Obrazy na stronie

USUCAPIO. A term of Roman Law USURY-continued. used to denote a mode of acquisition by interest were, however, abolished by stat. the civil- i.e., old strict, law. It is, how- 17 & 18 Vict. c. 90. ever, sometimes used as interchangeable with longi temporis possessio.

It corre- UTTER, TO. In law signifies to put in sponds very nearly to our term prescription

circulation, to offer or tender to another or limitation, which by the stats. 3 & 4 man, and is used in reference to forged inWill. 4, c. 27 (as to corporeal heredita

struments or counterfeit coin. Thus, by ments), and 2 & 3 Will. 4, c. 71 (as to in

stat. 11 Geo. 4 & 1 Will. 4, c. 66, it is corporeal hereditaments) confers a positive

enacted that the forging or uttering of any (although merely possessory) title on the Exchequer bill, Bank of England note, holder. But the prescription of Roman

bill of exchange, deed, transfer of stock, Law differed from that of the English Law,

&c., &c., knowing it to be forged, and with not only in its times (which are of less im.

the intent to defraud, shall be felony; and portance), but also in this great and pe- by 2 Will. 4, c. 31, s. 7, it is provided that culiar feature, that no malâ fide possessor

"if any person shall tender, utter, or put (i.e., person in possession knowingly of the off any false or counterfeit gold or silver property of another) could by however long coin, knowing the same to be counterfeit, a period acquire title by possession merely,

he shall be guilty of a misdemeanor, and the two never-failing requisites not only to

be imprisoned for any term not exceeding a usucapio, but also to longi temporis pos- year. See Rex v. Jones, 9 C. & P. 761, sessio, being justa causa (i.e., title) and bona

UTTER BAR (or Outer Bar) is the bar at fides (i.e., ignorance). The term usucapio which those barristers, usually junior men, is sometimes, but erroneously, written usu

practise who have not yet been raised to captio. In Roman Law, re-acquisition by

the dignity of queen's counsel. These junior usucapio was called USU RECEPTIO.

barristers are said to plead without the USUFRUCT (usufructus). An usufruct

bar, while those of the higher rank are has been defined to be that real right in

admitted to seats within the bar, and another's property whiclı entitles a party

address the Court or a jury from a place to reap all the fruits of the thing, and in reserved for them and divided off by a bar.

See title UTTER BARRISTERS. general to have the whole use and enjoyment of it, as far as is practicable, without UTTER BARRISTERS, Barristers-atinjury to its substance (salvâ rerum sub

law, in general, who plead without the stantic). He who is so entitled to enjoy bar. They are called utter barristers, i.e., the fruits of another's property is termed pleaders without the bar, to distinguish the usufructuary, in contradistinction to the them from the benchers, or those who have actual proprietor of the thing (Just. Inst.

been readers, and are sometimes admitted ii. 4). The usufructuary was invariably to plead within the bar, the same as king's entitled for life, and for no less period ; he,

and queen's counsel are. Cowel. therefore, corresponds to our tenant for life.

USUFRUIT. This is, in French Law, the usufruct of English and Roman Law.


VACATION. The interval between each

term is termed the vacation, that is, beUSURIOUS CONTRACT: See title UsURY. tween the end of one term and the beginning

of the next. These intervals of a cessation USURPATION OF ADVOWSON. An

of business are retained under the Judiinjury which consists in the absolute ouster

cature Act, 1873, but are differently reckor dispossession of the patron, and which

oned, the distinction of terms having been happens when a stranger who has no right

abolished by that Act, in name at least. presents a clerk, and the latter is thereupon admitted and instituted.

VADIUM MORTUUM (ilead pledge): See

next title. USURPATION OF FRANCHISES, or OFFICES. The unjustly claiming or usurp

VADIUM VIVUM (a living pledge).

