Obrazy na stronie

MORTMAIN ACTS—continued.

(4 & 5 Vict. c. 38, s. 10, and 36 & 37 Vict. c. 49); the gift in any one case not exceeding one acre

of land; and (6.) (Judging at least from the statutory

form of the conveyance, see, s. 13 of the Act.) In the case of the gift of land not exceeding one acre in any one case in favour of any

of the following objects;Institutions for the promotion of

science, or of literature, or of

the fine arts; Institutions for the instruction of

adults, or the diffusion of use

ful knowledge;
Foundation and maintenance of li-

braries and reading-rooms;
Public museums;
Natural history collections;
Mechanical and philosophical inven-

tions, instruments, and designs. See the Literary and Scientific Institutions Act, 1854 (17 & 18 Vict. c. 112).

(3.) The necessity to indent the deed of gift was altogether abolished by the Act 24 Vict. c. 9.

(4.) The necessity that the deed should be delivered twelve calendar months before the death of the donor remains as a general rule, but has been abolished in the following cases :(a.) In the case of a gift of land as a

site for a poor school, church, chapel, or meeting-house, or for the residence of the minister, master, or mistress thereof (7 & 8 Vict. c. 37, s. 3, and 36 & 37 Vict. c. 49); the gift in any one case not

exceeding one acre of land ; (6.) In the case of the gift of land not

exceeding one acre in any one case in favour of any of the fol

lowing objects :Institutions for the promotion of

science, or of literature, or of

the fine arts; Institutions for the instruction of

adults, or the diffusion of useful

Foundation and maintenance of li-

braries and reading-rooms;
Public museums;
Natural history collections ;
Mechanical and philosophical in-

ventions, instruments and de

signs. See the Literary and Scientific Institutions Act, 1854, supra; and (c.) In the case of a gift of land for the

recreation of adults, or for the playground of children,

MORTMAIN ACTS-continued.

See the Recreation Grounds Act, 1859 (22 Vict. c. 27).

On the other hand, where under the Public Parks, Schools, and Museums Act, 1871 (34 Vict. c. 13), the gift of lands is made either by deed or by will, the necessity for execution of the deed twelve calendar months before the death of the grantor is retained, and the like necessity is enacted in the case of such gilt being made by will (s. 5).

(5.) The requisite of inrolment in the Court of Chancery within six months from the execution of the deed is in general preserved, but it has been removed in the following case, viz.;In the case of a gift of lands for the

recreation of adults, or for the

playgrounds of children. See the Recreation Grounds Act, 1859, supra.

On the other hand, where under the Public Parks, Schools, and Museums Act, 1871 (supra), the gift of lands is made either by deed or will, the inrolment thereof must be made within six calendar months after the time the same comes into operation, such inrolment being, however, made in the books of the Charity Commissioners. See title CHARITY COMMISSIONERS.

(6.) The requisite, that the grant should take effect in possession immediately from the execution of the deed, has been slightly relaxed by the stat. 26 & 27 Vict. c. 106, which has enacted that if such gift take effect within one year from the date of the instrument it shall be deemed to take effect in possession immediately; and

(7.) The irrevocability of the gift remains as a general rule, but under the recent statutes mentioned above, it is a general rule that where any of the lands given for the popular uses specified above, cease to be employed for such uses, they shall revert to the donor, or his representatives, at the time they so cea e to be used; al: the requisite excluding reservations in favour of the donor remains as a general rule, but has been exploded in the following cases :(a.) In all cases of the reservation of a

peppercorn or nominal rent only

(21 Vict. c. 9); (6.) In all cases of the reservation of any

mines or minerals or any ease

ment (24 Vict. c. 9); (c.) In all cases of any covenants or con

ditions as to erections or repairs,

&c. (21 Vict. c. 9); (d.) In all cases of the apparent gift

being in fact a purchase, and the consideration money therefore is reserved, partly or wholly, in the form of a rent-charge in lieu of a MOTIONS IN PARLIAMENT--contd. of which notice has previously been given, as contraddistinguished from “ orilers of the day,” which latter are questions which the House has already agreed to consider, or has partly considered and adjourned for further consideration or debate. On an

order ” day the orders have precedence of motions, and on a “motion” day the motions have precedence of orders; but in either case if the one can be disposed of in time, the House will proceed to the other.

