Obrazy na stronie

MALICIOUS PROSECUTION-continued. prove two things :-(1.) The fact of malice ; and, (2.) The absence of all reasonable or probable cause for the defendant's conduct. The action for a malicious arrest stands on the like footing, but can hardly occur at the present day, imprisonment as well on mesne as on final process having been abolished.

MANDAMUS. This is either (1) the prerogative writ so called, or (2) the ordinary writ of injunction. The prerogative mandamus is a writ which issues in the king's name out of the Court of King's Bench, commanding the completion or restitution of some right. The power of issuing writs of mandamus is one of the highest and most important branches of the jurisdiction of the Court of King's Bench, and in general belongs exclusively to that Court; and it may be compared to a bill in Equity for a specific performance. It is used principally for public purposes, and to enforce the performance of public rights or duties. A writ of mandamus, however, does operate in affording specific relief, and enforcing some private rights when they are withheld by a public officer, and though principally for the admission or restitution to a public office, yet it extends to other rights of the person or property. A mandamus is not generally granted by the Court, excepting when the party applying for it has no other specific remedy. It issues to compel a removed clerk to deliver up books of a public corporate company, to compel overseers to deliver up parish books to their successors; to compel a lord and steward of a copyhold manor to admit the tenant; it also issues to inferior Courts and judges thereof, and justices of the peace and other public functionaries, to compel them to proceed according to their respective duties. There was also a mandamus formerly much in use which issued to the escheator for the finding of an office after the death of one who had died the king's tenant, and was the same as the writ of diem clausit extremum, excepting that the diem clausit extremum went out within a year after the death, whereas the mandamus did not go out till after the year, and when no diem clausit extremum had previously been sued out, or had been sued out to no effect. 1 Chitt. Gen. Pract. of the Law; Les Termes de la Ley; C. L. P. Act, 1854, ss. 75–77.

The ordinary mandamus is to all intents and purposes an injunction (see that title), and issues under the provisions of the C. L. P. Act, 1854 (ss. 68-74) to compel the defendant in an action to perform any duty, being of a public character, in which the plaintiff has an interest.

MANDAT. In French Law is the mandatum of Roman, and the Gratuitous bailment of English Law.

See title BAILMENT. MANDATE (mandatum). A contract by which one employs another to act for him in the management of his affairs, or in some particular department of them, of which employment the person accepts and agrees to act. He who so gives the employment is called the mandator, and he who accepts it the mandatarius. The word was also sometimes used to signify a judicial command of the king or any of his justices to have anything done for the benefit and dispatch of justice, and appears to have been somewhat analogous to the writ of mandamus. Cowel.

MANNER AND FORM (Modo et formi.) Formal words introduced at the conclusion of a traverse; and their object is to put the party whose pleading is traversed, not only to the proof that the matter of fact denied is in its general effect true as alleged, but also that the manner and form in which the fact or facts are set forth are also capable of proof. Thus in an action of assumpsit, where the plaintiff sets out an agreement in his declaration, as the foundation of the defendant's promise, and the defendant pleads generally that he did not promise in manner and form as alleged, he may, under the issue so raised, take advantage of any material variance between the contract so set out and that which, upon the trial, is proved to have been the actual contract between the parties, It may be as well, however, to remark, that when a traverse is pointed to one amongst several independent allegations, it simply puts in issue the substance of that allegation notwithstanding the words modo et formå. So in the common action of debt for goods sold and delivered, when the defendant pleads that he never was indebted in manner and form as alleged, this traverse does not put in issue the formal accuracy of the plaintiff's statement, but the very substance of the plaintiff's declaration, viz., whether or not the defendant was ever indebted to the plaintiff in respect of the cause of action alleged. See Steph. Pl. 214, 215, 4th ed.; Neale & M'Kenzie, 2 Cr. M. & R. 67; 1 Ch. Pl. 513.

