Obrazy na stronie

CESSAVIT-continued. Jord or donor and his heirs had a writ of Cersarit to recover the land itself, eo quod tenens in facien lis servitiis per biennium jam cessarit. Somewhat similar to the effect of this writ is the provision in the modern Acts regulating gifts of lands for popular education and amusement, that when the same lands cease to be so used they shall revert to the donof"; in order to decide the fact of the cesser of their appointed use, a writ of summons in cessavit, or something analogous thereto, would, presumeably, have to issue.

CESSION. Ceding or yielding up. By stat. 21 Hen. 8, c. 73, if any one having a benefice of £8 per annum or upwards, according to the then present valuation in the king's books, accept any other, the first shall be adjudged void unless he obtains a dispensation, which no one is entitled to have but the chaplains of the king and others therein mentioned, the brethren avd sons of lords and knights, the doctors and batchelors of divinity and law admitted by the universities of this realm; and a vacancy thus made, for want of a dispensation is called a cession.

CESSION DES BIENS. This in French Law is the surrender which a debtor makes of all his goods to his creditors, when he finds himself in insolvent circumstances. It is of two kinds, either voluntary or cumpulsory (judiciaire) corresponding very Dearly to liquidation by arrangement and bankruptcy in English Law.

CESTUI QUE TRUST. He for whose use or benefit another is invested or seised of lands or tenements; or in other words, he who is the real, substantial, and beneficial owner of lands which are held in trust.

See title TRUSTS. CESTUI QUE USE. He for whose use lauds or tenements are held by another.

See title Uses. CESTUI QUE VIE. He for whose life lands or tenements are granted. Thus, if A. grants lands to B. during the life of C., here C. is termed the cestui que vie.

CHAIRMAN OF COMMITTEES OF THE WHOLE HOUSE. At the commencement of every new Parliament, each of the two Houses' respectively selects from its own body a member to preside over its proceedings whilst the House is in committee. The officer so appointed is called “ The Chairman of Committees of the whole Honse,” and exercises the same authority in a committee of the whole House as does the Speaker on ordinary occasions. May's Parl. Pr.

CHALLENGE. An exception taken either against persons or against things,-(1.) Against persons, as jurors, either one or more of them ; (2.) Against things, as a declaration, &c. There are two kinds of challenge of jurors—either (1.) to the array, by which is meant the whole jury as it stands arraigned in the panel (see title PANEL); or (2.) to the polls, by which is meant one or more of the several particular persons or heads in the array. A challenge to the array is at once an exception to the whole panel in which the jury are arrayed; and it may be made upon account of partiality, or some default in the sheriff or his under officer, who arrayed the panel; as where the panel was arrayed at the 10mination or under the direction of either the plaintiff or defendant in the cause, &c., this would be a good ground for a challenge to the array. Challenges to the polls are exceptions to particular jurors; and seem to answer to the recusatio judicis in the Civil and Canon Laws. Challenges to the polls of the jury (who are judges of fact) are hy Sir Edward Coke reduced to four heads, viz., propter honoris respectum ; propter defectum; proper afectum; and propter delictum. See also Smith's Action at Law, 145, 10th ed.

CHALLENGE TO FIGHT. Is an indictable offence, punishable with fine or imprisonment, or both. It has been decided that no worils of provocation however aggravating can justify it. R. v. Rice, 3 East, 581.

CHAMBERS. Both at Common Law and in Chancery a very large amount of business is transacted in Chambers by the judges, and their subordinate officers, whether masters (as they are called at Common Law), or chief clerks (as they are called in Chancery). The jurisdiction of the masters at chambers is defined by the 30 & 31 Vict. c. 68, and the rules made in pursuance thereof, as follows:-All such business as by virtue of any statute or custom, or by the rules or practice of the Courts, or any of them respectively, were at the time of the passing of the said Act, or now are, done, transacted, or exercised by any judge of the said Courts sitting at chambers, except in respect of matters relating to the liberty of the subject, and except (unless by consent of the parties), in respect of the following proceedings and matters, that is to say, (1.) All matters relating to criminal

proceedings ; (2.) The removal of causes from the

inferior Courts, other than the
removal of judgments for the

purpose of execution ;
(3.) Prohibitions and injunctions ;