MORTMAIN ACTS_continued.

gross sum (24 Vict. c. 9, and 27

Vict. c. 13); and (e.) In all cases of the gift of land, either

for the recreation of adults, or for

the playgrounds of children. See the Recreation Grounds Act, 1859, supra.

And, in general, there is a provision in all the statutes of Victoria respecting gifts for poor schools, churches, and such like, that the land shall revert to the grantur if it cease to be used for the purpose for which the same was originally granted.

MORTUARY. A mortuary is that beast or other moveable chattel wlich, upon the death of the owner thereof, by the custom of some places, becomes due to the parson, vicar, or rector of the parish in which the person so dying resided, in lieu or satisfaction of tithes or other ecclesiastical offerings which such party may have forgotten or have neglected to pay while alive. 21 H. 8, c. 6; Les Termes de la Ley.

MOTION. An application to the Court by the plaintiff or defendant in an action, or by the counsel for either, in order to obtain some rule or order of Court which may become necessary in the course of the proceedings; and the act of making such an application is termed moving the Court. The word also signities instance, desire, will, &c. Thus a person is said to do a thing of his own motion, i.e., voluntarily, without being required to do it.

See also the next following titles.

MOVEABLES. Moveable and immoveable is one of the commonest, because the most apparent and natural, of the modern divisions of things, as the subjects of pris perty. It is not coinciilent, however, with the historical divisions which have obtained most extensively in ancient or in modern times, not agreeing with the Roman Law division into Res Mancipi and Res Nec Mancipi (agricultural and non-agricultural) on the one hand, nor with the English Law division into lands and chattels, or real and personal property, on the other. For example, a leasehold house is an immoveable, and yet is personal property; and a dignity or title of honour is a moreable and yet is real property.

Nevertheless, just as the division into Res Mancipi and Res Nec Mancipi gradually gave way before the industrial development of Roman greatness, so also the division into real and personal property is more and more giving way before the advancing diversities of English wealth. For eso ample, a leasehold house is now for many purposes looked upon as land, and is even declared to be such in the interpretation clause of most modern statutes. But the division into moveable and immoveable, finding its basis in nature, promises to be permanent; and it may grow to be as fertile in consequences as the older divisions have been.


MOTION OF COURSE. Is a motion which is granted as a matter of course, and which, therefore, is not usually made in open Court, but is granted by the master or officer of the Court when the paper containing the direction to move is laid before him, with a barrister's signature attached. Almost everything that may be done on motion of course can also be done, and is ordinarily done, by petition of course at the Rolls. See that title; and 2 Dan. Ch. Pr. Appendix.

MOTIONS IN PARLIAMENT. Making a motion in either House of Parliament is simply the act of submitting a proposition. In the House of Commons a member de. sirous of making a motion is desired to give previous notice thereof, and having done so, it is entered in terms upon the notice paper or order book. In the Lords this notice is not required by the rules of the House, but, for the sake of general convenience, the same practice ordinarily prevails. In the House of Commons there are certain fixed days appointed for motions

MUNIMENTS. Deeds, evidences, and writings in general, whether belonging to public bodies or private individuals, are called muniments; and in cathedral and collegiate churches, and generally in all offices, there is a strong room or compartment provided for the keeping of the muniments relating to their property, &c., which is thence termed a muniment house or strong room. Les Termes de la Ley; 3 Inst. 170.