When a man borrows a sum of money of ing any oflice, franchise, or liberty.

another (suppose £200), and grants him USURY (usura.) An unlawful contract an estate, as of £20 per annum, to hold on the loan of money to receive the same till the rents and profits shall repay the again with exorbitant increase; that is, sum so borrowed; in this case the land or not only to receive the principal sum again, pledge is said to be living; it works off, but also an exorbitant interest by way of i.e., repays and survives, the debt, and imcompensation for the use of such principal | mediately on the discharge of that reverts

All restrictions upon the rate of back to the borrower. It is called a virum


VADIUM VIVUM-continued. radium, or living pledge, in contradistinction to a mortuum vadium, the land in which does not of itself work off, i e., repay the debt, but the mortgagor must needs himself repay the same, before the land reverts to him. In the case of both these species of valium, the pledgee receives the rents and profits without account, in which respect they both differ from a mortgage properly so called.

See title MORTGAGE, VAGABONDS and VAGRANTS. For the offences which bring persons under either of these denominations, see the stats. 5 Geo. 4, c. 83; 1 & 2 Vict. c. 38; and 31 & 32 Vict, c. 52,

VARIANCES—continued. a party must recover secundum allegata et probata; but in matters impertinent or immaterial to the issue, or merely formal or superfluous, a variation between the pleading and the evidence is unimportant, more especially since the powers of aniendment conferred by the C. L. P. Act, 1852.

Variances are of the following kinds :

(1.) Variance in the parties to a con. tract,-being either the omission of a plaintiff who ought to be joined (Graham v. Robertson, 2 T. R. 282), or the misjoinder of a plaintiff or defendant. not also the non-joinder of a defendant (1 Wms. Saund. 291-4), which can only be pleaded in abatement. These cases of variance may be amended at nisi prius under the C. L. P. Act, 1852, ss. 35-38. (See title AMENDMENT.)

(2.) Variance in the consideratim of a contract,-being the omission of any part of the consideration. The variance in such a case is fatal (Dashıood v. Peart, Man. ning's Index, 308), unless the omitted part is not material. Clarke v. Gray, 6 East, 568.

(3.) Variance in the promise in a contract,-being the omission of any part of the promise. The variance in such a case may or may not be fatal; e.g., the omission of an exception contained in the promise would be fatal (Lathan v. Rutley, 2 B. & C. 20), but the omission of an addition or of a defeasance would not be so,

Miles v. Sheward, 8 East, 7; Hotham v. E. I. Co. 1 T. R. 640.


VALOR MARITAGII (value of marriage); The meaning of this may be collected from the following passage :-“ During the prevalence of the feudal tenures the guardian was at liberty to exercise over his infant ward the right of marriage (maritagium, as contradistinguished from matrimony), which in its feudal sense signifies the power which the lord or guardian in chivalry had of disposing of his infant ward in matrimony. For while the infant was in ward the guardian had the power of tendering him or her a suitable match, without disparagement or inequality; which if the infants refused, they forfeited the value of the marriage (valorem maritagii) to their guardian; that is, so much as a jury would assess, or any one would bonâ file give to the guardian for such an alliance; and if the infants married them. selves without the guardian's consent they forfeited double the like value, duplicem valorem maritagii." Litt. 110.

VALUABLE CONSIDERATION. The distinction between a good and a valuable consideration is, that the former consists of considerations of blood, or of natural love and affection; as when a man grants an estate to a near relation from motives of

generosity, prudence, and natural duty; and the latter consists of such a consideration as money, marriage which is to follow, or the like, which the law esteems an equivalent given for the grant. The conveyance by bargain and sale requires to be for valuable consideration, as distinguished from that by a covenant to stand seised, which requires to be for blood or natural affection (see title CONVEYANCES). In the statutes of Elizabeth against fraud (13 Eliz. c. 5, and 27 Eliz. c. 4), a good consideration means a valuable one.

VARIANCES. It is a general rule that


VASSAL. Originally signified a fendal tenant or granteo of land. It seems doubtful what the exact relationship was that subsisted between lord and vassal; some writers are of opinion that they stood to each other in the relation of landlord and tenant, and to a certain extent were the companions of each other; while others affirm that the vassal was little better than the slave or bondman of his lord. The state or condition of a vassal is termed vassalage. 2 Chitty's Bl. 52, n. (6).

VENDITIONE EXPONAS. A judicial writ directed to the sheriff commanding him to sell goods which he has taken into his hands by virtue of a former writ (but to which writ he had returned that he had taken the goods, but that they renained in his hands for want of buyers), in order to satisfy judgment against the defendant. 1 Arch. Pract. 678; Reg. Jud. 33.

