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 97 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 97 of 119)
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holders being the shareholders.*

Etymology.]—" Scrip certificate" seems to be a contraction for "subscription certi-
ficate," that is, a certificate of the amount subscribed for by the applicant.

1 Brandon, For. Alt. 13. 1870.

2 jifid^ ,1^. 5 Goodwin v.Robarts, L. R., 9 Exch.
» Smith's Action (nth edit.), 369; i 337; i App. Cas. 476 ; RumbaU \. Metro^

Wms. Saund. 248. politan Bank, 2 Q. B. D. 194.

* Lindley on Partn. 127 ; Stamp Act, • Lindley, 128.



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Script LAW DICTIONARY. Seamen 741

SCRIPT, in probate practice, is a will, codicil, draft of will or codicil,
or written instructions for the same.* If the will is destroyed, a copy or
any paper embodying its contents becomes a script, even though not
made under the direction of the testator.' (See Affidavit, § 7.)

SCULPTURE. See Copyright, § 5 ; Registration 0/ Designs.

SCUTAGE = escuage {q, ».)•

SE DEFENDENDO. See Homicide, § 3.

S£IA. See High Seas; Kin^s Chambers; Navigation; Territorial
Waters, As to the sea-shore, see Foreshore : as to sea-walls, see Frontage,
note (2).

SEAL. — § I. The formality of affixing a seal to a document is one of
the oldest modes of expressing the intention to be bound by it, derived
from the times when few persons could sign their own names.'* It is still
a solemn mode of expressing assent to a written instrument, and when
done with that intention makes the instrument a deed : the intention is
generally expressed by the additional formality of delivery {q. v. ; and see
Deed; Execution; Sign),

§ 2. Every corporation aggregate must have a common seal, for being Corporation,
an invisible body it cannot manifest its intention by any personal act
or discourse, but only acts and speaks by its common seal,* except where
it is represented by an officer, agent or attorney, and in a few cases where
it would be inconvenient to require the seal, e,g,, in every-day matters of
business.*

As to the seals of the crown, see Great Seal; Privy Seal: also Sign
Manual; Signet.

SEALING UP. — ^Where a party to an action has been ordered to
produce a document, part of which is either irrelevant to the matters in
question or is privileged from production, he may, by leave of the Court,
seal up that part, if he makes an affidavit stating that it is irrelevant or
privileged.' The sealing up is generally done by fastening pieces of
paper over the part with gum or wafers.

SEAMEN. — ^The principal statutory enactments for the protection of
seamen are those requiring agreements for service on board ship to con-
tain certain particulars,' and requiring vessels to carry proper provisions,
water, lime or lemon juice, and medicines.® The enactments with regard
to wages, advance notes, &c., are referred to under title Allot, § 4, and in



> Probate Rules, 1862 ; C. B. 31. * Pollock, Contract, no.

» Browne's Probate Pr. 280. • Darnell's Ch. Pr. 1681.

^ Waiiams, R. P. 147. ' Merchant Shipp. Act, 1854, ss. I49

* Bl. Comm. i. 475 ; Shepp. Touch. 56; et seq.

Companies Act, 1862, ss. 41,55. See also ^ Ibid. ss. 221 et seq.; 30 & 31 Vict,

the Companies Seals Act, 18O4. c. 124.



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742 Search LAW DICTIONARY. Setmorthinm

Addenda, titles Advance Note and Allotment; those with regard to unsea-
worthy ships are referred to under title Seaworthiness, As to overloading
and defective loading of grain ships, &c., see Merchant Shipping.

SEIARCH. — In international law, the right of search is the right on
the part of ships of war to visit and search merchant vessels during war,
in order to ascertain whether the ship or cargo is liable to seizure. Resist-
ance to visitation and search by a neutral vessel makes the vessel and
cargo liable to confiscation. Numerous treaties regulate the manner in
which the right of search must be exercised.* (See Contraband.)

SEARCHES.— On a contract for the sale of real estate, it is usual for
the purchaser, before the completion of the purchase, to examine certain
records and registers for the purpose of seeing whether they contain notice
of any fact affecting the title to the property. This is called searching
for incumbrances. The searches generally made are for judgments, lites
pendentes, and annuities charged on the land ; also a general search in
the land registry (if the land is registered), and in the customary court
rolls (if the property is copyhold). Sometimes also the lists of bankrupts
and insolvents, and the register of bills of sale, are searched, if any doubt
exists as to the pecuniary circumstances of the vendor.* § 2. Similarly on
the sale or mortgage of a ship, the register of ships is searched, to ascer-
tain the condition of the title.' (See Merchant Shipping,)

See Annuity; Judgment , § 16; Lis Pendens ; Land Registry ; Register,
§§ 3> 4> 8> '3> 19 ; Vendors and Purchasers.

