ALTERATIONS IN WRITTEN INSTRUMENTS continued.

or (b) it is made by a stranger, the alteration vitiates the instrument; and (2.) If the alteration is immaterial,— then if (a) it is made by a party, the alteration vitiates the instrument. Aldous v. Cornwell (Law Rep. 3 Q. B. 573) must be distinguished, as the case of an immaterial alteration by some unknown person; But if (b) it is made by a stranger, the alteration has no effect at all in vitiating the instrument.

With

ALTERNATIVE OBLIGATIONS. reference to these obligations, Lord Coke has said that in case an election be given of two several things, always he who is the first agent shall have the election (Co. Litt. 145 a). And it has been laid down as a general rule that the person who has to perform one of two things in the alternative has the right to elect (Layton v. Pearce, 1 Doug. 15). The Roman law agrees generally with the English law in these respects. Brown's Savigny, 68-69.

An election once made is binding, and the promise is thenceforth single to perform the alternative chosen: Quod semel placuit in electionibus, amplius displicere non potest (Co. Litt. 146 a). Where the one of two alternatives becomes impossible, or is so from the first, the promise is absolute to perform the other (Da Costa v. Davis, 1 B. & P. 242), unless, in the case of an impossibility subsequently arising, the construction of the contract or the circumstances under which it was entered into exclude the ordinary rule (Leake, Contracts, 371-375). It seems that no difference is made, whether the alternative which is impossible is so for natural or for legal reasons. Brown's Sav. 67.

AMALGAMATE. Two companies cannot amalgamate with each other, unless such a transaction is authorized by the constitutions of both companies, or unless all the shareholders in both consent to the amalgamation. And where there is a power to amalgamate, that power must be strictly pursued (2 Lindl. Puer. 627). Speaking generally, corporations cannot amalgamate. Brice on Ultra Vires, 431.

AMBASSADOR. This is the commissioner who represents one country in the seat of Government of another; and as such representative, he is exempt, together with his family, secretaries, and servants, from the local jurisdiction, not only in civil, but also in criminal cases. England, his exemption depends prin

In

AMBASSADOR-continued.

cipally on the stat. 7 Anne, c. 12. Where such an ambassador involves himself in commercial relations, much inconvenience arises, the better opinion being that even in that case he is exempt from the local jurisdiction. But an ambassador may waive his privilege in all these respects, and submit himself to the jurisdiction. Such an ambassador is, however, amenable in his own country to the national jurisdiction thereof; and in fact it is because he carries with him into the foreign country the territory of his own country that he is exempted from the local jurisdiction. (See title EXTRA-TERRITORIALITY). Whether the exemption operates to deprive a creditor of his real (as opposed to a mere personal) right, is a disputed question (see case of the United States Ambassador to Prussia, Wheaton, pp. 307-318). An ambassador is a public minister, which in the usual case a consul is not.

AMBIGUITY: See title EXTRINSIC EVI

DENCE.

AMENDMENT. This is the correction of some error or omission or the curing of some defect, in judicial proceedings. First, in civil cases. Here amendments are either at common law or by statute. In the times of oral pleading, the parties were allowed to correct and adjust their pleadings at any time during the oral altercation, and were not held to the form of statement which they might first have advanced. And so at the present day, until judgment is signed, either party may even at Common Law amend his pleading until judgment is signed, subject to the discretion of the Court or judge, who will not allow amendments which appear unreasonable, or whereby the opposite party may be prejudiced. But no amendments will be allowed in pleas in abatement, because such pleas are disfavoured. And even after judgment has been signed, the Courts have a power, even at Common Law, of amending, it being considered that during the term wherein any judicial act is done, the record remains in the breast of the judges (Co. Litt. 260 a). This power of amendment at Common Law has been largely supplemented by various Acts of Parliament called the Statutes of Amendment, which are commonly classed with the Statutes of Jeofails, and by which almost all errors in pleading, being errors in form only, are amendable, and certain objections to defective pleadings, being defective as to form only, are obviated after certain stages have been reached in a cause. The so-called Statutes of Amendments were the 14 Edw. 3, c. 6, st. 1; 9 Hen. 5, c. 4, st. 1; 4 Hen. 6, c. 3; and 8 Hen. 6, cc. 12, 15; the so-called Statutes of

AMENDMENT-continued.

Jeofails were the 32 Hen. 8, c. 30, 18 Eliz. c. 14, 24 Jac. 1, c. 13, 16 & 17 Car. 2, c. 8, 4 & 5 Anne, c. 16, and 5 Geo. 1, c. 13. And see generally as to both the ease of Stennel v. Hogg, 1 Wm. Saund. 260, ed. 1871.

