A New Law Dictionary and Institute of the Whole Law

APPRENTICE-continued

unless by special custom (Whittingham v. Hill, Cro. Jac. 494); therefore usually the parent covenants for him, but the infant must execute the indenture (R. v. Arnesley, 3 B. & A. 585). Under the Stamp Act, 1870, the indenture must be stamped with a 58. stamp for every £5, or fraction of £5, of premium, and with a 2s. 6d. stamp where there is no premium.

Regarding parish apprentices, see 3 & 4 Will. 4, c. 63, and 7 & 8 Vict. c. 101; and for the jurisdiction of justices of the peace regarding such, see the same statutes, and also Reg. v. Pround, Law Rep. 1 C. C. 71.

APPROPRIATION. This word is commonly used in two senses, viz. (1.) the appropriation of benefices, and (2.) the appropriation of payments.

(1.) An appropriation of a benefice.This is the annexing of a benefice to the use of some religious house, or spiritual corporation, whether sole or aggregate, to enjoy for ever; just as an impropriation is the annexing a benefice to the use of a lay person or corporation. See also title IMPROPRIATION.

(2.) Appropriation of a payment.-This means the application of a payment to the discharge of a particular debt. Thus, if a creditor has two distinct debts due to him from his debtor, and the latter makes a general payment on account without specifying at the time to which debt he intends the payment to apply, it is optional for the creditor to appropriate (i.e., to apply) the payment to either of the two debts he pleases. The leading case upon the subject is Clayton's Case in Devaynes v. Noble (1 Mer. 585; Tud. Merc. Ca. 1); from which case and the notes thereto, the following rules may be gathered:

(1.) The first option to appropriate belongs to the debtor at the time of payment. The appropriation in this case may be either express (Ex parte Imbert, 1 De G. & J. 152), or implied (Shaw v. Picton, 4 B. & C. 715), or presumed (Young v. English, 7 Beav. 10). In the case of several debts, some of which are barred by the Statute of Limitations and some not, the presumption is, that the payment is made on account of the debt or debts not barred. Nash v. Hodgson, 6 De G. M. & G. 474, reversing the decision of Wood, V.C., Kay, 650.

(2.) The second option to appropriate belongs to the creditor (Dig. 46, 3, 1), and this appropriation need not be made at the time of payment, but at any time afterwards until the matter comes to trial (Simson v. Ingham, 2 B. &C. 65); appropriation can only be made once, at least after notice of the first appropriation has been given to the debtor. But it is competent for a debtor

APPROPRIATION.-continued.

and his creditor to make a new contract varying the appropriation of past payments (Merriman v. Ward, 1 J. & H. 371). "Where one of two or more debts is barred by the Statute of Limitations, and the other, or others, are not barred, the creditor may appropriate the payment to the debt or debts which are barred, and afterwards pursue his remedy for the recovery of the other or others (Mills v. Fowkes, 5 Bing. (N.C.) 455); and similarly in the analogous cases mentioned in Cruikshanks v. Rose, 1 Moo. & Rob. 100 (sale of spirits on credit), and Arnold v. Poole (Mayor), 4 M. & G. 860 (solicitor to corporation). Secus, if the debt is absolutely unlawful, e.g. a gambling debt. And, apparently, the two debts must be of ascertained amount. Goddard v. Hodges, 1 C. & M. 33 (unsettled partnership accounts); Goddard v. Cox, 2 Str. 1194 (assets in administration).

(3.) Failing any appropriation by the creditor, the law appropriates the payment to the various debts in the order of their respective dates, beginning with the earliest (Clayton's Case, supra). Of course, however, one man's money will not be appropriated by the law towards payment of another man's debt, e.g. partnership moneys in payment of a single partner's debt (Thompson v. Brown, 1 Mood. & Malk. 40). The appropriation by the law is first to interest, and only secondly to principal (Chase v. Box, Hov. Freem. 261; Bower v. Marris, 1 Cr. & Ph. 351; Code 8, 53, 1; Dig. 46, 3, 5, § 3). But the law will not in the last-mentioned case appropriate any part of the money paid to interest barred by the statute (In re Fitzmaurices Minors, 15 Ir. Ch. Rep. 445); nor will the law appropriate a payment to money illegally due. Wright v. Laing, 3 B. & Č. 165.

