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PROTESTATION-continued. standing such owner may have wholly direct affirmation or denial; and this was alienated his estate, or have incumbered technically termed a protestation. This, the same; and by s. 23, each of two or however, by a late rule of Court (Hil. T. more persons, co-owners of such prior | 4 Will. 4) is disallowed. In a demurrer to estate, is sole protector in the proportion of a bill in the Court of Chancery, the form his share; and by s. 24, a married woman begins with a protestation in this manner : being owner of such prior estate, if settled “ This defendant by protestation not conto her separate use, is sole protector, and fessing or acknowledging all or any of the if not so settled, is protector together with matters or things in the said bill of comher husband. But by ss. 27 and 31, the plaint contained to be true in such manner following persons, as such, are not to be and form as the same are therein set forth capable of being protectors, viz., dowresses, and alleged, doth demur, &c.” See Hunbare trustees, heirs, executors, administra- ter's Suit in Equity, App. p. 275. tors, or assigns : but a tenant by the cur
Was an tesy may be protector (s. 22), and also a bare trustee under a settlement dated on
assignee to whom the property of a bankor before the 31st of December, 1833.
rupt was assigned until the regular or The protector is, in the exercise of his
permanent assignees were appointed by the own unlimited discretion, to accord or to
creditors. But the 1 & 2 Will. 4, c. 56, withhold his consent to any disposition of
8. 22, and 5 & 6 Vict. c. 122, 8. 48, having an actual tenant in tail ; but once he has
enacted that until assignoes should be accorded the same, he cannot afterwards
chosen by the creditors of each bankrupt, recall it, s. 44. The protector, by s. 42, is
the official assignee to be appointed to act to give his consent either in the deed of
with the creditors' assignees should be disposition, or by any deed prior to or con
enabled to act, and should be deemed to temporaneous with the deed of disposition,
be to all intents and purposes a sole asthe distinct deed (if any such is used) re
signee of each bankrupt's estate and effects, quiring to be inrolled in the Court of
provisional assignees ceased to be any Chancery either with or before the inrol
longer necessary, the official assignees actment of the deed of disposition. The Lord
ing, in fact, as such provisional assignees Chancellor or Court of Chancery may sig
in all cases. The like simplification of the nify his or its consent by order.
bankruptcy law is preserved under the Act
of 1869, under which the registrar of the PROTEST.
Court is the official trustee until the Court In its most general and
or the creditors have appointed a partienlarged sense signifies an open declara
cular trustee of the bankrupt. tion or affirmation. Thus, when in the House of Lords any vote passes contrary to PROVISIONS. The nominations to the sentiments of any of its members, such
benefices by the pope were so called, and members may, by leave of the House,
those who were so nominated were termed enter their dissent on the journals of the House, with the reasons of such dissent,
provisors. Various statutes were passed in
the reign of Edward III. forbidding all which is usually styled their protest. So
ecclesiastical persons from purchasing these also the term “protest," as applied to foreign bills of exchange, signifies a solemn
provisions : see in particular the stats.
25 Edw.3, st. 6, and 27 Edw. 3, st. 1, which declaration by the notary that the bill has been presented for acceptance or pay
are pre-eminently called the Statutes of
Provisors. ment and dishonoured. So also amongst
See also title PRÆMUNIRE. mariners, a declaration made on onth before a magistrate or notary public in any dis- PROVISO. A condition or provision tant port of the damage likely to ensue which is inserted in deeds, and on the perfrom a ship's delay is termed a protest. formance or non-performance of which the
validity of the deed frequently depends ; PROTESTATION. A particular formula it usually begins with the word "prowhich was used in pleading was so termed ; vided.” Thus, in leases there is usually a the nature of it may be thus explained :- proviso that if the rent be unpaid for the It is frequently expedient for a party to space of twenty-one days after the day plead in such a manner as to avoid any appointed for the payment of it, then it implied admission of a fact which cannot shall be lawful for the lessor to enter into with propriety or safety be positively possession of the premises (4 Cruise, 376). affirmed or denied; and this might be So in mortgage deeds, that part which prodone by the party interposing an oblique vides that on payment of the mortgageallegation or denial of some fact, pro- money and interest and costs by the morttesting that such a matter did or did not gagor, the mortgagee shall re-convey the exist, and at the same time avoiding a estate to the mortgagor, is termed the proPROVISO-continurd.
