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BROKERS-Continued. City of London to charge his principal only with the cost price of articles purchased by him, in addition to his commission. Procter v. Brain, 2 M. & P. 284.
See also titles JOBBER; FACTOR. BROTHEL. The statutes for the repression or regulation of houses of this character are 25 Geo. 2. c. 36, 28 Geo. 3, c. 19, and 58 Geo. 3, c. 70.
Any inhabitant of the parish may give information thereof to the parish constable, and the overseers of the parish are to pay to the informant upon conviction a reward of £10.
BUGGERY : See title SODOMY. BUILDING SOCIETY. A benefit building society is constituted upon its adoption of the rules prescribed by the stats. 6 & 7 Will. 4, c. 32, and 12 & 13 Vict. c. 106, and which rules must be certified. It is within the jurisdiction of the Court of Chancery under the Companies Act, 1862, as to winding up (In re Midland Counties Benefit Building Society, 13 W. R. 399); but not within the provisions of the Acts regulating friendly societies or industrial and provident societies (25 & 26 Vict. c.
BREACH OF PRIVILEGE-continued. sufferance; and, formerly, to take a note of any of the proceedings was a high act of contempt, although now the representatives of the newspaper press are not only allowed to be present for that purpose, but have a gallery to themselves in each House, and every accommodation afforded them which the courtesy of the chief officers of both can render.
See title PRIVILEGES OF PARLIAMENT. BREACH OF PROMISE OF MARRIAGE. Under the stat. 14 & 15 Vict. c. 99, rendering the parties to a civil action competent to give evidence, the parties to a breach of promise case were expressly left to remain incompetent; but under the stat. 32 & 33 Vict. c. 68, that incompetency has been removed.
In Sch. B. to C. L. P. Act, 1852, the following simple form of count is given :
That the plaintiff and defendant agreed to marry one another, and a reasonable time for such marriage bas elapsed, and the plaintiff has always been ready and willing to marry the defendant, yet the defendant has neglected and refused to marry the plaintiff. (No. 19.)
It is a defence to an action of this sort, that the defendant has since his promise discovered the plaintiff to be unchaste (Irving v. Greenwood, 1 C. & P. 350), or to have had a bastard by some one (Young v. Murphy, 3 Bing. N. Č. 54), although ten or more years ago.
BRIBERY. The crime of offering any undue reward or remuneration to any public officer of the Crown, or other person entrusted with a public duty, with a view to influence his behaviour in the discharge of his duty. The taking such reward is as much bribery as the offering it. It also sometimes signifies the taking or giving a reward for public office. The offence is not contined, as some have supposed, to judicial officers. Bribery at elections vitiates the same. See stat. 31 & 32 Vict. c. 125 (Parliamentary Elections Act, 1868).
BROKERS. These are agents of various kinds, but principally agents on the Stock Exchange. By the stat. 6 Anne, c. 16, a broker on the Stock Exchange is required to be admitted by the Court of the Lord Mayor and Aldermen, and to pay 408. yearly for the use of the City, under a penalty of £25, increased by the stat. 57 Geo. 3, c. lx. (local and personal) to £100. But under the stat. 33 & 34 Vict. c. 60 (London Brokers Relief Act, 1870), the jurisdiction of the Court of Aldermen over brokers has been made to cease, saving existing rights; and brokers guilty of a fraud are disqualified from acting as brokers. It is the duty of a broker of the
BURGAGE TENURE. Tenure in burgage is described by Glanvil, and is expressly laid down by Littleton, to be but tenure in socage; and it is where the king or other person is lord of an ancient borough in which the tenements are held by a rent certain. It is, indeed, only a kind of town socage, by which other lands are holden, and is usually of a rural nature. A borough is usually distinguished from other towns by the right of sending members to Parliament; and where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. It is, therefore, a tenure proper to boroughs, whereby the inhabitants, by ancient custom, hold their lands or tenements of the king or other lord of the borough at a certain yearly rent. 3 Bl. 82.
See also title TENURES. BURGLARY. A criminal offence which consists in entering a dwelling-house with intent to commit any felony therein, or being in such dwelling-house committing any felony therein, and in either case breaking out of the same dwelling-house, in the night, i.e., between the hours of 9 P.M. and 6 A.M. (24 & 25 Vict. c. 96, ss. 1, 51). The punishment is penal servitude for life, or for any term not less than five years, or imprisonment with or without liard labour, or with or without solitary confinement, for any term not exceeding two years.
