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EXECUTOR-continued. the Court of Chancery. For this latter purpose executors may carry out their testator's contracts, and, as a rule, should endeavour by all means to do so. But an executor is not bound to insure or to keep up an insurance against fire. Under the stat. 23 & 24 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 him to pay or provide for the funeral and testamentary expenses 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 renounce 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 entitled 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 line of division, namely the death of the testator; and us to all contracts which had their commencement on the one side of that line, i.e., during the life of the testator, the executor is entitled and liable in his representative capacity only; but as to all contracts which had their commencement on the other side of that line, although these contracts are incidental to the contracts of the testator, the executor is entitled and is liable in his own personal capacity.
All the rules stated above regarding a lawful executor hold true, mutatis mutandis, for an administrator also.
(2.) A person becomes an executor de son tort from almost any intermeddling with the estate after the death of the testator; e.g., where A., the servant of B., sold the goods of C. the testator, as well after his death as before, though by the orders of C., and paid the money arising therefrom into the hands of B., the latter was held liable to be sued as executor de son tort (Padget v. Priest, 2 T. R. 97). So also living in the house and carrying on the trade of a deceased victualler was held to be a sufficient intermeddling to make an executor de son tort (Houper v. Summersett, Wightw. 16). Where there is also a lawful 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 executor was bound to perform in the due course of administration (Buckley v. Barber, 6 Ex.
EXECUTOR-continued. 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 lawful executor. Thompson v. Harding, 2 El. & Bl. 630.
EXECUTORY AND EXECUTED. These words denote respectively incomplete and complete, and that as well in their Common Law application to contracts, as also in their Equity application to trusts. Thus (1.) In the case of contracts,- 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 incompletely 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 always implied by law, where it is not expressed in words by the parties; but in 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 CONTRACT.
And (2.) In the case of trusts, -A trust is said to be executed when it is completely created or declared, and executory when the words of trust are merely directory, and point to some further instrument as being necessary to complete the declaration or creation. Many distinctions 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 instrument containing the executory trust contains a reference to marriage, Equity refuses 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 then Equity pe
the Law to have its own way. And, again, an executory trust which exceeds the rule against perpetuities, 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 exemplification of a recovery signifies a copy or transcript of the recovery roll, and the same should be set out literis et verbis in an abstract of title comprising it. Similarly, an exemplification of letters patent signifies a copy or transcript of letters patent made from the original inrolment.
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 documents, when numerous, are usually marked with some letter of the alphabet as a convenient mode of referring to and distinguishing 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 viva voce or by affidavit. But only some documents may be exhibited, namely, extracts froin registries, records from the Bodleian and Museum libraries, and generally 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 Westminster 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 substantiate it than the proof of the execution or of handwriting, e.g., if any ulterior circumstance which might affect it requires to be proved, and the opposite side would have a right to crossexamine upon that circumstance (Lake 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.
EXPROPRIATION. In 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 hypothèque (see that title), but afterwards extends to the lands not in hypothèque. Moreover, the debt must be of Îiquidated amount.
EXTENT. Is a writ of execution available in cases in which the Crown has an interest. The extent may either be an 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 debtor himself against his debtor, to aid his payment of the Crown debt. The extent of the
EXTENT- continued. Crown has priority over all executions of the subject.
See also title CROWN DEBTS. EXTINGUISHMENT. Is the destruction of an estate, or right, or power. A debt is said to be extinguished by payment, and a tort by satisfaction, according to the general maxim, Omnia judicia absolutoria esse.
See also titles PowERS; Rights, &c. EXTORTION. Is a criminal offence when committed by sheriffs or other officers; but, semble, a mere civil injury, when committed by other persons, against whom an action for money had and received will lie.
