A New Law Dictionary and Institute of the Whole Law

FUGITIVE'S GOODS. The goods of a felon who took flight, and which, after the flight, were lawfully found, belonged to the king or to the lord of the manor. 5 Rep. 10 q.

FUNGIBLES. Any moveable goods which may be estimated by weight, number, or measure; hence jewels, paintings, statues, and works of art in general are not considered as fungibles, but, on the contrary, as non fungibiles, because their value cannot be measured by any common standard; whereas res fungibiles are money, barley, oil, and such-like, which can be repaid in kind.

FURTHER MAINTENANCE OF AC

TION, PLEA TO. A plea grounded upon some fact or facts which have arisen since the commencement of the suit, and which the defendant puts forward for the purpose of shewing that the plaintiff should not further maintain his action. It is called a plea to the further maintenance of the suit because it does not, like an ordinary plea in bar, profess to shew that the plaintiff had no ground of action when he commenced the suit, but simply shews that he has no right to maintain it further. A plea of payment of money into Court in satisfaction of the plaintiff's claim is in the nature of a plea to the further maintenance of the suit, such a plea admitting that the plaintiff had a good cause of action, but shewing that he ought not further to maintain it, upon the ground that the money so paid in by the defendant is sufficient to satisfy all damages which the plaintiff has sustained. See Step. Pl. 72, 4th ed.

GAGE: See title NANTISSEMENT.

GAME, Under this description are included hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards. 1 & 2 Will. 4, c. 32.

Game chased and killed on the land of A. is his property (Blades v. Higgs, 12 C. B. (N.S.) 501, and 13 C. B. (N.S.) 844); secus, where the game is started on another man's ground and killed on the ground of A. Churchinard v. Studdy, 14 East, 249.

See also titles CHASE; DEER; PARK;
WARREN.

GAMING: See title WAGERING.

GAOL: See title PRISON.

GAOL DELIVERY: See title COURTS OF JUSTICE.

GARANTIE. In French Law corresponds to warranty or covenants for title in English law. In the case of a sale this guarantie extends to two things-(1.) Peaceful possession of the thing sold; and (2.) Absence of undisclosed defects (défauts cachés).

GARNISHEE: See title ATTACHMENT OF

DEBT.

GAVELKIND. See titles FEUDAL TENURES; ESTATES.

GELD. This is a Saxon word signifying money or tribute. In combination with other words it signifies the compensation for some particular crime, e.g., wergeld signifies the value of a man slain; orfgeld, the value of a beast slain.

GEMOTE. This also is a Saxon word signifying a convention or assembly, e.g., witenagemote and shiregemote are respectively the assembly of the witan, or wise men, and of the shire or county, ie., the freeholders thereof.

GENERAL AVERAGE. Cases of general average arise where loss or damage is voluntarily and properly incurred in respect of the goods on board ship or in respect of the ship for the general safety of both ship and cargo; the loss sustained by the particular owners having enured to the advantage of the owners generally, it is only equitable to distribute-i.e., adjust the loss rateably over all the owners; and such adjustment is general average. The phrase simple or particular average is an inaccurate and misleading phrase, meaning nothing more than that a particular damage -e.g., the souring of a cask of wine-must rest where it falls.

General average is excluded in the case of particular losses arising from the ordinary risk and perils of the sea (Power v. Whitmore, 4 M. & S. 149); and, therefore, in the case of the loss of a mainmast, or damage done to the yards, by winds, &c., there is no general average. The distinction is well stated by Lord Kenyon in Birkley v. Presgrave (1 East, 220), in this manner;-That all ordinary losses and damages sustained by the ship, happening immediately from the storm or perils of the sea must be borne by the shipowners; but that all those articles which are made use of by the master and crew upon a particular emergency and out of the usual course, for the benefit of the whole concern, must be paid for proportionably as a general

GENERAL AVERAGE-continued. tarily and necessarily done to the ship in order to facilitate the jettison, is a general average loss; also, a voluntary stranding of the ship must be made good as a general average, provided the stranding was proper thing to do, or was prudent and reasonable.

