« PoprzedniaDalej »
of any other person (Barrington v. Liddell, 2 De G. M. & G. 480); and such provisions are also exempt from the rule of perpetuities (Briggs v. Orford (Earl) i De
G. M. & G. 363); (2.) Provisions for raising portions,
whether given by the same instrument or by a different one (Beech v. Lord St. Vincent, 3 De G. & Sm. 678), the parents of the portionists taking, however, some interest under the instrument which directs the accumulation (Barrington v. Liddel, supra), however small that interest may be (Erans v. Hellier, 5 Cl. & F. 126 ), the interest of the parents acting analogously to the rule of
perpetuities, semble ; (3.) Provisions for raising a timber fund,
provided such provisions do not exceed the rule of perpetuities.
Ferrand v. Wilson, 4 Hare, 314. ACCUMULATIVE JUDGMENT. The passing distinct sentences for two or more distinct offences. By the Common Law such a judgment could only be given in cases of misdemeanours, 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. 28, s. 10, the Court was empowered to pass a second sentence, to commence after the expiration of the first, in a case of felony; and under the criminal statutes at present in force (24 & 25 Vict.) such accumulative punishments are in general use, not exceeding three in all.
See titles PERJURY; LARCENY. ACCUSED. This is the generic name for the defendant in a criminal case, and is more appropriate than either prisoner or defendant. Rex v. M'Naughten, 1 C. & K. 131.
AC ETIAM BILLÆ. The ac etiam clause was a form or fiction of law adopted first in the Queen's Bench, and afterwards 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. 2, st. 2, c. 2, having required that the true cause of action should be expressed in the writ or process, the Court of Queen's Bench was in danger of losing its entire jurisdiction in matters of debt; to obviate that result, the ac etiam clause was invented. And some few years afterwards, North, C.J., directed that in the Common Pleas the like fiction should be added to the usual complaint of break
AC ETIAM BILLÆ-continued. ing the plaintiff's close. But since the Uniformity of Process Act (2 Will. 4, c. 39) the necessity for this fiction has ceased.
ACKNOWLEDGMENT MONEY. A sum of money paid by copybold tenants in some parts of England on the deaths of their landlords as an acknowledgment of their new lords. It is the laudemium, or laudativum 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 copybold tenants is, however, an analogous payment.
ACKNOWLEDGMENT OF A DEBT. This consists in the admission that a debt is owing. Its effect upon a debt not yet barred by the Statute of Limitations is to cause the statutory period to commence running anew. The acknowledgment must be in writing under Lord Tenterden's Act (9 Geo. 4, c. 14), s. 1, and must be addressed to the creditor, or, semble, his agent (Fuller v. Redman, 26 Beav. 614); it may be signed either by the debtor himself or his agent (19 & 20 Vict. c. 97 s. 13). The acknowledgment, in order to be sufficient, must involve a promise to pay (Tanner v. Smart, 6 B. & C. 602); therefore the effect of a sufficient acknowledgment 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 acknowledgment.
ACKNOWLEDGMENT OF MARRIED WOMEN : See titles DEED ACKNOWLEDGED ; FINE AND COMMON RECOVERY.
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 bis agent, and signed by the party in possession or in receipt of the rents and profits of the lands, has the effect of rendering such possession or receipt 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 acknowledgment for the purpose of saving the Statute of Limitations.
ACQUIESCENCE. Where a person haying a full knowledge of the facts (Ramsden v. Dyson, 1 H. L. C. 129) neglects to dispute the right of another, he is said to acquiesce in such right. The effect of such acquiescence is a species of estoppel by conduct, see title ESTOPPEL; and it is one of the principal grounds upon which Courts of ACT OF BANKRUPTCY- continued.
trader for twenty-one days, after service thereof to pay or to secure or compound for the amount (not being an amount under 501.) demanded on the debtor's summons
of the petitioning creditor. ACT OF GOD. This is a pious phrase for an inevitable accident. No one is to be prejudiced by the act of God. 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 (Barkworth v. Young, 4 Drew.1); for that is no prejudice to bim, and the contrary would be a prejudice to the creditor.