But under recent statutes, being chiefly the C. L. P. Acts, 1852, 1854, and 1860, much larger powers of amendment are conferred, not only in cases of the misjoinder and non-joinder of party plaintiffs or defendants, but also and principally where a variance appears between the pleadings and the evidence. As to such, see the several titles MIS-JOINDER, NONJOINDER, AND VARIANCES.

Secondly, in criminal cases.-It was the opinion of Lord Holt and of the other judges in R. v. Tucker (1 Salk. 51), that whatever was amendable at Common Law in civil cases was also amendable at Common Law in criminal cases. The statutes, however, mentioned above, allowing amendments and curing defects in civil cases, did not in general extend to criminal cases at all, except perhaps to cases of misdemeanour. But by the 7 Geo. 4, c. 64, s. 19, if an accused person pleaded a misnomer, the indictment was to be amended by inserting the correct orthography. And by the more recent statutes (11 & 12 Vict. c. 46, s. 4), as to the amendment of variances, and 14 & 15 Vict. c. 100, as to errors in the names of counties, cities, &c., and in the allegations of the ownership of property, very large powers of amendment are committed to the judge in criminal trials, where he is of opinion that the defendant cannot be prejudiced thereby in his defence on the merits.

AMENDS, TENDER OF. Under the statute 11 & 12 Vict. c. 44, s. 11, relative to proceedings against justices, the justice may, after the required notice of action has been given, tender such sum of money as he may think fit as amends for the injury complained of in such notice, and he may thereupon pay into Court the money tendered, and may afterwards give in evidence the same; in which case, if the jury assess the injury at no larger amount, judgment shall be given for the defendant, who shall be entitled to deduct his costs out of the money so paid in. A like tender of amends may also be made by revenue officers and by special constables, and also in cases of involuntary trespasses, and for wrongful proceedings under Railway Acts. See Arch. Pr. 1372, 1174, and 1273.

AMERCIAMENT. A pecuniary punishment for some fault or misconduct, differing (in theory at least) from a fine in being less out of leniency (merci) than the fault

AMERCIAMENT-continued.

or misconduct deserved. Magna Charta, c. 24, requires a freeman to be amerced only for a great fault, and in proportion only to its greatness. See Griesley's Case, 8 Co. 38 a.

AMEUBLISSEMENT.

In French law,

under the régime en communauté (see that title), when that is of the conventional kind, if the husband or wife, or either of them, make their or either of their present or future immoveable property come into the community either in whole or in part, this is called an ameublissement, which may be either determinate or indeterminate.

AMICUS CURIE. When a Court of Justice is in doubt or in error in a matter of law, any of the counsel present may inform the Court upon it, out of a regard for the Court merely.

AMNESTY. An act of pardon or oblivion, such as that of 1660 (Restoration of Charles II.).

AMORTIZE. To alien in mortmain.

AMPLIARE. "Est boni judicis ampliare jurisdictionem suam," i.e., to endeavour to find some ground for assuming jurisdiction in a proper case, not to exceed his admitted jurisdiction.

ANATOMY, SCHOOLS OF. These are regulated by the stats. 2 & 3 Will. 4, c, 75, 4 & 5 Vict. c. 26, 24 & 25 Vict. c. 96, and 34 Vict. c. 15. See also R. v. Feist, 8 Cox, C. C. 18.

ANCESTOR. The distinction made between an ancestor and a predecessor in law, is, that the former is applied to an individual in his natural capacity, as J. S. and his ancestors, and the latter to a company, body politic, or corporation, as a bishop and his predecessors. Cowel; Co. Litt. 78 b.; Britton, 169. However, this distinction is not attended to in the Succession Duty Act, 1853 (16 & 17 Vict. c. 53).

ANCESTREL. Relating to one's ances

tors. Homage ancestrel was where a tenant and his ancestors had time out of mind held by homage of the lord and his ancestors. Also, real actions were either possessory, i.e, of a man's own seisin, or ancestrel, i.e., of the seisin of his ancestors.

ANCIENT DEMESNE, or DOMAIN vetus patrimonium domini). A tenure whereby all manors belonging to the Crown in the days of Edward the Confessor and William the Conqueror were held; the numbers and names of which manors, as of all others belonging to common persons,

ANCIENT DEMESNE, or DOMAIN

continued.

