scire at scire debere aequiparantur in 
 jure : To know and to be bound to know 
 are equivalent in law. 
 
 Scribere est agere : To write is to act. 
 
 Sic utere tuo ut alienum non Isedas : So 
 use your own as not to injure another. 
 
 Simplex commendatio non obligat : A 
 simple recommendation does not bind. 
 
 Spoliatus ante omnia rastituendus : He 
 who has been despoiled before all things 
 should be restored. 
 
 Stabit preesumptio donee probetur in 
 contrarium : A presumption stands until 
 the contrary is proved. 
 
 Summum jus summa injuria : The height 
 of law is the height of wrong. 
 
 Tenor est qui legem dat feudo : The 
 tenor of a feudal grant is what regulates 
 it. 
 
 Testimonia ponderanda sunt, non nu- 
 meranda : Proofs are to be weighed, not 
 numbered. 
 
 Transit terra cum onare: The land 
 passes with its burden. 
 
392 
 
 APPENDIX. 
 
 XTbi eadem est ratio eadem est lex : 
 Where there is the same reason there is 
 the same law. 
 
 X7bi jus, ibi remedlum : Where there is 
 a right, there is a remedy. 
 
 Utile per inutile non vitlatnr ; The use- 
 ful is not vitiated by the useless. 
 
 Vanl timores justa escusatio non est: 
 A frivolous fear is not a legal excuse. 
 
 Verba ohartarum fortius accipiuntur 
 contra proferentem : The words of deeds 
 are to be taken more strongly against the 
 one offering them. 
 
 Verba generalia restrlnguntur ad habil- 
 itatem rei vel personee ; General words 
 ore to be restricted to the nature of the 
 thing or person. 
 
 Verba illata inesse videntur : Words 
 referred to are to be deemed incorpo- 
 rated. 
 
 Via tiita via tuta : The beaten road is 
 the safe way. 
 
 Vicarius non habet vicarium : A deputy 
 cannot have a deputy. 
 
 VigilantibuB non dormientibus jura sub- 
 veniunt ; Laws subserve the vigilant, not 
 the dormant. 
 
 Volenti non fit injuria: He who con- 
 sents does not receive an injury. 
 
 Voluntas est ambulatoria usque ad 
 mortem: A wiU is ambulatory until 
 death. 
 
 Voluntas reputatur pro facto : The will 
 is taken for the deed. 
 
ABBEETIATIOKS 
 
 USED IN 
 
 REFERENCES TO AMERICAN LAW REPORTS. 
 
 (For List of Reports cited, either by name of State or Beporter, see post pp. S99, MO). 
 
 Ab. Adm. 
 
 Ab. Pr. 
 
 Ab. Pr., N. S. 
 
 Addis. 
 
 Aik. 
 
 A. E. Mar. 
 
 Ala. 
 
 Ala. SeL Ca. 
 
 Alb. Law Jour. 
 
 Alden. 
 
 Allen. 
 
 Am. Jur. 
 
 Am. Law Mag. 
 
 Am. Law Beg. 
 
 Am. Law. Bev. 
 
 Am. Law Times. 
 
 Am. Bep. 
 
 Anth. N. P. 
 
 Ark. 
 
 Ashm. 
 
 Bail. 
 
 BaU. Ch. or Eq. 
 
 Bald. 
 
 Bank. Beg. 
 
 Barb. Ch. 
 
 Barb., or Barb. S. C. 
 
 Bay. 
 
 Bee. 
 
 Ben. D. C. 
 
 Burnett, 
 
 Bibb. 
 
 Binn. 
 
 Biss. 
 
 Blaokf. 
 
 Black. 
 
 Bland. 
 
 Bl. & H. 
 
 BL Pr. Ca. 
 Blatohf. C. 0. 
 B. Monr. 
 Bost, Law Bep. 
 Bosw. 
 Bradf. 
 Brayt 
 Brev. 
 
 Abbott's Beports, XT. S., So. Dist. of N. Y., 1, 1847-50. 
 
 Abbott's Practice Reports, N. T., 19, 1854-65. 
 
 Abbott's Practice Reports, New Series, N. T., 16, 1866-76. 
 
 Addison's Beports, Pennsylvania, 1, 1791-99. 
 
 Aiken's Reports, Vermont, 3, 1826-27. 
 
 A. K. Marshall's Beports, Kentucky, 3, 1817-21. 
 
 Alabama Reports, New Series, 49, 1840-75. 
 
 Shephard's Select Cases of Alabama, 1, 1861-63. 
 
 Albany Law Journal, 12, 1870-75. 
 
 Alden's Condensed Reports, Pennsylvania, 3, 1754-1814. 
 
 Allen's Beports, Massachusetts, 14, 1861-67. 
 
 American Jurist, Boston. 
 
 American Law Magazine. 
 
 American Law Begister, Philadelphia. 
 
 American Law Beview, Boston. 
 
 American Law Times and Beports, Washington. 
 
 The American Beports, Decisions of State Cts., 14, 1870-74. 
 
 Anthon's Nisi Prius Reports, N. Y., 1, 1808-18. 
 
 Arkansas Beports, 28, 1837-75. 
 
 Ashmead's Beports, Pennsylvania, 2, 1808-41. 
 
 Bailey's Law Beports, South Carolina, 2, 1828-32. 
 
 Bailey's Chancery Beports, South Carolina, 1, 1830-31. 
 
 Baldwin's Beports, U. S., 3d Circ, 1. 1828-33. 
 
 Bankrupt Begister, N. Y. 
 
 Barbour's Chancery Reports, N. T., 3, 1845-48. 
 
 Barbour's Reports, Supreme Court, N. Y., 65, 1847-78. 
 
 Bay's Reports, South Carolina, 2, 1783-1804. 
 
 Beasley's Chancery Reports, New Jersey, 2, 1859-62. 
 
 Bee's Reports, TJ. S., Dist. of S. C, 1, 1792-1805. 
 
 Benedict's Reports, U. S., Dist. of N. Y., 2, 1865-68. 
 
 Burnett's Reports, Wisconsin, 1, 1842. 
 
 Bibb's Reports, Kentucky, 4, 1808-17. 
 
 Binney's Beports, Pennsylvania, 6, 1799-1814. 
 
 Bissel's TJ. S., 7th Circ. Reports, 2, 1851-71. 
 
 Blackford's Reports, Indiana, 8, 1817-47. 
 
 Black's Reports, U. S. Sup. Ct., 2, 1861-62. 
 
 Bland's Chancery Reports, Maryland, 3, 1811-32. 
 
 Blatohford & Howland's Reports, U. S., So. Dist, N. T., 2, 
 
 1827—37 
 Blatchford's Prize Cases, U. S., Dist. of N. Y., 1, 1861-66. 
 Blatchford's Reports, TJ. S. 2d Cir. Ct., 11, 1845-75. 
 Ben. Monroe's Reports, Kentucky, 18, 1840-58. 
 Law Reporter, Boston. 
 
 Bosworth's Reports, Superior Court, N. Y., 10, 1856-64. 
 Bradford's Surrogate Reports, N. T., 4, 1849-57. 
 Brayton's Reports, Vermont, 1, 1815-19. 
 Brevard's Reports, South Carolina, 3, 1793-1804. 
 
394 
 
 ABBREVIATIONS USEB IN REFERENCES 
 
 Brews. 
 Bright N. P. 
 Brock. * 
 
 Browne, Pa. 
 Busb. 
 Busb. Bq. 
 Bash. 
 
 Caine's Gas. 
 
 Caine's Rep. 
 
 Call. 
 
 Cal. 
 
 Car. L. Repos. 
 
 Chand. 
 
 Chev. 
 
 Chev. Ck. or Eq. 
 
 N. Chip. 
 
 D. Chip. 
 
 City H. Reo. 
 
 Clarke Oh. 
 
 Clif. 
 
 Cold. 
 
 Col. Cas. 
 
 Col. & 0. Cas. 
 
 Conf. 
 
 Conn. 
 
 Const. S. 0. 
 
 Const., N. S., S. C. 
 
 Cooke, Tenn. 
 
 Cow. 
 
 Coxe, N. J. 
 
 Crabbe. 
 
 Cranoh. 
 
 Cranch 0. 0. 
 
 Curt. 0. 0. 
 
 Cush. 
 
 Dall. 
 
 Daly. 
 
 Dana. 
 
 Davies. 
 
 Day. 
 
 Denio. 
 
 Des. 
 
 Dev. 
 
 DeT. Eq. 
 
 Dev. Ct. of CI. 
 
 Dev. & Bat. 
 
 Dev. & Bat. Eq. 
 
 Dill. 
 
 Disn. 
 
 Doug., Mich. 
 
 Dud., O-a. 
 
 Dud., S. 0. 
 
 Dud. Oh. or Eq. 
 
 Duer. 
 
 Dutch. 
 
 Duv. 
 
 Brewster's Equity Reports, Pennsylvania, 1856. 
 Brightley's Nisi Prius Reports, Pennsylvania, 1, 1809-51. 
 Brockenbrough's Reports of Marshall's Decisions, U. S., 4th 
 
 dire, 2, 1802-33. 
 Browne's Reports, Pennsylvania, 6, 1806-14. 
 Busbee's Law Reports, North Carolina, 1, 1852-53. 
 Busbee's Equity Reports, North Carolina, 1, 1852-53. 
 Bush's Reports, Kentucky, 9, 1866-73. 
 
 Caine's Oases, N. T., 2, 1804-05. 
 
 Caine's Reports, N. T., 3, 1803-05. 
 
 Call's Reports, Virginia, 6, 1797-1825. 
 
 California Reports, 49, 1850-75. 
 
 Carolina Law Repository, North Carolina, 2, 1813-16. 
 
 Chandler's Reports, Wisconsin, 4, 1849-52. 
 
 Cheve's Law Reports, South Carolina, 1, 1839-40. 
 
 Cheve's Chancery Reports, South Carolina, 1, 1839-40. 
 
 N. Chipman's Reports, Vermont, 1, 1789-91. 
 
 D. Chipman's Reports, Vermont, 2, 1789-1825. 
 
 Roger's City HaU Recorder, N. Y., 6, 1816-21. 
 
 Clarke's Chancery Reports, N. T., 1, 1839-41. 
 
 Clifford's Reports, U. S., 1st Oirc, 2, 1858-67. 
 
 Ooldwell's Reports, Tennessee, 6, 1860-69. 
 
 Coleman's Cases, N. Y., 1, 1793-1800. 
 
 Coleman & Caine's Oases, N. Y., 1, 1794-1805. 
 
 Cameron and Norwood's Conference Reports, North Carolina, 
 
 2, 1800-04. 
 Connecticut Reports, 40, 1814-75. 
 Treadway's Reports, South Carolina, 2, 1810-16. 
 Mill's Reports, South Carolina, 1. 1817-18. 
 Cooke's Reports, Tennessee, 1. 1811-14. 
 Cowen's Reports, N. Y., 9, 1823-28. 
 Coxe's Reports, New Jersey, 1, 1790-95. 
 Orabbe's Reports, U. S., Bast. Dist. of Pa., 1, 1836-46. 
 Cranch's Reports, U. S. Sup. Ct., 9, 1800-15. 
 Oranch's Reports, U. S., Dist. of Columbia, 6, 1801-42. 
 Curtis' Reports, U. 8., 1st Oirc, 2, 1851-56. 
 Oushing's Reports, Massachusetts, 12, 1848-63. 
 
 Dallas' Reports, U. S. Sup. Ot. and Pennsylvania, 4, 1754-1806. 
 
 Daly's Reports, Common Pleas, N. Y., .1859. 
 
 Dana's Reports, Kentucky, 9, 1833-40. 
 
 Davies' Reports, U. S., Dist. Maine, 1, 1839-49. 
 
 Day's Reports, Connecticut, 5, 1802-13. 
 
 Denio's Reports, N. Y., 5, 1845-48. 
 
 Desaussure's Chancery Reports, South Carolina, 4, 1785-1813. 
 
 Devereux's Law Reports. North Carolina, 4, 1826-34. 
 
 Devereux's Equity Reports, North OaroUna, 2, 1828-34. 
 
 Devereux's Reports, U. S. Court of Claims, 1, 1856. 
 
 Devereux and Battle's Law Reports, N. Carolina, 4, 1834-39. 
 
 Devereux and Battle's Equity Reports, N. Carolina, 2, 1834r-40. 
 
 Dillon's Reports, U. S., 8th Giro., 2, 1871-73. 
 
 Disney's Reports, Superior Court of Cincinnati, 2, 1854-60. 
 
 Douglas' Reports, Michigan, 2, 1843-47. 
 
 Dudley's Reports, Georgia, 1, 1821-43. 
 
 Dudley's Law Reports, South Carolina, 1, 1837-38. 
 
 Dudley's Chancery Reports, South Carolina, 1, 1837-38. 
 
 Duer's Reports, Superior Court, N. Y., 6, 1852-56. 
 
 Dutcher's Reports, New Jersey, 5, 1855-63. 
 
 Duvall's Reports, Kentucky, 2, 1864-66. 
 
 Edw. Oh. 
 
 Edwards' Char'-»'-'f Rfinorts. N. Y.. 4, 1831-50. 
 
TO AMERICAN LAW REPORTS. 
 
 395 
 
 Pla. Florida Reports, 13, 1846-73. 
 
 Ksh. Fisher's Patent Cases. 
 
 Freem., Miss. Freeman's Chancery Reports, Mississippi, 1, 1839-43. 
 
 G-all. Galhson's Reports, U. S., 1st Circ, G, 1812-15. 
 
 G-a. Deois. Georgia Decisions, 1, 1842-43. 
 
 Ga. or Gteo. Georgia Reports, 45, 1846-74. 
 
 &ilmer. Gilmer's Reports, Virginia, 1, 1820-21. 
 
 Gil. & J. Gill and Johnson's Reports, Maryland, 12 1829-43. 
 
 Gill. Gill's Reports, Maryland, 9, 1843-51. 
 
 Gilp. Gilpin's Reports, U. S., Eastern Dist. of Pa., 1, 182&-36. 
 
 Grant Gas. Grant's Cases, Pennsylvania, 3, 1852-63. 
 
 Grat. Grattan's Reports, Virginia, 23, 1844-73 . 
 
 Gray. Gray's Reports, Massachusetts, 16, 1854r-60. 
 
 Greene, Iowa. Greene's Reports, Iowa, 4, 1847-52. 
 
 Green, N. J. Green's Law Reports, N. J., 3, 1831-36. 
 
 Green Ch. Green's Chancery Reports, New Jersey, 3, 1838-46. 
 
 0. B. Green Ch. C. B. Green's Chancery Reports, New Jersey, 24, 1866-74 
 
 Hall. Hall's Reports, Superior Court, N. Y., 2, 1828-29. 
 
 Halst. Halsted's Law Reports, New Jersey, 7, 1821-31 . 
 
 Heist Oh. Halsted's Chancery, New Jersey, 4, 1845-52. 
 
 Handy. Handy's Reports, Superior Court of Cincinnati, 2, 1854-56. 
 
 Hardin. Hardin's Reports, Kentucky, 1, 1805-08. 
 
 Harring., Del. Harrington's Reports, Delaware, 5, 1832-58. 
 
 Harp. Harper's Law Reports, South Carolina, 1, 1823-24. 
 
 Harp. Oh. or Bq. Harper's Chancery Reports, South Carolina, 1, 1824. 
 
 Harring., Mich. Harrington's Chancery Reports, Michigan, 1, 1838-42. 
 
 Har. & G. Harris and Gill's Reports, Maryland, 2, 1826-29. 
 
 Har & J. Harris and Johnson's Reports, Maryland, 7, 1800-26. 
 
 Har. & MoH. Harris and MoHenry's Reports, Maryland, 4, 1700-99. 
 
 Harrison. Harrison's Reports, New Jersey, 4, 1837-42. 
 
 Hawks. Hawks' Reports; North CaroUna, 4, 1820-26. 
 
 Hayw., N. 0. Haywood's Reports, North Carohna, 3, 1789-1806. 
 
 Hayw., Tenn. Haywood's Reports, Tennessee, 3, 1816-1818. 
 
 Head. Head's Reports, Tennessee, 3, 1859-60. 
 
 Heisk. Heiskell's Reports, Tennessee, 5, 1870-73. 
 
 Hemp. Hempstead's U. S., 9th Circ, and Dist. of Ark., 1, 1820-56. 
 
 Hen. & M. Hening and Mumford's Reports, Virginia, 4, 1806-09. 
 
 Hill, N. T. HUl's Reports, N. T., 7, 1841-45. 
 
