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QUO WARRANTO. A writ which lies QUOAD-continued. for the king against any one who claims or suit in the Ecclesiastical Court. The word usurps any office, franchise, or liberty, to
is also frequently applied to other matters inquire by what authority he supports liis than to prohibitions. See 2 Roll.
Abr. 315, claim, in order to determine the right. It
b. 10; Vin. Abr. tit. “Prohib." E. a. 7. lies also in case of non-user or long neglect of a franchise, or misuser or abuse of it,
QUOD EI DEFORCEAT. A writ that being a writ commanding the defendant to
lay for a tenant in tail, tenant in dower, shew by what warrant he exercises such a
or tenant for life, who had lost their lands franchise, having never had any grant of
by default, against him who recovered it, or having forfeited it by neglect or
them, or against his heir. Reg. Orig. abuse (Finch's L. 322). An information
171. in the nature of a quo warranto may also be laid under the stat. 9 Anne, c. 20, but
QUOD PERMITTAT. A writ that lay it is in the discretion of the Court to
for the heir of him who was disseised of his grant it or not (Rex v. Trerener, 2 B. & A.
common of pasture against the heir of the 479). The information will generally be
deceased disseisor. Cowel. granted where the right in dispute depends upon a doubtful point of law, in order to
QUOD PERMITTAT PROSTERNERE. its being finally determined (Rex v. Carter,
A writ which lay against any persou who Lofft. 516). And generally a quo wurranto will lie for usurping any office, whether
erected a building, though on his own
ground, so near to the house of another created by charter of the Crown alone, or
that it overhung it, and became a nuisance by the Crown with the consent of Parlia
to it. Tomlins. ment, provided the oftice is of a public nature, and a substantive office, not merely
QUORUM (of whom). Among the jus. a function discharged at the will or plea
tices of the peace appointed by the king's sure of others (see Darley v. Reg. (in error),
commission, there were some who were 12 Cl. & F. 520), which was a case re
more eminent for their skill and discretion garding the office of treasurer of the
than others, one, or some of whom, on publie money of the county of the city of
special occasions the commission expressly Dublin.
required should be present, and without QUO WARRANTO, CASE OF. The case
whose presence the others could not act; which is pre-eminently so called was a case
and who were thence termed justices of brought in 1681 by the Attorney-General,
the quorum, from the language of the comon behalf of the king against the corpora
mission, which ran thus: “ quorum aliquem tion of the City of London, alleging
vestrum A. B., C. D., &c., unum esse robreaches of trust in the officers of the cor
lumus” (i.e., of whom we wish some one poration and seditious opposition to the
of you, A. B., C. D., &c., to be present).
The word is used in a similar sense in the Crown, and requiring the City to shew the tenure of its liberties, with a view to the
following passage: “ By charter 2 Edw. 4, justification of its proceedings. The of
the mayor, recorder, and aldermen that fences alleged were,
bave been mayors, shall be conservators of (1.) That the City had imposed taxes
the peace within the city; and they, or without authority; and
four of them, quorum the mayor to be one, (2.) That the City had concocted sedi
shall be justices of oyer and terminer there." tious petitions to the king.
Com. Dig. tit. London (C.), Mayor. Judgment was given for the Crown, and against the City; and the corporation not
QUOUSQUE (until). Thus a seizure submitting within the time limited for
quousque by the lord of a manor on detault their so doing, their liberties were taken
of the heir coming in to be admitted, means from them, and their charter was forfeited.
a seizure until the heir so comes in; the These liberties, together with their char
lord being entitled to do this after three ter, were not restored until 1688, when proclamations made at three consecutive James II., under the immediate fear of his
Courts (Watkins on Copyholds, 230, tit. own expulsion, restored them,
" Admission;” Carth. 41:1 Lev. 63; 3 T.R.
