Charles Sweet.

A dictionary of English law containing definitions of the technical terms in modern use, and a concise statement of the rules of law affecting the principal subjects, with historical and etymological notes online

. (page 102 of 119)
Online LibraryCharles SweetA dictionary of English law containing definitions of the technical terms in modern use, and a concise statement of the rules of law affecting the principal subjects, with historical and etymological notes → online text (page 102 of 119)
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§17.

STATUTE.— I. § I. A statute is technically the same thing as an

act of parliament {q, z;.), though in practice the term is usually confined

to public acts."' In this sense statutes are of the following kinds :

Declaratory; § 2. A statute is said to be declaratory ^ when it does not profess to

make any alteration in the existing law, but merely to declare or explain

* Rules of Court, xix. 2, 3 ; xxii. ' * See HoDand*s Jurisp. 83 etseq,y where
' Ibid, xxyiii. 4. the opinions of other wnters are referred to
3 /^/<f. xiii. 5. andcritiTed. See also Kuntze,Excurse,369.

* Nortnan v. Villars^ 2 £xch. D. 359. « Angus v. Da/fon, 3 Q. B. D. at p. loo.

^ H. Cox, Instit. 19.



"^



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statute LAW DICTIONARY. Statute Merchant 779

what it is ; remedial^ when it alters the common law ;* amending^ when it remedial ;
alters the statute law; consolidating, when it consolidates or throws amending;
together, into one statute, several previous statutes relating to the same consolidating ;
subject-matter, with or without alterations of substance;* disabling or disabling;
restraining, when it restrains the alienation of property, and enabling, when enabling;
it removes a restriction or disability f penal, when it imposes a penalty or penal,
forfeiture,* as in the case of the statutes relating to game, smuggling, the
profanation of the Lord's day, &c. (See Action, § 8 ; Informer: Penalty ;
Sunday.)

§ 3. Collections of the public general statutes, called the Statutes at Statutes at
Large, have been published by various editors, the most well known being ^-^g^-
that by Ruffhead. An edition of the statutes from Magna Charta to the Statutes of
end of Queen Anne's reign has been printed by the Record Commis- ^^® Realm,
sioners from the original records, under the title of the Statutes of the
Realm ; and an edition of the statutes, prepared by the Statute Law Statutes Re-
Committee, with all repealed acts and parts of acts omitted, has been ^^^^'
published by government under the title of the Statutes Revised, as a pre-
paration towards an authoritative consolidation of the whole statute law.

As to statute law, see Law, § 4.

The principal works on statutes and their interpretation are : Coke's
Second Inst. ; Barrington on the Statutes ; Dwarris on Statutes ; Max-
well on the Interpretation of Statutes ; and Hardcastle on Statutory Law.

II. § 4. ** Statute," also, sometimes means a kind of bond or obligation
of record, being an abbreviation for ** statute-merchant " or *' statute-
staple " {q. V,).

STATUTE MERCHANT— STATUTE STAPLE.— A statute merchant is a
bond acknowledged before the chief magistrate of some trading town pursuant to the
statute De mercatoribus, 13 Edw. i (whence the name). A statute staple is a bond ac-
knowledged pursuant to 27 Edw. 3, c. 9, before the mayor of the staple, that is to say, the
grand mart for the principal commodities or manufactures of the kingdom, formerly held
by act of parliament in certain trading towns. They were both originally intended to
encourage trade by providing a speedy remedy for recovering debts. Every statute is
required by the act to be sealed with the seal of the debtor and of the king, and en-
rolled. It is therefore a bond of record (see Record ; Rolls), and the addition of the
king's seal made it of so high a natiure that on failure of payment by the debtor at the •
day assigned, execution might be awarded without any preliminary proceedings, whereby
not only the body of the debtor might be imprisoned and his goods seized in satisfaction
of the debt, but also his lands might be delivered to the creditor till out of the rents and
profits the debt was satisfied ; during that time the creditor was called tenant by statute
merchant or statute staple, and had a chattel interest in the lands.' (See Estate, § 5.)
Statutes merchant and statutes staple -formerly charged the land of the debtor; but this
privilege has been abolished.^ (See Judgment, § 16.) It seems that statutes merchant
and staple are still payable, on the death of the debtor, in priority to his ordinary debts.
(See Administration, § 2 and note (3) ). Statutes merchant and statutes staple are,
however, now quite obsolete.'' (See Recognizance.)

