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Recovery of Freight.-No one can be liable to pay freight unless under an express or implied contract for its payment, Moreover, several such contracts may exist simultaneously binding different persons to pay the same freight. For instance, the shipper is liable on his express contract by charterparty, or on the implied one arising from the shipment, and this notwithstanding the bill of lading should state that the freight is to be paid by the consignee or his assigns; and at the same time the consignee or any assign of his receiving the goods under the bill of lading is liable also. But payment of freight by one discharges all; and where cash lias been offered by the consignee, but the master has elected to take from him a bill of exchange in payment, and the bill of exchange is afterwards dishonoured, the remedy against the shipper or consignor
Tapley V. Martens, 8 T. R. 45).
Shipovener: Lien for Freight.—The shipowner has, independently of contract, a lien on the goods actually carried for the freight due in respect of them, and also for any sum which by the charterparty is to be paid for the hire of the ship; but his lien does not, in the absence of express stipulation to that effect, extend to claims for dead freight, demurrage, wharfage, or port charges. But the shipowner may deprive himself of his lien by the terms of his contract with the shipper; e.g., if the freight is not to become payable until after the goods are to be delivered (Lucas v. Nockells, 4 Bing. 729). Moreover, possession is necessary to a lien. If, therefore, the shipowner absolutely demises the ship to the charterer, and thus parts with the possession of her and her cargo, he has no lien for her earnings; but the Courts endeavour to prevent such an effect, even wbere the terms of the demise are absolute, provided they can find any expression of a contrary intention in the charterparty. Where, as is now common, a ship is chartered at a lump sum, and it is intended to be put up by the charterers as a general ship, and the charterparty provides that the master shall siglı bills of lading at such rates of freight as the charterers may direct, without prejudice to the charter, the shipowner's lien remains against the charterers for the charter-freight, and against the holders of the bills of lading for the bill of lading freight, but, in the case of the latter, only to the extent of the freight they have contracted to pay, although it may be less than the charter-freigit.
And see the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), 6s. 67-78, and Kay's Law of Shipmasters.
FRESH DISSEISIN. Such a disseisin as a man himself might seek to defeat, that is, by his own power, without the help of the king, or judges, or other foreign aid ; as where a disseisin bad not taken place above fifteen days or other short period. Britton, cc.
FRESH FORCE. A force which had been recently committed in any city or borough, as by disseisin, abatement, intrusion, or deforcement of any lands or tenements within such city or borough; and before the action of ejectment was introduced the party who had a right to the land might, by the usage of the said city or borough, bring his assize or bill of fresh force within forty days after the force had been committed for the purpose of recovering his lands. Fitz. Nat. Brev.; Les Termes de la Ley.
FRESH SUIT. When a party robbed diligently and immediately follows and apprehends the thief, or convicts him afterwards, or procures evidence to convict him, this following up of the thief is termed making fresh suit, and the person so robbed shall in such case have restitution of his goods. Fresh suit is also when the lord comes to distrain for rent or service, and the owner of the beasts rescues them or makes rescous (as it is termed), and drives them into another man's ground not holden of the lord, and the lord follows and takes them there. 2 Hawk. P. C. c. 23; Les Termes de la Ley.
FRIENDLY SOCIETIES. The law as to these societies was consolidated by the stat. 13 & 14 Vict. c. 115, and has been still further consolidated by the stat. 18 & 19 Vict. c. 63. The members of such a society being duly registered are not liable to be sued individually for the debts of the society (Burton v. Tannahill
, 5 El. & Bl. 797); the only persons liable to be sued are the officers of the society. All disputes within the society, i.e., between any member and the treasurer or other officer of the society, are to be decidtd in the manner directed by the rules of the society, and such decision is tu be binding and without appeal. By the stat. 23 & 24 Viet. c. 58, provision has been made for the winding-up and dissolution of such societies.
FRIVOLOUS PLEAS. These are pleas which are clearly insufficient upon the face of them, and are generally (when at all) put in for purposes of delay, or to embarmss the plaintift. Under the C. L. P. Act, 1852, they may, on mution, be ordered to be at once struck out, secus, if the plea is not manifestly frivolous on the face of it. See Day s Practice, p. 88.