Appropriation of payments must be distinguished from apportionment of same between debts having equal rights to be paid. Favenc v. Bennett, 11 East, 36; Dig. 46, 3, 8.

APPROPRIATION OF SECURITIES. Where a security has been deposited with a creditor generally, and the debtor afterwards becomes bankrupt, owing two or more debts, one or some of which are proveable, and the other or others not proveable, the creditor may appropriate the security to the debt or debts which are not proveable. Ex parte Hunter, 6 Ves. 94.

APPROVEMENT. This word has several meanings. It signifies much the same as improvement; thus, approvement of common means the inclosing a part of a common by the lord of the manor for the purpose of cultivating the same, leaving

APPROVEMENT continued. sufficient nevertheless for the commoners. Secondly, it is also said to signify the profits of a farm (Cowel). Thirdly, it signifies the act of an approver, who, when indicted of treason or felony, and arraigned for the same, confesses the fact before plea pleaded, and accuses others, his accomplices, of the same crime in order to obtain his own pardon. 3 Cruise, 89; Cowel; 2 T. R. 391.

APPURTENANT. This word denotes annexed or belonging to; but in law it denotes an annexation which is of convenience merely and not of necessity, and which may have had its origin at any time, in both which respects it is distinguished from Appendant (see that title). In conveyances of lands and houses, it is usual to add to the parcels, or else to the habendum, or to both, the phrase "with the appurtenances," and to make surer, to add "or reputed as appurtenant or belonging thereto." The term is commonly confined in law to the purely incorporeal hereditaments that are commonly annexed to lands or to houses, and may include as well common, as any other right. Lister v. Pickford,

34 Beav. 576.

See title INCORPOREAL HEREDITAMENTS.

ARBITRATION AND AWARD. All matters in dispute concerning any personal chattel or personal wrong may be referred to the decision of an arbitrator; and although much jealousy was formerly, and some jealousy is still, felt in allowing references of questions regarding real property, yet references have been made and allowed of the following matters-partition between joint tenants and tenants in common, settlement of disputed boundaries, waste between landlord and tenant, title of devisees, and generally upon title. Parties may even agree to refer to arbitration any future differences between them, although none at present may exist. And under various Acts of Parliament civil matters are compulsorily referred, in particular matters of account, under the C. L. P. Act, 1854 (17 & 18 Vict. c. 125, ss. 3-6), when they cannot be conveniently tried in the ordinary way. But with regard to criminal matters, the old rule was, that matters criminal were not arbitrable; and it may be said still that offences of a public nature are not referable. On the other hand, it has been said that in all cases where the injured party has a remedy by action as well as by indictment, he may refer same, procuring the consent of the judge if the indictment has been already commenced, or a conviction upon it obtained.

The persons who may refer matters to arbitration are of a correspondingly various

ARBITRATION AND AWARD-contd. character. Firstly, where the referring parties are interested on their own account in the matters referred, it is a general rule that every one capable of making a disposition or release of his or her right may also make a submission to an award (Com. Dig. Arb. D. 2); and conversely, the incapacity to contract involves the incapacity to refer. But as between partners, one partner cannot bind the other by his sole submission; and it matters not whether the partnership be general or particular, the submission to an award not being within the scope of the partnership or incident to any matters within such scope; and all the partners must execute the submission in order that any of them may be bound by the award (Antram v. Chase, 15 East, 209). Secondly, where the referring parties have no personal interest in the award, but act in the capacity of trustees or agents only, it is a general rule that the agent referring must have authority so to do, but such authority, where not express, may be implied from the nature of the agency. Thus, the better opinion is, that a solicitor or attorney retained generally has an implied authority to refer (Dowse v. Coxe, 3 Bing. 20), unless, semble, he is expressly forbidden to make a reference. Filmer v. Delber, 3 Taunt. 486.