(4.) References under C. L. P. Act,

(5.) Rectifying of companies' registers;
(6.) Interpleader, not being matters of

practice only; (7.) Discovery ; (8.) Reviewing taxation of costs ;: (9.) Staying proceedings after verdict; (10.) Acknowledgments of married

women; (11.) Leave to sue in formâ pauperis ;

and (12.) Orders charging stock, funds, an.

nuities, dividends, or annual pro

duce thereof. The jurisdiction of the chief clerks at chambers, as defined by the Master in Chancery Abolition Act (15 & 16 Vict. c. 80), comprises the following several matters (1.) Appointment of guardians to

infants ; (2.) Maintenance and advancement of

infants ; (3.) Administration of personal estates

of deceased persons ; (4.) Proceedings under Legacy Duty

Act; (5.) Applications for time to plead,

answer, or demur; (6.) Applications for leave to amend

bills; (7.) Applications to enlarge time for

closing evidence ; (8.) Applications for production of

documents; (9.) Applications regarding conduct of

suit; and (10.) Applications regarding manage

ment of property. And the same jurisdiction has been extended by the 18 & 19 Vict. c. 134, and General Order XXXVI. to the following further matters, viz. :(11.) Applications for payment of divi

dends on funds in Court; (12.) Applications under when fund

Legacy Duty Act; does not (13.) Applications under exceed

Trustee Relief Acts;) £300; (14.) Applications for vesting order

under Trustee Acts; and the same jurisdiction has been by further Acts and Orders extended to the following further matters :(15.) Special orders for taxation or re

view of taxation ; (16.) Applications for new trustees of

charities; (17.) Applications under Mortgage De

benture, Act, 1865 ; (18.) Applications in arbitrations under

C. L. P Act, 1854; and (19.) Transfer of causes from County


Court to High Court of Chan

cery, and vice versa. And generally, all decrees and inquiries are prosecuted in Chambers.

CHAMPARTY, or CHAMPERTY. This species of maintenance consists in the purchasing an interest in the thing in dispute, with the object of maintaining and taking part in the litigation (2 Iust. 484, 562, 563; Stanley v. Jones, 7 Bing. 378; Stevens v. Bagwell, 15 Ves. jun. 139. It is not champerty if the parties have a common interest, and a moral interest, as that of a parent in a child, suflices : nor is it champerty to simply mortgage the property in litigation with a view to raising the requisite funds. Cockell v. Taylor, 15 Beav. 103.


CHANCELLOR. There are many officers bearing this title; those, however, which it will be necessary to mention here, are: Ist. The Lord Chancellor. 2ndly, the Chancellor of the Duchy of Lancaster. 3dly, the Chancellor of a Diocese; and 4thly, the Chancellor of the Exchequer. (1.) The Lord Chancellor is the presiding judge in the Court of Chancery; he is created by the mere delivery of the king's great seal into his custody, whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord. He is a privy councillor by his office, and prolocutor of the House of Lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic (for none else was then capable of an office so conversant in writings), and presiding over the royal chapel, he became keeper of the king's conscience, visitor in right of the king of all hospitals and colleges of the king's foundation, and patron of all the king's livings under the value of twenty marks per annuin, in the king's books.' He is the general guardian of all infants, idiots, and lunatics; and has the general superintendence of all charitable uses in the kingdom. And all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the Court of Chancery. (2.) The Chancellor of the Duchy of Lancaster is the Chief Judge of the Duchy Court, who in ditficult points of law used to be assisted by two judges of the Common Law, to decide the matter in question. This Court used to be held in Westminster Hall, and was, formerly, much uzed in relation to suits

CHANCELLOR-continued. between tenants of Duchy lands, and against accountants and others for the rents and profits of the said lands. It is now held in Manchester and Liverpool, the chief cities of the Duchy, and is presided over by a Vice-Chancellor, who decides all judicial questions. (3.) The Chancellor of the diocese, or of a bishop, is an officer appointed to hold the bishop's Courts for him, and to assist him in matters of Ecclesiastical Law; who as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some University. (4.) The Chancellor of the Exchequer, is also a high officer of the Crown, who used to sit sometimes in Court, and sometimes in the Exchequer Chamber; and, together with the regular judges of the Court, saw that things were conducted to the king's benefit. His principal duties, however, are not of a judicial character, but concern the management of the royal revenue; and under the Judicature Act, 1873, he is deprived altogether of his strictly judicial functions.

