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VOLUNTARY CURTESY-continued. the free will and inclination of the doer, without any previous request or promise of reward made or offered by him who is the object of the curtesy. From such a voluntary act of kindness the law implies no promise on the part of him who is benefited by such act that he will make any remuneration or return for the same; for if it were otherwise, one man might impose a legal obligation upon another against his will. If, however, the curtesy or act of kindness was performed at the instance or request of the party benefited, then the law implies a promise on the part of the latter to make a remuneration or return for such act. Hence the meaning of the phrases, that a "voluntary curtesy will not support an assumpsit," but that "a curtesy moved by a previous request will." See Lampleigh v. Braithwait, Hob. 105; 1 Smith's Leading Cases, 139; 3 Bos. & P. 250, in notis; Durnford v. Messiter, 5 M. & S. 446.

See title CONTRACTS.

Those

VOLUNTARY JURISDICTION. Courts are said to have a voluntary jurisdiction which are merely concerned in doing or settling what no one opposes, and which keep an open office for that purpose (as granting dispensations, licences, faculties, and other remnants of the papal jurisdiction), but do not concern themselves with administering redress for any injury.

VOLUNTARY OATHS are such as persons take in extra-judicial matters, and not regularly in a Court of Justice, or before an officer invested with authority to take the same.

VOLUNTEERS. For the military use of this word, see title ARMY; and consult stat. 26 & 27 Vict. c. 65. In the language of Equity, it denotes a person becoming entitled to property ex causâ lucrativâ (i.e., without giving any payment or other consideration for the same), and in that sense is opposed to a purchaser for value. See also title TRUSTS.

In the

VOTES AND PROCEEDINGS. Houses of Parliament the clerks at the table make brief entries of all that is actually done; and these minutes, which are printed from day to day for the use of members, are called the "Votes and Proceedings of Parliament." The votes and proceedings of the House of Commons are published by the Speaker's authority, and sold to the public as well as distributed among the members themselves; but those of the House of Lords are not published nor sold, although they can be obtained as a favour by persons desiring them. From

VOTES AND PROCEEDINGS-contd. these "votes and proceedings" the journals of the House are subsequently prepared, by making the entries at greater length; but in neither is any notice taken of the speeches of a debate.

W.

WADSET. A Scotch term for mort

gage.

WAGER OF BATTLE. This was a mode of trial, as to the meaning of which, see title BATTLE. It was abolished in writs of right by the 59 Geo. 3, c. 46; and as the same statute abolished also appeals of murder, of treason, and of felony, this mode of trial may be considered to have been then abolished altogether.

WAGER OF LAW This was a species of "decisory oath" taken by the defendant to an action on a simple contract, and in some few other actions, not being on specialties. The defendant swore in Court, in the presence of eleven compurgators, that he owed the plaintiff nothing, or that he did not detain the plaintiff's goods, and the eleven swore that they believed his oath to be true. This mode of trial was only admissible in the absence of all evidence; the Court would rather discharge the defendant on his oath than charge him on the plaintiff's uncorroborated oath. Wager of law was abolished by 3 & 4 Will. 4, c. 42, s. 13.

WAGERING. By the stat. 8 & 9 Vict. b. 109, all contracts or agreements, whether by parol or in writing, by way of gaming or wagering are declared null and void; and no action or suit is maintainable for recovering any sum of money or other valuable article alleged to be won upon any wager, or which has been deposited in the hands of any person to abide the event of the wager. And by the stat. 16 & 17 Vict. c. 119 (extended to Scotland, and generally rendered more rigorous, by the Betting Act, 1874, 37 & 38 Vict. c. 15) a penalty is imposed upon persons being the occupiers or owners of betting-houses, and who receive money to abide the event of any wager; or who advertise advice on races, subject to certain exceptions mentioned in the Act. Those statutes have produced an alteration in the Common Law; for by the Common Law an action might have been maintained on a wager, strictly so called, if it was not against the interests or the feelings of third persons, and did not lead to indecent evidence, and was not contrary to public policy. Thackoorseydass v. Dhondmull, 4 Moo. Ind. App. 339.

