Obrazy na stronie



ALIA ENORMIA-continued. guage of pleading, the allegation of alia enormia. 1 Ch. on Pl. 397; Sowden v. Goodrich ; Peake, 46, per Kenyon.

ALIAS WRIT. This was a second writ issued after a former one had proved ineffectual. If the alias also failed, a third writ might have been sued out, which was called a pluries. These writs derived their respective names from the words occurring in their respective forms, viz., “ Sicut alias præcipimus,” “Sicut pluries præcipimus.Both forms of writ were abolished by the C. L. P. Act, 1852, s. 10, and the same statute in its 9th section has enacted that the plaintiff in any action may, at any time during six months from the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal containing the word “concurrent," and the date of issuing the concurrent writ. The concurrent writ or writs are to be in force only during the period during which the original writ is in force; but by renewing the latter from six months to six months, under 8. 11, the concurrent writ or writs may, it seems, be also kept alive. Day's Pr. 36.

ALIBI (elsewhere). This word signifies that mode of defence in a criminal prosecution which the accused party resorts to in order to prove that he could not have committed the crime with which he is charged, because he was in a different place at the time of the alleged commission. As a true alibi is conclusive proof of innocence, guilty parties frequently set up fal-e ones in answer to criminal charges ; consequently the defence must be strictly proved. A false alibi is easily proved if the witnesses are cross-examined out of the hearing of each other.


ALIEN PRIORIES. These were cells of religious persons in England belonging to foreign monasteries. Most of them were dissolved by Act of Parliament in the reign of Henry IV., and some were converted into domestic priories.

ALIENATION. This is the power of the owner or tenant to dispose of his interest in real or personal property. With reference to personal property, the power appears to have always existed, subject only to certain difficulties in the mode of the alienation; but with reference to real property, the power was only slowly and gradually acquired. For,

I. As to Voluntary Alienation,
Originally no estate of freehold was

ALIENATION- continued. alienable by the tenant without the consent of the lord of whom he held; and in fact all estates in land were at first only life estates. (See title LIFE ESTATE.) By the time of Henry II., however, the power of alienation was permitted to the tenant over lands acquired by purchase, to the extent of defeating his heirs of their succession (1 Reeve's Hist. E. L. 223), or of part thereof (l. c. 105). Gifts in frankinarriage and in frankalmoign (see these titles) were the earliest of these partial modes of alienation. Subinfeudation was the other mode of alienation, which was most common (see that title); and as the heir of the subinfeudor became entitled to the rent or services in lieu of the land, that equivalent (being most probably a substantial equivalent) may have hastened the development of the ancestor's power over the expectant interests of his heir. For, at any rate, as early as the reign of Henry III, the power of the ancestor to destroy the expectation of his heirs, whether collateral or lineal, was become absolute.

The process of subinfeudation infringed also on the rights of the land, rendering it more precarious and also more difficult to levy the services to which he was entitled as landlord in chief; and accordingly it was attempted by statute (Magna Charta, ch. 32) to check the practice of subinfeudation. But the practice was not effectually checked by that enactment; and a new mode of grant also about that time came into use, being to a man and his heirs, or to whomsoever he might assign the land, -words which expressly conferred upon the tenant a power of alienation (Mad. Form. Angl. Prel. Diss. p. 5). In consequence of this last-mentioned mode of grant, and the power of alienation which it carried with it, the lord was still mure prejudiced in his interests, and in particulur in his reversion, or right to resume the lands upon the determination of the issue of his grantee. This change to the disadvantage of the land is commonly assigned to the feebleness and distractions of the reign of Henry III., and it is said to have also been fostered by the crusading spirit of the age.

At length, it was enacted by the statute Quia Emptores (Siatute of Westminster the Third) c. 1, that every freeman might without his lord's consent sell his entire lands, or any portion thereof, the purchaser to hold the lands of the same chief lord that his vendor previously held. In this manner alienation by deed inter vivos became complete. The power of alienation by will grew

Putting to one side certain

up later.


