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EQUITY FOLLOWS THE LAW-contd. 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 which estates the intended husband shall have no power either to defeat or to diminish them (Trevor v. Trevor, 1 P. Wms. 622; Papillon v. Voice, 2 P. Wms. 571); and
(2.) In the construction of the beneficial 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 survivorship of the equitable estate, and decrees the survivor a trustee for the deceased as to the share of the deceased. Lake v. Gibson, 1 Wh. & T. L. C. 160.
EQUITY OF REDEMPTION: See title MORTGAGE.
EQUITY OF A STATUTE : See title INTERPRETATION,
ERROR, WRIT OF. After final judgment had been signed in an action, the unsuccessful party, if desirous of disputing the matter 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 lad 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 (2.) in a matter of law. (1.) The matter of fact must not have been an issue found by a jury (for which the only mode of reconsidering the same was by motion for a new trial), but it may have been such a fact as that the plaintiff was a minor, and appeared by an attorney instead of by his guardian, or the fact that the plaintiff, being a married woman, appeared without her husband; and in these and the like cases, the fact going to the validity or regularity of the proceedings, a writ of error coram nobis (or vobis) was available, that is to say, a writ of error to be tried before the same judges, because the reversal of such an error is not the reversal of the judgment of these judges, but the correction of something not previously brought under their notice. (2.) The error is an error of law, when, upon the face of the record, the judges are seen to have committed a mistake of law; and in this case the remedy was by writ of error generally (and not by writ of error coram nobis or vobis), the writ commanding the record or a transcript thereof to be sent to the Court of appellate jurisdiction,
ERROR, WRIT OF-continued. i.e., to the Court of Exchequer Chamber. To support this writ, the error must have been one of substance, inasmuch as errors of mere form are cured by the Statutes of Amendments and Jeofails (see these titles). But, at the present day, the writ of error, in both its varieties, has been abolished ; and now, under the C. L. P. Act, 1852, s. 148, error is made a step in the cause, and the Court has the same jurisdiction as upon a writ of error. For bringing error, the limit of six years from the date of signing judgment and entering the same of record is fixed by s. 146 of the lastmentioned Act, an allowance for disability being made by s. 147 of the same Act.
Before bringing error, a bill of exceptions must have been tendered to the judge before verdict, and must also have been certified by his seal being affixed thereto. But, by the Judicature Act, 1873, it is provided that, from and after the 1st of November, 1874, extended to the 2nd of November, 1875, bills of exceptions and proceedings in error shall be abolished. (49th Rule of Procedure.)
ESCAPE. In civil cases, this was defined 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 unlawful, 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 sheriff or his officer, then the escaped person might be pursued and retaken anywhere, and even on a Sunday; and in such a case, if the sheriff or his officer retook the prisoner before any action was brought for the escape, he was excused.
(2.) If the escape was voluntary, 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 judgment 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 sheriff, 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 32 & 33 Vict. c. 62 (the Debtors ESCROW-continued. comes a good deed upon the accomplishment of the condition.
ESCAPE-continued. Act, 1869), imprisonment for debt on a ca. sa. or on mesne process has been abolished with the exceptions in the Act mentioned.
In criminal cases there is no escape.
ESCAPE-WARRANT. This was a warraut granted to re-take a prisoner committed to the custody of the Queen's Prison who has escaped therefrom. It was obtained on atliduvit from a judge of the Court in which the action bad been brought, and was directed to all the sheriffs throughout England, commanding them to re-take the prisoner and to commit him to gaol when and where taken, there to remain until the debt was satisfied.
ESCHEAT. This word is derived from the French échoir, 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 sanguinis, i.e., on
account of the failure of blood, i.e.,
heirs, of the grantee; or (2.) Propter delictum tenentis, i.e., on
account of the felony or attainder
of the tenant. But by the Act 33 & 34 Vict. c. 23, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony or felo de se is to cause any attainder or corruption of blood, or any forfeiture or escheut. 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 excheat 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 commenced by writ of summons.