• — f

1 Bl. Comm. i. 86. Steph. Comm. ii. 734 et seq, ; PhiU. Eccl.

2 For an instance, see the Settled Estate? Law, 1645 ; Woodfall, L. & T. 20.
Act, 1877. * Bl. Comm. iii. 161.

' These terms are especially applied to * See Bl. Comm. ii. 160; Wms. Saund.

the statutes relating to leases by bishops, ii. 216; Shepp. Touch. 353.
colleges, vicars, tenants in tail, &c. Co. * Stat. 27 6c 28 Vict. c. 112.

Litt. 44 a; Bl. Comm. ii. 318 et seq.; ' Williams, P. P. 130; K. P. 90.



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78o



Statute of Frauds LAW DICTIONARY.



Statute of Frauds



Leases.



Assignments
of leases, &c.

Sect. 4.



Trusts.



Estates pur
auter vie.

Execution
against goods.

Sales of goods.



Subsequent
legislation.



STATUTE OF FRAUDS is the stat. 29 Car. 2, c. 3, passed " for
the prevention of frauds and perjuries." With this object it enacts (sects.
I and 2) that leases of lands, tenements or hereditciments (except leases
not exceeding three years, reserving a rent of at least two-thirds the
value of the land) shall have the force of leases at will only, unless they
are put in writing and signed by the parties or their agents. Sect. 3
requires assignments and surrenders of leases and interests in land (not
being copyholds, &c.) to be in writing. Sect. 4 enacts that no action
shall be brought upon any special promise by an executor or adminis-
trator to answer damages out of his own estate, or upon a guarantee, or
upon an agreement made in consideration of marriage, or upon any
contract or sale of lands, &c., or any interest in or concerning them, or
upon any agreement that is not to be performed within a year, unless the
agreement is in writing and signed by the party to be charged, or his
agent. Sects. 5 and 6, and 19 to 23, as to wills, &c. are no longer in
force (see Will), Sects. 7 and 9 require declarations or creations of trusts
of lands, &c. and all assignments of trusts, to be in writing, signed by the
party. Sect. 8 exempts trusts arising by implication of law. Sects. 10
and 1 1 made the lands of a cestui que^ trust liable to his judgments and
obligations. Sect. 12 enacts that estates p ur auter vie shall be devisable
and liable to the owner's debts, and if not otherwise disposed of shall
go to his personal representatives. Sect. 16 enacts that no writ of
execution against goods shall bind the property therein until the writ is
delivered to the sheriff to be executed. Sect. 17 enacts that no contract
for the sale of any goods, wares and merchandizes for the price of 10/. or
upwards shall be good unless the buyer accept and receive part of the
goods so sold, or give something in earnest or part payment, or unless
some note or memorandum of the contract be made and signed by the
parties to be charged, or their agents. The remaining sections are un-
important.

Sects. I, 2 and 3 must be read in connection with stat. 8 & 9 Vict,
c. 106, which enacts that all leases required to be in writing, and all
assignments of chattel interests in land (not being copyhold, &c.), must be
made by deed. Sect. 4 must be read in connection with stat. 19 & 20
Vict. c. 97, which makes it unnecessary that the consideration for a
guaranty should appear in writing. Sect. 12 was supplemented by stat.

Geo. 2, c. 20, s. 9, and superseded by sects. 3 and 6 of the Wills Act,
1837 (see Occupancy, § 3). The i6th section has been modified by stat.
19 & 20 Vict. c. 97, so as to protect bond fide purchasers of goods not
actually seized under an execution. The 17th sect, has been sup-
plemented by Lord Tenterden's Act (9 Geo. 4, c. 14), which declares
that its provisions shall extend to all contracts for the sale of goods of
the value of 10/. and upwards, notwithstanding the goods are to be
delivered, or made, procured and delivered, at a future time.* Part of
sect. 10, and sect. 18 (17 in the Revised Statutes) have been repealed by
the Statute Law Revision Act, 1881.