Less usual instances of general average are where part of the cargo is necessarily sold by the master in order to defray the expenses of repairing injuries to the ship which are themselves matters of general average (The Gratitudine, 3 Rob. 255); also where the ship puts into port in distress owing to an injury which is itself matter of general average, and there are incurred expenses for repairs and for unloading, and also port-charges, seamen's wages, and cost of provisions during the detention (Da Costa v. Newnham, 2 T. R. 413); also the expenses of salvage; also the freight of jettisoned goods.

But general average is excluded in respect of the following losses:-The wages and provisions of the crew in cases of detention by embargo; the expenses occasioned by an ordinary quarantine, or by waiting for convoy; also (although with exceptions) deck cargoes that are jettisoned; also damage sustained in resisting capture.

With reference to the articles liable to contribute towards general average, the ship and freight contribute, the former in proportion to its value at the end of the voyage, the latter deducting the expenses of the voyage and the wages of the crew; also, all merchandise put on board for the purpose of traffic must contribute. But the ship's stores and the ship's ammunition do not contribute; as neither do the wearing apparel, luggage, jewels, &c., of the passengers or crew, all these articles being for use and not for traffic.

And see title ADJUSTMENT OF AVERAGE. GENERAL ISSUE, PLEA OF. Under the present practice, this plea is a mere denial of the gist of the action, that is, a denial of the principal fact on which the declaration is founded; and every other matter of defence must be pleaded specially. See R. T. T. 1853. The defence, where appropriate, is available in all sorts of actions and prosecutions, whether founded on contract, or on tort, or in crime, the most common examples of it being "Not guilty," "Never indebted," "Non Assumpsit," "Non est factum," and such like.

In certain cases it is permitted by statute to plead the general issue, and to give the special matter of defence in evidence; and in that case the words "by statute" must be inserted in the margin of the plea. However, under the Act 5 & 6 Vict. c. 97, s. 3,

GENERAL ISSUE, PLEA OF- continued. this form of defence is abolished in the case of local and personal Acts.

GENERAL SHIP. Where a ship is not chartered wholly to one person, but the owner offers her generally to carry the goods of all comers, or where if chartered to one person he offers her to several sub-freighters for the conveyance of their goods, she is called a general ship, as opposed to a chartered one. In these cases the contract entered into by and with the shipowner or master as his agent, is called a bill of lading.

This is a

See title BILL OF LADING. GESTIO PRO HÆREDE. phrase of Roman Law, and denotes acting as hæres, i.e, successor, to a deceased person, without having made or before making the aditio hæreditatis, or entry. See Gaius, ii. 174-8.

GIFT: See title CONVEYANCES.

GILD. This word (more commonly spelt guild) signifies primarily tribute, and secondarily, the fraternity or company that is subject to the tribute. The company is a body of persons bound together by orders and laws of their own making, the king's licence having been first had to the making thereof. A gild of merchants may be incorporated by grant of the sovereign, and such incorporation, without more, is sufficient to establish them as a corporation for ever. Guild-Hall is the name given to the hall of meeting of the guild; the term is applicable to the public place of meeting of the mayor, aldermen, and commonalty of every city and borough, but is applied par excellence to the place of meeting of the Lord Mayor, Aldermen, and Commonalty of the City of London.

GLADIUS. This word, which is the Latin for sword, was used as the symbol of jurisdiction; a person created an earl was gladio succinctus, he having jurisdiction over his county.

GOOD CONSIDERATION. Consists in "blood and natural affection," as opposed to "money and money's worth," which latter constitute a valuable consideration. Good consideration is, however, used in the stat. 13 Eliz. c. 5, as the same thing as valuable consideration.

GOODWILL. As applied to the sale of a business this phrase denotes the sum of money which any one would be willing to give for the chance of being able to keep the trade connected with the place where it is carried on. It is the purchase of an advantage that is dependent solely upon

GOODWILL-continued.

locality and therefore a sale of the goodwill without a sale or lease of the premises would be impossible and inconsistent; and an agreement for such a sale would therefore not be enforced in the Court of Chancery. Austen v. Boys, 2 De G. & J. 626.