 Hill, S. 0. Hill's Law Reports, South Carolina, 3, 1833-37. 
 
 Hill's Oh. or Eq. Hill's Chancery Reports, South Carolina, 3, 1833-36. 
 
 HUl & Den. Lalor's Supplement to Hill and Denio's Reports, N. Y., L 
 
 1842^4. 
 
 Hilt. Hilton's Reports, Common Pleas, N. Y., 2, 1855-60. 
 
 Hoffm. Hoffman's Chancery Reports, N. Y., 1, 1839-40. 
 
 Houst. Houston's Reports, Delaware, 1, 1856-58. 
 
 Hopk. Ch. Hopkins' Chancery Reports, N. Y., 1, 1823-26. 
 
 How. Ap. Gas. Howard's Appeal Cases, N. Y., 1, 1847-48. 
 
 How. Pr. Howard's Practice Reports, N. Y., 46, 1844-75. 
 
 How. U. S. Howard's Reports U. S. Sup. Ct., 24, 1843-60. 
 
 Hughes, Ky. Hughes' Reports, Kentucky, 1, 1785-1801. 
 
 Humph. Humphrey's Reports, Tennessee, 11, 1839-51. 
 
 Ida. Idaho Reports, 2, 1866-74. 
 
 m. Illinois Reports, 63, 1819-74. 
 
 Ind. Indiana Reports, 46, 1848-74. 
 
 Ins. Mon. Insurance Monitor, N. Y. 
 
 Int. Rev. Rec. Internal Revenue Record, N. Y. 
 
 Iowa. Iowa Reports, 35, 1855-74. 
 
 Ired. Iredell's Law Reports, North Carolina, 13, 1840-53. 
 
 Ired. Bq. Iredell's Equity Reports, North Carolina, 8, 1840-52, 
 
396 
 
 ABBKEVIATIONS USED IN EEFERENCES 
 
 J. 7. Mar. 
 Jeff. 
 
 Johns. Oh. 
 Johns. Oas. 
 Johns. Rep. 
 Jones, N. 0. 
 Jones Eq. 
 J. &S. 
 
 Xan. St. 
 Keyes. 
 Kirby. 
 Ky. Dee. 
 
 La. 
 
 La. An. 
 
 Lane. 
 
 Leigh. 
 
 Litt. 
 
 Lock. Bev. Gas. 
 
 Maine. 
 
 Mar., L. 
 
 Mart., N, S., La. 
 
 Mart., N. 0. 
 
 Mart. & Y. 
 
 Mason. 
 
 Mar., or A. K. Mar. 
 
 Mar. (J. J.) 
 
 Marsh. Dec. 
 
 Mass. 
 
 MoAl. 
 
 MoC. 
 
 McO. Oh. 
 
 McOart. 
 
 McLean. 
 
 McMul. 
 
 McMul. Oh. or Eq. 
 
 Md. 
 
 Md. Ch. 
 
 Met., Ky. 
 
 Met. 
 
 Meigs. 
 
 Mich. 
 
 Miles. 
 
 Mill. 
 
 Minn. 
 
 Min. 
 
 Miss. 
 
 Mo. 
 
 Mon. or T. B. Mon. 
 
 Mon. or B. Mon. 
 
 Morris, Iowa. 
 
 Munf. 
 
 Murph. 
 
 N. 0. 
 
 N. C. Term R. 
 
 N. H. 
 
 N. & McC. 
 
 N. T. 
 
 N. Y. Oode Rep. 
 
 J.. J. Marshall's Reports, Ky., 7, 1829-32. 
 
 Jefferson's Reports, Virginia, 1, 1730-1840. 
 
 Johnson's Chancery Reports, N. Y., 7, 1814-23. 
 
 Johnson's Cases, N. Y., 3, 1789-1803. 
 
 Johnson's Reports, N. Y., 20, 1806-23. . 
 
 Jones' Law Reports, North Carolina, 8, 1853-62. 
 
 Jones' Equity Reports, North Carolina, 5, 1853-60. 
 
 Jones and Spencer's Reports, Supreme Ct., N. Y., 5, 1871-75. 
 
 Kansas State Reports, 12, 1862-73. 
 Keyes' Reports, Court of Appeals, N. Y., 4, 1863-68. 
 Kirby's Reports, Connecticut, 1, 1785-88. 
 Kentucky Decisions, Sneed, 1, 1801-05. 
 
 Louisiana Reports, 19, 1830-41. 
 
 Louisiana Annual Reports, 25, 1846-73. 
 
 Lansing's Reports, Supreme Court, N. Y., 7, 1869-73. 
 
 Leigh's Reports, Virginia, 12, 1829-41. 
 
 Littell's Reports, Kentucky. 6, 1822-24. 
 
 Lockwood's Reversed Cases, N. Y., 1, 1799-1847. 
 
 Maine Reports, 63, 1820-75. 
 
 Martin's Reports, Louisiana, 12, 1809-23. 
 
 Martin's Reports, New Series, Louisiana, 8, 1823-30. 
 
 Martin's Reports, North Carolina, 2, 1790-96. 
 
 Martin and Yerger's Reports, Tennessee, 1, 1825-28. 
 
 Mason's Reports, U. S., 1st Circuit, 5, 1816-30. 
 
 A. K. Marshall's Reports, Kentucky, 3, 1817-21. 
 
 J. J. Marshall's Reports, Kentucky, 7, 1829-32. 
 
 Broekenbrough's Reports of Marshall's Decisions, 2, 1802-23. 
 
 Massachusetts Reports, 115, 1804-75. 
 
 McAllister's Reports, U. S., Dist. of Cal., 1, 1855-59. 
 
 McCord's Law Reports, South Carolina, 4, 1820-28. 
 
 McOord's Chancery Reports, South CaroUna, 2, 1825-27. 
 
 McCarter's Chancery Reports, New Jersey, 2, 1862-66. 
 
 McLean's Reports, TJ. S., 7th Circ, 6, 1829-54. 
 
 McMuUen's Law Reports, South Carolina, 2, 1835-42. 
 
 McMullen's Chancery Reports, South OaroUna, 1, 1840-42. 
 
 Maryland Reports, 39, 1851-75. 
 
 Maryland Chancery Reports, 4, 1347-54. 
 
 MetcaUe's Reports, Kentucky, 4, 1859-63. 
 
 Metcalf s Reports, Massachusetts, 13, 1840-47. 
 
 Meigs' Reports, Tennessee, 1, 1838-39. 
 
 Michigan Reports, 24, 1847-73. 
 
 Miles' Reports, Pennsylvania, 2, 1835-40. 
 
 Mills' Reports, South Carolina, 1, 1811-17. 
 
 Minnesota Reports, 19, 1851-73. 
 
 Minor's Reports, Alabama, 1, 1820-26. 
 
 Mississippi Reports, 49, 1818-74. 
 
 Missouri Reports, 55, 1821-74. 
 
 Ben. Monroe's Reports, Kentucky, 18, 1840-58. 
 
 Ben. Monroe's Reports, Kentucky, 18, 1840-58. 
 
 Morris' Reports, Iowa, 1, 1889-45. 
 
 Munford's Reports, Virginia, 6, 1810-20. 
 
 Murphey's Reports, North Carolina, 3, 1804r-19. 
 
 North CaroUna Reports, 70, 1790-1874. 
 
 North CaroUna Term Reports, 2, 1816-18. 
 
 New Hampshire Reports, 53. 1816-74. 
 
 Nott and McCord's Reports, South Carolina, 2, 1817-20. 
 
 New York Court of Appeals Reports, 56, 1847-74. 
 
 New York Code Reporter, 3, 1848-51. 
 
TO AMERICAN LAW REPORTS. 
 
 397 
 
 N. T. Code Reps. 
 
 Neb. 
 
 Nev. 
 
 Newb. 
 
 Nott & H. 
 
 Ohio St. or 0. St. 
 Ohio or 0. 
 Olcott. 
 Oreg. 
 
 Pa. or Perm. 
 
 Pa. St. 
 
 Paine. 
 
 Par. Bq. Cas. 
 
 Park. Or. 
 
 Paige. 
 
 Pat. & H. 
 
 Peck. 
 
 Penning. 
 
 Pet. 
 
 Pet. Adm. 
 
 Pet. C. C. 
 
 Philad. 
 
 Phil. N. 0. 
 
 Phil. Eq. 
 
 Pick. 
 
 Port. 
 
 Pr. Dec. 
 
 Quincy. 
 
 Rand. 
 
 Rawle. 
 
 Redf. 
 
 R. I. 
 
 Rice. 
 
 Rice Ch. or Eq. 
 
 Rich. 
 
 Rich. Ch. or Bq. 
 
 Ril. 
 
 Ril. Ch. or Bq. 
 
 R. M. Charl. 
 
 Rob., La. 
 
 Rob., N. T. 
 
 Rob., Ta. 
 
 Rog. Rec. 
 
 Root. 
 
 Sawyer. 
 
 S. &R. 
 
 Sme. & — . Ch. 
 
 Smith, Ind. 
 
 E. D. Smith.. 
 
 Sandf. 
 
 Sandf. Ch. 
 
 Saxt. 
 
 Sneed. 
 
 South. 
 
 Speers. 
 
 New York Code Reports, 2, 1850-55. 
 
 Nebraska Reports, 3, 1870-74. 
 
 Nevada Reports, 9, 1865-73. 
 
 Newberry's Admiralty Reports, U. S., various districts, 1, 
 
 1842-57. 
 Nott and Huntington's Reports, U. S. Court of Claims, 8, 
 
 1863-74. 
 
 Ohio State Reports, 24, 1852-74. 
 
 Ohio Reports, 20, 1821-51. 
 
 Olcott's Reports, U. S., So. List, of N. Y., 1, 1843-50. 
 
 Oregon Reports, 3, 1853-72. 
 
 Penrose and Watts' Pennsylvania Reports, 3, 1829-32. 
 
 Pennsylvania State Renorts, 75, 1845-74. 
 
 Paine's Reports, U. S.,'2d Circuit, 2, 1810-40. 
 
 Parsons' Select Equity Cases, Pennsylvania, 1, 1850. 
 
 Parker's Criminal Reports. N. Y., 6, 1839-68. 
 
 Paige's Chancery Reports,' N. Y., 11, 1828-45. 
 
 Patton and Heath's Reports, Virginia, 2, 1855-56. 
 
 Peck's Reports, Tennessee, 1, 1822-24. 
 
 Pennington's Reports, New Jersey, 1, 1806-13. 
 
 Peters' Reports, U. S. Sup. Ct., 16, 1827-42. 
 
 Peters' Admiralty Decisions, U.S., District of Pa., 1, 1792-1807. 
 
 Peters' Reports, U. S., 3d Circuit, 1, 1803-18. 
 
 Philadelphia Reports, Common Pleas, 4, 1850-61. 
 
 Phillips' Law Reports, North Carolina, 2, 1866-69. 
 
 Phillips' Equity Reports, North Carolina, 1, 1866-68 
 
 Pickering's Reports, Massachusetts, 24, 1822^0. 
 
 Porter's Reports, Alabama, 9, 1834^39. 
 
 Kentucky (Printed) Decisions, Sneed, 1, 1801-05. 
 
 Quincy's Reports, Massachusetts, 1, 17647-71. 
 
 Randolph's Reports, Virginia, 6, 1821-28. 
 Rawle's Reports, Pennsylvania, 5, 1823-28. 
 Redfield's Surrogate Reports, N. Y.. 1, 1857-63. 
 Rhode Island Reports, 8, 1835-68. 
 Rice's Law Reports, South Carolina, 1, 1838-39. 
 Rice's Chancery Reports, South Carolina, 1, 1836-37. 
 Richardson's Law Reports, South Carolina, 15, 1844-68. 
 Richardson's Equity Reports, South Carolina, 14, 1844-68. 
 Riley's Law Reports, South Carolina, 1, 1836-37. 
 Riley's Chancery Reports, South Carolina, 1, 1836-37. 
 R. M. Charlton's Reports, Georgia, 1, 1811-37. 
 Robinson's Reports, Louisiana, 16, 1841^9. 
 Robertson's Reports, Superior Court, N. Y., 7, 1863-68. 
 Robinson's Reports, Virginia, 2, 1842-44. 
 Roger's City Hall Recorder, N. Y., 6, 1816-21. 
 Root's Reports, Connecticut, 2, 1789-98. 
 
 Sawyer's Reports, U. S. 9th Circuit, 2, 1870-74. 
 Sergeant and Rawle's Reports, Pennsylvania, 17, 1814-28. 
 Smedes and Marshall's Chancery Reports, Miss., 1, 1840-53. 
 Smith's Reports, Indiana, 1, 1848-50. 
 E. D. Smith's Reports, Common Pleas, N. Y., 4, 1850-54. 
 Sandford's Reports, Superior Court, N. Y., 5, 1847-52. 
 Sandford's Chancery Reports, N. Y., 4, 1843-47. 
 Saxton's Chancery Reports, New Jersey, 1, 1830-32. 
 Sneed's Reports, Tennessee, 5, 1853-57. 
 Southard's Reports, New Jersey, 2, 1816-20. 
 Speers' Law Reports, South CaroUna, 2, 1843-44. 
 
398 
 
 ABBREVIATIONS USED IN AMERICAN LAW REPORTS. 
 
 Speers Oil. or Eq. 
 
 Spencer. 
 
 Sprague. 
 
 Stew. 
 
 Stew & P. 
 
 Stockt. 
 
 Story. 
 
 Strob. 
 
 Strob. Ch. or Bq. 
 
 Sumner. 
 
 Swan, Tenn. 
 
 T. U. P. Charl. 
 
 Tap. 
 
 TayL 
 
 Tex. 
 
 Thacb. Cr. Oa. 
 
 Tread. 
 
 Tenn. 
 
 Tuck. 
 
 Tyl. 
 
 U. S; Stat. 
 
 Va. Gas. 
 Tan Ness. 
 Vroom. 
 Vt. 
 
 Wal. 
 
 Wal. C. 0. 
 
 Wal. Jr. 
 
 Walk., Mich. 
 
 Ware. 
 
 Wash. 0. 0. 
 
 Wash. Ter. 
 
 Wash., Va. 
 
 Watts. 
 
 Watts & S. 
 
 Wend. 
 
 West. Jur. 
 
 West. Law Jour. 
 
 West. Law Mon. 
 
 Wheel. Cr. Gas. 
 
 Whart., Pa. 
 
 Wheat. 
 
 Wise. 
 
 Winst. 
 
 Winst. Bq. 
 
 Woodb. & M. 
 
 Wright. 
 
 W. Va. 
 
 Wythe. 
 
 Yates SeL Gas. 
 Teates. 
 ■ Terg. 
 Zab. 
 
 Speers' Chancery Reports, South Carolina, 1, 1842-44. 
 Spencer's Reports, New Jersey, 1, 1842-45. 
 Sprague's Admiralty Decisions, U. S., District of Massachu- 
 setts, 2, 1841-64. 
 Stewart's Reports, Alabama, 3, 1827-31. 
 Stewart and Porter's Reports, Alabama, 5, 1831-34. 
 Stockton's Chancery Reports, New Jersey, 3, 1852-59. 
 Story's Reports, IT. S., 1st Circuit, 3, 1839^5. 
 Strobhart's Law Reports, South Carolina, 5, 1843-50. 
 Strobhart's Chancery Reports, South Carolina, 4, 1846-50, 
 Sumner's Reports, U. S., 1st Circuit, 3, 1830-39. 
 Swan's Reports, Tennessee, 2, 1851-53. 
 
 T. TJ. P. Charlton's Reports, Georgia, 1, 1805-1810. 
 
 Tappan's Reports, Ohio, 1, 1816-19. 
 
 Taylor's Reports, North Carolina, 2, 1799-1802. 
 
 Texas Reports, 37, 1846-73. 
 
 Thacher's Criminal Cases, Massachusetts, 1, 1823-43. 
 
 Treadway's Reports, South Carolina, 12, 1810-16. 
 
 Overton's Reports, Tennessee, 2, 1792-1815. 
 
 Tucker's Surrogate Reports, N. Y., 1, 1864-69. 
 
 Tyler's Reports, Vermont, 2, 1801-03. 
 
 United States Statutes at Large. 
 
 Virginia Cases, 2, 1789-1826. 
 
 Van Ness' Prize Cases, U. S., Dist. of N. T., 1, 1814. 
 Vroom's Reports, New Jersey, 7, 1863-74. 
 Vermont Reports, 45, 1826-73. 
 
 Wallace's Reports, U. S. Supreme Court, 19, 1863-73. 
 
