Obrazy na stronie


continued. William the Conqueror caused to be set down in a book called Domesday; and those which appear by that book to have belonged to the Crown, and are there denominated terræ regis, are called ancient demesne. Lands in ancient demesne are of & mixed nature, i.e., they partake of the properties both of copyhold and of freehold; they differ from ordinary copyholds in certain privileges, and from freehold by one peculiar feature of villenage, viz., that they cannot be conveyed by the usual common law conveyance, but pass by surrender to the lord or his steward in the manner of copy holds, with the exception that in the surrender the words “to hold at the will of the lord” are not used, but simply the words “ to hold according to the custom of the manor." There are three kinds of tenants in ancient demesne. First. Those wbose lands are held freely by grant of the king. Secondly. Those who do not hold at the will of the lord, but yet hold of a manor which is ancient demesne, and whose estates pass by surrender, or deed, and admittance, and who are styled customary freeholders. Thirdly. Those who hold of a manor which is ancient demesne, by copy of court roli, at the will of the lord, and are styled copyholders of base tenure (Cowel; Scriven on Copyholds, p. 425; i Cruise, Dig. 44). Whether lands are ancient demesne or not must be tried by Domesday Book, F. N. B. 16 D., the authority of which is conclusive (4 Inst. 269); but the question whether lands are parcel of a particular manor which is ancient demesne may be tried by a jury. Hunt v. Burn, 1 Salk. 57.

Tenants in ancient demesne used to enjoy certain privileges, e.g., that of being impleaded in the Courts of their own manors only, and of being exempted from serving on the juries of the county; but those privileges have mostly ceased, and provision is made by the stat. 4 & 5 Vict. c. 35, and the Acts amending same, for the general enfranchisement of ancient demesne lands.

See title COPYHOLDS. ANCIENT DOCUMENTS. These are received in evidence for certain purposes, and subject to certain restrictions. But ancient grants are not to be received in evidence unless they can be accounted for as coming, eg., from the hands of some one connected with the estate (Swinnerton v. Stafford (Marquis), 3 Taunt. 91); or from a reasonably probable custodian of them (Croughton v. Blake, 12 M. & W. 205). Ancient surveys hare in many instances been held inadmissible to prove the extent or rights of a manor (Evans v. Taylor, 7 A. & E. 617;

ANCIENT DOCUMENTS-continued. Daniel v. Wilkin, 7 Esch. 429). But when ancient documents evidence an act of ownership, then they are admissible as evidence of title (Doe d. William the fourth v. Roberts, 13 M. & W. 520;; as they also are, where they are in the nature of an inquisition in a public matter. Carr v. Mostyn, 5 Exch. 69.

ANIMALS. There may be property in wild animals when reclaimed, e.g., in a cat; and in the case of unreclaimed animals, the property in them, according to the law of England, is said to be in the owner of the land upon which they are started and captured (Blades v. Higgs, 12 C. B. (N.S.) 501), although by the laws of most countries it is in the captor (See title OCCUPATIO). The owner of animals with a mischievous propensity is liable for the damages they occasion, provided he knows their mischievous propensity. (Jones v. Perry, 2 Esp. 482; Stiles v. Cardiff Steam Navigation Co., 12 W.R. 1080.) The stat. 28 & 29 Vict.c. 60, provides for dogs doing damage to cattle or sheep. The stats. 5 & 6 Will. 4, c. 59 (since repealed), 12 & 13 Vict. c. 92, and 17 & 18 Vict. c. 60, punish cruelty to animals; and the stat. 2 & 3 Vict. c. 47, prohibits bear-baiting and cockfighting. And as to bequests of personal property to a dog-charity, see University of London v. Jarrow, 23 Beav. 159.

ANNATES. These were first fruits, and were so called because one year's value of profits is taken as their rate.

ANNUITY. This is a yearly payment of a certain sum of money granted to another in fee, or for life, or for a term of years, and charging the person of the grantor, although it may also be made to charge his real estate, in which latter case it is most commonly called a rent-charge. The remedy was either by writ of annuity or by distress, according as the person or the lands of the grantor were sought to be affected. The Appo:tionment Act (4 & 5 Will. 4, c. 22) first made annuities apportionable. Under the Annuity Act (53 Geo. 3, c. 141), annuities for lives granted by way of the repayment of money lent, required to be inrolled in Chancery; but now, under the stat. 18 & 19 Vict. c. 15, they require to be merely registered in the Court of Common Pleas. Annuities may also be regarded as legacies payable, not in mass at one time, but by instalments every year or aliquot part of a year; therefore the word legacies in general comprises the word annuities. Bolton (Duke) v. Williams, 4 Bro. C. C. 361; Mullins v. Smith, 1 Dr. & Sm. 201.

