plies to all the children. It belongs exclusively to the father, or, at his decease, to the mother. It continues until majority. (7) Guardianship in socage. This occurs only where the legal estate in lands or other hereditaments held in socage, descends upon a minor; in which case, the guardianship of his person and of his property, so far at least as regards the tenements in socage, devolves, by the common law, upon his next of blood, to whom the inheritance cannot possibly descend. It continues until the minor is fourteen years of age, except in gavelkind, when the office lasts one year longer. (8) Guardianship by statute. The 12 Car. II., c. 24, enacts, that in all cases, except those which fall within the custom of London or other cities or corporate towns, a father may, by deed or will, executed in the presence of two witnesses, dispose of the custody of all his children born or to be born, that should be unmarried at his decease, or be born afterwards; he may appoint as guardian any person except a Popish recusant; he may appoint the guardianship to last until twenty-one, or for any less time; the appointment may be either in possession or remainder; it shall be effectual against all persons claiming as guardians in socage or otherwise; and the guardian so appointed shall have the custody of the infant's person and of all his estate, both real and personal. The statute makes no mention of the mother, who is consequently not within the benefit of its enactments; nor does it extend to illegitimate children, but where a father has by will named a guardian for any natural child, the Court of Chancery will generally appoint that person. (e) Guardianship by election. An infant having lands in socage, may, after fourteen, when the guardianship in socage terminates, elect a guardian for himself, if there be no other then ready to take charge of him and his property. This is of infrequent occurrence, because such an election would not supersede the authority of the Court of Chancery. () Guardianship by appointment of the Lord Chancellor. The Court of Chancery is held to possess a general jurisdiction with respect to the custody of intants, derived, as is supposed, from the prerogative of the Crown, which, as parens patriæ interposes its protection in favour of those who are not of capacity to maintain their own rights. By the institution of a suit in Chancery, in relation to the infant's estate, such infant becomes a ward of the Court; which will in tha: case take the direction of his estate, and appoint a guardian for his person only. An infant not possessed of property cannot be made a ward of Court, nor will the Court, generally, appoint a guardian for an infant so circumstanced, except under the Marriage Act, 4 Geo. IV., c. 76, § 16; it has authority to appoint one, for the purpose of consenting to the marriage of any infant, having no father or unmarried mother or other guardian; and, in certain cases, to give its judicial sanction to the marriage, where the consent of the father, mother, or guardian cannot be obtained; and under 3 & 4 Vict., c. 90, the Court is empowered to take away infants convicted of felony out of the control of their parents or other guardians (if it shall appear expedient), and to assign the custody of them to such other persons as may be willing to be entrusted with their charge. (7) Guardianship ad litem. An infant cannot prosecute an action at common law, either in person or by attorney. He must sue either by prochein amy, or by guardian, usually the former, and defend by guardian only. The prochein amy or guardian, so appearing in the record, is primâ fucie liable to the costs. Chit Arch. Prac. 889. Infants in equity sue by prochein amy, but must defend by guardian. The prochein amy is liable to the costs of suit, which makes it important to the defendant that the party should be of sufficient substance; and if not, the Court will compel him to give security for costs. (0) Guardianship by custom. This obtains in copyholds and certain cities and boroughs. (4) Guardianship by appointment of the Ecclesiastical Court. It appoints a guardian ad litem, and also claims the right of appointment as to personal estate, and for the person also, if there be no guardian appointed. The spiritual court distinguishes between an infant and a minor. An infant is so called, if under seven years of age: a minor from seven to twenty-one. 2 Step. Com. 331. "The rule of the Court," remarked Lord. Hardwicke (Hylton v. Hylton, 2 Ves. 548), "as to guardians, is extremely strict, and in some cases does infer some hardship; as, where there has been a great deal of trouble, and he has acted fairly and honestly, that yet he shall have no allowance. But the Court has established that on great utility and on necessity; and on this principle of humanity, that it is a debt of humanity that one man owes to another, as every man is liable to be in the same circumstances." By the Roman law, guardianship was of two sorts (1) Tutela, and (2) Cura: the first lasted in males until they arrived at fourteen years of age, and in females until they arrived at twelve years of age, which was called the age of puberty of the sexes respectively. From the time of puberty until