^ As to the statute generally, sec Agnew sections relating to contracts, see Smith on
on the Statute of Frauds. As to the Contracts and Chitty dn Contracts,/£Wf/V».



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statute of Uses LAW dictionary. Stet Processus 781

STATUTE OF USES. See Use,

STATUTES OF DISTRIBUTION. See Advancement, § 3 ; Dis^ ^
irihution; Next of Kin, § 2. \

STATUTES OF LIMITATION. See Limitation of Actions.

STAY. — § I . A stay of proceedings in an action is a suspension of ^

them : thus, if the plaintiff is ordered to do something and fails to do it,
the proceedings may be ordered to be stayed until he complies with the
order.* So the Court may order execution to be stayed until an appeal Stay ofexe-
is decided.^ A stay of proceedings is sometimes produced ipso facto, ^^ ^^°*
without an express order to that effect, as w^here a party obtains a rule nisi
for a new trial.'

§ 2. " Stay of proceedings " also sometimes means a total discon- Permanent
tinuance of the actipn: thus, if an action in the Queen's Bench is p^^ggdin^s
compromised, an order staying the proceedings is generally obtained.*
In the Chancery Division the term is also so used, but in strictness it is
only accurate when a decree or judgment has been given, for in such a
case the suit or action cannot be dismissed, because the Court has
adjudicated on it, and therefore all that can be done is to stay proceedings
under the decree or judgment. Before decree or judgment the proper
way of disposing of an action is either by discontinuance {q, r.), or by an
order dismissing the action.

STEIALING. %^t Larceny; Embezzlement; Robbery,

STET BILLA. — If the plaintiff in a plaint in the Mayor's Court of
London has attached property belonging to the defendant and obtained
execution against the garnishee, the defendant, if he wishes to contest the
plaintiff's claim, and obtain restoration of his property, must issue a scire
facias ad disprobandum debitum (see Scire Facias, § 13); if the only question
to be tried is the plaintiff's debt, the plaintiff in appearing to the scire
facias prays stet billa, ** that his bill original," i, e,, his original plaint,
" may stand, and that the defendant may plead thereto ;" the action then
proceeds in the usual way as if the proceedings in attachment (which
are founded on a fictitious default of the defendant in appearing to the
plaint) had not taken place.* (See Foreign Attachment,)

STET PROCESSUS, in the practice of the old common law
Courts, was an entry on the record in an action whereby it was ordered,
with the consent of the parties, that all further proceedings in the action
be stayed. It could only be made with the consent of both parties, and



> Rules of Court, vii. * See Archbold*s Pr. i lOO et seq.

* Ihid. Iviii. 1 6. * Brandon, For. Attach. 115 and forms.

' Ibid, xxxix. 5.



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/



782



steward



LAW DICTIONARY.



stmt



apparently could only be entered as to the whole record.' As there is
now, under the new practice, no record in an action, it is difficult to see
how a stet processus can be entered, though it is believed that orders to
that effect have been made since the Judicature Acts; they would, no
doubt, take effect as an ordinary stay of proceedings.

STEWARD was formerly used to denote an officer of the crown, or
of a feudal lord, who acted as keeper of a Court of justice ;* as, for
example, the Lord High Steward (^. x'.). At the present day the only
important example of the office occurs in the case of manors, for ever}'
manor has a steward, appointed by the lord, who theoretically acts as
judge of the Customary Court Baron and the Court Leet, and as
registrar of the freeholders' Court Baron. Practically, however, his
duties are rather ministerial than judicial, for his chief function is to
receive surrenders and grant admittances to the copyhold lands of the
manor, and keep the Court roll.' (See Copyhold; Court Baron; Court
Leet; Manor. ^

STIFLING A PROSECUTION is agreeing, in consideration of
receiving a pecuniary or other advantage, to abstain from prosecuting a
person for an offence not giving rise to a civil remedy, e,g,y perjury. As
a general rule such an agreement invalidates any transaction of which it
forms part.* (See Compound^ § 3 ; Misprision, §§ 2, 3.)