SEAWORTHINESS.— § i. The question whether a ship is or was

at a given time seaworthy is chiefly of importance with reference to the

liability of the owner and the underwriters or insurers in the event of her

loss. In this use of the term, "seaworthiness" means that the vessel is in

a fit state, at the time of sailing,* as to repairs, equipment, and crew, and

in all other respects, to encounter the ordinary perils of the voyage in-

Warraiit of sured.* § 2. Where there is no agreement to the contrary, a shipowner

seaworthiness. ^^^ contracts for the conveyance of merchandise in his ship, or contracts

for her insurance, impliedly warrants that she is seaworthy ; that is to say,

if she is lost, and it turns out that she was not seaworthy at the time of

sailing, in the one case the owner is liable to the owner of the goods for

their loss, and in the other case the insurers or underwriters are discharged

from liability imder the policy, notwithstanding the bona fides and honesty

of the shipowner.*

Survey of un- § 3. If it is alleged by one-fourth of the seamen belonging to a ship

Sips? ^ '^^^ ^y reason of unseaworthiness, overloading, defective equipment, or

the like, she is not in a fit condition to go to sea, the Court having

* Manning's Law of Nations, 433. . < Not merely at the time of loading the

* Dart's Vendors & Purchasers, 454. cargo : Cohn v. Dcpvidson, 2 Q. B. D. 4«.
' As to ofhcial searches by the regis- * Maude & Pollock's Merch. Shipp. 387.

trars of judgments, bills of sale, &c., see • Kopitoff v. Wilsoriy i Q. B. D. 377 ;

Rules of Court, k. A. 8 (April, 1880). Cohn v. Davidson, 2 Q. B. D. 455; Maude

& Pollock, 387 ; Smith, Merc. Law, 377.



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Seek LAW DICTIONARY. Sccta 743

cognizance of the case may have the ship surveyed. The Board of Trade
may also order a survey if they receive a complaint, or have reason to
believe that a ship is unfit to proceed to sea.*

§4. Provision is made by the Merchant Shipping Act, 1854, and by the
Passengers Acts, 1855, 1863, and 1870, for the proper equipment and
siu^ey of ships in the interest of passengers.

§ 5. Every person who sends a ship to sea in an unseaworthy state, so
as to endanger the life of any person on board, is guilty of a misde-
meanor, unless he proves that he used all reasonable means to make her
seaworthy.'

SECK is technically applied to certain services and obligations to
signify that they create no tenure between the person from whom and the
person to whom they are due, as opposed to those services of ** homage,
fealty, and escuage, which cannot become secke or dry, but make tenure
whereunto distresses, escheats and other profits be incident." ' At the
present day the term is hardly ever used except in the phrase rent seek.*
(See Renty § 8.)

SECOND DELIVERANCE. See Replcoin, § 3.
SECONDARY. See Conveyance, § 4 ; Evidence, § 9.

SECRET TRUSTS.— Where a testator gives property to a person,
on a verbal promise by the legatee or devisee that he will hold it in trust
for another person, this is called a secret trust. The rule is, that if the
secret trust would have been valid as an express trust, it will be enforced
against the legatee or devisee, while if it would have been invalid as an
express trust, e, g,, by contravening the provisions of the Mortmain Act,
the gift fails altogether, so that neither the devisee or legatee, nor the
object of the trust, takes any benefit by it.*

SECRETARY OF PRESENTATIONS. See Presentation Office.

SECTA (from the Latin, sequi, to follow) literally means a following. The word is
chiefly used to denote a service, due by custom or prescription, which obliges the
inhabitants of a particular place to make use of a mill, oven, kiln or similar structure
(secta ad molendinum, ad fumum, ad torrale, ^c). In such a case the owner of the
mill, oven or kiln, may have an action against any inhabitant who " withdraws his suit,"
that is, goes to another mill, oven or kiln. The theory is that the mill or other structure
was erected by the ancestors of the owner for the convenience of the inhabitants, on
condition that they should use it to the exclusion of any other.'

§ 2. In the old common law practice, secta meant the followers or witnesses whom the
plaintiff brought into Court with him to prove his case. The actual production of the
secta has been disused since the reign of Edward III. ; but the declaration in every
action contained a fictitious statement on the subject, until comparatively modem times.''

1 Stats. 34 & 35 Vict. c. no; 36 & 37 Hargrave's note (5).

Vict. c. 85; 39 & 40 Vict. c. 80. • Lewin on Trusts, 51 ; Watson's Comp.

