BAIL-continued.

into a bond to the sheriff with sufficient sureties conditioned for his appearance within the period required by the writ, and which bond the sheriff was compelled by statute to accept, and to discharge the defendant out of custody. (2.) Bail above, special bail, or bail to the action, were persons whom the defendant procured to become his sureties for the ultimate payment of the debt and costs in the action, in the event of judgment passing against him, or as an alternative that he should surrender himself to prison. They were termed bail to the action because they were responsible for the defendant's abiding by the event of the action, and obeying the judgment of the Court therein, in contradistinction to bail to the sheriff, who only undertook that the defendant should appear according to the exigency of the writ, and provide bail to the action. The undertaking of the sureties, or bail above, was drawn upon a piece of parchment by the defendant's attorney, and was technically termed the bail piece. (3.) Bail in error. These were sureties whom a party prosecuting a writ of error, commonly called the plaintiff in error, was required to find, and who undertook that the plaintiff in error should prosecute his writ of error with effect, and that in case the plaintiff was non pros-ed, or the judgment in the Court below was affirmed, he should pay all the debt, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded by reason of the delay of execution on such former judgment (3 Jac. 1, c. 8; 3 Car. 1, c. 4, s. 4; 19 Geo. 3, c. 70; 6 Geo. 4, c. 96, ss. 1, 4). Common bail signified an appearance, for an explanation of which see that title; and see also next title.

BAIL IN CRIMINAL PROCEEDINGS. Upon application to the Court of Queen's Bench, or to a judge thereof, the Court or a judge may, as a favour, admit the prisoner to bail, and that even in non-bailable proceedings. But generally, in all cases of misdemeanour, the accused has an absolute right to be discharged from his interim custody upon finding sufficient bail.

BAILIFF-continued.

to preserve the rights of the king are frequently called their bailiwicks, a word introduced by the Norman princes in imitation of the French, whose territory was divided into bailiwicks, as that of England is into counties. The word "bailiff," however, usually signifies sheriffs' officers, who are either, (1.) Bailiffs of hundreds, or, (2.) Special bailiffs. (1.) Bailiffs of hundreds are officers appointed over those respective districts, by the sheriffs, to collect fines therein, to summon juries, to attend the judges and justices at the assizes or quarter sessions, and also to execute writs and processes in the several hundreds. (2.) Special bailiffs are that lower class of persons employed by the sheriffs for the express purpose of serving writs and making arrests and executions, &c. (3.) Those persons also who have the custody of the king's castles are called bailiffs, as the bailiff of Dover Castle. (4.) The chief magistrates of particular jurisdictions are also called bailiffs, as the bailiff of Westminster, for example. (5.) There are also bailiffs of courts baron, bailiffs of the forest, &c. Cowel; Termes de la Ley.

BAILMENT. This is the most general word in English law for agency, and comprises the following varieties of agency :

(1.) Gratuitous bailment,-in which case it is settled that a misfeasance on the part of the bailee, i.e., agent, is actionable (Coggs v. Bernard, 1 Sm. L. C. 177); but that a mere non-feasance is not actionable. Elsee v. Gatward, 5 T. R. 143. (2.) Bailment for reward, case the bailee is of course liable as well for a non-feasance, as for a misfeasance, and cannot recover his recompense until his performance of the duty which he has undertaken.

- in which

Again, bailment comprises the following varieties of agency:

(1.) Bailments in which the trust reposed is exclusively for the benefit of the bailor, and hereunder Mandatum and Depositum, as to which, see these two titles.

(2.) Bailments in which the trust reposed is exclusively for the benefit of the bailee, and hereunder Commodatum (or Prêt à usage), and (where gratuitous) Mutuum (or Prêt à consommation), as to which, see these two titles; and

(3.) Bailments which are for the benefit of both bailor and bailee, and hereunder the following varieties (as to which, see the respective titles), viz. :

(1) Pledge or Pawn,-PAWNBROKERS.
(2.) Custody,-INNKEEPERS; and
(3.) Carriage,-CARRIERS.

