AUDITA QUERELÂ-continued.

ment has been recovered, and who is therefore in danger of having execution issued against him, to relieve or discharge him upon shewing some good ground for discharge which has arisen since the recovery of such judgment, e.g., a release. This remedy is now rarely resorted to, inasmuch as the Courts may now grant the like relief in a summary way upon motion.

The writ auditâ querelâ is a proceeding of common right and ex debito justitiæ; but by the rules of H. T. 1853, r. 79, the writ is not allowed unless by rule of Court or judge's order.

By the C. L. P. Act, 1854, s. 84, any pleadable matter which arises after the time for pleading may be set up by way of auditâ querela.

In an audita querela the rule (if any) which the Court grants is absolute in the first instance. Giles v. Hutt, 1 Exch. 59.

AUGMENTATION, COURT OF. The name of a Court erected in 27 Henry 8, for the purpose that the King might be justly dealt with concerning the profits of such religious houses and their lands as were given to him by Act of Parliament in that year. The Court was so called because the revenues of the Crown were so much augmented by the suppression of such of the said religious houses as the King reserved to the Crown. Les Termes de la Ley.

AUTERFOIS ACQUIT. This is a plea pleaded by a criminal, signifying that he has been formerly acquitted on an indictment for the same alleged offence, it being a maxim of the Common Law of England, that no man's life is to be put in jeopardy more than once for the same offence. Co. 3 Inst.

See also next two titles. AUTERFOIS ATTAINT. A plea by a criminal that he has been before attainted either for the same or some other offence. For wherever a man is attainted of felony by judgment of death, either upon a verdict or on confession, by outlawry, and formerly by abjuration, he may plead such attainder in bar to any subsequent indictment on appeal for the same or any other felony. The reason of this is, that any proceeding on a second prosecution cannot be to any purpose, as the prisoner is dead in law by the first attainder, his blood is already corrupted, and he has forfeited all

that he has.

AUTERFOIS CONVICT. A plea by a criminal that he has been before convicted of the same identical crime; it is similar in its nature to that mentioned in the last title but one.

AVERAGE. Is the contribution that merchants and others make towards the losses of those who have their goods cast into the sea for the safeguard of the ship or of the other goods and of the lives therein; it is called an average because it is proportioned after the rate of every man's goods carried.

Such average is either general or gross on the one hand, or particular and petty on the other; as to the former, see title GENERAL AVERAGE; and as to the latter, it arises when any particular damage is done to the cargo or vessel by accident or otherwise, such as the loss of an anchor or cable, the starting of a plank, or such like other particular losses which do not endanger the general safety. All such latter losses rest where they fall.

AVERIIS CAPTIS IN WITHERNAM. A writ for the taking of cattle to a person's use, who has had his own cattle taken by another, and driven out of the county where they were taken, so that they cannot be replevied. Reg. Orig. 82; Cowel.

of a justice of the peace cannot be enforced or executed in any other county than that in which he has jurisdiction, unless a justice of such other county wherein it is to be executed indorses or writes on the back of such warrant an authority for that purpose, which is thence termed backing the warrant. 2 Robinson's Mag. Assist. 572; 24 Geo. 3, c. 55; 5 Geo. 4, c. 18, s. 6.

BAIL (ballium). The setting at liberty of a person who is arrested in any action, formerly civil or criminal, but now only criminal, on his finding sureties for his reappearance. It is, however, usually understood for the sureties themselves; as, if A. is arrested and puts in bail, this means that he has found persons who have become sureties for his re-appearance, and who take upon themselves the responsibility of his returning or not returning when required. There are or were several kinds of bail, of which the principal are the following viz. (1.) Bail below, or Bail to the sheriff; (2.) Bail above, Special Bail, or Bail to the action; (3.) Bail in error; and (4.) Common Bail. Now, taking each of these four varieties of bail in order: (1.) Bail below, or to the sheriff, was such as a defendant put in when arrested upon a writ of capias. This he did by entering

BAIL-continued.