VENDORS AND PURCHASERS. The vendor of lands undertakes to make a good title thereto, and should he fail to do so, the purchaser is discharged from his contract, and recovers damages (Flureau v. VENUE-continued. claration, which is termed “laying the venue” in such a county ; and the action itself is then said to be " laid” or brought “ within that county." By the Judicature Act, 1873 (Sched. Rules of Proc. 28), there is to be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he is in his statement of claim to name the county or place in which he proposes that the action shall be tried; and the action thereupon shall, unless the judge otherwise orders, be tried in the county or place, so named.

VERDEROR (verdurier). An officer of the king's forest, who is sworn to maintain and keep the assizes of the forest, and to view, receive, and inrol the attachments and presentments of all manner of trespasses of vert and venison in the forest. Manwood, c. 6, s. 5.

See also title VERT.

VENDORS AND PURCHASERS-contd. Thornhill, 2 W. Bl. 1078; Hopkins v. Grazebrook, 6 B. & C. 31). The duties of such a vendor are now regulated in all material points by the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 2, and incidentally also by the other sections of that Act, relative to Abstracts of Title, Sales by Trustees, Protection of Legal Estate, and Tacking. On the other hand, the vendor of personal property (not being chattels real), comes under no such liability, unless he expressly chooses to warrant the title of the thing sold, the general maxim of the Common Law in the case of sales of personal property being caveat emptor (Morley v. Attenborough, 3 Ex. 500). * Usually, upon a purchase, the risk of the thing purchased attaches to the purchaser, as from the moment that the sale is complete (Tarling v. Baxter, Tud. L. C. Mer. Law, 596). See title Sale with reference to sales of personal property, and the following titles with reference to sales of real property (including leaseholds or chattels real), viz., ABSTRACT OF TITLE; CONVEYANCE; FRAUD; and for VENDOR'S LIEN-see title TRUSTS.

VENIRE FACIAS, A judicial writ which used to be directed to the sheriff of the county in which a cause was going to be tried, commanding him to cause a jury of twelve men to come from the body of his county to try the issue between the litigating parties. The writ has been abolished by the C. L. P. Act, 1852, s. 104.

See title JURY. VENIRE DE NOVO. A fresh or new venire, which the Court grants when there has been some impropriety or irregularity in returning the jury, or where the verdict is so imperfect or ambiguous that no judgment can be given on it (2 Arch. Pract. 1549; Smith's Action at Law, 173). In all cases where this trial de novo is grantable, the Court is bound to grant it as of right, and without being shackled with any restrictive or other condition.

VENTER (the belly). Is used in law as designating the maternal parentage of children. Thus, wliere ordinary phraseology, we should say that A. was B.'s child by his first wife, he would be described in law as “by the first venter;" similarly, we may say, “ A. died seised, leaving two iufant daughters by different venters.” Doe d. Barnett v. Keen, 7 T. R. 886.

VENUE. The county in which an action is intended to be tried, and from the body of which the jurors are accordingly to be sumuoned, is so called. This county, or renue, as it is termed, when fixed upon and determined by the plaintiil, is always inserted in the margin of his de

VERDICT. A verdict is the unanimous judgment or opinion of the jury on the point or issue submitted to them. A verdict is either general or special. It is said to be general when it is delivered in general words with the issue; as if the issue be on a plea of not guilty, then a general verdict would be that the defendant is guilty, or is not guilty, as the caso may be. It is said to be special when the jury instead of finding the negative or affirmative of the issue, as in the case of a general verdict, declare that all the facts of the case as disclosed upon the evidence before them, are in their opinion proved, or, in other words, find the special facts of the

case, but that they are ignorant in point of law on which side they ought, upon these facts, to find the issue; that if upon the whole matter the Court shall be of opinion that the issue is proved for the plaintiff

, they find for the plaintiff accordingly, and assess the damages at such a sum, &c. : but if the Court are of an opposite opinion, then rice versa. This special verdict is then, together with the whole proceedings on the trial, entered on record ; and the question of law arising on the facts found is argued before the Court in banc, and decided by that Court as in case of demurrer. A verdict is called a privy verdict when the judge bas left or adjourned the Court; and the jury being agreed, in order to be delivered from their continement, obtain leave to give their verdict privily to the ge out of Court, which privy verdict, however, is of no force, unless afterwards affirmed by a public verdict given openly in Court. Boote's Suit at Law, 273; Steph. Pl, 100; Sm. Act. at Law, 159.

