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VILLAINS, OR VILLEINS —continued. their land, and their condition in general, was termed “villenage.” Cowel; Les Termes de la Ley.
See title VilleŅAGE. VILLANIS REGIS SUBTRACTIS REDUCENDIS. A writ that lay for the restoring the king's bondmen who had been carried away by others out of his manors to which they belonged. Reg. Orig. 87; Cowel. VILLANOUS JUDGMENT.
Such a judgment as threw the reproach of villany and shame on those against whom it was given, and by which they were discredited and disabled as jurors or witnesses; forfeited their goods, and chattels, and lands, for life; had their lands wasted, their houses razed, their trees rooted up, and their bodies committed to prison (1 Hawk. P. C. 193 ; Lamb. Eiren.). A judgment in attaint against unjust jurors had these effects, and was, therefore, a villanous judgment.
See titles ATTAINT; JURORS, IMMUNITY
VIRTUTE CUJUS—continued. That part of the declaration in an action which, after setting forth the various grievances complained of, proceeds to point out the injurious results which have flowed therefrom, is frequently technically spoken of as the “ virtute cujus," from the words employed therein, which are," by reason whereof." Thus, in an action for diverting water from the plaintiff's mill, the declaration, after stating the plaintiff's right to the water, and particularising the injurious act complained of, proceeds to point out the injury which the plaintiff has sustained in consequence, in the following manner: “and the plaintiff, by reason of the premises," had been prevented from working his said mill in so beneficial a manner as he heretofore has, and otherwise could and would have done, &c. &c. See Doctr. Pl. 351: 11 Rep. 105; Steph. Pl. 221, 5th edit.
VISITATION. The office performed by the bishop of every diocese once in every three years, or by the archdeacon once in every year, of visiting the churches and their rectors. These visitations were instituted for the purpose of correcting any abuses or irregularities that might arise therein; and the persons who perform such visits are termed the visitors (Cowel). Most, if not all, of the colleges at Oxford and Cambridge have their visitors. VIVA VOCE.
As applied to examinations of witnesses and generally, this phrase is equivalent to oral; it is used in contradistinction to evidence on affidarits.
VOIDANCE: See AVOIDANCE.
VOIR DIRE (see him speak). This phrase is applied to denote that preliminary examination which the judge makes of one presented as a witness, where the witness's competency is objected to. If the witness is a child of very tender years, the judge will examine him on the voir dire, to test his knowledge of the sacredness of an oath. If the result of such preliminary examination supports the objection to incompetency, then the witness will be rejected; but in the general caso the judge inclines to allow the competency, leaving the objection to go to the credibility merely. The examination on the voir dire may be made at any stage of the trial, whenever the occasion for it arises.
VOLUMUS. The first word of a clauso in the king's writs of protection and letters patent. Cowel.
See titles PROTECTION; PATENT. VOLUNTARY CURTESY A voluntary act of kindness. An act of kindness performed by one man towards another, of
VILLENAGE. This was the species of slavery or serfdom in which villeins lived ; for the varieties of whom see title VILLAINS. It was a state of society recognised by the law, but which, from various circumstances favouring liberty, has entirely disappeared out of England; the latest cases on the subject being Crouch's Case (9 & 10 Eliz.), and Pigg v. Caley (15 Jac. 1); and according to the genius of the English constitution, as explained by Mr. Hargreaves in his argument in Somersett's Case, no new slavery can be introduced into England. So jealous, indeed, was the law of any such new form of it, that it was at one time doubted whether a contract of service, intended to last during the life of the servant, was legal; a question decided in favour of the legality of it in Wallis v. Day (2 M. & W. 273 (1837)). A slave who is for one moment introduced by his master on English territory is, therefore, absolutely free (Somersett's Case, 20 St. Tr. 1), nor may his owner carry him by force out of the country (Magna Charta and Habeas Corpus Act); although if the slave of his own accord return with his master to the slave country, his slavery at once re-attaches. The Slave Grace, 2 Ilagg. Adm. 94.
VINCULO MATRIMONII, DIVORCE À. A divorce from the bond of matrimony.
See title DIVORCE. VIOLENT PRESUMPTION : See title PRESUMPTION.
VIRTUTE CUJUS (by reason whereof).
VOLUNTARY CURTESY- continued.