PUIS DARREIN CONTINUANCE (since viso for redemption, because it is by virtue
The last adjournment, or continuance). By of that proviso that the mortgagor is em- the ancient practice, when andjournments of powered to redeem his (state.
the proceedings took place for certain purSee also title PROVISO, TRIAL BY. poses from one day or one term to another,
there was always an entry made on the PROVISORS : See title PROVISIONS. record expressing the ground of the ad
journment, and appointing the parties to PROVISO, TRIAL BY. In all cases in
re-appear at a given day, which entries which the plaintiff, after issue joined, does were called continuances. In t.e intervals not proceed to trial, when by the course between such continuances and the day and practice of the Court he might have appointed the parties were of course out of done so, the defendant may, if he wishes, Court, and consequently not in a situation give the plaintiff notice of trial, and pro- to plead. But it sometimes happened, ceed to trial as in ordinary cases ; this is that after a plia had been pleaded, and terined a trial by proviso. It is so called while the parties were out of Court in conbecause, in the distringas to the sheriff sequence of such a continuance, some new there is a proviso that procided two writs matter of defence arose which did not exist shall come to his hands he shall execute before the last continuance, and which the one of them only (2 Arch. Prac. 1492–3). defendant consequently had l.ad no opportuBut as this mode of proceeding is tedious nity of plearling before that time. This new and expensive, the defendant in ordinary d. fence he was therefore entitled, at the cases more usually takes proceedings under day given for his re-appearance, to plead, the C. L. P. Act, 1852, s. 101, to compel the as a matter that had happened after or plaintiff to proceed to trial.
since such last continuance (puis darrein PUBLIC ACT OF PARLIAMENT is an
continuance); and it was, therefore, terid
a plea puis darrein continuance. And Act which concerns the whole community, and of which the Courts of Law are bound
under the C. L. P. Act, 1852, s. 69, in cases
in which a pl a puis darrein continuance jullicially to take notice. See for distinction between a Public and Private Act,
has heretofore been pleadable in banc or title PRIVATE ACT OF PARLIAMENT. See
at nisi prius, the same defence may be also title PRIVATE BILLS.
pleaded, with an allegation that the matter
arose after the last pleading; but no such PUBLICATION. This word, as applied plea shall be allowed unless accompanied to the depositions of witnesses in a suit in
with an affidavit that the matter thereof Chancery, signified the right which was a rose within eight days nest before the exercised by the clerks in Court, or the pl: ading of such plea, or unless the Court examiner, of openly shewing the depositions or a judge shall otherwise order. 2 Arch. as takı n at the examination of such wit
Pr. 920. nesses. There was a limited time only,
See title CONTINUANCE. namely, cight weeks after issue joined,
PUISNE (Fr. puiné, younger, suborwithin which this public shewing of the
dinate). Thus all the judges, excepting depositions was permitted to be made ; after
the chiefs, are termed puisne judges ; that which time publication was said to have
is, they are subordinate to their respective passed. But the Court would enlarge the time for publication, and latterly even upon
chiefs. As to mulier puisne, see title Eignè. summons at chambers. The closing of the
PUISSANCE PATERNELLE. In French time for taking evidence under the modern
Law the male parent lias the following practice is the same thing as the passing rights over the person of his child :-(1.) If of publication under the former.
child is under sixteen years of age he may PUBLIC COMPANY: See title Joint
procure him to be imprisoned for one month STOCK COMPANIES.
or under; (2.) If child is over sixteen and
under twenty-one he may procure an imPUBLIC HEALTH: See title HEALTI, prisonment for six months or under, with PUBLIC
power in each case to procure a second
period of imprisonment. The female parent, PUBLISH. The publishing of a will being a widow, may, with the approval of by a testator signified the declaration the two nearest relations on the father's which he made (usually at the time of side, do the like. signing it) in the presence of a proper The parent enjoys also the following number of witnesses, that it was his last riglits of property over his child, viz., a will and testament. But under the new riglit to take the income until the child Wills Act, 1 Vict, c. 26, no such publication attains the age of eighteen years, subject is n:'w necessary to the validity of a will, to maintaining the child and educating s. 13.
him in a suitille manuer,
PUTTING IN SUIT-continued. tors appointed by the commissioners of taxes shall give security by a joint and several bond, with two sureties, &c., “pro. vided always that no such bond shall be put in suit (i.e., be made the subject of any action) against any surety or sureties for any deficiency other than what shall remain unsatisfied after the sale” of the defaulting collector's goods.
