Imágenes de páginas
PDF
EPUB

in the succeeding reign it was sufficiently powerful to assert prominent jurisdiction." The lord high admiral had two functions, first as chief of the Court called after him (see High Court of Admiralty), though in practice this was presided over by his deputy, and secondly as exercising general authority over the naval strength of the kingdom. In more modern times, however, the judge of the Admiralty Court was appointed by the crown, and the naval authority of the admiral is now always delegated to commissioners called the lords of the admiralty.3

II. § 2. Admiral is also the title of high naval officers; they are of Admirals in various grades-rear-admiral, vice-admiral, admiral, admiral of the fleet- the navy. the latter being the highest.

ETYMOLOGY.-Spanish: almirante; Italian, almiraglio; French, amiral, from Arabic amir, commander, with the Arabic definite article "al" affixed or suffixed."

ADMIRALTY.—§ 1. Admiralty matters may be said to include civil questions relating to the possession, mortgage, damage, salvage and towage of ships, and claims in respect of necessaries and wages (see the various titles). They were formerly within the jurisdiction of the High High Court of Court of Admiralty (q. v.), which originally had exclusive jurisdiction in Admiralty. all matters arising wholly upon the sea, including crimes committed on the sea, and offences against discipline in the Royal Navy; but by various acts concurrent jurisdiction in criminal matters was given to other Courts, so that practically its jurisdiction was limited to civil matters. By the Judicature Acts, 1873, 1875, its jurisdiction has been transferred to the High Court of Justice, and the Judge of the Admiralty Court made a Judge of the Probate, Divorce and Admiralty Division of the High Court. As to the various kinds of admiralty actions, see Action, §§ 15 et seq.; also Appraisement, §2; Arrest, §7; Assize, note to § 3; Bail, § 3; Caveat, § 3; Central Criminal Court; Intervene, § 3; Marshal, § 2; Monition, § 1; Preliminary Acts; Prize Court.

Courts.

§ 2. Some of the County Courts (7. v.) have jurisdiction in admiralty County matters where the amount in dispute does not exceed a certain sum. (See also Cinque Ports; Justices of the Peace; Court of Passage.)

ADMISSIBLE.-Evidence (that is, the statements of witnesses or the production of documents or things) is said to be admissible when the court or judge is bound to receive it, that is, allow it to be adduced, at a trial or other inquiry. The question whether certain evidence is admissible is one of law, and depends either upon the nature of the fact offered to be proved (see Relevancy), or upon the means by which it is offered to be proved, as in the case of hearsay evidence, secondary evidence, &c. (See Evidence.) When a judge at a trial rejects admissible evidence, or admits inadmissible evidence, this may be a ground for a new trial. (See Trial.)

1 Williams & Bruce's Admiralty, 3; Co. Litt. 260 b; Co. Fourth Inst. c. xxii.; Spelman's Post. Works, 217.

2 Homersham Cox's Eng. Gov. 716. 3 Ibid. 720.

Encycl. Brit. v. Admiral.

5 Diez, Etym. Wörtb.

6 Williams & Bruce Adm.; Roscoe's
Adm., passim; Steph. Comm. iii. 341;
iv. 311; Reg. v. Keyn, 2 Ex. D. 63.
7 Jud. Act, 1873, ss. 3, 31.
9 Best on Evidence, 105.

To benefice.

In pleading

and evidence.

On surrender, descent, &c.

voluntary.

Express;

by implication.

Contract.

ADMISSION-ADMIT.-§ 1. Admission, in ecclesiastical law, is where the bishop, upon examination of a person presented to a benefice within his diocese, approves of him as a fit person "to serve the cure of the church." (See Presentation; Institution; Induction.)

§ 2. In the law of pleading and evidence, an admission is an acknowledgment that an allegation is true. It may be made extrajudicially, as where a person admits his indebtedness. An admission in judicio may be made by a party to an action either expressly by a notice or pleading, or impliedly by failure to deliver a pleading or to traverse an allegation made by his opponent: 3 sometimes the parties agree to make admissions of facts or documents in order to save the expense of proving them. (See Special Case; Notice to Admit.)

ADMIT-ADMITTANCE.-§ 1. The lord of a manor is said to admit a person as tenant of copyhold lands forming part of the manor when he accepts him as tenant of those lands in place of the former tenant, e. g. on the surrender, devise, or death intestate of the former tenant: in the last case, it is called admittance on descent. In theory, the lord admits the surrenderee, devisee, or heir as a favour, and hence in the enrolment of an admittance on the court rolls it is stated that the surrenderee "prays to be admitted;" but in fact, the lord is bound to admit the new tenant if his claim is in accordance with the custom of the manor; and hence an admittance in such cases is opposed to a voluntary admittance, which takes place where the lord makes a voluntary grant. (See Surrender, § 3; Grant, § 3.) § 2. Admittance may be either express or by implication. Express or formal admission is generally performed by the steward of the manor delivering a rod, straw, glove, or other symbol representing the seisin of the land, to the new tenant, and the admittance is then enrolled on the court rolls. Formerly, admittances could only be made in Court, i. e. in the customary Court of the manor (see Court Baron), but this is no longer the case. Admittance by implication is where the lord does some act showing an intention of accepting the new tenant (e. g. by receiving rent from him), or where the admittance of one tenant operates as the admittance of another; thus the admittance of a particular tenant may operate as the admittance of a tenant in remainder. (See Copyhold; Fine, §§ 3 et seq.)