Stinted com-
mon.



Stinted
pasture.



STINT. — I. § I. A Stint is a limit, and therefore a stinted right of
common of pasture is one where the number of beasts allowed to be put
on the common by each commoner is limited, as opposed to conmion
sans nombre. (See Sans Nombre,) A right of pasture may also be
stinted in respect of time.* (See View and Delivery,)

II. § 2. Stint is also used in a special sense to denote the right of
pasture of one of several persons who are tenants in common of land
which they use as a common pasture ground for their cattle. Stinted
pastures are grazing lands in moors, downs and wastes, which produce no
crop, and which are open to each person who has a share in the pasture
for a stinted or limited number of cattle. They are usually closed at
certain seasons of the year for the better growth of the pasture, but are
never held in severalty. The right of each joint owner-of the herbage is
known as a stint or cattle-gate.*

§ 3. A stint is not a common, but a corporeal hereditament, and may
be held for either freehold or customary estates.' (See Common ; Here-
ditament , § 2.)

§ 4. Sometimes the lord of a manor has a ** stint " or limited right of
pasture on the waste, during a certain part of the year.® (See Sheepwalk.)



» Archbold*s Pr. (3rd edit.), 413 ; Quar-
ringtony. Arthur, ii M. & W.491.

2 Co. Litt. 61 a ; Co. Copyh. { 45.

3 Elton, Copyh. 254.

* Keir v. Lceman, 6 Q. B. 308 ; Wallace
V. Hardacre, I Camp. 45; Williams v.



Bavlev, L. R., i H. L. 200.
* Wool. Comm. 25.
« Elton, Comm. 33—35.
^ Ihid, 35.
8 Ibid. 4a



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stirpes law dictionary. Stoppage tn Transitu 783

STIRPES. See Per Stirpes.

STOCK. — I. § I. ** Stock" primarily means a common fund belong-
ing to a partnership or trading company, and used to enable it to carry
on its business.* (See Fund,) Thus what is now generally called the
capital of a company was formerly called its "joint-stock," meaning the
common or joint fund contributed by the members. (See Joint Stock
Company,) The capital of a company is generally divided into shares
{q.v,), so that "shares" and "stock" are in one sense the same thing:'
at the present day, however, '* stock " is generally used in its secondary
sense {infra, § 2) as opposed to " shares."

II. § 2. In its secondary sense, "stock" signifies a fund or capital
which is capable of being divided into and held in any irregular amount.
Thus, the ordinary government funds (Consols, New Threes, &c.) are
called stocks, because a person can buy them in any amount (such as
99/. 19J. lid, as well as 100/.). A share or debenture, on the other hand,
is of a fixed amount (such as 10/., 50/., 100/.), and is incapable of sub-
division or consolidation. Many companies, however, have the power of
converting paid-up shares into stock,* and of converting debentures into
debenture stock. (See Debenture Stock,)

STOCK EXCHANGE.— The London Stock Exchange is a private
society, and its rules are therefore only binding on its members and per-
sons dealing with them subject to those rules.*

As to the legality of " time bargains " and " differences," see Wager,

STOLEN GOODS. See Possession, § 4 ; Receiving Stolen Goods,

STOP ORDER. — In chancery practice, when a fund (in cash, stock
or other securities) is in Court in a cause or proceeding, ' any person
claiming an interest in it may apply to the Court for an order to prevent
it from being paid out or otherwise dealt with, without notice to the
applicant. The application is generally made by summons, and (if
opposed) must be supported by an aflddavit showing the applicant's
interest in the fund. Stop orders differ from restraining orders and
distringas notices {q, v,) in being applicable only to funds in Court.
Stop orders are also applicable to documents deposited with an officer of
the Court.* (See Payment into Court,)

STOPPAGE IN TRANSITU is the right which an unpaid vendor
has to resume the possession of goods sold upon credit, where the
vendee has become bankrupt or insolvent before they come into his

* See a form of partnership deed in the * Ex parte Saffery, 4 Ch. 555 ; 3 App.