BURIALS. Burial in the parish churchFard is a Common Law right inherent in the parishioners, only the mode of burial being of ecclesiastical cognisance ; and under the stat. 4 Geo. 4, c. 52, the remains of persons against whom a finding of felo de x is had, are to be privately interred in the churcliyard of the parish, but no Christian rites of burial are to be performed over them. All burials require to be registered, 27 & 28 Vict. c. 97, extending the Act 6 & 7 Will. 4, c. 86. Under the stat, 20 & 21 Vict. c. 81, provision is made for the constitution of a burial board in every parish; and where two parishes, each maintaining its own poor, are united together for ecclesiastical purposes, a burial board for the whole district appointed by the vote of the vestry, or meeting in the nature of a vestry, is properly constituted (18 & 19 Vict. c. 118). No burial fee is due at Common Law, but it may be due by custom (Andrews v. Cawthorn, Willes, 536), or (as is the usual case) in virtue of particular statutes.
See also title BIRTHS. BYE-LAWS. Private laws or statutes made for the government of any corporation, which are binding upon themselves, unless contrary to the laws of the land, in which latter case they are void. By the stat. 5 & 6 Will. 4, c. 76, s. 1, all laws, statutes, and usages inconsistent with that Aet are thereby annulled and repealed in regard to municipal corporations.
CAMPBELL'S (LORD) ACT-continued. if death had not. ensued, would at Common Law have entitled the injured person to recover damages in respect thereof. The action is for the benefit of the wife, husband, parent, or child of the deceased person, and may be instituted by his or her executor or administrator ; but in case the executor or administrator does not, within six months of the death, institute the necessary action, then any of the persons beneficially interested, whether legally, or even morally only, in the result of the action, may institute the same. Under the 31 & 32 Vict. c. 119, 8. 5, the Board of Trade may appoint an arbitrator in the matter. The damages recoverable are strictly compensatory, and nothing is recoverable as a solatium.
CANALS. Are in general the property of companies, and the shares in them are pure personalty (Edwards v. Hall, 6 De G. M. & G. 74). By the stat. 8 & 9 Vict. c. 42, canal companies were enabled to become carriers on their canals, or to lease the same, or to take leases of other canals; and by the subsequent Act, 17 & 18 Vict. c. 31, the traffic and tolls over canals were regulated. It seems that, subject to the payment of tolls and the rules as to traffic, the public have a right of using the canal (Case v. Midland Ry. Co. 5 Jur. (N. S.) 1017); and that a canal company cannot grant an exclusive right to let boats for hire over their water, so as to give the grantee a right to sue a third party for the infringement of his right. Hill v. Tupper, 9 Jur. (N.S.) 725.
CANCELLATION. This means the rescission of any contract or instrument, whether negotiable or not. There can be no cancellation of course without the intention of doing so (De Bernardy v. Harding, 8 Exch. 822). Bonds and deeds are cancelled by tearing off the seals; but this cancellation does not extend to divesting any estate or interest which has already vested under the deed. Lumley, 29 L. J. (Ex.) 322.
CANON LAW. Is a body of Roman Ecclesiastical Law compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the Holy See. It was first digested in 1151 by Gratian into the Decretum Gratiani, or Concordia Discordantium Canonum; subsequently added to and continued by, or at the request of. Gregory IX. in 1230, in the Decretalia Gregorii Noni ; subsequently still further added to by Boniface VIII., in 1298, in the Sextus Decretalium ; afterwards by Clement V., in 1317, in the Clementine Constitutions; and completed by John XXII.
CALLING THE PLAINTIFF. It is usual for a plaintiff, when he or his counsel peræives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or to withdraw himself, whereupon the crier is ordered to call the plaintiff; and if neither he nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant recovers his costs. The phrase is synonymous with nonsuiting the plaintiff. See the phrase used in Car. & P. 351; 1 Car. & Marsh. 363.
See also title NON-SUIT. CALLS : See title COMPANIES.