ESCHEATOR. 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 particular county, and to certify the same into the exchequer. An escheator could continue 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 be
ESCUAGE. This word is from the French écu, menning a shield or buckler, and denotes bucklerage, or rather a pecuniary satisfaction paid in lieu thereof. It
a composition offered by knighttenants to their lord, and accepted by him in lieu of their personal attendance on him in the wars.
From being occasional, this composition became general, and ultimately was levied by regular assessments.
ESSOIN. This was an excuse (whether on the ground of illness, de infirmitate, or on other ground), for not appearing in Court in pursuance of a summons contained in a writ. The first day of term was called the essoin day, or day for hearing excuses. But since 1 Will. c. 70, the essoin day has been done away with altogether, the practice of alleging such excuses, i.e., of casting the essoin having been discontinued even previously to that Act.
ESTATES. Absolute ownership is an idea quite unknown to the English Law of Real Property; the so-called owner of lands can, at the most, hold only an estate in them. The estate which he holds may, at the present day, be of a very various kind; originally, however, an estate for the man's own life was both the largest and the smallest estate in lands, being in fact the only recognised estate.
The estate for life was originally the largest estate in lands, for the simple reason that the lord would not grunt a larger one, the condition of the tenure being, that the tenant should be personally competent to discharge the feudal services annexed to it; and it was originally the smallest estate in lands, for the simple reason that the vassal might in all cases hold for life, conditionally upon his continuing competent to discharge the feudal services. Whence a grant of lands to A. B. was originally a grant to him so long as he personally could hold them, and not longer; in other words, it was an estate for his own life. And to the present day the effect of such a gift when it is made by deed is still the same, conferring an estate for life only, according to the maxim Verba dant feudo tenorem; the effect of such a gift even when made by will was equally the same until the year 1838, but as from that year it was enacted by the New Wills Act (7 Will. 4 & 1 Vict. c. 26, s. 28), that such latter gift should, in the absence of a contrary intention appearing on the will pass a fee-simple estate if the testator had that quantity of estate to pass.
If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, as son to sire, then that intention required, according to the maxim already quoted, to be expressed by additional words of grant, the gift being in that case expressed to be to the tenant and his heirs. This extended form of grant, however, did not originally give the ancestor more than a life estate; he and his heirs, i.e., descendants, were equally nominees in the original grant, and took as a succession of usufructuaries, each of them during his life, and for that period only, enjoying the benefit of the grant. Such was the construction which this form of grant received as far down as the reign of Henry II.; but from causes which were vigorously at work, that construction was abandoned by the reign of Henry III., and a construction adopted in its stead which is very nearly the construction of the present day,--that the ancestor is the alone nominee in the grant and takes a fee simple to himself, with power by subinfeudation and otherwise to defeat or prejudice his issue. The power of alienation, the facility of which is the chief characteristic of the modern fee simple, was not long to follow after, being complete as early as the 18 Edw. 1, c. 1, commonly called the statute Quia Emptores. See title ALIENA
The estate for life was originally inalienable, unless where the lord consented to the alienation, or, in other words, to the substitution of a different vassal for the first grantee; but the estate for life gradually became freely alienable without the lord's consent (see title ALIENATION, supra). When an estate for life was aliened in this latter way, the alienee took an estate pur autre vie, i.e., during the first grantee's life and not during the life of the alienee himself. Accordingly, the first grantee was in such a case described as the cestui que vie, and the alieneo was described as the tenant pur autre vie.