they were twenty-five years of age, which was their full majority, they were deemed minors, and subject to curatorship. During the first period of tutelage, their guardian was called tutor, and they were called pupils; during the second period, their guardian was called curator, and they were called ninors. In England, the guardian performs the offices both of a tutor and a curator, under the Roman law. In France, the tutorship lasts until the full age of majority. In treating of guardianship, two questions naturally arise: (1) Whether the authority GUARDIAN OF THE POOR. By 22 the person to whom the spiritual jurisdiction GUARDIAN OF THE TEMPORALITIES, GUEST-TAKER, an agistor; one who took GUILDHÅLL, the chief hall of a city, &c., for GUILDRENTS. See GILDRENT. the entrance into, or the first day of that GULTWIT, or GUILTWIT, an amends for trespass. GURGITES, wears. GUTI and GOTTI, Goths, Juta or Getæ, who left Germany and came to inhabit this island. GWABR MERCHED, a payment or fine made to the lords of some inanors, upon the marriage of their tenants' daughters, or otherwise on their committing incontinency. See MERCHETA MULIERUM. Welch Term. GWALSTOW, a place of execution. GWAYF, that which had been stolen and afterwards dropped in the highway for fear of a discovery. GYLPUT, the name of a court held every three GYLTWITE. See GULTWIT. H HABEAS CORPORA JURATORUM (that HABEAS CORPUS ACT, the 31 Car. II., c. HABEAS CORPUS AD PROSEQUENDUM (that you have the body to prosecute), a writ that issues when it is necessary to remove a prisoner, in order that he may be tried in the proper jurisdiction. Ibid. HABEAS CORPUS AD RESPONDENDUM (that you have the body to answer), a writ that issues when one has a cause of action against another, who is confined by the process of some inferior court, in order to remove the prisoner, and charge him with the new cause of action in the court above. Ibid. HABEAS CORPUS AD SATISFACIENDUM (that you have the body to satisfy), when a prisoner has had judgment againsthimself in an action, and the plaintiff is desirous to bring bin up to some superior court to charge him with the process of execution. Ibid. HABEAS CORPUS AD SUBJICIENDUM (that you have the body to answer), the most celebrated prerogative writ contained in the English law, and is addressed to any person who detains another in custody, and commands him to produce the body of the prisoner, with the day and cause of his caption and detention, and to do, submit to, and receive whatever the Judge or court awarding such writ shall consider in that behalf. It issues out of any of the superior courts of law and equity, both in term and vacation, and runs into all parts of the Queen's dominions. The writ is applied for either by motion to a court or application to a Judge, supported by an affidavit of the facts. If a probable ground be shown that the party is imprisoned without just cause, and therefore has a right to be delivered, then this writ ought of right to be granted to every man that is committed or detained in prison or otherwise restrained, though it be by command of the Sovereign, the Privy Council, or any other power in the country. And therefore there is an absolute necessity of expressing upon every commitment the reason for which it is made, that a court upon a habeas corpus may examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the pri soner. The Habeus Corpus Act enacts, 1, that on complaint and request in writing, by or on behalf of any person committed and charged with any crime (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory before the fact, to any petittreason or felony, or upon suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is committed or charged in execution by legal process), the Lord Chancellor or any of the Judges in vacation upon viewing a copy of the warrant or affidavit that a copy is denied, shall (unless the party has neglected, for two terms, to apply to any Court for his enlargement) award a habeas corpus for such prisoner, returnable immediately, before himself or any other of the Judges; and upon the return made skal discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be endorsed, as granted in pursuance of this act, an i signed by the party awarding them. 3. That the writ shall be returned and the prisoner brought up within a limited time, accarding to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent, within six hours after demand, a copy of the warrant of commitment, on shifting the custody of a prisoner from one to another, without sufficient reason or authority (specified in the act), shall for the first offence forfeit 100%, and for the second offence 2007. to the party grieved, and be disabled to hold his office. 5. That no person once delivered by habeas corpus shall be recommitted for the same offence, on penalty of 5001. 6. That every person committed for treason or felony shall, if he require it, the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail; unless the witnesses for the Crown cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from im prisonment for such imputed offence; but that no person, after the assizes shall be open for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but shall be left to the justice of the Judges of assize. 