FUGITIVE'S GOODS. The goods of a felon who took flight, and which, after the flight, were lawfully found, belonged to the king or to the lord of the manor. 5 Rep. 10 q.
FUNGIBLES. Any moveable goods which may be estimated by weight, number, or measure ; hence jewels, paintings, statues, and works of art in general are not considered as fungibles, but, on the contrary, as non fungibiles, because their value cannot be measured by any common standard; whereas res fungibiles are money, barley, oil, and such-like, which can be repaid in kind.
GARANTIE. In French Law corresponds to warranty or covenants for title in English law. In the case of a sale this guarantie extends to two things-(1.) Peaceful possession of the thing sold ; and (2.) Absence of undisclosed defects (défauts cachés).
GARNISHEE: See title ATTACHMENT OF DEBT.
FURTHER MAINTENANCE OF ACTION, PLEA TO. A plea grounded upon some fact or facts which have arisen since the commencement of the suit, and which the defendant puts forward for the purpose of shewing that the plaintiff should not further maintain his action. It is called a plea to the further maintenance of the suit because it does not, like an ordinary plea in bar, profess to shew that the plaintiff bad no ground of action when he commenced the suit, but simply shews that he has no right to maintain it further. A plea of payment of money into Court in satisfaction of the plaintifi's claim is in the nature of a plea to the further maintenance of the suit, such a plea admitting that the plaintiff had a good cause of action, but shewing that he ought not further to maintain it, upon the ground that the money so paid in by the defendant is sufficient to satisfy all damages which the plaintiff
' has sustained. See Step. Pl. 72, 4th ed.
GAVELKIND. See titles FEUDAL TENURES; ESTATES.
GELD. This is a Saxon word signifying money or tribute. In combination with other words it signifies the compensation for some particular crime, e.g., wergeld signifies the value of a man slain ; orfgeld, the value of a beast slain.
GEMOTE. This also is a Saxon word signifying a convention or assembly, e.g., uitenagemote and shiregemote are respectively the assembly of the vitan, or wise men, and of the shire or county, i.e., the freeholders thereof. GENERAL AVERAGE.
Cases of general average arise where loss or damage is voluntarily and properly incurred in respect of the goods on board ship or in respect of the ship for the general safety of both ship and cargo; the loss sustained by the particular ownerslaving enured to the advantage of the owners generally, it is only equitable to distributo—i.e., adjust the loss rateably over all the owners; and such adjustment is general average. The phrase simple or particular average is an inaccurate and misleading phrase, meaning nothing more than that a particular damage -e.g., the souring of a cask of wine-must rest where it falls.
General average is excluded in the case of particular losses arising from the ordinary risk and perils of the sea (Power v. Whitmore, 4 M. & S. 149); and, therefore, in the case of the loss of a mainmast, or damage done to the yards, by wiuds, &c., there is no general average. The distinction is well stated by Lord Kenyon in Birkley v. Presgrave (i East, 220), in this manner;—That all ordinary losses and damages sustained by the ship, happening immediately from the storm or perils of the sea must be borne by the shipowne
ners; but that all those articles which are made use of by the master and crew upon a particular emergency and out of the usual course, for the benefit of the whole concern, must be paid for proportionably as a general average.
The most usual instance of a case for general average is the case of jettison, being the jactus of the Roman Law (see LEX RHODIA DE JACTU); and any damage volun
GAGE: See title. NANTISSEMENT.
GAME. Under this description are included hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards. 1 & 2 Will. 4, c. 32.
Game chased and killed on the land of A. is his property (Blades v. Higgs, 12 C. B. (N.S.) 501, and 13 C. B. (N.S.) 844); secus, where the game is started on another man's ground and killed on the ground of A. Churchiard v. Studdy, 14 East, 249.
See also titles CHASE; DEER; PARK;
GAMING : See title WAGERING.
GAOL : See title PRISON.
GAOL-DELIVERY : See title COURTS OF JUSTICE,
GENERAL ISSUE, PLEA OF-continued. this form of defence is abolished in the case of local and personal Acts.
