TESTATUM WRIT. When a writ of execution had been directed to a sheriff of a county, and that sheriff returned that there were no goods of the defendant in his bailiwick, tien a second writ, reciting this former writ and the sheriff's answer to the same, might be directed to the sheriff of some other county wherein the defendant was supposed to have goods, commanding him to make execution of the same; and this second writ was called a testatum writ from the words in which the writ was concluded, viz., " Whereupon, on behalf of the said plaintiff, it is testified in our said Court that the said defendant has goods, &c., within your bailiwick." But now by the C. L. P. Act, 1852, s. 121, it shall not be necessary to issue any writ directed to the sheriff of the county in which the venue is laid, but writs of execution may issue at once into any county, and be directed to and executed by the sheriff of any county, whether a county palatine or not, without reference to the county in which the venue is laid, and without any suggestion of the issuing of a prior writ into such county. So that the testatum clause in the second writ (being now the only writ), is omitted, and the testatum writ may be regarded as being in that indirect manner abolished. TESTE. The teste of a writ is that clause at the bottom of a writ beginning with the word "witness." When, therefore, a writ is said to be tested in the name of such or such a judge, it means that it is witnessed in his name. When TESTES, PROOF OF WILL PER. the validity of a will is contested, the executor, instead of proving it in the common form, i.e., upon his own oath simply, before the registrar of the Court of Probate, proves it per testes (by witnesses) and in open Court. When a will is so proved, two witnesses are by the Civil Law indispensable; although it does not appear to be necessary that they should have read the will, or even heard it read, provided they can depose on oath that the testator declared that the writing produced was his last will and testament, or that he duly executed the same in their presence. Two witnesses seem also to have been at one time required by the English Law in such a case (Godol. 66; Toll. Ex. 57); but at the present day, the mode of proof is stated to be as follows: TESTES, PROOF OF WILL PER-cont. "Where a will requiring attestation is subscribed by several witnesses, it is only necessary at Law to call ONE of them; and the same rule prevails in Chancery, excepting in the case of wills, with respect to which it has for many years been the invariable practice to require that ALL THE WITNESSES Who are in England and capable of being called shall be examined." "Best on Evidence, 760. TESTES, TRIAL PER. Is a trial had before a judge without the intervention of a jury; in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but this mode of trial, although common in the Civil Law, is seldom resorted to in the practice of the Common Law. 3 Ch. Bl. 336, and n. (4). TESTIMONIAL. A certificate under the hands of a justice of the peace testifying the place and time when and where a soldier or mariner landed, and the place of his dwelling and birth, whither he is to pass (Cowel; 3 Inst. 85). The document holds a kind of doubtful position midway between a certificate and a permit, or pass. THANE. Thanes were those important personages who attended, i.e., ministered, upon the Anglo-Saxon kings in their Courts, and who held their lands immediately of those kings. That portion of the king's land of which a thane was the ruler or governor, was termed “thanage of the king;" and such lands as the Saxon kings granted by charter to their thanes were denominated "thane lands." Cowel. THEFT (furtum): See title LARCENY. THEFT-BOTE. The offence of theftbote arises by a party who has been robbed and knows the felon, taking his goods again, or receiving other amends upon agreement not to prosecute. See title COMPOUNDING FELONY. TIMBERLODE. A service which some tenants were bound to perform to their lords of carrying felled timber from the woods to the lord's house. Cowel. TIMBER-TREES. In a legal sense timber-trees include oak, ash, and elm. In some places, however, by local custom, where other trees are commonly used for building, they are on that account considered as timber-trees. Honywood v. Honywood, L. R. 18 Eq. 306. TIME. The calendar, as amended by the stat. 24 Geo. 2, cc. 23 and 30, is that which is now in use in England. With reference to days, there is no general rule TIME continued. of law that in computing time the day is to be either inclusive or exclusive, but the reason of the thing, and the accompanying circumstances, are to decide (Lester v. Garland, 15 Ves. 