William the Conqueror caused to be set down in a book called Domesday; and those which appear by that book to have belonged to the Crown, and are there denominated terræ regis, are called ancient demesne. Lands in ancient demesne are of a mixed nature, ie., they partake of the properties both of copyhold and of freehold; they differ from ordinary copyholds in certain privileges, and from freehold by one peculiar feature of villenage, viz., that they cannot be conveyed by the usual common law conveyance, but pass by surrender to the lord or his steward in the manner of copyholds, with the exception that in the surrender the words "to hold at the will of the lord" are not used, but simply the words" to hold according to the custom of the manor." There are three kinds of tenants in ancient demesne. First. Those whose lands are held freely by grant of the king. Secondly. Those who do not hold at the will of the lord, but yet hold of a manor which is ancient demesne, and whose estates pass by surrender, or deed, and admittance, and who are styled customary freeholders. Thirdly. Those who hold of a manor which is ancient demesne, by copy of court roll, at the will of the lord, and are styled copyholders of base tenure (Cowel; Scriven on Copyholds, p. 425; 1 Cruise, Dig. 44). Whether lands are ancient demesne or not must be tried by Domesday Book, F. N. B. 16 D., the authority of which is conclusive (4 Inst. 269); but the question whether lands are parcel of a particular manor which is ancient demesne may be tried by a jury. Hunt v. Burn, 1 Salk. 57.

Tenants in ancient demesne used to enjoy certain privileges, e.g., that of being impleaded in the Courts of their own manors only, and of being exempted from serving on the juries of the county; but those privileges have mostly ceased, and provision is made by the stat. 4 & 5 Vict. c. 35, and the Acts amending same, for the general enfranchisement of ancient demesne lands.

See title COPYHOLDS.

ANCIENT DOCUMENTS. These are received in evidence for certain purposes, and subject to certain restrictions. But ancient grants are not to be received in evidence unless they can be accounted for as coming, e g., from the hands of some one connected with the estate (Swinnerton v. Stafford (Marquis), 3 Taunt. 91); or from a reasonably probable custodian of them (Croughton v. Blake, 12 M. & W. 205). Ancient surveys have in many instances been held inadmissible to prove the extent or rights of a manor (Evans v. Taylor, 7 A. & E. 617;

ANCIENT DOCUMENTS-continued. Daniel v. Wilkin, 7 Exch. 429). But when ancient documents evidence an act of ownership, then they are admissible as evidence of title (Doe d. William the Fourth v. Roberts, 13 M. & W. 520;; as they also are, where they are in the nature of an inquisition in a public matter. Carr v. Mostyn, 5 Exch. 69.

ANIMALS. There may be property in wild animals when reclaimed, e.g., in a cat; and in the case of unreclaimed animals, the property in them, according to the law of England, is said to be in the owner of the land upon which they are started and captured (Blades v. Higgs, 12 C. B. (N.S.) 501), although by the laws of most countries it is in the captor (See title OCCUPATIO). The owner of animals with a mischievous propensity is liable for the damages they occasion, provided he knows their mischievous propensity. (Jones v. Perry, 2 Esp. 482; Stiles v. Cardiff Steam Navigation Co., 12 W. R. 1080.) The stat. 28 & 29 Vict. c. 60, provides for dogs doing damage to cattle or sheep. The stats. 5 & 6 Will. 4, c. 59 (since repealed), 12 & 13 Vict. c. 92, and 17 & 18 Vict. c. 60, punish cruelty to animals; and the stat. 2 & 3 Vict. c. 47, prohibits bear-baiting and cockfighting. And as to bequests of personal property to a dog-charity, see University of London v. Jarrow, 23 Beav. 159.

ANNATES. These were first fruits, and were so called because one year's value of profits is taken as their rate.

ANNUITY. This is a yearly payment of a certain sum of money granted to another in fee, or for life, or for a term of years, and charging the person of the grantor, although it may also be made to charge his real estate, in which latter case it is most commonly called a rent-charge. The remedy was either by writ of annuity or by distress, according as the person or the lands of the grantor were sought to be affected. The Apportionment Act (4 & 5 Will. 4, c. 22) first made annuities apportionable. Under the Annuity Act (53 Geo. 3, c. 141), annuities for lives granted by way of the repayment of money lent, required to be inrolled in Chancery; but now, under the stat. 18 & 19 Vict. c 15, they require to be merely registered in the Court of Common Pleas. Annuities may also be regarded as legacies payable, not in mass at one time, but by instalments every year or aliquot part of a year; therefore the word legacies in general comprises the word annuities. Bolton (Duke) v. Williams, 4 Bro. C. C. 361; Mullins v. Smith, 1 Dr. & Sm. 204.