MURDER The act of a person of sound memory, and of discretion, unlawfully killing any person under the kings

MURDER-continued. peace, with malice aforethought, either

N. express or implied. Express malice is signified by one person killing another

NANTISSEMENT. In French Law is with a deliberate mind and forined design ; the contract of pledge; if of a moveable, and which formed design is evidenced by it is called gage, and if of an immoveable external circumstances discovering that

it is called antichrèse. inward intention; as by lying in wait,

NATIVO HABENDO. A writ which antecedent menaces, former grudges, and concerted schemes to do him some bodily

lay for a lord when his villein had run harm. Implied malice is signified by one

away from him; it was direct d to the person's voluntarily killing another without

sheriff, and commanded him to apprehend

the villein, and to restore him together any provocation; for when such deliberate acts are committed, the law implies or

with bis gooils to the lord. But if a villein presumes malice to have urged the party

had tarried in a town or ancient demesne to the commission of them, although no par

lands for the period of a year and a day ticular enmity can be proved (3 Inst. t;

without having been claimed by his lord, 1 Hale, 455). And in case a person tres

then the lord could not seize him in either passing in pursuit of game fires at a bird,

of such places (Les Termes de la Ley). It and, without any intention at all of doing

was a writ of right raising the title of the so, hits and kills a man, that is murder,

lord, upon whom therefore the onus proinasmuch as the act of poaching is felonious,

bandi was laid ; and such a provision was

also in favour of liberty, the proof of and the felony therein couples itself to the death, and supplies the intention which

villenage, or neisty, going back as far as

1 Ric. 1. was lacking. R. v. Crispe, 1 B. & Ald.

See also title VILLENAGE. 282. See also title MALICE.


who are born within the dominions, or MUTE. A prisoner is said to stand

rather within the allegiance, of the King of mute when, being arraigned for treason

England. or felony, he either makes no answer at

See also title ALLEGIANCE. all, or answers foreign to the purpose, or with such matter as is not allowable, and

NATURALIZATION. The making a will not answer otherwise ; or upon having foreigner a lawful subject of the State, or, pleaded not guilty, refuses to put himself as it is sometimes termed, the king's upon the country.

natural subject. Formerly, an Act of

Parliament was required in each particuMUTINY ACT. An Act of Parliament lar case to naturalise an alien; the king to punish mutiny and desertion, and for by his letters patent might denizenise but the better regulation of the army, and not naturalise. However, by the 7 & 8 their quarters. The Mutiny Act, pro

Vict. c. 66, which was a General Act, it was perly so called, relates to the army

enacted that aliens of friendly states might only; the Marine Mutiny Act relates to

become naturalised British subjects upon the navy. Each Act is passed annually, complying with the requisites of the Act. the jealousy of the constitution for the And now, by the Naturalization Act, 1870 individual's liberties being such as not to (33 & 34 Vict, c. 14), further facilities of tolerate that such Acts, or the jurisdictions naturalization are afforded, and the imporwhich they establish, should become per- tant privilege of expatriation is conferred ; petual or permanent. This necessity for also, the evil or inconvenience of a “double their annual re-enactment secures the allegiance” is remedied. annual re-assembling of Parliament.

See also title ALLEGIANCE. MUTUAL CREDIT : See title SET-OFF.

NAVIGATION. The right of the public

to navigate a public river is paramount to MUTUAL PROMISES. In a declaration any right of property in the Crown, which in special assumpsit the plaintiff' usually never bad the power, e.g., to grant a weir alleges that, in consideration that he, at in obstruction of the navigation (Williams the request of the defendant, had then v. Willcox, 3 N. & P. 608). As to what is proinised the defendant to observe, perform, evidence of a public river, the flux and and fulfil all things in the agreement on reflux of the tides is primâ facie evidence his, the plaintifi’s, part, the defendant pro- of its being so; but the evidence is not mised the plaintiff that he would perform conclusive, because a public right of naviand fulfil all things in the said agreement gation in such a river may have been exon his, the defendant's, part to be observed tinguished either (a.) By legal means ; and performed, which is thence termed the e.g., an Act of Parliament, a writ of ad allegation or statement of mutual promises. I quod damnum (see that title), or an order

[ocr errors]

NAVIGATION—continued. of commissioners of rivers; or (6.) By natural causes-e.g., a retreat of the sea or a deposit of silt and mud (Rex v. Montague, 6 D. & R. 616). A navigable river is a public highway for vessels at all times and states of the tide (Colchester (Mayor) v. Brooke, 7 Q. B. 339); and an obstruction to the navigation may be the subject either of an action or of an indictment, according to the circumstances. Similarly, the public have a right of user of a canal, which is an artificial navigable river, e.g., with boats propelled by steam power, if they do no injury to the canal beyond what would *be occasioned by traction by horses. Case v. Midland Ry. Co., 5 Jur. (N. S.) 1017.