 Wallace's Reports, U. S., 3d Circuit, 1, 1801. 
 
 Wallace, Jr.'s Reports, U. S., 3d Circuit, 3, 1842-62. 
 
 Walker's Chancery Reports, Michigan, 1, 1842-1846. 
 
 Ware's Reports, U. S., Dist. of Maine, 1, 1822-55. 
 
 Washington's Reports, 3d Circuit, 4, 1803-27. 
 
 Washington Territory Reports, see p. 108, 1, 1854^64. 
 
 Washington's Reports, Virginia, 3, 1790-96. 
 
 Watt's Reports, Pennsylvania, 10, 1832-40. 
 
 Watts and Sargeant's Reports, Pennsylvania, 9, 1841- 45. 
 
 Wendell's Reports, N. T., 26, 1828-41. 
 
 Western Jurist, Des Moines, Iowa. 
 
 Western Law Journal, Cincinnati, Ohio. 
 
 Western Law Monthly, Cleveland, Ohio. 
 
 Wheeler's Criminal Oases, N. T., 3, 1776-1824. 
 
 Wharton's Reports, Pennsylvania, 6, 1835-41. 
 
 Wheaton's Reports, U. S., Supreme Courts, 12, 1816-27. 
 
 Wisconsin Reports, 39, 1853-74. 
 
 Winston's Law Reports, North CaroUna, 1, 1853-64. 
 
 Winston's Equity Reports, North CaroUna, 1, 1863-64. 
 
 Woodbury and Minot's Reports, U. S., 1st Circuit, 3, 1845-47. 
 
 Wright's Nisi Prius Reports, Ohio, 1, 1831-34. 
 
 West Virginia Reports. 
 
 Wythe's Chancery Reports, Virginia, 1, 1788-99. 
 
 Tates' Select Cases, N. Y., 1, 1811. 
 Yeates' Reports, Pennsylvania, 4, 1791-1808. 
 Yerger's Reports, Tennessee, 10, 1832-37. 
 Zabriskie's Reports, New Jersey, 4, 1847-55. 
 
A LIST OF AMERICAN REPORTERS. 
 
 (Sometimes oited by name of Beporter and sometimes by name of State.) 
 
 REFOBTER OITED. 
 
 Adams. 
 Ames. 
 
 Angell, or Ang. 
 Appleton, orApp. 
 Aroher, or Arcn. 
 
 Banks. 
 
 Bagley & Harmon. 
 
 Barber, or Barb. 
 
 Barr. 
 
 Black. 
 
 Bleckley, or Bleck. 
 
 Booraem, or Boor. 
 
 Branch. 
 
 Breese. 
 
 Brewer. 
 
 Browne. 
 
 Burnett, or Bnm. 
 
 Burnett, or Bum. 
 
 Carter, or Cart. 
 
 Casey. 
 
 Chandler, or Ghand. 
 
 Clarke. 
 
 Cobb. 
 
 Cocke. 
 
 Comstock, or Corns. 
 
 Conover, or Con. 
 
 Cooley. 
 
 Critchfield, or Cr. 
 
 Cummins, or Cunun. 
 
 Curry, or Our. 
 
 Cushman, or Cush. 
 
 Banner, or Dann. 
 
 Day. 
 
 Durfee, or Durf. 
 
 English, or Bng. 
 
 Fairfield, or Pair. 
 
 E'ogg. 
 
 Poster, or Pos. 
 
 Preeman, or Free. 
 
 Galbraith, or Q-alb. 
 Galbraith & Meek. 
 G-eorge, or Oreo. 
 Q-ibb. 
 
 Maine, 41-42. 
 
 E. I. 4-r. 
 
 R. I. 1. 
 Maine, 19-20. 
 Florida, 2. 
 
 Kan. St. 1-4. 
 Cal. 16-19. 
 Ark. 14-24. 
 Pa. St. 1-10. 
 Ind. 30. 
 Geo. 34-35. 
 Cal. 6-8. 
 Florida, 1. 
 
 ni. 1. 
 
 Md. 19-26. 
 Mass. 97-109. 
 Cal. 1. 
 Mo. 16-21. 
 
 Ind. 1-2. 
 Penn. St. 25-36. 
 N. H. 38-44. 
 Iowa, 1-8. 
 Geo. 6-20. 
 Ala. N. S. 16-18. 
 N. T. 1-4. 
 Wise. 15-23. 
 Mich. 5-12. 
 0. St. 5-18. 
 Idaho, 1. 
 La. 6-19. 
 Miss. 23-29. 
 
 Ala. N. S. 42. 
 Conn. 1-21. 
 R. I. 2. 
 
 Ark. 6-13. 
 
 Maine, 10-12. 
 N. H. 32-37. 
 N. H. 21-31. 
 HI. 31-46. 
 
 Fla. 9-11. 
 Fla. 12. 
 Miss. 30-39. 
 Mich. 2-4. 
 
 REPORTER OITED. 
 
 Gillman, or Gill. 
 Glenn. 
 
 Greenleaf, or GreenL 
 Griswold, or Gris. 
 
 Hadley, or Had. 
 
 Hale. 
 
 Hammond, or Ham. 
 
 Hammond, or Ham. 
 
 Hand. 
 
 Hagans, or Hag. 
 
 Harmon, or Har. 
 
 Hartley, or Hart. 
 
 Harris, or Harr. 
 
 Harrison, or Harr. 
 
 Hawkins, or Hawk. 
 
 Heath. 
 
 Helm. 
 
 Hepburn, or Hepb. 
 
 Hillyer. 
 
 Hogue. 
 
 Howard, or How. 
 
 Hooker, or Hook. 
 
 Hubbard, or Hubb. 
 
 STATE. 
 
 111. 6-10; 
 La. An. 16-18. 
 Maine, 1-9. 
 Ohio, 14-19. 
 
 N. H. 45-47. 
 Cal. 33-37. 
 Ohio, 1-9. 
 0*0. 36-38. 
 N. Y. 40-45. 
 W. Va. 1-2. 
 Cal. 13-15. 
 Tex. 4-21. 
 Pa. St. 13-24. 
 Ind. 15-17, 23-29. 
 La. An. 19-20. 
 Maine, 36-40. 
 Nev. 2. 
 Cal. 2-4. 
 Cal. 20-22. 
 Fla. 3-6. 
 Miss. 2-8. 
 Conn. 25-34. 
 Maine, 45-61. 
 
 Jennison, or Jenn. MicL 14^18. 
 Jones. Penn. St. 11-12. 
 
 Jones. Mo. 22-30. 
 
 Jones, Barclay & Whit- 
 tlesey, or J. B. & W. Mo. 31. 
 
 Kelley. 
 
 Kelly & Cobb. 
 
 Kernan, or Kern. 
 
 Kerr. 
 
 King. 
 
 Knowles, or Kn. 
 
 Lawrence, or Lawr. 
 
 Lee. 
 
 Lester, or Lest. 
 
 Lester & Butler, or L. 
 
 & B. 
 Lewis, or Lew. 
 Ludden, or Ludd. 
 
 McCook, or McC. 
 Manning, or Mann. 
 Martin, or Mar. 
 
 Geo. 1-3. 
 Geo.. 4-5. 
 N. T. 11-14. 
 Ind. 18-22. 
 La. An. 5-6. 
 R. I. 3. 
 
 Ohio, 20. 
 Cal. 9-12. 
 Geo. 31-32. 
 
 Geo. 33. 
 Nev. 1. 
 Maine, 43-44. 
 
 0. St. 1. 
 Mich. 1. 
 Geo. 21-.30. 
 
400 
 
 A LIST OF AMERICAN REPORTERS. 
 
 REPORTER OITSD. 
 
 STATE. 
 
 Magruder, or Mag. Md. 1-2. 
 
 Meddaugn, or Med. Mich. 13. 
 
 Miller, or Mill. La. 1-5. 
 
 Miller, or Mill. Md. 3-18. 
 Moore & Walker, or M. 
 
 & W. Tex. 22-24. 
 
 Morris, or Morr. Cal. 5. 
 
 Officer, or Off. 
 Ogden, or Ogd. 
 Ormond, or Orm. 
 Overton, or Ov. 
 
 Papy. 
 
 Paschal, or Pasch. 
 
 Peck. 
 
 Phillips, or Phill. 
 
 Pike. 
 
 Porter, or Port. 
 
 Post. 
 
 Minn. 1-9. 
 La. An. 12-15. 
 Ala. N. S. 12-15. 
 Tenn. 
 
 Fla. 6-8. 
 ( Tex. 25 Sup. 
 \ Tex. 28-31. 
 
 m. 11-30. 
 
 N. C. 63. 
 
 Ark. 1-5. 
 
 Ind. 3-7. 
 
 Mo. 42. 
 
 Randolph, or Rand. La. An. 7-11. 
 Redington, or Red. Maine, 31-35. 
 Reynolds, or Rey. Miss. 40-41. 
 
 Robards & Jackson, or 
 
 R. & J. Tex. 26-27. 
 
 Robinson, or Rob. La. An. 1-4. 
 
 Selden, or Seld. 
 Scammon, or Scam. 
 Shaw. 
 
 Shepard, or Shep. 
 
 N. Y. 5-10. 
 
 m. 2-5. 
 
 Vt. 30-35. 
 5 Ala. N. S. 19-21 
 \ and 25-41. 
 
 REPORTER OITED. 
 
 Shepley, or Shep. \ 
 
 Smedes & Marshall, or 
 
 S. &M. 
 Smith. 
 Smith. 
 Smith. 
 Sneed. 
 
 Spencer, or Spen. 
 Spooner, or Spoon. 
 Stanton, or Stan. 
 Stiles. 
 Stockett, or Stock. 
 
 Tanner, or Tann. 
 Tiffany, or Tiff. 
 Tuttle, or Tutt. 
 
 Veazey, or Veaz. 
 Virgin, or Virg. 
 
 Walker, or Walk. ■ 
 Walker, or Walk. 
 Warden, or Ward. 
 Watson, or Wat. 
 Webb & Duval, or 
 
 W. &D. 
 Whittlesey, or Whitt. 
 Wilcox, or Wil. 
 Williams, or Will. 
 Wilson, or Wil. 
 Withrow, or With. 
 Wright, or Wr. 
 
 STATE. 
 
 Maine, 13 -18 and 
 21-30. 
 
 Miss. 9-22. 
 Penn. St. 51. 
 N. T. 15-27. 
 Wise. 1-11. 
 Ky. or Pr. Decis. 
 Minn. 10-14. 
 Wise. 12-15. 
 Ohio, 11-13. 
 Iowa, 22-37. 
 Md. 27-31. 
 
 Ind. 8-14. 
 N. T. 28-39. 
 Cal. 23-32. 
 
 Vt. 36-44. 
 Maine, 52-60. 
 
 Miss. 1. 
 Tex. 25. 
 0. St. 2-4. 
 Conn. 22-24. 
 
 Tex. 1-3. 
 Mo. 32-41. 
 Ohio, 10. 
 Vt 27-29. 
 Oregon, 1-2. 
 Iowa, 9-21. 
 Penn. St 37-50. 
 
ABREYIATIOS'S 
 
 USED IN 
 
 REFERENCES TO ENGLISH, SCOTCH, IRISH LAW BOOKS, 
 
 AND 
 
 ANCIENT LAW BOOKS. 
 
 A. (o) B. (6) 
 
 A. An. Anon. 
 
 A. B. 
 
 A.P.B.Ashurst, MSS. 
 
 A.-C. 
 
 A. 8. 
 
 Ab. Sh. 
 
 Abr. Ca. Bq. 
 
 Act of Sed. 
 
 Ago. 
 
 Act. 
 
 Act. Reg. 
 
 Ad. Con. 
 
 Ad. Torts. 
 
 Ad. & E. 
 
 Ad. & B. N. 8. 
 
 Add. B. R. 
 
 Ad. B. 
 
 Adm. 
 
 Ag. or Agr. 
 
 Al. 
 
 Al. & Nap. 
 
 Ale. Reg. 0. 
 
 Alison, Prao. 
 
 Alison, Princ. 
 
 Amb. 
 
 And. 
 
 Andr. 
 
 Annaly. 
 
 Anst. 
 
 Arch. B. L. 
 
 Arch. Or. L. 
 
 Arch. J. P. 
 
 Arch. P. by Ch. 
 
 Arch. Sum. 
 
 A. front, B. back of a leaf. 
 Anonymous. 
 
 Anonymous, at the end of Bendloe, Rep. 1661, 
 L.I.L. Ashurst, J., Paper Book (o). 
 Appeal Court, Chancery. 
 Act of Sederunt, Court of Session. 
 Abbot on Shipping. 
 Abridgement of Oases in Equity. 
 Act of Sederunt, Court of Session. 
 Accord. 
 
 Acton's Reports, Prize Causes. 
 Acta Regia. 
 Addison on Contracts. 
 Addison on Torts. 
 
 Adolphus and Ellis's Reports, K B., 12 vols., 1834-40. 
 Adolphus and Ellis's Reports, Q. B., 18 vols., 1841-52. 
 Addam's Ecclesiastical Reports, 3 vols., 1822-26. 
 Adams on Ejectment. 
 Admiralty. 
 Agrees. 
 
 Aelyn's Reports, K. B., 1 vol., 1646-49. 
 Alcock and Napier, K. B., Ireland, 1 vol., 1831-33. 
 Alcock's Registry Cases, Ireland, 1 vol., 1832-37. 
 Alison's Practice of the Criminal Law of Scotland. 
 AUson's Principles of ditto. 
 Ambler's Reports, Chancery, 2 vols., 1737-84, 
 Anderson's Reports, C. P., 1 vol., 1534-1605. 
 Andrew's Reports, K B., 1 vol., 1738^0. 
 Reports, time Hardwicke, C. P. 
 Anstruther's Reports, Bxch., 3 vols., 1792-97. 
 Archbold's Bankrupt Law. 
 Archbold's Criminal Law. 
 Archbold's Justice of the Peace. 
 Archbold's Practice by Chitty. 
 Archbold's Summary of the Laws of England. 
 
 (a) These MSS. consist of the paper books of Ashurst, J., Duller, J., Lawrence, J^ and Dam- 
 
 Eler, J., In an uninterrupted series from T. T., 9 Geo. III., to M. T,, W Geo. III. They are in 
 Incoln's Inn Library, and are referred to in Selwyn's Nisi Prius, as P. B. Dampler, MSS. L. I. L., 
 preceded by the initial of the judge. 
 
 (b) This is a summary of some of the Emperor's Novel Constitutions, which are inserted under 
 this,title. It must not be confounded with the NoveUm Cnnstitutiones promulgated by Justinian 
 in the Greek language, and subsequently translated into the Latin, under the name of the 
 Authent'lca. Example of citation, Auth., 9, 9, W— Avlhevtica, Collation 9, title 9, novel 20. 
 
402 
 
 ABBREVIATIONS USED IN REFERENCES TO ENaLISH, 
 
 Arkley. 
 
 Arms. M. & 0. 
 
 Ass. 
 
 Ast. Bnt. 
 Atk. 
 Auth. 
 Ayl. Pan. 
 Ayl. Par. 
 
 B. &A. 
 
 B. & Ad. 
 B. &B. 
 B. &0. 
 B. &D. 
 B. &L. 
 
 B. &P. 
 
 B. &S. 
 B. or C. B. 
 
 B. C. C. 
 
 B. C. E. 
 
 B. Eool. L. 
 
 B. Just. 
 
 B. N. C. 
 
 B. N. P. 
 
 B. P. B. 
 
 B. E. 
 
 B. Tr. 
 
 Bac. Abr. 
 
 Balf. 
 
 Ball & B. 
 
 Banc. Sup. 
 
 Bank. I. . 
 
 Bar. & Am. 
 
 Barron & Aust. 
 
 Barn. & Aid. 
 Barn. & Adol. 
 
 Barn. & Cress. 
 
 Barn. K. B. 
 Barn. C. 
 Barnes. 
 Batt. 
 Bayl. B. 
 Beat. 
 Beav. 
 Beaw. 
 Bel. 
 
 Bel. App. 
 Bell Comm. 
 Bell lUust. 
 Bell Prin. 
 
 Arkley's Justiciary Reports, Scotland, 1 vol., 1846-48. 
 j Armstrong, Macartney, and Ogle's Reports, N. P., Ire- 
 } land, 1 vol., 1842. 
 
 Book of Assize. 
 
 Aston's Entries. 
 
 Atkyn's Reports, Chancery, 3 vols., 1736-55. 
 
 Authentica (i). 
 
 Ayliffe's Pandects. 
 