248); the point is not unfrequently settled by statute in particular cases. Usually fractions of a day count as an entire day; but when it is necessary to shew which of two events happening on the same day first took place, the Court will consider such fractions (Clinch v. Smith, 8 D. P. C. 337). With reference to months, the stat. 13 & 14 Vict. c. 21, enacts, that "month" in all future statutes shall mean calendar month, and not lunar month, although the latter was the meaning by the Common Law (Lecon v. Hooper, 1 Esp. 246), unless where the intention indicated a different use of the word (Lang v. Gale, 1 M. & S. 111), or custom controlled the meaning Turner v. Barlow, 3 F. & F. 946. See also title MONTH. TIME OUT OF MIND. Any period anterior to the reign of Richard I. Bract. 1. 2, c. 22; 3 Lev. 160. See also title LEGAL MEMORY. TIPSTAFF. Tipstaves are officers who were formerly appointed by the marshal of the King's Bench Prison, or by the warden of the Fleet Prison, but who now, under the Act 25 & 26 Vict. c. 101 (Queen's Prison Discontinuance Act, 1862), are appointed by the respective chiefs of the Chancery, Queen's Bench, Common Pleas, and Exchequer divisions of the Court. They attend the King's Courts with a staff or rod tipped with silver, and take into their charge all prisoners committed by the Court. 1 Arch. Pract. 11; Cowel. TITHES. A species of incorporeal hereditaments, defined to be the tenth part of the increase yearly arising and renewing (1) from the profits of the lands, (2) from the live-stock upon lands, and (3) from the personal industry of the inhabitants. The first species of tithe is usually called predial, and consists of corn, grass, hops, wood, and the like; the second mixed, as of wool, milk, pigs, &c., consisting, it will be observed, of natural products, but nurtured and preserved in part by the care of man; the third personal, as of manual occupations, trades, fisheries, and the like. The distinction between predial and mixed tithes is, that predial tithes (so called from prædium, a farm), are those which arise immediately out of the soil, either with or without the intervention of human industry; and mixed are those which arise immediately through the in TITHES-continued. crease or produce of animals which receive their nutriment from the earth and its fruits. Personal tithes are so called because they arise entirely from the personal industry of man. In addition to this distinction, tithes have been divided into two classes, viz., great and small; the former comprehending in general the tithes of corn, peas, beans, hay, and wood; the latter, all other predial, together with all mixed and personal tithes. Tithes are great or small according to the nature of the things which yield the tithe, without reference to the quantity. Thus clover grass made into hay is of the nature of all other grass made into hay, and consequently is a great tithe: but if left for seed, its nature becomes altered, and, like other seed, it becomes a small tithe. 2 Chit. Bl. 24, and n. (6); Cowel. See also titles APPROPRIATE; IMPRO PRIATE. TITHING. One of the civil divisions of the territory of this country, being a portion of that greater division called a hundred. It was so called because ten freeholders with their families composed one. It is said that they were all knit together in one society, and bound to the king for the peaceable behaviour of each other (see title FRANKPLEDGE). In each of these societies there was one chief or principal person, who, from his office, was called teothing-man, now tithing-man. Mirr. c. 1, s. 3; Cowel. See next title. TITHING-MAN. During the Saxon times the officer who was appointed to preside over tithings and to examine and determine all causes of small importance between the inhabitants of adjacent tithings was so called. In the present day, however, tithing-men are a kind of constables, elected by parishes, and sworn in their offices in the Court Leet, and sometimes by justices of the peace, &c. TITLE. This word may be defined generally to be the evidence of right which a person has to the possession of property. The word "title" certainly does not merely signify the right which a person has to the possession of property, because there are many instances in which a person may have the right to the possession of property, and at the same time have no title to the same. In its ordinary legal acceptation, however, it generally seems to imply a right of possession also. It therefore appears on the whole to signify the outward evidence of the right, rather than the mere right itself. Thus, when it is said that the "most imperfect degree of title consists in the mere naked possession