If an annuity is given simpliciter, it is ANNUITY-continued. an annuity for the life only of the annuitant(Kerr v. Middlesex Hospital, 2 DeG. M. & G. 583); or, in the case of joint annuitants, for the life of the longest liver of them (Wilson v. Maddison, 2 Y. & C. C. C. 372); and the law is the same since 1 Vict. c. 26 (Nichols v. Hawkes, 10 Hare, 342). Where, however, an annuity is given to A. in general terms, and the gift is accompanied with a direction to provide for the same out of the proceeds of property, that is a perpetual annuity (Kerr v. Middlesex Hospital, supra), unless the direction is mere surplusage, e.g., merely directs payment out of the general effects” of the testator (Innes v. Mitchell, 6 Ves. 464); and, of course, the testator may, by express words, give a perpetual annuity. Stokes v. Heron, 12 Cl. & F. 161.

Sometimes an annuity is payable only out of income (Foster v. Smith, 1 Ph. 629), and soinetimes it is a charge on the corpus itself of the estate (Wright v. Callender, 2 De G. M. & G. 652), in which latter case the annuitant may, if the income is insufficient, require a sale of a sufficient part of the corpus (May v. Bennett, 1 Russ. 370), and will even be entitled to a prospective order for the necessary successive future sales (Hodge v. Lewin, 1 Beav. 431). An indefinite trust to receive rents for payment of an annuity is a charge of the annuity upon the corpus (Phillips v. Gutteridge, 11 W. R. 12); and a Iirection to purchase an annuity for A, entitles A. to have the purchase-money paid over to bim or her (Ford v. Batley, 17 Beav. 303; Re Brown's Will, 27 Beav. 324); although the testator may have directed the contrary (Stokes v. Cheek, 28 Beav. 620); and if the intended annuitant is dead, his personal representatives will be entitled to the purchase-money (Day v. Day, 1 Dr. 569), although the purchase-money is to consist of the proceeds of land sold. Bayley v. Bishop, 9 Ves. 6.

An annuity will abate with general legacies (Carr v. Ingleby, 1 De G. & Sm. 362), unless the annuity is given as a specific interest in land, when it will only abate with the other specific legacies. Creed v. Creed, 11 Cl. & F. 491.

When an annuity is given by will, the first payment thereof is to be made, in the absence of express directions otherwise directing payment, one year after the testator's death (Gibson v. Bott, 7 Ves. 96), or if successive interests for life and in remainder are given by way of annuity out of a sum of money directed to be placed out to answer it, then two years from the testator's death. Gibson v.

Bott, supra. ANSWER. This is the most usual mode of raising defences to a bill of complaint

ANSWER—continued. in the Court of Chancery, being more common than either plea or demurrer. By the Judicature Act, 1873, this form of pleading is extended to the Courts of Common Law.


ANTICIPATION. This word is commonly used in Courts of Equity as signifying the alienation of married women. It is a rule of the Common Law that the absolute property given to any one cannot be fettered with any restraints or conditions against alienating (Tud. L. C. Conv. 858; Bradley v. Peixoto), but Courts of Equity in the case of property given to the separate use of a married woman allow the restraint, as tending to render the separate use more perfect and assured (Tullett V. Armstrong, 1 Beav. 21). Whence the clause against anticipation is common in gifts of property to females to their separate use.


APOLOGY. In the case of a libel being published in a newspaper or other like public writing, the 6 & 7 Vict. c. 91, provides that the defendant may plead the inadvertent insertion of same without malice or gross negligence, and the prompt insertion in the same publication of an apology for same; and he may pay into Court at the same time a reasonable sum of money by way of amends. A like provision is made in the case of defendants being private individuals (s. 1), and such apology shall go in mitigation of



APOSTASY. This offence differs from heresy in this, that apostasy is a total renunciation of a religious belief once possessed, while heresy consists in denying some one particular doctrine only. At the present day apostasy is punishable under the stat, 9 & 10 Will. 3, c. 32 (Revd. Stats. 9 Will. 3, c. 35), by incapacity for or deprivation of offices of trust or emolunient, and by imprisonment for three years without bail. The information must be laid within four days after the outward profession of apostasy, and be followed up within three months, otherwise the accusation falls through. The penalty is also remitted upon an open retractation in Court of the offence.


