James Williams

“ To hold first place in arts above the law,
More grave and noble than it ever saw.
Fraud in this age of ours unpunished can
Tread down the equity so dear to man. [96]
Can you for spirits just and generous find
A fairer cause to plead before mankind?
Mother or stepmother let Fortune be,
The theatre and not the bar for me;
For client virtue, truth for counsel's wage ”

“ In real property there can be nothing more than limited ownership, there can be no estate properly so called in personal property, and it may be held in complete ownership. There is nothing corresponding to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute interest in personalty. A life-interest may, however, be given in personalty, except in articles quae ipsa usu consumuntur. Limitations of personal property, equally with those of real property, fall within the rule against perpetuities. ”

“ What would have been a capital crime at Rome under Tiberius may be no offence at all in England. It is to the advantage of both the state and the citizen that what is treason and what is not should be clearly defined, so that as little as possible discretionary power, apt to be strained in times of popular excitement, should be left to the judicial or executive authorities. The importance of this was seen by Montesquieu. Vagueness in the crime of treason, says he, is sufficient to make the government degenerate into despotism. ”

“ The diminution of underground water collected by percolation, even though malicious, does not give a cause of action to the owner of the land in which it collects, it being merely damnum sine injuria, though he is entitled to have it unpolluted unless a right of pollution be gained against him by prescription. The right to draw water from another’s well is an easement, not a profit à prendre, and is therefore claimable by custom. As a general rule a riparian proprietor, whether on a tidal or a non-tidal river, has full rights of user of his property. ”

“ In all cases of implied warranty the warranty may be excluded by the special terms of the contract. For breach of warranty an action may be brought directly, or the breach may be used as ground for a counter claim or for reduction of damages, but the breach will not in the case of a warranty proper entitle the person suffering by it to a rescission of the contract. Thus in a sale the property passes although the warranty be broken. In some cases warranties on sale are the subject of statutory enactments, as the Merchandise Marks Acts and the Sale of Food and Drugs Acts. ”

“ Under the government of the dukes of Lauderdale and York torture as a practice in charges of religious and political offences reached its height. “The privy council was accustomed to extort confessions by torture; that grim divan of bishops, lawyers and peers sucking in the groans of each undaunted enthusiast, in hope that some imperfect avowal might lead to the sacrifice of other victims, or at least warrant the execution of the present.” ”

“ TREASON.⁠The law which punishes treason is a necessary consequence of the idea of a state, and is essential to the existence of the state. Most, if not all, nations have accordingly, at an early period of their history, made provision by legislation or otherwise for the punishment of those offences against public order which consist in more or less direct attacks upon the safety of the state or its chief. The principle is universal ”

“ A trust is extinguished, as it is created, either by act of a party or by operation of law. An example of the former mode of extinction is a release by deed, the general means of discharge of a trustee when the purposes of the trust have been accomplished. Extinction by operation of law takes place when there is a failure of the objects of the trust: e.g., if the cestui que trust die intestate without heirs or next of kin, the trustee retains the property dis charged of the trust if it be real estate, if it be personalty it falls to the crown. ”

“ A judge sins gravely if he does not attempt all milder means of discovering truth before resorting to torture. He sins in a criminal cause, or in one of notable infamy, if he binds the accused by oath to tell the truth before there is proof against him. It is the same if without oath he uses threats, terror or exhibition of torments to confound the witness. [71] If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. [72] It was a doubtful question whether he sinned gravely in such a case. ”

“ The common law of larceny has been affected by numerous statutes, the main object of legislation being to bring within the law of larceny offences which were not larcenies at common law, either because they were thefts of things of which there could be no larceny at common law, e.g., beasts ferae naturae, title deeds, or choses in action, or because the common law regarded them merely as delicts for which the remedy was by civil action, e.g., fraudulent breaches of trust. ”

“ A trust estate is subject as far as possible to the rules of law applicable to a legal estate of a corresponding nature, in pur suance of the maxim. "Equity follows the law." Thus trust pro perty is assets for payment of debts, may be taken in execution, passes to creditors in bankruptcy, and is subject to dower and curtesy, to the rules against perpetuities, and to the Statutes of Limitation. ”

“ A master knowingly taking a British ship to sea in such unseaworthy state that the life of any person is likely to be thereby endangered is guilty of a misdemeanour. In every contract of service between the owner and the master or any seaman, and in every indenture of sea apprenticeship, an obligation is implied that the owner, master and agent shall use all reasonable means to ensure the seaworthiness of the ship. By the act of 1906 many of the provisions as to sea-Worthiness was applied to foreign ships, and they may be detained in a proper case. ”

“ Possession of goods or documents of title to goods is generally sufficient to enable agents and others to give a good title under the Factors' Acts (see Factor) . (6) In criminal law the question of possession is important in founding the distinction between larceny and embezzlement. If the goods are in the possession of the master and he gives them to the custody of his servant for a specific purpose and the servant steals them, it is larceny; if they have never come into the master's possession, as if a clerk receives money on his master's behalf, it is embezzlement. ”

