A New Law Dictionary and Institute of the Whole Law

SAVING THE STATUTE OF LIMITATIONS. Preventing the operation of the statute. A creditor is said to save the Statute of Limitations when he saves or preserves his debt from being barred by the operation of the statute. Thus, in the case of a simple contract debt, if a creditor commence an action for its recovery within six years from the time when the cause of action accrued, he will be in time to save the statute.

See title LIMITATIONS, STATUte of.

SAVINGS BANK. All the Acts relating to these institutions were repealed by the stat. 9 Geo. 4, c. 92, and that Act has been in its turn repealed by the stat. 26 & 27 Vict. c. 87, which, together with the stat. 16 & 17 Vict. c. 45, and (as to Post Office Savings Banks) 24 Vict. c. 14, now expresses the law upon the subject. A savings bank is not necessarily a banking company within the meaning of the Joint Stock Companies Acts; nor can a depositor maintain an action against the trustees of the society, but the question must be settled between them by arbitration; and in case of embezzlement, the remedy is by mandamus to compel the trustees and managers to appoint an arbitrator. Rex v. Mildenhall Savings Bank, 6 A. & E. 952.

SCANDAL. The words "scandal " and "impertinence" are thus used with reference to pleadings in Equity. Scandal is defined to be anything alleged in a bill, answer, or other pleading, in such language as is unbecoming the Court to hear, or as is contrary to good manners; or any thing set forth which charges some person with a crime not necessary to be shewn in the cause. Impertinence is defined to be the encumbering the records of the Courts with long recitals, or with long digressions of matters of fact, which are altogether unnecessary and totally immaterial to the point in question. Exceptions might formerly have been taken to pleadings for scandal and impertinence; and such exceptions may still be taken for scandal, but since the Jurisdiction Act, 1852 (15 & 16 Vict. c. 86) s. 17, the practice of excepting for impertinence was abolished, and the only check upon impertinent pleadings is now visiting them with costs. And now under the Judicature Act, 1873, all exceptions are abolished, but the faulty pleading may be objected to by motion in a summary manner.

SCHEDULE. A piece of paper or parchment containing a list or inventory of things, usually annexed to deeds and to Acts of Parliament.

SCHOOLS. The schools in England are chiefly of three kinds, viz.: (1.) Grammar Schools; (2.) Proprietary Schools; (3.) Elementary Schools. The first and third varieties are regulated by statutes, the Grammar School Acts beginning with 3 & 4 Vict. c. 77, and ending with 32 & 33 Vict. c. 56: and the Elementary Schools Acts being 33 & 34 Vict. c. 75 (Elementary Education Act, 1870), and some Amendment Acts; the second variety of schools are under the control of the Common Law. And with reference to those Grammar Schools, such as Eton, Rugby, &c., which have acquired the name of Public Schools, two Acts have been recently passed for their government, viz., 31 & 32 Vict. c. 118 (Public Schools Act, 1868), and 35 & 36 Vict. c. 54 (Public Schools Act, 1872). See Hayman v. Rugby School (Governors), L. R. 18 Eq. 28.

SCIENTER. A term used in pleading to signify that part of the declaration which alleges the defendant's previous knowledge of the cause which led to the injury complained of; or rather, his previous knowledge of a state of things which it was his duty to guard against, and his omission to do which has led to the injury complained of. Thus, in an action upon the case for keeping dogs that chased and killed the plaintiff's cattle, that part of the declaration which, after stating that the defendant wrongfully kept dogs," adds, "knowing them to be accustomed to chase and kill cattle," is termed the scienter. The following passage from the judgment of Ellenborough, C. J., in Jackson v. Pesked (1 M. & S. 238), furnishes an apt illustration of the use of the word: "In an action for keeping a mischievous bull there was no scienter in the declaration; and after a verdict for the plaintiff, the judgment was arrested on that account; and the Court said, 'they could not intend it was proved at the trial; for the plaintiff need not prove more than is in his declaration;' and yet every lawyer is aware that a knowledge of the mischievous nature of the animal is of the essence of such an action, and would therefore never suffer a jury, if he could control them, to find for the plaintiff in such a case, unless such a knowledge in the defendant were proved." See Steph. Pl. 178, 4th edit.; 1 Chit. Pl. tit. "Scienter"; 1 M. & S. 238.

