« PoprzedniaDalej »
ADMIRALTY, COURT OF—continued. and 26 Vict. c. 24; and jurisdiction in Admiralty causes was conferred upon the County Court by the stat. 31 & 32 Vict. c. 71. The Court of Admiralty was thrown open to practitioners by the stat. 22 & 23 Vict. c. 6; but the modes of practice, together with the effects 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 (The Mary Ann, 31 L. J. (Adm.) 73), and the party is not prejudiced in taking that objection by appearing, (The Eleanor, 32 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.
See titles COLLISION; SEAMEN; SAL
VAGE; PRIZE; SHIPPING, ADMISSIBILITY OF EVIDENCE. This phrase denotes the quality of matters adducel in evidence, according to which they are or not receivable, i.e., admissible 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 weight being for the jury or for the judge sitting as a jury.
See title EVIDENCE.
ADMISSIONS—continued. 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 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.
ADOPTION. In French law, is permitted 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 liis natural parents, being in fact the adoption of Roman law, in time of Justinian.
AD QUOD DAMNUM. A writ so called, which ought to have been issued before the King granted certain liberties, as a fair, market &c., which might happen 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 opinion of the editor of Williams' Saunders' Rep. vol. ii. ed. of 1871, p. 484, n. (d), that this latter use of the writ has been virtually done away with.
AD TERMINUM QUI PRÆTERIIT. 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 Will. 4, c. 27, s. 36.
ADULTERATION. This phrase is commonly applied to the offence of mixing up with food or drink intended to be sold, other matters of an inferior quality, and generally of a more or less deleterious character. The principal statute upon the subject is the 35 & 36 Vict. c. 74, which incorporates the 23 & 24 Viet. e. 84, and also (The Pharmacy Act, 1868) 31 & 32 Vict. c. 121.
ADMISSION. This word denotes the ordinary's signification of his approval of the clerk presentee of a living; it sometimes includes both approval and institution. Co. Litt. 344 a.
See also title ATTORNEY. ADMISSION OF DOCUMENTS. Under the C. 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 costs of proving the document 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 (Neale v. Jakle, 2 O. & K. 709), or by conduct (Pickard v. Sears, 6 A. & E. 469), or by the assumption of a particular office or character (Peacock v. Harris, 10 East, 104), or by writing under hand, unless stated to be " without prejudice” (Paddock v. Forester, 3 Scott, 731), or by deed; as to all which sce title ESTOPPEL.
But the word “ admissions" is more commonly used to denote the mutual concessiops 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
ADULTERY OR ADVOWTRY (Adulterium). The sin of incontinence by married persons. The crime of adultery is sometimes distinguished into single and double ailultery. Single adultery is the crime of illicit intercourse between two persons one only of whom is married. Double adultery is the crime of illicit intercourse between two persons both of whom are married (Cowel). This offence is of a tortious and not of a criminal nature (Mordaunt v. Moncreiff, 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. 20 & 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 profession or trade, or for his or her bringing out in society, or (if intended for the church) for his educacation at one of the universities of Oxford or Cambridge.
In Equity, the term has a similar meaning, but a somewhe 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 obligation to provide, and for whom he has not as yet made a provision, and the conveyance or assign. ment 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 presumption of advancement is raised in favour of the following persons : (1.) A legitimate child (Sidmouth v. Sid.
mouth, 2 Beav. 447); (2.) An illegitimate child (Beckford v.
Beckford, Lofft. 290); (3.) A grandchild (father being dead)
(Ebrand v. Dancer, Ch. Ca. 26); (4.) A wife (Drew v. Martin, 2 H. & M.
130); (5.) A wife's nephew (Currant v. Jago,
1 Coll. Ch. Ca. 261); But the presumption has not hitherto been extended to the following cases :
ADVANCEMENT - continued. (1.) An illegitimate grandchild (Tucker
v. Burrow, 2 H. & M. 515); (2.) A kept woman. Rider 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 corroborated 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 suspected to feign being so, with the view of producing a supposititious heir to the estate. Cowel ; Reg. Orig. 237.