VOTES AND PROCEEDINGScontd. the free will and inclination of the doer, these “ votes and proceedings” the journals without any previous request or promise of the House are subsequently prepared, of reward made or offered by him who is by making the entries at greater length; the object of the curtesy. From such a but in neither is any notice taken of the voluntary act of kindness the law implies speeches of a debate. no promise on the part of him who is benefited by such act that he will make any remuneration or return for the same;
W. for if it were otherwise, one man might impose a legal obligation upon another
WADSET. A Scotch term for mortagainst his will. If, however, the curtesy or act of kindness was performed at the
gage. instance or request of the party benefited, WAGER OF BATTLE.
This was a then the law implies a promise on the part mode of trial, as to the meaning of which, of the latter to make a remuneration or
see title BATTLE. It was abolished in return for such act. Hence the meaning writs of right by the 59 Geo. 3, c. 46; and of the phrases, that a “ voluntary curtesy as the same statute abolished also appeals will not support an assumpsit,” but that
of murder, of treason, and of felony, this " a curtesy moved by a previous request mode of trial may be considered to have will." See Lampleigh v. Braithwait, Hob. been then abolished altogether. 105; 1 Smith's Leading Cases, 139; 3 Bos. & P. 250, in notis ; Durnford v. Messiter,
WAGER OF LAW This was a species 5 M. & S. 446.
of “ decisory oath" taken by the defendant See title CONTRACTS.
to an action on a simple contract, and in
some few other actions, not being on VOLUNTARY JURISDICTION. Those
specialties. The defendant swore in Court, Courts are said to have a voluntary juris- in the presence of eleven compurgators, diction which are merely concerned in that he owed the plaintiff nothing, or that doing or settling what no one opposes, and he did not detain the plaintiff's goods, and which keep an open office for that pur- the eleven swore that they believed his pose (as granting dispensations, licences, oath to be true. This mode of trial was faculties, and other remnants of the papal only admissible in the absence of all evijurisdiction), but do not concern them- dence; the Court would rather discharge selves with administering redress for any the defendant on his oath than charge him injury.
on the plaintiff's uncorroborated oath. VOLUNTARY OATHS are such as per
Wager of law was abolished by 3 & 4
Will. 4, c. 42, s. 13. sons take in extra-judicial matters, and not regularly in a Court of Justice, or before
WAGERING. By the stat. 8 & 9 Vict. an oflicer invested with authority to take
b. 109, all contracts or agreements, whether the same.
by parol or in writing, by way of gaming VOLUNTEERS. For the military use or wagering are declared null and void; of this word, see title ARMY; and consult and no action or suit is maintainable for stat. 26 & 27 Vict. c. 65. In the language recovering any sum of money or other of Equity, it denotes a person becoming en
valuable article alleged to be won upon any titled to property ex causâ lucrativâ (i.e., wager, or which has been deposited in the without giving any payment or other con- hands of any person to abide the event of sideration for the same), and in that sense the wager. And by the stat. 16 & 17 Vict. is opposed to a purchaser for value.
c. 119 (extended to Scotland, and generally See also title TRUSTS.
rendered more rigorous, by the Betting Act,
1874, 37 & 38 Vict. c. 15) a penalty is VOTES AND PROCEEDINGS. In the imposed upon persons being the occupiers Houses of Parliament the clerks at the or owners of betting-houses, and who retable make brief entries of all that is ceive money to abide the event of any actually done; and these minutes, which wager, or who advertise advice on races, are printed from day to day for the use of subject to certain exceptions mentioned members, are called the “ Votes and Pro- in the Act. Those statutes have produced ceedings of Parliament.” The votes and an alteration in the Common Law; for proceedings of the House of Commons are by the Common Law an action might have published by the Speaker's authority, and bien maintained on a wager, strictly so sold to the public as well as distributed called, if it was not against the interests among the members themselves; but those or the feelings of third persons, and did not of the House of Lords are not published lead to indecent evidence, and was not connor sold, although they can be obtained as trary to public policy. Thackoorseydass v. a favour by persous desiring them. From Dhondmull, 4 Moo. Ind. App. 339.
WAGES. The payments made to servants and workmen are so called.
