ALIA ENORMIA-continued. guage of pleading, the allegation of alia enormia. 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 s. 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: See titles NATURALIZATION; ALLEGIANCE. 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 more prejudiced in his interests, and in particular 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 (Statute 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 up later. Putting to one side certain ALIENATION-continued. limited customary powers of devise, lands could not originally be devised by will at all, excepting in an indirect and circuitous manner. The method resorted to was to convey the lands by deed inter vivos to some third person to hold the same to such uses as the person conveying should mention in his will. This process was checked for the future by the statute 27 Hen. 8, e. 10 (Statute of Uses); but the process having been long in use, the power of testamentary disposition over lands could not be withheld altogether, and accordingly it was partially restored by the stat. 32 Hen. 8, c. 1, which enabled a tenant to dispose of the entirety of his socage tenures and two-third parts of his knight service tenures; and the Act 12 Car. 2, e. 24, having converted all knight service into socage tenures, the power of alienation by will was, by a side wind, made absolute. II. As to Involuntary AlienationOriginally lands were not liable to be taken in payment of debts, but subsequently to the reign of Henry III., when estates of inheritance first became general, the liability has been gradually imposed by statute. For, (A.). During the life of the debtor.-By statute 13 Edw. 1, c. 18, one moiety of his legal fee simple lands became liable upon judgment debts by means of the writ of elegit, and by the Statute of Frauds (29 Car. 2, c. 3, s. 10), his equitable fee simple lands became also liable in like manner. Then by statute 1 & 2 Vict. c. 110, the entirety of the fee simple lands, whether legal or equitable, of the debtor were rendered liable upon judgment. (See title JUDGMENT DEBTS.) And (B.), After the decease of the debtor.By the Statute of Frauds (29 Car. 2, c. 3), s. 10, his equitable fee simple lands were made liable to be administered in Equity, and by 3 & 4 Will. 4, c. 104, all his lands (whether legal or equitable or of whatever tenure) were rendered liable in like manner. An estate tail, although of inheritance, is not liable for debts after the decease of the debtor; but it is liable during his life in case of his bankruptcy, and also upon a judgment duly executed against him, in either case to the same extent that he (the debtor) himself could, without the assistance of any other person, alienate the same. See Bankruptcy Act, 1869, s. 25, and 1 & 2 Vict. c. 110, ss. 13, 18. ALIMONY (alimonia). That allowance which is made to a woman for her support out of her husband's estate when she is under the necessity of living apart from him. This provision is allowed the wife during the pendency of a suit between her ALIMONY-continued. and her husband, as well to provide the wife with the means to obtain justice as for her ordinary subsistence. When there has been a sentence of divorce, on the ground of the adultery and cruelty of the husband, the allowance for alimony becomes a permanent allowance, and is continued during the period of their separation. Upon an application for alimony, the Court requires on the part of the husband a statement both of his casual and of his certain income to be set forth. See Hakewill v. Hakewill, 30 L. J. (M. & P.) 254; Margetson v. Margetson, 36 L. J. (M. & P.) 80. ALLEGIANCE. Otherwise called ligeance, is the obligation or tie existing between the sovereign and the subjects of any given state, and may be described as the lawful and faithful obedience and duty which the subjects of every state owe to the head of that state in return for the protection which the state affords to them. The learning on this subject will be found in Calvin's Case (Calvin v. Smith, 7 Rep. 1), 6 Jac. 1, and in the notes to that case in Broom's Const. Law. It is there said that allegiance is of four kinds, namely:(1.) Natural allegiance that which arises by nature and birth; (2.) Acquired allegiance that arising residence simply within the country, for however short a time; and (4.) Legal allegiance-that arising from oath taken usually at the tourn or leet; for by the Common Law the oath of allegiance might be tendered to every one upon attaining the age of twelve years. In Calvin's Cuse the point decided was, that Calvin, although born in Scotland after the union of the Crowns of Scotland and England in the person of James I. in 1603, was nevertheless a subject of the king of England, and as such capable of holding or of acquiring by descent lands in England, this decision involving the further more general principle that allegiance to a sovereign is personal and not territorial, and that the maxim, quando duo jura (imo duo regna) concurrunt in unâ persona, æquum est ac si essent in diversis was inapplicable. That maxim does, however, apply in determining to what laws a person is to be subject. Until 1870 it was a rule of the English law that no one could lay aside an allegiance which he had once acquired (nemo potest exuere patriam suam) whence arose the difficulty of a "double allegiance as 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- (3.) Grandchildren, being the children (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. See titles NATURALIZATION; DENIZEN. 