MANOR (manerium.) A manor seems to have been a district of ground held by great personages. It is compounded of various things, as of a mansion-house, arable land, pasture, meadow, wood, rent, advowson, court baron, and such like. A manor, to be such, must have continued from time immemorial; for at the present day, or since the stat. Quia Emptores


MANUMISSION- continued. was done by the lord entering into an obligation with his villein to pay him money at a certain day, or granting him an annuity, or leasing lands to him by deed for a term of years, or doing any other similar act which would imply that he treated with his villein upon the footing of a freeman (Les Termes de le Ley). Similar modes of dealing with a servus had in Roman Law the like effect of an implied manumission; and in particular the mere circumstance of the master describing his slave in a written document as his son (filius) had the effect of rendering him a freeman, although not a son. Just. Inst. i. 11, 12

MARITAGIUM. Was the wife's portion in English Law and the dog of Roman Law, and is to be distinguished from matrimonium, which was land inherited from one's mother. It also signified the power which the lord or guardian in chivalry had of disposing of his infant ward in matrimony. It is also said to have been that profit which might accrue to the lord by the marriage of one under age who held his lands of him by knight service. Cowel.

MANOR-continued. (18 Edw. 1, c. 1), a manor cannot be made, because the process of subinfeudation has been abolished, and a Court Baron cannot now be made, and a manor cannot exist without a Court Baron, and suitors and freeholders to the amount of two at the least; for if all the freeholds except one escheat to the lord, or if he purchase all except one, his manor is at once gone and dead. A manor by reputation, however, but which has ceased to be a legal manor, by defect of suitors to the Court, may yet retain some of its privileges, as a preserve for game, and the lord may still appoint a gamekeeper thereto. Les Termes de la Ley; Watkins on Copyholds.

With reference to the legal content of the word manor, it seems that without the addition of the word “appurtenances,” it will pass the following properties, viz :(1.) The demesnes, i.e., the lands of

which the lord is seized within

the manor ;* (2.) The freehold of all the lands held

by copyhold or other customary

tenants; (3.) The wastes; (4.) Fealty, suit of Court, rents, and

generally all the services; (5.) Courts Baron with fines and perqui

sites annexed thereto;
(6.) Courts Leet, with the like finez and

(7.) Franchises; and
(8.) Advowsons appendant.

Many manors which have been destroyed are still reputed manors, and will pass in a deed by the description of manor.

MANSLAUGHTER. Is a criminal offence; it is defined as homicide felonious, but without premeditation; and it may be either (a) involuntary, as where a man doing an unlawful act not amounting to felony by accident kills another, or where by culpable neglect of duty he occasions another's death; or (b) voluntary, as when upon a sudden quarrel, two persons fight, and one of them kills the other, or where a man greatly provokes another by some personal violence and the other immediately kills him.

MANUMISSION (manumissio). The making a bondman free, which in the feodal ages was a frequent occurrence. Manumission was either express or implied. Manumission express was done by the lord granting to his villein a deed of enfranchisement. Manumission implied,

MARKET. In its legal signification may be defined to be the liberty or privilege by which a town or lord is enabled to keep a market (Old Nat. Brev. 149. See also title FRANCHISE). The Market and Fairs Clauses Act (10 & 11 Vict. c. 114) consolidates in one Act the provisions usually contained in special Acts for constructing and regulating fairs and markets; and under the stat. 31 & 32 Vict. c. 51, the usual days for holding fairs, if inconvenient, may on representation to the Home Secretary be altered, a notice of the alteration being published in the Gazette. The fairs of the metropolis are regulated by the stats. 2 & 3 Vict. c. 47, and 31 & 32 Vict. c. 106. No one may place a stall in a market without leave from the owner of the soil (Northampton (Mayor) v. Ward, 1 Wils. 107). and trespass will lie for so doing. Norwich (Muyor) v. Swan, 2 W. Bl. 1116.

See also next title.

MARKET OVERT (open market). Selling goods in market overt means selling them in an open market, as opposed to selling them privately or in a covert place; the former kind of sale effects a change in the property of the things so gold, even as a gainst the true owner, 6.1., in the case of stolen goods; but a sale out of market overt does not. In the country, the market-place or spot of ground sit apart by custoin for the sale of goods and

* Bur demenjen previously granted in fer do not, on a jepurch of them by th: lord, became part of the momentity, an ibu ya wouid du uron an eyleat, Deluche rosa y, Dularkeruts, 11 H. L. 1. 62.

MARKET OVERT-continued.

