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 98 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 98 of 119)
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as of fee."* The distinction was only of importance under the old
system of pleading. (See Demesne, § 3.)

§ 6. Since the abolition of the rules as to descent cast and ^'seisina
facit stipitem" {q, v,), and the introduction of modem forms of con-
veyance, which do not require livery of seisin {q, v,), the doctrine of
seisin has lost almost all its importance.*
Quasi-seisin. § 7. Quasi-seisin is the possession which a copyholder has of the
land to which he has been admitted. The freehold in copyhold lands
being in the lord, the copyholder cannot have seisin of them in the
proper sense of the word, but he has a customary or quasi-seisin,
analogous to that of a freeholder."

years being seised ; but this seems to be * See, however, Leach v. Jay, 6 Ch. D.

with reference to the effect of a grant of 496 ; 9 Ch. D. 42.

the reversion without livery of seisui, for in Under the old law, when an heir ob-

* 324 he says that "where one will plead a tained seisin of land on the death of his



L



;ase or grant made to him of a chattel ancestor, and then himself died intestate,
real or personal, then he shall say by force the land went to his heirs and not to the
of which he was possessed, &c." See a heirs of his ancestor. This was called a
similar use of the word in Britton, 102 b. " mesne seisin," because it was inter-
However, there is no doubt that at one mediate between the two deaths, and the
time seisin and possession were convertible heir was called a ** mesne heir" or "mesne
terms (Co. Litt. 17 a). person." (Watkin on Descent, 35; and

^ Co. Litt. 15 a. see Possessio Fratris,)

2 Williams on Seisin, 5. The term Another kind of seisin b the "simple

"seisin in law "is sometimes applied to seisin" spoken of by Britton (178 o),

the interest of a reversioner or remainder- namely, that nominal or formal possession

man expectant on an estate of freehold, which a lord was entitled to take on the

but inaccurately, because the seisin is in death of a tenant in fee simple in order to

the tenant of the estate of freehold. (Wat- assert his right of seignoiy, as opposed to

kin on Descent, 35.) the full or beneficial seisin of the tenant's

8 Litt. }§ 235, 565 ; Co. Litt. lib, 15 b, heir. This has long been obsolete.

315a; BeviPs Case, 4 Co. 8. « Williams on Seisin, 126.

* Litt. § 10.



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Seisina facit SHpitem LAW DICTIONARY. Selden 74^

§ 8. Equitable seisin is analogous to legal seisin, that is, it is seisin Equitable
of an equitable estate in land. Thus, a mortgagor is said to have seism,
equitable seisin of the land by receipt of the rents.* (See Disseisin;
Possession,)

Etymology.] — The most probable derivation is from the old Geralan word hhazjan ;
Anglo-Saxon, bisettan^ to take possession of; modem English, beset Hence the old
French, saisir;^ late Latin, sa(^re or saisire, to take possession of land;^ Norman
French, seisine, possession of land.* The late Latin, saisiare^ seems to be a still later
formation, made when saisir had acquired the popular meaning of seize : it is apparently
only applied to moveables.*

SEISINA FACIT STIPITEM in the law of descent means " seisi
makes the stock of descent." The old rule used to be that when a perse
died intestate as to his land, it descended to the heir of the person wl
was last seised of it. Now descent is traced from the last purchaser.* (Sc
Descen/.)

SEIZURE. — § I. In the law of copyholds, seizure is where the loi
of copyhold lands takes possession of them in default of a tenant. It
either seizure quousque, or absolute seizure. § 2. When a copyhold tenai
dies intestate, his heir is bound to come to the lord for admittance with:
a certain time, and pay the fine on admittance; if he does not appear, tl
lord may seize the land quousque (/. e,, " until " he does appear), and enjc
the rents and profits in the meantime. Seizure quousque is rather in tl
nature of a process for recovering the fine than in the nature of a fo
feiture, but in some manors there are customs that, after neglect <
refusal to appear within a certain time, the land shall be absolute
forfeited.''