QUAMDIU SE BENE GESSERIT (as long as he conducts himself well). A clause frequently inserted in the grant of offices, &c., by letters patent, and signifying that the party shall hold the same as long as lie behaves himself well (quamdiu se bene gesserit) (Co. 4 Inst. 117; Cowel). Under the Act of Settlement (12 & 13 Will. 3, c. 2), the judges are made to hold office upon the like terins, namely, quamdiu se bene gesserint.
PUR AUTRE VIE (for the life of another). | An estate pur autre rie is an estate which endures only for the life of some particular person. Thus, if A. lease lands to B, to Jiold and enjoy them for or during the life of C., B. is said to have an estate pur autre vie—that is, during the life of another, viz., the life of C.; and B. is also then called, in respect of his interest in such lands, a tenant pur autre vie, and C., for or during whose life B. holds his lands, is termed the cestui que vie.
See also title EstATES. PURCHASE. The word “ purchase" is used in law in contradistinction to descent: and is any other mode of acquiring real property than by the common course of inheritance. So that the word is not merely used in its popular sense, viz., that of buying for a sum of money, but implies any mode of acquiring property except by descent. Thus, if a person acquires real property by gift, grant, or by devise, or by any other mode (excepting descent), and which does not even subject him to the payment of any sum of money for such property, be is still in legal language said to acquire such property by purchase. The difference between the acquisition of an estate by descent and by purchase consists principally in two points: (1.) That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general. (2.) That an estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent will. 2 Cruise, 451, 452.
PURPRESTURE, or PURPRESTER. A word derived from the Fr. pourpris, which signifies to take from another and appropriate tv oneself; hence a purpresture, in a general sense, signifies any such wrong done by one man to another. Purpresture in a forest signified any encroachment upon the king's forest, whether by building, inclosing, or using any liberty without a lawful warrant to do so. Les Termes de la Ley.
PURVIEW. The purview of an Act of Parliament is that part of it which begins with the words, " Be it enacted,” &c. Cowel.
PUTATIVE FATHER. The alleged or reputed father of an illegitimate child is so Called.
See also titles AFFILIATION; BASTARDY, PUTTING IN SUIT. As applied to a bond, or any other legal instrument, signifies bringing an action upon it, or making it the subject of an action. Thus in 43 Geo. 3, c. 99, it is enacted, that the collec
QUANDO ACCIDERINT (when they may happen). Judgment of assets quando acciderint is a judgment which is sometimes signed against an executor, and which empowers the party so signing it to have the benefit of assets which may at any time afterwards come to the hands of the executor, or whenever they may happen (2 Arch. Pract. 1229). The plaintift, laving obtained a judgment of this sort, may afterwards, upon the assets having come to the defendant's hands, proceed against him by sci. fa. to obtuin payment of his debt.
QUANTUM MERUIT (as much as he deserved). These words are thus explained by Blackstone : "If I employ a person to transact my business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved; and if I neglect to make him amends, he has a remedy for this injury by bringing bis action on the case upon this implied assumpsit or promise; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved," and this action on the case is thence termed an action of assumpsit on a quantum meruit, that is, an action for breach of my promise to pay him as much as he deserves. But this assumpsit may be excluded by special agreement. (See Cutter v. Powell, 2 Sm. L. C. 1, and notes thereto). There is also an action of assumpsit on a quantum valebat (i.e., as much as it was worth), which is very similar to the former, being only where one takes up goods or wares of a tradesman without expressly QUARTER SESSIONS : See title SESSION.
QUASH (cassum facere). To make void, to cancel, to abate. Thus, to quash a plea, an order of sessions, &c., is to annul or cancel the same.