“ A resulting trust is a species of implied trust, and consists of so much of the equitable interest as is undisposed of by the instrument creating the trust, which is said to result to the creator and his representatives. An example is the purchase of an estate in the name of the purchaser and others, or of others only. Here the beneficial interest is the purchaser's. An example of a constructive trust is a renewal of a lease by a trustee in his own name, where the trustee is held to be constructively a trustee for those interested in the beneficial term. ”

“ A general gift of the testator's lands is to include copy holds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words “die without issue,” or similar words, are to mean die without issue living at the time of the death of the person whose issue was named, not as before the act, an indefinite failure of issue, an estate tail being thus created. Trustees under an unlimited devise are to take the fee simple. ”

“ The oath of two witnesses, or confession in open court, or refusal to plead, or peremptory challenge of more than thirty-five jurors is necessary for conviction. The witnesses must be both to the same overt act or one to one and the other to another overt act of the same treason. If two or more treasons of divers kinds are alleged in one indictment, one witness to prove one treason and another to prove another are not sufficient. No person is to be indicted unless within three years after the offence, except on a charge of attempted assassination of the king. ”

“ During the republic torture appears to have been confined to slaves in all cases, but with the empire a free man became liable to it if accused of a crime, though in most cases not as a witness. On an accusation of treason every one, whatever his rank, was liable to torture, for in treason the condition of all was equal. ”

“ It now seems to be the law that in order to constitute a larceny of lost goods there must be a felonious intent at the time of finding, that is, an intent to deprive the owner of them, coupled with reasonable means at the same time of knowing the owner. The mere retention of the goods when the owner has become known to the finder does not make the retention criminal. Larceny of money may be committed when the money is paid by mistake, if the prisoner took it animo furandi. ”

“ Any advantages which a British ship has, e.g. the right of claiming protection for her flag, the non-attachment to her of a maritime lien for necessaries supplied in a British port, are not directly connected with the policy under which the Navigation Acts have become obsolete. These advantages are not secured to a British ship until she is registered. United States law agrees with British in this respect. “The United States have imitated the policy of England and other commercial nations in conferring peculiar privileges upon American-built ships and owned by our own citizens. ”

“ THEFT is, in modern legal systems, universally treated as a crime, but the conception of theft as a crime is not one belonging to the earliest stage of law. To its latest period Roman law regarded theft (furtum) as a delict prima facie pursued by a civil remedy, the actio furti for a penalty, the vindicatio or condictio for the stolen property itself or its value. ”

“ All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. ”

“ There are also certain trusts which are avoided by statute under particular circumstances, such as settlements in fraud of creditors (see BANKRUPTCY, SETTLEMENT) . The law cannot be evaded by attempting to constitute a secret trust for an unlawful purpose. If an estate be devised by words prima facie carrying the beneficial interest, with an understanding that the devisee will hold the estate in trust for such a purpose, he may be compelled to answer as to the secret trust, and on acknowledgment or proof of it there will be a resulting trust to the heir-at-law. ”

“ An example of an adverse right by crown grant is a ferry or a port. The crown, moreover, as the guardian of the realm, has jurisdiction to restrain the removal of the foreshore, the natural barrier of the sea, by its owner in case of apprehended danger to the coast. The rights established against a riparian proprietor by private persons must as a rule be based on prescription or custom, only on prescription where they are in the nature of profits à prendre. The public cannot claim such rights by prescription, still less by custom. ”

“ The privilege from accusations by the slave extended to the master's father, mother, wife, or tutor, and also to a former master. On the same principle a freedman could not be tortured against his patron. The privilege did not apply where the slave was joint property, and one of his masters had been murdered by the other, or where he was the property of a corporation, for in such a case he could be tortured in a charge against a member of the corporation. Slaves belonging to the inheritance could be tortured in actions concerning the inheritance. ”

“ A private act not printed by the king's printers is proved by an examined copy of the parliament roll.
A public act binds all subjects of the realm, and need not be pleaded (except where the law from motives of policy specially provides for pleading certain acts, as in the defences of not guilty by statute, the Statute of Frauds and the Statute of Limitations) . A private act must generally be pleaded, and does not as a rule bind strangers to its provisions. Formerly an act took effect from the first day of the session in which it was passed. ”

“ One division, and perhaps the oldest, as it rests on the authority of Bacon, is into simple and Siberia!, the first being where the trust is simply vested in a trustee and the nature of the trust left to construction of law, the second where there is an act to be performed by the trustee. Another division is into lawful and unlawful, and corresponds to Bacon's division into intents or confidences and frauds, covins, or collusions. A third division is into public and private, the former being synonymous with charitable trusts. ”

“ Seneca says bitterly, “it forces even the innocent to lie.” St Augustine [4] recognizes the fallacy of torture. “If,” says he, “the accused be innocent, he will undergo for an uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether, he committed it.” At the same time he regards it as excused by its necessity. The words of Ulpian, in the Digest of Justinian, [5] are no less impressive: “The torture (quaestio) is not to be regarded as wholly deserving or wholly undeserving of confidence ”