VERGE (virga, rod). The Court of the Marshalsea had jurisdiction within the verge of the Court, which, in this respect, extended for twelve miles round the king's place of residence. The word “verge” is also used to signify a rod or stick by which one is admitted tenant to a copyhold estate, by holding it in one's hand and swearing fealty to the lord of the manor. Old Nat. Brev. 17.

VERIFICATION. Is a certain formula with which all pleadings containing new affirmative matter must conclude. It is in itself an averment that the party pleading is ready to establish the truth of what he has set forth. It is either common or special. The common verification runs in the following form: “And this the plaintitf [or defendant] is ready to verify.” A special verification is used only when the matter pleaded is to be tried by record, or hy some other method than the ordinary mode of trial by jury; and in the case of a trial by the record would be in the following form : “And this the plaintiff [or defendant] is ready to verify by the said record.” When new matter is introduced into a pleading, it must always conclude with a verification. Steph. Pl. 479; Finch's Law, 359.

See also title Er Hoc PARATUS EST

VERIFICARE. VERT (Fr. green). In general signifies everything that grows and bears green leaf within the forest. There are two sorts of vert in every forest, viz., over vert and neather vert. Over vert, sometimes also called hault-boys, is all manner of great wood, as well such as bear fruit as do not. Old ash and holly trees are accounted over vert. Neather vert, sometimes also called south-boys, comprises all kinds of underwood, bushes, thorns, gorse, and such like. Whether fern and heath are included under the term “neather vert,'' seems doubtful. Manwood argues that they are not; Fleetwood and Hesket maintain the contrary opinion. The vert which grows in the king's demesne woods is termed special vert. From this word“ vert” is derived the word “verderor." See Harewood, c. 6, ss. 2,

VESTED INTEREST -continued. mainder itself, ex vi termini, can only be enjoyed in futuro, yet a present, immediate, and disposable interest, as remainderman, is at once conveyed, and therefore the remainder is called a vested remainder. A vested interest is not necessarily an unconditional interest; on the contrary, it is frequently qualified by some condition, being, however, a condition which does not extend to delay the vesting of the interest.

VESTED LEGACY. A legacy is said to be vested when the words of the testator making the bequest convey a transmissible interest, whether preseut or future, to the legatee in the legacy. Thus a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy, because it is given unconditionally and absolutely, and therefore vests an immediate interest in the legatee, of which the enjoyment only is deferred or postponed ; and if such legatee die before that age, his representatives shall receive it out of the testator's personal estate at the time that it would have become payable liad the legatee himself lived. But if the legacy were given when or if tlie legntee attain a certain age, it would not be vested, i.e., transmissible, until that age; and if the legatee were to die before that age, the legacy would fail to take effect, and his representatives could make no claim to it. For in this case the bequest is a kind of conditional one, depending upon the happening of a certain event, viz., the legatee's attaining the specified age. See Boraston's Case, Paulett v. Paulett, Stapleton v. Cheales, and Hansom v. Graham, Tud. L. C. Cony.

VIAGÈRE, RENTE. In French Law is a rent-charge or annuity payable for the life of the annuitant.

VICAR (vicarius). The priest or parson of every parish is termed a rector, unless the predial tithes be appropriated, and then he is called a vicar, that is, lias the part of a vice-rector. The distinction, therefore, between a parson and vicar is this, that the parson has for the most part the whole right to all the ecclesiastical dues in his parish ; but a vicar has generally an appropriator over him, entitled to the best part of the profits, and to whom he is in effect perpetual curate, with a standing salary. Cowel; Wms. Real Prop. 330, 8th ed.

