Obrazy na stronie

WASTE- continued.

WAYS-continued. (2.) Where the tenant for life who com- A public way need not be a thoronylimits the waste is in collusion with the fare ; nor is a thoroughfare of necessity a remainderman in fee to the prejudice of public way. an intervening contingent remainderman The dedication of a public way is readily (Garth v. Cotton, 1 Ves. 516); and

presurned from user as such, e.g., from cirlit (3.) Where the waste is equitable as op- or six years' user. But á highway may post'd to legal.

also exist by virtue of an express graut. And see titles EQUITABLE WASTE ; It most commonly exists in virtue of somo LEGAL WASTE.

Act of Parliament.

With reference to the repair of highways, WATCH. Watching is properly for the

the whole parish is of common right bound apprehending of rogues in the night, as

to repair all the roads of the parish, and warding is for the day; for default of watch

the whole county all the roads of the or ward the township may be punished.

county. And this liability continues, See also title POLICE.

although some particular person or persons WATER-BAILIFF. An officer in port

may be liable in the first instance to make towns for the searching of ships. In the the repairs. Such particular person or perCity of London he has the supervising of

sons may be bound to repair a highway tish brought thither, the gathering of the cither by reason of prescription or by rcatoll arising from the Thames, and the arrest son of inclosure. The prescriptive duty to of men for de bt, or other personal or criminal repair is often called the liability to repair matters, on that river.

ratione tenuræ. The liability by re tsol of

inclosure arises when the owner of unenWATER AND WATERCOURSE : See

closed lands adjoining the highway encloses title EASEMENTS.

them, and thereby prevents the public going WATERMEN. These are cight over

on the lands enclosed when the road is

bad. seers elected annually by the Lord Mayor and Court of Aldermen of the City of Lon

Anything whereby the public are incomdon to exercise supervision over all wherry

moded in their use of the highway is a me n, watermen, and lightermen upon the

nuisance to it, e.g., the foulness of the adRiver Thames between Gravesend and

joiuing ditches, the overhanging of boughs, Windsor. Their duties were latterly regu

&c., whence the adjoining owner is bound to lated by the Consolidation Act (7 & 8

scour his ditches, and also to lop his trecs Geo. 4, č. 75); but the matter is now to

adjoining the highway. Every unautho. some extent regulated by the recent stat.

rized obstruction of a highway is an indict27 & 28 Vict. c. 113.

able offence.

Any one may justify in pulling down or .WAYS. Ways are of four principal abating a common nuisance, e.g., in demolvarieties, namely

ishing a gate erected in a common highway. (1.) Iter, i.e., a footway ;

The whole law of high ways is now prin(2.) Actus, i.e., a horse and footway,called cipally regulated by statute; sce 5 & 6 also a packway;

Will. 4, c. 50; 25 & 26 Vict. c. 61, aud 27 (3.) Via, i.e., a curt way (including foot & 28 Vict. c. 101. and horseway); and

With reference to private ways, sec (1.) A driftway (prolnbly included in

title EASEMENTS. Roman Law under the terms actus but being excluded therefrom in WEAR. A great dam made across a English Law), i.e., a way for river, accommodated for the taking of fish, driving cattle.

or to convey a stream to a mill. Ways are cither public or private, the former being open to all the king's subjects, WEIGHTS. There aro two sorts of the latter being open to the inhabitants of weight in use, viz., troy weight and avoira particular parish, village, or house only; dupois, the former containing 12 oz. and the a public way is also commonly called a latter 16 oz. to the pound. highway.

See title MEASURES. It is commonly said that every highway is the king's; but this means that the WERGILD. This was the price of king and his subjects have at all times the homicide, or other atrocious personal ofright to pass and repass only at their plca- fence, paid partly to the king for the loss sure; for the freehold and all the profits of a subject, partly to the lord for the loss thereof belong to the lord of the soil (2 of a vassal, and partly to the next of kin of lust. 705), being in general the adjoining tho injured person. In the Anglo-Saxon owner, who therefore may bring trespass laws the aniount of compensation varied for digging in the highway. i Burr. 113. with the degree or rank of the party slain.


WHIPPING. This is a punishment which may or may not accompany sentences of imprisonment in most cases; as to females, it was abolished by 1 Geo. 4, c. 51.

WIDOW : See titles DoWER and Next OF Kin.

The king's widow was she who, after her husband's death being the king's tenant in capite, could not marry again without the king's consent.