CHANCE-MEDLEY. The accidentally killing a man in self-defence is so termed; as if, in the course of a sudden broil or quarrel, I, in the endeavour to defend myself from the person who assaults me, accidentally kill him.

CHANCERY. The High Court of Chancery is the highest Court of judicature in this kingdom next to the Parliament, and is of a very ancient institution. The jurisdiction of this Court is of two kinds : (1.) ordinary, and (2.) extraordinary. (1.) The ordinary jurisdiction is that wherein the Lord Chancellor, Lord Keeper, &c., in his proceedings and judgments, is bound to observe the order and method of the Common Law; and (2.) the extraordinary jurisdiction is that which the Court exercises in cases of equity, i.e., “ of grace.”

The ordinary Court holds plea of recognizances acknowledged in the Chancery, writs of scire facias for repeal of letters patent, &c., and also of all personal actions by or against any officer of the Court; and by Acts of Parliament, of several other offences and causes. All original writs, commissions of bankruptcy, of charitable uses, and other commissions, as idiots, lunacy, &c., issue or used to issue out of this Court, for which purposes the Chancery was said to be always open; and sometimes a supersedeas or writ of privilege hath been here granted to discharge a person out of prison. An habeas corpus, prohibition, &c., may be had from this Court in the vacation, and here a subpæna may be bad to force wiinesses to appear in other Courts, where these latter Courts have

CHANCERY-continued. no power to call them. 4 Inst. 79; 1 Dany, A br. 776.

The extraordinary Court, or Court of Equity, proceeds by the rules of equity and conscience, and moderates the rigour of the Common Law, considering the intention rather than the words of the law, Equity being the correction of that wherein the Law, by reason of its universalities, is deficient. On this ground therefore, to maintain a suit in Chancery, it is ordinarily alleged that the plaintiff is incapable of obtaining relief at Common Law ; and this must be without any fault of his own, as by having lost his bond, &c., Chancery never acting against but in assistance of the Common Law, supplying its deficiencies, not contradicting its rules. Under the Judicature Act, 1873, the Court of Chancery is to be known as the Chancery Division of the High Court of Justice, and is to retain all its extraordinary jurisdiction as abovedefined (sect. 34), but apparently no part of its ordinary jurisdiction, which is transferred, part of it (e.g., Idiocy, Lunacy, Patents, &c.) to the Court of Appeal, and the other part of it to the other divisions of the High Court of Justice, which represent respectively the Courts at present respectively known as the Courts of Common Law.

CHAPELRY (capellania). The same thing to a chapel as a parish is to a church, ie., the precincts and limits of it. Les Termes de la Ley; Cowel; 6 Jur. 608.

CHAPTER. An assembly of clerks in a church cathedral; and in another signification, a place wherein the members of that community treat of their common affairs. It may be said that the collegiate company is termed chapter metaphorically, the word originally implying a little head; for this company or corporation is, as a head, not only to rule or govern the diocese in the vacation of the bishopric, but also in many things to advise the bishop, when the see is full. Les Termes de la Ley.

CHARACTER, EVIDENCE AS TO. In Anglo-Saxon times, this species of evidence, so far as it regarded the parties themselves to an action or suit, was almost the only evidence regarded (see title COMPURGATION); but with the introduction of the Norman procedure by inquest or recognition, evidence of witnesses as to facts came to be received, and also to be principally attended to, and evidence as to the character of the parties gradually sank to the secondary position which it at present occupies. The law as it exists at the present day may be thus stated :

(1.) As to parties,-Character evidence, as a general rule, is not receivable at all; excepting, of course, when the character of

CHARACTER, EVIDENCE AS TO-cont. CHARITABLE TRUSTS ACTI—contd. the party is directly in issue, and excepting ment of the properties of charities has been in criminal prosecutions, when the cha- regulated and facilitated. A board, enracter of the party has some bearing upon titled the Charity Commissioners, is conthe offence with which he stands charged. stituted, having the entire control of the Best on Evidence, pp. 355-357; and, administration of the properties, and notice