WAGES. The payments made to servants and workmen are so called.

See titles LABOURER; SERVANT.

WAIFS. If a felon, in his endeavours to escape pursuit, waived, i.e., threw away, the goods stolen, then the king's officers (or the lord's bailiff) might have seized the goods to the king's (or the lord's) use, and keep them as a punishment upon the true owner, if he did not prosecute the thief within a year and a day, or at least give evidence against him leading to his conviction; but such owner, if he was a foreign merchant, i.e., a stranger to our laws, was not so punished. Waifs are to be distinguished from bona fugitiva, which are the goods of the felon himself, which he abandons in his flight from justice.

See title FUGITIVE'S GOODS.

A cart or wag

WAIN, WAINAGE. gon, with its equipments The law exempted the labourer's wainage from being taken for debt (see MAGNA CHARTA); and many similar exceptions, suited to modern society, are afforded by our law to the honest but unfortunate debtor. See Simpson v. Hartopp (1 Sm. L. C. 385), as to what things are privileged from distress; and see also the provisions of the Bankruptcy Act, 1869, as to the clothes and bedding of the bankrupt, and of his wife and family.

WAIVER. This word is commonly used to denote the declining to take advantage of an irregularity in legal proceedings or of a forfeiture incurred through breach of covenants in a lease. A gift of goods may be waived by a disagreement to accept; and then it is no gift. See Hill v. Wilson (L. R. 8 Ch. 888), for a modern application of this doctrine. So, also, a plaintiff may commonly sue in contract, waiving the tort. But the doctrine of waiver is chiefly valuable in connection with covenants in leases; and in this use of it waiver is commonly said to be of two sorts, namely, (1.) Implied waiver, and (2.) Actual waiver. With reference to the first kind of waiver, a receipt of rent by a landlord after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implied waiver of his right of entry for that particular breach (Co. Litt. 211, s. 6); and with reference to the second kind of waiver, if a landlord, in express terms, waived his right of re-entry on the ground of the breach for that once, he was considered in law to have waived it also for all subscquent breaches of the same covenant; but by the stat. 22 & 23 Vict. c. 35, s. 6, the effect of an actual waiver is now reduced in this respect to that of an implied, which is the most ordinary kind of waiver.

WALES. It appears that England and Wales were originally but one country; and that even after Wales had princes of its own, the kings of England exercised a superiority over them. King Edward L., in the twenty-eighth year of his reign, annexed the marches of Wales perpetually to the Crown of England; and the annexation was completed by the 27 Hen. 8, c. 26. By the subsequent stat. 34 & 35 Hen. 8, c. 26, Wales was divided into twelve counties, a president and council appointed for the Principality, and two justices were to be assigned to hold a session twice every year. By the 1 Wm. & M. st. 1, c. 27, the Court of the President and Council was abolished, and the process of the Courts at Westminster was partially extended to Wales. And now by 20 Geo. 2, c. 42, s. 3, in an Act of Parliament, the word "England" is made to include Wales and Berwick-onTweed as well as England proper; and by 11 Geo. 4 & 1 Will. 4, c. 70, the process of the Courts at Westminster was made the exclusive process in Wales, and the circuits of North and South Wales were established.

WAPENTAKE.

A local division of the country; the name is in use north of the Trent to denote a hundred. The derivation of the name is said to be from weapon and take, and indicates that the division was originally of a military character.

WAR: See titles ARMY AND NAVY; MILITIA; VOLUNTEERS.

WARD. A division in the city of London committed to the special ward, ie., guardianship, of an alderman. The name also denotes a prison or division thereof. All infants are likewise denominated wards, as to whom see title INFANTS.

WARDEN. A keeper, e.g., the Warden of the Cinque Ports, the Warden of the Stannaries, and the Warden of the Fleet Prison.