ADVERSE CLAIM. Where the sheriff 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 transitu, and the buyer insists upon having the goods delivered to bim, the wharfinger or other person in custody of the goods may have an interplt a ler summons requiring the two parties to litigate between themselves their adverse claims.
See title INTERPLEADER. ADVERSE POSSESSION. The possession of the tenant for life under a settlement is consistent with the right of the remainderman; and such tenant may not alter the quality of his possession so as to make the same adverse to the remainderman (Nemo potest mutare causam possessionis sux). On the other hand, the possession of a mortgagee is adverse to the title of the mortgagor; and precisely because it is sucli, it will mature after twenty years' duration 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, 8. 102, 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 offering to repay to any pawnbroker or other the amount advanced on the security of the
ADVOWSON- continued. property, forfeits the sum of £50 for every usually done by the separate acts of presuch offence, to be recovered by any in. sentation and institution. An advowson formant thereof. And the printer and
is termed donative when the king or a publisher are also liable, but in their case subject founds a church or chapel, and the action is to be commenced within six does by a single donation in writing place months, and only after obtaining the sanc- the clerk in possession, without presentation of the Attorney-General or Solicitor- tion, institution, or induction (Cowel ; Co. General to the institution of the pro- Litt. 17 b. & 119 b.) Again, advowsons are secution,
either advowsons of rectories or advowADVOCATES. In the Roman law, and
sons of vicarages; the former having been also in those English Courts which have
created in very early times, almost contemlargely moulded themselves upon that law, poraneously with the creation of the manor
itself; the latter having grown up more the persons who undertake and have the liberty to plead the causes of others are
gradually, and as a consequence of the called advocates. Their duties are analo
monasteries appropriating to themselves
the tithes of the churches, and delegating to gous to those of barristers, and since the recent Acts, which have thrown open to all
a locum tenens (vicar) the duties of the rector.
The stipend of the vicar, which was at first practitioners the practice in all the various Courts, the term “advocate" is used inter
precarious and inadequate, was settled at changeably with, although less frequently
an adequate amount, and also secured to than, that of barrister. In ecclesiastical
him, by the Acts 15 Ric. 2, c. 6, and
4 Hen. 4, c. 12; whence at the present law, those persons whom we now call patrons of churches, and who reserved to
day a vicarage is in general as valuable themselves and their heirs a liberty to
a living as a rectory is. present to the living on any avoidance,
An advowson, being the right of prewere also called advocati ecclesiæ, i.e., de
sentation in perpetuum, as often as a vafenders of the church (Spelman's Advo.
cancy arises, is considered real estate, while catus). So that the original meaning of
a right of presenting once only, or a single Gulcowson was that of a fortress or defence
presentation, is considered personal proof the church. Patrons of churches were
perty only. also sometimes called advowees or avowees, ÆSTIMATIO CAPITIS. This phrase and the sovereign was advowee paramount. denotes the value or price set upon an ADVOWEE : See title ADVOCATE.
individual. In Anglo-Saxon times, when
money penalties were the universal punishADVOWSON (advocatio). The right of ments of offences, King Athelstan, in a presentation to a church or benefice; and
parliament held at Exeter, fixed a tariff of he who has the right to present is called mulcts to be paid pro æstimatione capitis, the patron or patronus, sometimes also
i.e., according to the rank of the party adrocatus, and sometimes defensor. Ad- wounded or slain. A like tariff existed vowsons are of two kinds : (1) Appendant, in Roman law, nam secundum gradum and (2) In gross. An advowson appendant dignitatis vitæque honestatem crescit aut means an advowson which is, and which
minuitur æstimatio injuriæ.” Just. Inst. iv. from the first has been and ever since con
4, 7. tinued to be, appended or annexed to a minor, so that, if the manor were granted
ETATE PROBANDA. A writ that used to any one, the advowson would go with it formerly to be directed to the sheriff of a as incident to the estate. An advowson in county, commanding him to summon twelve gross signifies an advowson that belongs men, as well knights as other honest and to a person, but is not annexed to a manor ; lawful men, to be before certain commisso that an advowson appendant may be
sioners previously appointed to inquire made an advowson in gross by severing it
whether or not the king's tenant, holding by deed of grant from the manor to which in chief by chivalry, was of full age to it was appendant. Advowsons are also receive his lands into his own hands. The either (1) presentative, (2) collative, or (3)
commission by which the above commisdonative. An advowson is termed pre- sioners were appointed was thence called sentative when the patron has the right of “ The commission pro ætate probanda.” presentation to the bishop or ordinary, and Cowel; 4 Co. Dig. 139. also to require of him to institute his
AFFIANCE. To agree to marry, and clerk, if he finds him qualified. An advowson is termed collative when the bishop
generally to pledge one's troth or trust. and patron happen to be one and the same AFFIDATIO. A swearing of the oath of person, so that the bishop, not being able fidelity or of fealty to one's lord, under to present to himselt, performs by one act whose protection the quasi-vassal has vo(which is termed collation) all that is luntarily come.