TITLE-continued. or actual occupation of an estate," it means that the mere circumstance of occupying the estate is the weakest species of evidence of the occupier's right to such possession. The word is defined by Sir Edward Coke thus: “ Titulus est justa causa possidendi id quod nostrum est" (1 Inst. 34); that is to say, the ground, whether purchase, gift, or other such ground of acquiring, titulus being distinguished in this respect from modus acquirendi, which is the traditio, i.e., delivery or conveyance of the thing. See also title ABSTRACT OF TITLE. TITLE OF ENTRY. The right or title to enter upon lands. Thus, when one scised of land in fee makes a feoffment of the same on condition, and that condition is afterwards broken, then the feoffor has title to enter into the land. Cowel. TITLES OF CLERGYMEN. Before a candidate for holy orders can be ordained, he must obtain what is termed a title, which is either an appointment to a benefice actually vacant, or to a curacy, and also a letter from the clergyman who gives the title, signifying the reason which obliges him to appoint a curate. Eccl. Leg. Guide, 4. TOFT. A messuage, or the site or piece of ground on which a messuage has stood; and the owner of a toft is termed a toftman. West. Symb.; Cowel. TOLERATION ACT. The stat. 1 Will. & M. st. 1, c. 18, for exempting Protestant dissenters from the penalties of certain laws is so called. See title STATUTES, sub-title ECCLE SIASTICAL. TOLL. This word has various significations. When used as a verb, it signifies to bar, to defeat, or to take away; thus, to toll the entry, signifies to deny or take away the right of entry. When used as a noun, it signifies either a liberty to buy or sell within the precinct of a manor, or a tribute or custom paid for passage. Cowel; Les Termes de la Ley; 1 M. & W. 19. TONNAGE. A duty imposed by Parliament upon merchandize exported and imported, according to a certain rate upon every tun. See title TAXATION. TORT. A wrong or injury that is "independent of contract." Personal actions are founded either on contracts or on torts. The latter signify such wrongs as are in their nature distinguishable from mere breaches of contract, and are often mentioned as of three kinds, viz.: (1.) Nonfeasance, being the omission to do TORT-continued. some act which a person is bound to do; (2.) Misfeasance, being the improper doing of some act which he may lawfully do; or (3.) Malfeasance, being the commission of some act which is positively unlawful. Actions founded upon tort are sometimes described as actions ex delicto, in distinction to actions ex contractu, which are founded upon contract. The forms of action generally founded upon tort are trover, detinue, trespass, trespass on the case, and replevin; whilst debt, assumpsit, and covenant belong to the class of actions founded upon contract. 1 Chit. Pl. 3. TRADE. All contracts in restraint of trade are regarded with disfavour by the law; and if the restraint is general, it is wholly void; and if it is partial, it is only good when the restraint is reasonable and a valuable consideration has been given by way of purchasing the restraint (Mitchell v. Reynolds, 1 Sm. L. C. 356). A reasonable restraint may be either in respect of locality or of time, or of both combined; and in every trade, what is reasonable in these respects varies with the character of the trade. It is from the like disfavour which the law bears towards such restraints that the stat. 54 Geo. 3, c. 96, s. 1, repealed the prohibitions contained in 5 Eliz. c. 4, whereby persons who had not served an apprenticeship were forbidden to be employed as journeymen, or to otherwise exercise their particular trades or occupations; and that the 7 & 8 Vict. c. 24, repealed a variety of other ancient Acts which operated in restraint of trade. There are, nevertheless, certain restraints which the law favours, and that chiefly from a regard to the public health; thus, the 11 & 12 Vict. c. 63, s. 64, forbids the establishment of new offensive trades unless with the consent of the local board of health; and the 16 & 17 Vict. c. 128, s. 1, renders liable to summary conviction persons carrying on offensive trades within the metropolis, when they do not use the best means of preventing annoyance to the neighbourhood. See also next titles. TRADE-MARKS. The right of a manufacturer to his own particular trade-mark is analogous to that of the owner of a patent or a copyright; there is, however, this difference between the right to a trademark and these latter rights, viz., that the TRADE-MARKS-continued. value of a trade-mark is independent of the article itself, and consists entirely in the reputation of the particular individual