BAITING ANIMALS: See CRUELTY TO ANIMALS.

BALLOT, VOTE BY. Under the stat. 35 & 36 Vict. c. 33, all parliamentary and municipal elections are required to be made by ballot; and under the Elementary Education Act, 1870 (33 & 34 Vict. c. 75), the elections are similarly required to be by ballot.

This mode of voting was one of the five points advanced by the so-called Chartists, in 1839, as the People's Charter; the four other points being universal suffrage, annual parliaments, payment of members, and the abolition of the property qualification for members of parliament.

The

See also title REPRESENTATION. BANC, or BANCO, SITTING IN. sittings which the respective superior Courts of Common Law hold during every term, and on certain appointed days after term, for the purpose of hearing and determining the various matters of LAW argued before them, are so called, in contradistinction to the sittings at Nisi Prius, which are held for the purpose of trying issues of FACT. The former are usually held before four of the judges; at the latter, one judge only presides.

BANKERS. According to the decision in Foley v. Hill (2 H. L. C. 28), the relation between a banker and a customer who pays money into the bank, is the ordinary relation of debtor and creditor, with a superadded obligation arising out of the custom of bankers to honour the drafts of customers, and that relation is not altered by an agreement by the banker to allow interest on the balances in the bank. The relation does not partake of a fiduciary relation, and therefore, as a general rule, no bill in equity will lie against a banker for an account.

See also titles BILLS OF EXCHANGE;
CHEQUES; CASH NOTES; CIRCULAR
NOTES; and LETTERS OF CREDIT.

BANKS, JOINT STOCK. By the 39 & 40 Geo. 3, c. 28, s. 15, it was forbidden to establish any corporate bank whatever, or any bank where the number of partners exceeded six, so as to borrow, owe, or take up any sum or sums of money on their bills or notes payable on demand, or at any less time than six months, during such time as the Bank of England enjoyed the rights conferred by former Acts. But in 1826, the 7 Geo. 4, c. 46, was passed legalizing the formation under deeds of settlement, of banking co-partnerships consisting of more than six persons, provided they did not carry on business in, or within sixty-five miles of, London. Afterwards, in 1845, was passed the 7 & 8 Vict. c. 113, which for a short time enabled joint-stock banks to be established under letters patent of incorporation. And latterly, the

BANKS, JOINT STOCK-continued. Joint Stock Banking Companies Act, 1857 (21 & 22 Vict. c. 49), and Companies Act, 1862 (25 & 26 Vict. c. 89), have afforded every facility for constituting joint stock banks in every part of England, subject to the provisions of these Acts.

BANK NOTES. der in England for all sums over £5: See title CASH NOTE, 3 & 4 Will. 4, c. 98, s. 6. In case a bank note is lost, or is stolen, or is otherwise improperly obtained, the Bank of England, upon presentment by a bona fide holder, is bound to cash it, although to the prejudice of the true owner. Miller v. Race, 1 Sm. L. C. 468.

These are a legal ten

BANKRUPTCY. Under the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), which commenced as from the 1st of January, 1870, but which does not extend to Scotland or Ireland, any one, whether a trader or not, and whether a member of Parliament or not, may be adjudicated a bankrupt (s. 6) upon the petition of his creditor or creditors, upon any one or other of the following six grounds,—commonly designated" acts of bankruptcy :"(1.) Making a conveyance or assignment

of all his property for the benefit of his creditors generally; (2.) Making any fraudulent conveyance or assignment;

(3.) Doing any act with intent to defeat
or delay his creditors;

(4.) Filing a declaration of insolvency;
(5.) Having execution levied by seizure
and sale of his goods for a debt
of £50, or upwards; or
(6.) Having, if a trader for seven days,
and if a non-trader for twenty-
one days, after service of a
debtor's summons for a debt of
not less than £50, neglected to pay
or satisfy same.

The petition grounded upon any one of such acts must be presented within six months from the commission of the act.