EXTRADITION. Denotes the giving up of a criminal by a foreign state in which he has sought refuge from prosecution to the state within whose jurisdiction the offence has been committed. The duty of a state to make extradition of criminals is by no means generally admitted, 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. The present practice of England with regard to the extradition of criminals is expressed in the Extradition Act, 1870 (33 & 34 Vict. c. 52), and the Extradition Act, 1873 (36 & 37 Vict. c. 60), which provide that when an arrangement for that purpose has been made with any foreign state, Her Majesty may by Order in Council direct that the Act shall apply in the case of such foreign state, subject to any conditions to be expressed in the order. But the former Act makes an express exception of political offences, the Secretary of State having it in his discretion to decide whether the offence is or not of a political nature. The Act of 1873 extends the provisions of the principal Act to the case of accessories punishable as principals. See generally Clarke on Extradition, 1874,
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, independently of statute, extrinsic or parol evidence was equally inadmissible in certain cases to throw light upon a written document; and that the Statute of Frauds, and other statutes which have made writing an ab
EXTRINSIC EVIDENCE-continued. EXTRINSIC EVIDENCE—continued. solute sine quâ non to the validity of cer- it would have done in Newburgh v. Newtain obligations, have not been the occasion burgh, supra) may be directed. of the inadmissibility of this species of evi- (2.) To supply a total blank in the will, dence, but have at the most only rendered whether of the name of the legatee or that inadmissibility somewhat more patent devisee, or of the amount of the legacy or (G088 v. Lord Nugent, 5 B. & Ad. 58). estate given. Doe v. Needs, 2 M. & W. Thus, before the Statute of Frauds, the 139; Edmunds v. Waugh, 4 Drew. 275. Courts were uniformly governed by the (3.) To identify a legatee or devisee or rule--that the judgment of a Court or judge the estate given, where there being some in expounding a will should be simply description, no part of that description is declaratory of what is in the instrument applicable to any person or estate. Hamp(Wig. Extr. Ev. p. 6); and since that shire v. Pierce, 2 Ves. 218; Miller v. Travers, statute the rule is the same, only more 8 Bing. 244. apparently so than before, inasmuch as And generally, although the judgment the admission of evidence to do more than of the Court or a judge in expounding a to declare what is in the will, would be, to will should be simply declaratory of what the extent the evidence was admitted, to is in the will, yetbe in fact making an additional or other (1.) Every claimant under a will has a will for the testator which he has not right to require that the Court or judge made. The question is, what has the testa- shall, by means of extrinsic evidence, place tor written, not what (in any one's opinion) itself or himself in the situation of the teshe intended or ought to have written. tator, the meaning of whose language it
(A.) Considering the matter, firstly, with or he is called upon to declare; and reference to Wills. The following are the (2.) The intention, as an independent uses to which extrinsic or parol evidence fact, may be proved by means of the like may be legitimately applied :
evidence in all those cases in which the (1.) Where there is nothing in the con- description being accurate, i.e., unamtext of a will shewing that the testator biguous on the face of it, its applicability has used words in other than their strict to each of several subjects, or to each of or primary acceptation, but that accepta- several objects, occasions what is called a tion is insensible with reference to extrinsic latent ambiguity. See also titles LATENT circumstances, then the extrinsic circum- AMBIGUITY; PATENT AMBIGUITY. stances may be looked at for the purpose (B.) Considering the matter, secondly, of arriving at soine secondary or popular with reference to other instruments than sense which shall be sensible with reference wills. The following is an enumeration of to these circumstances.
the purposes for which extrinsic evidence in (2.) Where the written characters of the connection with written documents may be will are difficult to decipher, or the words admitted :of the will are in an unknown or unusual (1.) To prove the making of the contract; language, the evidence of persons experienced in deciphering written characters
been a contract; or acquainted with the language is admis- (3.) To prove that the contract was insible for the purpose of informing the Court
duced by fraud, mistake, or judge.
duress; (3.) Extrinsic evidence is also admissible (4.) To prove that the writing was signed for the purpose of identifying the object of
conditionally; the testator's bounty (whether devisee or (5.) To annex to the contract usages of legatee), and for the purpose of identifying
trade not inconsistent with the the subject of disposition.
express terms thereof; (4.) Also, for the purpose of defeating a (6.) To explain terms of a technical trade fraud, whereby either the wrong will is
significance; executed or an alteration in or omission (7.) To identify the parties and also the from the true will is occasioned. Doe v.
subject-matter; and Allen, 8 T. R. 147.