2 Stat. 39 & 40 Vict. c. 80. Eq. 54.

> Co. Litt. 151 a. « Bl. Com. iii. 235.

* See also Co. Litt. 147 b and 151 b, and ' Ibid, 295, 344.



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744 Secured Creditor LAW DICTIONARY. Security

SECURED CREDITOR. See Creditor, §§ z d seq.
SECURED DEBTS. See Debt, § 8.

SECURITY. — I. § I. A security is something which makes the en-
joyment or enforcement of a right more secure or certain.

I. With reference to its nature, a security is either a personal security :
or a security on property (called in jurisprudence a real security*) : or a
judicial security.

Personal. (i) § 2. A personal security consists in a promise or obligation by the

debtor or another person, in addition to the original liability or obligation
intended to be secured. Sometimes the security consists of an instrument
which facilitates the enforcement of the original obligation or extends its
duration, as in the case of a bond, bill of exchange, promissory note, &c.
given by a debtor for an existing debt, the liability on such instruments
being easy of proof. When the security consists of a promise or obli-
gation entered into by a third person it generally takes the form of a
guarantie {q, v,\ bond, promissory note, or the like (see Surety),

(2) § 3. A security on property is where a right over property exists, by
virtue of which the enforcement of a liability or promise is facilitated or
made more certain. This is of two kinds, active and passive. § 4. An
active security is where the creditor (or promisee) has the right of selling
the property for the purpose of satisfying his claim, as in the case of a
pledge or a mortgage with a power of sale. A mortgage of a freehold
interest in land is sometimes called "real security," as opposed to a
security on leaseholds or other personalty.* (See Investment.) § 5. A

Passive. passive security is where the creditor has the right of keeping the

property until his claim is satisfied, but not of selling it; such are
possessory liens.' § 6, Between these two classes stand certain rights
which entitle the holder to take proceedings to have the property dealt
with so as to satisfy his claim ; such are charges in the restricted sense of
that word. (See Charge, § 2 ; Hypothecation, § 2.) § 7. The important
characteristic of a security on property is that in the event of the debtor
being bankrupt, absconding or dying the right can nevertheless be
enforced by means of the property. (See Creditor, §§ 2 et seq.)

Specific. § 8. Securities on property are also either specific or shifting. Thus,

an ordinary mortgage on land is a security on specific property; the
mortgagor can only deal with the land subject to the mortgage, and the
mortgagee does not by his mortgage acquire any right to other property



Security on
property.

Active.



* As to the ordinary meaning of "real
security,** see } 4.

» Jones V. Chennell, 8 Ch. D. 492 ; In
re Boyd's Settled Estates, 14 Ch. D. 626.

' Mr. Justice Markby (Elements of Law,
§§ 501, 510, 534) makes a distinction be-
tween a real security and a security con-
sisting of a jus in re, the former being de-
fined as ** the means of getting satisfaction
out of a specific thing, independently of
the will or ability of the debtor,** the
essence of it being the power of sale, while



the latter seems to be a mere possessory
lien. I cannot find any authority for this
use of the term "real security.'* It is true
that Kuntze (Cursus, } 549) draws a dis-
tinction between a security which operates
as an inducement to the debtor to peribrm
his obligation and one which enables the
creditor to satisftr the debt independently ;
but he calls the latter " eine unabhingt^e
sachliche Gewahr,'* in order to distinguish
it (§ SS6).



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Security LAW DICTIONARY. Security 745

belonging to the mortgagor (except in the anomalous case of consolida-
tion, q, z'.). § 9. A shifting or floating security, on the other hand, is a Shifting or
security on all property which shall come under a certain description ^^^^^S-
at the time when the rights of the parties have to be ascertained. Thus,
a mortgage or bill of sale on fixtures, machinery or the like, in a given
building, may be so framed as to cover articles of a like description
placed in the building after the date of the security, with or without
a clause empowering the mortgagor to take away any articles and replace
them by others of equal value.* So a debenture may form a charge on
the property for the time being of a company, including stock in trade,
book debts, &c. ; so that it may sell its stock in trade and buy new stock
in trade, receive book debts and create new ones in such a way that,
when the time comes for enforcing the security, the property then subject
to it may be quite different from what it was when the security was given.
As soon as proceedings are taken which necessitate an enforcement of
the security (^.^., if the company goes into liquidation), the security
becomes fixed, and no further change is possible.'

(3) § 10. A judicial security exists where a right is enforceable by Judicial,
means of the^ powers vested in a Court of law. Thus, a judgment is
enforceable by execution against the property, and (in some cases) against
the person of the defendant ; and, therefore, a judgment creditor who
has taken the proper steps to enforce his judgment is a secured creditor.
(See Creditor^ § 2 ; Judgment, § 16.) To this class may also be referred
cognovits, warrants of attorney, garnishee orders, stop orders, charging
orders, distringas notices (see the various titles).