GENERAL SHIP. Where a ship is not chartered wholly to one person, but the owner offers her generally to carry the goods of all comers, or where if chartered to one person he offers her to several sub-freighters for the conveyance of their goods, she is called a general ship, as opposed to a char. tered one. In these cases the contract entered into by and with the shipowner or master as his agent, is called a bill of lading.
See title BILL OF LADING. GESTIO PRO HÆREDE. This is a phraseof Roman Law, and denotes acting as hæres, i.e , successor, to a dea ased person, without having made or before making the aditio hæreditatis, or entry. See Gaius, ii. 171-8.
GENERAL AVERAGE-continued. tarily and necessarily done to the ship in order to facilitate the jettison, is a general average loss; also, a voluntary stranding of the ship must be made good as a general average, provided the stianding was proper thing to do, or was prudent and reasonable.
Less usual instances of general average are where part of the cargo is necessarily sold by the master in order to defray the expenses of repairing injuries to the ship which are themselves matters of general average (The Gratitudine, 3 Rob. 255); also where the ship puts into port in distress owing to an injury which is itself matter of general average, and there are incurred expenses for repairs and for unloailing, and also port-charges, seamen's wayes, and cost of provisions during the detention (Da Costa v. Neunham, 2 T. R. 413); also the expenses of salvage; also the freight of jettisoned goods.
But general average is excluded in respect of the following losses :—The wages and provisions of the crew in cases of detention by embargo; the expenses occasioned by an ordinary quarantine, or by waiting for convoy; alsó (although with exceptions) deck cargoes that are jettisoned ; also damage sustained in resisting capture,
With reference to the articles liable to contribute towards general average, the ship and freight contribute, the former in proportion to its value at the end of the voyage, the latter deducting the expenses of the voyage and the wages of the crew; also, all merchandise put on board for the purpose of traflic must contribute. But the ship's stores and the ship's ammunition do not contribute ; as neither do the wearing apparel, luggage, jewels, &c., of the passengers or crew, all these articles being for use and not for traffic.
And see title ADJUSTMENT OF AVERAGE. GENERAL ISSUE, PLEA OF. Under the present practice, this plea is a mere denial of the gist of the action, that is, a denial of the principal fact on which the declaration is founded; and every other matter of defence must be pleaded specially. See R. T. T. 1853. The defence, where appropriate, is available in all sorts of actions and prosecutions, whether founded on contract, or on tort, or in crime, the most common examples of it being“ Not guilty," “ Never indebted,” “Non Assumpsit,” “Non est factum," and such like.
In certain cases it is permitted by statute to plead the general issue, and to give the special matter of defence in evidence; and in that case the words " by statute" must be inserted in the margin of the plta. However, under the Act 5 & 6 Vict. c. 97, s. 3,
GIFT : See title CONVEYANCES.
GILD. This word (more commonly spelt guild) signifies primarily tribute, and secondarily, the fraternity or company that is subject to the tribute. The company is a body of persons bound together by orders and laws of their own making, the king's licence having been first had to the making thereof. A gild of merchants may be incorporated by grant of the sovereign, and such incorporation, without more, is sufficient to establish them as a corporation for
Guild-Hall is the name given to the hall of meeting of the guild; the term is applicable to the public place of meeting of the mayor, aldermen, and commonalty of every city and borough, but is applied par excellence to the place of meeting of the Lord Mayor, Aldermen, and Commonalty of the City of London.
GLADIUS. This word, which is the Latin for sword, was used as the symbol of jurisdiction; a person created an earl was gladio succinctus, he having jurisdiction over his county.
GOOD CONSIDERATION. Consists in “ blood and natural affection," as opposed to “money and money's worth," which latter constitute a valuable consideration. Good consideration is, however, used in the stat. 13 Eliz. c. 5, as the same thing as valuable consideration.