7. That any prisoner may move for and obtain his habeas corpus as well out of the Chancery and Exchequer as out of the Queen's Bench or Common Pleas, and the Lord Chancellor or Judges denying the same, on sight of the warrant, or oath that the same is refused, shall forfeit severally to the party grieved, the sum of 5001. 8. That this writ of habeas corpus shall run into the counties, palatines, cinque ports, and other privileged places, and the islands of Jersey, and Guernsev. 9. That no inhabitant of England (except persons contracting or convicts praying to be transported, or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the King's dominions, on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved, a sum not less than 5007.; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the royal pardon. This statute extends only to the case of commitments, for such criminal charges as can produce no inconvenience to public justice by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law, now regulated by 56 Geo. III., c. 100, which provides:-1. That where any person shall be restrained of his liberty other than from some criminal or supposed criminal matter, and except persons imprisoned for debt, or by process in any civil suit, any of the Barons of the Exchequer of the degree of the coif, or any of the Justices of either Bench, shall upon affidavit showing a probable and reasonable ground for such complaint, award in vacation time a writ of habeas corpus, under the seal of the court whereof he is a Judge, directed to the person in whose custody the party is confined, which shall be returnable iminediately before himself or any other Judge of the court. 2. That upon disobedience to the writ the Judge before whom it is returnable may issue a warrant to arrest the party guilty of such contempt. 3. That if the writ be awarded so late in vacation that it cannot be conveniently obeyed during vacation, the same may be made returnable in the court to which the Judge by whom it is awarded belongs, on a certain day in the next term. 4. That if such writ shall be awarded by the court itself of Queen's Bench, Common Pleas, or Exchequer, so late that it cannot be conveniently obeyed during the term, the same may be made returnable in the then next vacation before any of the Judges. 5. That though the return to the writ may be good in law, it shall be lawful for the Judge || before whom it is returnable, to proceed to examine into the truth of the facts, and if it appear doubtful to him whether they be true or not, it shall be lawful for such Judge to let to bail the person so confined, upon his entering into a recognizance to appear in the court to which the Judge belongs in the term following, which court may proceed to examine into the truth of the facts, in a summary way by affidavit, and to order and determine as to the discharge, bailing, or remanding of the party. 6. That the like proceeding for controverting the truth of the return may be had in the case where the writ shall be awarded by the court itself, or be returnable therein. 7. That the several provisions aforesaid shall extend to all writs of habeas corpus awarded in pursuance of the 31 Car. II., c. 2. Lastly, that the habeas corpus according to this 56 Geo. III., c. 100, may run into any county, palatine, or cinque port, or other privileged place, or the islands of Jersey, Guernsey, or Man, or any port, harbour, road, creek or bay upon the coast of England or Wales, lying out of the body of any county. Besides the efficacy of the writ of habeas corpus, in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unjust restraint of personal freedom in private life, though imposed by a husband or a father; but when women and infants are brought before the court by a habeas corpus, the court will only set them free from an unmerited or unreasonable confinement, and will not determine the validity of a marriage, or the right to the guardianship, but will hold them at liberty to choose whither they will go; and if there be any reason to apprehend that they will be seized in returning from the court, they will be sent home under the protection of an officer. But if a child is too young to have any discretion of its own, then the court will deliver it into the custody of its parent, or the person who appears to be its legal guardian. 3 Burr. 1434. HABEAS CORPUS AD TESTIFICANDUM (that you have the body to testify), a writ to bring a witness into court, when he is in custody at the time of a trial. He must be a material witness, and willing to attend. If he be in criminal custody, the writ must be moved for in the Queen's Bench, and it is nisi only in the first instance. The Court will not grant this writ to bring up a prisoner at war; an application Inust be made to the Secretary of State. Chit. Arch. Prac. 233. HABEAS CORPUS CUM CAUSA (that you have the body with the cause), a writ which a defendant may have to remove himself from one prison to another; also a writ to remove a cause from an inferior court into a superior court, when the defendant is in custody in the court below. Chit. Arch. Prac. 941, 944. HABENDUM OF A DEED, that part of a