(2.) As to witnesses,-Character evi- to whom must be given before any applicadence, as a general rule, is always receiv- tion is made to the Court of Chancery able, the evidence being, however, of a under the Acts touching the affairs of the general character (as distinguished from charities. It seems that such an applicaparticular circumstances), and going to tion may be made after such notice is given, affect the credibility of the witness only. although the Charity Commissioners refuse

their sanction to the objects of the applicaCHARGING ORDER. Under the stat. 1& 2 Vict. c. 110, ss. 14-16, aided by the stat.

tion, (Watford Burial Board, Ex parte, 2

Jur. (N.S.) 1045), but not, quære, if they 3 & 4 Vict. c. 82, s. 1, when a judgment debtor shall have any Government stock,

disapprove of the application altogether.

It must be remembered, however, that the funds, or annuities, or any stock or shares of or in any public company in England, a

Court of Chancery has an original jurisdic. judge at chambers may, on the ex parte

tion in matters of charities, and that it is

not ousted thereof by the statutes aboveapplication of the creditor, grant an order

mentioned. nisi charging the property in question with the judgment debt, the order becoming absolute unless the debtor take proceedings

CHARITABLE USES. Those objects and according to the statute to discharge it, but

purposes are considered charitable, firstly, the realization of the security to be post

which are expressly enumerated in the stat. poned for six months (Brown v. Bamford,

43 Eliz. c. 4; aud, secondly, which by 9 M. & W. 42). In case the order is erro

analogy are deemed within its spirit and neous, the Court may discharge it (Fowler

intendment. The charitable objects enuv. Churchill, 11 M. & W. 57). In the case

merated by the stat. of Elizabeth are as of a fund in the Court of Chancery, if the

follows: “ Relief of aged, impotent, and charging order is in aid of a judgment of a

poor people; maintenance of sick and Common Law judge, then the latter judge,

maimed soldiers and mariners; schools of and not a judge of the Court of Chancery, learning, free schools, and scholars in uniis to make the order ; but a Vice-Chancellor

versities; repair of bridges, ports, havens, will grant a stop-order in such a case in

causeways, churches, sea-banks, and highaid of the charging order. On the other

ways; education and preferment of orphans; hand, if the charging order is sought in aid

relief, stock, or maintenance for houses of of a decree of the Court of Chancery itself,

correction; marriages of poor maids; supthen, whether the fund is in Court or not,

portation, aid, and help of young tradesthe Court will issue it, together with a

men, handicraftsmen, and persons decayed; stop-order, upon the petition of the creditor,

relief or redemption of prisoners or capwho need not have entitled his petition in

tives; aid or ease of any poor inhabitants the Act 1 & 2 Vict. c. 110.

concerning payment of tifteens, setting out See title STOP-ORDER.

of soldiers, and other taxes."

The classes of gifts which have been held CHARGING PART OF A BILL IN

to be within the spirit and intendment of CHANCERY. The plaintiff in a suit in the statute, although not expressly enumeraEquity, after setting forth the subject of ted therein, are principally the following :-complaint, adds such circumstances by Gifts for the advancement of religion, or way of allegation as are calculated to cor- connected with religious services or places, roborate his statement, or anticipate and e.g., bequests for the ornaments of a parish controvert the claim of his adversary; and church, for the stipend of a minister or such allegations are technically called curate, or for the augmentation thereof, for charges, and the part of the bill in which the distribution of bibles, for keeping in they occur is termed the charging part of repair the church chimes; also, in assistthe bill.

ance of the poor, as of unsuccessful literary CHARITIES : See titles CHARITABLE

men; and generally all purposes which are TRUSTS ACTS; CHARITABLE Uses; and

of a public and legal nature. And since

the Toleration Act (1 W. & M. c. 18), a MORTMAIN.

gift of any of these sorts in favour of disCHARITABLE TRUSTS ACTS. Under senters or nonconformists is equally legal, these Acts, being principally the Act of provided it be not for a purpose decmed 1853 (16 & 17 Vict. c. 137), the Act of superstitious, as to which see title SUPER1855 (18 & 19 Vict. c. 124), and the Act STITIOUS USES ; and since the stat. 2 & 3 of 1860 (23 & 24 Vict. c. 136), the manage- Will. 4, c. 115, Roman Catholics have been

CHARITABLE USES —continued. put upon the same footing as Protestant Dissenters. CHARTERPARTY.