See titles LABOURER; SERVANT,
WAIFS. If a felon, in his endeavours to escape pursuit, waived, i.e., threw away, the goods stolen, then the king's officers (or the lord's bailiff) might have seized the goods to the king's (or the lord's) use, and keep them as a punishment upon the trne owner, if he did not prosecute the thief within a year and a day, or at least give evidence against him leading to his conviction; but such owner, if he was a foreign merchant, i.e., a stranger to our laws, was not so punished. Waifs are to be distinguished from bona fugitiva, which are the goods of the felon himself, which he abandons in his flight from justice.
See title FUGITIVE'S GOODS.
A cart or wag. gon, with its equipments The law ex. cmpted the labourer's wainage from being taken for debt (see Magna CHARTA); and many similar exceptions, suited to modern society, are afforded by our law to the honest but unfortunate debtor. See Simpson v. Hartopp (1 Sm. L. C. 385), as to what things are privileged from distress; and see also the provisions of the Bankruptcy Act, 1869, as to the clothes and bedding of the bankrupt, and of his wife and family.
WAIVER. This word is commonly used to denote the declining to take advantage of an irregularity in legal proceedings or of a forfeiture incurred through breach of covenants in a lease. A gift of goods may be waived by a disagreement to accept; and then it is no gift. See Hill v. Wilson (L. R. 8 Ch. 888), for a modern application of this doctrine. So, also, a plaintiff may commonly sue in contract, wairing the tort. But the doctrine of waiver is chiefly valuable in connection with covenants in leases; and in this use of it waiver is commonly said to be of two sorts, namely, (1.) Implied waiver, and (2.) Actual waiver. With reference to the first kind of waiver, a receipt of rent by a landlord after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implieil waiver of his right of entry for that particular breach (Co. Litt 211, s. 6); and with reference to the second kind of waiver, if a landlord, in express terms, waived his right of re-entry on the ground of the breach for that once, he was considered in law to have waived it also for all subsequent breaches of the same covenant; but by the stat. 22 & 23 Vict. c. 35, s. 6, the ett'oct of an actual waiver is now reduced in this respicct to that of an implied, which is the most ordinary kind of waiver.
WALES. It appears that England and Wales were originally but one country; and that even after Wales had princes of its own, the kings of England exercised a superiority over them. King Edward I., in the twenty-eighth year of his reign, annexed the marches of Wales perpetually to the Crown of England; and the annexation was completed by the 27 Hen. 8, c. 26. By the subsequent stat. 34 & 35 Hen. 8, c. 26, Wales was divided into twelve counties, a president and council appointed for the Principality, and two justices were to be assigned to hold a session twice every year. By the 1 Wm. & M. st. 1, c. 27, the Court of the President and Council was abolished, and the process of the Courts at Westminster was partially extended to Wales. And now by 20 Geo. 2, c. 42, s. Act of Parliament, the word “ England” is made to include Wales and Berwick-onTweed as well as England proper; and by 11 Geo. 4 & 1 Will. 4, c. 70, the process of the Courts at Westminster was made the exclusive process in Wales, aud the circuits of North and South Wales were established.
WAPENTAKE A local division of the country; the name is in use north of the Trent to denote a hundred. The derivation of the name is said to be from weapon and take, and indicates that the division was originally of a military character.
WAR: See titles ARMY AND NAVY; MiLITIA ; VOLUNTEERS.
WARD. A division in the city of London committed to the special ward, i.e., guardianship, of an alderman. The name also denotes a prison or division thereof, All infants are likewise denominated wards, as to whom see title INFANTS.
WARDEN. A keeper, e.g., the Warden of the Cinque Ports, the Warden of the Stannaries, and the Warden of the Fleet Prison.
WARD-MOTE. The Court of the division of the City of London which is called a " ward.”
WARDS, COURT OF. This was a Court established by Henry VIII., and to which he afterwards added the office of liveries (32 Hen. 8, c. 46). The Court was abolishel by 12 Car. 2, c. 24, along with the military tenures.
WAREHOUSING SYSTEM. tem, called also the Bonded Warehouse, or Bonding, System, is that by which goods imported are allowed to be deposited in public warehouses at a reasonable rent without payment of the duties on importation if they are re-exported; or if they are afterwards withdrawn for home consun p
This sysWAREHOUSING SYSTEM—continued. tion, without payment of such duties until they are so withdrawn. The principal statutes regulative of the matter are, the stat. 43 Geo. 3, c. 132, whereby the system was first established, the consolidation stat. 3 & 4 Will. 4, c. 57, and the recent stats. 23 & 24 Vict. c. 36, and 32 & 33 Vict. c. 103, called the Customs and Excise Warehousing Act, 1869.