who makes or sells it, which is not the case in patented articles or in copyright works (see titles PATENT and COPYRIGHT). The law does not, indeed, recognise any property either in trade-names or in trademarks; nevertheless, it will not encourage a fraud or deception; and, in the words of Lord Cranworth (Farina v. Silverlock, 6 De G. M. & G. 218), every one who has adopted a particular mode of designating his own manufacture has a right to say that other persons shall not sell the same article in such a way as to make purchasers believe that the article is his manufacture. The protection which the law secures to a trade-mark is therefore only a particular application of the general rule of law that it is a fraud to represent what the party knows to be untrue, where such representation is calculated from the mode in which it is made to induce another to act on the faith of it, so that he may incur damage, or where such representation will prejudice the reasonable profits of another man from his superior industry or invention. See Adams on Trade-marks. TRADES-UNIONS. Combinations on the part either of employers or of employés to regulate the price of labour are, within certain limits, valid by the Common Law (Rex v. Batt, 6 C. & P. 329); but such combinations, when carried the length of violence in any phase or shape, are illegal. Wherefore the stat. 6 Geo. 4, c. 129, placed such combinations, on the part of employes chiefly, under a most rigorous restraint; and, under that statute, anything in the nature of a threat put forward with a view to forcing or endeavouring to force a workman to leave his employment was made a criminal offence (Walsby v. Anley, 3 El. & El. 516). Of recent years the stat. of Geo. 4 has been thought too rigorous, and under the stats. 22 Vict. c. 34, 32 & 33 Vict. c. 61, and 34 & 35 Vict. c. 31, combinations on the part of employés, or (as they are usually called) Trades-Unions, are recognised as legal associations with legitimate objects, and which objects they may endeavour to secure (if so advised) by pecuniary and other means of supporting strikes, &c., so long as they do not resort to open or secret violence, or to threats, intimidation, rattening, and the like. TRANSACTION. In French Law is the transactio of Roman and the compromise of English Law, being an agreement to give up the residue (if any) of an unascertained debt, in consideration of the payment of an agreed sum. Actions are TRANSITORY ACTIONS. said to be either local or transitory; an action is local when all the principal facts on which it is founded are of a local character, and carry with them the idea of some certain place; these are generally such as relate to realty. An action is termed transitory when the principal fact on which it is founded is of a transitory kind, and might be supposed to have happened anywhere; and, therefore, all actions founded on debts, contracts, and such like matters relating to the person or personal property, come under this latter denomination (Steph. Pl. 316, 317). If the action is local, the venue also is local; and if the action is transitory, the venue also is transitory. But under the Judicature Act, 1873, Schedule, Rules of Procedure 28, there shall be no local venue for the trial of any action. TRANSLATION. This word, as applied to a bishop, siguifies removing him from one diocese to another. Cunningham. TRAVERSE (from the Fr. traverser, to cross, or oppose). In the language of pleading signifies a denial. Thus, where a defendant denies any material allegation of fact in the plaintiff's declaration, he is said to traverse it, and the plea itself is thence frequently termed a traverse. Besides the common traverse, as explained above, there is one of occasional occurrence termed a special traverse, or traverse with an absque hoc. This, instead of being framed in the shape of a simple denial, consists ordinarily of two branches, one involving the introduction of new affirmative matter, which, inferentially or argumentatively, denies the disputed allegation of fact upon which the defendant purposes raising an issue; the other, being the absque hoc clause, consisting of a direct denial of such allegation of fact. See title SPECIAL TRAVERSE; also title TRAVERSE OF AN INDICTMENT. The word "traverse," as applied to an indictment, has the same import as when applied to a declaration; signifying to contradict or deny some principal matter of fact therein, e.g., in a presentment against a person for a highway overflowed with water, for default of scouring a ditch, &c., he may allege that there is no highway, or that the ditch was sufficiently scoured. Cowel. See title TRAVERSE. TRAVERSE OF AN OFFICE. The