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 72 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 72 of 119)
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poration, and provides for the election in each borough of a mayor,
aldermen and council: for the appointment of a watch committee
to regulate the police of the borough, and for the payment of the
expenses of the borough out of the borough fund and rate. Most
municipal corporations are also the authorities for carrying out the
provisions of the Public Health Act, 1875, the Artizans' Dwellings Act,
1875, and similar acts, in their respective districts.

§ 2. Corporations regulated by the M. C. Act, 1835, are trustees of the
corporate property for the benefit of their respective boroughs.^

See Bonmgh: Justice of the Peace; Metropolitan Board of Works : Re-
corder,

MUNICIPAL LAW. SeeZoa;, §3.

MUNIMENTS.— Title deeds and other documents relating to the
title to land are sometimes called muniments, from the Latin word munioy
which signifies to defend or fortify, because they enable the owner to
defend his estate.^

MURDER is the crime of unlawful homicide with malice aforethought
(see Homicide: Malice) ; as where death is caused by an act done with the
intention to cause death or bodily harm, or which is commonly known to
be likely to cause death or bodily harm. Thus, if A. finds B. asleep
on some straw and lights the straw, whether he means to kill B., or
whether he means to do B. serious injury without killing him, in either
case if B. is burnt to death, A. is guilty of murder. So if A. shoots at B.,
intending to kill him, and kills C. instead, A. is guilty of murder.

§ 2. Murder is punishable by death {q, v.) ; attempts to murder are
punishable by penal servitude for life.*

§ 3. A person who kills himself in a manner which, in the case Self-murder.
of another person, would amoimt to murder, is guilty of self-murder or
suicide {q. v. and see Felo de se),

MUSIC. ^QQ Copyright : Right of Representation and Performance.

MUTE. — A prisoner is said to stand mute when, being arraigned for
treason or felony, he either makes no answer at all, or answers foreign to
the purpose, or with such matter as is not allowable, and will not answer

* Grant on Corporations, 16 ; Steph. Brecon, 10 Ch. D. 204.
Conun. iii. 31 ^ seq, * Termes de la Ley.

* See the Municipal Corporations (New • Stephen's Crim. Dig. 144 ^Z seq. ;
Charters) Act, 1877. Russell on Crimes, i. 641 etseq, ; stat. 24

» Grant, 108 ; Att.-Gen. v. Mayor of & 25 \act. c. 100.

S. N N



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546 Mutmy Act LAW DICTIONARY. Mutual Promisa

otherwise. In the first case, a jury must be sworn to try whether the
prisoner stands mute of malice (/*. e,, obstinately) or by visitation of God
{e.g,, being deaf or dumb). If he is found mute by visitation of God, the
trial proceeds as if he had pleaded not guilty; if he is found mute
of malice, or if he will not answer directly to the indictment, the Court
may order a plea of not guilty to be entered, and the trial proceeds
accordingly.^

MUTINY ACT.— The Bill of Rights (stat. i W. & M. (2), c. 2) de-
clares that the raising or keeping a standing army within the kingdom in
time of peace, unless it be with consent of parliament, is against law.
Therefore, to enable the army to be kept up, an act of parliament is
annually passed authorizing this to be done. Formerly this annual act
contained elaborate provisions for the enlistment, payment and billeting
of soldiers, for the punishment of mutiny and desertion, and generally for
the government of the army,^ and was hence called the Mutiny Act ; but
these provisions have recently been consolidated in one act, called the
Army Discipline and Regulation Act, 1879; and, therefore, in the annual
act it is sufficient to provide that the Army Discipline and Regulation Act,
1879, shall remain in force for one year.

MUTUAL CREDITS-MUTUAL DEALINGS.-§ i. The phrase
" mutual credits '* used in the Bankruptcy Acts denotes such dealings be-
tween two persons as must in their nature terminate, or have a tendency
to terminate, in debts.' The "mutual credit clauses" in the acts provide
that where there have been mutual credits,, mutual debts, or other mutual
dealings between the bankrupt and one of his creditors, an account shall
be taken of what is due from the one party to the other in respect of such
mutual dealings, and the sum due from the one party shall be set off
against any sum due from the other party, and the balance of such ac-
count, and no more, shall be claimed or paid on either side respectively.*
The effect produced by the mutual credit clause is, therefore, a species of
set-oflf {q, v,\ but diflfers from the ordinary set-off between solvent persons
in having for its object, not to prevent cross actions, but to avoid the in-
justice, which would otherwise arise, of compelling a creditor to pay the
trustee in bankruptcy the full amount of the debt due from him to the
bankrupt, while the creditor would perhaps only receive a small dividend
under the bankruptcy on the debt due from the bankrupt to him.*

MUTUAL PROMISES. See Consideration, § 5; Promise.



