HANAPER. This is an office connected with the Court of Chancery: writs, with the returns thereto, were kept in the hamper, or hanaper, in all cases in which the question was one affecting the subject only; writs (with the returns thereto), in which the Crown had an interest mediate or immediate being kept in the petty bag, which phrase is accordingly used in contradistinction to the hanaper. Both the Hanaper Office and the Petty Bag Office belong to the Common Law side of the Court of Chancery. HANDWRITING. The proof of handwriting is in general by resemblance, and is effected in either or any of the following three ways, namely: (1.) Ex visu scriptionis, i.e., by the comparison of the disputed writing by a witness who has seen the party in the act of writing; (2.) Ex scriptis olim visis, i.e., by the like comparison by a witness who has had frequent correspondence with the party, or otherwise frequently seen writings of his. (3.) Ex scripto nunc viso, i.e., by the like comparison by a witness who is an expert in characters or letters, and their peculiarities of formation. The third sub-variety was not admissible by the Common Law, but was first made so by the C. L. P. Act, 1854 (17 & 18 Vict. c. 125, s. 27). See also title EVIDENCE. HARBOURS: See title SHIPPING LAW. HAWKERS. The stat. 50 Geo. 3, c. 41, s. 6, enumerates hawkers, pedlars, petty chapmen, and every other trading person or persons going from town to town or to other men's houses, and travelling either on foot, or with horse or horses, or otherwise, carrying to sell, or exposing to sale, any goods, wares, or merchandise, as the persons who must take out a licence within the meaning of that Act; but no wholesale trader or his servant or agent is to be deemed a hawker; nor are coal agents who carry about and sell by retail coals in carts within the intention of the Act. Any person offending against the Act incurs a penalty not exceeding £40; but under the stat. 23 & 24 Vict. c. 111, the Commissioners of Inland Revenue may remit the penalty, notwithstanding the same, or some portion of it, may be payable to some other party than the Crown. HEAD-BOROUGH, This was the name of the officer who was at the head of a frankpledge, and who was the chief of the ten pledges (whence called chief-pledge) in a decennary. His nine coadjutors were called Hand-Boroughs. His modern equi HEIR. As defined by Blackstone, the heir is one upon whom the law casts the estate immediately on the death of his ancestor;" whence also it is said that the heir cannot disclaim the estate of his ancestor (see title DISCLAIMER). It is a maxim of the English Law that God and not man maketh an heir (Solus Deus hæredem facere potest, non homo); and again it is a maxim of the Roman Law that the law and not the prætor makes an heir (Prætor hæredem facere non potest, lex facere potest). The two maxims are, however, very different in what they denote, the maxim of the Roman Law merely pointing at the difference between the hæres and the bonorum possessor (or, roughly speaking, the legal and the equitable owner), and not implying that a testator could not (for in fact he always could) constitute his own heir, whereas the maxim of the English Law, on the other hand, points at the difference between an heir and a devisee, and seeks to denote (with a certain feeling of piety that is characteristic of the early law) the inability of any one to determine for himself amidst the multitude of chances who shall be the successor to his real estate if left to descend in due course of law. The popular use of the term heir is a mistake for devisee. An heir can only be determined upon the decease of the ancestor (Nemo est hæres viventis), and he is the heir whom the canons of descent demonstrate when applied at the date of such decease. title DESCENT. See The following are various uses of the word heir in combination with other words: (1.) Heir-Apparent.-Is he who, if he HEIR-continued. ' survive his ancestor, must certainly be his heir and succeed him, e.g., the eldest son in the lifetime of his father. (2.) Heir-Presumptive.-Is he who, if the ancestor were immediately to die, would succeed, but whose right of succession may be defeated by some event other than his own death before the ancestor. (3.) Customary Heir.