 Aylifife's Paregon Juris. 
 
 ( Barnewall and Alderson's Reports, K. B., 5 vols., 
 \ 1817-22. 
 
 ] Barnewall and Adolphus's Reports, K. B., 5 vols., 
 \ 1830-34. 
 
 Broderip and Bingham's Reports, C. P., 3 vols., 1819-22. 
 ) Barnewall and Cresav^ell's Reports, K. B., 10 vols., 
 ( 1822-30. 
 
 Benloe and Dalison's Reports, C. P., 1 vol., 1486-1580. 
 
 ! Browning and Lushington's Admiralty Reports, 1 vol., 
 1864-65. 
 Bosanquet and Puller's Reports, C. P., 5 vols., 
 1796-1807. 
 
 Best and Smith's Reports, Q. B., 9 vols., 1861-74. 
 
 Common Bench. 
 < Bail Court Cases, Lowndes and Maxwell, 3 vols., 
 I 1850-52. 
 
 Bail Court Reports, Saunders and Cole, 2 vols., 1842-48. 
 
 Burn's Ecclesiastical Law. 
 
 Burn's Justice. 
 
 Brook's New Cases, K. B., 1 vol., 1515-58. 
 
 BuUer's Nisi Prius. 
 
 Paper Book of Buller. (c) 
 
 King's Bench. 
 
 Bishop's Trial. 
 
 Bacon's Abridgment. 
 
 Balfour's Practicks of the Law of Scotland. 
 
 Ball and Beatty's Reports, Chancery, Ireland. 
 
 Upper Bench. 
 
 Bankton's Institutes of the Law of Scotland. 
 
 Barron & Arnold's Election Casea, 1 vol., 1843-46. 
 
 Barron and Austin's Election Cases, 1 vol., 1842. 
 j Barnewall and Alderson's Reports, K. B., 5 vols., 
 j 1817-22. 
 
 ! Barnewall and Adolphus's Reports, K. B., 5 vols., 
 1830-34. 
 Barnewall and Oresswell's Reports, K. B., 10 vols., 
 1822-30. 
 Barnardiston's Reports, K. B., 2 vols., 1726-35. 
 Barnardiston's Reports, Chancery, 1 vol., 1740-41. 
 Barnes's Notes, C. P. 
 
 Patty's Reports, K. B., Ireland, 1 vol., 1825-26. 
 Bayley on Bills. 
 
 Beatty's Chancery Reports, Ireland, 1 vol., 1814-30. 
 Beavan's Reports, Rolls Court, 36 vols., 1838-66. 
 Beawe's Lex Mercatoria. 
 Bellewe's Reports, K. B., 1 vol., 1378-1400. 
 Bell's Cases on Appeal from Scotland, 7 vols., 1842-50. 
 Bell (Q-. J.), Commentaries on the law of Scotland. 
 Bell (Gr. J.), Illustrations of Principles. 
 Bell (Gr. J.), Principles of the Law of Scotland. 
 
 (b) See note (6). 
 
 (c) See note (a). 
 
SCOTCH, IRISH AND ANCIENT LAW BOOKS. 
 
 403 
 
 Bell C. (folio and 8vo.) 
 
 Bell's 0. C. 
 Bell 0. T. 
 Bell's Diet. 
 BeUL. 
 Bell Styles. 
 Bell T. D. 
 Benl. or Bendl. 
 Benl. & Dal. 
 Bing. 
 
 Bing. N. C. 
 Bl. 
 
 Bl. D. & Osb. 
 
 Bl. R. 
 Black., W. 
 Black., H. 
 Bla. Com. 
 BU. 
 Bli. N. S. 
 
 Bos. & PuL 
 
 B. R. Act 
 
 Bos. & P. N. R. 
 
 Bott. 
 
 Br. 
 
 Br. Bro. 
 
 Br. Brev. Jud. & Bnt. 
 
 Br. N. C. 
 
 Brae. 
 
 Bridg. 
 
 Bridg. O. 
 
 Bright, H. & W. 
 
 Bro. Ab. 
 
 Bro. Ent. 
 
 Bro. Stair. 
 
 Bro. S. 
 
 Bro. C. C. 
 
 Bro. P. C. 
 
 Bro. Supp. 
 
 Bro. Syn. 
 
 Bro. V. M. 
 
 Brod. & B. 
 
 Broun. 
 
 Brownl. Redv. or Bnt. 
 
 Brownl. 
 
 Buck. 
 BuU. N. P. 
 Bulst. 
 Bunb. 
 Burr. 
 
 Burr. S. 0. 
 Bynk. 
 Byth. Pr. 
 
 iBell (R.), Cases, Court of Session, Scotland, 2 vols., 
 1790-95. 
 Bell's Crown Cases, 1 vol., 1858-60. 
 Bell (R.), on Completing Titles, Scotland. 
 Bell (R.), Dictionary of the Law of Scotland. 
 Bell (R.), on Leases, Scotland. 
 
 Bell (R.), System of the Forms of Deeds of Scotland. 
 Bell (R.), on the Testing of Deeds, Scotland. 
 Benloe or Bendloe's Reports, K. B., 1 vol., 1531-1628. 
 Benloe and Dalisen's Reports, C. P., 1 vok, 1486-1580. 
 Bingham's Reports, C. P., 10 vols., 1822-34. 
 Bingham's New Cases, C. P., 6 vols., 1834-40. 
 Blount. 
 
 iBlackham, Dundas, and Osborne's Reports, N. P., Ire- 
 land, 1 vol., 1846^8. 
 
 Mr. Justice Blackstone's Reports. 
 
 Sir Wm. Blackstone's Reports, K. B., 2 vols., 1746-80. 
 
 Henry Blackstone's Reports, C. P., 2 vols., 1788-96. 
 
 Blackstone's Commentaries. 
 
 Bligh's Reports, House of Lords, 3 vols., 1819-21. 
 
 BUgh's Reports, New Series, 10 vols., 1827-37. 
 S Bosanquet and Puller's Reports, C. P., 5 vols., 
 I 1796-1807. 
 
 Booth's Real Actions. 
 ( Bosanquet and Puller's New Reports, C. P., 5 vols., 
 
 1796-1807. 
 Bott's Poor Laws. 
 Alexander Bruoe's Reports, Court of Session, 1 vol., 
 
 1714-15. 
 Brooke, Browne, Brownlow. 
 Brownlow Brevia Judicialia, etc. 
 Brooke's New Cases, K. B., 1 vol., 1515-58. 
 Bracton de Legibus. 
 
 Bridgman's Reports, C. P., 1 vol., 1613-21. 
 Orlando Bridgman's Reports, C. P., 1 vol., 1660-67. 
 Bright's Husband and Wife. 
 Brooke's Abridgment. 
 Brown's Entries. 
 Brodie's Notes and Supplement to Stair's Institutions, 
 
 Scotland. 
 Brown's Treatise on Law of Sale, Scotland. 
 Brown's Chancery Reports (Eden or Belt), 4 vols., 
 
 1778-94. 
 Brown's Parliament Cases, 8 vols., 1702-1800. 
 Brown's Suppl. Morrison's Diet. Court of Session, 
 
 5 vols., 1622-1794. 
 Brown's Synopsis of Decisions, Court of Session, 4 vols., 
 
 1540-1827. 
 Brown's Vade Meoum. 
 
 Broderip and Bingham's Reports, C. P., i vols., 1819-22. 
 Broun's Justiciary Reports, Scotland, 2 vols., 1842-45. 
 Brownlow's Redivivus. 
 Brownlow and Q-oldsborough's Reports, C. P., 1 voL, 
 
 1569-1624. 
 Buck's Reports in Bankruptcy, 1 vol., 1816-20. 
 BuUer's Nisi Prius. 
 
 Bulstrode's Reports, K. B., 1 vol., 1609-39. 
 Bunbury's Reports, Ex., 1 vol., 1713-42. 
 Burrow's Reports, K. B., 5 vols., 1757-71. 
 Burrow's Settlement Oases, K. B., 1 vol., 1732-68. 
 Bynkershoek. 
 Bythewood's Precedents. 
 
404 ABBREVIATIONS USED IN REFERENCES TO EN&LISH, 
 
 0. 
 
 0. B. 
 
 0. B., N. S. 
 0. C. 
 O.C. 
 0. C. A. 
 C. 0. R. 
 0. J. 0. 
 
 C. &K. 
 
 C. L. R. 
 C. L. P. 
 0. &M. 
 
 Act. 
 
 C. M. & R. 
 
 0. P. 
 0. &P. 
 
 c. s. 
 
 C. T. N. 
 
 0. Theod. 
 
 Ca. 
 
 Ca. temp. P. 
 
 Ca. temp. Holt. 
 
 Ca. temp. H. 
 Ca. t. K. 
 Cai. 
 Gal. • 
 Oald. 
 Calth. 
 
 Cam. Scacc. 
 Camp. N. P. 
 Car. & Kir. 
 Car. & M. 
 
 Car. H. & A. 
 
 Car. & P. 
 
 Carp. P. 0. 
 
 Cart. 
 
 Gary. 
 
 Garth. 
 
 Cas. t. Talb. 
 
 Gas. Pra. C. P. 
 
 Cas. C. R. 
 
 Gas. L. Bq. 
 
 Cas. Six. Cir. 
 
 Ca. P. or Pari. 
 
 Ca. G. L. 
 
 Ca. Pra. K. B. ' 
 
 Cawl. 
 
 Gh. Cas. 
 
 Ch. Cas. Ch. 
 
 Ch. Pre. 
 
 Cli. R. 
 
 Chris. B. L. 
 
 Oh. Burns' J. 
 
 Gh. PI. 
 
 Ch. Grim. L. 
 
 Gh. Bills. 
 
 Ghit. Gon. 
 
 Chit. Rep. 
 
 Codex (Juris Givilis). 
 
 {Common Bench Reports, or Manning, Granger, and 
 Scott's Reports, 19 vols„ 1845-56. 
 Common Bench Reports, New Series, 20 vols., 1856-65. 
 Cases in Chancery or Crown Cases, 1 vol., 1660-88. 
 Code Givil Francais, or Code Napoleon. 
 County Court Appeals. 
 Crown Cases Reserved. See Law. Rep. 
 Cowper's Justiciary Cases, 1 vol., 1871. 
 
 iCarrington and Kirwan's Reports, N. P., 2 vols., 
 1843-50 
 Common Law Report. 
 Common Procedure Act. 
 Grompton and Meeson's Reports, Ex., 2 vols., 1832-34. 
 
 iCrompton, Meeson, and Roscoe's Reports, Ex., 2 vols., 
 1834-36. 
 
 Common Pleas. 
 
 Garrington and Payne Reports, N. P., 9 vols., 1823-41. 
 
 Court of Session, Scotland. 
 
 Cases in the time of L. C. Northington, 2 vols., 1757-66. 
 
 Codex Theodosiani. 
 
 Case, or Placita. 
 
 Cases temp. Finch, 1 vol., 1673-81. 
 < Gases in the time of Holt, C. J. K. B., 1 vol., 1688- 
 \ 171L 
 
 Cases time Hardwicke, K. B., 1 vol., 1733-38. 
 
 Gases time King, Chancery, 1 vol., 1724-34. 
 
 Gaii, or G-aii Institutiones. 
 
 Gallis. 
 
 Caldecott's Reports, K. B., 1 vol., 1785-86. 
 
 Galthorpe's Reports, K. B., 1 vol., 1609-18. 
 
 Camera Scaccarii, Exchequer Chamber. 
 
 Campbell's Reports, Nisi Prius, 4 vols., 1808-16. 
 
 Garrington and Kirwan Reports, N. P., 2 vols., 1843-50. 
 
 Garrington and Marshman, 1 vol., 1840-42. ' 
 
 iCarrow, Hamerton, and Allen, Session Gases, 4 vols., 
 1844-51. 
 Garrington and Payile Repprts, N. P., 9 vols., 1823-41. 
 Garpmael's Patent Cases, 1 vol., 1860. 
 Carter's Reports, C. P., 1 vol., 1664-76. 
 Gary's Reports, Chancery, 1 vol., 1557-1604. 
 Carthew's Reports, K. B., 1 vol., 1685-1701. 
 Cases time Talbot, Chancery, 1 vol., 1734-38. 
 Cases of Practice Common Pleas. 
 Cases temp. Will. Ill (12 Mod.). See Mod. Rep. 
 Gases in Law and Equity (10 Mod.). See Mod. Rep. 
 Gases on the Six Circuits, Ireland, 1 vol., 1841-43. 
 Gases in Parliament. 
 Gases in Grown law. 
 
 Cases of Practice in King's Bench, 1 vol., 1732-60. 
 Cawlep. 
 
 Cases in Chancery, 1 vol., 1660-88. 
 Choice Gases in Chancery, 1 vol., 1557-1606. 
 Precedents in Chancery, 1 vol., 1689-1723. 
 Reports in Chancery, 1 vol., 1615-1721. 
 Christian's Bankrupt Law. 
 Chitty's Burns' Justice. 
 Chitty on Pleading. 
 Chitty's Criminal Law. 
 Chitty on Bills. 
 Chitty on Contracts. 
 Chitty's Reports, Bail Court, 2 vols, 1819-20. 
 
SCOTCH, IRISH AND ANCIENT LA.W BOOKS. 
 
 405 
 
 Civ. 
 
 Chit. G. P. 
 Chit. Jun. B. 
 
 CI. & Pin. 
 
 CI. Ass. 
 
 Clay. 
 
 Clift. 
 
 Co. 
 
 Cod. Jur. 
 
 Co. Cop. 
 
 Co. Bnt. 
 
 Co. Lit. 
 
 Co. M. C. 
 
 Co. P. C. 
 
 Co. on Courts. 
 
 Code Nap. 
 
 Code Civ. 
 
 Code Comm. 
 
 Code P. 
 
 Code P. 0. 
 
 Col. C. C. 
 
 Colles. 
 
 Coll. Jurid. 
 
 Coll. Part. 
 
 Comb. 
 
 Com. 
 
 Com. Dig. 
 
 Com. Law. Kep. 
 
 Con. & Law. 
 
 Consist. 
 Cont. ■ 
 Cooper. 
 Co. Rep. 
 Cooke B. L. 
 Coop. t. Brough. 
 Coop. 
 
 Coo. & Al. 
 
 Corb. & D. 
 
 Cot. 
 
 Cowp. 
 
 Cox. 
 
 Cox C. 0. 
 
 Cr. 
 
 Or. & Ph. 
 
 Cr. & St. 
 Craw. & D. 
 
 Craw. & D. Ab. B. 
 
 Cro. (1, 2, 3). 
 
 Cro. sometimes refers to Ke: 
 
 wey's Reports, published hy 
 
 Serj. Croke. 
 Cromp. 
 Cromp. & J. 
 Cromp. & M. 
 
 Cromp. M. & R. 
 
 Cru. 
 
 Chitty's General Practice. 
 
 Chitty, Jun., on Bills. 
 
 Clarke and Finnelly Reports, House of Lords, 12 vols., 
 
 1831-46. 
 Clerk's Assistant. 
 
 Clayton's Reports, York Assize, 1 vol., 165L 
 Cliffs Entries. 
 
 Coke's Reports, 6 vols., 1572-1616. 
 Codex (Juris Civilis,) Justinian Codex. 
 Coke's Cop3'ho]der. 
 Coke's Entries. 
 Coke on Littleton (1 Inst.) 
 Coke's Magna Oharta (2 Inst.) 
 Coke's Pleas of the Crown (3 Inst.) 
 Coke's 4 Inst. 
 Code Napoleon. 
 
 Code Civil Francais, or Code Napoleon. 
 Code de Commerce. 
 Code Penal. 
 
 Code de Procedure Civile. 
 Colly er's Chancery Cases, 2 vols., 1844-45. 
 Colles' Cases in Parliament, 1 vol., 1697-1709. 
 Collectanea .Juridica. 
 CoUyer on Partnership. 
 
 Comberbach's Reports, K. B., 1 vol., 1685-99. 
 Comyn's Reports, K. B. and C. P., 2 vols., 1695-1741. 
 Comyn's Digest. 
 Common Law Reports. 
 Connor and Lawson's Repts., Chancery, Ireland, 2 vols., 
 
 1841-43. 
 Consistory Reports, Haggard, 2 vols., 1789-1821. 
 Contra. 
 
 Cooper's Reports, Chancery, 1 vol., 1846. 
 Coke's Reports, K. B., 6 vols., 1572-1616. 
 Cooke's Bankrupt Laws. 
 