1 Steph. Comm. iv. 391 ; stat. 7 & 8 tracts, 785; Rose v. Hart, 8 Taunt. 449;
Geo. 4, c. 28. In Reg, v. Berry (I Q. B. Smith's L. C. ii. 296.

D. 447) a plea of "not jjiiilty" was ordered * Bankruptcy Act, 1869, s. 39. See

to be entered for a prisoner who stood B. A. 1849, s. 171.

mute by visitation of God. * Robson's Bankr. 308, 314. SeeAstiejf

2 Steph. Comm. ii. 589. v. Gumev, L. R., 4 C. P. 714; In re
' Robson's Bankr. 312 ; Chitty onCon- U'tnter, 6 Ch. D. 225.



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A



Mutuality LAW dictionary. Nationality 547

MUTUALITY. — § i. In every agreement the parties must, as Mutuality of
regards the principal or essential part of the transaction, intend the same ^^*^^*
thing ; that is, each must know what the other is to do : this is called
mutuality of assent.*

§ 2. In a simple contract arising from agreement, it is sometimes Mutuality of
the essence of the transaction that each party should be bdrnid to do ° ^
something under it: this requirement is called mutuality; thus, an
agreement by A. to refer a question between him and B. to arbitration
is not enforceable, unless B. also agrees to be bound by the award ; and
an agreement by C. with D. to learn a trade is not binding unless there is
also an undertaking by D. to teach him.' This may be called mutuality
of obligation.

§ 3. Mutuality of remedy is where each party can enforce the contract Mutolity of
against the other ; ^hus, a vendor of land can enforce specific perfor-
mance of the contract by the purchaser, because the purchaser could
have done the same to him; on the other hand, mutuality of remedy
does not exist where one of the parties to a contract is under disability,
or where it is required by the Statute of Frauds to be in writing, and he
has not signed it, because, though he can enforce it, the other party
cannot.'



N.



NAME AND ARMS CLAUSE is the popular name for the clause,
sometimes inserted in a will or settlement by which property is given to
a person, for the purpose of imposing on him the condition that he shall
assume the surname and arms of the testator or settlor, with a direction
that if he neglects to assume or discontinues the use of them, the estate
shall devolve on the next person in remainder, and a provision for
preserving contingent remainders.*

NATIONAL DEBT. See Fund, % 3.

NATIONALITY is that quality or character which arises from the
fact of a person's belonging to a nation or state. Nationality determines
the political, status of the individual, especially with reference to
allegiance [q, z;.), while domicile determines his civil status. Nationality
arises either by birth or by naturalization (^. z;.).'



* Chitty on Contracts, 13. " territoriality" (q. v.) for the purpose of

* Ihid, 14. * distinguishing the case of a nation having
' Ibid, 13. no national territory, e, g, the Jews) ; West-

* Davidson, Conv. iii. 277. lake, Priv. Int. Law, 5 ; Udny v. Udny,

* See Savigny, Syst. viii. § 346 (where L. R., I H. L. (Sc.) 441.
'nationality" is also used as opposed to

N N 2



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548 Natural-born Subject LAW DICTIONARY. Naval Courts

NATURAL-BORN SUBJECT. See Allegiance; Naiionaliiy;
Naturalization, § 3.

NATURAL RIGHTS are those rights which supplement the direct
rights of ownership {q, v,), by imposing duties on other persons. Thus
every owner of land has primi facie the right to prevent his neighbours
from polluting the air passing over his land, and from disturbing,
diminishing or polluting the water flowing through his land ; he is also
entitled to so much support from his neighbour's land as is necessary to
keep his own land at its natural level. These are called natural rights, as
opposed to acquired rights, such as easements, profits k prendre, fran-
chises, &c.* (See the various titles : also Access; Air; Navigation ; Support;
Water.)

NATURALIZATION takes place when a person becomes the subject
of a state to which he was before an alien. The effect of naturalization
is that the naturalized subject thereby acquires all political and other
rights, powers and privileges, and becomes subject to all obligations
to which natural-bom members of the state are entitled and subject,
except that he cannot divest himself of his obligations towards the state
of which he was formerly a subject, without the consent of that state.
(See Expatriation.)