-Is he who is heir according to any custom, such as that of Borough English, or, in the case of Copyhold lands, upon the death of his ancestor. The hæres of Roman Law is more like the executor than the heir of English Law, being both constituted by the appointment of the testator, and taking in general a bare legal estate, which he holds in trust to pass down to or distribute among another or others. HEIR-LOOMS. Such personal chattels as go to the heir along with the inheritance, as being a loom, limb, or member, i.e., part thereof. They are properly ancient portraits of former owners, coats of arms, paintings, and such like; and are to be distinguished from another class of personal chattels, often but improperly called heir-looms, which, as being fixed to the inheritance in such a manner as does not admit of their severance from it without damaging the inheritance, go to the heir of the deceased and not to the executor (see title FIXTURES). A bill in equity will lie for the specific delivery up of heir-looms to the owner of the inheritance. Pusey v. Pusey, 1 Wh. & Tud. L. C. 735. HERBAGE. The liberty which one man hath in or over another man's ground, e.g., his forest, to feed his cattle therein. See title COMMON. HEREDITAMENT. Is the general name for lands or houses; it may be either a corporeal hereditament, an incorporeal hereditament, or a purely incorporeal hereditament; all which three titles see. HERESY. Is defined in 1 Hawk. P. C. c. 2, as being the offence of holding a false opinion repugnant to some point of doctrine clearly revealed in the Scriptures, and either absolutely essential to a man's salvation or of essential importance in the Christian faith. The penalty for the offence, which in the case of lay persons has gone entirely into desuetude, used to be either death (see title HERETICO COMBURENDO), or excommunication, or other ecclesiastical penalty. HERIOT. The best beast (whether a horse, ox, or cow) which by the custom of most manors is due to the lord upon the death of his copyhold tenant. Heriots are usually divided into two sorts, heriot HERIOT-continued. service and heriot-custom; the former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent; the latter arise upon no special reservation whatever, but depend solely upon immemorial usage and custom. In some manors it is the best chattel, under which term a jewel or piece of plate is included; but it is always a personal chattel, which immediately on the death of the tenant being ascertained by the option of the lord, becomes vested in him as his property, and is no charge on the lands, but merely on the goods and chattels of the tenant. 1 Cruise, 323. HIDAGE. By some it is said to signify an extraordinary tax payable to the king upon every hide of land; by others it is said to be an exemption from that tax. Les Termes de la Ley. HIGH COMMISSION. The Act of Supremacy, 1 Eliz. c. 1, restored all ecclesiastical jurisdiction to the Crown, and empowered the Queen to execute the same jurisdiction by commissioners to be appointed under the great seal, and the power of the commissioners, when appointed, was made to extend to all heresies, schisms, abuses, and offences whatsoever which fell under the cognisance of the spiritual authority. After various temporary commissions had been appointed under this Act, a more permanent commission was appointed under it in 1583, during the primacy of Archbishop Whitgift. This last-mentioned commission was the Court of High Commission, commonly so called. It consisted of forty-four commissioners, twelve of whom were bishops, other twelve of them privy councillors, and the rest either clergymen or laymen, all which commissioners were directed and empowered by jury or by witnesses, or by other means of trial, to inquire into all offences or misdemeanours against or contrary to the Acts of Supremacy (1 Eliz. c. 1), and Uniformity (1 Eliz. c. 2), including thereunder the cognisance of all heretical opinions, seditious books, contempts, conspiracies, false rumours, slanders, &c.; also, incests, adulteries, and the like; also, absence from church, &c. And any three of the commissioners, of whom one was to be a bishop, were empowered to examine suspected persons on oath and to punish the refractory by spiritual censures, fines, or imprisonments, at their discretion, with power also to amend the statutes of schools, colleges, &c. The procedure of the Court was wholly founded on the Canon Law, and the accused was subjected to a series of interrogatries of an exhaustive and searching cha HIGH COMMISSION-continued. racter, which he was compelled to answer on oath (called the oath ex officio) without evasion, not being allowed the benefit of the Common Law maxim, that no one is bound to criminate himself. This Court met with the same fate, in the same year, from the same causes, and by the same Parliament, as the Court of Star Chamber. See that title. HIGHWAY. This is a public way open to all the king's subjects, and leading between two public termini (Young v. Cuthbertson, 1 Macq. H. L. 455). The soil of the road is in the freeholders adjoining (Cooke v. Green, 11 Price, 736). A highway may be created either by Act of Parliament (Sutcliffe v. Greenwood, 8 Price, 535), or by dedication of the freeholder to the public, which dedication must be absolute (Rex v. Leake, 2 N. & M. 595), otherwise it is a mere licence (Stafford (Marquis) v. Coyney, 7 B. & C. 257). Moreover, the dedication must be in perpetuity (Dawes v. Hawkins, 8 C. B. (N.S.) 848). Such a dedication may be presumed from long enjoyment (Poole v. Huskinson, 11 M. & W. 827); and it is not material to inquire who the precise dedicating owner was (Rex v. East Mark Tything, 11 Q. B. 877). If the owner wants to exclude the presumption of a dedication, while at the same time he wishes to let the public pass over it, he should do some act to shew that he gives a licence only; the common course is to shut the way up one day in the year (British Museum (Trustees) v. Finnis, 5 C. & P. 460). Where the parish adopts a public way, which becomes such by dedication, it is liable to repair the same, even at Common Law (Rex v. Leake, 2 N. & M. 583); and for statutory regulations as to such adoption, see 5 & 6 Will. 4, c. 50 (Highway Act, 1835). A remedy lies by action or indictment for the obstruction of a highway, Dovaston v. Payne, 2 Sm. L. C. 132. HOLDING OVER. This is the phrase commonly used to denote that a tenant remains in possession of lands or houses after the determination of his term therein. Thus, a tenant by sufferance is one who has come in by right and who holds over by wrong. And by the Common Law, a husband who has been in possession during the coverture in right of his wife, and who afterwards (not having qualified by the birth of a child or otherwise to hold over as tenant by the curtesy) holds over, was also a tenant by sufferance, but for his more speedy ejection by the next successor in right he is made a trespasser by the stat. 6 Anne, c. 18, s. 5. HOMAGE. This was an incident of feudalism, and was so called because the HOMAGE-continued. tenant thereby acknowledged his tenure as that of the lord's man or vassal (devenio homo vester). It is to be distinguished from fealty, another incident of feudalism, and which consisted in the solemn oath of fidelity made by the vassal to the lord, whereas homage was merely an acknowledgment of tenure. If the homage was intended to include fealty it was called liege homage, but otherwise it was called simple homage. The word homage, or homagium, is also a noun of multitude, and denoted the jury of copyholders who made presentment to the lord or his steward of all matters affecting the lands of the manor which had been transacted out of Court. Such presentment has, however, ceased to be required in the great majority of cases since the Act 4 & 5 Vict. c. 35. HOMICIDE is literally the killing of a human being. It is of the following varieties: (a.) Felonious homicide, and being either murder or manslaughter (see these two titles); - (c.) Justifiable homicide, - as where a sheriff executes, or causes to be executed, a criminal in strict conformity to his sentence; or where a policeman kills a person who resists capture; or where another person commits the act in selfdefence; or (in the case of a woman) in defence of her chastity. HOMINE REPLEGIANDO. This was a writ which lay to replevy a man out of prison, or out of the custody of any private person, in the same manner that chattels taken in distress may be replevied. It was necessary to give security to the sheriff that the man should be forthcoming to answer any charge against him. In Somersett's Case (20 St. Tr. 1), it is stated by Mr. Hargreaves in argument that this writ was one (the writ de nativo habendo being the other) of the only two writs provided by law for the master's reclaiming a runaway villein. HONOUR. The seigniory of a lord paramount was so called, while the seigniory of a mesne lord was simply called a seigniory. HORSES. A person who hires a horse is bound (in the absence of express agreement to the contrary) to provide it with sufficient food during his use of it (Handford v. Palmer, 5 Moo. 74); he must also use it in a careful manner, and not drive N HORSES-continued. it when visibly exhausted (Bray v. Mayne, Gow. 1). A livery stable-keeper has a lien for his keep and exercise of a horse (Bevan y. Waters, 3 C. & P. 520); and other stable keepers may, by special agreement, acquire a similar lien (Wallace v. Woodgate, 1 C. & P. 575). Horses standing at livery are liable to be distrained for rent (Parsons v. Gingell, 4 C. B. 545). The stats. 