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LIST OF BOOKS.
** The following is a list of the books which have been principally consulted in compiling this Dictionary, in addition to those that are referred to in the body of the work. The list is classified under heads, which may perhaps serve the student or junior barrister in making up his own Law Library.
I, COMMON LAW.
| I. COMMON LAW-continued. (A.) Law of Contracts :
(F.) Law of Procedure-continued. Benjamin on Sales, 1 vol.
Bullen and Leake's Precedents in
Pleading, 1 vol.
Buller's Nisi Prius, 1 vol.
Chitty's Forms, Q. B., &c., 1 vol.
, Archbold's Practice, 2 vols. Indermaur's Common Law, 1 vol.
Cole on Ejectment, 1 vol.
Davis's County Courts Practice, 1
Day's C. L. P. Acts, 1 vol.
Cunningham and Mattinson on
Pleading, 1 vol.
Smith's Action at Law, 1 vol.
II. EQUITY LAW.
(A.) General Principles :
Fisher on Mortgages, 2 vols.
Fry on Specific Performance, 1 vol.
Kerr on Discovery, 1 vol. , Mercantile Law, 1 vol.
, Fraul, 1 vol. Williams's Personal Property, 1 vol.
, Injunctions, 1 vol. (B.) Law of Torts :
,, Receivers, 1 vol.
Lewin on Trusts, 1 vol.
Lindley on Partnership, 2 vols.
May on Fraudulent Conveyances, Mayne on Damages, 1 vol.
1 vol. Sedgwick on Damages, 1 vol.
Smith's Manual of Equity, 1 vol. (C.) Law of Crimes :
Snell's Principles of Equity, 1 vol. Archbold's Criminal Pleading, 1
Spence's Equitable Jurisdiction, 2 vol.
Sugden on Powers, 1 vol.
Tudor's Leading Cases, Mercantile
and Maritime Law, 1 vol. (D.) Law of Evidence :
White and Tudor's Leading Cases,
Equity, 2 vols.
Adams on Trade Marks, 1 vol.
Bainbridge on Mines and Minerals, Taylor on Evidence, 2 vols.
by A. Brown, 1 vol. (E.) Law of Procedure:
Brown (A.) on Fixtures, 1 vol. Adams on Ejectment, 1 vol.
Buckley's Companies Acts, 1 vol. Archbold's Criminal Pleading, 1 vol.
Cooke and Harwood's Charities, 1 Banning's Limitation of Actions,
vol. 1 vol.
Copinger's Law of Copyright, 1 vol. Brandon's Lord Mayor's Court, 1
Cross on Lien, 1 vol. vol.
Goddard on Easements, 1 vol. Brandon's Foreign Attachment, 1
Godefroi's Railway Law, 1 vol. vol.
Hanson on Legacy and Succession Browne's Probate Practice, 1 vol.
Duty, 1 vol , Divorce Practice, 1 vol.
Johnson on Patents, 1 vol.
II. EQUITY LAW—continued.
| III. REAL AND PERSONAL PROPERTY-cont.
Elmer's Practice in Lunacy, 1 vol.
Blackstone's Commentaries, 4 vols.
Forsyth's Constitutional Law, 1 vol.
Hallam's Middle Ages, 3 vols.
A NEW LAW DICTIONARY.
À MENSÂ ET THORO. “From board and bed.” See titles DIVORCE; JUDICIAL SEPARATION.
À VINCULO MATRIMONII. “From the bond of matrimony." See title DIVORCE.
AB INITIO, TRESPASS: See title TRESPASS.
AB INTESTATO : See titles INTESTATE; TESTATE.
ABANDONED MOTION. Where any person has given notice of motion either interlocutory or by way of appeal, and afterwards fails to bring on his motion without otherwise saving it, he is liable to pay the entire costs of the abandoned motion to the other party or parties served with notice of the motion (In re Oakwell Collieries, 7 Ch. Div. 706).