QUANTUM MERUIT-continued. agreeing for the price. There, the law concludes that both parties did intentionally agree that the real value of the goods should be paid, and therefore an action may be brought for the breach of the implied promise to pay as much for the goods as they were worth.
QUANTUM VALEBAT: See title QUANTUM MERUIT.
QUARE CLAUSUM FREGIT (wherefore he broke the close). That species of the action of trespass which has for its object the recovery of damages for an unlawful entry upon another's land is termed an action of trespass quare clausum fregit ; "breaking a close" being the technical expression for an unlawful entry upon land. The language of the declaration in this form of action is “ that the defendant with force of arms broke and entered the close” of the plaintiff:
The foundation of this action is possession in the plaintiff, wbich must be actual, not merely constructive, possession ; in the action of trespass to personal property, on the other hand, i.e., the action of trespass de bonis asportatis, although the foundation of the action is also possession, yet that possession may be either actual or constructive.
QUARE EJECIT INFRA TERMINUM. A writ which lay for a lessee when he was cast out or ejerted from his farm before the expiration of his term, against the lessor or feoffee who so ejected him, to recover the residue of his term, and also damages for being so ejected. Cowel; Les Termes de la Ley.
QUARE IMPEDIT (why, or wherefore, he hinders). The action of Quare impedit was the remedy by which a party whose right to a benefice was obstructed recovered the presentation, and was the form of action constantly adopted to try a disputed title to an advowson. But by the C. L. P. Act, 1860, s. 26, no Quare impedit shall be brought after the commencement of that Act, but the action may be commenced by the ordinary writ of summons, with an indorsement thereon that the plaintiff intends to declare in Quare impedit. 1 Arch. Prac. 2.
QUARREL (querela, à querendo). This word is said to extend not only to real and personal actions, but also to the causes of actions and suits; so that by the release of all quarrels, not only actions pending but also causes of action and suit are released ; and quarrels, controversies, and debates are in law considered to have one and the same signification. Co. Litt. 8, 153; Les Termes de la Ley.
QUASI - CONTRACT. An implied cons tract. Maine, in his Ancient Law, objects that the implied contracts of English Law are different from the quasi-contracts of Roman Law, but his opinion is not correet; for the particular instances given in Just. iii. 27 (28), of quasi-contracts in Roman Law are all of them good as implied contracts in English Law. It is true, however, that there are in Roman Law a species of contracts, not being quasi-contracts, which are called implied contracts (tacitè convenire), e.g., in Dig. ii. 14, 4, where a landlord's right to take the furniture of his tenant in distress for rent is instanced as an implied contract.
QUE ESTATE. A term used in pleading, the nature of which may be thus explained. Formerly it was necessary, when there was occasiou to plead a prescriptive right to any easement, or profit, or benefit arising out of land (as, for example, a prescriptive right of way or common), to allege seisin in fee of the land in respect of which the right was claimed, and then to allege that the plaintiff and all those whose estate be had in the land, had from time immemorial exercised the right in question, and this was termed prescribing in a que estate, from the word asd (que).
QUEEN ANNE'S BOUNTY. This is a perpetual fund for the augmentation of poor livings in the Church of England, arising out of the revenue of the first fruits and tenths which Queen Anne (by charter subsequently confirmed by stat. 2 & 3 Anne, c. 11) vested in trustees for ever for that purpose. Those “ first fruits” and “ tenths, having been (as explained under their own titles) originally a tax enforced by the popes from the richer English clergy, formed subsequently to the Reformation a branch of the revenue of the Crown; and, subject to various alterations in amount, they so remained until the reign of Queen Anne, who did not remit them unconditionally, but applied these superfluities of the larger benefices to make up the deficiencies of the smaller. This fund still exists, and is regulated by a variety of statutes, of which the principal are,—2 & 3 Anne c. 20, 55 Geo. 3, c. 147, 16 & 17 Vict. c. 70, and 28 & 29 Vict. c. 69.
See also title ECCLESIASTICAL COMMis
QUEEN'S ADVOCATE. An advocate QUI TAM ACTIONS-continued. of the Civil Law Bar appointed by the lord the king as for himself). The case of Crown to maintain its interests and to ad.