II. § II. With reference to its origin, a security is either created by Agreement of
agreement of the parties or by operation of law ; a mortgage or bond is P^^*^. °'*

an instance of the former class — a retaining lien of the latter. law.

III. § 12. With reference to the purpose for which they are created,
securities may be divided into (1) ordinary securities, namely, those
created to secure the payment of a debt or the performance of an obli-
gation between private persons ; and (2) securities given in legal pro-
ceedings. Securities given in legal proceedings are of various kinds.

(i) § 13. In ordinary actions, security is in some cases required to
be given to secure a right in question in the litigation : to this class
belong stop orders, distringases, attachment of debts, payment of money
and transfer of stock into Court, deposit of property in Court, and
security given under Order XIV. of the Rules of Court. (See Bail, § 2 ;
Judgment, § 9.) § 14. In criminal and summary proceedings the defen-
dant or prisoner is sometimes allowed to go at large on giving bail or
entering into his own recognizance, instead of being detained in custody.
(See Baity § 5.) A person may also be required to give security to keep
the peace. {St^ Articles oj the Peace ; Breach oj the Peace ; Recognizance, §4.)



> Holroydy, Marshall, loH.L. C. 191; ' See In re Panama, dr*<r. Co., L. R.,

Fisher on Mortgage, 25 et seq,\ In rt 5 Ch. App. 318; and as to debentures

ColonuU Trusts Corporation, 15 Ch. D. charged on the undertaking of a company,

469. see Debenture, §§5 and 11 ; Receiver, § 5.



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746



Security for Costs LAW DICTIONARY.



Seduction



Security for
costs.



(ii) § 15. Security is sometimes required to be given in relation to the
proceedings themselves. Thus, in an ordinary action the plaintiflf may,
in certain cases (as where he permanently resides abroad), be compelled
to give to the defendant security for the costs of the action,* generally
either by entering into a bond with sureties, or by paying money into
Court.* An appellant may also be required to give security for the
costs of the appeal, e,g,^ if he appears to be insolvent.' As to security
on removing causes from inferior Courts, see Removal, §§ 3> 4- ^^
criminal and sunmiary proceedings the complainant or prosecutor is
generally required to enter into a recognizance, by which he binds him-
self to prosecute the proceedings.

II. § 16. In a secondary sense, "security" denotes an instrument by
which a security is created or evidenced, such as a bond, bill of exchange,
debenture, scrip, &c.



SECURITY FOR COSTS. See Security, § 15.

SECURITY FOR GOOD BEHAVIOUR. See ArlicUs of the
Peace; Breach of the Peace; Recognizance, § 4; Security, § 14.

SECUS = otherwise.



Conspiracy.



SEDITION— SEDITIOUS.— § i. Sedition is the offence of pub-
lishing verbally or otherwise any words or document with the intention of
exciting disaffection, hatred, or contempt against the sovereign, or the
government and constitution of the kingdom, or either House of Parlia-
ment, or the administration of justice, or of exciting her Majesty*s sub-
jects to attempt, otherwise than by lawful means, the alteration of any
matter in Church or State, or of exciting feelings of ill-will and hostility
between different classes of her Majest/s subjects.

§ 2. If the matter so published consists of words spoken the offence is
called the speaking of seditious words. If it is contained in a document
or the like, the offence is called a seditious libel.

§ 3. A seditious conspiracy is where two or more persons agree to do
any act for the furtherance of any seditious intention.

All these offences are misdemeanors.*

See Publish.



SEDUCTION is where a man induces a woman to have connection
with him by taking advantage of her affection for him, or by promising her
marriage, or by some similar means. On the principle that volenti nonfit
injuria, seduction is no actionable wrong to the woman herself, but it is a



» Smith's Action, 99; Coe's Pr. 129;
DanielPs Ch. Pr. ch. ii. sect. 4.

» Rules of Court, Iv. (Feb. 1876, and
April, 1880). As to security in County
Court practice, see Pollock^s C. C. P.
246 et seq.

3 Rules of Court, xlviii. 15; Wilson w



Smith, 2 Ch. D. 67 ; GrafU v. Banque
FrancO'Egyptienne, 2 C. P. D. 430.

* Stephen's Crim. Dig. 55 ; Short! on
Copyright, 3 2 A. See also stat. 6 Anne,
c. 7 (c. 41 in the Statutes of the Realm),
whicn makes it high treason to impugn, by
writing or printing, the Act of Settlement.