§ 3. Where the lord seizes land for a forfeiture, escheat, &c., this is a
absolute seizure.® § 4. The lord may also take heriots by seizure, and tl
same remedy is given for things which Hq in franchise, as waifs, wrec!
estrays, &c.'

§ 5. In the law of procedure, seizure is sometimes a species of execi
tion. Thus, a sheriflf executes a writ of h, fa. by taking possession of tl
chattels of the debtor. ^° (See Fieri facias,) § 6. Seizure also takes pla<
when goods are confiscated as a punishment for smuggling or carryir
contraband of war.

SELDEN. — ^John Selden was bom in 1584, and died in 1654. ^'
wrote Mare Clausum ; Dissertatio historica ad Fletam ; Notes on Fortescm
and numerous other works on tithes, titles of honour, &c.

1 Chomleyy.Clintoni2M.ex. IT I \ 2jac. * Britton, loi b.

&W. 190. * 'Actual possession clothed with ' See the extracts in Stubbs, 138, 266.

the receipt of the rents and profits is the * Williams, R. P. loi.

highest mstance of an equitable seisin:" ' Elton, Copyh. 140; Doe v. Truema

Casbome v. Scarfe, I Atk. 603. i B. & A. 736.

» Diez, Etym. Wcirtb. s. v. Sagire, » See Doe v. Hellier, 3 T. R. 162.

' **^t . . . terram alterius saisibai:^* • Steph. Comm. iii. 258.

extract from Domesday Book in Stubbs's ^° See Bissicks v. Bath Colliery Co,^

Charters, 84. Exch. D. 174.



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750 Select Committee law dictionary. Separate Estate

SELECT COMMITTEE. See Committee^ § 2.
SELF-DEFENCE. See Homicide, § 3.

SEMBLE = "it appears." Used in quoting a dictum (^. z?.), or a case
which only indirectly bears on a point.

Ecclesiastical. SENTENCE, in ecclesiastical procedure, is analogous to judgment
(^. z'.) in an ordinary action. A definitive sentence is one which puts an
end to the suit, and regards the principal matter in question. An inter-
locutory sentence determines only some incidental matter in the pro-
ceedings.*

Criminal. § 2. ** Sentence'* is commonly used to signify the judgment in a criminal

proceeding. {See Judgment , § 23.)
See Decree, § 4.

SEPARATE ESTATE— SEPARATE USE.— § i. Separate estate,
or property belonging to a woman to her separate use, is property which
belongs to a married woman as if she were a feme sole. The doctrine of
separate estate, which was formerly recognized only in equity, may be
described generally as giving a married woman the power of acting with
respect to her separate property as if she were a feme sole ; thus she is
entitled to the income of it, and may dispose of it by deed or will, and
mortgage or charge it without the concurrence or consent of her husband,
unless she is restrained from anticipation or alienation. (See Anfiapafion ;
Restraint on Alienation,) Her separate estate is liable for all engagements
contracted by her with reference to and on the credit of it.' (See
Engagement,)

§ 2. Property may become the separate estate of a married woman
either by provision of the party or under a statute. It may be settled
upon her, or devised, bequeathed or otherwise given to her to her separate
use, whether by a stranger or by her husband, and whether it is given to
trustees for her or not, and whether it is given to her absolutely or subject
only to a power of appointment by her. Where the legal estate in
the property is vested in the husband, he is a trustee for her. Property
becomes the separate estate of a married woman by statute (i) under
the Married Women's Property Acts; (ii) under a decree of judicial
separation (^. z'.); (iii) under a protection order (^. ».) ; or (iv) under
a separation order {q, v,),

§ 3. Where property is given to a married woman to her separate use
absolutely (that is, without a limitation over after her death), and she
dies without having disposed of it, her husband takes it jure mariti. (See
Jus Mariti, § 2.)

