A New Law Dictionary and Institute of the Whole Law

SUMPTUARY LAWS. Laws made for restraining excess of expenditure in clothes and apparel, &c. Cowel.

SUNDAY. Contracts made on Sundays by persons in their usual trades are invalid under the stat. 29 Car. 2, c. 7 (Bloxsome v. Williams, 3 B. & C. 232). The statute applies to "tradesmen, artificers, workmen, labourers, and other persons whatsoever"; but it does not extend to people not falling within these categories, e.g., to a stagecoach owner (Sandiman v. Brench, 7 B. & C. 96); and works of necessity are expressly excepted.

SUPERIOR COURTS. The Courts of the highest and most extensive jurisdiction, viz., the Court of Chancery and the three Courts of Common Law, i.e., the Queen's Bench, the Common Pleas, and the Exchequer, which sit in Westminster Hall, are commonly so termed. 4 Steph. Pl. 368, 369, 5th ed. See also Peacock v. Bell, 1 Saund. 73; 12 Ad. & E. 256; 4 Ad. & E. 433, 446.

See title COURTS OF JUSTICE. SUPERSEDE. To stay, stop, interfere with, or annul. Thus, the proceedings of outlawry may be superseded at any time before the return of the exigent by the entry of the defendant's appearance with the clerk of the outlawries. So the Lord Chancellor or Court of Appeal in Chancery would supersede or annul a fiat in bankruptcy, if it had been improperly issued, as where the bankrupt was discovered not to be a trader within the bankruptcy laws (10 Bing. 544; 1 Mont. & Ayr. Bankruptcy, 514-557; 5 & 6 Vict. c. 122, s. 4).

See also title CHARITABLE USES.

SUPPLEMENTAL BILL. In a suit in Chancery it frequently happens that new matter has arisen or is discovered since the filing of the original bill in the suit, or that some of the parties have acquired a new interest, or that fresh parties have acquired an interest in the matter in question; all which matters must be brought to the knowledge of the Court upon the proceedings. Now it occasionally happens that some of these objects may be accomplished by amending the bill; but after the parties are at issue, and witnesses have been examined in the suit, the bill cannot usually be amended, and therefore the defect is in such case supplied by means of what is termed a supplemental bill (Gray's Ch. Pr. 86). However, under the modern practice, the Court will sometimes, on an ex parte application by motion or petition, make an order to revive and carry on the proceedings in the original suit without the necessity of filing any supplemental bill.

SUPPLETORY OATH. In the modern practice of the Civil Law they do not allow a less number than two witnesses to be plena probatio (full proof); they call the testimony of one semi-plena probatio only, on which no sentence can be founded. order to supply the other half of proof, they admit the party himself (plaintiff or defendant) to be examined in his own behalf, and the oath administered to him for that purpose is called the suppletory oath, because it supplies the necessary quantum of proof on which to found the sentence.

SUPPLICAVIT. A mandatory writ issuing out of the Court of King's Bench or Chancery to compel a justice to give security of peace to a party who is in bodily danger.

SUPPLIES. The "supplies," in parliamentary proceedings signify the sums of money which are annually voted by the House of Commons for the maintenance of the Crown and the various public services.

See titles COMMITTEE OF SUPPLY, and
COMMITTEE OF WAYS AND MEANS.

SURCHARGE. This word signifies overcharge, or over and above the regular amount. Thus, surcharge of the forest or of common signifies the putting in the forest or on the common more beasts than one has a right to put; and if, after admeasurement of common, upon a writ of admeasurement of pasture, the same defendant surcharges the common again, the plaintiff may have a writ of second surcharge (de secundá superatione pastura), by which the sheriff is directed to inquire by a jury whether the defendant has in fact again surcharged the common contrary to the tenor of the last admeasurement, and if he has, he shall then forfeit to the king the supernumerary cattle put in, and shall also pay damages to the plaintiff.