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Setgnory law dictionary. Seisin 747

wrong to her parent or master if it causes him a loss of service (see
Service^ § 7), and in an action by a parent the jury may give exemplary
damages.* (See Damages, § 4.)

SEIGNORY.— I. § I. A seignory is the relation of a feudal lord to
his tenant, and to the land held by him. Thus, if before the statute of
Quia Emptores, A., a tenant in fee simple, conveyed his land to B. to
hold of A. as his tenant, then A.'s rights against B. in respect of services,
fealty, &c., and his interest in the land in the event of an escheat or
forfeiture by B. or his successors in title, would constitute a seignoi
Since the statute of Quia Emptores no seignory can be created. Owii
to the feudal incidents of tenure (fealty, &c.) having now becor
obsolete, and to the rent services anciently reserved having become almc
valueless, seignories in freehold land are seldom of any practical impo
ance : in most cases indeed they cannot be traced. (See Morimain, § 1
Consequently almost the only seignories now in existence are those
lords of manors, for a manor does not exist unless there are at least t^
free tenants, that is, tenants of freehold land forming part of the man
who hold of the lord by a service of some kind.* Hence a manor
sometimes said to consist of demesnes and seignories.'^

§ 2. A seignory is sometimes distinguished by the Ser\dces incident
it, e, g., a seignory by fealty and rent-service ;* or by the position of t
lord, e.g., seignories paramount and mesne seignories. (See Mesn
Paramount) A seignory may also be either appendant, that is, attach
to a manor ; or in gross, when it has been severed from the manor
which it originally belonged. On the conveyance of a manor t
seignories appendant to it pass with it; a seignory in gross must
conveyed by a deed of grant, a seignory being an incorporeal hei
ditament.*

II. § 3. Seignory sometimes means the land or district over which t
rights of the lord extend. (Compare Franchise, § 4 ; Liberty, § 2.)

Etymology.]— Nonnan French, scignur; from Latin, senior,

SEISED IN DEMESNE AS OF FEE. See Demesru, §§, 2, 3.

SEISIN. — § I. Seisin is feudal possession; in other words, it is t
relation in which a person stands to land or other hereditaments, wh
he has in them an estate of freehold in possession ;* such a person
said to be seised of the land. ** Seisin " is opposed (i) to " possessior
which, in its technical sense, is only applied to leaseholds and oth
personal property ;' and (2) to "occupation," which signifies actual posse
sion. (See Occupation; Possession, § 17O



* Stephen's Comm. iii. 441 ; Underbill a seignory differed little from a reversi<
on Torts, 152. as is shown by the manner in which

» Williams on Seisin, 9, 13 ; Warrick v. cheated lands descend (see Escheat^ } \

Queen's Collegey L. R., 6 Ch. 716. Burton's Comp. 326.

* Burton's Comp. 326; and see Britton^ * Williams on Seisin, 2 ; Butler's n
106 a. to Co. Litt. 266 b'.

* BeviVs Case, 4 Rep. 8 a. • Co. Litt. 1 7 a, 200 b. It is true tl

* Williams, R. P. 307, 314. Originally Littleton (§ 567) speaks of a tenant



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748 Seism law dictionary. Seisin

With reference to its nature, seisin is either actual [in deed] or in
In deed. law. § 2. Actual seisin, or seisin in deed, is where the freeholder is

himself in possession or occupation of the land, or where it is occupied
by a person claiming under him, and not having an estate of freehold in
In law. the land, e, ^., a lessee for years.^ § 3. Seisin in law is that seisin which

an heir has when his ancestor dies intestate seised of larf^ and neither
the heir nor any other person has taken actual possession of the land.
Thus, if a man has two farms, Blackacre and Whiteacre, the former of
which he lets to a tenant for years, and the latter he occupies himself,
then, on his death intestate, his heir has actual seisin of Blackacre from
the moment of his death, because the possession of the tenant is looked
upon as the possession of the freeholder; but of Whiteacre the heir has
merely a seisin in law until he enters and takes possession, and then he
has actual seisin of Whiteacre too.' § 4. Actual seisin of incorporeal here-
ditaments is obtained by exercising the rights of which they consist,
e, g,y receiving a rent-charge or presenting to an advowson.'

§ 5. With reference to the nature of the property, a tenant in fee simple
is said to be seised in his demesne as of fee ** of such things whereof
a man may have a manuall occupation, possession or receipt, as of lands,
tenements, rents and such like. . . But of such things which do not lie
in such manuall occupation, &c., as of an advowson of a church and such
like, there he shall say that he was seised as of fee and not in his demesne



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 97 of 119)