1 Phill. Eccl. Law, 1260. Inst. ; Haynes*s Equity, 200 ; Snell's Eq.

» Hulmev. Tenant, I Bro. C.C. 16 ; Tullett 278 ; London Chartered Bank of Australia

V. Armstrong, I Beav. I ; Shattock v. Shat' v. Lemprierey L. R., 4 P. C. 572; In re

toch, L. R., 2 Eq. 182 ; White & Tudor, L. Harvey s Estate, 13 Ch. D. 216; Matthcsh-

C. i. 521; Pollock on Contract, 62 ; Mac- man^s Case, L. R., 3 Eq. 781.
queen's Husb. & Wife, 316; Maine's Early



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Separation LAW dictionary. Sequestration 731

As to the separate estate of partners, see Joints § 7.
See Married Women's Property Act; Protection; Coverture; Engagement;
Use ; Administration, note (i), p. 28.

SEPARATION, — § i. A provision or agreement for the future sepa-
ration of a husband and wife is void, being in derogation of the marriage
contract. (See Derogation, § 2.)

§ 2. An agreement for immediate separation is valid, because it is made
to meet a state of things which, however undesirable in itself, has in fact
become inevitable.^ An agreement of this kind generally takes the form
of a deed.

SEPARATION DEEDS.— Owing to the rule that a wife cannot in
general contract with her husband,' the deed is made between the hus-
band and a trustee for the wife,' and generally contains provisions for the
allowance by the husband of an annuity for the wife, for his indemnifica-
tion by the trustee against the wife's debts, for the custody and education
of the t:hildren, &c.* It follows from the nature of a separation deed,
that it is avoided by subsequent reconciliation and cohabitation,* but while
it remains in force, it is a bar to a suit for restitution of conjugal rights.*

SEPARATION ORDER.— Where a husband is convicted of an
aggravated assault upon his wife, the Court or magistrate may order that
the wife shall be no longer bound to cohabit with him ; such an order
has the same effect as a decree of judicial separation on the ground of
cruelty: it may also provide for the payment of a weekly sum by the
husband to the wife and for the custody of the children.®

SEQUESTRARI FACIAS is a writ issued for the purpose of en-
forcing a judgment against a beneficed clergyman, when a fi. fa. has been
issued and returned nulla bona. It commands the bishop of the diocese
to enter into the benefice and sequester the rents, tithes, and profits until
the debt is satisfied. The bishop executes the writ by issuing a seques-
tration' {q. 27., § 3; see Levari facias; Writ.)

SEQUESTRATION— SEQUESTRATOR.— § i. A sequestration
is where, by some judicial or quasi-judicial process, property is tempora-
rily placed in the hands of one or more persons called sequestrators, who
manage it and receive the rents and profits.®

§ 2. In the procedure of the High Court of Justice, a sequestration is a
means of enforcing obedience to a judgment or order requiring a person

1 Pollock on Contract, 249. * Marshall v. Marshall, 5 P. D. 19.

2 Macqueen's Husb. & Wife, 367 ; Pol- • Matrimonial Causes Act, 1878, s. 4.
lock on Contract, 60. ' Chitty's Pr. 1284 ; Danicll, Ch. Pr.

^ Ibid, ; Davidson, Conv. v. (2)668; 927; Smith's Action (11 th edit.), 397.

Browne on Divorce, 135 et seq. ; Hunt v. ^ See In re Australian, &*c. Co., L. R.j

Hunt, A D. F. & J. 221. 20 Eq. 326.

* Chitty on Contracts, 618.



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75^ Sequestration law dictionary. Serjeants-aUArmt

to do an act {e. g., pay money into Court, deliver up a chattel, &c.).* It
is a writ or commission directed to certain persons (usually four in number)
nominated by the person prosecuting the judgment, and empowers them
to enter upon the real estate of the disobedient person, and receive the
rents and profits thereof, and take his chattels, and keep them in their
hands, until he performs the act required.' The sequestrators are officers
of the Court, and are bound to account for what they receive. (See Writ
of Assistance,)

By bishop. § 3. When a fi. fa. de bonis ecclesiasticis or a sequestrari facias (see

those titles) is directed to a bishop, he issues a sequestration, which is in
the nature of a warrant addressed to the churchwardens, requiring them to
levy the debt out of the tithes and other profits of the debtor's benefice.'