APPARITOR. This was a messenger of APPARITOR—continued. the spiritual Courts, whose duty was to serve the process thereof.

APPEAL (from the Fr. appeler). This word has two significations : it signifies in one sense a complaint or an appeal to a superior Court, when justice is supposed not to have heen done by an inferior Court. It also signifies, when spoken in reference to a criminal prosecution, an accusation by one subject against another for a heinous crime, demanding punishment for the injury sustained by himself, rather than for the offence committed against the public. Criminal appeals were however abolished by 59 Geo. 3, c. 46. The principal kivds of them while they existed were the following: 1. Appeal of arson. 2. Appeal of death. 3. Appeal of mayhem. 4. Appeal of rape; and 5. Appeal of robbery (59 Geo. 3, c. 46). Of these appeals all were capital, except that of mayhem. The latest instance of an appeal was Ashford 4. Thornton (1 B. & A. 405) (one of rape followed by murder), and probably in consequence of that case the above-mentioned statute was passed forbidding such appeals for the future. Where the verdict in an appeal was in favour of the appeller, he might insist upon what terms he pleased as the ransom of the appellee's life. It has been suggested that, although appeals are abolished, some right of action for pecuniary compensation should be permitted in the cases in which appeals formerly lay.

The right of appeal in certain cases has been extended by various recent statutes, thus :(1.) An appeal from a decision of the

Court on a rule to enter a verdict, or a nonsuit, or for a new trial,

under C. L. P. Act, 1854 ; (2.) An appeal in Crown Cases Reserved,

under 11 & 12 Vict, c. 78; (3.) An appeal from a decision of jus

tices in summary proceedings,

under 20 & 21 Vict. c. 43; (4.) An appeal from an order giving

relief in ejectment against forfeiture, under C. L. P. Act, 1860 ;

and (5.) An appeal from a revising barrister

in election matters, under 28 &

29 Vict. c. 36. See also COUNTY COURT, for appeals

therefrom; and QUARTER SESSIONS, for appeals therefrom and

thereto. APPEARANCE. In an action at law, when a defendant is served with a writ of summons, which is a judicial mandate issuing out of and under the authority of the Court in wbich the defendant is sued,

APPEARANCE—continued. he is bound by the command which is contained in that writ to enter an appearance thereto within eight days; this appearance is a memorandum in writing according to a prescribed form, signifying that the defendant has appeared, according to the command of the writ, and such memorandum is delivered to the proper officer of the Court, and by him is entered in a book kept for that purpose; and this is what is technically called entering an appearance (Arch. Prac.; Tidd). The word is also applicable to proceedings in other Courts besides those of the Common Law; and it has a very similar meaning as used in the proceedings in a suit in Equity. The practice was first introduced into Courts of Equity by the Orders of 8th May, 1845.

In the case of infants and married women, they are to appear, the former by his or her guardian, and the latter in person, in an action at Law (2 Arch. Pr. 1252); and the former by his or her guardian ad litem, and the latter either in person or by her next_friend, in a suit in Equity (i Dan. Ch. P. 460; Morg. Ch. Acts, 691). The effect of entering an appearance is to waive any irregularity in the process (Forbes v. Smith, 24 L.J. (Ex.) 167); but in the Courts of Equity a conditional appearance may be entered which shall not have that effect. 1 Dan, Ch. Pr. Ch. xiii.

For neglect to appear, or in default of appearance, in an action at Law, if the writ of summons is specially indorsed, the plaintitf may, under certain circumstances, sign final judgment at once (C. L. P. Act, 1852, s. 27), and if the writ of summons is not specially indorsed, he may, with leave, proceed to file his declaration with short notice to plead, and in that way arrive at judgment (s. 28). In a suit in Equity, the plaintiff may enter an appearance for a defendant.