CAMPBELL'S (LORD) ACT. Under this Act (9 & 10 Vict. c. 93), and the Act amending same (27 & 28 Vict. c. 95), provision is made for compensating the families of persons killed by accident. For the purposes of these Acts the death must have resulted from the act, neglect,or default of the defendant or his servants, such act, neglect, or default being of a kind which,
CAPIAS IN WITHERNAM–continued. not make deliverance in replevin, commanding the sheriff to take as many beasts of the distrainer, &c.
See also titles RETORNO HABENDO ;
WRIT DE REPLEVIN; and ELOIGN
CANON LAW-continued. in the Extraragantes, i.e., Riders. In addition to the Canon Law properly so called, there exists also a large compilation of Legatine and Provincial Constitutions, which are roughly considered as forming part of the Canon Law.
Upon the Reformation of Religion in England in the reign of Henry VIII., the authority of the Pope having been destroyed, all those canons which derived their force from that authority, of necessity ceased to have any force or efficacy; but by the stat. 25 Henry 8, c. 19, which was afterwards confirmed by the stat. 1 Eliz. c. 1, such of the then existing canons as were not repugnant to law or morality, or to the King's prerogative, were to continue in force until new canons were devised, which has never yet been done:
Upon the construction of this statute it has been decided in Cawdrey's Case (5 Rep. 1, 33 Eliz.), that not only the clergy but also the laity were bound by the then existing canons; and in Middleton v. Croft (2 Atk. 669), that the Canons of 1603 (and generally all canons subsequently made), never having been confirmed in Parliament, do not proprio vigore bind the laity, but the clergy only.
CANONS OF DESCENT: See title DESCENTS.
CAPIAS. Under the Imprisonment for Debt Act, 1869, there cannot be any writ of capias on bailablo process. But before that Act, and under the 1& 2 Vict. c. 110, the writ of capias might have issued after commencement of an action (although not as a means of commencing it), by leave of the judge, in cases where the cause of action amounted to £20, and the defendant was threatening to quit England.
See also following titles. CAPIAS AD AUDIENDUM JUDICIUM. In case a defendant be found guilty of a misdemeanour (the trial of which may, and usually does, happen in his absence), a writ só called is awarded and issued to bring him to receive his judgment.
CAPIAS AD SATISFACIENDUM (in practice frequently called shortly a Ca. Sa.). A writ of execution which a plaintiff' takes out after having recovered judg. ment against the defendant; it is directed to the sheriff, and commands him to take the defendant and safely keep him, in order that he may have his body at Westminster on a day mentioned in the writ to make the plaintiff satisfaction for his demand.
See also title EXECUTION. CAPIAS IN WITHERNAM. A writ which lies where a distress taken is driven out of the county, so that the sheriff can
CAPIAS UTLAGATUM; See title OCTLAWRY.
CAPITA (DISTRIBUTION PER). In the distribution of the personal estate of a person dying intestate, the claimants, or the persons who, by law, are entitled to such personal estate, are said to take per capita when they claim in their own rights as in equal degree of kindred, in contra distinction to claiming by right of representation, or per stirpes, as it is termed. As if the next of kin be the intestate's three brothers, A., B., and C., here his effects are divided into three equal portions and distributed per capita, one to each ; but if A. (one of these brothers) had been dead and had left three children, and B. (another of these brothers) had been dead and had left two; then the distribution would have been by representation, or per stirpes, as it is termed, and one-third of the property would have gone to A.'s three children, another third to B.'s two children, and the remaining third to C., the surviving brother,
CAPITAL. The punishment of death is frequently termed capital punishment; and those offences are called capital ofiences for which death is the penalty allotted by law. The use of the term may probably havearisen from the decapitation which, in former times was a common mode of executing the sentence of death, and which is prescribed in some of the statutes against traitors even now remaining in force. The extreme sentence of the law, however, has for many years been carried into effect against all offenders by hanging them by the neck. The offences which are still capital offences have, by the humane spirit of modern legislation, been recently much diminished, and latterly only included high treason, murder, rape, and unnatural offences, setting fire to any king's ship or stores, the causing injury to life with intent to commit murder, burglary accompanied with an attempt at murder, robbery accompanied with stabbing or wounding, setting fire to a dwelling-house any person being therein, setting fire to or otherwise destroying ships with intent to murder any person, exhibiting false lights with intent to bring ships into danger, piracy accompanied by stabbing, and riotous destruction of buildings. Stew. Bl. 128, n. (1). But at the present day, the only capital offences punishable with death are treason and murder, all other offences formerly capital being, now
CAPITAL continued. punishable with penal servitude for life or Fears, or some term of imprisonment.