Mayor's § 4. In the Mayor's Court of London, **a sequestration is an attachment

Court. q|- ^j^^ property of a person in a warehouse or other place belonging to

and abandoned by him. It has the same object as the ordinary attach-
ment, viz. to compel the appearance of the defendant to an action,"* and
in default to satisfy the plaintiff's debt by appraisement and execution.
(See Foreign Attachment,) The practice is rarely resorted to.

Of benefice. § 5- In ecclesiastical law, where a benefice becomes vacant, a sequestra-
tion is usually granted by the bishop to the churchwardens, who manage
all the profits and expenses of the benefice, plough and sow the glebe,
receive tithes, and provide for the necessary cure of souls. They are bound
to account for the profits to the new incumbent.* Sequestration is also
usually granted in a cause of spoliation* {q, v,\ or as a punishment (^.^f.,
for non- residence), or as a mode of compelling payment of money for
dilapidations, or the like.'

SERJEANTS-AT-ARMS are officers of the crown, whose duty is
nominally to attend the person of the sovereign, to arrest traitors, to
attend the Lord High Steward {q, v,) when sitting in judgment on traitors,
and the like. ** Two of them, by the king's allowance, do attend on the
two Houses of Parliament, whose office in the House of Commons is the
keeping of the doors and (as of late it hath been used) the execution of
such commands, especially touching the apprehension of any offender, as
that House shall enjoyn him. Another of them attends on the Lord
Chancellor or Lord Keeper, in the Chancery, and one on the Lord
Treasurer of England."* § 2. The Serjeant-at-Arms attending on the
Lord Chancellor* is now an officer of the Supreme Court.'* His principal
duty is to arrest persons guilty of contempt of Court in proceedings in
the Chancery Division when so ordered : thus, when a writ of attachment

' Rules of Court, xlii., xlvii. But not, * Phillimore, Eccl. Law, 497.

apparently, of enforcing a simple judgment • Ibid, 516.

for a debt or an order for the payment of ' Ibid, 1378 ; Bankruptcy Act, 1869,

money: Ex parte Nelson^ i± Cn. D. 41. s. 88; Sequestration Act, 1871.

» Daniell's Ch. Pr. 912. As to seques- * Blunt, Law Diet. s. v.; Staunf. PL

tratlon for costs, see Rules of Court, xlvii. Cor. 152 a.

2 (April, 1880). ' The office is generally held by the same

' Chitty*s Pr. 1283; Smith's Action person as the Seijeant-at-Arms of the

(nth edit.), 396. House of Lords.

* Brandon, For. Attach. 145. *« Judicature Act, 1873, s. 77.



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Serjeants-at-Law LAW dictionary. Service 753

has been issued against a person for disobedience to an order of the
Court, and the sheriflf returns non est inventus^ the Serjeant-at-Arms may
be ordered to arrest the contemnor.*

SERJELAlNTS-AT-LAW are barristers of superior degree, to which
they are called by writ under the Great Seal. They form an inn called
Serjeants* Inn.* Formerly they were supposed to serve the crown (hence
their name, Serjeants or servientes ad legem) ; but in more modem times
the degree was conferred on eminent counsel as a distinction, without
reference to their services to the crown. Serjeants have precedence over
junior barristers. They formerly had a right of exclusive audience in the
Court of Common Pleas, which was abolished in 1846.' When a Serjeant
was appointed, it was customary for him to present gold rings, bearing a
motto, to the other Serjeants ; this was called " giving rings." Of late
years the degree of Queen's Counsel {q, v,) has gradually supplanted that
of Serjeant, and now the abolition of the rule requiring every judge of the
superior courts of common law to be a Serjeant* has made the extinction
of the order of Serjeants merely a question of time,*

See Inns of Court; Barrister.