proving that an inquisition made of lands or goods by the escheator is defective and untruly made. Kitchin, 227. TRAVERSING NOTE. This is a pleading in Chancery, and consists of a denial TRAVERSING NOTE-continued. put in by the plaintiff on behalf of the defendant generally denying all the statements in the plaintiff's bill. The effect of it is to put the plaintiff upon proof of the whole contents of his bill, and is only resorted to for the purpose of saving time, and in a case where the plaintiff can safely dispense with an answer. A copy of the note must be served on the defendant; as to which see title SERVICE. TREASON. This word, in its original sense, denoted the betrayal of confidence or of trust, and such betrayal was of two species, according as it was either (1.) Against the King as supreme; or (2.) Against a subject as superior; the former species was called High Treason, and the latter Petit Treason. Petit treason has been abolished by stat. 9 Geo. 4, c. 31, s. 2, although, of course, breach of confidence or trust, in so far as it is a civil wrong, is still a tort, and as such remediable in a Court of Law or (more commonly) of Equity. High treason is, therefore, now called treason simply. The charge of treason, being vague, was dangerous to the liberty of the subject; and inasmuch as trivial or dubious offences were imputed in the reign of Edward II. as treasonous under the designation of accroachments upon the royal power; therefore it was enacted by 25 Edw. 3, st. 5, c. 2, that the following offences (and none other) should be deemed treasons: (1.) Compassing the death of the Sovereign, or his or her consort, or of the Prince of Wales; (2.) Violating the consort of the King, or his eldest daughter unmarried, or the Princess of Wales; (3.) Levying war against the Sovereign within the realm, or being adherent to such, or relieving same; (4.) Counterfeiting the King's money, or importing counterfeit money; (5.) Killing the Lord Chancellor or the Lord Treasurer, or any judge while on the bench; and generally, (6.) Committing such other offence or offences as should by any future Parliament be declared treason. The general provision of the above-mentioned statute was put in exercise by Richard II., who enacted (21 Rich. 2, c. 3) that the mere intent to kill or depose the King should, without proof of any overt act of treason, amount to the offence of treason; but this statute was repealed by 1 Hen. 4, c. 10. Again, Henry VIII. enacted many new treasons, e.g., denying the pre-nuptial chastity of Anne Boleyn, denying the King's right with the authority TREASON-continued. of Parliament to devise the Crown, and such like; but these new treasons were repealed by 1 Edw. 6, c. 12. In more modern times, the following treasons have been added permanently to the list enumerated in 25 Edw. 3, viz. :— (1.) Hindering from his accession to the (2.) Declaring that the Sovereign, with (4.) Forging the great seal,-this by 11 Geo. 4 & 1 Will. 4, c. 66, s. 2. By the stat. 7 Will. 3, c. 3, no prosecutions for treason were to be brought but within three years from the alleged commission of the offence; and by the same statute, coupled with that of 7 Anne, c. 21, there must, in order to secure a conviction, be two witnesses to one and the same act of treason, or to different acts of the same treason. Moreover, by these two statutes a list of the witnesses for the prosecution, together with a copy of the indictment, is to be delivered to the prisoner ten days before the trial; also a copy of the panel of jurors two days before the trial. The prisoner is also allowed to make his defence by counsel. Under the stat. 39 & 40 Geo. 3, c. 93, when the treason consists in an attempt to assassinate the Sovereign, the offence is made triable as murder, but continues punishable as treason; under the stat. 11 & 12 Vict. c. 12, it is made a felony to intend to depose the Sovereign, or to place duress upon her in order to compel her to change her counsels, or to intimidate either House of Parliament, or to incite any foreigner to invade the kingdom. Lastly, under the stat. 5 & 6 Vict. c. 51, s. 2, it is made a high misdemeanour to strike at the Sovereign or to discharge fire-arms near her person with intent to alarm her; and it makes no difference whether the pistol is loaded or not. TREASURE-TROVE. Any money, coin, gold, silver, plate, or bullion found (trouvé) hidden in the earth, the owner thereof being unknown; such kind of treasure in general belongs to the king, and forms one of the precarious sources of his revenue. When, however, it is found in the sea or upon the earth it does not belong to the king, but to the finder in case no owner appears. In |