 Cooper's Cases temp. Brougham, 1 vol., 1833-34. 
 Cooper (G.) Chancery, 1 vol., 1815. 
 Cooke and Alcock's Reports, K. B., Ireland, I vol., 
 
 1833-34. 
 Corbett and DanieU, Election Cases, 1 vol., 1819. 
 Cotton. 
 
 Cowper's Reports, K. B., 2 vols., 1774-78. 
 Cox's Reports, Chancery, 2 vols., 1783-96. 
 Cox's Criminal Gases, 12 vols., 1843-75. 
 Craig, Jus. Feudale, Scotland. 
 Craig and Phillips, Chancery. 
 
 iCraigie and Stewart's Reports, House of Lords, 6 vols., 
 1726-1821. 
 Crawford and Dix's Circuit Cases Ireland, 2 vols., 
 1839-46. 
 ( Crawford and Dix's Abridged Cases, Ireland, 1 vol., 
 } 1837-38. 
 Croke (Eliz. Jam. Cha,), K. B. & C. P. 
 
 Crompton on Courts. 
 
 Crompton and Jervis' Reports, Ex., 2 vols., 1830-32. 
 Crompton and Meeson's Reports, Ex., 2 vols., 1832-34. 
 Crompton, Meeson, and Rosooe's Reports, Ex., 2 vols., 
 
 lS.34-36. 
 Cruise's Digest. 
 
406 ABBREVIATIONS USED IN REFERENCES TO ENGLISH, 
 
 Cunn. 
 Curt. 
 
 D. 
 
 D. or Dig. 
 D. or Diet. 
 D. &0. 
 
 D. &L. 
 
 D. &M. 
 D. &R. 
 D. &S. 
 
 D. N. S. 
 
 D. P. B. 
 
 Dal. 
 
 Dallas. 
 
 Dalr. 
 
 Dalr. P. L. 
 
 Dalt. 
 
 D'An. 
 
 Dan. 
 
 Dan. & LI. 
 
 Dav. 
 
 DeG. 
 
 De G. P. & J. 
 
 De G. & J. 
 
 DeG. J. &S. 
 
 De G. M. & G. 
 
 De G. & Sm. 
 
 Dea. & Sw. 
 
 Deao. & Ch. 
 
 Dears. 0. 0. 
 Dears. & B. 0. 0. 
 
 Deas & And. 
 
 Degge. 
 Den. Cr. C. 
 Di. Dy. 
 Dick. 
 
 Dick. Just. 
 Dig. 
 Dirl. 
 
 Cunningham's Reports, K. B., 1 vol., 1734-36. 
 Curteis' Eoolesiastical Reports, 3 vols., 1884-44, 
 
 Dictum, Digest (Juris Civilis). 
 
 Justiniani Digestse (d). 
 
 Dictionary (Morrison's), Court of Session. 
 
 Deacon & Chitty, Bankruptcy Reports, 4 vols., 1832-35. 
 j Dowling and Lowndes, Bail Court Reports, 7 vols., 
 \ 1846-49. 
 
 Davison and Merivale Q. B. Reports, 1 vol., 1843-44. 
 
 Dowling and Ryland's K. B. Reports, 9 vols., 1821-27. 
 
 Doctor and Student. 
 i Dowling, New Series, Bail Court Reports, 2 vols., 
 J 1841-42. 
 
 Damoier, J., Paper Book (e). 
 
 Dalis'on's Reports, 0. P., 1 vol., 1486-1580. 
 
 Dallas Styles, Scotland. 
 
 iDalrymple's Decisions, Court of Session, 1 vol., 1698- 
 1720. 
 
 Dalrymple's Peudal Law. 
 
 Dalton's Justice or Sheriff. 
 
 D'Anvers' Abridgment. 
 
 Daniel's Reports, Ex. Eq., 1 vol., 1817-19. 
 
 Danson and Lloyd, Mercantile Cases, 1 vol., 1828-29. 
 
 Davy's Reports, Ireland, 1 vol., 1604-11. 
 
 De Gex's Bankruptcy Reports, 1 vol., 1845-48. 
 ( De Gex, Pisher and Jones' Reports, Chancery, 3 vols., 
 \ 1856-61. 
 
 De Gex and Jones' Reports, Chancery, 4 vols., 1857-59. 
 ( De Gex, Jones and Smith's Reports, Chancery, 2 vols., 
 I 1862-65. 
 
 3 De Gex, Macnaghten and Gordon's Repts., Chancery. 
 ( 8 vols., 1851-57. 
 
 j De Gex and Smale's Reports, Chancery, 5 vols., 
 I 1846-52. 
 
 Deane and Swabey's Repts., Probate and Divorce. 
 
 i Deacon and Chitty, Bankruptcy Reports, 4 vols., 
 1832-35. 
 Dearsley's Crown Oases, 1 vol., 1852-56. 
 Dearsley and Bell's Crown Cases, 1 vol., 1856-58. 
 
 iDeas and Anderson's Reports, Court of Session, 5 vols,, 
 1829-33. 
 Degge's Parson's Companion. 
 Denison's Crown Cases, 2 vols., 1844-52. 
 Dyer's Reports, K. B., 3 vols., 1513-32. 
 Dickin's Reports, Chancery, 2 vols., 1559-1798. 
 Dickinson's Justice. 
 Digest of Writs. 
 Dirleton's Decisions, Court of Session, 1 vol., 1665-77. 
 
 (d) The Digest or Fandates are divided into SO booka ; each boolc is divided into titles, and 
 each title into laws, and the laws generally into parts or paragraphs . The first paragraph is not 
 numbered, and is usually quoted by the abbreviation inftr. {in principio). The last paragraph 
 is sometimes quoted Iw the word in fine, or g itlt., (paragraphuii uttimua). The Digest is variously 
 quoted by the letters D or P, or II, or ff. fl! is supposed to oe a corruption of the D, with a stroke 
 tnrough the middle, or perhaps of the Greek 11. 
 
 The ancient mode of quotation was by mentioning the initial words of the law and of the 
 paragraph, with the initial words of the title. This made a reference to the general index 
 necessary, e. g., L Profeetitia, 8 si Pater, D dejure doIMm, or in reversed order, D de jure dotium 
 L Prafectitia i si Pater. Afterward the quotation was L Profeetitia 5, 8 si Pater 6 Ddejure 
 dotium; and latterly, Lb,iD dejure diMum; or, more correctly, using the letters fr. instead of 
 L, since the passages were not laws, but fragments or excerpts fiom the writings of the Juris- 
 prudents, fr. 5, 8 6 D de jwre'dotium. The modern mode avoids all reference to the words. It is 
 thus: fr. 5, 8 6, D 33, 3; or in reversed order, D 33, tit, 3, fr. 5, 3 6, or shortly, D 23, 3, 5, 6. i. e., 
 Digest. 
 
 (e) See note (a). 
 
SCOTCH, IRISH AND ANCIENT LAW BOOKS. 
 
 407 
 
 Doot. PI. 
 Dod. 
 
 Dom. Proo. 
 Doug. 
 Dow & C. 
 
 Dow. & L. 
 
 Dow. & Ry. 
 
 Dow. & R. M. C. 
 
 Dow. & Ry. N. P. 
 Dowl. P. C. 
 
 Dr. & Wal. 
 
 Dr. & War. 
 
 Drew. 
 
 Drew. & Sm. 
 Drury. 
 Dub. 
 Duflf. 
 
 Dugd. Orig. 
 Dug. S. 
 Duke. 
 Dunlop or D. 
 
 Durnf. & E. 
 
 Durie. 
 
 "p 
 
 b' & A. 
 E. of Cov. 
 Eag. & Yo. 
 Bast. 
 
 Bast P. C. 
 Boc. & Ad. 
 
 Eden. 
 
 Edg. 
 Ediota. 
 Edw. A. R. 
 Bl. B. & S. 
 El. & Bl. 
 El. B. & E. 
 Bl. & El. 
 Eq. Ca. Abr. 
 Eq. Rep. 
 Esp. 
 
 Bxch. Rep. 
 
 Bxp. 
 
 P. 
 
 P. C. 
 
 P. B. C. 
 
 P. &F. 
 
 P. N. B. 
 
 P. or Fitz. (/) 
 
 Dootrina Plaoitandi. 
 
 Dodson's Reports in Admiralty, 2 vols., 1811-22. 
 
 Domini Proctor ; Cases House of Lords. 
 
 Douglas' Reports, K. B., 4 vols., 1778-84. 
 
 Dow and Clark, House of Lords Cases, 2 vols., 1827-32. 
 j Dowling and Lowndes, Bail Court Reports, 7 vols., 
 I 1846-49. 
 
 Dowling and Ryland's K. B. Reports, 9 vols., 1821-27. 
 
 i Dowling and Ryland's Magistrates' Case, 4 vols., 
 1822-27. 
 
 Dowling and Ryland's Nisi Prius, 1 vol., 1822-23. 
 
 Dowling's Practice Cases, 9 vols., 1830-41. 
 
 Drury and Walsh, Chancery Reports, Ireland, 2 vols., 
 1837-40. 
 
 { Drury and Warren, Chancery Reports, Ireland, 4 vols., 
 i 1841-43. 
 
 Drewry's Reports, Chancery, 4 vols., 1852-59. 
 
 Drewry and Smale's Reports, Chancery, 2 vols., 1860-61. 
 
 Drury's Reports, Chancery, Ireland, 1 vol., 1843-44. 
 
 Dubitatur. 
 
 Duff on Conveyancing, Scotland. 
 
 Dugdale's Origines. 
 
 Dugdale's Summons. 
 
 Duke's Charitable Uses. 
 
 Dunlop, Bell and Murray's Reports, Court of Session. 
 ( Durnford and East, or Term Reports, K. B., 8 vols., 
 I 1785-1800. 
 
 Durie's Reports, Court of Session, 1 vol., 1621-42, 
 
 Easter Term. 
 
 Eccles. and Admiralty Reports, 2 vols, 1853-55. 
 
 Earl of Coventry's Case. 
 
 Eagle and Younge's Tithe Cases, 4 vols., 1199-1825. 
 
 East's Reports, K. B., 16 vols., 1801-12. 
 
 East's Pleas of the Crown. 
 
 Eccles. and Admiralty Reports, 2 vols., 1853-55. 
 
 Eden's Rep. of Northington's Cases, Chancery, 2 vols., 
 
 1757-66. 
 Edgar's Reports, Court of Session, 1 vol., 1724-25. 
 Edicts of Justinian. 
 
 Edward's Admiralty Reports, 1 vol., 1808-10. 
 Ellis, Best and Smith's Reports, Q. B. 
 Ellis & Blackburn Reports, Q. B., 8 vols., 1852-58. 
 Ellis, Blackburn and Ellis' Reports, Q. B., 1 vol., 1858. 
 Ellis and Ellis' Reports, Q. B., 3 vols., 1858-60. 
 Equity Cases Abridged, 2 vols., 1793-69. 
 Equity Reports. See Law Rep. 
 Espinasse's Rep. or Digest N. P., 6 vols., 1793-1807. 
 Welsby, Hurlstone, and Gordon's Reports, 11 vols., 
 
 1847-50. 
 Expired. 
 
 Consuetudines Feudorum. 
 
 Faculty Collection of Reports, Court of Session, 37 vols., 
 
 1752-1848. 
 Ponblanque's Bankruptcy Cases, 1 vol., 1849-51. 
 Foster and Finlayson's Reports, Nisi Prius, 4 vols., 
 
 1858-65, 
 Pitz-Nat. Brevium. 
 Fitzherbert. 
 
 (/) Fitzherbert's Abridgment is commonly referred to by the older law writers by the title 
 and number of the plaoita only, e. g., coron. 30. 
 
408 ABBREVIATIONS USED IN EEFBRBNOBS TO ENGLISH, 
 
 I'ac. Coll. 
 
 Palo. 
 
 Falo. & Fitz. 
 
 Far. 
 
 Fearne. 
 
 Ferg. 
 
 Ff. (<?) 
 
 Fin. 
 
 Fitz-G. 
 
 Fl. 
 
 Flan. & K. 
 
 Fol. 
 
 Fol. Diet. 
 
 Fonbl. 
 
 For. 
 
 For. Pla. 
 
 Forb. 
 
 Forester. 
 
 Fort, de Laud. 
 
 Fortes. 
 
 Fost. Forst. 
 
 Fount. 
 
 Fox & S. 
 
 Fr. 
 
 Fra. M. 
 Fraser. 
 Free. Chy. 
 Freem. K. B. 
 
 G.& J. 
 
 Gaii. 
 
 Gal & Dav. 
 Gaz. B. 
 Gib. Ood. 
 Gif. 
 
 Gilb. 0. P. 
 Gilb. Debt. 
 Gilb. Dist. 
 Gilb. Ex. 
 Gilb. Bv. 
 Gilb. Bxch. 
 Gilb. K. B. 
 Gilb. R. 
 Gilb. Rem. 
 Gilb. Us. 
 Gilb. 
 Gilm. 
 Gl. 
 Glanv. 
 
 Glassc. 
 
 Godb. 
 
 j Faculty Collection of Reports, Court Of Sessions, 37 
 \ vols., 1752-1841. 
 
 Falconer's Reports, Court of Session, 1 vol., 1744-51. 
 j Falconer and Fitzherbert, Election Cases, 1 vol., 
 \ 1837. 
 
 Parresley (7 Mod. Rep.). See Mod. Eep. 
 
 Fearne on Remainders. 
 
 Ferguson's Consistory Reports, Scotland, 1 vol., 1811-17. 
 
 Pandectae (Juris Civilis). 
 
 Finch's Reports, Chancery, 1 vol., 1673-81. 
 
 Fitz-Gibbon's Reports, K. B., 1 vol., 1728-33. 
 
 Fleta. 
 ( Flanagan and Kelly's Reports, Rolls, Ireland, 1 vol., 
 ) 1840-42. 
 
 Foley's Poor Laws. 
 
 Kames and Woodhouselee, Dictionary, Court of Session. 
 
 Fonblanque on Equity. 
 
 Forrest's Reports, Ex., 1 vol., 1801. 
 
 BroTirn's Formulse. 
 
 Forbes' Decisions, Court of Session, 1 vol., 1705-13. 
 
 Cases time of Talbot, Chancery, 1 voL, 1734-38. 
 
 Fortesoue de laudibus Angliae Legum. 
 
 Fortescue's Reports, K. B., 1 vol., 1695-1738. 
 
 Foster's Reports, Crown Law, 1 vol., 1743-61. 
 ( Fountainhall's Decisions, Court of Session, 2 vols., 
 I 1678-1712. 
 
 j Fox and Smith's Reports, K. B., Ireland, 2 vols., 
 \ 1822-24. 
 
 Fragments or Excerpt, or Laws, in titles of Pandects. 
 
 Francis' Maxims. 
 
 Fraser on Personal and Domestic Relations, Scotland. 
 
 Freeman's Chancery Reports, 1 vol., 1660-1706. 
 
 Freeman's Reports, K. B., 1 vol., 1670-1704. 
 
 ( Glyn and Jameson, Bankruptcy Reports, 2 vols. 
 \ 1821-28. 
 
 Gaii Institutionum Commentarii IV. 
 
 Gale and Davison's Reports. K. B., 3 vols., 1841-43. 
 
 Gazette of Bankruptcy, 4 vols., 1861-63. 
 
 Gibson's Codex. 
 
 Giffard's' Reports, Chancery, 4 vols., 1857-65. 
 
 Gilbert's Common Pleas. 
 
 Gilbert's Treatise on Debt. 
 
 Gilbert's Distresses. 
 
 Gilbert's Executions. 
 
 Gilbert's Evidence. 
 
 Gilbert's Exchequer. 
 
 Gilbert's King's Bench. 
 
 Gilbert's Reports, Chancery, 1 vol., 1731-36. 
 
 Gilbert's Remainders. 
 
 Gilbert's Uses. 
 
 Gilbert's Oases in Law and in Equity, 1 vol., 1713-15. 
 
 Gilmour's Reports, Court of Session, 1 vol., 1661-85. 
 
 Glossa, a Gloss or Interpretation. 
 
 Glanville de Legibus. 
 ) Glasscock's Reports in all the Courts, Ireland 1 vol . 
 I 1831-32. ' 
 
 Godbolt's Reports, K. B., 1 vol., 1575-1638. 
 
 (g) Thia reference, which frequently occurs In Blackstone and other writers, applied to the 
 Panilects or Digests of the civil law, is a corruption of the Greek letter ir. Vide Calvini Lexicon 
 Jurid. TOC. Digestorum. 
 
SCOTCH, IRISH AND ANCIBNT LAW BOOKS. 
 