WILLS. For the growth of the power
of alienation by devise, see ALIENATION
The whole law of wills has been digested
in a single Act, viz , the New Wills Act
(7 Will. 4 & 1 Vict. c. 26), the short
contents of which Act are as follows:-
I. As to the property devisable or be-

queathable :
All real estates (whether legal or

equitable) that are descendible,
whether then already possessed

or afterwards acquired;
All customary or copyhold estates

(whether legal or equitable)
that are descendible, whether
then already possessed or after-

wards acquired ;
All estates pur autre vie ;
All personal estate;
All contingent, reversionary, and

future interests in real or per-
sonal estate, whether already

created or not;
All rights of entry.
II. As to the capacity of testators:
(1.) Persons under twenty-one years

have no such capacity, even for
the purpose of exercising a
power expressed to be exercise-
able during minority, and the
subsequent attainment of
. twenty-one years will not vali-
date the will (Sugd. R. P.

Stat. 330);
(2.) Married women have a limited

capacity, that is to say, to the
extent of exercising any power
over real or personal estate, or
to the extent that their hus-
bands authorize them to dis-
pose of their personal estate, or
to the extent of property (real
or personal) settled to their
separate use.

Thomas v. Jones,
2 J. & H. 475.
III. As to the formal requisites of wills:
(1.) Writing; whether in ink or in

pencil (Gregory v. Queen's Proc-
tor, 4 No. Ca. 623; Bateman

. Pennington, 3 Moo. P. C.
227); and whether or not in
testamentary form (Thorncroft


v. Lashman, 2 Sw. & Tr. 479); and the writing of the will may, by reference, incorporate other thien existing documents (Allen

v. Maddock, 11 Moo. P.C. 427); (2.) Signature by testator, îr by sme

other person by his direction and in his presence, at the foot of the will (15 & 16 Vict. c. 21); the testator's mark is a sufficient signature, whether he can or cannot write, even though his name is not affixed to the mark (Re Bryce, 2 Cur. 325); and even

an impressed facsimile is sufficient (Jenkins v. Saisford, 3 Sw:& Tr. 93); and siguature by initials is good (Re Wingrove, 15 Jur. 91); a witness may sign the testator's name for him (Re Bailey, 1

Cur. 914); (3.) Presence of two witnesses at one

and same time, being time that testator signs personally or by

proxy ; (4.) Attestation of witnesses in the

presence of the testator, although not necessarily in each other's presence, but no form of attestation is required (Bryan v. White, 2 Rob. 315); although the full attestation clause is useful, obviating the necessity of proof of the formalities of execution (Re Diaper, 3 N. R.

(5.) Subscription of witnesses in the

presence of the testator,although
not necessarily in each other's
presence; but the witness's
mark is a sufficient subscription
whether he can or cannot write
(Re Amiss, 2 Rob. 116); and a
subscription by initials is good
(Re Christian, 2 Rob. 110);
since the 20 & 21 Vict. c. 77,
8. 33, the execution of the will
may be proved by one only of
the attesting and subscribing
witnesses (Belbin v. Skeats, i

Sw. & Tr. 148);
(6.) In the special case of wills exe-

cuting powers, if the power is to be exercised by writing under seal, and a will is used for the purpose of executing it, the will must be sealed in addition to the observance of the formalities before mentioned (West v. Ray, Kay, 385); and generally all other extra formalities required by the donor of the power, not being forma


lities of axecution or of attestation, however whimsical, must be complied with, notwithstanding s. 10 of the Wills Act, which relates only

to execution and attestation ; (7.) No publication of a will is neces

sary, other than such publication as consists in the observance of the formalities before

mentioned, s. 13. IV. As to the capacity of witnesses : (1.) The incompetency of an attesting

witness is not to invalidate the will, whether such incompetency existed at the time of the testator's execution of the will or

at any time afterwards (s. 14); (2.) A gift, whether by devise or be

quest, to a witness, or to the then existing wife or husband of a witness, is not to affect the competency of the devisee or legatee as a witness (s. 15); but the gift is to be void, unless in

the case of a creditor (ss. 15,16); (3.) An executor of the will may be a

witness (s. 17). V. As to revocation of will: (1.) In the general case, and also in

the case where the will is in exercise of a power of appointment over property which would in default of appointment devolve upon the real or personal representatives of the donee of the power, the marriage of the testator, whether male or female, revokes the will, the marriage being a legal marriage (Re

Mette, 7 W. R. 513); (2.) In the case where the will is in

exercise of a power of appointment over property which would not in default of appointment devolve upon the real or personal representatives of the donce of the power, the marriage of the testator, whether male or female, does not revoke the will (Hauksley v. Barrow,

L. R. 1 P. & M. 147); (3.) Revocation by presumption is

abolished (s. 19); (4.) Revocation may also be by sub

sequent will or codicil, being well executed, and the testator acting on that assumption (Re

R. L., 29 L. T. 26); (5.) Revocation may also be by the

burning, tearing, or otherwise destroying the will, with the intention of thereby revoking it (Re Kennett, 2 N. R. 461);


and such burning, tearing, or other destruction may be either by the testator personally, or by any other person in his presence acting by his direction; such revocation may be in part only (Christmas v. Whinyates, 11 W. R. 371); but if the part cut out or destroyed is the signature of the testator, the revocation is of the whole will (Walker v. Armstrong, 4 W. R. 770); but the mere cancelling of the signature is nothing (Stephens v. Taprell, 2 Cur. 458); the codi. cil shares the fate of the will, in the absence of an intention that the codicil should operate substantively (Grimwood v. Cozens, 5 Šur. (N.S.) 497); where the will has been destroyed or lost sine animo revocandi, a copy of it will be admitted to probate (Brown v.