See also title IMPOSSIBILITY.
ACQUIESCENCE—continued. Equity and also of Law rely in refusing relief to persons bringing forward their claims. The Courts of Equity carry this principle so far that in a matter of purely equitable jurisdiction they refuse relief to a plaintiff although he is within the period allowed by the Statutes of Limitation for the recovery of his rights. (See also title LACHES.) And when a person stands by and allows another to deal with property to which he claims or has a right, he is prevented from disputing the right of such other person, at least to the prejudice of a purchaser for value without notice (Teasdale v. Teasdale, Sel. Ch. Ca. 59). For the effect of acquiescence on the part of a landlord in avoiding the effect of a forfeiture for breach of covenant by his tenant, see title WAIVER.
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. 2. It signifies a deliverance or setting free of a person from a charge or suspicion of guilt.
ACQUITTANCE. A discharge in writing of a sum of money or other duty is so called. Such a discharge, unless it is by deed, is not pleadable, neither is it conclusive as evidence, for it may be shewn to have been given through mistake. A duly authorized agent may sign an acquittance so as to bind his principal
ACT OF BANKRUPTCY. This phrase denotes any one of the various grounds upon which a debtor may be adjudicated a bankrupt. Under the Bankruptcy Act, 1869, s. 6, these acts of bankruptcy are the following: (1.) A general conveyance or assign
ment by the debtor in trust for
bis creditors ; (2.) A fraudulent conveyance or transfer
by the debtor of the whole or part
of his property; (3.) The debtor's having done any of
the following things with intent to defeat or delay his creditors,
(e.) Suttered himself to be outlawed ;
declaration of his inability to pay; (5.) The levying of an execution for not
less than 501. against the debtor
by seizure and sale of his goods ; (6.) The debtor's having neglected, if a
trader for seven days, and if not a
ACTES. In French law, denotes documents, e.g., les actes de l'état civil-public documents. Compare the use of acta in Roman law, and the phrase Acts of Parliament in English law.
ACTES DE DÉCÈS. In French law, are the certificates of death, which are required to be drawn up before any one may be buried. (Aucune inhumation ne sera faite 8ans une autorisation de l'officier de l'état civil.-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 husband and wife to take each 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 with the sex and intended Christian name of the child, and the names of the parents and of the witnesses.
ACTIO NON ACCREVIT INFRA SEX ANNOS. In the times of Latin pleading, this was the phrase by which a defendant pleaded the Statute of Limitations 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 (jus persequendi in judicio quod sibi debetur).
All actions arise either out of contract or
ACTION AND SUIT-continued. out of tort; if a proceeding originates out 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: I. On contract,
(1.) Covenant, being on a deed alone; (2.) Assumpsit,-being on a simple
contract only; (3.) Debt,-being indifferently on a
deed or a simple contract;
(6.) Annuity. II. On tort,(1). Trespass,—being either (a.) Trespass quare clausum fregit,
-to real property ;
to personal property;
(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 stat. 3 & 4 Will. 4, c. 27, 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 necessary before commencing an action to see that the cause of action is complete, and, therefore, in the case of payments due against a certain 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 condition 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 growing out of contracts, to see that the plaintiff has that privity which is necessary to support the action and as against the particular defendant, otherwise the action will be demurrable ( Lumley v. Gye, 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 damnum merely (Stevenson v. Newnham, 13 C. B. 285; Acton v. Blundell, 12 M. & W. 324). Fourthly, that the wrongful act does not amount to a felony (Wellock v. Constantine, 2 H. & C. 146). Avd, fifthly, in case of the injuria being the breach of a public duty, private damage
ACTION AND SUIT-continued. must have arisen to the plaintiff from it. Kearns v. Cordwainers Co., 6 C. B. 388.