conveyance, &c., which determines the quantity of interest conveyed; but should the quantity be expressed in the premises, then the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to the estate granted in the premises. See DEED. HABENTIA, riches. Mon. Ang. t. 1, p. 100. HABERE FACIAS POSSESSIONEM (that you cause to have possession), a writ that issues for a successful plaintiff in ejectment, to put him in possession of the prenises recovered. If the first writ be not executed, an alias, &c., may be sued out. The officer, if necessary, may break open outer doors, in order to give possession, or he may take the posse comitatus with him if he fear violence. Chit. Arch. Prac. 765. HABERE FACIAS SEISINAM (that you cause to have possession), a writ addressed to the sheriff to give seisin of a freehold estate recovered by ejectione firmæ, or other action. O. N. B. 154. HABERE FACIAS VISUM (that you cause HABIT AND REPUTE, held and reputed. HABITATIONS, offences against. They are HACKNEY COACHES. The provisions relating to these vehicles are embodied in the 1 & 2 Wm. IV., c. 22, amended by 6 & 7 Vict., c. 8€, which repeals all previous acts on this subject. HADBOTE, a recompence for an affront offered to a priest. HADERUNGA [had, Sax., person, and arung, honored], respect of persons; partiality. HADGOVEL, à tax, or mulct. Hæc fuit candida illius ætatis fides et simplicitas, quæ pauculis lineis omnia fidei firmament a posuit. Co. Lit. 6.-(The candid faith and simplicity of this age was such, that in a few lines was contained every thing binding to faith.) HÆREDE ABDUCTO, an ancient writ that lay for the lord, who having by right the wardship of his tenant under age, could not obtain his person; the same being carried away by another person. O. N. B. 93. HÆREDE DELIBERANDO ALTERI QUI HABET CUSTODIAM TERRÆ, an au cient writ, directed to the sheriff to require one that had the body of an heir being in ward, to deliver him to the person whose ward he was by reason of his land. Reg. Hæredem Deus facit, non homo. Co. Lit. 7 b. HÆREDITAS JACENS, an estate in abeyance. This feudal maxim was exploded by 3 & 4 Wm. IV., c. 106, § 6. See CANONS OF INHERITANCE. Hæreditus, n'est pas tant solement entendue lou home ad terres ou tenements per discent d'enheritage, mes auxi chescun fee simple ou tail que home ad per son purchase puit estre dit, enheritance, pur ceo que ses heirs luy purront enheriter. Co. Lit. 26-(Inheritance does not only comprehend all the lands and tenements which a man has by descent from his ancestors, but also every fee simple or fee tail which he has by purchase is also called inheritance, because his heir can inherit it from him.) Hæredum appellatione veniunt hæredes hæredum in infinitum. Co. Lit. 9.-(By the title of heirs come the heirs of heirs, in infinity.) Hæres est alter ipse, et filius est pars patris. 3 Co. 12.-(An heir is a second self, and a son is part of his father.) Hæres est aut jure proprietatis, aut jure representationis. 3 Co. 40.-(An heir is by right| of property, or by right of representation.) Hæres est eadem persona cum antecessore,—pars antecessoris. Co. Lit. 22.-(The heir is the same person with his ancestor,—a part of his ancestor.) Heres est nomen collectivum. 1 Vent. 215.(Heir is a collective name.) Hares est nomen juris, filius est nomen naturæ. Bacon. (Heir is a name of law, son is a name of nature.) HÆRES FACTUS, an heir appointed; a de visee. Hæres hæredis mei est meus hæres.- (The heir of my heir is my heir.) Hæres hæredis succedit in universum jus quod defunctus habuit.-(An heir of an heir succeeds to the whole right which the deceased bad.) Hæres legitimus est quem nuptiæ demonstrant. Co. Lit. 7 b. (He is a lawful heir whom wedlock declares.) Hæres minor uno et viginti annis non respondebit, nisi in casu dotis. Moor. 348.—(An heir minor, under twenty-one years of age, is not answerable, except in the matter of dower.) HÆRES NATUS, an heir born; an heir by descent. Hæres non tenetur in Anglia ad debita antecessoris reddenda, nisi per antecessorem ad hoc fuerit obligatus præterquam debita regis tantum. Co. Lit. 386.—(In England the heir is not bound to pay his ancestor's debts, unless he be bound to it by the ancestor, except debts due to the king.) But now by 3 & 4 Win. IV., c. 104, he is HAGA, a house in a city or borough. Scott. HAIA, a park enclosed. HAILWORKFOLK (¿.e., holywork folk), those who formerly held lands for the service of defending or repairing a church or monuBailey. ment. HAKETON, a military coat of defence. HALF-BROTHER, a brother by the father or mother's side. HALF-ENDEAL, a moiety, or half of a thing. HALF-MARK, a noble, or 6s. 8d. in money. HALF-SEAL, that which is used in the Chancery for sealing of commissions to delegates, upon any appeal to the Court of Delegates, either in ecclesiastical or marine causes. Abolished. HALF-TONGUE,a jury de medietate linguæ, empannelled to try foreigners. HALIMASS, the feast of All Saints, on the 1st of November; and one of the cross quarters of the year was computed from Halimass to Candlemas. HALKE, a hole. HALLAGE, tolls paid for goods on merchandize vended in a hall. HALLAMSHIRE, a part of the county of York, anciently so called, in which the town of Sheffield stands. |