APPENDANT. This word, in its general sense, denotes anything annexed in whatever manner to any other. But as applied to incorporeal hereditaments in the law of real property, it denotes something annexed as an incident to some other and corporeal hereditament, and the annexation of which thereto is of a necessary character, and has therefore existed from the very beginning of time. Thus, that amount of common which from the first, and as of necessity, the lord assigned to his villeins to depasture their beasts of husbandry during such times as their lands (which were all of them arable) were in ear, was called common of pasture appendant; and similarly, the lord from the first, and as of necessity, erected and endowod a church


APPENDANT- continued. (being the manor or parish church) for the religious education and welfare of his tenants, and the endowment of such church was called an advowson appendant, i.e., to the manor. It is also a characteristic of properly appendant rights, that once they are disannexed, although for ever so short a time, from the principal hereditament, so as to become in gross, they can never become appendant again.

See further, titles APPURTENANT, IN


MENTS. APPOINTMENT TO OFFICES. Where a person acts in a public capacity, his so acting is primâ facie evidence of the validity of his appointment (R. v. Winnifred, 1 Leach, C. 2. 515); and this presumption is adopted in the Criminal Law Consolidation Acts of 1861.

APPOINTMENT, POWERS OF. These are either general or special; the former enabling the donee of the power to appoint to any one he pleases, and even to himself (for which reason, the property which is subject to a general power of appointment is liable in case of his bankruptcy: Bankruptcy Act, 1869, s. 15, sub-s. 4),; the latter enabling him to appoint among particular individuals only, or not at all. There is also the following distinction between these two kinds of powers, viz., that the general power, when exercised, dates from the exercise thereof, and not earlier; while the special power, when exercised, dates from the creation thereof, which is necessarily an earlier period than that of the exercise,

See further, titles CONVEYANCES;


APPORTIONMENT-continued. Apportionment Act, 1870 (33 & 34 Vict. c. 35). Secondly, as applied to annuities, these were made apportionable by the stat. 4 & 5 Will. 4, c. 22, a provision which has been extended by the stat. 33 & 31 Vict. c. 35, the 2nd section of which enacts as follows : " From and after the passing of this Act (Aug 1, 1870], all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly." Thirdly, as applied to common, upon a purchase by the commoner of part of the land over which his right of common exists, the right may be apportioned (Co. Litt. 149 a); and it makes no difference, semble, that the right of common is that to common sans nombre. Wild's Case, 8 Rep. 79; Bennett v. Recve, Willes, 232.

See also titles Rent; ANNCITIES ; Divi.

DENDS; and Common. APPORTIONMENT OF RENT. By the Common Law there was no apportionment of rent in respect of time, rent not being regarded as accruing due de die in diem. Clun's Case, 10 Co. 126 a.

Accordingly (1.) If the lessor was owner in fee simple, or (being owner for a limited estate) had a power of leasing, upou his death in the interval between two days of payment, his executors were not entitled to any part of the rent in respect of the accrued portion of the interval, but the rent for the entire interval went to the person who took the reversion (whether as heir-at-law, devisee, or remainderman). Earl of Strafford v. Lady Wentworth, 1 P. Wms. 180.

And (2.) If the lessor was tenant for life, or for any other limited estate, and had no power of leasing, upon his death in the interval between two days of payment, his executors were not entitled to any part of the rent in respect of the accrued portion of the interval, and neither was the reversioner entitled to that part of the rent, but that part ceased to be payable at all by the tenant to any one. Jenner v. Morgan, 1 P. Wms. 392.

However, by statute, rents have been made apportionable, the principal statutes being the following :

(a.) By 11 Geo. 2, c. 19, s. 11, when any tenant for life, not having a power of leasing, dies on or before the day on which thu rent is payable by his lessee, the executors of such tenant for life are entitled to the whole or a proportion (as the case may be) of the rent in respect of tue accrued interval or accrued portion thereof; and it has been

APPORTIONMENT. This word applies to rents, annuities, and common. First, as applied to rents, it denotes a division of the rent in certain proportions; and as to rentsservice, these (although originally and in their own nature indivisible) have been divisible since the stat. Quia Emptores, 18 Edw. 1 (Statute of Westminster the Third) c. 1, and as to rents-seck, rentscharge, &c., these have been made a pportionable by the stat. 4 Geo. 2, c. 28; and now also by Lord St. Leonards' Act, 22 & 23 Vict. c. 35, the release of part of land subject to a rent-charge does not release the other part, which the intention was should remain unreleased. By the stat. 11 Geo. 2, c. 19, rents secured on leases are made apportionable between a landlord (tenant for life) deceased and the succeeding remainderman or reversioner-an apportionment which has been made universal by the stats. 4 & 5 Will. 4, c. 22, and the

