WADSET, Scotch law. A right, by which lands, or other heritable subjects, are impignorated by the proprietor to his creditor in security of his debt; and, like other heritable rights, is perfected by seisin.
2. Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants, the right of reversion. Ersk. Pr. L. Scot., B. 2, t. 8, s. 1, 2.
3. Wadsets are proper or improper. Proper, where the use of the land shall go for the use of the money. Improper, where the reverser agrees to make up the deficiency; and where it amounts to more, the surplus profit of the land is applied to the extinction of the principal. Id. B. 2, t. 8, s. 12, 13.
WADSETTER, Scotch law. A creditor to whom a wadset is made.
TO WAGE, contracts. To give a pledge or security for the performance of anything; as to wage or gage deliverance; to wage law, &c. Co. Litt. 294. This word is but little used.
WAGER OF BATTEL. A superstitious mode of trial which till lately disgraced the English law.
2. The last case of this kind was commenced in the year 1817, but not procceded in to judgment; and at the next session of the British parliament an act was passed to abolish appeals of murder, treason, felony or other offences, and wager of battel, or joining issue or trial by battel in writs of right. 59 Geo. III. c. 46. For the history of this species of trial the reader is referred to 4 Bl. Com. 347; 3 Bl. Com. 337; Encyclopedie, Gage de Bataille; Steph. Pl. 122, and App. note 35.
WAGER OF LAW, Engl. law. When an action of debt is brought against a man upon a simple contract, and the defendant pleads nil debit, and concludes his plea with this formula, "And this he is ready to defend against him the said A B and his suit, as the court of our lord the king here shall consider," &c., he is said to wage his law. He is then required to swear he owes the plaintiff nothing, and bring eleven compurgators who will swear they believe him. This mode of trial, is trial by wager of law.
2. The wager of law could only be had in actions of debt on simple contract, and actions of detinue; in consequence of this right of the defendant, now actions on simple contracts are brought in assumpsit, and instead of bridging detinue, trover has been substituted.
3. If ever wager of law had any existence in the United States, it is now completely abolished. 8 Wheat. 642. Vide Steph. on Plead. 124, 250, and notes, xxxix.; Co. Entr. 119; Mod. Entr. 179; Lilly's Entr. 467; 3 Ch it. Pl. 497; 13 Vin. Ab. 58; Bac. Ab. h. t.; Dane's Ab. Index, h. t. For the origin of this form of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 5 3 Bl. Com. 341.
WAGER POLICY, contracts. One made when the insured has no insurable interest.
2. It has nothing in common with insurance but the name and form. It is usually in such terms as to preclude the necessity of inquiring into the interest of the insured; as, "interest or no interest," or, "without further proof of interest than the policy."
3. Such contracts being against the policy of the law are void. 1 Marsh. Ins. 121 Park on Ins. Ind. h. t.; Wesk. Ins. h. t.; See 1 Sumn. 451; 2 Mass. 1 3 Caines, 141.
WAGERS. A wager is a bet a contract by which two parties or more agree that a certain sum of money, or other thing, shall be paid or delivered to one of them, on the happening or not happening of an uncertain event.
2. The law does not prohibit all wagers. 1 Browne's Rep. 171 Poth. du Jeu, n. 4.
3. To restrain wagers within the bounds of justice the following conditions must be observed: 1. Each of the parties must have the right to dispose of the thing which is the object of the wager. 2. Each must give a perfect and full consent to the contract, 3. There must he equality between the parties. 4. There must be good faith between them. 5. The wager must not be forbidden by law. Poth. du 4. In general, it seems that a wager is legal and maybe enforced in a court of law 3 T. R. 693, if it be not, 1st, Contrary to public policy, or immoral; or if it do not in some other respect tend to the detriment of the public. 2d. If it do not affect the interest, feelings, or character of a third person.
5. - 1. Wagers on the event of an election laid before the poll is open; 1 T. R. 56. 4 Johns. 426; 4 Harr. & McH. 284; or after it is closed; 8 Johns. 454, 147; 2 Browne's Rep. 182; are unlawful. And wagers are against public policy if they are in restraint of marriage; 10 East, R. 22; made as to the mode of playing an illegal game; 2 H. Bl. 43; 1 Nott & McCord, 180; 7 Taunt. 246; or on an abstract speculative question of law or judicial practice, not arising out of circumstances in which the parties have a real interest. 12 East, R. 247, and Day's notes, sed vide Cowp. 37.