Brown, 8 El. & Bl. 886); (6.) Revocation may be partially

effected by means of interlineations, or by means of obliterations, or by means of other alterations generally, made in the will after execution, provided such interlineations, obliterations, or other alterations

are executed as a will (s. 21); (7.) Revocation by alteration of estate

is abolished (8. 23); (8.) A revoked will may be revived by

the re-execution of the will, or by a codicil duly executed with the intention of reviving it, (s. 22; Marsh v. Marsh, 35 L. T. 523); therefore a will revoked by a revoking instrument would not be revived by the revocation of the latter instrument. Major v. Williams, 3 Cur. 432; Wood

v. Wood, L. R. 1 P. & M. 309. VI. As to operation of will: (1.) With reference to the real and

personal estate comprised in it, a will operates from the death of the testator (s. 24); but that only in the absence of a con

trary intent; (2.) With reference to matters other

than the property comprised in it, a will operates from the date of the execution (Re Wollaston, 9 Jur. (N.S.) 727; Bullock v. Bennett, 7 De G. M. & G. 283; Trimmell v. Fell, 16 Beav. 539; Gibbins v. Eyden, L. R. 7 Eq. 371; Noble v. Willock, W. N. 1873, p. 124; 21 W. R. 711);

WILLS -- continued. (3.) With reference to lapsed and void

devises, these are includel in the residuary devise (if any)

(s. 25) (see LAPSE); (4.) With reference to the distinctions

of property in land, as being freehold, leasehold, copyhold, or customaryhold, a devise of lands generally is to include lands of all those four qualities, whether or not the testator has

also freehold lands; (5.) With reference to the distinction

between ownership and power of appointment, a general devise of real estate is to include real estate over which the testator has a general power of appointment; and it has been decided that a power may be exercised subsequently even to the date of the execution of the will, if the instrument which creates the power comes into operation in the testator's lifetimo (Stillman v. Weedon, 16 Sim. 261), but not when it comes into operation after his death (Jones V. Southull, 32

Beav. 31); (6.) In the absence of words of limi

tation, or of other words indicating a contrary intention, a beneticial devise is to pass the fee simple or other the whole estate of the testator (s. 28); and the same rule is extended to the case of devises to trustees (8.30); and the fee simple estates of trustees are not to be determinable upon the purposes of the trusts being satisfied (s.

31); (7.) An estate tail given to any de

visee who predeceases the testator, but leaves inheritable issue who survive the testator, is not to lapse, but to take effect in the predeceasing devisee

(s. 32) (see title LAPSE); (8.) A devise or bequest to any child

of the testator is to take effect in such child, notwithstanding he may die before the testator, provided any of his issue survive the testator (s. 33) (see title

LAPSE); (9.) The phrase "dying without issue,"

and like phrases, formerly construed to give an estate tail by implication, are deprived of

that effect (s. 29); and (10.) The Act is to extend to the wills

of all persons executed or re


publislıed on or after the 1st of

January, 1838. The stat. 1 Vict. c. 26, does not extend to aliens (Sugd. R. P. Stats. 331), nor to British subjects not domiciled in England (Bremer v. Freeman, 10 Moo. P. C. 306); but the latter restriction has been partially removed by the 24 & 25 Vict. c. 114, and the former restriction is now altogether removed by the Naturalization Act, 1870 (33 & 31 Vict. c. 11), s. 2, subject to the question of domicile.

See also titles DEVISES ; LEGACIES. WINDING-UP. This phrase menns simply squaring the accounts of a partnership or company with a view to the dissolution of the same. Usually, partnerships and companies are wound up only when they are in insolvent circumstances, and such winding-up is most commonly made under supervision of the Court of Chancery, which Court acts in the matter of the winding-up of companies under the provisions of the statutes 25 & 26 Vict. c. 89 (the Companies Act, 1862) and 30 & 31 Vict. c. 131 (the Companies Act, 1867). When an order has been made for thie compulsory winding-up of a company, and even in the case of a voluntary winding-up, the Court of Chancery will stay actions by creditors against the company (In re Keynsham Company, 33 Beav. 123; In re Lise Association of England, 34 L. J. (Ch.) 61). A winding-up is usually carried out by means of a liquidator, who (as the name denotes) liquidates, i.e., ascertains, the assets and liabilities of the company, with a view to the discharge of the latter by the former, so far as they go. See Buckley on the Companies Acts.