This

SURCHARGE AND FALSIFY. phrase, as used in the Courts of Chancery, denotes the liberty which these Courts will occasionally grant to a plaintiff who disputes an account, which the defendant alleges is settled, to scrutinize particular items therein without opening the entire account. The shewing an item for which credit ought to have (but has not) been given is to surcharge the account; the proving an item to have been inserted wrongly is to falsify the account.

SUR CUI IN VITA. A writ that lay for the heir of a woman whose husband had aliened her land in fee, and she omitted to bring the writ of cui in vita for the recovery thereof; in which case her heir might have this writ against the tenant after her decease. Cowel.

SURETY OF THE PEACE. Surety of the peace is a species of preventive justice, and consists in obliging those persons whom there is a probable ground to suspect of future misbehaviour, to stipulate with, and to give full assurance to, the public that such offence as is apprehended shall not take place, by finding pledges or securities for keeping the peace, or for their good behaviour. This security consists in being bound with one or more securities in a recognizance or obligation to the king entered on record, and taken in some Court, or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the Crown in the sum required (for instance £100), with condition to be void and of none effect if the party shall appear in Court on such a day, and in the

SURETY OF THE PEACE-continued. meantime shall keep the peace, either generally towards the king and all his liege people, or particularly also with regard to the person who seeks such security. Or if the security be for the good behaviour of the party, then on condition that he shall demean and behave himself well (or be of good behaviour), either generally or specially, for the time therein limited.

SURETYSHIP.

This word denotes the relation in which one person who is not primarily indebted stands towards two other persons, viz., the primary creditor whom he further assures in his debt, and the primary debtor whom he assists in obtaining credit. The relation is contractual in these respects, viz., the surety agrees with the creditor to pay him, failing the debtor; and the debtor agrees to repay the surety the amount which he may have paid on his account to the creditor.

The utmost good faith is required from all parties to this contract, any concealment or misrepresentation of material facts on the part of the creditor releasing the surety (Pidcock v. Bishop, 3 B. & C. 605; and quere Hamilton v. Watson, 12 Cl. & F. 109). Whence the surety will be discharged if the creditor varies the contract with his debtor without the surety's privity, or if without the surety's consent he give time to the debtor, or release the debtor, but not if he merely covenant not to sue the debtor.

It seems that the surety cannot compel the creditor (as in Roman Law, beneficium excussionis vel ordinis) to obtain payment of his debt from the debtor; but he can compel the debtor to pay the debt when due (Padwick v. Stanley, 9 Hare, 627). And in case the surety has been called upon to pay, and has paid, the debt, then he is entitled to be re-imbursed the amount by the debtor, a right which is commonly called his right to recoupment. He has also under such circumstances a right to have all securities held by the creditor delivered up to him, whether or not the same securities, or any of them, are satisfied by his own payment of the debt (Hodgson v. Shaw, 3 My. & K. 190, and M. L. A. Act, 1856); and whether or not he knew at the time of becoming surety that the creditor held such securities; a right which was called in Latin the beneficium cedendarum actionum.

Where there are two or more sureties for one and the same debt, they have in English Law no right (as they had in Roman Law under the Epistula Hadriani) to require the creditor to split his demand equally between or amongst all the solvent co-sureties (beneficium divisionis), but in lieu thereof they have what is called the

SURETYSHIP-continued.

right of contribution as against each other, where one or more have paid the entire debt. At Law this right of contribution is regulated by the original number of cosureties (Batard v. Hawes, 2 El. & Bl. 287), but in Equity by the number of those who are solvent at the time of payment (Peter v. Rich, 1 Ch. Rep. 19); and for this purpose it does not matter whether all the cosureties are by one instrument or by several instruments (Dering v. Earl of Winchelsea, 1 W. & T. L. C. 89), provided they are equally upon a line as sureties for one common debt, and not one for one part only and the others for the other part of the debt (Coope v. Twynam, 1 T. & R. 426), or some as being only collaterally liable in subsidium of the others. Swain v. Wall, 1 Ch. Rep. 149.