§ 2. An alien becomes a naturalized British subject by obtaining
a certificate of naturalization from a Secretary of State in accordance with
the provisions of the Naturalization Act, 1870, which enlarges the
powers given by 7 & 8 Vict. c. 66 ; a special certificate of naturalization
may be obtained for the purpose of quieting doubts as to the right
of a person to be a British subject (s. 7).* Since the passing of the
above-mentioned acts, naturalization by private act of parliament, which
was formerly the only method of becoming naturalized,' has become
unusual save in exceptional cases.*

§3. The term "naturalization" is also sometimes applied to that
operation of law by which the children and grandchildren bom abroad
of English natural-bom subjects are themselves natural-bom subjects "to
all intents, constmctions and purposes." • (See Allegiance, § 5 ; Denizen;
Expatriation; Nationality.)

NAVAL COURTS are hdd abroad in certain cases to inquire into
complaints by the master or seamen of a British ship, or as to the
wreck or abandonment of a British ship. A Naval Court consists
of three, four or five members, being officers in her Majesty's navy,
consular officers, masters of British merchant-ships or British merchants.

1 Some writers use the term " natural Holtz. Ericyd.

rights" to include aU rights arising from ' I Bl. 374.

ownership (Phear on Water, 7) ; but this is * Rep. on Natur. App. 8.

inconvement and unnecessaiy. See P/io- * Stats. 7 Ann, c. 5; 13 Geo. 3, c. 21;

prietary Rights. as to the proper construction of the acts,

* Cutler on Naturalization; Block, Diet.; see Westlake, Priv, Int. Law, 11.



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Navigable law dictionary. Navigation Ack 549

It has power to supersede the master of the ship with reference to which
the inquiry is held, to discharge any of the seamen, to decide questions
as to wages, send home offenders for trial,* or try certain offences in a
smnmary manner.'

NAVIGABLE— NAVIGATION.— § i. The right of navigation is
the right of the public to use an arm of the sea, a river, or other piece of
water, as a highway for shipping, boating, &c., including the right to
anchor in it.' It is a right of way and not a right of property, and
therefore the owner of the bed of a river over which the public have by
user acquired a right of navigation may make any erection on it which
does not interfere with the navigation warranted by that user* (see High"
way). In the case of estuaries and navigable tidal rivers, however, the
beds of which are primi facie vested in the crown, the ownership of the
soil is wholly subject to the public right of navigation, and no part of it
can be used so as to derogate from or interfere with that right.* A river
which is subject to a right of navigation is said to be " navigable.**

As to navigation on the sea, see High Seas.

§ 2. The question whether a river is navigable or not seems to depend
partly on its size and the formation of its bed, and partly on the use to
which it has been put ; if a river will admit ships and it has been used
for shipping purposes by the public it is a navigable river, whether it be
tidal or non-tidal, and whether it flow through or over private land or land
belonging to the crown.* As a rule, however, an arm of the sea or a tidal .
river with a broad and deep channel is navigable.''

§ 3. Where the public have acquired the right of navigation on a
private or non-tidal river, the original exclusive right of the riparian
owners to fish in it is not thereby affected.® (See Fishery^

§ 4. Obstructing the navigation of a navigable water is a public nuisance.'
(See Nuisance.)

NAVIGATION ACTS were various statutes (especially 12 Car. 2,
c. 18) passed for the encouragement and protection of British shipping
by excluding foreign ships from trading with British colonies and even
with Great Britain. They have now been almost wholly repealed, the
principal exceptions being certain provisions designed to enforce re-
ciprocity in commerce between British and foreign countries, that is, to
prevent British shipping from being placed at a disadvantage in foreign
countries; for this purpose the Privy Council has power to impose
retaliatory restrictions and duties on foreign shipping.'**

* Merch. Shipp. Act, 1854, ss. 260 et • See Hale, De Jur. Mar. part i. c. 3 ;
seq. : Maude & rollock, 163. Lyon v. Fishmongers' Co.y I App. Ca. 662;

* M. S. Act, 1855, s* 2^* Original Hartlepool Colleries Co. v. Gibb^
» Gann v. Free Fishers of Whitstable, 5 Ch. D. 713.

II H. L. C. 192; Coulson & Forbes on ' Coulson & Forbes, 413.
Waters, 396. 8 /j^. 59.

* OrrEwing v. Colquhoun^ 2 App. Ca. • Ibid. 421.

839; Phear on Water, 53. '<* Steph. Comm. iii. 143 ; slat. 16 & 17

* Coulson & Forbes, 4x3* Vict. ss. 324 et seq. ; Customs Consolida-

tion Act, 1876.



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550



Ne exeat Regno



LAW DICTIONARY.