WITCHCRAFT. A practice for which in former times persons might have been, and often were, condemned to death, even upon their own confession (see Best on Evidence, Criminal Confessions). The rule of the Mosaic Law was, —" Thou shalt not suffer a witch to live;" and the Civil Law also punished with death sorcerers and witches. By the English Law, witchcraft was at one time (under 33 Hen. 8, c. 8) a felony without benefit of clergy severity continued in the Act 1 Jac, 1, c. 12; but at the present day under the stats. 9 Geo. 2, c. 5, and 56 Geo. 3, c. 138, no prosecution for witchcraft is for the future to be carried on; but the PRETENCE of witchcraft is made a misdemeanor punishable with a year's imprisonment and hard labour.

WITENAGEMOTE. An assembly of wise men, used distinctively to denote the Parliament of Anglo-Saxon times.


- a



WITNESSES - continued. nation-in-chief is to obtain facts in support of the case of the plaintiff'; the object of the cross-examination is to impugn or throw discredit upon that first examination; and the object of the re-examination is to undo the prejudice which may so have been occasioned in the cross-examination.



WITNESSES. These are a means or instrument of evidence, and are persons who inform the tribunals regarding matters of fact. Generally, all persons are compellable to give evidence excepting only the sovereign ; but witnesses may object to answer particular questions, being chiefly questions which tend to criminate or to expose to penalties or forfeitures, but not (unless where the judge interposes) questious tending to bring the witness into disgrace or ridicule, or to render him liable to merely civil proceedings.

A distinction is taken between the competency and the credibility of witnesses, the former determining absolutely the admission or rejection of their evidence, the latter going to corroborate or to impugn its truthfulness. At the present day, all objections to witnesses (with one exception) go to the credibility of their testimony and not to their competency, the stats. 14 & 15 Vict. c. 99, and 32 & 33 Vict. c. 68, having rendered even the parties to an action of whatever sort competent and also compellable to give their testimony. The one exception referred to, is that in criminal proceedings a husband is not compellable to give evidence against his wife, or the wife against her husband, these twain being one flesh.

However, for various reasons a person may not be competent to take an oath, and therefore may never fall under the category of witness at all, so that neither the ques. tion of his competency nor that of his credibility may come into question. Thus, from want of understanding, whether innate deficiency (as in the case of idiots) or extreme immaturity (as in the case of children of very tender years), or, semble, atheism, a person is incompetent to take an outh (sce title Oath), and is therefore excepted from the class of witness, excepting that an atheist may now make a solemn affirmation, and a child may on examination on the voir dire (see that title) be found to be conscious of the sanctity of an oath.

The principal grounds for suspecting the credibility of a witness (as distinguished from his competency) are pecuniary interest, sexual relationship, social connections, self-regarding sentiments, and the feeling of sympathy with others.

Usually the method of dealing with witnesses is for the party on whose behalf they are called to examine chem in chief, then for the opposite party to cross-examine them, and finally for the chief examiner to re-examine them. The object of the exami

WRECK. Such goods as after a shipwreck are cast up by the sea and left there within some county. By the Common Law all wrecks belonged to the Crown; but it was usual to seize wrecks to the king's use only when no owner could be found. The Common Law was modified by statute in the reign of Henry I., who granted that if any person escaped alive out of the ship it sliould be no wreck; and afterwards by the Statute of Westminster the First (3 Edw. 1) c. 4, if a man or dog or cat escaped alive the goods shall be no wreck, but the sheriff shall keep the same (or, if perishable, their value) for a year and a day, in order to restore them to the rightful owner, or his representatives establishing their claim to them. And by the statute 27 Edw. 3, c. 13, if a ship is lost on the shore and the goods come to land, they are to be at once returned to the owners, they paying a reasonable reward for their salvage (se title SALVAGE). By the stat. Ï & 8 Geo. 4, c. 29, plundering any vessel in distress or wrecked is made felony punishablo with death. If for a year and a day no one claims wreck, it still belongs to the king as before.

See also titles FLOTSAM and JETSAM.

WRIT. This word is from the Saxon writan, to write; it is translated by breve in the Latin forms. In general a writ is the king's precept in writing under sea) issuing out of some Court and commanding something to be done touching a suit or action, or giving commission to have it done. Les Termes de la Ley.

Writs in civil actions were either original or judicial. Original writs issued out of the Court of Chancery for summoning a defendant to appear, and were granted before the suit was begun, to begin the same, whence the name; judicial writs issued out of the Court where the original was returned after the suit was begun. The original bore date in the name of the king, the judicial in the name of the judge. Another division of writs was into real, personal, and misel; the real concerning the possession of land, and being either

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