into a bond to the sheriff with sufficient sureties conditioned for his appearance within the period required by the writ, and which bond the sheriff was compelled by statute to accept, and to discharge the defendant out of custody. (2.) Bail above, special bail, or bail to the action, were persons whom the defendant procured to become his sureties for the ultimate payment of the debt and costs in the action, in the event of judgment passing against him, or as an alternative that he should surrender himself to prison. They were termed bail to the action because they were responsible for the defendant's abiding by the event of the action, and obeying the judgment of the Court therein, in contradistinction to bail to the sheriff, who only undertook that the defendant should appear according to the exigency of the writ, and provide bail to the action. The undertaking of the sureties, or bail above, was drawn upon a piece of parchment by the defendant's attorney, and was technically termed the bail piece. (3.) Bail in error. These were sureties whom a party prosecuting a writ of error, commonly called the plaintiff in error, was required to find, and who undertook that the plaintiff in error should prosecute his writ of error with effect, and that in case the plaintiff was non pros-ed, or the judgment in the Court below was affirmed, he should pay all the debt, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded by reason of the delay of execution on such former judgment (3 Jac. 1, e. 8; 3 Car. 1, c. 4, s. 4; 19 Geo. 3, c. 70; 6 Geo. 4, c. 96, ss. 1, 4). Common bail signified an appearance, for an explanation of which see that title; and see also next title.

BAIL IN CRIMINAL PROCEEDINGS. Upon application to the Court of Queen's Bench, or to a judge thereof, the Court or a judge may, as a favour, admit the prisoner to bail, and that even in non-bailable proceedings. But generally, in all cases of misdemeanour, the accused has an absolute right to be discharged from his interim custody upon finding sufficient bail.

BAIL À CHEPTEL

BAIL À FERME See title LOUAGE.
BAIL À LOYER

BAIL COURT. An auxiliary court of the Court of Queen's Bench, at Westminster, wherein points connected more particularly with pleading and practice are argued and determined.

BAILIFF. There are various sorts of bailiffs; as bailiffs of liberties, sheriff's bailiffs, bailiffs of lords of manors, &c., &c. Sheriffs are also called the king's bailiffs, and the counties wherein it is their duty

BAILIFF-continued.

to preserve the rights of the king are frequently called their bailiwicks, a word introduced by the Norman princes in imitation of the French, whose territory was divided into bailiwicks, as that of England is into counties. The word "bailiff," however, usually signifies sheriffs' officers, who are either, (1.) Bailiffs of hundreds, or, (2.) Special bailiffs. (1.) Bailiffs of hundreds are officers appointed over those respective districts, by the sheriffs, to collect fines therein, to summon juries, to attend the judges and justices at the assizes or quarter sessions, and also to execute writs and processes in the several hundreds. (2.) Special bailiff's are that lower class of persons employed by the sheriff's for the express purpose of serving writs and making arrests and executions, &c. (3.) Those persons also who have the custody of the king's castles are called bailiffs, as the bailiff of Dover Castle. (4.) The chief magistrates of particular jurisdictions are also called bailiffs, as the bailiff of Westminster, for example. (5.) There are also bailiffs of courts baron, bailiffs of the forest, &c. Cowel; Termes de la Ley.

BAILMENT. This is the most general word in English law for agency, and comprises the following varieties of agency:→

(1.) Gratuitous bailment,-in which case it is settled that a misfeasance on the part of the bailee, i.e., agent, is actionable (Coggs v. Bernard, 1 Sm. L. C. 177); but that a mere non-feasance is not actionable. Elsee v. Gatward, 5 T. R. 143.

(2.) Bailment for reward, in which case the bailee is of course liable as well for a non-feasance, as for a misfeasance, and cannot recover his recompense until his performance of the duty which he has undertaken.

Again, bailment comprises the following varieties of agency :—

(1.) Bailments in which the trust reposed is exclusively for the benefit of the bailor, and hereunder Mandatum and Depositum, as to which, see these two titles.

(2.) Bailments in which the trust reposed is exclusively for the benefit of the bailee, and hereunder Commodatum (or Prêt à usage), and (where gratuitous) Mutuum (or Prêt à consommation), as to which, see these two titles; and

(3.) Bailments which are for the benefit of both bailor and bailee, and hereunder the following varieties (as to which, see the respective titles), viz. :

(1.) Pledge or Pawn,-PAWNBROKERS.
(2.) Custody,-INNKEEPERS; and
(3.) Carriage,-CARRIERS.