MARRIAGE-continued. wares, &c., is, in general, the only market riago, was strictly territorial or local (see overt. In London, however, a sale in an title Lex LocI ACTUS), whence Gretna open shop of prop«r goods, is equivalent to Green marriages were valid (Brook v. a sale in market overt; for every day, Brook, 9 H. L. C. 193). The stat. 3 Geo. except Sunday, is a market there. So it 4, c. 75, declared marriages of infants by would appear is the case in Bristol, or licence, without consent, valid. The stat. elsewhere, when warranted by custom. 6 Geo. 4, c. 92, and other subsequent Dub. Mo. 625; 5 Co. 83 c; cited in Com. statutes, provide for the validity of marDig. tit. Market (E). And see generally riages celebrated in churches and chapels the Case of Market Overt, Tud. L. C. Mer. in which banns have not been usually pubLaw, 713.

lished. And under other statutes, com

mencing with the stat. 6 & 7 Will. 4, c. MARKSMAN. A de ponent in an aflida- 85, marriages by or without licences may vit who cannot write his name, but makes be solemnised by virtue of the superinhis mark or cross instead, is so termed

tendent registrar's certificate. (2 Q. B. 520, n. (a): 4 Dowl. P. C. 765). By the Common Law of England the The proof of such a signature by com- requisites to the validity of marriage, are parison of handwriting is excluded å mark the following: not presenting sufficient data of comparison. (1.) The presence of a priest in holy

orders (Catherwood v. Caslon, 13 MARQUE AND REPRISAL, LETTERS

M. & W. 261 ; Reg. v. Millis, 10 OF. These words “ marque and reprisal,"

Cl. & F. 531); are frequently used as synonymous; but

(2.) The presence of witnesses (Beamish taken in their strict etymological sense,

v. Beamish, 9 H. L. C. 274), or the latter signifies a taking in return; the

at least of one witness (Wing v. former, the passing the frontiers (marcher)

Taylor, 2 S. & T. 278); in order to such taking. Letters of marque

(3.) The consent of the parties (Harrod and reprisal are grantable by the law of

v. Harrod, 1 K. & J. 4); nations, whenever the subjects of one state

(4.) The formalities of marriage as deare oppressed and injured by those of an

fined by the lex loci actus must be other, and justice is denied by that state to

observed (Brook v. Brook, 9 H. L. which the oppressor belongs; and the party

C. 193); to whom these letters are granted may then

(5.) The essentials of marriage, as deseize the bodies or the goods of the subjects

fined by the lex domicilii, inof the state to which the offender belongs,

cluding therein all questions of until satisfaction be made, wherever they

personal capacity or incapacity, happen to be found. Reprisals are to be

must be observed (Brook v. Brook, granted only in case of a clear and open

supra); denial of justice. They are regulated in

(6.) The parties must not be within the England by the stat. 4 Hen. 5, c. 7. They

prohibited degrees of consanguiare of course granted only in times of peace,

nity or of attinity; and for that and for a cause which is not sufficient to

purpose illegitimate relationship provoke an actual war between the two

counts; but countries. But at the present day, in con

(7.) The consent of the parents is not sequence partly of treaties and partly of

necessary (Rex v. Birmingham, the practice of nations, the making of re

2 M. & R. 230). prisals is confined to the seizure of com

See also title HUSBAND AND WIFE. mercial property on the high seas, by

MARRIAGE, BREACH OF PROMISE public cruisers, or by private cruisers

OF. specially authorized thereto.

The promise, to support an action, See also title PRIVATEERING.

must Fave been made to the plaintiff' (Cole

v. Cottingham, 8 C. & P. 75.) Moreover, it MARRIAGE. The law of marriage de- must appear not only that the defendant pends partly on statute and partly on the proposed or even promised to marry the Common Law. The most important statute plaintiff, but also that she promised to upon the subject was the 26 Geo. 2, c. 33 marry him; for in this as in all other (Lord Hardwicke's Act), by which the cases of contract mutuality is an essential publication of banns, and the solemnization requisite (see title CONTRACT) (Veneall v. in one of the churches where they had been Vene88, 4 F. & F. 314). The C. L. P. publisiel, were required; and that statute Act, 1852, Sch. B, provides simple counts also enacted that two witnesses besides the for this action, suitable to the circumiminister should be present, and that the stances of the generality of cases, With register should be signed by the minister, reference to the evidence of the promine, parties, and witnesses. This statute, re- the parties themsrlves, although formerly Turring only to the formalities of the mar, i incompetent as witnesses (14 & 15 Vict. c.