ALIMONY- continued. limited customary powers of devise, lands and her husband, as well to provide the could not originally be devised by will at wife with the means to obtain justice as all, excepting in an indirect and circuitous for her ordinary subsistence. When there manner. The method resorted to was to has been a sentence of divorce, on the convey the lands by derd inter viros to ground of the adultery and cruelty of the some third person to hold the same to such husband, the allowance for alimony beus as the person conveying should men- comes a permanent allowance, and is contion in his will. This process was checked tinued during the period of their separation. for the future by the statute 27 Hen. 8, Upon an application for alimony, the Court c. 10 (Statute of Uses); but the process requires on the part of the husband a having been long in use, the power of tes- statement both of his casual and of his tamentary disposition over lands could not certain income to be set forth. See Hakebe withheld altogether, and accordingly will v. Hakewill, 30 L. J. (M. & P.) 254; it was partially restored by the stat. Margetson v. Margetson, 36 L. J. (M. & P.) 32 Hen. 8, c. 1, which enabled a tenant to 80. dispose of the entirety of his socage ALLEGIANCE. Otherwise called litenures and two-third parts of his knight

geance, is the obligation or tie existing service tenures; and the Act 12 Car. 2,

between the sovereign and the subjects of e. 24, having converted all knight service

any given state, and may be described as into socage tenures, the power of aliena

the lawful and faithful obedience and duty tion by will was, by a side wind, made

which the subjects of every state owe to absolute.

the head of that state in return for the II. As to Involuntary AlienationOriginally lands were not liable to be

protection which the state affords to them.

The learning on this subject will be found taken in payment of debts, but subse

in Calvin's Case (Calvin v. Smith, 7 Rep. quently to the reign of Henry III., when estates of inheritance first became general,

1), 6 Jac. 1, and in the notes to that case

in Broom's Const. Law. It is there said the liability has been gradually imposed

that allegiance is of four kinds, namely : – by statute. For, (A.), During the life of

(1.) Natural allegiance that which the debtor.–By statute 13 Edw. I, c. 18,

arises by nature and birth; one moiety of his legal fee simple lands

(2.) Acquired allegiance—that arising became liable upon judgment debts by

through some circumstance or nieans of the writ of elegit, and by the

act other than birth, e.g., by deviStatute of Frauds (29 Car. 2, c. 3, s. 10),

zation or naturalization ; bis equitable fee simple lands became also liable in like manner. Then by statute

(3.) Local allegiance-that arising from

residence simply within the coun1& 2 Vict. c. 110, the entirety of the fee

try, for however short a time; and simple lands, whether legal or equitable,

(4.) Legal allegiance--that arising from of the debtor were rendered liable upon

oath taken usually at the tourn judgment. (See title JUDGMENT DEBTS.)

or leet; for by the Common Law And(B.), After the decease of the debtor.

the oath of allegiance might be By the Statute of Frauds (29 Car. 2, c. 3),

tendered to every one upou at8. 10, bis equitable fte simple lands were

taining the age of twelve years. made liable to be administered in Equity,

In Calvin's Cuse the point decided was, and by 3 & 4 Will. 4, c. 104, all his lands

that Calvin, although born in Scotland (whether legal or equitable or of what

after the union of the Crowns of Scotland tver tenure) were rendered liable in like

and England in the person of James I. in manner.

1603, was nevertheless a subject of the An estate tail, although of inheritance, is not liable for debts after the decease of

king of England, and as such capable of

holding or of acquiring by descent lands the debtor ; but it is liable during his life in case of bis bankruptcy, and also upon a

in England, this decision involving the judgment duly executed against him, in

further more general principle that alle

giance to a sovereign is personal and not either case to the same extent that he (the

territorial, and that the maxim, quando duo debtor) himself could, without the assist

jura (imo duo regna) concurrunt in una ance of any other person, alienate the

persona, æquum est ac si essent in dirersis See Bankruptcy Act, 1869, s. 25, and 1 & 2 Vict c. 110, ss. 13, 18.

was inapplicable. That maxim does, how

ever, apply in determining to what laws ALIMONY (alimonia). That allowance a person is to be subject. which is made to a woman for her support Until 1870 it was a rule of tho Englislı out of her husband's estate when she is law that no one could lay aside an alleunder the necessity of living apart from giance which he had once acquired (nemo him. This provision is allowed the wife potest exuere patriam suam) whence arose during the pendency of a suit between her the difficulty of a “double allegiance




ALLEGIANCE-continued. it was called, with conflicting duties; but by the Naturalization Act, 1870, this rule has been abandoned.