SURMISE. This word commonly denotes to suspect, conjecture, or suggest. In former times, where a defendant in an action pleaded a local custom-as, e.g., a custom of the City of London-it was necessary for him "to surmise," that is, to suggest, that such custom should be certified to the Court by the mouth of the Recorder, and without such a "surmise" the issue was to be tried by the country, as other issues of fact are. 1 Burr. 251; Vin. Abr. 246 (G.).

SURREBUTTER: See title REBUTTER.
SURREJOINDER: See title REJOINDER.

SURRENDER. A surrender is of a nature directly the reverse of a release; for as the latter operates by the greater estate descending upon the less, so a surrender operates by the falling of a less estate into a greater. It is defined by Lord Coke to be the yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them. The person who so surrenders is termed the surrenderor, and the person to whom he surrenders is termed the surrenderee.

See title CONVEYANCES.

The

SURRENDER OF COPYHOLDS. mode of conveying or transferring copyhold property from one person to another is by means of a surrender, which consists in the yielding up of the estate by the tenant into the hands of the lord for such purposes as are expressed in the surrender. The process in most manors is for the tenant to come to the steward either in Court or out of Court, or else to two customary tenants of the same manor, provided there be a custom to warrant it, and there by delivering up a rod, a glove, or other symbol, as

SURRENDER OF COPYHOLDS-contd. the custom directs, to resign into the hands of the lord, by the hands and acceptance of his steward, or of the said two tenants, all his interest and title to the estate; in trust, to be again granted out by the lord to such persons and for such uses as are named in the surrender, and as the custom of the manor will warrant. Formerly, such a surrender was wanted in order to devise copyholds; but it was rendered unnecessary by Preston's Act, 1815 (55 Geo. 3, c. 192). A surrender in the case of legal estates tail in copyholds is at the present day the only mode of barring same (3 & 4 Will. 4, c. 74); but in the case of equitable estates tail in copyholds, either a surrender or a disentailing deed may be used for that purpose. 3 & 4 Will. 4, c. 74.

SURROGATE. One who is appointed or substituted in the place of another, most commonly in the place of a bishop, or a bishop's chancellor. He usually presided in the bishop's diocesan court, and as the representative of the ordinary granted letters of administration where the spiritual court was not presided over by a judge. Upon the death of the judges of the Eccle siastical Courts in the sees of Canterbury and London, the surrogates of such Courts were by Act of Parliament directed to perform their duties until the appointment of their successors. 3 Burn's Ecc. Law, 667, 229; stat. 10 Geo. 4, c. 53, s. 13.

SURVIVORSHIP. One of the incidents of joint estates is what is termed the doctrine of survivorship, by which, when two or more persons are seised of a joint estate of inheritance for their own lives, or pur autre vie, or are jointly possessed of a chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance or a common freehold only, or even a less estate. This incident does not attach to estates held by tenancy in common; but in the case of these latter tenancies it is not unusual to insert a clause of survivorship or accrual as it is called. There is this difference between the accrual in joint tenancies which is implied by law, and the accrual in common tenancies which is expressed in the words of the deed, that whereas the former takes place repeatedly, as often as the event arises, the latter is confined to the original shares only of the tenants, and does not extend also to the shares accrued by the accrual, it being a maxim of law as to the express clause that (in the absence of express words) there is no survivorship upon survivorship" (Pain

SURVIVORSHIP-continued.

v. Benson, 3 Atk. 80). Usually, also, there is no survivorship implied at law as between partners; moreover, the Court of Chancery will defeat survivorship upon very slight distinctions.

See title JOINT TENANCY.

SUSPENSE, SUSPENSION. A temporary stop or suspension of a man's rights; as when a seigniory rent, &c., on account of the unity of possession thereof, and of the land out of which it issues, are not in esse for a time, but may be revived at some future time; and thus suspension differs from extinguishment, which would extinguish or annihilate the rent for ever. The word "suspension" isalso applied to the depriving of an ecclesiastic of the profits and privileges of his benefice. See also a like use of the word in the case of Easements, supra.