VICAR-GENERAL. Is an ecclesiastical officer in each diocese, appointed by, and acting under, the authority of the bishop. He formerly was only occasionally constituted during the bishop's absenco from his

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An interest, property, or estate, whether in possession or not, which is not subject to any condition precedent and unperformed. The interest may be either a present and immediate interest, or it may be a future but uncontingent, and therefore transmissible, interest, an interest which is contingent not being transmissible at all. Thus a vested remainder is that description of remainder by the creation of which a present interest passes to the party; and though the re


VICAR-GENERAL-continued. diocese; but now he is the perpetual representative of the bishop in certain matters, such as the granting of licences, &c., where there is nothing of contention or litigation between the parties. He appears to have no criminal jurisdiction, and therefore cannot inquire, in the place of the bishop, into such offences as quarrelling, brawling, or smiting, &c. Roger's Ecc. Law, 143, 144; Gibs. Introd. 23; Thorpe v. Mansel, 1 Hag. Con. 4, in notis.

VICARIAL TITHES. Those tithes to which vicars are entitled, and which are generally called privy or small tithes.

See title TITHES. VICINAGE (from the Fr. voisinage, neighbourhood). Common because of vicinage or neighbourhood, signifies the right exercised by the inhabitants of two townships which lie coutiguous to each other, of intercommoning one with another; the beasts of the one straying mutually into the other's fields without any molestation from either.

See title COMMON. VIDELICET, SCILICET. The words to wit, or, that is to say, so frequently used in pleading, are technically called the videlicet, or scilicet; and when any fuct alleged in pleadling is preceded by, or accompanied with, these words, such fact is, in the language of the law, said to be laid under a videlicet. The use of the videlicet, or scilicet, is to point out, particularise, or render more specific that which has been previously stated in general language only ; also to explain that which is doubtful or obscure. It has been called by Lord Hobart a “handmaiden to another clause." Where the scilicet is contrary to the preceding general statement it may be rejected (Dakin's Cuse, 2 Wms. Saund. 678). But a videlicet, or scilicet, which is not so contrary, and which is not mere surplusage, cannot be rejected as immaterial, but may be traversed like any other averment. See notes to Dakin's Cuse, supra.

VIEW. In real actions a defendant might have demanded a view, that is, a sight of the thing, in order to ascertain its identity and other circumstances. As if a real action were brought against a tenant, and such tenant did not exactly know what land it was that the demandant asked, then he might have prayed the view, which was that he might see the land which the demandant claimed (F. N. B. 178). And now generally under the C. L. P. Act, 1854, s. 58, an inspection of real or personal property may be had or made whenever it would be conducive to the right decision of a ciasc.

VIEW OF FRANKPLEDGE. The office which the sheriff in his County Court, or the bailiff in his hundred, performed in looking to the king's peace, and seeing that every man was of some pledge.

See title FRANKPLEDGE, VIEW OF AN INQUEST. Is a view or inspection taken by a jury, summoned upon an inquisition or inquest, of the place or property to which the inquisition or inquiry refers.

See title VIEW.

A writ that lies where two persons contend for a church, and one of them enters into it with a great number of laymen, and keeps out the other vi et armis ; then he who is so kept out shall have this writ directed to the sheriff, by virtue of which he shall remove such lay force. But the sheriff must not remove the incumbent out of the church, whether he is rightfully there or not, but only the force, or laymen, that accompanied him. Les Termes de la Ley ; Cunningham.

VILL. Seems to bear the same signification in law as a town or tithing, and each of them is said to have had originally a church, and celebration of divine service, sacraments, and burials; though this seems to be rather an ecclesiastical than a civil distinction, and hence it is that the word " vill ” has by some writers been described as a parish or a manor. It appears to have some different siguifications, but its more ordinary meaning was that of a town; and the Statute of Exeter (14 Elw. 1) so uses it in making frequent mention of vills, demi-vills, and hamlets. Sir Henry Spelman conjectures entire vills to have consisted of ten freemen or frankpledges (hence tithing), and demi-vills of five. Co. Litt. 115 b.; stat. 14 Edw. 1; Spel. Gloss. 274; 1 Inst. 115; Bract. lib. 4, c. 31. VILLAINS, or VILLEINS.

Were a sort of people under the Saxon government in a condition of downright servitude, who were used and employed in the most servile works, and are even said to have belonged to the lord of the soil, like the cattle or stock upon it. They seem to have been those who held what is termed the folk-land, from which they were removeable at the lord's pleasure. These villeins, belonging principally to lords of manors, were either villeins regarlant, that is, annexed to the manor or land, or else they were villeins in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another, either apart from, or with, the land. The tenure by which villeins held

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