SCILICET (to wit, that is to say). A word frequently used in pleadings to point out or particularize that which has been pre

SCILICET-continued.

viously stated in general terms only. For more particular information with regard to this word, see title VIDELICET.

SCIRE FACIAS (that you make known). A scire facias is a judicial writ founded upon some matter of record, and requiring the person against whom it is brought to shew cause why the party bringing it should not have the advantage of such record, or (as in the case of a scire facias to repeal letters patent) why the record should not be annulled and vacated. It is, however, considered in law as an action; and in the nature of a new original. It is used for a variety of purposes, but perhaps one of the most common uses to which it was applied was to revive a judgment after it had become extinct. For all writs of execution must formerly have been sued out within a year and a day after the judg ment was entered, otherwise the Court concluded prima facie that the judgment was satisfied and extinct, as it is now presumed to be after six years and nonexecution; yet, however, it would grant this writ of scire facias, which stated the judgment recovered by the plaintiff, and that execution still remained to be had, and commanded the sheriff to make known to the defendant that he should be in Court on the return day, in order to shew why the plaintiff ought not to have execution against him (2 Arch. Pract. 1122). The writ of scire facias does not, apparently, now lie for the purpose of reviving a judg ment, at least in the usual cases, a writ of revivor or a suggestion on the roll being substituted for it by the C. L. P. Act, 1852, s. 129; however, the writ still lies in the cases referred to in s. 132 of that Act, and also on a judgment against an executor of assets quando acciderint, and in some other peculiar cases. Sm. Act. at Law, 292.

SCIRE FIERI. When to a writ of execution issued against an executor or an administrator, the sheriff returns nulla bona, the plaintiff, if he can prove a devastavit, may sue out a scire fieri inquiry, which is a writ directed to the sheriff, commanding him that in case there shall be no goods of the testator remaining in the hands of the executor, he shall summon a jury to inquire whether the defendant has wasted the goods of the testator, and if a devastavit be found, that he shall warn the defendant that he be in Court upon a day mentioned, to show cause why the plaintiff should not have a fieri facias de bonis propriis against him. 2 Arch. Pract. 1233.

SCOT AND LOT: See title LOT AND SCOT.

SCRIVENER. An agent to whom property was intrusted for the purpose of lending it out to others at an interest payable to his principal, and for a commission or bonus for himself, whereby he sought to gain his livelihood. In order to make a man a money scrivener, he must carry on the business of being entrusted with other people's moneys to lay out for them as occasion offers. See Arch. Bank. 36; Adams v. Malkin, 3 Cramp. 534, per Gibbs. C.J.; Scott and Another v. Melville and Others, 3 Scott's N. R. 346; 9 Dow, 882.

SCUTAGE (scutagium): See title ESCUAGE.

SCUTAGIO HABENDO. A writ that lay for the king or other lord against his tenant, who held by knight-service, to compel him to serve in the wars, or to find a substitute, or to pay scutage. F. N. B. 83; Cowel.

SEA-SHORE. This appears in contemplation of law to belong in property to the sovereign as a jus privatum, subject to the jus publicum, or public right of the sovereign and people together, to pass and re-pass over it, which latter right is in the nature of an easement (Att.-Gen. v. Burridge, 10 Price, 350). The king may grant his private right to a corporation, being caput portus, but not so as to prejudice the public right. Att.-Gen. v. Parmeter, 10 Price, 378.

In the absence of all other evidence the extent of the Crown's right to the sea-shore landwards is the line of the medium high tide between the springs and the neaps (Att.-Gen. v. Chambers, 4 De G. M. & G. 206); and the bed of all navigable rivers where the tide flows and re-flows, and of all estuaries or arms of the sea, is vested in the Crown, but subject to the right of navigation which belongs by law to the subjects of the realm, and of which the right to anchor forms a part; and every grant thereof made by the Crown is subject to such public right of navigation (Gann v. Free Fishers of Whitstable, 11 H. L. C. 192), and for which, therefore, the grantee cannot (in the general case) charge anchorage dues. As evidence of such a grant of the sea-shore to the lord of the manor, the exclusive taking of sand, stones, and sea-weed may be called in aid, in the absence of documentary evidence of the grant. Calmady v. Rowe, 6 C. B. 861.