Compleat Clerk, 845. Ca. 213. See Aielsneimer and Lawrence

' See Morrice v. Aylmer, L. R., 7 H. L. on the Stock Exchange.

717. * Daniell, Ch. Pr. 1543; Fisher on

' Companies Act, 1862, s. 12; Com- Mortgage, 117.
panies Clauses Act, 1845, s* ^^*



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784 story -[.K^f^ DICTIONARY. Stranger

possession. Thus if A. orders goods of B., and B. despatches them by
carrier to A.*s address, but before they have been actually delivered he
hears that A. has stopped payment, then B. is allowed to countermand
delivery before or at the place of destination, and to resume the possession
of the goods, according to that equitable principle in the law of contract,
by which one party may withhold performance, on the other becoming
unable to fulfil his part of the contract. But it is not an unlimited
right ; for the vendor cannot exercise it if he has parted with documents
sufl&cient to transfer the property, and the vendee, upon the strength of
them, has sold the goods to a boni fide purchaser without notice.* The
vendor's right ceases as soon as the transitus is determined, whether by
the goods arriving at their destination, or by being delivered to a person
on behalf of the vendee, or by the carrier agreeing, between himself and
the vendee, to hold the goods for him, not as carrier, but as his agent.'

§ 2. There is also a so-called right of stoppage in transitu in cases
where there is no transit, as where goods are sold whilst in the possession
of a warehouseman, and some act remains to be done for the completion
of the sale.* (See Delivery Order; Dock Warrant.^

STORY. — Joseph Story was bom in 1779 at Marblehead near Boston,
in the United States of America, became member of Congress in 1 809,
judge of the Supreme Court in 181 1, professor at Harvard in 1829, and
died I o September, 1 845 . His principal works are ; Equity Jurisprudence ;
Law of Bailments; Agency; Bills of Exchange; Promissory Notes; Part-
nership; and the Conflict of Laws.*

STRANDING. — Under the memorandum (^. z'.) in an ordinary
policy of marine insurance, the underwriters are not liable for damage
sustained by certain perishable articles, unless in consequence of a
general average, or a stranding of the ship. ** Stranding" does not occur
when a vessel takes the ground in the ordinary and usual course of
navigation, in a tideway or harbour, upon the ebbing of the tide or the
like, so that she will float again on the flow of the tide; but it occurs if
the vessel takes the ground by reason of some unusual or accidental
occurrence, ^.^., in consequence of an unknown and unusual obstruction
in the harbour.'

STRANGER. — In law a person is said to be a stranger to a transac-
tion when he takes no part in it, or no part producing any legal effect.
Thus a person who is not a party to a deed, contract, &c. is said to be a
stranger to it. (See Pari; Privy,) So when a promise is made to
a person, but he has neither taken any trouble or charge upon himself,



1 Houston on Stoppage in Transitu, i ; ' Ex parte Cooper^ 1 1 Ch. D. at

Lickharrow v. Mason, 2 T. R. 63 ; I H. p. 78.
Bl. 357 ; 6 East, 21 ; Smith's L. C. i. 756 ; » Maude & Pollock, 314.

Smith's Merc. Law, 548 etseq.; Maude & * Holtz. Encycl.

Pollock, Merch. Shipp. 309 et seq, » Wells v. Hopwood, 3 B. & Ad. 20 ;

Letchford v. Oldham^ 5 Q. B. D. 538.



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striking LAW DICTIONARY. Stibinfeicdation 785

nor conferred any benefit on the promisor, but the trouble has been
sustained or benefit conferred by another, the promisee is said to be a
stranger to the consideration.^ (See Consideration^ § i ,)

STRIKING- — § I. Striking a jury is what is more commonly known Jury,
as nominating and reducing {q, v,)?