GOODWILL. As applied to the sale of a business this phrase denotes the sum of money which any one would be willing to give for the chance of being able to keep the trade connected with the place where it is carried on. It is the purchase of an advantage that is dependent solely upon
GUARANTEE-continued. under the stat. 19 & 20 Vict. c. 97 (Merc. Law Am. Act, 1856), s. 3, the consideration need not appear in the writing. The guarantee may be either for one particular amount, or for any sum not exceeding that amount, or it may be a continuing guarantee, limited or unlimited in amount; e.g., when A. became bound to B. for any debt which C. might contract with him not exceeding £100, the guarantee was held to be a continuing guarantee, and not extinguished by one dealing between B. and C. to that amount (Merle v. Wells, 2 Camp. 413); on the other hand, a bond entered into by A. and B. to the plaintiff to enable A. to carry on his trade. conditioned for the payment of all such sums not exceeding £3000 as should at any time thereafter be advanced by the plaintiff to A., was held not to be a continuing guarantee to the extent of £3000 for advances made at any time, but only a guarantee for advances once made to that amount. Kirby v. Marlborough (Duke), 2 M. & S. 18.
See also titles INDEMNITY; PRINCIPAL
GOODWILL—continued. locality: and therefore a sale of the goodwill without a sale or lease of the premises would be impossible and inconsistent; and an agreement for such a sale would therefore not be enforced in the Court of Chancery. Austen v. Boys, 2 De G. & J. 626.
GRACE. This word is commonly used in contradistinction to right. Thus, in 22 Edw. 3, the Lord Chancellor was instructed to take cognisance of matters of grace, being such subjects of equity jurisdiction as were exclusively matters of equity. Again, days of grace is a phrase denoting the three extra days allowed by the custom of merchants after the maturity of a bill of exchange for the payment thereof.
GRAND ASSIZE: See title TRIAL BY JURY.
GRAND JURY: See title TRIAL BY JURY.
GROSS. The phrase “ in gross” means standing separate from any corporeal hereditament.
See title INCORPOREAL HEREDITAMENTS. GROUND-RENT. A landlord, having land conveniently situated for building upon, not unfrequently lets it out to a bulder at a trivial rent, for a period usually of ninety-nine years, upon the understand. ing that the builder-lessee shall, within a fixed time, erect upon it one or more messuages of a specified description. When these messuages are erected, the builder sublets them to occupants, who pay him a rent very considerably larger than what he hims: If pays to the ground landlord, being, in fact, a rent estimated to repay him with a profit within the ninety-nine years for his labour and outlay in erecting the messuages and taking a lease of the land from his own landlord. The builder's rent, or that which he pays to the ground landlord, is called the ground-rent. Under the stat. 4 Geo. 2, c. 28, the ground landlord may distrain on the premises for this rent; so that it is quite possible that the occupying tenant may have to pay not only his own occupation rent but also the ground-rent, unless proper precautions have been taken.
See also title RENTS. GUARANTEE Is a promise to answer for the debt, default, or miscarriage of another person, and for which that other person remains liable. It is usually a simple contract; and the agreement or memorandum expressing or evidencing it must be in writing bythe Statute of Frauds,and must contain all the material terms (Saunulers v. Wakefield, 4 B. & Ald. 595), excepting that
GUARDIAN There were at one time a great many varieties of guardians of infants, of which the following enumeration comprises the principal (1.) Guardians in chivalry, enduring
until the age of twenty-one years, but abolished by the stat. 12 Car.2,
c. 21 ; (2.) Guardians in socage, enduring until
the age of fourteen years ; (3.) Guardians by custom, e.g., of gavel
kind lands, enduring commonly
till the age of fifteen years; (4.) Guardians by nature, enduring till
the age of twenty-one years; and for nurture, enduring till the age
of fourteen years. (5.) Guardians appointed by deed or will
in virtue of the Act 12 Car. 2, c. 24, the most common species of guardian at the present day, and enduring till the age of twenty
one years; and (6.) Guardians appointed by the Court
of Chancery (er inquisitione), and enduring either for a particular purpose only, or generally till the
age of twenty-one years; The guardian appointed under the stat. 12 Car. 2, c. 24, is entitled both to the custody of the person of the child, and to that of the profits of his real and personal estate; and subject to the control of the Court of Chancery he regulates generally the entire conduct of the infant and the entire management of his estate. He cannot make or take any profit thereout.