WARRANT. A precept under hand and seal to an officer to take up an offender, to be dealt with according to due course of law.
See title CONSTABLE, WARRANT OF ATTORNEY: See title POWER OF ATTORNEY.
WARRANTIA CHARTÆ. A writ which Jay for a man who was enfeoffed of lands with warranty, and who being afterwards sued or impleaded in assize or other actions in which he could not vouch to warranty, was permitted by means of this writ to compel the feoffor, or his heirs, to warrant the land to him ; and if that writ were obtained by the feoffee pending the first writ against him, then in case the land were recovered from him, he should recover as much lands in value against the warrantor (F. N. B. 131; Les Termes de la Ley, 372, 588). The writ was abolished by 3 & 4 Will. 4, c. 27, s. 36.
WARRANTY. This word applies both to real and to personal property.
I. As applied to real property—it is a covenant, i.e., a promise by deed, by the grantor for himself and his heirs to warrant, i.e., secure, the grantee and his heirs in the thing granted against all the world. The benefit of such a warranty appeared when it was attempted to evict the grantee of the lands, who thereupon either vouched his warrantor, or obtained judgment in a writ of warrantia chartæ against him to defend his title, or else to recompense him with other lands of equal value.
Warranty was either implied or express. By the old law, every feudal grant, by the word “ dedi,” involved or implied a warranty ; but in other modes of grant of a more recent origin an express clause of warranty was required.
A warranty bound not only the warrantor himself but also his heirs, and it ma le no difference whether the warranty was lineal or collateral, that is to say, whether the heirs had or not derived, or might or not by possibility have derived, title from or through the warrantor. But the heir in either case was in theory bound only if he had received other sufficient lands or assets by descent from the warrantor, although both in lineal and in collateral warranty
WARRANTY-continued. he was in effect bound whether he had received such lands or not, inasmuch as the assets he should have recovered upon upsetting the warranty of his ancestor were regarded as assets by descent from his ancestor, and as such would be liable to make good his warranty. This was an evident abuse of a proper principle; and the abuse was corrected, -as to the warranties of tenants by the curtesy, by the stat. 6 Edw. 1, c. 3; and as to the warranties of tenants in dower, by the stat. 11 Hen. 7, 8. 20; and as to the warranties of tenants for life generally, by the stat. 4 & 5 Anne, c. 16; and last of all, as to the warranties of tenants in tail, by the stat. 3 & 4 Will. 4, c. 74, s. 14.
II. As applied to personal property-a Warranty may also be either express or implied. The better opinion is, that there is no implied warranty of title upon the sale of personal chattels, but there may, of course, be an express warranty of title. And neither is there any implied warranty of the goodness or soundness of the articles sold, but there may of course be an express warranty to that effect; and there is an implied warranty that the goods sold are fairly merchantable, or will fairly answer the purpose for which they are known to be bought, e.g., that provisions are whole
The custom of trade may also give rise to an implied warranty of goodness, e.g., where goods are bought and sold by sample (2 East, 314). A general warranty does not extend to obvious defects, e.g., to the want of the tail in a horse that is warranted perfect. Dig. 18, 1, 43, s. 1; 1 Salk. 211.
A warranty differs from a misrepresentation (whether fraudulent or innocent) in that a warranty must always be given contemporaneously with and as part of the contract, whereas a misrepresentation precedes and induces to the contract. And while that is their difference in nature, their difference in consequence or effect is this: that upon breach of warranty (or false warranty), the contract remains binding and damages only are recoverable for the breach; whereas upon a false representation the defrauded party may elect to avoid the contract, and recover the cntire price paid.
See title Frald; and next title.
WARRANTY, BREACH OF. This must be distinguished from misrepresentation. For the warrantor is liable for damages for breach of warranty whether he knew or did not know that the thing sold was imperfect, when as for a misrepresentation ho would only be liable if he knew it was falso when he made it.
WARRANTY, BREACH OF-contd. The remedy for a breach of warranty differs also from the remedy for a misrepresentation. Thus, on breach of warranty the purchaser is not entitled to return the article and get back his money; at the most he can only obtain damages which will go in part reduction of the price. On the other hand, in case of a misrepresentation the purchaser is entitled to send back the article and have his money returned to him.