CAPTION (captio). This word has several significations. When used with reference to an indictment, it signifies the style or preamble or commencement of the indictment; when used with reference to a commission it signifies the certificate to which the commissioners' names are subscribed, declaring when and where it was executed. The act of arresting a man is also termed a caption. Burn's Just. tit. Indictment; Cunningham.
CAPUT BARONLÆ. The castle or chief seat of a nobleman, which, if there be no 800, must not be divided amongst the daughters as in the case of lands, but descends to the eldest daughter. Cowel.
CARNALLY KNOWING : See titles ABDICTION ; BUGGERY; RAPE; SODOMY,
CARRIER. A common carrier is one who undertakes to transport from place to place for hire the goods of such persons as think fit to employ him (Palmer v. Grand Junction Ry. Co., 4 M. & W. 749). Such is a proprietor of waggons, barges, ligliters, merchant ships, or other instruments for the public conveyance of goods (1 Smith's L. C. in notes to Coggs v. Bernard, 101). A person who conveys passengers only is not a common carrier (Aston v. Beaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79). The liability of carriers is limited by 11 Geo.4 & 1 Will. 4, c. 68, provided they have pat up notices as required by the Act, and such notices have come to the knowledge of their customer. Kerr v. Willun, 6 M, & S. 150.
See also title BAILMENT. CARRYING COSTS. A verdict is said to carry costs when the party for whom the verdict is given becomes entitled to the payment of his costs as incident to such verdict. Where the damages given by a verdict are under forty shillings, the party obtaining such verdict is usually not entitled to his costs, and such a verdict is therefore said not to carry costs; but the judge may certify for costs.
CARTA DE FORESTA. A charter of the forest (contirmed in Parliament, 9 Hen. 3), by which many forests unlawfully made, or at least any precincts a lded by unlawful encroachments were disafforested. 3 Hallam's Mid. Ag. 222; Reeves, 254.
CASE, SPECIAL. See title SPECIAL CASE.
CASH NOTE. Is simply a bank-note of a provincial bank or of the Bank of Enyland. It is considered as cash for all purposes, a Bank of England note being, since
CASH NOTE- continued. 3 & 4 Will. 4, c, 98, s. 6, a legal tender even for all sums above £5, excepting of course at the Bank of England itself or its branch banks.
CASSETUR BREVE. A judgment is so termed because it commands the plaintiff's writ to be quashed. An entry of a cassetur breve is usually made by the plaintiff in an action after the defendant has pleaded a plea in abatement which the plaintiff is unable to answer, and therefore wishes his informal writ to be quashed, in order that he may sue out a better. See Tidd's 'Forms; 3 Chit. Plead. 1063, 6th ed.
CASU CONSIMILI. A writ of entry granted where a tenant by the curtesy or tenant for life aliens, in fee or in tail, or for another's life. It is brought by the person entitled to the reversion against the party to whom such tenant has so aliened to his prejudice. It derives its name from the circumstance of the clerks in Chancery having by common consent framed it after the likeness of a writ termed casu proviso, in pursuance of the authority given them by the statute, 13 Edw. 1, and which also empowers them to frame new forms of writs (as much like the former as possible) whenever any new case arises in Chancery resembling a previous one, yet not adapted to any of the writs then in existence. Les Termes de la Ley.
CASUAL EJECTOR. The nominal defendant, Richard Roe, in an action of ejectment is so called, because by a legal fiction he is supposed casually, or by accident, to come upon the land or premises and turn out the lawful possessors. See also title EJECTMENT.
CATTLE. Selling diseased cattle is a misdemeanour, if they are intended to be forth with slaughtered for meat; and selling diseased cattle to a cuttle-rearer, with knowledge of the contagious character of the disease is a tort, for which the purchaser may recover full damages from the vendor (Mullet v. Mason, I., R. 1 C. P. 559). There are also the following Acts regulating the treatment of cattle afflicted with contagious diseases :29 & 30 Vict. cc. 2, 5, 15 ; 30 & 31 Vict. cc. 35, 125 ; 32 & 33 Vict.
CAUTIONE ADMITTENDA. A writ which lies against a bishop for holding an excommunicated person in prison for bis contempt, notwithstanding his having offered sufficient pledges to obey the orders of the holy church for the future. Cowel.