Necessaries



NE EXEAT REGNO is a writ which issues from the High Court of
Justice (in the Chancery Division) to restrain a person from going out
of the kingdom without the Queen's licence or the leave of the Court,
It is a high prerogative writ, which was originally applicable to purposes
of state only, but was afterwards extended to private transactions.* It is
employed when a person, against whom another has an equitable claim for
a sum of money actually due, is about to leave the country for the purpose
of evading payment, and the absence of the defendant would materially
prejudice the plaint iflf in the prosecution of his action.*

NE UNQUES EXECUTOR (= "never executor") is the plea by
which, under the old common law practice, a person sued as executor of
a deceased person denied that he filled that office : similarly with the plea
ne unques administrator?



Infant.



Lunatic.

Married
woman.



NECESSARIES.— § i. Notwithstanding the general rule that an
infant is incapable of binding himself by a contract, he may make a
contract for necessaries : and the word necessaries is not confined in its
strict sense to such articles as are necessary to the support of life, but
extends to articles fit to maintain the particular person in the state,
degree, and station of life in which he is.* (See Infant^

§ 2. The same doctrine applies to lunatics.*

§ 3. As a general rule every wife has an implied authority to contract
with tradesmen for necessaries suitable to the degree and estate of her
husband, so as to make him liable to the tradesmen, unless he has
sufficiently supplied her with articles of the kind in question, or unless
she has a separate income. If the husband and wife are living together,
this authority is implied, in the case of ordinary household necessaries,
from the usual practice of persons in the particular class of life,
according to which a wife has the management of such matters: if,
therefore, the husband wishes to put an end to this authority, he must
give notice to the tradesmen that it is withdrawn. But this principle
does not apply to such things as dresses, jewellery, &c. ; and, therefore,
the husband need not give notice to the tradesmen that his wife has no
authority to pledge his credit for such things, unless, by his previous
conduct (as by habitually allowing his wife to purchase such things on
credit and by paying for them), he has given her an implied authority to
do so. Where, however, the husband turns the wife out of doors, or so
conducts himself that she is obliged to leave him, he is under a legal
duty to maintain her ; and if he does not do so, she has power to provide
for herself at his expense by pledging his credit for necessaries, such as



1 Daniell, Ch. Pr. 1548 ; Hunter's Suit,
145; Sdbey y,S6b^^ L. R., 15 Eq. 200;
Beames on Ne Exeat; Rules of Court



(August, 1875), r. 10.

» Drover v. Beyer ^ 13 Ch. D. 242. See
Debtors Act, 1869, s. 2.

3 Williams, Ex. 1794.



< Co. Litt. 172a; Chitty on Contracts,
138 ; Pollock on Contract, 46 ; Peters ▼.
Fleming, 6 M. & W. at p. 46 ; Ryderv.
IVbmbweil, L. R., 4 Exch. 32.

* Pope on Lunacy, 239; Pollock, 74;
Baxter v. Earl of Portsmouth^ 5 B. & C.
170; 7D. &R. 614.



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Negative Pregnant law dictionary. Negligence 551

food, apparel, lodging, &c. And as this authority is conferred on her by
the law, and not by the husband, he cannot revoke or destroy it.*

§ 4. In the case of ships, the term " necessaries '* means such things Merchant
as are fit and proper for the service in which the ship is engaged, and W*'^*
such as the owner, being a prudent man, would have ordered if present ;
c,g,^ anchors, rigging, repairs, victuals.' The master may hypothecate
the ship for necessaries supplied abroad so as to bind the owner.' (See
Action^ §§ 1 1 ^/ seq!)

§ 5. In criminal law, the wilful neglect to provide necessaries for Criminal law.
children or apprentices is a misdemeanor.*

NEGATIVE PREGNANT, in pleading, is where a person gives an
evasive answer to an allegation of his opponent by answering it literally,
without answering the substance of it. Thus, if it is alleged that A.
received a certain sum of money, and he denies that particular amount,
this is a negative pregnant, because the substance of the allegation is
the receipt of some money, and not the particular amount received. A.
should, therefore, answer either that he did not receive any money at all,
or state how much he received. Similarly, when something is alleged to
have happened under certain circumstances, it is not sufl&eient to deny that
it happened under those particular circumstances ; but the party must state
whether it happened at all.*

NEGLIGENCE is want of proper care, and may consist in doing
something which ought not to be done, or in not doing something which
ought to be done.® The legal effect of negligence is either civil or
criminal.