If an annuity is given simpliciter, it is

ANNUITY-continued.

an annuity for the life only of the annuitant (Kerr v. Middlesex Hospital, 2 DeG. M. & G. 583); or, in the case of joint annuitants, for the life of the longest liver of them (Wilson v. Maddison, 2 Y. & C. C. C. 372); and the law is the same since 1 Vict. c. 26 (Nichols v. Hawkes, 10 Hare, 342). Where, however, an annuity is given to A. in general terms, and the gift is accompanied with a direction to provide for the same out of the proceeds of property, that is a perpetual annuity (Kerr v. Middlesex Hospital, supra), unless the direction is mere surplusage, e.g., merely directs payment out of the "general effects" of the testator (Innes v. Mitchell, 6 Ves. 464); and, of course, the testator may, by express words, give a perpetual annuity. Stokes v. Heron, 12 Cl. & F. 161.

Sometimes an annuity is payable only out of income (Foster v. Smith, 1 Ph. 629), and sometimes it is a charge on the corpus itself of the estate (Wright v. Callender, 2 De G. M. & G. 652), in which latter case the annuitant may, if the income is insufficient, require a sale of a sufficient part of the corpus (May v. Bennett, 1 Russ. 370), and will even be entitled to a prospective order for the necessary successive future sales (Hodge v. Lewin, 1 Beav. 431). An indefinite trust to receive rents for payment of an annuity is a charge of the annuity upon the corpus (Phillips v. Gutteridge, 11 W. R. 12); and a direction to purchase an annuity for A. entitles A. to have the purchase-money paid over to him or her (Ford v. Batley, 17 Beav. 303; Re Brown's Will, 27 Beav. 324); although the testator may have directed the contrary (Stokes v. Cheek, 28 Beav. 620); and if the intended annuitant is dead, his personal representatives will be entitled to the purchase-money (Day v. Day, 1 Dr. 569), although the purchase-money is to consist of the proceeds of land sold. Bayley v. Bishop, 9 Ves. 6.

An annuity will abate with general legacies (Carr v. Ingleby, 1 De G. & Sm. 362), unless the annuity is given as a specific interest in land, when it will only abate with the other specific legacies. Creed v. Creed, 11 Cl. & F. 491.

When an annuity is given by will, the first payment thereof is to be made, in the absence of express directions otherwise directing payment, one year after the testator's death (Gibson v. Bott, 7 Ves. 96, or if successive interests for life and in remainder are given by way of annuity out of a sum of money directed to be placed out to answer it, then two years from the testator's death. Gibson v. Bott, supra.

ANSWER. This is the most usual mode of raising defences to a bill of complaint

ANSWER-continued.

in the Court of Chancery, being more common than either plea or demurrer. By the Judicature Act, 1873, this form of pleading is extended to the Courts of Common Law.

See title PLEADING.

ANTE-NUPTIAL SETTLEMENT: See title MARRIAGE SETTLEMENTS.

ANTICIPATION. This word is commonly used in Courts of Equity as signifying the alienation of married women. It is a rule of the Common Law that the absolute property given to any one cannot be fettered with any restraints or conditions against alienating (Tud. L. C. Conv. 858; Bradley v. Peixoto); but Courts of Equity in the case of property given to the separate use of a married woman allow the restraint, as tending to render the separate use more perfect and assured (Tullett v. Armstrong, 1 Beav. 21). Whence the clause against anticipation is common in gifts of property to females to their sepa

rate use.

See title SEPARATE ESTATE.

ANTICHRÈSE: See title NANTISSEMENT.

APOLOGY. In the case of a libel being published in a newspaper or other like public writing, the 6 & 7 Vict. c. 91, provides that the defendant may plead the inadvertent insertion of same without malice or gross negligence, and the prompt insertion in the same publication of an apology for same; and he may pay into Court at the same time a reasonable sum of money by way of amends. A like provision is made in the case of defendants being private individuals (s. 1), and such apology shall go in mitigation of damages.

APOSTASY. This offence differs from heresy in this, that apostasy is a total renunciation of a religious belief once possessed, while heresy consists in denying some one particular doctrine only. At the present day apostasy is punishable under the stat. 9 & 10 Will. 3, c. 32 (Revd. Stats. 9 Will. 3, c. 35), by incapacity for or deprivation of offices of trust or emolument, and by imprisonment for three years without bail. The information must be laid within four days after the outward profession of apostasy, and be followed up within three months, otherwise the accusation falls through. The penalty is also remitted upon an open retractation in Court of the offence.