162). A prohibition quousque is a prohibiQUOAD (as to, concerning, &c.)
tion by which something is forbidden or hibition quoad is a prohibition as to certain prohibited until a certain time. Thus, if things amongst others. Thus, where a in trying temporal incidents in the Eccleparty was complained against in the siastical Courts, they rejected a mode of Ecclesiastical Court for matters cognisable proof sufficient at Common Law, they in the temporal Courts, a prohibition quoad might have been prohibited quousque these matters issued, i.e., as to such matters (until) they submitted to a legal node the party was prohibitud prosecuting his of trial. Yely, 92.
RACHAT. In French Law is the right of re-purchase which the vendor in English Law may reserve to himself. It is also called réméré (see that title).
RACK-RENT. A rent of the full annual value of the tenement, or near it.
RAILWAY COMPANIES : See title JOINT STOCK COMPANIES.
RAISING A USE, Creating, establishing, or calling a use into existence. Thus, if a man conveyed land to another in fee, without any consideration, Equity would presume that he meant it to the use of himself, and would therefore raise an implied use for his benefit. See title Use; also Saunders on Uses and Trusts, c. 1, s. 9, 5th edit.; 1 Cru. Dig. 442.
RANSOM. In law this word is frequently used to signify a sum of money paid for the pardoning of some great offence: and the distinction made between a ransom and an amerciament is, that a ransom is the redemption of a corporal punishment, whereas an amerciament is a fine by way of penalty for an offence committed. Litt. 127; Cowel.
RATIFICATION. This is authorizing subsequently what has been alrea-ly done without authority ; in contract law it is equivalent to a prior request to make the contract; and in the law of torts it often has the effect of purging the tort. Hall v. Pickersgill, 1 B. & B. 282..
RAVISHMENT DE GARD (ravishment of Ward). A writ that lay for the guardian by knight service or in socage against him who took away from him the body of his ward. 12 Car. 2, c. 24; Cowel.
RE (in the matter of). Thus, Re Vivian signifies In the matter of Vivian, or in Vivian's case.
READERS. In the Middle Temple those persons are so called who are appointed to deliver lectures or readings at certain periods during the term. The clerks in holy orders who read prayers and assist in the performance of divine service in the chapels of the several inns of court are also so termed. See 5 Reeves's Eng. Law, 247 (1st edit.).
READING IN. A new incumbent of a benefice is to read, within two months of actual possession, the morning and evening prayers, and declare his unteigned assent and consent thereto publicly in the church, before the congregation. He is also to read the thirty-nine articles in the church in the time of common prayer, and to declare his unfeigned assent thereunto, within two months after induction; and to read in his church, within three months after institution or collation, the declaration appointed by the Act of Uniformity, and also the certificate of bis having subscribed it before the bisliop. The observance of the above forms by a new incumbent constitutes what is termed "reading in.” Rog. Ecc. Law; Burns' Ecc. Law.
REAL. Real and personal property is the most fertile division of things which are the subjects of property in English law. The division is substantially coincident with that into lands, tenements, and hereditaments, on the one liand, and goods and chattels on the other. In the case of each division, the principle underlying the division is feudal; it is directly so in the case of the division into lands and chattels, and indirectly so in the case of the division into real and personal property. As law and society progressed, it became more and more apparent that the essential difference between lands and goods was to be found in the remedies for the deprivation of either; that as to the one, the real land, i.e., the land itself could be recovered, anıl that as to the other, proceedings could be
RAPE. A criminal offence, consisting in the penetration of a female's parts against her will or without her consent. It is punishable with penal servitude for life, or for any period not under five years, or with imprisonment not exceeding two years, and with or without hard labour. See generally Arch. Crim. Pleading.
RAPPORTS. This is in French Law the duty incumbent upon a legatee to bring into hotchpot such part of the legacy as he has already received by gift inter vivos.
RATES: See title TAXATION; TAXES.
RATIONABILI PARTE BONORUM. A writ that lay for the wife against the executors of her husband, to have the third part of his goods after his just debts and funeral expenses had been paid. F. N. B. 122 ; Les Termes de la Ley. See also title REASONABLE PART.