BAITING ANIMALS: See CRUELTY TO ANIMALS.

BALLOT, VOTE BY. Under the stat. 35 & 36 Vict. c. 33, all parliamentary and municipal elections are required to be made by ballot; and under the Elementary Education Act, 1870 (33 & 34 Vict. c. 75), the elections are similarly required to be by ballot.

This mode of voting was one of the five points advanced by the so-called Chartists, in 1839, as the People's Charter; the four other points being universal suffrage, annual parliaments, payment of members, and the abolition of the property qualification for members of parliament.

See also title REPRESENTATION.

BANC, or BANCO, SITTING IN. The sittings which the respective superior Courts of Common Law hold during every term, and on certain appointed days after term, for the purpose of hearing and determining the various matters of LAW argued before them, are so called, in contradistinction to the sittings at Nisi Prius, which are held for the purpose of trying issues of FACT. The former are usually held before four of the judges; at the latter, one judge only presides.

BANKERS. According to the decision in Foley v. Hill (2 H. L. C. 28), the relation between a banker and a customer who pays money into the bank, is the ordinary relation of debtor and creditor, with a superadded obligation arising out of the custom of bankers to honour the drafts of customers, and that relation is not altered by an agreement by the banker to allow interest on the balances in the bank. The relation does not partake of a fiduciary relation, and therefore, as a general rule, no bill in equity will lie against a banker for an account.

See also titles BILLS OF EXCHANGE;
CHEQUES; CASH NOTES; CIRCULAR
NOTES; and LETTERS OF CREDIT.

BANKS, JOINT STOCK. By the 39 & 40 Geo. 3, c. 28, s. 15, it was forbidden to establish any corporate bank whatever, or any bank where the number of partners exceeded six, so as to borrow, owe, or take up any sum or sums of money on their bills or notes payable on demand, or at any less time than six months, during such time as the Bank of England enjoyed the rights conferred by former Acts. But in 1826, the 7 Geo. 4, c. 46, was passed legalizing the formation under deeds of settlement, of banking co-partnerships consisting of more than six persons, provided they did not carry on business in, or within sixty-five miles of, London. Afterwards, in 1845, was passed the 7 & 8 Vict. c. 113, which for a short time enabled joint-stock banks to be established under letters patent of incorporation. And latterly, the

BANKS, JOINT STOCK-continued. Joint Stock Banking Companies Act, 1857 (21 & 22 Vict. c. 49), and Companies Act, 1862 (25 & 26 Vict. c. 89), have afforded every facility for constituting joint stock banks in every part of England, subject to the provisions of these Acts.

BANK NOTES. der in England for all sums over £5: See title CASH NOTE, 3 & 4 Will. 4, c. 98, s. 6. In case a bank note is lost, or is stolen, or is otherwise improperly obtained, the Bank of England, upon presentment by a bona fide holder, is bound to cash it, although to the prejudice of the true owner. Miller v. Race, 1 Sm. L. C. 468.

These are a legal ten

BANKRUPTCY. Under the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), which commenced as from the 1st of January, 1870, but which does not extend to Scotland or Ireland, any one, whether a trader or not, and whether a member of Parliament or not, may be adjudicated a bankrupt (s. 6) upon the petition of his creditor or creditors, upon any one or other of the following six grounds,-commonly designated "acts of bankruptcy :”— (1.) Making a conveyance or assignment

of all his property for the benefit of his creditors generally; (2.) Making any fraudulent conveyance or assignment;

(3.) Doing any act with intent to defeat
or delay his creditors;

(4.) Filing a declaration of insolvency;
(5.) Having execution levied by seizure
and sale of his goods for a debt
of £50, or upwards; or
(6.) Having, if a trader for seven days,
and if a non-trader for twenty-
one days, after service of a
debtor's summons for a debt of
not less than £50, neglected to pay
or satisfy same.

The petition grounded upon any one of such acts must be presented within six months from the commission of the act.

