Obrazy na stronie

AUDITÂ QUERELA- continued.

AVERAGE. Is the contribution that ment has been recovered, and who is there. merchants and others make towards the fore in danger of having execution issued losses of those who have their goods cast against him, to relieve or discharge him into the sea for the safeguard of the ship upon shewing some good ground for dis- or of the other goods and of the lives charge which has arisen since the recovery

therein; it is called an average because it of such judgment, e.g., a release. This is proportioned after the rate of every man's remedy is now rarely resorted to, inasmuch goods carried. as the Courts may now grant the like re- Such average is either general or gross lief in a summary way upon motion. on the one hand, or particular and petty The writ auditâ querelâ is a proceeding

on the other; as to the former, see title of common right and ex debito justitiæ ;

GENERAL AVERAGE ; and as to the latter, but by the rules of H. T. 1853, r. 79, the it arises when any particular damage is writ is not allowed unless by rule of Court done to the cargo or vessel by accident or or judge's order.

otherwise, such as the loss of an anchor or By the C. L. P. Act, 1854, s. 84, any

cable, the starting of a plank, or such like pleadable matter which arises after the other particular losses which do not entime for pleading may be set up by way of danger the general safety. All such latter auditâ querela.

losses rest where they fall. In an audita querelâ the rule (if any) AVERIIS CAPTIS IN WITHERNAM. which the Court grants is absolute in the A writ for the taking of cattle to a person's first instance. Giles v. Hutt, 1 Exch. 59. use, who has had his own cattle taken by AUGMENTATION, COURT OF. The

another, and driven out of the county name of a Court erected in 27 Henry 8,

where they were taken, so that they canfor the purpose that the King might be

not be replevied. Reg. Orig. 82; Cowel. justly dealt with concerning the profits of AVERMENT. An allegation in pleadsuch religious houses and their lands as ing is so called. were given to him by Act of Parliament

AVOWRY : See title REPLEVIN. in that year. The Court was so called because the revenues of the Crown were so

AWARD: See title ARBITRATION. much augmented by the suppression of such of the said religious houses as the King reserved to the Crown. Les Termes

B. de la Ley.


of a justice of the peace cannot be enforced pleaded by a criminal, signifying that he

or executed in any other county than that in has been formerly acquitted on an indict

which he has jurisdiction, unless a justice ment for the same alleged offence, it being

of such other county wherein it is to be a maxim of the Common Law of England,

executed indorses or writes on the back of that no man's life is to be put in jeopardy

such warrant an authority for that purpose, more than once for the same offence. Co.

which is thence termed backing the war3 Inst.

rant. 2 Robinson's Mag. Assist. 572; 24 See also next two titles.

Geo. 3, c. 55; 5 Geo. 4, c. 18, s. 6. AUTERFOIS ATTAINT. A plea by a

BAIL (ballium). The setting at liberty criminal that he has been before attainted

of a person who is arrested in any action, either for the same or some other offence.

formerly civil or criminal, but now only For wherever a man is attainted of felony

criminal, on bis finding sureties for his re. by judgment of death, either upon a ver

appearance. It is, however, usually underdict or on confession, by outlawry, and for

stood for the sureties themselves; as, if A. merly by abjuration, he may plead such

is arrested and puts in bail, this means attainder in bar to any subsequent indict

that he has found persons who have bement on appeal for the same or any other

come sureties for his re-appearance, and felony. The reason of this is, that any

who take upon themselves the responsibility proceeding on a second prosecution cannot

of his returning or not returning when rebe to any purpose, as the prisoner is dead quired. There are or were several kinds of in law by the first attainder, his blood is

bail, of which the principal are the followalready corrupted, and he has forfeited all

ing: viz. (1.) Bail below, or Bail to the that he bas.


' ; (2.) Bail above, Special Bail, or

Bail to the action ; (3.) Bail in error ; and AUTERFOIS CONVICT. A plea by a (4.) Common Bail. Now, taking each of criminal that he has been before convicted these four varieties of bail in order : (1.) of the same identical crime; it is similar Bail below, or to the sheriff, was such as a in its nature to that mentioned in the last defendant put in when arrested upon a title but one.

writ of ca pias. 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 defeudant 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 gureties 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, c. 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 buil.

BAIL À FERME See title Louage.

