英文法律词典 B-15

BENCH. Latin Bancus, used for tribunal. In England there are two courts to which this word is applied. Bancus Regius, King's Bench Bancus Communis, Com- mon Bench or Pleas. The jus banci, says Spelman, properly belongs to the king's judges, who administer justice in the last resort. The judges of the inferior courts, as of the barons, are deemed to, judge plano pede, and are such as are called in the civil law pedanei judices, or by the Greeks Xauaidixastai, that is, humi judicantes. The Greeks called the seats of their higher judges Bumata, and of their inferior judges Bathra. The Romans used the word sellae and tribunalia, to designate the seats of their higher judges, and subsellia, to designate those of the lower. See Spelman's Gloss. (ad verb.) Bancus; also, 1 Reeves Hist. Eng. Law, 40, 4to ed., and postea Curia Regis.

BENCH WARRANT, crim. law. The name of a process sometimes given to an attachment issued by order of a criminal court, against an individual for some contempt, or for the purpose of arresting a person accused; the latter is seldom granted unless when a true bill has been found.

BENCHER, English law. A bencher is a senior in the inns of court, entrusted with their government and direction.

BENEFICE, eccles. law. In its most extended sense, any ecclesiastical preferment or dignity; but in its more limited sense, it is applied only to rectories and vicarages.

BENEFICIA. In the early feudal times, grants were made to continue only during the pleasure of the grantor, which were called munera, (q. v.) but soon afterwards these grants were made for life, and then they assumed the name of beneficia. Dalr. Feud. Pr. 199. Pomponius Laetus, as cited by Hotoman, De Feudis, ca. 2, says, " That it was an ancient custom, revived by the emperor Constantine, to give lands and villas to those generals, prefects, and tribunes, who had grown old in enlarging the empire, to supply their necessities as long as they lived, which they called. parochial parishes, &c. But, between (feuda) fiefs or feuds, and (parochias) parishes, there was this difference, that the latter were given to old men, veterans, &c., who, as they had deserved well of the republic, sustained the rest of their life (publico beneficio) by the public benefaction; or, if any war afterwards arose, they were called out, not so much as soldiers, as leaders, (majistri militum.) Feuds, (feuda,) on the other hand, were usually given to robust young men who could sustain the labors of war. In later times, the word parochia was appropriated exclusively to ecclesiastical persons, while the word beneficium (militare) continued to be used in reference to military fiefs or fees.

BENEFICIAL. Of advantage, profit or interest; as the wife has a beneficial interest in property held by a trustee for her. Vide Cestui que trust.

BENEFICIAL INTEREST. That right which a person has in a contract made with another; as if A makes a contract with B that he will pay C a certain sum of money, B has the legal interest in the contract, and C the beneficial interest. Hamm. on Part. 6, 7, 25 2 Bulst. 70.

BENEFICIARY. This term is frequently used as synonymous with the technical phrase cestui que trust. (q. v.)

BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ directed from the king to the chancellor, commanding him to bestow the benefice which shall first fall in the king's gift, above or under a certain value, upon a particular and certain person.

BENEFICIUM COMPETENTIAE. The right which an insolvent debtor had, among the Romans, on making session of his property for the benefit of his creditors, to retain what was required for him to live honestly according to his condition. 7 Toull. n. 258.

BENEFIT. This word is used in the same sense as gain (q. v.) and profits. (q. v.) 20 Toull. n. 199.

BENEFIT OF CESSION, Civil law. The release of a debtor from future imprisonment for his debts, which the law operates in his favor upon the surrender of his property for the benefit of his, creditors, Poth. Proced. Civ. 5eme part., c. 2, §1. This was something like a discharge under the insolvent laws, which releases the person of the debtor, but not the goods he may acquire afterwards. See Bankrupt; Cessio Bo. Insolvent.

BENEFIT OF CLERGY, English law. An exemption of the punishment of death which the laws impose on the commission of certain crimes, on the culprit demanding it. By modern statute's, benefit of clergy was rather a substitution of a more mild punishment for the punishment of death.

2. It was lately granted, not only to the clergy, as was formerly the case, but to all persons. The benefit of clergy seems never to have been extended to the crime of high treason, nor to have embraced misdemeanors inferior to felony. Vide 1 Chit. Cr. Law, 667 to 668 4 Bl. Com. ch. 28. But this privilege improperly given to the clergy, because they had more learning than others) is now abolished by stat. 7 Geo. IV. c. 28, s. 6.

3. By the Act of Congress of April 30, 1790, it is provided, §30, that the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is, or shall be declared to be, death.