ADMONITION is the first and lightest form of ecclesiastical censure, and is in the nature of a warning, which, if not obeyed, may be followed by a severer censure, e. g. suspension (2. v.)s (See Monition; Censure.)

ADOPT.-I. § 1. To adopt a contract is to accept it as binding, notwithstanding some defect which entitles the party to repudiate it. Thus,

[blocks in formation]

when a person affirms a voidable contract, or ratifies a contract made by his agent beyond his authority, he is said to adopt it. So a company may be formed for the purpose of adopting a contract entered into on its behalf. (See Trustee, § 6; Affirm; Ratify; Voidable.)

II. § 2. The institution of adoption of children is not known to Children. English law, that is, a person cannot by any declaration put a stranger in

the same position as a natural-born child. it in our law is that between a child and a (See In Loco Parentis.)

The only relation resembling
person in loco parentis to it.

ADULTERATION is the offence of wrongfully mixing cheap or inferior substances with another substance, so that the compound may be sold as pure or genuine. The act regulating the manufacture and sale of Food and drugs. food and drugs is stat. 38 & 39 Vict. c. 63, amended by stat. 42 & 43 Vict. c. 30. The penalty for making or selling food adulterated so as to be injurious to health is 50l. for the first offence, and six months' hard labour for the second. The penalty for selling adulterated food in other cases, without giving notice to the purchaser, is 20l. The acts provide for the appointment of public analysts. § 2. The adulteration of seeds is regu- Seeds. lated by stat. 32 & 33 Vict. c. 112, and 41 & 42 Vict. c. 17.1

ADULTERY is where a married person has connexion with a person other than his or her wife or husband. Adultery by the husband is a ground for judicial separation, or (when combined with other offences) for dissolution of marriage. Adultery by the wife is by itself ground for dissolution of marriage; it may also form the subject of a petition by the husband against the alleged adulterer and the wife for damages alone." (See Co-Respondent; Cruelty; Desertion; Dissolution, § 6.)

ADVANCEMENT, in its most general sense, is an expenditure of Advancement of chilcapital or principal money for the benefit of a person who is, to a certain dren; extent, dependent or unprotected. § 2. Thus, in wills and settlements containing limitations in favour of children on attaining twenty-one, power is generally given to the trustees or guardians to apply for the advancement or benefit of each child during its minority part of the capital or share of the property to which it will become entitled on attaining twenty-one. The money might, for instance, be wanted (in former days) to purchase a commission in the army, or to pay a premium on articles. (See Maintenance and Accumulation.)

§ 3. The stat. 22 & 23 Car. 2, c. 10, one of the statutes for the distri- by portion. bution of intestates' estates, provides that, in dividing the estate of an intestate, every child "who shall be advanced by the intestate in his lifetime by portion" shall only receive so much of the estate as, with the portion advanced, will make his share equal to those of the other children. An "advancement by portion " within the meaning of the statute is a sum given by a parent to establish a child in life (as by starting him.

1 For the history of the law, see Steph. Comm. iv. 268.

2 Browne on Divorce, 143; 20 & 21 Vict.

c. 85, s. 33.

3 Elphinstone's Conv. 310; Watson's Comp. Eq. 584.

Doctrine of advancement.

For stolen property.

in business), or to make a provision for the child (as on the marriage of a daughter). (See Hotchpot.)

§ 4. The equitable doctrine of advancement is that, if a purchase or investment is made by a father, or person in loco parentis, in the name of a child, a presumption arises that it was intended as an advancement; that is, for the benefit of the child, so as to rebut what would otherwise be the ordinary presumption in such cases, of a resulting trust in favour of the person who paid the money.2 (See Trust.)

ETYMOLOGY." Advancement " "advancement in the world."

seems to be an abbreviation of the expression

ADVERSE. See Possession; Witness.

ADVERTISEMENT.-When a person makes an offer by an advertisement (e. g. of a reward for giving information or restoring lost property), and a person performs the condition, this makes a contract on which the latter can sue the advertiser. (See Prospectus.) § 2. It is an offence, punishable by a penalty of 50l., to publicly advertise a reward for the return of lost or stolen property, coupled with an express or tacit promise not to make inquiries, or to repay money for or advanced on the property by a pawnbroker or other person. (See Libel.)