NAVY : See title ARMY.

NE EXEAT REGNO (Ihat he leave not the kingdom). A writ which issues to restrain a person from leaving the kingdom. This writ is frequently resorted to in Equity when one party has an equitable demand against another, and that other is about to leave the kingilom; and it is only in cases where the intention of the party to leave can be shewn that the writ is granted. F. N. B.; Gray's Ch. Pr. 16.

NEGATIVE PREGNANT. In pleading signifies the statement of a negative proposition in such a form as may imply or carry with it the admission of an afirmative. Thus, in an action of trespass for entering the plaintiff's house, the defendant pleaded that the plaintiff's daughter gave him licence to do so, and that he entered by that licence; to which the plaintiff replied, that he did not enter by her licence. This replication was held to be a negative pregnant, inasmuch as it might imply or carry with it the admission that a licence was given, although the defendant did not enter by that licence; and the proposition would therefore, in the language of pleading, be said to be pregnant with that admission; viz., that a licence was given. A negative pregnant is one of those faults in pleading which fall within the rule that pleadings must not be ambiguous or doubtful in meaning. In the above instance the plaintiff' should have denied either the entry by itself, or the licence by itself; for the effect of denying both together was to leave it doubtful whether he meant to deny the licence, or the fact of the defendant's entry by virtue of that licence. Steph. on Pl. 408, 409, 4th ed.

NEGLIGENCE. Negligence producing damage to the plaintiff' is in all cases a ground of action; but the question what shall be considered negligence for this purpose is a question for the jury, subject to

NEGLIGENCE-continued. certain rules of law, or of common sense, according to which the measure of culpable negligence varies according as the circumstances of the cases differ. In all cases, the first point to settle is the amount or degree of diligence exigible from the defendant, for by means of that positive criterion, it is possible to ascertain in the next place the amount or degree of negligence on the defendant's part which will involve him in liability for the damage which has arisen. The rule is, that the negligence is inversely in proportion to the diligence. For example, if but slight diligence (leris diligentia) is exigible, then only gross negligence (crassa negligentia) amounting also to wilfulness or intentionality (dolus), will render the defendant liable, as is the case with gratuitous bailees, whether depositaries or mandatories. And, on the other hand, if extreme diligence (exacta diligentia) is exigible, then the slightest negligence (leris negligentia, or leris culpa) will in like manner render the defendant liable, as is the case with inn-keepers, carriers, and generally with paid bailees.

But, subject to these rules, the question is one of fact; and the mode of proof varies from the most apparent case, in which the facts speak for themselves (res ipsa loquitur) condemning the defendant, into the least tangible case of all, in which the judge hesitates whether or not there is any question of negligence at all which he can submit to the jury. Then, occasionally, the plaintiff has by his own negligence contributed to the damage; and, before the jury can find for him, they must be persuaded upon the evidence that the delendant's negligence was such as that the damage would have arisen at all events although the plaintiff had been ever so diligent.

NEUTRALITY. Is the condition in which a third nation is, when two other nations are at war with each other. The duties of a friendly neutrality have been considerably increased of late years, whence the Foreign Enlistment or Neutrality Act of 59 Geo. 3, c. €9, has been repealed, and a more stringent Neutrality Act, viz., the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), substituted in its place. Under that Act, which extends all the Queen’s dominions and the adjacent territorial waters, the penalty of fine and imprisonment, or of either, and with or without hard labour, is imposed upon any British subject enlisting without the licence of the Queen in the military or naval service of either belligerent, or agreeing to so eplist, or inducing others to