See further titles SUBMISSION, REVOCATION, UMPIRE; and for the proceedings incident to a reference, and the form and execution of the award, with the remedies thereon, see generally Russell on Arbitrations.

ARCHBISHOP. The head or chief of the clergy in a whole province. He has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. The archbishop has his own diocese wherein he exercises episcopal, as in his province he exercises archiepiscopal, jurisdiction. To him, or to his Court, all appeals are made from inferior jurisdictions within his province; and as an appeal lies or lay from the bishops in person to him in person, so it also lies from the Consistory Courts of each diocese to his Archiepiscopal Court. 1 Burn's Ec. Law; 2 Roll. Abr.

See also titles ARCHES, COURT OF;
CONSISTORIAL COURTS; and ECCLE-
SIASTICAL COURTS.

ARCHDEACON. A dignitary of the church who has ecclesiastical jurisdiction immediately subordinate to that of the bishop, either throughout the whole of his diocese or in some particular part of it. He is nominally appointed by the bishop himself, and has a kind of episcopal authority originally derived from the bishop,

ARCHES, COURT OF. An ecclesiastical Court, so called because originally held in the Church of St. Mary-le-Bow (de Arcubus). It was latterly held in the hall belonging to the College of Civilians, commonly called Doctors' Commons: but in more recent times, the office of the Court of Arches has become annexed to, and is commonly discharged by, the judge of the Court of Admiralty, in his Court at Westminster.

The Court of Arches is the Court of Appeal of the Archbishop of Canterbury; the judge thereof hears all appeals from bishops or their chancellors, or commissaries, deans and chapters, and archdeacons; and from his decision an appeal lies at present to the Judicial Committee of the Privy Council, but under the Judicature Act, 1873, the appeal is to be to the Court of Appeal, constituted by that Act (ss. 18, 21). The Court of Arches has an original jurisdiction over the thirteen peculiar parishes in London which belong to the Archbishop of Canterbury: but upon receiving letters of request from any bishop, he may assume original jurisdiction in any ecclesiastical matter arising elsewhere.

ARCHIVES. This word, which is derived from arca, a chest, was originally used to denote a repository for documents, but by a natural transference, has come to denote the documents themselves.

ARISTOCRACY: See title CONSTITUTION.
ARMIGER: See title ESQUIRE.

ARMORIAL BEARINGS. For the duty on these, see Stamp Act, 1870 (33 & 34 Vict. c. 14), Sch.; see also title HERALD'S COLLEGE.

ARMOUR, or ARMS. In the meaning of the law are anything that a man wears for his defence, or takes into his hands for that purpose, or uses in his wrath to cast at another, or to strike him with. So that the appellations," armour" and "arms," do not in the law simply signify a sword, shield, helmet, or such like; but extend also to stones and other missiles used for the pur

ARMY. In ancient times, the English forces were composed of the following varieties of men-at-arms, viz. :—

(1.) Persons holding by knight service, and who were required, by virtue of their tenure to serve forty days annually;

(2.) Other persons engaged by contract; (3.) Freemen or freeholders generally, in virtue of the mere general duty of allegiance.

The first and second of these varieties constituted the Army Proper; the third variety was the Militia.

I. Army Proper :-The statute 1 Edw. 3, c. 5, enacted that no one should be called upon for service otherwise than as before used and accustomed, and that no one should be sent out of his own county unless in cases of invasion, or other like sudden emergency; but inasmuch as that monarch, notwithstanding the statute, called upon the counties and principal towns to furnish him with forces, therefore the statute 25 Edw. 3, c. 8, further enacted that no unusual services should be required, unless with authority of parliament.

Upon the accession of the Tudor dynasty, these statutes of Edward III. were entirely disregarded, in particular by Henry VIII. and Elizabeth, who not only compelled the counties to furnish soldiers, but also pressed men into the service as well abroad as at home; and the statute 4 & 5 Ph. & M. c. 3, expressly recognises the right of the sovereign to levy forces.