AFFIDAVIT. A written or printed state- AGE. Signifies in the law those periods ment made voluntarily, and verified by oath, in the lives of persons of both sexes, which for the purpose of being used in a Court of enable them to do certain acts which, beJustice as evidence of facts. In Courts of fore they had arrived at those periods, Law, affidavits are chiefly used upon sum- they were prohibited from doing. As for mary applications only; but in Courts of example: å male at the age of twelve Equity they are used upon all sorts of ap- years may take the oath of allegiance; at plications, whether formal or summary. fourteen, which is his age of discretion,
An affidavit consists of three essential he may consent to marriage or choose his parts: (1) the title, (2) the statement of
guardian; and at twenty-one he may alien facts, and (3) the jurat. The affidavit his lands, goods, and chattels. A female should be entitled in the Court in which it
at nine years of age is dowable; at twelve is to be used, and in the cause or matter, may consent to marriage ; at fourteen is or both (as the case may be), in which it at years of discretion, and may choose a is made. The statement of facts should be guardian ; and at twenty-one may alien plain and unequivocal; the best evidence her lands, &c. But the full age of either should, as a rule be adduced, but matters male or female is twenty-one, until which of hearsay, belief, or information are not time they are considered as infants (Co. excluded. Tho affidavit may be sworn Litt. 78; Cowel). The age of twenty-one either in Court or at chambers, or at the years is complete on the first moment of office of the Record and Writ Clerks, or the last day next before the twenty-first before one of the commissioners appointed anniversary of the birth. for that purpose ; and if made in a foreign See title Day. country, then they may be sworn before the mayor or other magistrate, attested and AGENT : See title PRINCIPAL AND certified by a notary public. If the affidavit
AGENT. is in a foreign language, it must be accom- AGENT AND PATIENT. The same panied with a verified translation.
person who is the doer of a thing and the See title EVIDENCE.
party to whom it is done; as when a woman AFFILIATION : See title BASTARDY.
endows herself of part of her husband's
possessions, this being the act of herself AFFINITY. The relationship which to herself, makes her agent and patient. marriage occasions between the husband
Co. Litt. 8, 138; Cowel. and the blood relations of the wire, and between the wife and the blood relations
AGGRAVATION (MATTER OF). In the of the husband. Thus, there is an affinity
language of pleadings signifies matter between the wife and her husband's bro- which only tends to increase the amount ther, but there is no affinity between the
of damage, but which does not concern wife's sister and the husband's brother, or
the right of action itself. Thus, in an between the husband's sister and the wife's
action of trespass for chasing sheep, by brother.
which the sheep died, the dying of the AFFIRMATION. This has been substi
sheep is matter of aggravation only, and
need not be alleged by the plaintiff in his tuted for an oath in the case of certain
declaration. Steph. on Pl. 270, 4th ed. religionists who object, on grounds of conscience, to take an oath-e.g. in the case
AGIST. To take in and feed the cattle of Quakers, Separatists, and others; and, of strangers for reward; whence agistin short, any person objecting to be sworn ment is the taking in and feeding of such may make a solemn affirmation instead (33 cattle. & 34 Vict. c. 49).
AGNATI. See title EVIDENCE.
