Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/396

Rh 372 W A R W A K has been bailed may be arrested by his bail, and the police may assist in the arrest. In neither case is a warrant necessary. Nor is it necessary for the apprehension of one against whom the hue and cry is raised (see THEFT). The king cannot arrest in person or by verbal command, as no action would lie against him for wrongful arrest. Statutory powers of arrest without warrant are given to both constables and private persons by numerous Acts of Parliament, for instance, the Game Act of 9 Geo. IV. c. 69, various Police Acts, the Criminal Law Consolidation Acts of 1861, the Prevention of Crime Act, 1871. The possession of a legal warrant by a peace officer on arrest is of great importance in determining whether the person resisting apprehension is justified or not in so doing. Should the officer attempt to apprehend him on an illegal warrant, or without a warrant in a case where a warrant is necessary, and be killed in the attempt, the killing would probably be held to be manslaughter and not murder. The authorities on this point are, however, conflicting. In an action against a peace officer for arrest on an illegal warrant, he is, by 24 Geo. II. c. 44, entitled to demand perusal and a copy of the warrant. Execution of warrants in border counties of England and Scotland, and backing and execution of warrants issued in one part of the kingdom by justices and officers of another part, are specially pro vided for by numerous Acts of Parliament. Forms of warrants will be found in the schedule to the rules under the Summary Jurisdiction Act and the appendix to the County Court Rules, 1886. Financial. Payment out of the Treasury is generally made upon warrant. Treasury warrants are regulated by many of the Acts dealing with the national debt. Payment of dividends by trading corporations and companies is generally made by means of dividend warrants. Private. Warrants issued by private persons are either mercantile or non-mercantile. Mercantile warrants are negotiable instruments giving a right to the delivery of goods, generally those deposited at a dock or warehouse, and by mercantile custom regarded as documents of title to the goods to which they relate. They have been recog nized by the legislature, especially in the Factors Acts (see FACTOR). Thus the interpretation clause of one of those Acts, 5 and 6 Viet. c. 39, included under the head of documents of title India warrants, dock warrants, and warehouse keepers warrants. The forgery of any warrant or endorsement or assignment of any warrant of this kind is by 24 and 25 Viet. c. 98 punishable with a maximum penalty of penal servitude for life. The stamp on such a warrant is, with certain exceptions, threepence. Among private warrants of a non-mercantile kind those in the most frequent use are warrants of distress, by which a land lord empowers his agent to distrain for arrears of rent. Warrant of Attorney to confess judgment is a security for money (now practically obsolete) in the form of a war rant to a solicitor named by the creditor, empowering him to sign judgment in an action against the debtor for the sum due, with a defeasance, or clause that the warrant shall not be put into force in case of due payment of the money secured. It was often used as a collateral security for the payment of an annuity. The Debtors Act, 1869, contained various provisions for making known to the debtor the extent of the liability incurred by him, among others that the warrant must be executed in the presence of a solicitor named by the debtor, and that it and the defeasance must be written on the same paper. A warrant of attorney must be duly stamped, generally as a MORT GAGE (q.v.), and must be registered as a judgment in the central office of the Supreme Court. Quo WARRANTO (q.v.) is a means of determining the right of a person to continue to hold an office. Scotland. By Art. xxiv. of the Articles of Union royal warrants were to continue to be kept as before the union. The Secretary for Scotland Act, 1885, enabled the crown by royal warrant to appoint the secretary to be vice-president of the Scotch Education Department. The lord advocate s warrant runs throughout the whole of Scotland. Warrants issued by courts of summary juris diction agree in the main with those in use in England, though their names arc not the same (see SUMMARY JURISDICTION). There are numerous statutory provisions as to warrants of other kinds. By 1 and 2 Viet. c. 114 warrants for diligence, and to charge the debtor under pain of imprisonment, may be inserted in an extract of decree ; and in a summons concluding for payment of money a warrant to arrest the movables, debts, and money of the defender may be included. By 31 and 32 Viet. c. 100 a warrant of in hibition may be inserted in the will of a summons. A crown writ is a warrant for infeftment (31 and 32 Viet. c. 101). The same Act gives forms of warrants of REGISTRATION (q.v. ). The practice as to warrants of citation and commitment in the High Court of Justiciary and the sheriff court now depends chiefly on the Criminal Procedure Act, 1887, 50 and 51 Viet. c. 35. The mcdi- tatio fugee warrant is a judicial warrant on which imprisonment may follow until the debtor give cautio judicio sisti. It corresponds to some extent to the writ ne exeat rcgno of English practice, but it may be issued by a sheriff (1 and 2 Viet. c. 119). A border war rant for arresting a debtor on the English side of the border is another kind of judicial warrant. The warrant of attorney is not known in Scotland, its place being taken by the clause of registra tion, which has this advantage over the warrant of attorney that it is not avoided, as is the warrant, by the death of the person giving it. United States. By the constitutions of the United States and of almost all the States, warrants arc not to issue but upon prob able cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or thing to be seized. These provisions have been held not to mean that there shall be no arrest without warrant, but to confine the right of arrest to circumstances similar to those which justify it in English law. The constitutions of some States forbid general warrants. A warrant is generally necessary for the payment of money out of the United States or a State treasury. (J. Wf. ) WARRANTY is etymologically another form of GUARANTEE (q.v.). It is used, however, in a rather different sense. The sense common to both words is that of a collateral contract, under which responsibility for an act is incurred, and for the breach of which an action for damages lies. Warranty generally expresses the responsi bility of the person doing the act, guarantee the responsi bility of some other person on his behalf. A warranty may be denned, in the words of Lord Abinger, as &quot;an express or implied statement of something which the party undertakes shall be part of the contract, and, though part of the contract, collateral to the express object of it &quot; (Chanter v. Hopkins, 4 Meeson and Welsby s Reports, 404). It differs from a condition in that a condition forms the basis of the contract and a breach of it discharges from the contract, and from a representation in that the latter does not affect the contract unless made a part of it expressly or by implication, as in contracts of insurance and other contracts uberrimsejidei, or unless it be fraudulent. These distinctions are not always accurately maintained. Thus in 8 and 9 Viet. c. 106, 4, condition seems to be used for warranty. Warrant} as it affected the law of real estate was, up to half a century ago, a matter of the highest importance. A warranty in a conveyance was a covenant real annexed to an estate of freehold, and either expressed in a clause of warranty or implied in cases where a feudal relation might exist between feoffor and feoffee. The warranty, as described by Littleton, 697, was an outgrowth of feudalism, and something very like it is to be found in the Liber Feudorum. At the time of Glanvill the heir was bound to warrant the reasonable donations of his ancestor. Warranty was one of the elements in Bracton s definition of homage, 78b, &quot;juris vin- culum quo quis astringitur ad warrantizandum def endendum et acquietandum tenentem suum in seisina versus omnes.&quot; For an express warranty the word warrantizo or warrant was necessary. The word &quot;give&quot; implied a warranty, as did an exchange and certain kinds of partition. In order to bind heirs a clause of warranty was required. This was either lineal, collateral, or commencing by disseisin. The differences between the three kinds were very technical, and depended on abstruse and obsolete