WARD-MOTE. The Court of the division of the City of London which is called a "ward."

WARDS, COURT OF. This was a Court established by Henry VIII., and to which he afterwards added the office of liveries (32 Hen. 8, c. 46). The Court was abolished by 12 Car. 2, c. 24, along with the military tenures.

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WARRANT OF ATTORNEY: See title POWER OF ATTORNEY.

WARRANTIA CHARTÆ. A writ which lay for a man who was enfeoffed of lands with warranty, and who being afterwards sued or impleaded in assize or other actions in which he could not vouch to warranty, was permitted by means of this writ to compel the feoffor, or his heirs, to warrant the land to him; and if that writ were obtained by the feoffee pending the first writ against him, then in case the land were recovered from him, he should recover as much lands in value against the warrantor (F. N. B. 134; Les Termes de la Ley, 372, 588). The writ was abolished by 3 & 4 Will. 4, c. 27, s. 36.

WARRANTY. This word applies both to real and to personal property.

I. As applied to real property-it is a covenant, i.e., a promise by deed, by the grantor for himself and his heirs to warrant, ie., secure, the grantee and his heirs in the thing granted against all the world. The benefit of such a warranty appeared when it was attempted to evict the grantee of the lands, who thereupon either vouched his warrantor, or obtained judgment in a writ of warrantia chartæ against him to defend his title, or else to recompense him with other lands of equal value.

Warranty was either implied or express. By the old law, every feudal grant, by the word "dedi," involved or implied a warranty; but in other modes of grant of a more recent origin an express clause of warranty was required.

A warranty bound not only the warrantor himself but also his heirs, and it made no difference whether the warranty was lineal or collateral, that is to say, whether the heirs had or not derived, or might or not by possibility have derived, title from or through the warrantor. But the heir in either case was in theory bound only if he had received other sufficient lands or assets by descent from the warrantor, although both in lineal and in collateral warranty

WARRANTY-continued.

he was in effect bound whether he had received such lands or not, inasmuch as the assets he should have recovered upon upsetting the warranty of his ancestor were regarded as assets by descent from his ancestor, and as such would be liable to make good his warranty. This was an evident abuse of a proper principle; and the abuse was corrected,-as to the warranties of tenants by the curtesy, by the stat. 6 Edw. 1, c. 3; and as to the warranties of tenants in dower, by the stat. 11 Hen. 7, s. 20; and as to the warranties of tenants for life generally, by the stat. 4 & 5 Anne, c. 16; and last of all, as to the warranties of tenants in tail, by the stat. 3 & 4 Will. 4, c. 74, s. 14.

II. As applied to personal property-a warranty may also be either express or implied. The better opinion is, that there is no implied warranty of title upon the sale of personal chattels, but there may, of course, be an express warranty of title. And neither is there any implied warranty of the goodness or soundness of the articles sold, but there may of course be an express warranty to that effect; and there is an implied warranty that the goods sold are fairly merchantable, or will fairly answer the purpose for which they are known to be bought, e.g., that provisions are wholesome. The custom of trade may also give rise to an implied warranty of goodness, e.g., where goods are bought and sold by sample (2 East, 314). A general warranty does not extend to obvious defects, e.g., to the want of the tail in a horse that is warranted perfect. Dig. 18, 1, 43, s. 1; 1 Salk. 211.

A warranty differs from a misrepresentation (whether fraudulent or innocent) in that a warranty must always be given contemporaneously with and as part of the contract, whereas a misrepresentation precedes and induces to the contract. And while that is their difference in nature, their difference in consequence or effect is this: that upon breach of warranty (or false warranty), the contract remains binding and damages only are recoverable for the breach; whereas upon a false representation the defrauded party may elect to avoid the contract, and recover the entire price paid.

See title FRAUD; and next title.

WARRANTY, BREACH OF. This must be distinguished from misrepresentation. For the warrantor is liable for damages for breach of warranty whether he knew or did not know that the thing sold was imperfeet, when as for a misrepresentation he would only be liable if he knew it was false when he made it.