The Act constitutes two distinct jurisdictions, viz. :

(1.) The London district,-which comprises the City of London and its liberties, and all places situated within the districts of the metropolitan County Courts; and (2.) The country district,-which comprises the rest of England. The Court of the London Bankruptcy District has all the powers and jurisdictions of the superior Courts of Common Law and Equity (In re Anderson, L. R. 5 Ch. App. 473); the Judge may also reverse, vary, or affirm any order of a local Bankruptcy Court, in respect of a matter either of law or of fact.

BANKRUPTCY-continued.

When a person is adjudicated a bankrupt, all his property, whether real or personal, vests in the trustee or trustees, who have the following powers:

(1.) Receiving and deciding upon proof of debts.

(2.) Carrying on the business of the bankrupt.

(3.) Bringing or defending actions. (4.) Selling the property of the bankrupt, either by public auction or by private contract; and (5.) Giving effectual receipts for money received.

Upon the close of the bankruptcy, or (but only with the assent of his creditors), during its continuance, the bankrupt may apply to the Court for an order of discharge, which he will obtain if he have paid 108. in the pound, and not unless; if undischarged, he is protected for three years from the close of the bankruptcy proceedings, and if he should during that period have paid up to 108. in the pound, he then obtains his discharge; but otherwise, the unpaid balance becomes a judgment debt against him, and may be levied against his property, real or personal, in the usual way.

BARRATRY.

Any act of the master or of the mariners of a ship which is of a criminal or fraudulent nature, tending to the prejudice of the owners of the ship, without their consent or privity; as by running away with the ship, sinking her, deserting her, or embezzling the cargo. Park on Ins. 137, 138; Knight v. Cambridge, 1 Str. 581; Vallejo and Another v. Wheeler, Cowp. 143. BARRING ESTATE TAIL. Formerly, an estate tail could only be barred by levying a fine or suffering a common recovery (see these titles). At the present day, it can only be barred (1.) in the case of freeholds, by a disentailing deed, and (2.), in the case of copyholds, by surrender, or (but only if the estate is equitable) by a disentailing deed executed in accordance with the stat. 3 & 4 Will. 4, c. 74. Therefore neither a will, nor a contract of sale, nor any other

BARRING ESTATE TAIL-continued. deed or instrument in writing whatsoever, not being a special Act of Parliament, is of any force or efficacy whatsoever, unless preceded by the proper statutory mode of bar, to pass or to convey an estate tail to the devisee or contractee, or other person whatsoever; nor may the Courts of Equity, in favour of a purchaser for value, execute the contract by decreeing the heir in tail to carry out the act which his ancestor has left incomplete, and it need scarcely be added that the Courts of Equity would not, even if they might, decree a disentailing deed in favour of the devisee, who is a mere volunteer.

BARRISTER. A counseller learned in the law who pleads at the bar of the Courts, and takes upon himself the advocacy or defence of causes. His professional conduct is under the control of the Benchers of his Inn (Hudson v. Slade, 3 F. & F. 390). His fees are an honorarium, and no action lies to recover them, nor can any security be taken for them (Brown v. Kennedy, 13 C. B. 677). But it is otherwise with the fees of conveyancers or special pleaders below the bar, who may maintain an action, or take such security (Steadman v. Hockley, 15 M. & W. 553). A barrister is not liable for negligence or non-attendance (Fell v. Brown, Peake, 96). He enjoys numerous privileges (which, however, he is assumed to exercise only for the benefit of his client), e.g., he may compromise the case (Swinfen v. Swinfen, 1 C. B. (N.S.) 364; 2 De G. & J. 381); nor is he exposed to any action for libel or slander, in consequence of words written or spoken by him in the conduct of his case (Hodgson v. Scarlet, 1 B. & A. 232); nevertheless it seems that he is liable to be punished for contempt of Court even for words professedly spoken in the discharge of his functions as advocate (Ex parte Pater, 5 B. & S. 299). He is privileged from arrest while attending Court or going circuit.

BASE FEE.