SERJEANTY (Norman-French, serjantie, from Latin, servtens^ a
servant) literally means service. See Grand Serjeanty ; Petty Serjeanty.

SERVICE. — I. § I. In the law of tenure, a service is a duty due from
a tenant to his lord. Services are or were of various kinds.*

§ 2. Divine or spiritual services are services of a religious nature, either SpirituaL
certain, as in the case of tenure by divine service (^.z;.),or uncertain, as in the
case of frankalmoign {q, v,). § 3. Temporal services are services which Temporal,
can be performed by a secular person, and were formerly either (i) free. Free,
namely such as were not unbecoming the character of a soldier or a
freeman to perform, as to serve under his lord in the wars, to pay him
rent, &c. (see Rent) ; or (2) base or villein services, namely such as were Base,
fit only for peasants or persons of a servile rank, as to plough the lord's
land, to make his hedges, &c. § 4. Certain services were such as were Certain,
fixed in quantity, as to pay a certain rent, or to plough a field for three
days every year ; examples of uncertain services were, to do military Uncertain,
service, or to plough the lord's land when called upon. § 5. Accidental
or casual services are wardship, relief, heriots and other things, more Casual,
commonly called incidents {q. v,)? § 5a. In the tenure of knight-service. Foreign,
some services due by the tenant were called foreign, servitia forinseca^
because they were due to the king and not to the lord : such was the

1 DanieU, Ch. Pr. 910; Consolidated » As to the history of Serjeants, see

Orders, xxix ; Orders of the Court of Manning's Serviens ad Legem ; Fortescue,

Chancery made under the Debtors Act, ch. 1. ; Stephen's Comm. 1. 17 ; iii. 272.

1869. • See Bl. Comm. ii. 60; Co. Litt. 64 a

' The buildings and property of the inn et seq,^ 95 a.

have recently been sola and tne proceeds ' 4 Rep. 8 ; Co. Copyh. J§ 5, 18 etseq,^

divided among the members. where numerous other divisions of services

' Stat. 9 & 10 Vict. c. 54. are given.

« Judicature Act, 1873, s. 8.

8. 3o



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754



Service



LAW DICTIONARY.



Service



Customarj',



Contract of
service.



Service of
process, &c.

Special
service.

Direct,
personal.

Action in rem.



Substituted.



Accepting
service.



military service in the field due by a tenant by knight's service.^ (See
Foreign,^

§ 6. Customary services arise by immemorial custom, as where the
inhiabitants of a place have from time immemorial been accustomed to
grind their com at a certain mill : such a custom gives rise to the obliga-
tion on the part of the mill-owner to maintain the mill and all provisions
for grinding (servants, &c.), and on the part of the residents to take their
com to be ground there and not elsewhere.* (See Stcta ; Subiraciwn,)

II. § 7. In the law of contract, service is the relation between master
and servant. A contract by which one person binds himself to serve
another is called a contract of service. As to the rights and duties
arising from such a contract, see Master and Servant.

In order to support claims for damages against seducers and abductors,
the definition of ** service" has been somewhat strained; thus, if a
daughter lives with her father, this is a suflScient service to support an
action by the father against a man who seduces her.* (See Seduction.)

III. § 8. In procedure, service is the operation of bringing the contents
or effect of a document to the knowledge of the persons concerned. It
is of two kinds. § 9. Writs of summons, orders for disobedience to
which process of contempt may be issued, and some other judicial
documents, require either direct or substituted service. Direct service is
effected by actually bringing the document to the person or thing to be
served. In the case of a person such service is called personal. Thus,
in an ordinary action, personal service of the writ of summons is effected
by showing the original writ to the defendant, and tendering him a copy.*
§ 10. An example of direct service on a thing (which might be called real
service) occurs in an ordinary admiralty action in rem against a ship ;
here service of the writ of summons is effected by nailing the original
writ for a short time to the mast of the vessel, and taking it off, leaving
a copy nailed in its place.' Analogous to this is the mode of serving a
WTit for the recovery of land in the case of vacant possession ; here a
copy of the writ is posted on some conspicuous part of the property ;• this
mode of service also partakes of the nature of substituted service.