Under the stat. 11 Hen. 7, c. 1, allegiance to the king de facto, i.e., for the time being in actual possession of the Crown, whether or not he be de jure also, is an effectual protection to the subject against all forfeitures on the ground of disloyalty or treason.

According to the law of England, and also that of America, locality of birth determines the primary allegiance,-a principle which is still adhered to in the Naturalization Act, 1870; but according to the laws of most continental countries, the parentage of the parties determines their primary allegiance. However, by a series of statutes special provision has been made for the following classes of persons born abroad, all of whom are to be esteemed natural-born subjects, namely(1.) Children inheritors of British par

ents, not merely for the purposes of inheritance (25 Edw. 3, st. 2), but for all other purposes also (Doe d. Duroure v. Jones, 4 T. R. 308; 7 Anne, c. 5; and 10 Anne,

c. 5); (2.) Children of British fathers (4 Geo.

2, c. 21); (3.) Grandchildren, being the children

of such latter children (13 Geo. 3,

c. 21); and (4.) Children of British mothers (7 & 8

Vict. c. 66), but apparently only as to the estates in England (real

or personal) of such mothers. Aliens becoming permanently subjects of another country may become so either by denization in virtue of the king's letters patent, or by naturalization in virtue of a particular Act of the Legislature, or in virtue of proceedings taken in pursuance of the general Act or Acts.


ALLODIAL LAND-continued. of some superior lord, and for an estate only.



ALLUVIO. This is defined to be a latent increase (latens incrementum), whereby something goes on adding itself

, but it is impossible to say how much at any one moment is added. It is one of the natural modes of acquisition whereby property accrueth to one who is already the owner of the principal thing to which the accrual belongs.

See title ACCESSIO. ALMANACK. The almanack annexed to the Book of Common Prayer, subject to the alterations made in the calendar by the 24 Geo. 2, c. 23, is taken judicial notice of by the Courts of Justice (Brough v. Perkins, 6 Mod. 81). And the Court will generally, to refresh its memory, refer to any almanack of received credit. Page v. Faucet, Cro. Eliz. 227.

ALNAGE DUTIES. These were duties payable on woollen cloths at so much per ell (Fr. aulne); and the officer wbose business it was to examine into the assize of woollen cloths was called the alnager. All such duties were abolished by 11 & 12 Will. 3, c. 20, s. 2.

See also title TAXATION generally. ] ALTARAGE (altaragium). This word comprehends not only the offerings made upon the altar, but also all the profit which accrues to the priest by reason of the altar. When the altarage in part or in the whole was allotted to the vicar or chaplain, it meant only the customary and voluntary offerings at the altar for some divine office or service of the priest, and not any share of the standing tithes, whether predial or mixed. In the case of Franklyn v. The Master and Brethren of St. Cross, 1721 (Bunb. 78), it was decreed that where altaragium is mentioned in old endowments, and supported by usage, it will extend to small tithes, but not otherwise. See also Spelm. Gloss. 28; Cro. Eliz. 578.

ALTERATIONS IN WRITTEN INSTRUMENTS. The effect of such alterations in a deed (Pigot's Case, 11 Rep. 26 b), bill of exchange (Master v. Miller, 4 T. R. 320), or promissory note (Warrington v. Early, 2 E. & B. 703) is this (1.) If the alteration is material,—then

whether (a) it is made by a party

ALLOCATUR (it is allowed). After an attorney's bill has been examined or taxed by one of the masters, and the items which he disallows have been deducted, the remaining sum, certified by the master to be the proper amount to be allowed, is termed the allocatur. The allocatur is conclusive as to the amount of costs. 6 & 7 Vict. c. 73, s. 43; 23 & 24 Vict. c. 127.