See also following titles, JOINDER OF
Causes ; CONSOLIDATION RULE ;
PARTIES; CROSS ACTIONS, &c. AD DAMNUM, That part of the declaration which commences with the words " to the damage,” &c., is termed the breach, and is thence sometimes called the breach ad damnum. Ch. on Pleading, 362, 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 registration of a bill 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 legacies and devises, and for the English and Roman law of ademption of legacies, see title LEGACIES 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 of justice.
See title WRIT 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 ad. journment, the parties and witnesses have permission to forbear their attendance during the period of adjournment. See as to Adjournment Days, Cheetham v. Sturtevint, 12 M. & W. 615.
ADJUDICATION. A giving of judgment. In Roman Law, the adjudicatio was the fourth of the four formulæ in use during the period of the formulary procedure (177 B.C. till 286 A.D.). It occurred in three actions only, viz., Finium regundorum, Communi dividundo, and Familiæ erciscunda.
ADJUSTMENT. This is the rateable distribution of a loss which is matter for general average (see GENERAL AVERAGE). In an adjustment, the le now adopted in England differs according as,
(1.) The ship arrives at its port of destination, in which case the selling price of the goods is taken ; or
(2.) The ship puts back to the port of
ADJUSTMENT - continued.
ADMEASUREMENT-continue l. lading, in which case the invoice price of been overlooked at the time of the assignthe goods is taken.
ment. At the present day, this writ of adBut in either case the goods sacrificed measurement is practically extinct as a as well as the goods saved are liable to form of process in both of the two cases in contribute towards making good the loss, which it was formerly used; and now an acit being obvious that the owners of the tion on the case is the common mode of
progoods sacrificed are not to be on a better ceeding by one commoner against another footing than the owners of the goods for a surcharging of the common, and a saved. Sm. M. Law, 295.
suit in Equity is the course to be adopted The remedy for enforcing contribution by the heirs against the widow for the towards a general average is by action at purpose of correcting an excess in the aslaw or suit in equity, but not (as a rule) in signment of dower (Hoby v. Hoby, 1 Vern. the Court of Admiralty.
218). There is no question, however, but When the amount of the indemnity for that the writ of admeasurement, never damage sustained in the course of a voyage having been expressly abolished, is still is ascertained, and the proportions thereof available for either of the two purposes which each underwriter of the policy is before-mentioned, although the wholesale liable to pay is settled, it is usual for the abolition of real and mixed actions which underwriter to indorse on the policy, “ad- was effected by the Acts 3 & 4 Will. 4, justed this loss at so much per cent.," or c. 27, s. 36, and 23 & 24 Vict. c. 126, s. 26, some words to the same effect, and this is
may be thought by some to have extended called an adjustment (1 Park on Ins. 192). to the writ of admeasurement also. The adjustinent when so mude is prima facie evidence both of the underwriter's ADMINICULUM. An aid or support to liability on the policy, and also of the something else, whether a right or the amount due; and the onus of proof is evidence of one. It is principally used to therefore thrown on the underwriter if he designate evidence adduced in aid or supalleges that the adjustment was obtained port of other evidence, which without it is through fraud, or was made under a mis
imperfect. take of fact, or even (it seems) of law. It is the common practice after an adjustment ADMINISTRATION. The discharging for the broker of the underwriter to give
of some duty or office, usually that of getto the assured his (the broker's) own note,
ting in and distributing the assets of a called a credit note, fur the amount of the
deceased person. loss payable in a month; but the under
See titles ADMINISTRATION OF ASSETS ; writer still in such a case remains liable,
ADMINISTRATOR. as a surety for the broker, in case the latter should become insolvent during the
ADMINISTRATION, GRANT OF. The month.
administration of the personal estate of See title GENERAL AVERAGE.