Thomas V. Sorrell (Vaughan), which is vise it in all matters in which the learning otherwise famous as having first stated the of the Civil Law is involved. Those mat
true nature and limits of the king's disters include important questions of inter
pensing power, was a qui tam action. national law, upon which (as in framing treaties with foreign nations) the counsel QUIA EMPTORES (because purchasers). of the Queen's Advocate is frequently taken The stat. 18 Edw. 1, c. 1, is so called. by the government. In the legal profession This statute took from the tenants of comthis officer holds a distinguished place. mon lords the feodal liberty they claimed He now ranks next in dignity to the Attor- of disposing of part of their lands to hold ney and Solicitor-Generals, and formerly, of themselves, and instead of it gave them indeed, the Queen's Advocate took prece- a general liberty to sell all or any part, to dence even of them. The Queen's Advocate hold of the next superior lord, which they used to practise in the Ecclesiastical Courts could not have done before without conat Doctors' Commons, and at the present sent (Wright's Ten. 161; 4 Cruise, 6). The day confines his practice, as a rule, to the effect of the statute was twofold-(1.) To Courts of Probate, Divorce, and Admiralty. facilitate the alienation of fee simple
estates; and (2.) To put an end to the QUEEN'S BENCH, COURT OF : See title
creation of any new manors, i.e., tenancies King's BENCH.
in fee simple of a subject.
See title ALIENATION. QUEEN'S BENCH PRISON. Sometimes called the Prison of the Marshalsea of the QUID PRO QUO (what for what). Used Court of Queen's Bench, was a prison for in law for the giving one valuable thing debtors and for persons confined under the for another. It is nothing more than the sentence, or charged with the contempt of mutual consideration which passes between Her Majesty's Court of Queen's Bench. the parties to a contract, and which renThis prison, the Fleet, and the Marshalsea ders it valid and binding. Cowel. Prisons, were, by the 5 Vict. c. 22, consolidated under the title of the Queen's Prison,
QUIETUS. A word which was comwhich latter is by the above Act appointed
monly used by the clerk of the pipe and to receive all the prisoners formerly dis
auditors in the Exchequer in their acquittributed among the three. 6 Jur. 254.
tances or discharges given to accountants,
signifying to be freed, acquitted, or disQUERELA. An action preferred in any
charged. Cowel. Court of justice in which the plaintiff was
See also title CROWN DEBTS. querens, or complainant, and his brief, com
QUIT CLAIM. The release or acquitting plaint, or declaration was querela, whence
of one man by another, in respect of any the use of the word “quarrel” in law.
action that he has or might have against Quietus esse à querelâ sometimes meant to
him, also acquitting or giving up one's be exempted from the customary fees paid
claim or title. Bracton, b, 5, tract. 5, c. 9, to the king or lord of a Court for liberty
num. 6; Les Termes de la Ley. prefer commonty it meant to be freed from the fines QUIT RENT (quietus redditus). Certain or amercements which would otherwise established rents of the freeholders and have been imposed upon the exempted ancient copyholders of manors are denomiperson for trespasses and such like offences. nated quit rents, quieti redditus, because Cowel.
thereby the tenant goes quit and free of all
other services. 3 Cruise. 314. QUI TAM, Suing. Prosecuting a popu
See also title RENTS. lar action for the purpose of recovering the penalty is called suing qui tam, because
QUO MINUS. A writ upon which all the prosecutor or informer suts as well for proceedings in the Court of Exchequer the Crown as he does for himself.
were formerly grounded, in which the See title Qui Tam ACTIONS.
plaintiff suggested that he was the king's
farmer or debtor, and that the defendant QUI TAM ACTIONS. Those kinds of had done him the injury or damage compopular actions in which one part of the plained of, quo minus sufficiens exstitit, by penalty recovered is given to the king, to which he was the less able to pay the king the poor, or to some public use, and the his debt or rent. It was also a writ which other part to the informer or prosecutor. formerly lay for one who had a grant of It is called a qui tam action, because it is house-bote and hay-bote in another man's brought by a person “qui tam pro domino woods against the grantor for making such rege, &c., quam pro se ipso in hac parte waste as interfered with the grantee's sequitur (i.e., who sues as well for our enjoyment of his grant. Cowel.