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 bailiffs 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


BALLOT, VOTE BY. Under the stat. 35 BANKS, JOINT STOCK-continued. & 36 Vict. c. 33, all parliamentary and Joint Stock Banking Companies Act, 1857 municipal elections are required to be (21 & 22 Vict. c. 49), and Companies Act, made by ballot; and under the Elemen

1862 (25 & 26 Vict. c. 89), have afforded tary Education Act, 1870 (33 & 34 Vict.

every facility for constituting joint stock c. 75), the elections are similarly required banks in every part of England, subject to be by ballot.

to the provisions of these Acts. This mode of voting was one of the five points advanced by the so-called Chartists,

BANK NOTES. These are a legal tenin 1839, as the People's Charter; the

der in England for all sums over £5: See four other points being universal suffrage,

title Cash NOTE, 3 & 4 Will. 4, c. 98, s. 6. annual parliaments, payment of members,

In case a bank note is lost, or is stolen, or and the abolition of the property qualifi

is otherwise improperly obtained, the Bank cation for members of parliament.

of England, upon presentment by a bona See also title REPRESENTATION.

fide holder, is bound to cash it, although to

thọ prejudice of the true owner. Miller v. BANC, or BANCO, SITTING IN.


Race, 1 Sm. L. C. 468. sittings which the respective superior Courts of Common Law hold during every BANKRUPTCY. Under the Bankterm, and on certain appointed days after ruptcy Act, 1869 (32 & 33 Vict. c. 71), term, for the purpose of hearing and de- which commenced as from the 1st of termining the various matters of Law January, 1870, but which does not extend argued before them, are so called, in con- to Scotland or Ireland, any one, whether a tradistinction to the sittings at Nisi Prius, trader or not, and whether a member of which are held for the purpose of trying Parliament or not, may be adjudicated a issues of FACT. The former are usually bankrupt (s. 6) upon the petition of his held before four of the judges; at the creditor or creditors, upon any one or latter, one judge only presides.

other of the following six grounds,-comBANKERS. According to the decision monly designated “ acts of bankruptcy :"in Foley v. Hill (2 H. L. C. 28), the relation

(1.) Making a conveyance or assignment between a banker and a customer who pays

of all his property for the benefit money into the bank, is the ordinary rela

of his creditors generally ; tion of debtor and creditor, with a super

(2.) Making any frauduleut conveyance added obligation arising out of the custom of

or assignment; bankers to honour the drafts of customers,

(3.) Doing any act with intent to defeat and that relation is not altered by an

or delay his creditors ; agreement by the banker to allow interest

(4.) Filing a declaration of insolvency ; on the balances in the bank. The relation

(5.) Having execution levied by seizure does not partake of a fiduciary relation,

and sale of his goods for a debt and therefore, as a general rule, no bill in

of £50, or upwards; or equity will lie against a banker for an

(6.) Having, if a trader for seven days, account.

and if a non-trader for twentySee also titles BILLS OF EXCHANGE ;

one days, after service of a CHEQUES ; Cash NOTES; CIRCULAR

debtor's summons for a debt of NOTES ; and LETTERS OF CREDIT.

not less than £50, neglected to pay

or satisfy same. BANKS, JOINT STOCK. By the 39 &

The petition grounded upon any one of 40 Geo. 3, c. 28, s. 15, it was forbidden such acts must be presented within six to establish any corporate bank whatever, months from the commission of the act. or any bank where the number of partners The Act constitutes two distinct jurisexceeded six, so as to borrow, owe, or take dictions, viz. :up any sum or sums of money on their (1.) The London district, which combills or notes payable on demand, or at

prises the City of London and its any less time than six months, during such

liberties, and all places situated time as the Bank of England enjoyed the

within the districts of the metrorights conferred by former Acts. But in

politan County Courts; and 1826, the 7 Geo. 4, c. 46, was passed (2.) The country district,—which comlegalizing the formation under deeds of

prises the rest of England. settlement, of banking co-partnerships con- The Court of the London Bankruptcy sisting of more than six persons, provided District has all the powers and jurisdictions they did not carry on business in, or within of the superior Courts of Common Law and sixty-five miles of, London. Afterwards, Equity (In re Anderson, L. R. 5 Ch. App. in 1845, was passed the 7 & 8 Vict. c. 113, 473); the Judge may also reverse, vary, or which for a short time enabled joint-stock affirm any order of a local Bankruptcy banks to be established under letters Court, in respect of a matter either of law patent of incorporation. And latterly, the or of fact.