The Act constitutes two distinct jurisdictions, viz. :

(1.) The London district,-which comprises the City of London and its liberties, and all places situated within the districts of the metropolitan County Courts; and (2.) The country district,-which comprises the rest of England. The Court of the London Bankruptcy District has all the powers and jurisdictions of the superior Courts of Commion Law and Equity (In re Anderson, L. R. 5 Ch. App. 473); the Judge may also reverse, vary, or affirm any order of a local Bankruptcy Court, in respect of a matter either of law or of fact.

BANKRUPTCY-continued.

When a person is adjudicated a bankrupt, all his property, whether real or personal, vests in the trustee or trustees, who have the following powers:

(1.) Receiving and deciding upon proof of debts.

(2.) Carrying on the business of the
bankrupt.

(3.) Bringing or defending actions.
(4.) Selling the property of the bank-
rupt, either by public auction or
by private contract; and
(5.) Giving effectual receipts for money
received.

Upon the close of the bankruptcy, or (but only with the assent of his creditors), during its continuance, the bankrupt may apply to the Court for an order of discharge, which he will obtain if he have paid 108. in the pound, and not unless; if undischarged, he is protected for three years from the close of the bankruptcy proceedings, and if he should during that period have paid up to 10s. in the pound, he then obtains his discharge; but otherwise, the unpaid balance becomes a judgment debt against him, and may be levied against his property, real or personal, in the usual way.

A ban

BANNERET, or BANRENT. neret, or banrent, is said to be a knight made in the field, with the ceremony of cutting off the point of his standard, and so making it like a banner. They are accounted so honourable that they are permitted to display their arms in a banner in the field as barons do. See Selden's Tit. of Hon.

BARGAIN AND SALE: See title CoNVEYANCES.

BARON AND FEME: See title HUSBAND AND WIFE.

BARRATRY.

BARRING ESTATE TAIL-continued. deed or instrument in writing whatsoever, not being a special Act of Parliament, is of any force or efficacy whatsoever, unless preceded by the proper statutory mode of bar, to pass or to convey an estate tail to the devisee or contractee, or other person whatsoever; nor may the Courts of Equity, in favour of a purchaser for value, execute the contract by decreeing the heir in tail to carry out the act which his ancestor has left incomplete, and it need scarcely be added that the Courts of Equity would not, even if they might, decree a disentailing deed in favour of the devisee, who is a mere volunteer.

BARRISTER. A counseller learned in the law who pleads at the bar of the Courts, and takes upon himself the advocacy or defence of causes. His professional conduct is under the control of the Benchers of his Inn (Hudson v. Slade, 3 F. & F. 390). His fees are an honorarium, and no action lies to recover them, nor can any security be taken for them (Brown v. Kennedy, 13 C. B. 677). But it is otherwise with the fees of conveyancers or special pleaders below the bar, who may maintain an action, or take such security (Steadman v. Hockley, 15 M. & W. 553). A barrister is not liable for negligence or non-attendance (Fell v. Brown, Peake, 96). He enjoys numerous privileges (which, however, he is assumed to exercise only for the benefit of his client), e.g., he may compromise the case (Swinfen v. Swinfen, 1 C. B. (N.S.) 364; 2 De G. & J. 381); nor is he exposed to any action for libel or slander, in consequence of words written or spoken by him in the conduct of his case (Hodgson v. Scarlet, 1 B. & A. 232); nevertheless it seems that he is liable to be punished for contempt of Court even for words professedly spoken in the discharge of his functions as advocate (Ex parte Pater, 5 B. & S. 299). He is privileged from arrest while attending Court or going circuit.

BASE FEE. A base or qualified fee is an estate which hath some qualification subjoined thereto, and which must cease or be determined whenever such qualification is at an end. As in the case of a grant to A. and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So when Henry VI. granted to John Talbot, lord of the manor of Kingston-Lisle, in Berks, that he and his heirs, lords of the said manor, should be peers of the realm by the title of Barons of Lisle; here John Talbot had a base or qualified fee in that dignity, and the instant he or his heirs quitted the seigniory of that manor, the

BASE FEE-continued. dignity was at an end. These estates are fees, because it is possible that they may endure for ever in a man and his heirs; yet as that duration depends on certain collateral circumstances which qualify and debase the purity of the donation, it is therefore called a base or qualified fee. In a more limited sense, a base fee is used to denote a fee simple derived out of a fee tail, which has been barred by one whose power extends only to bar his own issue heirs in tail; in this case, so long as such heirs in tail or their issue endure, the fee simple endures, but determines when they become extinct.