(8.) To prove that the contract is illegal. On the other hand, extrinsic evidence
See Wigram on Extrinsic Eviwill not be admissible for the following
dence; Leake on Contracts, purposes :
pp. 106-125. (1.) To add to the contents of a will, by proof of a mistake of the testator (Brown v. Selwin, Cas. t. Talb. 240), or of the coun
F. sel who prepared the will (Neuburgh (Earl) v. Newburgh (Countess), 5 Mad. 364, 1 M. & FACTOR. Is a commercial agent, enScott, 352"; but an issue devisavit vel non, joying certain privileges that are peculiar where that will serve the same purpose (as to him, and not common to agents generally.
FAIT-continued. These privileges are due in some measure prudence, the phrase fait juridique, or to the circumstance that the factor is in a factum juridicum, denotes one of the factors position that is analogous to that of the or elements constitutive of an obligation. consignee of goods. Thus, he was able by the Common Law to bind his principal by
FALDAGE, called also FOLDAGE, Is a the sale of the goods entrusted to him, and
privilege enjoyed by certain lords of manors he still has that power; but he could not
and others of setting up folds, i.e., inclosures, pledge the goods in a valid manner. How- for sheep, as well belonging to theniselves ever, under the stat. 6 Geo. 4, c. 94, usually
as to their tenants, in order with the manure called the Factors' Act, he is enabled to
thereof to fatten their lands. The privilege make a valid pledge of the goods, or of any
is sometimes called suit of fold, secta faldæ. part thereof, to one who believes him to be The tenant by paying a fald-fee might have the bona fide owner of the goods; and
commuted the privilege. under the stat. 5 & 6 Vict. c. 39, he is
FALSE IMPRISONMENT. An action further enabled in all respects, as if he were the true owner of the goods, to enter
will lie for false imprisonment as well into any contract or agreement regarding Courts as also against private individuals
against officers exceeding the process of the them by way of “pledge, lien, or security,' as well for an original loan, advance, or
assuming to imprison. For the success of
the action it is necessary to prove both payment made on the security of such
malice on the part of the defendant and goods or documents, as also for any further
the absence of all reasonable or probable or continuing advance in respect thereof, and such contract or agreement is made
See also title MALICIOUS ARREST. valid against the principal, notwithstanding the lender was fully aware that the bor- FALSE JUDGMENT, WRIT OF. This rower was a factor only. This power does was a writ which lay to the Superior Courts not extend to antecedent debts.
at Westminster to rehear and review a case
which had been tried in an inferior Court, FACTORIES. Are placed under statu
and the judgment in which was submitted tory supervision; the stat. 42 Geo. 3, c. 73,
to be erroneous. In lieu of this writ, an regulating the health and morals of ap
appeal is open to the party dissutisfied with prentices and others employed therein, the
the judgment. See Judicature Act, 1873. stat. 3 & 4 Will. 4, c. 103 (Factory Act, 1833), amended by the Factory Acts, 1844 FALSE REPRESENTATION: See titles and 1856, regulating the labour of children
FRAUD; WARRANTY. and young persons therein. And under the stat. 30 & 31 Vict. c. 103, the meaning
FALSE RETURN: See title RETURN. of the word “ factory” is, for the purposes FALSIFY. This word, as occurring in of these Acts, extended to smelting works,
the phrase “ with liberty to surcharge and copper mills, iron and brass foundries, and
falsify,” means to impugn as false or erroto paper, glass, and tobacco manufactories,
neous certain items or entries in an account. and to letterpress printing and bookbinding.