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12, regulate the sale of horses, which must be in fairs or markets; and horses so sold, although stolen, become the property of the purchaser; but the owner of a stolen horse so sold may redeem it upon payment of the price given, 31 Eliz, c. 12, s. 4. As to the sale of horses with a warranty, see title WARRANTY. This word is the English HOTCHPOT. equivalent for the Latin collatio. It denotes that of two or more persons jointly entitled to share equally in the distribution of property, whether real or personal, any one of them who has received part of his or her share previously to the period of the ultimate distribution must bring into the com mon property the part so received before he or she is entitled to share in the general distribution. Thus, if the owner of fifty acres has two daughters, and gives one of such daughters twenty acres upon her marriage, and afterwards dies intestate, leaving the two daughters his co-heiresses, the daughter who had already received part shall bring that part into hotchpot, and then take her half share of the original fifty acres, or refusing so to do, shall leave all the remaining thirty acres to her sister. A hotchpot clause is also usual in wills and marriage settlements. HOUSE-BOTE. This word denotes the right of the tenant for life, or other tenant with a limited interest, to take wood or timber for the necessary repair of houses, &c., part of the lands in tenancy. See title ESTOVERS. HOUSE-BREAKING: See BURGLARY. HOUSE OF LORDS, JURISDICTION OF. The House of Lords, having been originally interchangeable with the Aula Regis, was possessed of a twofold jurisdiction, namely, (1.) An original jurisdiction; and (2.) An appellate jurisdiction. This twofold jurisdiction appears from various causes to have fallen in early times into comparative disuse. (1.) The disuse of the original jurisdiction is accounted for by the circumstance that the Aula Regis had been divided into, firstly, committees, and secondly, permanent Courts, appropriating to themselves the cognisance of special HOUSE OF LORDS, JURISDICTION OF -continued. matters; namely, the Court of Exchequer for matters of revenue affecting the Crown; the Court of Common Pleas for matters chiefly of a freehold nature between subject and subject; the Court of Queen's Bench originally for the residuary jurisdiction of the Aula Regis, but latterly for a definite but more or less general portion of that jurisdiction; and the Court of Chancery for matters of grace. (2.) The disuse of the appellate jurisdiction is accounted for partly by the competency of the jurisdiction of the Courts having original jurisdiction, and more especially by the wide powers of the Court of Chancery, which gave redress in most cases of hardship at Common Law, and partly by the circumstance that the Council or Star Chamber exercised, although illegally, a control over verdicts; and partly also, and perhaps chiefly, by the circumstance that the Court of Exchequer Chamber was established by 31 Edw. 3,st. 1, c. 12, as a Court of Appeal from the Courts of Exchequer and Common Pleas, becoming also a Court of Appeal from the Court of Queen's Bench in virtue of the stat. 27 Eliz. c. 8. Certain it is, at all events, that after the beginning of the fifteenth century the appellate jurisdiction of the House of Lords did fall into disuse, and that it continued in disuse till about the Restoration in 1660, when the jurisdiction of the House of Lords, as well in its original as in its appellate branch, was attempted to be restored. Thus (1.) With reference to their original jurisdiction.-The Lords did not at the Restoration period hesitate on petition (a) to stay waste on the estates of private persons; (b) to secure the tithes of church livings during vacancies; or generally (c) to interfere in freehold matters affecting a member of their own House. But these pretensions were always objected to by the Commons as an unlawful interference with the ordinary tribunals, and were finally given up in the case, or as a consequence of the case, of Skinner v. East India Company in the reign of Charles II. The plaintiff in that case had petitioned the King for redress and restitution in respect of certain losses sustained by him at the hands of the East India Company's agents, they having plundered his property, taken away his ships, and dispossessed him of an island which he had purchased from a native Indian prince. The King transmitted the petition to the House of Lords, and the Lords called upon the East India Company, through their chairman, Sir Samuel Barnardiston (who was an M.P.) to put in their answer to Skinner's complaint. The Company pleaded in bar to the jurisdiction; but that plea was overruled, and eventually judgment was HOUSE OF LORDS, JURISDICTION OF -continued. given for Skinner with £5000 damages. The Company having in the meantime brought the proceedings in the House of Lords to the attention of the Commons, prayed the latter body to interfere