BASTARD. A child born out of wedlock. He is not legitimized by the subsequent marriage of his parents (Doe d. Birtwhistle v. Vardell, 6 Bing. N. C. 385). Upon an order of affiliation, the putative father becomes liable to a limited extent to support his child; but otherwise the mother must support it. The custody of the child belongs also of right to the mother, notwithstanding the father is able and willing to maintain it better (Ex parte Knee, 1 N. R. 148); but it seems that the wishes of the child itself will be consulted. In re Lloyd, 3 Man. & G. 547.

BATTEL (from battaile). The trial by wager of battle was a species of trial introduced into England, among other Norman customs, by William the Conqueror, in which the person accused fought with his accuser, under the apprehension that Heaven would give the victory to him who was in the right,

See title TRIAL BY JURY.
BATTERY: See ASSAULT AND BATTERY.

BAWDY-HOUSE: See BROTHEL.

BENCH WARRANT. The process issued against a party against whom an indictment has been found for the purpose of bringing him into Court to answer the charge preferred against him. When an indictment has been found for a misdemeanour during the assizes or sessions, it is the practice for the judge attending the assizes, or for two of the justices attending the sessions, to issue a bench warrant, signed by him or them, to apprehend the defendant. Cowp. 239; Haw. Pl. Cr.; 1 Ch. Crim. Law, 338, 339.

BENCHER. A dignitary of the Inns of Court is so termed. Each Inn of Court is presided over by a certain number of benchers, who exercise the right of admitting candidates as members of their society, and also of ultimately calling them to the bar. They are usually selected from those of their members who have distinguished

BENCHER-continued.

themselves in their profession; and it is the ordinary practice, but subject to a discretion in the body of benchers, for each Inn of Court to select its member a bencher as soon as he has attained the rank or degree of queen's counsel. They also exercise a general supervision over the professional conduct of all counsel that are members of the Inn.

BENEFICE. Generally taken for any ecclesiastical living, or church preferment, whether a dignity or not; and it must be given for life, not for years, or at will. See title ADVOWSON. BÉNÉFICE d'INVENTAIRE.

This in

French law corresponds to the Beneficium Inventarii of Roman law, and substantially to the English law doctrine, that the executor properly accounting is only liable to the extent of the assets received by him.

BETTING HOUSES. These were suppressed in England by the 16 & 17 Vict. c. 119; and in Scotland by an Act of the present session.

BEYOND THE SEAS. No part of the United Kingdom of Great Britain and Ireland, nor the Isle of Man, Guernsey, Jersey, Alderney, or Sark, nor any islands adjacent to any of them (being part of the dominions of Her Majesty), are deemed beyond the seas within the meaning of the 3 & 4 Will. 4, c. 27. And yet for certain purposes either or any of those places other than England may be regarded in law as being beyond the seas. Thus it appears to have been held that Dublin, or any place in Ireland, was beyond the seas within the meaning of the Statute of Limitations (21 Jac. 1, c. 16). King v. Walker, 1 Bl. Rep. 286; Nightingale v. Adams, Show. 91; Shelford's Real Property Statutes, 181, 4th ed.

BIGAMY. A criminal offence which consists in going through the ceremony of marriage with another, while a former husband or wife is still alive and not divorced, knowing at the time, or reasonably believing, that such former consort is still alive. The offence amounts to a felony, and is punishable with penal servitude for not more than seven nor fewer than five years, or with imprisonment with or without hard labour for any period not exceeding two years.