ABANDONMENT. This a word of very frequent occurrence in law, and in general its legal meaning coincides with its natural or popular meaning. Thus,
(1.) The Abandonment of Children, — means the desertion and exposure of children under two years of age, whereby their life is endangered or their permanent health injured (24 & 25 Vict. c, 100, s. 27; R. v. Falkingham, L, R. 1 C. C. R. 222; R. v. White, L. R. 1 C. C. R. 311). See title CHILD, ABANDONMENT OF.
(2.) The Abandonment of a Distress, means throwing up the distress. See title DISTRESS..
(3.) The Abandonment of an Execution, means withdrawing from the possession of the goods seized. See title EXECUTION.
(4.) The Abandonment of the Excess, means in a County Court action giving up the debt so far as it exceeds the County Court limit of jurisdiction, £50 being that limit. See title COUNTY COURTS, JURISDICTION OF.
(5.) The Abandonment of Ship or Cargo, --means giving up wholly to the underwriters the ship and cargo insured, in order to claim the entire sum insured. See titles CARGO; TOTAL Loss ; UNDERWRITERS.
(6.) The Abandonment of an Action,
ABANDONMENT-continued. means its discontinuance. See title DisCONTINUANCE.
ABANDONMENT OF CARGO OR VESSEL. In the case of marine insurance, where the vessel or goods insured are damaged beyond repair or recovery, but are not actually or completely destroyed or lost, the insured may ABANDON the vessel or goods to the underwriter, and thereafter recover upon his policy of insurance as for a total loss. (See title TOTAL Loss.) A policy in express terms confined to total loss extends to such constructive total loss (Adams v. Mackenzie, 13 C. B. (N.S.) 412). The propriety of the abandonment in any particular case depends upon the question, whether an uninsured owner being upon the spot would or not in the particular case in the exercise of ordinary mercantile prudence have incurred the expenses of repairing the vessel or (as the case may be) of recovering the goods (Roux v. Salvador, 3 B. N. Č. 266). Notice of the abandonment must be given to the underwriter at the earliest moment (Dean v. Hornby, 3 E. & B. 180); and such notice must proceed from the real owner and not from a mere incumbrancer or mortgagee (Jardine v. Leathley, 32 L. J. Q. B. 132). The notice must be couched in positive terms (Thelusson v. Fletcher, 1 Esp. 73); but it need not be in writing (Parmeter v. Todhunter, 1 Camp. 541). The effect of the abandonment is to transfer the whole property in the vessel or goods to the underwriter as from the date of the loss (Cammell v. Sewell, 3 H. & N. 617; 5 H& N. 728); and the underwriter is therefore entitled to whatever advantage he can make of the vessel or goods abandoned. If he should complete the voyage, he becomes entitled to receive in addition that portion of the freight which is earned after the abandonment, where the freight is divisible, and where it is indivisible, he becomes entitled [by survivorship] to the whole (Case v. Davidson, 5 M. & S. 79; 2 B. & B. 379).
See titles INSURANCE; UNDERWRITERS.
ABANDONMENT OF DOMICILE: See 1 ABATEMENT OF ACTIONScontinued. title DOMICILE.