a deceased intestate belonged anciently ADMEASUREMENT. A writ which lay to the sovereign as parens patriæ, or to against those who usurped more than their certain lords of manors under a general share. It used to lie in two cases, first, for grant from him, and afterwards to the admeasurement of dower, and secondly, for ordinary who by the Statute of Westadmeasurement of pasture. In the former minster 2 713 Edw. 1.) c. 19, was recase, it was brought by the heir against quired to pay the debts of the deceased, the widow of a deceased, who withheld and who, at a still later period by the etat. from such heir, or his guardian, more land 31 Edw. 3, st. 1, c. 11, was required to dein respect of her dower than she was justly pute the administration to the next of kin entitled to, in which case the heir was to of the intestate. Thus stood administrabe restored to the overplus. In the second tion until the Court of Probate Act (1857), case, it lay between those who had com- 20 & 21 Vict. c. 77, whereby the power of mon of pasture appendant to their freehold, granting administration was transferred to or common by vicinage, when any one or that Court from the ecclesiastics. more surcharged the common with more In the grant of letters of administration, cattle thian he or they ought to have there are certain relations of the deceased thereon (F. N. B. 125, 148; Les Termes de who are considered to have a preferable la Ley). Nevertheless, the writ for ad- right. Thus, the husband lias an absomeasurement of dower did not lie where lute right to administer to his wife, and the excess in the assignment of dower was the widow has a moral right (which the attributable to the act of the heir himself, Court generally recognises) to adminster who made the assignment being at the time to her husband. When there is no husof full age; unless, indeed, the excess had band or widow, the right to administer arisen from the discovery of mines which had belongs to the next of kin according to
ADMINISTRATION, GRANT OF-con
tinued. their proximity in relationship, the right to the beneficial interest under the Statute 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 administers. 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 administration, namely:
(1.) A general administration,-when the deceased is wholly intestate;
(2.) Administration de bonis nom, -as upon the death of a sole executor after probate intestate, or upon the death of a sole administrator;
(3.) Administration durante 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 whereever the Court of Chancery would appoint a receiver of the estate;
(5.) Administration durante absentia, – as where a sole executor is out of the kingdom, and either (a) by the Common Law, before probate, or (b) by stat. 38 Geo. 3, c. 87, after probate; and
(6.) Administration cum testamento annexo,-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 administrations of a limited or temporary kind, e.g. until the will can be proved, or until the executor attains a certain age other than majority, and so forth.
Under the stat. 20 & 21 Vict. c. 77, s. 46, the district registrars of the Court of Probate may grant probate; and under 21 & 22 Vict. c. 95, s. 10, the County Court may make the grant.
The duty on administrations is regulated by the stats. 55 Geo. 3, c. 184, 23 Vict. c. 15, and 27 & 28 Vict. c. 56; and the stamp which is payable upon the bond commonly given by an administrator 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 in pay. ment of all his debts and legacies in their due and proper order. At the present 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 applica
ADMINISTRATION OF ASSETS/contd. tion of the different properties for that purpose. the following being the usual order :(1.) The general personal estate not be
queathed at all, or by way of re
sidue only; (2.) Real estate devised for the payment
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 (Hensman v. Fryer, L. R. 2 Ch. App. 420, extending Tombs
v. Roch, 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 general
power. In the application of these properties in or towards payment of debts in a due course of administration, the following is the order of priority in which different classes of creditors rank :(1.) Debts due to the Crown by record or
specialty ; (2.) Legacy and succession duties, and
other debts to which particular
statutes assign priority; (3.) Judgment debts duly registered ; (4.) Recognizances and statutes; (5.) Specialty con-) tract debts;
All placed upon simple tract debts;
a level by virtue or unregistered
ļin consequence of
the statute 32 & judgments;
33 Vict. c. 46; arrears of
rent-service; (6.) Voluntary bonds in hands of volunteers ;
Previously to the stat. 32 & 33 Vict. c. 46, specialty contract debts and arrears of rent-service were entitled to priority over simple contract debts and unregistered 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. 32 & 33 Vict. c. 46, appears to be to abolish altogether the distinction between legal and equitable assets in administrations.
See titles LEGAL ASSETS; EQUITABLE As
SETS ; and MARSHALLING OF ASSETS. ADMIRALTY, COURT OF. For the origin of this Court, see title COURTS OF JUSTICE. The general jurisdiction of the supreme Court is regulated at the present day by the stats. 24 & 25 Vict. c. 10,