This is an agreement in writing (not necessarily nor even usually under seal), whereby a shipowner lets an entire ship, or part of a ship, to a merchant for the conveyance of goods, and the merchant in consideration thereof, and of the conveyance of the goods to be thereunder effected, promises to pay to the shipowner an agreed sum by way of freight for their carriage. A charterparty is in general effected through a broker acting for the shipowner. A ship chartered in this manner is opposed to a general ship.

Construction of Charterparty. The agreement is construed liberally, upon the maxim ut res magis valeat quam pereat ; but if the words are clear the Court will not reject or explain away a stipulation, however harsh or oppressive in the event (Stadhard v. Lee, 3 B. & S. 364). Also, usage is admissible to explain mercantile terms and phrases, but not to contradict or vary the written instrument itself. However, a custom not repugnant to anything in the writing may be annexed to it. And with reference to what mistakes shall avoid the contract and what stipulations amount to conditions precedent, and generally as to all other matters of construction, the rules applicable to other contracts apply to charterparties also.

Dissolution of Charterparty.The agreement may be dissolved

(1.) By consent before breach without any new consideration, and after breach upon terms. If the original agreement is by deed, the agreement for dissolution must be by deed also; on the other hand, if the original agreement is in writing not under seal, the agreement for dissolution may be either in like writing or by word of mouth, and that notwithstanding the original contract may require by statute to be in writing. Taylor v. Hillary, 1 Cr. M. & R. 741;

Also (2). By an unreasonable delay in the commencement of the voyage, at least when a particular day is fixed for the sailing, and time is (as it usually is) of the essence of the contract;

Also (3). By act of law, rendering the performance impossible, without any fault of the parties; e.g., by the outbreak of a war or a general interdiction of commerce, but not by a mere embargo, nor even by a blockade, although duly notified.

Remedies on Charterparty.The remedy, if the contract is under seal, is by action of debt or covenant, but if in writing not under seal, by action of assumpsit. With reference to the parties to sue and be sued, the same rules apply as are applicable to

CHARTERPARTY-continued. ordinary contracts, e.g., to charge the undiscovered principal without discharging the agent; and if the contract is under seal, the like rules apply.

CHASE. This word has two significations in the Common Law. First, it signifies a driving of cattle to or from any place, as to chase a distress to a castle or fortlet. Secondly, it signifies a place for the reception of deer and wild beasts of the chase generally, as the buck, doe, fox, marten, and roe, &c. A chase is not the same as a forest, or a park, but is of a nature between the two, being commonly less than a forest and not having so many liberties and privileges incident to it, and yet of larger extent than a park, and stored with a greater diversity of game, and having more keepers to superintend it. And it is said by Crompton in his Jurisdiction, 148, that a forest is no sooner in the hands of a subject than it loses its name, and at once becomes a chase : so that a chase is distinguished from a forest on the one hand in this respect, that the latter cannot be in the hands of a subject, and the former may be so; and from a park, on the other hand, in this respect, that the chase is not enclosed, and has not only a larger compass and more game, but also a greater number of keepers and officers. Manwood's Forest Laws; 4 Inst. 314,

CHATTELS. All things which are usually comprehended under the name of goods, come under the general name of chattels. Chattels are divided into two kinds, real and personal. Chattels real, are such as concern real estates, or landed property, and are so called because they are interests issuing out of such kind of property, as the next presentation to a church, terms for years, estates by statute merchant, statute staple, elegit, &c.

Chattels personal are generally such as are moveable, and may be carried about the person of the owner wherever he pleases to go; such as money, jewels, garments, animals, household furniture, and almost every description of property of a moveable nature. Things personal, however, are not confined to moveables; for as things real comprise not only the land itself, but such incorporeal rights as issue out of it, so things personal include not only those tangible subjects of property wbich are capable of locomotion, but also the incorporeal rights or interests which may grow out of or be incident to them. This class (to which may be assigned the term of incorporeal chattels), comprehends among other species, patent right, or the exclusive privilege of selling and making. particular

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