I. In civil law, negligence may operate either to create or to defeat a Civil law.
right of action.

(i) § 2. Negligence which creates a right of action is a species of tort
or injury giving rise to a right to damages, and may exist either (a) where
the parties are strangers, or (b) where they stand in a special relation to
one another, (a) To the first class belong those cases where one person Towards
by want of care in the use of his own property, or in the pursuit of his ^ ^^"'
own private advantage or pleasure, causes injury to some one else;'
thus, a person who keeps his buildings in a bad state of repair, is liable
for any injury caused thereby to a person having a right to be in or
near them.® So where a man's land is subject to an easement for the

1 Dehenham y, Mellon, 5 Q. B. D. at p. * Rules of Court, xix. 22.

398 ; S. C, 6 App. Ca. 24. The older « See SmUk v. L, <Sr* S, W. RaU, Co.,

authorities (Manby v. ScoU, Montague v. L. R., 5 C. P. at p. 102 ; Underhill on

Benedict, JoUv v. Rees, &c.), will be found Torts, 135. Mr. Campbell (Law of Ne^li-

fully discussed in Smith's L. C. ii. 429. gence, passim) follows Austin in defining

' Maude & Pollock, Merch. Shipp. 71, negligence as the state of mind of the doer

113. or emitter ; but in ordinary parlance negli-

' Ibid, 68. gence means both the state of mind and

* Stats. 24 & 2$ Vict. c. 100, s. 26 ; 31 the act or omission, and there is no reason

& 32 Vict. c. 122, s. 37. See also the why it should not. One without the other

statutes passed to prevent parents from would give no right of action,

allowing their children to become charge- ' CampbeU, 25.

able to the parish : Steph. Comm. ii. 290 • Terry v. Ashton, i Q. B. D. 314. See

et seq. also Mersey Docks Trustees v. Gibbs, L. R.,



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552



Negligence



LAW DICTIONARY.



Negligem



Neglifjence in
law and in
act.

Arising from
contract.



Slight, ordi-
naiy and
gross.



support of the buildings on his neighbour's land, and he excavates
his land, so that the buildings are injured, he is liable to an action,
no matter how carefully he may have done it ; hence this kind of negli-
gence (meaning the invasion of a jus in rem) is sometimes called
negligence in law, to distinguish it from negligence in fact.* (b) § 3. To
the latter class belong those cases in which a person by entering into
a contract with another puts himself under an obligation to exhibit a
certain degree of care, and fails to do so, whether the obligation is
created by the contract itself, or is imposed by law. It is with reference
to these cases that the division of negligence into slight, ordinary, and
gross, becomes important : thus, the general rule in the law of bail-
ments (^. V,) is that when a bailment is made for the sole benefit of the
bailee, he is liable for slight negligence ; when it is made for the benefit
of both, he is liable for ordinary negligence ; and when it is made for the
sole benefit of the bailor, the bailee is only liable for gross negligence.'
Ordinary negligence is the want of that care which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs, would presumably have exercised under the circum-
stances of the particular case ;' and slight negligence is the want of
a greater degree of care. § 4. The term gross negligence is chieflj
used to mean, not that the person accused of it has used less care
than a reasonable man would have used, but that he has used less care
than he himself would presumably have used if he had been acting
in his own affairs, so that what would be gross negligence in a prudent
man may not be so in a reckless one. Thus, if a man for his own
convenience places goods for safe keeping without reward with a man
who "is an idle, careless, drunken fellow, and comes home drunk,
and leaves all his doors open, and by reason thereof the goods happen
to be stolen and his own, yet he shall not be charged, because it is the
in dbstracto, bailor's Own folly to trust such an idle fellow."* § 5. It is, however,
also used to signify the want of that skill and care which persons
exercising certain employments are bound to exhibit, even when they
act gratuitously, as in the case of physicians, solicitors, &c.; it is,
therefore, ordinary negligence committed by a gratuitous agent or
bailee ; the term ** gross " seems to have been applied to these cases
in order not to disturb the s}Tnmetry of the rule that a gratuitous agent is
only liable for gross negligence.*
(2) § 6. Negligence operating to defeat a right of action is either

(a) negligence amounting to estoppel (as to which see Estoppel, § 6), or

(b) contributory negligence, which occurs where the injury complained



Gross negli-
gence in con*
creto :



Negligence
by estoppel
and contri-
butory neg-
ligence.



I H. L. 93 ; Rylands v. Fletcher, L. R.,
3 H. L. 330 (negligent use of property) ;
Worth V. Gelling, L. R., 2 C. P. I (negli-
gent keeping of a ferocious dog) ; Gautret
V. Egerton, L. R., 2 C. P. 371 (distinction
between in\ntation to use dangerous pro^.
pcrty and mere licence or permission).

* Gale on Easements, 394.

* Coggs V. Bernard, Smith's L. C. i. 147.
3 SmUh V. I, ^ S. m Rati. Co., L. R.,





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 72 of 119)