OF-continued. 99, s. 4), were made competent by the stat. 32 & 33 Vict. c. 68. Various defences may be raised to the action, e.g., (1.) General bodily infirmity arising subsequently to the contract (Alchinson V. Baker, Peake's Add. Ca. 103), not being, semble, mere infirmity arising from disease (Hall v. Wright, El. Bl. & El. 746); (2.) Prior unchastity of the female, not discovered until after the contract (Wharton v. Lewis, 1 C. & P. 529); and (3.) Mutual releases Davis v. Bomford, 6 H. & N. 245.

MARRIAGE SETTLEMENTS. These are settlements made on marriage, either by the parties themselves to the marriage contract or one of them, or by some parent or other relation of the parties, or of one of them on their behalf. Such settlements if made before marriage are called ante-nuptial, if made after the marriage, are called post-nuptial: and there is this broad distinction between ante-nuptial and postnuptial settlements, that the former are equivalent to purchases for value, wbile the latter are considered as voluntary conveyances only, and the respective natural effects of that distinction attach to the respective settlements. Consequently, an ante-nuptial settlement receives the like favour in Equity and also at Law which a purchase for value receives, while a postnuptial settlement is subject to the like liabilities to be defeated both in Equity and at Law which every voluntary settlement is subject to (see titles VOLUNTARY SETTLEMENTS; VALUE, PURCHASE FOR). Two rules, however, have been established, which partially favour post-nuptial settlements above purely voluntary settlements, namely :

(1.) If the slightest addition of value, not notoriously colourable, is added to the meritorious consideration of blood or natural affection, which alreadly underlies the settlement, then the post-nuptial settlement is taken out of the category of voluntary settlements altogether, and is placed in the category of settlements for value, with all the corresponding incidents of advantage attaching to the latter (Hewison v. Negus, 16 Beav. 594); and

(2.) If the post-nuptial settlement has been preceded by marriage articles entered into previously to the marriage, then the post-nuptial settlement relates back to the date of the articles, and becomes practically ante-nuptial, or equivalent to a settlement for value; and it does not matter whether the articles are in writing or rest in parol merely (Dundas v. Dutens, 2 Cox, 235; Warden v. Jones, 2 De G. & J., 76); the subsequent settlement in writing sup

MARRIAGE SETTLEMENTS_contd. plying in the latter case, before any action has arisen, the original defect of writing. Bailey v. Sweeting, 9 C. B. (N.S.) 843; Bill v. Bament, 9 M. & W. 40.

Also, by the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 91, the following provisions have been made with reference to post nuptial settlements by traders :

I. With reference to the husband's property in his own right, –

(1.) Any post-nuptial settlement made within two years of the subsequent bankruptcy of the trader is ipso facto void upon the bankruptcy; and

(2) Any post-nuptial settlement made within ten years of the subsequent bankruptcy of the trader, and outside of the first two years thereof, is also void upon the bankruptcy, until proof of bona fules.

II. With reference to the husband's property in right of his wife,

(3.) Any post-nuptial settlement by a trader on his wife and children is good, notwithstanding the bankruptcy, if the property have accrued during the coverture.

Also, by the same Act, and the same section thereof, it is provided, that, with reference to covenants and contracts made before marriage by a trader to settle future property, yet to acquire, all such covenants and contracts shall be void upon the trader's bankruptcy, unless prior to such bankruptcy the property referred to has been both acquired and settled pursuant to the covenant or contract. Ex parte Bishop, In re Tönnies, W. N. 1873, pp. 81, 125.

Assuming that a marriage-settlement is ante-nuptial, or (although post-nuptial,) is for any one or more of the foregoing reasons, valid, the following question arises upon it, namely, what is the extent of the marriage consideration. The general rule is, that the consideration of marriage supports only limitations to the intended husband and wife and the expected issue, and not limitations to any other persons (Johnson v. Legard, 6 M. & S. 60); but to this rule there are two exceptions, namely, (a.) Settlements made previously to and

in contemplation of a second marriage, upon the issue of a former marriage (Clarke v. Wright, 6 H.