GRACE. This word is commonly used in contradistinction to right. Thus, in 22 Edw. 3, the Lord Chancellor was instructed to take cognisance of matters of grace, being such subjects of equity jurisdiction as were exclusively matters of equity. Again, days of grace is a phrase denoting the three extra days allowed by the custom of merchants after the maturity of a bill of exchange for the payment thereof.

GRAND ASSIZE: See title TRIAL BY JURY.

GRAND JURY: See title TRIAL BY JURY.
GRAND SERJEANTY: See title TENURES.
GRANT: See title CONVEYANCES.

GROSS. The phrase "in gross" means standing separate from any corporeal hereditament.

See title INCORPOREAL HEREDITAMENTS. GROUND-RENT. A landlord, having land conveniently situated for building upon, not unfrequently lets it out to a builder at a trivial rent, for a period usually of ninety-nine years, upon the understanding that the builder-lessee shall, within a fixed time, erect upon it one or more messuages of a specified description. When these messuages are erected, the builder sublets them to occupants, who pay him a rent very considerably larger than what he himself pays to the ground landlord, being, in fact, a rent estimated to repay him with a profit within the ninety-nine years for his labour and outlay in erecting the messuages and taking a lease of the land from his own landlord. The builder's rent, or that which he pays to the ground landlord, is called the ground-rent. Under the stat. 4 Geo. 2, c. 28, the ground landlord may distrain on the premises for this rent; so that it is quite possible that the occupying tenant may have to pay not only his own occupation rent but also the ground-rent, unless proper precautions have been taken.

See also title RENTS.

GUARANTEE. Is a promise to answer for the debt, default, or miscarriage of another person, and for which that other person remains liable. It is usually a simple contract; and the agreement or memorandum expressing or evidencing it must be in writing bythe Statute of Frauds,and must contain all the material terms (Saunders v. Wakefield, 4 B. & Ald. 595), excepting that

GUARANTEE-continued.

under the stat. 19 & 20 Vict. c. 97 (Merc. Law Am. Act, 1856), s. 3, the consideration need not appear in the writing. The guarantee may be either for one particular amount, or for any sum not exceeding that amount, or it may be a continuing guarantee, limited or unlimited in amount; e.g., when A. became bound to B. for any debt which C. might contract with him not exceeding £100, the guarantee was held to be a continuing guarantee, and not extinguished by one dealing between B. and C. to that amount (Merle v. Wells, 2 Camp. 413); on the other hand, a bond entered into by A. and B. to the plaintiff to enable A. to carry on his trade. conditioned for the payment of all such sums not exceeding £3000 as should at any time thereafter be advanced by the plaintiff to A., was held not to be a continuing guarantee to the extent of £3000 for advances made at any time, but only a guarantee for advances once made to that amount. Kirby v. Marlborough (Duke), 2 M. & S. 18.

See also titles INDEMNITY; PRINCIPAL
AND SURETY.

GUARDIAN.

There were at one time a great many varieties of guardians of infants, of which the following enumeration comprises the principal

(1.) Guardians in chivalry, enduring until the age of twenty-one years, but abolished by the stat. 12 Car. 2, c. 24;

(2.) Guardians in socage, enduring until the age of fourteen years; Guardians by custom, e.g., of gavelkind lands, enduring commonly till the age of fifteen years;

(3.)

(4.) Guardians by nature, enduring till the age of twenty-one years; and for nurture, enduring till the age of fourteen years.

(5.) Guardians appointed by deed or will in virtue of the Act 12 Car. 2, c. 24, the most common species of guardian at the present day, and enduring till the age of twentyone years; and

(6.) Guardians appointed by the Court of Chancery (ex inquisitione), and enduring either for a particular purpose only, or generally till the age of twenty-one years;

The guardian appointed under the stat. 12 Car. 2, c. 24, is entitled both to the custody of the person of the child, and to that of the profits of his real and personal estate; and subject to the control of the Court of Chancery he regulates generally the entire conduct of the infant and the entire management of his estate. He cannot make or take any profit thereout.