cery Jurisdiction Amendment Act, 1852 ABANDONMENT OF LEGAL PROCEED
(s. 52) as to actions in Chancery, may be INGS. When a plaintiff has become aware
taken to be now wholly superseded by the of any defendant's defence, whether before
Orders and Rules under the Judicature delivery of same, or at any time before
Acts, 1873–77, the exact purport of which replying thereto, he may wholly discon
is as follows: tinue his action, without any leave to do
In case any party to an action dies, so, by delivering a notice in writing to that
marries, or becomes bankrupt, and thereby effect. And he may do the like at any
some devolution of estate or interest arises subsequent stage of the action, but only
by operation of law, the action is not to be with the leave of the Court or of a judge
deemed abated (Order L., rule 1); but the and upon terms. Leave is not granted as
Court may order (as the case may require) a matter of course (Stahlschmidt v. Wal
the personal representative, or the husford, 4 Q. B. Div. 217). This abandoument
band, or the trustee, or other the successor or discontinuance does not prejudice any
in interest to be made (if necessary) a party subsequent action, unless in the case of
to the action or to be served with notice leave to discontinue one of the terms is to
thereof, and the Court may also otherwise that effect (Order XXIII., rule 1). The
order as may be just (Order L., rule 2). plaintiff is in each case to pay to the de
The order is made on summons or motion fendant the costs of the action, and for
supported by an affidavit of the event such costs the defendant may sign judg
occasioning the devolution of interest ment. Where an injunction has been
(Order L., rule 4). And where pending granted to the plaintiff on his undertaking
the action, there is any devolution of inas to damages, the action continues as to
terest by act of the party, the action is not such undertaking even after a discontinu.
to be deemed abated (Order L., rule 1), ance (Newcomen v. Coulson, L. R. 7 Ch.
but may be continued against the successor Div, 764). An action, when entered for
in interest (Order L., rule 3), and the retrial, may be withdrawn by consent of all
quisite order may be obtained upon an ex parties, either the plaintiff or the defen
parte application (by summons or motion) dant producing the requisite consent in
supported by an affidavit of the fact of the writing (Order XXIII., rule 2a ).
devolution of interest. The like procedure
applies where any person interested comes ABANDONMENT OF RAILWAYS. into existence after writ issued, his subseUnder the Abandonment of Railways Act, | quent coming into existence operating, in 1850 (13 & 14 Vict. c. 83), and the Act fact, as a devolution of interest (Order L., 14 & 15 Vict. c. 105, and the Railway rule 4). Companies Act, 1867 (30 & 31 Vict. c. 127),
The order in all the foregoing cases is ss. 31-35, any company authorised by called an order of revivor ; and the order statute passed previously to 1867 to make of revivor is to be served on the continuing a railway may, with the consent of the party or parties, and also upon the new (or holders of three-fifths of the shares or stock substitutionary) parties or party to the (if so much subscribed) of the company, action, and becomes binding as from the apply to the Board of Trade for the Board's time of service on the party served therewarrant to abandon the construction of with (Order L., rule 5), subject, neverthetheir railway or of part thereof, and the less, to be discharged upon application at Board may, if it deem the abandonment any time within twelve days after service expedient, issue its warrant for such aban (Order L., rule 6), or (in case of effective donment; and the warrant operates to disability) within twelve days after rerelease the company (Act 1850, s. 19) from moval of such effective disability. the duty of constructing the railway, sub Effective disability is infancy or unject nevertheless to certain liabilities to soundness of mind, when the infant or make compensation to various persons unsound person has neither a guardian ad aggrieved (Act 1850, ss. 19–22, 26). See litem nor (being a lunatic so found by inGodefroi & Shortt, pp. 500-3.
quisition) a committee. Coverture is not
an effective disability as regards revivor of ABANDONMENT OF SEAMEN : See title actions. SEAMEN.
But there cannot be (nor need there be) ABATE: See next following titles.
any such order of revivor, if the cause of
action do not survive or continue as regards ABATEMENT OF ACTIONS. The pro- the particular party (Order L., rule 1). visions regarding abatement, and remedy. (See Lloyd v. Dimmack, 7 Ch. Div. 398). ing same, that were contained in the An executor may revive, but only when C. L. P. Act, 1852 (89. 135-141), as to the interest of the intestate is a transmisactions at Common Law, and in the Chan- | sible interest (Twycross v. Grant, 4 C. P.
ABATEMENT OF RENT-continued. ment. No parul agreement to make such an abatement is binding. Levinge v. O'Brien, 4 Ir. Jur. 22.