If the sea, by gradual and imperceptible progress, encroaches upon the land of a subject, the land thereby covered with water accrues to the Crown (In re Hull & Selby Railway, 5 M. & W. 327); and in the case of a like retirement of the sea, the land accrues to the adjoining owner. Att.Gen. v. Chambers, 4 De G. & J. 55.

SECONDARY.

An officer of the Court of King's Bench and Common Pleas; so called because he was second, or next to the chief officer. The secondaries of these Courts were abolished by 7 Will. 4 & 1 Vict. c. 30 (1 Arch. Prac. 11). But at the present day there is a law officer in the City of London who bears the name of Secondary.

SECONDARY CONVEYANCES. Conveyances are sometimes divided into primary or original conveyances, and secondary or derivative. The first, as their title imports, are such as do not depend upon any previous conveyance, but are independent and original; the second are such as pre-suppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance; thus an assignment of a lease may be considered a secondary conveyance with respect to the lease itself.

See also following titles.

SECTA AD CURIAM. A writ that lay against him who refused to perform his suit, either to the County Court or Court Baron. Cowel.

SECTÂ AD MOLENDINUM, WRIT DE. A writ which lay for the owner of a mill against the inhabitants of the place where such mill is situated, for not doing suit to the plaintiff's mill: that is, for not having their corn ground at it.

SECTA REGALIS. A suit so called by which all persons were bound twice in a year to attend in the sheriff's tourn, in order

SECTA REGALIS-continued. that they might be informed in things relating to the public peace. It was so called because the sheriff's tourn was the king's leet, and it was held in order that the people might be bound by oath to bear true allegiance to the king. Cowel.

SECURITY FOR COSTS. When the plaintiff in a suit resides out of the jurisdiction of the Court in which his suit is pending, or lives abroad, and the defendant is apprehensive that the plaintiff, in the event of being defeated, will evade payment of the costs or expenses of the suit, it is usual for him to apply to the Court to compel the plaintiff's attorney to give security for such payment, and which the Court usually orders to be done, on its appearing that there are good grounds for the application. The security is commonly effected by the plaintiff and two sureties entering into a bond to a sufficient amount to cover the supposed costs of the suit (2 Arch. Pract. 1414). The mere poverty of a plaintiff is, however, no ground for requiring him to give security for costs, unless to a limited extent in some proceedings in tort proper for the County Court, but which the plaintiff chooses to institute in a superior Court (see County Courts Act, 1867, 30 & 31 Vict. c. 142, s. 10). An appellant must invariably give security for costs, but commonly he makes a deposit of money in lieu thereof.

SECURITY FOR GOOD BEHAVIOUR, &c. See title ARTICLES OF THE PEACE.

SECUS (Lat., otherwise, not so, the contrary): See the word used in 1 Man. & Gr. 208, n.

SE DEFENDENDO (in defending himself). A plea pleaded by him who is charged with the death of another, to the effect that he was obliged to do what he did in his own defence, otherwise his life would have been in danger. Staunf. Pl. Cor. Lib. 1 c. 7.

See titles HOMICIDE and SON ASSAULT
DEMESNE.

SEDUCTION is a tort committed against a parent or master by having sexual intercourse, through persuasion, with his daughter or female servant. The foundation of the action is loss of services; and a parent can only maintain the action if his daughter was in his service at the time. But the slightest degree of service will suffice; and the jury will give damages not at all in proportion to the value of the services, but in proportion to the meanness of the conduct of the seducer,-this excess of damages being awarded as a solatium to the feelings of the injured parent, and

SEDUCTION-continued.

with which (although it is contrary to the principles of our law) the judge rarely chooses to interfere. When a master sues for the seduction of his servant, he must prove a subsisting contract of service valid in law at the time of the seduction. Bracegirdle v. Heald, 1 B. & Ald. 722.