BILL (billa) has various significations in law proceedings. It is commonly taken for a declaration in writing, expressing either the wrong the complainant has suffered by the defendant, or else some fault that the party complained of has

BILL continued.

committed against some law or statute of the realm. Such bills are sometimes addressed or exhibited to the Lord Chancellor, especially where the wrongs done to the complainant are matters of conscience; and sometimes they are addressed and preferred to others having jurisdiction in the matter, according as the law whereon they are grounded directs. This bill contains a statement of the fact complained of, and of the damages thereby suffered, and a petition that process may issue against the defendant for redress. In criminal matters, when a grand jury, upon any presentment or indictment, consider the same to be probably true, they write on it two words, billa vera, in other words, they are said to find a true bill, and thereupon the accused party is said to stand indicted of the crime, and is bound to make answer to it; and if the crime concern the life of the person indicted, it is then referred to another inquest, called the jury of life and death, by whom, should he be found guilty, he stands convicted of the crime, and is by the judge condemned accordingly. Bill is also a common engagement for money given by one man to another; and is sometimes with a penalty, called a penal bill, and sometimes without a penalty, when it is termed a single bill. By a bill was commonly understood a single bond without a condition; and it was formerly the same as an obligation, save that it was called bill when in English, and an obligation when in Latin.

See following titles.

BILL FOR DISCOVERY: See title DISCOVERY.

BILL IN EQUITY OR CHANCERY. The method of instituting a suit in the Court of Chancery is by addressing a bill, in the nature of a petition, to the Lord Chancellor. This bill is neither more nor less than a statement of all the circumstances which gave rise to the complaint, and a prayer or petition for particular relief, according to the case made by the bill, or for general relief, according as the nature of the case may require. When this bill is drawn up or prepared, it is left with the proper officer of the Court in order to be filed, and this is what is termed filing a bill in Equity. Bills in Equity are all of the same general character, but some of them being of a secondary nature to the principal bill, have acquired names descriptive of that secondary nature, e.g., Cross Bills, Supplemental Bills, Bills of Revivor, Bills for Discovery, &c., all which titles see.

Hitherto a bill has been a method of originating proceedings in Chancery, and indeed in cases where the summary-i.e.,

BILL IN EQUITY OR CHANCERY continued.

statutory proceeding by petition or summons was not available, the bill was the only process, but at the same time a universal process, of initiating proceedings. However, now, under the Judicature Act, 1873, all actions and suits are to be commenced by a writ of summons; but the operation of the Act has been postponed.

BILL OF EXCEPTIONS. If during a trial a judge, in his direction to the jury, or in his decision, mistakes the law, either through ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions, which is a statement in writing of the point wherein he has committed the error, and which statement, by fixing his seal thereto, he thus acknowledges (Smith's Action at Law, p. 82). This statement should be put in writing while the Court is sitting, and in the presence of the judge who tried the cause, and signed by the counsel on each side; after which it is formally drawn up and tendered to the judge to be sealed. A bill of exceptions is said to be in the nature of an appeal from the judgment or decision of the Court below to a Court of error. (Wright v. Sharp, 1 Salk. 288; Gardner v. Bailey, 1 Boss. & P. 32; Wright v. Tatham, 7 A. & E. 331). By the Judicature Act, 1873, bills of exception are abolished, and an appeal to the Court of Appeal substituted for them; but the operation of the Act has been postponed.

66

BILL OF EXCHANGE. A bill of exchange is defined by Blackstone to be an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account." The person who draws or makes the bill is called the drawer; the person to whom it is addressed is called the drawee; and when the drawee has undertaken to pay the amount (which undertaking he signifies by writing across the bill of exchange the word "accepted" together with his name, with or without adding the place where the money is to be paid), then he is called the acceptor; the person to whom the money is ordered to be paid is called the payee; and if the payee transfers it over to another (which he does by simply writing his name across the back), he is then called the indorser, and the person to whom he thus transfers it is called the indorsee, which latter person may also, if he pleases, in his turn transfer it to another party (by the same process of signing his name on the back, or indorsing it, as it is termed), and thus it may be transferred from one person to another ad infinitum, the party transferring it always being called the indorser,