The nucleus of a standing army appears to have been the 200 yeomen of the guard, maintained by Henry VIII., together with some artillerymen, stationed in the Tower of London, in the Castle of Dover, at the Fort of Tilbury, at Portsmouth, and at Berwick-on-Tweed. Subsequently, upon the split between the sovereign and parliament, in the reign of Charles I., the sovereign maintained his forces, and the parliament theirs; and upon the Restoration of 1660, Charles II. retained 5000 guards as a standing army, and shewed a disposition on several occasions, particularly in 1667, 1673, and 1678, to increase their number to 20,000. James II. maintained a standing army contrary to the wishes of Parliament; and upon the Revolution in 1688, William III. maintained 7,000 men as a standing army, a number which, under Walpole's administration (George II and III.), was increased to 17,000, exclusive of the forces maintained in Ireland.

ARMY-continued.

Court martials were established for the first time, in 1718, by a clause in the Mutiny Bill of that year, and have since been continued under the annual Mutiny Act.

The statute 8 Geo. 2, c. 30, prohibits troops from appearing at elections; and in 1741 a resolution was made in the Commons declaring that it was a high infringement of the liberty of the subject for the troops to have appeared (as they had done) at the Westminster election of that year.

II. Militia:-The freeholders of each county were originally summoned by the earl for self-detence, and were under a general duty to be properly furnished with arms for that purpose. By the Statute of Winchester (13 Edw. 1), in aid of the Common Law, all male persons between the ages of fifteen and sixty were required to keep arms in accordance with their station, and might at any time be called out as a posse comitatus by the sheriff, who had by that time taken the place of the earl, at least in matters of mere internal

police. But these freeholders, keeping themselves in constant readiness, were capable of being mobilized as a militia for the purposes of the national defence.

The stat. of 1 Jac. 1, c. 25, established magazines of arms in each county, and Mary having previously created the body of lords-lieutenant, the militia was henceforth under the control of these latter officers, and a certain number of freeholders acted as a militia in relief of the general body. The Train Bands of London were a noted regiment of militia, formed in the reign of Henry VIII., and so called in the reign of Elizabeth (1588).

In 1642, the Long Parliament introduced a bill for regulating the militia, and assumed the right of nominating the lordslieutenant who were to have the command; but in 1660, the sole right over the militia was declared to reside in the Crown, and not in Parliament. In 1757, the militia were re-organised, and placed nearly on their present footing.

ARRAIGN, ARRAIGNMENT (ad rationem ponere). To arraign a prisoner is to call him to the bar of the Court to answer the matter charged against him in an indictment.

ARRAY signifies the ranking or setting forth in order. A challenge to the array, as applied to juries and as distinguished from a challenge to the polls, signifies an exception or objection against all the persons arrayed or impaneled on a jury on account of partiality, or some default of the sheriff or his under officer who arrayed the panel.

ARREARS. From the French arrière (behind), denotes money remaining unpaid after it is due. Under the stat. 3 & 4 Will. 4, c. 27, six years is fixed as the amount of arrears of rent, dower, &c., which may be recovered out of the land, in respect of which the right to payment exists; but this does not prevent an action of covenant being brought under the stat. 3 & 4 Will. 4, c. 42, for twenty years' Hunter v. Nockolds, 1 Mac. & G.

arrears.

640.

ARREST. From the French arrêter (to stop), signifies the restraint of a man's person by substituting for his own will the constraints of the law. Arrests may be either in civil or in criminal cases; for the latter, see title CONSTABLE.

Arrests in civil cases were either by writ of capias or by writ of attachment, the former being the more general, the latter issuing only in cases of a contempt of Court. Such arrests were also either on mesne process or on final process; but arrest on mesne process was abolished by the stat. 1 & 2 Vict. c. 110 (with certain exceptions specified in the Act), more latterly arrest on final process for debt has been abolished by the stat. 32 & 33 Vict. c. 62 (with certain exceptions specified in the Act).

Certain places, called Sanctuaries, e.g., the Mint, the Savoy, &c., conferred a privilege from arrest; but such privileges were abolished by the stats. 8 & 9 Will. 3, c. 27; 9 Geo. 1, c. 28; and 1 Geo. 4, c. 116.