 409 
 
 Godol. 
 
 Golds. 
 
 Gosf. 
 
 Gow's N. P. C. 
 
 Gro. de J. B. 
 
 Gundry. 
 
 Gwm. 
 
 Godolphin. 
 
 Goldesborough's Reports, K. B., 1 vol., 1586-1602. 
 
 Gosford's Reports, Court of Session. 
 
 Q^w's Nisi Prius Cases, 1 vol., 1818-20. 
 
 Grotius de Jure Belli. 
 
 Gundry MSS. (h) 
 
 Gwillim's Tithe Osea, i vols., 1825. 
 
 H. orHil. 
 H. &C. 
 H. &N. 
 H. H. P. C. 
 
 H. L. Rep. Cas. 
 
 H. P. C. 
 
 H. &R. 
 Ha. & Tw. 
 Had. 
 Hag. Ec. 
 Hag. Con. 
 Hag. Adm. 
 Hailes. 
 Hale, 0. L. 
 Hans. 
 Hanm. 
 Hare. 
 Hard. 
 Hare. 
 Harr. Dig. 
 Hawk. P. C. 
 Hayes. 
 
 Hayes & J. 
 
 Hein. 
 
 Hem. & M. 
 Her. 
 Het. 
 Hob. 
 Hog. 
 Holt. 
 
 Holt N. P. 
 Home (Clk.) 
 
 Hop. & 0, 
 
 Hop. & P. 
 
 Hope. 
 
 Hope Min. Pr. 
 Hope Maj. Pr. 
 Hov. Suppl. 
 
 Hud. & B.. 
 
 Hugh. 
 Hume Com. 
 Hume. 
 Hunter. 
 Hut. 
 
 Hilary Term. 
 
 Hurlstone and Coltman's Reports, Ex., 4 vols., 1862-65. 
 
 Hurlstone and Norman's Reports, Ex., 7 vols., 1856-61. 
 
 Hale's Hist. Plac. Cor. 
 ( Clark and Pinnelly's House of Lords Reports, N'ew 
 ( Series, 11 vols., 1847-65. 
 
 Hale's Pleas of the Crown. 
 
 Harrison and Rutherford's Reports, C. P. 
 
 Hall and Twells, Chancery Reports, 2 vols., 1848-50. 
 
 Earl of Haddington's Reports, Court of Session. 
 
 Haggard's Ecclesiastical Reports, 4 vols., 1827-33. 
 
 Haggard's Consistory Reports, 2 vols., 1789-1821. 
 
 Haggard's Admiralty Reports, 3 vols., 1822-37. 
 
 Haile's Decisions, Court of Session, 2 vols., 1766-91. 
 
 Hale's Common Law. 
 
 Hansard's Entries. 
 
 Hanmer's Lord Kenyon's Notes, K. B. 
 
 Harcarse's Decisions, Court of Session, 1 vol., 1681-91. 
 
 Hardre's Reports, Ex., 1 vol., 1655-69. 
 
 Hare's Reports, Chancery, 11 vols., 1841-53. 
 
 Harrison's Digest, all the Courts. 
 
 Hawkins' Pleas of the Crown. 
 
 Hayes' Reports, Exchequer, Ireland, 1 vol., 1830-32. 
 
 {Hayes and Jones' Reports, Exchequer, Ireland, 1 vol., 
 1832-34. 
 ' Heineccius. 
 
 Hemming and Miller, Chancery. 
 
 Heme. 
 
 Hetley's Reports, C. P., 1 vol., 1627-32. 
 
 Hobart's Reports, K. B., 1 vol., 1603-25. 
 
 Hogan's Reports, Rolls, Ireland, 2 vols., 1816-34. 
 
 Holt's Reports, K. B., 1 vol., 1688-1711. 
 
 Holt's Nisi Prius Reports, 1 vol., 1815-17. 
 
 Clerk Home's Reports, Court of Session, 1 vol., 1735-44. 
 j Hopwood and Coltman, Registration Appeal Cases, 
 1 1 vol., 1871. 
 
 I Hopwood and Philbriok, Registratipn Appeal Oases, 
 } 1 vol., 1863-67. 
 
 Thomas Hope's Reports, Court of Session. 
 
 Sir Thomas Hope's Minor Practicks, Scotland. 
 
 Sir Thomas Hope's Major Practicks, Scotland. 
 
 Hovendon's Supplement to Vesey. See Vesey, Jr. 
 
 Hudson and Brooke's Reports, K. B., Ireland, 2 vols., 
 1827-31. 
 
 Hughes' Entries. 
 
 Hume's Commentaries on Crimes, Scotland. 
 
 Hume's Decisions, Court of Session, 1 vol., 1781-1822. 
 
 Hunter's Laws of Landlord and Tenant, Scotland. 
 
 Hutton's Reports, 0. P., 1 vol., 1612-39. 
 
 (ft) These MSS. were purchased of Nathaniel Gundry, Esq., the only son of 1 
 Oundry, by whom the notes were taken, and will be found in Lincoln's Inn Library. 
 
 Mr. Justice 
 
410 ABBRKnATIUNS USJiD IN RKFJiKJiNCBS TO ENGLISH, 
 
 I. J. C. 
 I. R. C. L. 
 I. E. Eq. 
 Imp. K. B. 
 Imp. C. P. 
 Imp. Sh. 
 Imp. PI. 
 In P. 
 In P. Pr. 
 
 InPr. 
 
 Ins. 
 
 1, 2, Inst. 
 Inst., 1, 2, 3. 
 Inst. 1, 2, 31. 
 Ir. Law & Bq. 
 
 Ir. Law & Ch. 
 
 Iv. Ersk. 
 
 Irvine's Justiciary Cases, 5 vols., 1851-67. 
 
 Irish Reports, Common Law Series, 3 vols., 1866-69. 
 
 Irisii Reports, Equity Series, 3 vols., 1866-69. 
 
 Impey's Practice, K. B. 
 
 Impey's Practice, C. P. 
 
 Impey's Slieriflf. 
 
 Impey's Pleader. 
 
 In fine. At the end of a title, law, or a paragraph. 
 
 In fine principii. 
 \ In principio. In the beginning, and before the first 
 I paragrapli of a law. 
 
 Insurance. 
 
 (1, 2) Coke's Inst. 
 
 Justinian's Inst. lib. 1, tit. 2, sec. 3. 
 
 Justinian's Institutes, Lib. I, tit. 2, sec. 31. (i) 
 
 Irish Law and Equity Reports, Ireland, 26 vols., 1838-50. 
 j Irish Law and Equity Repts., Ireland, New Series, ' 
 ! 28 vols., 1850-56. 
 
 Ivory's Notes on Erskine's Institute. 
 
 J. Ctus. 
 J. &W. 
 Jac. or Jacob. 
 Jac. & W. 
 Jan. Angl. 
 Jebb C. C. 
 
 Jebb & B. 
 
 Jebb & S. 
 
 Jenk. 
 John. 
 
 John. & H. 
 
 Jon. 1, 2. 
 
 Jones T. 
 Jones W. 
 Jones. 
 
 Jones & C. 
 
 Jo. & Lat. 
 
 Jud. 
 Jur. 
 
 Jur. N. S. 
 Jur. Sc. 
 Jur. St. 
 Just. Inst. 
 
 Jurisoonsultus. 
 
 Jacob and Walker's Reports, Chancery, 2 vols., 1819-21. 
 
 Jacob's Reports, Chancery, 1 vol., 1821-22. 
 
 Jacob and Walker's Reports, Chancery, 2 vols., 1819-21. 
 
 Jaui Anglorum. 
 
 Jebb's Crown Cases, Ireland, 1 vol., 1822-40. 
 
 Jebb and Bourke's Reports, K. B., Ireland, 1 vol., 
 
 1841-42. 
 Jebb and Syme's Reports, K. B., Ireland, 2 vols., 
 
 1838-41. 
 Jenkins' Reports, Ex., 1 vol., 1220-1623. 
 Johnson's Reports, Chancery, 1 vol., 1859. 
 Johnson and Hemming's Reports, Chancery, 2 vols., 
 
 1860-62. 
 Jones' W. and T., Reports, K. B., 2 vols., 1620-85. 
 Jones' Reports, K. B., 1 vol., 1667-85. 
 Jones' Reports, K B., 1 vol, 1620^1. 
 Jones' Reports, Exch., Ireland, 2 vols., 1834-38. 
 Jones and Carey's Reports, Exch., Ireland, 1 vol., 
 
 1838-39. 
 Jones and Latouche's Reports, Chancery, Ireland, 
 
 3 vols., 1844-46. 
 Judgments. 
 
 The Jurist Reports in all the Courts, 31 vols., 1837-54. 
 Jurist, New Series, 12 vols., 1855-65. 
 Scottish Jurist, Court of Session, 42 vols., 1829-72. 
 Juridical Styles, Scotland. 
 Justinian's Institutes. 
 
 K. B. 
 
 K. C. R. 
 
 K. &G. R.O. 
 
 Kames. 
 
 Kames' Eluc. 
 
 Kames' Rem. D. 
 
 King's Bench. 
 
 Rep. temp. King, C. Chancery, 1 vol., 1724-34. 
 Keane and Grant's Registration Cases, 1 vol., 1854-62. 
 Kames' Decisions, Court of Session, 3 vols., 1716-68. 
 Kames' Elucidations of the Law of Scotland. 
 Kames' Remarkable Decisions, Court of Session, 2 vols., 
 1716-52. 
 
 ( i ) The Institutes of Justinian are divided into four boolts ; each book is divided into titles, 
 and each title into paragraphs, of whicli tlie first, described by the letters pr. or pHncip., is not 
 numbered. The old method of citing the Institutes was to give the commencing words of the 
 paragraph and uf the title ; e. y., 8 .s'i adyc/sus, Inst, de Nuptiis. Sometimes the number of the 
 paragraph was introduced, c. |y., § 12, ,Si adiJersitN, I?i,«t. de Mtptiis. The modern way is to give 
 the number of the book, title, and paragraph, Inst. I, 10, 12; i. e., Inst. Lib. I, tit. 10, § 13. 
 
SCOTCH, IRISH AND ANCIENT LAW BOOKS. 
 
 411 
 
 Eames' S. D. 
 
 Karnes' Tr. 
 
 Kay. 
 
 Kay & J. 
 
 Keb. 
 
 Keen. 
 
 Kel. 
 
 Kel. 1, 2. 
 
 Keilw. Keil. 
 
 Ken. 
 
 Keny. 
 
 KUk. 
 
 Kit. 
 Kn. 
 Kn. & 0. 
 
 L. &C. 
 
 L. & Gt. temp. Plunk. 
 
 L. I. L. 
 L. J. 
 
 L. J. N. S. 
 
 L. Mag. 
 
 L. M. & P. 
 
 L. &M. 
 
 L. P. B. 
 
 L. Eev. 
 
 L. T. 
 
 L. & Welsb. 
 
 La. 
 
 Lamb. 
 Lat. 
 
 Law. Rec. 
 
 Law Rep. Ad. & Ec. 
 Law Rep. 0. 0. 
 Law Rep. Ch. 
 Law Rep. 0. P. 
 Law Rep. Eq. 
 Law Rep. Ex. 
 
 Law Rep. H. L. 
 
 Law Rep. H. L. Sc. 
 
 Law Rep. P. 0. 
 Law Rep. P. & D. 
 Law Rep. Q. B. 
 Leg. O. 
 Ld. Ken. 
 Ld. Raym. 
 Leach. 
 Lee & H. 
 
 I Kames' Select Decisions, Court of Session, 1 vol., 
 [ 1752-69. 
 
 Kames' Historical Law Tracts, Scotland. 
 
 Kay's Reports, Chancery, 1 vol., 1853-54. 
 
 Kay and Johnson's Reports, Chancery, 4 vols., 1854-58. 
 
 Keble's Reports, K. B., 3 vols., 1661-79. 
 
 Keen's Reports, Rolls Court, 2 vols.. 1836-38. 
 
 Sir John Kelying's Reports, K. B., 1 vol., 1662-69. 
 
 "Wm. Kelynge's Rep., 2 parts, Chancery, 1 vol., 1731-36. 
 
 Keilway's Reports, "K. B., 1 vol., 1496-1531. 
 
 Kennet. 
 
 Kenyon's Notes, by Hanmer, K. B., 2 vols., 1753-60. 
 
 Lord Kilkerran's Decisions, Court of Session, ] vol., 
 : 1738-52. 
 
 Kitchen. 
 
 Knapp's Reports, Privy Council, 3 vols., 1829-S6. 
 
 Knapp and Ombler, Election Cases, 1 vol., 1834 
 
 Leigh & Cave, Crown Cases, 1 vol., 1861-65. 
 I Lloyd and Q-ould, temp. Plunket, Ohy., Ireland, 1 vol., 
 I 1834^39. 
 Lincoln's Inn Library. 
 
 Law Journal, Reports in all the Courts, 9 vols., 1823-31. 
 i Law Journal, Reports in all the Courts, 44 vols., 
 I 1832-75. 
 The Law Magazine. 
 Lowndes, Maxwell, andPolock's Rep., Bail Ct., 2 vols,, 
 
 1850-51. 
 Lowndes, Maxwell, and Polock's Rep., Bail Ct., 2 vols., 
 
 1850-51. 
 Paper Book of Lawrence, J. (h) 
 The Law Review. 
 The Law Times, Reports in all the Courts, 31 vols., 
 
 1859-75. 
 Lloyd and Welsby's Commercial Reports, 1 vol., 
 
 1829-30. 
 Lane's Reports, Exchequer, 1 vol.,. 1605-12. 
 Lambard. 
 
 Latch's Reports, K. B., 1 vol., 1625-28. 
 Law Recorder, Reports in all the Courts, Ireland, 
 
 10 vols., 1827-38. 
 Admiralty and Ecclesiastical, 4 vols., 1865-75. 
 Crown Cases Reserved, 2 vols., 1865-75. 
 Chancery Appeal Cases, 10 vols., 1865-75. 
 Common Pleas Cases, 10 vols., 1865-75. 
 Equity Cases, 17 vols., 1865-75. 
 Exchequer Cases, 10 vols., 1865-75. 
 English and Irish Appeal Cases, House of Lords, 
 
 7 vols., 1865-75. 
 Scotch and Divorce Appeal Oases, House of Lords, 
 
 2 vols., 1865-75. 
 Privy Council Appeal Cases, 6 vols., 1865-75. 
 Probate and Divorce, 3 vols., 1865-75. 
 Queen's Bench Cases, 10 vols., 1865-75. 
 The Legal Observer. 
 
 Kenyon's Reports, K. B., 2 vol.'., 1753-60. 
 Lord Raymond's Reports, K. B, 3 vols., 1694-1734. 
 Leach's Crown Law. 
 Lee's Cases temp. Hardwicke, K. B., 1 vol., 1733-38. 
 
 (k) See ante, note (a). 
 
412 ABBREVIATIONS USED IN REFERENCES TO ENGLISH, 
 
 Leon. 
 
 Lev. 
 
 Lew. C. C. 
 
 Lex Merc. Red. 
 
 Ley. 
 
 Lib. Ass. 
 
 Lib. Eeud. 
 
 Lib. Int. 
 
 Lib. Intr. 
 
 Lib. PI. 
 
 Lib. Reg. 
 
 Lil. 
 
 Lil. Abr. 
 
 Lind. or Lynd. 
 
 Lit. 
 
 Lit. with S. 
 
 Llo. & Goo. 
 
 Looc. 
 Lofft. 
 Long Quinto. 
 
 Longf. &T. 
 
 Lud. E. G. 
 Lush. 
 Lut. 
 Lut. R. 0. 
 
 M. 
 
 M. or Mich. 
 
 M. p. & D. 
 
 M. & M'A. 
 
 M. & Ayr. R. 
 
 M. & Ayr. B. L. 
 M. &S. 
 M. &W. 
 M'Ole. 
 M'Ole. & Yo. 
 
 M'F. R. 
 
 Mac. & G. 
 
 Mac. P. 0. 
 
 Mack. 
 
 Mack. R. L. 
 
 Mack. Crim. 
 
 Mack. Obs. 
 
 Macl. & R. 
 
 Macph. 
 
 Macq. H. L. Gas. 
 
 Mad. 
 
 Madd. 
 
 Madd. Ch. 
 
 Leonard's Reports, K. B., 1 vol., 1540-1615. 
 
 Levinz's Reports, K. B., 3 vols., 1660-97. 
 
 Lewin's Grown Cases, 2 vols., 1822-38. 
 
 Lex Mercatoria, by Beawes. 
 