ALLODIAL LAND. Land not held of any lord or superior, in which, therefore, the terant has an absolute property and not an estate merely. The lands of the Anglo-Saxons were allod, but under the oath taken at Salisbury in 1087, all the lands in England became feudal, i.e., held



cipally on the stat. 7 Anne, c. 12. Where or (6) it is made by a stranger, such an ambassador involves himself in the alteration vitiates the instru- commercial relations, much inconvenience ment; and

arises, the better opinion being that even (2.) If the alteration is immaterial, in that case he is exempt from the local

then if (a) it is made by a party, jurisdiction. But an ambassador may the alteration vitiates the in- waive his privilege in all these respects, strument. Aldous v. Cornwell and submit himself to the jurisdiction. (Law Rep. 3 Q. B. 573) must be Such an ambassador is, however, amenable distinguished, as the case of an in his own country to the national jurisdicimmaterial alteration by some tion thereof; and in fact it is because he unknown person;

carries with him into the foreign country But if (6) it is made by a stranger, the the territory of his own country that he is

alteration has no effect at all in exempted from the local jurisdiction. (See vitiating the instrument.


exemption operates to deprive a creditor of With

his real (as opposed to a mere personal) reference to these obligations, Lord Coke

right, is a disputed question (see case of has said that in case an election be given

the United States Ambassador to Prussia, of two several things, always he who is

Wheaton, pp. 307–318). An ambassador is the first agent shall have the election

a public minister, which in the usual case (Co. Litt. 145 a). And it has been laid

a consul is not. down as a general rule that the person who has to perform one of two things in

AMBIGUITY: See title EXTRINSIC Evithe alternative has the right to elect (Layton v. Pearce, 1 Doug. 15). The Roman AMENDMENT. This is the correction law agrees generally with the English of some error or omission or the curing of law in these respects. Brown's Savigny, some defect, in judicial proceedings. First, 68-69.

in civil cases.

- Here amendments are An election once made is binding, and either at common law or by statute. In the promise is thenceforth single to per- the times of oral pleading, the parties form the alternative chosen : Quod semel were allowed to correct and adjust their placuit in electionibus, amplius displicere pleadings at any time during the oral non potest (Co. Litt. 146 a). Where the altercation, and were not held to the form one of two alternatives becomes impossible, of statement which they might first have or is so from the first, the promise is abso- advanced. And so at the present day, lute to perform the other (Da Costa v. Davis, until judgment is signed, either party may i B. & P. 242), unless, in the case of an even at Common Law amend his pleading impossibility subsequently arising, the con- until judgment is signed, subject to the struction of the contract or the circum- discretion of the Court or judge, who will stances under which it was entered into not allow amendments which appear unexclude the ordinary rule (Leake, Con. reasonable, or whereby the opposite party tracts, 371-375). It seems that no difference may be prejudiced. But no amendments is made, whether the alternative which is will be allowed in pleas in abatement, impossible is so for natural or for legal because such pleas are disfavoured. And reasons. Brown's Sav. 67.

even after judgment has been signed, the AMALGAMATE, Two companies can

Courts have a power, even at Common Law, not annalgamate with each other, unless

of amending, it being considered that such a transaction is authorized by the

during the term wherein any judicial act constitutions of both companies, or unless

is done, the record remains in the breast of all the shareholders in both consent to the

the judges (Co. Litt. 260 a). This power amalgamation. And where there is a

of amendment at Common Law has been power to amalgamate, that power must be

largely supplemented by various Acts of

Parliament called the Statutes of Amendstrictly pursued (2 Lindi. Pner. 627). Speaking generally, corporations cannot

ment, which are commonly classed with amalganiate. Brice on Ultra Vires, 431.

the Statutes of Jeofails, and by which

almost all errors in pleading, being errors AMBASSADOR. This is the commis- in form only, are amendable, and certain siuner who represents one country in the objections to defective pleadings, being seat of Government of another; and as defective as to form only, are obviated such representative, he is exempt, together after certain stages have been reached in a with his family, secretaries, and servants, cause. The so-called Statutes of Amendfrom the local jurisdiction, not only in ments were the 14 Edw. 3, c. 6, st. 1 ; 9 civil, but also in criminal cases. In Hen. 5, c. 4, st. 1 ; 4 Hen. 6, c. 3; and 8 England, his exemption depends prin- Hen. 6, cc, 12, 15; the so-called Statutes of

AMENDMENT—continued. Jeofails were the 32 Hen. 8, c. 30, 18 Eliz. c. 14, 24 Jac. 1, c. 13, 16 & 17 Car. 2, c. 8, 4 & 5 Anne, c. 16, and 5 Geo. 1, c. 13. And see generally as to both the case of Stennel v. Hogg, 1 Wm. Saund. 260, ed. 1871.