6. - 2. Wagers as to the sex of an individual Cowp. 729; or whether an unmarried woman had borne or would have a child; 4 Campb. 152, are illegal; as unnecessarily leading to painful and indecent considerations. The supreme court of Pennsylvania have laid it down as a rule, that every bet about the age, or height, or weight, or wealth, or circumstances, or situation of any person, is illegal; and this whether the subject of the bet be man, woman, or child, married or single, native or foreigner, in this country or abroad. 1 Rawle, 42. And it seems that a wager between two coach-proprietors, whether or not a particular person would go by one of their coaches is illegal, as exposing that person to inconvenience. 1 B. & A. 683.
7. In the case even of a legal wager, the authority of a stakeholder, like that of an arbitrator, may be rescinded by either party before the event happens. And if after his authority has been countermanded, and the stake has been demanded, he refuse to deliver it, trover or assumpsit for money had and received is maintainable. 1 B. & A. 683. And where the wager is in its nature illegal, the stake may be recovered, even after the event, on demand made before it has been paid over. 4 Taunt. 474; 5 T. R. 405; sed vide 12 Johns. 1. See further on this subject, 7 Johns. 434; 11 Johns. 23; 10 Johns. 406,468; 12 Johns. 376; 17 Johns. 192; 15 Johns. 5; 13 Johns. 88; Mann. Dig. Gaming; Harr. Dig. Gaining; Stakeholder.
WAGES, contract. A compensation given to a hired person for his or her services. As to servants wages, see Chitty, Contr. 171 as to sailors' wages, Abbott on Shipp. 473; generally, see 22. Vin. Abr. 406; Bac. Abr. Master, &c., H; Marsh. Ins. 89; 2 Lill. Abr. 677; Peters' Dig. Admiralty, pl. 231, et seq.
WAIFS. Stolen goods waived or scattered by a thief in his flight in order to effect his escape.
2. Such goods by the English common law belong to the king. 1 Bl. Com. 296; 5 Co. 109; Cro. Eliz. 694. This prerogative has never been adopted here against the true owner, and never put in practice against the finder, though against him there would be better reason for adopting it. 2 Kent, Com. 292. Vide Com. Dig. h. t.; 1 Bro. Civ. Law, 239, n.
WAIVE. A term applied to a woman as outlaw is applied to a man. A man is an outlaw, a woman is a waive. T. L., Crabb's Tech. Dict. h. t.
To WAIVE. To abandon or forsake a right.
2. To waive signifies also to abandon without right; as "if the felon waives, that is, leaves any goods in his flight from those who either pursue him, or are apprehended by him so to do, he forfeits them, whether they be his own goods, or goods stolen by him." Bac. Ab . Forfeiture, B.
WAIVER., The relinquishment or refusal to accept of a right.
2. In practice it is required of every one to take advantage of his rights at a proper time and, neglecting to do so, will be considered as a waiver. If, for example, a defendant who has been misnamed in the writ and declaration, pleads over, he cannot afterwards take advantage of the error by pleading in abatement, for his plea amounts to a waiver.
3. In seeking for a remedy the party injured may, in some instances, waive a part of his right, and sue for another; for example, when the defendant has committed a trespass on the property of the plaintiff, by taking it away, and afterwards he sells it, the injured party may waive the trespass, and bring an action of assumpsit for the recovery of the money thus received by the defendant. 1 Chit. Pl. 90.
4. In contracts, if, after knowledge of a supposed fraud, surprise or mistake, a party performs the agreement in part, he will be considered as having waived the objection. 1 Bro. Parl. Cas. 289.
5. It is a rule of the civil law, consonant with reason, that any one may renounce or waive that which has been established in his favor: Regula est juris antique omnes licentiam habere his quae pro se introducta sunt, renunciare. Code 2, 3, 29. As to what will amount to a waiver of a forfeiture, see 1 Conn. R. 79; 7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 N. H, Rep. 120 163; 14 Wend. 419; 1 Ham. R. 21. Vide Verdict.
WAKENING, Scotch law. The revival of an action.
2. An action is said to sleep, when it lies over, not insisted on for a year in which case it is suspended. 4, t. 1, n. 33. With us a revival is by scire facias. (q. v.)
WALL. A building or erection so well known as to need no definition. In general a man may build a wall on any part of his estate, to any height he may deem proper, and in such form as may best accommodate him; but he must take care not to erect a wall contrary to the local regulations, nor in such a manner as to be injurious to his neighbors. See Dig. 50, 16, 157. Vide Party Wall.
WANTONNESS, crim. law. A licentious act by one man towards the person of another without regard to his rights; as, for example, if a man should attempt to pull off another's hat against his will in order to expose him to ridicule, the offence would be an assault, and if he touched him it would amount to a battery. (q. v.)
2. In such case there would be no malice, but the wantonness of the act would render the offending party liable to punishment.
WAPENTAKE. An ancient word used in England as synonymous with hundred. (q. v.) Fortesc. De Laud. ch. 24.