§ 2. Striking out a pleading or-part of a pleading takes place when the Pleading,
Court makes an order to that effect, either for the purpose of amendment
{q. V,) or to compel one of the parties to do some act. Thus if a defen-
dant fails to comply with an order for discovery, he is liable to have his
defence struck out, and to be placed in the same position as if he had not
defended the action.^

STUFF GOWN is the robe worn in Court by utter barristers. (See
Queen's Counsel,)

SUB-AGENT — SUB-CONTRACTOR. — § i. When an agent
employs a person as his agent, to assist him in transacting the affairs of
his principal, the person so employed is called a sub-agent. In the absence
of an agreement to the contrary, there is no privity between the principal
and the sub-agent ; therefore, the principal is not liable to the sub-agent
for his remuneration, and he cannot sue the sub-agent for negligence or
misconduct ; he must sue the agent.* But if the agent has an express or
implied authority to employ a sub-agent, privity of contract arises between
the principal and the sub-agent, and the principal may sue the sub-agent
for misconduct.*

§ 2. Similarly, when a contractor makes a contract with a sub-contractor
to carry out his contract, or part of it, there is no privity between the
principal contractee and the sub-contractor.'

SUBDUCT, — In probate practice, to subduct a caveat is to with-
draw it.'

SUBINFEUDATION, while it was allowed, was what took place
when a tenant in fee simple of land granted the whole or part of it to another
person in fee simple, to hold of him as his tenant, so that the relation of
tenure, with its incidents of fealty, services, (Src, was created between them.
The practice of subinfeudation being found to decrease the power and
wealth of the great landholders (the barons), it was abolished in Edward
the First's reign by the statute known as Quia Emptores {q. v.).^ There-
fore, at the present day, if A. holds land of B. in fee simple, and wishes
to grant it to C, he can only do so on the term that C. shall hold it of B.,
and not of himself (A.). (See Feudal System ; Seignory ; Tenure,)

^ Chitty on Contracts, 53. contractor and his servants, and between

* Lee, Diet. Pr. 887. the latter and the contractor's principal,
" Rules of Court, xxxi. 20. see WooUey v. Meir. D, Ry, Co.^ 2 Ex. D.

* See Russell's Merc. Agency, 210. 384 ; Pearson v. Cox, 2 C. P. D. 369.

* De Bussche v. Alt, 8 Ch. D. 287. ' Browne's Probate Pr. 265.

* Goslin V. Agricultural Hall Co,, I C. ® Williams on Seisin, 8, 21.
P. D. 482. As to the relations between a

s, 35



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7 86



General ;
particular.



Ad test.



Duces tecum.



Old Chancery
practice.



Subjacent LAW DICTIONARY. . Siibrogaitan

SUBJACENT. See Support.

SUB-LEASE. See Lease, § 3.

SUBMISSION. — A submission to arbitration is an instrument by
which a dispute or question is referred to arbitration. (See Arhiiraium,)
When the reference is made by the order of a Court or judge, the order
itself is sometimes called a submission ; but, more generally, that word
denotes an agreement between the parties. Such an agreement may be
either general (that is, an agreement to refer to arbitration all future dis-
putes arising out of a specified matter), or a particular submission (that
is, an agreement to refer to arbitration a dispute which has already arisen).
A general submission is commonly contained in articles of partnership and
other agreements extending over a long period. A particular submission
may be revoked by either party, unless there is an agreement to make the
submission a rule of Court. A general submission cannot be revoked in
any case.* (See Rule of Court.)

SUB-MORTGAGE. See Mortgage, §11.

SUBORNATION OF PERJURY is the offence of procuring a
person to commit perjur}% provided he actually commits it.' The offence
is a misdemeanor, punishable in the same way as perjury {q, v,).

SUBPOENA is a writ issued in an action or suit requiring the person
to whom it is directed to be present at a specified place and time, and for
a specified purpose, under a penalty {sub poena) of 100/. The varieties of



Online LibraryCharles SweetA dictionary of English law containing definitions of the technical terms in modern use, and a concise statement of the rules of law affecting the principal subjects, with historical and etymological notes → online text (page 102 of 119)