A base or qualified fee is an estate which hath some qualification subjoined thereto, and which must cease or be determined whenever such qualification is at an end. As in the case of a grant to A. and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So when Henry VI. granted to John Talbot, lord of the manor of Kingston-Lisle, in Berks, that he and his heirs, lords of the said manor, should be peers of the realm by the title of Barons of Lisle; here John Talbot had a base or qualified fee in that dignity, and the instant he or his heirs quitted the seigniory of that manor, the

BASE FEE-continued. dignity was at an end. These estates are fees, because it is possible that they may endure for ever in a man and his heirs; yet as that duration depends on certain collateral circumstances which qualify and debase the purity of the donation, it is therefore called a base or qualified fee. In a more limited sense, a base fee is used to denote a fee simple derived out of a fee tail, which has been barred by one whose power extends only to bar his own issue heirs in tail; in this case, so long as such heirs in tail or their issue endure, the fee simple endures, but determines when they become extinct.

BASTARD. A child born out of wedlock. He is not legitimized by the subsequent marriage of his parents (Doe d. Birtwhistle v. Vardell, 6 Bing. N. C. 385). Upon an order of affiliation, the putative father becomes liable to a limited extent to support his child; but otherwise the mother must support it. The custody of the child belongs also of right to the mother, notwithstanding the father is able and willing to maintain it better (Ex parte Knee, 1 N. R. 148); but it seems that the wishes of the child itself will be consulted. In re Lloyd, 3 Man. & G. 547.

BATTEL (from battaile). The trial by wager of battle was a species of trial introduced into England, among other Norman customs, by William the Conqueror, in which the person accused fought with his accuser, under the apprehension that Heaven would give the victory to him who was in the right,

See title TRIAL BY JURY.

BATTERY: See ASSAULT AND BATTERY.

BAWDY-HOUSE: See BROTHEL,

BENCH WARRANT. The process issued against a party against whom an indictment has been found for the purpose of bringing him into Court to answer the charge preferred against him. When an indictment has been found for a misdemeanour during the assizes or sessions, it is the practice for the judge attending the assizes, or for two of the justices attending the sessions, to issue a bench warrant, signed by him or them, to apprehend the defendant. Cowp. 239; Haw. Pl. Cr.; 1 Ch. Crim. Law, 338, 339.

BENCHER. A dignitary of the Inns of Court is so termed. Each Inn of Court is presided over by a certain number of benchers, who exercise the right of admitting candidates as members of their society, and also of ultimately calling them to the bar. They are usually selected from those of their members who have distinguished

BENCHER-continued.

themselves in their profession; and it is the ordinary practice, but subject to a discretion in the body of benchers, for each Inn of Court to select its member a bencher as soon as he has attained the rank or degree of queen's counsel. They also exercise a general supervision over the professional conduct of all counsel that are members of the Inn.

BENEFICE. Generally taken for any ecclesiastical living, or church preferment, whether a dignity or not; and it must be given for life, not for years, or at will. See title ADVOWSON.

BÉNÉFICE d'INVENTAIRE.

This in

French law corresponds to the Beneficium Inventarii of Roman law, and substantially to the English law doctrine, that the executor properly accounting is only liable to the extent of the assets received by him.

BETTING HOUSES. These were suppressed in England by the 16 & 17 Vict. c. 119; and in Scotland by an Act of the present session.

BEYOND THE SEAS. No part of the United Kingdom of Great Britain and Ireland, nor the Isle of Man, Guernsey, Jersey, Alderney, or Sark, nor any islands adjacent to any of them (being part of the dominions of Her Majesty), are deemed beyond the seas within the meaning of the 3 & 4 Will. 4, c. 27. And yet for certain purposes either or any of those places other than England may be regarded in law as being beyond the seas. Thus it appears to have been held that Dublin, or any place in Ireland, was beyond the seas within the meaning of the Statute of Limitations (21 Jac. 1, c. 16). King v. Walker, 1 Bl. Rep. 286; Nightingale v. Adams, Show. 91; Shelford's Real Property Statutes, 181, 4th ed.

BIGAMY. A criminal offence which consists in going through the ceremony of marriage with another, while a former husband or wife is still alive and not divorced, knowing at the time, or reasonably believing, that such former consort is still alive. The offence amounts to a felony, and is punishable with penal servitude for not more than seven nor fewer than five years, or with imprisonment with or without hard labour for any period not exceeding two years.

BILL (billa) has various significations in law proceedings. It is commonly taken for a declaration in writing, expressing either the wrong the complainant has suffered by the defendant, or else some fault that the party complained of has