The estate pur autre vie was attended with peculiar incidents. It was subject, Jike the ordinary estate for life, to the feudal maxim, Verba dant feudo tenorem, and therefore when the grant was made to C. D. simply without more, C. D. took a tenancy pur autre vie for his own life only. Consequently, C. D.'s estate was doubly liable to determine, depending for its continuance upon the joint existence both of A. B., the first grantee, and of C. D., the alienee, and determining upon the death of either. If it was intended that the grant to C. D. should extend beyond the life of C. D. and throughout the life of A. B., then that intention required, according to the maxim
ESTATES—continued. already quoted, to be expressed by additional words of grant, the gift being in that case expressed to be to C. D. and his heirs. Now, if the grant were made to C. D. simply without more, and C. D. died leav. ing A. B. him surviving, the land was left without an owner so long as A. B. lived, the law not suffering A. B. to re-enter after having parted with his life estate. Neither could the lord apparently re-enter. No person having, therefore, a right to the estate, anybody might enter on it; and he that first entered became entitled forthwith to hold the land so long as A. B. lived, and was called the general occupant with reference to the manner in which he had acquired the land. On the other hand, if the grant were made to C. D. and his heirs, and C. D. died leaving A. B. him surviving, the land was not left without an owner so long as A. B. lived; but the heir of C. D. might enter and hold possession so long as A. B. lived, and was called the special occupant with reference to the manner in which he had acquired the land. General occupancy has been abolished, but special occupancy has been preserved, by the Statute of Frauds (29 Car. 2, c. 3, s. 12), and also by the New Wills Act (7 Will. 4 & 1 Vict. c. 26, ss. 3, 6), which have enacted in effect that the owner of an estate pur autre vie (apparently whether granted to him simply without more or to him and his heirs) may dispose thereof by will, and failing such disposition the heir as special occupant shall become entitled to it and to the extent thereof be chargeable with the debts of his ancestor: and in case there shall be no special occupant, then the executor or administrator of the deceased testator or intestate is to take possession of the land, and to the extent thereof to be chargeable with the payment of the debts of the deceased. By the Act 14 Geo. 2, c. 20, the surplus (if any) of an estate pur autre vie as to which the owner died intestate was made distributable, and by the New Wills Act the same is now distributable among the next of kin of the deceased ; and by the Act 6 Anne, c. 18, in a case of primâ facie concealment of the decease of the cestui que vie, with the determination of whose life the estate pur autre vie, as already stated, necessarily determines, the person next entitled to the land may upon atlidavit of his reasonable belief of such decease obtain an order from the Lord Chancellor for the production of the cestui que rie alive, and failing, or until such production, the applicant may enter upon and hold the land.
For the origin of the estate-tail, and the varieties thereof, see the next following titles.
ESTATE-TAIL. This is an estate given to a man and the heirs of his boily.
Growth of the Estate-Tail. The following stages in the growth of the estate-tail mav be indicated :
(1.) Permission was granted to the heirs of the tenant to succeed on the decease of their ancestor ;
(2.) The word heirs 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 expressly to a man and the heirs of his body;
(4.) This limitation to a man and the heirs of his body came to be construed in the Courts as a conditional gift, the condition being that the man should have issue, and so soon as that condition was fulfilled, the estate became an absolute estate in feesimple :. whence
(5.) The statuto De Donis Conditionalibus, 13 Edward 1 (Statute of Westminster the Second), c. 1, was passed, enacting that the will of the donor, according to the form of the deed of gift manifestly expressed should be from thenceforth observed, or, that the estate should descend according to the formedon (secundum forinam doni), so as that the ancestor should not alien it from his issue nor the donor be defeated of his reversion. This Act created the estate-tail as
at present exists. The further his of that estate is a history of the
Decline of the Estate-Tail. The estatetail was felt to be incouvenient in many ways, which were probably more sentimental than real, but the opposition of the nobility to the repeal of the statute succeeded in maintaining it intact for about 200 years, when,
(1.) By the decision in Taltarum's Case (Year Book, 12 Edw. 4, 19), by means of a quiet decision, or rather an obiter dictum, of the judges, the incident of alienation from the issue, and so as to defeat remaindermen and the reversioner, was annexed to the estate-tail. It was there pointed out, or admitted, that the destruction of the entil might be accomplished by means of judicial proceedings collusively taken against the tenant in tail for the recovery of the lands entailed. The nature and effect of these proceedings will be found stated and explained under the title Couvon RECOVERY, which see, that being the name by which the proceedings in question were characterised.
(2.) Another mode by which the estatetaiì might be barred, but as against the issne only, was the Five, for the history, nature, and effects of which, see that title.
(3.) These processes of barring the
ESTATE-TAIL-continued. entail, namely, Common Recovery and Fine, grew to be felt as cumbrous and inconvenient; they were also dilatory and expensive; and accordingly by the statute, 3 & 4 Will. 4, c. 74, a statute passed (it will be observed) at the time of the Reform Bill, 1832, fines and recoveries were abolished, avd a simpler mode of assurance was substituted for them. This latter assurance is commonly called a Disentailing Assurance, for the nature and effect of which see that title.