& N. 849); and (6.) Settlements made previously to, and

in contemplation of, a first marriage upon the issue of either of the marrying parties by a future marriage. Jenkins v. Keymis, 1 Lev. 150; Clayton v. Wilton,

3 Mad. 302. There is also, speaking with a rough accuracy only, a third exception, namely,

(c.) Settlements made upon collaterals,


MARSHALLING OF ASSETS-contd. if there is any person purchasing the creditors in general; it has been long on their behalf; but the validity a general principle of Equity that if a of such limitations to collaterals claimant has two or more funds to which clearly depends upon the money he may resort, a person having an interest consideration and not on the mar- in one only of such funds has a right to riage consideration alone. Heap compel the former to resort to the other v. Tonge, 9 Hare, 90.

or others of them, if that is necessary for The peculiarity which attaches to mar- the satisfaction of both. This principle riage as a consideration is this, that, unlike is not confined to the administration of the other considerations, when the marriage estate of a person deceased, but applies consideration has once had effect, the wherever the election of a party having parties cannot be remitted to their origi- two funds will disappoint the claimant nal positions, the consideration not ad- having the single fund. Thus, where A., mitting, like a money sum, of being repaid a creditor, can resort to more than one or returned. The law regards the consi- fund of the deceased, and B., another deration of marriage in a sacred light. creditor, can resort to only one, then in Where, therefore, the sacredness of marriage such case A. shall resort to that fund on is made a mere pretext for committing a which B. has no claim, and thus both fraud, as where a trader who has been will be satisfied; and this is termed already living in concubinage with a marshalling of assets. woman marries her on the eve of his bank- The question who are entitled to marshal, ruptcy, and previously to such marriage and against whom, is one of very considersettles all or a material part of his property able complexity, but may be conveniently on her, and his expected issue by her, the explained in the following manner : marriage consideration being clearly ficti- Upon referring to the title ADMINISTRAtious will be disregarded by the Court, and TION OF Assets, it will be seen that there the settlement, although it is ante-nuptial, is an order usually observed in applying will be set aside upon the trader's bank- the properties which are applicable in ruptcy, or as against his creditors (Colum- | payment of debts; now, by substituting in bine v. Penhall, 1 Sm. & Giff. 228; Bulmer the same order the various persons to whom v. Hunter, L. R. 8 Eq. 46), the wife being these various properties would go if there in such cases presumed to have notice of were no debts to pay, and to whom they the husband's embarrassment,-a presump- do go so far as they are not exhausted by tion which perhaps, would hardly be re- that payment, we obtain the following list buttable by evidence.

of persons entitled to participate in the MARSHAL. There are, or used to be,

property of the deceased, viz. : several officers of this name, but those

(1.) Next of kin ; which are more particularly connected with

(2.) Heir-at-law; law are, (1.) The marshal of the king's

(3.) Heir-at-law; house or knight marshal, whose special

(4.) Charged devisees and charged lega

tees ; authority is in the king's palace, to hear and determine all pleas of the Crown, and

(5.) Uncharged pecuniary legatees, and to punish all faults committed within the

uncharged residuary devisees ; verge, and to hear and judge of suits be

(6.) Uncharged specitic devisees, and tween those of the king's household;

uncharged specific legatees; and (2.) The Marshal of the Queen's Prison,

(7.) Appointees.

Now the who, previously to the stat. 5 & 6 Vict.

ral rule of marshalling is c. 22, was called the Marshal of the King's

this, That if any person in the above list Bench Prison, and had the custody of the

is disappointed of his benefit under the King's Bench Prison ; (3.) The Marshal

will through the creditor seizing upon (as of the Exchequer, to whose custody that

he may) the fund intended for him, such Court committed the king's debtors for

disappointed person may recoup or comsecuring payment of their debts, and who

pensate himself for that disappointment also assigned sheriffs, escheators, customers,

by similarly going against the fund inand collectors their auditors, before whom

tended for and disappointing in his turn they had to account. Fleta, lib. 2, c. 4, 5;

any one or more of the persons prior in Cowel.

the above list; and such secondly disap

pointed person or persons may in his or MARSHALLING OF ASSETS. As it is their turn do the like against those prior right that every claimant upon the assets to him or them; so that eventually the of a deceased person should be satisfied (if next of kin have to bear the disappointhis claim be just) so far as that object can ment which was occasioned by the act of be effected by any arrangement consistent the creditor. Moreover, persons who stand with the nature of the respective claims of in the same position in the above list, may

« PoprzedniaDalej »