But under recent statutes, being chiefly the C. L. P. Acts, 1852, 1854, and 1860, much larger powers of amendment are conferred, not only in cases of the misjoinder and non-joinder of party plaintiffs or defendants, but also and principally where a variance appears between the pleadings and the evidence. As to such, see the several titles Mis-JOINDER, NonJOINDER, AND VARIANCES.

Secondly, in criminal cases. It was the opinion of Lord Holt and of the other judges in R. v. Tucker (1 Salk. 51), that whatever was amendable at Common Law in civil cases was also amendable at Common Law in criminal cases. The statutes, however, mentioned above, allowing amendments and curing defects in civil cases, did not in general extend to criminal cases at all, except perhaps to cases of misdemeanour, But by the 7 Geo. 4, c. 64, s. 19, if an accused person pleaded a misnomer, the indictment was to be amended by inserting the correct orthography. And by the more recent statutes (11 & 12 Vict. C. 46, s. 4), as to the amendment of variances, and 14 & 15 Vict. c. 100, as to errors in the names of counties, cities, &c., and in the allegations of the ownership of property, very large powers of amendment are committed to the judge in criminal trials, where he is of opinion that the defendant cannot be prejudiced thereby in his defence on the merits.

AMENDS, TENDER OF. Under the statute 11 & 12 Vict. c. 44, s. 11, relative to proceedings against justices, the justice may, after the required notice of action has been given, tender such sum of money as he may think fit as amends for the injury complained of in such notice, and he may thereupon pay into Court the money tendered, and may afterwards give in evidence the sume; in which case, if the jury assess the injury at no larger amount, judgment shall be given for the defendant, who shall be entitled to deduct his costs out of the money so paid in. A like tender of amends may also be made by revenue officers and by special constables, and also in cases of involuntary trespasses, and for wrongful proceedings under Railway Acts. See Arch. Pr. 1372, 1174, and 1273.

AMERCIAMENT—continued. or misconduct deserved. Magna Charta, c. 24, requires a freeman to be amerced only for a great fault, and in proportion only to its greatness. See Griesley': Case, 8 Co. 38 a.

AMEUBLISSEMENT. In French law, under the régime en communauté (see that title), when that is of the conventional kind, if the husband or wife, or either of them, make their or either of their present or future immoveable property come into the community either in whole or in part, this is called an ameublissement, which may be either determinate or indeterminate.

AMICUS CURIE. When a Court of Justice is in doubt or in error in a matter of law, any of the counsel present may inform the Court upon it, out of a regard for the Court merely.

AMNESTY. An act of pardon or oblivion, such as that of 1660 (Restoration of Charles II.).

AMORTIZE. To alien in mortmain.

AMPLIARE. “Est boni judicis ampliare jurisdictionem suam," i.e., to endeavour to find some ground for assuming jurisdiction in a proper case, not to exceed his admitted jurisdiction.

ANATOMY, SCHOOLS OF. These are regulated by the stats. 2 & 3 Will, 4, c, 75, 4 & 5 Vict. c. 26, 24 & 25 Vict. c. 96, and 34 Vict. c. 15. See also R. v. Feist, 8 Cox, C. C. 18.

ANCESTOR. The distinction made between an ancestor and a predecessor in law, is, that the former is applied to an individual in his natural capacity, as J. S. and his ancestors, and the latter to a company, body politic, or corporation, as a bishop and his predecessors. Cowel ; Co. Litt. 78 b.; Britton, 169. However, this distinction is not attended to in the Succession Duty Act, 1853 (16 & 17 Vict. c. 53).

ANCESTREL. Relating to one's ancestors. Homage ancestrel was where a tenant and his ancestors had time out of mind held by homage of the lord and his ancestors. Also, real actions were either possessory, i.e, of a man's own seisin, or ancestrel, i.e., of the seisin of his ancestors,

ANCIENT DEMESNE, DOMAIN (vetus patrimonium domini). A tenure whereby all manors belonging to the Crown in the days of Edward the Confessor and William the Conqueror were held; the numbers and names of which manors, as of all others belonging to common persons,


AMERCIAMENT. A pecuniary punishment for some fault or misconduct, differing (in theory at least) from a fine in being less out of leniency (merci) than the fuult

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