Sometimes called Adgnati,
were those relations of a person, not being AFFOREST (afforestare.) To turn ground of course sui hæredes, who connected into a forest (Cowel). When forest ground themselves with him by a male relationis turned from forest to other uses, it is ship all through. They ranked next after said to become disafforested. Tomlins. the sui hæredes, and next before the cogSee title FOREST.
nati. Justinian, after numerous approxi. AFFRAY (from the Fr. effrayer, to mations, eventually entirely abolished all affright). The fighting of two or more per
distinctions between agnati and cognati, sons in some public place to the terror of so that agnati and cognati indifferently others; and there must be a stroke given or were the next of kin of a person, or, more offered, otherwise it is no affray, howsoever properly speaking, his nearest relations. quarrelsome or threatening the words may See title NEXT OF Kin. be; and the fighting must also be in public;
AGREEMENT: See title CONTRACT. for if it be in private, it is no affray, but an assault. The punishment for an affray AGRICULTURAL CONTRACTS: See title is fine or imprisonment, or both.
AGRICULTURAL FIXTURES : See title FIXTURES.
AIDER. This word is commonly used in two senses, Ist, by itself, when it signifies an abettor: See title AIDERS AND ABETTORS. 2ndly, in conjunction with the word verdict AIDER BY VERDICT means euring by verdict. The phrase is used in reference to faults or omissions in pleading. Some faults, errors, or omissions in pleading are aided or cured by the adverse party taking no notice of them, or pleading over, as it is termed, instead of demurring. Others, however, are of so serious a character that even after the party has obtained the verdict of a jury in his favour, the Court, on being applied to, will stay or arrest the judgment, upon the ground that the error is of so important a nature as to vitiate the proceedings. Thus, where a plaintiff brought an action on the case as being entitled to the reversion of a certain yard or wall to which the plaintiff alleged in his declaration a certain injury to have been committed, but omitted to allège that the reversion was prejudiced, or to shew any grievance which, in its nature, would necessarily prejudice the reversion, the Court arrested the judgment after a verdict had been given in favour of the plaintiff'; for in this case the gist of the action was the injury to the reversion, and the plaintiff in his declaration had in fact not shewn any such injury to exist. When, however, it may be reasonably presumed, that is, presumed consistently with the general tenor of the pleadings, that the defect was supplied or taken into consideration by the jury previously to giving their verdict, in such cases the error, defect, or omission cannot be made a ground of objection, and is thence said to be cured by the verdict. The principle of aider by Ferdict 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 imperfectly stated o omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would bare given, the verdict, such defect, imperfection, or omission, is cured by the Ferdict." See Stennel v. Hogg, 1 Wms. Saund. (ed. 1871), p. 260; Rushton v. Aspinall, Doug. 679; i Sm. L. C. 614.
AIDERS AND ABETTORS. These are persons who either actually or constructirely are present at the commission of an offence, aiding and abetting or counselling and procuring the same to be done; they
AIDERS AND ABETTORS-continued. 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 misdemeanour is also a principal in the first degree, but for a very different reason, namely, the maxim de minimis non curat lez. 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 present, yet if he do not participate, but remains merely passive, he is not an abettor (1 Hale, 439). Moreover, the participation must be with a felonious intent, and not in ignorance of the nature of the act. i Hale, 446.
See also title ACCESSARY, AIDS. Grants of money to the sovereign 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) parliamentary, being tenths, fifteenths, &c.
See title TAXATION.
ALDERMAN. This word was of very frequent occurrence among the AngloSaxons. According to Spelman, all princes and rulers of provinces, all earls and barons, were designated aldermen in a general sense ; but the word was applied more particularly to certain chief officers, e.g., “the alderman of all England,” whoever that officer was. In modern 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-house, nor is every ale-bouse an inn; but if an inn uses common selling of ale, it is then also an alehouse; and if an ale-house lodges and entertains travellers, it is then also an inn. Numerous statutes have been passed from time to time for the licensing and regulation of ale-houses, the latest of which are the Licensing Act, 1872 (35 & 36 Vict. c. 94), and the Act of 1874, amending same.
ALIA ENORMIA (other wrongs.) Declarations 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 lan