 Ley's Reports, K. B., 1 vol., 1608-29. 
 
 Liber Assisarum, Tear Book, pt. 5. 
 S Liber Feudorum, usually printed at the end of the 
 \ Corpus Juris Civilis. (l) 
 
 Liber Intrationum. 
 
 Old Book of Entries. 
 
 Liber Plaoitandi. 
 
 Register Book. 
 
 Lilly's Reports or Entries, 1 vol., 1719. 
 
 Lilly's Practical Register. 
 
 Lindewood, Provinoiales. 
 
 Littleton's Reports, 0. P., 1 vol., 1626-32. 
 
 Littleton, S for Section. 
 ( Lloyd and Goold, ttmp. Sugden, Chy., Ireland, 1 vol., 
 I 1835. 
 
 Loccinius. 
 
 Lofft's Reports, K. B., 1 vol., 1722-74. 
 
 Year Book, pt. 10, K. B. 
 3 Longfield and Townsend's Reports, Exch., Ireland, 
 j 1 vol., 1841-42. 
 
 Luder's Election Gases, 3 vols., 1785-90. 
 
 Lushington's Admiralty Reports, 1 vol., 1860-63. 
 
 Lutwyche's Reports, C. P., 2 vols., 1682-1704. 
 
 Lutwyche's Registration Cases, 2 vols., 1843-53. 
 
 i Morrison's Dictionary, of Decisions, Court of Session, 
 22 vols., 1540-1808. 
 Michselmas Term. 
 
 Montagu, Deacon and De Q«x's Reports, Bankruptcy, 
 ; 3 vols., 1840-44. 
 Montagu and McArthur's Repts., Bankruptcy, 1 vol., 
 
 ■ 1828-30. 
 
 Montagu and Ayrton's Reports, Bankruptcy. 3 vols., 
 ; 1833-38. 
 
 Montagu and Ayrton's Bankrupt Law. 
 
 Maule and Selwyn's Reports, K. B., 6 vols., 1813-17. 
 
 Meeson and Welsby's Reports, Ex., 16 vols., 1836-47. 
 
 MoOleland's Reports, Ex., 1 vol., 1824. 
 
 McGleland and Younge's Reports, Ex., 1 vol., 1825. 
 ( MacFarlane's Reports, Jury Court, Scotland, 1 vol., 
 ) 1838-39. 
 
 ] Macnaghten and Gordon's Reports, Chancery, 3 vols., 
 ( 1849-51. 
 
 Macrory's Patent Oases. 
 
 Sir G. Mackenzie's Institution- of the Law of Scotland. 
 
 Mackenzie's Roman Law. 
 
 Sir G. Mackenzie's Criminal Law. 
 
 Sir G. Mackenzie's Observations on Acts of Parliament. 
 
 , Maclean and Robinson's Scotch Appeals, 1 vol., 1839. 
 
 Court of Session Gases, Third Series, 7 vols., 1862-69. 
 
 Maoqueen's Scotch Appeal Oases, 4 vols., 1851-65. 
 
 Madox's Exchequer and Formulare. 
 
 ■ Maddock's Reports, Chancery, 6 vols., 1815-22. 
 Maddock's Chancery Practice. 
 
 (I) This Treatise upon Feudal Law is usually found at the end of the Corpus Jwris Oivilis; 
 and is sometimes referred to as Conxuetudines FevAorum. It is divided into two books, and 
 tifiese again are divided into titles, and it is thus cited, 1 Feud. 28, i. e.. Book 1, tit. 2S. 
 
SCOTCH, IRISH AND ANCIENT LAW BOOKS. 
 
 413 
 
 Mai. 
 
 Man. & a. 
 
 Man. & R. 
 
 Manw. 
 
 Mar. 
 
 Marsh. 
 
 Marsh. In. 
 
 Man. & Pol. Sh. 
 
 Man. & Sel. 
 
 Mee & W. 
 
 Mer. or Meriv. 
 
 Middx. Sit. 
 
 Milw. 
 
 Mitf. 
 
 Mo. 
 
 Mod. Oa. 
 
 Mod. 0. 1. & eq. 1. 2. 
 
 Mod. Ent. 
 Mod. Int. 1, 2. 
 Mod. Rep. 
 Mol. de J. M. 
 Mol. 
 Mont. B. 0. 
 
 Mont. & B. 
 
 Mont. & Chit. 
 
 Moo. C. C. 
 Moo. & M. 
 Moo. P. C. C. 
 
 Moo. P. 0. C, N. S. 
 
 Moo. Ind. App, 
 Moo. & R. 
 Moo. .1. B. 
 Moo. & P. 
 Moo. & S. 
 Moore (C. P.) 
 More, St. 
 
 Morr. Diet. 
 
 Mos. 
 Murr. 
 Myl. & Cr. 
 Myl. & K. 
 
 Malyne's Lex Meroatoria. 
 
 Manning and Granger's Reports, 0. P., 7 vols., 1840-44. 
 
 Manning and Ryland's Reports, K. B., 5 vols.,' 1827-30. 
 
 Manwood's Forest Laws. 
 
 March's Reports, K. B., 1 vol., 1639-53. 
 
 Marshall's Reports, 0. P., 2 vols., 1814-16. 
 
 Marshall on Insurance. 
 
 Maude and Pollock's Law of Shipping. 
 
 Maule and Selwyu's Reports, K. B., 6 vols., 1813-17. 
 
 Meeson and Welsby's Reports, Ex., 16 vols., 1836-47. 
 
 Merivale's Reports, Chancery, 3 vols., 1815-17. 
 
 Sittings for Middlesex at Nisi Prius. 
 
 Milward's Reports, Irish Ecclesiastical, 1 vol., 1819-43. 
 
 Mitford's Pleadings. 
 
 Moore's Reports, K- B., 1 vol., 1512-1621. 
 
 Modern Cases. See Mod. Cases. 
 
 Modern Oases in Law and Equity (8 and 9 Mod. Rep.) 
 
 See Mod. Rep. 
 Modern Entries. 
 Modus Intrandi, 1, 2. 
 Modern Reports, K. B. See Mod. Rep. 
 Molloy's de Jure Maritimo. 
 
 MoUoy's Chancery Reports, Ireland, 3 vols., 1827-29. 
 Montagu's Reports, Bankruptcy, 1 vol., 1830-32. 
 Montagu and Bligh's Reports, Bankruptcy, 1 vol., 
 
 1832-33. 
 Montagu and Chitty's Reports, Bankruptcy, 1 vol., 
 
 1838-40. 
 Moody's Crown Cases, 2 vols., 1824-44. 
 Moody and Malkin's Reports, N. P., 1 vol., 1827-30. 
 Moore's Privy Council Cases, 15 vols., 1836-61. 
 Moore's Privy Council Cases, New Series, 6 vols., 
 
 1862-71. 
 Moore's India Appeals, 11 vols., 1836-67. 
 Moody and Robinson's Reports, N. P., 2 vols., 1831^4. 
 J. B. Moore's Reports, C. P., 12 vols., 1817-27. 
 Moore and Payne's Reports, C. P., 5 vols., 1828-31. 
 Moore & Scott's Reports, C. P., 4 vols., 1830-34. 
 Moore's Common Pleas Reports, 12 vols., 1817-27. 
 More's Notes on Stair's Institutions, Scotland. 
 Morrison's Dictionary of Decisions, Court of Session, 
 
 22 vols., 1540-1808. 
 Moseley's Reports, Chancery, 1 vol., 1726-31. 
 Murray's Reports, Jury Court, Scotland, 5 vols., 1815-30. 
 Mylue and Craig's Reports, Chancery, 5 vols., 1836-48. 
 Mylne and Keeue's Reports, Chancery, 3 vols., 1833-35. 
 
 N. Benl. 
 
 N. C. 
 
 N.L. 
 K Nov. 
 N. P. 
 
 N. E. 
 
 New Bendloe, K. B. Reports, 1 vol., 1509-1625. 
 Notes of Cases in the Ecclesiastical and Maritime 
 
 Courts, 7 vols., 1841-50. 
 Nelson's Lutwyche, Reports, C. P., 1 vol. 
 Novella (.Juris Civilis) (m). 
 Nisi Prius. 
 New Reports, by Bosanquet and Puller, C. P. , 5 vols., 
 
 1790-1807. 
 
 (m) The novels, or new constitutions, are explanatory of the Code. The greatest part of 
 these novels was composed in Greek, owing to the seat of empire being then in Constantinople. 
 Some, however, were published in Latin, and have been noticed by Antonius Augustinus. 
 There are four translations of the novels. The novels are quoted by their respective numbers, 
 chapters and paragraphs, e. g., Nov. 89, 0. 9, S 1. 
 
 After Justinian's death some part of his novels, to the number of 168, were collected and 
 reduced into one volume, together with 13 of the Greek Edicts, which make up the fourth and 
 last divison of the Corpus Juris CMlis. 
 
tl4 ABBREVIATIONS USED IN RBFERBNCBS TO ENGLISH, 
 
 IST.R. 
 N. S. 
 Nek 
 
 Nev. & M. 
 Nev. & P. 
 New Rep. 
 
 Nic. Ha. 0. 
 
 No. N. 
 
 No. Ca. Bee. & M. Ots. 
 
 Nol. Sett. 
 
 North. 
 
 Noy. 
 
 O. Benl. 
 Off. Br. 
 Off. Ex. 
 Ord. Ola. 
 Ord. Ch. 
 Orl. Bridgman. 
 Ought. 
 Ow. 
 
 P.O. 
 
 P. C. Act. 
 
 P. &D. 
 
 P. Pas. 
 
 P. R. 0. P. 
 
 P. W. 
 
 Pal. 
 
 Par. 
 
 Park. Ins. 
 
 Pat. App. Gas, 
 
 Pea. 
 
 Peak. Ad. Gas. 
 
 Peak. N. P. G. 
 
 Per. & Dav. 
 
 Per. & K. 
 
 Perk. 
 
 Ph. 
 
 Ph. Ev. 
 
 Phillim. 
 
 Pig- 
 Pig. & R. 
 PI. Com. 
 PI. pla. P. p. 
 Pol. 
 Poph. 
 2 Poph. 
 
 Postleth. Diet. 
 
 Pow. R. & D. 
 
 Pr. Ch. 
 Pr. Co. 
 
 Pr. Pale. 
 
 Pr. Reg. Ch. 
 Pres. Conv. 
 Pres. Abs. 
 
 Not reported. 
 
 New Series. 
 
 Nelson's Reports, Chancery, 1 vol., 1625-93. 
 
 Neville and Manning's Repoi-ts, K. B., 6 vols., 1831-36. 
 
 Neville and Perry's Reports, K. B., 3 vols, 1836-38. 
 
 New Reports in all the Courts, 6 vols., 1862-65. 
 ( Nicholl, Hare, and Carrow, Railway Cases, 7 vols., 
 j 1835-55. 
 
 Novae Narrationes. 
 ( Notes of Cases in the Ecclesiastical and Maritime 
 I Courts, 7 vols., 1841-50. 
 
 Nolan's Settlement Cases. 
 < Northington's Reports, by Eden, Chancery, 2 vols,, 
 \ 1757-66. 
 
 Noy's Reports, K. B., l_vol., 1559-1649. 
 
 Old Benloe, 0. P., 1 vol., 1486-1580. 
 
 Officina Brevium. 
 
 OfBce of Executors. 
 
 Orders, Lord Clarendon's. 
 
 Orders in Chancery. 
 
 Orlando Bridgman's Reports, G. P., 1 vol., 1660-67. 
 
 Oughton's Ordo Judiciorum. 
 
 Owen's Reports, K. B., 2 vols., 1556-1615. 
 
 Pleas of the Grown. 
 
 Probate Court Act. 
 
 Perry and Davison's Reports, K. B., 4 vols., 1838-41. 
 
 Easter Term. 
 
 Practical Register in Common Pleas. 
 
 Peere Williams' Reports, Chancery, 3 vols., 1695-1736. 
 
 Palmer's Reports, K. B., I vol., 1619-29. 
 
 Parker's Reports, Ex., 1 voL, 1743-67. 
 
 Park on Insurance. 
 
 Paton's Appeal Cases, House of Lords, 1 vol., 1858. 
 
 Peake's Reports, N. P., 29 vols., 1790-1812. 
 
 Peake's Additional Cases, 1 vol., 1795-1812. 
 
 Peake's Nisi Prius Cases, 29 vols., 1790-1812. 
 
 Perry and Davison's Reports, K. B., 4 vols., 1838-41. 
 
 Perry and Knapp, Election Cases, 1 vol., 1833. 
 
 Perkin's Conveyances. 
 
 Phillips' Reports, Chancery, 2 vols., 1841-49. 
 
 Phillips' Evidence. 
 
 Phillimore's Reports, Ecclesiastical, 3 vols., 1809-21. 
 
 Pigot's Recoveries. 
 
 Pigott and Rod well's Election Cases, 1 vol., 1843-45. 
 
 Plowden's Com. or Reports, K. B., 2 vols., 1550-1580. 
 
 Placita. 
 
 Pollexfen's Reports, K. B., 1 vol., 1669-85. 
 
 Popham's Reports, K. B., 1 vol., 1592-1627. 
 
 Cases at the end of Popham's Reports, 1 vol., 1617-26. 
 ( Postlethwaite's Universal Dictionary of- Trade and 
 \ Commerce. 
 
 ] Power, Rod well and Dew's Election Cases, 2 vols., 
 I 1847-56. 
 
 Precedents in Chancery (Pinch). 
 
 Prerogative Court. 
 ( President Falconer's Reports, Court of Session, 1 vol., 
 I 1744-51. 
 
 Practical Register in Chancery. 
 
 Preston's Conveyancing. 
 
 Preston on Abstracts. 
 
SCOTCH, IRISH AND ANCffiNT LAW BOOKS. 
 
 415 
 
 Pres. Bs. 
 Pres. Shep. T. 
 Price or Pr. 
 Priv. Lond. 
 Pr. St. 
 
 Preston on Estates. 
 , Slieppard's Touchstone, by Preston. 
 Price's Reports, Exchequer, 13 vols., 1814-24. 
 Privilegia Londini. 
 Private Statute. 
 
 Q. 
 
 Q. Attach. 
 
 Q. B. 
 
 Q. War. 
 
 Quinti Quinto ( ra ) 
 
 Quorum. 
 
 Quouiam Attachiamenta. 
 i Adolphus and Ellis, Queen's Bench Reports, New Series, 
 j 18 vols., 1841-52. 
 
 Quo "Warranto. 
 
 Tear Book, 5 Hen. V. 
 
 R. 
 
 R. S. L. 
 
 R.T. H. 
 
 R. T. H. 
 
 Rail. C. 
 
 Rast. 
 
 Ld. Raym. 
 
 Ray. T. 
 
 Raym. 
 
 Reev. E. L. 
 
 Reg. Brev. 
 
 Reg. PI. 
 
 Reg. Jud. 
 
 Reg. Maj. 
 
 Rep. (1, 2, etc.) 
 
 Rep. Ch. 
 
 Rep. Eq. 
 
 Rep. Q. A. 
 
 Rep. temp. Finch. 
 
 Rich. O. P. 
 
 Ridgw. Ap. 
 
 Ridg. & H. 
 
 Ridg. L. & S. 
 
 Rob. 
 
 Rob. A. 
 
 Rob. E. 
 
 Robert. Ap. 
 
 Roll, and Roll. Abr. 
 
 Roll. 
 
 Rose. 
 
 Ross. 
 
 Ross L. C. 
 
 Rub. 
 
 Run. Eject. 
 
 Rush. 
 
 Russ. 
 
 Russ & M. 
 
 Russ. & R. 
 
 Ry. P. 
 Ry. & M. 
 
 C. J. B. R., 1 vol., 
 
 3 vols., 1694-1734. 
 K. B., 1 vol., 1660-84. 
 
 Resolved, Repealed. 
 
 Reading Statute Law. 
 j Reports time of Hardwicke, 
 \ 1744^6. 
 
 Reports time of Holt, C. J. B. R., 1 vol., 1688-1710. 
 
 Railway Oases, 7 vols., 1835-54. 
 
 Eastell's Entries and Statutes. 
 
 Lord Raymond's Reports, K. B. 
 
 Sir Thomas Raymond's Reports, 
 
 Raymond. 
 
 Reeve's English Laws. 
 
 Register of Writs. 
 
 Regula Plaoitandi. 
 ' Registrum Judiciale. 
 
 Books of Regiam Majestatem, Scotland. 
 
 1, 2, Coke's Rep., etc. 
 
 Reports in Chancery, 1 vol., 1625-1713. 
 