APOTHECARY: See title MEDICINE.

APPARITOR. This was a messenger of

APPARITOR-continued.

the spiritual Courts, whose duty was to serve the process thereof.

This APPEAL (from the Fr. appeler). word has two significations: it signifies in one sense a complaint or an appeal to a superior Court, when justice is supposed not to have been done by an inferior Court. It also signifies, when spoken in reference to a criminal prosecution, an accusation by one subject against another for a heinous crime, demanding punishment for the injury sustained by himself, rather than for the offence committed against the public. Criminal appeals were however abolished by 59 Geo. 3, c. 46. The principal kinds of them while they existed were the following: 1. Appeal of arson. 2. Appeal of death. 3. Appeal of mayhem. 4. Appeal of rape; and 5. Appeal of robbery (59 Geo. 3, c. 46). Of these appeals all were capital, except that of mayhem. The latest instance of an appeal was Ashford v. Thornton (1 B. & A. 405) (one of rape followed by murder), and probably in consequence of that case the above-mentioned statute was passed forbidding such appeals for the future. Where the verdict in an appeal was in favour of the appeller, he might insist upon what terms he pleased as the ransom of the appellee's life. has been suggested that, although appeals are abolished, some right of action for pecuniary compensation should be permitted in the cases in which appeals formerly lay.

It

The right of appeal in certain cases has been extended by various recent statutes, thus:

(1.) An appeal from a decision of the

Court on a rule to enter a verdict, or a nonsuit, or for a new trial, under C. L. P. Act, 1854; (2.) An appeal in Crown Cases Reserved, under 11 & 12 Vict. c. 78; (3.) An appeal from a decision of justices in summary proceedings, under 20 & 21 Vict. c. 43; (4.) An appeal from an order giving relief in ejectment against forfeiture, under C. L. P. Act, 1860; and

(5.) An appeal from a revising barrister in election matters, under 28 & 29 Vict. c. 36.

See also COUNTY COURT, for appeals therefrom; and QUARTER SESSIONS, for appeals therefrom and thereto.

APPEARANCE. In an action at law, when a defendant is served with a writ of summons, which is a judicial mandate issuing out of and under the authority of the Court in which the defendant is sued,

APPEARANCE-continued.

he is bound by the command which is contained in that writ to enter an appearance thereto within eight days; this appearance is a memorandum in writing according to a prescribed form, signifying that the defendant has appeared, according to the command of the writ, and such memorandum is delivered to the proper officer of the Court, and by him is entered in a book kept for that purpose; and this is what is technically called entering an The appearance (Arch. Prac.; Tidd). word is also applicable to proceedings in other Courts besides those of the Common Law; and it has a very similar meaning as used in the proceedings in a suit in Equity. The practice was first introduced into Courts of Equity by the Orders of 8th May, 1845.

In the case of infants and married women, they are to appear, the former by his or her guardian, and the latter in person, in an action at Law (2 Arch. Pr. 1252): and the former by his or her guardian ad litem, and the latter either in person or by her next friend, in a suit in Equity (1 Dan. Ch. P. 460; Morg. Ch. Acts, 691). The effect of entering an appearance is to waive any irregularity in the process (Forbes v. Smith, 24 L. J. (Ex.) 167); but in the Courts of Equity a conditional appearance may be entered which shall not have that effect. 1 Dan. Ch. Pr. Ch. xiii.

For neglect to appear, or in default of appearance, in an action at Law, if the writ of summons is specially indorsed, the plaintiff may, under certain circumstances, sign final judgment at once (C. L. P. Act, 1852, s. 27), and if the writ of summons is not specially indorsed, he may, with leave, proceed to file his declaration with short notice to plead, and in that way arrive at judgment (s. 28). In a suit in Equity, the plaintiff may enter an appearance for a defendant.

APPENDANT. This word, in its general sense, denotes anything annexed in whatever manner to any other. But as applied to incorporeal hereditaments in the law of real property, it denotes something annexed as an incident to some other and corporeal hereditament, and the annexation of which thereto is of a necessary character, and has therefore existed from the very beginning of time. Thus, that amount of common which from the first, and as of necessity, the lord assigned to his villeins to depasture their beasts of husbandry during such times as their lands (which were all of them arable) were in ear, was called common of pasture appendant; and similarly, the lord from the first, and as of necessity, erected and endowed a church