BARRING ESTATE TAIL-continued. When a person is adjudicated a bank

deed or instrument in writing whatsoever, rupt, all his property, whether real or per- not being a special Act of Parliament, is sonal, vests in the trustee or trustees, who of any force or efficacy whatsoever, unless have the following powers :

preceded by the proper statutory mode of (1.) Receiving and deciding upon proof bar, to pass or to convey an estate tail to of debts.

the devisee or contractee, or other person (2.) Carrying on the business of the whatsoever; por may the Courts of Equity, bankrupt.

in favour of a purchaser for value, execute (3.) Bringing or defending actions. the contract by decreeing the heir in tail (4.) Selling the property of the bank- to carry out the act which his ancestor rupt, either by public auction or

has left incomplete, and it need scarcely by private contract; and

be added that the Courts of Equity would (5.) Giving effectual receipts for money

not, even if they might, decree a disentailreceived.

ing deed in favour of the devisee, who is a Upon the close of the bankruptcy, or

mere volunteer. (but ouly with the assent of his creditors),

BARRISTER. A counseller learned in during its continuance, the bankrupt may

the law who pleads at the bar of the Courts, apply to the Court for an order of dis

and takes upon himself the advocacy or charge, which he will obtain if he have

defence of causes. paid 108. in the pound, and not unless; if

His professional con

duct is under the control of the Benchers undischarged, he is protected for three

of his Inn (Hudson v. Slade, 3 F. & F. years from the close of the bankruptcy

390). His fees are an honorarium, and no proceedings, and if he should during that

action lies to recover them, nor can any period have paid up to 108. in the pound, he then obtains his discharge; but other

security be taken for them (Brown v. Kenwise, the unpaid balance becomes a judg

nedy, 13 C. B. 677). But it is otherwise

with the fees of conveyancers or special ment debt against him, and may be levied against his property, real or personal, in

pleaders below the bar, who may maintain the usual way.

an action, or take such security (Steadman

v. Flockley, 15 M. & W. 553). “A barrister BANNERET, or BANRENT. A ban

is not liable for negligence or non-attendneret, or banrent, is said to be a knight

ance (Fell v. Brown, Peake, 96). He enjoys made in the field, with the ceremony of

numerous privileges (which, however, he is cutting off the point of his standard, and

assumed to exercise only for the benefit of 80 making it like a banner. They are

his client), e.g., he may compromise the case accounted so honourable that they are per- (Swin fen v. Swinfen, 1 C. B. (N.S.) 364 ; mitted to display their arms in a banner 2 De G. & J. 381); nor is he exposed to in the field as barons do. See Selden's

any action for libel or slander, in conseTit. of Hon.

quence of words written or spoken by him BARGAIN AND SALE: See title Con

in the conduct of his case (Hodgson v. VEYANCES.

Scarlet, 1 B. & A. 232); nevertheless it

seems that he is liable to be punished for BARON AND FEME: See title HUSBAND

contempt of Court even for words proAND WIFE.

fessedly spoken in the discharge of his BARRATRY. Any act of the master or functions as advocate (Ex parte Pater, 5 B. of the mariners of a ship which is of a cri- & S. 299). He is privileged from arrest minal or fraudulent nature, tending to the while attending Court or going circuit. prejudice of the owners of the ship, without

BASE FEE their consent or privity; as by running

A base or qualified fee is

an estate which hath some qualification away with the ship, sinking her, deserting her, or embezzling the cargo. Park on Ins.

subjoined thereto, and which must cease 137, 138; Knight v. Cambridge, 1 Str. 581 ;

or be determined whenever such qualifica

tion is at an end. As in the case of a Vallejo and Another v. Wheeler, Cowp. 143.

grant to A. and his heirs, tenants of the BARRING ESTATE TAIL. Formerly, an manor of Dale; in this instance, whenever estate tail could only be barred by levying the heirs of A. cease to be tenants of that a fine or suffering a common recovery (see manor, the grant is entirely defeated. So these titles). At the present day, it can when Henry VI. granted to John Talbot, only be barred (1.) in the case of freeholds, lord of the manor of Kingston-Lisle, in by a disentailing deed, and (2.), in the case Berks, that he and his heirs, lords of the of copyholds, by surrender, or (but only if said manor, should be peers of the realm the estate is equitable) by a disentailing by the title of Barons of Lisle; here John deed executed in accordance with the stat. Talbot had a base or qualified fee in that 3 & 4 Will. 4, c. 74. Therefore neither a dignity, and the instant he or his heirs will, nor a contract of sale, nor any other 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 tee. 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.

BENCH WARRANT. The process is sued 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 substan. tially 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

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