ABATEMENT OF WRIT. Tbis was the defeat or overthrow of a writ. Thus, in stat. 11 Hen. 6, c. 2, the words are, that the justices shall cause the said writ to be abated and quashed. So in Staundf. P. C. 148, it is said that an appeal shall abate and be defeated by reason of covin or deceit.
ABATEMENT, PLEADINGS IN: See next title.
ABATEMENT OF ACTIONS-continued. Div. 40). An executor by reviving the action makes the action his own, and therefore is liable personally to costs (Boynton v. Boynton, 9 Ch. Div. 250); whence, semble, he cannot be compelled to revive (Wingrove v. Thompson, W. N. 1879, p. 59; and see Wright v. Swindon Ry. Co., 7 Ch. Div. 412).
The old rule that there could be no revivor as to costs only, which was inequitable in its operation and wholly devoid of principle, has been abrogated by the Solicitors Act, 1870 (33 & 34 Vict. c. 28), the 19th section of which gives to the “ person interested” under the decree or order a right to revive as often as may be necessary. N.B.--The decree or order must have been for payment of costs in an action.
Under the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), 8. 80, it is provided that when a debtor who has been adjudicated a bankrupt dies, the Court may order that the proceedings in the matter be continued as if he were alive.
ABATEMENT OF LEGACIES: See title LEGACIES.
ABATEMENT OF NUISANCE, In the case of a public nuisance the party abating same must have sustained some particular or special damage from it, i.e., some damage other than and besides the general incon. venience sustained by the public at large (Mayor of Colchester v. Brook, 7 Q. B. 339); but in the case of a private nuisance the party prejudiced may at once abate same (Lonsdale (Earl) v. Nelson, 2 B. & C. 302). However, the abatement must be made without any breach of the peace, and also without doing any unnecessary damage (Roberts v. Rose, 4 H. L. C. 163). Under the statute 38 & 39 Vict. c. 55, and the other Acts relative to the preservation of the public health, local authorities and their officers may abate nuisances in the manner mentioned in the Acts (Scarborough (Mayor, &c.) v. Scarborough Sanitary Âuthority.' 1 Exch. Div. 344; St. Helens' Chemical Co. v. St. Helens' Corporation, 1 Exch. Div. 196).
See also title NUISANCE. ABATEMENT OF POSSESSION. This is that species of injury to real property which is committed when a stranger, upon the death of an owner in fee, enters upon and takes possession of the land in esclusion of the heir or devisee of such deceased owner.
See also titles DETAINER; DISSEISIN;
DISTURBANCE; INTRUSION. ABATEMENT OF RENT. This is an agreement to accept a less sum for rent than that comprised in the original agree
ABATEMENT, PLEAS IN. These pleas, which were also called dilatory pleas, because they delayed for the time the further progress of the suit, or action, or prosecution, were pleas of some matter not material to the merits of the proceeding, but technically necessary or proper; and as such they were opposed to pleas in bar or peremptory pleas. They occurred either in civil or in criminal proceedings. I. In civil proceedings,—They were the
following: (1.) To the jurisdiction of the Court; (2.) To the person of the plaintiff';
as that (a) He is an outlaw;
or (b) He is an alien;
nicated person ; or (d) He is an attainted
person, and such
as that (a) He is privileged ;
title MISNOMER); or (C) He is misdescribed
(see title ADDI
TION); (4.) To the writ and action; and for.
merly (5.) On account of certain events
happening, namely, (a) The demise of the sovereign,
corrected by 1 Edw. 6, c. 7, and other subsequent sta
tutes; (6) The marriage of the 1 corC) The death parties / rected
by C. L. P. Act, 1852, and Chancery Jurisdiction Act, 1852, and by the Judicature Acts, 1873-7 (see title
ABATEMENT OF ACTIONS). II. In criminal proceedings, they are, generally speaking, the same; but 'under the statute 7 Geo. 4, c. 64, s. 19, no indictment or information is to be abated for mismomer, or addition, but the same shall