The Court of Chancery, where an account The employer of labour in factories is
has been stated between parties, and they also subject, even by the Common Law, to
afterwards disagree regarding it, may either make due provision, e.g., by properly fencing open the whole account or (according to liis machinery, for the security of the lives
the nature of the case) merely give liberty and linubs of his workmen. Coe v. Platt,
to surcharge and falsify particular items in 7 Ex. 460.
the account. FACULTY (facultas). A privilege or
See also title SURCHARGE, special dispensation granted to a man by
FARM. This is the old Saxon feorme, favour and indulgence, permitting him to
and signifies a provision. Anciently, rents do that which by the law he could not do;
were reserved in provisions, such as corn, as to marry without banns being first pub
poultry, and the like, a money equivalent lished; to hold two or more ecclesiastical
not having been finally introduced until livings at the same time; and the like
the time of Henry I. Originally, therefore, (25 Hen. 8, c. 21; Les Termes de la Ley).
farm meant rent, and by a natural transAt the present time a faculty is not unfre
position it now means the land out of which quently granted for the removal of a
the rent issues. churchyard or church; as to which see
See also title LEASEHOLD. 32 & 33 Vict. c. 94.
FEALTY. * This word signifies fidelity, FAIRS: See title MARKET.
the.phrase " feal and leal” meaning simply FAIT. This word was used in the old faithful and loyal. Tenants by knights' law to signify a deed, factum. In juris- | service and also tenants in socage were re
FELONY-continued. Common Law the forfeiture of the felon's lands and goods, or at any rate of his goods. The word “ felony" in its generic sense includes even treason, and under particular statutes, e.g.,39 & 40 Geo. 3, c. 93, the offence of treason may be prosecuted as a felony. The crime of felony stands midway between treason and misdemeanors. See both these titles.
FEME COVERT. 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 MARRIED WOMAN. FEME SOLE. An unmarried woman is so called ; also, any woman who, although married, is in matters of property independent of her husband, is a feme sole quoad such property, and may deal with it in every respect as if she were unmarried, Taylor v. Meads, 34 L. J. (Ch.) 203.
FENCES: See title PARTY-WALLS.
FEOFFMENT : See title CONVEYANCES.
FEALTY-continued. quired to take an oath of fealty to the king or other their immediate lords; and fealty was one of the conditions of their tenure, the breach of which operated a forfeiture of their estates.
FEE. According to Spelman, this is the right which 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 services therefor. Fees were either Fee Simple or Fee Tail, the former being a simply, i.e., generally, inheritable estate, open to heirs general, the latter being also an inheritable estate, but in a limited, i.e., tailed manner only, to wit, open to lineal descendants only, or issue or heirs of the body.
See title ESTATES. FEE FARM. This is a species of holding or tenure, of a mixed nature, partly freehold and partly leasebold only. It corresponds as nearly as may be to the Emphyteusis of Roman Law, which title see; and for fee farm rent, see title RENTS.
FEE SIMPLE: See title ESTATES.
FEIGNED ISSUE. This was a fictitious issue, or rather a true issue raised by means of a simple fiction. The fiction raising it was resorted to in order to obviate the expense and delay of pleadings; e.g., the plaintiff by a fiction declared that he laid a wager of £5 with the defendant that certain goods were his (the plaintiff's) goods, and then averred that the goods were his; whereupon the defendant, admitting the feigned wager, averred that the goods were not the plaintiff'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, 8. 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 teigued 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 malicious act in committing which he occarions his own death; as, e.g., when unlawfully 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
FERÆ NATURÆ. Animals 80 described are wild animals in which there is no property, but in respect of which, or of some of them, there may be an exclusive right of preserving and of killing, which is analogous to the right of property, and which is designated Game. See that title.
FERRY. Is properly a place of transit across a river, or arm of the sea ; but in law it is treated as a franchise, and defined as the exclusive right to carry passengers across 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 unconnected with the ownership or occupation of land, so much so, that the owner of the ferry need not have any property in the soil adjacent on either side (Newton v. Cubitt, 12 C.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-five years, a jury will presume that the ferry had a legal origin (Trotter v. Harris, 2 Y. & J. 285); and in case of a disturbance of the franchise, it is sufficient for the plaintiff to shew that he was in possession at the time of the disturbance. Trotter v. Harris, supra.
FEUD. This was a fee (see that "title). Feuds were either proper or improper, the former class being purely military, given freely, i.e., gratis, to persons duly qualified to discharge military services, the latter