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 tenant 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 ALNAGE DUTIES. These were duties payable on woollen cloths at so much per ell (Fr. aulne); and the officer whose business it was to examine into the assize of woollen cloths was called the almager. 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. 763) is this- (1.) If the alteration is material,-then whether (a) it is made by a party ALTERATIONS IN WRITTEN INSTRUMENTS continued. or (b) it is made by a stranger, the alteration vitiates the instrument; and (2) If the alteration is immaterial,— then if (a) it is made by a party, the alteration vitiates the instrument. Aldous v. Cornwell (Law Rep. 3 Q. B. 573) must be distinguished, as the case of an immaterial alteration by some unknown person; But if (b) it is made by a stranger, the alteration has no effect at all in vitiating the instrument. With ALTERNATIVE OBLIGATIONS. reference to these obligations, Lord Coke has said that in case an election be given of two several things, always he who is the first agent shall have the election (Co. Litt. 145 a). And it has been laid down as a general rule that the person who has to perform one of two things in the alternative has the right to elect (Layton v. Pearce, 1 Doug. 15). The Roman law agrees generally with the English law in these respects. Brown's Savigny, 68-69. An election once made is binding, and the promise is thenceforth single to perform the alternative chosen: Quod semel placuit in electionibus, amplius displicere non potest (Co. Litt. 146 a). Where the one of two alternatives becomes impossible, or is so from the first, the promise is absolute to perform the other (Da Costa v. Davis, 1 B. & P. 242), unless, in the case of an impossibility subsequently arising, the construction of the contract or the circumstances under which it was entered into exclude the ordinary rule (Leake, Contracts, 371-375). It seems that no difference is made, whether the alternative which is impossible is so for natural or for legal reasons. Brown's Sav. 67. AMALGAMATE. Two companies cannot amalgamate with each other, unless such a transaction is authorized by the constitutions of both companies, or unless all the shareholders in both consent to the amalgamation. And where there is a power to amalgamate, that power must be strictly pursued (2 Lindl. Puer. 627). Speaking generally, corporations cannot amalganiate. Brice on Ultra Vires, 431. AMBASSADOR. This is the commissioner who represents one country in the seat of Government of another; and as such representative, he is exempt, together with his family, secretaries, and servants, from the local jurisdiction, not only in civil, but also in criminal cases. England, his exemption depends prin In AMBASSADOR-continued. cipally on the stat. 7 Anne, c. 12. Where such an ambassador involves himself in commercial relations, much inconvenience arises, the better opinion being that even in that case he is exempt from the local jurisdiction. But an ambassador may waive his privilege in all these respects, and submit himself to the jurisdiction. Such an ambassador is, however, amenable in his own country to the national jurisdiction thereof; and in fact it is because he carries with him into the foreign country the territory of his own country that he is exempted from the local jurisdiction. (See title EXTRA-TERRITORIALITY). Whether the exemption operates to deprive a creditor of his real (as opposed to a mere personal) right, is a disputed question (see case of the United States Ambassador to Prussia, Wheaton, pp. 307-318). An ambassador is a public minister, which in the usual case a consul is not. AMBIGUITY: See title EXTRINSIC EVI DENCE. AMENDMENT. This is the correction of some error or omission or the curing of some defect, in judicial proceedings. First, in civil cases. Here amendments are either at common law or by statute. In the times of oral pleading, the parties were allowed to correct and adjust their pleadings at any time during the oral altercation, and were not held to the form of statement which they might first have advanced. And so at the present day, until judgment is signed, either party may even at Common Law amend his pleading until judgment is signed, subject to the discretion of the Court or judge, who will not allow amendments which appear unreasonable, or whereby the opposite party may be prejudiced. But no amendments will be allowed in pleas in abatement, because such pleas are disfavoured. And even after judgment has been signed, the Courts have a power, even at Common Law, of amending, it being considered that during the term wherein any judicial act is done, the record remains in the breast of the judges (Co. Litt. 260 a). This power of amendment at Common Law has been largely supplemented by various Acts of Parliament called the Statutes of Amendment, which are commonly classed with the Statutes of Jeofails, and by which almost all errors in pleading, being errors in form only, are amendable, and certain objections to defective pleadings, being defective as to form only, are obviated after certain stages have been reached in a cause. The so-called Statutes of Amendments were the 14 Edw. 3, c. 6, st. 1; 9 Hen. 5, c. 4, st. 1; 4 Hen. 6, c. 3; and 8 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 ease 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, 8. 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 same; 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. 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 fault 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, or 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, |