See also titles CAPIAS; ATTACHMENT. ARREST OF JUDGMENT. The with holding or staying of judgment, notwithstanding a verdict has been given, on the ground that there is some error appearing on the face of the record, which vitiates the proceedings (Steph. on Pleading, 106, 6th ed. See example in Roscorla v. Thomas 6 Jur. 929). As a general rule the error must be one of substance, and not merely formal, the Statutes of Amendments and Jeofails excluding it in respect of the latter. The defendant is of course the party who moves in ara st of judgment.

In criminal cases the accused may at any time between conviction and sentence, but not afterwards, move in arrest of judg ment, and the Court will even in certain cases of its own motion arrest the judgment. By the stat. 7 Geo. 4, c. 64, s. 20, many formal defects in an indictment are made demurrable only, and are no longer available as a ground of motion to arrest.

ARRESTMENT. The Scotch term for arresting. It is applied either to the person or to the effects. Arrestment of the person takes place in cases in which

ARRESTMENT-continued.

there is reason to apprehend that the person will leave the jurisdiction of the judge, and so deprive the creditor of the means of redress. Arrestment of the effects is that process of the law by which a creditor attaches the debt due to him, or the moveables belonging to his debtor in the hands of a third party.

See title GARNISHMENT.

ARRIAGE AND CARRIAGE were indefinite services formerly demandable from tenants, but prohibited by 20 Geo. 2, c. 50, ss. 21, 22.

ARSON. From the Latin ardere (to burn), is the offence of unlawfully or maliciously setting property on fire. By the ancient Common Law, the offence was of two degrees,-either, (1) Felony, where the defendant wilfully burnt the house of another, or, (2) Misdemeanour, where he wilfully burnt his own house, with the intention of burning that of another. By statutes passed at various periods, arson of every kind was made a capital felony, but the severity of the statute law was mitigated by the consolidation statutes 7 & 8 Geo. 4, c. 30, and 7 Will. 4 & 1 Vict. c. 89, according to which certain arsons were made capital felonies, and the rest felonies not capital. The present law is embodied in the statute 24 & 25 Vict. c. 97. See Arch. Pl. Crim. Cases (17th ed.) pp. 503-520.

The

ARTICULI SUPER CHARTAS. title of the stat. 28 Edw. 1, confirming Magna Charta and the Charta de Foresta, without the saving clauses which were contained in the Confirmatio Chartarum, 25 Edw. 1.

ARTICLED CLERK. Is a clerk under articles (ie., heads and particulars) of an agreement to serve a solicitor in consideration of being initiated into the routine and mystery of the profession. No one solicitor may have more than two articled clerks at any one time (7 & 8 Vict. c. 73), but a firm of, say three, partners may have as many as six (3 × 2) such clerks among them, viz., two to each partner, provided each is bound separately to one of the partners only, and not generally to all. Where the clerk is (as usually happens) at the date of the articles under age, his parent or guardian

to Hawk. P. C. i, c. 62, § 1, an assault is an attempt or offer to do a corporal hurt to another, as by striking him, or presenting a gun at him at carrying distance, or pointing a pitchfork at him which might reach him, or holding up one's fist at him, or doing any such like act in an angry threatening manner; and a battery is any injury whatsoever to the person of a man done in an angry, revengeful, rude, or insolent manner. An assault and battery is the combination of both offences. By the Common Law, an assault or battery is only a misdemeanour; but by the stat. 9 Geo. 4, c. 31, s. 25, and subsequently by the stat. 24 & 25 Vict. c. 100, certain aggravated assaults are made felonies, and certain others, although remaining misdemeanours, are visited with severer punishment.

Either an action at suit of the injured party, or an indictment at suit of the Crown, or both, may be brought or laid for the offence, and the police magistrates have also a summary jurisdiction over the offence.

ASSEMBLY, UNLAWFUL, is defined to be the meeting of three or more persons with the intention of doing an unlawful act.

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