NEW ASSIGNMENT—continued. so enlist, or leaving England with the in- proved a right of way as alleged, the plaintention to so enlist, or inducing others to tiff would be precluded from giving evidence enbark with that intention, under a mis- of any trespasses committed out of the representation of the fact, or taking ille- line or track over which the defendant gally enlisted persons on board, with a thus appeared entitled to pass. In such knowledge of the fact. And under the case, therefore, the plaintiff's course would same Act, illegal ship-building and all be, in his replication, both to deny the plea, particular acts assistant thereto, and all and also to new assign, by alleging that he illegal expeditions generally, are subject brought his action not only for those tresto the like penalties, together with the passes, supposed or assumed by the defenforfeiture of the vessel or other materials of dant, but also for others committed on the expedition.

other occasions, and in other parts of the NEW ASSIGNMENT.

From the very

close out of the supposed track or line of general terms in which declarations are

way over which the defendant so claimed framed, the defendant is sometimes not

a right to pass; and such a new assignsufliciently guided to the real cause of

ment is usually called a new assignment complaint, and is in consequence led to

extra viam. Steph. Pl. 247, 252; Bull. & apply his plea to a different matter from Leake, Prec. in Plead., pp. 653—657. that which the plaintiff had in view. In

By the C. L. P. Act, 1852, s. 87, only such cases, a plaintiff is obliged to resort,

one new assignment shall be pleaded to in his replication, to a mode of pleading

any number of pleas to the same cause of termed a new assignment, for the purpose

action; and such new assignment shall be of setting the defendant right.

A new

consistent with and confined by the partiassignment, as the phrase imports, is an

culars (if any) delivered in the action, and instrument in which the plaintiff assigns

shall state that the plaintiff proceeds for afresh his ground of complaint with more

causes of action different from all those certainty and particularity than he had

which the pleas profess to justify, or for an previously done in the declaration, and

excess over and above what all the defences distinguishes the true ground of complaint

set up in such pleas justify, or both. from that which the defendant in his plea

NEW TRIAL MOTION PAPER. bad assumed it to be. Thus, in an action


the practice of the Courts motions for new of trespass quare clausum fregit, for re

trials must in general be made within the peated trespasses, the declaration usually

first four days of term; but when from states that the defendant on divers days

pressure of business, or other like cause, the and times before the commencement of the

Courts have not had time to dispose of all suit broke and entered the plaintiff's close,

the applications, it is the practice to liave and trod down the soil, &c., without set

the names of the causes and of the counsel ting forth more specifically in what parts

who are instructed to move therein put of the close, or on what occasions, the de

into a list, called the new trial motion fendant trespassed ; now it might happen that the defendant claimed a right of way

paper; and the motions are then heard and

disposed of on the following or some subover a certain part of the close, and in ex

sequent day, according to the seniority of ercise of that right bad repeatedly entered

counsel appointed to move therein. and walked over it; and it may also happen that he has entered and trod down the soil, NEW TRIAL PAPER. A paper con&c., on other occasions, and in parts out of taining a list of causes in which rules nisi the supposed line of way, and the plaintiff, ave been obtained for a new trial, or for not admitting the right claimed, may have entering a verdict in place of a nonsuit, or intended to apply bis action both to the for judgment non obstante veredicto, or for one set of trespasses and the other. But as otherwise varying or setting aside proceedfrom the generality of the declaration it

ings which have taken place at Nisi Prius. would be consistent to suppose that it re- These are called on for argument in the ferred only to his entering and walking in order in which they stand in the paper, on that part over which he claimed the right days appointed by the judges for the of way, the defendant would be entitled to

purpose. suppose or assume that it referred, in fact, only to his entering and walking in that NEXT FRIEND. An infant sues by line of way.

He might, therefore, in his his next friend (prochein ami) and defends plea, allege, as a complete answer to the by his guardian ad litem.

Similarly a whole complaint, that he had a right of married woman where she has an interest way by grant, &c., over the said close; and conflicting with that of her husband, sues if he did this, and the plaintiff confined by her next friend (making her husband a himself in his replication to a denial of defendant). The name of the next friend that plea, and the defendant at the trial is always mentioned in the title of the

« PoprzedniaDalej »