ADVERTISEMENTS OF QUEEN ELIZABETH are certain articles or ordinances drawn up by Archbishop Parker and some of the bishops in 1564, at the request of Queen Elizabeth, the object of which was to enforce decency and uniformity in the ritual of the Church. The queen subsequently refused to give her official sanction to these advertisements, and left them to be enforced by the bishops under their general powers."

ADVOCATE, in its popular sense, is a person who argues cases in Court on behalf of his clients. In the technical sense, an advocate is a person admitted by the Archbishop of Canterbury to practise in the Court of Arches in the same way as a barrister practises in the temporal Courts. Formerly, the advocates of that Court formed a college, which was abolished by stat. 20 & 21 Vict. c. 77. Barristers are now allowed to practise in the Ecclesiastical Courts. (See Doctors Commons.)

ADVOCATE-GENERAL is the adviser of the crown on questions of naval and military law.

ADVOWSON is the right of presenting to a rectory, vicarage or other ecclesiastical benefice whenever it is vacant. (See Presentation, § 2.) It

1 Taylor v. Taylor, L. R., 20 Eq. 155.
2 Dyer v. Dyer, 2 Cox, 92; White &
Tudor's L. C. i. 184; Watson's Comp. Eq.
872; Bennet v. Bennet, 10 Ch. D. 474.
3 Pollock on Contract, 170.

Stat. 24 & 25 Vict. c. 96, s. 102.

5 Phill. Eccl. Law, 910; Ridsdale v. Clifton, 2 P. D. 276; Combe v. Edwards, 2 P. D. 354.

6 Phill. Eccl. Law, 1215 et seq.

may belong to a private person, or a bishop or other dignitary, or to the crown. An advowson belonging to the bishop of the diocese is technically the right of collation (q.v.); some advowsons are called donatives (q. v.), and a few (such as benefices attached to cathedrals) are elective; an ordinary advowson is sometimes called, by way of distinction, a presentative advowson. An advowson is an incorporeal hereditament, and is either appendant or in gross (see those titles).1

ETYMOLOGY.]—Norman-French: avowesoun;2 Mediæval Latin, advocatio, apparently from advocatus, the patron or person who was bound to defend and protect the rights of the Church.

AFFEER, or AFFERE, is an old word signifying to assess or tax; it was applied principally to amerciaments, which were affered or assessed by a jury.3

ETYMOLOGY.-Norman-French: affeurer, to assess, from the low Latin afforare, to fix a price, from forum, a market."

AFFIDAVIT.-§ 1. An affidavit is a written statement in the name of a person called the deponent, by whom it is voluntarily signed and sworn to or affirmed. (See Deposition; Examination; Commissioner.) It is usually made in an action or other judicial proceeding (see Declaration, § 6); and in that case the affidavit consists of the title (q. v.), the body (which contains the statement, and is generally divided into paragraphs), the signature of the deponent, and the juratĜ (q. v.).

Affidavits are of infinite variety, but many are known by short names which do not always explain themselves. The following are the principal:

§ 2. When the evidence on the trial of an action is taken by affidavit, Evidence by the plaintiff files his affidavits in chief, the defendant then files his affi- affidavit. davits in answer to the plaintiff's evidence, and the plaintiff files his affidavits in reply to the defendant's affidavits. On interlocutory applications, evidence is usually given by affidavit. In either case each party is as a general rule entitled to cross-examine the witnesses of the opposite party. (See Answer; Deponent.)

§ 3. When an order is made against a party to an action requiring him to make discovery on oath of the documents in his possession or power relating to the matters in question in this action, he is bound to file an affidavit specifying the documents which he has at that time, or formerly had, in his possession or power, and stating that he has not and never had any others." This affidavit is called in the Common Law Divisions an affidavit of discovery, and in the Chancery Division an affidavit of documents. (See Discovery; Production; Privilege; Traverse.)

Affidavit of documents. discovery or

§ 4. Where in a common law action extra expenses have been incurred Affidavit of which do not appear upon the face of the proceedings, such as witnesses'

1 Phill. Eccl. Law, 328; Bl. Comm.

ii. 21; Co. Litt. 17 b, 119 a.

2 Britt. 222 a; Mirehouse on Advowsons, 6; Du Cange, s. v. Advocatus. 38 Co. 39; Co. Litt. 126 b.

Loysel, Inst. Cout. Gloss. s. v. 5 Littré, s. v. Afforage.

S.

Hunter's Suit, 77; Smith's Action (12), 81; Rules of Court, xxxvii. 3a et seq. (April, 1880).

7 Rules of Court, xxxviii.

8 Ibid. xxxvii. 2.

9 Ibid. xxxi. 13; Daniell's Ch. Pr. 1676.

D

increase.

« AnteriorContinuar »