A warranty may be either express or implied(1.) Express, where given in so many
words at the time of the pur
chase; (2.) Implied, where the purpose for
which' the article is bought is known to the seller.
WASTE. This word, which is derived from rastum, denotes that havoc or devastation which arises from exceeding the right of user. The word is, therefore, applicable only to persons having limited interests or estates in lands, e.g., tenant for life, or pur autre vie, tenant in dower, and tenant by the curtesy; and it is inapplicable, as a general rule, to tenants in fee tail or in fee simple.
By the Common Law waste was punishable in the cases only of tenants for life who were such by operation of law, namely, tenant in dower and tenant by the curtesy; but by the Statute of Marlbridge(52 Hen.3), c. 23, it was made punishable in the cases also of tenants for life, or pur autre vie, or for years, who were tenants by the creation of the parties or of the settlor. Furthermore, the Courts of Equity have long interfered to remedy waste in cases in which the Courts of Law were powerless to interfere ; and there has grown up accordingly a distinction of waste into legul on the one hand, being such as Law can restrain; and equitable on the other hand, being such as Equity alone can restrain. However, by the Judicature Act, 1873, this distinction appears to be abolished, in part at least (36 & 37 Vict. c. 66, s. 25, sub-s. 3), if not also in whole (sub-s. 11), as from the 2nd of November, 1875.
While the distinction before mentioned subsisted, the divisions and sub-divisions of waste were the following :(1.) Legal waste, being either
(a.) Voluntary waste; or
(v.) Permissive waste; and (2.) Equitable waste, which was in all cases voluntary, and so is described as equitable waste only.
(1 a.) Voluntary legal wasto consisted in the following particulars: pulling down houses, pulling down wainscots, doors,
WASTE - continued. windows, furnaces, and other such fixtures, causing timber trees to decay, stubbing up underwood, cutting down fruit-trees in an orchard, cutting down trees which shelter the mansion; also, opening new gravel pits, lime pits, clay pits, &c., or new mines of metal, coal, or the like; also the conversion of old meadow land into arable, or of arable into plantation, or the like ; and even ploughing up a rabbit warren (Angerstein v. Hunt, 6 Ves. 488), or reclaiming deer in a park. Ford v. Tynte, 2 J. & H. 153.
(16.) Permissive legal waste consisted in suffering houses to get into decay; but the Courts have ceased to give any remedy or assistance in such cases (Warren v. Rudall, 1 J. & H. 1, 13), notwithstanding the same are generally considered to have been comprised in the Statute of Gloucester,
Edw. 1, c. 5.
(2.) Equitable waste consisted in “malicious, extravagant, or humorsome” acts of destruction on the part of a tenant who was not impeachable for waste at law, e.g., where a tenant for life without impeachment of waste, pulls down or dismantles the mansion-house (Vane v. Lord Barnard, 2 Vern. 738), or pulls down farm-houses (Aston v. Aston, 1 Ves. 265), or totally destroys a plantation (Id.), or fells ornamental timber (Rolt v. Lord Somerville, 2 Eq. Ca. Abr. 759); or, again, where a tenant in tail after possibility of issue extinct commits the like acts of waste (Att.-Gen. v. Duke of Marlborough, 3 Madd. 538): or, again, where a devisce in fee simple with an executory devise over on his death without leaving issue, or on any other event, does the like acts of waste (Turner v. Wright, 1 Johns. 740); or, again, where a tenant in possession under a disputed title does the like acts of waste. Earl Talbot v. Hope Scott, 4 K. & J. 96.
Procedure in cases of waste: The legal remedy for waste used to be either a writ of waste (which, however, was abolished by 3 & 4 Will. 4, c. 27, s. 36), or an action on the case; and at the present day the legal remedy is an action on the case, in which action an injunction may also be obtained. But the cquitable remedy, which was and is by bill, was and is more generally resorted to; and Equity, which until 1851, had exclusive jurisdiction by injunction used to interfere, and also still interferes, in the three following groups of cases :
(1.) Where a remainderman for life intervenes in the order of the limitations between the tenant who commits the waste and the owner of the inheritance in remainder or reversion (Tracy v. Tracy, 1 Vern, 23);