SEIGNIOR (from the Fr. seigneur, lord), in its general signification means lord, but in law it is particularly applied to the lord of a fee or of a manor; and the fee, dominions, or manor of a seignior, is thence termed a seigniory, i.e., a lordship. He who is a lord, but of no manor, and therefore unable to keep a Court, is termed a seignior in gross. Kitchin, 206; Cowel.

SEIGNIORAGE. A privilege or prerogative of the king, by which he claims an allowance in respect of gold and silver brought in the mass to be exchanged for coin. Cowel.

SEISED IN DEMESNE AS OF FEE. the strict technical expression used to describe the ownership in "an estate in fee simple in possession in a corporeal hereditament." The word "seised" is used to express the "seisin" or owner's possession of a freehold property; the phrase "in demesne" or "in his demesne' (in dominico suo), signifies that he is seised as owner of the land itself, and not merely of the seigniory or services; and the concluding words "as of fee" import that he is seised of an estate of inheritance in fee simple. Where the subject is incorporeal, or the estate expectant on a precedent freehold, the words "in his demesne" are omitted. Co. Litt. 17 a.; Fleta, 1. 5, c. 5, s. 18; Bract. 1. 4, tr. 5, c. 2, s. 2.

SEISIN (seisina). Possession of a freehold estate. Upon the introduction of the Feudal Law into England the word "seisin" was applied only to the possession of an estate of freehold, in contradistinction to that precarious kind of possession by which tenants in villenage held their lands, which was considered to be the possession of those in whom the freehold continued. The word still retains its original signification, being applied exclusively to the possession of land of a freehold tenure, it being inaccurate to use the word as expressive of the possession of leaseholds or terms of years, or even of copyholds. To seise signifies to take possession of lands of a freehold tenure by the ceremony of livery of seisin, or delivery of possession; to be seised to be in possession of such land; and the possession of the land itself, which has been acquired by the ceremony of livery of seisin, is thence denominated" seisin" "or" seizin." The follow

SEISIN-continued.

ing passage from Cruise's Dig. tit. 8, e. 1, s. 10, affords a good illustration of the word: "A tenant for years is not said to be seised of the lands, the possession not being given to him by the ceremony of livery of seisin; nor does the mere delivery of a lease for years vest any estate in the lessee, but only gives him a right of entry on the land; when he has actually entered, the estate becomes actually vested in him, and he is then possessed, not properly of the land, but of the term for years, the seisin of the freehold still remaining in the lessor." It may be observed, however, that the word "seise" is sometimes used in reference to the possession of goods Thus, in Taylor v. Fisher (Cro. Eliz. 245, 246), the following passage occurs: "Trespass for breaking his house and taking away a corslet and a pike of the plaintiffs. The defendant pleaded that long time before the supposed trespass, J. Bamfield was seised of the said corslet and pike, as of his own goods, &c." See Watk. Introd. Conv. by Morley; Coote & Cov. 7th edit.; pp. 32, 33; 1 Cru. Dig. tit. 8, c. 1, s. 10; 2 C. M. & R. 41, n. (a.); 3 Camp. 116, per Lord Ellenborough, C.J.; Cro. Eliz. 245.

SEIZING OF HERIOTS. The seizing of heriots, when due on the death of a tenant, is a species of self-remedy, resembling that of taking cattle or goods in distress; excepting that a distress is merely taken as a pledge for other property, whereas a heriot is or becomes the actual property of him who so seizes it.

See title HERIOT.

SELECT COMMITTEE: See title CoxMITTEE, SELECT.

SELF-DEFENCE: See title SE DEFEN

DENDO.

SEMBLE. It would seem; it would appear, &c., e.g., "In assumpsit on a proviso to manage a farm in a good husbandlike manner, and according to the custom of the country; semble, that it is sufficient to assign a breach in the words of the promise." 1 C. & M. 89.

SEPARATE DEMISE IN EJECTMENT. A demise in a declaration in ejectment used to be termed a separate demise when made by the lessor separately or individually, as distinguished from a demise made jointly by two or more persons, which was termed a joint demise. No such demise, either separate or joint, is now necessary in this action.

See title EJECTMENT. SEPARATE ESTATE.