APPORTIONMENT OF RENT-contd. held that the statute extends to a tenant in tail (Whitfield v. Pindar, 8 Ves. 311). The statute did not, however, extend to land tax or quit rents; neither were such rents apportionable in Equity (Sutton v. Chaplin, 10 Ves, 66); and it was doubtful if it extended to tenancies held pur autre vie.

Accordingly, (6.) By 4 & 5 Will. 4, c. 22, commonly called the Apportionment Act, it has been enacted that rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments which have been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof) or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases and the recovery of a portion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered as within the provisions of the Act 11 Geo. 2, c. 19, s. Jl; and that all rent service reserved on any lease by a tenant in fee or for any life interest, or by any lease granted under any power (being in each case a lease granted after the 10th of June, 1834), and all rentscharge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description in the unitei kingdom of Great Britain and Ireland made payable or becoming due at fixed periods under any instrument (being an instrument that came into operation after the said 10th of June, 1831) should be apportioned so and in such manner that, on the death of any person interested in the said respective payments, or on the determination otherwise of the interest of such person therein, he or she, and his or her executors, administrators or assigns, should be entitled to a proportion thereof, according to the time which should have elapsed from the commencement or last period of payment thereof respectively (as the case may be) including the day of the death or other determination of the interest of such person, subject nevertheless to all just allowances and deductions in respect of charges thereon respectively, the remedies for the recovery of such proportion to become available when the entire amount is become payable, and not before ; such remedies to lie and be directed against the person or persons who (but for this Act) would have been entitled to receive and to retain the entirety of the said respective payments.

(c.) By the Act 14 & 15 Vict. c. 25, s. 1, when the lease or tenancy, being at a rack rent, shall determine by the death or cesser

APPORTIONMENT OF RENT-contd. of the interest of the landlord entitled for his life or for any uncertain interest, instead of claims to emblements, the principle of an apportionment of rent is introduced, the tenant being allowed to hold on till the end of the current year of his tenancy, upon the terms of the old holding, whereupon he goes out without any notice to quit either given or received.

(d.) By the Lands Clauses Cousolidation Act, 1815 (8 & 9 Vict. c. 18) 8. 119, and under the Church Building Acts (17 & 18 Vict. c. 32), the principle of apportionment of rent is also adopted, when part only of the land comprised in the lease or underlease (as the case may be) is required for the purposes of the works authorized by those Acts respectively.

Lastly, (e.) By the Apportionment Act, 1870 (33 & 34 Vict. c. 35), the principle of apportionment was extended to the cases of rents, annuities, dividends, and other periodical payments in the nature of income reserved or made payable otherwise than by an instrument in writing, with the like remedies for the recovery of the proportionate payment. This Act was necessitated by the decision in Cattley v. Arnold (1 J. & H. 651), which limited the earlier Acts to payments reserved by instruments in writing only.

APPRAISE. To set or affix the true price or value on goods. By stat. 11 Edw. 1 (Acton Burnell), appraisements are to be made on oath, and are to be at the true value, under the penalty of the excessive appraiser having to purchase at his own valuation; and by stats. 46 Geo. 3, c. 43, and 8 & 9 Vict. c. 76, appraisers must be licensed, and by the Stamp Act, 1870 (33 & 31 Vict. c. 97), every appraisement is to bear a stamp of 6d. for every £10 of value, and for every value between £5 and £10, and a stamp of 3d. for £5 of value or under. But appraisements made for one side only, and not being obligatory as between the parties, are exempted.


APPRENTICE. A person in the course of learning any profession is so called in law; but the name is now commonly limited to a person bound by indenture to a tradesman, who thereby undertakes for certain considerations to teach him his trade. See the duties of the master explained in Couchman v. Siller (23 L. T. 480); and those of the apprentice in Cooper v. Simmonds (7 H. & N. 707). Where, as usually happens, the apprentice is an infant, no action lies against him on his covenant (Gylbert v. Fletcher, Cro. Car. 179),

« PoprzedniaDalej »