 Grilbert's Rep. in Equity, 1 vol., 1705-25. 
 
 Rep. temp. Q. Anne, 1 vol., 1702-13. 
 • Pinch's Reports, Chancery, 1 vol., 1673-81. 
 
 Richardson's Practice, Common Pleas. 
 
 Ridgway's Appeals, Ireland, 3 vols., 1784-96. 
 
 Eidgway, temp. Hardwicke, Chancery, 1 vol., 1744^46. 
 ( Ridgway, Lapp and Schoales' Reports, K. B., Ireland, 
 \ 1 vol., 1793-95. 
 
 Robinson's Entries. 
 i Robinson's Reports Admiralty, or Robertson's Rep. of 
 < Appeals, 1 vol., (App.) 1707-27 ; 6 vols., (Ad.) 
 ( 1799-1808 ; 3 vols., (Ad.) 1838-52. 
 
 Robertson's Ecclesiastical Reports, 2 vols,, 1844-51. 
 
 Robertson's Appeal Cases, Scotland, 1 vol., 1707-27. 
 
 Rolle, Rep. and Abridgment, 2 vols., (Rep.) 1614-25. 
 
 Roll of the Term. 
 
 Rose's Reports, Bankruptcy, 2 vols., 1810-16. 
 
 Ross' Lectures on Conveyancing, etc., Scotland. 
 
 Ross' Leading Cases. 
 
 Rubricks. In such a Rubrick or Title. ( o) 
 
 Runnington's Ejectment. 
 
 Rushworth's Collections. 
 
 Russell's Reports, Chancery, 5 vols., 1826-29. 
 
 Russell and Mylne's Reports, Chancery, 2 vols., 1829-31. 
 
 Russell and Ryan's Crown Cases, 1 vol., 1799-1823. 
 
 Rymer's Foedera. 
 
 Ryan and Moody, N. P. Reports, 1 vol., 1823-26. 
 
 ( n ) V. 5 Henry VII, 19, 24. 
 
 (0) The Titles of the Boman Law, being formerly written In red letters, were called Hubrloks. 
 
416 ABBREVIATIONS USED IN BBFBRBNCBS TO ENaLISH, 
 
 S.§ 
 S. B. 
 S. 0. 
 S. C. C. 
 
 S. or S. & D. 
 
 5. P. 
 
 s. &s. 
 
 6. & Sm. 
 Salk. 
 
 Sau. & Sc. 
 
 Saund. & 0. 
 
 Saund. 
 
 Sav. 
 
 Say. 
 
 Sc. Jur. 
 
 So. L. R. 
 
 Scac. 
 
 Sch. & I/ef. 
 
 Sco. or Scott. 
 Sco. N. R. 
 Soriv. Cop. 
 Selw. N. P. 
 Sect. 
 Sel. Ca. 
 Seld. 
 Sem. 
 
 Sess. Ca. 
 
 Sh. 
 
 Sh. App. 
 
 Sh. Dig. 
 
 Sh. & M'L. 
 
 Shaud Pr. 
 
 Shep. Touclj. 
 
 Show. 
 
 Shower's P. C. 
 
 Sid. 
 
 Sim. & St. 
 
 Sim. or Sim. N. S. 
 
 Skene. 
 Skin. 
 
 Sm. & a. 
 
 Sm. Action. 
 
 Sm. Con. 
 
 Sm. Landl. and Ten. 
 
 Sm. L. C. 
 
 Sm. Merc. Law. 
 
 Sm. Eq. Manual. 
 
 Sm. Law of Prop. 
 
 Sm. Mast, and Serv. 
 
 Smi. & Bat. 
 
 Smith. 
 Smythe. 
 
 Section. 
 
 Upper Bench. 
 
 Same Case. 
 
 Select Chancery Cases, I vol., 1724-34. 
 j Shaw and Dunlop, Court of Session, First Series, 4 vols., 
 \ 1800-62. 
 
 Some Point or Principle. 
 
 Simons and Stuart's Reports, Chancery, 3 vols., 1822-26. 
 
 Searle and Smith's Reports, Probate and Divorce. 
 
 Salkeld's Reports, K. B., 3 vols., 1689-1712. 
 ( Sause and Scully's Reports, Rolls, Ireland, 1 vol., 
 I 1837^0. 
 
 Saunders and Cole, Bail Court Reports, 2 vols., 1842-48. 
 
 Saunders' Reports, K. B., 3 vols., 1666-73. 
 
 Savile's Reports, C. P., 1580-94. 
 
 Sayers' Reports, K. B., 1 vol., 1751-56. 
 
 Scottish Jurist, Court of Session, 42 vols., 1829-71. 
 
 Scottish Law Reporter, 6 vols., 1865-69. 
 
 Soaccaria Curia, Court of Exchequer. 
 ( Schoale and Lefroy's Repts., Chancery, Ireland, 2 vols., 
 } 1802-56. 
 
 Scott's Reports, C. P., 8 vols., 1834^-40. 
 
 Scott's New Reports, C. P., 8 vols., 1840-45. 
 
 Scriven on the Law of Copyholds. 
 
 Selwyn's Nisi Prius, 2 vols., 1859. 
 
 Section. 
 
 Select Cases, Chancery, 1 vol., H24-34. 
 
 Seld. 
 
 Semble, seems. 
 
 i Sessions Oases, and Carrow, Hamerton and AUen, 
 4 vols., 1844^57. 
 3 Shaw's Reports, Court of Session Cases, First Series, 
 } 16 vols., 1821-38. 
 
 j Shaw's Reports of Appeal Oases, House of Lords, 2 vols., 
 \ 1821-24. 
 
 Shaw's Digest of Decisions, Scotland, 4 vols., 1800-62. 
 ( Shaw and Maclean's Reports of Appeal Cases, House 
 ( of Lords, 3 vols., 1835-38. 
 
 Shand's Practice, Court of Session. 
 
 Sheppard's Touchstone. 
 
 Shower's Reports, K. B., 2 vols., 1678-95. 
 
 Shower's Parliament Cases, 1 vol., 1740. 
 
 Siderfin's Reports, K. B., 2 vols., 1657-70. 
 
 Simons and Stuart's Reports, Chancery, 2 vols., 1822-26. 
 ( Simons, or Simons' New Series, Reports, Chancery, 
 I 2 vols., 1850-52. 
 
 Sir John Skene's De Verborum Signiflcatione. 
 
 Skinner's Reports, K. B., 1 vol., 1681-98. 
 
 Smale and Giffard's Reports, Chancery, 3 vols., 1852-57. 
 
 Smith's (John W.) Action at Law. 
 
 Smith's Contracts. 
 
 Smith's Landlord and Tenant. 
 
 Smith's Leading Oases. 
 
 Smith's Compendium of Mercantile Law. 
 
 Smith's (Jos. W.) Manual of Equity, 
 j Smith's Compendium of the Law of Real and Personal 
 j Property. 
 
 Smith's (Chas. Manley) Master and Servant. 
 ) Smith and Batty's Reports, K. B., Ireland, 1 voL 
 \ 1824-25. 
 
 Smith's Reports, K. B., 3 vols., 1803-5. 
 
 Smythe's Reports, C. P., Ireland, 1 vol , 1839-40. 
 
SCOTCH, IRISH AND ANCIENT LAW BOOKS. 
 
 417 
 
 Sol. J. 
 
 Som. 
 
 Spel. 
 
 iSpottis. 
 
 Spottiswbode. 
 
 St. 
 
 Stair. 
 
 Stark. C. L. 
 
 Stark. Ev. 
 
 Stark. N. P. 
 
 Stat. W. 
 
 Staunf. St. P. 0. & Pr 
 
 Steph. Com. 
 
 Stew. Ans. 
 
 Stra. 
 
 Stuart. 
 
 Sty. 
 St. Tri. 
 Sug. V. & P. 
 Sug. P. 
 Swa. Ad. 
 
 Sw. & Tr. 
 
 Swans. 
 Swin. 
 
 Solicitor's Journal. 
 
 Somner, Somers. 
 
 Spelman. 
 
 Sir E. Spottiswoode's Reports, Court of Session. 
 
 Spottiswoode's Styles, Scotland. 
 
 Stair's Institutions of the Law of Scotland. 
 
 Lord Stair's Reports, Court of Session, 2 vols., 1661-81. 
 
 Starkie's Criminal Law. 
 
 Starkie's Evidence. 
 
 Starkie's Reports, N. P., 2 vols., 1815-22. 
 
 Stat. Westminster. 
 
 Staunforde Pleas and Prerogative. 
 
 Stephen's Commentaries. 
 
 Sir J. Stewart's Ans. to Dirleton's Doubts, Scotland. 
 
 Strange's Reports, K. B., 2 vols., 1716-49. 
 ( Stuart, Milne, and Peddie's Court of Session Reports, 
 ] 2 vols., 1851-53. 
 
 Style's Reports, K. B., 1 vol., 1645-46. 
 
 State Trials, 34 vols., 1825. 
 
 Sugden's Vendors. 
 
 Sugden's Powers. 
 
 Swabey's Admiralty Reports, 1 vol., 1858-59. 
 
 iSwabey and Tristram's Reports, Probate and Divorce, 
 4 vols., 1858-72. 
 Swanston's Reports, Chancery, 3 vols., 1818-19. 
 Swinburn on WiUs. 
 
 T. &M. 
 
 T. R. 
 
 T. R. 
 
 T. R. E. orT. E. R. (^p) 
 
 TamL 
 
 Taun. 
 
 Th. 
 
 Th. Dig. 
 
 Th. Br. 
 
 Tinw. 
 
 Tidd P. 
 
 Toth. 
 
 Tr. Eq. 
 
 Trem. 
 
 Trin. 
 
 Tudor Ca. M. L. 
 
 Tudor Gas. Pr. 
 
 Turn. 
 
 Turn. &E. 
 
 Tyrw. 
 
 Tyrw. & G-. 
 
 U.K. 
 Ulp. 
 
 V. &B. 
 
 Vatt. 
 
 j Temple and Mew's Criminal Appeal Cases, 1 vol., 
 } 1848-51. 
 
 Teste Rogo. 
 j Term Reports (Durnford and East), K. B., 8 vols., 
 I 1785-1800. 
 
 Tempore Regis Edwardi. 
 
 Tamlyn's Reports, Rolls, 1 vol., 1829-30. 
 
 Taunton's Reports, C. P., 8 vols., 1808-19. 
 
 Thomson on Bills and Notes, Scotland. 
 
 Theloall's Digest. 
 
 Thesaurus Brevium. 
 
 Lord Tinwald's Reports, Court of Session, 
 
 Tidd's Practice. 
 
 Tothill's Reports, Chancery, 1 vol., 1559-1646. 
 
 Treatise of Equity. 
 
 Tremaine Pleas of Crown. 
 
 Trinity Term. 
 
 Tudor's Leading Cases on Mercantile Law. 
 
 Tudor's Leading Cases on Real Property . 
 
 Turner. 
 
 Turner & Russell's Reports, Chancery, 1 vol., 1822-24. 
 
 Tyrwhitt's Reports, Exchequer, 5 vols., 1830-35. 
 ( Tyrwhitt and Granger's Reports, Exchequer, 1 vol., 
 \ 1836. 
 
 United Kingdom. 
 Ulpiani Fragmenta. 
 
 Vesey and Beames' Reports, Chancery, 3 vols., 1812-14. 
 Vattel's Law of Nations. 
 
 (p) This abbreviation is frequentiy used in Domesday Boole, and in the more ancient law 
 wrfiers. See Tyrrel's Hist. Bng. Introd. v. iii, 49. See also Cowel's Diet., verb. Reveland, where 
 notice as taken of a wrong inference of Lord Coke's 1 Inst. 86, from a quotation of Domesday 
 Book, where this abbreviation is interpreted, Terra RegU Edwardi. 
 
418 
 
 ABBEEVIATIONS. 
 
 Vaugh. 
 Vent. 
 Ves. 
 
 Ves. Jun. 
 Ves. & Bea. 
 Vet. Entr. 
 Vet. N. Br. 
 Vern. 
 
 Vern. &S. 
 
 Vid. 
 
 Vin. Abr. 
 Vin. Supp. 
 
 W. 1, W.2. 
 W. E. 
 
 W. &S. App. 
 
 Wallis. 
 
 Wats. 
 
 Wat. Cop. 
 
 Web. P. C. 
 
 Welsh. 
 
 Went. Off. Bxor. 
 
 Went. B. 
 
 WestH.L. 
 
 West & H. 
 
 Wils. Oh. 
 
 Wils. Ex. 
 
 WiUes. 
 
 Wilm. 
 
 Win. 
 
 Wight. 
 
 Wils. 
 
 Wm. Rob. 
 
 Wms. 
 
 Wms. Ex. 
 Wms. Just. 
 Wolf. &B. 
 Wolf. & D. 
 H. Wood. 
 Woodf. L. &T. 
 
 Vaughan's Reports, 0. P., 1 vol., 1665-74. 
 
 Ventris' Reports, K. B., 1 vol., 1668-91. 
 
 Vesey's, Sen., Reports, Chancery, 3 vols., 1747-53. 
 
 Vesey's, Jun., Reports, Chancery, 22 vols., ' 1789-1816 . 
 
 Vesey and Beames' Reports, Chancery, 3 vols., 1812-14. 
 
 OldB. Entries. 
 
 Old Nat. Brev. 
 
 Vernon's Reports, Chancery, 2 vols., 1681-1720. 
 I Vernon and Scriven's Reports, K. B., Ireland, 1 vol., 
 I 1786-88. 
 
 Vidian's Entries. 
 
 Viner's Abridgment. 
 
 Viner's Supplement. 
 
 Statutes Westminster, 1, 2 . 
 
 Weekly Reporter in all the Courts, 23 vols., 1853-75. 
 i Wilson and Shave's Reports, House of Lords, 7 vols., 
 I 1825-34. 
 
 Wallis' Reports, Chancery, Ireland, 1 vol., 1766-91. 
 
 Watson . 
 
 Watkin's Copyholds. 
 
 Webster's Patent Cases. 
 
 Welsh Registry Cases, Ireland. 
 
 Wentworth's Office of Executor. 
 
 Wentworth's Executor. 
 
 West's Reports, House of Lords, 1 vol., 1839-41. 
 i West's Reports, Chancery, iemp. Hardwicke, 1 vol., 
 I 1736-39. 
 
 Wilson's Chancery Reports, 1 vol., 1818-19. 
 
 Wilson's Exchequer Reports, 1 vol., 1817. 
 
 Willes' Reports, mainly in 0. P., 1 vol., 1737-60. 
 
 Wilmot's Notes and Opinions, K. B,, 1 vol., 1757-70. 
 
 Winch's Reports, C. P., 1 vol., 1621-25. 
 
 Wightwioke's Reports, Exchequer, 1 vol., 1810-11. 
 
 Wilson's Reports, K. B., 3 vols., 1742-74. 
 j WilHam Robinson's New Admiralty Reports, 2 vols., 
 j 1838-47. 
 
 I Williams' Rep., or Peere Williams' Chancery, 3 vols., 
 I 1695-1736. 
 
 Williams' Law of Executors. 
 
 Williams' Justice. 
 
 Wolferstan and Bristow's Election Oases, 1 vol.,1859-64. 
 
 Wolferstan and Dew's Election Cases, 1 vol., 1856-58. 
 
 Hutton Wood's Decrees in Tithe Cases. 
 
 Woodfall's Law of Landlord and Tenant . 
 
 Y.B. (2) 
 T. &C. 
 • Y. & 0. C. C. 
 Y. & J. 
 Yelv. 
 You. 
 
 You. & Coll. 
 You. & Jar. 
 
 Year Book, 11 vols., 1272-1535. 
 Younge and Collyer's Eq. Exch., 4 vols., 1833-41. 
 Younge and Collyer's Chancery Oases, 2 vols., 1841-43. 
 Younge and Jervis' Reports, Exchequer, 3 vols., 182G-30. 
 Yelverton's Reports, K. B., 1 vol., 1603-13. 
 Younge, Reports, Exchequer, 1 vol., 1830-32. 
 Younge and Collyer's Eq. Exch., 4 vols., 1833-41. 
 Younge and Jervis' Reports, Exchequer, 3 vols., 1826-30. 
 
 (q) The Year-books are usually referred to by the year of each king's reign, the iniiial letter 
 of Bis name, and the page and number of the placita ; to which is sometimes prefixed the initial 
 letter of the term, e.g., M. 4, H. 7, 18, 10 — Mic laelmasTerm, tth Henry VII, page 18, plaoitum 10. 
 
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