RATIONABILIBUS DIVISIS. A writ that lay for the lord of a seigniory, when he found that any portion of his seigniory or his waste had been encroached upon by the lord of an adjacent seigniory, against him who had so encroached, in order to settle their boundaries. Cowel ; F. N. B. 128.
REAL-continued had against the person only. The two great classes of property accordingly began to acquire two other naines that were characteristic of this difference, and with reference to the remedies for the recovery of each were called respectively real and personal property. The circumstance that a leasehold interest in land is personal property, is a striking illustration both of the origin and of the principle of this division. It is an illustration of the origin, because originally all leases were farming leases, and the farmer was only the bailiff or agent of his landlord, who warranted him in the quiet possession of the land, and against whom, in the case of an ejectment, the farmer had his only remedy in a personal action for damages; it is also an illustration of the principle of the division, because the farmer in the like case of an ejectment had no action for the recovery of the land itself, but at the most (as already stated) an action against his landlord personally, whereby he compelled the latter either to take proceelings for the restitution of the land or else to compensate in damages for the disturbance of the quiet possession.
REAL REPRESENTATIVE. He who represents or stands in the place of another with respect to his real property, is so termed, in contradistinction to him who stands in the place of another with regard to his personal property, and who is termed the personal representative. Thus, the heir is the real representative of his deceased ancestor.
See also title REPRESENTATION. REALTY. That which relates to real property (i.e., to lands, tenements, and hereditaments), in contradistinction to that which relates to personal property (i.e., to moveable things in general), which is termed personalty.
REASONABLE PART. The shares to which the wife and children of a deceased person were entitled, were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them. F. N. B. 122.
REBUTTER-continued. joinder, surrejoinder, rebutter, and surrebutter. The declaration is the statement of the plaintiff's cause of complaint; the plea is the defendant's answer to the declaration; the replication is the plaintiff's answer or reply to the plea; the rejoinder is the defendant's answer to the replication; the surrejoinder, the plaintiff's answer to the rejoinder; the rebutter the defendant's answer to the surrejoinder; and the surrebutter the plaintiff's answer to the rebutter.
RECAPTION. Recaption, or reprisal, is a species of remedly by the mere act of the party injured ; and is resorted to when any one has deprived another of his property in goods or personal chattels, or wrongfully detains one's wife, child, or servant, in which case the owner of the goods, and the husbaud, parent, or master, may lawfully claim and retake them wherever he happens to find them, so that it be not in a riotous manner, or attended with a breach of the peace, which retaking is termed“ recaption.” There is also a writ of recaption to recover damages against a person who (pending a replevin for a former distress) distrains a man again for the same rent or service.
RECEIVER. He who receives stolen goods from thieves, and conceals them. There are also other kinds of receivers, as the receiver of the fines, who was an officer who received the money of all such as compounded with the king upon original writs in Chancery: the ReceiverGeneral of the Duchy of Lancaster, who is an officer belonging to Duchy Court, who gathers in all the revenues and fines of the lands belonging to that duchy, and all forfeitures and assessments belonging to the same. There is also a person who is appointed by the Court of Chancery to receive the rents, issues, and profits of lands, and the produce and profits of other property which may be the subject matter of proceedings in that Court, who is called a receiver: This officer has also to manage and take care of such lands and property during the pendency of the suit, and he is appointed by the Court in various cases where it is doubtful to what party the property will ultimately belong; or where a party from incapacity, such as infancy, &c., is incapacitated from receiving the profits of or managing the estate, and the property is in any danger of suffering damage from neglect or otherwise in the meantime.
See also next title. RECEIVERS AND TRIERS OF PETITIONS. The mode of receiving and try
RECOGNITORS-continued. because they acknowledge, e.g., a disseisin, by their verdict. Cowel ; Bract. lib. 5, tract 2, c. 9.
See title JURY, TRIAL BY.