TACKING. This word denotes annexing, and as applied to mortgages it signifies the annexation of a subsequent to some prior charge. This is its chief application in law; but under the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 7, the doctrine of tacking has been abolished as from the 7th August, 1874. The law prior to that date was expressed in the following rules, which are principally taken from the celebrated case of Brace v. Marlborough (Duchess), 2 P. Wms. 491 :

(1.) A third mortgagee buying in a first mortgage, being a legal mortgage, might annex his third mortgage to the first, so as to squeeze out, i.e., get paid before, the second or mesne mortgage;

(2.) One who is a legal mortgagee to begin with, and who afterwards advances a further sum upon a judgment, might in like manner annex his judgment to his mortgage; but one who was a judgment creditor to begin with could not annex his judgment to a first legal mortgage which he might afterwards obtain a transfer of;

(3) Tacking is excluded when all the mortgages are equitable; also, where the third mortgage or the subsequent judgment is made or obtained with notice of the second or mesne mortgage. (See title NOTICE.)

The doctrine of Consolidation may be taken to have fallen with the abolition of tacking, for it was a gross abuse of the doctrine of tacking. It was this,-A mortgagor or the purchaser from him could not redeem one or any of two or more estates in mortgage (whether originally or by successive transfers) to the same individual without redeeming them all, for the mortgage might heap up, i.e., consolidate, all his

TACKING-continued.

mortgages upon one estate. Selby v. Pomfret, 1 J. & H. 336; Beevor v. Luck, L. R. 4 Eq. 537.

TAIL (from the Fr. tailler, to cut or to carve). This word, used in conjunction with the word "estate" or the word "fee," signifies an estate of inheritance, descendible to some particular heirs only of the person to whom it is granted, in contradistinction to an estate in fee simple, which is an estate descendible to the heirs general (without distinction) of the person to whom it is granted. An estate tail is of two kinds, general and special. When lands are given to a man and the heirs of his body without any further restriction, this is called an estate tail general; because how often soever such donce in tail be married, his issue by every such marriage is capable of inheriting the estate tail. But if the gift is restrained or limited to certain heirs of the donee's body, exclusively of others, as in the case of lands being given to a man and the heirs of his body on Mary his present wife to be begotten, this is an estate tail special, because the issue of the donce by any other wife is excluded.

Estates tail are also distinguished into estates tail male and estates tail female. When lands are given to a person and the heirs male of his or her body, this is called an estate tail male, and to which the female heirs are not capable of inheriting. the other hand, when lands are given to a person and the heirs female of his or her body, this is called an estate tail female, and to which the male heirs are not capable of inheriting. The person who holds an estate tail is termed a tenant in tail. And when a person grants land to a man and his particular heirs in the manner above described (ie., when he creates an estate tail), such person is said to entail his lands. 1 Cruise, 78, 79; Les Termes de la Ley.

Estates tail exist chiefly in lands of freehold tenure, the statute De Donis Conditionalibus (13 Edw. 1, c. 1) upon which they depend speaking only of "tenements of inheritance." However, certain manors having, in imitation of the Courts at Westminster, introduced into their Courts the analogy of the statute, while other manors have persistently excluded it, it follows that in manors of the former class an estate tail in copyhold lands may and does exist, and arises in virtue of the same words as the like estate in freehold lands; whereas in manors of the latter class an estate tail does not exist, but a donum conditionale only, i.e., a fee simple conditional at Common Law, as was the case with all like gifts of freehold lands before the Statute De Donis.

Personal estate cannot be entailed; and words of limitation which would confer an

TAIL-continued.

estate tail in freehold lands give a fee simple absolute in leasehold lands (Leventhorpe v. Ashbie, Tud. Conv. 763), or quare (if executory) a fee simple conditional. Earl of Stafford v. Buckley, 2 Ves., Sen. 170.

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