and assume jurisdiction in the matter, Barnardiston being a member of their House. The Commons at once took cognisance of their complaint; and the Lords objecting to this unwarranted assumption of jurisdiction on their part, several conferences followed between the two Houses. These conferences proving ineffectual, the Lords and Commons retaliated on each other, the Commons voting Skinner into custody for a breach of privilege, and the Lords committing Barnardiston for the like cause. Subsequently, the Lords released Barnardiston, but the Commons persisting in the dispute, passed a bill vacating all the proceedings in the Lords against Barnardiston. The King ultimately quieted the dispute by recommending an erasure of all proceedings from the journals of the two Houses; and the Lords have never from that time made any pretensions to an original jurisdiction. (2.) With reference to their appellate jurisdiction, The Lords, in the opinion of Sir M. Hale, never exercised any such jurisdiction in matters coming from Courts of Equity until the reign of Charles I., or more probably the Restoration in 1660; but in matters coming from the Courts of Common Law, the Lords from a very early time exercised an appellate jurisdiction upon writs of error under commission issuing under the Great Seal. This appellate jurisdiction in both of these its branches, was equally reasonable and proper; but upon its attempted revival after the Restoration in 1660, it was resisted by the Commons, principally (it appears) upon the score of privilege, and not upon any more general grounds. Thus, in 1675, in the case of Shirley v. Sir John Fagg, the defendant being a member of the Commons' House, the plaintiff brought an appeal to the House of Lords from the Courts of Equity; whereupon the Commons apprehended the counsel engaged in the case and imprisoned them in the Tower; and although the Lords sent their usher to the Tower to deliver them, they remained in custody for some time longer, the Lieutenant of the Tower refusing to release them without a warrant from the Commons. The King, with a view to staying this dispute between the two Houses, prorogued Parliament for three months; but the dispute was revived upon the re-assembling of Parliament, and the King thereupon again prorogued Parliament, on the latter occasion for eighteen months. Shirley's appeal never came on HOUSE OF LORDS, JURISDICTION OF -continued. again, but the Lords insisted upon their right to an appellate jurisdiction, and have ever since exercised that jurisdiction, although the Commons upon the re-assembling of Parliament passed some [intemperate] resolutions to the effect that there lay no appeal to the House of Lords from Courts of Equity, and that to assist in any such was to betray the rights and liberties of the subject. The appellate jurisdiction in Common Law matters seems not to have been questioned either after or before the Restoration. HUE AND CRY. This phrase denotes the [old] process provided by the Common Law for the pursuit of felons, and which the sheriff, semble, may still put in force. But the modern facilities and provisions for arrest have now, as a general rule, excluded the necessity for it. HUNDRED COURT. A Hundred Court as a Court Baron, only that it is larger, and is held for the inhabitants of a particular hundred instead of a manor; it resembles a Court Baron in not being a Court of Record, and in the free suitors being the judges, and the steward the registrar. Hundredors are persons empanelled or fit to be empanelled on a jury upon a controversy arising within the hundred where the land in question lies. The word "hundredor" also sometimes signifies he who has the jurisdiction of a hundred and holds the Hundred Court; and sometimes it is used for the bailiff of a hundred. Cromp. Juris. 217. HUSBAND AND WIFE. This relation, which was anciently called that of Baron and Feme, is fertile in legal consequences, as well in the rights which it confers as in liabilities which it imposes upon either party to the relation. Firstly, The rights of the husband; and hereunder firstly, in the real estate of the wife; and secondly, in her personal estate. (1.) In the real estate of the wife, the husband takes the following rights :(a.) The entire rents and profits arising during the coverture; and if he survive the wife, and has had issue by her capable of inheriting, (b.) An estate for the residue of his life. See title CURTESY. But with respect to marriages which are solemnised after the 9th of August, 1870, and real estate coming to the wife afterwards, during the coverture, the wife takes the entire rents and profits thereof independently of her husband (see title SEPARATE ESTATE);. and the husband is left |