RECEIVERS AND TRIERS OF PETI
TIONS-continued. ing petitions to Parliament was formerly judicial rather than legislative; and the triers were committees of prelates, peers, and judges; but their functions have long given way to the authority of Parliament at large. By the House of Lords, however, receivers and triers of petitions are still' appointed at the opening of every session, as in ancient times. But petitions are, by both Houses, considered now in the first instance, and only referred to triers or committees in certain cases.
RECEIVING STOLEN GOODS. Receiv. ing any chattel, money, valuable security, or other property whatsoever, obtained by felony, knowing the same to have been so feloniously obtained, is a felony, for which the receiver may be indicted and convicted either as an accessory after the fact to the principal felony, or as for a substantive felony, and, in the latter case, whether or not the principal felon shall have been previously convicted. The offence is punishable with penal servitude for any period between five and fourteen years, or with imprisonment for two years or under, with or without hard labour, and with or without solitary confinement, and (if a male under the age of sixteen years) with or without whipping, 24 & 25 Vict. c. 96,
RECITAL. The formal statement or setting forth of some matter of fact in any deed or writing, in order to explain the reasons upon which the transaction is founded. The recitals are situated in the premises of a deed ; that is, in that part of a deed between the date and the habendum; and they usually commence with the formal word “whereas" (4 Cruise). Their object is to lead up to the occasion which gives rise to the execution of the deed in which they occur, and they are in fact a history of the previous facts and circumstances affecting the property. They sometimes modify the generality of the operative words in the deed, and ihis is more especially so in a deed of release to executors or trustees.
RECITE, TO. To state or set forth in any deed or other writing such matters of fact as may be necessary to explain the rature of the transaction, or the reasons upon which it is founded. As used in the practice of conveyancing it is somewhat analogous to the word “induce" as used in the practice of pleading.
See also title RECITAL. RECOGNITORS (recognitores). A word which was frequently used to signify a jury impanelled upon an assize; 80 called
RECOGNIZANCE. A recognizance is an acknowledgment upon record of a former debt : aud he who so acknowledges such debt to be due is termed the recognizor, or cognizor; and he to whom, or for whose benefit, he makes such acknowledgment is termed the recognizee, or cognizee. A recognizance is in most respects similar to a bond; the difference being chiefly that a bond is the creation of a new debt; whereas a recognizance is merely an acknowledgment upon record of a debt which was previously due. The form of a recognizance runs thus :—“That A. B. doth acknowledge to owe to C. D. the sum of £100"; and it is also conditioned to be void on performance of the thing stipulated. It is certified to and witnessed by an officer of some Court, and not by the seal of a party, as in the case of deeds strictly so called (4 Cruise, 103). Recognizances are also frequently taken from persons, either to secure their prosecution of a suit or their presence in Court upon a certain day, or to secure their careful administration of property entrusted to them in some official capacity, e.g., in the cases of administrators, and also of receivers appointed by the Court of Chancery.
RECORD. An authentic testimony in writing contained in rolls of parchment, and preserved in Courts of record. The record of nisi prius is an official transcript or copy of the proceedings in an action entered on parchment and sealed and passed, as it is termed, at the proper office; it serves as a warrant to the judge to try the cause, and is the only document at which he can judicially look for information as to the nature of the proceedings, and the issues joined between the parties.
RECORD, COURTS OF. Courts whose acts and judicial proceedings are inrolled in parchment, called the records of such Courts, and are so preserved as a perpetual memorial and testimony thereof. All Courts of record are the King's Courts in right of his crown and dignity, and they usually possess, as incident to them, the power to fine and imprison. Several of the King's Courts, however, are not Courts of record; as the Courts of Equity and the Admiralty Courts, which are at best only quasi of record, or of record to themselves. The distinction between Courts of record and Courts not of record, was introduced soon after the Conquest; for by an RECORDER-continued. or other magistrate of any city or corporate town (having a jurisdiction, or a Court of record within his precincts) doth by the king's grant associate to hin for bis better direction in the judicial proceedings of such Court (Cowel). Thus the Recorder of the City of London is practically the judge in the Lord Mayor's Court of the City, although in theory the Lord Mayor and Aldermen are the judges therein.