WARRANTY, BREACH OF-contd. The remedy for a breach of warranty differs also from the remedy for a misrepresentation. Thus, on breach of warranty the purchaser is not entitled to return the article and get back his money; at the most he can only obtain damages which will go in part reduction of the price. On the other hand, in case of a misrepresentation the purchaser is entitled to send back the article and have his money returned to him.

A warranty may be either express or implied

(1.) Express, where given in so many words at the time of the purchase; (2.) Implied, where the purpose for which the article is bought is known to the seller.

WASTE. This word, which is derived from vastum, denotes that havoc or devastation which arises from exceeding the right of user. The word is, therefore, applicable only to persons having limited interests or estates in lands, e.g., tenant for life, or pur autre vie, tenant in dower, and tenant by the curtesy; and it is inapplicable, as a general rule, to tenants in fee tail or in fee simple.

By the Common Law waste was punishable in the cases only of tenants for life who were such by operation of law, namely, tenant in dower and tenant by the curtesy ; but by the Statute of Marlbridge (52 Hen. 3), c. 23, it was made punishable in the cases also of tenants for life, or pur autre vie, or for years, who were tenants by the creation of the parties or of the settlor. Furthermore, the Courts of Equity have long interfered to remedy waste in cases in which the Courts of Law were powerless to interfere; and there has grown up accordingly a distinction of waste into legal on the one hand, being such as Law can restrain; and equitable on the other hand, being such as Equity alone can restrain. However, by the Judicature Act, 1873, this distinction appears to be abolished, in part at least (36 & 37 Vict. c. 66, s. 25, sub-s. 3), if not also in whole (sub-s. 11), as from the 2nd of November, 1875.

While the distinction before mentioned subsisted, the divisions and sub-divisions of waste were the following:(1.) Legal waste, being either (a.) Voluntary waste; or (b.) Permissive waste; and (2.) Equitable waste, which was in all cases voluntary, and so is described as equitable waste only.

(1 a.) Voluntary legal waste consisted in the following particulars: pulling down houses, pulling down wainscots, doors,

WASTE-continued.

windows, furnaces, and other such fixtures, causing timber trees to decay, stubbing up underwood, cutting down fruit-trees in an orchard, cutting down trees which shelter the mansion; also, opening new gravel pits, lime pits, clay pits, &c., or new mines of metal, coal, or the like; also the conversion of old meadow land into arable, or of arable into plantation, or the like; and even ploughing up a rabbit warren (Angerstein v. Hunt, 6 Ves. 488), or reclaiming .deer in a park. Ford v. Tynte, 2 J. & H. 153.

(1b.) Permissive legal waste consisted in suffering houses to get into decay; but the Courts have ceased to give any remedy or assistance in such cases (Warren v. Rudall, 1 J. & H. 1, 13), notwithstanding the same are generally considered to have been comprised in the Statute of Gloucester, 6 Edw. 1, c. 5.

(2.) Equitable waste consisted in "malicious, extravagant, or humorsome" acts of destruction on the part of a tenant who was not impeachable for waste at law, e.g., where a tenant for life without impeachment of waste, pulls down or dismantles the mansion-house (Vane v. Lord Barnard, 2 Vern. 738), or pulls down farm-houses (Aston v. Aston, 1 Ves. 265), or totally destroys a plantation (Id.), or fells ornamental timber (Rolt v. Lord Somerville, 2 Eq. Ca. Abr. 759); or, again, where a tenant in tail after possibility of issue extinct commits the like acts of waste (Att.-Gen. v. Duke of Marlborough, 3 Madd. 538); or, again, where a devisee in fee simple with an executory devise over on his death without leaving issue, or on any other event, does the like acts of waste (Turner v. Wright, 1 Johns. 740); or, again, where a tenant in possession under a disputed title does the like acts of waste. Earl Talbot v. Hope Scott, 4 K. & J. 96.