GUARDIAN-continued. The chief respects in which the Court of Chancery interferes between guardians and infants are the following :(1.) To remove guardians, which it will
only do for misconduct upon bill filed establishing a clear case
against the guardian ; (2.) To compel security from guardian ; (3.) To compel the guardian to render
proper accounts ; (4.) To appoint interim guardians in the
absence of the testamentary guar
dian ; (5.) To regulate the maintenance and
education of the child ; (6.) To control his marriage; and, gene
rally, (7.) To control (without setting aside
altogether) the authority of a tes-
HABENDUM. Is that part of an indenture expressed in the words “To have,” and which are usually followed by the words “ To hold” (called the tenendum). The phrase "to have and to hold,” being as a general rule introductory to the declaration of the uses to, for, or upon which the lands are granted,-Its office is only to limit the certainty of the estate granted; therefore no person can take an immediate estate by the habendum of a deed when he is not named in the premises; for it is in the premises of a deed that the thing is really granted. 4 Cru. Dig. 272.
HABERE FACIAS POSSESSIONEM. When a plaintiff recovered in a real or mixed action (both of which forms of action, with the exception of ejectment, have been exploded since 1834), he was awarded a writ for the purpose of putting him in possession of the real or personal property recovered; the writ was called an habere facias possessionem in the case of a chattel interest, and habere facias seisinam in the case of a freehold interest. And at the present day a writ of habere facias possessionem is the process commonly resorted to by the successful party in an action of ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered.
See title EJECTMENT.
HACKNEY-CARRIAGES. The laws relating to these coaches and cabs within the metropolis are regulated by the stats. 1 & 2 Will. 4, c. 22, 1 & 2 Vict, c. 79, and 17 & 18 Vict. c. 86. They are properly carriages plying for hire off a stand. The driver is liable for negligently losing the luggage of a customer. R088 v. Hill, 2 C. B. 877.
HABEAS CORPUS. This is a writ directed to the gaoler, or other person having the applicant in custody, requiring him to produce the body, i.e., person, of the applicant in Court before the judge on a day named therein. The right to a habeas corpus exists by the Common Law, and its availability only has been facilitated by particular statutes, principally the stat. 31 Car. 2, c. 2 (Habeas Corpus Act) and 56 Geo, 3, c. 100 (In re Besset, 6 Q. B. 481). But whether at Common Law or under statute, the writ does not issue as a matter of course upon application in the first instance, but must be grounded on an affidavit, upon which the Court is to exercise a discretion in issuing it or not (Rex v. Hobhouse, 3 B. & A. 420). Where a witness is in custody, a habeas corpus ad testificandum is issued to bring him up as a witness (1 Arch. Pract. 355 ; 1 Dan. Ch. Pr. 805); and prior to the C. L. P. Act, 1852, s. 127, where the defendant was in custody at the suit of a third party, it was necessary for the plaintiff to issue a habeas corpus ad satisfaciendum to charge him in execution, but under that section a judge's order made upon affidavit that judgment has been sigüed and is unsatisfied suffices. 1 Arch. Pract. 1209.
HABEAS CORPUS JURATORUM. This was a writ commanding the sheriff to bring up the persons of jurors, and if need were, to distrain them of their lands and goods, in order to ensure or compel their attendance in Court on the day of trial of a cause. The writ was abolished by the C. L. P. Act, 1852, s. 104.
HÆRETICO COMBURENDO. The stat. de hæretico comburendo (2 Hen. 4, c. 15), was the first penal law enacted against heresy, and imposed the penalty of death by burning upon all heretics who relapsed or who refused to abjure their opinions. It was repealed by the stat. 29 Car. 2, c. 9, which however abolished the penalty of death only, and left the ecclesiastical jurisdiction for the repression of atheism and false religion otherwise unaffected.
See title TOLERATION.
HALF-BLOOD. Art children and other persons related to each other through one parent only, whether through the father only, or through the mother only. They were until 1833 excluded from all right of succession to lands, but were admitted by a stat, in that year (3 & 4 Will. 4, c. 106). For the place which they occupy, see title DESCENTS.