RECORD, COURTS OF-continued. cdict of the Conqueror's it was ordained that all proceedings in the King's Courts should be carried on in the Norman instead of the English language, in consequence of which the influence of the County Courts. Courts l'aron, and other inferior jurisdictions, was much narrowed, for as the judges and suitors of such Courts were ignorant of that language, they were proliibited from recording their acts (3 Ch. BI. Com. 24; Com. Dig. tit. “Chancery"). One of the privileges which attaches to a Court being a Court of record, is the high authority which their records are allowed to possess, their truth not being permitted to be called in question ; it being an almost invariable rule that nothing shall be averred against a record, and that no plea, or even proof, shall be admitted to the contrary. Also, a plea of matter of record need not be put in on oath, but is sufficient without oath; and a decree eren of the Court of Chancery, when it has been signed and inrolled (but not sooner), stands on the same footing, at leist for all purposes of litigation in that Court itself. 1 Dan, Ch. Pr. 595.
RECORD, TRIAL BY. A species of trial adopted for the purpose of ascertaining the existence or non-existence of a record. When a record is asserted by one party to exist, and the opposite party ileaies its existence under the forin of traverse, that there is no such record remaining in Court as alleged, and issue is joined thereon, this is called an issue of nul fiel record; and in such case the Court awards a trial by inspection and examination of the record. Upon this the party aflirming its existence is bound to produce it in Court on a day given for the purpose; and if he fail to do so, judgment is given for his adversary. This mode of trial is not only that specially appropriated to try an issue of the above kind, but is, in fact, the only legitimate mode of trying such an issue. Co. Litt, 117 b, 260 a.
See also title Nul TIEL RECORD,
RECOVERY. A recovery in its most estensive sense is the restoration of a former right by the solemn ju igment of a Court of justice. A common recovery was one of the modes of transferring property from one party to another, and is said to have been introduced by the ecclesiasties, in order to avoid the Statutes of Mortmain, by which they were prohibited from purchasing or receiving under pretence of a free gift, any lands or tenements whatever.'
To effect this purpose the religious houses used to set up a fictitious title to the lands intended to be given or sold, and brought an action against the tenant to recover them ; the tenant, by collusion, made no defence, whereby judgment was given for the religious house, which then recovered the lands by sentence of law upon a supposed prior title. The notoriety and evidence which attended these feigned recoveries was such, that they were soon adopted by lay persons in general, one instance thereof being Taltarum's Cise (12 Edw. 4), as a usual or common mode of transferring lands, anilever afterwards they continued in use for that purpose, until they were abolished by the Act 3 & 4 Will. 4, c. 74, by which Act a disentailing deed was substituted for them, their principal and almost exclusive use prior to that statute having come to be the barring of an estate tail. In order to explain the nature of a recovery, the manner in which a recovery was suffered (as it was termed) will be here given. The first thing necessary to be done in suffering a recovery was, that the person who was to be the demandant, and to whom the lands were to be adjudged, should sue out a writ of præcipe against the tenant of the freehold; wl:ence such tenant was usually called the tenant to the prxcipe. In obedience to this writ the tenant appeared in Court, either in person or by his attorney; but, instead of defending the title himself, he called upon some other person, who, upon the original purchase, was supposed to have warranted the title, and prayed that that person might be called in to defend the title which he had warranted, or otherwise to give the tenant lands of eqnal value to those which he should lose by defect of his
RECORDARI FACIAS LOQUELAM, An original writ directed to the sheriff to remove a cause pending in an inferior Court to one of the superior Courts; as from a County Court or Court Baron to the Court of Queen's Bench or Common Pleas. It seems to be called a recordari from the circumstance of its commanding the sheriff to whom it is directed to make a record of the proceedings in the Court below, and then to send it up to the superior Court. Reg. Orig.; Cowei.
RECORDER. A barrister or other person learned in the law, whom the mayor