The so-called Perpetual Entail of modern times. There is a popular impression abroad that the entail is perpetual. This is a fallacy, the explanation of which is to be found in the modern artifice of conveyancers, whereby the entail is perpetuated. That artifice consists of the following parts:
Suppose that A. is tenant for life, and B. his son (as cominonly happens) is tenant in tail in remainder expectant on his father's decease, so soon as ever B, attains the age of twenty-one years,-an age at which, or shortly after attaining which, it is probable that B. will marry,- the father and son being ou friendly terms with each other, and the father more especially dreading that the inheritance may be dissipated through the son's folly, it is agreed between them to execute a disentailing deed of the estates, and to resettle them to the following uses, that is to say,
(1.) The father, who is already tenant for life, is to be created tenant for life again;
(2.) The son who, before executing the disentailing assurance, was tenant in tail, is to be created tenant for life only in remainder expectant on his father's decease ;
(3.) The first grandson (i.e., the first son of the son) being a person not yet in existence, but who may reasonably be expected to come into existence in due course of time, is to be created first tenant in tail of the estates in remainder expectant upon the decease or respective deceases of his father and grandfather, and so on with the second, third, fourth, &c., grandsons.
In this way the entail is pushed off into the next generation ; for the first grandson is the first tenant in tail, and he cannot alienate his estate until he is of the age of twenty-one years at the least, and is not (as already stated) yet in existence, Then when the grandfather of this grandson is dead, and the grandson's father is in possession of the estates, it is clear that the original condition of matters is restored, B. who is now the father being tenant for life, and the grandson who is now the son being tenant in tail.
So soon therefore, again, as the son has attained the age of ESTATE-TAIL-continued. twenty-one years, his father and he have only to repeat in their generation what was done in the generation before them; that is to say, execute a new disentailing assurance and re-settle the estates to analogous uses. And thus by means of disentailing assurances and deeds of re-settlement successively executed in each successive generation, the entail of freehoid lands in England is popularly regarded as being perpetual, and it is so practically in fact.
ESTATE-TAIL IN PERSONAL ESTATE. 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 circumstance that the stat. De Donis (13 Edw. 1, c. 1) extended only to real estate, and (2.), the decision in Leventhorpe v. Ashbie, Tud. L. C. Conv. 763.
ESTATE-TAIL QUASI. This is an estatetail 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 muy) 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 necessity of any inrolment of the deed of disentail in the Court of Chancery (Fearne'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 quasi, then the tenant for life, as being ex officio protector, must consent in order to the bar being effective against the remaindermen and reversioners. Allen v. Allen, 2 D. & War, 307.
ESTOPPEL. Is a term of law denoting that the person whom it affects is estopped ; i.e., stopped or hindered, from saying any. thing different to what has been 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; (2.) Estoppels by specialty; and (3.) Estoppels by matters in pais. The principle of, or justification for, the first of these three species of estoppel is, that no one shall aver against a record,
ESTOPPEL- continued. i.e., a judgment or verdict of the Court, so long as that judgment remained unreversed; and of the second, that a man shall not deny what he has already, 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 2 Sm. L. C. 679.
ESTOVERS. This word, which is derived from the French étoffer, to furnish, i.e., 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 estovers, namely, (1.) Housebote, being a sufficient quan
tity of wood for the fuel and
repairs of the house ; (2.) Ploughbote, being a sufficient quan
tity of wood for the making and repairing of agricultural imple
ments; and (3.) Haybote, being a sufficient quantity
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 purposes, and to none other. Any excess in the enjoyment or any misapplication of the just amount would be waste. Simmons v. Norton, 7 Bing. 640.
ESTRAYS. These are such animals of a tame and valuable character as are found wandering, i.e., straying, in any manor or lordship, and are without any apparent
The law gives all 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 derived from the Latin catractum, 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, recognisances, &c. imposed or taken by that Court upon or from the accused, and which are to be levied by the bailiff or other proper