Procedure in cases of waste: The legal remedy for waste used to be either a writ of waste (which, however, was abolished by 3 & 4 Will. 4, c. 27, s. 36), or an action on the case; and at the present day the legal remedy is an action on the case, in which action an injunction may also be obtained. But the equitable remedy, which was and is by bill, was and is more generally resorted to; and Equity, which until 1854, had exclusive jurisdiction by injunction used to interfere, and also still interferes, in the three following groups of

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An officer in port

WATER-BAILIFF. towns for the searching of ships. In the City of London he has the supervising of fish brought thither, the gathering of the toll arising from the Thames, and the arrest of men for debt, or other personal or criminal matters, on that river.

WATER AND WATERCOURSE: See title EASEMENTS.

WATERMEN. These are eight overscers elected annually by the Lord Mayor and Court of Aldermen of the City of London to exercise supervision over all wherrymen, watermen, and lightermen upon the River Thames between Gravesend and Windsor. Their duties were latterly regulated by the Consolidation Act (7 & 8 Geo. 4, c. 75); but the matter is now to some extent regulated by the recent stat. 27 & 28 Vict. c. 113.

WAYS. Ways are of four principal varieties, namely

(1.) Iter, i.e., a footway;

(2.) Actus, i.e., a horse and footway, called also a packway;

(3.) Via, ie, a cartway (including foot and horseway); and

(4.) A driftway (probably included in Roman Law under the term actus but being excluded therefrom in English Law), i.e., a way for driving cattle.

Ways are either public or private, the former being open to all the king's subjects, the latter being open to the inhabitants of a particular parish, village, or house only; a public way is also commonly called a highway.

It is commonly said that every highway is the king's; but this means that the king and his subjects have at all times the right to pa s and repass only at their pleasure; for the freehold and all the profits thereof belong to the lord of the soil (2 Inst. 705), being in general the adjoining owner, who therefore n.ay bring trespass for digging in the highway. 1 Burr. 143.

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WAYS-continued.

A public way need not be a thoroughfare; nor is a thoroughfare of necessity a public way.

The dedication of a public way is readily presumed from user as such, e.g., from eight or six years' user. But a highway may also exist by virtue of an express grant. It most commonly exists in virtue of some Act of Parliament.

With reference to the repair of highways, the whole parish is of common right bound to repair all the roads of the parish, and the whole county all the roads of the county. And this liability continues, although some particular person or persons may be liable in the first instance to make the repairs. Such particular person or persons may be bound to repair a highway either by reason of prescription or by reason of inclosure. The prescriptive duty to repair is often called the liability to repair ratione tenure. The liability by reason of inclosure arises when the owner of unenclosed lands adjoining the highway encloses them, and thereby prevents the public going on the lands enclosed when the road is bad.

Anything whereby the public are incommoded in their use of the highway is a nuisance to it, e.g., the foulness of the adjoining ditches, the overhanging of boughs, &c., whence the adjoining owner is bound to scour his ditches, and also to lop his trees adjoining the highway. Every unauthorized obstruction of a highway is an indictable offence.

Any one may justify in pulling down or abating a common nuisance, e.g., in demolishing a gate erected in a common highway.

The whole law of highways is now principally regulatel by statute; see 5 & 6 Will. 4, c. 50; 25 & 26 Vict. c. 61, and 27 & 28 Vict. c. 101.

With reference to private ways, see title EASEMENTS.

WEAR. A great dam made across a river, accommodated for the taking of fish, or to convey a stream to a mill.

WEIGHTS. There are two sorts of weight in use, viz., troy weight and avoirdupois, the former containing 12 oz. and the latter 16 oz. to the pound.

See title MEASURES.

WERGILD. This was the price of homicide, or other atrocious personal offence, paid partly to the king for the loss of a subject, partly to the lord for the loss of a vassal, and partly to the next of kin of the injured person. In the Anglo-Saxon laws the amount of compensation varied with the degree or rank of the party slain.

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