HABEAS CORPUS. This is a writ directed to the gaoler, or other person having the applicant in custody, requiring him to produce the body, i.e., person, of the applicant in Court before the judge on a day named therein. The right to a habeas corpus exists by the Common Law, and its availability only has been facilitated by particular statutes, principally the stat. 31 Car. 2, c. 2 (Habeas Corpus Act) and 56 Geo. 3, c. 100 (In re Besset, 6 Q. B. 481). But whether at Common Law or under statute, the writ does not issue as a matter of course upon application in the first instance, but must be grounded on an affidavit, upon which the Court is to exercise a discretion in issuing it or not (Rex v. Hobhouse, 3 B. & A. 420). Where a witness is in custody, a habeas corpus ad testificandum is issued to bring him up as a witness (1 Arch. Pract. 355; 1 Dan. Ch. Pr. 805); and prior to the C. L. P. Act, 1852, s. 127, where the defendant was in custody at the suit of a third party, it was necessary for the plaintiff to issue a habeas corpus ad satisfaciendum to charge him in execution, but under that section a judge's order made upon affidavit that judgment has been signed and is unsatisfied suffices. 1 Arch. Pract. 1209.

HABENDUM. Is that part of an indenture expressed in the words "To have," and which are usually followed by the words "To hold" (called the tenendum). The phrase "to have and to hold," being as a general rule introductory to the declaration of the uses to, for, or upon which the lands are granted,-Its office is only to limit the certainty of the estate granted; therefore no person can take an immediate estate by the habendum of a deed when he is not named in the premises; for it is in the premises of a deed that the thing is really granted. 4 Cru. Dig. 272.

HABERE FACIAS POSSESSIONEM. When a plaintiff recovered in a real or mixed action (both of which forms of action, with the exception of ejectment, have been exploded since 1834), he was awarded a writ for the purpose of putting him in possession of the real or personal property recovered; the writ was called an habere facias possessionem in the case of a chattel interest, and habere facias seisinam in the case of a freehold interest. And at the present day a writ of habere facias possessionem is the process commonly resorted to by the successful party in an action of ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered.

See title EJECTMENT.

lating to these coaches and cabs within the metropolis are regulated by the stats. 1 & 2 Will. 4, c. 22, 1 & 2 Vict. c. 79, and 17 & 18 Vict. c. 86. They are properly carriages plying for hire off a stand. The driver is liable for negligently losing the luggage of a customer. Ross v. Hill, 2 C. B. 877.

HÆRETICO COMBURENDO. The stat. de hæretico comburendo (2 Hen. 4, c. 15), was the first penal law enacted against heresy, and imposed the penalty of death by burning upon all heretics who relapsed or who refused to abjure their opinions. It was repealed by the stat. 29 Car. 2, c. 9, which however abolished the penalty of death only, and left the ecclesiastical jurisdiction for the repression of atheism and false religion otherwise unaffected. See title TOLERATION.

HALF-BLOOD. Are children and other persons related to each other through one parent only, whether through the father only, or through the mother only. They were until 1833 excluded from all right of succession to lands, but were admitted by a stat. in that year (3 & 4 Will. 4, c. 106). For the place which they occupy, see title DESCENTS.

HANAPER.

This is an office connected with the Court of Chancery; writs, with the returns thereto, were kept in the hamper, or hanaper, in all cases in which the question was one affecting the subject only; writs (with the returns thereto), in which the Crown had an interest mediate or immediate being kept in the petty bag, which phrase is accordingly used in contradistinction to the hanaper. Both the Hanaper Office and the Petty Bag Office belong to the Common Law side of the Court of Chancery.

HANDWRITING. The proof of handwriting is in general by resemblance, and is effected in either or any of the following three ways, namely:

(1.) Ex visu scriptionis, i.e., by the comparison of the disputed writing by a witness who has seen the party in the act of writing;

(2.) Ex scriptis olim visis, i.e., by the like comparison by a witness who has had frequent correspondence with the party, or otherwise frequently seen writings of his.

(3.) Ex scripto nunc viso, i.e., by the like comparison by a witness who is an expert in characters or letters, and their peculiarities of formation.

The third sub-variety was not admissible by the Common Law, but was first made so by the C. L. P. Act, 1851 (17 & 18 Vict. c. 125, s. 27).

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