Property which

SEPARATE ESTATE-continued.

a married woman, under certain circumstances, is entitled to retain for her separate and independent use. By the custom of London a married woman may acquire a separate estate by carrying on trade on her own separate account. The right of the wife to the enjoyment of property separately from her husband is usually secured by trustees being appointed on her behalf, to whom the property is conveyed in trust for her sole and separate use; but although no trustees be appointed for the wife, under a limitation to her separate use, Equity would convert her husband into a trustee for her, and she would still be entitled to the enjoyment of the separate estate. And under the stat. 21 & 22 Vict. c 85, a woman judicially separated from her husband holds her property to her own separate use, and such use continues in case the cohabitation is afterwards resumed. So also under the M. W. P. Act, 1870 (33 & 34 Vict. c. 93) numerous species of property are made the wife's separate estate.

The Court of Chancery, to further secure to married women the enjoyment of separate estate, allows of a restraint upon anticipation, i.e., alienation, to be attached to the property (Pybus v. Smith, 3 Bro. C. C. 339); and the operation of that restraint was settled in the case of Tullett v. Armstrong (1 Beav. 1) to be this, that it attaches upon marriage, dis-attaches upon widowhood, re-attaches upon a re-marriage, and so on.

To the extent that a married woman has separate estate she is a feme sole; and unless restrained from anticipation she may alienate it by any of those voluntary or involuntary modes by which a feme sole or a man may do (Taylor v. Meads, 34 L. J. (Ch.) 203; Matthewman's Case, L. R. 3 Eq. 787). She may also permit her hus band to receive it, and in that case she is entitled to only one year's account of it; and her husband takes all her separate personal estate that is undisposed of at her death, if choses in possession or chattels real, by his marital right (Molony v. Kennedy, 10 Sim. 254), and if choses in action, by his right as her administrator. Proudley v. Fielder, 2 My. & K. 57.

SEQUESTER. As used in the Civil Law signifies to renounce or disclaim, &c. As when a widow comes into Court and disclaims to have anything to do or to intermeddle with her deceased husband's estate she is said to sequester. The word more commonly signifies the act of taking in execution under a sequestration the ecclesiastical goods and chattels of a beneficed clerk or clergyman.

See title SEQUESTRATION.

SEQUESTRARI FACIAS. A writ of execution against a clergyman, directed to the bishop of the diocese in which the defendant resides, commanding the bishop to enter the rectory and parish church, and to take and sequester the same and hold them until of the rents, tithes, and profits thereof, and of other ecclesiastical goods of the defendant, he shall have levied the plaintiff's debt. 2 Arch. Pract. 1284.

SEQUESTRATION. This word, in its most ordinary sense, signifies a kind of execution for debt, and is most frequently used against a beneficed clerk or clergyman. In this case the plaintiff sues out a fieri facias de bonis ecclesiasticis, directed to the bishop of the diocese, commanding him to make of the ecclesiastical goods and chattels belonging to the defendant within his diocese the sum mentioned in the writ. This writ is taken to the registrar of the diocese, who thereupon issues a sequestration, which is in the nature of a warrant directed to the churchwardens, requiring them to levy the debt of the tithes and other profits of the defendant's benefice. Sequestration also issues in Chancery when a defendant has eluded the process of the Court, and a commission of rebellion has been awarded against him to no effect; by virtue of which sequestration his per sonal estate, and the profits of his real, are seized and detained until the defendant obeys the commands of the Court. A sequestration is also defined to be the separating of a thing in controversy from the possession of both those who contend for it, and in this sense it is considered either as voluntary or necessary; the former being that which is done by the consent of each party, the latter that which is done by the judge of his own authority, whether the parties will or not. The word "sequestration" used also to signify the act of the ordinary in disposing of the goods and chattels of a deceased person whose estate no man would meddle with. It is also used to signify the gathering, collecting, and taking care of the fruits and profits of a vacant benefice for the benefit of the next incumbent. The persons who are appointed to take care of the goods and chattels, or of the rents and profits of lands that are so sequestered, are denominated sequestrators. 2 Arch. Pract. 1284; Cowel. SÉQUESTRE: See title DÉPÔT.

[merged small][merged small][ocr errors]

« 上一頁繼續 »

圖書

A New Law Dictionary and Institute of the Whole Law: For the Use of Students ...