§ II. The object of substituted service is to provide the best means
available under the circumstances for bringing the effect of the document
to the knowledge of the party, when he is keeping out of the way, or his
whereabouts is not known.^ The usual mode of effecting substituted
service is by directly serving the document on some person likely to bring
it to the knowledge of the party {e, g.^ his wife, agent, &c.), or by advertis-
ing notice of it,® or by sending a copy by post to the party's address."
(See Notice; Notice of Writ.)

§ 12. Analogous to substituted service is the practice called "accepting



1 Co. Litt. 75 b.

2 Harbin v. Greeriy Hob. 189; Drakev.
Wigglesworih, Willes, 654; Steph. Comm.
iii. 410.

8 Underbill on Torts, 152; Steph.
Comm. iii. 442.



* Day's C. L. P. Acts, 40; Darnell's Ch.
Pr. 367 et sea. ; Rules of Court, ix. 2.

* Rules ot Court, December, 1875, r. 6.
« Rules of Court, ix. 8.

' Bland y.Biand,L.K.,xV. ScD. 2^3-
8 Lely & Foulkes' Ju<L Acts, 115;
Daniell, 370 et seq.



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Servient Tenement law dictionary. Set-^ff 755

service," which is done by the solicitor for the party to be served giving
a personal undertaking (generally written on the original writ) that he will
enter an appearance for him, in order to save his client from the annoy-
ance of being personally served.*

§ 13. Certain documents which are merely the foundation for other Ordinary
proceedings do not require direct or substituted service, but are left at ^'^^^^
the address of the person for whom the document is intended, or of his
solicitor, if he is represented by a solicitor. (See Address for Service.)
Sununonses, notices of motion, petitions, and certain other documents,
are served in this manner ; if served after 6 o'clock p.m. on ordinary days
(or after 2 vm. on Saturdays), the service counts from the following day
(or Monday).' As to pleadings, see Delivery, § 4.

SERVIENT TENEMENT. See Easement.

SESSION OF THE PEACE is a sitting of justices of the peace
for the exercise of their powers. There are four kinds, petty, special,
quarter and general sessions* (see those titles).

SET. See Bill 0/ Exchange, § 10.

SET-OFF. — § I. In an action to recover money, a set-oflf is-a cross
claim for money by the defendant, for which he might maintain an
action against the plaintiflf, and which has the effect of extinguishing the
plaintiffs claim pro tanto, so that he can only recover against the defen-
dant the balance of his claim, after deducting what is due by him to the
defendant.* Thus, if A. sues B. for 100/., while he owes B. 75/., a set-oflf
would have the effect of reducing A.'s claim to 25/. The object of this
is to prevent cross-actions. (See Circuity 0/ Action.)

§ 2. The right of set-off was introduced by stats. 2 Geo. 2, c. 22, and Debts.
8 Geo. 2, c. 24 ; but was restricted to mutual debts. ^ Under the Judicature
Acts mutual claims of any kind, whether for debts or damages, can be
set off" against one another; but in practice the term "set-off" is gene-
rally applied to mutual debts or claims for liquidated amounts, so that
one can be deducted from the other : while cross claims in respect of
damages, which are unliquidated, are distinguished as "counter- Damages,
claims " {q. r.).*

As to the limitation of a set-off or counter-claim, see Limitation, § 6.

§ 3. In the practice of the old common law Courts, where there were Judgments,
cross judgments in the same or different actions, in the same or different
Courts, between parties substantiallythe same, whether for debt (or damages)
and costs, or for costs alone, either party might set off" the amount of his
judgment against that of the other by obtaining a rule or order to enter
satisfaction in both actions for the amount of the smaller debt.' This

1 Rules of Court, ix. i, xii. 14. * Leake on Contracts, 545.



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 98 of 119)