CAUTIONNEMENT. In French law is the becoming surety in English law.
See title SURETYSHIP.
CAVEAT. A process formerly used in the Spiritual Court and now used in the Court of Probate, to prevent or stay the proving of a will, or the granting of administration. When a caveat is entered against proving a will, or granting administration, a suit usually follows to determine either the validity of the testament, or who has a right to administer. This claim or obstruction by the adverse party is an injury to the party entitled, and as such is remedied by the sentence of the Court of Probate either by establishing the will or granting the administration. A careat may also be lodged in the Court of Chancery against inrolling a decree which it is intended to appeal to the Lords Justices in Full Court, inasmuch as after inrolment the only appeal is to the House of Lords. But since the Judicature Act, 1873, this distinction is probably of less importance.
CAVEAT EMPTOR (let the buyer beware). A maxim of law applicable to the sale of goods and chattels, under or according to which a vendor is not bound to answer for the goodness of the wares he sells, unless he expressly warrants them to be sound and good, or unless he knows them to be otherwise, and uses any art to disguise them; and this is so, although the price is such as is usually given for a sound commodity. Every affirmation, however, at the time of sale, is a warranty, if it appears to have been so intended.
CEMETERIES: See BURIALS.
CENTRAL CRIMINAL COURT. This Court was constituted by the Acts 4 & 5 Will. 4, c. 36, and 19 & 20 Vict. c. 16, for the trial of offences committed in the Metropolis and certain parts of Essex, Kent, and Sussex adjoining thereto, and of such other offences as the Court of Queen's Bench in term, or a judge thereof in vacation, may direct to be removed thither, although committed out of the proper jurisdiction of the Court.
CEPI CORPUS. When a writ of capias was directed to the sheriff' to execute it, he was commanded to return it within a certain time, together with the manner in which he had executed it. If the sheriff had taken the defendant, and had him in custody, he returned the writ, together with an indorsement on the back stating that he had taken him, which was technically called a return of Cepi Corpus.
CERTAINTY, IN PLEADING. The word is used in pleading in the two different senses of distinctness and particularity. When, in pleading, it is said that the issue must be certain, it means that it must be particular or specific, as opposed to undue
CERTAINTY, IN PLEADING-cont. generality. Steph. Pl. 143, 4th ed. See also Rex v. Horne, Cowp. 682.
CERTIFICATE, TRIAL BY. This is a mode of trial now little in use; it is resorted to in cases where the fact in issue lies out of the cognizance of the Court, and the judges, in order to determine the question, are obliged to rely upon the solemn averment or information of
persons in such a station as affords them the clearest and most competent knowledge of the truth. Thus, when a custom of the City of London is in issue, such custom is tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder ; so, in the action of dower, when the tenant pleads in bar that the demandant was never accoupled to her alleged husband in lawful matrimony, and issue is joined upon this, the Court awarded that it should be tried by the diocesan of the place where the parish church in which the marriage was allegedl to have been had was situated, and that the result should be certified to them by the ordinary at a given day. Steph. Pi. 112, 113; Co. Litt. 74.
CERTIORARI. An original writ, issuing sometimes out of the Court of King's Bench, and sometimes out of Chancery. It is usually resorted to shortly before the trial, to certify and remove any matter or cause, with all the proceedings thereon, from some inferior Court into the Court of King's Bench, when it is surmised that a partial or insufficient trial will probably be had in the Court below (4 Vin. Abr. 329). It lies either for the verification of errors, or for the removal of plaints in replevin, or (most generally) for the removal of criminal proceedings.
CESSAT EXECUTIO. The suspending or stopping of execution. If in an action of trespass against two persons. judgment be given against one, and the plaintiff takes out execution against him, the writ will abate as to the other, because there must be cessat executio until it is tried against the other defendant. Toml.
CESSAVIT, A writ that formerly lay in various cases. It was generally sued out against a person for having neglected for two years to perform such service, or to pay such rent, as he was bound to by his tenure, and at the same time had not upon his premises sufficient goods or cattle to be distrained (Cowel). It also lay where a religious house had lands given to it on condition of performing some certain spiritual service, as reading prayers, giving alms, and which service it had neglected; and in either of the above cases if the cesser or neglect had continued for two years, the